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Post by tnk on Apr 25, 2012 20:14:15 GMT 3
2. Does anybody know if the new constitution provides room for persecuting ;D these criminals for the distortions they wrought upon the law? Can the Matiba family for instance sue Omollo? Or have their discretions all been forgiven by a general pardon? jakaswanga actually the thriller for me am sure is on its way these guys have been declared unfit to hold these positions. this is based on their past record. so if they have ever convicted anyone or conversely released criminals, and we now know that they are/were unfit to do so, does that open the famed pandora box? can someone go to court on cases these "mis-fits" handled? i await with bated breath ...... of course someone higher up that food chain can move to pre-empt such an eventuality, but still ..... i wonder .....
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Post by jakaswanga on Apr 25, 2012 20:33:46 GMT 3
2. Does anybody know if the new constitution provides room for persecuting ;D these criminals for the distortions they wrought upon the law? Can the Matiba family for instance sue Omollo? Or have their discretions all been forgiven by a general pardon? jakaswanga actually the thriller for me am sure is on its way these guys have been declared unfit to hold these positions. this is based on their past record. so if they have ever convicted anyone or conversely released criminals, and we now know that they are/were unfit to do so, does that open the famed pandora box? can someone go to court on cases these "mis-fits" handled? i await with bated breath ...... of course someone higher up that food chain can move to pre-empt such an eventuality, but still ..... i wonder ..... tnk,This could indeed be the famous pandora's box. The convictions these guys handed out are 'unsafe', and deserve review at least if not re-trial! (Only pragmatic reasons like finance can derail this, I think!) You know also, if one is to split hairs, and that is what lawyers in litigation are paid to do, then one could want to know from when [which date] they were unfit to hold these offices. Once determined, from that day on I can reason they have been fraudulently/unjustifiably earning a salary, thus sue for a refund to the taxpayer. Some of these guys would better retire to other countries to avoid old age in the docks! I said persecution, and I know what it means because I have been a victim! And the one who accepted presents from litigants: in plain language: he took bribes right?
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Post by OtishOtish on Apr 25, 2012 20:38:21 GMT 3
Jakaswanga: Nobody will go after those guys. One or two are clean, even if generally unfit; but another one or two probably know where a few bodies are buried. On the other hand, re-opening some cases is something that should seriously be looked into. By the way, judges don't take bribes; they accept gifts.
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Post by adongo23456 on Apr 25, 2012 21:37:35 GMT 3
Job: Great job! Great Job! So to speak. Nyamu would provide great fodder for those late-night TV comedians as they do a round-up of "interesting news" from around the world: Something in the constitution is unconstitutional! Job,Spectacular work! But can you comment on this, or anybody who can for that matter. Judge Riaga Omollo made it to the short list of 5 for the Chief Justice I think? How on earth did he pass that vetting process at that time? Was it a 'fake' board? Or it was just his seniority after Gicheru. You know it is a bit unnerving to think somebody actually consedered him a serious candidate for CJ! jukwaa.proboards.com/index.cgi?board=general&action=display&thread=45352. Does anybody know if the new constitution provides room for persecuting ;D these criminals for the distortions they wrought upon the law? Can the Matiba family for instance sue Omollo? Or have their discretions all been forgiven by a general pardon? Jakaswanga,The little I know is that there was no vetting initially. It was just Kibaki's inner cabal technocrats with some hopeless chaps from the PM's office picking up a few candidates for Kibaki and Raila. The Kibaki people argued the constitution only provided for some form of a panel and that the JSC was not mandated by law to vet the choices for the Chief Justice. They argued Kibaki was still the appointing officer for the CJ and can appoint anybody he wants with token consultation with the PM. In fact they said Kibaki can consult but does not have to accept the PM's input. In other words Kibaki informing Raila of his choices was enough. Consultation does not mean consensus they argued. Poor things. Then Kibaki tried to con Raila by making the appointments while Raila was in Addis or some place. They called Raila's phone to give him the info. Raila's then good friend Miguna advised the PM not to take the call from State House since they knew Kibaki had cooked up the list. State House was furious that the PM refused to take their call and went ahead to nominate Visram and co and gave the PM the finger. Big mistake. The rumour was that Raila wanted Riaga Omolo appointed on grounds that he was the senior most. The civil society then took the battle and lo and behold the PM wrote to the Speaker of the House stating very clearly that he was not party to the treachery going on with the nominations. Then all hell broke lose. Kibaki's henchmen rubbished everything. Since they are used to having their way they thought people will whine and complain and then shut up and Kibaki will get his wish. The Uhuruto mob told Kibaki they have the numbers in parliament to bulldoze anybody or anything chosen by Kibaki. They thought the mta do culture was here forever. Big blunder. The Speaker ruled to reject Kibaki's nominations and the mindless "numbers" with their pockets already full of bribe money never voted. The court ruled against the same and of course Kibaki had to go back with his tail in the right place and withdraw the nominations. The rest as we know is history. The funny thing is that because of the Kibaki's stubborn nonsense everybody supported the move when the JSC was handed the job to vet the CJ even though technically they were not mandated by law to do that in the first appointment. It is Kibaki's goof that handed the job to the JSC. During the JSC rambo in the jungle most tribalists even here in Jukwaa thought the adongos would support Riaga Omolo. They were wrong by a mile. Riaga is a man of the establishment. He is status quo proper. We went with Dr. Mutunga and the saga of the earing became the rallying call of the status quo chaps. At that time the status quo chaps would have wanted Riaga Omolo with ten studs in the ears and twenty on the nose. He looked that much better for them compared to Mutunga but it was too late. Kenyans won that battle. Now we are in phase two of the clean up. This is harder than cleaning up Nairobi River but it is being done. With time we will reach the Mugumo tree called the police force with our million razor blades. That is the epicentre of impunity and treachery in the country. Sooner than later they will meet the razor blade. Of that I am sure. Incidentally after the JSC tore the heart of the status quo with the CJ choice the honchos in charge have resorted back to these unaccountable so called panels to pretend to be living to the constitutional requirements for transparency in appointing public officers. Even after they make their not so good choices, Kibaki is still trashing that and choosing the weakest possible candidates(NEMA and the NPSC). The JSC did not give Kibaki any room for mischief. They gave one name for the CJ, one name for the DCJ and the exact number for the SC. That is how you deal with unrepentant political crooks. You give them zero room for mischief.
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Post by phil on Apr 26, 2012 15:30:11 GMT 3
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Post by nalinali on Apr 26, 2012 15:42:50 GMT 3
True Phil. You know what though. The icing on the cake if you like, was the spectacle of seeing Eugene Wamalwa present and party to the seminal steps in the purge of impunity from our judiciary. I bet my brains on the fact that Eugene --rather then the four ousted judges--had a very sleepless night, if there is some truth to the claims of the instrumentalization of his appointment to the justice docket. Lovely, just lovely!
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Post by job on Apr 27, 2012 6:26:18 GMT 3
Round 2 of the weeding continues at the High Court. Here we come again!!!!!!I’ve just fired my next bulletin to the vetting panel – and as usual a copy to the KNCHR. This panel should do its job – of counter-checking the filed complaints, rather than ask whistle-blowers themselves to produce evidence in the form of documents. Some of these things are publicly available. 1) Who doesn’t know the manner in which the grossly incompetent Abida Ali Aroni was appointed Judge? Wasn’t this part of the reason why Martha Karua resigned? This panel must know that political patronage to reward cronies and loyalists is the biggest cause of Judicial impartiality and lack of independence. 2) Justice GBM Kariuki – who once used a gun to try ending a road-rage argument. The case for attempted murder was yet another charade presided by his rotten friends at the bench. If a Judge was shown the door for high-handedness, then what is?3) Justice Kaplana Rawal – the alleged pyramid-scheme insider and defender. I hope these allegations come forth with something concrete. This is yet another establishment insider, doing the bidding for powers that be. 4) Justice Emukule – Justice Nyamu’s longtime partner in the Constitutional bench during the Goldenberg and Anglo Leasing Kangaroo trials. If Nyamu is gone, on what basis does he survive? 5) Justice Roselyne Wendo – the other favoured partner of Justice Nyamu at the Constitutional bench. I don’t think the choice of teaming Nyamu with Wendo and Emukule was by accident. Out Nyamu, Wendo must also be out. 6) Justice Njagi - another of the musketeers alongside Nyamu. 7) Justice Jeanne Gacheche. Meet Justice Jeanne Wanjiku Gacheche: Justice Jeanne Gacheche First, read this Moi-era Africa Review report. Minister for Trade and Industry Nicholas Biwott, a top aide to President Daniel arap Moi, won a court injunction blocking The Daily Nation from publishing excerpts of Rogue Ambassador, the memoirs of former U.S. ambassador to Kenya Smith Hempstone.
In the book, Hempstone alleges that President Daniel arap Moi personally ordered the murder of then-foreign minister Robert Ouko, beat him, and then watched as Biwott shot Ouko. On July 30, Moi and Biwott sued Hempstone for libel and sought to stop the publication, distribution, and sale of the book or any material that refers to the Ouko murder allegations.
Initially, Moi had threatened The Daily Nation following a full-page advertisement in the August 20 edition of the paper that read in part: "President Moi and Minister Nicholas Biwott want the High Court to stop its sale. What does it contain? How much does it reveal about the country's most powerful politicians and government?" However, only Biwott filed a case against the paper.
Biwott's lawyers won the injunction, and, although the paper had already published some brief quotes from the book in which Hempstone calls Moi "ruthless, short-tempered, arrogant and self-promoting," the editors said they would comply with the ruling.
