Photos/FILE Appeal Court judges Joseph Nyamu (left) and Samuel Bosire before the Judiciary Service Commission during the vetting of applicants shortlisted for the position of Chief Justice on May 4,2011.
By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, April 28 2012 at 22:30
Posted Saturday, April 28 2012 at 22:30
On July 31, 2006, High Court judge Joseph Nyamu sat in the “temple of justice” and waxed poetic.
He warned that courts must never shy away from doing justice as justice has the capacity to proclaim itself from the mountain tops and to open up the heavens for it to rain down on people.
On that day, he ordered Prof George Saitoti’s name expunged from the report of a judicial inquiry into the Goldenberg scandal.
The commission headed by Court of Appeal judge Samuel Bosire had recommended the prosecution of the former Finance minister over his role in the payment of billions of shillings to businessman Kamlesh Pattni for fake gold exports.
But Justice Nyamu, then head of the Judicial Division of the High Court (constitutional court), dismissed conclusions by the Bosire team as “entirely irrational and unreasonable,” saying they constituted fundamental errors of fact and were indicative of bias, failure to act fairly, faithfully and impartially.
The poetry with which the decision was conveyed is memorable: “Like so much straw into a burning fire let this order of certiorari consume all offending references... Like fire which converts everything to itself, let this order of certiorari remove and convert the dark spots... Like guided missiles hit only the target, let this order have the same effect by hitting only the targeted paragraphs which are in relation to the applicant (Saitoti) only.”
Prof Saitoti was a relieved man.
“It is indeed the hand of God that has guided the judges,” he said.
Justice Nyamu is one of the four Appeal judges sacked last Wednesday. Others were Justices Riaga Omollo, Emmanuel O’kubasu and Bosire. The thrust of Nyamu’s judgment was that the cash paid to Pattni had been approved by Parliament, and therefore, could not be an illegality.
Six years later, Justice Bosire’s conduct of the Goldenberg hearings and Justice Nyamu’s declarations on his findings returned to claim their careers on the Bench. Though there were other issues, the two judges fell mainly because of their decisions relating to Goldenberg.
But they were not alone and, therefore, their exit raises questions on the future of other judges who were part to the decisions.
Those include Justices Roselyne Wendoh and Mathew Emukule, who were Justice Nyamu’s partners at the Constitutional Court and shared the Saitoti judgment. High Court judge George Dulu also heard one of the Goldenberg cases, which saw former Central Bank governor Eric Kotut shielded from prosecution. Justice Nyamu was the head judge in both cases.
The four are among dozens of judges who are undergoing vetting.
For judges Nyamu and Bosire, it was a case of rivalry gone sour. One of the reasons cited for Justice Bosire’s exit was his decision to ignore a court order compelling the Goldenberg commission to interview all those mentioned adversely, including former President Moi, Prof Saitoti and former intelligence chief James Kanyotu.
“Bosire did not seek to challenge the order on appeal. He simply treated it as if it was not binding and ignored it… A more flagrant breach of the law is difficult to imagine,” said the Judges and Magistrates Vetting Board.
The judge had argued that the order was difficult to enforce, saying the number of those mentioned was as high as 1,500. Incidentally, the order was issued by Judge Nyamu, then at the High Court.
As head of the commission which investigated the scandal in which the country lost billions of shillings in fictitious exports of gold, Justice Bosire found himself in a rather awkward position where his decisions could be scrutinised, questioned or even overturned by his juniors. This is particularly unnerving in a profession that respects tradition and seniority.
It has been argued that Judge Bosire’s decision to ignore the order was driven by the fact that it was made by the diligent, if forceful Nyamu, his junior.
This perhaps explains his unsolicited counsel to President Kabaki when he submitted the inquiry findings. The judge advised the President that in future commissions should not be led by judges of superior courts.
But it is Justice Nyamu’s declarations on the Bosire report that later changed the Goldenberg narrative and extended the tug-of-war that subsequently robbed him his gavel.
After the conclusion of the Goldenberg hearings, Mr Kotut and Prof Saitoti sought refuge in Nyamu’s court seeking intervention against recommendations that they be prosecuted in connection with the scandal.
Judge Nyamu distinguished himself for his contempt for the Bosire report. Together with judges Wendoh and Emukule, he described the report as horrendous and flawed, and ruled that the two should not be prosecuted as recommended.
And, on November 21, 2008, judges Nyamu, Wendoh and Dulu terminated two cases against Mr Kotut on grounds they had been filed against him based on a “flawed” report. The effect of the decision is that it frustrated the prosecution of grand corruption. Other Golderberg suspects have used the decision to argue against their prosecution.
And now the vetting board has sent Judge Nyamu packing over concerns that his decisions made it difficult for the authorities – including the Attorney-General – to prosecute prominent figures.
“In each case, the rulings appeared to strain the law to such a manifest degree to produce impunity as inevitably to raise doubts in the public mind in relation to the impartiality of the court,” said the board chaired by former director of prosecutions Sharad Rao.
The board’s decision has attracted both praise and resentment. Mr Abdikadir Mohammed, the chairman of the parliamentary committee on the Constitution, praised the decision saying it was not only a constitutional demand but also critical in efforts to reconfigure the Judiciary.
He said the Judiciary had made significant gains, mainly due to financial independence and increased budget, which has fuelled the pace of reforms in an institution otherwise hitherto defined by corruption, lethargy, incompetence and support for the Executive.
“The vetting process is the brightest spot on ongoing renewal of the Judiciary. With financial independence and political will you can go places,” he said.
But former High Court judge Johnson Mitey, who left in the 2003 purge, mourned the exit of his colleagues terming it destruction of an entire arm of government.
“It opens the floodgates for complaints, some of which are baseless. Those purged were some of the best legal minds in the country,” he said.
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