Two Other High Courts ..... [UPDATED]

Dandora Dumpsite courtesy of the Nation.  A specialised court on Land and Environment will be set up.

Apart from the Superior Court which are the Supreme Court, Court of Appeal and the High Court, Parliament is empowered under Article 162(2) of the Constitution to establish courts with the status of the High Court to hear and determine disputes relating to (a) employment and labour relations; and (b) the environment and the use and occupation of, and title to, land. Parliament will, through appropriate legislation, determine the jurisdiction and function of the court.

The creation of court of co-ordinate jurisdiction with the High Court is a new phenomenon in our judicial system. These provisions were not in the Bomas Draft, Ghai Draft or the Wako Draft.  When the Commission of Experts (COE) included the provisions in the draft forwarded to the Parliamentary Select Committee (PSC) on the Constitution, the references were deleted.   The COE then reinstated the provision.  In my view there was neither demand for specialized high courts nor justification for such courts made by the COE. 

The High Court under the former and current Constitution is imbued with unlimited original and civil jurisdiction in all matters.  The Judiciary Response to the Harmonized Draft noted the difficulties inherent in these sections.   It stated, “The problems inherent in this provision are as follows:  Already, specialized divisions of the High Court have been administratively created. They deal with disputes concerning Commercial Law, Criminal Law, Family Law, Land & Environment Law and Constitutional Law. It is not clear how the proposed new courts will relate with these divisions.  It is not clear what jurisdiction the proposed new courts will have vis a vis the High Court. Already, existing legislation that gave the Industrial Court the same status as the High Court has brought about a jurisdictional conflict.”

Under the Fifth Schedule, the time for establishing the two courts is one year from the effective date.   To date, I have not seen any draft of the proposed legislation for the proposed Courts yet the courts if established will be take substantially affect the jurisdiction of the High Court.  This poses a challenges in constructing appropriate jurisdiction that ensures access to justice is not impeded while the new structures are being implemented.  I will discuss what I consider key issues in respect of the two courts in later posts.

* There is a draft Labour Court of Kenya Bill, 2011 for consideration by stakeholders. I will comment on the Act shortly.

Chief Justice Mutunga, the Magic Wand and other things ...

Great Expectations

The Nation states in a headline "Supreme Court's plate already full."  Statements like this  are a sign of lazy reporting.  They demonstrate a lack of understanding of the court and create unreasonable and unfounded expectations and demands on the court and the judiciary as a whole.   What is more shocking is that politicians play along.  The Constitution is very clear that the Supreme Court has limited original jurisdiction. The only original jurisdiction the court has is to hear a Presidential Election Petition.   In cases concerning the interpretation of the Constitution or enforcement of the Bill of Rights, the High Court has original jurisdiction.  The case must then work its way to the Supreme Court through the Court of Appeal.

The newspapers are also replete with exhortations to the Chief Justice to do this or that or intervene in this or that case.   Fortunately the Chief Justice recognises the high expectations Kenyan have for change in the judiciary.  Unlike the past where the Chief Justice's position imperial in nature, the Constitution now diffuses his powers.  Firstly, he is the head of a Judicial Service Commission that has a number of independently elected and appointed members.  Secondly, the heads of the Court of Appeal and the High Court are elected by the judges themselves.  Thirdly, the nature of the judicial office is such that each judge is independent in decision making and has wide latitude in how he or she runs the court.  For the Chief Justice to be successful, he must inspire those who work under him to work towards the ideals he espouses.   This vision must receive full support of the judges and judicial officers working under him.

Another word on taxes

The Justice Minister, Mutula Kilonzo argues that it open to argue that Article 210 allows Parliament discretion to waive tax in any other legislation.  This argument cannot stand in the face of limitation of the power of Parliament to legislate tax exemptions.

Article 210 provides as follows;

Imposition of tax

210. (1) No tax or licensing fee may be imposed, waived or varied   except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee—

(a) a public record of each waiver shall be maintained together with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to  the Auditor-General.

(3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of—

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

It is correct to state that Article 210 allows for Parliament to legislate the waiver of taxes or license fees but such legislation subject to the limitations provided.   Parliament is entitled to pass a law excluding a state officer from paying taxed but that law must not be on the basis of office held or nature of work done by the officer.  I just cannot see how a law can be passed circumventing these limitation.  It appears that some have now realised the folly of a political fight.

