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Judiciary under attack as impunity fights back

It is now obvious that the Judiciary is under attack by individuals and institutions who feel the ongoing reforms have gone too far and now threaten their political and business interests.

The delays in vetting magistrates and judges is one instance. The Judiciary is also under siege from people who fear what the reforms might unearth, as well as politicians who might find themselves locked out of the elections due to integrity issues.

Some matters are in court and so cannot be dwelt on here, but  the tone and trend of the attacks on the Supreme Court do not augur well for an institution already identified as a pillar in the ongoing implementation of the Constitution, and which will deal with election disputes if any after the polls on March 4 next year.

A section of MPs and lawyers are clearly fighting for a constituency associated with impunity and responsible for the rot that has denied many a Kenyan justice in the courts. The latter are watching and what they have seen is the ugly face of corruption fighting back; it is not a pretty sight.

Matters in court

At the heart of the campaign is Chapter Six of the Constitution on Leadership and Integrity. The fact that there is a matter in the courts whose outcome might affect the voting patterns of the General Election with regard to the presidential ballot.

When powerful people wish to escape being accountable for their personal conduct and lack of moral probity, they will use any means to achieve their aim.

The Ethics and Anti-Corruption Commission is rudderless at the moment, leaving the Judiciary as the only guardian of the Integrity chapter of the new Constitution.

The attacks on the head of the Supreme Court and the Judiciary are following a pattern that indicates some politicians and a section of the legal profession are keen on sabotaging the judicial reforms, or forcing them to take a path that they feel will not harm their interests.

In order to understand why the Judiciary is under attack, one has to appreciate its role in the new dispensation, and why it was singled out in both the Justice Philip Waki-led commission of inquiry into the 2008 post-election clashes and the Agenda 4 of the National Accord and Reconciliation Act.

Article 163 (3) (a) of the Constitution states: “The Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President.”

Article 168 (1) states, among other things that  a Supreme Court judge may be removed from office breach of a code of conduct prescribed for judges of the superior courts, incompetence, gross misconduct or misbehaviour.

Is there a plan to force the hand of the Judicial Service Commission to initiate removal of the Chief Justice by way of a petition using “engineered” evidence?

The leader of the African Union Panel of Eminent Persons, Dr Kofi Annan made a special point of meeting with the Chief Justice and other senior officials of the Judiciary to commend them on their work and give them much needed encouragement.

Safety of judges

Appearing on a morning television talk show, the CJ faced a barrage of hostile questioning that clearly did little to enlighten Kenyans on the challenges of judicial reform. But he did say that effect of the ongoing reforms in the Judiciary will be felt in 10 years. For now what has been done is to lay the building blocks that will hold the foundation of the reform agenda.

When this country was on the verge of civil war in 2008 over the bungled presidential ballot, the Judiciary was the one institution that should have saved lives and restored sanity.

It did not, and could not, because it lacked credibility. It was perceived to be non-independent and politically aligned to the incumbent Executive.

The ongoing reforms in the Judiciary are meant to raise confidence levels in the institution as the final port of call in the event of any election dispute.

Evidently this is not what certain political camps want, and the only way to undermine the cleanup effort is to target individual members of the bench and discredit them. They will stop at nothing to intimidate the bench and its leadership.

We are therefore concerned about the safety of all judges and magistrates, including those who have not undergone vetting

** New Addition by Blog-Admin – Judges Vetting Ruling **

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** Addition below by Blog-Admin – Mumo Matemu Ruling **

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22 comments on “Judiciary under attack as impunity fights back

  1. High Court on Tuesday temporarily reinstated judges found unfit to serve judiciary by the vetting board.

    In a unanimous decision by a five judge bench comprising of Jonathan Havelock, Eric Ogolla, Pauline Nyamweya, Alfred Mabeya and Joseph Mutava, they ruled that the suspended judges should not be degazetted until their appeals are heard and determined.

