ICCLCPS 2015 : 17th International Conference on Criminal Law, Criminology and Police Science

“Evaluating the Judicial Review

of 2003 “Radical Surgery”

Purging Corruption from Kenyan Courts”Organized by the

World Academy of Science Engineering and Technology

At Holiday Inn, Montparnasse,

Paris, France 25-26 June 2015

Presented by

Dr. Charles A. Khamala

School of Law, Kabarak University

In 2003, President Mwai Kibaki’s first administration’s judicial reform strategy was:

First, to implement unprecedented “radical surgery.” He appointed a new Chief Justice who instrumentally recommended that half the purportedly-corrupt judiciary should be removed by Presidential tribunals of inquiry.

Second, the replacement High Court judges, initially endorsed the “radical surgery’s” instrumental administrative decisions which removed their corrupt predecessors.

ABSTRACT

ABSTRACT

In 2008, the international community prompted Kibaki’s second administration to concede to a new Constitution. Suddenly, the High Court then adopted a non-instrumental interpretation which rejected the 2003 “radical surgery.”

Was constitutionality of the 2003 “radical surgery” removing corruption from Kenya’s courts–predicated on political expediency or human rights principles?

the new Kenyan Supreme Court’s interpretation of another round of vetting under the new 2010 Constitution, ousts the High Court’s judicial review jurisdiction altogether.

I. INTRODUCTION

A. Reforms for Economic Recovery Widespread public dissatisfaction with post-independence

command governance earned the National Alliance Rainbow Coalition (NARC) a resounding election victory on a constitutional reform platform.

Instead, his new Chief Justice initiated a controversial operation known as “radical surgery.”

Ultimately, the High Court’s discordant reliance–initially on instrumental, but subsequently on non-instrumental, administrative law concepts–to judicially review the CJ’s and President’s decisions, can be understood in the context of self-interest, rather than constitutional innovation.

I. INTRODUCTION

The new government developed a comprehensive policy framework, the Economic Recovery Strategy for Wealth and Employment Creation (ERS), in which it identified governance as one of the key pillars of economic growth”

Four cases provide descriptive illustrations. Justice Amraphael Mbogholi-Msagha v Chief Justice of the

Republic of Kenya & 7 others [2005] R v Chief Justice of Kenya and others ex parte Lady Justice

Roselyn Naliaka Nambuye & 5 others [2006] Republic v The Chief Justice and Six Others exparte Ole Keiwua

[2010] Stephen Pareno v Judicial Service Commission [2014]

I. INTRODUCTIONB. Justice must be seen to be done Section II illustrates how the judicial “radical surgery” was

effected by the NARC government by excising half the judiciary.

Section III attributes the conservative history of Kenya’s timorous judiciary to political interference.

Section IV shows how previous critiques of the 2003 “radical surgery” have been ignored.

Section V identifies three “radical surgery” problems. Section VI contrasts judicial interpretations of two inconsistent

trends in various High Court judgments. Section VII shall briefly consider the entrenchment of similar

“radical surgery” instrumentalism in Kenya’s draft new Constitution’s vetting provisions.

Section VIII concludes with a human rights recommendations.

II. NARC’S 2003 “RADICAL SURGERY” ON JUDICIAL

CORRUPTIONB. Judge Ringera’s Report on High Crimes and Misdemeanors

In March 2003, new Chief Justice Evans Gicheru established a Judicial Committee to receive public information regarding judicial corruption.

In October 2003, Gicheru CJ unilaterally publicized Justice Aaron Ringera’s Report through the mass media. The probe dramatically named and shamed “6 out of 11 judges of the Court of Appeal, 17 out of 36 High Court judges and 82 out of 252 magistrates…(who were) suspended on allegations of corruption.”

II. NARC’S 2003 “RADICAL SURGERY” ON JUDICIAL

CORRUPTION

The majority of those implicated prudently opted to resign. Of the seven judges who denied the corruption charges, four were acquitted, two convicted and sacked on 2 May 2008, while one hearing was prohibited, albeit after a seven-year hiatus.

