CHAPTER 8B1 JUDICIAL POWER, STRUCTURE, AND INDEPENDENT ACCOUNTABILITY IN 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, & 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….

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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 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 , 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 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

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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, ), 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…..

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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. 17 Pages 20–27 of the BBI Taskforce Report noting that numerous public inquiry reports have not been implemented and calling for a national conversation. 18 …. 19 …. 20 , a Moi confidant, proceeded to the High Court to question the decision of the Commission of Inquiry into land clashes chaired by High Court Justice Akilano Akiwumi…. See Republic of Kenya (1998) Report of the Commission of Inquiry into the Tribal Clashes, Gazette Notice No. 3312 of I st July, 1998(Reported August 19, 1999 after several extention); Biwott Kiprono v. Judicial Commission of Inquiry into the Tribal Clashes (2002) eKLR 21 …. 22 Was Ngei temporarily suspended in the usual formula, method or modus operendi of “step aside”…then resume the (related) official powers and functions?.... 23 See Chapter 8….below. 24 Cf. the debate on whether Juma Kiplenge or Kamau Kuria is in contempt of the Goldenberg Tribunal. East Africa Standard and Daily Nation, July 9, 2004. 25 See Justice Bosire’s ruling on an application by Kamau Kuria (assisting counsel) seeking that Justice Bosire disqualifies himself …

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These Commissions and committees appointed at the discretion of the President are subordinate to the President and are executive agencies inferior to the High Court too even when presided over by a Court of Appeal Judge For instance, the report of the Akiwumi Commission on land clashes was subjected to review in the High Court (non meritorious case). Another (Bosire) Goldenberg Commission was subjected to judicial review in the High Court although Justice Bosire was a Court of Appeal judge….26

What about the report of the Truth Justice and Reconciliation Commissions (TJRC),27 the Jonathan on Electoral Reforms Post 2007/08 elections,28 the report of the Commission of Inquiry into the Post-Election Violence (CIPEV) (Waki Report);29 Report on Artur Sargarian and Artur Margarian (mercenaries) who were linked to the Kibaki presidency and State House….30

Why have Kenyan Presidents (Kenyatta,31 Moi,32 Kibaki,33 and Kenyatta II34) established Commissions of Inquiry? For example Maize (1964),35 Njonjo (1983/84), Insurance (Hancox) (1986), Goldenberg, Akiwumi, Ouko, Education (Davy Koech) Commission….

8.17 Case Studies of Public Inqueries in Kenya and Africa We discuss four (4) case studies of public inquiries in Kenya and Africa. These include Njonjo, Ouko, Koech and Bosire. Compare Marikana Inquest in South Africa- Police shooting of 34 South Africans 8.17.1 Njonjo (Miller) Commission of Inquiry in Kenya Charles Mugane Njonjo was subjected to a Commission of Inquiry by President Moi in 1983-84. Njonjo was the first independent-Kenya’s A-G during1963-1980. He was the Moi Kingmaker in 1978….

26 …. 27 …. 28 …. 29 …. 30 It was chaired by former Police Commissioner Shadrack Kiruki. Ahmed Isaack Hassan who rigged the 2013 (presidential) elections as IEBC Chairperson served in this Commission. 31 How many Commissions did he establish? Implemented? 32 How many Commissions did he establish? Implemented? 33 How many Commissions did he establish? Implemented? The Commissions of Inquiry, op. cit., into the Death of George Saitoti and Orwa Ojodein an helicopter crash in 2012 was presided over by Justice (Rtd) Kaplana Rawal as the then High Court Justice. What were some of the remarkable constitutional issues (elections some months away); Political issues (had he shown interests in political pacts?); security issues (a few days earlier, he cautioned against dark forces and how they affected elections, security, and governance….) What technical issues arose regarding the pre-flight, flight, and post flight “accident” issues…. See…. 34 How many Commissions did he establish? Implemented? 35 See Report on Maize Commission of Inquiry; …. See also Report of the Ndegwa Commission of Inquiry into Public Service Structure and Remuneration…..

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Charles Njonjo resigned as A-G in 1980 and was thereafter elected unopposed as Kikuyu MP; Amos Ng’ang’a had resigned with Njonjo paying him KES 160, 000.36 Njonjo was appointed Minister for Constitutional Affairs (abolished after Tom Joseph Mboya held it in 1960s...). Njonjo had been a very powerful A-G and Minister. He had been responsible for direct and indirect appointment to the Executive (including Cabinet), the administrative bureaucracy; elections to Parliament and appointment or promotion in the Judiciary…. Numerous officers in the Ministries departments and Agencies (MDAs), were directly, indirectly, formally and informally answerable to Njonjo. These included Chief Justices some of who called him “Sir”…(like Kitili Mwendwa?), Police Commissioner Benard Hinga and Ben Gethi;37 CID Director Ignatius Nderi, Director of the Special Branch James Kanyotu; prosecutors in the A-G chambers like Shadrack Rao and in the Police Force, like Sokki Singh….38 From 1981, Njonjo’s constitutional and political power and authority was questioned directly when his cousin Andrew Mungai Muthemba was charged with treason, and Dixon Muiruri with misprision of treason.39 Evidence was adduced to the effect that Njonjo was privy to the plot to overthrow Moi….. And the August 1, 1982 coup attempt was allegedly mounted to pre-empt a Njonjo coup.40 Then Moi said there was a “traitor” being groomed to overthrow his administration in Kisii Stadium in April 1983. Then Elijah Wasike Mwangale then MP for Bungoma East named Njonjo as the traitor in Parliament.41 Njonjo challenged Mwangale to repeat it outside Parliament. Some of the options included: First, suspension from KANU?42 expulsion? Second, resignation? Third, sacking? Fourth, treason trial?....

36 There were claims that Njonjo had attained retirement age. The more compelling reason seemed to be the quest for political power, especially the presidency…. which he could not do as A-G…. 37 …. 38 …. 39 See also Paul Mwangi (2001) The Black Bar: Corruption and Political Intrigues Within Kenya’s Legal Fraternity, Oakland Publishers, Nairobi. 40 …. See Miller Report. 41 Mwangale had chaired the Parliamentary Select Committee (PSC) on JM Kariuki Assasination in 1975…Members included Martin J. Shikuku, Mark Mwithaga….(to verify) complete list and discuss details under JM kariuki PSC probe….. Vice President Moi had told Parliament that JM had gone to Zambia to visit his friend [Vernom Mwaanga] and had left for Tanzania…. One of the wives she had JM’s passport…. Moi said a Vice President had travelled without a passport before…. The body was identified at City Mortuary by the wives, and Buetere MP Martin Shikuku, among others…. His (three? Six?) teeth knocked off….and body was labelled “Luo gangster…” parliamentary Select Committee was summoned by President before they would talk their report. Kisumu MP Grace Onyango and Martin Shikuku(?) hid the original report in Parliament’s “Kamiti room”…. Kenyatta insisted on deleting the names of his State Minister and brother-in-law and body guard Wanyoike Thungu…. Moi later allegedly took a handkerchief and wiped his face while with Mark Muthoga, , Nakuru town MP claiming they killed him….and feeling sorry he had lived. 42 ….

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A Commission of Inquiry was then established. Justices CHE Miller, CB Madan, Effie Owuor. What were the Terms of References of the Commission of Inquiry?.... Terms of reference? [from the Report online among others] The counsel assisting the Commission were Lee Muthoga, Timan Ngugi, Onyango Otieno. The joint Secretaries were Jared B. Kangwana and …. SM Otieno was a Consultant. Njonjo was represented by the late William S. Deverell of the M/S Kaplan and Stratton Advocates (a future Court of Appeal Justice) assisted by Mr Paul Kibugi Muite of M/s Wamuhiu and Muite Advocates, the future and now former MP for Kikuyu constituency.43 The inquiry took 109 days. What were the findings at the inquiry? guilty as charged? The findings were as follows: - guilty. Allegation Findings

1 Allegation that Njonjo By instigating, facilitating and participating in the conducted himself in a manner illegal importation of arms and ammunition into Kenya, prejudicial to the security of by building up an arsenal in the Haryanto home, which State. must have been intended for use in an insurrection, and allowing the residents of South Africa to enter Kenya in utter disregard of Kenya's security, Njonjo conducted himself in a manner prejudicial to the security of State.

2 Allegation that Njonjo Njonjo conducted himself in a manner prejudicial to the conducted himself in a manner Head of State, the image of the President and the prejudicial to the position of the constitutionally established Government of the Republic Head of State, the image of the of Kenya. President and the constitutionally established Government of the Republic of Kenya.

3 Allegation that Njonjo was a Njonjo was implicated in the illegal importation of party to a conspiracy or army, in the build-up of the cache in the Haryanto conspiracies to overthrow by home, and also in Muthemba's attempts to acquire arms unlawful means the and train personnel; these activities in which he was Government of the Republic of involved, were part of conspiracies to overthrow, by Kenya, during the month o[ unlawful means the Government of the Republic of August 1982, or the Kenya during the month of August, 1982, and also the

43 ….

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concealment thereof concealment thereof.

4 Allegtion it at Njoojo was a Njonjo was a party to Muthemba's unlawful activities. party to the unlawful activities Njonjo. was also a party to the concealment of of Andrew Mungai Muthemba, Muthemba's unlawful activities. or the concealment thereof.

5 Allegation that Njonjo was a No finding regarding this allegation, or any implication party to the convening of the arising therefrom. purported Rungiri Presbyterian Church of East Africa prayer meeting on l2th June, 1983 and/or its conversion into an irregular political gathering with the intention of undermining the position and image of the President and the political leadership in the country.

Allegation that Njonjo acted Njonjo acted against Kenya's national interest and against Kenya's national interest policy of maintaining good neighbourliness by openly and policy of maintaining good declaring his hostility, both at Arusha and thereafter in neighborliness. Parliament and by celebrating the break-up of the which comprised Kenya, Uganda and Tanzania.

6 Allegation that Njonjo acted Njonjo actively collaborated with South Africans in against Kenya's national interest total disregard of Kenya's national interest and policy at and policy of opposing the a time in 1980, when the country was preparing to host inhuman regime of South a Meeting of the African Heads of State with a view to Africa. His Excellency the President taking over the Chairmanship of the Organization of African Unity.

7 Allegation that Njonjo. was a There were in Kenya persons involved in the attempted party to a conspiracy or overthrow of the Government of Seychelles. These conspiracies to overthrow by persons included Njonjo and Parkinson. unlawful means the brotherly government of the Republic of Seychelles as by law established during the month of November,

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1981, especially when His Excellency the was Chairman of the Organization of African Unity.

8 Allegation that Njonjo misused No evidence to support this allegation. his office as Attorney-General and/or Minister in that he arrogated to himself the Cuties and powers of the President.

9 Allegation that Njoqio misused Njonjo corruptly made the payment of Sh. 160,000 in his office as Attomey-General consideration of Amos Ng'ang'a resigning his and/or as Minister in that he Parliamentary Seat to enable him (Njonjo) to seek solicited or received or election thereto, as well as to seek political support, attempted to receive or offered thereby undermining the process of democracy. or made or attempted to make corrupt payments. -Njonjo corruptly made two payments of Sh. 10,000 each to Mutwol to seek political support and undermine the process of demo. cracy.

-Njonjo attempted to make a corrupt payment to Sifuna in order to induce him to join his (Njonjo's) camp thereby seeking political support and undermining the process of democracy.

10 Allegation that Njonjo misused Njonjo's conduct in relation to Gachago and Muchiri his office as Attorney-General amounted to misuse of office of Attorney-General to and/or as Minister in that he seek political support. granted favours or acted to the prejudice of individuals, to seek -Njonjo misused his Ministerial office by granting political support, to undermine favours to prisoners who came from his constituency the process of democracy and to with the object of seeking political support. protect persons involved in -Njonjo misused his office as Minister with the object of illegal activities. seeking politrcal support in releasing two other prisoners, namely, Benson Mbugua Kariuki and Njiru

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Gikuma.

-Njonjo misused his office by acting to the prejudice of Mwachofi and Sifuna by intimidation and threats of loss of personal liberty in order to seek political support thereby undermining the process of democracy.

-By persecuting Mwidau, an innocent man, Njonjo acted to Mwidau's prejudice and detriment.

-Njonjo instigated corupt practices through his emissaries Said Hemed and Shariff Nassir by providing them with money to buy elected councillors to rig the election of the Mayor and Deputy Mayor of with the object of seeking political support thereby undermining the process of democracy.

-Njonjo acted to the prejudice and calamitous detriment of E. K. Kioni in misuse of his office as Minister.

-Njonjo acted to the prejudice of both Kenya Airways and Sofat and granted a favour to A.B.C. Travels and Tours London by his abrupt intrusion at the meeting of Kenya Airways in London and his curt derogatory accusation of Sofat. He did this with the object of preserving A.B.C. Travels and Tours monopoly, in which he held an interest through Acharya Travel Agency Limited, Nairobi.

Source: Part VII of the Report of Judicial Commission Appointed to Inquire into Allegations Involving Charles Mugane Njonjo44 President then pardoned Charles Njonjo on 12/12/1984.45 What were some of the reasons for such pardon? Long service and old age.46

44 Report of Judicial Commission Appointed to Inquire into Allegations Involving Charles Mugane Njonjo, at http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-Judicial-Commission-Appointed-to-Inquire-into- Allegations-Involving.pdf (accessed 14/5/2020). 45 See Weekly Review December 1984.

