Last week’s disclosure by The Standard of the names of four High Court judges whose appointment to the Court of Appeal is objected to by the State went without much debate.
But in the background it appears to have precipitated the preparation for one of the fiercest battles ever seen between the Judiciary and the Executive.
The Standard, in an article quoting court documents in a case filed by Adrian Kamotho, a city lawyer, seeking to compel the President to gazette the appointment of the judges, named Justices Joel Ngugi, Aggrey Muchelule, Mumbi Ngugi and Francis Tuiyott as the ones being objected to by the State, along with eight other candidates.
The National Intelligence Service wrote to the Judicial Service Commission ahead of the conclusion of the interview process and gave a list of candidates they claimed were tainted.
Subsequently, the Chief Registrar of the Judiciary, Anne Amadi, who is also the JSC secretary, wrote to the NIS seeking more information on why they had blacklisted the candidates in order to give them a chance to defend themselves.
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NOTHING ON THEM...
NIS Director Philip Kameru responded that the agency was not willing to share the information. Subsequently, JSC proceeded to announce the successful candidates, disregarding the NIS disapproval. Keen observers of the local legal scene must have been left wondering what could have led to the discomfort about the four, considering that some of them are among the most respected members of the Bench.
Take Judge Mumbi, for example. Although she is a fairly recent entrant into Judiciary service, she is easily the most celebrated judge on the Bench, comparable only to Chief Justice David Maraga in terms of the recognition awards she has received. Because of her rulings particularly while she served in the Constitutional Court, she was named Jurist of the Year by the International Commission of Jurists (ICJ) in 2013.
In 2018, she was awarded the CB Madan Prize, given to the Chief Justice the previous year. In their citation, the prize selection team referred to her as “one of the greatest legal minds of this generation. She has had an undeniable impact on the interpretation of the 2010 Constitution, including the Bill of Rights. Where the opportunity presents itself, she looks for ways to expand the law to protect the weak, just as C B Madan would do.”
So how can such a celebrated judge be rejected by the State? For what sins of omission or commission did the NIS put her on their list? Are we seeing in Kenya the same ideological confrontations that accompany the appointment of senior judges in other countries such as the United States?
In the case of Joel Ngugi, being in the list of NIS Four is particularly puzzling because, even though he has given a number of progressive judgements, he does not stand out for ground-breaking rulings in the same way Mumbi does.
Reformist zeal
His problems, according to Judiciary insiders, stem from his work in Judiciary leadership during the tenure of Chief Justice Willy Mutunga, particularly his role in the Judiciary Transformation hurricane that swept through the entire institution in 2012.
Prof Ngugi, a highly articulate and driven professional who took over the reins of the Judiciary Training Institute (JTI) from Attorney General Kihara Kariuki, was instrumental in the design of the Judiciary Transformation Framework, Dr Mutunga’s signature blueprint. He was to quickly turn the JTI from a moribund custodian of irreverent conservativism into the engine for the transformation of the entire Judiciary, creating a progressive institution that was in tandem with the spirit of the new Constitution.
But why would his success at the JTI, and JTF, come back to haunt him?
Judiciary insiders say a top judicial officer never forgave “the young and brilliant” Harvard-trained professor for out-performing him so exorbitantly at the JTI, and in the process exposing the inferior stuff he is made of. A highly conservative fellow who plays by the safest rules in the book, the former JTI director is said to have told Mutunga that the transformation he was dreaming about was impossible to achieve. Mutunga promptly transferred him to the Court of Appeal where he later became the president and gave the JTI director job to Ngugi.
No place for a good judge
The rest, as they say, is history. In just a couple of years, the number of High Court judges had more than doubled; Court of Appeal stations increased from one to four; pay and perks for Judiciary staff became nationally competitive; and every member of staff had been trained on the imperatives of the Judiciary Transformation. In one fell swoop, all traces of Kanu-era judicial impertinence had been wiped out. Together with his associates in the so-called Change Secretariat, the team worked so hard, and had such impact but at a great personal cost. Stories are told of how Ngugi’s son once wrote to the Chief Justice to complain, saying: “We don’t ever see our dad, please can we have him back?”
So why would anyone want to trim the wings of such an effective high-flier? Is it a ridiculous case of envy being turned into State policy, or is it a genuine belief that this kind of dynamism has no place in the Court of Appeal?
People who are knowledgeable about the interviews for the Court of Appeal judges say there were clear signs that some Government representatives were on a mission to lock out some of the candidates. For example, even though Prof Ngugi performed brilliantly at the interviews, knowledgeable sources say Executive representatives on the panel gave him the lowest score possible. He was saved by the top score he earned from the rest of the panel who evaluated him objectively, many of who admired his excellent performance in all his assignments.
President's hands tied
In regard to the other two judges - Aggrey Muchelule and Francis Tuiyott - it is unclear what beef the State has against them. Mr Tuiyott, son of the late High Court Judge William Tuiyot is seen to be paying the price for his perceived closeness to Deputy President William Ruto, or just a fear that he might be accessible to the Kalenjin centres of power. But would this cause the State to flag him out?
Many questions remain about the emerging stalemate. Did the President’s advisors mislead him into becoming involved in an unnecessary battle, motivated by personality clashes, that he can never hope to win?
Mr Kamotho, in his suit at the High Court’s Constitutional and Human Rights Division, lists the AG - the President’s legal advisor - as a respondent, along with the JSC and Mr Maraga.
The law is silent on how long the President can stay without acting on the list of appointees. But Mr Kamotho asserts that the President should confirm them “as soon as possible”. “The indefinite delay in appointment of superior court judges recommended by the first interested party (JSC) in the current instance amounts to unreasonable delay, and is offensive to the proper administration of justice,” said Mr Kamotho.
Mr Mohammed, an advocate of the High Court, practices in Nairobi.
