How suspended judge got justice
By Wahome Thuku
On March 19, 2003, Chief Justice Evan Gicheru appointed a committee to investigate corruption in the Judiciary.
Retired Appeal Court Judge Aaron Ringera was the chairman. The committee handed in its report on September, 30, 2003, implicating 23 judges.
Justice Gicheru then recommended to the President to appoint a tribunal to investigate the judges. On December, 10, 2003 the judges were suspended and two tribunals appointed.
One of those suspended was Justice Moijo ole Keiwua. Lawyer Mbuthi Gathenji, as assisting counsel to the tribunal, drew a list of 10 allegations of corruption levelled against the judge.
Keiwua’s lawyer Stephen Mwenesi exchanged several letters with the tribunal requesting for the list of the allegations.
But it was not until September 2004 that he got the undated list. That month, Keiwua moved to court to challenge the investigations.
He sought six orders to quash the tribunal’s decision and prohibit it from investigating his conduct. He claimed he was never informed of the representations made to the President.
He was not accorded opportunity to be heard and defend himself.
None of the allegations related to his performance as a Judge of, and at, the Court of Appeal. One allegation related to his tenure as a High Court judge.
Mwenesi said Keiwua reasonably expected the tribunal would only investigate the allegations in the Ringera report.
He expected the CJ would comply with the rules of natural justice before making a representation to the President. After years of lengthy preliminaries this Bench was appointed in November last year to hear the case.
First, they dealt with preliminary objections raised by the respondents that the High Court lacked legal authority to entertain the suit.
Through Senior State Counsel Anthony Ombwayo, the CJ and tribunal members argued the CJ could not be questioned for exercising his judicial powers.
To question the tribunal was also to question the President who had donated power to them to make rules of procedure.
Mr Ombwayo argued granting the orders would violate the principle of separation of powers and interferes with functions of the Executive.
It would curtail the President’s executive authority vested by section 23 of the Constitution.
Mwenesi said Keiwua was only questioning the CJ’s action as administrator of the Judiciary and not as a High Court judge.
He said attack on the tribunal was not an attack on the President as the High Court had constitutional powers to examine constitutional bodies, including the presidency.
The president was only protected against criminal or civil actions, not judicial review proceedings.
Ombwayo argued there was no requirement under the Constitution to accord Keiwua a hearing before the tribunal was set up.
In any case, he would get a fair hearing at the tribunal. Gathenji said he had been wrongly enjoined in the proceedings.
As the assisting counsel, he was neither a member of the tribunal and never made any decision that could be subject to judicial review orders. The court agreed with him.
The first question was whether the President was inferior to the High Court and whether he enjoys absolute or partial immunity.
The judges held that the protection under section 14 of the Constitution could not be absolute.
It was only meant to protect the interest of the wider citizens who have a stake in the presidency.
Immunity only applied to personal and private conduct by a president. It was to enable the President perform his duties without fear of personal liability.
The court held that the CJ was immune from suits directly related to the exercise of his judicial functions.
But as the administrative head of the Judiciary, he exercises ministerial duties.
When making a representation to the president under section 62(5) he was exercising this administrative role, which is subject to supervision by the High Court.
The judges reasoned that Section 61(2) required that a judge be appointed after the President has received advice from the Judicial Service Commission (JSC).
The President must make the appointment. "When a question arises as to the removal of a judge, we think it was essential to seek and obtain the advice, guidance, contribution and direction of the same body that gave the advice to the President that it was okay to employ him in the first instance," the three judges ruled.
The CJ did not consult the JSC, which he chairs. Section 62(5) does not say whether it is mandatory to give the affected judge a copy of the representation before appointment of the tribunal.
But the court felt that in such a grave matter with severe consequences, likely to remove a judge from office, it was mandatory for the judge to get a hearing either by the JSC or by the CJ before a representation to the President.
There was no emergency. It was not a matter of life and death that following complaints against Keiwua the CJ had to immediately make a representation to the President.
The President’s power was restricted to the representation he received from the CJ. He had no power to direct the tribunal investigate any other matters against the judge.
The judges concluded that Keiwua was not treated fairly by the tribunal. The summons and the ten allegations were unconstitutional and outside the mandate of the tribunal under section 62.
Ole Keiwua was right in filing the suit having been exposed to great injustice and outright illegality.
"We think we have shown remarkable firmness. We have kept the hope burning for many Kenyans who seek that justice shall be our shield and defender," the judges ruled. The court granted Keiwua five orders, but no costs.
The ruling has been hailed as having demonstrated the growing indepence of the Judiciary.
— The writer is a court reporter with The Standard
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