Money, Money, Money 

According to Keriako Tobiko, the DPP, his department was given Kshs. 115 million as against Kshs, 1.6 billion for the graft watchdog, KACC.    It is not in doubt, as he states, that this cannot be defended on any rational grounds.   According to the Report of the Taskforce on Judicial Reforms (the Ouko Report), the Judiciary has been allocated between Kshs. 800 million and Kshs. 1.2 billion  over the years, which is a sum less than the KACC.   Worse still its development funds are channeled through the Ministry of Public Works. The new building alone cost almost the full annual budget of the Judiciary!

On the part of the Judiciary, the Constitution and the Judicial Service Act now provide for a Judiciary Fund that will enhance the Judiciary's independence and one hope's the chronic shortage of funds to enable it work independently of the Executive will be a thing of the past.

Vetting of the Judges and Magistrates Board

The Selection Committee of the  Judges and Magistrates Board has shortlisted candidates for the Vetting Boards established under the Vetting of Judges and Magistrates Board Act.  There are 11 candidates for the position of Chairperson and 23 for members.  The candidates will be interviewed between 12th July 2011 and 28th July 2011.  

Kenyan MP's, Taxes and Friday miscellany .......

 KRA Headquarters courtesy of Businessdaily

Member of Parliament and their Taxes

Article 210 of the Constitution on the payment of taxes by state officers is as clear as day and frankly speaking admits no ambiguity.  It provides that no law may exclude or authorize the exclusion of a State officer from payment of tax by reason of the office held by that officer; or the nature of work of the state officer. 

It has been argued that Article 210 cannot be read in isolation and must take into consideration other provisions of the Constitution.  There is a principle that State Officers should not have their remuneration varied to their disadvantage in course of their term.  This is the argument by the Speaker.  Introducing taxation is a variation of terms such terms.  Article 151 on the remuneration and benefits of President and Deputy President provides that the remuneration, benefits and privileges of the President and Deputy President shall not be varied to their disadvantage while in office and that the retirement benefits payable to a former President and a former Deputy President, the facilities available to and the privileges enjoyed by them, shall not be varied to their disadvantage during their lifetime.     

Article 160 on the Independence of the Judiciary provides that the remuneration and benefits payable to, or in respect of a judge shall not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the lifetime of that retired judge. Similarly, Article 250 on the composition, appointment and terms of office of members of Constitutional Commissions provides that the remuneration and benefits payable to, or in respect of, the members of a commission or the holder of an independent office shall not be varied to the disadvantage of that person during their respective terms of office. Taking these provisions into account means that the National Assembly is being discriminated against as the other arms of Government are protected and the National Assembly should be protected too.

It is also argued that it is morally and contractually wrong and contrary to the principle of legitimate expectation.  The MPs being,  State Officers with terms and perks protected until next General Elections, went ahead and committed themselves to loans, mortgages, expensive schools for their children abroad etc upon the premise that their remuneration cannot be varied to their detriment till 2012.

These arguments sound good but negate that the fact that Constitution that came into force on 27^th August 2010 imposed a specific and unambiguous provision that is plain and obvious; there can be no legal exemptions to the payment of taxes.  This provision superseded all previous arrangements which are now subject to Article 210 which makes payment of taxes obligatory from 27^th August 2010.   Since the obligation to pay taxes is imposed by the Constitution it cannot be waived.  In my view, all the benefits due to State Officers are from the effective date are subject to taxes.  The last time I checked Article 210 has not been suspended.  

Another word on Organic Theory

I wrote about the organic theory and the attempt by Justice Ojwang’ to elevate certain statutes over other by virtue of their nexus to the Constitution.  The decision would have been avoided by reference to the Public Procurement and Disposal Act (Act No. 3 of 2005) (PPDA) which at section 5 provides;

5.  (1) If there is a conflict between this Act or the regulations made under this Act and any other Act or regulations, in matters relating to procurement and disposal, this Act or the regulations made under this Act shall prevail.
(2) For greater certainty, a provision of an Act that provides for a person or body to approve any work or expenditure shall not be construed as giving that person or body any power with respect to procurement proceedings.

In this case, the statute itself amends the other acts or regulation.  It is the intention of the legislature and it has provided that in matters of public procurement and disposal the PPDA takes priority and overrides other legislative enactments.

For advocates doing public work, this provision has been a cause for worry.  The policy of the PPDA is to ensure that public bodies obtain services at a competitive rate, the Advocates Act (Cap 16) and the Advocates Remuneration Order stand in the way of the policy of objectives of Act in that they provide minimum fees for certain services.   By virtue of section 5, the procuring authority can demand and the advocate perform services for remuneration below that provided by the Remuneration Order. A charge under section 36 of the Advocates Act prohibiting undercutting against an Advocate who is the subject of services procured under the PPDA.  Am sure this will lead to some litigation!