    High Court also noted that it has jurisdiction over the operations of Judges and Magistrates Vetting Board

    • This matter is now headed to the Supreme Court which is where it really belongs. The corrupt inept judges trying to keep the judiciary as their trough to eat will meet their waterloo at the Supreme Court. The law is very clear. The decisions of the Vetting Board are not appealable in any court. What the ruling yesterday said was that all tribunals or commissions are subject to review by the courts. That is rubbish. Parliament got things mixed up when they set a very small time limit for the Vetting Board and then dragged their feet trying to sabotage the whole thing. There was the attempt to take the vetting to the JSC. That has now been resolved so these are essentially the kicks of a dying regime of used condoms called judges and justices. Whoever used them is using something else now! Kapish.

      But we have major problems and a closer look tells you there are bigger games at play.

      1. Kibaki has for whatever reason failed or refused to gazette (or degazette) the removal of all those justices many of whom were removed more than three/four months ago. What exactly was the president waiting for? Surely he can’t say he was waiting for the whole exercise to be finished. That will take years. Obviously some people in State House are alarmed at the rate at which some of their toy justices like kina Nyamu whom they have used over and over again are being thrown out. Even the more reliable ones like Bosire are gone. That is terrifying to the status quo.

      It doesn’t surprise me at all that the crooked justices have launched a full frontal battle complete with the usual completely unconstitutional rulings. These people are having some protection. Well they will have to face the Supreme Court which is solid like a rock. That is why Mutunga and his crew scares the hell of a whole bunch of people. The buck stops there. This is going to be a big one for them and they should deal with it with lightning speed.

      2. Next up is the Integrity cases. It will end at the Supreme Court. The current case going on is already bogged down with all sorts of machinations from the Hague crew. They are throwing every spanner into the works. It was noteworthy that in the last ruling when the case was postponed to November two of the judges did not even show up. The notorious Judge Warsame (who brought back Kiplagat to the TJRC to mess things again and ruled against teh Vetting Board before) and another judge were nowhere to be seen. Leneola was the only one there.

      Obviously tons of money is being poured out there. This is a life and death case for some very desperate chaps and people like Warsame already know their days in the judiciary are numbered. Why not just get a huge bundle for your retirement from the rich boys facing a disaster at The Hague and go in peace. I mean if these people could have Nancy Baraza on sale like cheap mandazis in a street corner, nobody is outside their price range.

      So we know one thing for sure, they are going to fool around with the integrity case and it will go all the way to the Supreme Court where it will finally be resolved and I have never backed off from my take on the katiba that may be the amigos get to run but they will never hold the office with the ICC case going on. Never. Uhuru can run with Ruto and Mudavadi and Kalonzo all at once but they better put Kalonzo and Mudavadi in the big seats. Those other two are kaput. I see that nightmare as a big part of the attempt to bring back the people I called used condoms into the judiciary and to-invent the culture of anything goes. It won’t succeed with Dr. Mutunga at the helm of the SC and the kind of team he has there. So far four out of the five justices are solid and even the one they could get is not likely to be the sole voice of impunity in the Supreme Court. It is what it is and it is going to be really messy for some people. That is their problem.

      Here is the story.
      http://www.nation.co.ke/News/Vetting+Board+to+appeal+ruling+at+Supreme+Court/-/1056/1607746/-/6o8a9l/-/index.html

      • AG, House join fight to save court reforms

        ………………………………………………………………………………………………………………………………“Despite the respect we have for the Court of Appeal, we do not have the luxury of time to go before it since it will lead to unnecessary litigation and delays.

        “We will directly invoke the jurisdiction of the Supreme Court to determine whether the Judiciary can interfere with our work,” said Sharad Rao, the board’s chairman.

        Attorney General Githu Muigai said the court’s finding was contrary to provisions of Section 23 (2) of the Fifth Schedule of the Constitution which states that “a removal or the process leading to the removal of a judge from office by virtue of the Vetting of Judges and Magistrates Act shall not be subject to question or review by any court.”

        Mr Rao said it was unfortunate for the judges to approach the High Court for a review of issues protected by the Constitution, adding that it is unfair and a waste of public resources to bring experts from other countries only to interfere with their work.

        He questioned why the courts would curtail the board’s work even when it had the full backing of the Chief Justice, the Judicial Service Commission, LSK, the AG and Kenyans to clean up and restore their confidence in the judiciary.

