KENYAN JURIST

BLAME NEITHER THE CONSTITUTION NOR THE COURTS

2011-12-15T06:51:00.000+03:00

PRESENTATION OF HONORARY DOCTORATE TO GEORGE BIZOS SC

DELIVERED AT SPRING GRADUATION CEREMONY
9 DECEMBER 2011

It is my sincere pleasure to be with you all today. I first want to thank the University of Pretoria for conferring this honour upon me. Being here today reminds me of the establishment in 1986 of the university's award-winning Centre for Human Rights as part of the efforts against apartheid. We should all be proud to be associated with a university whose Centre for Human Rights has made significant and numerous contributions to the advancement and strengthening of human rights and democracy across the African continent and abroad.

The title of my address today is "Blame Neither the Constitution nor the Courts." There have been many criticisms levelled against the Constitution and the courts, most of which are, in my view, unfair, unjustified and uninformed. Today I would like to discuss one particular target of criticism, namely, the ability of the Courts to declare government law or conduct that is inconsistent with the Constitution to be invalid.

We have seen in recent times many criticisms of the role of the courts in our constitutional democracy. I offer a few examples:

In an interview published in The Sowetan, Mr Gwede Mantashe, Secretary-General of the ANC, is quoted as saying that '...the judiciary is actually consolidating opposition to government' and that 'there is a great deal of hostility that comes through from the judiciary towards the Executive and Parliament,' and that judges were 'reversing the gains of transformation through precedents.'

Similarly, an article published by Adv Ngoako Ramatlhodi, chairperson of the Parliamentary Portfolio Committee on Justice and a member of the Judicial Service Commission stated that our constitutional framework reflects 'a compromise tilted heavily in favour of forces against change' and that 'power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party.'

During the Third Annual Access to Justice Conference in Pretoria, on July 8th 2011, President Zuma gave a speech where he said: 'Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel [that] other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms.'

Less than four months later, on November 1st 2011, in a speech given during a parliamentary hearing to say farewell to Chief Justice Ngcobo and welcome Chief Justice Mogoeng, President Zuma stated: 'we also wish to reiterate our view that there is a need to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation. Our view is that the Executive, as elected officials, has the sole discretion to decide policies for government.'

These criticisms have led to a number of recent lectures and papers on the role of the judiciary and the executive. Today I wish to contribute to that dialogue.

I start with a recent quote from my friend and fellow advocate Geoff Budlender, who said: 'The theory that the executive has a monopoly of wisdom on policy questions, based on a democratic mandate, strikes me as somewhat remote from reality.'

The tension between the executive and the judiciary is not new to South Africa. In the 1897 case of Brown v. Leyds N.O. , then Chief Justice Kotzé held that the besluiten (informal laws passed without notice by a simple majority vote) were invalid on the ground of incompatibility with the Grondwet (the Constitution). He held that sovereignty vested in the people of the Republic and not in the Volksraand (the South African Parliament at that time); that the Constitution created fundamental law with which Parliament was obliged to conform; and that it was the duty of the court to declare invalid measures which were not in conformity with the Constitution.

John Dugard describes what happened next:

'Kotzé C.J.'s judgment precipitated a major crisis, as its effect was to nullify a large body of legislation with the result that it could "safely be said that not a single institution in the land was legal." President Kruger's reaction was to push a bill through the Volksraad denying the constitutional competence of the judiciary to exercise the testing right, and empowering the President to dismiss any judge who failed to assure him that he would not exercise the "so-called right of testing." In response, the judges adjourned the High Court sine die. At this stage Sir Henry de Villiers, Chief Justice of the Cape Colony, arrived on the scene and, after discussions with both Bench and President, secured an agreement that the judges would forego the testing right in return for an amendment to the Constitution guaranteeing the independence of the judiciary and protecting the Constitution from amendment except by special procedure. The President, however, delayed the introduction of such legislation and Kotzé C.J. informed him that his undertaking not to exercise the testing right had consequently lapsed. The President thereupon dismissed his Chief Justice, and Kotzé after publishing an Appeal to the Inhabitants of the South African Republic, in which he warned of the dangers of Volksraad supremacy, left the Bench.' (emphasis added)

Later John Dugard writes:

'The final word on the judicial crisis belongs to President Kruger. At the swearing-in ceremony of the new Chief Justice, R. Gregorowski, he enunciated a biblical-trekker legal philosophy which still haunts the minds of South African judges and lawyers. "The testing right is a principle of the Devil," he warned. The Devil had introduced the testing right into Paradise and tested God's word. Judges accordingly were advised not to follow the Devil's way, as Kotzé C.J. had done!'

More than half a century later, in 1951, the National Party Government enacted legislation that disenfranchised coloured voters. A group of coloured voters challenged the enactment in the case of Harris v. Minister of the Interior (the Vote case) in which the Appellate Division in a unanimous judgment delivered by Chief Justice Centlivres found that the act was of no legal force.

Once again, John Dugard provides a succinct description of what happened next:

'The Government's response was to pass, again by the ordinary bicameral method, the High Court of Parliament Act, which provided that any judgment of the Appellate Division invalidating an Act of Parliament was to be reviewed by Parliament itself, sitting as a High Court of Parliament. After this High Court had set aside the decision in the Vote case, the High Court of Parliament was itself struck down by the Appellate Division in Minister of the Interior v. Harris (the High Court of Parliament case). This time the five judges (Centlivres C.J., Greenberg, Schreiner, Van den Heever, and Hoexter JJ.A.) gave separate judgments in which they all found that the High Court of Parliament was not a court, but simply Parliament in disguise, and that the entrenched sections envisaged judicial protection by a proper court of law. Legislation such as this, which deprived the entrenched sections of their judicial protection, could not be passed by the ordinary bicameral procedure.'

These are but two examples of numerous disputes between the executive and the judiciary in South Africa. These are also two examples of how the apartheid regime responded when it was unhappy with the judiciary. I hope that our current ruling party does not intend to follow either the regime's example or that of President Kruger. But I do have some concerns. The courts, as well as the individuals and organizations that bring human rights cases against the executive, to whom some impute false motives, have been subject to severe criticisms bordering on demonization.

South Africa is a constitutional democracy. All power, whether of Parliament, the executive or the courts, must be exercised in accordance with the Constitution, which is the final word on the powers and roles of each branch. The court is the guardian of fundamental rights and provides a forum for public debate so that the exercise of public power by democratically elected persons remains accountable. Judges' interpretations support the rule of law, not executive whims, and judicial review allows courts to declare law or conduct that is inconsistent with the Constitution to be invalid.

The process of drafting the South African Constitution was a long one that involved many people. There were many disputes and negotiations broke down for a time. Shortly after his release, Nelson Mandela visited the ANC Committee entrusted with drafting a proposed Constitution for South Africa of which I was a member. He said to us, 'Draft a Constitution that is good for South Africa as a whole and not only for the ANC.' And that is what we did. The Interim Constitution of 1993 contained 34 constitutional principles with which the new Constitution was required to comply. The Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public. In1996, a new text was adopted with the support of 86 per cent of the members of the assembly and was sent to the Constitutional Court for certification.

The Constitutional Court had been established in order to adjudicate as an independent and impartial body free of any political interference. Judges were to be (and still are) appointed by the President on advice of the Judicial Service Commission. At the time of the appointment of judges to the Constitutional Court, the Commission was accused of having chosen judges that were either members or supporters of the ANC and who would favour the ruling party.

Imagine the critics' surprise when the Constitutional Court unanimously refused to certify the first text of the Constitution, which had been supported not only by an ANC majority, as a number of its provisions did not comply with certain constitutional principles. Parliament took note of the Court's reasoning, amended the first text, and on December 4, 1996, the Court certified the Constitution, which was signed by President Mandela a few days later.

About a year after Nelson Mandela became President, the Constitutional Court heard an urgent application challenging legislation that purported to confer powers on the President to legislate, which President Mandela did by way of proclamations. The proclamations dealt with the vital local government elections that were soon to be held. An application was brought on the basis that the legislature may not empower the President to legislate and to the extent that the President purported to do so, he acted in conflict with the Constitution. Mr Mandela was named as one of the respondents.

The challenge was successful. In an 89 page judgment, the Court held that the provision purporting to empower the President to amend the legislation was inconsistent with the Constitution. That was a function of Parliament and not within the President's powers. This despite that all political parties had agreed that the President should have the power to do what he did.

That same day, Mr Mandela rushed to the television and radio stations of the SABC and declared that he had signed the proclamation believing that he had the power to do so but that he respected the decision of the Constitutional Court and appealed to all concerned to similarly accept the Court's decision. He announced that he would recall Parliament to pass legislation necessary for the elections to be held. What a pity that some of Mr Mandela's successors have not followed his example. Many current government office holders have spoken out against the Court's role in ensuring that the government acts consistently with the Constitution.

Since its inception, the Constitutional Court has invalidated a number of government laws and actions. But the constitutional check on government laws and actions is not the exclusive judicial domain of the Constitutional Court. Recently, on December 1st 2011, a five-judge panel of the Supreme Court of Appeal declared President Zuma's appointment of Adv Menzi Simelane as national director of public prosecutions to be unlawful. The decision serves as a reminder to the President that he is not above the law.

