JSC questions Judge Nyamu's past rulings, rapid rise

By David Ochami

Court of Appeal judge Justice Joseph Nyamu was put on defence Wednesday over claims he has been pro-establishment and against Islam in his rulings since his appointment to the bench in 2002.

He appeared before the Judicial Service Commission (JSC) where commissioners questioned his rapid rise under the Kibaki regime and suitability for the Supreme Court given his past rulings, including one that barred Kenya Anti-Corruption Commission from seeking legal assistance from overseas on the multi-billion-shilling Anglo Leasing scam.

The judge strenuously defended his record arguing that he has risen in the Judiciary through hard work. "I have never considered political inclinations in my cases," the judge declared adding, "I have always justified my arguments on the basis of law."

Justice Joseph Nyamu before the Judicial Service Commission during the interview for the position of Chief Justice Wednesday in Nairobi. [PHOTO: ANDREW KILONZI/STANDARD]

Commissioner Abdulahi Ahmednasir described one of his rulings in which Nyamu and two other judges declared Kadhi courts unconstitutional in May last year as "puzzling," contradictory" and "bewitching".

Gatekeeper

When Nyamu claimed most of his rulings have never been overturned, Attorney General Amos Wako said the ruling in the Anglo Leasing case and other matters he has ruled against the state are on appeal on the basis that the State Law Office believes Nyamu misapplied facts, misdirected precedent laws and relied on sloppy "interpretation of the law."

The judge was also questioned extensively on allegations that for five years, when he chaired the Constitutional and Judicial Review Division of the High Court, he sat there as a "gatekeeper" of immediate former Chief Justice Evan Gicheru and presided over sensitive constitutional matters to protect State interests.

When he led the said division, Gicheru directed that all constitutional review matters were to be handled by the High Court in Nairobi, a development many lawyers opposed. He claimed he was not party to that directive and that Gicheru decreed it "for reasons known to himself." Commissioner Ahmednasir said the judge has set a record for timely judgements and tackling controversial issues but fostered perceptions that he is "too political".

The lawyer also accused him of relying too much on foreign jurisprudence on local matters. Ahmednasir questioned Nyamu for refusing to grant prayers to former minister Chris Murungaru after he was dismissed from the Cabinet, a ruling that was overturned by the Court of Appeal.

Independence and industry

Nyamu said Gicheru retained him in the Constitutional and Judicial Review Division of the High Court because he admired his independence and industry. Ahmednasir accused the judge and the Bench that outlawed Kadhi Courts of reaching a contradicting ruling for asserting that the Islamic courts were unconstitutional. This was after another agreement that their inclusion in the supreme law did not actually amount to discrimination of other religions.

"The contradiction is puzzling and bewitching," said Ahmednasir who also accused the judge of uttering inflammatory words by suggesting that Muslims were intolerant of Christians and had torched their churches in recent years.