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Chapter 8B1 Judicial Power, Structure, And

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Chapter 8B1 Judicial Power, Structure, And CHAPTER 8B1 JUDICIAL POWER, STRUCTURE, AND INDEPENDENT ACCOUNTABILITY IN KENYA AND AFRICA: INTERESTS, FUNCTIONS, PROCESS AND OUTCOMES2 This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Judicial power, structure, and independent accountability in Kenya and Africa: Interests, process and outcomes,” Part 2, Chapter 8B, in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative in Kenya and Africa Vol. 1: Presidency, Premier, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 8.15 Commissions and Independent Offices as Quasi-Judicial Tribunals in Kenya and Africa?3 What are Commissions and Independent Offices? Quasi-Judicial tribunals? What are the similarities and differences? What are the merits and demerits as compared to the three arms, branches, or organs of Government? The Semi-Autonomous Governmental Agencies (SAGAs)? Ministries departments and agencies (MDAs)? Constitutional Commissions andIndependent Offices (CCIOs)? What are their relevant quasi-judicial powers and functions...? 8.15.1 Quasi-Judicial Tribunals, Public Enquiry, and Commission of Inquiry in Kenya and Africa Does Kenya still need administrative, quasi-judicial tribunals and commissions of inquiry in light of a restructured judiciary (courts, tribunals, and bodies) as well as the establishment of constitutional4 commissions and independent offices? Are such tribunals still necessary in the light of stricter rules on the establishment of public offices? Significantly, to establish a public office (like tribunals), there should be needs assessment, popular participation, and a recommendation of the Public Service Commission (PSC) (Arts. 1, 10, 47, 132(4),….).5 These also exercise public power. These are now subject to the 2010 Constitution especially with respect to presidential.6 The establishment and the regulation of the conduct and effect of the proceedings of quasi- judicial tribunals are not clearly stipulated under Kenya’s Constitution and public law. Some relevant provisions include Arts. 47,7 and 1628 Constitution 2010. 1 This chapter 8B is a continuation of and linked to Chapter 8A. 2 See generally Ben Sihanya (2019) “Securing judicial independence and accountability in Kenya,” Vol 10, Issue No 11, Nairobi Law Monthly 38-43. 3 See Chapter …., CODRALKA 1 on Constitutional Commissions and Independent Offices…. 4 See also FAAA…. 5 …. 6 They were also subject to presidential and premier powers under the 2008 Constitution and National Accord and Reconciliation Act (NARA); would be under BBI’s Presidential and Prime Minister powers…. 1 Under s. 23 of the 1969 Constitution and the Commissions of Inquiry Act, Cap 102 empower the President to establish quasi-judicial tribunals and related agencies. Under the 2010 and 1969 constitutional dispensation, there are no details on how the tribunals are to be operated. Can they engage in criminal or only civil proceedings? How do they conduct their proceedings?9 8.15.2 Functions and Typology of Quasi-Judicial Tribunals in Kenya and Africa What are tribunals? Commissions of inquiry? Compare administrative, quasi-judicial, and judicial tribunals. Were there 81 tribunals in 2015? Rationale? Rationalize?10 8.16 Public inquiries in Kenya and Africa11 What substantive, evidentiary, and procedural laws apply in tribunals, public inquiries and commissions of inquiry in Kenya and Africa? Do the law of contempt, sub judice, res dudicata, apply? 8.16.1 Substantive law on judicial tribunals in Kenya and Africa What is the constitutional and legal basis or framework? (Arts. 129, 130, 131, 132 of the 2010 Constitution; the Commissions of Inquiry Act, Cap. 102); Section. 23 of the 1969 Constitution.12 7 On fair administrative action. 8 On system and structure of courts. 9 Cf. the Waki and Nambuye tribunals. See…. 10 Wahome Thuku (2015) “Kenya’s Judiciary starts reforming tribunals,” Standard Digital News, Nairobi, February 19, 2015, at http://www.standardmedia.co.ke/article/2000152159/kenya-s-judiciary-starts-reforming-tribunals (accessed 21/02/15).... See Report on Tribunals reform (Justice Kathurima M’Inoti)... See also Chapter 8… above on Tribunals 11 Cf public inquest for instance, the one on the Baby Pendo conducted by Kisumu Resident Magistrate Ms Beryl Omollo… See… National Coroners Service Act No. 18 of 2017? Not implemented because police control matters of dead bodies…. Yet some of them complain that handling dead bodies should not be part of their duty…. If Coroners handled dead bodies, perhaps more cases of extrajudicial killings by police would be revealed. See…. 