Rawal: Solid past but puzzling rulings

Justice Kalpana Rawal, one of the two women short-listed for the position of Chief Justice comes from a family of lawyers.

Her father was judge of the High Court of India, where he served with distinction and received an award for integrity, while her grandfather was a law minister in India.

Justice Rawal started her career as a teacher of both administration and regular police officers at Lower Kabete in 1975.

She holds Bachelor of Arts degree, and Bachelors and Master of Laws in constitutional and administrative law.

In 1975 she became the first woman lawyer to set up in private practice in Kenya, running a general practice where she remained until 1999 when she was appointed a commissioner of assize, and thereafter a judge of the High Court.

A look at some of the cases that she has decided will provide an idea about Justice Rawal’s general approach as a judge.

Justice Rawal has presided over a large number of cases of persons charged with murder.

In 2005, Justice Rawal acquitted a prominent medical doctor of murder charges, in a case which had received considerable media attention, as it arose from the dumping of 15 foetuses in a river near Nairobi’s South C in 2004.

The doctor had been arrested and charged with murder in connection with the foetuses. Justice Rawal also set free two nurses, charged with the doctor.

The three had been accused of murdering two unidentified babies between May 23 and 25, 2004.

According to Justice Rawal, there was no evidence linking the three with the crime. She said the foetuses were not persons capable of being killed.

In an on-going case whose appeal was decided only last month, a conviction by Justice Rawal for murder was set aside by the Court of Appeal because Justice Rawal, having allowed one of the three assessors to be absent from the trial, later allowed the assessor back in the case.

Meanwhile the assessor had not been in court when some of the evidence was presented.

The Court of Appeal followed the established line that where an assessor misses some of the evidence but is then allowed back, any resulting conviction cannot stand.

The hardship in this particular case is that the accused was arrested in 2000 and has already been in custody for more than 10 years.

A fresh trial is to be arranged before a judge other than Justice Rawal.

Election petitions

Justice Rawal has also presided over a number of election petitions including the one challenging the election of Dick Wathika as the Member of Parliament for Makadara constituency, which she nullified, having found that the election was riddled with irregularities.

In January 2011, Justice Rawal gave an award of Sh5.5 million as damages for defamation against the Standard newspapers for a publication in 1997, which had alleged that the plaintiff was involved in luring schoolgirls into lesbianism.

Although the articles in question had not referred to the plaintiff by name, she was able to convince the court, through witnesses, that the articles had circumstantially been understood as referring to her.

While the sum awarded was smaller than previous awards for defamation, it is in keeping with the trend in Kenya for high awards in defamation cases.

In contrast, two months later, Justice Rawal rejected a submission that general damages of Sh5 million would be appropriate for a former soldier who had sustained severe injuries while on official duty, which left him paralysed and bound him to a wheelchair for the rest of his life.

To the soldier, she gave an award of Sh1 million as general damages for pain, suffering and loss of amenities, although she also made an award for other heads of damages.

Justice Rawal was the presiding judge in a bench of three which decided a petition by a former judge, J. V. Juma, who had been removed from office following an adverse finding by a tribunal appointed by the President during the Narc government purge on the Judiciary.

The judges refused to reinstate the former judge to his position, explaining that he has sought to shut the stable door after the horse had bolted.

They expressed the view that the suspension of a judge ceases to have effect if the tribunal investigating the question of his removal recommends to the President that the judge ought not to be removed from the office.

In this instance, the tribunal recommended that the judge be removed from the office, and the President had already acted on the recommendation.

Through her judgments, Justice Rawal has lent her support for the recognition of women’s rights to property in marriage settings.

In this regard, she has been one of the most consistent and foremost advocates for women’s property rights.

Claims brought to her court by women who claim property from husbands following divorce, have been upheld by the judge who has made generous findings in favour of the women.

It is considered that the courts have been slow in recognising the rights of married women to property acquired during marriage.

Justice Rawal can therefore be regarded as a leader in giving greater recognition to married women’s claims to property rights.

Justice Rawal was selected by the Chief Justice to handle the high profile process of taking witness statements from state security officials in relation to the investigation by the International Criminal Court (ICC) in Kenya arising from the post election violence. (READ:Judge Rawal picked to aid ICC investigations)

This investigation received considerable media attention as security elite were lined up to record statements before the judge.

