The next Chief Justice and Judging Judges

Justice Bosire and Justice Omolo courtesy of the Nation

For the first time, public has been treated to rather  detailed profiles of candidates for Chief Justice.  Justice Omolo, Justice Visram, Justice Nyamu, Justice Ang'awa, Dr Willy Mutunga  and Justice Bosire have all  been profiled.   The facts and cases set out are well known to members of the  legal profession and constitute lawyers tea time gossip.   What is unprecedented is that these issues are being placed in a newspaper of record.  The online comments  have so far been  supportive of this exercise though there those who believe that believe that the writer has an ulterior motives and is carrying water for certain interests or is simply misguided.

Judging of judges is really a matter of opinion. The opinion holder  may have specific biases, political or ideological, and may not be aware of certain facts or circumstances in which the decision was made.  However, as  Peter Mwaura  notes, judges and magistrates speak through their decisions and it is through these decisions that opinions can be formed. Unlike politicians who interact with the public on a day to day basis, judicial decisions are the authority on which judges are judged.

In the west, judging judges is well established and is a even an academic discpline and every judge appointed to high judicial office, has by that time of appointment, been the subject to rigorous scrutiny of his or her decisions, life connections, political views, extra-judicial writing and pronouncements.  All these  factors are added into the matrix of evaluation.  The central thrust of academic interest in this area is to establish objective criteria  as a basis for empirical  evaluation of candidates.  Objective criteria  also ensures a sense of fairness in evaluation of prospective candidates.

So far, in Kenya, I have not found any academic contribution on this subject even on a rudimentary scale.  I think this is a challenge for our academics and the civil society to begin collecting information and establish a system for public evaluation of  judicial candidates.  Without the necessary information, informed evaluation are difficult. The Law Society of Kenya  like the American Bar Association could play a key role in this area.  In South Africa, the Democratic Governance and Rights Unit of the Faculty of Law, University of Capetown was  approached by the Chief Justice as the head of the Judicial Service Commission, and requested to prepare a research report on the judicial track record of candidates for judicial appointment to be interviewed by the commissioners in 2010.

It is in this respect that I somewhat sympathise with the judges who are judged on the basis of one or two decisions rather than their entire record.   For people who have held judicial office for a period of over 30 years, the Moi era and one's role and reaction  to it, as evidenced by some of the overtly political decisions, looms large.   Perhaps it is a fact that it is the difficult  cases and judgments made at times such as these that really provide an opportunity to show intellect, character and fidelity to higher ideals.   

Other areas of evaluation do not lend themselves  easily to evaluation.  In Kegoro's evalution of the prospective candidates, we rarely see his evaluation of leadership and administrative capabilities of the  candidates.    These qualities, I think  are important for one to be considered the Chief Justice.   For example,  I am aware Justice Omolo was for some time the Chairperson of the Council for  Legal Education and a member of the Judicial Service Commission.  How would he be judged in respect of these capacities?  I recall that when Justice Gicheru was being appointed Chief Justice, praises of him were sung based on his dissenting judgment in the Tony Gachoka contempt case.  Nothing was said of his administrative capability and proven leadership qualities. 

I think it is important to continue the debate on the kind of judicial officers we should have.  I  also believe that judicial officers should always face public scrutiny.  This accords with the value we now place on transparency and accountability.  No longer will judges and magistrates shut themselves in the halls of justice and expect their record  will be beyond examination.

Finally, I think just like the Public Service has performance contracts, the Judicial Service Commission should also introduce periodical evaluation of  judicial officers.

 * Profile of Justice Mbogholi Msagha.Justice Kalpana Rawal. Justice Paul Kihara Kariuki. Lee Muthoga.

Mid Week Ruminations.

The Easter Court vacation is here but work continues unabated.  Here are my thoughts on some issues.