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Was establishing the Commission in the public interest or merely a public relation (or PR) stunt by President Moi? Was it to indicate that Moi respected the rule of law or was he using the constitutional and legal network and process to solve a political problem? By edging Charles Njonjo and his (Njonjo’s) supporters out of Government?47 Was Moi seeking some legitimacy and sympathy for the Moi dictatorship and kleptocracy? Was he seeking legitimacy as a sympathetic leader by forgiving Njonjo for treasonable allegations? How did Njonjo use the tribunal as a legal and political forum? Critics would argue that this was an abuse of constitutional and legal process. The allegations were serious – even treasonable. Hence former Attorney General (A-G) Charles Njonjo should have been subjected to the criminal justice process which would have accorded him some protection – for instance, on burden and standards of proof (limited hearsay; no rumours), and the right of appeal, among others. Remarkably, Njonjo had manipulated the law and the instruments of office to harass, intimidate and imprison (perceived) rivals or non-conformists. Thus, Ghai, another Njonjo victim, concluded after an incisive study on the rule of law, legitimacy and governance in Kenya, Uganda and Tanzania: “those who live by the law will die by the law.”48 The “death” may be professional or political ….49 Because politics is about transient (medium and long term) political and economic interests, and not so much about personal friendship…50 Njonjo and Moi reconciled and Moi even appointed Njonjo the Chairperson of Land Commission of Inquiry in 1999…..51 Njonjo has lived to mark his 100th birthday….52 And to participate in the 50th assassination anniversary of CMG Argwings Kodhek (January 2019)53 and Thomas Joseph Mboya (July 5, 2019)….54

46 …. 47Cf. GG (Godfrey Gitahi) Kariuki’s Illusions of Power… GG Kariuki claimed that he did not exercise real power. Was he candid? 48 See Yash Ghai (1986) “The rule of law, legitimacy and governance” International Journal of Sociology of Law,… also inYash Ghai, Robin Lukham and Francis Synder (eds) (1987) Political Economy of Law: A Third World Reader, Oxford University Press…. 49 See also the discussion on Aaron Ringera “radical surgery” in Chapter 8B, the Judiciary, below…. 50 Moi once remarked, addressing Vie President Saitoti and the public Uongozi na urafiki ni tofauti (leadership and friendship are different)(BS to review….)…. 51 …. 52 …. 53 …. 54 ….

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8.17.2 Ouko (Gicheru) Commission of Inquiry in Kenya55 The disappearance and death of Dr Robert John Ouko was the subject of a presidential commission of inquiry in 1990/91. Dr Ouko was then the Minister for Foreign Affairs and International Cooperation. He had been Minister for Community Affairs in the East African Community (EAC)56 and subsequently held the same docket in the administration, following the collapse of EAC in 1977.57

In November 1979, Dr Ouko became MP for Kisumu Rural Constituency and was appointed Foreign Affairs Minister to replace the (now) late Dr (Frederick Lawrence) .58 Dr Waiyaki later served in the Ministry of Agriculture….59 Dr Ouko subsequently served as Minister for Labour… before being reappointed to the Ministry of Foreign Affairs (MFA) following the 1988 General Elections,60 which he had nearly lost the Kisumu Town seat to Mr Job Omino, a former Permanent Secretary.61

Dr Ouko had been an ardent Moi supporter, Nyayo follower, Nyayo man, in the political lingo of the time. He had been keen on the development of the Molasses Plant in Kisumu, partly to provide job opportunities for his constituents. He had been associated with the few Government officials who opposed corruption and shunned primitive accumulation or acquisition.

Dr Ouko was one of the very few intellectually curious and sophisticated, articulate, persuasive, and engaging Moi Government officials.62 For instance, he persuaded some Kenyans and the international community to give the Moi administration the benefit of doubt, in his speech in Oslo which was rebroadcast on Kenya Broadcasting Corperation (KBC) (formerly Voice of Kenya (VOK)) by public demand.63 Dr Ouko defended the Moi Government on serious

55 See also Africa Center for Open Governance (Africog) (2007) A Study of Commissions of Inquiries in Kenya, AfriCOG Reports 2007, at https://www.africog.org/reports/Commissionsofinquirypaper.pdf (accessed 6/5/2020); Wachira Maina (19..) “Governments by Commissions of Inquiry” Nairobi Law Monthly… 56 That was EAC 1 under the EAC Treaty, 1967…. 57 See also Chapter 1, 5A,… CODRALKA 1…. 58 Dr Munyua Waiyaki was also regarded as a reasonably good perfomer. Hillary Ng’weno’s Weekly Review and many praised Dr Ouko: “same song, different tune….” Waiyaki had been called the “Kissinger of Africa”…. Cf Wikipedia (edited) “Dr Munyua Waiyaki,” 8 pages 59 …. 60 In the 1980s, Dr Ouko was popular among university students. Some of the students who were detained then report that statements written by the police for (not by) them claimed that the students hoped Dr Ouko would become a better President. 61 …. 62 These were demerits in the Moi system: Dr Ouko “knew too much” (“ong’ee mang’eny’) on corruption …. Hence the “risks of knowledge and the sociology of power” in the Cohen-Atieno Odhiambo theoretical framework…. 63 ….

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accusations and allegations of human rights abuses, including, killing in the Maasai Mara of British journalist, Julie Ward….64

On January 27, 1990, Dr Ouko accompanied President Moi, Minister Nicholas Biwott, as part of about 83 ministers and officials for a prayer breakfast hosted by US President George H.W. Bush (Bush 1) at the White House, Washington, DC.65

It is reported that the Bush administration was not happy with the human rights abuses and corruption in the Moi administration. After all, the Berlin Wall had collapsed, the Cold War was ending, hence human rights, democratization, trade (and less aid) and anti-corruption were now major planks of the principled and idealistic (and not just “pragmatic”) US foreign policy in Africa.66 President Bush reportedly had a liking for Dr Ouko…., prompting Biwott to mock Ouko: “Morning, Mr President.”67 Biwott was also not happy about the Molasses project as he and Prof George Saitoti conspired to switch Government priorities for that project to different projects in their preferred political constituencies, and also to secure kick-backs.68

Ouko was reportedly ordered by President Moi to find alternative means to return to Kenya. He then met Moi who ordered him to proceed on leave until he would be recalled. He went to his Kisumu home.

Dr Ouko “went missing” on December 12, 1990 and on February 13, 1990(?) the Moi administration announced on public radio that Foreign Affairs Minister Robert Ouko had gone missing and he or anyone who may have information should report to the nearest police station.69 A Government Minister? With security? Then on Friday, February 2, 1990 President Moi

64 …. How many deaths occurred in New York daily? He posed. This was problematic because the US tried to resolve most of the cases, except some of the black lynhings….. in fact, Chief Magistrate Mango had ruled in the Julie Ward inquest (trial?)that the “animals are innocent….” ….Cf Grace A. Musila (2015) A Death Retold in Truth and Rumour: Kenya, Britain and the Julie Ward Murder, James Currey…. 65 See same co-authors, same titles, as a book; David W. Cohen & Atieno Odhiambo (2006) “The risks of knowledge: investigations into the death of the Hon. Minister John Robert Ouko in Kenya,” Vol. 40 No.3, Canadian Journal of African Studies 559-561. 66 Atieno Odhiambo (2000) “Africa’s place in world dialogue at the beginning of the twenty first century,” in Godfrey P. Okoth (ed) Africa at the Beginning of the Twenty First Century, NUP, Nairobi. Prof Atieno Odhiambo also credits the changing US and Western Foreign policy on Kenya to struggles led by Jaramogi Oginga Odinga and his organic reformers, Unlike USIU International Relations and History Prof Macharia Munene who emphasizes the role of (the) US (“nyama choma” Ambassador) …. 67 …. 68 …. 69 ….

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announced that Dr Ouko’s charred remains had been found at Got Alila (Hills), about 3 kilometers from his Kisumu home….70

Public pressure mounted including demonstrations by university students, seeking full disclosure on the disappearance and (apparent) assassination of Dr Ouko. Then the Moi administration through Hezekiah Nelson Oyugi Ogango,71 Permanent Secretary (PS) in the Office of the President (OP) responsible for Internal Security and Provincial Administration, and his colleagues started saying that Ouko had committed suicide. As law students, we demonstrated and sung:

“Where is Ouko? Where is the diplomat? Who killed Ouko? Who killed the diplomat? Res ipsa loquitor72 Why kill Ouko? Nok suicide Why kill the diplomat? We must speculate….”73

Even after the burial of Dr Ouko, which President Moi attended,74 the pressure continued to mount for full disclosure and taking of responsibility.75

Then the Government took at least five measures. First, denial of involvement in Ouko’s disappearance and death. Second, the suicide theory.76 Third, blaming Ouko’s “rivals”- a brother,77 and an alleged cuckold (love triangle?).78 Fourth, mobilizing political opinion, and

70 …. 71 He was also referred to as the “Governor,” “Kalam Maduong’”. the big pen. He had been a powerful Rift Valley Provincial Commissioner…. Rumour has it that Provincial Commissioners (PCs) and District Commissioners (DCs)…stood at attention as they spoke to him on the analogue (video-less) phones of the day…. 72 Res ipsa loquitor is a tort law doctrine meaning facts speak for themselves. Latin partly to protect our bones from being broken by the trigger, baton and teargas happy police, although the students didn’t seem to fear these either. Or did we want to demonstrate our recent learning, and that we were learned street demonstrators? 73 “We must speculate” was also a response to Moi, Biwott, Oyugi… who had asked the public not to speculate….As students, we had other confrontation with police who prevented some of us from reaching Kisumu where the residents and university students had …battle. Most of us then succeeded in attending the burial in Koru the next day. 74 …. 75 …. 76 Suicide is a favourite excuse whenever the Government cannot explain the death of a politically significant person. Others are love triangle….,, are placing Viagra near the body. These are to embarrass the family so that they do not seek justice for the assassinated…. 77 The Moi administration brazenly claimed that Barack Mbajah had the motive, means and opportunity to kidnap, kill, and dispose of the body of Dr Ouko….and then engage in the massive cover up including post assassination “clean up” of killing any possible witnesses…. Does it help that since 1964 Moi had been an insider or stakeholder and part of the Ormatis personae in terms of direct and indirect beneficiaries of assassinations as a tool for retaining power to an extent that by 1975, he could boldly say that JM was in Zambia while JG was dead in Kenya.

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particular Luo politicians and Vice President George Saitoti to exculpate the Moi Government….79 Fifth, establishing investigating agencies from the police, Scotland Yard, and Commission of Inquiry.80

The British Scotland Yard was called in because of the people’s lack of confidence in the Kenya Police investigations. It was led by Detective Superintendent John Troon, Dr Ian West, a forensic pathologist,81 and three other Police Constables of International Organized Crimes.82 Troon’s team was frustrated and intimidated by Nicholas Biwott, Hezekiah Oyugi, John Anguka and the entire Moi administration generally.83 Troon reported having been poisoned while eating fish.84 Their report was kept under lock….

Pressure on Ouko continued to mount, even as pressure picked up on the re-introduction of multi-party democracy, following trends in former communist single party Soviet satellites in Eastern Europe.85

Moi relented and in October 1990, he established a Commission of Inquiry. The terms of reference (ToRs) were [state], briefly, to enquire into the circumstances leading to the disappearance and death of Dr Robert Ouko [To quote verbatim…]86….

The Commission was chaired by Court of Appeal Justice Evan Johnson Gicheru,87 with members being Justice (now Rtd) Richard Otieno Kwach (Court of Appeal), and Justice Augustus Akilano Molade Akiwumi (High Court of Kenya from Ghana).88 Counsel assisting were Bernard Chunga the Deputy Public Prosecutor (DPP) and …. Joint Secretaries were …. Mr

78 Then Nakuru DC John Anguka was the main focus…. See a nuanced discussion on “politicians and their women” in Atieno Odhiambo, op. cit., at … Whatever his indications or his offence, Anguka (alone), like Mbajah, could not kill Dr Ouko and cover up as indicated under Mbajah above…. 79 …. 80 In the Kibaki Administration, Gor Sunguh, MP for Kisumu East chaired a Parliamentary Select Committee investigating circumstances leading to the death of the late Dr. Robert Ouko…..and in 2010, the matter rose again…. See …. 81 He wrote a book, Dr Ian West’s Diary which was the subject of litigation in Biwott (and earlier) Moi v. Dr Ian West, BookPoint (30million awarded by Justice (now Rtd) Alnasir Visram?)…. To IFLAC. Akiwumi v. Dr Ian West… 82 …. 83 …. 84 …. 85 …. 86 Cf. Eliud Kibii (2018) “Commissions or omissions of inquiry? Why Kenya has failed to address historical and other injustices,” The Elephant, Nairobi, April 5, 2018, at https://www.theelephant.info/features/2018/04/05/commissions-or-omissions-of-inquiry-why-kenya-has-failed-to- address-historical-and-other-injustices/ (accessed 6/5/2020). 87 He served as the Chief Justice under President Kibaki. 88 ….

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represented Dr Ouko’s wife, Mrs Christabel Ouko and family. Dr Oki Ooko Ombaka and Mohamed Nyaoga represented Ouko’s Ominde clan.89

Chunga argued a preliminary objection that the clan had no locus standi. As Dr Ombaka’s research assistants at the Public Law Institute (PLI) we found Australian (and British) authorities to the effect that a Commission of Inquiry is (always) more open and intended to secure as much information as possible. Hence it doesn’t have strict rules of locus standi associated with criminal cases….90

The Commission proceeded with its work amidst harassment and intimidation, including the bugging of the rooms of the Commissioners and non-Government lawyers.91

Chief Government Pathologist Dr Jason Kaviti testified that Ouko had committed suicide.92 Then Biwott, Anguka and Oyugi were arrested and allegedly remanded.93 Biwott was the spoilt-brat- turned-rogue bully in the league of Moses (Bashir) Bwogo and Mulili in Ruganda’s and Imbuga’s poetic drama, respectively.94 Then Oyugi sought legal assistance95 and indicated that he would be proceeding to the Kisumu Ouko Inquiry to clear his name.

Moi revoked or disbanded the Commission on 3/1/1991 under section 4(1) of the Commission of Inquiry Act96 claiming that it was engaged in “hearsay” and “rumours”?…. Yet Commissions of Inquiry have more flexible evidentiary rules and may admit hearsay which may not be relied on to decide or may have limited weight. And yet Moi ordered that the Commission submit its report.97 They didn’t.

