Interview panel questions judges on 2017 poll rulings

Justice Stephen Radido during the interview by Judicial Service Commission (JSC) for a position of court of an Appeal Judge. [David Njaaga/Standard]

Two judges, who appeared before the Judicial Service Commission (JSC) interview panel yesterday, were put to task over their rulings related to the 2017 General Election.

The panel sought to know why High Court Judge George Odunga declared that returning officers were illegally hired on the eve of the 2017 repeat presidential election.

Meanwhile, Labour Court Judge Stephen Radido was pressed to explain why he reinstated former Independent Electoral and Boundaries Commission (IEBC) CEO Ezra Chiloba while he was still under investigation.

The judges were being interviewed for positions in the Court of Appeal.

They both defended their decisions, saying they were based on the law and fact presented before them.

Justice Odunga was asked to explain a perception that his rulings were always against the Government.

Defended order

He defended his orders, saying they were considerate and based on the evidence and the Constitution. He pointed out that the Government also won a number of cases before him.

He said it was inevitable for him to issue orders against the Government as the respondents in his court were often either the Government, its agencies or State officers who had failed to observe the law.

“I may not agree with the public. That notion came when I was in Judicial Review. We have to ensure the law is followed to the letter. Without the rule of law, the result is anarchy. My decisions are not judicial activism but are based on the Constitution,” said Odunga.

Justice Radido on the other hand defended his orders, saying although they appeared to have settled the case even before being heard, he gave IEBC an opportunity to either suspend or interdict Mr Chiloba in accordance with the law.

According to the judge, reinstatement is a grey area which has not been fully settled by labour courts in the country. “It cannot be in public interest for a public body to disregard the law. I gave IEBC an opportunity to either suspend or interdict him. Yes, the order was to reinstate him but gave them an opportunity to deal with him in terms of contractual law. I am not aware of any decision that I have made that has been overturned by the Court of Appeal,”  said Radido.

At the same time, Justice Odunga suggested that Kenya should do away with minimum sentences and allow judges to deal with offenders based on facts of each case.

The judge said it was unconstitutional for courts to prescribe sentences set by Parliament.

Odunga gave his point of view in a question where he was asked about the boy jailed for consensual sex.

According to him, judges should be allowed to give orders, including counseling, instead of a blanket declaration that offenders should serve set jail sentences.

“Based on Muruatetu case, minimum sentences take discretion of the court to sentence a person. Minimum sentences are unconstitutional. Imposing sentence on a boy is an injustice. Discretion on sentencing should be based on case to case basis. There are circumstances you need counseling rather than jailing a person,” he said.

Medical expenses

“The discretion of the court should not be taken away by legislature. When you come up with minimum sentences, you are not looking at unique circumstances of a case,” he said.

On the other hand, Radido, said medical expenses ought to be shouldered by the employer when an employee gets sick while at work.

He also suggested that employers ought to provide houses and not rent or house allowances to their employees.

“In many instances what they provide cannot cover rent,” he said.

On how they would handle cases of homosexuality and prostitution, the judges said the two are outlawed.

Also interviewed yesterday was Justice John Mutungi and Lawyer Kariuki Mwangi.

Today, Justice Francis Tuiyott, Moi University Law School dean John Chebii and lawyer Joyce Majiwa will appear for the interviews.

Majiwa had, in 2016 applied for the Chief Justice and Deputy Chief Justice’s post.