VETTING JUDGES AND MAGISTRATES

[job]

VETTING THE JUDGES

Needless to state, we need an independent and highly qualified Judiciary. Non-genuine players like Kibaki are only interested in a rush to refill the Judicial benches so as to ‘convince’ the ICC that they can handle the PEV cases (Appeal on admissibility case).



Kenya needs to shield this Judicial reconstitution process from the usual shenanigans and games of musical chairs. Despite the Vetting of Judges and Magistrates law, VETTING HAS TO START WITH US – THE PEOPLE! Let do our vetting here at JUKWAA even before the JSC and Parliament start their vetting roles.



If we don’t, then we shall end up with a similar conundrum we are having at the DPP. My frank assessment is that on the DPP nominee, we slept on the job, giving Keriako Tobiko a free pass to walk almost unnoticed into office. This fella has a crappy past and devious record - as exposed recently by Prof. Yash Ghai.



Kibaki hopes we sleep again, as they sneak in the old institutional rotten Judges and Magistrates.



Just as we applied pressure to have BOTH Justice Mutunga and Justice Baraza at the helm of the Judiciary, we must not relent in having only independent-minded people of integrity fill in the rest of the cast of Judges and Magistrates.



Let us cast the light upon the charlatans currently sitting in our rotten Judiciary. It’s time to illuminate and weed out the rot!



The obviously corrupt, the spineless guns for executive hire, and the incompetent beneficiaries of past patronage must be illuminated one by one, right here at JUKWAA, before the JSC and Parliament play their respective roles.

• How could Justice Evan Gicheru (the face of the old rot in Courts) have the temerity to even apply to be an Appellate Judge in the new Judiciary?

Evan Gicheru - wants to be an Appellate Judge in the new Judicary

• How could unqualified and inept beneficiaries of past patronage (with tons of character and credibility questions) like “Justice” Abida Ali Aroni continue cheapening Kenya’s new Judicial bench?

Abida Aroni - unqualified patronage beneficiary?

• How could conservative defenders of executive corruption, corporate disenfranchisement of poor Kenyans, and tribal hegemonic interests; represented by the likes of Justices Gregory Nyamu and Jeanne Gacheche continue bidding the interests of their parochial masters from within the Judicial bench?



• How could spineless toys for executive hire, perennially tagged to cheer Justice Nyamu’s former “Constitutional Bench” such as Justice Wendo and Justice Amukule continue displaying implausible lack of independence within the Judiciary?

Justice Wendo - robot and puppet of the old rotten order?

• How could anger-freaks prone to displaying deadly temper-outbursts and gun-threats (previously charged with attempted murder) - Justice GBM Kariuki pretend to still have the right temperament disposition and character suitable for a fair and reasonable Judge?



• How could extortionist fraudsters (with deep family interests in ghost pyramid-fraud-scheme) such as Justice Kaplana Rawal continue masquerading as model-Judges within our to-be-reformed Courts?

Kaplana Rawal - does she really know nothing about her family's alleged role in pyramid scheme extortions?

• Even in the lower courts. Can you imagine being stuck with the likes of Chief Magistrate Gilbert Mutembei who recently sanitized William Ruto from his Ngong land fraud case?

Folks, let’s vet these classless fellas.

[job]

Meet Justice Gregory Nyamu:

Justice Gregory Nyamu

• The epitome of the rot, as Judicial handyman for Kibaki and former Chief Justice Evan Gicheru. The two facilitated Nyamu’s swift ascent up the judiciary ladder (Presiding Judge in the Constitutional and Judicial Review Division of the High Court and later an Appellate Judge)



• Has made a long streak of controversial rulings on sensitive cases even in an attempt (without surprise) to stall the new constitution that now requires his vetting – remember his unprecedented ruling that declared the inclusion of Kadhi Courts in the new constitution as “unconstitutional”.



Despite the accolades from Kenyans (during the CJ and DCJ nomination process), the JSC did not even attempt to thoroughly interrogate Justice Nyamu’s colossal role in handling cases sensitive to the Kibaki administration – most touching on corruption.



If we talk about the Judiciary failing Kenya in the fight against corruption, then Justice Nyamu must be mentioned. This fella does not deserve to sit anywhere near a Judicial bench in Kenya.


I do not know what JSC members feared about Nyamu, whose past rulings have been as controversial and dumb-founding.



Here is part of Nyamu’s colourful record.



Anglo leasing related investigations



* (a) Using the High Court Bench, Justice Nyamu specifically barred the Ministry of Finance from hiring an audit firm to investigate circumstances surrounding one of the 18 Anglo-leasing type tenders – Midland Finance and Securities.



* (b) Justice Joseph Nyamu sanitized another Anglo Leasing type procurement deal by ruling that the Sh500 million contract in which English firms - Midland Finance and Securities and Globetel Inc - were allowed to supply the government with telecommunication equipment for the Administration Police in May 2003, was legitimate.



* (c) Using the Constitutional Court bench, Justice Nyamu gave former Internal Security Minister, Chris Murungaru, a constitutional breather over Anglo Leasing by stopping KACC from investigating the latter’s accounts. The ruling declared that Murungaru’s constitutional rights were infringed by KACC while pursuing 18 security related Anglo Leasing type contracts.



