Why Kenyans may have to wait a little longer for new CJ

Kenyans may have to wait a little longer for a new Chief Justice, Attorney-General and Director of Public Prosecutions.

Following Speaker Kenneth Marende’s decision to refer the matter to the relevant House committees, Ababu Namwamba, who chairs the Justice and Legal Affairs Committee, has said they will not vet the candidates until the process by which the nominees were arrived at is examined by Parliament to determine if the law was followed.

Nomination process

His committee, he said, will only interrogate the constitutionality of the nomination process and report their findings to the House on Thursday.

President Kibaki nominated Appeal Court judge Alnashir Visram as CJ, Prof Githu Muigai as AG, Mr Kioko Kilukumi as DPP and Mr William Kirwa as Controller of Budget. However, Prime Minister Raila Odinga rejected the list, saying he was not consulted by the President as legally required.

The Caucus of Women in Leadership and the Coalition of Women of Kenya have also opposed the nominees, saying President Kibaki did not consider gender balance and did not consult Mr Odinga.

The Kenya Human Rights Commission and the Kenyan chapter of the International Commission of Jurists have opposed the nomination of Justice Visram, saying his judgments seem to inhibit freedom of expression.

“His likely appreciation of the Bill of Rights and capacity to espouse the spirit and letter of the Constitution is in doubt,” said Muthoni Wanyeki of the Rights commission.

The October issue of the Nairobi Law Monthly noted that in the opinion of legal practitioners, the judge has shown nothing that can be “remotely described as innovative” in his judicial approach.

“Neither has he broken any new frontiers in jurisprudence in the conventional sense. He has not shown any spine as a judge, and his judgments show deference to the Executive,” said the magazine published by lawyer Ahmednasir Abdullahi, a member of the Judicial Service Commission.

Vice-President Kalonzo Musyoka told Parliament February 1 that President Kibaki settled on Justice Visram because he comes from a “minority community”.

His grandfather came to Kenya from India at the end of the 19th century. The judge is probably best known for having awarded the highest libel payout in Kenya’s history.

In 2002, he ordered Dr Ian West, a Home Office pathologist, Chester Stern, the crime correspondent of The Mail on Sunday, and a former policeman to pay former Cabinet minister Nicholas Biwott Sh30 million.

The former minister was mentioned in The Casebook of Dr Ian West. The award attracted criticism from the Court of Appeal. In October 2005, Court of Appeal Judge P.K. Tunoi ruled:

“My considered opinion of the awards so made is that they lack juridical basis, they may be found to be manifestly excessive and should not at all be taken as persuasive or guidelines of awards to be followed by trial courts, since the trial judges concerned appeared to have ignored basic fundamental principles of awarding damages in libel cases. In my view it is of no persuasive material.”

Criticism

That criticism appears to be something ICJ-Kenya agrees with. In a statement last week, the group described the judge as “an enemy of media freedom. He hates freedom of expression which he has, in the past, punished ... He cannot lead a free people in implementing their new and libertarian Constitution, enacted in response to injustices that he has been part of.”

A number of commentators have also pointed out that if appointed, the nominees – especially for the posts of CJ and AG – may find it difficult to win widespread acceptance because they are perceived to be PNU sympathisers, having been picked by President Kibaki.

Questions also abound over Mr Kilukumi’s nomination. The lawyer has been handling briefs for suspects named in major corruption cases, including Goldenberg, Anglo Leasing and Grand Regency scandals.

Because the lawyer represented suspected individuals in the cases, some of which are still pending in court, analysts question whether he can fairly prosecute the same people he has been defending.

Mr Kilukumi acted for Chris Murungaru and Zakayo Cheruiyot in the Anglo-Leasing affair and former Treasury PS Wilfred Koinange in the Sh5.8 billion Goldenberg case.

And until early last week, the lawyer was representing suspended Higher Education minister William Ruto in fraud charges facing him.
Authorising withdrawals

Three politicians have also objected to Mr Kirwa’s nomination. If Parliament approves Mr Kirwa’s nomination, he would oversee the implementation of the budgets of the national and county governments by authorising withdrawals from public funds.

No money can be withdrawn from the Consolidated Fund unless the Controller of Budget has approved the withdrawal.

Livestock assistant minister Aden Duale and MPs Charles Keter (Belgut) and Joshua Kutuny (Cherengany) have said that the Agricultural Development Corporation (ADC) boss is unsuitable for the job.

They say Mr Kirwa, 44, had “unanswered questions” before the House Committee on Agriculture. The committee was investigating allegations of impropriety at ADC.

A Business Daily report last Tuesday said investigations into Dr Kirwa’s leadership revolve around the questionable distribution of subsidised fertiliser by ADC in Eldoret. 

The distribution has become the subject of court cases as it was alleged that some farmers forged deposit slips to procure the fertiliser, which was subsidised by the government.

Mr Kutuny also said that Mr Kirwa was partisan. Mr Kirwa led President Kibaki’s re-election campaign in Eldoret North in the last elections. And in 2002, he contested the Eldoret North parliamentary seat against Mr William Ruto.

Battle for control

The Business Daily also reported that Mr Kirwa was involved in the battle for control of the Kenya Seed Company. In 2001 the firm issued four million shares seeking to raise Sh160 million; 3.4 million were paid for.

The impact of the sale was the reduction of ADC’s stake in the parastatal from 53 to 40 per cent and that of the Kenya Farmers’ Association from 14.9 to 11.3 per cent.

The stakes of CEO Nathaniel Tum and associates rose from 17.8 to 29.5 per cent and that of “others” from 14.4 to 18.9 per cent. The share sale of the Kenya Seed Company was later nullified.

Like Mr Kirwa, Prof Githu Muigai is said to enjoy high-profile political connections. Mr Odinga has said that the scholar replaced lawyer Fred Ojiambo who had been proposed on an earlier list.

Prof Muigai is said to have a good relationship with top PNU leaders, including Deputy Prime Minister Uhuru Kenyatta.

Prof Muigai serves powerful clientele like the World Bank, the Government of Kenya and the Kenya Anti-Corruption Commission and is among a handful of Kenyan lawyers who have special permission to represent clients at the International Criminal Court.