Justice Lenaola Appointed to Regional Post

Justice Lenaola after being sworn in as EACJ Judge courtesy of Nation

The EAC Summit appointed Kenyan High Court Judge Isaac Lenaola as a Judge of the East African Court of Justice (EACJ). Justice Lenaola will replace Justice Benjamin Kubo who retires from the EACJ on July 1, 2011.  Apart from being a High Court Judge, he is also a member of the newly reconstituted JSC.  A worthy appointment indeed.

Tribunals and Quasi-Judicial bodies

Pravin Bowry today raises important questions about tribunal and quasi-judicial bodies.   The 80 odd tribunals existing in the country now have a Constitutional foundation. Article 159 (1) of the Constitution now recognises that the judicial authority is derived from the people and vests in and is to be exercised by the courts and tribunals.  I agree with him that these tribunals perform an important function in dispensing justice.  However, like the courts they may be dens of injustice.  

Firstly, there is the issue of appointment to the tribunals.   Most of these tribunals are under ministries and their membership is a function of the patronage of the line Minister.  It is not unknown for a Minister to appoint his political cronies, who have little relationship to the matter at hand, to be members of the board.   In one case I am aware, a lawyer who was a member of the tribunal had disciplinary matters pending before the Advocates Disciplinary Committee.

Secondly, as Tribunals function within Ministries and are expected to hear appeals from decision of bureaucrats within the ministries that govern their operations.  The secretariat and personnel for the tribunal are normally ministry functionaries. This creates the perception that their decisions reflect the ministry position. 

Related to this issue, is that these tribunals are merely an appendages of the ministry and are not properly staffed  or given sufficient resources to perform their duties.  This obviously has an effect on the work they do.  As these tribunals  operate in the shadows not much is known about them and because they are on the margins of justice system, injustice goes unnoticed.

One of the solutions, I think is to centralize appointments through the Judicial Service Commission so that applications can be advertised, assessed and appointed with the advise and consent of the JSC.  The JSC could also be involved in training and ensuring standards at these tribunals are maintained.

Industrial Court

FKE has expressed concern about the inability of the Industrial Court to handle the increasing number of industrial disputes.   While the Executive Director blames this the fact that there is no longer a requirement for individual labour matters to undergo conciliation unlike those relating to union disputes.  I think the main problem here is that the  Labour Institutions Act introduced exclusive jurisdiction.  Section 12 provides;

The Industrial Court shall have exclusive jurisdiction to hear, determine and grant any appropriate relief in respect of an application, claim or complaint or infringement of any of the provisions of this Act or any other legislation which extends jurisdiction to the Industrial Court, or in respect of any matter which may arise at common law between an employer and employee in the course of employment, between an employee or employer's organisation and a trade union or between a trade union, an employer's organisation, a federation and a member thereof.

This exclusive jurisdiction means that all cases between employer and employee irrespective of the value must be tried by the Industrial Court.  Considering that the court is only composed of five judges who sit in Nairobi, serious problems  arise in terms of delivery of justice.

I think this jurisdiction should be rationalized.  Perhaps, the ordinary magistrates courts should be granted jurisdiction to deal with ordinary employer and employee matters upto a certain value with a right of appeal to the Industrial Court as an Appellate Court.   These magistrates could be designated as labour court magistrates and would sit throughout the country like the Childrens Court Magistrates.   The Industrial Court a la High Court would continue to deal with Trade Union matters and appeals from Labour Magistrates Court.   This would be useful particularly when there is, established an Industrial Court with equivalent jurisdiction to the High Court under Article 162(2)(a).

Vetting of Judges and Magistrates

In a full page ad in the newspapers today (I can’t find it online), the Public Service Commission under whose auspices the selection panel for the members of the Vetting Boards is operating, announced that the it could not proceed with the task of selection of members of the Board for several reasons. 

The only applications for chairperson were Justice (Rtd) Benjamin Kubo, Sharad Rao , Advocate,  Justice (Rtd) Akiwumi and Mwangi Kariuki, A Nairobi based Advocate.  The applications for members of the board were Chief Justice (Rtd) Majid Cockar, Justus Munithya, a Mombasa based advocate and LSK council member, Mwangi Kariuki, Mercy Mwarah Deche, a Mombasa based advocate, J KN Kamunyori and Thomas Letangule.