However, the process, which had promised so much, eventually ground to a halt when lawyers for the security personnel raised a plethora of questions relating to the process to be followed in recording the statements.

A further problem was that it emerged that Justice Rawal was herself not familiar with the provisions of the Rome Statute, the law that was in question in relation to the statement taking process.

Her lack of familiarity is, however, not surprising as the Rome statute is a relatively new regime of law, and judges who work in domestic courts would not be expected to have had a chance to interact with it in their work.

In the end, amid procedural objections by defence lawyers, it became clear that there was no serious intention by the security chiefs to cooperate with Justice Rawal, and that they were merely going through the motions in order for the government to appear to be cooperating with the ICC.

Eventually, the process died a natural death when, in December 2010, the prosecutor of the ICC announced the names of the six defendants against whom he had applied for summonses to appear before the court.

Justice Rawal was criticised for her decision in a case in which the Kenya Anti-Corruption Commission (KACC) sought to compel an employee of a public corporation to declare his wealth, after the KACC had demonstrated that there was evidence that the employee in question was living far beyond his means.

The KACC had sought to enforce a provision of the Anti-Corruption and Economic Crimes Act, 2003, which mandates that if the Commission has adduced evidence that a person has unexplained assets, the court if satisfied, that the person concerned is in possession of unexplained assets, may require the person to satisfy the court that the assets were acquired otherwise than as the result of corruption.
Source of wealth

The concerned employee earned a monthly gross salary of ShSh300,000. An investigation by KACC led to the seizure more than Sh3 million, title deeds to seven different properties as well as money said to be in foreign accounts. 

KACC then asked the court to compel the employee to prove the source of his wealth in accordance with the law in question.

Justice Rawal declined to order the employee to provide an explanation as to the source of his wealth.

She based this decision on the reasoning that a person is deemed to be innocent until proved guilty, as provided in the Bill of Rights, particularly the rights to a fair trial and the right to property.

This decision drew criticism from, among others, the director of the KACC who termed it an “astonishing” decision.

Others pointed out that the ruling was also against the UN Convention against Corruption.

Validly elected

Justice Rawal presided over a petition arising from the parliamentary elections for Kamukunji constituency in which the petitioner, Ibrahim Ahmed challenged the declaration that Simon Mbugua had been validly elected as the Member of Parliament for the area.

The petition was heard to conclusion by Justice Mary Ang’awa, who declared that Mbugua had not been validly elected and, therefore, nullified the election.

Justice Anga’wa ruled that the election was compromised and the returning officer made an error in announcing incomplete results. She added that the results lacked integrity and the MP was therefore not validly elected.

Before the matter got to Justice Anga’wa, it had gone before Justice Rawal, who in June 2010 disqualified herself from hearing the case.

Her reason was that she had received threatening text messages on her mobile phone. Justice Rawal announced her own disqualification in a decision which she communicated to the lawyers acting in the case in her chambers.

She told the lawyers that she considered the threats to be an insult on her integrity, and on the Judiciary and the court.

By her position, a judge is an officer of the law, sworn to do justice without fear, favour or ill-will.

In fact the oath of allegiance that judges take under the new Constitution is to “diligently serve the people and the Republic of Kenya ...in accordance with this Constitution ... without any fear, favour, bias, affection, ill-will, prejudice or any political, religious or other influence.”

A practical obligation of this oath is the duty to hear all cases that come before the judge. Some of the cases involve consideration of personal safety for the judges, who may risk reprisals as a result of dealing with the case.

By ceasing to act in the case, Justice Rawal sent the clear message that a party to a suit can achieve results by intimidating the judge.

Justice Ang’awa who acted in the case after her, and made short shrift of what had been long-drawn proceedings, has been just fine for it.

Justice Rawal is a good solid judge who has been a champion of women’s issues in her own right. She has also contributed to upholding justice in other branches of the law.

Her long service to the law and family pedigree all suit her application to be the next Chief Justice.

The critical question is: will she be regarded as carrying sufficient personal gravitas to succeed as Chief Justice?

The point of reference regarding this may well be her handling of the evidence taking for the benefit of the ICC process, from state security agents.

The team of lawyers appointed by these agents gave her the round-around and in the end, she did not go very far.

Justice Rawal simply failed to stamp her authority on the proceedings which degenerated considerably and were only rescued by the announcement by the prosecutor of the ICC of the names of the six persons whom he had applied for summonses against.