Msagha takes second shot at Chief Justice position

Justice Mbogholi Msagha appears before the Judicial Service Commission on May 9, 2011. PHOTO | NATION MEDIA GROUP

What you need to know:

  • Justice Msagha attended the University of Dar es Salaam in Tanzania, where he earned a law degree in 1976.
  • He was admitted as an advocate in 1978 after which he went into private practice in Mombasa.
  • While in private practice, he served as a member of the Rent Restriction Tribunal and of the Municipality of Mombasa Valuation Court.
  • Outside the judiciary, Justice Msagha chaired the Commission of Inquiry into the Mtongwe Ferry disaster in 1994.
  • In 2003, Justice Msagha’s career almost came to an end when the Ringera Committee named him as one of the judges that had been involved in corruption.

Justice Mbogholi Msagha is making a second attempt to become Kenya’s next Chief Justice, his first having been in 2011, when he unsuccessfully applied for the same position. He was shortlisted and interviewed but the job was given to lawyer Willy Mutunga.

Justice Msagha attended the University of Dar es Salaam in Tanzania, where he earned a law degree in 1976 and was admitted as an advocate in 1978 after which he went into private practice in Mombasa.

While in private practice, he served as a member of the Rent Restriction Tribunal and of the Municipality of Mombasa Valuation Court. He was appointed Judge of the High Court in 1987, and has served in various stations in the country. He is the longest serving judge of the High Court.

Within the judiciary, Justice Msagha has held a number of positions including as the presiding judge in the Land and Environmental Law Division and the chairman of the board of trustees of the Judicial Service Staff Pension Scheme.

He also served as a member of the sub-committee of the Judicial Service Commission dealing with the recruitment and promotion of district magistrates. In addition, he has headed the Criminal Division, the Family Division, the Kenya School of Law and the University of Nairobi’s Faculty of Law.

Justice Msagha served as the first Principal Judge of the High Court, a post created by the new Constitution. The principal judge is the head of the High Court and the holder is elected by the other judges.

Outside the judiciary, Justice Msagha chaired the Commission of Inquiry into the Mtongwe Ferry disaster in 1994. This was Kenya’s largest marine accident in which 257 passengers aboard the MV Mtongwe drowned after it had capsized. The report of the commission established that the accident was caused by overloading associated with poor distribution of passengers aboard the ferry.

In 2003, Justice Msagha’s career almost came to an end when the Ringera Committee named him as one of the judges that had been involved in corruption.

The committee recommended his investigation by a tribunal if he did not resign voluntarily. However, rather than resign, Justice Msagha faced a tribunal investigation, one of five judges that did so, and the tribunal eventually cleared him.

MOI DECLARED WINNER

On the bench, one of the most famous cases that Justice Msagha has been involved in is an application by Kibaki, the main challenger to President Daniel Moi in the 1997 presidential elections, who had contested the results where Moi was declared winner.

Kibaki applied had applied that the court summons Moi to be examined as a witness regarding the service of the election petition papers, the ground on which the petition was ultimately dismissed. However, the court declined the request to call Moi for cross examination, ruling that no proper basis had been made for the application.

Over the years, this decision has been heavily criticised as providing clear evidence that the courts could not be relied on to make difficult decisions in politically significant cases, like presidential election petitions.

In fact, Justice Msagha’s ruling in this matter became the subject of interest when the judge appeared before the Judges and Magistrates Vetting Board.

The report of the board shows that “the panel was not fully persuaded as to the objectivity displayed by the court, and felt that the judges had over-relied on a technicality” to protect Moi.

Justice Msagha, however, explained that the High Court was bound by precedents set by the Court of Appeal, which at that time greatly relied on technicality in determining cases. The judge admitted that regrettably many citizens had suffered in the courts due to such over reliance on technicalities.

The board observed that Justice Msagha had shown “remorse and an understanding of the ramifications of a judiciary heavily bent on technism over justice,” and that “he confirmed that if he was to decide the matter today, he would not rely on technicalities.”

