Justice Ojwang’s lonely walk to the end of an eventful career

Supreme Court Judge Jackton Boma Ojwang'[Boniface Okendo,Standard]
After a stellar career in law that culminated in his appointment as a justice of the Supreme Court, Prof JB Ojwang now faces the risk of an ignominious exit, after an audacious decision by the Judicial Service Commission (JSC) to commence removal proceedings against him for alleged gross misconduct.

Ojwang may have played a role in compounding his problems when he declined to meet with a committee of JSC to provide his viewpoint regarding the gross misconduct complaint. Instead, he wrote an impudent letter to the JSC, in which he claimed that there was “ill-intent against him” presumably from the “well-known committee,” and that for this reason, he would not be meeting them. The refusal to go before the committee, and also the haughty manner in which it was expressed, left the JSC with little choice but to refer the matter to the President.

Ojwang’s letter was contemptuous against the complainants, citing their advanced ages, as if to say that they were too old to merit a hearing. His views are echoes of Justice RSC Omollo’s judgement in the Kenneth Matiba election petition against Moi in 1992, when the judge wrote that if Matiba was not able to use his hands to sign the petition, a requirement of the law, he had “no business wanting to be the President of Kenya.” The vetting board found this language disrespectful of disabled people. This became a ground for his removal from the Judiciary.

On the contrary, the same letter, in much of which he referred to himself in the third person, appeared to question the temerity of JSC in demanding that he, “as a judge of Kenya’s apex court”, should appear before a committee.

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Dismissed an appeal

What culminated in a recommendation for the removal of Ojwang is a land case in which 13 residents of Awendo sued the Awendo Town Council at the High Court in Kisii. In 1976, the government had compulsorily acquired several parcels of land in Awendo, to consolidate sugar farming. The 13 claimants were some of the people whose land was acquired. When, many years later, the company left some of the land unutilised, the claimants, some of whom had continued to live on the land, now wanted it back legally.

However, the Awendo Town Council now also laid a claim to the same land, asserting that the land was needed for other public purposes. Awendo Town Council lost in the High Court, JusticeMusinga finding that since Sony Sugar had acquired land for growing sugarcane but some of it was found unsuitable for that purpose, the land should revert to those it had been acquired from.

In 2013, the Court of Appeal dismissed an appeal by the Awendo Town Council against the High Court judgement. To file a further appeal in the Supreme Court, the town council needed the permission of either the Court of Appeal or of the Supreme Court itself. When the Court of Appeal declined an application to allow an appeal to the Supreme Court, the town council made the same application in the Supreme Court, which granted the leave to appeal.

Dismissing objections that he was too close to Migori governor, Okoth Obado, whose county government had an interest in the case, Ojwang sat on the bench of the Supreme Court that heard the application for leave. After granting permission to appeal, the judge recused himself from further participation. Two of the 13 claimants in the High Court, aged 96 and 76, have made the complaint to the JSC against Ojwang. They claim Obado was a neighbour and a friend of the judge and that while the case was pending, a road had been built to the home of the judge. Ojwang acknowledges his close relationship with Obado, but complains the two picked only on him when he had sat with four other judges to hear the application that admitted the case into the Supreme Court. None of the others were affected by a view of a close relationship with Obado.

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Further, while Ojwang says his participation in the case was “purely preliminary,” that assertion will need to be considered against the fact that at the time Awendo Town Council came to the Supreme Court, they had exhausted all other options, as the Court of Appeal had already refused them permission to file in the Supreme Court. In the whole case, whether or not to allow the filing of the appeal was a threshold decision. Without the further appeal, the case would have ended in victory for the claimants. A further appeal became a lifeline for the council, and potentially a turning point against the claimants. The complaint is that Ojwang participated in what was a hugely consequential decision before he recused himself.

Before his latest troubles, Ojwang had already had several brushes with the JSC. In September 2015, together with fellow justices Mohammed Ibrahim and Njoki Ndungu, Ojwang wrote a letter to the JSC threatening a solidarity strike if the commission insisted that judges should retire at  the age of 70 years. Lawyer Apollo Mboya, then the secretary of the Law Society of Kenya (LSK), filed a petition seeking the dismissal of the three judges for insubordination. Eventually, the JSC reprimand the three, rather than recommend removal proceedings. Ojwang’s problems with the JSC did not end there.

Retirement age

When, the following year, the Court of Appeal affirmed an earlier High Court decision that Deputy Chief Justice Kalpana Rawal and fellow Supreme Court justice, Philip Tunoi should retire at 70, Rawal’s appeal in the Supreme Court against that decision became a portentous judicial fight. With Chief Justice Mutunga now retiring, Rawal could replace him if she managed to stay in office up to 74 as she sought to do.

With the political establishment developing a keen interest in this case, which degenerated into a veritable war among justices of the Supreme Court, Ojwang and Ndung’u were alone in a camp that opposed the JSC attempt to enforce retirement at 70 years, while the rest of the court, including Mutunga, supported the retirement decision.

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When Mutunga retired in June 2016, Ojwang applied to replace him. However, the JSC initially declined to shortlist Ojwang for interview. He was only invited to interview for the position after a court compelled the JSC to interview all applicants who had met the minimum statutory requirements for the job. Rather than an interview for a job, Ojwang’s interview for the position turned into a showdown with the JSC, the animus between him and the JSC evident. While the internal composition of the JSC has altered, the core of the body has remained intact. It is with  this core that Ojwang has grappled again and again. Given the poor relationship, his decision to apply for the position of Chief Justice was probably unwise.

Establishment judges

In 2017, Ojwang together with Ndung’u, dissented against a decision of the majority of the Supreme Court bench to annul the results of the presidential election in 2017, solidifying a perception that they were the establishment judges in the court. Given that Ojwang has come to be viewed as a stalwart of the conservatives, it is surprising that no pressure to save him from the complaint that he now faces has been evident. JSC sources indicate that President Uhuru Kenyatta was briefed about the decision of the JSC and will apparently play his role in appointing a tribunal. There are two reasons why the establishment would be happy to let Ojwang go.

First, he is due for retirement next year, and will not be in office during the next consequential period: the 2022 elections. Second, Ojwang has done so many battles and is now exposed. It may be time to let him go. This second reason applies to the entire court. According to JSC insiders, the mood in the government is that after so many intrigues, the court should be reconstituted and to do so, there must be a clear-out first.

Besides the complaint against Ojwang, the JSC announced that it had processed 13 other complaints for hearing. Besides Ojwang, the JSC will be asking the president to constitute a tribunal for other judges in the coming days.

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Questions have been raised as to why the JSC has suddenly woken up from its slumber. According to insiders, the JSC has become so active only because this is the first time during the last four years that the commission is fully constituted. Attorney General Kihara Kariuki, Olive Mugenda, Patrick Gichohi and Felix Kosgey only joined the JSC in November 2018, and were unable to do so earlier because of political intrigues. Justice Mohammed Warsame, who had stayed out for almost a year since he was re-elected, has also since re-joined, making it a full house. With only minimal numbers for long periods, the JSC was unable to constitute committees to hear complaints against judges.

A directive by the Salaries and Remunerations Commission, limiting the JSC to a maximum of eight meetings per month also proved problematic. In July 2018, the JSC obtained a judgement that outlawed that directive.

[George Kegoro is the Executive Director at KHRC. [email protected] ] 

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