In one of these deals, specifically the Navy ship deal (where billions were lost through paint coronation of a luxury cruise ship into Kenya Navy colors and attaching a jua-kali ‘gun’ to it), Chris Murungaru named the President as the substantive Minister for Defence and categorically stated that no such procurement could have been undertaken without President Kibaki’s authorization.



This navy ship contract is also listed as one of the 18 security related cases that Justice Nyamu legally stopped the Ministry of Finance from hiring an audit into.



* (d) Justice Nyamu also gave Anglo Leasing masterminds, brothers, Deepak Kamani & Rashmi Kamani, using the Constitutional Court sitting alongside Justices Wendo and Emukule in June 22nd 2007, a constitutional breather by passing:

(i) A declaration that the ‘wanted persons’ publication made by the Kenya Anti Corruption Commission (KACC) of and concerning the Kamani brothers, was unlawful and in breach of their constitutional rights.

(ii) A declaration that in view of the adverse publicity surrounding the Anglo Leasing scandal the Kamani brothers cannot have a fair trial


(iii) An order directed to the KACC “not to harass arrest or prefer criminal charges against the petitioners arising from the Anglo Leasing affair or otherwise.”

(iv) An order directed to the Principal Immigration Officer, the Kenya Anti Corruption Commission, and the Kibera Chief Magistrates Court, requiring them all to delete any references to the Kamani brothers as wanted persons in relation to Anglo Leasing “or otherwise.”

2. Goldenberg related cases



(a) Justice Nyamu struck off the Goldenburg case against former Finance Minister, Prof. George Saitoti. Interestingly, as in the Kamani brothers Anglo-Leasing case, lawyer Fred Ngatia, was representing the suspect in Nyamu’s court.



In his parting shot, Justice Nyamu warned the Attorney General against interfering with Prof. George Saitoti’s rights:

Under S 3 of the Judicature Act and s 84 of the Constitution, this court is empowered to give such orders or issue such writs as would be necessary so as to secure the fundamental rights so that as hinted elsewhere if the applicant’s right to equality of arms has been violated or threatened by the Attorney General this Court would be entitled to issue an order of prohibition against the Attorney General.

(b) Justice Nyamu and accomplices went ahead to technically nullify all the work of the Goldenberg inquiry (Bosire Commission) rendering it irrelevant in future judicial proceedings.



(c) Justice Nyamu in similar fashion, struck off the Goldenberg case against former Central Bank Governor, Eric Kotut under the same ‘constitution rights’ grounds.




3. Tiomin case- Dec 19, 2006


Justice Joseph Nyamu, sitting in the High Court in Nairobi, gave a local subsidiary of a Canadian Mining Conglomerate, Tiomin Kenya Limited, go ahead to mine Titanium in Kwale District in Coast Province despite failing to adequately compensate evicted farmers of their land and properties at market value.



Ruling against challenge by Kwale farmers, Justice Nyamu said that a farmer, Rodgers Mwema Nzioka, was bound by a contract that was entered between the District Resettlement and Compensation Committee and Tiomin (K) Ltd, and therefore could not be allowed to back out of the contract.



Justice Nyamu added that the lease contract between the farmers and Tiomin, at a paltry cost of 80,000 shillings an acre, had an arbitration clause which the farmers had not exhausted prior to moving to court.



4.ODM Vs Safaricom IPO - Oct 31, 2007



In the controversial rushed sale of the Kenya government's 25% shares in Safaricom without following procedures laid down in the Privatization Act 2005, Justice Nyamu, sitting in the High Court, threw out the suit filed by three ODM legislators who sought a more transparent and regular procedure for disposing the shares (specifically via the Privatisation Act 2005).



It is noteworthy that President Mwai Kibaki had earlier assented to the Privatization Act two years prior to the shares disposal, but the then Finance Minister, Amos Kimunya, had refused to operationalize the Act, by delaying to publish it into law in the Kenya Gazette.



In dismissing the suit, Justice Nyamu argued that no illegality on the part of the government (or Finance Ministry) had been proved to warrant cancellation of the Initial Public Offer (IPO).

"Granted that the government is selling the silver of the house, but unless it is acting illegally, it is entitled to do so with finality and without interference in order to realise maximum public benefits," the judge ruled.

5. Orange Vs Referendum 16 November 2005



In October 2005, the CKRC and ODM accused Attorney General Amos Wako of publishing the draft constitution (Wako draft) illegally through unilateral insertions and deletions of the official draft that had been deliberated and passed through Bomas and the CKRC process.



In this case, a three-judge bench comprising Justices Nyamu, Emukule and Wendoh, ruled against ODM, setting stage for the 2005 referendum.



In their ruling, the judges asserted that "stoppage would fly in the face of 'national interest'".



A few days later, majority Kenyans (58%) acting in real national interest, invalidated the Wako draft constitution - by rejecting it at the referendum.



6. Suit against Parliamentary Service Commission by Mars group and others- 2008 & 2009.



In similar suits against the National Assembly & Parliamentary Service Commission, filed by various individuals and Groups challenging MPs exorbitant payments, allowances and refusal to pay taxes, Justice Nyamu has been sitting on the case that continues to drag.