Chief Justice Mutunga and Justice Baraza sworn in ....

Chief Justice Mutunga being sworn in courtesy of the Nation.

 

"We expect to put tyranny, oppression and exploitation, opacity and impunity on the back-foot, while making strides towards freedom, opportunity, and transparency and liberty ..... It should no longer be possible to speak about corruption and the judiciary in one breath." Justice Willy Mutunga.

Sometimes pictures and actions speak for themselves.  That change is here is not in doubt.  Justices Mutunga and Barasa were sworn in today together with Keriako Tobiko as the DPP.   The function itself was a culmination of a long process of  selection, nomination, approval and appointment. In many respects  today's activities symbolised change.  First, Dr Mutunga had his ear stud on. The sky has not fallen.  Secondly, both judges were not dressed in the crimson ceremonial robes and wigs that are usually worn during such functions.  This, in my view, signals a change in culture.  Thirdly, despite the concerns about family values expressed by some, Justice Mutunga had his children attend the swearing in function. What better way to demonstrate family values!   Fourthly and for the first time the Chief Justice gave a public speech to the public, a fulfillment of the fact that judicial power is exercised on behalf of the people of Kenya.

Court stops swearing in of Supreme Court of Kenya Justices ...

Justice Jeanne Gacheche

The High Court,  Honourable Justice Gacheche, has on the application of FIDA and other civil society groups, stopped the swearing in of the five Supreme Court judges scheduled for Monday.  The groups allege that the nominations do not reflect gender balance.  The application is scheduled for hearing on 27th June.  The Chief Justice, Deputy Chief Justice, Director of Public Prosecutions and the Supreme Court Judges were appointed by the President and their appointment duly gazetted.

I think this case is a non-starter whatever the merits or otherwise of the gender issue.   Firstly,  the appointment is complete when the President signifies his appointment in the Kenya Gazette.   The taking of the oath though necessary is but a mere formality. Under Article 74, the taking of the oath of office is required for someone to assume office or  to carry out the functions of office.  It does not in any way relate to the appointment.   Thus, the injunction granted by the court, it seems, is an act in vain.

The case of Ghana Bar Association v Attorney-General (Abban Case )[2003-2004] SCGLR 250 is almost to the point.  The plaintiffs sued by invoking the enforcement jurisdiction of the Supreme Court of Ghana  under  the Constitution, 1992. They claimed of that on a proper interpretation of the Constitution, 1992 the President should not have nominated Justice Abban as Chief Justice of Ghana  because he was “not a person of high moral character and proven integrity” and as such the approval and appointment of the Justice Abban as Chief Justice contravened the Constitution.   The  defendants raised a preliminary objection to the assumption of jurisdiction by the Supreme Court.   The Supreme Court unanimously upheld the preliminary objection on the ground, inter alia, that the reliefs claimed by the plaintiffs, if successful, would result, not only in removing the  Justice Abban as the Chief Justice, but also in removing him completely from the Bench. The  court held that the special procedure laid down by the Constitution for removing  a superior court judge must be resorted to by the plaintiffs once the appointment has been made. 

By parity of reasoning once the power of appointment has been exercised by the President, the appointees assume the office of judge and their removal can only be in a manner contemplated by the Constitution.  A ruling to the contrary would amount to holding that the High Court has concurrent jurisdiction with the tribunal charged with adjudicating upon the issue of removal of a judge under Article 168 of the Constitution.

Supreme Court of Kenya; some ruminations

I have previously commented on the composition of the Supreme Court.   Apart from the Chief Justice and Deputy Justice, three of the now nominated members stood out for me; Justices Ojwang’, Ibrahim and Njoki Ndung’u.

From the interview, it was obvious that the JSC was concerned about the departure of Mr M’Inoti from the Kenya Law Reform Commission (KLRC) at this critical stage of its work.   Obviously, the departure of both the chair and deputy of the KLRC would be a set back to that Commission which is key to the implementation process.  In my view though, Mr M’Inoti can bid his time and make the Supreme Court in not too distant future. 

Justice Tunoi, currently the second most senior judge on the Court of Appeal joins the Supreme Court.    In terms of precedence, under section 5 of the Supreme Court Bill, he will be the presiding judge of the Court in the absence of the Chief Justice and the Deputy Chief Justice.  His 18 years judicial experience in the Court of Appeal will provide a steady hand as a majority of the court are persons without previous judicial experience.  He is now 67 years old and will retire in 3 year time in accordance with Article 167 of the Constitution.  He will be expected to provide some continuity between the old order and the new order. 