On September 4, 2001, a high court in Nairobi extended an interim injunction restraining Text Book Centre from further distributing the book. Commissioner of Assize Jeanne Gacheche also blocked the bookseller's agents and servants from further circulating or selling copies of the book.
The court also extended an order barring the Nation Media Group from publishing parts of the book in The Daily Nation. The case was still pending at year's end.
Exactly one month later, on October 4, 2001, President Moi appointed Jeanne Gacheche a Judge of the High Court of Kenya. Justice Gacheche’s career highlights: • Rejected (on grounds of misconduct) by lawyers in Eldoret, Kisii, Meru and Nakuru – Chief Justice Gicheru eventually stationed her in Nairobi• Promoted to fill in the shoes of Justice Nyamu as the second head of the Gicheru-created, Constitutional and Judicial Review Division of the High Court – which has proved to be the single biggest impediment to prosecution of mega corruption in Kenya.It is this division that cites ‘constitutional rights’ to prevent the likes of Chris Murungaru and other Anglo-Fleecers from being investigated by KACC or prosecuted in courts. • Assigned perennially, alongside Justices Nyamu, Wendoh and Njagi, to handle high-stake cases sensitive to the executive (PNU) arm of government – with very predictable outcomes. Case point – the politically-motivated IIBRC suit.• Ruled perennially in favour of big corporation lawyers – occasionally ordering huge corporate payouts, such as this (below) where taxpayers were ordered to pay big bucks to Total (K) www.businessdailyafrica.com/Corp ... index.html What are some of her significant (& specific) rulings - suggesting probability that she may soon have little interest in undergoing vetting?• Pre-emptive stoppage of publication of 80 constitutionally created constituencies for Kenya...soon to be water under the bridge.• In a case where a scrupulous insurance company (Directline Assurance Company) refused to compensate 659 accident victims over Sh 300 million for emergency medical treatment (& upkeep money for orphaned children), even before the insurer’s lawyer responded, Justice Gacheche adjourned the case without being asked by the Insurer's lawyer, giving the company unsolicited reprieve while victims continue suffering no treatment and help. Paul Muite, representing the victims said of the ruling ‘this is strange jurisprudence and a precedent hitherto unknown in this country’. Victims have been petitioning the Chief Justice to reassign the case, citing the Judge’s very suspicious conduct. www.nation.co.ke/News/Protest%20 ... index.html • While sitting in Eldoret, Justice Gacheche issued an order at night to the Nairobi-based directors of CharterHouse Bank, to enter the bank building that had earlier been sealed by police pending collection of evidence. By morning, the Shah family (connected to alleged drug baron Harun Mwau) were confident there would be no case against the Bank.Some MPs, the AG, Police and even Treasury, now want the bank reopened (claiming ‘no evidence of wrong-doing’) despite US and EU veiled threats at terminating banking transactions with all Kenyan banks. The US and EU, with deep interest in stopping money laundering will be closely watching whether Justice Gacheche will boldly submit herself for vetting.• Justice Gacheche stopped AG Amos Wako and KACC from filing criminal charges for a Sh 41 million fraud case against Naivasha MP John Mututho based on - your guess is right - ‘constitutional rights’.Folks please apply your investigative skills and give us more about these Judges – the Aronis, Njagis, Emukules, Wendos, et al - if we don't want to continue having them as our "esteemed" Judges.
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Post by OtishOtish on Apr 27, 2012 15:31:30 GMT 3
Job: Excellent stuff!
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Post by job on Apr 27, 2012 18:11:09 GMT 3
KENYA JUDGES AND MAGISTRATES VETTING BOARD
DETERMINATIONS
CONCERNING
THE JUDGES OF THE COURT OF APPEAL PANEL FINDINGS AND DECISIONThe Board’s Determinations in regard to the 9 judges of the Court of Appeal subject to vetting are as follows I: Honourable Justice Riaga Omollo.1) Hon. Justice Omollo was interviewed on 23rd February, 2012. Justice Omollo started his career in the Judiciary as a Magistrate posted to a rural area, to becoming the senior-most judicial officer prior to the establishment of the Supreme Court. He is experienced and technically-adept and has made a major contribution to reforming and speeding up the processes of civil litigation. He has all the general qualities of competence and authority expected of a judge (though it should be mentioned that there were moments during the interview where forcefulness seemed to border on showing a streak of authoritarian impatience).2) At the outset it should be stressed that the issue before the Board was not whether the judge had been corrupt. The only mention of corruption that could have involved him was unsubstantiated, and so remote as far as he was concerned, as not to enter the scales of evaluation at all. The gist of the critique against him lay elsewhere, namely, an alleged lack of independence and impartiality.3) A series of complaints in this regard were made by an Advocate – whom I shall not name for reasons of confidentiality. The judges response though dealt adequately with the complaints. The Board noted that the particular Advocate had laid complaints against every judge in the Court of Appeal, all basically to the effect that they are unfairly hostile to him and discriminate against him and therefore against his clients. Some of these complaints were even sent on to the United Nations, the International Criminal Court and other bodies. Clearly there has been a complete breakdown of trust and professional respect between the Advocate concerned and the judiciary, with negative consequences all around. The situation calls for intervention by the Law Society of Kenya (LSK) with a view to achieving an appropriate remedy. The Board will contact the LSK in this respect. It is not in a position to make a finding against the judge in respect of these complaints. 4) Another complaint alleged inconsistency in the manner in which the judge dealt with two separate cases involving employment rights, an inconsistency, it was said, that could be explained only by unprincipled pro-employer bias. The Board was not persuaded that the two cases could be reconciled in the manner argued for by the judge, and could appreciate why employees could feel that they could not rely on the courts for fair and consistent treatment. It was also disturbed by the judge’s apparent lack of capacity for introspection and objective analysis in the matter. 5) A further complaint followed from the well known Rai case Civil Application No. Nai 307 of 2003 (154/03 UR), in which the principal judgment of a five-member Court of Appeal bench presided over by the judge, was given by the judge. This was a case where the presiding judge in the first appeal, a retired Judge of Appeal, had acted in what on the face of it was a serious conflict of interest situation, giving rise to a strong and reasonable perception of bias. In essence, the issue was whether the Court of Appeal should re-open a matter in which it had given a final determination, on the grounds that the interests of justice so required. The Court decided that in the special conditions of Kenya the overall need for finality had to take precedence over the interests of justice in a particular matter. The Board was not fully persuaded of the objectivity displayed by the Court, either in the reasons carefully spelt out in the judgment or by the answers given in the interview. Recent precedent in Kenya had pointed to the right of the Court of Appeal to re-open a concluded matter if very exceptional circumstances existed. The well-known Pinochet case in the House of Lords in England had established that where a judge hearing a matter had had an interest, recusal had been obligatory, and a failure to step down had rendered the proceedings a nullity. During the interview it became clear that a major factor which had influenced the judges had been that the impugned judge had sought to use the application to re-open the matter as a platform for redeeming his honor by telling what he had seen as his side of the story. It may have seemed to the judges that this would have led to an inappropriate and unseemly battle been fought out in a manner that would reflect negatively on the dignity of the Court. Whatever the reason, the Court both refused the application of the impugned judge to submit his own affidavit, and ruled in favor of absolute finality, thus putting an end to the matter once and for all. The Board was left with the strong impression that the Court had not started with the law and ended with the result. Rather, it had for reasons of expediency maneuvered the law in such a manner as to achieve a desired result, namely, to avoid having any dirty judicial laundry washed in public, even if this meant that a manifest injustice perpetrated by a member of the judiciary against a litigant would not be faced up to. The inevitable consequence was to further a public perception that in order to evade examining charges against one of its former members, the judiciary would re-interpret its own precedent, obliterate the charge that court processes had been tainted and leave the apparently wronged litigant out in the cold. 6) A large portion of the interview was taken up with suggestions that in a series of cases with high political importance, the judge had shown a manifest lack of impartiality, bending the law to favour the incumbent President. Members of the Board referred to a number of well known cases, the most prominent of which involved an attempt by a presidential candidate, Mr. Matiba, to submit a petition alleging irregularities in a recently concluded presidential election.7) The Board was not convinced by the explanation given by the judge in the Matiba 1 appeal as to how, in the light of an express statutory provision excluding any appeal from decisions of the electoral court, his Court could assume jurisdiction to hear the appeal at all. The facts of the case hardly cried out for some kind of remedy against a patent injustice. On the contrary, the appeal in this case was sought against a common-sense and eminently reasonable finding by the appropriate electoral court to the effect that, because Mr. Matiba was paralysed, he could authorize his wife to sign his petition on his behalf. Then, having assumed jurisdiction, the Court of Appeal in Matiba 2 considered the substance of the challenge to the petition. It held that the provision that the petition shall be signed personally by the petitioner had to be read in a peremptory and totally literal way that excluded any possibility of signature by anyone else in any circumstances, even where the petitioner was unable to sign for himself because of physical incapacity.8) The Board was astonished by the totally unpersuasive technicism of the principal judgment. The Board was even more startled by the terms and spirit of the concurring judgment offered by the judge. The judge’s concurrence went well beyond merely expressing support for the technical correctness of the main judgment. In addition to the concurrence reinforcing the main judgement’s defiance of common sense and closing down of space for democratic contestation, it gratuitously showed grave disrespect for disabled people. This is what it said “Mr. Kariuki asked during the arguments what a Kenyan without both hands and who wants to file a petition is supposed to do. The answer to that question, must await the appearance of such a Kenyan in these courts and a mode adopted by him in executing his petition. In any case, Mr. Matiba was not in that condition. If he were he would have no business wanting to be the President of Kenya.” The judgment went on to castigate the petitioner in an ungenerous and uncalled-for manner that manifested no sensitivity to the fact that he could well have been paralysed as a result of torture, and appeared to curry favour with the incumbent President. The relevant portion of the Judge’s concurring judgment read : "....9) The judge was also challenged over a series of decisions he had given in other highly publicized political matters, in all of which he appeared to lean in favour of authoritarian repression rather than open up pathways for democratic expression. A particularly egregious aspect of one of these matters was that the President had publicly, and correctly as it turned out, predicted an outcome pleasing to himself, without the judge responding publicly in any way to what had been open humiliation of his office.10) There was consensus amongst members of the Board on a number of positive features in the judge’s career. He had given many years of service to the judiciary. He presented highly credible evidence of having been treated in a disrespectful manner by the then President in his early years on the bench, at a time of the one-party state, when signs of independence, judicial or otherwise, were severely responded to. He has undoubtedly contributed in a multitude of signal ways to the life of the judiciary. 11) Equally, there was consensus amongst members of the Board with regard to certain negative features. In particular, it was agreed that the judge had played an active role in frustrating rather than enhancing judicial scrutiny of alleged electoral irregularity, that he had manifested undue partiality in favour of the authorities at a time of severe political repression in the country, and that he had not held back from using his judicial authority to manipulate the law in order to achieve a result that favored impunity, limited democratic expression and curtailed freedom.12) The Board divided, however, in relation to how the positive and negative features should be balanced out, more especially with regard to how the manifest failures of the judge in the past impacted on his suitability to continue serving on the bench. A substantial majority came to the conclusion that the negative impact of the way in which the judge had adjudicated at a time when his objectivity and impartiality were being tested, was profound and had contributed significantly and in a lasting way to the loss of public confidence in the judiciary in matters where powerful political figures were involved. These members also felt that the judge had not shown sufficient capacity for introspection and an ability to analyse in an objective manner, the severe judicial failures for which he had been responsible at a difficult time in the life of the nation. The judge on his own admission stated that they had failed Kenyans and victims of the Nyayo House torture chambers. But he showed inadequate appreciation of how deeply and negatively the actual judgments he had delivered had impacted on public confidence in the fairness of the judiciary.13) A minority of members, on the other hand, were of the view that the manner in which he had adjudicated had to be seen in the context of the repression of the times; that he was not a corrupt judge; that he had made many positive contributions to the judiciary over the years and that he still had a major contribution to make in the context of the new constitutional dispensation. 14) However, the decision of the Board, by a very substantial majority, with two members dissenting is that the Judge is NOT suitable to continue to serve. That, therefore, is the Determination of the Board.15) At the same time the Board wishes to highlight a total absence of any instances relating to corruption in regard to the judge, and in regard to lack of impartiality outside the Rai case and the politically-based judgments cited above. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from the contributions that the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past. 16) The judge has the right to apply for review under Section 22 of the Act, on the grounds upon which the judge may seek a review before the Board. Otherwise the decision of the Board is final and not appealable.