89 …. 90 Remarkably, in the SM Otieno case the court …Umira Kager clan had played a major role in the litigation on the side of SM Otieno’s brother Joash Ochieng’ Ougo and cousin Omollo Siranga….Increasingly, under the 2010 Constitution and the Victim Protection Act, locus standi and remedies have been expanded under Arts 22, 23, …. In criminal matters. In civil matters, interested parties and amicus curiae are also heard…. 91 Cf. Eliud Kibii (2018) “Commissions or omissions of inquiry? Why Kenya has failed to address historical and other injustices,” The Elephant, Nairobi, April 5, 2018, at https://www.theelephant.info/features/2018/04/05/commissions- or-omissions-of-inquiry-why-kenya-has-failed-to-address-historical-and-other-injustices/ (accessed 6/5/2020). Wachira Maina (2019) Presentation on State capture report launch, Youtube, at https://www.youtube.com/watch?v=o-A9hwPaRLA (accessed 14/5/2020). 92 Justice Kwach retorted: You are lucky you are consulted by dead clients…. 93 Biwott was allegedly in an hotel and even later boasted that only the fing had gone. That he was still a powerful total man….. 94 John Ruganda (1980) The Floods: A Play By John Ruganda, East African Publishing House, Nairobi.Bwogo, boss of the “State Research Bureau (SRB)” (who kills on a whim and profiteer at will…); Francis Davis Imbuga (1987) Betrayal in the City, East African Publishing House, Nairobi.(Mulili Boss’s cousin; soldier turned farmer… and similar character in the Kafira triology…. 95 …. 96 See Gazette Notice No. 5840 of 3/1/1991…. discussed in R. v. John Anguka [1992] eKLR (Abdullah, J)….

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Oyugi fell ill. Moi denied him permission to seek treatment in the United Kingdom (on time). He died. Neither Moi nor his power men nor women attended the burial of a man who had his Mr Fix-it, and who he had visited at home….

Former Nakuru District [now County] Commissioner (DC) Jonah Anguka was then tried in 1992 allegedly for murdering Ouko. The motive was the allegation that Ouko had an interest in Anguka’s wife who had been Ouko’s Secretary.98 Justice Fidahussein Abdullah died just before delivering judgement.99 Mistrial. Then retrial by High Court Justcie Daniel A. Aganyango …. Anguka was acquitted with Justice Aganyanya finding and ruling that:…..

Then Anguka went on exile to the United States and published an elaborate exculpatory but not necessarily candid100 or objective book, Absolute Power: The Ouko Murder Mystery.101

Many more people who knew or were deemed to know anything to do with Ouko’s movement during this period died including herdboy, Paul Shikuku, who had discovered his body, Police Commissioner Philip Kilonzo,….102 Barrack Mboja, Ouko’s brother and former official in the A-G’s Chambers also went on exile and swore an affidavit…. Had they had sibling rivalry with Ouko?103

What was the meaning and significance of the inconclusive Gicheru Commission? How did Gicheru and the Commissioners perform? What is the contribution of the Ouko inquiry to the legal method, jurisprudence, and constitutional and legal sociology of commissions of inquiry and public inquiry in Kenya and Africa?

A major lesson that some politicians and Moi supporters spoke about was Moi’s murderous, despotic, tribal and kleptocratic brutality: if he and his administration could kill one of his key

97 …. 98 Same authors and title, as book; David W. Cohen & Atieno Odhiambo (2006) “The Risks of Knowledge: Investigations into the Death of the Hon. Minister John Robert Ouko in Kenya,” Vol. 40 No.3, Canadian Journal of African Studies, pp. 559-561. 99 R. v. John Orao Anguka [1992] eKLR, HCC No. 41 of 1992 (Ruling per F.E. Abdullah) (holding that Mr Chung’as participation as a counsel assisting the Ouko Commission and as a prosecution counsel was “not tarntamount to not affording a fair hearing to the accused”…. 100 Anguka claimed that Ouko was a very close family friend….(as a way of emphasizing he had no motive to participate in Ouko’s murder…. Cohen and Atieno Odhiambo, op. cit., have remarked on important silences in Anguka’s book, including Anguka’s distance from the Ouko family during the Ouko “disappearance” phase (Tuesday 13/2/1990 to Friday 16/2/1990)….and relationship with Oyugi…. 101 John Anguka (1998) Absolute Power: The Ouko Murder Mystery, Pen Press, Brighton, UK. 102 The media have repeatedly named those killed following the Ouko assassination…. 103 ….

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supporters and defenders, who was safe? Later Moi and Prof Saitoti alleged that the people who had killed Ouko had poisoned the Vice President, Prof George Saitoti….104

In December 1991, then Health Minister, Mwai Kibaki, Vice President during 1978-88, claimed he was resigning from Cabinet and KANU because of the Ouko assassination (about two years late?)…. Why had he been so quite? Cynical opportunism? Cashing in on a cruel assassination? What are the related outcomes and consequences of the Ouko assassinations and Commission of Inquiry? Why did Justice Akilano Molande Akiwumi sue Andrew Morton the Btritish biographer of President Moi?105

Why did lawyer Oraro, an Ouko family lawyer, sue the Nation newspaper? What damages were awarded? Any other consequences of Ouko assassination and commission?

8.17.3 Hancox (Insurance) Commission of Inquiry in Kenya106 Kenya had experienced a lot of road and industrial accidents as it still does. And most of the victims could not be compensated because of at least three (3) reasons. First, most of the motor vehicles or occupiers of the premises are underinsured or illiquid.107 Second, most of the victims are not insured.108 Third, in some cases, there is contributory negligence….109 What were the terms of reference? What were the findings? .... The Insurance (Hancox) Commission of Inquiry was also not released – shelved. Was this another waste of tax payers’ money and time? Dr Oki Ooko- Ombaka of Public Law Institute (PLI) participated in the public interest.110 There were claims that strong recommendations had been made for a “no fault compensation” framework…. These issues are still unresolved, even in the context of Work Injury Benefits Act No. 13 of 2007.111

104 George Saitoti spoke in Parliament…. Who were they? Anguka? Sorry- or the “suicidal Ouko”? did he poison Saitoti after he himself had committed suicide? Why tell the public so late? 105 See Akilano Molande Akiwumi v. Andrew Morton & Another [2005] eKLR HC Civil Case No. 1717 of 1999…. 106 Pravin Bowry (2010) “An inquiry into Commissions of Inquiry,” Standard Digital, January 13, 2010, at https://www.standardmedia.co.ke/article/2000000823/an-inquiry-into-commissions-of-inquiry (accessed 6/5/2020). 107 …. 108 …. 109 …. 110 … 111 See the litigation under the Work Benefit Injuries Act (WIBA) including Kenya Plantation & Agricultural Workers’ Union v. Kenya Export Floriculture, Horticulture And Allied Workers’ Union (Kefhau); Represented by Its Promoters; David Benedict Omulama & 9 others [2019] eKLR, Petition No. 4 of 2018; Constitutional Petition No. 196 of 2018….;

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8.17.4 Davy Koech Commission of Inquiry The Davy Koech Commission of Inquiry on Totally Integrated Quality Education and Training (TIQET) (1998/9) was to review the education and training law and policy.112 The report was very good generally, including on education law even though it was political on the (8-4-4) education structure…. It glossed over the question of (8-4-4) structure arguing that content was more problematic….?113 Most of it has not yet been implemented. Does this point to another … waste of tax payer’s money? Or does its value – like others - lie in the fact that the public are more aware or better educated on the issues? Even if it is not (fully) implemented? (like Goldenberg and others – held public hearings …)

8.17.5 Akiwumi Commission of Inquiry in Tribal Clashes What was the context of the Akiwumi Commission of inquiry into tribal clashes?

The terms of reference (ToRs) of the Commission were five (5). First, to investigate the tribal clashes that have occurred in various parts of Kenya since 1991, with view of establishing and/or determining the causes(s)….?. Second, to establish the origin, the probable, the immediate and the underlying causes of such clashes.114

Third, to establish action taken by the police and other law enforcement agencies with respect to any incidents of crime arising out of or committed in the course of the said tribal clashes and where such action was inadequate or insufficient, the reasons therefor. Fourth, the level of preparedness and the effectiveness of law enforcement agencies in controlling the said tribal clashes and in preventing the occurrence of such tribal clashes in future.115 Fifth, the commission was to make recommendations on the following three issues: First, prosecution or further criminal investigations against any persons or persons who may have committed offences related to such tribal clashes. Second, make proposals on means and measures that must be taken to prevent, control, or eradicate such clashes in future. And third, to inquire into or investigate any other matter that is incidental to or connected with the foregoing

The members of the Commission were Mr Nyagah Gacivih and Ms Dorcas Oduor both State Counsel in the office of the Attorney General initially served counsel assisting. Later on, Mr

112 Cf. Ominde (1964)….; Gachathi (1976)….; Chaiperson Kamunge and Vice Chairperson Sihanya (“Kamunge II”) (2007)Task Force on Education, Training and Research in Kenya….; Douglas Odhiambo Aligning Education to the Constitution…; CBC (2018-2020)…. 113 …. 114 …. 115 ….

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Gacivih was removed and replaced by Mr Bernard Chunga, who was then Director of Public Prosecutions in the office of the Attorney General.116

What were the findings?117 Conclussions….? Implementations?

What were the outcomes? After effects?118 For instance, Biwott suing?119

Deil Loonship Commission of Inquiry120 What was it about? To adopt a typology or parameters similar to those applied under TJRC and other commissions of inquiry….

8.17.6 Bosire (Goldenberg) Commission of Inquiry in Kenya121 The Goldnberg Commission of Inquiry was established following the primitive accumulation, neo-patrimonialism and raising a campaign war chest and corruption in the context of the post 1992 multiparty elections. As elections approached, President Moi’s dictatorship through the single party (KANU) was threatened. Kamlesh Pattni122 teamed up with Government officials in the Treasury (like Finance Minister Saitoti (“Bwana [or Mr] Goldenberg”), Permanent Secretary Koinange, Central Bank Governor Eric Kotut….) and intelligence officials (James Kanyotu,….).123 The plan was to make money by pretending to export gold and thereby allegedly earn Kenya foreign exchange, and seeking export compensation under the Export Compensation Act.124 At least KES 100 billion was fraudulently looted…. With KES 5B(?) released by PS Koinange on alleged-verbal instructions from President Moi. When pressure mounted locally, and from development partners, Moi allowed criminal prosecutions.125 These were abused by all

116 …. 117 See Republic of Kenya (1999) Report of the Commission of Inquiry into Tribal Clashes, Government Printers, Nairobi. See also Chapters 1, 3, 5A on resources, power and tribalism…. 118 Cf CIPEV; TJRC…. Reports…. 119 Biwot Kiprono v. Judicial Commission of Inquiry in tribal Clashes [2003] eKLR, HC Misc. App. No. 1269 of 2002 (Ruling; Rawal, J., who else?) She quashed the Commission’s recommendations that Biwott be “investigated regarding his role in the tribal clashes that occurred in Keriho Distict…”…. 120 …. 121 Cf K.J. Macharia (2018) Towards Effective Commissions of Inquiry in Kenya, , LLM Thesis. 122 He rechristened himself Paul Pattni, Brother Paul…. Could Saul become Paul(that fast and easily)? He had the impunity to run for Westlands MP in 2013… and lost to Tim Wanyonyi who won 42, 558 against Patni’s… votes. 123 Kanyotu was allegedly a Director in Goldenberg…. to promote his and Moi’s interests. 124 …. The Goldenberg cost Kenya about 10% of its GDP (KES….; USD….). 125 ….

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concerned in the dock,126 the Executive,127 Legislature,128 and Judiciary.129 After the 2002 Moi succession, there was pressure on President Kibaki to establish a commission of inquiry.130 The Commission was chaired by Court of Appeal Judge Samuel Bosire, a pro-Executive, pro- Moi judge. He found that Saitoti and others should be investigated.131 But not Moi. Saitoti had Justice Nyamu of the High Court nullify the record, findings and recommendations on him.132 Justice Bosire recommended and some agree that in future, a Commission of Inquiry should not be chaired by a Court of Appeal judge (which was then the highest Court), because the possibility of the High Court overturning their decisions would affect the authority, prestige and dignity of the Court of Appeal.133 Its main value may lie in educating the public on how the Government (does not) work(s). And on bad economic and political governance – and hence the need for the rule of law, constitutionalism, and good governance.

8.17.7 , Kriegler Commission in Kenya As part of long-term institutional reforms in Kenya before 2010, the Panel of Eminent Persons recommended the establishment of two commissions of inquiry to review the 2007 General Elections and the other the 2008 post-election violence (PEV). The Commission on the Review of Electoral Process (CREP) was headed by retired South African Judge Johan Kriegler.134

The Commission of Inquiry into Post Election Violence (CIPEV) was chaired by Judge Phillip Waki of the Kenyan Court of Appeal.135 The Secretary were George Mong’are Kegoro136 and Mr (later High Court Justice) David Majanja was the counsel assisting the Commission.

126 …. 127 …. 128 …. 129 …. 130 …. 131 Cf. Judicial Commission of Inquiry into the Goldenberg Affair, Justice SEO Bosire, Waweru Gatonye, A-G v. Job Kilach, Civil App. No. 77 of 2003 (UR 4013) (Riaga Omolo, Philip Tunoi, Effie Owuor, JJA); Misc. App. No. 304 of 2013 (Mbito, J.)…. 132 See R. v. Judicial Commission of Inquiry into the Goldenberg Affair, Justice S.E.O. Bosire, Peter Leo Pelley, ex parte Prof George Saitoti (2006) eKLR (Justice Nyamu, Roselyn Wendoh and Anyara Emukule) The Judges and Magistrates Vetting Board (JMVB) later found Justice Nyamu unsuitable to serve partly because his conduct of the Saitoti case…. See JMVB determination…. See also Wachira Maina (2019) “Tales of State capture: Goldenberg, Anglo Leasing, and Eurobond’” The Elephant, Nairobi, at https://www.theelephant.info/features/2019/09/05/tales- of-state-capture-goldenberg-anglo-leasing-and-eurobond/ (accessed 6/5/2020).; Wachira Maina 133 Cf would embarrass the court and judges. To quote verbatim. 134 CREP said the results had been so polluted that they could not tell who won…. An indictment of the Kibaki Administration that had micromanaged the elections…. In 2017/18 Kriegler seemed to have been part of the choir to legitimize rigging 135 ….

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CREP and CIPEV both submitted a scathing indictment of the Kenyan electoral process and the manner in which the ECK commissioners and officials had handled the 2007 elections.137 Of particular importance, was the assertion that the 2007 elections in Kenya were irredeemably flawed and that it could not be said with certainty who had won or lost the Elections.

