Tuesday, May 31, 2011

Tuesday Miscellany .....

ICC Matters
Kenya lost the challenge to admissibility of the Ocampo Six case.  The ruling can be found here.  The Attorney General has indicated that the ruling will be appealed.   One of lessons you learn in litigation is good appeal is grounded on well presented facts.  Reading with the ruling, it is clear that Government assertions on ongoing investigations were rather threadbare and without foundation.  In one of the interesting observation the court noted, "As to annex 1, it includes a letter signed by the Attorney General of the Republic of Kenya and addressed to the Kenyan Commissioner of Police directing the latter to "investigate all other persons against whom there may be allegation of participation  in the Post-Elections Violence, including the six persons who are the subject of the proceedings currently before the International Criminal Court (ICC)". The letter also instructs the Kenyan Commissioner of Police to "prepare and submit [...] bimonthly reports on progress made with these investigations."  This letter is dated 14 April 2011 that is, two weeks after the Government of Kenya lodged its admissibility challenge. Thus, it is clear from this letter that by the time the Government of Kenya filed the Application asserting that it was investigating the  case before the Court, there were in fact no ongoing investigations."   I am not sure an appeal will change the facts presented.  In fact, it is surprising that the defence lawyers did not support the Government's application.

Ombudsman Opinion
The Ombudsman issued an opinion on the nomination by the Judicial Service Commission of the Chief Justice and Deputy Chief Justice.  The opinion is an answer to the issues raised by the statement issued by Kenya Christian Professionals  rejecting the nomination of Dr Mutunga and Ms Barasa by the JSC.

Monday, May 30, 2011

Article 59; One or several Commissions

Article 59 of the Constitution has the head note ‘Kenya National Human Rights and Equality Commission.” The Commission is given broad power in matters of promotion, enforcement, monitoring and reporting on human rights matters.  Sub-article (4) gives the legislature power restructure the Commission into two or more separate Commission.  Under the Fifth Schedule, this exercise must be completed within a year from the effective date.  The question under consideration is whether the existing Human Rights Commissions will be consolidated or will maintained separately.

Currently there are two main commissions dealing with human rights issues; The KenyaNational Commission on Human Rights (KNCHR) and the National Commission on Gender and Development (NCGD).   There is a raging debate on whether the two Commissions should be merged under one umbrella.  Naturally, KNCHR is of the view it is the natural body to be take over the position of the yet to be established KNHREC, while the NCGD feels that it has a specialized and important role and it should be maintained as a separate entity as gender issues require special attention.   

Apart from the usual politics of self preservation, I think both Commissions should be maintained and restructured to be more effective in the enforcement of human rights.  The issue of gender requires specialized attention and the existing body  should continue its role. Effective Commissions, I expect, will reduce pressure from the Courts in matter of redress of human rights.

Sunday, May 29, 2011

High Court Judges Shortlisted and Weekend Round up

High Court Judges Shortlisted
The Judicial Service Commission has shortlisted 114 candidates for 26 positions of High Court Judge.  There were a total of 254 applicants. Out of the 114 shortlisted, 47 are women.  The majority of those shortlisted are currently serving as senior magistrates.  The interviews are scheduled for July.

Chief Justice and Morality.

The NCCK and Catholic Church have now come out clearly against the nomination of Dr Mutunga and Ms Barasa and Chief Justice and Deputy Justice respectively. The Church has raised what it terms as moral issues against the nominees. The Nation has an interesting article on “Why the Church is fearful of Mutunga.”

One of the more interesting issues the Church raised was that the fact that the JSC was wrong to give the Executive only one name to select. Thankfully, Maina Kiai demolishes this argument.

I have no problem with the Church and others voicing their concerns about the morality of particular candidates for office particularly judicial office but they must realise that Kenya is a nation of diversity and the content of morality is as varied as the wananchi.  While most Kenyans are God fearing, Christianity is not a state religion which everyone must follow.  What is more important, is whether the candidate have fidelity to the law and to what we have defined as our national values set out in Article 10 of the Constitution. 

Diplomatic Immunity and Privilege
The Privileges and immunities Act (Chapter 179 of the Laws of Kenya) codifies and applies the Vienna Convention on Diplomatic Relations 1961. Generally, diplomats are exempt from the criminal, civil and administrative jurisdiction of the host country. This exemption may be waived by their home country. Such immunity does not exempt the diplomat from the jurisdiction from the jurisdiction of his/her home country. While it is true that the Commissioner of Police has no jurisdiction to arrest the Nigerian High Commissioner on allegations of spousal abuse, the spouse may lodge the complaint in Nigeria where, subject to Nigerian law, the High Commissioner may be prosecuted.