In view of the paucity of applications, the Committee noted that the Constitutional requirement that for gender representation could not be satisfied as only one woman made her application.   Secondly, the Committee noted that the provisions of section 9(5) could not be satisfied because it is required to interview at least three candidates qualified for appointment as chairperson and eighteen candidates at least six  of whom shall be lawyers for appointment to the board as members.  As these requirements were not satisfied the Selection Committee recommends that necessary amendments be made to the Act to facilitate appointment.

The only way to get around this is to amend the Act as it seems to have strict time guidelines.  It is also a shame that Kenyans and lawyers in particular have not come up to take advantage of publicly available opportunities.  Did we set the bar too high for ourselves?

I also think the Law Society of Kenya should do a better job encouraging and assisting members to apply for these positions.  Application for these positions, especially such senior positions is new  in Kenya and it will take time to take root. 

As for the women folk, it is distressing that only one woman applied for the position given the current agitation for these positions.

Saturday Miscellany

Ceremonies and Open days

A  senior lawyer expressed his disappointment at how the Court of Appeal sitting as the Supreme Court conducted the proceedings during the the just ended case on the Opinion Request.  He noted that the Court did not  take advantage this momentous occasion to  have a formal ceremony to recognise the fact that the Court was sitting for the first time, as the Supreme Court under the new Constitution.

Court ceremony is as old as the courts and is meant to emphasise the majesty and dignity, honour and power of the court.  Such ceremonies afford an opportunity for the judiciary and its partners to take stock, assess and evaluate its performance and set out challenges for the days to come.   It is through such occasions that the Judiciary has the opportunity to communicate to the public its concerns about the rule of law, independence of the judiciary and raise issues and concerns regarding the administration of justice that would otherwise get lost in the in the bureaucratic maze.

The Judicial Service Bill, 2011 provides that the Judiciary and the Judicial Service Commission shall prepare an annual report on their activities and present the same to Parliament.  The Reports shall also be published in Kenya Gazette.  I hope that a summary of the report shall presented each year at the annual court opening and an abridged and summarized version presented to the public.

Over the last few years that Judiciary has also held open days where members of the judiciary have interacted with the public.  These efforts should be promoted. After all, the Constitution is now very clear that judicial authority is derived from the people and is exercised by the judiciary on behalf of the people of Kenya.

Interviews for the Chief Justice, Deputy Chief Justice, Director of Public Prosecution

In a press release the JSC has now announced that it will interview candidates for the positions of Chief Justice and Deputy Chief Justice between 3^rd and 12^th of May 2011.   Although Judicial Service Act, section 10 of the First Schedule provides that interviews for judges shall be conducted in public.  It is not clear whether candidates for the position of the Chief Justice and Deputy shall be so conducted. 

I have previously advocated for public interviews and I hope, the JSC  and the Panel nominating the DPP will honour the promise of the Constitution. 

In the meantime, it is reported that Justice Nicholas Ombija, who has threatened to sue the JSC for its failure to disclose it criteria for shortlisting candidates for consideration.  Such allegation serve to raise doubts about the entire process and can only be dealt with by ensuring the process is as open as possible.

Truth Justice and Reconciliation

The TJRC appears  be proceeding in full gear after several false starts.  I think the Commissioners should be commended for the work they are doing despite lack of political support for the process.   I hope Kenyans will participate fully in the ongoing process and deny the politicians the opportunity to cry foul when the Commission releases it report.  It is not clear whether Parliament will extend its terms despite having indicated that it will not do so.

In the meantime the Tribunal conducting investigation into the conduct of Bethuel Kiplagat ,the Chairman, made a ruling on 12^th April 2011  where it held that it had jurisdiction to inquire into the past conduct of the Chairman prior to his appointment.

Draft Insurance Bill

The Insurance Regulatory Authority has published a draft Insurance Act and invited public comments.  The Motor Vehicle Insurance Third Party Risk Act is not the subject of this review.