The Court in Simelane cited the 1997 case of Hugo in which Krigler J said: 'Ultimately the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands.' Citing from a speech of former Chief Justice Mahomed, the Court in Simelane also wrote:

'Dealing with critics who suggest that the power vested in the judiciary to set aside the laws made by a legislature mandated by the popular will, itself constitutes a subversion of democracy, former Chief Justice Mahomed, in an address in Cape Town on 21 July 1998 to the International Commission of Jurists on the independence of the judiciary, stated the following:

'That argument is, I think, based on a demonstrable fallacy. The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.'

These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.'

We should refrain from expressing a view on the correctness or otherwise of the Simelane decision as the Constitutional Court may hear the matter.

Anyone who suggests that any of the five judges who decided the Simelane case are "apartheid-era" or "apartheid-style" judges is seriously misinformed. None are. The four permanent judges on the panel were appointed to the Court of Appeal by the Judicial Service Commission. The fifth, an acting judge, was appointed by the present Minister of Justice and promoted to the Court of Appeal as an acting judge. Two of these judges devoted the greater part of their professional lives to working for the Legal Resources Centre. The Commission, the majority of whom are members of Parliament and nominees of the executive , under the guidance of former Chief Justices Michael Corbett, Ismail Mahomed, Arthur Chaskalson, Pius Langa, Sandile Ngcobo and Mogoeng Mogoeng, has had due regard to its constitutional duty to transform the judiciary, which, in my view, it has done successfully.

The Cabinet's pronouncement just two weeks ago that it will appoint a body to assess the decisions of the Constitutional Court must give rise to great concern. This undefined and amorphous assessment body dangerously risks repeating our unhappy history.

In terms of the Constitution, the Constitutional Court has no right to formulate government policy, but it does have the right to adjudicate whether the implementation of government policy results in the deprivation of rights. The Constitutional Court has often drawn attention to this distinction between policy creation and rights compliance. One need only read the Court's judgments in Grootbroom , the HIV case and the very recent unanimous judgment of the Court, authored by Justice Johann van der Westhuizen, in Blue Moonlight for clear examples. Those who are preparing to assess court judgments may reconsider the necessity of their proposed action if they and their advisors read the judgments. They may even begin to question whether the proposed assessment body will pass constitutional muster.

Any such body may be construed as a challenge to the independence of the judiciary, a value that we as South Africans should hold very dear. At this stage there are more questions than answers:

• What does "assess" mean?
• What will they assess?
• Will they assess the judgments, the judges or both?
• Who will conduct the assessments?
• How will the assessors be selected?
• Will the assessment body hold hearings?
• Will the lawyers who represented the parties be interrogated?
• Will judges have to offer additional explanatory reasons for their judgments?
• Is this going to be a new court of appeal and subvert the Constitutional Court, the highest court of the land?
• Will this open the floodgates to thousands of applications from those who lost before the courts?
• Did the cabinet have regard to the sections of the Constitution that guarantee the independence of the courts and prohibit anyone from interfering with court decisions?
• Will there be a challenge to the constitutionality of such an assessment body?
• And most importantly: for what purpose and to what end is this body to be established?

I do not have the answers to these questions. But here is what I do know. Court judgments, in which judges set out the reasons for their decisions, are public. These judgments are already commented on by the media, academics, journalists, and many others through public dialogue. What need is there for an executive-appointed assessment body to comment on these judgments? Will such a body have an adverse impact on the public perception of judicial independence, impartiality and integrity? Will such a body be perceived by some as an implied threat to the judiciary to toe the line? Will such a body demean the proper administration of justice?

Judges are not infallible. And that is why we have superior courts to which one can appeal. There is no reason to establish a new oversight body not provided for in the Constitution. Nobody likes losing cases but this idea of assessing the decisions of the Constitutional Court, or any other court for that matter, is neither prudent nor wise. Any such assessment body would take the people of South Africa down a road that is unconstitutional, unreasonable, unsustainable, and that must be construed as nothing less than a resurgence of the methods of the apartheid regime.

How ironic that the very party that fought so hard against apartheid is now considering adopting one of the regime's most devious methods. The idea of assessing the courts is completely contradictory to the spirit, purpose and object of the Constitution and to the legacy of Nelson Mandela. Those responsible for conceiving of this assessment body should take the trouble to read section 165 of the Constitution, which guarantees the independence of our courts.

I believe there may in fact be a need for assessment but not an assessment of the work of our courts. Rather, the executive would be well advised to look in its own backyard and assess the constitutional validity of its laws and policies. If these laws and policies are contrary to the provisions of the Bill of Rights or other parts of the Constitution, the Courts are obliged to declare the laws and policies, or the implementation of any part thereof, to be invalid.

HOPE FOR THE FUTURE

I have been practicing law since 1954 and did so particularly during apartheid. I reject any suggestion that little has changed in South Africa since the Constitution. Tremendous advances and fundamental changes have come about, particularly in relation to the administration of justice. During apartheid, judges and magistrates, with rare exceptions, were keen supporters of the apartheid regime and believed in the superiority of the white man. Today we have an independent judiciary, a Constitution which is admired both within and beyond our borders for its Bill of Rights, and safeguards to prevent breaches of these enshrined rights.

Reasoned criticisms of the Constitution and the Constitutional Court by anyone – politician or citizen, lawyer or non-lawyer – are welcomed and indeed are integral to our functioning as a constitutional democracy. But they must be well-informed, rational and reflective of the law.

The resilience of the human spirit is a powerful thing. I have always been touched by the innate goodness, incredible generosity and unyielding courage of the human spirit, particularly of those who suffer most. It is not only well known leaders whom I admire, but also the women in rural areas who burned their passes, the children who refused to attend school on the first day Bantu education came into being, the men who challenged their banning orders, the men and women who were detained without trial, the family members whose sons and daughters were executed, and many others.

They are responsible for my optimism. It is why I defended hundreds of political prisoners during apartheid despite repeated threats from the regime. It is why, at the age of 83, I continue to practice law. It is why I am so honoured to be with all of you here today: to spread the message and to see your young faces full of hope and optimism. Please do not lose that.

The effect of a Constitution on a society does not depend entirely on the content of the Constitution itself. The Constitution can only provide a state with the tools to govern. How those tools are used depends on those elected to govern.

Our Constitution entrenches some of the deepest values that we share as a people. The Constitution does not and indeed cannot provide easy solutions to all of the moral, social, economic and political dilemmas that we face. We have agreed to the principles, but the application of these principles to specific cases must be done in the courts and through public dialogue. The pursuit of justice is a never ending struggle and in defining our rights, there will of course be times when we disagree, but each day, through court judgments and public dialogue, we reinforce the shared values in our Constitution that unite us as a country.

We must recall the words of prosecutor Benjamin B. Ferencz who, during the Nuremberg Trials following the defeat of Nazi Germany, said: "There can be no peace without justice, no justice without law and no meaningful law without a court to decide what is just and lawful under any given circumstance."

The history of South Africa is a dark one stained with profound injustice. But today the principles of equality and dignity govern. As global citizens, it is our responsibility to articulate the discourse around human rights in order to foster its continued development in South Africa and its continued growth all over the world. This is hard work, but let us be hopeful that this generation will meet those challenges and ensure that justice is protected in order to foster the spread and growth of democracy, the rule of law and human rights where they are needed most.

Injustice in South Africa is far from conquered and there will be many challenges in the future. But if we follow the Constitution, our most fundamental law, I am optimistic that we will not go wrong.

George Bizos SC

9 December 2011

Pretoria

Adieu .....

2011-09-02T17:03:00.000+03:00

Justice Mumbi Ngugi congratulated by the President upon being sworn in as Judge of the High Court

I was sworn in today, 2^nd September 201,1 as a judge of the High Court of Kenya. As part of a team of 27 HighCourt Judges, I join the bench, after a competitive, rigorous and transparent process under a new Constitutional dispensation that values freedom, transparent, accountability and all those national values set out in Article 10 of the Constitution. I have of course been reflecting on what happens to this blog. For me, it has been a labour of love and a space where I can think aloud without the usual constraints that accompany old media. As an advocate I had the freedom to think aloud and make comments on any issue. My current position now makes this difficult. Judicial service comes with an obligation to be independent, impartial. A opinion blog like may lead the public to a different conclusion.

The Public Officers Ethics Act, 2003 (No. 4 of 2003) Judicial Service Code of Conduct and Ethics established by the Judicial Service Commission under section 5(1) of the Act provides as follows;

RULE 14

PUBLIC STATEMENTS AND COMMUNICATION WITH THE PRESS

1. A judicial officer and any officer in the Judicial Service shall not make public statements on matters affecting Government programmes or policies of the Judicial Service without the specific authority of the Chief Justice. A public statement includes communicating with the press;

2. A judicial officer shall not, without express permission of the Chief Justice:

(a) act as the editor of any newspaper or take part directly or indirectly in the management thereof; nor

(b) publish in any manner anything which may be reasonably regarded as of a political or administrative nature, whether under his own name, under a pseudonym or anonymously.

3. A judicial officer, and any officer in the Judicial Service whether on duty or on leave of absence, should not allow himself to be interviewed on questions of public policy affecting Kenya or any other country without the permission of the Chief Justice.

4. Whilst it is not desired to interfere with a judicial officer’s liberty of free speech, any lack of discretion on his part likely to embarrass the Government or the Judicial Service may result in appropriate consequences for the officer responsible.

This is not a easy or simple matter as Article 168 of the Constitution provides that a judge of a superior court may be removed from office only on grounds of, "a breach of a code of conduct prescribed for judges of the superior courts by Act of Parliament."

