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Kenya's Supreme Court
Kenya’s Supreme Court: Old Wine in New Bottles? By Special Correspondent As the six Supreme Court judges were adjudicating Kenya’s first presidential election petition in March 2013, Justice Kalpana Hasmukhrai Rawal was waiting for a new president to take office and the newly elected National Assembly to convene so that her nomination as Deputy Chief Justice could move forward. The Judicial Service Commission (JSC) had settled on her appointment after interviewing a shortlist of applicants in February 2013. The Judges and Magistrates Vetting Board had earlier found her to be suitable to continue serving as a Court of Appeal judge. Justice Rawal eventually joined the Supreme Court on 3 June 2013. Two years later, Justice Rawal became the second Deputy Chief Justice (after Nancy Baraza, who resigned after she was heavily criticised for abusing her authority by threatening a security guard after the guard demanded to search her at a mall) to be embroiled in controversy. In 2015, Rawal challenged a notice that she retire at the age of 70. Around the same time, the then Chief Justice, Dr Willy Mutunga, would announce that he wanted to retire early so that the next Chief Justice would be appointed well ahead of the next election. In May 2014, Justice Philip Kiptoo Tunoi and High Court judge David Onyancha challenged the JSC’s decision to retire them at the age of 70. They argued that they were entitled to serve until they reached the age of 74 because they had been first appointed judges as under the old constitution. What seemed like a simple question about the retirement age of judges led to an unprecedented breakdown in the collegiate working atmosphere among the Supreme Court judges that had been maintained during the proceedings of the presidential election petition. -
Judging the Judges: Who Are the Supreme Court Justices?
By Apollo Mboya If there is a jurisdiction that the Justices of the Supreme Court of Kenya curse is the court’s exclusive original jurisdiction to hear and determine presidential election petitions. It is both legal and political but politics reign supreme. In a highly divided country, the court will be doomed whichever way it rules. Former Chief Justice Dr. Willy Mutunga, conscious of the impact of “political jurisdiction” on the courts, expressed his frustrations in a public forum that courts ought not handle election disputes but instead politicians should “deal with their own shit” elsewhere. In his dissenting opinion in Bush v. Gore, Justice Stevens, underscoring CJ Mutunga’s thinking sympathized with the Supreme Court of the United States and indeed the judiciary following the highly disputed 2001 election dispute between George Bush and Al Gore opining as follows: Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. Although SCOTUS does not have exclusive jurisdiction on presidential election dispute as Kenya’s, Bush v. Gore has been the court’s sore thumb that is thought to have led to a “court generated president”. Erwin Chemerinsky in his book The Case Against the Supreme Court notes: Bush v. Gore obviously cost the Supreme Court in terms of credibility. More than forty-nine million people who voted for Al Gore, and likely almost all of them regard the Court’s decision as a partisan ruling by a Republican majority [judges] in favour of the Republican candidate. -
National Assembly
October 27, 2016 PARLIAMENTARY DEBATES 1 NATIONAL ASSEMBLY OFFICIAL REPORT Thursday, 27th October, 2016 The House met at 2.30 p.m. [The Speaker (Hon. Muturi) in the Chair] PRAYERS COMMUNICATION FROM THE CHAIR MEDIATION COMMITTEE ON ASSISTED REPRODUCTIVE TECHNOLOGY BILL Hon. Speaker: Hon. Members, you may recall that yesterday, Wednesday, 26th October 2016, I conveyed a Message from the Senate regarding its decision on the Assisted Reproductive Technology Bill, National Assembly Bill No.36 of 2014. In the Message, it is noted that the Bill was lost at the Second Reading on 19th October 2016 in the Senate. The effect of this is that the Bill now stands committed to a Mediation Committee in accordance to the provisions of Article 112 of the Constitution. Indeed, the Senate has already nominated five Senators to the aforesaid Mediation Committee. Hon. Members, arising from the above and in consultation with the leadership of the Majority Party and Minority Party in the House, I have appointed the following Members to represent the National Assembly in the Mediation Committee: Hon. Millie Odhiambo Mabona, MP. Hon. John Sakwa, MP. Hon. (Dr.) James Nyikal, MP. Hon. (Ms) Cecilia Ngetich, MP. Hon. (Ms) Florence Kajuju, MP. Hon. Members, the Mediation Committee is advised to expeditiously commence the process of developing an agreed version of the Bill in line with the provisions of Article 113 of the Constitution. Hon. Members, knowing that the House may be proceeding for some short recess, the Committee is encouraged to remember that it has a maximum of 30 days within which to complete its function. -
Criminal Procedure Bench Book
