By JULIUS SIGEI jsigei@ke.nationmedia.com
Posted Friday, April 27 2012 at 22:00
Posted Friday, April 27 2012 at 22:00
IN SUMMARY
- Accustomed to a life of ushers and bodyguards, the four senior judges sacked this week have much to learn from those who went before them
A major readjustment awaits the Court of Appeal judges who were purged from the Judiciary on Wednesday.
Used to a life of luxury, where the way is cleared for them by ushers and with bodyguards in tow, Justices Riaga Omollo, Samuel Bosire, Emmanuel O’Kubasu and Joseph Nyamu will now make do on their own, if the experience of their colleagues who were purged before them is anything to go by. (READ: End of an era as top judges sent packing)
A judge in Kenya at that level is entitled to a Mercedes Benz with a police driver, secretariat staff, messengers, guards in the office, on the road and at home; and gardeners.
House rent and utility bills are paid for by the State. But their colleagues who preceded them to “civilian” life have discovered that they have to drive in the streets on their own, brush shoulders with commoners and pay their own bills.
Those who have gone into private practice have at times appeared before magistrates’ courts to argue out cases for their clients.
And the four join a long list of judges and magistrates who have been kicked out of the Bench since 2003. They were sent home after the vetting board, led by former deputy director pubic prosecutions Sharad Rao, found them unfit to hold office.
Questions have also emerged regarding their place in the bar and how they should work in their new found situation after a life in the Judiciary.
While giving the damning verdict, Mr Rao, however, suggested a soft landing for the fallen judges, proposing “appropriate ways to make them useful in facilitating access to justice.”
One of the options is clearing them to practise as lawyers, a decision that would have to be made by the Law Society of Kenya, the umbrella organisation for legal practitioners.
Apparently, the four judges were some of the most experienced on the Bench, with Mr Justice O’Kubasu being involved in the training of magistrates and judges. He was also the chairman of the Council of Legal Education, where he oversaw the growth of Kenya School of Law.
LSK chairman Eric Mutua said the law practice of discredited judges hangs in the balance as their application for practising licences would have to be looked at vis-a-vis the ruling by the vetting committee.
“First, we work from the premise that they have been condemned, but we shall consider each case on its merit and we shall look at many factors. The most important is the decision by the Rao (vetting) committee,” Mr Mutua said.
Mr Mutua reckoned that the former judges still had a choice to do consultancy and write books based on their wealth of experience.
He advised the other judges and magistrates who are still on the Bench to consider resigning before the axe falls on them because “the bar has been raised so high it will take a brave soul to go through the tribunal.”
Other former judges who have been kicked out of the Judiciary over various allegations include Vitalis Juma, Otieno Kwach and Johnson Mitey.
Senior lawyer Peter Mwaura says some of the judges who left the Bench in 2003 are on the list of the LSK’s licensed members “but the LSK has no rules on what those judges can do or cannot do.”
“For the more than 70 magistrates let loose following the radical surgery, it also appears the LSK has no rules or guidelines as to what they can, or cannot, do,” he writes on Page 14 of this newspaper.
He says that letting judges and magistrates who have retired or have been removed from office to roam freely, is like letting members of the armed forces, who have been retired or been dismissed, loose in society complete with their arms, ammunition, and titles, without any rules of engagement.
Need to be regulated
“Judges who have retired or have been dismissed from the Bench need to be regulated as to what they can do or cannot do. There are two reasons for that. One is that those who have retired can use their former position in the Bench to compete unfairly with other practising lawyers. Or they can use their former position and inside knowledge of the system to circumvent justice.”
But LSK chief executive Apollo Mboya denies that there were no guidelines to govern the operations of judges who leave the Bench for the bar, saying they were based on the Commonwealth practice rules.
He told Saturday Nation that the Advocates Act stipulates under what conditions former judges can be readmitted to the bar.
“They must within six days of their exit from the Bench notify the LSK and the Judiciary registrar of their intentions,” he said.
One condition is that they should not work in subordinate courts as that would intimidate presiding judges or magistrates. The Act also bars them from taking up any contentious issues for a period of five years.
Senior Counsel Paul Muite said the former judges could practise because “you are not forcing Kenyans to appear before them.”
Justice (rtd) Mitey, who was edged out in the 2003 purge, said this week’s sacking of the four judges had literally destroyed one arm of government.
“The four judges who were shown the door had built legal precedents stretching for more than two decades. They also did not sit alone in their rulings. When you declare them unfit to be judges what would happen to their rulings?” asked the former judge, who went back to legal practice and business.
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