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The search for Willy Mutunga’s successor

By Gitobu Imanyara & The Platform Team

CoverAs the process of appointing new judges to the Supreme Court (Chief Justice, Deputy Chief Justice and a Judge of the Supreme Court) gets underway with interviews now scheduled, it must be underscored that the most important factor that should guide suitability for these positions is the constitutional eligibility and the jurisprudential orientation of the candidates.

Before leaving office Chief Justice Mutunga had shared his thoughts with fellow commissioners at the Judicial Service Commission cautioning them of the dangers and challenges of filling the position he was vacating. In the memorandum (see page 25) he pleaded with his colleagues to agree to discard the partisan lobbies comprising the JSC and embrace the spirit of recruitment based on public participation and forensic lifestyle audit and not on ‘hypocritical, divisive, spineless, cowardly, pervidious, partisan, and reactionary divisions’. His biggest fear as he left office was that public interest in the process would be lost and JSC would simply recede to the old JSC when various forces decided on the appointees.

His fears are already being confirmed. The process has hit a snag at the very outset with at least three challenges filed in the High Court in Nairobi and Nakuru questioning the decision of the Judicial Service Commission not to shortlist some of the candidates.

In the first application brought by way of a Judicial Review before Mr Justice Odunga of the Constitutional and Human Rights Division of the High Court at Nairobi, a law student represented by a law lecturer at Kabarak University seeks to quash the decision of the JSC.

Through counsel Elisha Ongoya, Arnold Magina the precedent setting law student has argued that the basic requirements for one to be considered for the position of the Chief Justice, Deputy Chief Justice and Judge of the Supreme Court of the Republic of Kenya are spelt out in the supreme law of the Republic, that is, the Constitution with Article 166(2) and (3) of the Constitution exclusively setting out the minimum qualifications for one to be appointed a Chief Justice or other judge of the Supreme Court.

He argues that it is expected that in the interest of the principles of equal opportunity for all and effective public participation in the process as dictated by articles 10 and 27 of the Constitution, all applicants who meet the minimum qualifications are shortlisted for interview at which any other higher threshold/advantage criteria may be tested and applied.

Contrary to these requirements he then argues, and in a move evincing total exercise of arbitrariness or an absolute failure of understanding of the Constitution, the JSC introduced a whole lot or administrative requirements for applications for the posts of Chief Justice, Deputy Chief Justice and Judge of the Supreme Court including copies of clearance certificates from the Kenya Revenue Authority, Higher Education Loans Board, Law Society of Kenya, Directorate of Criminal Investigations, Advocates Complaints Commission, Ethics and Anti – Corruption Commission, a recognized credit reference bureau and three recent passport sized photographs.

It has come to a surprise, Arnold further argues, that the JSC has failed to shortlist a whopping eight candidates for the position of Chief Justice including eminent scholars, jurists of many years experience as well as a serving judge of the Supreme Court of Kenya. It is, in particular surprising he continues, that a serving judge of the Supreme Court (which office has the same eligibility qualifications as those of the Chief Justice, namely Prof. J.B Ojwang) could fail to meet the minimum threshold required for short listing for interview for the position of Chief Justice of the Republic.

He points out in his pleadings that in their various media briefings, the JSC has hinted at having regard to these administrative requirements as the basis for refusal, failure and or neglect of shortlisting of some of
the applicants.

He therefore pleads that there is real and present danger of a number of deserving candidates who were desirous of applying for the positions of Chief Justice, Deputy Chief Justice and/or Judge of the Supreme Court but whose attempts to apply could have been thwarted by a failure to access these administrative documents that are not, in any event, constitutional the minimum constitutional requirements to apply for the job.

He pleads further that there is real and present danger that the JSC could have attempted to pre-determine the next Chief Justice, Deputy Chief Justice and Judge of the Supreme Court of the Republic of Kenya by use of the board room short listing process which is not, in itself, a subject of public participation.

He urges the court to undertake judicial scrutiny/review of the short listing process of candidates for the position of Chief Justice, Deputy Chief Justice and Judge of the Supreme Court as a matter of extreme urgency before the rest of the process is allowed to carry on in the interest of transparency, accountability as well as the hackneyed principles of the constitutionalism and the rule of law.