        According to the board, what the High Court really did was to reinstate the judges through the back door since the Vetting Act does not provide for the de-gazetting of a judge once found unsuitable. (READ: High Court temporarily halts suspension of judges)

        He warned that if the ruling is not overturned, they will achieve nothing and the country will still have a Judiciary they don’t have confidence in by the time the elections are held next year.

        Allowing the courts to review the board’s determinations would frustrate the speedy transition envisaged by the Constitution and freeze judicial reforms, Mr Rao added.

        High Court Judges Jonathan Havelock, Joseph Mutava, Erick Ogolla, Alfred Mabeya and Pauline Nyamweya on Tuesday stopped the de-gazetting of five judges until petitions they filed challenging their dismissal are heard and determined………………………………………………………………………………………………………………………..

        http://www.nation.co.ke/News/politics/AG+House+join+fight+to+save+court+reforms/-/1064/1608618/-/mi1cwxz/-/index.html

    • one thing i’ve seen with the judiciary in kenya is that they are extremely lenient with incumbents and/or state organs. i.e wherever possible, they will rule in favor of such to avoid major changes.

      only a few brave individuals will actually make historic ruling going against the grain.

      the unanimous 5 judge ruling is a case in point. hopefully the supreme court is made of sterner stuff, but one must keep in mind that the lord’s of impunity control the following resources a) large sums of money b) a sizeable portion of gun wielding chaps both in law enforcement and criminal gangs c) have moles in most places including the judiciary

      its therefore possible that a number of judges will fear to come out openly to make strong independent decisions. i have lots of hope for the judiciary, but it will take time and this first period is not going to be the one that cuts it.

      • tnk,

        The judges may fear upsetting the status quo but their worst fear must be upsetting the law which they have sworn to breath life into. They are facing two menacing rungus. One is the poisonous rungu of the money bags where you can get cash to subvert the law as has been the case in our country for more than 50 years. The other new rungu for the judges is the Vetting Board which has thrown out some of the senior most figures in the history of the Kenyan judiciary. If you want to screw up do so and make sure you get a lot of money because your chances of being thrown out of your career are very real and very high.

        Let’s take the case of the five judges who made a uninamous ruling allowing the their evicted colloeaugues to stay in office:

        First off here is the law according to Section 23(2)

        “Removal or the process leading to the removal of a judge from office by virtue of the Vetting of Judges and magistrates Act shall not be subject to question or review by any Court”

        On the surface this could not be any clearer. What 5 judges ruled was a clear breach of these legal provision. But they can have a couple of excuses. One is that they are not saying the judges already thrown out should be brought back but only saying they are entitled to a full hearing and a degazettement will render such hearing useless since they will already be thrown out. That to me is a lame excuse because the provision is very clear that no court may review the removal of judges.

        The second issue for the judges is to claim as they did that it is a matter of fundamental human right that a process be fair and not prejudiced and therefore the judges’s fundamental rights supercede the provisions in Sec 23(2). That is nonsense and this is why.

        The judges were given a fair hearing by the Vetting Board and they willingly and voluntarily participated in the process which found them not fit to serve in the bench. If the Vetting Board was some kind of a secret society that threw out judges without giving them a fair hearing the judges would be right. It was not like the judges were driven with blind folds to Nyayo House and ordered to sign papers for their removal. This was a clear and transparent process under the existing laws of the republic of Kenya. You cannot claim that some laws abuse your fundamental rights just because they find you unfit to hold certain offices. There is no fundamental right for anybody to hold any office. You hold those offices in accordance with the laws of the republic and if those laws find you unfit to hold office, all that matters is that the process to declare you unfit must be fair and transparent. That is all there is to it.

        That ruling will be thrown out with all its attendant arguments and there is no better place for that to happen that the Supreme Court. And then those 5 judges will have their day with the Vetting Board. I wish them well but they have a case to answer and they better have some very good answers.