The insinuation is that he is helping the government drag this case to forestall rebellion by MPs (against government) in case of an unfavourable ruling. Kibaki is still keenly intent on bribing MPs to occasionally enable him have his unilateral way..




In the past, while sitting as a High Court Judge, Justice Nyamu’s conduct and ‘exercise of arbitrary powers’ has also been querried by Appellate Judges.



Three Appellate Judges found it prudent reprimanding him in 2006 (publicly reported in a newspaper I will quote from).



Court of Appeal Judges Riaga Omolo, Samuel Bosire and Onyango Otieno took issue with a previous ruling made by Justice Nyamu. The Appellate Judges said they wanted to set the record straight on the division Nyamu called "the Constitutional Court"



They were ruling on an appeal filed against a ruling delivered by Justice Nyamu on case No1382 of 2003 involving Peter Ng’ang’a Muiruri and Credit Bank Limited. The ruling is available on the Kenya law reports website.



They said Nyamu assumed he was sitting in a court that had supervisory powers over all other courts. "Justice Nyamu’s decision was based on the mistaken belief that the Constitution created a Constitutional Court with supervisory powers over other courts," the judges said in their ruling.



As a Daily Nation report ( Sept, 14th, 2006) stated, the Judges also said "the Constitutional Court" was non-existent saying the Constitution established the High Court, Magistrate, Kadhis’ and Court Martial. "It is our view that Justice Nyamu considered this issue to give him opportunity of answering his critics and popularise his view and powers of his jurisdiction, " they ruled. "The law is not on his side,’’ they concluded.



It’s instructive to note that in most of Nyamu’s controversial rulings, he has been tagged along by Justices Emukule, Wendo and sometimes Justices Dulu and Maraga. The four therefore play the same status quo music, the beats that continue stifling our society’s progress.

Read more

jukwaa.proboards.com/index.cgi?action=display&board=general&thread=4183&page=2#ixzz1OTgnYAfm

[job]

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 – Phil, Reporter, Adongo, tnk, commes, Einstein et al., please apply your investigative skills and give us more about these Judges – the Aronis, Emukules, Wendos, et al - if we don't want to continue having them as our "esteemed" Judges.

[politicalmaniac]

Oh Boy, thanks job for this timely reminder!

Perusing the CVs of these corrupt and inept judicial mafiya lackeys left me with some gastric discomfort.

[Luol Deng]

You may not like Keriako Tobiko, but his 'experience' and academic qualifications were far stronger than those of his opponents.

As for Tobiko & Aroni, anyone who had eyes wide open during the 1st constitution amendment (Bomas) exercise would have noticed that they were the principal opponents of Prof. Ghai. They applied every trick on the book whether fair or foul. So, we'll have to wait and see. I wasn't surprised when they got government appointments after that.

Incidentally Nancy Baraza was also a commissioner fronted by the faiths led initiative. So, it would be counter-intuitive for the "church" to oppose her now when they didn't raise a voice when she was a leading member of a religion+civil service fronted initiative. As for my opinion of Nancy Baraza....Other than in a debate when she completely owned Isaac Ruto circa 2001, there wasn't much to write home about on her tenure as a commissioner.

[job]

www.nation.co.ke/News/politics/MPs+take+on+clerics+at+Mutunga+hearing+/-/1064/1176200/-/item/0/-/sij8jk/-/index.html

Constitutional lawyer Yash Pal Ghai and former Transparency International director Gladwell Otieno said Mr Tobiko was not qualified for the office.


“We do not actually know according to what criteria Tobiko has been nominated for this crucial role. We are of the view that this role is more important than that of the Chief Justice and his deputy in addressing the impunity that has been in this country,” Ms Otieno said.


Prof Ghai questioned Mr Tobiko’s competence, citing his performance at the defunct Constitution of Kenya Review Commission (CKRC).


While he was full of praise for Dr Mutunga and Ms Barasa, Prof Ghai said Mr Tobiko was lacking in principle and integrity.


“I believe the office of the DPP is perhaps even more important than that of the CJ. Mr Tobiko does not satisfy the conditions and qualifications needed and does not pass the test of integrity,” he said.


Prof Ghai claimed Mr Tobiko was being fronted by a powerful cabal in government to protect their interests. “Through him many people escaped prosecution of even the most atrocious crimes,” he said.


However, he was taken to task by CIOC members on the veracity of his claims.

[job]

On JUSTICE PHILIP WAKI, who was previously crucified wrongly by Ringera and Kiraitu Murungi's so called radical surgery in the Judiciary, later coming back to clear his name is seeking a position in the Supreme Court.



Despite initial suspicions, Waki surprised most by conducting the post-election violence investigations meticulously and marvelously. He exhibited the independent-mindedness required for these kinds of jobs.



I now find it strange that JSC panelists Amos Wako (of all people), and Ahmednassir seem intent on fault-finding Justice Waki. Who do these two Trojan Horses represent?



Ain't it ridiculous that Wako is questioning why Waki did the right thing - handing over the Waki report to Kofi Annan and not Kibaki....ain't it also bizzare that Ahmednassir is backing Ruto and Uhuru's famous line that "Waki did not give the accused a chance to defend themselves"...


