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Post by OtishOtish on Oct 31, 2012 15:21:24 GMT 3
I took the time to read the 77 page ruling last night and I must admit that the judges have argued their position well. Their discussion on the ouster clause that Otishotish quotes was well argued and the judges conceded that the HC cannot review a ruling of the board but only in instances they listed out that included the board acting beyond its mandate and matters of the rights of those being vetted. What they have done is be "clever" and creaet exceptions to a rule that clearly does not permit exceptions. Both the letter and the spirit of that clause are very clear to all, clever judges and manambas alike.
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Post by mwalimumkuu on Oct 31, 2012 15:39:07 GMT 3
I took the time to read the 77 page ruling last night and I must admit that the judges have argued their position well. Their discussion on the ouster clause that Otishotish quotes was well argued and the judges conceded that the HC cannot review a ruling of the board but only in instances they listed out that included the board acting beyond its mandate and matters of the rights of those being vetted. What they have done is be "clever" and creaet exceptions to a rule that clearly does not permit exceptions. Both the letter and the spirit of that clause are very clear to all, clever judges and manambas alike. You have a point, my understanding of the vetting board is that it was supposed to be a demigod of some kind; its decisions were supposed to be final and binding to all of course with the assumption that the board would act in good faith, be beyond reproach and very impartial. That is why there is a provision for any of the judges found unsuitable to appeal the decision to the same board pointing out instances where they thought their positions and/or actions were misunderstood, misrepresented or ignored. It is heard to understand how the same judges who are to be vetted by the board can be allowed to be intepreting and issuing directions to the board. It was a big mistake for the board to obey the initial court ruling, as they walked right into the trap. Very interesting times ahead.
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Post by kamalet on Oct 31, 2012 15:49:39 GMT 3
What they have done is be "clever" and creaet exceptions to a rule that clearly does not permit exceptions. Both the letter and the spirit of that clause are very clear to all, clever judges and manambas alike. You have a point, my understanding of the vetting board is that it was supposed to be a demigod of some kind; its decisions were supposed to be final and binding to all of course with the assumption that the board would act in good faith, be beyond reproach and very impartial. That is why there is a provision for any of the judges found unsuitable to appeal the decision to the same board pointing out instances where they thought their positions and/or actions were misunderstood, misrepresented or ignored. It is heard to understand how the same judges who are to be vetted by the board can be allowed to be intepreting and issuing directions to the board. It was a big mistake for the board to obey the initial court ruling, as they walked right into the trap. Very interesting times ahead. MMkuu A correction...none of the five members of the bench are due for vetting. We are paying the price of a badly written vetting law. The fact that their precise mandate was not defined opens up the various actions where the courts are finding it necessary to assert themselves. As I said one needs to read the entire ruling to see where the 5 judges were coming from.
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Post by tactician on Oct 31, 2012 16:10:47 GMT 3
You have a point, my understanding of the vetting board is that it was supposed to be a demigod of some kind; its decisions were supposed to be final and binding to all of course with the assumption that the board would act in good faith, be beyond reproach and very impartial. That is why there is a provision for any of the judges found unsuitable to appeal the decision to the same board pointing out instances where they thought their positions and/or actions were misunderstood, misrepresented or ignored. It is heard to understand how the same judges who are to be vetted by the board can be allowed to be intepreting and issuing directions to the board. It was a big mistake for the board to obey the initial court ruling, as they walked right into the trap. Very interesting times ahead. MMkuu A correction...none of the five members of the bench are due for vetting. We are paying the price of a badly written vetting law. The fact that their precise mandate was not defined opens up the various actions where the courts are finding it necessary to assert themselves. As I said one needs to read the entire ruling to see where the 5 judges were coming from. Kamalet, With this judgement, the judges said that so long as there is an apparent violation of human rights, then the high court is seized of jurisdiction. That's why the court decided to review the decisions of the Vetting Board should any of the judges feel aggrieved. Now, in the same thread of thought, what is to prevent Moi & Kibaki from vying in the next elections? The only law that prevents them is in the transitions clause, which violates the equal treatment and free from discrimination clauses in the bill of rights. There is no clause in the katiba, apart from the transition clauses, that stops the two from running. All moi & kibaki need to say is that their rights to vie for election have been violated.
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Post by kamalet on Oct 31, 2012 16:19:15 GMT 3
Otishotish
I think we are saying the same thing but differently. I am saying that had the law been explicit the ouster clause in s23 would have kicked out the jurisdiction of the courts. So unfortunately we have a situation that allowed loopholes that are being 'abused' by the HC.