The process of appointment of the Chief Justice, Deputy Chief Justice and Judge of the Supreme Court of Kenya is so important a governance process that it should not be allowed to carry on with lingering questions and doubts as to its transparency and accountability and any doubts in the process of appointment of the Chief Justice, Deputy Chief Justice and Judge of the Supreme Court of the Republic of Kenya risks bringing not only the legitimacy of the apex court of the country, the Supreme Court, into question but indeed the entire judicial branch of government risks suffering an irreparable legitimacy crisis.

The Nakuru application filed by the pressure group, Trusted Society for Human Rights, who doggedly pursued the Mumo Matemu from the Ethics & Anti Corruption Commission until he and his deputy were forced to resign, has now been transferred to Nairobi where it is expected that the parties will agree to have the two applications consolidated and heard together.

The third petition was filed towards end of July two civil society groups Katiba Institute and ICJ Kenya Chapter through their respective directors Prof Yash Pal Ghai and Samwel Mohochi respectively. They have filed a constitutional petition under the Freedom of Information provisions of the Constitution complaining that the JSC has failed and/or refused to provide information sought under Article 35(1) of the Constiturion and has also failed to publicise that information as required by Article 35(3) of the Constitution is in violation of Article 10 and specifically the provisions relating to values and principles of rule of law, participation of the people, human rights, good governance, transparency and accountability. They also accuse the JSC of violation of the obligations imposed on it under Article 172(1) to facilitate accountability of the judiciary and transparent administration of justice and the obligations imposed on it by Article 249(1) with regard to protection of sovereignty of the people, securing observance of democratic values and promoting constitutionalism.

The are seeking orders directing the JSC to provide the following information:

i. Names of all candidates who applied for the position of CJ, DCJ and Judge of the Supreme Court following the advertisement the JSC published on June 17th 2016.

ii. Names of persons whom the JSC has shortlisted for the positions of CJ, DCJ and Judge of the Supreme Court;

iii. The criteria used to shortlist persons (applicants) for the positions of CJ, DCJ and Judge of the Supreme Court;

iv. Reasons why those not shortlisted were not shortlisted for the positions of the CJ, DCJ and Judge of the Supreme Court specific to and particularized as against EACH of the unsuccessful applicants;

v. Reasons why those shortlisted applicants were shortlisted for the positions of CJ, DCJ and Judge of the Supreme Court specific to and particularized as against EACH of the shortlisted applicants;

vi. Information that the JSC received from third parties or was held by the Judiciary or the JSC in regard to any of the applicants for the positions of CJ, DCJ and Judge of Supreme Court, that you reviewed and/or considered in making the decision whether to shortlist the respective candidate.

vii. Information as to why the JSC, having announced that shortlisting would take 21 days, they have decided to complete the exercise in the very short time of three days.

Mr Njoroge Regeru who is representing the JSC defended the position taken by the JSC in a letter addressed to the lawyers for the Petitioners. His letter states that the criteria used for assessing the various applications received and for short-listing the applicants are, provided for in the Constitution as read together with the provisions of the Judicial Service Act, 20 11 and the reasons why particular applicants were not short-listed were duly communicated to each of them in writing. Mr Regeru further argues that the JSC is not at liberty to disclose the reasons to third parties, as such disclosure may infringe on the respective applicant’s constitutional rights, including the right to privacy.

In his letter he concludes that blanket disclosure of all the information received from third parties or was held by the Judiciary or the JSC in regard to the applicants and which was reviewed and/ or considered in the short-listing of candidates is neither practical nor desirable at this stage. Some of the information is private and confidential and as such ought to be dealt with as stipulated in regulations made under the Judicial Service Act and there is need to fill the three vacancies efficiently and expeditiously. Mr Waikwa Wanyoike acting for the petitioners has argued that this response amounts to denial of the request and a pointer to the arbitrariness of the JSC.

If the High Court allows the applications as it did when Lady Justice Njoki Ndungu challenged the decision of the JSC to reprimand her for misconduct brought to the attention of the JSC by former LSK CEO Apollo Mboya (It was the same Mr Justice Odunga, although the Yash Ghai Mohochi petition was listed before Mr Justice Edward Muriithi), it is quite possible that there will be more candidates invited for the interviews than the initial six and we examine all those we consider to have met the eligibility threshold set out in the Constitution in this commentary.