Ahmednassir knows quite clearly that the Waki commission wasn't a Court, but merely an investigating body that only offerred recommendations for further investigations, yet he is already terming Waki's actions a 'failure'.



Am I misreading this or what? Am I sensing that conservatives embedded within the JSC are asserting themselves to not have other Judges of the calibre of Mutunga and Baraza?



Are Wako and Ahmednassir intent on 'weeding out' more potential independent-minded and progressive candidates away from the Courts? Am seriously concerned about this trend of questioning.


www.nation.co.ke/News/politics/Waki+gave+Annan+secret+list++to+beat+impunity+panel+told+/-/1064/1176228/-/kvjbk3/-/index.html

[job]

Read how Ghai exposes Tobiko.


- questions Tobiko's role in freeing Ruto from Ngong land fraud case

- charges Tobiko himself of being estranged in a land scandal in Narok


- accuses him of being Moi's secret mole during the CKRC days


read on...


www.standardmedia.co.ke/InsidePage.php?id=2000036664&cid=4&ttl=Judicial%20nominees%20put%20on%20the%20public%20scale

[jane]

Jun 6, 2011 19:21:27 GMT 3 job said:

Folks – Phil, Reporter, Adongo, tnk, commes, Einstein et al., please apply your investigative skills and give us more about these Judges.

Oh dear, it seems only Luos are invited to contribute.

Is this where we are heading?

[abdulmote]

Dada Jane,

Tulia kidogo. I thought the term "et al" was not a Luo name. And even if it was, I know that Daktari Job does not have the monopoly to invite! Kwa hivyo I might as well say; just get on with it, for you do not need or require anyone's invitation to "contribute" in this noble cause. Jukwaa is free for everyone and anyone to express their views as they may wish, obviously within the confines of the stated and reasonable moderation. Karibu and let’s hear your views sister.

Daktari,

Thank you so much for your good effort in this topic.

As to your concerns about Waki's questioning by the two; the points you raised also touched me but subsequently concluded: if the interviews are held in public and for the public's interest, then it is right and desirable that such questions should be asked, in order to cover every other angle, even from perhaps perceivably "opposing" sides that the interview may appear to be broad, comprehensive and not even remotely 'protective' or 'partisan'.

In other words and ideally, their line of questioning should not only reflect their own individual, personal thinking and approach, but also encompass what may be representative of potential public concerns, possible to be stemming out from various angles and interests, if only for the sake of being thorough and indeed to be seen as being thorough and impartial.

So yeh, not too bad in my opinion if you ask me?

[commes]

Jun 7, 2011 11:40:14 GMT 3 @jane said:

Jun 6, 2011 19:21:27 GMT 3 job said:

Folks – Phil, Reporter, Adongo, tnk, commes, Einstein et al., please apply your investigative skills and give us more about these Judges.

Oh dear, it seems only Luos are invited to contribute.

Is this where we are heading?

Dada Jane

Your brilliant mind should engage us on your take on the suitability or otherwise of the shortlisted judges and magistrates. Some of the judges and magistrates have committed outrageous acts against Kenyans. Some were the supporting pillars upon which the oppressive structures were built. Others, through corruption, have improvised Kenyans and destroyed their livelihoods.


Why bring your grievances to a thread that discusses the vetting of judges and magistrates?


Job and others have only highlighted the excesses witnessed and displayed by some magistrates and judges in the course of their judicial career, their judicial pronouncement and judgments. Knowing Kenya, evidence that can link them to those atrocities could be missing or destroyed.


Many reformers devoid of petty ethnic inclinations and nationalists of goodwill are happy with this unprecedented transparency that has come with the new constitution.


Please save yourself from shallow epithets name calling . Stay with the issues on the thread.

[jane]

Jun 7, 2011 12:24:59 GMT 3 abdulmote said:

Dada Jane,

Tulia kidogo. I thought the term "et al" was not a Luo name.

Yes, et al is not a Luo name, and so was the other names. But the individuals are and thus my point.

Et al standing for 'others', and following the individuals listed, it is clear the 'others' here referred to Luos, hence my comment, above.

[mzee]

Please keep vetting.
Wachana na siasa duni ya´kina Sadik,

[job]

Jun 7, 2011 11:40:14 GMT 3 @jane said:

Jun 6, 2011 19:21:27 GMT 3 job said:

Folks – Phil, Reporter, Adongo, tnk, commes, Einstein et al., please apply your investigative skills and give us more about these Judges.

Oh dear, it seems only Luos are invited to contribute.

Is this where we are heading?

"Jane",


You must be one heck of a gift from God, with supernatural powers to elucidate background ethnicities of forum members. For one who "just joined" JUKWAA a couple of months ago with barely 30 posts to be able to tell that contributors like commes, tnk, and Reporter are all Luos is in fact fantastic.



Unfortunately, I don't enjoy the same talent and opportunity (time and meticulously prying eyes) to sieve, detect and accurately pin-point respective member ethnicities....despite my 'vintage' 6 years and almost 4,000 posts here. I've occassionally been surprised to find out I'm debating non-Kenyans here at JUKWAA while all along assuming they are in fact Kenyan. So I never put much premium in such assumptions any more.