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Post by tactician on Oct 31, 2012 16:23:16 GMT 3
well put otish....
They read the katiba dryly & technically without considering its spirit....
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Post by tactician on Oct 31, 2012 16:27:18 GMT 3
Otishotish I think we are saying the same thing but differently. I am saying that had the law been explicit the ouster clause in s23 would have kicked out the jurisdiction of the courts. So unfortunately we have a situation that allowed loopholes that are being 'abused' by the HC. Kamalet, That is the technical, dry reading of the katiba without considering the spirit, With this reading of the katiba, can the judges also make the same decision about moi & kibaki vying for president in 2012?
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Post by OtishOtish on Oct 31, 2012 16:27:20 GMT 3
MMkuu A correction...none of the five members of the bench are due for vetting. We are paying the price of a badly written vetting law. The fact that their precise mandate was not defined opens up the various actions where the courts are finding it necessary to assert themselves. As I said one needs to read the entire ruling to see where the 5 judges were coming from. Kamalet: I have read the ruling. First, you are right that none of the 5 is yet to be vetted; Mutunga made that change after the howls fro the Warsame case. But the is a related point to what mwalimu is saying: There is no explicit requirement that a non-vetted judge cannot sit on a matter relating to the board---which is why Mutunga could appoint-Warsame---but common sense regarding the obvious conflict and the spirit in which the board is supposed to operate says that is a bad idea, which is why there was such a howl about Warsame. With the current arrangement and decision, there is strictly nothing stopping Mutunga from appointing non-vetted judges to "supervise" (as they call it) the operations of the judge. Second, even if the Vetting law is badly written, the spirit is quite clear, and in law it is not just the letter that matters. Let us consider the basic function of the board. It may decide that a judge is unfit and should go home. In order to be able to do that, it must be allowed to operate regardless of those parts of the constitution that regulate the normal exit of a judge or when the office of a judge can be declared vacant. According 23(1) of the 6th schedule states that it shall so operate. It then needs to be able to operate without interference from any court; 23(2) does that. What the judges have done is cleverly insert themselves into the matter, through an artificial and far-fetched link between 23(1) and 23(2), by claiming that because Article 165 is not mentioned in 23(1), they can get involved. That goes against the clear intent of the law. The way to understand s23 is to consider it as though it were written in three parts: (1) The president shall constitute a vetting board. (2) The board shall operate regardless of Articles 160, 167, and 168. (3) No court shall interfere with the board. Thus breaking the artificial link. The is another problem with the way in which the judges have inserted themselves: taken to its logical conclusion, it means that any part of the constitution other than 160, 167, and 168 can be used to interfere with the board's operations. Is that really tenable? All that stuff about human rights is just a red herring. s23(2) is quite clear and to the point: no exception is made for any court and no exception is made for any issue. That is as it should be if the board is to properly carry out its task, and it is important to keep in mind that the board is an extraordinary one-off organization. As things stand, there will now be endless litigation whenever a judge is found unfit; all one has to do is cry human rights or something. We will also get into a situation where there might be back-scratching between judges of the higher courts and those yet to be vetted. The matter will now be appealed in a higher court. I'm not sure that's a satisfactory solution, given that the higher court may also make an equally bloody-minded decision. Given the extraordinary nature of the board and its functions, as well as the need to reform the judiciary and restore Kenyans' confidence, I think the best solution is to have an exceptional session of parliament so that it can patch up any lacuna in the law.
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Post by OtishOtish on Oct 31, 2012 16:31:29 GMT 3
Otishotish I think we are saying the same thing but differently. I am saying that had the law been explicit the ouster clause in s23 would have kicked out the jurisdiction of the courts. So unfortunately we have a situation that allowed loopholes that are being 'abused' by the HC. Kamalet: To my mind, "shall not be subject to question in, or review by, any court" makes it clear that no court has jurisdiction in the matter. We manambas might not be clever, but we know what we want from the Vetting Board and the plain English of 23(2) is also very clear to us.
