Ahmednassir fearlessly fights for judicial independence

Sunday December 16 2018

Ahmednasir Abdullahi

Lawyer Ahmednasir Abdullahi. He has accused the Supreme Court of bias. PHOTO | FILE | NATION MEDIA GROUP 

SAM KIPLAGAT
By SAM KIPLAGAT
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He says it the way it is and has no apologies to make. So when Senior Counsel Ahmednassir Abdullahi appeared before the Supreme Court judges this week and made a scathing attack against them, he maintained his hard stance.

Even after being asked by the judges, led by Chief Justice David Maraga, to withdraw the submissions they deemed “offensive”, he said, “I am not withdrawing. Let my submissions go the way they are.”

“Are you saying every time we disagree with you we are pandering to political whims or pressure?’ Justice Maraga posed

“I am saying your previous rulings were biased and you bent the law upside down,” Mr Abdullahi answered.

He added that he does not belong to the school of thought that court decisions cannot be questioned.

BIAS

Earlier in the week, appearing before Chief Magistrate Douglas Ogoti where he represented former Kenya Pipeline Managing Director Joe Sang, Mr Abdullahi caused laughter when he said the charges are generic.

“What is abuse of office? Your honour, when you come to your office at 10.30am, instead of 9am, that is abuse of office. It is not such a serious offence,” he said, urging the court to free the suspects on bond.

The spat between the former Law Society of Kenya chairman and the Supreme Court was not the first one.

He had done it before, early this year when he appeared before the same court defending the same clients — Iranians Ahmad Abolfathi Mohammed and Sayed Mansour Mousavi.

That was in February when the judges expressed displeasure at his Twitter comments accusing the court of bias.

ELECTION

Justice Maraga was not amused and questioned him, “Do you want to litigate before this court, or do you want to litigate elsewhere? You are arguing your case out there.”

He said he cannot be gagged or prevented from commenting about anything said in court.

When Mr Raila Odinga challenged the 2012 presidential election outcome, Mr Abdullahi pleaded with the court, led by Chief Justice Willy Mutunga, to be cautious and not to rush to nullify President Uhuru Kenyatta’s win.

He said the court was at its infancy and needed to learn from other jurisdictions before making such a bold move.

He tried the same trick after the 2017 General Election but the court, led by Justice Maraga, disagreed with him and, by majority ruling, nullified President Kenyatta’s win.

He had dismissed the petition, saying: “The petition by Mr Odinga is like science fiction that can only excite movie directors in Hollywood.”

TUNOI CASE

Later, Mr Abdullahi dismissed the verdict, terming it a political decision and lacking judicial respect.

“My client wants to see in your detailed judgment the exact incidences of malpractices that warranted the nullification of the will of the people,” he told the court after the judgment.

In August 2015, while delivering a paper during the annual colloquium of judges in Mombasa, Mr Abdullahi attacked the country’s top court after two judges — Deputy Chief Justice Kalpana Rawal and Philip Tunoi — challenged their retirement age.

The two judges argued that they were set to retire at 74, yet the Constitution sets the retirement age at 70.

Mr Abdullahi said the stature and standing of the court has been "crushed and completely obliterated". That the court was now “the laughing stock in both the region and among scholars".

During interviews for the post of Chief Justice in 2011, a number of judges who applied for the position had a rough time appearing before the panel.

Mr Abdullahi’s abrasive questioning was the highlight of the interviews. The judges included Justice Samuel Bosire, RSC Omolo and John Nyamu.

He questioned judges’ treatment of lawyers, their academic credentials and their style of leadership.

REFORMS

The publisher of Nairobi Law Monthly started his fight against judges, whom he said were past their sell-by dates, winning the admiration of many pro-reform lawyers.

In fact, it was this “attack” that later propelled him to LSK leadership.

He was only 33 and a law lecturer at the University of Nairobi in the 1990s when he took on judges of the Court of Appeal, then the country’s highest court.

Mr Abdullahi then launched a scathing attack on the Judiciary, accusing it of corruption. According to him, the courts cried for overhaul.

It came a few years later through radical surgery that affected many judges.

He said in a newspaper interview that some judges were ill-educated, incompetent and tired, forcing judges to respond.

In an article on November 12, 2000, Justice Richard Otieno Kwach, now retired, compared him with Icarus, son of Daedalus in Greek mythology, who, "heedless of his father’s warning, flew too close to the sun, causing the wax that fastened his wings to melt; and fell into the Aegean Sea and drowned”.

ILLEGAL

But the lawyer appears not done yet, and probably gains more venom with age.

During Tuesday’s attack at the Supreme Court, others judges including Smokin Wanjala, Jackton Ojwang’ and Isaac Lenaola leant back as he poured vitriol.

Justice Maraga, Mohammed Ibrahim and Njoki Ndung’u tried in vain to make him withdraw the submissions.

He said the two rulings - allowing the state to continue holding the two suspects - were based on “extraneous political factors or considerations that are underpinned by a nationalistic affinity between the court and the state”.

He added that the rulings were not based on a known statute or the Constitution and the problems they were facing can be traced to the court.

“First, this order exhibits the total absence of independence and impartiality on the part of the court. Second, it gave a priceless seal of judicial approval to the illegal and forced detention of the respondents by the State, notwithstanding their acquittal by the Court of Appeal,” he submitted.

Director of Public Prosecutions Noordin Haji, through lawyer Waweru Gatonye, termed the attacks unfortunate.

“In my many years of practice, I have never encountered such. Words thrown out anyhow. Claims that judges are controlled by the state is very unfortunate,” he said.

Justice Kwach warned that for his own good, Mr Abdullahi should always bear in mind that at the tender age of 33, he still has a long way to go and it is premature for him to claim the status of a Solomon.