These cases will affect lives, careers, property and even the fate of nations

Sunday January 20 2019

Philomena Mwilu.

Deputy Chief Justice Philomena Mwilu. She has challenged the attempts to charge her with a number of corruption counts, mainly relating to her relationship with a bank. PHOTO | FILE | NATION MEDIA GROUP 

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The year has just started but on the legal front, there are cases that will sure make it as those of the year. This distinction will come from many fronts. One of the features will be the parties involved in terms of the official or social stature. Another could be because of the significance of the issues at stake. Where the issues are of constitutional significance, they will no doubt have effects beyond the parties and the cases before the court.

In Kenya, the case that will be watched closely and whose decision will definitely be monumental will be that in which Deputy Chief Justice Philomena Mwilu has challenged the attempts to charge her with a number of corruption counts, mainly relating to her relationship with a bank.

At the core of the case will be issues of process and substantive law. On the process side will be whether a judicial officer of the stature of the Deputy Chief Justice may be charged in a court of law before the removal from office through the regular disciplinary process for serving judicial officers through the Judicial Service Commission.

On this score, the issue will be whether the powers of the Director of Public Prosecutions (DPP) may be truncated when it comes to judges and made subject to the processes of removal and establishment of a tribunal required in the case of judges.


But even before we get there, the case is already interesting because the preliminary stages are fraught with motions by both the DPP and the advocates of the DCJ to have the lawyers appointed by their opponents in this case disqualified from acting. The DPP has applied to have two advocates acting for the DCJ, who also happen to be senators and specifically members of the Senate committee before which the DPP has previously had to appear and make presentations with regard to that very case of the DCJ.

In other words, the intention is to bar the two advocate senators from acting for the DCJ on account of conflict of interest between their roles as legislators with some supervisory powers over the functions of the office of the DPP and their role as advocates for their client in that case.

The senators, on their part, seek to disqualify a British advocate of Queen’s Counsel status from acting for the prosecution in the case. They argue that the Queen’s Counsel is a foreigner whose appointment by the Attorney General was improper and that he does not have the right to represent a client before a court in Kenya.

These challenges are the first issue that the court hearing the matter will have to decide upon in the coming week before the main constitutional case is heard. For all these reasons, this will be a case to watch. The war against corruption has a fight in its hands!

A second case that will be of public significance is a constitutional petition filed by the Law Society of Kenya (LSK) in which it seeks orders to compel or empower the Chief Justice to establish courts that will operate over public holidays and weekends. This is necessitated by the fact that the LSK has taken the view that the tendency to arrest suspects of crime just before a public holiday or on Fridays denies the people arrested the right to be presented to court within the 24-period required by the Constitution.


To address this concern, LSK argues that the Chief Justice should establish courts that would operate throughout the week to avoid abuse by the police of their powers in arresting and holding suspects in custody over weekends and holidays. If courts operated over the weekends, the people arrested could not be needlessly held in custody but could obtain bail and present themselves in court at a later date for the hearing.

There is also a dimension of anti-corruption on this law suit. It states that the police tendency to extort money on threats of arrest and incarceration over weekends would dissipate if there were courts from which suspects could quickly obtain bail. The decision on this will be important on how suspects of crime are treated and the case may well make its way to the Supreme Court. It may unshackle many who would otherwise find themselves in police custody over bailable offences.

The Central Organisation of Trade Unions (Cotu) is also on a match in the name of the workers of Kenya. Towards the end of last year, it filed a case and obtained preliminary orders to stop a law that mandated employers to deduct a certain amounts of money from the salaries of all employees and submit the same to the government for the establishment of a Housing Fund.

This kitty is intended to provide a source of pooled funds which would in turn be used to erect low-cost housing. The houses built would then be made available to low-income earners in the form of cheap mortgages to improve the housing situation in the country.

The challenge by Cotu was based on, among other reasons, the fact that the public from whom the money would be deducted to establish the fund had not been involved in the deliberations leading to this fund being established.


The fund and establishment of a low-cost housing scheme is a pet project of the presidency and a decision to stop contribution or make it optional may leave the fund homeless.

In South Africa, Julius Malema’s case on a law on assemblies may have significant changes on how the police and the government of South Africa is to treat public order issues relating to the right of assembly. Mr Malema, the leader of the Economic Freedom Fighters Party of South Africa, has challenged a law known as the Riotous Assemblies Act. The law was passed in 1956 and it prohibits gatherings that State officials may consider to be disruptive to the public.

However, Mr Malema argues that the law constitutes an infringement to freedom of assembly and is an overhang legislation based on the apartheid era when the government needed to prohibit the rights of Africans to assemble for political mobilisation purposes.

The High Court of Pretoria will hear this case in light of charges instituted against Mr Malema for incitement when he urged members of his party to occupy vacant land. The decision will reflect on freedom of speech, assembly and conflate these rights with the right of third parties to own property. Without a doubt, its significance will be felt beyond South Africa.

In the United States of America, the Supreme Court has to decide a case which puts the Maryland National Capital Park and Planning Commission at cross-roads over a cross. A cross measuring 40 feet in height was constructed in the park in 1918 as a memorial in honour of war veterans. About for decades later, the Maryland National Capital Park Commission bought the cross and the land on which it had been erected. Together with this purchase, the purchaser acquired the right and obligation to maintain the park and to maintain and repair the cross. The commission has over the years spent a considerable amount to maintain the cross.


In 2008, it set side about US$100,000 (Sh10 million) for renovation of the cross. It is at this point that several non-Christian residents of Maryland expressed objection to the intended maintenance of the cross. The ground of objection was that the use of public money to maintain the cross, which was essentially a religious symbol, was tantamount to governmental affiliation to a religion, contrary to the religious establishment clause of the US Constitution.

The case first went to the district court in Maryland which dismissed the claims and held that the cross, although a Christian symbol, had a secular purpose and did not advance or inhibit religion. The further appeal to the Fourth Circuit court of appeals resulted in a reversal of the decision and a further appeal was preferred to the US Supreme Court.

The issue that the supreme court will have to decide whether the display and maintenance of the cross is unconstitutional and whether the maintenance of the cross from public funds amounts to excessive governmental entanglement with religion.

The supreme court will also have to examine the test of constitutionality of a passive display of permissible religious symbolism in public spaces. The stakes are high and this is a decision that will certainly leave a number of people very cross. In the meantime, I suppose that the parties are crossing themselves that the decision goes their way.

The rulings on these cases will no doubt be watched and will affect lives, careers, property and even the fate of nations whichever way they are decided.