12 What was the constitutional and judicial basis of the Commission’s Inquiry or probe into the death of Internal Security Minister Prof George Saitoti, and five others, namely, his Assistant Minister Mr Orwa Ojode, the pilot, co- pilot, his personal assistant and a bodyguard in Ngong in June 2012? It was presided over by Justice (Rtd) Kalpana Rawal, the then DCJ-designate. They submitted the report to President Mwai Kibaki in January 2013. Not released. No action…. What is the constitutional and legal implication of their findings? What of the inquest into the death of Baby Samantha Pendo presided over by Hon Beryl Omolo, Resident Magistrate (RM)? See Standard Digital Reporter (2019) “Inquest: Five officers have a case to answer in the death of Baby Pendo” Standard, Nairobi, February 14, 2019, at https://www.standardmedia.co.ke/article/2001313051/inquest-finds-five-officers-culpable-in- the-death-of-baby-pendo (accessed 6/5/2020). Inquest into the death of Makueni Senator Mutula Kilonzo, George Saitoti, and Orwa Ojode, Tony Ndilinge? Judy Angaine (daughter of then Lands Minister Jackson Harvester Angaine; Minister Paul Ngei involved) What are the final outcomes of these inquests? To develop a typology and create sections on how assassinations and unexplained deaths have been and may be dealt with inquests, sham 2 To quote these briefly and cross reference to Chapters 5 (on Fusion and separation of powers, and checks and balances in Kenya and Africa), 6 (on Legislative Power, Structure and Functions in Kenya and Africa), 7 (on Executive Powers, Functions, and Structure in Kenya And Africa: Concepts, Theory, History, and Practice), 9 (on President and Prime Minister in Kenya and Africa), 10 (on Deputy President, Vice President, Deputy Prime Minister in Kenya and Africa). 8.16.2 Procedural rules in public inquiries in Kenya and Africa What are their procedural rules? No clear rules; the 2010 and 1969 Constitutions do not provide details, esp. on ad hoc tribunals (including on tribunals to investigate Judges, CJ, etc).13 What evidentiary rules should they follow? Should they apply the law of evidence (including the Evidence Act, Cap. 80) entirely? Opinion differs. But the preponderance of opinion is that procedural and evidentiary rules should be less strict than in a civil or criminal court of law. Hence they may admit but not necessarily act on (place a lot of weight on) hearsay, and rumours, among others. 8.16.3 Evidentiary rules in public inquiries in Kenya and Africa What evidentiary rules should they apply? For instance, who bears the burden of proof? The tribunal or the subject? What is the standard of proof? Is it on a balance of probabilities (civil cases) or beyond reasonable doubt as in criminal cases? 8.16.4 Contempt and sub judice in tribunals in Kenya and Africa How may the dignity and integrity of the tribunals be protected? The law of contempt of tribunals applies. But note that they are inferior to the High Court. There are two types of contempt: civil and criminal contempt. And contempt may be tried and punished through the usual trial process, or summarily. Under s. 5 of the Judicature Act, Cap. 8 the High Court has the power to try and punish for contempt in a manner equivalent to the High Court of Justice in England.14 Some argue that tribunals cannot punish for contempt of tribunal summarily.15 murder trial (Pio Gama Pinto, Tom Mboya, Robert Ouko), manslaughter trials, commissions of inquiry, nothing done (Argwings Kodhek, JM kariuki, Jacob Juma, Christopher Chege Musando….). 13 Cf. Tribunal on the Nancy Baraza case. 14 …. 15 The Contempt of Court Act, 2016 was declared unconstitutional in Kenya Human Rights Commission v. Attorney General & Another (2018) eKLR, Petition No. 87 of 2017….. 3 What of the sub judice rule?16 8.16.5 Utility of tribunal findings and reports in Kenya and Africa17 Some have been dissolved before they completed their mandate, for instance, the Gicheru (Ouko) Commission …18 There was debate on whether the President could dissolve it prematurely; and whether the tribunal was still bound to hand in its report.19 What is the weight or integrity of Commission’s report? Can it be questioned by the High Court after the report is made, a la (as in the case of) Biwott’s application regarding the Akiwumi Commission’s report on politically instigated land clashes?20 What constitutional, legal, and political purposes do inquiries serve? What’s their value? Remarkably, in the Maize Commission of Inquiry (the then former Minister for Marketing and Cooperatives and Supplies (?) Paul Joseph Ngei was reportedly questioned regarding maize mismanagement and corruption that also involved his wife….21 He was not penalized after the inquiry report found him culpable.22 And following the Miller (Njonjo) Inquiry, Njonjo was pardoned.23 It is not also very clear to what extent they have power to summon witnesses and to what extent they may invoke the doctrine of contempt of court.24 It has not been very clear what the role of assisting counsel is.25 Some commissions of inquiry were established under s. 23 of the 1969 Constitution and this is where the President had powers to exercise executive authority “either directly or through officers who are subordinate to him.” 16 Cf Philomena Mbete Mwilu v. Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR, Petition 295 of 2018.
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