The Judicial Service Commission completed interviews for the 11 vacant positions at the Court of Appeal, with candidates asked to comment on controversial subjects like abortion, gay rights, teenage sex and legalising marijuana.
Judges who also appeared for the interviews were taken to task over some of their rulings, with a majority standing by their decisions.
The 11-member commission was also interested in knowing the candidates’ views of socio-economic rights, alternative dispute resolution, sharing of property upon divorce and instances they thought the Appellate Court or Supreme courts were wrong.
Thirty five people, among them 22 judges, were interviewed for the two weeks.
What now remains is for the JSC, chaired by Chief Justice David Maraga, to balance ethnic, regional and gender when filling the positions at the country’s second highest court.
Employment and Labour Relations Court judge Maureen Onyango said the Court of Appeal has made decisions she does not agree with, citing the reduction of awards without giving reasons.
“In such circumstances, we are left at a loss,” Justice Onyango said.
The judge said the Appeals Court should get a person with a background on labour matters “to enrich jurisprudence”.
Judicial Review Court judge Pauline Nyamweya rejected the proposal to legalise marijuana, saying long-term effects outweigh short-term ones.
“Even for medicinal purposes?” asked Justice David Majanja.
“It remains a prohibited substance and I must look at the long-term effects,” she said.
Justice Jessie Lesiit of the Criminal Division of the High Court said sex among teenagers should be decriminalised “since these are children behaving badly but not committing an offence”.
The judge said teenagers facing charges under the Sexual Offences Act need to be counselled and not taken to court.
Dr Imana Laibuta, an advocate and lecturer, told the commission that Kenyans should not adopt certain cultures just because they are popular elsewhere, when asked his views on lesbian, gay, bisexual and transgender rights.
He, however, said if Kenyans change the laws to accommodate them, “who am I to reject such”.
Dr Laibuta added that judges should be progressive in their thinking. He said he is a champion of the alternative dispute resolution.
Justice Luka Kimaru told the interviewing panel that the quashing of the death sentence by the Supreme Court in 2017 has flooded courts with cases as convicts seek a review of their sentences.
He said the biggest challenge for the courts is the reconstruction of files, adding that documents for some inmates convicted decades ago cannot be traced.
“We were doing well between 2016 and 2017 in terms of clearing case backlog at the Criminal Division of the High Court. The matters shot up by 34 per cent,” he said.
In a landmark decision, six judges of the Supreme Court said the mandatory nature of the death sentence as provided for by the law is unconstitutional.
Justice Kimaru, who is also the chairman of the Community Service Order which has been trying to decongest prisons, said the government has funded the programme and that magistrates and prosecutors have been trained. He said some 6,500 petty offenders have been freed so far.
Mr Paul Lilan, a lawyer, said the claim that of the Judiciary being the weakest link in the fight against corruption is a perception “as courts have done a lot to improve the image of the Judiciary”.
Prof Nixon Sifuna Wanyama, an expert on environmental law, described himself as a critical-thinker and problem-solver.
Justice Florence Muchemi, who has been a judicial officer for 35 years, faulted the Judiciary appraisal tool.
The judge said she surpassed her targets in 2018 but her ratings came down to 48 per cent. After a review, the percentage increased to 67, she said.
Justice Francis Tuiyott told the commission that arbitration matters should end at the High Court. He said parties should appear before the High Court to adopt, enforce or to set aside the arbitration award.
Dr Kipkoech Chebii, the Law dean at Moi University, said he would enrich the Court of Appeal on environment and comparative law matters.
Asked what he thought of the proposal to introduce a three-year time limit before a divorce can be filed, Dr Chebii said there should be no restriction “and if couples want to terminate the unions, they should be allowed to do so”.
Mr Paul Gachoka, a lawyer, said the government’s plan to stop civil servants from engaging in business was derailed by failure to provide regulations and legal sanctions.
“The procurement sector in State departments scores very high in corruption. Once it is dealt with, 70 per cent of the scourge will be felled,” he said.
Mr Gachoka added that efforts to recover assets acquired illegally are doomed to fail if proper legal mechanisms are not adopted.
“There are more than 600 pending cases on asset recovery. We need to come up with plausible ways to tackle this treacherous route,” he said.
Justice Fred Ochieng of the High Court said terrorism suspects deserve bail.
RIGHT TO BAIL
He said only under compelling reasons, albeit at the risk of the country’s security, should the courts deny freedom to the accused.
“Dealing with terrorism cases is the most difficult road for the courts to walk on. The magistrate or judge has to weigh the possible danger to the society if the accused are freed even though they have a right to bail,” he said.
On sex among adolescents, Justice Ochieng called for a sober approach to the debate.
Justice George Odunga said his judgments are clear and influenced only by the Constitution and the law.
“I have made decisions against and in favour of the government. I have made decisions even against the JSC. In all my decisions, it is clear that I cannot be influenced by any other factors except the Constitution and the law. I am a staunch Catholic but have never allowed my religious beliefs to affect my decisions,” he said.
Asked whether his decisions were anti-government, Justice Odunga said: “The Constitution requires the court to develop the law and give effect to the rights and freedom espoused in the Constitution. It may be construed to mean judicial activism but the law has to be developed.”
Justice Stephen Radido of the Employment and Labour Court was taken to task over his decision to reinstate Mr Ezra Chiloba as Independent Electoral and Boundaries Commission CEO.
Justice Mohammed Warsame wanted to know whether Justice Radido considered public interest in his decision.
The judge said the electoral agency was wrong as it had not followed its manual and procedures when it sent Mr Chiloba on compulsory leave.
Justice Joseph Sergon defended the Sh27 million compensation he awarded former Internal Security minister Chris Murungaru, saying his decision was based on law and evidence.
The judge said he considered the available evidence and the principles establishing liability and quantum.
Former Ethics and Anti-Corruption head John Githongo was ordered to pay the amount for defaming Dr Murungaru.