Kenya has the discretion to declare any member of High Commissioner persona non grata at any time and there is no obligation to explain such a decision whereupon the Nigeria would recall the High Commissioner. Governments very rarely waives diplomatic immunity for their envoys even where the violations are egregious.

Right to Privacy and the World of Super injunctions
I think our Constitution is quite revolutionary in certain respects. Article 31 of the Constitution provides that every person has the right to privacy, which includes the right not to have (a) their person, home or property searched; (b) their possessions seized; (c) information relating to their family or private affairs unnecessarily required or revealed; or (d) the privacy of their communication infringed.

The right to privacy is important in this day and age of ubiquitous and intrusive technology. Given the scope of the right, the courts will have the responsibility of defining the contours of such a right. Does it apply to both state and private actions? To what extent does this right protect one’s nocturnal activities from the tabloids? Or is the “Spotted” article in the Star an unnecessary intrusion into one’s privacy. Isn’t the publishing of the Identity card numbers of applicant to public jobs an unnecessary invasion of privacy particularly given the opportunities for identity theft? I think these issues will be fertile areas of litigation.  I hope legislature intervenes with appropriate legislation.

The right to privacy and the extent of court intervention debate is now raging in the England, where the High Court has issued  Super injunctions not only prohibit the publication of the offending material but the fact that the court has actually issued such an injunction.

Right to Bail in Uganda
Fresh from landside win, President Museveni proposed a change of the law to deny bail to suspects charged with corruption, terrorism, treason and defilement in the first 180 days on remand. The proposed law would remove the discretionary powers of the judges to grant bail to suspects for certain crime categories. This proposal has received robust condemnation. Such laws are a cause for worry and are in my view an impediment to the integration of East Africa.

Approval of Mutunga, Barasa and Tobiko held up by Parliamentary Wrangles
The approval of the Chief Justice, Deputy Chief Justice and the Director of Public Prosecutions is now hostage to the wrangling of parties on the Departmental Committee on Justice and Legal Affairs. While the Speaker had ordered that the names be presented to the House last Thursday, the vetting of the nominees could not be done as the relevant Committee cannot sit as it is embroiled in a dispute.  An informal meeting of the House resolved to establish an ad hoc committee to conduct the vetting. Even that issue has not been settled
The Constitution and Times Lines 
The Commission for the Implementation of the Constitution has faulted the Minister for Finance for setting    as the date for presentation on 8th June.  According to the opinion issued by  the CIC, the  Article 221 requires that estimates of revenue and expenditure  be presented to the National Assembly at least two months before  presentation of the budget.  The purpose of this process is to ensure transparency and effective participation of the legislature in the budget process.   A good summary on the issues can be found here.

The view of the Commission is that no organ has the power to extend constitutional timelines.  I think that there must be a level or recognition that the country in going through a transition and some deadlines may be missed.  The case of a delayed budget is not one, in that is in legal terms, fatal.   If the money is not appropriated then of course, everything comes to a standstill.  On the other hand the Members of Parliament still have the opportunity to scrutinize the appropriation bills when they are presented for debate.

Saturday, May 21, 2011

A brief note on the Kamukunji By Election Case

The ruling of Justice Musinga in the case of Paul Waweru Mwangi vs IIEC & Others Petition No. 71 of 2011 (Unreported) goes against the grain of the Court of Appeal decisions dealing with injunctions in election matters. While I agree, on the evidence before him there was a violation of the petitioner’s constitutional rights, I think that the right to a remedy is not absolute and the court must weigh the rights of the petitioner against those of other Kenyans.  Sorry for the extensive quotations.

The judge relied on the case of Richard Chirchir vs Henry Cheboiwo & Another Civil Application No. NAI 253 of 1992 where the Court of Appeal, in ruling refusing to stay an injunction granted by the High Court, held, “The law of Kenya contemplates that a Kenyan seeking nomination as a candidate in a parliamentary election shall be entitled to unimpeded access to the returning office of the constituency if his choice.  If this application is refused, the only possible prejudice Mr Kamuren will suffer, if you can call it prejudice, is that his purported election as a member of Parliament for Baringo North Constituency will be slightly delayed but he can take some consolation from the fact that such a temporary setback is not too heavy a price to pay for democracy.  Soon after the general election the Speaker will issued the necessary writ for an election to be held according to the law.  On the other hand, if we allow this application, we shall be giving a seal of approval to unbridled use of violence and strong arm tactic in the election process.  That cannot be the function of a court of law.”