Prof Smokin Wanjala academic pedigree is unassailable.  He was the Deputy Director of the Kenya Anti Corruption Commission under Justice Ringera until his term came to an end.  Given that corruption is a major issue in the country and particularly in the judiciary, his contribution to the fight against corruption in the judiciary is to be welcomed.

There will be two women on the Supreme Court.   For those who do math, one third of the court is 2.3.  Understandably there are those who feel that there should have been three or more women not two.  Article 27 (8) obliges the state to take legislative and other measure to implement the principle that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender. Article 172(2) provides that the JSC shall be guided by competitiveness and transparent processes in appointment of judicial officers and the promotion of gender equality.  Unfortunately, no female High Court judges were nominated to the court. Given the obligations of the JSC, I think an explanation on this issue would be serve a useful purpose.

On the whole, I think the success of the Supreme Court will be through their collective effort as borne by their experience.  There are three sitting judges, Tunoi, Ibrahim and Ojwang',  who will bring to bear their judicial experience, the rest have non judicial experience.   Three nominees, Mutunga, Ojwang and Wanjala,  have taught at the University of Nairobi Law School.  Ms Barasa teaches at the Kenyatta University.  Three have doctorate degrees; Mutunga, Ojwang' and Wanjala.  Ms Barasa  and Justice Tunoi should be joining them soon. Ms Barasa and Ms Ndungu have been active members of FIDA. Two members come from the same ethnic group, Ms Baraza and Prof. Wanjala. Two of the nominees, Mutunga and Ibrahim,  were detained during the Nyayo era.  There the two muslims on the court; Mutunga and Ibrahim.  Two members, Mutunga and Tunoi will be departing from the court in the next  three years on account of age.  No actively practicing advocate was nominated to the court.  None of the judges have been magistrates.

Supreme Court of Kenya Nominees Announced*

After completion of interviews yesterday, the Judicial Service Commission has announced the successful nominees for the position of judge of the Supreme Court of Kenya; Justice  Philip Tunoi of the Court of Appeal, former Nominated Member of Parliament  Njoki Ndung'u, High Court Judges, Justices Jackton Ojwang and Mohammed Ibrahim and Professor Smokin Wanjala, the former Deputy Director of the Kenya Anti-Corruption Commission.

The five nominees join the nominated Chief Justice and Deputy Chief Justice; Dr Willy Mutunga and Ms Nancy Barasa respectively who are expected to be confirmed by the National Assembly this afternoon.  The Report of the CIOC to the National Assembly on the nominees for the position of CJ, DCJ and DPP can be found here.  The Supreme Court nominees do not need parliamentary approval and their names will be forwarded to the President for formal appointment.

 *Parliament has now approved nominations of the CJ, DCJ and DPP

Justice J B Ojwang' and the Organic Law

Justice J B Ojwang

Justice Ojwang', who I consider a leading contender for a seat on the Supreme Court,  in the case of  Kenya Transport Association vs Municipal Council of Mombasa & Another  (eKLR 2011) delivered a ruling I consider revolutionary in  terms of our jurisprudence.  I had not really thought about until I heard the judge praise his decision at the JSC interview.   I think  his analysis speaks for itself;

(2) The Constitution, and the Public Procurement and Disposal Act – Organic Law

The claim of discrimination contrary to Article 27 of the Constitution is integrally linked to the functioning of the Public Procurement and Disposal Act; only by due compliance with that enactment, would 1st respondent as a public authority, give fulfilment to the safeguards of that Article, with regard to the contract for parking services. But the petitioner has shown by evidence that 1st respondent had rendered the contract to 2nd respondent without complying with the Public Procurement and Disposal Act. In parity with the Constitution, the Act regulates procurement procedure in detail, guided by the principle that unequal, preferential treatment is not to be accorded to a particular person, to the prejudice of others; and even where open tendering is not required, any alternative method of procurement must comply with certain rules. ………. . It was a discriminatory process which, without lawful cause, entirely excluded those such as the members of the petitioner. As against these members of the petitioner, their fundamental rights and freedoms under Article 27 of the Constitution had been infringed, and their rights to fair administrative action, under Article 47, had been contravened. Although counsel for the respondents urged that the petitioners should have sought a redress by invoking the administrative processes provided for under the Public Procurement and Disposal Act, such a position is not to be upheld, where constitutional rights have been, as in this case, infringed, and the aggrieved persons have opted for enforcement by Court process.