      • adongo

        first i admit i have only been partially following these judgements and its only today i’ve taken in depth look at the ruling by the judges on the vetting process, since pdf documents are only embeded in the main post, Blog-Admin will in due course embed the ruling to the post above for reference.

        in summary the judgement states that the vetting process and decisions are not necessarily absolute despite 23(2) and in fact that the judges contend that if a decision by this board or any other board contravenes the constitution e.g and specifically the fundamental rights then the HC has jurisdiction over the process. this is the springboard from which they then proceed to declare that the vetted judges need fair trial/appeal process in exercise of fundamental rights before the vetting board decision is made final. in the larger scheme of things this is actually a fair assessment, the only danger here is that the HC create and open a door that can be subject to abuse. i believe a higher court should direct the HC to provide safeguards if they want to open that door.

        however from that ruling, the HC simply want to be in a position to provide oversight if they find that fundamental rights are not observed and for a fair trial and appeal process to be followed by the vetting board. face value this cannot be bad.

        its a very weird irony, but amazingly, the people that denied so many kenyans their fundamental rights, are able to exploit the new constitution to demand and in fact place their own fundamental rights above due process and outcome. the very things that they denied many political prisoners and other victims of injustice that stood before them. what a crazy country. this is akin to a person clobbering a burglar in his house and then the burglar sues for assault.

        the ruling
        =====
        10. CONCLUSION AND DIRECTIONS
        The upshot of the foregoing is that we are minded to make the following orders:-
        1. All the Conservatory Orders made herein and extended from time to time are hereby set aside, and the Vetting Board is at liberty to continue with the vetting of Judges pending the hearing and determination of the Application and Petitions filed herein.
        2. As regards the Judges whose vetting process has been determined by the Vetting Board as complete, we recognize that they will suffer irreparable loss and damage should their de-gazettement as Judges be effected before the Application and Petitions filed herein have been heard and determined. We therefore order that pending the determination of the said Application and Petitions, the affected Judges shall not be de-gazetted.
        3. As regards the Judicial Review Application and the Petitions filed herein, we direct that each shall be heard separately and determined by this Court applying the principles that we have outlined herein.
        4. Costs, where applicable, shall be in the causes.
        ====

        http://kenyalaw.org/CaseSearch/view_preview1.php?link=21100638089717670041535

        personally i think the vetting board should have come up with or need to come up with a form that requires the judges being vetted to sign some kind of a “NO appeal declaration” something similar to miranda i.e understand the nature of the process, agree to be vetted under the rules (which include no appeal and decision is final and no one can contest the decision on their behalf either) or go into retirement.

        thats the only way that the judges cannot legally claim that their fundamental rights are being violated or infringed upon

      • tnk,

        Yes please we need the text of the full ruling. If you folks can put in the main body of the thread that would be great. I think this ruling and the fact that it is headed to the Supreme Court has a lot of significance.

        I think the judges erred in raising the fundamental rights issue and claiming it supercedes the provisions on Sec 23(2). The first question is: what specific fundemental rights were contravened by the decision of the Vetting Board to remove the judges who were deemed to be unfit for office? Nobody has a fundemental right to be a judge in Kenya just as nobody has a right to be a president. You occupy those offices in accordance with the laws of the republic of Kenya.

        Appealing a case is not a fundamental right. People get fired from their jobs everyday. As long as they are given the reasons for being fired and it is not done illegally they are out of work. If their terms of employment provide channels for appeal they do so if the terms don’t provide for that then such fired persons cannot claim that their fundamental rights are being violated.

        In terms of the judges they have a right to be heard and to defend themselves and give their side of the story. That is precisely why every judge availed themselves for the hearing at the Vetting Board some of which was public. The Vetting Board listened to the judges’ side of the story and how they explained what was deemed as their shortcomings. The Board then made their decisions based on what transpired at the hearings. Some were removed others were allowed to stay. This was done in accordance with established laws of the land not by some kangaroo entity. That is the end of their fundamental rights. Nobody has a fundamental right to any job.