I hope that in the future that this there will be discussion how judicial officers can contribute to public discourse about administration of justice and rule of law, of course having regard to their ethical obligations to be independence. After all, the Constitution provides that judicial authority is derived from the people in whose name it is exercised.

Thank you all for your support in immeasurable ways. The proceedings on this blog are now adjourned sine die ….

Githu Muigai Appointed Attorney General

2011-08-29T08:02:00.000+03:00

Githu Muigai, Attorney General courtesy of Capitalfm

I would be remiss if I did not mention that the distinguished law professor, Githu Muigai has been appointed the Attorney General succeeding the long serving Amos Wako. Professor Muigai's credentials are impeccable and it is not surprising that he is the only survivor of the ill fated legal trio whose nominations were sunk by the court. Prof. Muigai is expected to be sworn in today.

Supreme Court Judges Sworn in, High Court Judges Appointed

2011-08-28T16:27:00.000+03:00

(Sitting Left to Right) Njoki Ndung'u, JSC, Dr Willy Mutunga, CJ, President Kibaki, Nancy Barasa, DCJ, Mohammed Ibrahim, JSC, (Standing Left to right) Philip Tunoi, JSC, Dr Smokin Wanjala, JSC, Glady Boss-Shollei, Chief Registrar, Prof. Jackton Ojwang', JSC

The 1st Anniversary of the Constitution is here. Changes abound and reform continues ......

Supreme Court Judges

After dismissal of the case filed by FIDA on Thursday, 25th May, the Supreme Court Justice were sworn in the next day Friday. The Supreme Court, which is the apex court in the judicial hierachy is expected to be the final arbiter of the contentious legal issues of the day. It is important to point out that the court has no original jurisdiction to hear constitutional cases. Similarly, the court will have to decide the extent of its advisory jurisdiction after the Court of Appeal declined to express its view on the matter by declining jurisdiction. The main agenda for the court now will now be the promulgation of its rules under Article 163(9).

High Court Judges

The Judicial Service Commission (JSC) announced the appointment of 28 High Court judges. Prof Ngugi Joel Mwaura, Ngugi Grace Mumbi (Ms.), Mutava Joseph Mbalu, Muriithi Edward Muthoga, Nyamweya Pauline (Ms.), Kimondo George Kanyi, Majanja David Amilcar Shikomera, Githua Cecilia Wathaiya (Mrs.), Jaden Thuranira Beatrice Nthiori (Mrs.), Korir Weldon Kipyegon, Grace Lidembu Nzioka (Mrs.), Meoli Christine Wanjiku (Mrs.), Ong’undi Hedwig Imbosa (Mrs.), Mutuku Stella Ngali (Ms.), Wakiaga James, Ougo Rose Edwina Atieno (Mrs.), Ogola Erick Kennedy Okumu, Odunga George Vincent, Stella Munai Muketi (Mrs.), Havelock Jonathan Bowen, Chemitei Hilary Kiplagat, Makau James Aaron,Tuiyot Francis, Korir Roseline Cherotich Lagat (Mrs.), Mwongo Richard Mururu,Mabeya Alfred, Achode Lydia Awino (Mrs.) and Mshila Abigail (Mrs.). The Chief Justice described the choices as "excellent", saying the JSC was guided by the constitutional values of transparency, openness and fidelity to the law. "We have picked candidates from rich diversities decreed by the Constitution and law, including gender, ethnicity, county, generation, minorities and other forms of marginalisation. We have recruited 14 women, two Kenyans in the Diaspora, a Kenyan European, a woman with albinism, 11 serving magistrates and this representation is also from various countries." The judges are expected to be sworn in on 30th August 2011.

Chief Registrar of the Judiciary

The JSC also announced the appointment of Gladys Boss-Shollei as the Chief Registrar of the Judiciary. She takes over from Ms Lydia Achode who is now a High Court judge. The Chief Registrar of the Judiciary is an office established under Article 161(2)(c) of the Constitution and is designated as the chief administrator and accounting officer of the the judiciary. The Chief Registrar is also the secretary of the JSC and administrator of the Judiciary Fund.

South Africa President nominates Chief Justice

In the meantime, President Zuma nominated Justice Mogoeng Mogoeng', a judge of the Constitutional Court, as his nominee for the position of Chief Justice of South Africa. The Judicial Service Commission is set to hold public hearings next month. The nomination has stirred controversy and more details can be found here.

Land Disputes Tribunal Act to be repealed.

2011-08-18T18:44:00.000+03:00

The proposed Land and Environment Court Bill, 2011 proposes to repeal the Land Disputes Tribunal Act (LDTA). I think the LDTA was a political palliative for the wananchi. The thinking at the time was that the wananchi would be happy to have their disputes resolved by the wazees rather than the courts which were considered. This Part III of the Magistrates Court Act was thus repealed to pave way for the Land Disputes Tribunals. I don’t think the Act was useful in resolving land problems because it turned out that the High Court held, in several judicial review cases, that the Tribunals had no jurisdiction to deal with matters affecting title to land. The repeal of the land jurisdiction of the Magistrates Court, merely meant that the High Court took up most of the cases relating to land. Repeal of the Land Disputes Tribunal Act without more will put enormous pressure on the proposed Environment and Land Court. This provision should be accompanied by a suitable amendment to the Magistrates Court Act enabling subordinate courts to deal with a defined class of land cases..

Some cases and comment.

2011-08-17T14:08:00.001+03:00

Authority to commence prosecution for Anti-Corruption Offences

Under the provisions of Anti-Corruption and Economic Crimes Act, sections 35, 36 and 37, the Kenya Anti-Corruption Commission (KACC) must report its investigation to the Attorney General and its report, it may recommend prosecution of a person for corruption or economic crimes. The AG may, in turn, either accept or regret the recommendation to prosecute. Where the AG rejects the recommendation to prosecute, his report to the National Assembly shall set out the reasons for not accepting the recommendation.

In the case of Nicholas Muriuki Kangangi –vs- The Attorney General Nairobi Civil Appeal No. 331 of 2010 (unreported), the Court of Appeal considered the case where the accused, charged under the provisions of the Anti-Corruption and Economic Crimes Act, challenged his prosecution on the basis that the prosecution was conducted in violation of the Act. The accused, after investigation by KACC, was charged through the Kenya Police for offences under the Act. The Court of Appeal held that the charges were ultra vires the Act as it was clear that the procedure prescribed by the Act was not followed. In essence, the court held that KACC cannot circumvent the provisions of the Act, by enlisting the Kenya Police to prosecute the matter where the Attorney General has not accepted the recommendation to prosecute the accused for charges under the Act.

The proposed Independent Ethics and Ant-Corruption Bill, 2011 seeks to grant the successor commission power to prosecute any matter within its mandate.

Legal Contortion and Stay of an injunction

The Court of Appeal has been criticized for its formal and legalistic approach to issues. One of the controversial issues that comes up from time to time is whether the court in exercise of its jurisdiction under Rule 5 (2) (b) of the Court of Appeal Rules can stay an order of injunction issued by the High Court. Though the court has been divided on this issue the preponderance of authority is that it cannot do so because the effect of such an order would be to dissolve the injunction before hearing of the appeal. In the case of Interim Independent Electoral Commission &Another –vs- Paul Mwangi [2011] EKLR, the Court of Appeal held that the overriding objective principle under enacted by sections 3A and 3B of the Appellate Jurisdiction Act entitled it to consider the peculiar circumstances of the case and issue an order “suspending the operation of the injunction issued by the High Court.” The order was issued under prayer D of the Motion which prayed, “that court issue, such further, other and consequential orders this Honourable Court deems fit and just. “ In a warning reminiscent of Bush –vs- Gore the court stated, "We must caution however, that it is not in all cases that an omnibus prayer as couched in “prayer [D]” would attract independent orders. As stated earlier, this is a peculiar case.” The court actually struck out all the substantive prayers for injunction. But for the overriding objective the application would have had no legs to stand on.

Appellate Jurisdiction and the Courts of High Court Status

2011-08-16T16:46:00.000+03:00

In the case of the Interim Independent Electoral Commission & Another vs Paul Waweru Mwangi Civil Application No. NAI 130 of 2011 (unreported) (eKLR) (the Kamukunji By Election Case), the Court of Appeal had this to say about its jurisdiction, “The jurisdiction of the Court of Appeal as provided in Section 164(3) of the Constitution is not different form its jurisdiction under Section 64(a) of the former Constitution. It is limited to “hear appeals from the High Court” and in any other Court which Parliament may prescribe….” The Constitution at Article 164(3) provides that the Court of Appeal has jurisdiction to hear appeals from (a) the High Court and (b) any other court or tribunal as prescribed by an Act of Parliament. Accordingly, then the scope and exercise of appellate jurisdiction must be in accordance with the provisions of the statute. At common law a court has no jurisdiction to hear an appeal against a decision of another court. It can only do so if that authority is conferred on it by the statute under which it is constituted, and then it must function in terms of that statute.

Section 16 of the Environment and Land Court Bill, 2011 provides that “Appeals from the Court shall lie to the Court of Appeal against any judgment, award, order or decree issued by the Court in accordance with Article 164(3) of the Constitution.” This kind of provision is not helpful as it merely re-states the power of the Courts to hear appeals. Appeals from the High Court exercising civil and criminal jurisdiction are regulated by the Civil Procedure Act and the Criminal Procedure Code. As a general rule, where the High Court exercises original jurisdiction, there is a direct right of appeal and to the Court of Appeal. Where the High Court exercises appellate jurisdiction, the second appeal is usually limited to matters of law. Interlocutory appeals are limited by way of provision for leave from either court.

