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Why tribunal cleared Ojwang' and indicted the judicial commission

By Kamau Muthoni | Aug 6th 2019 | 5 min read
Supreme Court Judge Jackton Ojwang' (left) with his lawyers Daniel Musyoka (right) and Nani Mungai shortly after a tribunal set up to investigate his conduct found him innocent yesterday. [Standard]

The Judicial Service Commission (JSC) has been accused of flouting the Constitution and failing to ascertain evidence in recommending the removal of Supreme Court judge Jackton Ojwang'. 

A tribunal that cleared Justice Ojwang' expressly stated that the petition against the judge was as a result of a process that was procedurally irregular, unfair and carried out in breach of JSC constitutional and legal obligations.

The tribunal, chaired by Court of Appeal judge Alnasir Visram, also noted that JSC was in breach of the judge’s constitutional rights to fair administrative action and natural justice.

In its 148-page report submitted to President Uhuru Kenyatta, the tribunal painted a picture of a commission that was hell-bent to railroad the complaint without bothering to scrutinise what had been filed.

For instance, the tribunal found that the JSC never bothered to visit a road in the judge's rural home that was alleged to have been constructed by area governor to influence Ojwang'.

The JSC was also criticised for disregarding evidence by an expert witness (a surveyor hired by the commission) that demonstrated that the road was public and not private for the judge's use.

The tribunal said the JSC was only keen to stamp its authority as an employer by locking out the judge when he failed to appear before the commissioners in person, even when he pleaded with them to re-open the case to enable him to appear.

While faulting the Justice David Maraga-led commission, the tribunal observed that there was no written regulations by the JSC requiring the judge to be present in person.

It found that he had notified them that his lawyer, Nani Mungai, would represent him, hence there was no need of locking him out of the proceedings.

When JSC secretary Ann Amadi was asked what procedure was used during the disciplinary process, she referred the tribunal to a draft complaint manual.

Despite several requests for a copy of the same, it was never made available.

The tribunal found that JSC could not rely on a draft document to discipline judges. It concluded that JSC’s decision fell afoul of the principle of rationality and that it was done in bad faith.

Justice Ojwang' was required to appear before commissioners Mohamed Warsame (Appeals court judge), Chief Magistrate Emily Ominde, Justice Aggrey Muchelule, Mercy Ndeche and secretary Amadi.

He, however, raised his reservations regarding their hostility during the interviews for Chief Justice positions in 2016.

The tribunal observed that the style of questioning by three of the commissioners who he was being forced to again appear before, had more to read into than the normal interviews.

“We observed that in particular, commissioners Warsame, Deche and Muchelule’s manner of interview of the judge was overly aggressive, and to our minds went beyond the normal boundaries of inquiry between an interviewer and a candidate and would certainly result in any reasonable person credibly perceiving unwarranted hostility from the interviewer. We are, therefore, of the view that the judge’s fears were well-founded,” the tribunal observed.

It was puzzled why JSC did not require the commissioners to recuse themselves from hearing the case when the judge raised his concern.

It also emerged that even when JSC hired a surveyor to go ascertain whether the road alleged to have been built by Migori Governor Okoth Obado for the senior judge, they never stepped foot to ascertain whether it was true or not.

They never called the surveyor to testify when they were taking evidence against the judge.

However, the commission still held that there was proof that the road was a private utility, built for the judge.

“The tribunal, therefore, could only arrive at the inescapable position that any properly mandated body in assessing the JSC’s decision to advance the petition to the President in this instant case, would find such action as being null and void in law and the petition itself would, therefore, not stand,” the report reads.

Justice Visram’s team report added: “We wonder what applicable rules the JSC applied in arriving at its decision. In the absence of any written procedure or rules available to the judge and counsel, the judge was forced to either appear in person or be shut out of the process entirely.”

Hearsay, witnesses admitting they had no issue with Ojwang' were also among reasons the judge was cleared.

Star witnesses Nelson Oduor testified that the relationship between Justice Ojwang' and Migori Governor Okoth Obado was that they held high State offices. According to him, it is common for persons who have "high offices" to go see each other and share.

He went ahead to state that he heard rumors that the road in question was being built by Migori County, that some residents held demonstrated as the project was viewed as an inducement to the judge.

He created a bias connection by alleging the judge, during interviews for the Chief Justice position in 2016, had talked about the case. It, however, emerged that the Supreme Court had ruled on their case two years before, in 2014.

Another witness, Eliud Ogutu, told the tribunal that his main problem with the judge was that he hailed from Awendo and the contested land was in the same area.

Pressed by the lead counsel Paul Nyamodi, he testified that he associated the judge with his land being taken away simply because he was a judge of the Supreme Court.

Delivered ruling

Rose Akumu also testified against the judge. She claimed she considered the judge and the governor to be friends simply because he delivered a ruling on behalf of other judges.

However, the ruling in question was unanimously agreed on by a Supreme Court bench composed of the then Chief Justice Willy Mutunga, his deputy Kalpana Rawal, Justices Mohamed Ibrahim, Njoki Ndung’u, Phillip Tunoi, Smokin Wanjala and Ojwang'.

Mijungu Misweta, another witness, testified that he knew that the governor and the judge were neighbours and that judge’s wife was given a job at Migori County.

However, the judge’s wife works with the National Government and not the county.

Three Supreme Court judges — Justices Ibrahim, Wanjala and Njoki testified in the trial. They asserted that the ruling on Awendo sugar belt and the election petition was unanimous and that the Ojwang' did not exert any pressure on them.

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