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Post by job on Apr 27, 2012 18:11:24 GMT 3
II. HONOURABLE JUSTICE SAMUEL BOSIRE
1) The judge graduated and obtained a Bachelor of Laws LL.B Hons. From the University of Nairobi in 1974, and became one of the early generation of Kenyans of African descent to serve on the bench. He joined the judiciary as a District Magistrate II (Professional), and has worked his way up from being a Magistrate, to becoming a judge of the Court of Appeal. In 1982 he was appointed Judge-Advocate to try mutineers in the Kenya Armed Forces (KAF) following the attempted coup in that year. He served on a number of Judicial Committees and between February 2003 and March 2006, chaired the Judicial Commission of Inquiry into the Goldenberg affair.
2) At the outset it should be stressed that the issue before the Board was not whether the judge had been corrupt. The only mention of corruption that could have involved him was unsubstantiated, and so remote as far as he was concerned, as not to enter the scales of evaluation at all.. An addendum to the complaint to the effect that the judge’s son had specially been given employment by a litigant, was not pursued by the Board when it turned out that the son’s employment had long preceded the litigation.
3) The complaint which occupied more than half the time spent on the interview had been lodged by a concerned ownership of a house in Mountainview estate, Nairobi. After hearing the testimonies relating to the matter the judge, the Board concluded that it was not in a position to make any finding against the judge as far as ownership of the house was concerned, as the matter was subject of a suit before the High Court. The Board noted with some concern, however, that there were marked discrepancies in accounts given by or on behalf of the judge at different stages of the matter concerning whether he or his son had taken the initiative in the purchase. This was a matter that could possibly have been of some relevance as to whether he could be sued in the High Court.
4) A number of complaints were made by an Advocate who had filed similar complaints against almost all judges. The Board finds that the judge’s response deals adequately with the complaints. A reference has been made to complaints by this Advocate in our earlier ruling.
5) A further complaint followed from the well known Rai case Civil Application No. NAI 307 of 2003 (154/03 UR), in which a lengthy and erudite concurring judgement was given by the judge as one of five members of a specially constituted bench of the Court of Appeal. This case has also been discussed in our earlier ruling..
6) The judge was asked a number of questions about his role as Judge-Advocate in trials against persons accused of having participated in or supported the 1982 coup attempt. There was no suggestion that the judge himself had been responsible for the abusive methods of prosecution that were used against many of the accused, including torture and holding court proceedings at night. The queries related primarily to his knowledge of such methods having been used, and any steps he might have taken to counteract them. The judge claimed that in fact he had no knowledge at all of these abuses, either when he was Judge Advocate or later when he was a Resident Judge in Mombasa. Members of the Board were not satisfied that he had not had any knowledge at all of matters that were notorious and about which the whole country was buzzing. A more candid response would have been that he had heard the stories and been disturbed by them but that in the circumstances there was little that he personally could have done. The Board noted, too, a disconcerting lack of outrage today at the fact that cruel and unlawful methods of instilling terror and securing convictions had been used during his watch as a senior functionary in law enforcement, first as Judge Advocate then as Resident Judge.
7) An important part of the interview related to the judge’s role as the chair of the Goldenberg Commission. In particular, he was asked to explain his response to a court order in a case entitled “In the Matter of the Judicial Commission of Inquiry into the Goldenberg Affair.” At a time when the Commission was preparing to wind up its activities, the High Court gave an order that the Commission should summon as witnesses ten prominent political and commercial figures, including the former President Daniel arap Moi, and Parliamentarians George Saitoti, Musalia Mudavadi, Nicholas Biwott and others. The Court further ordered that the proceedings of the Inquiry should not close until the Commission had complied with its statutory duties to issue and serve summons on the persons mentioned above. The judge stated that his duty had been to serve notice on the persons concerned to the effect that they had been adversely mentioned, but there was little a Chairman could do to compel attendance.
8) There were two matters of deep concern to the Board. The first was that the judge, as chair of the Commission chose not to comply with an explicit and precise High Court order made against him as second Respondent in an ex parte matter. He did not seek to challenge the order on appeal. He simply treated it as if it was not binding on him and ignored it. The Commission, in defiance of the court order, completed its work without summoning the witnesses. A more flagrant breach of the rule of law is difficult to imagine.
9) The second was the reasoning advanced by the judge in support of this defiance of a court order. He claimed that the only power he had had was to give notice to the affected persons, and not to compel their attendance; then it was up to the persons concerned to decide whether to come to the Commission to give evidence or not. This assertion flew in the face of an explicit provision in the Commission of Inquiry Act stating that every Commission shall have the power of the High Court to summon witnesses. The judge then went on to contend that the affected persons enjoyed the right to silence, and that he as presiding officer could do nothing about what he called the decision ‘to keep mum’ on the allegations made against them. The Board found this to be an extraordinary reading of the law.
The very purpose of the Commission was to dig and delve into matters of great public concern, involving huge sums of money, in relation to which the Commission had to decide whether senior public personalities were implicated. If it had summoned the key witnesses in the manner ordered by the High Court, it would then have been up to the witnesses to decide whether to defy the summons and bear the consequences, or appear before the Commission and claim their right to silence, and bear the consequences. The Commission’s responsibility was to break the silence, and not to invoke it. The effect of the defiance of the High Court order then was to protect the very people the public expected would be called to account for their activities.
10) When asked for his own opinion on why the public appeared to have developed a profound lack of confidence in the judiciary, the judge volunteered two main reasons. The principal one was that of lack of resources; with more resources the judiciary could have dealt with the systemic problems which facilitated corruption. Secondly, he felt that when certain politicians for their own reasons alleged that the courts were corrupt, it was not surprising that the general population developed that opinion of the judiciary. Lacking from his evaluation was any sense that, as report after report had established a profound moral dysfunctionality had reached right into the heart of the judiciary. The Board found that the profound problems facing the judiciary could not be explained away in the simplistic terms offered by the judge. On the contrary, the defensive tone which he adopted was indicative of a resistance to acknowledging the moral and jurisprudential failures which had led to a plummeting degree of confidence in the judiciary which ceased to be looked on as an honest and impartial arbiter of people’s rights.
11) Two other matters were raised with the judge. The first concerned his acquisition of two parcels of land formerly belonging to the Government, one of which the judge had handed back to the Government subject to certain conditions. It was not possible for the Board to gain access to all the relevant documentation and examine the issues with appropriate attention to the details and understanding of the relevant historical and legal context. The Board concluded, therefore, that it could not make any adverse findings against the judge in relation to this matter.
12) The second matter concerned allegations that had been made at the Judicial Service Commission interview to the effect that the judge intervened in an unduly active and aggressive manner in cases that came before him. The Board was not persuaded that the judge’s interventions were appropriate.