Although counsel for the respondents contended that the impugned public-private partnership between them had been conceived in accordance with the Local Government Act (Cap. 265), this will not spare their act from the mandatory obligations created by the Constitution, which are well reflected in the procedures of the Public Procurement and Disposal Act ( Cap 412C). This statute, in relation to the Local Government Act, is superior in its operation, for it faithfully reflects the terms of the highly progressive Constitution of 2010, and on this account, is in every sense an organic law to the Constitution: compliance with the safeguards of the Constitution is, simultaneously, compliance with the procedures of that Act. It is clear that the respondents herein are in breach of both documents, and the proper orders must be made.

Why do I consider this ruling revolutionary?  The organic law theory, as elucidated by the learned judge and no doubt inspired by French law, deems certain statutes superior to others by constitutional imprimatur.  Kenya has a hierarchy of laws, the Constitution being the Supreme Law and then Acts of Parliament.  Any Acts of Parliament that are inconsistent with Constitution are void to that extent.  All Acts of Parliament are of equal force and status and it is the duty of any court dealing with inconsistent statutes to give effect to each of them in a manner that effects the legislative will.  This concept of superior acts or laws in parity with the Constitution is really alien to our system of law and has no precedent in Kenyan law. What standard do we use to define superior or organic legislation?   Are the statutes that that are enacted specifically pursuant to Constitution provisions, as set out in 5^th Schedule, to be regarded as organic laws? 

Is this the kind of judicial activism we must be wary of?

A Blast from the Past ..... Sir Samuel Okai Quashie Idun

Justice Sir Samuel Okai Quashie Idun courtesy National Portrait Gallery

Sir Samuel Okai Quashie Idun was born in Ghana, the Gold Coast in 1902.  He studied law at Cambridge and qualified as  barrister.  In 1948, having served as a District Magistrate, he was appointed a puisne judge of the Supreme Court of the Cold Coast.  He served that court and was later appointed a judge in Nigeria becoming Chief Justice of Western Nigeria and also a member of the Supreme Court of Nigeria.   He was appointed the first black African President of the East Africa Court of Appeal in 1964, a position he held until 1965.  He fell ill and died in London in 1966.

Who is on the Supreme Court of Kenya and end week miscellany ...

The Supreme Court, Nairobi

Supreme Court Judges

The JSC has began interviewing the 26 candidates for the Supreme Court.    In making the 5 nominations for from the 26 candidates the JSC will have to satisfy key ethnic, geographical, religious and gender constituencies.  Section 14 of the First Schedule to the Judicial Service Act, 2011 provides that, “ The Commission shall, within seven days of the conclusion of interviews, deliberate and nominate the most qualified applicants taking into account gender, regional, ethnic and other diversities of the people of Kenya.”   Article 27 and Article 172(2) place particular emphasis on the gender consideration.

As the apex court legal system, the Supreme Court will play an important role in the development of local jurisprudence particularly regarding the interpretation and  implementation of the Constitution.  More often than not it will be required to wade into controversial and political matters.  Diversity in membership of the Supreme Court will therefore make people more comfortable when they see a court representative of all Kenya.   Apart from this, people of diverse backgrounds will bring on board various competencies and different experiences which will give the court balance in dealing the several issues that confront the nation.

Apart from the Chief Justice and the Deputy and taking into account the shortlisted candidates, who is likely to make it to the highest court?   In my earlier post, I had suggested  the following; Justices Omollo and Visram, Dr Willy Mutunga, Dr Patricia Mbote, Justice Lenaola, Dr Githu Muigai, Violet Mavisi, Justice Kalpana Rawal, Florence Jaoko, Justice Martha Koome and Nzamba Kitonga.   Dr Mutunga is now the nominee for the position of Chief Justice.  Ms Nancy Barasa as the designated deputy is also a member of the Court.   Some of the persons I suggested did not apply to be considered for nomination to the court.  It is is also likely, where one candidate from a region or ethnic group is chosen, a similar candidate is automatically excluded.

Here are my five nominations;

Kathurima M'Inoti

In my view,  this is an excellent candidate with all round experience as an experienced and intellectually solid advocate.  His term as the Chairman of the Law Reform Commission at this pivotal time can only be a positive for the court.

Justice Mohammed Ibrahim

Currently presiding judge at the High Court Mombasa.  His pedigree as an advocate, first in the firm of Waruhiu Muite in the 80s and then his own firm is undoubted as was his engagement in human rights.

