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It makes a lot of sense to appoint Aaron Ringera as chair of tribunal to probe suspended JSC members

COMMENTARY
By NICHOLAS RIUNGU MUGAMBI | December 3rd 2013

By NICHOLAS RIUNGU MUGAMBI

Kenya: Ever since the President set up the tribunal, the media has been awash with comments from sections of the Law Society of Kenya, politicians and political analysts questioning the suitability of Justice Rtd Aaron Ringera as the chair.

The comments loosely centre on the issue of alleged bias on the part of Ringera against the JSC arising from the purported failure by the commission to shortlist the retired judge upon application as a Supreme Court judge.

The reasons that the JSC had in not shortlisting him are only known to the commission and one can only speculate. The threshold for qualifications is clearly set out under Article 251(5)(a) of our Constitution.

It provides that the chair of the tribunal shall be a person who holds or has held office as a judge of a superior court. Given that the JSC is responsible for recruiting and disciplining judges, it would be most inappropriate to have a tribunal headed by a sitting judge.

On the other hand, former judges who retired honourably are few and far in between.

Most of them were actually interviewed and rejected by JSC when they applied for posts of the chief justice, deputy chief justice and Supreme Court judges after the promulgation of the Constitution in August 2010.

Some of them now hold other public positions, such as Lady Justice Joyce Aluoch now based at the International Criminal Court in The Hague and Hon Lady Justice (Rtd) Effie Owuor, Chairperson of the  Taskforce on the Implementation of the Sexual Offences Act.

The other lot of retired judges were removed or opted to resign as a result of the radical surgery in 2003 and the Vetting Board in 2012/13.

Given the foregoing, it makes a lot of sense to appoint Justice Ringera as chair of the tribunal. The nature of the allegations include financial impropriety and obstruction of justice, matters on which Justice Ringera is well versed with as the former chair of the defunct Kenya Anti-Corruption Agency (KACA).

RADICAL SURGERY

Further, he led the radical surgery of the Judiciary in 2003 and is intimate with conducting investigations.

It is important to note that Justice Ringera’s character has not been impugned by any quarters.

His departure from the KACC was a procedural issue and not a substantive issue arising from his suitability or competence. Ringera is a renowned academic and has taught most of the judges, including some at the Supreme Court.

As a High Court judge he made decisions that were far reaching in terms of jurisprudence. It is therefore imperative not to make sweeping statements about the character of Justice Ringera.

In any case, claims of bias must be raised before the correct forum. The complaints should be raised before the tribunal and where one is not satisfied with the outcome, they can then go to court.

No court should entertain the complaint of bias if that complaint has not been raised in the proper forum in the first place. Indeed, the JSC members themselves understand this only too well. Former Chief Registrar Gladys Shollei raised the same issues when they made a ruling before she went to court. No one should expect a different standard to apply.

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