Unravelling of the Moi Regime through dubious jurisprudence

President Daniel Toroitich  arap Moi

The case of Mwangi Stephen Mureithi vs Hon. Daniel Toroitich arap Moi (eKLR) could have serious and far reaching implications on matters concerning the Moi regime. Justice Gacheche ruled that the former President, was liable for the wrongful detention of Stephen Mwangi Mureithi. The gravamen of Mureithi's claim is that sometime in 1982, the President while using his power as President of the Republic of Kenya, without any lawful cause or excuse caused him to be detained without trial for the purpose of illegally and unconstitutionally depriving him of his companies and the properties subject of the suit. For this oppressive, arbitrary or unconstitutional act, which the judge found was intended to procure financial benefit to the President, she awarded the petitioner the sum of Kshs. 50,000,000.00.

Under section 83 of the old Constitution, derogation from the provisions of the Bill of Rights was specifically permitted through the Preservation of Public Security Act (Chapter 57 of the Laws of Kenya) (PPSA). It provided that “Nothing contained in or done under the authority of an Act of Parliament shall be held to be inconsistent with on contravention of sections 72, 76, 79, 80, 81 or 82 when Kenya is at war, and nothing contained in or done under the authority of Part III of the Public Security Act shall be held to be inconsistent with or in contravention of those section of this Constitution ….”

In 1982, Mr Mureithi was detained under the PPSA. On an application for habeas corpus Justice Chesoni ruled that the Director of the Criminal Investigations Department has answered the Court Summons and had satisfactorily explained that he was unable to produce the subject and the subject could not be released because he was detained under the PPSA which for purposes of the application for habeas corpus was deemed to be lawful custody. The case is reported in [1988] KLR 629.

How did Justice Gacheche deal the issue of legality?    In regard to the habeas corpus matter the judge was of the view that, “the most critical question which would be the turning point of this case, would be who actually detained the petitioner? He states that he was detained closely over 3 years. It is alleged that he was detained by the state, but can the respondent be one and the State?”

In a broad and sweeping statement Justice Gacheche states as follows;

The law is clear in that the powers to order detention lie with the said Minister and not the President. However, there is no reason at all to believe that the said detention was carried out for the purposes which are laid down in the Preservation of Public Security Act, for in my view, it was not. Having held the high positions of Deputy Director of Intelligence and Deputy Commissioner of Police in the respondent’s government, it is obvious that the respondent was very well aware of what was to befall his Police Chief and that he is the one who actually made the decision to have him detained, with the sole purpose of interfering with his personal liberties and his rights to the companies and the subject properties. In my humble view, the Minister’s role was simply to execute that decision by his boss who happened to be this respondent. It is for these reasons that I find that the detention was not legal, nor was the decision official. In my mind, the respondent could not have, nor did he act in pursuance of his authority as the President of Kenya, for it clearly contradicted his oath of office.
I need not re-emphasize the fact that public officers, which will include ex-Presidents of countries would now be held liable for illegal acts which they commit while allegedly acting under the ostensible authority of the law. The respondents acted in his personal capacity, and he cannot escape the responsibility for the said detention, for courts should protect fundamental rights and will, where a petitioner proves his case, grant orders for compensation for the derogation.

Arising from the foregoing, I find that the petitioner has demonstrated that it is the respondent who detained him and as such he is liable to compensate him for the detention …..

While the result  of the case may be progressive in within the human rights sphere, I find the reasoning of the learned judge rather dubious particularly on the core issue of detention and holding the former President liable.    Firstly, the learned judge totally avoided the issue of the Constitutionally provided derogation.  The regime of detention without trial was specifically provided for under section 83 of the Constitution.    Yes, it was repugnant but it nevertheless constituted part of our law and our Constitution.   The judge did not provide a clear explanation or justification for ignoring the Constitution which she was purporting to interpret. 

Secondly, in view of the finding of Justice Chesoni, who was satisfied that the detention order was signed by the Minister, was  in accordance with the PPSA, could she "look behind" the detention order to discern the intentions of the President in influencing the petitioner's detention?  Could the Presidents personal apology be taken to imply that the Minister's acts  were illegal and therefore found liability against the former President?