As drafted section 16 means that the Court of Appeal will be inundated with appeals on both final and interlocutory matters. These provisions negate one of the principles of the overriding objective that interlocutory appeals must be kept at a minimum. The general trend is to limit the scope of interlocutory appeals as these have the effect of delaying litigation but also increasing costs.

The Employment and Labourt Court Bill, 2011 takes a different approach. Section18 provides that any party to any proceeding may appeal to the Court of Appeal against any final judgment, award or order of the Court. Section 18(2) further provides that the appeal shall be limited to matters of law only. Two issues are to be noted; First, interlocutory appeals are excluded completely from the scope of appeals and second, whether the appeal is from an original or appellate judgment, award or order the appeal will be only on a matter of law.

It is imperative the right of appeal in both bills be harmonized with that provided for in the High Court exercising general jurisdiction in order to ensure equality of litigants.

Weekend Miscellany

2011-08-06T13:05:00.000+03:00

Meanwhile a round up of some stuff going on legal circles while I was away ......

Vetting of Judges and Magistrates Board Members nominated

The President in consultation with the Prime Minister has nominated Sharad Rao as the Chairman of the Vetting of the Judges and Magistrates Board. Other members include Justus Munyithya, Roseline Odede, Ngotho wa Kariuki, Meuludi Iseme and Abdirashid Abdullahi. They shall be appointed once approved by the Parliament.

Sharad Rao was appointed to the position of Director of Public Prosecution in the 1980 under the then Attorney General Charles Njonjo. Justus Munyithya and Roseline Odede are members of the Council of the Law Society of Kenya.

Subordinate Court Jurisdiction on employment and labour matters

The Chief Justice by Gazette Notice No. 9243 dated 27^th July 2011 has now designated all Courts in the 47 Counties presided over by magistrates of the rank of Senior Resident Magistrate and above as Special Courts to hear and determine employment and labour relations cases within their respective areas of jurisdiction. The matters relate to the following specific areas; work injury related matters, offences under the Labour Institutions Act, 2007, offences under the Employment Act, 2007, offences under Occupational Safety and Health Act, 2007 and offences under the Labour Relations Act, 2007.

Section 12(1) of the Labour Institutions Act grants exclusive jurisdiction to the Industrial Court to deal with all disputes between employers and employees. This situation had created practical problems in the filing of claims as the Industrial Court only sits in Nairobi and the ordinary civil courts have turned away litigants who seek to file suits. To deal with this problem the Deputy Chief Justice issued the circular dated 27th June 2011 instructing heads of stations and deputy registrars as follows, " Kindly note that claims arising out of employer/employee relationship that are of tortuous nature are not labour disputes and therefore fall within the jurisdiction of the courts and should be filed in the court not in the industrial courts. Kindly, note this clarification in order that litigants of this king are not any more sent away from the courts."

The practice direction has now been superseded by the Notice issued by the Chief Justice. I have discussed the issue of exclusivity and criminal jurisdiction of the Industrial Court and I now hope this issue can now be laid to rest.

Court allows Kamkunji By Election to proceed

On 29th July 2011, the Court of Appeal issued an orders suspending the orders of the High Court stopping the Kamukunji by-election. Relying on its own previous decisions, the court noted, "We nevertheless appreciate too the right of the people and electorate of Kamukunji Constituency to participate in national debate through a lawfully elected representative, particularly at this crucial time .... There must therefore be a delicate and proportionate balance to achieve a just result. There is no telling when the applicants and the respondent will finalise their battle in court." The date for the by-election has now been set for 18th August.

President appoints member of the JSC

The President has nominated Dr Samuel Kobia to be a member of the Judicial Service Commission. He replaces Bishop Anthony Muheria who resigned. The nomination is subject to parliamentary approval.

Extension of term of South Africa Chief Justice unconstitutional

In a ringing endorsement of the principle of judicial independence, the Constitutional Court of South Africa declared that the purported extension of the term of the Chief Justice of South Africa, Justice Sandile Ngcobo by President Zuma was unconstitutional. By the time the court rendered its decision the Chief Justice had in fact indicated to the President that he would be leaving office by 14th August 2011. The President must now appoint a new Chief Justice by 15th August.

Reflections on the end of Term

2011-08-05T15:02:00.000+03:00

Naked Justice, Supreme Court, Nairobi

Another court term has come to an end. Time for reflection and accounting. I am afraid my court report is not good. My performance is below par as there is little turnover of cases heard and determined. The promise of the new rules and the overarching "Overriding Objective" is yet to be felt or implemented. In order to move forward, I think, there must be a concerted effort to clear backlog which can only be done with sufficient judges and magistrates and co-operation of counsel.

I also think that implementation of the "overriding objective" requires a change of attitude and a level of pro-activeness by the court and practitioners. The implementation of the O2 principles relies on control of proceedings by the court. Thus, the first plank of implementation is intensive training of judges and magistrates on the application of the new rules. I have just seen, in the newspapers, a request for expression of interest for a consultancy to develop a curriculum for training on the Civil Procedure Rules, 2010 and Court of Appeal Rules, 2010 for the Judicial Training Institute. I hope this signals an investment in training of court officers.

Without judicial control, the second plank of the O2 principles is unlikely to be achieved. Part of the problem of delay and backlog is attributed to the manner in which advocates prepare and try cases. Court insistence on meeting timelines and sanctioning advocates with costs for non compliance with directions will assist the court in meeting the overriding objective. I hope that the LSK CLE programme will be an avenue for education and training. Good trial advocacy is indispensable if the overall objective of expeditious, fair and just disposal of suit is to be achieved.

The third plank for success is investment in appropriate technology. I believe that a substantial amount of time spent on manual recording of proceedings will be saved by instant and computerized recording. This must be implemented as soon as possible. Technology will also assist in tracking of cases and allocating resources where they are required. In fact without appropriate technology, it will be difficult to make any headway in speedy determination of cases.

Another issue that must be dealt with is the 3-judge High Court Bench. The constitution of a three judge bench to hear a matter for one, two or three days has a horrendous effect on other cases in the High Court. The Constitution requires that where a matter raises substantial issues of law are raised in a matter of enforcement of the Bill of Rights or interpretation of the Constitution then the matter will be heard by a minimum of three judges. It is now apparent that the High Court is facing a deluge of constitutional cases which demand quick resolution yet there must be had, regard to the scarcity of judicial resources to deal with all the cases I would suggest that the Chief Justice issue a practice direction, where possible to determine what constitutes "substantial issue of law."

I still lament the death of the commercial court!

Jurisdiction of the Courts of High Court Status

2011-07-30T15:05:00.000+03:00

I have no doubt that the proposed Employment and Labour Relations Court and the Environment and Land Court (High Court Status Courts) to be established under Article 162(2) will lead to a lot of litigation. I have written about some of the issues here and I think the overarching issue of jurisdiction will give the courts some heartburn.

Exclusivity of Subject Matter

The nature and extent of the jurisdiction of High Court Status Courts to be established under Article 162(2) deal with specific subject matter. First, there is the issue of exclusivity of the subject matter. It is argued that on a reading of Articles 162(2) and 165(5) means that the court must be empowered to deal exclusively and wholly with the subject matter as defined. So that if the Employment and Labour Relations Court is empowered to deal with labour matters then that court is to deal with the whole spectrum of matters regarding labour including criminal matters. Second, the argument is then extended further to argue that Article 162(2) does not grant authority to the legislature to create a “court system” so that subordinate court cannot be granted jurisdiction to deal with the subject matter of the courts defined by Article 162(2).

Parliament to Determine Jurisdiction

The answer to this question is to be found in Article 162(3) which is clear that “Parliament shall determine the jurisdiction and functions of the court contemplated in clause (2).” Parliament is thus entitled to determine the nature and extent of that jurisdiction including the exclusivity aspect. Article 162(2) does not require that the High Court Status Courts shall deal with all the disputes but that Parliament shall determine the extent of that jurisdiction. The import of Article 165 then is that once the jurisdiction of that court is provided for then that of the High Court is excluded.

In addition to the power granted to the legislature to determine the jurisdiction of the High Court Status Courts under Article 162(2)¸ parliament is empowered by Article 169 to enact legislation conferring jurisdiction, functions and powers to subordinate courts. The implication of this is that the court may grant subordinate courts the jurisdiction to deal with the subject matter granted to High Court Status Courts under Article 162(2) and confer appellate jurisdiction to that court.

Criminal Jurisdiction

To my mind, the issue of criminal jurisdiction should not arise in the case of the High Court Status Courts. A plain reading of Article 162(2) is that the courts so established are intended to “hear and determine disputes.” Criminal matters are not, in my view disputes as contemplated by the article. As a practical matter though, conferring criminal jurisdiction to special status court would pose serious challenges of access to justice. Imagine a system where the High Court was dealing with all types of criminal offences. The system would be simply overwhelmed thus it make sense to remove criminal offences from the High Court Status Courts.