II. NARC’S 2003 “RADICAL SURGERY” ON JUDICIAL

CORRUPTIONA. Stalled Tribunals

The acquittals included, first, Court of Appeal Judge Phillip Waki.

Second, Judge Daniel Aganyanya (as he then was). Third, proceedings against his wife, Lady Justice Roselyn

Nambuye (as she then was), were prematurely discontinued. Fourth, Justice Amraphael Mbogholi-Msagha was exonerated.

The Cockar Tribunal secured two convictions. One, against Judge Tom Mbaluto. Second, Judge Vitalis Juma.

II. NARC’S 2003 “RADICAL SURGERY” ON JUDICIAL

CORRUPTIOND. Prohibiting the Chief Justice’s and the President’s Decisions the Akiwumi Tribunal of inquiry for appellate judges purported

to investigate the conduct of Judge of Appeal, Moijo M. Ole Keiwua.

The High Court would ultimately prohibit the Akiwumi tribunal altogether, in 2010.

Similar lethargic delay dragged Pareno’s Appeal culminating in the magistrate’s triumph after a decade.

The four cases analyzed, consider discretion by an administrator–whether Ringera’s Committee, the CJ, the JSC, the President or his tribunals–who decides that a suspected judge or magistrate does not come within the prescribed constitutional dismissal-formula. Yet such administrator wishes to reject the judge’s or magistrate’s defence, without hearing the suspect’s grievance.

The 1987 case of Mbaraka Karanja. In that case, Judge Derek Schofeld (afterward Chief Justice of Gibraltar) relentlessly ordered–exhumation of 19 recent graves at an Eldoret cemetery.

Cecil Miller CJ transferred the case away from Schofeld J. In protest of interference, the High Court Judge resigned in a huff, departing from Kenya with his family.

expatriate judges had contractual renewal selectively refused.

Governmental advances of intrusion or a “green light” approach to administrative law.

III. POLITICAL INTERFERENCE WITH JUDICIAL INDEPENDENCE IN POST-COLONIAL KENYA

III. POLITICAL INTERFERENCE WITH JUDICIAL

INDEPENDENCE IN POST-COLONIAL KENYA

Three questions are posed by Patricia Kameri-Mbote and Migai Aketch:

First, what substantive rules were applied? They show that: “When it comes to the removal of judges, the repealed constitution did not specify the scope of impermissible behaviour.”

Second, what procedure was followed? They “question…how the Chief Justice comes to the conclusion that the question of removing a judge has arisen and that the president should therefore appoint a tribunal to investigate it.”

Third, the unreasonable notice availed to the threatened judges either “to resign or defend.”

Their conclusion is that in future, Kenyan law should provide for establishment of a standing tribunal “if the Chief Justice is politically compromised…and must be monitored.”

IV. UNDERSTANDING KENYAN JUDICIAL REFORMS

A. The Judge in the Job Market Because “justice must also seen to be done” review of such

administrative decisions ought not to be by the High Court, but by an independent oversight mechanism.

B. A Critique of Kenya’s Judicial Reforms Instrumental Goals of Legal and Judicial Systems

R v Judicial Service Commission the magistrate was dismissed for gross misconduct of doctoring court records at Machakos.

In 2014 Pareno’s Appeal, Appellate Judges Erastus Githinji, Roselyn Nambuye and Agnes Murgor JJ unanimously reversed Nyamu J’s instrumental decision. They instead endorsed non-instrumentalist reasons to protect against his removal by the JSC, before he could exercise his right of appeal.

IV. UNDERSTANDING KENYAN JUDICIAL REFORMS

Transparency International’s Critique“having single tribunals investigating multiple judges, and allowing for the department of public prosecutions, a key player in the executive to play a substantial role…considering they were intended to be a peer review exercise.”