In the appointment process the Judicial Service Commission (JSC) ought to enquire whether candidates are committed to the emancipatory project of the Constitution, and have demonstrated that commitment by word and deed as depicted either in their judgments or scholarly writings.

It also follows that it is legitimate for the JSC to reject a candidate if the candidate is not able to show that this is the case or if the candidate does not meet the high demands of the Leadership and Integrity provisions of Chapter Six of the Constitution which stipulates that a state officer is assigned responsibility to be exercised in a manner that ‘brings honour to the nation and dignity to the office’.

We look at some of the candidates’ back story, judicial decisions and scholarly writings and the Leadership and Integrity provisions set out in Article Six of the Constitution to explore whether the judicial philosophy of the candidates cohere with the democratic and egalitarian project of our progressive Constitution. It is worth pointing out that in our constitutional democracy, the ideal judge must possess far more than technical legal expertise, as important as this quality remains.

An ideal judge should possess a clear vision of the role the Constitution must play in the reconfiguration of a legal system which suffered terrible damage under the old authoritarian order. In addition, a judge in the new dispensation, in our view, must have a firm grasp of the emancipatory project of the Constitution that aspires for a state and society that substantively embraces the core values of social justice, rule of law, equality, human dignity and freedom.

Among the perceived front runners is Justice Alnashir Visram of the Court of Appeal Nairobi who was the presiding Appeal Judge in Nyeri before he was brought back to Nairobi.

Justice Alnashir Visram was part of the first graduating class of the newly established Faculty of Law of the University of Nairobi in 1972. He was admitted to practice law in Kenya in 1973. But in 1975, he started a new life in Canada where he enrolled for a second Degree in law at University of British Columbia, Canada – UBC. He graduated in 1978. In 2006, he graduated with a Master’s degree in international law from the University of Nairobi.

After graduating from the University of Nairobi in 1973, Justice Alnashir Visram practiced law for two years before leaving for Canada. After Graduating from UBC he took up a job in Aga Khan University in Pakistan for three years. After the contract ended, he was offered the position of CEO at the Aga Khan Foundation (AKF) in Kenya, a job he held until 1992.

In 1992, he returned to practicing law, with the same law firm that he had left in the early 1970s. In 1999, he was appointed a Commissioner of Assize by the judiciary, essentially to help clean up a huge back log of cases. In 2000, he was appointed as a judge of the High Court of Kenya. In April of 2009, he was elevated to the Court of Appeal.

In 2011, he was appointed to the office of Chief Justice by President Mwai Kibaki before complaints by the then Prime Minister Raila Odinga that he was not consulted before the appointment was made led to the nullification of the appointment. It has always been pointed out that Justice Visram should have declined the appointment given that it was patently unconstitutional. To the extent that he didn’t, critics have pointed out that this raises fundamental questions on his fidelity to constitutionalism. His judgements, and his jurisprudence since appointment has been pro establishment. He has routinely distanced himself from the reform activism of for example, the most celebrated Judge of Asian origin, the late Chief Justice CB Madan.

He descended to the most worrying level in James Orengo v Attorney General and William Weloba, Civil Suit No. 207 of 2002. Now Siaya and one of Kenya’s foremost human rights and pro democracy activist James Orengo’s claim in the suit was for damages for interferences with constitutional rights and liberties under section 84 of the retired constitution. The Attorney General raised a preliminary objection that the suit was filed in a manner that runs afoul Section 13A(1) of the Government Proceedings Act, Cap. 40 that stipulates that a suit shall be instituted after a 30 day notice to the government. The plaintiff had served a notice to the government on 7th January 2002 and filed the suit on 5th February 2002.

In response to the preliminary objection, the plaintiff responded that this provision of the Government Proceedings Act does not apply to a matter that involves the violation of human rights. The plaintiff relied on the celebrated decision of Justice Hayanga in Amollo v Attorney General, Misc. Application Number 494 of 2003 where Hayanga J. had held that the Limitation of Actions Act, Cap.22 was inapplicable to claims brought under Section 84 of the Constitution. Justice Hayanga had framed the question thus:

“The point to decide here is whether breach of fundamental rights and redress therefore can be brought to Court at any time irrespective of the provisions of the Limitations Act. Like for example colonized persons seeking redress years after independence. To put it another way whether in interpretation of constitutionally entrenched provisions of Fundamental Rights, the Court is in any way circumscribed by legislative statutes like Limitation Act.”

