Visram out to prove a point in race for CJ position

Justice Alnashir Visram nearly became Kenya’s next Chief Justice when President Kibaki nominated him to the position in March. However, opposition to the nomination, based on claims that stakeholders had not been sufficiently involved in the nomination process, proved too much and the President yielded to the pressure for a more consultative process.

Throughout the long period of controversy Justice Visram remained silent and only spoke to deny allegations that had been made against him by the Law Society of Kenya.

In some quarters, it was felt that given the questionable procedure that had been used in nominating him, Justice Visram should have publicly taken a position on the controversy surrounding his nomination, preferably to reject it, given the circumstances under which it was made.

However, Justice Visram applied for the position when it was opened up for competition and has been shortlisted for interview. Some people feel that since Justice Visram was clearly prepared to take up the position irrespective of the questions surrounding his nomination, he will probably be unwilling or unable to defend the Constitution, which the President had attempted to flout and nearly landed him the job.

Justice Visram was appointed by President Moi as a Commissioner of Assize (a temporary judge) in June 1999, and in March 2001, as a substantive judge of the High Court.

In April 2009, President Kibaki appointed him to the Court of Appeal. With two bachelors’ degrees in law, one of them earned in Canada, and a masters’ degree, Justice Visram is one of the most qualified judges. He has been involved in a large number of important cases.

In one decision in October 2010, he was part of a bench of three judges who broke new ground, going against a line of findings that had been propagated in the High Court to the effect that delay in commencing criminal proceedings does not invalidate the prosecution of the offence.

This line had first been taken by Justice Joyce Aluoch in reprieving the late Kipngeno arap Ngeny from prosecution for corruption, and was then followed by a bench that included Justice Nyamu in the case against Eric Kotut arising from the Goldenberg scandal.

The effect was also to reprieve Kotut from prosecution. In this decision Justice Visram and his colleagues held, that violation of an accused person’s constitutional rights did not automatically result in acquittal, but could give rise to a claim for compensation in a civil court.

The judges clarified that the constitutional right is “a right to trial without undue delay, not a right not to be tried because of undue delay”.

Landmark decisions

The Judiciary’s website promotes him as a judge who has “established himself as a creative judge with a flair for innovative approaches to judicial resolution,” and discusses what are regarded as some of his landmark decisions. However, at least two of Justice Visram’s rulings cast him in bad light, and portray him as intolerant of freedom of speech.

The first of these was delivered in a case in which a former minister, Nicholas Biwott, had filed for defamation against two British authors, Dr Ian West and Chester Stern and their publishers, arising from the contents of a book by Dr West.

Dr West, a pathologist, had served as a member of Scotland Yard team that carried out investigations into the death of Dr Robert Ouko. He had published the book, Dr Ian West’s Casebook, which purported to be a true account of Dr West’s official work investigating the Ouko murder, in which he alleged Mr Biwott’s involvement in the murder.

Mr Biwott separately sued two Kenyan bookshops which had stocked copies of the book. The suit against the bookshops was settled out of court, with each of them agreeing to pay Sh5 million as damages.

Damages

Because the British defendants had not participated in the case, neither offering a defence nor giving evidence, the case against them proceeded undefended. Against these, Justice Visram awarded damages of Sh30 million.  This was, and has remained, the highest award of damages for defamation in Kenya’s history.

There were several problems with this award. The first was the failure by the judge to take into account, or give effect to, all the publicly known information about Mr Biwott which might have affected a view of his standing.

Aside from Dr Ouko’s death, there had until this time, been allegations of involvement in grand corruption against Mr Biwott which had been made in the context of his position as a high-ranking government official. 

Whatever their merit, these allegations formed part of any public reputation that Mr Biwott had at the time, and would have had to be taken into account when assessing whether, in fact, the book’s contents had injured his standing.

Mr Biwott did not call a single witness to testify on his good standing as would have been injured by defamatory remarks. It remains a mystery how the judge could have made a balanced assessment of Mr Biwott’s reputation under these circumstances.

Instead, the judge took a strange approach, speaking of Mr Biwott as a person who “travels around the world representing our nation at important conferences, seminars and negotiations aimed at attracting investments in, and business with, our country.” 

The judge referred to Mr Biwott as the “minister representing the important portfolio of Tourism, Industry and Trade” and proceeded as part of the opening to the judgment with a statement that should have been part of the conclusion: he observed that “his exposure and reputation, which extends far and wide beyond our borders, has been severely and wantonly attacked and injured by the defendants in a book...”

The high praise for Mr Biwott was part of the opening of the judgment and was not expressed to be an assessment of the evidence that the court had received.

Since the case revolved around Mr Biwott’s reputation, which had allegedly been injured through false claims, the unsolicited views from the judge about Mr Biwott’s important position in society, and his usefulness to the country as a minister, was an early give-away as to his biases in the case.

Political operator

In truth, this approach had little connection with the real Mr Biwott who, in public discourse, was referred to as the “Total Man” and had a well-established reputation as a ruthless political operator.

Secondly, the judge failed to address important known facts surrounding the death of Dr Ouko, although these were an issue and formed the heart of the controversy before him.

For example, the killers of Dr Ouko had not been found and remained unknown at the time the case was heard. This is a fact that the judge himself acknowledged in his judgement.