Justice Jackton Boma Ojwang'

Having come from straight from academia to the High Court, I always considered the highly qualified judge ill fit for the that court.  His academic credentials as a professor of constitutional law and together with judicial experience will only place him in good stead over the scholarly candidates.

Susanna Njoki Ndung'u

The 1965 born Njoki Ndung'u Susanna was previously a nominated Member of Parliament and subsequently a member of the Committee of Experts.  She is known for her advocacy of gender issues.  I think the court would be enriched by her political experience.

Kaplana Rawal

A woman of Asian origin would no doubt be attractive to the Court.  Lady Justice K.H Rawal was appointed High Court judge in 2000 after a long career as an advocate spanning  has 28 years experience in practice as an advocate three of which she spent as an Advocate of the High Court of India and the rest in Kenya.

What do you think?

*Prof. Ghai and Jill Cotteril make the point that the JSC should await confirmation and appointment of the new Chief Justice before proceeding with interviews as the Chief should be entitled to choose whom he want to work with. 

Confirmation and Approval of the CJ, DCJ and DPP

This week has been a whirlwind of activity on the judicial reform front.  Under the Constitution these Candidates must be approved by the National Assembly before formal appointment by the President.   Neither Constitution nor legislation provide  the parameters or factors to be considered for such approval by the National Assembly.  Apart from the professional qualifications, there is the provisions of Article 166 (c) which provides that the the person appointed to the position of superior court judge must be a person of "high, moral character, integrity and impartiality."   This provision applies to the position of DPP by virtue of Article 157(3). This formulation is not uncommon and is to be found in many commonwealth constitutions. 

I have not found a precise definition for "high moral character."  Integrity and impartiality are easier to assess on an objective basis but morality character beats definition and has a fluid subjective quality to it.  According to the statement released by the Catholic Church, "The chief justice and the deputy chief justice are officers who enjoy the security of tenure once appointed. Therefore there is need to ensure that those to be appointed to these esteemed offices satisfy all constitutional criteria, including "high moral character, intergrity and impartiality". We need people with judicial philosophy that reflects natural law, the Kenyan religious and African cultural values, including our universal respects for life, our recognition of the importance of family wellbeing and our appreciation of the role of religion in public and private life."  Dr Mutunga is undergoing his second divorce while Ms Barasa is now divorced. Marital status cannot be factored into the matrix of morality when marital status is outlawed a ground for discrimination under our constitution.  The fact that Dr Mutunga wears an ear stud and has made some interesting observations on his religion should not be a basis for judging one's morality as even the mode of dressing and one's religious beliefs are protected by the constitution.  In my view, morality should be defined with reference to the provisions of Article 10 which sets out the national values and Chapter Six  of the Constitution on leadership and integrity.  To do otherwise, would be to introduce discrimination and social exclusion through the back door.

On Monday, the public was given the opportunity to make presentations either in support or in opposition to the nominees.  As expected, the Catholic and Evangelical churches opposed  the nominees for CJ and DCJ on moral grounds.   While the civil society generally supported the two judicial nominees, Professor Ghai led the assault against Mr Tobiko, the DPP.  Allegations of bribery were also made against the DPP by a former PS. 

On Tuesday, the nominees appeared before the CIOC Committee of Parliament for questioning.   Both Dr Mutunga explicity denied allegations that they were gay while Ms Barasa gave a robust defence of her PhD dissertation on the rights of sexual minorities.  Mr Tobiko spent a better part of his testimony defending himself against accusations of incompetence and corruption.

On Wednesday, the DPP was recalled to clarify some issues that had arisen from his testimony.  The Attorney General defended Mr Keriako's record while P L O Lumumba and the former DPP, Mr Philip Murgor also testified.   At the request of the Committee, the Speaker ordered that the Report of the CIOC be tabled before the House on Tuesday next for approval.

On Thursday, the CIOC approved all the nominees.  The Committee was closely divided in respect of the DPP.  

Notwithstanding the allegations levied against the DPP, the approval process is not only a legal but a political process.  Once the principals had decided that this is their nominee unless something major is discovered, he will be approved. Unfortunately, the seeds of doubt have been sown and they will continue to haunt that office everyday.

For Kenyans, this week was a great learning week about the intersection between law and morality, much better I must say than the lesson I got in first year of law school referencing the Wolfenden Report.

Supreme Court Bill, 2011

The Supreme Court Bill, 2011 passed the National Assembly without amendment.  Its now on the way to the President's desk.