Monday, April 26, 2010

Finally, the Judiciary is standing up to be counted

An important judgment was delivered last week in civil case no 2351 of 2008. The plaintiff was John Kinoti Sammy, a trader who would be described as a “small man” in the context of the Kenyan social strata.

For eight years, he operated a shop on the ground floor of Union Towers in Nairobi from where he sold soda, scratch cards and assorted goods. He had sub-let the space from a multinational (Innscore - think Nandos etc) that runs a popular eatery at that spot. Mr Kinoti had a dispute with the management of the corporation after some unknown people broke into his stall and stole his property. He wrote to the firm, arguing that his rent of Sh13,500 included payment for guarding his goods. The firm reacted badly. Their lawyer fired off a letter to Mr Kinoti branding him a trespasser and a squatter and ordering him to vacate the premises.

At this point, many Kenyans would have cut their losses and run, given the reputation of the Judiciary as corrupt and considering the perception that a poor man would stand little chance against a wealthier or more powerful opponent. But Mr Kinoti took a different path. He retained lawyers who wrote to the multinational stating that any attempts to illegally evict their client would be strenuously resisted. The corporation then dispatched auctioneers to kick him out.

Mr Kinoti’s lawyers went to court, and on April 23, 2008, a magistrate ordered that he be reinstated to the premises. The agents of the local branch of the multinational would still not let him return, and after a protracted series of hearings, Lady Justice Martha Koome ruled that the corporation had “wilfully and callously disregarded the orders of the court for almost one year” and that they were in contempt. A warrant of arrest was issued for the managing director and finance director of the corporation. They were duly locked up two weeks ago and ordered to pay Mr Kinoti damages amounting to Sh500,000. They were additionally fined Sh100,000.

On paper, this was a minor dispute between a tenant and his sub-tenant. But the case arguably provides a glimpse into a judiciary that is changing despite still being steeped in considerable institutional problems. In recent times, an unprecedented number of political heavyweights have lost their seats due to what judges ruled were irregularities in parliamentary elections.

The case of Mr Kinoti is another that offers a glimmer of good news from the courts. As a small-time kiosk operator, Mr Kinoti demonstrated that you can take on a giant and win. His case provides a lesson that when a Kenyan is confronted with what he views as an injustice, it is possible with a bit of determination and effort to assert his rights in the courts. In his dissent in the famous electoral battle between George W. Bush and Al Gore, about-to-retire US Supreme Court Justice John Paul Stevens wrote that there is no greater guarantor of social stability than “confidence in the judge as an impartial guardian of the rule of law”.

This is something the Kenyan Judiciary ought to aspire to. If the courts enjoyed any level of trust following the last General Election, a lot of lives would have been saved because ODM would have challenged the results in court. That is why judicial reforms are so urgent. And that’s why the judicial officers in the Kinoti case--acting principal resident magistrate W. Mokaya, resident magistrate A. Ireri, Justice Koome and Mr Kinoti’s lawyer Wambui Njogu deserve praise.

Is it a coincidence they are all women?


Historic judgment heralds hope for a new dawn


This judgment is audacious, visionary, potent, earth-shaking, ground-breaking and even rebellious. The Kenyan Judiciary can occasionally surprise even its fieriest critics. I, for once, am pleasantly surprised by this judgment.

Even though Kenyans have generally written off the Judiciary, the courts occasionally surprise us and still send strong signals of either the untapped potential of members of the Judiciary or the undiscovered reservoirs of human vitality and independence that lie dormant.

Like a dormant volcano, it erupts unexpectedly, ferociously and viciously, consuming all within range. This judgment just did that. On Tuesday, Justices Muga Apondi, George Dulu and Mohamed Warsame of the High Court delivered a stunning 146-page judgment that, if constantly replicated in similar cases, will limit forever the unbridled power of the Executive and expand massively the rights of Kenyans to new frontiers.

This momentous case involves Mr Justice Moijo ole Keiwua of the Court of Appeal. Justice ole Keiwua was among the judges that were sent home in the so-called radical surgery of the Judiciary in 2003. Unlike many of his fellow judges that scrambled for the exit in haste and ignominy, Ole Keiwua resisted the allegations levelled against him and spent considerable time testing the independence and efficiency of the judicial system. It took him nine years to get justice.

The judge raised a number of fundamental legal complaints in the case. These were that the Chief Justice neither informed him of the allegations facing him nor requested him to answer the same. He contended that due process and rules of natural justice were breached. The tribunal investigating him also went on a wild goose chase looking for anything that would stick on him when there was no credible evidence. The President gave a blank cheque to the tribunal when in law his powers are constitutionally limited.

The case raises and then resolves a number of stormy legal issues with far-reaching legal implications. The judgment of the court addressed three pertinent constitutional law issues. First, it was contended that since Justice ole Keiwua sued a tribunal appointed by the President, that was tantamount to suing the President.

This argument by the State is a classic “kanuesque” argument that the President is above the law. The court in its judgment analysed the immunity the President enjoys under the Constitution. It holds rightly, in my view, that the immunity from civil and criminal cases enjoyed by the President is not absolute but qualified.

The court ruled that the President, like any other citizen, is subject to its laws in cases when he acts illegally or breaches the law. The splendour of the judgment is that it lays to bed the historic fallacy that the President is not subject to the laws of the land. Equally important is the court’s judgment that the President has usurped powers he doesn’t have in the Constitution.

Wide powers

By giving the tribunal investigating Justice Ole Keiwua wide powers, the court delivered a crippling indictment to the President in the reckless manner he tried exercising powers he simply doesn’t have. Its forceful rebuke of the President is both awe-inspiring and refreshing. This surprising judicial rebellion and reassertion of judicial independence must be celebrated.

The second issue addressed substantively is whether the Chief Justice in his administrative capacity can be subjected to court litigation process. Justice ole Keiwua contended before the court that when the Chief Justice advised the President to appoint a tribunal to investigate the judge, he should have observed due process.

The courts have previously addressed this issue and held that the Chief Justice cannot be susceptible to a judicial review process. The three judges’ decision that the Chief Justice’s administrative decisions are within the range of the High Court is welcome. The failures on the part of the Chief Justice in regard to the complaints by Justice Ole Keiwua were far-reaching.

That three judges of the High Court have to disregard recent decisions of the court and find that the Chief Justice’s powers when exercised wrongly or in disregard of the law can be challenged in the High Court is a refreshing breeze of judicial independence.

The judgment by Justices Apondi, Dulu and Warsame is historic. It gives notices to Kenyans, including the President and the Chief Justice, that all are within their judicial reach. Of course, Justice ole Keiwua must feel vindicated. But the big winner is the High Court. Let us hope this was not a one-off judgment, but the beginning of a new dawn.

Ahmednasir Abdullahi is an advocate of the High Court and a former chairman of the Law Society of Kenya:

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