In case you wondered why I particularly picked some member names...firstly, pay attention to Abdulmote's highlighting of the latin et al (and others) rejoinder. Secondly, don't take it out of context..and others simply means and others.



The deliberately listed names I picked stems from my own observation of their propensity to post investigative materials - a feat required heavily during this vetting (transition) season. Posters have unique styles and preferences. I was summoning that talent to vet ALL these Judges and Magistrates while also inviting everybody else to join in the vetting debate. That was the essence of starting this thread anyway. This has nothing to do with petty tribal stuff, let's vet the candidates please - stick to the issue at hand!

[job]

Jun 7, 2011 12:24:59 GMT 3 abdulmote said:

Dada Jane,

Tulia kidogo. I thought the term "et al" was not a Luo name. And even if it was, I know that Daktari Job does not have the monopoly to invite! Kwa hivyo I might as well say; just get on with it, for you do not need or require anyone's invitation to "contribute" in this noble cause. Jukwaa is free for everyone and anyone to express their views as they may wish, obviously within the confines of the stated and reasonable moderation. Karibu and let’s hear your views sister.

Daktari,

Thank you so much for your good effort in this topic.

As to your concerns about Waki's questioning by the two; the points you raised also touched me but subsequently concluded: if the interviews are held in public and for the public's interest, then it is right and desirable that such questions should be asked, in order to cover every other angle, even from perhaps perceivably "opposing" sides that the interview may appear to be broad, comprehensive and not even remotely 'protective' or 'partisan'.

In other words and ideally, their line of questioning should not only reflect their own individual, personal thinking and approach, but also encompass what may be representative of potential public concerns, possible to be stemming out from various angles and interests, if only for the sake of being thorough and indeed to be seen as being thorough and impartial.

So yeh, not too bad in my opinion if you ask me?

Ndugu Abdul,


We are essentially on the same page. I'm enjoying every bit of the transparent vetting proces while simultaneously vetting the vetting panel (JSC) itself.



I'm frankly convinced a little improvement will work...on interviewing skills..probably a standard manual to guarantee fairness to the candidates.



Wako and Ahmednassir have every right to ask all manner of questions (covering all aspects) from these candidates - that's what vetting is all about. My only expressed concerns relate to strongly opinionated conclusions drawn from the interviewers themselves. There were certain subtle things only discernible if you paid full attention to the questioning.



For instance, was it in order for Ahmednassir to declare that Justice Philip Waki in fact failed (a very strong word) in his conduct of the PEV Commisssion/Inquiry. Isn't that not an attempt to influence/mislead other panelists in a certain direction against Justice Waki's consideration?



How about if Ahmednassir just asked an open-ended question like - was it right not to give the accused (PEV suspects) a chance to defend themselves?



The other concern was on Amos Wako's similarly opinionated suggestion (not question) that Philip Waki handed over the final report (& envelope) to Kofi Annan and not Kibaki. Trouble is, Wako didn't frame it as an open ended question, but rather made a leading remark challenging why Waki handed the report to Kofi and not Kibaki.



It became clear Wako was actually insinuating that Waki was not a stickler to certain constitutional provisions that normally required such reports to be handed to the President (suggesting a major procedural/constitutional goof on Waki's part). This was a serious charge of major ommission and commission. In my opinion however, Waki was in fact required to hand over the report to Kofi Annan as stipulated by NARA (also embedded in the constitution). He did the right thing as required.



Just to know how devious Wako was, the AG cleverly tried to connect that action by further suggesting that Justice Waki had some academic deficiency on the subject of constitutional law.[/b] Wako pointed out that Waki's listed law courses were short on constitutional law but heavy on human rights law and environmental law. Wako was driving a killer punch that despite Justice Waki's many years experience in the bench, he was not sufficiently prepared to handle constitutional matters in the supreme court. He did all this while dispensing his innocent smile. What a deceptive character this Wako fella is?.



Adding both Ahmednassir's and Wako's questioning and opinionated remarks, I suspected a surreptitious tag team effort from the two... to knock-off Justice Waki from consideration...for the simple reason of his independent-mindedness - the single biggest trait we need in the reformed Judiciary! That was my point.[/b]

[tnk]

Job

this is an excellent thread requiring profound insight on kenya's judiciary system and the dispensation of justice or lack thereof

the cases you mention above are all well known because of the larger than life public profile either on account of magnitude of theft, status of players involved and such like

first: to bring this into perspective, what i'd like to bring up is a case i came across a while back. this presents a fairly well educated fellow kenyan who started on a project with nothing but good intentions, but unfortunately a little wrong turn (gullibility) here and there representative of probably 70% of the human kind, ends up in court and loses a lifetime project/business/entrepreneurship.

note that this is not your average kenyan but probably a very highly skilled individual

this is his own account, may be a little biased, but i bet many of us can identify with this account although am aware there are those who would prefer to ridicule and poke holes in this as well.

here is the tribulation of a fellow kenyan in the hands of our judicial system (mercifully this is a civil case). its a long read about 40 pages main content and long list of annexes. the man throws in some tribal rants i guess in frustration but also because he believes it contributes to his woes. anyway read on and form your own opinion.

also brings out an item on "Dr" GK Kuria that is quite interesting.