The report of the Judge Waki-led Commission of Inquiry into Post Election Violence (CIPEV) report concluded that the post-election violence (PEV) had been pre-meditated and planned long before election day. The report further indicated that the election merely provided a trigger for entrenched inequalities and grievances that had existed in Kenya since independence. The Waki (CIPEV) report formed a basis for the post-election trials at the International Criminal Court (ICC) against Uhuru Kenyatta, Deputy President William Ruto and Joshua Arap Sang that continued at The Hague as Kenyans went to the 2013 polls. Why was the Waki Report handed over to former United Nations Secretary General Kofi Annan, President Mwai Kibaki and Prime Minister Raila but the envelope to Annan? Had Kenya lost sovereignity as some claimed? Remarkably, Kibaki’s authority had been questioned when his rigging and through mediation and grund norm or volk geist had changed….138 The cases were terminated… why? Post 2017?

8.17.8 The Truth Justice and Reconciliation Commission of Kenya and Africa What issues of political economy, constitutional democracy, and legal sociology led to the Truth Justice and Reconciliation Commission (TJRC) process in Kenya?139 South Africa? What were the terms of reference (ToRs) of the Kenyan Truth Justice and Reconciliation Commission (TJRC)? What was the composition of the Kenyan TJRC? What was the methodology and approach? Shenanigans- for instance, on question the role of the Chairperson, Bethwel Kiplagat in the Wagala massacre, under President Moi? Questions of deletions from the land section of the Report?

136 Director Kenya Human Rights Commission (KHRC); formerly Director International Commission of Jurists, Kenya…. 137 These were the Independent Review Commission (IREC) and Commission of Inquiry into Post Election Violence (CIPEV), respectively. 138 …Vvox populi vox dei …the voice of the people is the voice of God…the spirit of the people …. Volkgeist Cf. Von Savigny on… historical jurisprudence school…Cf. 2007/08; 2017-2020 political dispensation; swearing in of the peopl’s President, handshake, Jubilee intraparty debates, political realignments…. 139 Cf Makau Mutua TJRC Report; Legislations on TJRC….

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What were the findings and conclusions? Outcomes? Post report debates in 2013, 2017 (presidential) elections? Post 2017? 2015 “Commitments” by President Kenyatta in Parliament- to implement TJRC through KES 10B…. questions of “no regulations” to implement? The disputation between Prof Sly, and Prof Ojienda….

8.18 Ombudspersons in Kenya and Africa …. [To restructure for flow] What is ombudsperson? How does the office(r) work in Kenya and Africa?

8.18.1 Conceptualizing ombudsperson in Kenya and Africa Kenya and Africa have always needed the office of the Ombudsperson which was a Scandinavian innovation to address issues of maladministration. The theory, rationale or justification include(d) the inconvenience cost and delays associated with litigation. It is now entrenched in Kenya and Africa, in various formats.

Maladministration means public administration that is inequitable, inefficient, improper, and dishonest. It includes service failures, delay, inaction, inefficiency, ineptitude, discourtesy, incompetence, rudeness, bias, faulty procedures, unfair treatment and unresponsiveness….140

It is recognized that the Legislature, Executive, and the Judiciary may not effectively redress every-day occurrences of (mal)administration141 (especially those that occur in the Executive and administrative agencies …). The Executive and most Governmental institutions lack self- correcting and self-improving mechanisms. Hence ombudspersons are regarded as suitable in a generic format, or Ombudsperson that focus on specific (categories of) institutions like Judiciary, ombudsperson….142. Thus, the Commission on Administrative Justice (CAJ) which is also referred to as the Ombudsperson. It was established by the Commission on Administrative Justice Act 2011 pursuant to Article 59(4) of the Constitution of Kenya. Art 59(4) stipulates:

“Parliament shall enact legislation to give full effect to this Part, and any such legislation may restructure the Commission into two or more separate commissions.”143

140 See Art. 2(4), 47, 59,…. (Kenya)… (United Kingdom),…. Chapters 12 CODRALKA 1 on Administrative Bureaucracy, Cabinet, Cabinet Secretary, Chief Administrative Secretary, Permanent Secretary, HOPs (HOCs) and County Administration in Kenya and Africa; Regulatory and Administrative Law and Justice in Kenya and Africa…. 141 Problematize and contextualize definition of maladministration…. 142 JSC and BBI debates on the effectiveness of the Judiciary ombudsperson…. vis-à-vis the role of the JSC…. 143 Review the post 2010 and BBI debates on securing the 2010 and Bomas gains by protecting Commission on Administrative Justice (CAJ) and the national Gender and Equality Commission (NGEC)…

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The CAJ is an independent commission chaired by Ms Florence Kajuju being the successor to Mr Otiende Amollo, the first Chairperson.144

8.18.2 Powers and functions of the CAJ, the Ombudsperson in Kenya and Africa What are the powers and functions of the ombudsperson in Kenya and Africa? The powers and functions focus on addressing maladministration.

The problem may be minor - but important to an individual.

The ombudsperson may be an ad hoc145 or permanent entity; The lutter example is the CAJ and Permanent (Presidential) Commission of Inquiry (like in Tanzania historically).146 A grievance may require resolution by a lay person rather than those trained in technical judicial procedures.… Some of the issues of maladministration are thus addressed through complaints commissions, complaints or suggestion boxes, or hotlines in corporations, and public bodies providing various services … There are complaints boxes, helplines and hotlines on corruption, and slow provision of services. The National Police Service (NPS), Ministry of Health have established hotlines on some crimes, for example carjacking, the Corona virus (COVID-19)… How effective are helplines and hotlines in redressing grievances in Kenya and Africa? Before the CAJ, the Kenya National Commission on Human Rights (KNCHR) served as the Ombudsperson. It was a statutory commission.147 What is the efficacy of the ombudsperson established in Kenya in the light of the Kenya National Human Rights and Equality Commission (KNHREC), CAJ, National Gender and Equality Commission (NGEC), and other commissions? Equally important are the constitutional provisions on fair administrative action (Article 47);148 judicial remedies and judicial reforms.....?149 Art. 59 states: “(1) There is established the Kenya National Human Rights and Equality Commission.”

With regards to the eleven (11) functions of KNHREC, Article 59(2) provides:150

144 Mr Otiende Amollo later became MP for Rarieda constituency in Siaya County (ODM party, NASA coalition)…. Ms Kajuju served as Women’s Representative for Meru County in the 2013-2017 Parliament (Jubilee Coalition). 145 Examples include…. 146 …. 147 Kenya National Commission on Human Rights (KNCHR) may have been inspired by the Kenya Human Rights Commission (KHRC), an NGO…. 148 See also FAAA, Statutory Instruments Act, Interpretations and General provisions Act…. 149 Cf. George K. Rukwaro (1973) “The case for an ombudsmen in Kenya” 9 EA Law Journal 43-58; To cite recent studies…. 150 To quote and analyze further.

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“(2) The functions of the Commission are— (a) to promote respect for human rights and develop a culture of human rights in the Republic; (b) to promote gender equality and equity generally and to coordinate and facilitate gender mainstreaming in national development; (c) to promote the protection, and observance of human rights in public and private institutions; (d) to monitor, investigate and report on the observance of human rights in all spheres of life in the Republic, including observance by the national security organs; (e) to receive and investigate complaints about alleged abuses of human rights and take steps to secure appropriate redress where human rights have been violated; (f) on its own initiative or on the basis of complaints, to investigate or research a matter in respect of human rights, and make recommendations to improve the functioning of State organs;

Equally important is that KNHREC is,

(g) to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights; (h) to investigate any conduct in state affairs, or any actor omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice; (i) to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct; (j) to report on complaints investigated under paragraphs (h)and (i) and take remedial action; and (k) to perform any other functions prescribed by legislation.”

In addition, Article 59(3), (4), and (5) provides:151

“(3) Every person has the right to complain to the Commission, alleging that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. (4) Parliament shall enact legislation to give full effect to this Part, and any such legislation may restructure the Commission into two or more separate commissions. (5) If Parliament enacts legislation restructuring the Commission under clause (4)–– (a) that legislation shall assign each function of the Commission mentioned in this Article to one or the other of the successor commissions; (b) each of the successor commissions shall have powers equivalent to the powers of the Commission under this Article; and (c) each successor commission shall be a commission within the meaning of Chapter Fifteen, and shall have the status and powers of a commission under that Chapter.” The KNHREC was restructured into KNHREC and Commission on Administrative Justice (CAJ) and National Gender and Equality Commission (NGEC).152

151 To cite and analyze further. 152 National Gender and Equality Commission Act, 2011…. The BBI debates included: Merge them or let them be? Don’t claw back gains already made (by women?)….

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The mandate(s) of the Commission on Administrative Justice (CAJ) are stated in section 8 of the Commission for Administrative Action Act, 2011:153 First, inquiries into allegations of maladministration and administrative injustice. Second, investigate complaints of abuse of power, unfair treatment. Third, work with the Kenya National Commission on Human Rights to ensure efficiency, effectiveness and complementarity in their activities. Fourth, facilitate the setting up of, and build complaint handling capacity in, the sectors of public service, public offices and state organs. And fifth, investigates any conduct in state affairs, or any act or omission in public administration by any State organ, State or public officer in National and County Governments.

8.18.3 Methodology of Commission on Administrative Justice in Kenya and Africa The mandate and methodology and mode of operation (modus operendi)154 of the Commission on Administrative Justice include alternative dispute resolution (ADR), especially mediation, conciliation, negotiation.155 Some of the matters Commission on Administrative Justice (CAJ) has handled include the following five…. First, CAJ mediated a dispute between a complainant and his former employer, Kenya Revenue Authority (KRA) following a summary dismissal by the Authority on July 23, 1998.156 Second, a complaint was lodged against the Kenya Polytechnic University College (now Technical University), by a complainant who alleged unfair treatment and administrative injustice in his suspension from the College in July 2010; Third, the Commission intervened on behalf of 83 former employees of the Kenya Railways Corporation regarding alleged delay and unresponsive conduct by the Kenya Railways Staff Retirement Benefits Scheme. Fourth, CAJ successfully pursued a complaint by an Ms Cecilia Mbugua from Kiambu County who claimed that the then Governor Ferdinand Waititu (Baba Yao) had taken away her two parcels of land. The Commission on Administrative Justice (CAJ) uncovered that a prime property belonging to Ms Cecilia Mbugua was fraudulently transferred to the elderly Ms Esther Nyatu through the office of the Governor and the Governor himself.157

153 Section 8 of the Commission on Administrative Justice Act, No. 23 of 2011. Regulations....office manual. CAJ Reports….. 154 The standard operating procedure…. 155 …. 156 …. 157 The findings of the CAJ were part of the grounds and evidence that led to the impeachment of Governor Waititu by Kiambu Members of County Assembly (MCAs) and subsequent removal by Senate under Arts…. Of the Constitution and section….. of the county Government Act….

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Fifth, CAJ helped resolve of a dispute between Grains Ltd and the Kenya Bureau of Standards (KEBS). The miller’s directors had alleged that they were being discriminated against by KEBS as the company had already implemented a corrective action and plan recommended by KEBS following an earlier suspension in November, 2019. Eldoret Grains claimed that they had complied by purchasing and installing an aflatoxin testing machine at their factories.158

8.19 Adjudication in the Criminal Justice System in Kenya159 What is the Justice System?160 The criminal justice system (CJS)?161 The Constitution of Kenya 2010 embodies substantive, evidentiary and procedural or processual rules on criminal justice and law.162 Substantive issues include the rights of the accused,163 and victims,164 and jurisdiction of courts….165 Evidentiary rules include the presumption of innocence,166 the right to silence,167 or rule against self-incrimination,168 evidence under caution,169 evidence taken in violation of human rights, including torture, breach of privacy….are unconstitutional.170

The Court of Appeal at Malindi expressed itself on the constitutionality of two related issues regarding a mixed bench. First, whether a judge appointed to the Environment and Land Court (ELC) has jurisdiction to deal with criminal appeals specifically reserved for the High Court.

Second, whether the former Chief Justice (Willy Mutunga) acted within his constitutional mandate by empaneling a bench consisting of judges from the High Court and the Environment & Land Court. The Court held that judges appointed to specific courts sanctioned by the Constitution, cannot perform the duties reserved for another court.171

158 …. 159 Cf. Chapter 5 of CODRALKA 1... on Participation and Representation: Electoral System, Parties, CSOs, Business Organisations; and Human Rights and the Bill of Rights in Kenya and Africa 160 The justice system is broader than the Judicial System…. What of the legal or constitutional system? 161 …. 162 …. 163 …. 164 …. 165 …. 166 …. 167 …. 168 ….to quote in text Arts 50,….; Compare R. v. El Mann, …. (s. 77(5) of the 1969 Constitution.); The Fifth Amendment of the US Constitution (Fifth amendment rights). See Chapters 1…, 5A… of CODRALKA 1…. 169 Arts…. In the US, this is Miranda rule…. See Miranda v. US…. (the Miranda rules; Judges rules…)…. See Evidence (Out of Court) Rules 2009? Applied in, inter alia, Republic v. Leliman (Peter Ngugi v. Republic) (trial within a trial) 170 Art. 50(4); 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….(bench… judges) The author was one of the lawyers for the DCJ Philomena Mwilu…. 171 Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati v. Republic [2015] eKLR.