13) After weighing up all the pros and cons in the judge’s career as reflected in the record, the Board has unanimously decided that the judge is not suitable to continue to serve. That, therefore is the determination of the Board.
14) At the same time the Board wishes to highlight the absence of any instances relating to corruption in regard to the judge. The Board also notes that the judge has worked on a number of bodies whose function was to improve the workings of the judiciary. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from contributions the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past.
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Post by job on Apr 27, 2012 18:11:44 GMT 3
KENYA JUDGES AND MAGISTRATES VETTING BOARD
DETERMINATIONS
CONCERNING
THE JUDGES OF THE COURT OF APPEAL BOOTED! III. HONORABLE JUSTICE EMMANUEL OKELO O’KUBASU 1. The judge commenced his public service as a State Counsel in the Attorney-General’s office. In 1974 he was appointed Resident Magistrate and in 1977 was promoted to the position of Senior Resident Magistrate. During his magisterial days he served in various parts of Kenya until his appointment as a judge of the High Court at the young age of 35 years. In the latter capacity also he served in several stations. In December 1999 he was appointed Judge of the Court of Appeal.2. At his interview by the Judicial Service Commission in June, 2011 for appointment to the newly established Supreme Court of Kenya, he stated that right from his early days after qualifying as a lawyer he had wanted to become a magistrate and to continue to serve in the judiciary. He derives immense joy from serving as a judicial officer, he added, and feels vindicated in this regard by the fact that he has been in judicial service for just over 38 years. 3. Before the Board, the judge was assisted by Advocate Steven Mwenesi. The Board raised a query in this respect: Mr. Mwenesi had appeared before the Judge when the judge was a member of a three-person bench hearing an application to stay the proceedings of the Vetting Board. The stay was sought pending the hearing of an appeal concerning the constitutionality of the vetting process. The substantive appeal was still pending. Would it not be invidious for the judge to have to rule in future on contentions by Mr. Mwenesi concerning the work of the Board ? 4. In his response, the judge stated that in his long service as a judicial officer he had always ensured that his close social relationship with persons who appeared before him in court did not influence his judicial decisions. For his part Mr. Mwenesi observed that he and the judge were now before the Board in circumstances different from those which had obtained during the proceedings before the Court of Appeal. “If there is a bridge ahead to be crossed, I believe the Constitution which guides the two of us will guide us quite effectively”, he added. The Board accepted this assurance, and places on record its appreciation for the assistance it received from Mr. Mwenesi during the interview. 5. The Board then went on to interview the judge in relation to complaints received against the judge. It did so according to the processes and criteria prescribed by the Constitution and the criteria set out in the Judges and Magistrates Vetting Act, No. 2 of 2011, as referred to above. A number of complaints had been received against the Judge, but only those mentioned in the paragraphs that follow were found to require consideration by the Board. 6. Various complaints were made by the Advocate who has featured and been referred to in the other Determinations. The Board finds that the judge’s response deals adequately with those complaints. 7. Another complaint related to two prison inmates who made seemingly serious allegations against the judge. They were both serving life sentences for murder. The two who were charged and convicted in the appeal relating to a murder. The two had alleged that the judge had presided over the appeal involving the two and six others, and had been influenced by extraneous forces in allowing the appeal of one of them, namely Elizabeth Gachanja, while dismissing those of the others. The essence of their accusations was that the Judge was communicating by mobile phone with Ms. Elizabeth Gachanja’s husband, Mr. Wilson Gachanja, concerning the said case while the judgment in respect thereof was being prepared; that a clerk in the Court of Appeal was keeping one of the complainants, through his brother, informed of the progress in the preparation of the judgment ; and that money had been paid to one of the three judges (not Justice O’Kubasu). After questioning of the witnesses and further investigation at the Board’s request had been made of telephone records, the Board felt it could not place any reliance on the narrations of the two complainants. There was indeed strong evidence of court officials having been improperly in contact with the prisoners. Yet, there was no dependable testimony to tie the judge to their conduct. The fact that the judge’s mobile had twice been used to make contact with this mysterious mobile phone was not enough in itself to raise any inference of wrongdoing against the judge. In the circumstances the Board has concluded that it would be dangerous to give any weight at all to the allegations made by these complainants against the judge. For the purposes of the interview they were accordingly disregarded. 8. An Advocate for a Plaintiff in the case that is referred to herebelow, submitted a complaint by a formal letter alleging that the judge had occasioned a miscarriage of justice ‘through dishonesty, incompetence, slovenness (sic) and negligence’. The complaint revolved around Civil Appeal No.149 of 2007 between Kenya Hotel Properties Limited and Willesden Investments Limited. It concerned damages for trespass.9. The Advocate accepted that the Vetting Board could not function as a court of appeal to determine whether a decision by the judge in a particular matter was correct on the facts and the law. The gravamen of his complaint, however, was that there were so many features of the judgment that were startling and incongruous, that he had been driven to the conclusion that factors extraneous to the judicial functioning must have been at play.10. The Advocate stated that, after judgment had been delivered he had learnt that a bribe had been paid to the judge. His evidence on this score, however, was hearsay upon hearsay. Thus, although he testified in a forthright manner, and despite the fact that the Board regarded his willingness to testify as both brave and honourable, the Board concluded that it would be dangerous and unfair to draw any inference at all that a bribe had been paid to the judge. Counsel put it to the Advocate that having heard of the bribe he had pored through the judgment looking for material to substantiate the hearsay statement. The witness replied that the process had been exactly the reverse. Certain findings had been so out of tune with the record and the argument, that the only conclusion he had been able to come to had been that completely extraneous factors had played a role. The story of the bribe had accordingly fitted in with his initial and spontaneous reaction to what he had considered to be the bizarre and inexplicable manner in which the case had been decided.11. The Board has repeatedly and emphatically assured the parties to the vetting process that the Board will not usurp the role of an appellate court. Its role in the instant matter was to determine whether, in the discharge of his juridical responsibilities, the judge conducted himself in a manner falling either within or outside the values and criteria prescribed in section 18(2) of the Act. In particular the Board wished to ascertain whether the relevant function was discharged with professional competence with reference to fairness, which includes a demonstrable ability to be impartial to all persons and commitment to equal justice under the law. With this in mind, and having carefully considered all the testimony, and having weighed the argument addressed to it by Mr. Mwenesi, the Board made the following findings: i) The evidence of a bribe having been paid to the judge was too remote to merit being taken into consideration, and must be discounted as far as the interview is concerned; ii) At the same time the judgment, which was principally authored by the judge, contains anomalies evident from the record concerning whether arguments about the existence or otherwise of the trespass had been considered at all in the judgment; the basis on which damages were computed and the manner in which interest was to be calculated. Taken together and coupled with the judge’s resolute refusal to reconsider and reflect upon what appear to be manifest incongruities, they suggest a worrying lack of capacity on the part of the judge for objective and persuasive reasoning;iii) The judge displayed a disconcerting lack of candour when questioned about his relationship with a prominent businessman, who had a beneficial interest in one of the parties. The judge denied knowing the businessman, and insisted that he had never heard of him. This latter statement was unconvincing, given that the businessman is a figure very well known to the public in Kenya.12. The question of the candour and integrity of the judge came to the fore in the last matter considered at the interview. It arose not from a complaint to the Board, but from information that had been supplied some years previously to the LSK, which the LSK had recently forwarded to the Board. As a consequence, by virtue of the power vested in the Board under Section 14 of the Act to gather information from any source, the Board summoned the original source of the information sent to the LSK. The witness testified in the presence of the judge, who was given the opportunity, by himself or through Mr. Mwenesi to question him. That opportunity was indeed exercised. 13. The following matters were common cause. The witness ran a butchery, and one of his customers was the judge. After falling out with his landlord and facing eviction from his premises, the witness got in touch with the judge to find out what he should do. The judge advised him to get a lawyer. He did so, and the lawyer duly filed proceedings in court to get a stay of eviction. The matter came before the judge, who granted the stay. Sometime thereafter, when the witness heard that the judge was going to visit London, he invited the judge to stay as a guest at a Hotel in London, which belonged to the witness’s brother. 14. Two issues were, however, in dispute. The first was whether the judge was aware when he issued a stay of proceedings that the applicant was his friendly butcher. The second was whether the judge did in fact stay as a guest at the Hotel in London at a time when litigation over the tenancy of the butchery had not been finally disposed of. 15) As far as the first disputed issue is concerned, the judge stated that at all material times he had been unaware that the witness had been the litigant in question. Having heard the evidence and questioned the witness and the judge, however, and bearing in mind the general familiarity between the two of them, the Board found this assertion to be quite implausible.16) With regard to the stay at the Hotel in London , there was a head-on conflict between the judge and the witness. The judge acknowledged that he had received the invitation – thereby confirming the existence of a degree of social familiarity between the two of them. But he was adamant that he had not taken up the offer or even visited the hotel. The witness, on the other hand, was equally insistent that the judge had in fact stayed at the hotel, stating that he had been in London for medical treatment at the time, and had himself visited the hotel and met the judge there on more than one occasion. The Board could find no reason why the witness should invent this story. He made it clear several times in his evidence that he regarded the judge as his friend and had no grudge against him. Indeed, it became clear on a number of occasions when he was testifying, that he was protective of the judge and unwilling to give damaging evidence against him. The Board accordingly came to the firm conclusion that the judge had undoubtedly not been candid when he denied to the Board that he had stayed at the hotel and the bills had been taken care of by the witness. Whatever inference might or might not have been drawn from an acknowledgement by the judge that he had indeed enjoyed the hospitality of the witness’s brother at the time, the Board took a very serious view of the willingness of the judge to attempt to mislead it on the factual issues involved.17 One final point needs to be made on the judge’s lack of candour. At a stage when proceedings were about to be adjourned, the judge expressed the hope that the Board would not find against him now that he was nearing his retirement. When asked a little while later how close the date of retirement was, it turned out that under the law governing his tenure, he still had 9 years to go.17 A. In the judge’s favor is the fact that at the time that there was great repression in the country, he refused to succumb to political pressure and was not cowed into convicting accussed persons, against the evidence in political matters. We especially single out the case of Prof. Ngugi wa Thiong’o who had earlier been detained without trial and later brought before the judge on trumped up charges. The judge ordered his acquittal and release. 18 In the final analysis, taking account of all the information properly before it, the Board with one dissent has come to the conclusion that the Honourable Emmanuel Okello O’Kubasu is not suitable to continue to hold the position of a Judge. This is because in terms of section 18(2)(d)(i) and (ii) of the Act, judges are required to determine cases with fairness, “including a demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views.” 19 Further, under section 18(2)(c)(iii), they are expected to bear themselves with integrity, “which includes the ability to understand the need to maintain propriety and the appearance of propriety.” It is the Board’s view that the preceding paragraphs have shown that the Judge has failed to meet these two basic requirements.20 At the same time, the Board wishes to highlight that it received no sustainable information establishing corruption on the part of the judge. The Board also notes the long service that the judge has given to the judiciary. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society to benefit from the contributions that the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past. 20. The decision is subject to Review under Section 22 of the Vetting of Judges and Magistrates Act, which provides the right to apply for review and the grounds upon which the judge may seek a review before the Board. Otherwise the decision is final and Not appealable.