second: while we are in this vetting process, PLO has been bouncing off walls in the past claiming KACC will vet political candidates in the next elections and what not. where is PLO and KACC when we need them, now, today? this is most critical component of the justice system, these are the custodians of the judiciary, where is PLO? is he waiting to close the stable gate after the horse has bolted? this is one organisation that never reveals anything and only promises statements which do not come. am sure these guys have some complaints but wont go public with them since they are not sure they will be politically correct but under the guise of its under investigation and do not want to alert the suspect


lastly: lets get reminded about the law when vetting the judges

here

and

here


==

18.(1) The Board shall, in determining the suitability of a judge or magistrate, consider—
(a) whether the judge or magistrate meets the constitutional criteria for appointment as a judge of the superior courts or as a
magistrate;
(b) the past work record of the judge or magistrate, including prior judicial pronouncements, competence and diligence;
(c) any pending or concluded criminal cases before a court of law against the judge or magistrate;
(d) any recommendations for prosecution of the judge or magistrate by the Attorney-General or the Kenya Anti-Corruption Commission; and
(e) pending complaints or other relevant information received from any person or body, including the -
(i) Law Society of Kenya;
(ii) Kenya Anti-Corruption Commission;
(iii) Advocates Disciplinary Committee;
(iv) Advocates Complaints Commission;
(v) Attorney-General;
(vi) Public Complaints Standing Committee;
(vii) Kenya National Human Rights and Equality Commission;
(viii) National Intelligence Service;
(ix) Police; or
(x) Judicial Service Commission.

(2) In considering the matters set out in subsection (1)(a) and (b), the Board shall take into account the following -

(a) professional competence, the elements of which shall include –
(i) intellectual capacity;
(ii) legal judgment;
(iv) diligence;
(v) substantive and procedural knowledge of the law;
(vi) organizational and administrative skills;and
(vi) the ability to work well with a variety of people;
(b) written and oral communication skills, the elements of which shall include -
(i) the ability to communicate orally and in writing;
(ii) the ability to discuss factual and legal issues in clear, logical and accurate legal writing; and
(iii) effectiveness in communicating orally in a way that will readily be understood and respected by people from all walks of life;
(c) integrity, the elements of which shall include -
(i) a demonstrable consistent history of honesty and high moral character in professional and personal life;
(ii) respect for professional duties, arising under the codes of professional and judicial conduct; and
(iii) ability to understand the need to maintain propriety and the appearance of propriety;
(d) fairness, the elements of which shall include -
(i) a demonstrable ability to be impartial to all persons and commitment to equal justice under the law; and
(ii) open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views;
(e) temperament, the elements of which shall include -
(i) demonstrable possession of compassion and humility;
(ii) history of courtesy and civility in dealing with others;
(iii) ability to maintain composure under stress; and
(iv) ability to control anger and maintain calmness and order;
(f) good judgment, including common sense, elements of which shall include a sound balance between abstract knowledge and practical reality and in particular, demonstrable ability to make prompt decisions that resolve difficult problems in a way that makes practical sense within the constraints of any applicable rules or governing principles;
(g) legal and life experience, the elements of which shall include -
(ii) the amount and breadth of legal experience and the suitability of that experience for the position, including trial and other
courtroom experience and administrative skills; and
(iii) broader qualities reflected in life experiences, such as the diversity of personal and educational history, exposure to persons of different ethnic and cultural backgrounds, and demonstrable interests in areas outside the legal field; and
(h) demonstrable commitment to public and community service, the elements of which shall include the extent to which a judge or magistrate has demonstrated a commitment to the community
generally and to improving access to the justice system in particular
==

word of caution is that it is not feasible that any candidate is an exact fit, but what we need establish is that these candidates are not there to extend political patronage or hinder dispensation of justice

[tnk]

cont. from prev. post


from the KACC archives we have this document

==
3. In terms of the level of corruption, my Committee found that from an establishment of 3,234 officers as at 30th August 2003, comprising 11 Judges of Appeal, 44 Judges of the High Court, 254 Magistrates, 15 Kadhis (Islamic Courts) and 2,910 paralegals, 152 judicial officers were implicated in corruption of which 105, or 69% were Judges and Magistrates. In the highest court in Kenya, the Court of Appeal, 56% were implicated. In the High Court, 50% were implicated. In the rank of Magistrates, 32 % were implicated..........

... 5 Court of Appeal Judges (56%), 18 High Court Judges (50%), 83 Magistrates (32%) and 43 paralegal officers were implicated in Judicial Corruption......
==

now whereas it has since been established that the so called radical judicial surgery that resulted from this report became a witchhunting exercise targetting real and imaginary political or professional adversaries, the fact of the matter is that these investigations must have formed at least some kind of basis for further investigation.

a claim that 10% of the judiciary is corrupt should just about scare anyone but here we have the KACC stating without any form of shame that over 50% of the top most judicial officers (judges and magistrates) are corrupt. considering that the numbers are very few e.g 14 in one system i think Appeals Court, it means that your likelihood of finding a corrupt judge is over 85% (sure! ask ruto) do the math. 7 corrupt, of the other 7 (not yet found to be corrupt) get two to go on vacation, get two to be sick or otherwise away and/or committed (remember ole keiuwa in the previous story), scare the other two (rawal at kamukunji ) and voila

anyway

here is the ringera report found in MARS archives

job running some checks will be back later

[shifta]

Achana na mambo ya ndugu Jane

---
Great thread stick to the topic.

