Judges in the dock over court decisions

Judges seeking the post of Chief Justice were thrust in unfamiliar territory when they were confronted with questions and criticisms by members of the Judicial Service Commission.

For the first time in Kenya’s history, candidates for the post were interviewed in a public forum with media cameras trained on them.

And individuals who have never been interviewed for a job before were grilled for hours in their quest to lead the judiciary. The proceedings which will continue this week were largely defined by tough questioning which saw some of the candidates lose their cool while others demonstrated remarkable restraint.

It was a spectacle that may have broken the wall of mystique around the lords of justice, but also raised concern that the judges may have been “too exposed”. Decisions of the Court of Appeal judges, which would ordinarily not be discussed in public, in were questioned.

The mannerisms of some of the judges were discussed, their past conduct subjected to scrutiny and their temperament tested. The open recruitment is seen as a major gain from the new Constitution which stresses transparency and fair competition in hiring of state officers.

Those who appeared before the JSC last week were Appeallate judges Riaga Omolo, Joseph Nyamu, Samuel Bosire, Alnashir Visram and Kihara Kariuki.

Others were Kalpana Rawal of the High Court, Lee Muthoga of the International Criminal Tribunal for Rwanda and law scholar Dr Willy Mutunga.

The interview panel comprises Attorney-General Amos Wako, Prof Christine Mango, High Court judge Isaac Lenaola, magistrate Emily Ominde, lawyers Ahmednasir Abdullahi and Florence Mwangangi, and Titus Gateere of the Public Service Commission.

But it was Mr Abdullahi’s abrasive questioning which was the key highlight of the interviews. He was accused of getting personal and ridiculing the applicants.

In a statement to the media, lawyer Mong’are Bw’Okongo accused Mr Abdullahi of malice and “extremist thinking”.

Unsuccessful applicants

“How would the good commissioners argue cases before the unsuccessful applicants who may be sitting at the High Court, Court of Appeal and the Supreme Court?”

Contacted on Saturday, Mr Abdullahi defended his conduct. “Kenyans must realise that there is a paradigm shift from an opaque system where loyalty to the Executive earned one a job as chief justice to the era of transparency.

“As lawyers, we are most qualified to ask the questions on behalf of Kenyans on the candidates’ track records because we appear before them in courts. The ordinary mwananchi has no knowledge of the track records. Some of the questions were sent to us by concerned Kenyans,” he said.

On Wednesday, Justice Bosire accused Mr Abdullahi of harassment. The combative lawyer had questioned his academic credentials and treatment of lawyers.

“A bachelor’s degree with a second lower is like a C-minus. With this qualification, can you provide intellectual leadership of the Judiciary?” the lawyer asked Justice Bosire.

The judge defended his credentials saying he had acquired sufficient experience and exposure.

Mr Abdullahi found himself in an exchange with fellow commissioners who appeared sympathetic to Justice Bosire’s discomfort over the line of questioning.

“I don’t want anybody to apologise for my questions. I have no reason to apologise myself and nobody should apologise for me,” he said.

The following day he told Justice Muthoga that his final results of a pass in his degree were equivalent to “a fail”.

Ironically, Justice Muthoga had himself sounded grossly disdainful of the intellectual capacity of majority of Kenyan judges. He had said the Judiciary suffers from “severe intellectual capacity deficit”.

The lawyer then turned tables on the judge, asking him whether he was capable of remedying the intellectual challenge “with his pass”. The judge defended his qualifications.

During the interview Justice Omolo, a member of the JSC, was put in the dock over his decisions that seemed to favour former President Moi in election cases. He was painted as a man who rendered loyal service to the Moi regime in disregard of the Constitution.

The judge denied the accusations, saying he made decisions on the basis of the law.

Whereas Justice Omolo was accused of being sympathetic to the Moi regime Justice Kihara is alleged to be close to President Kibaki.

The accusations

The High Court judge fought off the accusations saying though he knew the President, he has never been in State House in his private capacity.

Justice Nyamu was accused of being a “gatekeeper” for former Chief Justice Evan Gicheru and favouring the rich and politicians in his judgments, especially in corruption cases.

Mr Wako and Mr Abdullahi took Justice Nyamu to task over his ruling last year which outlawed the kadhis’ courts while Justice Bosire was accused of being harsh to a widow in a burial dispute.

It was pointed out that Justice Nyamu had ruled against the government and the Kenya Anti-Corruption Commission in high profile graft cases, especially on the Anglo-Leasing scandal. He denied the accusations.

And the controversy over the will of Nyandarua politician J. M. Kariuki, who was killed 1975, came to haunt Justice Muthoga. He was accused of destroying a file containing the politician’s will. But the judge said what was destroyed was an income tax file.