Does this case now open a door for John Khaminwa, Raila Odinga, Mohammed Ibrahim, Gitobu Imanyara, Kenneth Matiba and all those detained in the 1980s to sue the Moi personally?

Advisory Opinion Jurisdiction of the Supreme Court

Court of Appeal  at Nairobi

The Commission for the Implementation of the Constitution (CIC) filed a Request for an Advisory Opinion seeking the Court’s opinion on several questions relating to appointments to state offices and commissions and the effect of the provisions of the Sixth schedule (Transitional and Consequential Provisions) to the Constitution on these appointments.  

Under section 21(2) of the Sixth Schedule, the Court of Appeal exercises the jurisdiction of the Supreme Court until such time as that court is established.   When the hearing commenced on Tuesday, the Court directed that the issue of jurisdiction of the court  raised by several parties be heard first.

Article 163(6) of the Constitution provides;

The Supreme Court may give an advisory opinion at the request of the national government, any state organ, or any county government with respect to any matter concerning county government.

The interpretation of this article depends substantially on the position of the “comma”  before "or" in the article.   On the one hand, the CIC, supported by the Attorney General, argues that it is only county governments that are restricted to seeking an advisory opinions in respect of matter concerning county government.  The CIC submitted that the article must be read in the context of the political and legal environment  where the country is facing serious divisions amongst state organs and officers on matters of  interpretation of the Constitution.  The court  was urged to adopt a broad and liberal interpretation in holding that it has jurisdiction in the matter so that the court is able to resolve contentious issues that state organs and officers are unable to resolve without waiting for disputes to mature through the court system.

On the other hand,  the objecting parties, among them the Kenya Magistrates and Judges Association, Prof Yash Pal Ghai, Otiende Amollo and Okoiti Omtata argued that  that the meaning of Article 163(6) is so clear as to exclude any ambiguity.   In any case , they  submitted, the legislative history of the advisory opinion jurisdition of the Supreme Court and the Constitutional Court in the  previous draft Constitutions shows that this jurisdcition was reserved for matters of devolved government.

After hearing the matter, the court adjourned the matter to 5th May 2011 to  confirm that  all parties have filed their written submissions.  The matter was heard by Justices Tunoi, Bosire, O'Kubasu, Githinji and Waki.

Disclosure: I am part of the CIC legal team.

Advocacy Training through Learning by Doing

Participants at the Justice Advocacy Faculty  Training Institute, University of Washington Seattle, March 23 to 26th 2011

Forensic examination of witnesses and making arguments before the court was neither part of the curriculum nor training during my time at university. The closest to advocacy was during the evidence course conducted by a lecturer, whose last appearance in court was during her pupillage. The lecturer recited the elements of examination in chief, cross examination and reexamination. The end of semester exam was limited to asking us to, “Write short notes on the following: Examination in Chief, Cross examination and Re-examination of witnesses.”

Fast forward, and voila, you are admitted as an advocate. If you are unfortunate and I know many are, your breezed pupillage enough without seeing an actual trial being conducted. If you are luckier, you saw something on Vitimbi. And if you are really, really lucky some advocacy skills were gleaned from Crown Court or Rumpole.

The loss of trial advocacy skills in Kenya, I think, is one of the reason way the standards of practice and litigation have collapsed in the country.   Good advocacy also contributes significantly to the rule of law. Advocates who are well prepared for their cases are less likely to take short cuts or try to win cases by unorthodox or corrupt means.   Judicial Officers presiding over cases where the advocates are well prepared will be forced to rise to the occasion and reciprocate by making decisions that give credit to the high standard of advocacy.   Proper cross -examination can make a difference between life and death.   Overall, good advocacy can only have positive effects on the legal system.