It is a crying shame that these folks do not just apply ( their katiba right) but actually expect to be appointed.

Keep digging folks.

[job]

tnk,

Thanks! This is the kind of stuff I was talking about! The law sets forth requirements of the vetting board:

18.(1) The Board shall, in determining the suitability of a judge or magistrate, consider—


(a) whether the judge or magistrate meets the constitutional criteria for appointment as a judge of the superior courts or as a
magistrate;


(b) the past work record of the judge or magistrate, including prior judicial pronouncements, competence and diligence;


(c) any pending or concluded criminal cases before a court of law against the judge or magistrate;


(d) any recommendations for prosecution of the judge or magistrate by the Attorney-General or the Kenya Anti-Corruption Commission; and


(e) pending complaints or other relevant information received from any person or body

18(1)(e) alone is enough to knock off some of these folks masquerading for these positions.


But guess what - Keriako Tobiko has some serious credibility challenge that goes deep into the world of corruption. This fella who's been palling around with the crooked lawyer Kioko Kilukumi is no doubt one guy I have totally no faith in - if any of the allegations by Sammy Kirui turn out to be true.



I had always suspected a Tango game of palm greasing between Kilukumi and Tobiko - former UoN roommates. Kilukumi's clients (like Ruto) alkways win cases. That's because their lawyer had direct access to the DPP. Such clients would thus enjoy the benefit of a weak prosecution - deliberately made impotent by the DPP's junior prosecutors. This is exactly what happened in the Ruto land fraud case.


Here (below) comes a potent allegation against Tobiko:

There were fresh allegations by former Local Government Permanent Secretary Sammy Kirui that Mr Tobiko used third parties to demand a Sh5 million bribe without which he would increase the charges against him over the Nairobi cemetery scandal from one to three.



Mr Kirui claimed he had a text message to that effect and had submitted it to the National Security Intelligence Service.



Mr Tobiko denied the allegations, saying he did not know Mr Kirui and was hearing the allegations for the first time on Tuesday. (source Daily Nation June 7th, 2011)

[adongo23456]

job,

Kirui has now offered to come before the CIOC and give his evidence against Tobiko. His corruption cases are mounting. The CIOC is now considering having a second interview with Tobiko and sending only the two names of Dr. Mutunga and Nancy Baraza to bunge. Tobiko also says his estate is worth Kshs 80 million. I am sure he is lying but even that it might be good to know which businesses he owns that brings money. DPP's job can barely keep him afloat.

This man is bad news. He is very vulnerable now because the wagons are cycling from all sides and the evidence is solid. Thank god Kenyans are coming out with evidence and handing it over to the investigators.

Here is the story hidden in the pages of the Standard.

www.standardmedia.co.ke/news/InsidePage.php?id=2000036725&cid=159&story=Tobiko%20in%20a%20spot%20of%20bother%20over%20graft%20allegations

[politicalmaniac]

Jun 8, 2011 4:01:51 GMT 3 adongo23456 said:

job,

Kirui has now offered to come before the CIOC and give his evidence against Tobiko. His corruption cases are mounting. The CIOC is now considering having a second interview with Tobiko and sending only the two names of Dr. Mutunga and Nancy Baraza to bunge. Tobiko also says his estate is worth Kshs 80 million. I am sure he is lying but even that it might be good to know which businesses he owns that brings money. DPP's job can barely keep him afloat.

This man is bad news. He is very vulnerable now because the wagons are cycling from all sides and the evidence is solid. Thank god Kenyans are coming out with evidence and handing it over to the investigators.

Here is the story hidden in the pages of the Standard.

www.standardmedia.co.ke/news/InsidePage.php?id=2000036725&cid=159&story=Tobiko%20in%20a%20spot%20of%20bother%20over%20graft%20allegations

How was this guy vetted and passed surely? Was this the vetting that occurred in camera by the COTU guy and kina Karoli of the PMs office?

Now look where it has gotten us.

Is there a silver lining here?

I want to speculate that this nomination was deliberately let to proceed so that it could be used at a latter stage, such as we are now, to expose the rot in the judiciary.

This is a warning shot, the first salvo to those nominees who still think that their past mafiya inspired corruption cases can be papered over and their applications smuggled in via the back door (The same back door they used to mention every time they attacked the Rt Hon Prime Minister ;D ;D)

I think this is a good development.

I think this mafiya tool thobiko is done. He is now blaming Wako for the ruto Snafu - Situation Normal All F@cked Up!

Stick a fork in him, let him go eat his 80M in peace, ameiba ya kutosha.

Meanwhile can the ruto case be opened again ama?

I am loving this!

[tnk]

Jun 8, 2011 4:01:51 GMT 3 adongo23456 said:

job,

Kirui has now offered to come before the CIOC and give his evidence against Tobiko. His corruption cases are mounting. The CIOC is now considering having a second interview with Tobiko and sending only the two names of Dr. Mutunga and Nancy Baraza to bunge. Tobiko also says his estate is worth Kshs 80 million. I am sure he is lying but even that it might be good to know which businesses he owns that brings money. DPP's job can barely keep him afloat.