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Post by kamalet on Oct 31, 2012 16:31:59 GMT 3
MMkuu A correction...none of the five members of the bench are due for vetting. We are paying the price of a badly written vetting law. The fact that their precise mandate was not defined opens up the various actions where the courts are finding it necessary to assert themselves. As I said one needs to read the entire ruling to see where the 5 judges were coming from. Kamalet, With this judgement, the judges said that so long as there is an apparent violation of human rights, then the high court is seized of jurisdiction. That's why the court decided to review the decisions of the Vetting Board should any of the judges feel aggrieved. Now, in the same thread of thought, what is to prevent Moi & Kibaki from vying in the next elections? The only law that prevents them is in the transitions clause, which violates the equal treatment and free from discrimination clauses in the bill of rights. There is no clause in the katiba, apart from the transition clauses, that stops the two from running. All moi & kibaki need to say is that their rights to vie for election have been violated. Tactician My reading of the ruling was that the judges did not rule on s23 in isolation but read this together with the Vetting Act. They actually recognise the ouster provision in s23 but then quoting a variety of authorities the ouster was not absolute as it was not cured by the legislation requried of it. Hence I think the drawing of the Moi/Kibaki analogy is a bit far fetched as they would have to show how the transition provisions actually hurt their rights and the extent to which the constitution was inconsistent with itself!
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Post by OtishOtish on Oct 31, 2012 16:43:01 GMT 3
Tactician My reading of the ruling was that the judges did not rule on s23 in isolation but read this together with the Vetting Act. They actually recognise the ouster provision in s23 but then quoting a variety of authorities the ouster was not absolute as it was not cured by the legislation requried of it. Kamalet: Assuming there is indeed a gap in the law, a normal and frequently-used approach is to consider what the drafters of the law had in mind; that is where the "spirit" comes in, and in this case we all know what the intent and spirit are. But to say, no problem we will just fill the gap however we please but especially in a way that might be favourable to our colleagues!
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Post by tactician on Oct 31, 2012 17:06:32 GMT 3
Kamalet, With this judgement, the judges said that so long as there is an apparent violation of human rights, then the high court is seized of jurisdiction. That's why the court decided to review the decisions of the Vetting Board should any of the judges feel aggrieved. Now, in the same thread of thought, what is to prevent Moi & Kibaki from vying in the next elections? The only law that prevents them is in the transitions clause, which violates the equal treatment and free from discrimination clauses in the bill of rights. There is no clause in the katiba, apart from the transition clauses, that stops the two from running. All moi & kibaki need to say is that their rights to vie for election have been violated. Tactician My reading of the ruling was that the judges did not rule on s23 in isolation but read this together with the Vetting Act. They actually recognise the ouster provision in s23 but then quoting a variety of authorities the ouster was not absolute as it was not cured by the legislation requried of it. Hence I think the drawing of the Moi/Kibaki analogy is a bit far fetched as they would have to show how the transition provisions actually hurt their rights and the extent to which the constitution was inconsistent with itself! Kamalet, Here is what the judges said in interpreting the ouster clauses in relation to the jurisdiction of the high court: "In the premises, and borrowing from the sister jurisdictions aforesaid, we see the following as the core general principles that a Kenyan court confronted with an ouster clause seeking to eliminate its jurisdiction should apply to determine the extent, if any, to which that it can interfere notwithstanding the envisioned ouster:
a) Statutory provisions tending to oust the jurisdiction of the Court should be construed strictly and narrowly. It would be a travesty of justice if ouster clauses are applied at face value as tribunals, bodies, authorities or persons in position conferred with power may run amok, act with impunity or abuse that power to the detriment of our people. b) The court will not normally intervene where the authority under challenge acts within its permitted field, even when the emerging decisions are wrong. c) In spite of a finality clause, it is open to the court to examine whether the action of the authority under challenge is in excess of its jurisdiction or contravenes a mandatory provision of the law conferring on the authority the power to take such action. d) Breach of the principles of natural justice, including the right to a fair hearing, opens up the decision of the tribunal to review even if there is an ouster clause. e) Breach of fundamental rights and freedoms enshrined in the Constitution including the right to protection of the law and respect for fundamental human rights will entitle a court to intervene, notwithstanding the existence of a finality or ouster clause. f) An ouster clause may, ultimately, be usurped if there are strong and compelling reasons.
These then, should, in our view, now constitute the test governing interpretation of ouster clauses in Kenya."See the underlined under (e): Then consider the eligibility requirements to run for president: "(1) A person qualifies for nomination as a presidential candidate if the person—
(a) is a citizen by birth; (b) is qualified to stand for election as a member of Parliament; (c) is nominated by a political party, or is an independent candidate; and (d) is nominated by not fewer than two thousand voters from each of a majority of the counties.