CRIMINAL PROCEDURE BENCH BOOK February 2018 Table of Contents ACKNOWLEDGMENTS ............................................................................. xi FOREWORD ................................................................................................ xiii LIST OF ABBREVIATIONS ...................................................................... xv USER GUIDE ............................................................................................... xvi CHAPTER ONE: PRINCIPLES UNDERPINNING THE CRIMINAL JUSTICE SYSTEM .......... 1 I. Introduction .............................................................................................. 2 II. The Constitutional Framework for State Organs ...................................... 3 III. Equality and Dignity ................................................................................. 3 IV. Vulnerable and Disadvantaged Groups .................................................... 4 V. Freedom from Torture, Cruel, Inhuman, and Degrading Treatment ........ 5 VI. Privacy ...................................................................................................... 5 VII. The Constitution and the Judicial Process Generally ............................... 6 Independence of the Judiciary: The Institution and the Court .................. 6 Expeditious Trial ...................................................................................... 6 Undue Regard for Technicalities .............................................................. 6 Transparency and Accountability -
Policy Briefing
Policy Briefing Africa Briefing N°94 Nairobi/Brussels, 15 May 2013 Kenya After the Elections I. Overview Kenyan democracy was severely tested in the lead-up to, during and after the 4 March 2013 elections. On 9 March, following a tense but relatively peaceful election, the Independent Electoral and Boundaries Commission (IEBC) declared Jubilee Coali- tion’s Uhuru Kenyatta president-elect. He garnered 50.07 per cent of the vote – barely passing the threshold for a first round victory. His closest opponent, former Prime Minister Raila Odinga, challenged his victory in court, but despite allegations of irregularities and technical failures, the Supreme Court validated the election. Although Odinga accepted the ruling, his party and several civil society organisations questioned the election’s shortcomings and its impact on democracy. President Ken- yatta and his deputy, William Ruto, will have to restore confidence in the electoral process and show robust commitment to the implementation of the new constitution, in particular to devolution, land reform, the fight against corruption and national reconciliation. Failure to do so risks further polarising the country and alienating the international community. Despite some clashes preceding the vote, and following the court’s decision, the nation avoided a repeat of the 2007-2008 post-election violence. A number of fac- tors contributed to a predominantly peaceful election, including a general consensus between the political elite and the citizenry not to bring Kenya to the brink of civil war again. International pressure, in particular from the current International Crim- inal Court (ICC) cases, media self-censorship, restrictions on freedom of assembly, and deployment of security forces to potential hotspots also helped avert unrest. -
Over-Turn Election Put the Supreme Court on Trial
ISSUE NO. 30, OCTOBER 2017 OVER-TURN ELECTION PUT THE SUPREME COURT ON TRIAL Peter Kagwanja Kenya has made history. Its Supreme Court and a run-off on November 16. In Austria, made a rare ruling, annulling the re-election of where the presidential elections took place on President Uhuru Kenyatta in the August 8, April 24, 2016, the Supreme Court annulled the 2018 elections with a huge margin of 1.4 million results of a second-round run-off on May 22, votes. Blissfully, the ruling affirms Kenya as a 2016 paving the way for a revote on December new bona fide liberal democracy. But it also 4, 2016. reveals creeping ideological and jurisprudential divisions in our courts, likely to undermine This is the second ruling by the Supreme public perception of the impartiality of the Court, created by the 2010 constitution. The judiciary, exposing it to potential reprisals by first was a unanimous affirmation of the results sections of aggrieved political class. of the 2013 presidential elections. In contrast, the 2017 ruling was by a simple majority with Kenya becomes the first country in Africa, and strongly dissenting opinions. exceptionally very few in recent history, where a Supreme Court has over-turned officially Of the six judges involved, four—Chief Justice declared results of a presidential election. David Maraga, his deputy Lady Justice Philomena Mwilu, Justice Smokin Wanjala and It joins Maldive and Austria where the supreme Justice Isaac Lenaola—were of the opinion courts have recently overturned the will of the that ‘irregularities’ and ‘illegalities’ affected the people on legal and administrative conduct of the polls. -
Chapter 3 Constitutional Values, Principles, and Policy