That Cheboiwo case was itself discredited in the case of Wanyoike vs Electoral Commission of Kenya (No. 2) (2008) 2 KLR (EP) 43.  The Court of Appeal stated,  We do not know whether in granting an injunction in the Cheboiwo case, the attention of the court was drawn to the case of The Speaker of The National Assembly v The Hon James Njenga Karume, Civil Application No 92 of 1992 (unreported) which had been decided by the Court on the 29th May, 1992, barely some six or so months back. Both Kwach & Cockar JJ A who sat in Cheboiwo’s case had sat on Karume’s case and there the Court had delivered itself as follows in granting to the Speaker an order of stay: “In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that  procedure should be strictly followed. We observe without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional provisions.” Karume’s case was decided and December when Cheboiwo’s case came up for decision which would warrant the Court making such a drastic turn-about. We think the procedure for addressing grievances arising from elections is through an election petition and that is exactly what the Court was saying in Karume’s case. That view had full support in authority, both local and foreign. In Raphael Samson Kithika Mbondo v Luka Daudi Galgalo and Paul Joseph Ngei, Election Petition No 16 of 1974 (unreported) it was alleged that Mr Ngei and his supporters had in effect physically prevented Mr Mbondo from presenting his nomination papers. Mr Mbondo, however, did not go to the High Court by way of a plaint to. to compel the Returning Officer to accept his papers.  He waited until the results were published and then he filed an election petition.  The election of Mr Ngei was nullified and Mr Ngei was found guilty of an election offence.”

That case was also followed in the case of Kipkalya Kiprono Kones vs Republic & Another ex-parte Kimani Wanyoike & 4 Others, (2008) 3 KLR (EP) 291, where the Court of Appeal re-affirmed this position and stated, No doubt, mistakes even grievous mistakes, will be made in the process of elections or nominations but such mistakes cannot be used to stop the electoral or nomination process. In filing either their plaint or the judicial review process now under consideration, the clear intention of the parties aggrieved by the action of the Commission was to stop the Commission from proceeding with the process of nominating the Appellant. If the Commission can be stopped from completing the process of nomination, it can also be stopped from completing the process of elections. That cannot be allowed because if it were to be allowed, the country may well end up having no members in the National Assembly as there undoubtedly will be interventions by the courts in the process of either electing or nominating members to the National Assembly.”

If ruling in Peter Maina’s case is to stand, imagine the chaos that will be in the mega election of 2012.

Friday, May 20, 2011

Kamukunji By Elections and other things.

Other than the nomination of the Chief Justice and Deputy Chief Justice, there have been several ongoing legal matters.

Kamukunji By Election Stopped
In a ruling issued today, Justice Musinga restrained the Interim Independent Election Commission from proceeding with the by election scheduled on Monday. The Court found and held the failure by the Returning Officer to comply with the Election Regulations effectively disqualified the applicant from contesting the election. The judge held that this is not an a trivial matter as the failure to give the applicant reasons for his disqualification was a failure to comply with Article 47 which provides that every person has a right to administrative action that is expeditious, efficient, lawful and reasonable and procedurally fair.  The judge stated that without transparent nomination of candidates there cannot be transparent elections.

The ruling has already caused uproar and will certainly raise question about the way elections are conducted and in particular the ability of the court to interfere with elections by way of injunction. Regard must also be had to the financial burden borne by the country in conducting these elections.

KNUT protests the Salaries and Remuneration Bill
The just passed Salaries and Remuneration Commission Bill is now awaiting Presidential assent.  The Bill provides for the Salaries and Remuneration Commission established under Article 230. Under the Article 230(4) the Commission power and function is to (a) set and regularly review the remuneration and benefits of all State officer; and (b) advice the nation and county governments in the remuneration and benefits of all public officers. State officers are clearly defined in the Constitution while public officers are those officers paid from the public purse.

The Commission can only make recommendations in respect of those considered public officers.  By any measure of definition, teachers cannot be state officers and as such their salaries cannot be determined by the Salaries and Remuneration Commission.  The giant and influential Kenya National Union of Teachers (KNUT) protests the passage of the bill as believes that the Act undercuts the ability of the Union to collectively bargain for their wages.   The issue of teachers salaries has been quite a headache for the government and I do not see how collective bargaining preserved by Article 41 can be circumvented by holding that teachers are state officers.