 

Justice Advocacy Africa (JAA) is non profit–organisation US based with the mission of establishing self sustaining trial advocacy programs for the African Trial Attorney. Founded by US Federal District Judge Marsha Pechman, Kenyan Professor Joel Ngugi and Seattle Attorney Steve Fury, JAA pioneered the National Justice for Trial Advocacy (NITA) Training in Kenya. The programme in Kenya has been running for the past three years in conjunction with the Kenya School of Law and Kituo Cha Sheria.  The focus of the course has been to train a core group of lawyers who will then take over from the American based faculty.  Lawyers assisting Kituo and students from the KSL have benefited from the  programme.

Between 23rd and 26th March 2010, lawyers from Kenya, Uganda, Botswana and Malawi attended training course on becoming instructors in the NITA Programme in their respective countries. Attended by 10 lawyers from Kenya, the course centered on training instructors in the NITA style of “Learning by Doing.” Unlike the lecture based method, the NITA style engages participants in mock trials where lawyer exercise actual skill of making opening and closing statements and examination of witnesses. Throughout the sessions, the lawyers are videotaped and critiqued by their teachers. The student benefits by being “told how to do it and doing it.” 

 

During the course, the attendees were privileged to meet  judges of the US Federal District Court at Seattle and several Washington attorneys through the auspices of the Washington State of Association for Justice.  A one day session was held at the federal court house.   The participants also attended an actual sentencing in Court.

The JAA/Kituo/KSL  program is not just about advocacy training, it is advocacy training with a purpose.   At the core of the programme is commitment by the participant to access to justice.   Using the skills learnt, lawyers attending training must commit to do at least one pro-bono case a year.   The programme also incorporates elements of ethical practice which participants are expected to uphold.

An advocacy training course in Kenya in planned for August 2011.

Applicants for the position of Director of Public Prosecutions [UPDATED]

The Constitution diluted the all powerful position of the office of Attorney General by establishing the office of the Director of Public Prosecutions. as a separate and independent office.  Under Article 157 of the Constitution, the DPP has power to direct the Inspector General of the Police Service to investigate any information and allegation of criminal conduct and exercises the state power of prosecution which includes the institution and undertaking proceedings, taking over and continuing criminal proceedings instituted in any court and discontinuing subject to the court's permission criminal proceedings.   The DPP unlike the AG, who serves at the pleasure of the President, now enjoys security of tenure and holds office for one term of 8 years unless removed for cause by a tribunal established for the purpose.

This  post has attracted a total of 30 applicants comprising 5 women  and true to the Kenyan peculiar habits the applications must have come in the last minute.  Notably absent  from the list and representing Hon William Ruto at the Hague is Kioko Kilukumi who had been nominated previously for the post.  

Among the applicants are the following; The current DPP, Keriako Tobiko and his assistant  Oriri Onyango have staked their claim to the office.   A former DPP Justus Momanyi Bwononga is also a contender. The only judge to apply for the position, Justice Nicholas Ombija also applied for the position of Deputy Chief Justice.   There are sitting magistrates; Kimwele Muneeni and Mrs Margaret Kasera.   The former chairman of the International Commission of Jurists- Kenya Section, Wilfred Nderitu,  a former member of the Committee of Experts (COE), Otiende Amollo, former Chairman of the Law Society of Kenya and the Chairman of Kenya Anti-Corruption Advisory Board, Erick Okongo Omogeni have also applied.   Mathews Nderi Nduma, Assistant Counsel to the East Africa Community and a former Crown Counsel and Judge of the Industrial Court in Swaziland is on the list.     From the State Law offices we have Dorcas Oduor, who was an assisting counsel to the Goldenberg Commission and Alice Ondieki, Tabitha Akoth Ouya, John Gacivih and  Patrick Kiage, special Prosecutor of anti-corruption cases.  Kenneth Mwige, the director of the  Public Complaints Standing Committee (Ombudsman) seeks consideration. Byrum Ongaya, counsel at the Public Service Commission had also applied.