        We are going to hear the same arguments when it comes to the ICC chaps some of whom want to run the country through laptops from The Hague! They are going to say they have a fundamental right to contest for office and once in office they have a right to keep their jobs because they were democratically elected. Nonsense. Yes they may have a right to run but if our laws say they are unfit for office, too bad, the courts will have no choice but to declare them unfit to hold office. If they choose to cling to power after that all their actions will be null and void in law. You can’t even run an animal zoo in that fashion leave alone a country like Kenya.

        So the argument of fundamental rights superceding this or that aspect of the laws of Kenya will come up again. In both cases it is resolved by the process. If the process is fair and transparent which is the case in both circumstances because one is given a cahnce to defend themselves and due process is followed that fundamental right argument is dead in the water.

        Let’s take a very simple example. In countries like the US and Kenya the president can only be in office for two terms yet in both countries there is a fundemental right for every citizen to run for office. So are the fundamental rights of two term presidents contravened when they are barred from running. No. Why? Because in both cases the law clearly prohibits them from running. In other words there is no such thing as absolute rights. Rights are exercised within the context of the laws that exist in each situation.

      • adongo

        the document is now up in the main post.

        but more importantly thanks very much for that clarity in your post from which i re-post here below, the key items to take away ( i have paraphrased the last two sentences hopefully I did not take away from what you said). This is what must be argued in that appeal and I hope whoever is concerned can pick this up from here. great insight adongo

        ==
        Nobody has a fundamental right to be a judge in Kenya

        Nobody has a fundamental right to be a president.

        You occupy those offices in accordance with the laws of the republic of Kenya.

        Appealing a decision IS NOT a fundamental right.

        People get fired from their jobs everyday. As long as due process is followed and it is not done illegally. They may use the channels provided for by their appointing or vetting authority to appeal, but such fired persons cannot claim that their fundamental rights are being violated.
        ===

  2. The monied merchants of impunity are fighting back – as we all expected. they won’t be defeated easily but defeat them we must. Thankfully, CJ Mutunga remains focused. Here is part of a powerful message he had for them at the launch of the judiciary transformation network. it’s a little outdated but relevant , it gives me hope that we have got at least one thing going right.

    …….Finally, for those who may be inclined to resist this Judiciary Transformation Framework, I would say this to you: the train has already left the station. The forces against change have no alternative but to obey the Constitution — unless they want to overthrow it. This I am certain of: the old order is dead. What is uncertain is how expensive the forces of resistance will make the funeral.

    Those who may think focusing on an individual can halt or derail this transformation have not made the necessary mental shift. There is a critical number of Kenyans in the Judiciary who share this vision for transformation.

    They would do well to note that the office of the Chief Justice is not a transmission station for instructions from any quarter – the Executive, the legislature, civil society, capital or any organised interest……..

    http://www.kenyalaw.org/kenyaLawBlog/?p=447

      • adongo,

        I like that the CJ is making every effort to listen to our views through events such as the one you attended, FB, Twitter etc. As long as he stays on the right track he can be sure of our continued support. Knowing that kenyans have his back, he needs to look at the impunity merchants straight in the eye and tell them, “you can’t me” :).

        Here is Ahmednassir’s view on how Kenyans can help the judiciary defeat anti-reformists.

        ……….Let us redouble our efforts in making it a national treasure. Let us help the judiciary defeat the enemies of impunity, agents of chaos and others who resist reforms. Kenyans must help the judiciary defeat the unholy trinity that is fighting it……

        http://www.nation.co.ke/oped/Opinion/Kenyans+must+help+judiciary+defeat+anti+reformists/-/440808/1532410/-/item/0/-/ju7lclz/-/index.html