Constitutional Guarantee prohibiting Political InterferenceJudge Mbogholi’s and Lady Justice Nambuye’s ambush inquiries “ignored constitutional guarantees of security of tenure for judges and international principles on the independence of the judiciary that state that the examination of the matter at the initial stage shall be kept confidential unless otherwise requested by the judge.” before establishing a tribunal.

IV. UNDERSTANDING KENYAN JUDICIAL REFORMS

 Judicial Information Promoting the Appearance of Judicial Impartialitythe LSK appeared to lack incentives to educate the public that the covert goal which instigated the intrusive 2003 “radical surgery” was to facilitate appointment of NARC-friendly judges.

Adversarial Justice as an Obstacle to Judicial AccessibilityAn analysis of GJLOS concluded that “(t)he absence of a clear programme management structure detailing linkages between organizations and their functions is causing confusion.”

“In addition, the GJLOS Reform Programme does not have clear arbitration mechanisms.”Therefore, the second Kibaki administration recognized their predecessor’s legal right to due process.

The old, post-independence constitution– comprised a tribunal formed by the president, itself contingent upon intimation by the Chief Justice. The notice was unreasonable. They conclude that “the majority of judges and magistrates had been retired ostensibly in the public interest, but without any hearing.”

“violation of security of tenure and the due process rights of judges and magistrates has engendered a low sense of morale among members of the judiciary and the legal profession….as a whole.” Further criticism for the new Constitution and legislation’s time-bound Vetting Board.

 

V. THREE PROBLEMS WITH NARC’S “RADICAL SURGERY”

V. THREE PROBLEMS WITH NARC’S “RADICAL SURGERY”

In Joseph Mbalu Mutava v Attorney General & Judicial Service Commission, Judge Mutava, was reinstated notwithstanding an ad hoc inquiry in 2013 when President Uhuru Kenyatta issued a gazette notice suspending the judge and the appointing a tribunal to investigate his alleged misconduct.

Constitutional Court Judges George Odunga, Pauline Nyamweya and Mumbi Ngugi JJ held that “Mutava’s constitutional rights were violated since he was not furnished with testimonies of the witnesses who testified in support of allegations levelled (sic) against him. The court also ruled that Mutava was not given an opportunity to defend himself against the allegations and that the JSC also failed to give him a written reason for its decision.”

An independent oversight mechanism should be established to review future judicial disciplinary processes.

VI. JUDICIAL REVIEW OF THE “RADICAL SURGERY”

A. Judicial Review and Judicial Discretion Pareno’s Appeal held that: “From record it is apparent that

the (proper) procedure was not followed in the appellant’s case.” Rather: “there was no jurisdiction to award a relief which had not been sought for by a party to any proceedings.”

Why so late? a compensatory remedy should have accompanied Pareno’s

reinstatement after lengthy suspension. He was not.

B. Instrumental Judicial Review in the Public Interest Nambuye’s case (That decision was instrumental).

Judicial Review jurisdiction was declined on grounds that it was not specifically conferred under the old Kenyan constitution. “In Kenya the jurisdiction is statutory.” The remedy lies on appeal.

VI. JUDICIAL REVIEW OF THE “RADICAL SURGERY”

4.3.2 Defense expert wins

The administrator HH The Aga Khan Platinum Jubilee Hospital V Susan Munyambu]Plaintiff’s Expert exaggerated

Maynard V West Midlands Regional Health Authority (England) Conflicting medical opinion judge may choose

Hots on V East Berkshire Area Health Authority (England) Liability threshold unattained

VI. JUDICIAL REVIEW OF THE “RADICAL SURGERY”

Mbogholi’s case

the Constitutional Court dismissed allegations that Gicheru CJ had wrongly exercised his refusal to accord hearing rights to the judge before recommending the establishment of a presidential tribunal of inquiry. It upheld the tribunal’s constitutionality.

C. Non-Instrumental Judicial Review Constraining Abuse of Administrative Discretion

Keiwua’s case

the aggrieved Judge of Appeal alleged that “the current system is hell bent in removing (him) from office because (he had) participated in a decision against the current president.”

