Even before the dust settles on the controversies surrounding her retirement, Deputy Chief Justice Kalpana Rawal has been drawn into yet another storm (Panama leaks) that has taken an international perspective. Our senior writer Mwaniki Munuhe caught up with Rawal to obtain her perspectives on these issues.
Question: Who is Kalpana Rawal?
Answer: I play the role of a wife, mother, teacher and jurist. I was born in Gujarat, India, on the day which everybody knows (laughs) and attended school there. I hold a Bachelor of Arts, Bachelor of Law and a Masters in Law (constitutional and administrative laws) degrees. I was awarded the gold medal for being the best student in my Bar examination. I was a student of a renowned constitutional advocate, C T Daru. I was fortunate enough to have been mentored by Justice P N Bhagwatiji, the world-renowned constitutional lawyer and Chief Justice of India.
After my marriage, I migrated to Kenya in 1973, and while waiting for my enrollment to the Kenyan Bar, taught law to administrative and regular police officers at the Kenya Institute of Administration. I got admitted to the Bar in July 1975, the first for a lady lawyer in the country.
Q: Why did you chose to become a judge?
A: I was born into a family of lawyers. My grandfather was a law minister in the British State of Kutch (now in Gujarat) and my father was a judge in Gujarat State in India. I cannot explain but I have a natural pull to the issues of law and justice. So nature made me a lawyer and ultimately a judge.
Q: What do you have to say about the recent Panama leaks that allege you were a director in four offshore companies?
A: First, it is perfectly legal to own and operate such companies. Second, I was a director and shareholder of two companies, which were incorporated in 1994 and 1995 respectively when I was a practising advocate and until they were wound up prior to my appointment as a judge. In relation to the two other companies, these were incorporated in 2001 without my knowledge as my husband submitted my name as a passive director without any control or interest on my part.
The reason for so doing was because of a requirement that there should be at least two directors at a company. I only became aware of these facts through the pending sale of the companies in the course of 2003 upon which I resigned immediately by filing undated resignation letters so that appropriate steps could be undertaken to formalise the process.
However, I later learnt that the resignation of one of them was effected in 2007 instead of 2003 upon the winding up of that company. At this juncture, it is important to note that by 2003 I had for all intents and purposes effectively resigned from the directorship of all the companies in question by the time public officers were to declare their income and assets as per the Public Officers Ethics Act. I must reiterate that I have neither received any benefit nor any monies at all in relation to these companies. I have at all times abided by the provisions of the Constitution and in particular Articles 73 and 75 of the same that govern the conduct of state officers.
Q: Why offshore companies and not locally incorporated companies?
A: First, the business of the companies was in the United Kingdom and second, like I said before, it is perfectly legal to own and operate such companies within the purview of the law.
Q: Should family members of senior state officials like you own and operate offshore companies?
A: My family members are within their rights to have such companies as long as they operate within the ambit of the law. Certainly my children do not need my permission to do so and as such owe no one, including me, an explanation. Though on a light note, in the case of my husband, open consultations would be ideal.
Q: You have been in the news recently challenging your retirement from the Bench. Why not retire after such an illustrious career?
A: Without going into the merits of the pending case, I must make it clear that as a judge I have always believed that if you value the spirit of our Constitution, one should not hesitate to seek interpretation of the provisions of law and of course the Constitution.
You must be aware that there are more than 35 judges who were appointed under the old Constitution and have been successfully vetted as per the edict of the Constitution. Similar petitions from affected colleagues have been previously filed and, I too, felt duty-bound to seek the final verdict from our courts. If I may, I am one of the most active members of our court and always available for duty so am not yet that old.
Q: Have you been put under pressure to resign?
A: I can definitely affirm that. This pressure started as soon as I challenged the issue of retirement age before the courts. Little did I know that my sincere and honest effort to settle a very important constitutional issue would give my family and I sleepless nights. I have been subject to virulent attacks on my integrity and competence. It is quite odd that these insinuations are being made yet I was appointed to the Court of Appeal and less than a year later, to the Supreme Court as the Deputy Chief Justice.
These recent appointments were done under the new constitutional dispensation, which involved transparency and public participation. Recent headlines on the offshore companies seem to be part of the same narrative to try and impute wrongdoing on my part yet actually there is nothing newsworthy touching on me. This latest attack has pulled in my family and thus I have been forced to speak out.
It suffices to state that the pressure to resign and the coinciding attacks have to do with the succession intrigues that are ongoing in the Judiciary.
Q: Who is the person or institution applying the pressure?
A: I would definitely not like to state anything on this question but if you follow public pronouncements, you can make an educated guess.
Q. If you were not a lawyer and judge, what would you be?
A: I cannot imagine myself as anyone else except a woman’s social place in the society as a wife and a mother (laughs).
Q: How do you balance between your busy schedule as the Deputy Chief Justice and as a wife and mother?
A: My children are all grown up and have their own families and manage their own affairs. For my husband and I, it is not difficult as I have his loyal and loving support. I also have my loyal and loving household staff, who have with been with us for more than 40 years.
Q: What are your hobbies?
A: When not involved in my official and social duties, I read spiritual literature.
Q: What is your parting shot?
A: I would like to inform Kenyans that I have served as an advocate and the Deputy Chief Justice of the Republic of Kenya with integrity and distinction for a period of more than 40 years. I expect to continue doing the same while I am serving on the Bench of the Supreme Court and at the end, I will leave my legacy intact and spotless. I am only saddened that all this hard work that I have put in the service of my country is in danger of being smeared not only to my detriment but also to that of the Judiciary and the public service. But at the end, the truth shall prevail.