    • Folks,
      Wow! Wow! Wow! is all I can say after finally reading the Matemu decision. It is one heck of an inspiring blitz by Justices Mumbi Ngugi, Joel Ngugi, and G. V. Odunga. This surely injects fresh hope that our country can be transformed. The impressive thing is that several of us (through JUKWAA’s platform) arrived at this congruent position much earlier.
      Besides this ruling, another must-read piece is the splendidly outstanding dissection by Prof. Yash Ghai in the Star newspaper.
      http://www.the-star.co.ke/news/article-89472/tobiko-versus-matemu-protecting-integrity-public-life
      Ghai offers comparative analysis of two High Court decisions based on similar facts: the Matemu one (which bars the latter from assuming office), and the Tobiko decision (which allowed the DPP to assume office. Same facts and scenario; yet opposite rulings! This tells you that despite the progress in Judiciary, the reality is we still have some Judges working in opposite directions.
      It is from this context that one must view AG Githu’s rush to seek a decision in the question to determine Uhuru’s eligibility to run. It’s like a backdoor appeal on the Matemu case. Githu Muigai is doing this at our cost (taxpayers to foot legal fees and court costs on behalf of the billionaire called Uhuru Muigai Kenyatta). As Adongo also alluded – the AG desperately rushed to court on behalf of Uhuru; hoping for a technical reversal of the Matemu case standards.
      We the public have to be aware as Prof. Ghai alerts in that great piece above; our Judiciary is still occupied by Judges who can render opposite decisions for the same set of case facts. Those three High Court Judges expected to determine this case are persons we (Kenyans) must watch very keenly in the weeks to come. Our eyes should be focused along the premise that – if it takes Shs 1 billion to sway a Judge, it is possible that an interested party of Uhuru’s caliber and means could afford it.
      I’m not in any way pouring cold water on the integrity of our budding reforms in the new Judiciary…but let’s be pragmatic enough to realize that the stakes are too high for some of these people. The Matemu precedent is quite relevant to the political ambitions of Uhuru Kenyatta.
      If we are honest as a nation – precedent has already been set by the Matemu-Judges. They interpreted the Constitution superbly and all we need to do is now follow their hallmark guidelines. Here are a few standards they suggest in black and white:
      1) That credible but unproven allegations (not yet investigated) are enough integrity grounds to bar someone from holding public office. Forget the less-serious accusations on Matemu (accused of swearing an affidavit with false information)…the allegations of multiple serious crimes against humanity in a globally reputable court (ICC) automatically pass the litmus test of integrity (in Chapter 6 of our Constitution) – therefore barring say Uhuru from appointment into public office. The office of the President is the top most public job and according to these Judges, its integrity must be protected as mandated by the new Constitution.
      2) That Kenyan courts have jurisdiction to declare such persons (with pending ‘unproven’ cases) ineligible to hold public office thanks to Article 165(3)(d). [By the stroke of a pen, the Judges rubbished the efforts of wakina Uhuru at the Naivasha Katiba Harmonization Retreat where they amended the CoE draft – laying grounds for the argument that accused people could still hold public office “until proven guilty after having exhausted all Appeal chances.”]
      Therefore, we have come to the conclusion that the doctrine of separation of powers does not disentitle the Court from entertaining the controversy surrounding the [assumption of office in the Executive Branch]. A constructive reading of our Constitution; our previous case law on the question; and comparative jurisprudence from other jurisdictions on the question have led us to the conclusion that the High Court of Kenya can properly review both the procedures of appointment … as well as the legality of the appointment itself – including determining whether the Interested Party meets the constitutional threshold for appointment to the position.
      For future reference, bookmark these words above from the learned Judges.
      3) That when determining eligibility to hold public office, the new constitution tells sitting Judges that they must interpret the constitution in a way that promotes constitutional values (such as integrity, service to people, transparency and accountability). [Under the new Katiba, Judges no longer have the option of ignoring fundamental constitutional doctrines such as ‘integrity’ whenever raised in a case].