Another take on the Bill here

Of drugs and terrorism
While addressing an Inter-Governmental Authority on Development (IGAD) Capacity Building Programme against Terrorism Conference, the AG noted with concern that the drug trade was fueling terrorism in the region.    The US is taking this very seriously and the US Drug Enforcement Agency is setting up an office in Nairobi to stop the flow of narcotics through Nairobi.

On the drugs war see here and here.

Commission for the Implementation for the Constitution
CIC now has a website where it outlines its activities. It has a Bill Tracker where the public can track and progress of bill and make comments and suggestions.

Interim Report on the Task Force on Devolution
The Task Force on Devolution has released its interim report. I think devolution will be one of the areas of major contention in the implementation of the Constitution. The expectation of the wananchi on the benefits of devolution are quite high and if this process does not lead to expected benefits then the Constitution will be worth the paper its written on.

Election Petitions and Costs
This is just insane! The Electoral Commission was ordered to pay Hon Makwere costs amounting to Kshs. 24 million.  I discussed the issue here  and expressed the the hope that, "the High Court takes this opportunity to rationalise costs in Election petitions. There is no doubt that legislative intervention is required to protect the assets of the IIEC  from attachment and sale otherwise the costs, financial and otherwise,will be too huge for the Kenyan public to bear."
There must also be a realisation that inordinate and excessive costs directly affects the right of access to justice guaranteed under Article 58 of the Constitution.  Moreover, election petitions are an outlet for the public to ventilate and vindicate grievances related to elections.  Prohibitive costs will foreclose this door and the consequences will be disastrous for our democracy.  This view was expressed by the Uganda Chief Justice Odoki.
Vetting of Judges and Magistrates
After failing to get enough to apply for positions on the Vetting Board, Parliament had to pass legislation to extend the timeline for applications to be made.   The positions for Chairperson and members of the Board have now been advertised in the Daily Newspapers and the Kenya Gazette.  The deadline for application is 2nd June 2011.

....    In the meantime the court declined to stop the block the nomination of Dr Mutunga and Ms Baraza as Chief Justice and Deputy Chief Justice.  Parliament will consider the nominations on 26th June 2011.

Tuesday, May 17, 2011

Principals approve nomination of Dr Mutunga and Ms Baraza.*

Dr Mutunga under arrest in the 1982 courtesy of the Nation

The President and Prime Minister have now endorsed the nomination of Dr Mutunga and Ms Baraza by the JSC.  At the same time, the principal endorsed the incumbent DPP, Keriako Tobiko for that position.  The nominations now moves to Parliament for approval.  The Commission for the Implementation of the Constitution has given a seal of approval to the JSC nomination process.
*  It appears, the Nation spoke to soon, the Principals are set to meet today.

The Civil Suit
A civil suit challenging the nomination of the Chief Justice has now been filed in the High Court.  It appears that the challenge is grounded on the fact that the Judicial Service Commission presented one name to the President and Prime Minister.  This, it is argued, in effect, denies the principles the opportunity to consult provided under the National Accord and Reconciliation Act pursuant to section 24(2) of the Sixth Schedule.  No interim order has been given as yet.

Article 166 (1) of the Constitution, "The President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly."  The article, on its face does not require more or more nominees.   The President and the Prime Minister, may of course, reject the nominee and ask the JSC to provide another name.   This point is now moot given that the principals have now acted on the names forwarded to them.

The JSC decided to provide one name for each position to avoid a political bickering which may imperil the whose Constitutional implementation process.

In the meantime, it has also been reported that some members of the judiciary intend to sabotage the two nominees.  Their nominations are seen as a snub for the judiciary insiders.  The last time members of the judiciary attempted to block reforms did not end so well.  During the just ended interviews, Justice Mbogholi and Ang'awa alluded to the fact that in 2002 there were judges during this period who actively campaigned against the reform process.