(2) A person is not qualified for nomination as a presidential candidate if the person— (a) owes allegiance to a foreign state; or (b) is a public officer, or is acting in any State or other public office. (3) Clause (2) (b) shall not apply to— (a) the President; (b) the Deputy President; or (c) a member of Parliament."Nowhere there disqualifies moi or kibaki. Then consider the fundamental freedoms mentioned in the judgement, in particular Article 27: " 1) Every person is equal before the law and has the right to equal protection and equal benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms."What stops the two from seeking office? Why would we be discriminating against them? Would the high court, following the same thinking, also determine that the transition clause is violating fundamental freedoms?
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Post by kamalet on Oct 31, 2012 17:14:32 GMT 3
Tactician My reading of the ruling was that the judges did not rule on s23 in isolation but read this together with the Vetting Act. They actually recognise the ouster provision in s23 but then quoting a variety of authorities the ouster was not absolute as it was not cured by the legislation requried of it. Kamalet: Assuming there is indeed a gap in the law, a normal and frequently-used approach is to consider what the drafters of the law had in mind; that is where the "spirit" comes in, and in this case we all know what the intent and spirit are. But to say, no problem we will just fill the gap however we please but especially in a way that might be favourable to our colleagues! Otishotish I think the point at which we differ is whether the vetting board in its exclusive power to retain or fire was also allowed to act in a manner that would affect the human rights of the people they were vetting. I doubt that the legislation forming the board intended to take away the rights of the judges. I hold that rights as enshrined in the constitution are inviolable and when it happens, only the High Court has original jurisdiction.
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Post by OtishOtish on Oct 31, 2012 17:33:20 GMT 3
I hold that rights as enshrined in the constitution are inviolable and when it happens, only the High Court has original jurisdiction. In principle, I agree with you. But we must consider the extraordinary situation we find ourselves in and the fact that this board is a very unusual one-off. As for the "inviolability of the constitution", note Articles 167 and 168 (which regulate the normal exit of judges); 23(1) of the 6th schedule basically says that vetting board will operate regardless of those articles, and obviously it couldn't carry out its basic function otherwise. It is also important to keep in mind that the "transition law" exists to enable the transition between the old and the new constitutions. Of necessity, some parts of the new constitution will not be in full force until the transition is complete---for example, once the vetting is complete, Articles 167 and 168 will be the only routes through which a judge will go home---and in such circumstances one cannot simply say that "the constitution is inviolable". We should keep in mind that one of the most important outcomes of the vetting process is a restoration in the public's faith in the judiciary. We thought we were making some progress and then comes this bloody-minded ruling. I doubt that many members of the public are impressed.
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Post by jakaswanga on Oct 31, 2012 19:20:41 GMT 3
I hold that rights as enshrined in the constitution are inviolable and when it happens, only the High Court has original jurisdiction. In principle, I agree with you. But we must consider the extraordinary situation we find ourselves in and the fact that this board is a very unusual one-off. As for the "inviolability of the constitution", note Articles 167 and 168 (which regulate the normal exit of judges); 23(1) of the 6th schedule basically says that vetting board will operate regardless of those articles, and obviously it couldn't carry out its basic function otherwise. It is also important to keep in mind that the "transition law" exists to enable the transition between the old and the new constitutions. Of necessity, some parts of the new constitution will not be in full force until the transition is complete---for example, once the vetting is complete, Articles 167 and 168 will be the only routes through which a judge will go home---and in such circumstances one cannot simply say that "the constitution is inviolable". We should keep in mind that one of the most important outcomes of the vetting process is a restoration in the public's faith in the judiciary. We thought we were making some progress and then comes this bloody-minded ruling. I doubt that many members of the public are impressed. Let me remind of what other Judges said in the famous Matemu ruling:The three judges explain, that the provisions of chapter 6, the integrity clauses on those seeking to occupy public offices, are not just:1. mere suggestions 2. superfluous points 3. merely ornamental 4. far from being mere lofty statements of aspiration or intent, they are core and fundamental.