Interpretation of the Constitution and enforcement of the Bill of Rights

One of the issues that need resolution is whether the High Court Courts have jurisdiction to enforce the Bill of Rights under Article 23(1). The proposed Employment and Labour Bill, 2011 seems to imply that the court has such jurisdiction. Jurisdiction over enforcement of Bill of Rights matters can only be donated, by Parliament, to subordinate courts in accordance with Article 23 (2) of the Constitution. Unless the High Court Status Courts are deemed to be the High Court for purposes of these provision then such jurisdiction would be lacking. Since Parliament is empowered to define the jurisdiction of the High Court Status Courts, does this power include the power to carve out from the Constitution jurisdiction ordinarily granted to the High Court outside the subject matter of Article 162(2)?

Ultimately the contours of jurisdiction will have to be determined by practical issues relating to access to justice, within the constitutional framework.

Certificate of Urgency and midweek miscellany

2011-07-19T20:56:00.000+03:00

The last two weeks of the court term are usually hectic hence my inability to post as much as I would like. Due to the dysfunctional nature of our practice, we now practice by way of Certificate of Urgency where the only way your matter can be heard or fixed for hearing is if you file an application under certificate of urgency.

Independent Commissions and salaries

The CIC pay saga has brought to the fore the role and cost of Commissions and Independent Offices established under the Constitution. In the context of the Kenyan Constitution, these independent bodies are a response to the imperial presidency, all powerful executive and the general distrust of politicians. They are sometimes referred to as fifth branch of government. The focus on salaries and costs alone I think is misplaced. This debate does not take into account the overall or aggregate benefits of these bodies. If we were so worried about the expense of these commissions, would we dissolve the CIC and let the politicians run the show. Or if we found the remuneration bill of the JSC on the higher side, would we let the President pick the judges himself.

I agree that the remuneration of Commissioners must be rationalised and I expect another Commission; the Salaries and Remuneration Commission, will look into these matters. It must also be accepted that the public service pay can never match that of the private sector. Public service does not require a vow of poverty but demands civic consciousness.

New Commissions and self preservation

One of the features of the Labour Court Bill, 2011 is that it tries to parachute the current judges into new positions without the necessity of some public examination and assurance that they meet the requirements and standards set by the Constitution. The Ombudsman Commission Bill, 2011, the Kenya National Human Rights Bill, 2011 and the National Gender Commission Bill, 2011 all have the same transitional provisions saving the current commissioners and entitling them to futher fixed terms.

A good case can be made for ensuring continuity of institutions but if our national agenda is that of renewal, of promotion of accountability, transparency, good governance and above all establishing a new constitutional order, isn't it proper that all incoming commissioners of these bodies be subjected to the same rigour and standards the Constitution demands. Such standards must not be confined to the judiciary.

Vetting Panels are the in thing!

High Court and Constituency Boundaries

The current impasse on constituency boundaries is the result the High Court granting an injunction restraining publication of the constituencies delineated by the now defunct Interim Independent Boundaries Commission. The 5th Schedule of the recently enacted Electoral and Boundaries Commission provides for the resolution of the issues arising from the first review. Section 4 of the schedule provides that a person may apply to the High Court for review of a decision of the Commission made under the Constitution or the Act. Article 89 of the Constitution is also to the same effect save that the period the court is expected to decide the matter under the Constitution is three month and not one month as provided in the Act.

Given the controversy surrounding the last review, the High Court will obviously be the final arbiter of Constituency Boundaries. Both the Constitution and the Act do not determine or prescribe the guidelines, remedies and procedure on how the court should exercise jurisdiction. The difficulties of this should not be underestimated. Let me give two examples.

The first concerns, the name of a constituency or ward. A group of constituents assert that the name of that constituency does not reflect the history of the area, or is negates the contribution of a section of the community. If the court agrees does it rename the constituency or refer the matter back to the Commission for consideration of another name.

The second concerns actual boundaries. Say a person from Lurambi Constituency complains about the boundary. There are no appeals regarding the neighboring constituencies. Obviously, interference with the Lurambi boundary would affect the neighboring constituencies like Shinyalu, Ikolomani, Mumias and Malava. In the event the case is made for interference the court will have several options in the case; redraw the boundaries itself or direct the Commission to act in accordance with its directive by redrawing the boundaries.

The Chief Justice, as the rule making authority, will require to promulgate rules for the purpose of operationalising these provisions as lawyers prepare to litigate.

Chief Justice, Supreme Court and litigation

It is not only in Kenya that the position of Chief Justice is under litigation. The reappointment of the South Africa Chief Justice, Sandile Ngcobo is under consideration by the Constitutional Court. In the meantime, the case challenging the appointment of the judges of the Supreme Court of Kenya has now commenced after the judges dismissed an application by the applicants seeking to have Justice Mwilu disqualify herself from the matter on account of her relationship with the Attorney General.

The Disciplinary Committee and the Midweek Miscellany

2011-07-13T20:13:00.000+03:00

Naomi Wagereka, Member of the Advocates Disciplinary Committee courtesy The Standard.

The Disciplinary Committee

I would like to correct some impressions created by Pravin Bowry in his article titled, “Spotlight need to shine on lawyers too” in regard to the Disciplinary Committee. Firstly, the Disciplinary Committee is not an “in house Committee of the Law Society of Kenya.” It is a statutory body established under the Advocates Act (Cap 16 of the Laws of Kenya). It is headed by the Attorney General or his duly appointed representative. Though the secretariat of the Committee is housed by the LSK, the Committee functions independently and its decision making is not influenced by the LSK.

Secondly, the Committee is a judicial body which hears complaints against advocates on matters relating to professional misconduct. The Committee does not investigate complaints itself but hears complaints brought before it by the Advocates Complaints Commission, the Law Society of Kenya itself or any person who has a complaint against an advocate. Anyone, including the KACC can lodge a complaint regarding professional misconduct against an advocate. The Committee as a judicial body, is bound by the rules of natural justice and must make its decision according to the law and based on the evidence before it.

Thirdly, where criminal offences are committed by advocates, then the relevant authorities, like KACC, the Police and the Registrar of the High Court must take action. That Mr Bowry is aware of criminality and does nothing in the position he holds is perhaps an indictment on that office. The status of an advocate does not confer immunity and anyone with evidence of wrongdoing must take the issue to the relevant authority.

The Committee sits every Monday, whenever possible, at the Professional Center. Its proceedings are open to the public.

Illegally acquired land; Minister to seek Supreme Court Opinion

Demands on the Supreme Court are not relenting. Honourable Orengo, the Minister of Lands, says that he will seek the Court opinion of the validity fraudulently obtained titles. The Government strategy to invalidate titles has been to issue gazette notices. This has come under scrutiny by the courts and if recent decisions are anything to go by, this strategy is destined for failure.

I think this is an issue that should be tackled through the legislative process rather than the judicial process. The judicial process may not yield or permit the necessary outcomes that take into account various policy objectives of the state and balance them with individual rights. Article 40(6) of the Constitution excludes unlawfully acquired land from the scope of protection. The legislature should take the cue and enact appropriate legislation that ensures due process.

HIV and AID Tribunal

The HIV and AIDS Tribunal established under the HIV and AIDS Control Act (ActNo. 14 of 2006). The Act creates a legal regime that promotes public awareness on matters of HIV and AIDS. More importantly, it provides a regime for the protection of the human rights and liberties of persons infected by HIV and AIDS by prohibiting compulsory HIV testing contrary to the provisions of the Act, guaranteeing the right to privacy of the individual, outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected of having HIV and AIDS and ensuring the provision of basic health care and social services for persons infected with HIV and AIDS.

The tribunal is vested with jurisdiction to hear and determine complaints arising out of the breach of the provisions of the Act and is entitled to award damages.

The tribunal is headed by Ambrose Rachier, a Nairobi based advocate.

CIC Commissioners pay

CIC Commissioners are constitutional officers and their remuneration is governed by the Constitutional Offices (Renumeration) Act (Chapter 423) which sets out the salary scales applicable for particular offices. The fact that the Commissioners have not been paid for seven months is disconcerting and may negatively affect the implementation of the Constitution. One may not be wrong to conclude that the failure to pay salaries may be intended to put pressure on the Commissioners, who have been very vocal in voicing their concerns on the pace of implementation of the Constitution.

Gender and the Constitution

This article raises interesting issues on gender and the Constitution. Is the not more than two-thirds requirement cast in stone? This issue will ultimately be answered by the courts.

Kituo cha Sheria and Access to Justice*

2011-07-10T18:34:00.001+03:00

Courtesy of Joan Litivini

This week Kituo cha Sheria celebrated its 38^th Anniversary. Founded primarily as a legal aid organization for empowering the poor through the provision of legal services, Kituo is now the largest, indigeonous and premier pro bono legal services provider. It is no surprise that one of its founders, Dr Willy Mutunga is now the Chief Justice of Kenya. If there is a common thread that can be found through the recent pronouncements of the Chief Justice is that of access to justice.

Under Article 48 of the Constitution, the State is obliged to ensure access to justice for everyone. The content and scope that access to justice is infinite and encompasses the recognition of rights, awareness, understanding and knowledge of the law, protection of those rights, the equal access to all of judicial mechanisms for such protection; the respectful, fair, impartial and expeditious adjudication of claims within the judicial mechanism; easy availability of information pertinent to ones rights; equal right to the protection of one’s rights by the legal enforcement agencies; easy entry into the judicial justice system; easy availability of physical legal infrastructure; affordability of the adjudication engagement; cultural appropriateness and conducive environment within the judicial system; timely processing of claims; and timely enforcement of judicial decisions.

