Storm as ‘ghost’ CJ approves new code of ethics

A storm has erupted in the Government after a judicial document purportedly approved by retired Chief Justice Willy Mutunga a month after he retired, was gazetted.

A new set of judicial code of conduct and ethics was sent to the government printer and a special issue of the gazette notice, Kenya Gazette supplement No 124 published on July 29.

This special issue of gazette notice was purportedly approved for publication by Dr Mutunga on July 15. Mutunga retired from office on June 16.

The new judicial code of conduct and ethics, which essentially revokes the earlier code of conduct, was not taken to Parliament for approval as the Statutory Instruments Act stipulates.

Most government officials The Standard on Sunday spoke to were reluctant to discuss this matter. Government printer Sylvester Migwi said he was out of office and could not, therefore, discuss the issue.

“If anything I will want to look at the original documents,” he said.

Judiciary Chief Registrar Anne Amadi answered our call, but disconnected almost immediately. She would not answer subsequent calls or respond to text messages.

Rift in Judiciary

The gazettement of this legislation has caused a rift both in the Judiciary and the Government as blame game ensues.

A JSC commissioner, who did not want to be named, said although discussion on a new code of conduct had taken place within the Judiciary, no agreeable and conclusive draft had been done.

“The truth is that discussion on a new code of conduct has been going on, but what we have seen is shocking because other than the fact that we have not concluded discussion on this matter, some things in that document haven’t been discussed,” said the commissioner.

The Statutory Instruments Act 2013 requires that before a regulation-making authority makes a statutory instrument, it shall consult appropriately with persons likely to be affected by the proposed instrument.

The Act applies to every statutory instrument made directly or indirectly under any Act of Parliament or other written legislation.

The Act further dictates that such statutory instruments must be submitted to Parliament for consideration and approval.

“The purpose of this part is to facilitate the scrutiny by Parliament of statutory instruments and to set out the circumstances and manner in which the statutory instruments, or provisions of the statutory instruments may be disallowed, as well as the consequences of the disallowance,” reads the Act.

The Law Society of Kenya, a key player in the country’s Judiciary, too was not consulted.

“As far as we are concerned, we were not consulted on that subject. We never got to participate in drafting those regulations” said LSK Vice President Faith Waigwa.

Although the chairman of the National Assembly Committee on Delegated Legislation, William Cheptumo, was not available on phone to comment, a member of the committee, Mukurwe-ini MP Kabando wa Kabando, confirmed that the document was not taken to the committee.

“It never came to us. We haven’t even heard about it,” he said.

This comes amid internal wrangles within the Judiciary. At least one Supreme Court Judge, Njoki ndung’u, and the Judicial Service Commission have been sued.

According to court documents, Amado, who the JSC secretary, has filed a 43-paragraph reply to former LSK CEO Apollo Mboya’s suit seeking to force the commission to start a removal process for Ndung’u over alleged misconduct.

Amadi sought to have the case closed. She also sought to cripple her only defence against strike claims, Supreme Court judges’ meetings minutes during the claimed period of the go-slow.

She asked the court not to consider judge Ngung’u’s annexures bearing Supreme Court minutes dated October 6, 2015, saying  it amounted to the High Court opening and interrogating confidential proceedings from its superiors.

“I verily believe that it would not be appropriate for this court to delve into the substantial claims of the petitioner, and the accuracy or otherwise and the legal or actual effect of the said minutes,” she stated.

In the new code of conduct, confidential information has been defined as “information that has not been made a matter of public record relating to pending cases, as well as information not yet made public concerning the work of any judge or magistrate relating to pending cases, including notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations and similar papers”.

Amadi, in her affidavit, painted a humiliation picture of the Supreme Court judges being summoned by the High Court to stand on the dock and give evidence if any meetings were held in support or opposition to Ndung’u’s argument that she did not down her tools in protest against the judges’ retirement age.

It was her testimony that if the annexures were allowed to be part of Ndung’u’s defence, it would be improper and in breach of judiciary’s independence.

Judicial Independence

She said, “I am further advised by our advocates on record, whose advice I verily believe, that the Court should decline to consider substantive matters touching on the aforesaid confidential minutes, since this would require the Court to invite the various judges of the Supreme Court to give evidence before the High Court and be cross-examined on judicial deliberations, and would constitute an improper violation of judicial privilege and violation of judicial independence.”

Amadi said proper scrutiny of the minutes could only be done by the JSC.

“Any review of such matters is appropriate for the JSC, which is capable of manifesting and respecting judicial independence and accountability during its proceedings,” she said, adding that the commission had been following the law and acting fairly at all time.

The registrar said that although the commission had reviewed Mboya’s claims and found that Ndung’u’s conduct and that of Justices Mohamed Ibrahim and Jackton Ojwang was wanting, its hands were open for more information that could lead to a removal process.