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Post by job on Apr 27, 2012 18:11:59 GMT 3
BOOTED! IV. HONORABLE JUSTICE JOSEPH NYAMU Justice Gregory Nyamu 1) After graduating from the Kenya School of law, one of the first steps that Justice Joseph Gregory Nyamu took in his legal career was graduating from the University of London with LLB Honors. It marked the first of many steps as his career developed from working at the Attorney General’s office as a State Counsel, performing as Assistant Town Clerk in Nairobi in the early seventies, as a Senior Partner in the law firm of Hamilton Harrison & Mathews founded in 1902, being a judge of the High Court of Kenya(appointed in December 2002) and being the presiding judge in the Constitutional and Judicial Review Division of the High Court of Kenya for Seven (7) years, and elevated to Court of Appeal in April 2009. 2) No challenges were made to the general skill and capacity of the judge. Indeed, from his record and the way he conducted himself at the interview, it was clear that the judge exudes competence and authority. He has a fertile legal mind and expresses himself forcefully and fluently. He has a reputation for being a hard worker who delivers his judgments on time. No suggestion was made to indicate that at any time he had conducted himself in a corrupt manner while on the bench. He came through as an energetic judge eager to move away from reliance on pure technicalities towards a more substantive and rights-based approach. It appeared that he had developed a special interest in Alternative Dispute Resolution (ADR), and done pioneering work in Kenya with regard to ADR and Arbitration. 3) The Board considered three challenges made to his suitability to continue to serve as a judge. The first related to a dispute over the transfer of a piece of land at a time when the judge was still a practising advocate. The second concerned allegations made by an advocate of discriminatory and inappropriate behavior by the judge towards him in court. The third concerned the judge’s alleged role as a ‘gate-keeper’ in the High Court, and focused on a series of decisions he had given which were said to manifest a lack of impartiality coupled with a pattern of using judicial authority to grant impunity to the politically powerful and the wealthy.4. Complaints were received from an Advocate that the judge acted in a discriminatory way against the complainant, disqualifying himself when he should not have done so, and refusing to disqualify himself when he should have done so. The Board found that, although the situation is manifestly unsatisfactory, for purposes of the Vetting process the judge’s responses were adequate. The Board noted that the same Advocate had laid complaints against every judge in the Court of Appeal, all basically to the effect that they are unfairly hostile to him and discriminate against him and therefore against his clients. 5. The challenge that occupied the greater part of the interview related to a complaint concerning a dispute over ownership of a piece of land. A former owner of the property alleged that while in private practice as an advocate, the judge had represented to her, a widow who had inherited a large piece of land, that he would introduce her to a group of golfers who would purchase 200 acres of the land. He had gone on, she claimed, to convince her to subdivide the land into two parcels, and then had fraudulently transferred one land parcel measuring 80.94 hectares to a limited liability company, of which he was a Director. In his response, the judge raised a preliminary objection, stating that the matter was due to be dealt with in a pending civil case before a competent court and for this reason the complaint could not fall for consideration before the Board. He argued that the company had filed a defence in the civil suit filed by the complainant denying liablilty, and the matter was sub judice and had to be excluded from consideration by the Board. The Board rejected his preliminary objection, stating in a considered written response that the sub judice rule did not preclude it from inquiring into the complaint before it, subject to certain safeguards that it spelt out. Stating that he would respect this ruling, the judge then submitted a substantive response. Although there were some points of overlap between the accounts given by the former owner of the property and the judge, at their core there was a major conflict over the authenticity of documents submitted by the judge. One of these purportedly contained both her signature and his to the effect that she had agreed to transfer the land in dispute to the company and a series of payments he claimed to have made over a period of years in respect of the transfer. The former owner flatly denied that she had either signed the first document, or been aware of the others. All the documents, she claimed, were forgeries.6. After carefully examining the testimony of the former owner and the judge, and reflecting on the submissions made by their respective counsel, the Board has concluded as follows;a) There were certain manifest inconsistencies in the accounts given by the former owner, for which she offered various explanations. At the same time, there were aspects of the testimony given by the judge that were not entirely convincing. The Board decided that it was neither called upon nor in a position to determine which one was telling the truth. That was a matter best left to the High Court, which was the body best equipped to deal with it. In the circumstances, the Board declined to make any finding on the merits of the complaint. Similarly, the mere fact that a serious accusation of deception followed by fraud had been made against the judge, could not be put in the scales against the judge in respect of his suitability to be a judge. b) The matter did not, however, end there. Quite independently of the issue of the nature of the transaction, and whether the judge had behaved dishonorably towards the former owner of the property, questions arose as to whether his conduct in the process was professional and becoming. In this respect, there were three matters of concern. i) The first related to an apparent lack of candour in the manner in which the judge completed the questionnaires sent to him. In response to the query whether or not there was any pending civil litigation against him, the judge’s response was ‘Nil against me as a person. None whatsoever’. In a purely technical sense, this might have been an accurate answer, in that nominally he was being sued in his capacity as a director of the company. The reality was that he was the effective litigant. The company had no other business outside of its (disputed) ownership of the land. He was the Company’s director, and owned one of the Company’s two shares, the other belonging to his brother, apparently a silent participant in the whole enterprise. In practice then, the judge was the company and the company was the judge, and effectively the case was between the former owner and the judge. Given the fact that the questionnaire was being completed for purposes of vetting, a more candid and less technical response would have been to acknowledge that there was a civil case pending in which he, in his capacity as a company director, was a litigant. At the time when the main transactions in issue took place the judge was an advocate practicing in a well-established firm with a reputation for high professional standards. On his own version, the manner in which the transactions were processed left a great deal to be desired. The scraps of paper produced by the judge might technically have been sufficient to pass ownership at the time they were written. But they were hardly in the form that one would have expected of an advocate purchasing a relatively large portion of land for investment purposes. Ordinarily, land transfers of this kind would have been recorded in a written, properly-executed and appropriately attested Agreement of Sale. Furthermore, in addition to stating clearly the sale price the agreement would have set out clear terms of payment, dealt with the interest that would accrue while the capital amount was being reduced and provide for appropriate security should there be default. Instead, the unwitnessed documents produced by the judge had been shabby in appearance and shallow in legal effect, providing none of the terms that would normally protect the seller of land. 7. There were two other respects in which there appeared to have been a lack of forthrightness by the judge. The first related to the nature of the company. After hearing all the testimony, the Board was left with the impression that, far from being an active trading company in which the judge had an interest, it was nothing more than a nominal cloak to cover his personal ownership of the land. The judge in fact produced no evidence that the company had passed any resolutions concerning the acquisition and use of the land. Secondly, the judge’s statement in the Civil Court and to the Board that he had placed the balance of what he owed in an escrow account turned out to be inaccurate. The essence of escrow is to guarantee that a disputed sum of money is irretrievably secured and will be available for immediate payment should a defined event, such as making a particular court finding, occur. In reality, the judge had simply deposited an amount of Kshs. 20 Million in a Fix deposit account, with his signature alone being sufficient to move the money. This was not true escrow, and should not have been described as such especially by a Judge. 8. The Board concluded that the manner in which the judge had conducted himself in relation to the dispute, first as an advocate, and then when he was a judge, fell below acceptable standards in terms of professionalism and candour.9. The third challenge related to the judge’s role as an alleged ‘gate-keeper’ in the High Court. Although the judge objected to the appellation, and a possible implication of connoting something untoward in his conduct as a judge, he acknowledged that he did enjoy the special confidence of the Chief Justice at the time. The result was that whereas other judges would be moved around the country from time to time, he remained stationed in Nairobi, where he was given special responsibility for reporting on Constitutional and Judicial Review matters to the Chief Justice. He was in fact the first presiding judge of the Constitutional and Judicial Review Division of the High Court, and heard a number of controversial matters in which the public had a great interest.10. Before dealing with the actual role the judge played as a ‘gate-keeper’, reference needs to be made to the manner in which the judge lambasted the person who had allegedly been the initial author of the description. Rather than engage directly with the criticism, the judge attacked the critic; this was a mission of revenge, he informed the Board, pay-back time, by someone who did not play in the same legal league as the judge. In the Board’s view, this assertion was unbecoming of a judge the more so in that it was not made in an unguarded moment but in documents specially and exclusively written for the Board, indicating a disconcerting lack of balance and an inability to engage with and response to objectively to criticism.11. As mentioned above, in considering the judge’s role as head of the Constitutional and Judicial Review Division, the Board noted that the judge had done much to shift the judiciary from a narrow, technicist view of the law to a more purposive and value-driven one. Yet the actual record of the judge in Constitutional and Judicial Review matters, indicated that this innovative and distinctive mode of legal reasoning, while welcome in itself if properly anchored in legal text, would be no guarantee that adjudication by the judge would enhance public confidence in the judiciary. Indeed, a perusal of a number of significant public law matters handled by the judge established that his expansive approach straddled two distinctive periods of his stewardship. The first reflected a phase of independent judicial thinking which was calculated to encourage public expectations that the courts would function in an objective and impartial manner in which all would be held equally accountable before the law. The second period, however, was to be quite different. 