The words of our national anthem are very deliberate. “Justice be our Shield and Defender” come before, “May we dwell in Unity, Peace and Liberty.” In the Nyayo days we were taught to live in Peace, Love and Unity with no justice. Our history is demonstrates that without Justice there can be no Peace. Justice is first, without it there can be no Unity,Peace and Liberty.

Congratulations Kituo cha Sheria on your 38^th birthday and may you continue your great work of empowering the poor access justice.

* The address by the Chief Justice of South Africa, at the just completed Conference on Access to Justice, setting out the challenges on access to justice in South Africa is just as relevant and applicable to Kenya today.

Court of Appeal avoids decision of Advisory Opinion

2011-07-08T12:07:00.000+03:00

Court of Appeal Registry

In a terse order in the matter of the advisory opinion filed by the Commission on the Implementation of the Constitution, the Court of Appeal sitting as the Supreme Court under the provisions of the Sixth Schedule section 21(2) of he Constitution stated as follow, " In view of the fact that there now exists the Supreme Court of Kenya and Judges thereto have been appointed and gazetted, it is doubtful whether the Court of Appeal sitting as the Supreme Court is still seized of the jurisdiction to hear and determine this application. In the circumstances, this application is stood over sine die."

Labour Court of Kenya; A superior court with an inferior status?

2011-07-06T20:33:00.000+03:00

The Labour Court of Kenya Bill, 2011 is an attempt to give effect to Article 162 (2) of the Constitution which that Parliament shall establish “courts with the status of the High Court to hear and determine disputes relating to employment and labour relations.” The Constitution does not define what “status” means but in my view it implies that the court so created must have the same juridical independence as the High Court. The current Industrial Court which is the Bill seeks to elevate, is a statutory creation rooted in the Ministry of Labour. It is considered a "subordinate court or inferior tribunal" in relation to the High Court. This also been a source of controversy and confusion. Granting the Court “the status of a High Court” must necessarily means it must be removed from the ambit of control by the Ministry of Labour and placed within the mainstream Judiciary. The question of determining the status of that court and whether it meets the standard of the High Court is not just a question of form but one of substance and one of the key issues that must be dealt with in this regard is that of the judges who will preside over the court.

The independence of Judges is hallmark of status of the court. Section 5 and 6 of the Bill creates a statutory regime of judges’ appointment outside the Constitutional realm. Though, the statute may give the guarantee of independence through appointment and tenure of office, the fact of statutory appointment implies that they are somewhat “less than High Court Judges.” This fact was not lost to a previous appointee who declined to take up her position on the Industrial Court.

The only way the Labour Court can maintain the “status of the High Court” is to have High Court judges. The Bill should be amended to simply state that judges of the Labour Court shall be Judges of the High Court appointed in accordance with the Constitution. The Judicial Service Commission when making recommendation for appointment of judges to the Court shall have regard to experience and knowledge in Labour Law and Industrial relations practice. Put is another way, can legislation once enacted, be amended, in manner detrimental to the judges appointed under it? As this is ordinary legislation, the answer can only be yes!

The Bill also fails the “status of High Court” smell test. Section 36 (3) of the Bill provides, “The persons who, at the commencement of this Act are Judges of the Labour Courts shall be deemed to have been appointed under this Act.” Unlike High Court Judges who must be vetted by virtue of the Section 23 of the Sixth Schedule to the Constitution, Judges of the Industrial Court are “deemed” to have been appointed. Judges appointed under the Labour Institutions Act, 2007 and its antecedent legislation cannot be equated to those judges who have been vetted or appointment in accordance with the Constitution. This provision really must be removed.

The Chief Justice on Dress Code in Court

2011-07-05T17:13:00.001+03:00

PUBLIC STATEMENT ON DRESS CODES IN COURT

Over the last week, I have received questions on Facebook and Twitter by young lawyers about my position on studs and the dress code in Kenyan courts. To wit can lawyers appear before the Court wearing their studs? Because it is difficult for me to respond to each one of them individually, I wish to clarify my position here. At this point, I can say that the Judges of the Supreme Court have agreed that we have no issues with anyone appearing before the Supreme Court, wearing their studs. Our position is that as long as officers of the court - both lawyers and judges can appear smart, a stud - or indeed dreadlocks - should not hinder the administration of justice. At the Supreme Court, we shall not be wearing the colonial wigs and robes, and we shall seek the input of Kenyans on a simple robe that can be worn over a suit, for example. We will encourage the Court of Appeal and the High Court to review the dress code there. We will dialogue with them and the LSK and we expect the public to participate in the debate.

Willy Mutunga, Chief Justice, Republic of Kenya President of the Supreme Court

Court dismisses case against the JSC

2011-07-01T17:15:00.000+03:00

JSC members during interviews courtesy of the Standard

The High Court, Justice Musinga, dismissed the case filed by activist, Andrew Omtahtah Okoiti vs the Attorney General, Judicial Service Commission and Public Service Commission (Nairobi High Court Petition No. 92 of 2011). In summary the court dealt with several issues concerning the procedure for the nomination and appointment of judges. I will just summarize some of the key findings by the judge.

The Judge held that the criteria for short listing candidates for judicial office, was a preserve of the Commissioners under the Judicial Service Act (JSA) and the criteria are those set out in the First Schedule to the Act. In this case the petitioner did not cite any person who met the criteria and was not short listed. The court held that it could not act on generalized complaints.

The petitioner had sought an order compelling the disclosure of detailed criteria and mechanisms used to shortlist, interview, grade and select the most qualified applicants to judicial and other state office on the basis of Article 35(1) of the Constitution. In regard to Article 35(1) of the Constitution regarding the right of access to information, the court held that in order for the court to compel that state or a person to release information, there must first be a request and that request must be disallowed by the person from whom the information is sought. As the court cannot be the first port of call for such information, this request was denied.

In considering the question whether the JSC was bound to notify the applicants who were not shortlisted the ground for failure and afford then an opportunity to respond before the interview, the court held there was no such requirement in Act or Regulations. The court held that any applicant who was not shortlisted had a right to write to the JSC and ask for reasons. In such instance, the JSC would be obliged to comply with Article 47(2) of the Constitution which provides that if a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

The court also held that it would not be proper for the JSC to publicize reasons for disqualification for each applicant as this may amount to violation of the applicant’s privacy and may be prejudicial to future career prospects.

The Court found that the interviews were conducted in accordance with Regulation 10, 11 and 12 of the First Schedule to the JSA. This was in accordance with the purposes of the Act to promote fair and transparent procedures. The petitioner had argued that in order to maintain constitutional safeguards it was necessary to incorporate a Human Resource Specialist in the selection process. The learned judge dismissed this as inclusion of a Human Resource specialist in the panel of interviewers as it was not provided for in the JSA. The court noted, "It is evident that there is need for the JSC to seek the services of a human resource expert to assist it in formulating appropriate systematic interview procedures which would enable the JSC conduct fair and comparable interviews .... Section 14 of the act permits the JSC to hire experts and consultants and it is my considered view that a human resources expert can assist the Commission to prepare suitable interview manual for use in future recruitment. The American Judicature Society has a "Handbook for Judicial Nominating Commissioners" and, I think, out Commissioners in consultation with stakeholders, are well able to develop a relevant handbook as the American one."

In dismissing the application for conservatory orders the court also found that there was no infringement of the Constitution by the JSC submitting one name for appointment by the President for the positions of Chief Justice, Deputy Chief Justice and Supreme Court Justices as the appointments were made on the advice of the JSC which is conformity with the Constitution.

This decision deals with some of the issues raised by the Chief Executive of the Public Complaints Standing Committee and Justice Ringera.

More expectations, the Nairobi Town Clerk and more ....*

2011-07-01T14:17:00.003+03:00

Youths demonstrate outside the Milimani Court after their case was adjourned courtesy The Nation

Unreasonable Expectations and advocates

I wrote about the the expectations that Kenyans had for the Judiciary under the leadership of Chief Justice Mutunga. This incident where the some youths stormed the CJ's office is a case in point. In this case I would blame the advocate in the case as he clearly failed to communicate to his clients what had transpired in court. One of the duties of an advocate representing a class of litigants is the duty to manage the client's expectations by clearly explaining to them the nature of the judicial process and what transpired in court. Every advocate knows it is very difficult to get a date for hearing in the next few months particularly with the acute shortage of judges. Adjournments are bound to occur in every case and the advocate must from time to time take it upon himself to assist the court deal with the clients concerns. More often than not, frustration with the judicial system stems from the failure of an advocate to handle the client's expectations.

Town Clerk on the warpath with the Judiciary

The Nairobi Town Clerk is concerned about the Judiciary impeding the work of the City Council. He squarely blames the court for collapse of the building in Embakasi which was protected by an injunction restraining the Council from demolishing it for want of compliance with City Council By-laws. He states, "The council’s biggest frustration has come from the Judiciary, which has on many occasions issued injunctions and restraining orders whenever the council attempts to enforce by-laws and provisions of the Physical Planning Act against illegal developments."

I think the Clerk, misunderstands the judicial process. Any Kenyan citizen has the right to approach the court to seek relief where he or she feels that the Council has violated his or her rights. The court must hear the evidence and weigh it against the law and decide whether an injunction is to be granted. Each case is judged on its merits. Sometimes, judges err and a party has a right of appeal. And if an injunction is granted and then disobeyed, the court may, upon an application and being satisfied that contempt has been committed mete appropriate punishment. This is the way justice works.

Even where there are by laws to be enforced, enforcement must be in accordance with the law giving the citizen's rights due regard. This is the price we pay for the rule of law. This is not so say the court is blameless. The duty imposed on the court is to decide every case before it fairly and within a reasonable time.