CHAPTER 3 CONSTITUTIONAL VALUES, PRINCIPLES, AND POLICY: AGENCY, STRUCTURE, POLITICS AND CULTURE IN KENYA AND AFRICA This Draft Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Constitutional values, principles, policy: and culture: Agency, structure, politics and culture in Kenya and Africa,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya. 3.1 Values and principles of governance under the Constitution in Kenya and Africa The Constitution of Kenya is the organizing principle on popular sovereignty, nationhood, and statehood which we have discussed in Chapter 1 and 2 of CODRALKA 1.1 Constitutional values and principles provide a firm foundation for the governance of economic resources, political powers, and liberty. We adopt an Afro-Kenyanist methodology in integrating ethics, ethos, values, and principles into constitutional democracy to advance individual and group liberties as well as nationhood.2 These include mutual social responsibility…3Some of these are being considered in the debate on Building Bridges Initiative (BBI).4 Constitutional values and structure find expression and are enhanced through agency and structure. And some of the values and principles actually constitute structure to the extent that they have become national or institutional norms or culture. The Constitution of Kenya 2010 provides for national values and principles of governance under Article 10 (on national values and principles of governance), Art 201 (on values and principles of public finance) Art 232 (on values and principles of public service) and other specific articles.5 These shall bind all State organs, State officers, public officers and all persons in at least three contexts. -
Industrial Court Judges, Eight High Court Judges, and 15 Environment and Land Court Judges
2 State of the Judiciary Report, 2012 - 2013 Preface This is the Second Annual State of the Judiciary and Administration of Justice Report (SOJAR), which has been prepared in fulfillment of Section 5 (2) (b) of the Judicial Service Act. It covers the period July 1, 2012 to June 30, 2013, which coincides with the Government of Kenya financial year. It is also the second report since the launch of the Judiciary Transformation Framework (JTF) in May 2011. This has been an eventful year for the Judiciary. We have made marked progress but also witnessed serious challenges that have threatened the Judiciary’s transformation and shaken Hon. Dr. Willy Mutunga, D. Jur, SC, EGH, public confidence in the process. Chief Justice and President of the Supreme Court of Kenya Republic of Kenya. The Judiciary has had to make tough decisions in order to protect public resources. And whereas the process may look a little messy to the public eye, there is no doubt that these choices have been made and decisions taken in the public interest. The Judiciary remains supremely confident that it shall build on the achievements made and deal with the challenges posed while the compass of transformation remains firmly fixed. This has been the year of active implementation of the JTF at the macro level, and combined planning and implementation at the micro level, particularly within departments and directorates. We have been testing the objectives and viability of transformation and transition on the ground, and are learning important lessons. We have made progress, but we also made mistakes. -
Constitution Implementation in Kenya, 2010
Constitutional Implementation in Kenya, 2010-2015: Challenges and Prospects A study under the auspices of the Friedrich Ebert Stiftung (FES) and University of Nairobi’s Department of Political Science & Public Administration, Occasional Paper Serie Prof Ben Sihanya, JSD (Stanford) Scholar & Public Intellectual, Intellectual Property, Constitutionalism & Education Law University of Nairobi Law School & CEO Sihanya Mentoring & Innovative Lawyering October 2011; Revised 4/12/11; 5/12/2012 FES Kenya Occassional Paper, No. 5 Constitutional Implementation in Kenya, 2010-2015: Challenges and Prospects Prof Ben Sihanya, JSD (Stanford) Scholar & Public Intellectual, Intellectual Property, Constitutionalism & Education Law University of Nairobi Law School & CEO Sihanya Mentoring & Innovative Lawyering October 2011; Revised 4/12/11; 5/12/2012 FES Kenya Occassional Paper, No. 5 ISBN: 9966-957-20-0 Table of Contents List of Abbreviations and Acronyms ..............................................................................................................iv List of Cases ..................................................................................................................................................... v List of Constitutions ........................................................................................................................................vi List of Statutes ...............................................................................................................................................vii List -
"Silence! Peace in Progress": the 2013 Election and Peaceful Post-Election Dispute Management in Kenya Akanmu G