12. Thus in 2004, in Mwolulu, he was one of the authors of an order requiring the Goldenberg Commission to summon for questioning a number of prominent personalities, including the former President, before it wound up its activities. In the following year, he was presiding judge of the Division that showed its independence by upholding the validity of the Referendum. In February 2006 he went on to refuse a stay of criminal investigation proceedings in the first Murungaru case, emphasizing the need for law enforcement agencies to have reasonable workability to attain the values of crime’s detection. On the next day he went even further by underlining the hardships which a Stay would cause to law enforcement, stating that any delay in the conduct of investigations, especially financial, could result in the outcome being defeated, permitting funds to be swiftly transferred to destinations immune to any Court tracing orders. All these decisions manifested the degree of balance, independence and impartiality the public would expect of the judiciary. In each case, the language used was temperate, the decisions accorded with common sense and the results were in keeping with international best practice. 13. From the well-known Saitoti case later in 2006 onward, however, a marked metamorphosis in language, style and judicial philosophy became evident. Generally speaking, commissions of inquiry are set up by the executive branch to investigate matters of public controversy and concern. Their reports are made to the political branch to be dealt with by the political process. Traditionally, then, a court of review will deal only with questions of their powers and the fairness of their processes, and not with the substance of their findings. The Court presided over by the judge, however, broke with precedent in a number of ways. It dealt robustly and extensively not only with issues of jurisdiction and process which other courts had done, but with many findings of the Goldenberg Commission, which it quashed. In doing so, it issued orders not against the Commissioners, who were no longer functioning, but against a document – the Report, and it did so not against any decisions made, but against factual findings. The language used in the order was intemperate and gratuitously disrespectful. As far as public confidence in the courts was concerned, the most startling aspect was the issuing of a permanent stay of prosecution against Mr. Saitoti on the basis that because of the long delay and the wrong findings made by the Goldenberg Commission, Mr. Saitoti would not be able to receive a fair trial. The public could be forgiven if it felt that instead of showing at least a minimum of judicial resolve to keep open the possibility of appropriate accountability for at least one of the major figures whose name had featured prominently in relation to the huge scandal, the judgment drove the last nail of impunity into the coffin against him. The Githunguri Case was clearly distinguishable. The implication that no Magistrate in the country could give a fair judgment was insulting and unacceptable. In any event, the appropriate time and place to challenge any prosecution would have been at the start of proceedings, where the Magistrate concerned could have first heard all the arguments by Mr. Saitoti as well as by the Attorney-General. 14. Not all judges agreed with the far-reaching and novel Saitoti approach to nullifying attempts, even if belated, to hold a senior public figure to account for possible corrupt behavior.15. When in Koinange, later in 2006, the judge gave a temporary stay prohibiting the Attorney-General from prosecuting the applicant on basis of the evidence gathered by the Goldenberg Commission, the three-judge High Court bench who ultimately heard the application set aside the Stay declaring that the multiplicity of such motions represented gerrymandering through the court corridors, contributing nothing but delay in dispensing justice to the individual accused as well as the community of Kenyans. In their view, the issue whether the disbursements of Kshs. 5.8 billion was illegal should be determined in a proper trial and not be Stayed by the court merely because they related to matters raised four, eight or more years previously. The contrast could not have been starker with the statement made in Saitoti that the Attorney-General could not say after 10 or 15 years that he had discovered new evidence. 16. Had the Saitoti case stood on its own, it could perhaps have been interpreted as an aberration, or even as one of those matters that had to be decided on its own very peculiar facts. But a series of decisions were to follow in which, one after the other, attempts by prosecuting authorities to hold prominent business or political figures to account were frustrated by rulings given by the judge. Moreover, in each case, the rulings appeared to strain the law to such a manifest degree to produce impunity as inevitably to raise doubts in the public mind in relation to the impartiality of the Courts. 17. In Nedermer, the judge issued orders that stopped investigations of, and returned passport to persons whom the Kenya Anti-Corruption Commission (KACC) sought to have investigated for alleged economic crime, namely, having robbed the Kenyan Treasury by getting payment for bogus schemes to acquire military technology. In addition, the judge ordered that no information be published concerning their being suspected of economic crimes and that they not be arrested or charged. The Board found it strange that the judge could base his decision on the notion that the sanctity of arbitration proceedings at the Hague totally exclude criminal investigation by Kenyan authorities of alleged fraud at both ends underlying the whole international transaction. The bizarre reasoning employed was followed by a bizarre initiative by the Court that, uninvited to do so, insisted on suppressing public disclosure of the details of the contract, even though the military authorities preferred to bring them out. Even more startling was the way the court imposed its own views over that of the Secretary for the Defence in terms of how much information about the case should be given to the public. Normally, it would be the Defence authorities who would seek to withhold information from the public in the national interest. A court might then take a peep at the information, and have the last word as to whether or not the national interest would truly be undermined by public disclosure. In Nedermer, the position was reversed – the military authorities were happy for the criminal law to take its course and were eager to lift the cover of secrecy claimed by enterprises it regarded as bogus. Once more, world -wide precedent was ignored and public confidence in the judiciary inevitably received a further dent.18. Then in Khamani (2007), one of the Anglo-leasing cases, the judge struck down measures aimed at preventing the flight of persons suspected of corruption and serious economic crimes. If the outcome of the case was necessitated by the law, the result would have been unfortunate but inevitable. In the Board’s view, however, the outcome was achieved by a strange and tortuous reading of the law. Accepting that there was a pressing social need to control corruption and economic crime, the Court correctly stated that the right to a passport could only be limited under the then Constitution if the limitation fell within four prescribed categories. What was strange about the judgment, however, was its reading of these four categories in so narrowly a way to exclude from the words “public morality” and “public order”, corruption on a massive scale reaching into the highest levels of the State. Indeed, it is difficult to conceive of anything more deleterious to public morality and public order than the involvement of the institutions of the State itself in criminal corruption. Later, First Mercantile Security case, heard later in that year, the judge gave an initial stay of prosecution in another Anglo-leasing matter. The Board noted that Lady Justice Lesiit upheld the stay, but that her decision was overturned very recently on Appeal. 19. Finally, the thread of what must have appeared to the general public as being a judicial process of furthering the untouchability of those in high office, was lengthened and strengthened by the decision in Kotut. The judge’s decision in that matter effectively immunized the then Governor of the Central Bank of Kenya against prosecution for allegedly permitting the fraudulent movement out of the country Kshs. 3.5 billion. The Governor’s claim that, although he had known of the movement of the money, he had had no knowledge that the process was fraudulent, was precisely the sort of issue that should have been left to the trial court. Instead, the judge’s decision had pre-empted any possibility of the Governor being put on trial. The Board was not convinced that the mere fact that negative findings had been made against the Governor by the Goldenberg Commission, would inevitably have prevented a Kenyan Magistrate from dealing with a prosecution against the Governor with an open mind. Again, the Board noted the use of relentless repetition rather than calmly-stated logic, as the basis for the judge’s ruling, once more indicative of a lack of balance.20. The judge was asked to comment on the claim made by his critic that decisions like the above had encouraged public perception of a judiciary shielding prominent personalities from corruption charges. His answer was two-fold. In the Khamani case, he said, the order that passports be returned would in fact have aided investigations and prosecutions, because the alleged masterminds could now use the passports to return to Kenya to face the music. Secondly, the judge pointed out that he had given decisions against the government in cases involving the environment, as well as one where he had nullified a huge award of costs that poor people were being called upon to pay. In the Board’s view, these responses evaded the question put to him, and failed to show appreciation of the damage done to public expectations of judicial impartiality caused by the series of judgments referred to above.21. After weighing up all the pro’s and con’s in the judge’s career as reflected in all the material before it, the Board has unanimously decided that the judge is not suitable to continue to serve. That, therefore, is the determination of the Board.22. At the same time, the Board wishes to highlight the absence of any instances relating to corruption in regard to the judge. The Board also notes that the judge has made a signal contribution to the development of Alternative Dispute Resolution (ADR) and arbitration. The Board therefore unanimously recommends that appropriate ways be found, if the judge so wishes, for society in Kenya and abroad to benefit from the contributions the judge will still be able to make in future in terms of facilitating access to justice and learning from the positive and negative aspects of judicial life in the past. 23. Section 23 of the Act provides the right to apply for review and the grounds upon which the judge may seek a review before the Board. Otherwise the Determination is final and not subject to appeal.
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Post by OtishOtish on Apr 27, 2012 18:39:48 GMT 3
Short and to the point. I like it.