This man is bad news. He is very vulnerable now because the wagons are cycling from all sides and the evidence is solid. Thank god Kenyans are coming out with evidence and handing it over to the investigators.

Here is the story hidden in the pages of the Standard.

www.standardmedia.co.ke/news/InsidePage.php?id=2000036725&cid=159&story=Tobiko%20in%20a%20spot%20of%20bother%20over%20graft%20allegations

this is commendable from mr kirui and an act of great courage, i hope more whistle blowers come up against some of the judges as well

==
On Tuesday, Tobiko admitted that errors were committed in the prosecution of Eldoret North MP William Ruto on fraud allegations, but blamed police and state counsel for failing to locate crucial witnesses and not calling others.
==

this statement above is so very annoying. onus is on the AG and/or dpp to hound the police commissioner or whoever is responsible to enforce the law and make sure witness appear. he cannot sit back and throw his hands in the air like everyone else. they are the AGs office and have these agencies at their disposal as well as officers within their establishment. it is their job collectively to ensure witness are protected and able to appear at court cases or be prosecuted for obstructing justice.

no wonder the wako petitions at ICC are currently being used to wipe the floors

[job]

Jun 8, 2011 7:26:12 GMT 3 politicalmaniac said:

Jun 8, 2011 4:01:51 GMT 3 adongo23456 said:

job,

Kirui has now offered to come before the CIOC and give his evidence against Tobiko. His corruption cases are mounting. The CIOC is now considering having a second interview with Tobiko and sending only the two names of Dr. Mutunga and Nancy Baraza to bunge. Tobiko also says his estate is worth Kshs 80 million. I am sure he is lying but even that it might be good to know which businesses he owns that brings money. DPP's job can barely keep him afloat.

This man is bad news. He is very vulnerable now because the wagons are cycling from all sides and the evidence is solid. Thank god Kenyans are coming out with evidence and handing it over to the investigators.

Here is the story hidden in the pages of the Standard.

www.standardmedia.co.ke/news/InsidePage.php?id=2000036725&cid=159&story=Tobiko%20in%20a%20spot%20of%20bother%20over%20graft%20allegations

How was this guy vetted and passed surely? Was this the vetting that occurred in camera by the COTU guy and kina Karoli of the PMs office?

Now look where it has gotten us.

Is there a silver lining here?

I want to speculate that this nomination was deliberately let to proceed so that it could be used at a latter stage, such as we are now, to expose the rot in the judiciary.

This is a warning shot, the first salvo to those nominees who still think that their past mafiya inspired corruption cases can be papered over and their applications smuggled in via the back door (The same back door they used to mention every time they attacked the Rt Hon Prime Minister ;D ;D)

I think this is a good development.

I think this mafiya tool thobiko is done. He is now blaming Wako for the ruto Snafu - Situation Normal All F@cked Up!

Stick a fork in him, let him go eat his 80M in peace, ameiba ya kutosha.

Meanwhile can the ruto case be opened again ama?

I am loving this!

Can somebody give me an AMEN? We are now talking VETTING BUSINESS. Real vetting!


Tobiko is also alleged to have purged himself (under oath in court) in a land case.

Let the news keep rolling.


I must give credit to Prof. Ghai for relentlessly pursuing this issue. The participation of the people - including JUKWAA - in this vetting will make a difference.


Like politicalmaniac, I think this Tobiko pyrrhic victory (much celebrated prematurely by Kamale) was initially a set-up - deliberately let to pass through the first stage only for the rot to start being exposed during vetting. Holly Molly! Kirui's testimony will likely be bombastic!

[mzee]

I would be more than surprised if Tobiko sailed through.
This guys is rotten to the core. He all the same dares sit there and claim his innocence.

He has good academic credentials but his corrupt and inept ways are on the way. One lesson we should learn here is that being good in books does not always translate to being effective in your work.

I hope that Kirui is given a chance to say his piece. To tell of the bribery saga etc.

By the way what does "Kirui" mean? I vividly remember a Mr. Kirui (a commissioner of the now defunct ECK) calling a press conference to tell the whole world that presidential votes were being manipulated at KICC. That was more than brave of Kirui then, and now another kirui standing up and telling the truth as is. Whats there in the name "kirui"?

[commes]

Jun 8, 2011 15:42:41 GMT 3 mzee said:

I would be more than surprised if Tobiko sailed through.
This guys is rotten to the core. He all the same dares sit there and claim his innocence.

He has good academic credentials but his corrupt and inept ways are on the way. One lesson we should learn here is that being good in books does not always translate to being effective in your work.

I hope that Kirui is given a chance to say his piece. To tell of the bribery saga etc.

By the way what does "Kirui" mean? I vividly remember a Mr. Kirui (a commissioner of the now defunct ECK) calling a press conference to tell the whole world that presidential votes were being manipulated at KICC. That was more than brave of Kirui then, and now another kirui standing up and telling the truth as is. Whats there in the name "kirui"?

Ouch! They got Tobiko by the balls on this one. KACC and Kirui just opened a rare can of worms and the search for an alternative candidate for the DDP should commence in earnest.