The Politicians and the Church
Some Churches have now issued a statement formally opposing the nomination of Dr Mutunga and Ms Baraza.  This opposition is based on "Christian values and beliefs."  Also expressing his opposition to the two, is Hon. William Ruto, who at the weekend stated that "We cannot have a CJ who spots studs on his ears and claims he uses them to communicate with unseen spirits,"  This stance is reminiscent of the No Campaign.
Now the stud means many things to many people.  Others insinuate that it means that Dr Mutunga may be gay, a matter which he has denied.  He has stated that the stud is related to his spirituality rather than sexuality.  Dr Mutunga has also been active in promoting civil rights and is opposed by those who see his activism as overly supportive of gay rights.  It does not help matters that Ms Baraza is currently completing her PhD on sexual minorities which is seen as promoting "gayism." The opponent of these nominees imply that the nominees lack the morality to head the judiciary.

Dr Mutunga's manner of dressing, in my view has no relevance to his qualifications to lead the judiciary. In fact, the Constitution now outlaws discrimination on account of among others "dress." The fact that the two nominees have been concerned about sexual minority rights is a reflection of their capacity and understanding of those who are oppressed, different and marginalized in society. The nomination of the two is a clear statement to Kenyans that Kenya has changed.

* Macharia Gaitho's interesting comment.

Sunday, May 15, 2011

Supreme Court of Kenya Candidates Shortlisted

While announcing the proposed nomination for the CJ and DCJ, the JSC also announced that it had shortlisted 26 candidates out of a total of 56 applicants for the 5 open positions on the Supreme Court. Unlike the CJ and DCJ, the position of Supreme Court judge is not one for approval by the legislature. The list includes the following; 

Court of Appeal Judges; Riaga Omollo, Philip Tunoi, Philip Waki, Alnashir Visram, Joseph Nyamu, Erastus Githinji  and Emmanuel O’Kubasu.

High Court Judges; Lady Justices Kalpana Rawal, Mary Ang'awa, Jessie Lesitt, Hannah Okwengu, Martha Koome, Ruth Sitati, Jakton Ojwang’, Msagha Mbogholi, Muga Apondi and Mohamed Ibrahim.

For want of a better word Activists and Academics: Former Nominated Member of Parliament and Commissioner of the Committee of Experts, Njoki Ndung’u, Wilfred Nderitu, advocate and former Chairman of ICJ-Kenya Section, University of Nairobi Faulty of Law Dean, Prof Otieno Odek, Dr Smokin Wanjala, the former Deputy Director of Kenya Anti Corruption Commission, Law Reform Commission Chairman Kathurima M’Inoti, Professor Phoebe Okowa Nyawade of Oxford University, Violet Mavisi, the Chairperson of the Independent Constitutional Resolution Court and Nancy Baraza the presumptive DCJ nominee.

Private Practice: Nairobi Advocate Joseph Obado Adera of Adera & Company Advocates.

From those shortlisted, there is a clear dearth of lawyers from private practice particularly from the women practitioners.

As I previously stated, fact that there are only five position makes these positions extremely competitive and there will be a lot of disappointed people. This fact together with the pressure to ensure that the Court is representative of Kenya will make ethnic and geographical balancing a key factor in making appointments. Further, the one-third gender rule will have to be observed.    

I think the key to a successful Supreme Court should be composed of persons of a rich and varied background.

*  In the meantime, three names have been forwarded to the President and Prime Minister for appointment for the position of Director of Public Prosecutions by the nominating panel.  They are Keriako Tobiko, the current holder of the office,  Dorcas Oduor and Patrick Omwenga Kiage.   All the candidates are considered "insiders" as they are currently working for the Prosecutions office.     

Friday, May 13, 2011

JSC nominates Dr Willy Mutunga and Ms Nancy Baraza

After interviewing from several candidates, the Judicial Service Commission (JSC) has nominated Dr Willy Mutunga and Ms Nancy Baraza to the position of the Chief Justice and Deputy Chief Justice.  "In these two candidates, the Commission has seen the attributes and the vision we were looking for when we started the interview process. They are a man and a woman we can trust the Judiciary with.  We were looking for candidates who will lead by example the Judiciary as the third arm of government; Persons of great depth of legal and constitutional leaning, whose integrity is both impeccable and beyond reproach, who have a record of independence," said Prof Mango, the acting Chairperson of the JSC.

A lot has been said and written about the interviews.  The judicial heavy weights, the Judges of Appeal, I think fared badly.  They were not quite prepared and it was apparent that they had never answered any questions of the kind that require accountability for the last 30 years or so year in the judiciary.   The judges, including the High Court judges, were held back by the weight of history.    The appellate court was cast in bad light by the High Court judges who testified about its lack of leadership on matters of precedent. In damning testimony, Justice Kihara Kariuki, discussed at length how the Court of Appeal judges were a class a apart and never interacted with High Court judges even in such intimate circumstances as the Annual Judicial Colloquium.    Clearly, at this stage the cause of the legal giants was lost.