In another case, Justice Msagha ruled in favour of 900 employees of Kenya Airways, who in the 1980s had been declared redundant when the airline was running massive financial losses. Justice Msagha, found that the “redundancy was not only misplaced but illegal” and ordered that each employee be paid, in addition to the amount that the airline had already voluntarily paid, compensation equivalent to the remainder of the term of service with the airline, based on the retirement age, together with interest and costs.

DISBANDLENT OF KACA

His approach was that where the law was inadequate or the provisions of the collective bargaining agreement were wanting, the court should step in to fill the void. However, Justice Msagha was reversed on appeal.

In December 2000, Justice Msagha presided over a three-judge bench of the High Court (siting with Justices Kassanga Mulwa and J K Mitey) in the Gachiengo case. The three gave a judgment that led to the disbandment of the Kenya Anti-Corruption Authority (KACA).

Stephen Gachiengo, who had been charged with a criminal offence related to corruption, challenged his prosecution, instituted by the KACA, then led by Justice Aaron Ringera, on the ground that it had no power to prosecute.

The High Court found in favour of Gachiengo, declaring that the KACA, as then established, was an illegal entity because it encroached on the exclusive power of the Attorney General to prosecute offences, and, secondly, that the police commissioner enjoyed a constitutional monopoly to investigate offences.

This judgment was criticised, first, because contrary to its finding, the Attorney General did not enjoy a constitutionally protected monopoly over criminal prosecutions and, secondly, because the court failed to articulate the practical effect of its findings.

While the judgment upheld a the view that the KACA could not prosecute Gichengo for constitutional reasons, it said nothing about how this would affect other bodies that had prosecution powers, whose capacity to prosecute the court left intact. The court did not explain why it had singled out the KACA for special treatment that was inconsistent with existing legislation and practice.

FIGHT AGAINST CORRUPTION

When he appeared for vetting, Justice Msagha was questioned about this decision. The report of the board says that after “reading the response filed by the judge and listening to him during the interview, the panel was unanimous, and the Board upheld the panel’s view that the ruling was fair and properly grounded in law, and further determined that the notion that the fight against corruption was reversed by the said judgment was incorrect.”

With the exception of the Kibaki ruling and the Gichengo judgment, and perhaps his decision that the prosecution should furnish suspects facing trial prosecution witness statements which won the praise of the vetting board, Justice Msagha’s judgments have been mild, with none of his standing out, whether for special praise or concern.

Now in his mid-60s, if Justice Msagha was to be appointed Chief Justice, he would retire around the same time as President Uhuru Kenyatta if the president was re-elected for a second term.

If, according to lawyer Ahmednasir Abdulahi, the Judicial Service Commission is looking a candidate that would allow the Jubilee leadership another chance to appoint a Chief Justice before the president leaves office, Justice Msagha’s candidature just about ticks that box.

What kind of Chief Justice would Justice Msagha make?

Justice Msagha is unfailingly courteous and has none of the airs of self–importance that many other judges are often accused of exuding. Many lawyers regard him as considerate, even empathetic. It is also clear, however, that in his long judicial career, Justice Msagha has shown a high level of aversion for conflict, and has no known enemies.

Authorities in behavioural science remain divided on the benefits of conflict-aversion leadership, with some asserting that such leadership merely sweeps issues under the carpet, rather than resolving them. Because it is difficult, as Chief Justice, to avoid having to confront conflict, the JSC would have to decide how Justice Msagha’s conflict-avoidance approach positions him for ultimate leadership of the Judiciary.

Justice Msagha is an affable and experienced man. As Chief Justice, he would be a source of stability and continuity, rather than inspiration. The Judiciary is still reforming after a new Constitution, and its leadership has to be such as can assist the country bridge the existing political polarization.

As a face of continuity, Justice Msagha might be unsuitable as a bridge of the existing political divide.

If the JSC privileges the internal comfort of the Judiciary, Justice Msagha would probably be the best candidate for the job.

If, on the other hand, the JSC chooses the next Chief Justice on the basis of the overall political context, Justice Msagha would have a lot of work to do to project the Judiciary in a politically responsible manner.