Mr Justice DEREK SCHOFIELD, the suspended Chief Justice of Gibraltar, served as a High Court judge in Kenya and left the country under controversial circumstances in 1987.
He handled a high profile case in which the family of Stephen Mbaraka Karanja sought to have the police to produce him in court after all efforts to trace him had failed.
But then Chief Justice Cecil Miller forced himself onto the case, leading to Justice Schofield resigning in a huff.
He was in Kenya recently to celebrate the 25th anniversary of his marriage to a Kenyan woman, Anne. He left the country last Thursday.
He shared his views on the raging debate over performance contracts for judges, the need for a new constitution and why he quit the Kenyan High Court.
OKWEMBA: You left Kenya before it returned to multiparty politics more than 20 years ago. How has life been?
JUSTICE SCHOFIELD: Life has been interesting and exciting. After a little while in London, I moved to the Cayman Islands. The family had an interesting life and the children had a safe upbringing.
I was Judge of the Grand Court (equivalent of High Court in Kenya). This is one of the major offshore financial centres. During my tenure I dealt with some high profile commercial cases like the BCCI (Bank of Credit and Commerce International).
In 1996, I was appointed Chief Justice of Gibraltar. The family has been happy and I enjoyed myself professionally. We are here to celebrate our 25th wedding anniversary.
You left Kenya in rather controversial circumstances over the killing of Stephen Mbaraka Karanja. How independent was Kenya’s judiciary at the time?
There were concerns about the independence of some of the judges. The Chief Justice (Cecil Miller) interfered with the Karanja case, and he informed me it was at the behest of the President. This was with a view to achieving a certain judgement.
How do you rate it(Judiciary) now? Is it independent?
I have not been made aware of any case, since the appointment of the current Chief Justice, in which improper pressure has been put upon the Judiciary. If any such pressure were to occur today, it would be as unacceptable as it was in 1987.
The Karanja case-was it the reason for your resignation or was it just the straw that broke the camel’s back?
Yes, it was the reason. When the matter came before me, I was in the process of renewing my contract. There were a series of interventions from the Chief Justice who advised me that my contract was in jeopardy. I told him that I was willing to pay the price for my principles and independence. When the file was taken away, I had no alternative but to leave.
Many people thought you were bold to resign over the Karanja saga rather than hand over the file to another judge. Another school of thought sees your action as defeatist. What’s your comment?
I have never heard this school of thought! The Karanja saga didn’t happen overnight. It took over three months and with many discussions with the Chief Justice.
At one stage, I told the Chief Justice that if he had no courage to tell the President to keep off, I would be prepared to have an appointment with the President regarding the matter. An appointment was not forthcoming.
I realized that if a file could be taken from me at a whim, I could not operate as a judge within that system. After I quit, I had a lot of support from Kenyans and the Law Society of Kenya.
You must understand that I had sacrificed a lot. My wife had a successful law practice, her family was here, and she had never lived outside Kenya. She maintained the same principles that I had and offered me full support.
What lessons can Kenya--and especially the Judiciary--learn from the Karanja case?
If you have a weak or politically minded Chief Justice, the Judiciary is in danger. If you have a strong and courageous Chief Justice prepared to stand up to political and other forces, that empowers other members of the Judiciary to uphold the rule of law.
When you served in the Judiciary here, human rights violations were of concern. Do you think the Judiciary played its part well?
That’s an interesting question. At the time, there were very few cases raising specific human rights issues as we see today. In fact, the enforcement of human rights is a developing area of law that has come to the forefront in the last 20 years, not just in Kenya but internationally.
That is the case in the United Kingdom, Cayman Islands and Gibraltar. It’s an area where judges are becoming better educated and more aware.
Kenya went through a crisis precipitated by results of the last General Election. What is your take on this?
I have family who were directly affected. Several in-laws who had businesses in Kisumu had to flee for their lives and have lost their businesses.
The implications of the crisis have seemed to have rippled through every aspect of society. All injury or loss of life and property is to be condemned. I have confidence that Kenyans will heal the wounds and pray that there’ll be no repetition.
You serve as the Chief Justice of Gibraltar, although suspended. How is the job compared to Kenya’s judiciary?
Gibraltar is a smaller jurisdiction but problems of administering justice are the same. I sit as a judge in England, too. An effective system is always about dispensing quick and fair justice, but there are always problems with limited resources, avoiding backlogs and delays.
Do you advocate performance contracts in the Judiciary?
A cornerstone of the judicial system is independence of judges. One can understand why, if judges are perceived not to be performing, there are calls for accountability. But you have to appreciate problems in the Judiciary in Kenya did not occur overnight. It has taken years to get here.
I came to Kenya as a magistrate 34 years ago. During my time as the Resident Judge in Kisumu I became aware of one magistrate in one area who would be called from a bar to go to court.
He would sit for a few hours. It became obvious some judges were appointed for the wrong reasons and not because they met the right criteria.
I can also fully understand as a judge why so many judges are wary of the idea of performance contracts. The English colleagues that I spoke to before coming here were appalled by the idea of performance contracts as it creates a fault line which can be used to undermine judicial independence.
What you need is a system within the Judiciary that provides accountability but also preserves judicial independence.
You also require an examination of management systems within the Judiciary. It may be considered appropriate for a working party to be set up to come up with long-term solutions after careful consultations with all parties including court users--the public.
You are in problems in Gibraltar again. What is it all about and has it been resolved?
I cannot comment as the matter is under consideration. We are awaiting the results of a tribunal. I was offered full remuneration until my retirement if I tendered my resignation. I declined.
I did this because I think I have a duty to follow constitutional procedures to ensure no judge or chief justice is removed or hounded out of office for the wrong reasons.
But I would like to thank all those Kenyans who have given me support and those who petitioned the Queen of England to ensure the proper process was adhered to in my case.
Any parting shot?
Bye (prolonged laughter) It’s good to be back in Kenya to celebrate our 25th wedding anniversary. We had a wonderful stay.