      4) That any citizen has grounds (locus standi) to challenge a public official’s eligibility to hold public office. And further – such a citizen (or group) will not be penalized for bearing all court costs. [These were the two common deterrents for challenging authority under the old Constitution].
      5) That because the makers of the current Constitution saw the Judiciary as an instrument of reform and justice: it mandated the vetting of Judges; then imposed special responsibilities upon them – giving them greater authority to safeguard constitutional requirements such as integrity in public service. [Only vetted Judges – not ‘the people’ (many of who are illiterate) – can decide on the integrity of people seeking public office.] Uhuru should therefore make his arguments regarding integrity, to the vetted Judges in court– not to voters in campaign rallies.
      6) That any such decisions made by Judges will be used to hold them accountable to the people. [The new Constitution exposes a Judge who makes questionable decisions to challenges over suitability – using the same integrity question – thus jeopardizing their appropriateness to continue serving]. The only risk here is (for instance) an offer of Sh 1 billion from say Uhuru…a Judge could easily take it in lieu of continued service…
      7) That in reaching their decision in Matemu’s particular case, they in fact referred to precedents in South Africa and India. The three Judges (in Matemu’s case) gave us the example of South Africa’s Supreme Court of Appeal – which overruled Zuma’s appointment of their DPP because Zuma made no efforts to investigate integrity-related allegations. They also cited the Indian Supreme Court decision which made it clear it is not just the procedure of appointment that should be followed right – but also whether eligibility (or Constitutional legality) is also right. This puts to an end the tired arguments by Kibaki adherents…that only procedure of appointment and competence of appointee matters – not integrity. [I’m not sure which authorities this brilliant interpretation can be applied to…to lawyers, is it possible that Parliament or even IEBC…if for instance IEBC receives serious allegations about a particular candidate, and make no effort to investigate the allegations (or indeed on their own never bothered to find out a candidate like Sonko’s record…could the court declare such elections (if they win) illegal and bar them from being sworn?]
      8) The quality of this ruling was so high and fine that I doubt any future courts – even the one Githu is running to – will want to challenge their meticulous premises…[Unless of course Judges’ personal accounts burst with instant largess].
      9) Bonus implications from the extraordinary ruling are also abound. For instance, the Judges ruled that whenever the President (in his/her official capacity) does anything unconstitutional which ends up challenged in court – the Attorney General (being the Chief legal advisor of government) can automatically be enjoined in such suits.
      10) Another is that the DPP actually has a constitutional responsibility of informing all appointing authorities of any pending investigations on any Kenyan selected for public appointment. Let’s say there’s a current investigation on presidential candidate X which has not been made public…the DPP is obliged to inform all appointing authorities (IEBC, Parliament, & Chief Justice) before such candidate is sworn in – should they win.
      11) Another haymaker was the question of whether our courts can overturn an illegal or unconstitutional attempt to impose oneself in public office. You bet the Judges made it quite clear that they will not be moot on these matters:
      If the process of [getting into office] is unconstitutional, wrong, unprocedural or illegal, it cannot lie for the Respondents to say that the process is complete and this Court has no jurisdiction to address the grievances raised by the Petitioners… this court has jurisdiction to entertain and deal with the matter.
      And
      The fact that the person who [gets into office] does not meet the constitutional threshold will not change merely because the person who brings the matter to Court did not raise it during the selection process, and the Court cannot shy away from making such a determination if sufficient evidence is presented before it. Needless to say, the Petitioner must exercise vigilance to file such a case within a reasonable time…