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Are the powers of the Chief Justice as the head of Judiciary merely administrative? Does empanelling a mixed bench go beyond the supposed “administrative” powers of the Chief Justice?172 Was the decision meritorious especially in the light of the following three issues? First, the equivocal provisions on the jurisdiction of the High Court (judges)? Second, shortage of judicial officers…. Third, the rapid results initiatives (RRI) adopted by the Judiciary in seeking to clear the backlog of cases in the Courts?173

In the contemporary analyses of the role of the CJ, emphasis was and are laid on the Chief Justice’s administrative and monarchial powers.174

8.20 Judicial Control of Executive, Administration and Judicial Powers in Kenya and Africa The Judiciary has powers to control the scope and exercise of the powers of the Legislature, the Executive and matters administration of the Judiciary itself. The other arms, organs or branches of Government also have some powers under the doctrine of fusion of powers, separation of powers, and checks and balances.175

8.20.1 Judicial Control of Legislative Powers in Kenya and Africa Legislative powers in Kenya are vested in Parliament (Senate and National Assembly); and in the 47 County Assemblies.176 These powers are subject to the control of the judiciary in the sense that any legislation which contravenes the Constitution can be challenged and nullified in Court. The High Court has the original jurisdiction to interpret laws and determine whether the laws are constitutional.177 The court can therefore enquire into substantive and procedural or processual constitutionality- did the Legislature follow the right procedure including public participation?178

8.20.2 Judicial control of Executive Powers in Kenya and Africa The Judiciary also controls executive powers through the exercise of its jurisdiction to review decisions made by the executive. This is referred to as judicial review. For instance, High Court Justice Chacha Mwita issued orders following the Executive and especially President Uhuru

172 Cf section 5(2)(c) of the Judicial Service Act which grants the Chief Justice the power to “exercise general control over the judiciary.” CJ’s executive, administrative powers….. 173 Judiciary (2017) Sustaining Judiciary Transformation (SJT): A Service Delivery Agenda 2017-2021, Government Printers, Nairobi, at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Strategic_BluePrint.pdf (accessed 21/4/2020). 174 Former Chief Justice Willy Mutunga popularized the critique of former Chief Justices as constitutional judicial monarch. Was he not? 175 See Chapters 5, 5A,….of CODRALKA 1 above. 176 Articles 181, 182…. See also Chapter 6 on Legislative Power, Structure and Process in Kenya and Africa. 177 …. 178 Public participation is a substantive and procedural requirement in legislative and administrative processes. Cf Legislature slicing Judiciary budget. See Chapter 4 of CODRALKA 1 above.

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Kenyatta failing to gazette the elected Judges as members of JSC after names were submitted to him.179

8.20.3 Judicial review of judicial decisions in Kenya and Africa In exercise of its supervisory powers under judicial review, the High Court may issue any of the following ten (formerly called prerogative) writs.180 There are remedies that are available in human rights violations and to enforce the Bill of Rights (Arts 23(2); 22), and three are generic Judicial Review remedies.181

The court may be moved or approached through a petition under Arts. 22 and 23, or through the judicial review process under the Civil Procedure Act and Civil Procedure Rules….182

First, mandamus. This is an Order issued by the High Court to any person or body commanding him or them to perform a public duty imposed by law or state. The order is available to compel administrative tribunals to do their duty.183

Second, certiorari. This is an order issued by the High Court directed at an inferior court,tribunal or body exercising judicial or quasi-judicial functions to have the records of the proceedings presented to the High Court for at least five purposes: First, to secure an impartial trial. Second, to review an excess of jurisdiction. Third, to challenge an ultra vires act. Fourth, to correct errors of law on the face of the record. Fifth, to quash a judicial decision made against the rules of natural justice. An order of certiorari will be issued wherever anybody of persons having legal authority to determine questions affecting the rights and having a duty to act judicially, acts in excess of their legal authority.184 It therefore serves to quash what has been done irregularly.185

179 Elaborate. cite 180 The Constitution is now the basis of these “orders,” and they are not issued as a matter of right once a litigant meets the standards; not entirely discretionary or prerogative…. And they are “orders,” not common law “writs”…. See the definition of “prerogative” and “writs”.... 181 Remedies for infringement of intellectual property, innovation and technology transfer may be addressed through a human rights and a generic methodology and approach (Art. 159)…. See Ben Sihanya (2016; Reprinted 2020) Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya; Ben Sihanya (forthcoming 2020) Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya. 182 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; and numerous decisions by Justice Odunga, Justice MAtivo and Justice Chacha Mwita as well as many others from the Constitutional, Human Rights and Judicial Review Divisions of the High Court…. 183 Gabriel Lubale (2012) “Courts system in Kenya,” at https://gabriellubale.com/courts-system-in-kenya/ (accessed 2/9/2019). 184 This formulation is problematic. Under the Constitution of Kenya, and even in (post war) England, the test has been simplified: are the rights of a person or a citizen likely to be affected? Then fair administrative action, due process or natural justice, administrative justice applies. 185 Gabriel Lubale (2012) “Courts System in Kenya,” at https://gabriellubale.com/courts-system-in-kenya/ (accessed 2/9/2019). Cf Paul Craig (2012) Administrative Law, Sweet & Maxwell, London (seventh ed), Chapter 15; Paul Craig (2019) “Prorogation: Three assumptions…”, Mark Elliot of Cambridge University is author of: Mark Elliot

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Third, prohibition. This is an order issued by the High Court to prevent an inferior court, tribunal or body from hearing or continuing to hear a case either in excess of its jurisdiction or in violation of the rules of natural justice.186

Fourth, writ of habeas corpus. Habeas corpus (sub judiciendum) means “produce the body,”187 “alive or dead.”188 This order is issued where the personal liberty of a person is curtailed by arrest and confinement without legal justification.189 By issuing this order, the High Court calls upon the person holding the body to answer by what authority are they continuing to withhold the individual and with the aims at securing release of such persons held apparently without legal justification.190

The following six are provided for under Art. 23(3) with focus on remedies to help enforce the Bill of Rights (Art. 22).

Sixth, a declaration of rights.191

Seventh, an injunction.192

Eighth, a conservatory order.193

(2019) “Prorogation and justiciability: Some thoughts ahead of the Cherry Miller (No. 2) case in the supreme Court”… These articles influenced the subsequent Supreme Court judgment on Brexit R (on the application of Miller and another) v Secretary of State for Exiting the European Union, 2017. See also their other article and opinions before and after the case. Paul Craig (2011) “Proprtionality, rationality and review,” Oxford Legal Studies Research Paper, No. 5/20111; Mark Elliott (2017) “The Supreme Court judgement in Miller: In search of constitutional principle,” Vol. 76, Issue 2, Cambridge Law Journal 257-288; Mark Elliott (2019) “The Supreme Courtin Cheryl Miller (No. 2): A new approach to constitutional adjudication?” Public Law for Everyone, at https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach- to-constitutional-adjudication/ (accessed 3/4/2020). 186 Ibid. Add the meaning of natural justice. Cf FAA; due process…. Art. 47…. 187 It is one of the four non derogable super rights under Art. 25. “A live or dead” is my expression of positivity and hope…. 188 This is to express my positivity and (stubborn) hope in the quest for criminal justice…. 189 See the reported and unreported cases on detention without trial in Kenya – , Mwangi Muriithi, Willy Mutunga, Oduor Ong’wen, Mirugi Kariuki, Paddy Onyango…. Habeas corpus applications have been common in cases of the disappeared and instances of police extrajudicial killings and brutality like Willie Kimani, Josephat Muiruri and Stephen Karanja…. 190 Ibid 191 Art 23(3)(a)…. Declaratory orders can be used in creative ways, per Justice Odunga. Elaborate… examples… 192 Art 23(3)(b)…. Injunctions were initially discretionary remedies in equity…. What is the impact of legislation and constitutionalization? Especially in IP: copyright, patent, trade marks, trade secrets…. Have the (standardized) rules remove (almost) absolute discretion in old English equity? 193 Art 23(3)(c)…. To address limited variety of authorities on conservatory orders v. injunctions …. See the Supreme Court of Kenya in the election petitions in Gatirau Peter Munya v. Dickson Mwenda Kithinji & 2 Others (2014) eKLR (the author was an advocate in that case). “‘conservatory orders’ bear a more decided public law connotation: for these are orders to facilitate functioning within public agencies, as well as to uphold the

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Ninth, a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24; Tenth, an order for compensation.194

Eleventh, an order of judicial review.195

8.21 The Judiciary in Emergencies, Crises and Revolutionary Situations in Kenya and Africa What is the role of the judiciary when there is a constitutional, political, electoral, economic health, environmental, security or related emergency, war, disaster, stress, strain, crisis and in a revolutionary situation in Kenya and Africa?196–

Some argue that there are three options. First, the Judiciary, the law, lawyers, and the Constitution always speak, argue, litigate, arbitrate, indicate and serve justice. That in any event, the Constitution and transnational legal instruments provide for emergencies, war, disaster….197

Second, the lawyers, judges, magistrates and law should be silent.198 It is the Executive’s mandate to deal with emergencies, war and disaster, epidemics, pandemics,199….

What of when the Executive itself is shaken to the core by an emergency or pandemic, partly because of underlying injustices, economic exploitation, corruption and poor governance?200 The science, technology, politics and meta discourse underlying COVID-19 aside, many African states including Kenya could not implement a lock down because of fear of demonstration leading to starvation and revolt, for instance, in fear that the residents of the named informal

adjudicatory authority of the Courts, in the public interest.” Applied in Platinum Distillers ltd v. Kenya Revenue Authority (2019) eKLR (Ruling, W. Korir, J) 194 Art 23(3)(d)…. Cf damages, account of profits…. 195 Art 23(3)(e)…. 196 Cf ICJ Kenya (2019) 60 Days of Independence: Kenya’s judiciary through three presidential election petitions, The Kenyan Section of the International Commission of Jurist (ICJ Kenya) and Journalists for Justice (JFJ), Nairobi. 197 …. 198 …. 199 CF Peter Kagwanja (2020) “Epidemics are slowly but surely remaking the world order,” Sunday Nation, Nairobi, 3/5/2020, at https://www.nation.co.ke/oped/opinion/Epidemics-are-remaking-the-world-order/440808-5540726- 14whl8kz/index.html (accessed 6/5/2020)…. What is the difference between epidemic and pandemic?... 200 Daniel Wesang’ula (2020) “Not at ease: How virus jolted Africa’s “big men”,” Sunday Standard, Nairobi, 3/5/2020, at https://www.standardmedia.co.ke/elections2017/article/2001369955/africa-s-big-men-and-the- coronavirus-response (accessed 6/5/2020); Protus Onyango (2020) “Crime, violence on the rise in slums amid pandemic,” Sunday Nation, Nairobi, 3/5/2020, at https://www.standardmedia.co.ke/article/2001369956/crime- violence-on-the-rise-in-slums-amid-pandemic (accessed 6/5/2020).

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settlements may seek support from or invade the leafy suburbs mentioned in brackets, among others ….Kibera (Karen?), Mathare (….Muthaiga?),…201

Thus, “inter arms leges silent.” Lord Atkin provided an excellent, theoretical and pragmatic postulate …. My considered opinion is that Lord Atkin’s dissent in the war time case of Liversidge v. Anderson (1941)202 is the law:

“In England [as is in Kenya and Africa], amidst clash of arms, the laws are not silent. They may be charged, but they speak the same language in war as in peace. It has always been one of the pillars of freedom. One of the pillars of liberty for which on recent authority we are now fighting, that judges are not respecters of persons, and stand between the subject and any attempted encroachment on his liberty by the Executive, alert to see that any coercive action is justified in law….”

Third, the lawyers, judges, magistrates, Constitution and the law generally should remain “neutral.”203

Review the conduct of the judiciary during electoral crises in 2007/2008; 2017/2018. What is the role of the judiciary in the contexts on an emergency, war, disaster? These are related to: mutiny,204 coup attempt, coup, coup attempt, coup plot, (popular) uprising; demos,205 revolt, or insurgency, protests206

To discuss the Judiciary in an emergency, war, disaster, revolution, curfew, lockdown,207 voluntary and compulsory testing, self or forced quarantine, self or forced isolation, contact tracing… in Kenya,208 Sudan, Algeria, France 2018/2019...209 South Africa,210 Malawi,211 Hon Kong,212 Venezuaela… India)?213 …

201 See…. 202 Liversidge v. Anderson (1941) UKHL 1. 203 Te be “neutral” or non-partisan in the context of oppression or a clash of values is to be partisan on the side of the oppresors…. 204 Cases on anti IEBC demonstrations (Justice Onguto? Chacha Mwita?), Mpeketoni, Boni curfew? NASA v. IG of Police & Others… 205 Upendra Baxi (2014) “Demosprudence versus jurisprudence: The Indian judicial experience in the context of comparative constitutional studies,” LJ 14 Macquarie, 3; Upendra Baxi (2016) “Law, politics and constitutional hegemony: The Supreme Court, jurisprudence, and demosprudence,” The Oxford Handbook of the Indian Constitution, ….94-109….. 206 cf IEBC.... 207 Cf Graham Kajiwa (2020) “Lockdown lowers virus cases by 40% in Africa, says World Health Organisation,” Sunday Standard, Nairobi, 3/5/2020, at 19, at https://www.standardmedia.co.ke/article/2001369952/lockdown- lowers-virus-cases-by-40pc-in-africa-says-who (accessed 6/5/2020). 208 Cases on anti IEBC demonstrations (Justice Onguto? Chacha Mwita?), Mpeketoni, Boni curfew? NASA v. IG of Police & Others… Pre 2017 elections on plots to deploy military…. 209 ….

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In such and related contexts, how do Kenyans and Kenyan courts address Executive and especially police excesses ….or “political justice” which public interest lawyer Dr Oki Ooko Ombaka contextualizes as the use of the criminal justice system (CJS) for political objectives?214

Some of the relevant provisions include Arts. 1, 10, 37, 38, 58, 132(4), 238? 240?215

Do courts have three questions? First, not to question any Executive action or omission or intention and threat?216 Second, to question all conduct in the usual manner?217 Third, to craft appropriate procedures, processes (Art. 159) and remedies under Art. 23, 159….?

What is a revolution in the Kelsenian? Marxian system? How have courts addressed cases before, including in ex parte Matovu;218 Grace Stuart Ibingira;219 Opoloto220 (Uganda), Lakanmi (Nigeria),221 Madzimbamuto (Southern Rhodesia, Zimbabwe),222 USA,223 UK224?

How has the Kenyan Judiciary addressed the following emergencies and disasters in terms of three issues. First, applying and proposing or adapting new substantive laws, rules and regulations through analogic and dialogic legal reasoning and analysis….225 Second, adapting and proposing rules of evidence and address the emergencies and disasters.