Kennesaw State University DigitalCommons@Kennesaw State University Peace and Conflict Management Working Papers The eC nter for Conflict Management Series 6-2015 Number 4 - "Silence! Peace in Progress": The 2013 Election and Peaceful Post-Election Dispute Management in Kenya Akanmu G. Adebayo Kennesaw State University, [email protected] Muthoni K. Richards Kennesaw State University Follow this and additional works at: http://digitalcommons.kennesaw.edu/working_papers_ccm Part of the African Studies Commons, Peace and Conflict Studies Commons, Political Science Commons, and the Politics and Social Change Commons Recommended Citation Akanmu Adebayo and Muthoni Richards. "Silence! Peace in Progress": The 2013 Election and Peaceful Post-Election Dispute Management in Kenya. Peace and Conflict Management Work Paper No. 4, pp 1-15. This Article is brought to you for free and open access by the The eC nter for Conflict Management at DigitalCommons@Kennesaw State University. It has been accepted for inclusion in Peace and Conflict Management Working Papers Series by an authorized administrator of DigitalCommons@Kennesaw State University. For more information, please contact [email protected]. Peace and Conflict Management Working Papers Number 4, 2015 “Silence! Peace in Progress”: The 2013 Election and Peaceful Post- Election Dispute Management in Kenya Akanmu G. Adebayo and Muthoni K. Richards About the Authors Akanmu G. Adebayo is Akanmu G. Adebayo is professor of history and director of the Center for Conflict Management at Kennesaw State University, Kennesaw, Georgia. He was also formerly executive director of the Institute for Global Initiatives at KSU. He received his education at the University of Ife (renamed Obafemi Awolowo University) and earned his PhD degree in history, focusing on economic history. -
The Gallant Academic Essays in Honour of Hwo Okoth-Ogendo
International Environmental Law Research Centre THE GALLANT ACADEMIC ESSAYS IN HONOUR OF HWO OKOTH-OGENDO Patricia Kameri-Mbote & Collins Odote (eds) Published by: School of Law - University of Nairobi (2017) This paper can be downloaded in PDF format from IELRC’s website at http://www.ielrc.org/content/b1702.pdf International Environmental Law Research Centre [email protected] www.ielrc.org [Date]d The Gallant Academic Essays in Honour of HWO Okoth-Ogendo Patricia Kameri-Mbote & Collins Odote (eds) Published by School of Law - University of Nairobi ©2017 Patricia Kameri-Mbote and Collins Odote in editorial matter, and the authors Layout, designed & Printed by Digital Process Works Cover design by Ecomedia ©2017 Patricia Kameri-Mbote and Collins Odote in editorial matter, and the authors ISBN 978-9966-1952-0-3 TABLE OF CONTENTS Preface ............................................................................................................................vii Contributors ...................................................................................................................xi Acknowledgements .......................................................................................................xix Abbreviations ................................................................................................................xxi CHAPTER 1: Introduction, Patricia Kameri-Mbote & Collins Odote ....................... 1 PART I: OKOTH THE PERSON CHAPTER 2 Okoth-Ogendo: The Man, Ruth Adhiambo Okoth-Ogendo ............... 9 CHAPTER 3 -
Industrial Court Judges, Eight High Court Judges, and 15 Environment and Land Court Judges
2 State of the Judiciary Report, 2012 - 2013 Preface This is the Second Annual State of the Judiciary and Administration of Justice Report (SoJAR), which has been prepared in fulfillment of Section 5 (2) (b) of the Judicial Service Act. It covers the period July 1, 2012 to June 30, 2013, which coincides with the Government of Kenya financial year. It is also the second report since the launch of the Judiciary Transformation Framework (JTF) in May 2011. This has been an eventful year for the Judiciary. We have made marked progress but also witnessed serious challenges that have threatened the Judiciary’s transformation and shaken public confidence in the process. Hon. Dr. Willy Mutunga, D. Jur, SC, EGH, The Judiciary has had to make tough decisions in order to protect public resources. And whereas the process Chief Justice and President of the Supreme may look a little messy to the public eye, there is no doubt that these choices have been made and decisions Court of Kenya Republic of Kenya. taken in the public interest. The Judiciary remains supremely confident that it shall build on the achievements made and deal with the challenges posed while the compass of transformation remains firmly fixed. This has been the year of active implementation of the JTF at the macro level, and combined planning and implementation at the micro level, particularly within departments and directorates. We have been testing the objectives and viability of transformation and transition on the ground, and are learning important lessons. We have made progress, but we also made mistakes.