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Post by job on Apr 27, 2012 19:30:37 GMT 3
DETERMINATION CONCERNING THE OTHER JUDGES
Having taken all relevant considerations as set out in the Introduction the Board found that the following judges are suitable to continue to serve . These are
1. Honourable Justice Philip Tunoi
2. Honourable Justice Philip Waki
3. Honourable Justice Onyango Otieno
4. Honourable Justice Erastus Githinji
5. Honourable Justice Alnashir Vishram
However, in the case of Justice Vishram the Determination was by a majority and the Dissenting Judgments and reasons therefore of three of the nine members has been availed to the Judge.
One of the tasks imposed by the Act on the Board is to examine the work record of each judge, including past adjudications. It is in this connection that the Board was invited to look at a decision of the Court of Appeal in a well-known case in which Mr S K Macharia, a prominent business person, had been the litigant.
Mr Macharia contended that three of the judges being interviewed by the Board, who had sat in the matter, should not be considered suitable to remain on the Bench. This was because of what he said was the manifestly biased manner in which, overturning a High Court ruling in his favour, they had made findings against him that had flown in the face of clear evidence that he had been unlawfully coerced, by pressure emanating from the then President, to pay Ksh56 million to the Kenya Commercial Bank.
The Board must commend Mr Macharia for his steadfastness in pursuing the matter and assisting the Board with comprehensive materials to back up his contentions. He presented his arguments in a forthright manner and responded with dignity to prolonged questioning by counsel and Members of the Board, as well as to observations by the judge. Much of the material he placed before us was taken from the record in the appeal. It told a painful story of a hard-working and creative entrepreneur not only being forced by economic necessity to surrender a potentially profitable paper-making firm, but also compelled as a result of political interference to pay out what was then a huge sum of money in a manner that unjustly enriched the Bank.
At the same time, much of the most telling detail of a story that was necessarily lengthy and complex, had not been presented in evidence at the trial. Furthermore, the issue, which turned essentially on questions of fact, is still potentially live. One of the judges stated that if he had had knowledge of all the information now placed before him, he would in all probability have given a different decision.
This judge proposed that the matter be referred to the Supreme Court, which could hear it if it could be shown that a grave miscarriage of justice was involved and it was in the public interest for the appeal to be heard.
The Board is of the view that it is not itself in a position to make final determinations on the issues of coercion raised. The decision of the Court of Appeal was given in 2008, when no question of seeking to curry favour from the former President could arise. And central to the decision was a document signed by Mr Macharia, on the advice of his advocate who was noted for his courage and willingness to challenge injustice.
In the circumstances, the Board expressly leaves open the question of either the correctness or the propriety of the decision supported by the three judges. This is a matter that can be dealt with if application is made to the Supreme Court, where the full panoply of evidence can be considered and argument from the side of the Bank can also enter the reckoning.
These then are the Determinations of the Board in regard to the 9 judges of the Court of Appeal. The Board will interview the remaining two judges of the Supreme Court who are subject to vetting namely Justice Ojwang’ and Justice Ibrahim on 26th and 27th April, 2012 respectively, followed by judges of the High Court.
SHARAD RAO ROSELINE ODEDE ABDIRASHI ABDULAHI FREDERICK CHOMBA MEULEDI ISEME NGOTHO WA KARIUKI JUSTUS MUNYITHYA ALBI SACHS GEORGINA WOOD.
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Post by Daktari wa makazi on Apr 27, 2012 20:21:35 GMT 3
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Post by afrigun on Apr 28, 2012 0:32:33 GMT 3
I am impressed that the Boad has taken the time to fully explain the procedure taken and the rationale for their findings or declartions. Very refreshing and reduces the chances of their being accused of witchunting tbe judges or acting improperly. The procedure the have adopted should assist thoze other vetting panels out there. Having read their decisions it is very hard to fault them, and it i clear that these judges deserve to go. I wish, however, that they had also published their full decisio relating to the other judges found to be fit to continue, especially where there was dissent, like Virams case.
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Post by afrigun on Apr 28, 2012 0:38:02 GMT 3
quote from the report emphasising the need for evidence of corruption to be aviled:-
33) It should be noted that as far as Court of Appeal judges are concerned, in spite of widespread public perceptions of continuing corruption in the judiciary, relatively few complaints of bribe-taking were received in regard to the judges of the Court of Appeal. In the nature of things, people who offer bribes are unlikely to come forward, knowing that they may both face sanctions for what they have done and see judgments granted in their favour set aside. This does not, however, allow the Board to act on the basis of public perceptions of bribe-taking in general. It must be guided by the evidence in each particular case. Should it happen, then, that an individual judge who is widely accepted as having been “on the take’’ ends up being declared suitable to remain in office, that would be the result of the requirement to base the Board’s determination on evidence, and not on a general perception. If those who know of corrupt behavior do not themselves come forward, they cannot complain when persons they are sure are corrupt, pass through the vetting net. Conversely, it would be grossly unfair to tarnish those judges who have conducted themselves honorably for years and decades, because some of their fellow judges – we do not know exactly who – might have taken bribes. Finally, it should be noted that in the Court of Appeal, judges sit in panels of three or more, which reduces the scope for an individual judge to influence an outcome corruptly.
34) The Board was aware of the fact that, even though early retirement rights would not be affected, removal of the judge from the Bench would have a profound impact on both the judge’s professional career and his general reputation. Given the pressure of large numbers of interviews having to be conducted in a relatively short period of time, it was particularly important not to lose sight of the need to uphold the principles of natural justice. In addition, the Board was conscious of the fact that the Constitution and the Act required it, and it alone, to have both the first and the final word on the suitability of the judge. All of these factors underlined the importance of the Board weighing the evidence before it with special care, and of ensuring that its evaluations were solidly based on the material before it – the need to be resolute could not override the necessity to be principled and fair. Indeed, restoring public confidence in the judiciary required the Board to function in a manner that was simultaneously firm, fair and expeditious. It had to conduct itself without fear, favour or prejudice. In a word, the vetting process itself had to be just.
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Post by jakaswanga on Apr 28, 2012 10:32:57 GMT 3
[ Jakaswanga,The little I know is that there was no vetting initially. It was just Kibaki's inner cabal technocrats with some hopeless chaps from the PM's office picking up a few candidates for Kibaki and Raila. The Kibaki people argued the constitution only provided for some form of a panel and that the JSC was not mandated by law to vet the choices for the Chief Justice. They argued Kibaki was still the appointing officer for the CJ and can appoint anybody he wants with token consultation with the PM. In fact they said Kibaki can consult but does not have to accept the PM's input. In other words Kibaki informing Raila of his choices was enough. Consultation does not mean consensus they argued. Poor things. Then Kibaki tried to con Raila by making the appointments while Raila was in Addis or some place. They called Raila's phone to give him the info. Raila's then good friend Miguna advised the PM not to take the call from State House since they knew Kibaki had cooked up the list. State House was furious that the PM refused to take their call and went ahead to nominate Visram and co and gave the PM the finger. Big mistake. The rumour was that Raila wanted Riaga Omolo appointed on grounds that he was the senior most.The civil society then took the battle and lo and behold the PM wrote to the Speaker of the House stating very clearly that he was not party to the treachery going on with the nominations. Then all hell broke lose. Kibaki's henchmen rubbished everything. Since they are used to having their way they thought people will whine and complain and then shut up and Kibaki will get his wish. The Uhuruto mob told Kibaki they have the numbers in parliament to bulldoze anybody or anything chosen by Kibaki. They thought the mta do culture was here forever. Big blunder. The Speaker ruled to reject Kibaki's nominations and the mindless "numbers" with their pockets already full of bribe money never voted. The court ruled against the same and of course Kibaki had to go back with his tail in the right place and withdraw the nominations. The rest as we know is history. The funny thing is that because of the Kibaki's stubborn nonsense everybody supported the move when the JSC was handed the job to vet the CJ even though technically they were not mandated by law to do that in the first appointment. It is Kibaki's goof that handed the job to the JSC. During the JSC rambo in the jungle most tribalists even here in Jukwaa thought the adongos would support Riaga Omolo. They were wrong by a mile. Riaga is a man of the establishment. He is status quo proper. We went with Dr. Mutunga and the saga of the earing became the rallying call of the status quo chaps. At that time the status quo chaps would have wanted Riaga Omolo with ten studs in the ears and twenty on the nose. He looked that much better for them compared to Mutunga but it was too late. Kenyans won that battle. Now we are in phase two of the clean up. This is harder than cleaning up Nairobi River but it is being done. With time we will reach the Mugumo tree called the police force with our million razor blades. That is the epicentre of impunity and treachery in the country. Sooner than later they will meet the razor blade. Of that I am sure. Incidentally after the JSC tore the heart of the status quo with the CJ choice the honchos in charge have resorted back to these unaccountable so called panels to pretend to be living to the constitutional requirements for transparency in appointing public officers. Even after they make their not so good choices, Kibaki is still trashing that and choosing the weakest possible candidates(NEMA and the NPSC). The JSC did not give Kibaki any room for mischief. They gave one name for the CJ, one name for the DCJ and the exact number for the SC. That is how you deal with unrepentant political crooks. You give them zero room for mischief. AdongoThanx for this explanative. After reading it, I could not resist going some more through Jukwaa's archives, to visit how the run to the CJ's nomination was debated the honourables here! I found a wealth of discourse! I think it would be good if we of Jukwaa ocassionally looked back with a sense of humour. I wont mention names, but the archives gave me a fair idea of who the folks might be whom you describe as 'the tribalists of jukwaa' in the above post! It looked like they expected these nominations to be 'tribal trade offs' between Raila and Kibaki's court... and could not understand why Raila [even if through pressure of chaps like the hateful Miguna] would still make noise and refuse, once he had been given his Luo [bone to gnaw] in the list! I am watching what the new President of Malawi is doing. She just ordered a review into the recruitment protocols which seem to have brough up only Mutharika's henchmen to top posts! [Some people say she is witch hunting and it is bad for stability!] Perhaps the next president of Kenya, if progressive, will review some of Kenya's too! Like those KRA appointees of Uhuru! [Caution is indeed necessary: Kibaki used the same excuse to fire lots of people, only to replace them with his incompetent and equally thieving cronies. And it further alienated the Kalenjin who bore the brunt of the purge!] These are tricky times, needing level heads. But things which must be done must be done. [Like my father used to say when we had to clean abila [sheep-pen] full of fleas and manure!