210 James Gant (2020) “Virus triggers African unrest: Riots break out in Johannesberg over food shortages and Lesotho’s under-fire Prime Minister deploys army to restore order as COVID-19 claims 1000 lives across the constinent-including Nigerian Presidential aide,” Daily Mail Online, April 18, 2020, at https://www.dailymail.co.uk/news/article-8232649/Virus-triggers-unrest-Africa-Riots-break-Johannesburg-food- shortages.html (acessed 27/4/2020). 211 …. 212 …. 213 …. 214 Oki Oooko Ombaka (1982) “Political justice in Kenya: Prelogomena to an inquiry into the use of legal procedure for political purposes in post Kenyatta era,” Varfassung und Recht in Ubersee/Law and Politics in Africa, Asia and Latin America, 393-420. 215 See also Chapter 6 on Legislative Power, Structure and Process in Kenya and Africa (state of emergency….) 216 Lord Atkin in Liversidge v. Anderson, “….the law and the Judiciary must speak even in war or revolutions.” Cf. in the face of arms, the law(yer)s are silent? “inter-arms leges: silent…?” No. Lawyers must always speak, even during COVID-19 pandemic…. to pursue a balance on life, liberty, security, health and justice 217 Cf An English judge stated “the justice of the common law will supply the omissions of the Legislature.” See…. 218 …. 219 …. 220 …. 221 …. 222 …. 223 …. 224 …. 225 ….

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Third, adapting or proposing rules of practice including filing, hearing, delivery of rulings and judgements….

The emergencies and disasters include, mutiny (1964); coup plot (1971); coup attempt (1982); the 1960s(?) secession (“Shifta”) war between the Kenya Somali and Kenya Government HIV/AIDS epidemic cases;226 the 2007/08 post election violence (PEV); Al Shabaab terror attacks, and the war in Somalia (2011-?);227 demonstrations and protests against electoral fraud, economic oppression, and poor governance under Kenyatta I, Moi, Kibaki and KenyattaII….?228

How have courts responded to the Corona virus (COVID-19) in Kenya,229 South Africa,230 Nigeria, Malawi,231 Uganda, Tanzania, the United Kingdom and USA? There are numerous issues arising in the context of COVID-19 some of which may be litigated immediately or well into the future.232 These includes proposed labour laws and regulations….233

There are at least three issues. First, cases have been filed and some decided in Kenya,234 Malawi,235 and South Africa,236 among others, to question the scope of COVID-19 regulations and protocols on lockdown, curfew, quarantine, isolation….237

226 …. 227 Cf. General Robert Kariuki Kibochi to lead the Kenyatta succession and Kenya’s withdrawal from Somalia? See Cyrus Ombati (2020) “New top soldier to oversee handover of power and KDF exit from Somalia,” Standard Digital, May 2, 2020, at https://www.standardmedia.co.ke/article/2001369849/the-powerful-man-in-uhuru- succession (accessed 6/5/2020). Mary Wambui (2020) “General Kibochi takes over as head of KDF,” Daily nation, Nairobi, May 12, 2020, at 9. 228 See decisions by Mwita, Odunga, Weldon Korir, Kiage, Mumbi,, Onguto, Supreme Court…. 229 Law Society of Kenya v. Hillary Mutyambai & Others, Petition No. 120 of 2020 (COVID 025); at page 70 on (cite and IFLAC)…. “dog-like” burial of Oyugi in Kamaluanga, Ugenya, Siaya County, (2020). See Dicken Wasonga (2020) “Siaya burial: County distances itself amid criticism,” Daily Nation, April 13, 2020, at https://www.nation.co.ke/counties/siaya/Siaya-man-burial-sharp-criticism-county-distances/1183322-5522504- hjrqdyz/index.html (accessed 6/5/2020)…. Any cases on police brutality during curfew? ….Police detention or quarantine and demand for bribes?.... 230 A court ruled that an individual could not go to burry a family member…. See Franny Rabkin (2020) “High Court refuses application to cross provinces for funeral,” Mail & Guardian, Johannseberg, South Africa, March 28, 2020, at https://mg.co.za/article/2020-03-28-high-court-refuses-application-to-cross-provinces-for-a-funeral/ (accessed 21/4/2020). Some have demonstrated and litigated against lockdown, forced and self-quarantine, social distancing… see… 231 Human Rights Defenders Coalition (HRDC) v. Attorney General, High Court of Malawi 232 …. 233 Cf. Cyrus Ombati & Roselyn Ombaka (2020) “Return to work for workers who test positive for COVID-19 patients,” Sunday Standard, Nairobi, 3/5/2020, at 19, at https://www.standardmedia.co.ke/article/2001369951/return-to-work-rules-for-workers-who-catch-virus (accssed 6/5/2020). 234 …. 235 …. 236 High Court of South Africa Mpulamalange Division (per Justice Roelofse AJ (Ag Judges) judgement of 27/3/2020.

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Second, in Kenya, Chief Justice David Maraga238 and the National Council on Administration of Justice (NCAJ) have issued various and even contradictory practice directives and directions, respectively in the age of COVID-19.239 These included limiting physical appearance in court and enhancing online court processes; then upscaling;240 then reversing the upscaling decision….241

Third, the Law Society of Kenya’s (LSK’s) presidential and council transition to President Nelson Andayi Havi from President Allen Waiyaki Gichuhi, has largely been effected through digital platforms, including Facebook, Zoom, Microsoft Teams, Microsoft Video Conference,242 Google meet, Google video calls, Google Classroom,….

Numerous LSK and academic actions are also processed online, including a call for articles for a special edition of the Advocate magazine on legal aspects COVID-19 (Corona virus) in Kenya.243 Some Law Society of Kenya (LSK) Constinuous Professional development (CPD) seminars.

Significantly, President Havi has led the LSK in litigating244 matters related to Executive and Chief Justice’s (in)actions on COVID-19.245 He and Vice President Caroline Kamende Daudi have also led LSK in raising funds for needy or vulnerable LSK members and Kenyan public.246

The question for a balanced approach to lawyering and judicial work is at least four pronged. First, life and health of judges, magistrates, kadhis, judicial officers and staff, lawyers, and court users…. Second, the Constitution, the rule of law, human rights, and constitutional democracy demand that at any given time, all the three arms of government must check and complement one another. And the National Assembly and the Senate recognized this and started a balanced minimal approach while observing the Ministry of Health COVID-19 protocols, and enhanced or

237 …. 238 Practice Directions for The Protection of Judges, Judicial Officers, Judiciary Staff, Other Court Users and the General Public from the Risks Associated with the Global Corona Virus Pandemic, Gazette Notice No. 3137, Kenya Gazette Vol. Cxxii—No. 67 Nairobi, 17th April, 2020. 239 National Council on the Administration of Justice (2020) press statement: Statement on the Justice sector operations in the wake of COVID-19 pandemic.. 240 …. 241 Cf. Sekou Owino (2020) “Virus or no virus, Courts must dispense justice,” Sunday Nation, Nairobi, 3/5/2020, at 33, at https://www.nation.co.ke/oped/opinion/Virus-or-no-virus--courts-must-dispense-justice/440808-5540744- 6swe9uz/index.html (accessed 6/5/2020). 242 See Judiciary (2020) Video Conferecing (VC) Giiedelines… 243 See circulars on transition by President Nelson Andayi Havi and Allen Waiyaki Gichuhi…. March 2020. 244 … 245 See… 246 ….

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upscaled online processes…. Third, in the absence of Judiciary, Executive, and especially, police brutality, execution, and tyranny have increased. Fourth, legal and judicial services are professional and occupational connect to many. It is also a bread and butter question. Does the Chief Justice’s abdication mean that judicial and legal services are totally disreputable?

8.22 Securing Independence, Performance and Accountability of the Judiciary in Kenya and Africa247 In this section, we analyze interretaed issues and debates regarding the quest for judicial independence, performance and accountability in Kenya and Africa. The focus is on the debates that preceded or informed the BBI process. These fall into three prongs.

8.22.1 Challenges to the judicial functions in Kenya and Africa First, the judicial power, function, and performance are anchored in Articles 10, 21, 22, 23, 24, 25, 38, 47, 159 and 172 of the Constitution. These find support in Articles 1(1),248 2(1) and 3(1). Let us consider these weighty constitutional questions in the conjuncture of the siege on the judiciary by the President, Director of Public Prosecutions (DPP) and some legislators and in the Kenyan quest for the rule of law, due process, human rights, constitutional democracy, social justice and the public interest. Under Article 159(1):

“(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under this Constitution.”

This power is based on and supported by Arts 1(1) and 1 (3) which state thus:

“(1) All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution. And “(3) Sovereign power under this Constitution is delegated to the following State organs, which shall perform their functions in accordance with this Constitution: ... (c) the Judiciary and independent tribunals.”

The foundation of the judicial function in popular sovereignty has been correctly interpreted by Justice George Vincent Odunga (“Lord Denning” as many lawyers call him249) in the following terms: “Whereas, under Article 3(1) of the Constitution, every person has an obligation to respect, uphold and defend the Constitution, pursuant to Article 165(3)(d) of the Constitution, the arm that is constitutionally mandated with the task of deciding whether anything said to be done under the

247 Roles of JSC; Magistrates and judges…. Roles of the Chief Justice (CJ); President, Principal, Presiding Judges…. election of judges and magistrates to Judicial Service Commission (JSC), KMJA …. power to sermon “any person” 248 See below…. 249 See also the appropriate WhatsApp fora for Nairobi and Kenyan lawyers generally….

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authority of this Constitution or of any law is inconsistent with, or in contravention of, this Constitution is the High Court. To my mind, courts are the best suited institutions to deal with such matters since they do not owe their allegiance to partisan political interests but to the Constitution – since we are a constitutional democracy.”250

That judicial power is intended to enjoy and promote judicial independence (Article 160) and accountability to the people (Articles 1 and 159). Both are mutually interdependent and reinforcing. The independence and accountability are institutional, structural or collective (the judiciary, courts, tribunals, bodies, judges, magistrates, judicial officers, judicial staff…. as a whole). They are also decisional (individual or personal).

Article 160 is a four-pronged elaboration of judicial independence:251 First, the Judiciary, as constituted by Article 161, shall be subject only to the Constitution and the law and not be subject to the control or direction of any person or authority. Second, security of tenure is guaranteed. Third, guaranteed fair remuneration. Fourth, limited personal immunity (from suits) regarding decisions made in good faith under Article 160 (2)-(5) with respect to judges. And fifth, judges and JSC commissioners enjoy security of tenure.252

Judicial independence and accountability are elaborated and mechanisms provided, on the review, appeal processes, on security of tenure of judges, on discipline and removal of judges and magistrates and on the Judiciary Fund. These are provided for respectively under Articles 172(1) and 159(2)(d), 24 (balancing rights and power), 259 (1) (a), (b), (d)...; Articles 162, 163, 164, 165, 166, 167, 168, 169, 170, 171.

Art 172(1) states:

“(1) The Judicial Service Commission shall promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice.” JSC’s core mandate, as discussed above, is five-pronged.253 First, recommend to the President persons for appointment as judges; Second, “review and make recommendations on the conditions of service of: (i) judges and judicial officers, other than their remuneration; and (ii) the staff of the Judiciary.”

250 Justice George Vincent Odunga (2019) “Are courts the culprits?” Nairobi Law Monthly, Nairobi, January 5, 2019. 251 See Chapter 8.5, 8.8 above…. 252 …. JSC Act…. 253 ….

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Third, to appoint, receive complaints against, investigate and remove from office or otherwise discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the manner prescribed by an Act of Parliament. Fourth, “prepare and implement programmes for the continuing education and training of judges and judicial officers. And fifth, advise the National Government on improving the efficiency of the administration of justice.”254 Remarkably, as part of judicial accountability, the Constitution requires judicial officers to prioritise substantive justice over procedural technicalities. Article 159(2)(d) stipulates that:

“(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles:...(d) justice shall be administered without undue regard to procedural technicalities.”255

Judicial independence is linked to judicial accountability. And there is consensus from among diverse scholars and judicial officers from diverse backgrounds. Yash Vyas in “The Independence of the judiciary: A third world perspective,”writes:

“Independence [of the judiciary] does not mean independence from broad accountability to the nation or its goals and objectives.”256

And I was once inspired to advance the accountability principle in a presentation to the Institute of Certified Public Accountants of Kenya (ICPAK) on Judiciary. I argued thus:

“Accountability is one of the cornerstones of good governance and requires the due performance of tasks or functions by an individual or agency [like the Judiciary]. Such a mandate and performance are subject to another’s oversight, direction or request that the individual or agency provides information or justification for its action [or omission]. Thus accountability exists where persons in authority [like judges and magistrates] are answerable for their actions and there is transparency in leadership.”

In similar vein, former Supreme Court Justice JB Ojwang’, a conservative pro-presidential judge and scholar states in Ascendant Judiciary in East Africa: Reconfiguring the Balance of Power in a Democratizing Constitutional Order, (2013): “While the Constitution requires all State organs to perform their part in giving fulfilment to the Constitution, the ultimate arbiter is the Judiciary, which has unlimited powers of interpretation. Interpretation of the Constitution and of any law, is far-removed from a condition of violence, tumult, or hurt to anyone, as the Judiciary’s operations are minutely governed by known law and

254 …. 255 See Chapters 5, 5A, 8A, 8B….. above. 256 Yash Vyas (1992) “The independence of the Judiciary: A Third World perspective,” Vol. 11, Third World Legal Studies 127-177.

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procedure; and this justifies the standing of the judicial function as the essential underpinning of the new constitutional dispensation.”257

This is part of the problematique of the judicial function: the judiciary does not have unlimited interpretative jurisdiction. As discussed above, it is limited by the accountability principle, by constitutional and legal provisions, and ultimately popular sovereignty (Arts 1, 159, 160). And yes, the Judiciary’s lack of accountability has often hurt most Kenyans, especially through unfair determination of cases on presidential elections or corruption, and through other contrived orders, rulings or judgments. But the judiciary must be independent.

8.22.2 Separation of Powers as an Aid Judicial Independence in Kenya and Africa The second broad attack on the Judiciary relates to separation of powers which has been resorted to especially by President Kenyatta and some legislators like the National Assembly Jubilee’s Majority Leader Aden Duale and Senate Majority Leader Kipchumba Murkomen. Murkomen later seemed to (belatedly?) recognise judicial independence when some of his political associates were under police scrutiny and arrest.258

Some have argued that separation of powers means that the Legislature is supreme on law making, the Executive in administration and execution of the law, and the Judiciary on interpretation of the law. And that separation of powers as well as the “political question” doctrine restrain the Judiciary from hearing or deciding matters which belong to the two political branches.259

President Kenyatta, Mr Aden Duale and others argued that separation of powers was the basis of judicial “restraint.” To them, this negated judicial “activism” and thus permitted presidential and Executive imperialism and impunity, as well as tyranny and overreach, respectively.

