Top judges face crisis of confidence

Appeal Court judge Joseph Gregor Nyamu’s self-confidence and determination to move to the next level in his legal career is not in doubt.

The good judge has knocked at the door of the Judicial Service Commission three times in the past two months in search of a promotion.

During the first encounter he wanted to become chief justice and president of the Supreme Court. The second time, he sought the position of deputy chief justice.

During the interviews that were televised live he was accused of being a “gatekeeper” for the powers that be in the Judiciary.

Attorney-General Amos Wako was concerned that Justice Nyamu had ruled against the government and the Kenya Anti-Corruption Commission in high-profile corruption cases, especially the Anglo-Leasing scandal. 
The judge was also criticised for his ruling last year which appeared to outlaw the kadhis’ courts. He failed the interview for the two jobs, but he did not give up. He submitted his application to the JSC for a seat on the Supreme Court. He failed the interview — for the third time.

Well, Judge Nyamu’s is largely the narrative of the Appeal Court.

Vote of no confidence

The last interviews for the highest court in the land were a vote of no confidence in the Court of Appeal and a signal of what might turn out to be radical reconstitution of the institution once the vetting of judges starts.

It has been pointed out that the confirmation of “outsiders” Willy Mutunga and Nancy Baraza as chief justice and deputy chief justice was a commentary on the confidence crisis suffered by the current Bench, especially the Appeal Court.

Because the Appeal Court was the second highest in the land, it was expected that its judges stood a better chance of proceeding to the Supreme Court.

Other appellate judges who applied but were found unsuitable for the positions of chief justice and Supreme Court judges were Riaga Omollo (the seniormost), Samuel Bosire and Alnashir Visram.

Justice Philip Waki and Justice Erastus Githinji applied for the Supreme Court positions. Judge Philip Tunoi, who was appointed to the Supreme Court, is the only Appeal Court judge who has passed a JSC interview. He has been the second most senior judge of the Appeal Court. 

But even more important is the fact that the judges have been by-passed by their juniors from the High Court such as Justice Mohammed Ibrahim and Justice J.B. Ojwang who were appointed to the Supreme Court.

The Riaga group was knocked out on the basis of past judgments which were seen as skewed to favour the Executive as well as academic qualifications and integrity.

Article I66(2) of the Constitution requires individuals to be appointed judges to be of high moral character, integrity and impartiality. The Judiciary has in the past been criticised for incompetence, corruption and partiality, all of which have led to a crisis of confidence.

This is the disease the new Constitution sought to cure by demanding the exit of the former chief justice and the vetting of all members of the current Bench.

This then raises the question: what is the future of the Appeal judges in light of the issues which emerged in the recent interviews, the values and the high threshold of integrity demanded by the new Constitution?

“The judges are in a vulnerable situation. The new Constitution puts stress on certain values which the judges have acted against in the past,” said a lawyer who sought anonymity for fear of antagonising them.
It has been argued that nomination of outsiders to the Supreme Court may have been a parting shot for the judges since the same accusations used to knock them out during the interviews will be deployed against them during vetting.

The Lords of the Appeal Court also find themselves in a tricky situation regarding seniority. Decisions of the Riaga group will now be reviewed by judges like J.B. Ojwang who have been their juniors.

For a profession that reveres seniority, this reversal of roles is certainly likely to cause discomfort.

However, the JSC has been accused of being hostile to sitting judges and condemning them for work done during the Moi administration.

“The JSC’s view appears to be that serving judges deserve no place in the new dispensation because they have all contributed to the Judiciary’s decline and decay,” advocate G.J. Kang’ethe said.

“It is a blanket condemnation that subverts the essence of the new Constitution. The principle of natural justice is that no man or woman shall ever be condemned unheard.”

Senior Counsel Paul Muite cautions that the judges should not be sacrificed for mistakes committed by the Executive.

Past comments by Ahmednasir Abdullahi, a member of the JSC which is mandated to recommend individuals to be hired as judges, sum up the attitude towards members of the current Bench and signal their goose may well be cooked.

Shown the door
Writing in the Sunday Nation in November 2009 (way before he was elected to the JSC), Mr Abdullahi proposed that all judges be shown the door for  Kenyans to realise the dream of the new Constitution.

When he presented lawyers’ views before the Committee of Experts on the new Constitution, Mr Abdullahi stressed that the “only viable solution” to the failures of the Judiciary was “a clean slate approach” and reconstitution of the institution.

“The Kenyan Judiciary right from the magistracy to the Court of Appeal is in a sorry state. It is an institution that is so rotten that its stench has assumed a sense of normalcy,” he wrote.

He cited corruption, incompetence and impunity as some of the greatest challenges in the Judiciary.

On competence, Mr Abdullahi noted that there are too many former magistrates in the High Court and the Court of Appeal.

Because of this, he argued that there has not been “a single profound judgment that shaped the course of Kenya’s destiny written by current members of the Judiciary.”

“There are about 10 excellent judges in the High Court and one or two in the Court of Appeal that deserve a chance to serve in the new dispensation. But in order to have a clean break and for the sake of this nation, the new Constitution must show them the door.

All of them.”