      The blazing conclusion of the ruling is a signal of things to come if one can put one and one together. Check this out:
      111. So it is in this case. We have already established that on available evidence the Interested Party faces unresolved questions about his integrity. The allegations which [he] is facing are of a nature that, if he is confirmed to this position, he will be expected to [oversee investigations of] the very same issues which form the gist of the allegations against [him]. It requires no laborious analysis to see that this state of affairs would easily lead many Kenyans to question the impartiality of the or impugn its institutional integrity altogether. Were that to happen, it would represent a significant blow to the very institution the Interested Party is being [appointed] to head and lead in its institutional growth. In our view, this makes the Interested Party unsuitable for the position…
      112. For all these reasons, therefore, the court finds that the appointment…offends the requirements of the Constitution, and in particular Article 73, and holds the same to be unconstitutional. We hereby set the appointment aside.
      Does anyone think the current Chief Justice would swear in a person whose appointment would be unconstitutional? Food for thought! As Adongo once said, it is one thing to run but another altogether to be sworn in (or Constitutionally assume office).

  3. i think prf mutua makes a very poignant point that the judiciary is collectively reinventing itself to align to the cause and course for justice. the vetting process set the ball rolling, asking the judges to account for some of their rulings. those with clean record moved on, those without, had to step.

    the CJ and the new team has been extremely focused with quite a few landmark rulings in a very short span of time. of course as jmaina notes, there still may exist one or two bad apples that sneaked through, but thank God they will be an exception rather than the norm as in the past. isn’t a strange feeling that now we are looking for a crooked judge instead of like in the past where we were looking for one good judge.

    for the judiciary to complete its tranformation, it needs a heavy buy in from the public and hence the many initiatives including such as Judiciary marches are critical and most welcome amongst a host of others. one clearly sees a huge difference between CJ efforts vs PLO Lumumba and his hot air campaign

    get more information on how the judiciary is transforming at

    http://www.judiciary.go.ke

    • Tnk,

      How do I edit my long post above (spacing, italicizing, etc)? The interface is a little difficult to figure out. Help please.

      • Job,

        Could you please be kind and send the Blog-Admin a request to register you as Contributor/Author. As an author you get to create new posts, use advanced editing tools and also obtain stats. You may need to have a WordPress ID, if you encounter any difficulty do alert the Blog-Admin at your earliest convenience.

        Step by step procedure on how to register as a Contributor/Author can be found below:

        https://deepcogitation.com/members/

        Cheers!

    • When I read the CJ’s foreboding shot – urging all and sundry to read the Matemu ruling with eyes and mind wide open – I predicted this circling of wagons (by impunity merchants). Kofi Annan’s refusal to meet persons accused of serious crimes (at ICC) only sent more panic among the impunity lords.

      Makau Mutua’s swinging jab at the current leadership of LSK gets to the root of the conundrum. It takes two to Tango. Corrupt Judges need corrupt lawyers as facilitators.

      LSK’s Mutua speaks for the coterie of lawyers who enjoyed unprecedented success in the old (rotten) court system – the Kioko Kilukumis, Cliff Ombetas, John Khaminwas etc. These are multimillionaire lawyers whose skills played not necessarily in brilliant arguments in court chambers, but in greasing palms of Judges with bribes.

      Mutunga and judicial reforms are threatening to send them out of business. The reforms are threatening to cut legs of many political leaders. The panic is palpable. I’ll soon read the Matemu case decision…but my wish is to have the ICC accused in the ballot.

  4. Talking of questionable characters in the judiciary, I would like to raise issues with Judge Warsame who appears to blow hot and cold and is keen on making pro establishment rulings and subversion of the constitution.
    If you consider the Metemu ruling by justice mumbi etc, which is on similar issues of integrity that Warsame has made various rulings before, I think this man is unfit to continue being a judge and he should be shown the door or demoted like that judge who handled ruto’s embezzlement case.
    There is a very interesting article in the star by Ghai Yash Pal exposing this Judge. I also find the following cases extremely worrying and evidence the unfitness of warsame;
    The tobiko case
    Stopping the vetting board,
    Dismissing the TJRC case against Kiplagat and ordering them to individually pay the cost
    Recently telling MARS group to pay for a public notification to 2 major papers on their ongoing petition against the mpig’s increase on their salary, which is something mwalimu mate complained about due to the cost.
    Delayed judgements on cases such as the tobiko’s which took 6 months and MARs group case is ongoing. there is also the case challenging the MPigs that have defected.

    Is Judge Warsame fit for purpose in the new judiciary?

  5. Kibaki’s show of contempt towards Kofi Annan’s Panel is unfortunate but not surprising. This obstinate lack of statesmanship will likely define Kibaki’s legacy. Always missing to take symbolic opportunities of goodwill; instead opting for stubborn chest thumping. It will come back to bite him in retirement – he’ll be treated the same way.

  6. This was due to happen. The more independent and firm the judiciary becomes the more likely that impunity will fight back to win lost ground.

    The recent ruling by the courts of Kenya, if anything to go by, has in one way of the other shaken impunity lovers the core. Not only have some of their protectors in the court corridors been kicked out but more are soon being treated to the same dance.
    If impunity does not derail the process of reform it will not survive. It’s therefore a life and death situation for some of the worst characters in Kenya.
    What do you say guys. Will the masters of impunity derail judiciary reforms?

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