Likely legal arguments against tribunal on JSC

By PRAVIN BOWRY

The path of the tribunal set up last Friday to investigate the conduct of six members of the Judicial Service Commission is going to be a thorny one. The likelihood of weighty legal objections is profound. I am certain that each affected member must be toying with objections either by way of a constitutional reference or a judicial review application or even going to the Supreme Court.

It can be predicted that hundreds of judicial man hours will be wasted deciding the fate of a Court of Appeal judge, a highly placed magistrate, a senior counsel, an advocate and two other non-legal members.

Sadly, it will be a long and arduous drama during which the working and morale of the Judiciary will be adversely affected and the cause of justice eroded for years to come.

In my capacity as an enquiring citizen first, then as a diligent and hardworking taxpayer, then as a litigant, and also as a friend of the Court (or the tribunal or whatever) and indeed even as a member of the Law Society of Kenya, I venture to discuss certain likely objections.

This ‘special’ Kenya Gazette Notice is likely to be attacked minutely. It is very vague and couched in very general terms and makes no precise allegations against one or all of the alleged wrongdoers. It is implied that the conduct of the six alleged wrongdoers was such that they were working in concert – a very sensitive legal issue with the possibility of many constitutional objections.

And this notice has forgotten to tell the world who is going to ‘prosecute’ the matter in the tribunal or who is going to produce all the evidence against the wrongdoers, and when and within which time and whether the findings will be made public.

The tribunal is given general powers necessary for the proper execution of its mandate. Is the non-making of rules for constitutional tribunals a derogation of duty by the Chief Justice?

The JSC comprises 11 members, all nominated under the Constitution after due process. The CJ is the chairman and the AG the ex officio member. There is what is called collective responsibility. When the ship is sinking, is the captain allowed to jump and leave the sailors forlorn or contrive their drowning by having pre establishment of the tribunal meeting with the President and other interested parties?

The alleged wrongdoers need to know the names of the witnesses upfront and their statements and list of exhibits. It can be presumed that the other members of the JSC who have escaped the net of inquiry will be cardinal witnesses – or will they be treated as accomplices to the misconduct allegations?

Why was the name of the JSC secretary, presently under suspension, omitted from the list of alleged wrongdoers – or will we have a separate tribunal for her.? Would that not be discriminatory? Or will she be treated as a witness, and why not?

Natural justice

The renowned, well respected and eminently knowledgeable chairman of the tribunal must also tell us whether he will be able to perform his duties without bias under the rules of natural justice, which he knows so well and has alluded to in his treatises as a lecturer, judge, Solicitor General and anti-corruption czar among many other achievements.

The reason I raise this objection is because one of the alleged wrongdoers was once the boss of the chairman in his capacity as chairman of the advisory board of the Kenya Anti-Corruption Commission, and this wrongdoer approved remuneration for the chairman reportedly more than the President at the time.

They must have been good working buddies at one time or the other, know each others ways, strengths and weaknesses. The wrongdoer, for reasons I know not and am hardly qualified to allude to, left his post in a huff and the Chairman may well be privy to certain issues that at best may cloud his legal mind. In the circumstances, justice may not be seen to be done.

And when the chairman was vying for the high office of Supreme Court judge, and was not shortlisted, there was a public acrimonious exchange between the chairman and one of the very vocal alleged wrongdoers in the JSC. Parties may make a case for the chairman to bow graciously out of his judicial duties. And he must be magnanimous enough to recluse himself in the interests of justice and fairness.

The Law Society of Kenya should refuse to further ignite the smoking ship by saying that the elections to nominate new members to JSC must go on. If one member wrongdoer decides not to stand, then JSC may be able to continue working with the inclusion of a new face representing the law society.

Indeed, LSK may well be, in the interim, the only institute that can take steps to get into a national dispute resolution situation and give JSC a lease of new life. How? By contriving its two serving nominees to resign and by appointment of two new faces.

Regrettably a cauldron of legalities is about to boil over, and the ordinary litigant will feel the heat in times to come!