VI. JUDICIAL REVIEW OF THE “RADICAL SURGERY”

the principal allegation was that “while engaged as a State Counsel in the Attorney-General’s Chambers and later as Judge of the High Court of Kenya,” Judge Keiwua “deliberately and unlawfully obstructed and frustrated the payment of legitimate claims to a contractor who had declined to give (him) a bribe.”

Ultimately, it concluded that notwithstanding that “radical surgery” was unprecedented in Kenya, aggrieved Judge Keiwua had a legitimate expectation–that he would receive a fair hearing both from the Ringera Committee and by Gicheru CJ–prior to any recommendation to President Kibaki to inquire into his conduct. That was because Judge Keiwua’s professional reputation and dignity would be adversely affected upon such recommendation and suspension from office. Moreover, the presidential tribunal lacked investigative powers.

VI. JUDICIAL REVIEW OF THE “RADICAL SURGERY”

The Keiwua Court argued that: “In the Nambuye and Mbogholi cases the question (was) the effect when the constitution is silent on the procedure to be adopted when the question of removal of a judge arises.” It concluded that: “It is distinguishable from the Nambuye and Mbogholi case(s) because Justice Nambuye and Mbogholi were quite rightly given the complaints against them and were aware of what they would face at the tribunal.” The non-instrumentalist turn in Keiwua's case “that the Legislature did not deny natural justice” was decided at a transision time, on the eve of the proposed new Constitution–not only to establish a Supreme Court and expand human rights–but also threatening to entrench another raft of vetting procedures which would entail far reaching implicatrions for the NARC judges themselves.

Ultimately, however, in 2014 the Sumpreme Court reversed–both the Court of Appeal's (2013) and the High Court's (2012) prohibition orders (staying dismissal of vetted judges pending constitutional reference of their removal)–and upheld the Vetting Board's immunity from review.

VII. EVALUATING JUDGES: INSTRUMENTAL OR SELF-

INTERESTED?

VII. EVALUATING JUDGES: INSTRUMENTAL OR SELF-

INTERESTED?How should legal historians evaluate the Keiwua case? The new Constittuion provides, inter alia, that all the pre-2010 promulgation judges and magistratese are to be vetted according to international principles, and susended on one-half pay until reinstatement. Which removal, morever “shall not be subject to any question in, or review by, any court.” If Gicheru CJ had survivied his own vetting, then he may have remained on the Court of Appeal. However, the astutely avoided vetting. The NARC judges became inclined to protest against the new vetting proposals as being discriminatory and arbitrary since “they will vicimize one arm of the government.” Yet “there were no such proposals in the main (constitutional review) working documents, the Bomas and Wako Drafts.”

VIII. CONCLUSION: TO REVIEW OR NOT TO REVIEW THE CJ'S, JSC'S AND PRESIDENT'S ADMINISTRATIVE

DECISIONS? Matthew Stephenson's apt counsel to “Those interested in promoting economic development through judicial reform”regarding: “the importance of thinking about judges (and other legal professionals) who must carry out the business of the judicial system not as generic idealized arbiters but flesh-and-blood human beings who are both rational and fallible. If judicial reform is to achieve its intended goals, it muqst succeed in aligning judicial incentives with social objectives.” Transitional justice demands that developmental goals should be constrained by respect for human rights, including those of officials in the previous regime. The Vetting of Judges qnd Magistrates' Act should have began by respecting human rights. It did not.

In March 2015, the Kenyan High Court rejected requests “by eight judges to have their sacking revoked.” THis decsion was upheld by the Supreme Court. The “sacked judges have appealed to the East African Court of Justice, in Arusha.” Separately, “the Court of Appeal subsequently reversed the High Court's prohibition in Mutava's case.”

IX. EPILOGUE

(The author acknowlegdes Lydia Bosire-Kemunto for comments on an earlier draft. It also benefitted from

presentation at the 2nd Kabarak University International Conference. Mistakes are the author's alone)

VII. MERCI BEAUCOUP