By MURITHI MUTIGA mmutiga@ke.nationmedia.com
Posted Saturday, April 28 2012 at 22:30
Posted Saturday, April 28 2012 at 22:30
IN SUMMARY
- But it is an indictment to black Kenyan judges that few of them qualify to be on this list as many chose to toe the line of the ruling class
One of the arguments advanced in defence of the judges who were removed from the Judiciary is that they had no option but to toe the party line in the oppresive Moi regime under which they served.
Senior counsel John Khaminwa has been particularly vocal in pushing this careerist rationalisation of the judges’ behaviour:
“People were assaulted, corruption was rife in the country and many people were assassinated while others disappeared. We can’t blame this on judges by sacking them in public.”
Many others such as Law Society of Kenya vice-chairman Lillian Omondi dismiss this line as unconvincing. Judges, she said, had a duty to the parties that came before court to be impartial and to preside over their cases guided only by the letter and spirit of the law.
“The clean-up of the Judiciary is a positive development which has been long in the making. It will help restore the public’s trust in the institution and sets the bar very high in terms of the standards expected of judicial officers in the new setup.”
Yet although the last few weeks have highlighted the rot in the Judiciary in the past, not all judges went along with the whims of the Executive or the police at a time when the weak could not hope to get a fair hearing at the courts.
Even at the peak of the Moi and Kenyatta dictatorships, some members of the bench stood up to State House – and paid a heavy price for their actions.
Some of those in this list include the celebrated Chief Justice CB Madan and judges Frank Shields, Patrick O’Connor, Edward Torgbor and Derek Schofield.
Many of them lost their jobs in the courts for a variety of reasons. Justice Shields’ contract was not renewed after what he viewed as a harmless Law Society of Kenya dinner in 1991.
That was a time when the LSK was at the forefront of the calls for expansion of the political space in the country.
During the cocktail, LSK chairman Paul Muite delivered a speech that was heavily critical of the Moi regime. Many judges walked out during Mr Muite’s presentation. They and some pro-establishment lawyers argued that the LSK should steer clear of politics.
Justice Shields stayed in his seat. A few weeks later, he was informed that his contract would not be renewed.
Other judges paid the price for failing to read the State House mood in making calls on what were viewed as politically sensitive cases.
The vetting panel found that Justice Riaga Omollo displayed hostility to opposition leader Kenneth Matiba when he filed a petition challenging President Moi’s election victory in 1992.
Mr Matiba had suffered a stroke in detention earlier and could not sign the papers filed before court.
His wife, Edith, signed on his behalf. Justice Togbo from Ghana gave a sympathetic hearing to Mr Matiba’s lawyers and allowed the petition to continue. The Court of Appeal found differently and the petition was thrown out.
Justice Torgbor was shown the door soon after that. And his name came up when Parliament debated the Judicial Service Commission Bill with lawyer Otieno Kajwang’ praising him as one of the finest brains the Judiciary had in the 1990s.
In the same House debate, Justice O’Connor who had a fearsome reputation for independence and hard work was cited as another who was shown the door despite delivering beyond expectations. Lawyers said he would typically be in court at first light and would dispense with more cases than many of his colleagues.
But he repeatedly clashed with Chief Justice Cecil Miller who was unwaveringly loyal to President Moi. When Justice O’Connor challenged a transfer out of Nairobi, the CJ worked with Attorney General Mathew Guy Muli to draft a Bill which stripped judges of security of tenure.
Perhaps no two judges stood up to the Moi regime on a consistent basis than Justice Schofield and Justice Madan. Mr Madan, who was born and brought up in Kenya, became the first non-white judge in the country in 1961.
He served with distinction on the bench but his reputation for independence did not help his career prospects. In the Black Bar, lawyer Paul Mwangi writes that Justice Madan should have been promoted to the position of CJ as early as 1971.
Finally, in October 1985, with only a year to retirement, Justice Madan was made Chief Justice. In that one year he won wide praise as the finest CJ the country had known. Apart from the reforms he initiated, Justice Madan presided over a number of cases in which he ruled against the State.
In one of them, businessman Stanley Munga Githunguri, who had been cleared of exchange rate violations in 1980, saw the charges reinstated in what was viewed as a politically instigated trial.
Justice Madan roundly condemned the prosecution and in a lyrically poetic judgment he told Mr Githunguri he could walk out of the courts secure in the knowledge that the Judiciary would have no part in a political trial.
“We are of the opinion that to charge the applicant four years after it was decided by the Attorney-General of the day not to prosecute and thereafter also by neither of the two successors in office, it not being claimed that any fresh evidence has become available thereafter, it can in no way be said that the hearing of the case by the court will be within a reasonable time as required by the Constitution.... Stanley Munga Githunguri. You have been beseeching the court for an order of prohibition. Take the order. This court gives it to you. When you leave here raise your eyes up unto the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya!”
Justice Schofield likewise stood up to the State after the police killed rally driver Stephen Mbaraka Karanja and buried him without informing his family. Justice Schofield found that the police action had been “callous in the extreme” and insisted that Mr Mbaraka’s remains be exhumed for a post-mortem.
It is an indictment of black Kenyan judges that few of them qualify to be on this list. Two deserve mention. One was Justice Fidahussein Abdallah who was well respected for his independence before he died mysteriously just before he released his judgment in a case where Nakuru DC Jonah Anguka was accused of the murder of Foreign Affairs minister Robert Ouko.
The other was Justice Evan Gicheru who presided over the commission of inquiry into the death of Dr Ouko with such enthusiasm that the commission was disbanded.
As Nairobi Law Monthly publisher Ahmednasir Abdullahi noted in an article following a rare interview granted by the former CJ, Mr Gicheru also did himself credit by being the sole dissenting voice in the famous Tony Gachoka case where Mr Gachoka was sent to jail for an article which questioned the independence of the judiciary.
Yet Mr Gicheru’s hard-won reputation for independence was undermined in the Kibaki years. His explanation in the Nairobi Law Monthly interview on why he went ahead with the swearing in ceremony of President Kibaki despite the controversy surrounding the election result typifies the compliant judiciary Kenyans hope they have seen the last of.
“The responsibility of swearing in the President falls with the Chief Justice,” he said. “It is not me who goes to the President and tells him I will swear you in now.
All I know is that the responsibility falls with the Chief Justice. If I am told that the President is ready to be sworn in, what am I supposed to do? Who else would swear him in? If I wait a day, two days or a month what difference does it make? My view is that it would not have made any difference. The window of appeal was still open after the President was sworn in.”
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