Secondly, President Moi had prevented the investigation by the Scotland Yard into the death of Dr Ouko from proceeding to conclusion when he ordered its premature closure, and appointed a commission of inquiry in its place.

Thirdly, at the time that these investigations were stopped Mr Biwott was regarded as one of the principal suspects in the Ouko murder.

Fourthly, during a commission of inquiry which replaced the Scotland Yard investigations, Mr Biwott, together with a former Permanent Secretary, Hezekiah Oyugi, was mentioned adversely but the commission was itself dissolved before it could complete its work.

Finally, on the day the commission was disbanded, Mr Biwott and Mr Oyugi were arrested but were released after two weeks, on grounds that there was no evidence to link them with the murder.

All these facts were in the public domain at the time of the judgment and each one of them was material to the decision by the judge. While Mr Biwott had had a dalliance with the law in relation to Dr Ouko’s murder, Justice Visram cloistered himself from this publicly known information and had no consideration of the facts in his judgment.

This led to a curious decision that few would agree served the ends of justice. In considering Mr Biwott’s reputation, he would have had to consider that the former minister had twice been mentioned adversely and had been arrested in connection with the murder of which the book in question had also accused him.

Ascribed reputation

If Mr Biwott had had the desire to protect his good name, this should have led him to file a suit against the government at the time he was arrested. If he had been vindicated with damages for the arrest, he would have deserved the reputation that Justice Visram unquestioningly ascribed to him.

Having been mentioned adversely before and taken no action to redeem his reputation, the judge could only have concluded that the allegations in the book, being a repetition of what had previously been said about him, were not capable of defaming Mr Biwott.

Thirdly, it is interesting how Justice Visram dealt with the unknown killer of Dr Ouko. The fact that the killer was (and still is) unknown today, should logically have meant that anybody, not excluding Mr Biwott, could have done it.

However, the effect of the judgment was that while anybody else in the world could have been the murderer, the judge formally exonerated Mr Biwott as a possible suspect. The judge found it “highly outrageous and serious” to call Mr Biwott a murderer.

Fourthly, having established liability on the part of these defendants, the judge engaged in a most sophistic process when it came to the assessment of damages. He took as his threshold, the fact that the Kenyan bookshops had recorded an out-of-court settlement in which they agreed to pay Sh5 million each to Mr Biwott.

In the judge’s view, since the bookshops, in law referred to as unintentional defamers, had agreed to a liability of Sh5 million each, the more culpable defendants should be liable to a higher quantum of damages. Through this reasoning he placed their liability at Sh30 million.

The judge, having not been party to the negotiations that went into the award, would not have been privy to how the amount of Sh5 million had been arrived at. To use it as a basis for the court award was a grave misdirection on his part.

In the second judgment, a suit filed by the Standard Group for defamation against The People Daily, the judge struck out the defence filed by the newspaper and entered judgment against it when it refused to provide pre-trial disclosure of the material on which its defence was based.

The suit in question had arisen from an article published in newspaper to the effect that the shareholders of Kenya Television Network, owned by the Standard Group, had fraudulently put the company in receivership and that “the move to place the station under receivership was devised to evade paying the creditors, who include Cable News Network, the Kenya Revenue Authority and the National Hospital Insurance Fund and whose debts have shot up to Sh500 million, a bill The Standard doesn’t want to foot”.

Defence of the truth

When the suit came up for trial, the Standard Group applied for more information regarding the claim, a legal process called “discovery”. The People Daily, however, resisted this asserting it would rely on the defence of truth during the trial.

In a defamation suit, truth is a high-gains-high-risk defence. If successfully canvassed in court, the suit will fail. If the defence fails, the damages that will follow will be enormous. It is, therefore, a defence that is not invoked lightly.

The People Daily had asserted in court that the defence in question was based on information from a whistleblower and to provide discovery as sought by the Standard Group, would have blown the cover of the whistleblower before trial. Justice Visram, however, dismissed the defence for want of discovery, and entered judgment for the Standard Group.

A court would rarely dismiss the defence of a party to a suit before it, since natural justice requires that everybody be heard before a decision is made. To have done so in these circumstances was a drastic and unusual act on the part of Justice Visram.

To have done so when The People Daily insisted that the claims it published were true, and which they were prepared to prove, was an extreme decision on the part of the judge.

The International Commission of Jurists (Kenya Section) was the first organisation to reject Justice Visram’s nomination as Chief Justice. In a statement to the media, the organisation charged that “Justice Visram hates freedom of expression which he has, in the past, punished with the highest damages ever awarded in the country.” 

Then there is the allegation by the LSK that Justice Visram committed perjury in an affidavit he swore in certain proceedings. Justice Visram has, however, denied this allegation. It remains to be seen whether LSK will press it during the interviews which the judge will undergo as part of the process for appointment as Chief Justice.

Justice Visram has a good legal mind though. He has also occupied important positions in judicial administration, including as a member of the committee that runs the Judiciary Training Institute. He has discharged these roles with ability.

However, his candidature has been complicated by the irregular nomination by the president about which h he appeared to play a passively acquiescing role. Further, his decision in the Biwott case is not explainable on any known legal basis and would only add to the complication. 

George Kegoro is the executive director, ICJ (Kenya)