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Post by Daktari wa makazi on Apr 29, 2012 16:23:32 GMT 3
The overall aim of the vetting in noble. Judges must be above reproach. But, I am concerned about the objectivity of the vetting board.
I am not sure Prof Ngotho wa Kariuki could be said to be objective. The same judges he is now vetting jailed him. Kariuki was detained without trial between 1986 and 1988 and charged with sedition between 1990 and 1992. Can he really say he has no axe to grind with them?
Sharad Rao has even more history to concern me. He was a poacher tenured gamekeeper.
He was appointed to the position of Director of Public Prosecution in the 1980 under the then Attorney General Charles Njonjo. James Karugu as the first indigenous Kenyan to hold the post. Karugu was on April 21, 1980 appointed Attorney-General to replace Njonjo, who was quitting the civil service to join politics. Karugus successor to the post by . Mr Sharad Rao was appointed on June 30, 1980.
He led the first post-independence treason trial of the late Andrew Muthemba. Interestingly, Rao prosecuted dissidents opposed to Moi before finding himself on the wrong said of the law.
Despite being a DPP, Rao faced criminal charges. First, he was accused of interfering with investigations into an industrial action taken by the Bank of Baroda and failure to prosecute bank officials of wrongdoing.
Lawrence Sifuna tabled documents in Parliament that indicated that both Rao and an assistant commissioner of police, Joginder Singh Sokhi enjoyed an overdraft facility of Sh1 million [ in 1980, this is huge amount of money] at the bank to back up claims that the two had an interest in the case in which some of the bank employees had been sacked for allegedly leaking information on how the bank was allegedly contravening Foreign Exchange Control Act.
Second, he was charged with selling drugs of low quality to Divisions of Disease Control through Elys Chemicals where he was one of the directors. He was never prosecuted because he was by then out of the country.
Rao like Karugu faded into oblivion. Only for him to surface locally as chair of the judges vetting board.
With such history, I question if that man with such a low integrity was best suited to vet the judges many of whom he questioning their honour.
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Post by tnk on Apr 29, 2012 18:42:43 GMT 3
The overall aim of the vetting in noble. Judges must be above reproach. But, I am concerned about the objectivity of the vetting board. I am not sure Prof Ngotho wa Kariuki could be said to be objective. The same judges he is now vetting jailed him. Kariuki was detained without trial between 1986 and 1988 and charged with sedition between 1990 and 1992. Can he really say he has no axe to grind with them? Sharad Rao has even more history to concern me. He was a poacher tenured gamekeeper. He was appointed to the position of Director of Public Prosecution in the 1980 under the then Attorney General Charles Njonjo. James Karugu as the first indigenous Kenyan to hold the post. Karugu was on April 21, 1980 appointed Attorney-General to replace Njonjo, who was quitting the civil service to join politics. Karugus successor to the post by . Mr Sharad Rao was appointed on June 30, 1980. He led the first post-independence treason trial of the late Andrew Muthemba. Interestingly, Rao prosecuted dissidents opposed to Moi before finding himself on the wrong said of the law. Despite being a DPP, Rao faced criminal charges. First, he was accused of interfering with investigations into an industrial action taken by the Bank of Baroda and failure to prosecute bank officials of wrongdoing. Lawrence Sifuna tabled documents in Parliament that indicated that both Rao and an assistant commissioner of police, Joginder Singh Sokhi enjoyed an overdraft facility of Sh1 million [ in 1980, this is huge amount of money] at the bank to back up claims that the two had an interest in the case in which some of the bank employees had been sacked for allegedly leaking information on how the bank was allegedly contravening Foreign Exchange Control Act. Second, he was charged with selling drugs of low quality to Divisions of Disease Control through Elys Chemicals where he was one of the directors. He was never prosecuted because he was by then out of the country. Rao like Karugu faded into oblivion. Only for him to surface locally as chair of the judges vetting board. With such history, I question if that man with such a low integrity was best suited to vet the judges many of whom he questioning their honour. sadik you gotta love jukwaa now that you mention it, i had something knocking the back of my head about Sharad Rao but i could not quite put a finger to it. i now remember that case with Baroda bank, there was quite a furore and it got lots of negative press thereafter, but that was a while back so i dont remember too well. for those who dont recall baroda bank was the chief bank for the highly moneyied indian elite in kenya. it was an economic fortress and was the preferred channel for that elite to handle its foreign needs (covertly?) anyhow, overall i think the vetting board has done a thorough and great job, been fairly transparent and consistent in its findings. also, i cannot say i share the view that some of them may be driven by personal vendetta because the reasons provided by that board resonate well with what many of us hoped for in a reformed judiciary but nevertheless, and oh yes, some of them may have a skeleton or two in their closets. i think its important to bring up all these skeletons whenever opportunity presents itself. too many kenyans pretend to be "clean"
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Post by jakaswanga on Apr 29, 2012 18:57:17 GMT 3
I am not sure Prof Ngotho wa Kariuki could be said to be objective. The same judges he is now vetting jailed him. Kariuki was detained without trial between 1986 and 1988 and charged with sedition between 1990 and 1992. Can he really say he has no axe to grind with them? This point is valid. It must be said we are banking on his professional integrity, and the strength of his character to resist negative feelings, like those of revenge! But it would be a very high standard set to bar him on this account. Sharad Rao has even more history to concern me. He was a poacher tenured gamekeeper. (....) (...) With such history, I question if that man with such a low integrity was best suited to vet the judges many of whom he questioning their honour. Sadik,I think the man is disqualified. And given law is this profession where there is never a shortage of qualified personel, the sooner he is challenged on his sinful past and asked to fall on his sword, the better.
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Post by Daktari wa makazi on Apr 29, 2012 19:10:22 GMT 3
Tnk and jakaswanga
I have no problem with the vetting process. There are things that came out on the judges from which I could dismiss them.
My worry is we, as kenyans, belittle objectivity, and think it does not matter. Well it does as any judgement process done without objectivity is simply a biased one, actually or apparently. I doubt if relying upon strength of character or professional integrity is enough to overlook objectivity.In court cases, for instance, lack of objectivity for what reason is enough charge of bias, nullifying that decision.
What the vetting board should have done is appoint an external person with no link to Kenya as its chair, and let Rao and others help by becoming assisting counsel with no decision making role. One of the members is a retired England's Court of Appeal who is jurist of impeccable standard and could chair the board without any opaqueness hanging over them
Second, they should have done vetting in public, so that the public could witness the occasion. The business of private meeting is never clean!
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Post by gemagema on Apr 29, 2012 20:59:00 GMT 3
What about this Justice Njoki Ndungu lady? Does she have integrity? Is she clean? I heard that she serves the Kibaki/PNU crowd. Any truth to this accusations?
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Post by mwalimumkuu on Apr 30, 2012 5:04:13 GMT 3
The overall aim of the vetting in noble. Judges must be above reproach. But, I am concerned about the objectivity of the vetting board. I am not sure Prof Ngotho wa Kariuki could be said to be objective. The same judges he is now vetting jailed him. Kariuki was detained without trial between 1986 and 1988 and charged with sedition between 1990 and 1992. Can he really say he has no axe to grind with them? Sharad Rao has even more history to concern me. He was a poacher tenured gamekeeper. He was appointed to the position of Director of Public Prosecution in the 1980 under the then Attorney General Charles Njonjo. James Karugu as the first indigenous Kenyan to hold the post. Karugu was on April 21, 1980 appointed Attorney-General to replace Njonjo, who was quitting the civil service to join politics. Karugus successor to the post by . Mr Sharad Rao was appointed on June 30, 1980. He led the first post-independence treason trial of the late Andrew Muthemba. Interestingly, Rao prosecuted dissidents opposed to Moi before finding himself on the wrong said of the law. Despite being a DPP, Rao faced criminal charges. First, he was accused of interfering with investigations into an industrial action taken by the Bank of Baroda and failure to prosecute bank officials of wrongdoing. Lawrence Sifuna tabled documents in Parliament that indicated that both Rao and an assistant commissioner of police, Joginder Singh Sokhi enjoyed an overdraft facility of Sh1 million [ in 1980, this is huge amount of money] at the bank to back up claims that the two had an interest in the case in which some of the bank employees had been sacked for allegedly leaking information on how the bank was allegedly contravening Foreign Exchange Control Act. Second, he was charged with selling drugs of low quality to Divisions of Disease Control through Elys Chemicals where he was one of the directors. He was never prosecuted because he was by then out of the country. Rao like Karugu faded into oblivion. Only for him to surface locally as chair of the judges vetting board. With such history, I question if that man with such a low integrity was best suited to vet the judges many of whom he questioning their honour. Great job Sadik. When I saw Atwoli the other day make noise about the way the process has proceeded, I was left wondering what Atwoli was upto. I can now put one and one together, thanks to you. This Rao guy is another Sureta Chana of some kind.
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Post by phil on Apr 30, 2012 16:17:35 GMT 3
Justice Erastus Githinji replaces Justice Riaga Omollo as President of the Court of Appeal.
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