The Plaintiff also relied on a three- Judge bench decision in Jackson Ekuru Nakusa vs Paul K. Tororei Election Petition No. 4 of 2003 which approved the dicta of Hayanga, J. in the Amolo case. Furthermore, the Plaintiff called into aid several passages from the writings of the Indian Emeritus Professor Dr. Pylee, and Professor Bora Laskin of Canada on the Canadian Constitutional Law, where the learned authors had observed that no legislation can bar access to the Court on an issue of human rights, and any law that sets a limitation period in seeking redress under a provision like Section 84 of the former Constitution is ultra vires the Constitution, because not even Parliament can pass laws to curtail Constitutional rights.

In one of the most shocking decisions in Kenya’s judicial history, Justice Alnashir Visram departed from the prevailing progressive precedent as laid down by Justice Hayanga and endorsed by a three judge bench. This is how he dismissed Hon Orengo’s suit:

“Is the Plaintiff right in that assertion? I do not think so. I think the Plaintiff’s Counsel has completely missed the point. The point is that Section 13A(1) of the Government Proceedings Act does NOT impose any “limitation” to a person’s liberty, or his or her human or fundamental rights under the Constitution, nor does it whittle down any of those rights. All it does is to say how those rights might be invoked. It says, simply, that should you wish to invoke those rights against the Government, you MUST give the Government a 30-day notice, and you shall not file suit until those 30 days are over. Now, Parliament in its wisdom has decided that there should be a short waiting time – 30 days – to enable the Government decide what it wants to do about the proposed or threatened litigation. Does it really want to defend, or settle? Does it need to consult with other arms of the Government? Does it need a legal opinion? Does it need to investigate the circumstances leading to the alleged claim? The law simply says give the Attorney General those 30 days before you file suit. It does not say don’t file suit, or don’t make such and such a claim. It just says “we need 30 days notice.” That to me is not imposing any “limitation” to my rights, or curtailing them, or whittling them down. If anything it is imposing a “cooling down” period, which may be good for everyone, especially the Claimant who could, if the Attorney General so wanted, find a settlement without having to file action. Now, what can possibly be wrong with such a stipulation in law? I must, therefore, respectfully disagree with the proposition that Section 13A(1) imposes a “limitation” on a person’s fundamental rights, and is ultra vires the Constitution. In my view it is not. And further, in my view, it creates a mandatory obligation on every litigant to issue the required 30-day notice to the A.G…. I have, therefore, come to a clear conclusion that because the Plaintiff did not comply with the mandatory requirement of Section 13A(1) of the Government Proceedings Act, his suit before this Court is incompetent, and is hereby struck out with costs to the First Defendant.”

Prof. James Thuo Gathii in The Contested Empowerment of Kenya’s Judiciary, 2010-2015 has captured the controversy generated by Ojwang’s theory of “extra-juridical Justice Prof Jackton Ojwang executive power” thus: “Academic freedom was largely constricted and factions also emerged within the academia with one side supporting the policies of the KANU regime while another camp was in opposition of the government policies. The notable supporters of the KANU regime were Prof. Mutungi, Prof. Okoth-Ogendo and Prof. J.B. Ojwang’ who had close relations with the authorities in the University of Nairobi and also in the government. Prof. Kivutha Kibwana led the group that was in opposition of the government and he later was the subject of disciplinary proceedings when he published an article criticising some of the theories propounded by Prof. Ojwang’ on the sources of Presidential power in Africa.”

Controversy has followed Prof. Ojwang’ to the bench.

In the infamous Engineer CharowaYaa v Jama Abdi Noor & 4 others High Court of Kenya at Mombasa Miscellaneous Civil Application No. 8 of 2011 the Petitioner sought judicial protection from eviction from his home or in the alternative, provision of alternative accommodation by the government on his own behalf and on behalf of 276 families. The Petitioners’ homes had been demolished without notice and, having nowhere to go, they sought to put up temporary structures on the same property. The Respondents argued that the land on which the Petitioners were residing was private property (their claim of adverse possession had earlier been rejected by the Court).