For instance, in a dissent in the Presidential Election Petition No 1, 2017, Raila v. IEBC and Others,260 Justice (Rtd) JB Ojwang’ argued counter-textually (contra Article 140 Constitution) that the Supreme Court had no power under the separation of powers doctrine to determine presidential elections.261

Following the Supreme Court nullification of his “election,” President Kenyatta argued rhetorically that “four judges” could not overturn the decision of “40 million” Kenyans. He then

257 Yash Vyas (1992) “The Independence of the Judiciary: A Third World Perspective,” Vol. 11, Third World Legal Studies, 127-177. My emphasis. 258 …. 259 They are partly called political branches because the top officials are elected and are expected to govern through political compromises in a compromise tp the strict legal or judicial structures of the judicial processes… 260 It was a 4-2 decision: David Maraga CJ, Philomena Mwilu, DCJ, Smokin Wanjala, SCJ and Issac Lenaola, SCJ. 261 ….

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threatened to “revisit” the judiciary and judges whom he called wakora (or crooks). And soon enough, the DCJ Philomena Mwilu was arrested even as President Kenyatta and Mr Aden Duale continued to harangue, ethnically profile some (identified) judges and magistrates.262

In the same vein some legislators claimed separation of powers and ouster of the court’s jurisdiction or power on important issues such as section 11 of the Powers and Privileges Act (PPA) of 2017.263

The section read:

“No proceedings, elections or decision of Parliament or the Committee of Powers and Privileges acting in accordance with this Act shall be questioned in any court.”264

The Legislators had sought to immunize or to insulate themselves against any form of accountability for the decisions and bills they pass. Section 11 was nullified by the High Court….

And in some cases where the Judiciary or specific judges and magistrates have interpreted, construed or enforced the law, the National Assembly (NA) has responded in kind by unconstitutionally, illegally, unlawfully, unreasonably and irrationally reducing the budget of the Judiciary and JSC. For instance, the Judiciary had requested about KES 31.2 billion in the 2017/2018 budget but the National Assembly cut this to KES 14.8 billion.265

And President Kenyatta later purported to allocate KES 17.3 billion.266 Was President Kenyatta seeking presidential legitimacy and supremacy vis-a-vis the Judiciary and the budgetary process that is supposed to be participatory, consultative and consensual under chapter 12 of the Constitution?267 Or was it a populist stance to delegitimize the Judiciary and elevate the President as the do-gooder? Happily, Chief Justice David Maraga partially responded through soft politics by calling it what it was: ‘strangulation of the Judiciary.’

As discussed above, and especially under Article 160, separation of powers must always be read together with checks and balances. “Political question” is not textually supported. And it rests on a narrow a historical conceptualization of “politics.”268

262 …. 263 …. 264 My emphasis. 265 …. 266 …. 267 See Chapter 6 on Legislative Power, Structure and Process in Kenya and Africa and Chapter 7 on Executive Powers and functions in Kenya and Africa: Concepts, Theory, History and Practice…. above. 268 See Chapters 1, 5A on politics; politicization of the administrative Judiciary, politicization of Legislation; juridification of politics; judiciary, judicialization of politics…. See also “political justice”…. Oki Ooko-Ombaka

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The Judiciary has the power to settle or resolve all disputes subject only to the people, the Constitution and the law. The Judiciary has jurisdiction to decide substantive issues (or on merit) and review the process where the President, the Executive, the Legislature (National Assembly (NA), Senate, County Assembly) or lower courts, tribunals, and bodies have not followed the Constitution, the law or rules and regulations governing their own procedures. For instance, Justice Mohamed Warsame had been elected by Court of Appeal Judges to join the JSC under Art 171(1) but President Kenyatta refused, neglected or failed to appoint him as required by law.

In fact, President Kenyatta II and some Jubilee legislators wanted him vetted by the National Assembly which acts as President Kenyatta’s rubber stamp. Progressive Kenyan lawyers and even the LSK argued that section 15(2) of the Judicial Service Act 2015 was unconstitutional for purporting to give the President a role the Constitution had not assigned him regarding persons elected pursuant to Article 171(2) (b) (c) (d) (f) and (g) of the Constitution, and amounted to a an unlawful exercise of state authority contrary to the Constitution.269 And that it is a threat to the independence of the Judiciary.270

Relatedly, President Kenyatta has utilized every opportunity to secure JSC Commissioners on a tribal basis so as to control JSC. Critics argue that in a JSC of eleven (11) in the 2016-2020 period, four (4) being Kikuyu and two of these were as “public representatives” while the other two include the Attorney General and one Law Society of Kenya (LSK) elected member (Ms Mercy Deche). Until the appointment of Prof Margaret Kobia as Cabinet Secretary, there were a total of five commissioners from the Kikuyu tribe vis-à-vis 42-75 Kenyan tribes.

President Kenyatta had declined to swear in Justice Mohamed Warsame who had been re-elected to represent the Court of Appeal in the JSC. Significantly, in Law Society of Kenya v. Attorney General & Another; Justice Mohamed Abdulahi Warsame & Another, High Court Justice Mwita ordered the Chief Justice Maraga and JSC to facilitate Justice Warsame to take his position at the JSC.271 Thus Justice Chacha Mwita of the Constitutional and Human Rights Division ruled on 18/1/2019 that an administrative action such as the President’s appointment cannot hold a constitutional process hostage.

Justice Mwita held that:

“The President’s action has been challenged as not founded on any legal pedigree and the court has found the action to be in violation of the constitution and the law which makes it invalid, with

(1982) “Political Justice in Kenya: Prolegomena to an Inquiry into the Use of Legal Procedures for Political Purposes in Post-Kenyatta Era,” Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and Latin America, 393-420. 269 In Law Society of Kenya v. Attorney General & Another; Justice Mohamed Abdulahi Warsame & Another… 270 See Chapters 1, 2, 3, 4, 5A…. on Tribes and Tribalism; Law Society of Kenya & Another v. National Assembly of the Republic of Kenya & 3 Others [2018]…. 271 Law Society of Kenya & Another v. National Assembly of the Republic of Kenya & 3 Others [2018]

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the consequence that the 1st interested party and all those concerned can ‘safely disregard it,’ so that an administrative act is not allowed to frustrate a constitutional process.”272 Justice Mwita elaborated:

“In that regard, it is this court’s view that the 1st interested party having been elected as required by the constitution and the law, but the President has failed to perform his duties as required by law without constitutional or legal justification, the court should grant an appropriate relief that should deem the 1st interested party to have been appointed to enable him take his position in the Commission to representative [sic: as representative] of Judges of the Court of Appeal. This view is informed by the fact that, it is not the President’s act of appointment that makes the 1st interested party a commissioner but his election.”273 The judge ruled that Justice Warsame takes his position in JSC immediately.

In an earlier (related) petition in Law Society of Kenya & Another v. National Assembly of the Republic of Kenya & 3 Others [2018], Justice Mwita had stated thus on the independence of Judiciary:

“The people of Kenya made a deliberate decision on how they wanted JSC constituted and its members appointed. This was intended to guarantee independence to JSC and by extension to the Judiciary. Independence of the Judiciary cannot be delinked from that of JSC because Article 172(1) of the Constitution mandates JSC to promote and facilitate independence of the Judiciary. JSC cannot do so if it is not independent. Subjecting persons duly elected by peers as required by the Constitution to approval by the National Assembly will not only expose them to ridicule, possible political patronage and horse trading, but would also defeat the spirit of the Constitution, thus interfere with independence of JSC and ultimately, that of the Judiciary.”274 Thus the “political question” doctrine does not apply under Kenya’s constitutional text and intendment or spirit as well as Kenya’s constitutional and legal sociology or constitutional and legal method and system at all or as it does on defence and foreign policy matters in the US.

Relatedly, the Judiciary, judges and magistrates have also helped check legislative tyranny and overreach through unconstitutional laws in at least three matters. First, Security Laws Amendments in 2014. Second, the Legislature’s failure to play the oversight role on the President and the Executive. And third, by judicially and politically responding to attacks by the President, the Executive generally and some legislators.

The Judiciary and specific judges and magistrates should continue to question presidential and Executive (ODPP and the DCI’s) imperialism and impunity. This is especially with regard the judicial function or role even in politicised Executive corruption cases. These include, the

272 Ibid. My emphasis. 273 Law Society of Kenya & Another v. National Assembly of the Republic of Kenya & 3 Others [2018]. Cf the technicalities of swearing in a rigged in President vis-a-vis people’s presidents in Kenya and Africa…. 274 Paragraph 93 of the Judgment in Law Society of Kenya & Another v. National Assembly of the Republic of Kenya & 3 Others, Petition 106 & 119 of 2018, Nairobi, High Court (Coram….).

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National Youth Service (NYS), and the Kenya Power and Lighting Company (KPLC),275 Standard Gauge Railway (SGR),276 the Kenya Pipeline Corporation (KPC),277 and the non- prosecuted matters like Eurobond, (SGR), MAfya (or Health Ministry), or KES 10,000 bribes in the National Assembly278, among others.

8.22.3 Political Engagement for Judiciary Independence and Reforms in Kenya and Africa Third, and partly based on the foregoing and emerging context, there is need for appropriate political engagement by the Judiciary, including courts, tribunals, judges, magistrates as well as the leadership through the Chief Justice (CJ), Deputy Chief Justice (DCJ), Judicial Service Commission (JSC), Kenya Magistrates and Judges Association (KMJA), National Council on Administration of Justice (NCAJ), Law Society of Kenya (LSK), the private sector, and civil society organisations (CSOs).

The two key reasons are that the judicial power, function, performance and even survival are political matters. They are about decision making; about making choices where there are competing interests and options, and especially questions presidential and Executive power. It is thus political in the positive sense; politics of capital “P”. Not the politics of small “p”: not the politics of intrigue, fitina, propaganda, or uchochezi (subversion?).

As Yash Vyas states, “Judges are parts of the machinery of authority within the state and as such cannot avoid performing political functions.” He adds:

“In supporting the institutions and stability of the system of government, the judges do perform a political function. The judiciary is not only a legal but also a government institution and therefore political in nature.” The second reason is because in the 2015-2020 period President Kenyatta, the Executive (especially the Director of Public Prosecutions (DPP) and the Director of Criminal Investigations (DCI)), some legislators and some lawyers engaged in high octane politics to discredit and delegitimize the judiciary, judges and magistrates. As human rights activist Maina Kiai argued,, the intention is to turn the spotlight away from the impunity in the Presidency and the Executive as well the Executive’s actions and omissions that have perpetuated corruption. To what effect? Maina Kiai states:

“But there is also a hidden agenda in discrediting the courts: It prepares the public to be sufficiently malleable to accept a particular woman as Chief Justice once Deputy Chief Justice...

275 …. 276 …. 277 …. 278 ….

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is dispensed with and Chief Justice David Maraga retires. For this particular woman has proven a diligent protector of the Gikuyu mafia, no matter the law or facts.”279 And some said three answered to that identity of the “CJ presumptive….”280 Another objective could be to secure an opportunity to reconstruct the Judiciary to be subservient to the President through a constitutional amendment. Thus, soft politics and “fighting or playing dirty”281 becomes relevant through what former Chief Justice Dr Willy Mutunga calls the role of the Judiciary as an “institutional political actor.”282

Judicial philosophy, theory, vision, policy, strategy, tactics and response to presidential and parliamentary political power play (5Ps) should of necessity be grounded on the key issues discussed earlier on the judicial power, function, independence and accountability. Judicial decisions must be grounded on the Constitution and the law in a political and technical sense (Article 1, 2, 3, 159, 160, 172). These include direct application of the Constitution and the law, or valid derivation from the constitutional, juridical and regulatory texts, spirit and intendment.283

To be sure, Chief Justice Maraga has sometimes responded to attacks on the Judiciary on one important occasion, he stated:

“If, for whatever reason, you think you might not win a case, then if you bring it to court you know the result. It will be dismissed.”284 He elaborated.

“If you bring a hopeless case, we will say in our judgment why we are dismissing it, and the public will know where to place the blame. If you bring us a strong case and we are the ones playing monkey business, the public will also see.”285 And during the anti-corruption conference in Nairobi on 25/1/2019, the Chief Justice boldly responded thus:

279 Maina Kiai (2019) “We can have inclusiveness without changing the Constitution,” Standard Digital, Nairobi, January 20, 2019, at https://www.standardmedia.co.ke/article/2001310043/we-can-have-inclusiveness-without- changing-the-constitution (accssed 21/4/2020). 280 …. 281 Willy Mutunga (2020) “People power in the 2010 Constitution: a reality or an illusion?” The Elephant, Nairobi, at https://www.theelephant.info/op-eds/2020/03/06/people-power-in-the-2010-constitution-a-reality-or-an-illusion/ (accessed 16/4/2020). 282 Willy Mutunga (2020) “People power in the 2010 Constitution: a reality or an illusion?” op, cit. 283 …. 284 Abiud Ochieng and David Mwere (2019) “Maraga tells critics to stop accusing Judiciary of laxity,” Daily Nation, Nairobi, January 15, 2019, at https://mobile.nation.co.ke/news/Maraga-tells-critics-to-stop-accusing-Judiciary-of- laxity/1950946-4935190-125spd2/index.html (accessed 16/4/2020). 285 Ibid.