Corruption, on the other hand, wherever, it occurs must be dealt with firmly and swiftly.

Assault on the Chief Justice Continues

This is open season for litigation. Anyone can litigate anything under the Constitution. Harrison Kinyanjui has now sought to amend his petition to include prayers seeking to bar the Chief Justice from executing his duties. Kinyanjui claims Dr Mutunga, upon being questioned by the Constitutional Implementation Oversight Committee, said he professes all faiths, and yet he never took the oath as envisaged under all these religions. "He is on record as having taken only one unmarked red book and purportedly read the expressed oath, He cannot uphold the dignity and the respect of the Judiciary and the judicial system while engaged in Necromancy and wearing of the stud that he confessed connects him to unspecified ancestors whose influence and impact on him on the discharge of the functions of the office of the CJ were never canvassed or indeed established."

As I stated, the Chief Justice is now in office and can only be removed in the manner provided for in the Constitution. Then there is that old latin maxim; omnia praesumuntur rite et solemniter esse acta.

Interviews for High Court Judges

Interviews for High Court Judges commence on 4th July 2011 and go on until the first week of August. For the first time the Chief Justice will be sitting as the chairman of the JSC.   A total of 114 judges have been shortlisted for consideration for the 26 vacancies available.

It's Still a man's world!
Not so long ago I wrote about women in the legal profession in Kenya. The appointment of a three man team to represent the Judicial Service Commission in the case challenging the appointment of the Supreme Court Justices has raised some concerns about gender representation on that team. Here is a comment from Julie Soweto Aullo on this issue.   By the way, Ms Aullo is the only female advocate I know, and I stand to be corrected, practicing at the Election Law bar.
* The other is Kethi Kilonzo.

Pending Judgments and rulings
Following the appointment of Justices Ojwang' and Mohammed Ibrahim to the Supreme Court, the Mombasa High Court has been left two judges short. What is concerns practitioners is the volume of pending judgments and rulings left behind by the two appointed judges.   Section 64(4) of the former Constitution provided that where a High Court Judge has been appointed to the Court of Appeal such judge could continue to exercise the functions of a High Court Judge to enable him complete proceedings commenced before him prior to appointment. The Constitution does not have a similar provision enabling judges appointed to higher court to finalise their matters.

Two Other High Courts ..... [UPDATED]

2011-06-30T20:24:00.001+03:00

Dandora Dumpsite courtesy of the Nation. A specialised court on Land and Environment will be set up.

Apart from the Superior Court which are the Supreme Court, Court of Appeal and the High Court, Parliament is empowered under Article 162(2) of the Constitution to establish courts with the status of the High Court to hear and determine disputes relating to (a) employment and labour relations; and (b) the environment and the use and occupation of, and title to, land. Parliament will, through appropriate legislation, determine the jurisdiction and function of the court.

The creation of court of co-ordinate jurisdiction with the High Court is a new phenomenon in our judicial system. These provisions were not in the Bomas Draft, Ghai Draft or the Wako Draft. When the Commission of Experts (COE) included the provisions in the draft forwarded to the Parliamentary Select Committee (PSC) on the Constitution, the references were deleted. The COE then reinstated the provision. In my view there was neither demand for specialized high courts nor justification for such courts made by the COE.

The High Court under the former and current Constitution is imbued with unlimited original and civil jurisdiction in all matters. The Judiciary Response to the Harmonized Draft noted the difficulties inherent in these sections. It stated, “The problems inherent in this provision are as follows: Already, specialized divisions of the High Court have been administratively created. They deal with disputes concerning Commercial Law, Criminal Law, Family Law, Land & Environment Law and Constitutional Law. It is not clear how the proposed new courts will relate with these divisions. It is not clear what jurisdiction the proposed new courts will have vis a vis the High Court. Already, existing legislation that gave the Industrial Court the same status as the High Court has brought about a jurisdictional conflict.”

Under the Fifth Schedule, the time for establishing the two courts is one year from the effective date. To date, I have not seen any draft of the proposed legislation for the proposed Courts yet the courts if established will be take substantially affect the jurisdiction of the High Court. This poses a challenges in constructing appropriate jurisdiction that ensures access to justice is not impeded while the new structures are being implemented. I will discuss what I consider key issues in respect of the two courts in later posts.

* There is a draft Labour Court of Kenya Bill, 2011 for consideration by stakeholders. I will comment on the Act shortly.

Chief Justice Mutunga, the Magic Wand and other things ...

2011-06-28T19:35:00.000+03:00

Great Expectations

The Nation states in a headline "Supreme Court's plate already full." Statements like this are a sign of lazy reporting. They demonstrate a lack of understanding of the court and create unreasonable and unfounded expectations and demands on the court and the judiciary as a whole. What is more shocking is that politicians play along. The Constitution is very clear that the Supreme Court has limited original jurisdiction. The only original jurisdiction the court has is to hear a Presidential Election Petition. In cases concerning the interpretation of the Constitution or enforcement of the Bill of Rights, the High Court has original jurisdiction. The case must then work its way to the Supreme Court through the Court of Appeal.

The newspapers are also replete with exhortations to the Chief Justice to do this or that or intervene in this or that case. Fortunately the Chief Justice recognises the high expectations Kenyan have for change in the judiciary. Unlike the past where the Chief Justice's position imperial in nature, the Constitution now diffuses his powers. Firstly, he is the head of a Judicial Service Commission that has a number of independently elected and appointed members. Secondly, the heads of the Court of Appeal and the High Court are elected by the judges themselves. Thirdly, the nature of the judicial office is such that each judge is independent in decision making and has wide latitude in how he or she runs the court. For the Chief Justice to be successful, he must inspire those who work under him to work towards the ideals he espouses. This vision must receive full support of the judges and judicial officers working under him.

Another word on taxes

The Justice Minister, Mutula Kilonzo argues that it open to argue that Article 210 allows Parliament discretion to waive tax in any other legislation. This argument cannot stand in the face of limitation of the power of Parliament to legislate tax exemptions.

Article 210 provides as follows;

Imposition of tax

210. (1) No tax or licensing fee may be imposed, waived or varied except as provided by legislation.

(2) If legislation permits the waiver of any tax or licensing fee—

(a) a public record of each waiver shall be maintained together with the reason for the waiver; and

(b) each waiver, and the reason for it, shall be reported to the Auditor-General.

(3) No law may exclude or authorise the exclusion of a State officer from payment of tax by reason of—

(a) the office held by that State officer; or

(b) the nature of the work of the State officer.

It is correct to state that Article 210 allows for Parliament to legislate the waiver of taxes or license fees but such legislation subject to the limitations provided. Parliament is entitled to pass a law excluding a state officer from paying taxed but that law must not be on the basis of office held or nature of work done by the officer. I just cannot see how a law can be passed circumventing these limitation. It appears that some have now realised the folly of a political fight.

Money, Money, Money

According to Keriako Tobiko, the DPP, his department was given Kshs. 115 million as against Kshs, 1.6 billion for the graft watchdog, KACC. It is not in doubt, as he states, that this cannot be defended on any rational grounds. According to the Report of the Taskforce on Judicial Reforms (the Ouko Report), the Judiciary has been allocated between Kshs. 800 million and Kshs. 1.2 billion over the years, which is a sum less than the KACC. Worse still its development funds are channeled through the Ministry of Public Works. The new building alone cost almost the full annual budget of the Judiciary!

On the part of the Judiciary, the Constitution and the Judicial Service Act now provide for a Judiciary Fund that will enhance the Judiciary's independence and one hope's the chronic shortage of funds to enable it work independently of the Executive will be a thing of the past.

Vetting of the Judges and Magistrates Board

The Selection Committee of the Judges and Magistrates Board has shortlisted candidates for the Vetting Boards established under the Vetting of Judges and Magistrates Board Act. There are 11 candidates for the position of Chairperson and 23 for members. The candidates will be interviewed between 12th July 2011 and 28th July 2011.

Kenyan MP's, Taxes and Friday miscellany .......

2011-06-24T18:09:00.000+03:00

KRA Headquarters courtesy of Businessdaily

Member of Parliament and their Taxes

Article 210 of the Constitution on the payment of taxes by state officers is as clear as day and frankly speaking admits no ambiguity. It provides that no law may exclude or authorize the exclusion of a State officer from payment of tax by reason of the office held by that officer; or the nature of work of the state officer.

It has been argued that Article 210 cannot be read in isolation and must take into consideration other provisions of the Constitution. There is a principle that State Officers should not have their remuneration varied to their disadvantage in course of their term. This is the argument by the Speaker. Introducing taxation is a variation of terms such terms. Article 151 on the remuneration and benefits of President and Deputy President provides that the remuneration, benefits and privileges of the President and Deputy President shall not be varied to their disadvantage while in office and that the retirement benefits payable to a former President and a former Deputy President, the facilities available to and the privileges enjoyed by them, shall not be varied to their disadvantage during their lifetime.

Article 160 on the Independence of the Judiciary provides that the remuneration and benefits payable to, or in respect of a judge shall not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the lifetime of that retired judge. Similarly, Article 250 on the composition, appointment and terms of office of members of Constitutional Commissions provides that the remuneration and benefits payable to, or in respect of, the members of a commission or the holder of an independent office shall not be varied to the disadvantage of that person during their respective terms of office. Taking these provisions into account means that the National Assembly is being discriminated against as the other arms of Government are protected and the National Assembly should be protected too.