How to effect change and transformation in the judiciary must have been foremost on the Commissioners minds.   The issue of whether insiders or outsiders can effect change loomed large.  The JSC, must have concluded that change must come from the outside.

Of course there those of my learned friends who are rending their garments and gnashing their teeth about “activists” being appointed to head the judiciary.  The implication being that both Dr Mutunga and Ms Baraza having being away from the court corridors for a long time are not the best candidates for these positions.  If “activist” means that these two agitated legal and constitutional change, then by all means they are the ones entitled to enjoy the fruits of their agitation.  Those of us who sat and waited for change must now see them take up the responsibility of driving that transformation they fought for. The Constitution, in my view, is an activist Constitution that requires us to embrace change and new values.

For first time, the process of appointment of the Chief and Deputy Chief Justice was open and transparent.  Senior lawyers, in active legal practice, were given a chance to put their names forward, they chose to give this opportunity a loud pass. Can the JSC be blamed for choosing “activists” when those who are intimately connected with the judiciary took a pass?

I think the judiciary will do well.   It will be a more democratic institution.  The Chief Justice does not shoulder responsibility alone.  There is the Judicial Service Commission, the Supreme Court composed of independent individuals and the other Superior Courts, the Court of Appeal and the High Court, headed by persons elected by judges of those courts and Chief Court Registrar.   The Chief Justice will hardly deal with the minutiae of running of the court on a daily basis.  What is required is the capacity to provide leadership and ability to inspire confidence of court officers and the public.

Dr Mutunga's connection to the legal system are deep.  He was in active legal practise in the late 70s and 80s.  He has been a guest of the state so he understand the other side.  He was the Chairman of the Law Society of Kenya having been elected for two terms! The fact that he wears a ear stud should be refreshing and a teaching moment for Kenyans.

I have no doubt in my mind that these two nominees, are capable and ready to show Kenyans that the Judiciary can change and meet the challenges of a new Kenya.  We should give them our support.  It's now up to the Principals and Parliament to move the process.

*Blogger has been having issues!

Monday, May 09, 2011

Public interviews for the position of Chief Justice of Kenya

Justice Bosire facing the heat courtesy The Standard

US Supreme Court Justice, Louis Brandeis wrote that, "Sunlight is said to be the best disinfectant." As readers of this blog know, I have been an advocate for transparency and the ongoing public interviews of candidates for the position of Chief Justice is one step towards realising the values we have given ourselves through enactment of the Constitution; transparency, accountability, good governance, public participation and competitiveness in public service appointments. These values mean nothing unless they are put in practice.

For the judiciary, whose credibility has been at the lowest ebb, public interviews provide a forum of education of the public and a chance to rebuild the institution through an open and transparent process. Two important issues that make public interviews an imperative for high judicial office must not be forgotten. First, the Chief Justice's dismissal letter was written into the Constitution. Second, all judicial officer must now undergo vetting to determine their suitability to continue to hold office. An open and transparent process will provide a much needed opportunity for the judiciary to command and enhance public confidence.

Much has been said about the ongoing process and I just want to comment on a few issues.

Public interviews subject judges to unnecessary indignity
Once it is accepted that transparency is a key value, the issue of hurt feelings and sympathy are subsidiary. I am not saying that those who appear before interview panels must be treated unfairly. It must be realised that public scrutiny may lead to some form of indignity, a very subjective issue. Judges have continued to wield immense power without accountability. A level of accountability is achieved when a candidate is interviewed, asked about his or her background, or for views on important questions like precedent, election petitions etc. Some of the questions may be embarrassing but the hall mark of a good judicial officer is how one reacts to or answers the questions. A person who desires to be the Chief Justice of Kenya should be made of sterner stuff and should be prepared to take on the interviewer in a manner befitting a Chief Justice.

Some of the feelings of sympathy are borne out of a culture of undue and extreme deference to authority.  For democracy to flourish, we must must shed this culture. Asking hard and necessary questions should never be out of bounds.
Public participation can only be ensured through the parliamentary process
Parliament is not the sole and exclusive custodian of public participation. The public is entitled to participate in any process in a variety of ways. The Judicial Service Commission by conducting public interviews provides one such avenue. Limiting this exercise to parliament makes the whole process hollow. As recent events show, the parliamentary process may be overly political or beholden to political interests. The Judicial Service Commission, composed of a broad cross section of people, provides a forum to explore the widest range of issues necessary for determining the best candidate.