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“Since I am in the dock, I am going to be very candid. The war against corruption is not going to be won by blame games by people who are involved, and some are here, hiring professional bloggers to demonise the Judiciary”....286 President Kenyatta, the DPP, DCI and other officials in the Executive had reiterated attacks on Judiciary, blaming it for the failure in the fight against corruption. The Chief Justice (CJ) appropriately clarified on the separation of powers, checks and balances and accountability in the adversarial (as opposed to inquisitorial) justice system:

“...The judiciary doesn’t go out there to look for cases. Those people who are aggrieved come to us, we must hear them and if they have no basis dismiss them and uphold them if they have a basis.”287 The Judiciary, on the other hand, has also blamed the DCI and the DPP of not supplying sufficient evidence to the courts to procure convictions. This is in addition to what the Chief Justice termed as “poorly drafted and duplicated charges.”288 According to the CJ, some cases take long to take off due to the number of charges and accused persons289 contained in one single charge sheet.290

A related case regarding institutional rivalry is the case against former Managing Director of Kenya Ports Authority, Daniel Manduku. In this instance, Manduku was arrested and arraigned in court by the DCI only for the DPP to dispute the charge sheet.291

Second, and to be sure, the interpretation, construction, execution, administration, application and enforcement of the Constitution and the law must be pro-people, founded as it must be on popular sovereignty (Articles 1(1), 1(3)). Third, judicial decisions must be founded on judicial integrity (Arts 10, chapter 6, Art 232). The alternative is direct or indirect judicial participation, collusion, connivance or acquiescence in corruption through cartels controlled by judicial

286 Ibid…. The CJ spoke during the swearing-in of the new Ethics and Anti-Corruption Commission Chief Executive Officer Twalib Mbarak at the Supreme Court in Nairobi, where he also advised that investigative agencies must be thorough if they expect convictions. 287 Abiud Ochieng and David Mwere (2019) “Maraga tells critics to stop accusing Judiciary of laxity,” Daily Nation, Nairobi, January 15, 2019, at https://mobile.nation.co.ke/news/Maraga-tells-critics-to-stop-accusing-Judiciary-of- laxity/1950946-4935190-125spd2/index.html (accessed 16/4/2020). 288 Nancy Agutu (2019) “Maraga hits back at DPP, DCI over prosecution cases,” The Star, Nairobi, January 25, 2019, at https://www.the-star.co.ke/news/2019-01-25-maraga-hits-back-at-dpp-dci-over-prosecution-cases/ (accessed 25/3/2020). 289 Or numerous charges and numerous accused persons. For instance, the National Youth Service scandal cases, the Kenya Revenue Authority case, and the Goldenberg case. 290 Nancy Agutu (2019) “Maraga hits back at DPP, DCI over prosecution cases,” The Star, Nairobi, January 25, 2019, at https://www.the-star.co.ke/news/2019-01-25-maraga-hits-back-at-dpp-dci-over-prosecution-cases/ (accessed 25/3/2020). 291 Sara Okuoro (2020) “No charge registered: KPA MD Daniel Manduku released,” Standard Digital, Nairobi, March 3, 2020, at https://www.standardmedia.co.ke/article/2001362738/court-orders-release-of-kpa-md-daniel- manduku (accessed 25/3/2020).

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officers, politicians, the Executive or lawyers and will compromise judicial accountability and even independence at two levels.

First, JSC would have to discipline, remove (like magistrates) or recommend the removal of the officers (like judges). Second, such corruption or lack of integrity has given and will give the President, Executive and some legislators the basis to delegitimize or discredit the Judiciary and judicial function, the motives notwithstanding.

Judges and magistrates must, as William Shakespeare the English dramatist and poet stated, be like Ceasar’s wife, “blameless and without blemish.”292 Where there are integrity challenges, they and JSC must address these immediately to restore integrity and avoid eternal condemnation as ruled by Justices Joel Ngugi, Mumbi Ngugi, and G. V. Odunga293 in Mumo Matemu v. Trusted Society of Human Rights Alliance (2012).294

Significantly, judicial corruption and lack of integrity have sometimes accused the public to be ambivalent on (the need for) judicial independence. And some have questioned judicial accountability. Hence the Judiciary may lose the people when the Judiciary are, pro Legislature, or where they lack integrity, or where they are “more executive minded than the executive” as Lord Atkin opined in Liversidge v. Anderson.295

Some of the challenges to the Judiciary and JSC relate to fair and equitable rulings and judgments; consistency in legal method, especially on precedent and stare decisis. This is especially on election cases, corruption cases and cases where the Presidency has a personal or institutional interest in the JSC membership including election of the judicial and LSK representatives.296

And critically, JSC would soon have to decide or influence the decision on vacancies in the CJ’s office,297 and in the office of the Justices of the Supreme Court arising from retirement, or arising from presidential or executive “revisit.”298

292 …. 293 Name the other judges in the text. 294 Mumo Matemu v. Trusted Society of Human Rights Alliance (2012) EKLR, Petition No. 229 of 2012. Cf Mumo Matemu v. Trusted Society of Human Rights Alliance (2013) eKLR, Civil Appeal No. 290 of 2012; Cf Mumo Matemu v. Trusted Society of Human Rights Alliance (2014) eKLR, Civil Application No. 29 of 2014. 295 Liversidge v. Anderson [1941] UKHL 1 Quote Lord Atkin and the case fully Ben Sihanya (2019) “Securing judicial independence and accountability in Kenya,” Vol 10, Issue No 11, Nairobi Law Monthly, 38-43…. 296 …. 297 Maraga was set to retire in 2021…. JB Ojwang retired in early 2020… Justice Mohamed Ibrahim had health and age challenges…. 298 In 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 the court ruled that any reasonable person would conclude that the DCJ was being prosecuted pursuant to President

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The JSC also appointed judges of the Court of Appeal and the Employment and Labour Relations Court, and the Environment and Land Court in the period of July and August 2019.299….. President Kenyatta refused to gazette the 41 judges and the A-G argued in Law Society of Kenya v. A-G300 in the High Court that some of the judges had integrity issues or questions….. The Head of Public Service Mr Kinyua was also involved in this Judges case.301

JSC argued that the Executive had been asked for comments pending the interviews and had not submitted any…. A three judge bench of the High Court empaneled by the Chief Justice David Maraga returned a unanimous verdict that President Kenyatta’s refusal to gazette the Judges was unconstitutional. The A-G indicated an intention to appeal….302

8.23 Contempt of Court 303 Sub Judice, Fusion of Powers and Impunity v. Rule of Law… in Kenya and Africa Contempt of court and sub judice are increasingly being important. They relate to the authority and dignity of courts.

The Contempt of Court Act defines contempt under sec. 4 as follows:

“4. (1) Contempt of court includes- Contempt of Court. civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court; criminal contempt which means the publication, whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters or the doing of any other act which scandalizes or tends to scandalize, or lowers or tends to lower the judicial authority or dignity of the court; prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct the administration of justice.

Section 4 of the Contempt of Court Act continues:

“(2) In any case not relating to civil or criminal proceedings as contemplated under subsection (1), an act that is willfully committed to interfere, obstruct or interrupt the due process of the administration of justice in relation to any court, or to lower the authority of a court, or to

Kenyatta’s threat to revist, probably because DPP and DCI are branches of the Executive headed by by President Kenyatta; President Kenyatta still pursued the “revisit” against the Deputy Justice Philomena Mwilu through to 2020…. 299 Law Society of Kenya v. Attorney General & 2 Others (2016) eKLR, Petition No. 313 of 2014; …Adrian Kamotho Njenga v. Attorney General; Judicial Service Commission & 2 Others (Interested Parties) (2020) eKLR, Petition No. 326 of 2019. 300 Law Society of Kenya v. Attorney General & 2 Others (2016) eKLR, Petition No. 313 of 2014 301 …. 302 Adrian Kamotho Njenga v. Attorney General; Judicial Service Commission & 2 Others (Interested Parties) (2020) eKLR, Petition No. 326 of 2019. Status of Apeal? 303 Cf. authority, dignity, integrity of judiciary, courts….what of NA? Senate? County Assembly?

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scandalize a judge, judicial officer in relation to any proceedings before the court, on any other manner constitutes contempt of court.”304

The Black’s Law Dictionary (Ninth Edition) defines contempt of court as: “Conduct that defies the authority or dignity of a court. Because such conduct interferes with the administration of justice, it is punishable usually by fine or imprisonment.”

Contempt of court is a crime,305 a civil wrong,306 and is generally punishable by the court for showing disrespect. The most common example of contempt is the disobedience of a court order.

In Halsbury’s Laws of England it is stated:

“It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt and punishable by committal or attachment….307 an application to court by him not being entertained until he had purged his contempt….”308

Contempt of court proceedings are necessary for the rule of law and administration of justice to be effective and efficacious in securing compliance with the orders of the court. In the case of Johnson v. Grant, (1923) at 790 Lord President Clyde stated that:

“....The law does not exist to protect the personal dignity of the judiciary309 nor the private rights of parties or litigants. It is not the dignity of the court which is offended. It is the fundamental supremacy of the law which is challenged.310” In Teachers Service Commission v. Kenya National Union of Teachers & 2 Others311 the court opined: “The reason why courts will punish for contempt of court then is to safeguard the rule of law which is fundamental in the administration of justice. It has nothing to do with the integrity of the judiciary or the court or even the personal ego of the presiding judge. Neither is it about placating the applicant who moves the court by taking out contempt proceedings. It is about preserving and safeguarding the rule of law. A party who walks through the justice door with a court order in his hands must be assured that the order will be obeyed by those to whom it is directed.”

304 Contempt of Court Act, No. 46 of 2016, sec. 4. The Act was declared unconstitutional bu Justice Mwita in Kenya Human Rights Commission v Attorney General & another (2018) eKLR, Constitutional Petition 87 of 2017. 305 …. 306 …. 307 E.g… 308 In Maina Kiai v. Independent Electoral and Boundaries Commission case, we argued that IEBC represented by Paul Muite, should have …. Contempt by opening servers in Raila Odinga v. IEBC, 2017 before unprocedurally appealing: he who comes to equity must come with clean hands. 309 See Republic v. Nowrojee (IFLAC)…. 310 Johnson v. Grant, 1923 SC 789. 311 Teachers Service Commission v. Kenya National Union of Teachers & 2 Others [2013] eKLR.

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There was a finding by the High Court in Miguna Miguna v. Director of Public Prosecutions & 2 Others [2018]312 that the Director of Criminal Investigations (DCI) and the Inspector General of Police were in contempt of court for failing to produce Mr Miguna Miguna in court after an order was issued following his arrest.313

Kenya had enacted a Contempt of Court Act that was assented to in December 2016. In Kenya Human Rights Commission v. Attorney General & Another,314 Justice Mwita found that the entire Act fails the constitutional test of validity for lack of public participation and for encroaching on the independence of the judiciary.315

The Judiciary is the fountain of justice. The ultimate constitutional interpreter, subject to the Constitution, the law and popular sovereignty. The Supreme Court and the Judiciary at large is, as stated by Senior Counsel Fred Ojiambo, the exponent of national values and a safeguard for integrity.

8.24 Summary of Findings, Conclusions and Reforms Judiciary in Kenya and Africa This Chapter 8 addressed three research questions and arguments on judicial powers, functions, and independent accountability in Kenya and Africa. We made three key findings. First, the Judiciary is one of the three co-equal arms of Government. It is not “the third arm”…. It includes the courts, tribunals, and “bodies” and indeed judges, magistrates, kadhis, judicial officers and judicial staff.

Second, the juridicial power, function and structure has been adversely affected by politicization of the Judiciary,316 judicialization of politics,317 and juridification of society, politics and political economy in Kenya and Africa.318 Third, reform, including debates in the context of the Building Bridges Initiative (BBI) (have) rightly addressed the question of separating the Judiciary and the Judicial Service Commission (JSC).319

312 Miguna Miguna v. Director of Public Prosecutions & 2 others [2018] eKLR…. 313 IFLAC…. 314 Kenya Human Rights Commission v. Attorney General & Another [2018] eKLR, Constitutional Petition 87 of 2017. 315 The fall back position would then be JA…. And then law of England. What has been done about it?.... Why should Kenyan law still be tied to English law of (pre) colonial vintage, or at all in the light of important developments in the rule of law, human rights, and constitutional democracy and legal sociology under the 2010 Constitution and transnational law. 316 …. 317 …. 318 319 See submissions by the Judicial Service Commission (JSC) (not Judiciary?) to the Building Bridges Initiative (BBI). One of the key proposals was that the Chief Registrar of the Judiciary (CRJ) remains the accounting offices of the judiciary while a separate officer be appointed the Secretary for the JSC….

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Thus, the Judiciary, Bar and the legal academy have the constitutional powers and competence to secure justice, the rule of law and human rights in normal times, and in emergency, war, terrorist attack, disaster, strike, crisis, coup, coup attempt, mutiny, revolutionary times. These include health or medical pandemics, epidemics or emergencies like in the age of the Corona virus (COVID-19), HIV/AIDs, ebola, malaria, (Spanish flu), Black death, small pox, or war, disasters, among others.320

There are three key recommendations or proposals for reform. They are are related to the BBI discussions. First, to secure independence and accountability of the Judiciary, the Judiciary and Judicial Service Commission (JSC) should be strengthened, and also separated administratively. The Judiciary and JSC should be funded appropriately, as one of the three arms, organs, or branches of Government and second, as an independent constitutional commission which is intended to promote independent accountability of the Judiciary.321

Second, the Judiciary has the power to decide all cases, disputes, conflicts or matters whether “political” or not. The Judiciary should engage progressive politics in the sense of helping decide among contested constitutional legislative, regulatory, and administrative, policy and political options or choices.

Third, there are urgent constitutional, legislative, regulatory, administrative, and policy reforms to secure justice, the rule of law, human rights, constitutional democracy and progressive legal sociology.

The Judiciary must guard the rule of law, judicial independence and accountability, and in the National Anthem’s credo: “let justice be Kenya’s shield and defender.”

...the discourse continues in class, articles, books, online, in the blogosphere, social media, and appropriate fora…

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14; 16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 7/2/19; 11/2; 24/4; 30/4; 2/9; 26/11/19; 22/3/2020; 25/3/2020; 14/4/2020; 16/4/2020; 19/4/2020; 21/4/2020; 25/4/2020; 27/4/20203/5/2020; 6/5/2020; 13/5/2020 email: [email protected]; [email protected] (use both) url: www.innovativelawyering.com

320 See also chapters 1, 5A, 6… CODRALKA 1… Ben Sihanya (2016; Reprinted 2020) Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya; Ben Sihanya (forthcoming 2020) Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya. 321 The debate includes taking into consideration the fact that the Judiciary is largely a service provider and that it has suffered weaponization of the budget by the Executive (especially the President and Treasury) and the National Assembly. The balance? Ring fence or guarantee development and recurrent expenditure for at least 10 years?....

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