Justice Ojwang’ held in favour of the Respondents and stated that the right to housing as contained in article 21(3) is ‘not a final product for dispensation but is an aspirational right, which the State is to endeavour to render progressively’. Addressing the competing interests between property rights and the right to housing, Justice Ojwang’ stated: “I cannot hold that there has been a violation of the Petitioners’ right to housing but this is more emphatically so in view of the fact that the suit land is not state land; it is-private land belonging to the 2nd Respondent. Although Counsel contended that there was public obligation to acquire the suit land under imminent domain, and then to apply it to give fulfilment to the Petitioners’ right to housing, the link is too remote to be held to crystallise an immediate right for the Petitioners and this is more decidedly so in light of the specific constitutional safeguards of private property…”

The observations by Justice Ojwang’ shows that he does not appreciate human rights theory and specifically for him to equate social and economic rights with mere “aspirations” he seems to be completely unaware of the 1+1 of principles on judicial enforcement of social and economic rights.

Ivy Nyarango in ‘Opinion on Emerging Jurisprudence from Social Economic Rights Cases Decided by Kenyan Courts’ rightly criticises Justice Ojwang’ thus: “The reasoning and decision in Charo shows the failure by the Court to appreciate that with the entrenchment of SER in the Constitution, these rights, though subject to progressive realisation, are no longer aspirational. The courts cannot dismiss SER under the constitution as aspirational or run away from enforcing them simply because of the challenge of enforcement-. As has been rightly observed in S Rajab-Budlender & N Budlender Judges in conversation: Landmark human rights cases of the twentieth century (2009) 166.: ‘Once you have socio-economic rights in the Constitution and the Bill of Rights, I think it is too late to say that these are mere aspirations that cannot be enforced. Otherwise you are saying that the founders of the Constitution played a hoax on the people. Because they are in the Constitution, they are pledges to the people – so you cannot say the difficulties of enforcement or impracticality.’”

Similarly, Dr. Nicholas Wasonga Orago in ‘Poverty, Inequality and Socio- Economic Rights’ has criticised Justice Ojwang’ thus:

“The Charo Court declined to espouse a progressive and purposive interpretation of the right to adequate housing, calling it an aspirational right, and also failed to adopt a transformative concept of adjudication which reflected the paradigm shift as was advocated by the Petitioners. In the end, the court failed to adopt a balanced normative framework recognising the important human interests underlying both property rights and housing rights, instead simply reaffirming the privileged position of property rights under common law. This, in effect watered down the transformative potential of the entrenched housing rights in providing the requisite protection to the poor, marginalised and vulnerable groups faced with real threats of homelessness… This reasoning flies in the face of the mandate of the Court as the guardian of the Constitution and as the protector of fundamental rights. According to the theory of dialogical constitutionalism advocated in this thesis, the courts must play an active role as facilitators of dialogue in the development, interpretation and elaboration of the meaning of normative constitutional provisions. The Court in this instance had the responsibility, as well as requisite judicial tools, to either call for further evidence from the Petitioner or on its own motion call for expert institutions to make submissions in the case so that the important constitutional questions are effectively dealt with for the benefit of the Petitioner and all other similarly situated poor and vulnerable people in crisis situations. In failing to do so, it is submitted that, the Court abdicated its judicial responsibilities, to the detriment of the Petitioners, and in the process created a retrogressive jurisprudence lacking in the protection of the right to housing for people in crisis situation who face forced evictions, and subsequently, homelessness.

….the Charo Court failed to take into account international and comparative law requirements for a lawful eviction. It was open to the Court to assess the previous eviction order taking into account the persuasive international and comparative law jurisprudence such as the General Comments Number 4 and 7 of the CESCR as well as the UN Guidelines on Evictions, which provided specific procedural requirements for an eviction to be considered legal and procedural. It should also have undertaken a comparative analysis of similarly situated national jurisdictions such as South Africa where the courts have now consistently held that ‘a court should be reluctant to grant an eviction order against relatively settled occupiers unless it is satisfied that a reasonable alternative accommodation is available, even if only as an interim measure’. If the Court had undertaken this analysis, it would have had no trouble adopting a paradigm shift in relation to forced evictions in accordance with the prayers of the Petitioner’s counsel, and would have set aside the previous eviction order, which had not met the constitutional requirements needed for a just and humane eviction.”



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