B: The judges write: ' Kenyans were singularly desirous of cleaning up OUR politics and governance structures, by insisting on high standards of personal integrity among those seeking to guide us[/b]. Read more: jukwaa.proboards.com/index.cgi?board=general&action=display&thread=6208&page=6#ixzz2AtLsTl8dI consider this the correct spirit of the law. I recognise others may find this ruling activistic and radical, but they are free to posit an opinion on what they think Kenyans meant by passing the integrity clause. They can show cause why the interpretation should be narrow, bent toward excusing known infidelities on integrity by the political kingpins. Struggling through the precedents, or would-be similar cases cited and upon which this panel of judges base their mutilation of the insularity of the vetting process, I only detect determined recidivism. A clutching at straws to freeze the guillotine in rest state. Corruption is fighting back, and with a vengeance. After Parliament, the cabinet, the police, the army, and the top echelons of the civil service outed themselves as anti-people, the last of the Mohican's, the judiciary which had won a measure of public confidence in the new dispensation, now sheds off its sheep skin to reveal the old wolf within! I wonder whether Dr. Studs himself is still unaware he is fooling even himself! The situation is radical, and half-lives, that is the decay rate, have been radically reduced in turn. These judges making these rotten rulings, must be sure they have cover from the top! Otherwise they would have made an attempt to reason through this section, which is a bone to stick in any throat of a minimalist interpreter of the Kenyan popular will. otishotish Read more: jukwaa.proboards.com/index.cgi?board=general&action=display&thread=5500&page=24#ixzz2AtSwlW6i
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Post by OtishOtish on Nov 1, 2012 1:47:27 GMT 3
Jakaswanga:
Sometimes I think Our Great Country is either a bad dream or comedy at a global level. Take a look at some of the arguments that a few of the Honourable Justices have used in their suits get back their jobs: Manambas like us would sue on the basis that we had been dealt with in an excessively sharp manner, given our work-ethic, integrity, outstanding performance, and so forth. But not these people! Their main complaint is not that the board unfairly or unreasonably found them incompetent. They are complaining that somebody forgot to extend the board's mandate in a timely fashion, and so the board should not have been in business at the time it found, quite rightly, that they ought to be shown the door! And now their friends say not to worry, we'll just have to supervise this pesky board and review its operations: firing you for incompetence is one thing, but touching your human rights!
We really need to get into this business of Advanced Thinking. Obviously it helps to have friends in the judiciary who will be more than happy to visit sister jurisdictions to find ways to see us through. Fortunately, in this period of transition friends can still be got for large envelopes of high-denomination bills.
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Post by OtishOtish on Nov 1, 2012 1:57:38 GMT 3
At the time of the said decisions, our "sister jurisdictions" were not trying to clean up thoroughly rotten judiciary. None of the "borrowed" decisions even comes with a million miles of the situation we currently face in Kenya. It is another painful poke (from Impunity) in the eyes of Kenyans---or is it the other kind of poke---to engage in clever but yet silly games when we all know exactly what Kenyans want.
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Post by kamalet on Nov 1, 2012 8:58:06 GMT 3
I hold that rights as enshrined in the constitution are inviolable and when it happens, only the High Court has original jurisdiction. In principle, I agree with you. But we must consider the extraordinary situation we find ourselves in and the fact that this board is a very unusual one-off. As for the "inviolability of the constitution", note Articles 167 and 168 (which regulate the normal exit of judges); 23(1) of the 6th schedule basically says that vetting board will operate regardless of those articles, and obviously it couldn't carry out its basic function otherwise. It is also important to keep in mind that the "transition law" exists to enable the transition between the old and the new constitutions. Of necessity, some parts of the new constitution will not be in full force until the transition is complete---for example, once the vetting is complete, Articles 167 and 168 will be the only routes through which a judge will go home---and in such circumstances one cannot simply say that "the constitution is inviolable". We should keep in mind that one of the most important outcomes of the vetting process is a restoration in the public's faith in the judiciary. We thought we were making some progress and then comes this bloody-minded ruling. I doubt that many members of the public are impressed. Having lived through three presidents, I can claim knowing my country, its leaders and its people very well. I have lived through so many lies that I am a lot more alert and try avoiding some of the short term solutions Kenyans seem to prefer. When I say that the rights in the constitution should be inviolable I am appauding the HC ruling for restating that. I do not think looking the other side because the circumstances of the judges is slightly different is correct. All it does is set a dangerous precedent that will harm Kenyans in years to come when such a ruling can be used to deny you or I a fundamental right on the basis of claims of special circumstances. If those special circumstances are not clearly spelt out in the constitution, then the rights supercede everything else. As regards the vetting board here are the guiding principles of the process. Some will shock you in their subjectivity that you wonder how you can give a fair hearing!! See highlighted sections: 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.
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Post by tactician on Nov 1, 2012 10:37:06 GMT 3
Going by the judgement of the High Court, can we say that Gicheru & Wako rights were trampled on when they were removed without cause? without hearing? without a trial let alone a fair trial, without having recourse to an appeal process?
Should the High Court thus declare that their fundamental rights were breached and must be reinstated?