It is also argued that it is morally and contractually wrong and contrary to the principle of legitimate expectation. The MPs being, State Officers with terms and perks protected until next General Elections, went ahead and committed themselves to loans, mortgages, expensive schools for their children abroad etc upon the premise that their remuneration cannot be varied to their detriment till 2012.

These arguments sound good but negate that the fact that Constitution that came into force on 27^th August 2010 imposed a specific and unambiguous provision that is plain and obvious; there can be no legal exemptions to the payment of taxes. This provision superseded all previous arrangements which are now subject to Article 210 which makes payment of taxes obligatory from 27^th August 2010. Since the obligation to pay taxes is imposed by the Constitution it cannot be waived. In my view, all the benefits due to State Officers are from the effective date are subject to taxes. The last time I checked Article 210 has not been suspended.

Another word on Organic Theory

I wrote about the organic theory and the attempt by Justice Ojwang’ to elevate certain statutes over other by virtue of their nexus to the Constitution. The decision would have been avoided by reference to the Public Procurement and Disposal Act (Act No. 3 of 2005) (PPDA) which at section 5 provides;

5. (1) If there is a conflict between this Act or the regulations made under this Act and any other Act or regulations, in matters relating to procurement and disposal, this Act or the regulations made under this Act shall prevail.
(2) For greater certainty, a provision of an Act that provides for a person or body to approve any work or expenditure shall not be construed as giving that person or body any power with respect to procurement proceedings.

In this case, the statute itself amends the other acts or regulation. It is the intention of the legislature and it has provided that in matters of public procurement and disposal the PPDA takes priority and overrides other legislative enactments.

For advocates doing public work, this provision has been a cause for worry. The policy of the PPDA is to ensure that public bodies obtain services at a competitive rate, the Advocates Act (Cap 16) and the Advocates Remuneration Order stand in the way of the policy of objectives of Act in that they provide minimum fees for certain services. By virtue of section 5, the procuring authority can demand and the advocate perform services for remuneration below that provided by the Remuneration Order. A charge under section 36 of the Advocates Act prohibiting undercutting against an Advocate who is the subject of services procured under the PPDA. Am sure this will lead to some litigation!

Chief Justice Mutunga and Justice Baraza sworn in ....

2011-06-20T21:32:00.000+03:00

Chief Justice Mutunga being sworn in courtesy of the Nation.

"We expect to put tyranny, oppression and exploitation, opacity and impunity on the back-foot, while making strides towards freedom, opportunity, and transparency and liberty ..... It should no longer be possible to speak about corruption and the judiciary in one breath." Justice Willy Mutunga.

Sometimes pictures and actions speak for themselves. That change is here is not in doubt. Justices Mutunga and Barasa were sworn in today together with Keriako Tobiko as the DPP. The function itself was a culmination of a long process of selection, nomination, approval and appointment. In many respects today's activities symbolised change. First, Dr Mutunga had his ear stud on. The sky has not fallen. Secondly, both judges were not dressed in the crimson ceremonial robes and wigs that are usually worn during such functions. This, in my view, signals a change in culture. Thirdly, despite the concerns about family values expressed by some, Justice Mutunga had his children attend the swearing in function. What better way to demonstrate family values! Fourthly and for the first time the Chief Justice gave a public speech to the public, a fulfillment of the fact that judicial power is exercised on behalf of the people of Kenya.

Court stops swearing in of Supreme Court of Kenya Justices ...

2011-06-17T22:29:00.002+03:00

Justice Jeanne Gacheche

The High Court, Honourable Justice Gacheche, has on the application of FIDA and other civil society groups, stopped the swearing in of the five Supreme Court judges scheduled for Monday. The groups allege that the nominations do not reflect gender balance. The application is scheduled for hearing on 27th June. The Chief Justice, Deputy Chief Justice, Director of Public Prosecutions and the Supreme Court Judges were appointed by the President and their appointment duly gazetted.

I think this case is a non-starter whatever the merits or otherwise of the gender issue. Firstly, the appointment is complete when the President signifies his appointment in the Kenya Gazette. The taking of the oath though necessary is but a mere formality. Under Article 74, the taking of the oath of office is required for someone to assume office or to carry out the functions of office. It does not in any way relate to the appointment. Thus, the injunction granted by the court, it seems, is an act in vain.

The case of Ghana Bar Association v Attorney-General (Abban Case )[2003-2004] SCGLR 250 is almost to the point. The plaintiffs sued by invoking the enforcement jurisdiction of the Supreme Court of Ghana under the Constitution, 1992. They claimed of that on a proper interpretation of the Constitution, 1992 the President should not have nominated Justice Abban as Chief Justice of Ghana because he was “not a person of high moral character and proven integrity” and as such the approval and appointment of the Justice Abban as Chief Justice contravened the Constitution. The defendants raised a preliminary objection to the assumption of jurisdiction by the Supreme Court. The Supreme Court unanimously upheld the preliminary objection on the ground, inter alia, that the reliefs claimed by the plaintiffs, if successful, would result, not only in removing the Justice Abban as the Chief Justice, but also in removing him completely from the Bench. The court held that the special procedure laid down by the Constitution for removing a superior court judge must be resorted to by the plaintiffs once the appointment has been made.

By parity of reasoning once the power of appointment has been exercised by the President, the appointees assume the office of judge and their removal can only be in a manner contemplated by the Constitution. A ruling to the contrary would amount to holding that the High Court has concurrent jurisdiction with the tribunal charged with adjudicating upon the issue of removal of a judge under Article 168 of the Constitution.

Supreme Court of Kenya; some ruminations

2011-06-15T20:32:00.004+03:00

I have previously commented on the composition of the Supreme Court. Apart from the Chief Justice and Deputy Justice, three of the now nominated members stood out for me; Justices Ojwang’, Ibrahim and Njoki Ndung’u.

From the interview, it was obvious that the JSC was concerned about the departure of Mr M’Inoti from the Kenya Law Reform Commission (KLRC) at this critical stage of its work. Obviously, the departure of both the chair and deputy of the KLRC would be a set back to that Commission which is key to the implementation process. In my view though, Mr M’Inoti can bid his time and make the Supreme Court in not too distant future.

Justice Tunoi, currently the second most senior judge on the Court of Appeal joins the Supreme Court. In terms of precedence, under section 5 of the Supreme Court Bill, he will be the presiding judge of the Court in the absence of the Chief Justice and the Deputy Chief Justice. His 18 years judicial experience in the Court of Appeal will provide a steady hand as a majority of the court are persons without previous judicial experience. He is now 67 years old and will retire in 3 year time in accordance with Article 167 of the Constitution. He will be expected to provide some continuity between the old order and the new order.

Prof Smokin Wanjala academic pedigree is unassailable. He was the Deputy Director of the Kenya Anti Corruption Commission under Justice Ringera until his term came to an end. Given that corruption is a major issue in the country and particularly in the judiciary, his contribution to the fight against corruption in the judiciary is to be welcomed.

There will be two women on the Supreme Court. For those who do math, one third of the court is 2.3. Understandably there are those who feel that there should have been three or more women not two. Article 27 (8) obliges the state to take legislative and other measure to implement the principle that not more than two-thirds of the members of elective and appointive bodies shall be of the same gender. Article 172(2) provides that the JSC shall be guided by competitiveness and transparent processes in appointment of judicial officers and the promotion of gender equality. Unfortunately, no female High Court judges were nominated to the court. Given the obligations of the JSC, I think an explanation on this issue would be serve a useful purpose.

On the whole, I think the success of the Supreme Court will be through their collective effort as borne by their experience. There are three sitting judges, Tunoi, Ibrahim and Ojwang', who will bring to bear their judicial experience, the rest have non judicial experience. Three nominees, Mutunga, Ojwang and Wanjala, have taught at the University of Nairobi Law School. Ms Barasa teaches at the Kenyatta University. Three have doctorate degrees; Mutunga, Ojwang' and Wanjala. Ms Barasa and Justice Tunoi should be joining them soon. Ms Barasa and Ms Ndungu have been active members of FIDA. Two members come from the same ethnic group, Ms Baraza and Prof. Wanjala. Two of the nominees, Mutunga and Ibrahim, were detained during the Nyayo era. There the two muslims on the court; Mutunga and Ibrahim. Two members, Mutunga and Tunoi will be departing from the court in the next three years on account of age. No actively practicing advocate was nominated to the court. None of the judges have been magistrates.

Supreme Court of Kenya Nominees Announced*

2011-06-15T15:47:00.008+03:00

After completion of interviews yesterday, the Judicial Service Commission has announced the successful nominees for the position of judge of the Supreme Court of Kenya; Justice Philip Tunoi of the Court of Appeal, former Nominated Member of Parliament Njoki Ndung'u, High Court Judges, Justices Jackton Ojwang and Mohammed Ibrahim and Professor Smokin Wanjala, the former Deputy Director of the Kenya Anti-Corruption Commission.

The five nominees join the nominated Chief Justice and Deputy Chief Justice; Dr Willy Mutunga and Ms Nancy Barasa respectively who are expected to be confirmed by the National Assembly this afternoon. The Report of the CIOC to the National Assembly on the nominees for the position of CJ, DCJ and DPP can be found here. The Supreme Court nominees do not need parliamentary approval and their names will be forwarded to the President for formal appointment.

*Parliament has now approved nominations of the CJ, DCJ and DPP