From private practice we have Benard Mwangi Mbai,  Paul Muriithi Mwangi, author of the Black Bar and commentator on legal and political issues,   Richard Bush Onsongo, a leading practitioner in Kisumu, Michael Chemwok of Eldoret, Francis Nyaga Njanja, Marube Charles Getanda and Ashford Muriuki Mugwuku of Nairobi.    Francis Kakai Kissinger, currently of the civil society is also in contention.

Others include Wambui Njogu, Dennis Anthony Were, Major Kamunya Karanja, Joshua Kiarie Mwaura and Daniel Ogana.

The Nominating panel will be headed by Francis Atwoli, the Secretary general of the Central Organisation of Trade Unions and will have Amos Wako, Francis Kimemia, the PS Ministry of State for Provincial Administration and Internal Security, Office of the President,  Amina Mohamed, Permanent Secretary of the Ministry of Justice, Caroli Omondi of the Prime Minister's Office and Kenneth Akide and Florence Kajuju, the Chair and Vice-Chair of the Law Society of Kenya respectively.  The shortlist will be published on 8th April and the interviews carried out in May.

SHORTLISTED
According to the Nominating Panel, only thirteen applicants made it to the shortlist;
Keriako Tobiko, Oriri Onyango , Okong’o Omogeni,  Patrick Omwenga Kiage, Mathews Nderi Nduma, Wilfred N Nderitu, Richard Bush Obwocha Onsongo, Justus Momanyi Bwonwonga, John Nyaga Gacivih, Paul Muriithi Mwangi, Ms Wambui Njogu, Alice Osebe Ondieki, and Dorcas Oduor. 
 

Applicants for posts of Chief Justice and Deputy Chief Justice

The Judicial Service Commission has now released the names of applicants for the post of Chief Justice. From the Court of Appeal we have Justice Riaga Omolo, the senior most and presiding judge; Justice Samuel Bosire, well known for heading the Goldenberg Commission; Justice Joseph Gregory Nyamu and Justice Alnashir Visram  who have  all staked their claim to the position.   Some of the judges are profiled here and here. 

From the High Court  we have Justices Mbogholi Msagha, Kalpana Rawal, Mary Ang'awa and Kihara Kariuki who have filed their applications.  Justice Mbogholi Msagha, who is the Presiding Judge in the High Court survived the purge. Advocates Timothy Azania Bryant, Lee G. Muthoga S.C., Dr Willy Mutunga and Edward Torgbor of Ghana.   Justice Torgbor was a High Court judge in Kenya until his contract was revoked.  He is well known in arbitration circles.

Applying for the post of Deputy Chief Justice are Justices Mary Ang'awa, Roselyn Nambuye, Mary Kasango, Hannah Okwengu and Martha Koome. Others are Ms Nancy Baraza, the Deputy Chairperson of the Law Reform Commission,  Scholastica Omondi, a judge of the now disbanded Interim Constitution Dispute Settlement Court,   Mrs Pamela Mwikali Tutui, Gladys Boss Shollei and Lucy Muthoni Kambuni. Justices William Ouko and Nicholas Richard Ombija have also put in their applications.

Some quick thoughts.  Only two advocates in private practice have applied for the post of Chief Justice.  While Lee Muthoga is in private practice in the country, he is a sitting judge at the ICTR Tribunal in Arusha.  Quite apart from the perceived indignity in making an application to be considered for high office, most senior counsel of experience would loath to take a diminution in income that employment in the public service involves.  Dr Willy Mutunga is the only applicant from what is  the civil society.   Timothy Bryant is an advocate in private practice. 

After railing against the deputy syndrome,  only two women  judges applied for the position of Chief Justice while the majority of the applicants for the position of Deputy Chief Justice are women. 

Friday Ruminations

US Federal Courthouse, Western District for  Washington, Seattle

I am back! I missed the Law Society of Kenya Annual General meeting.  A suit brought by a member of the Society to compel the Society to include a motion of no confidence in the Chairman  and  Vice Chair at the AGM was dismissed by Justice  Musinga.  Interestingly, the suit was dismissed on the ground that the advocate who filed the suit did not have a practicing certificate.  The judge ruled that Article 159(2)(d) of the Constitution which obliges the court to dispense justice without undue regard to technicalities, was not a panacea for incompetent pleadings filed by an incompetent person.   The judge further held that failure to take out a practicing certificate was not a technical matter and this deficiency could not be cured by the filing of a notice of intention to act in person where the suit was wholly defective.