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Post by kamalet on Nov 1, 2012 10:44:10 GMT 3
Going by the judgement of the High Court, can we say that Gicheru & Wako rights were trampled on when they were removed without cause? without hearing? without a trial let alone a fair trial, without having recourse to an appeal process? Should the High Court thus declare that their fundamental rights were breached and must be reinstated? For Wako and Gicheru who were specifically to retire as per the constitution the test would be a case in court filed by them complaining. I am not sure an argument between you and I helps it at all. I say the courts as they are the ones granted jurisdiction to determine if a right is violated.
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Post by tactician on Nov 1, 2012 11:02:26 GMT 3
Going by the judgement of the High Court, can we say that Gicheru & Wako rights were trampled on when they were removed without cause? without hearing? without a trial let alone a fair trial, without having recourse to an appeal process? Should the High Court thus declare that their fundamental rights were breached and must be reinstated? For Wako and Gicheru who were specifically to retire as per the constitution the test would be a case in court filed by them complaining. I am not sure an argument between you and I helps it at all. I say the courts as they are the ones granted jurisdiction to determine if a right is violated. Well, all i'm saying is that going by the ruling, the issues that would come up at hearing would be: 1 - Does the High Court have jurisdiction to entertain an appeal by Wako/Gicheru? Yes - cos the High Court has jurisdiction over all matters that affect breach of fundamental rights & freedom 2 - Was there a breach of their fundamental rights? Yes - cos there was no trial, fair trial, lack of appeal process, reversal of burden of guilt by the people of kenya assuming that the two were guilty before being presented with evidence and allowed to contest the same 3 - Does the High Court have jurisdiction in terms of the reviewing the removal process of the two? Yes - It has unlimited jurisdiction over whatever administrative or judicial process. Ruling: their removal was void ab initio!
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Post by kamalet on Nov 1, 2012 11:27:54 GMT 3
This is what the constitution says:
22. (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
the enforcement of the rights in Section 23 is quite clear:
23. (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including–– (a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review.
You can only determine if your right is violated by running the test with the High Court. So whether Moi or Kibaki feel aggrieved or Gicheru and Wako were disenfranchised is a question for them to claim so and the courts to rule as such. We need to wait and hear how the courts rule when they deal with the sumstantive petitions of the sacked judges.
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Post by tactician on Nov 1, 2012 11:37:30 GMT 3
This is what the constitution says: 22. (1) Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.the enforcement of the rights in Section 23 is quite clear: 23. (1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (2) Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights. (3) In any proceedings brought under Article 22, a court may grant appropriate relief, including–– (a) a declaration of rights; (b) an injunction; (c) a conservatory order; (d) a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; (e) an order for compensation; and (f) an order of judicial review.You can only determine if your right is violated by running the test with the High Court. So whether Moi or Kibaki feel aggrieved or Gicheru and Wako were disenfranchised is a question for them to claim so and the courts to rule as such. We need to wait and hear how the courts rule when they deal with the sumstantive petitions of the sacked judges. I agree. The question is - based upon the precedent set by this High Court ruling, what would you expect in the moi/kibaki or wako/gicheru cases? Remembering that case law is one of the pillars of commonwealth legal practice? I would expect them to quote their ruling and rule in the same way & invalidate the transition clauses that bar moi/kibaki & wako/gicheru.
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Post by kamalet on Nov 1, 2012 11:43:48 GMT 3
I do not think they would have much leg to stand on unfortunately as their predicament is reflected by the will of the people in that Kenyans specifically voted in a referendum to restate their ouster from office as defined in the constitution. That is how I would expect the courts to rule.
I think the difference between their case and the case before the court is that the courts have only ruled that they have jursidiction. It will be upon the petitioner to prove to the court how they feel their rights have been infringed upon for them to expect any relief from the courts - i.e. overturning the decision of the board.
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Post by tactician on Nov 1, 2012 11:48:18 GMT 3
I do not think they would have much leg to stand on unfortunately as their predicament is reflected by the will of the people in that Kenyans specifically voted in a referendum to restate their ouster from office as defined in the constitution. That is how I would expect the courts to rule. I think the difference between their case and the case before the court is that the courts have only ruled that they have jursidiction. It will be upon the petitioner to prove to the court how they feel their rights have been infringed upon for them to expect any relief from the courts - i.e. overturning the decision of the board. And if i may ask, what was the will of the people when they said that: A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1 - vetting act) shall not be subject to question in, or review by, any court.How more clearer could it be?
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