Public interviews will discourage worthy individuals from applying for judicial positions

The answer to this is simply, "if you can't stand the heat get out of the kitchen." If you cannot stand intense and public scrutiny then you do not deserve to hold public office. The challenge for the JSC though, is to ensure that the public nature of the interviews do not become a barrier to seeking public office. The nature of questions should be designed to elicit answers that assist in determining the suitability of the candidate. Candidates have an obligation to prepare well for interviews and other interested bodies like the Law Society should take steps to assist applicants prepare application and for the interviews.

Public interviews must be limited to the nominated candidate
The selection of the Chief Justice is not a papal selection where we wait for the white smoke. The public benefits from seeing a wide array for candidates whom it is able to compare and contrast. Openness enables the public to judge for itself the best candidates.The process of public interviews also eliminates accusation of deal making by the Commission.

Practising advocates must not be members of the Judicial Service Commission.
The Constitution has dealt with this issue conclusively.  Article 171 of the Constitution only provides that Law Society membership elect two members to the JSC. No condition is imposed the person to be elected to the Commission except that the persons must be over 15 years of practice.   Any further imposition of conditions would be unconstitutional null and void.   Who better to question candidates than a practicing advocates?

Obviously, there may have been missteps in the process but we must take into account that this is unprecedented in the country.    The questions may have been abrasive in certain respects but  I am sure the JSC will learn from this experience.  The precedent has now been set. It is a process to be natured and not condemned.  And it is here to stay.

Friday, May 06, 2011

Milimani Law Courts; the Kshs. 950 million rip off!

 Constitutional Court of South Africa courtesy the Guardian

"Public buildings normally shut off the outside world. Normally you get swallowed up in the power of the state or corporate entity, but here the building is saying, 'I belong to you, you belong to me' "
- Justice Albie Sachs

I cannot forget my visit to the South Africa Constitutional Court building in Johannesburg with all its symbolism.

Milimani Commercial Courts

On Tuesday my excitement turned to disappointment.   Apart from being a  large space to accommodate everything and everyone, the new Milimani Law Court building is actually ripoff of great proportions.   Despite spending Kshs. 950 million the fittings look like cheap chinese imitations. The wood panels are the kind you would find in one of those local Nyama choma joints, badly finished.   What is it with marble floors and counters! The furniture, particularly the benches, look like those ones the village fundi made for my local church.   The walls are painted a kind of hospital blue that makes you feel that you are in a ward.  And who are these local architects who just refuse to utilise the abundant natural light and air that is available!   The court rooms lack natural light and air.   From past experience, the Government of Kenya cannot be trusted to maintain an aircon system. Just ask the lawyers in Mombasa.  Give the building 5 years and it have will be fallen apart!  It is apparent, that those who wanted to a building were more concerned about space for courtrooms and chambers and nothing else!

The thing that strikes you when you see Milimani Law Court is a huge building that seems to tell you, “what is your business here?”   The imposing facade, the metal fence and the big security gates do not in any way communicate the sense that justice is open or accessible.  Courts of law that should be accessible to members of the public easily become fortresses of justice. Long queues of wananchi waiting to pass through metal detectors and leaving their Identity Cards (yes ID’s) at the security desk to have a peek of how our justice system works is just not the way communicate a sense of open justice to the people.  No ID! No entry! Harry Thuku would be shamed by this. Surely with all the security cameras around there must be a smart way to deal with security.   Access to justice is not just about rules and procedures, it is about the ability of the people to see justice at work.  Court attendance must not be an inconvenience.  The identity card is a tool of social exclusion and the judiciary is unwittingly becoming a part of that exclusion.

 High Court Building, Nairobi

In the meantime, the Central High Court Building has now been vacated to make way for the Supreme Court and expanded Court of Appeal.   The High Court Building, constructed in the 1930's, was designed by the famed architect Sir Herbert Baker, the architect who also designed the famous Pretoria landmark, the Union Buildings. The High Court Building, a colonial landmark, has stood the test of time.  Apart from providing accommodation, Court houses reflect society's values and become symbols justice.  With the Milimani Law Courts, we lost our chance to place our national and local imprint on our vision of justice.