Judiciary Bills

The President has now assented to the two judiciary bills; now the Judicial Service Act (Act No. 1 of 2011)  and the Vetting of Judges and Magistrates Act (Act No. 2 of 2011).  I previously discussed some of the proposed amendments to the Judicial Service Bill.   Unfortunately temperament was removed as a consideration for appointment to judicial office.   I guess the Honourable members equated it to temper!   Section 10 of the First Schedule was also amended to provide for  public interviews for prospective applicants for judicial office.

The proposed amendment to section 47 was also accepted.  Henceforth all regulations made by the Judicial Service Commission shall be subject to approval by the National Assembly.   The Vetting of Judges and Magistrates Bill was passed without alteration.    Under the Act,  retirement benefits are available whether retirement is voluntary or as a result of being found unsuitable by the tribunal.  I discussed some of the aspects of the bill here.

Obtaining by False Pretence

It is easier to collect a debt or enforce civil obligations by threatening criminal proceedings than by filing a suit. 

I was in court yesterday, specifically the Judicial Review court of the Criminal Division where Judicial Review matters concerning criminal proceedings are heard.   It is interesting to note that most of the matters concern proceedings to stop or quash criminal proceedings on the grounds that the criminal proceedings are being used to enforce what are essentially civil obligations.  I think this is a symptom of the collapse of the civil justice system.   Because, the civil process is so inefficient, it is preferable to invoke the criminal process.  

A common example is where someone has purchased a car and defaulted in payment.  Instead of suing for the balance of the purchase price, a process that will take  upto  3 years, the  vendor simply reports to the police  that so and so has taken his vehicle without paying.  The person is arrested on a Friday for "obtaining the vehicle by false pretence",  while he is in custody, his family will make effort to payoff the loan and by Monday, the vendor will be a happy man having recovered the debt. Being a Friday, everyone dreads, sleeping in!  And the police are happy to play along!

Implementation of the Constitution

The General Election is expected next year.  The Commission for the Implementation of the Constitution (CIC) has expressed concern about the delay in implementation.  It appears that legislation is not being churned out fast enough.   One of the issues I have highlighted in the past is the lack of information about the bills that are under discussion.  Upto today, the CIC does not have a website where the public can actively participate in making suggestions on bills.  Parliament does not make the bills accessible on its website.  Civil Society must also take up the challenge of generating drafts of proposed legislation in order to influence debate rather then adopt a reactive posture. 

According to the chairperson of the Kenya Law Reform Commission Kathurima M'Inoti , "The CIC is proposing that we adopt a one sitting where we reach all agreements and the documents go for publication instead of the current case where we keep exchanging drafts." It is then expected that parliament will, according to nominated MP Millie Odhiambo, " ...... pass legislations even within one week."

Unless citizens actively participate in this process, it is likely that we will be saddled with laws that we do not understand and the culture to be engendered by the Constitution  will fail to take root.

Vacancies

The 24 applications for the position of Chief Justice will be opened on Monday. In the meantime, the JSC has advertised  5 Supreme Court positions and 26 vacancies in the High Court.   Interesting times indeed.   It is not clear whether the position of the Director of Public Prosecutions has attracted any applicants.  A nomination panel comprising the Attorney-General or his representative, a representative of the Office of the President and Office of the Prime Minister, a representative of the Justice ministry, two representatives from the Law Society of Kenya and one from Central Organisation of Trade Unions has been set up to process application for the DPP's position.

Interesting stuff
In March this year, the US Government indicted 14 young Somalis for piracy and other major crimes in federal court in Norfolk, Virginia. The trial and incarceration of these young men for life costs an estimated USD 15 million.  No wonder the Kenyan Government doesn't want to try them here.