Ahmednassir Abdullahi during the vetting of applicants shortlisted for
the position of Chief Justice on May 4,2011. Photo/HEZRON NJOROGE |
FILE
My three-year term representing lawyers at the
Judicial Service Commission (JSC) has been exceptionally fulfilling and
extremely challenging.
Fulfilling because I saw how a
dedicated team with the right vision and commitment could transform an
institution that was hitherto owned and run by a motley unholy alliance
of lawyers, conniving judges, politicians and pimping conmen.
Challenging because it has taken its toll at a personal level.
When
I was elected to this position three years ago, there were 17 strong
candidates, and I won with 50 per cent of the vote. I was elected
despite strong resistance from State organs, a section of judges and
strong lobbying by wealthy Kanu lawyers.
I was against
parliamentary vetting. This was because the Constitution does not allow
it. The JSC is the only commission where the majority of its members are
elected by the constituencies they represent. The Constitution allows
vetting for only the two members appointed by the President.
My
vetting was a torturous process. I was a marked man. A number of senior
Kanu lawyers and their surrogate judges pulled strings to ensure that I
didn’t pass. They flooded Parliament with petitions that I should not
be confirmed. Strangely the geezer lawyer behind the entire scheme
didn’t author a single letter. He used what he fondly calls “launcher
law firms”. He lobbied MPs heavily.
The House committee
asked me all kinds of questions touching on drug trafficking to why I
was allegedly holding billions of shillings in my client account for
Somali pirates.
I found most of these questions quite
ridiculous. But I later got to know who instructed some Members of
Parliament to pursue this line of interrogation. I thought that if they
really wanted to know the truth, the Central Bank could supply them with
the most accurate information.
I came to learn later
that one of the security agencies that normally undertakes background
checks submitted a detailed three-page report. In the report, the agency
alleged that I held, in my client account, billions belonging to known
drug traffickers and Somali pirates. It also made a number of
allegations touching on my person that were simply unbelievable and
quite offensive.
ATTACK WAS PERSONAL
The
most disgusting of the allegations touched on my wife. According to the
report, my wife had fled the country and relocated to the US due to
violent abuse on my part, and that I was a wife beater unsuitable to
serve on the JSC.
Fortunately, some members of the
committee and third parties who saw the report vouched that, indeed, I
was happily married, and my wife had just given birth to twin daughters
two months before my vetting. Three defining features of my tenure need a
bit of elaboration.
The first was the recruitment of
the chief justice. Kenya is the only country in the world that recruits
its chief justice in a transparent manner. I personally knew the judges
who were shortlisted for the position of CJ. The only person that I had
not met before was Dr Willy Mutunga. I was, however, familiar with his
history in the struggle and his scholarly writing.
My approach to the interviews was simple. I collected the historic and controversial judgments by the candidates.
I
studied the same in great depth. I solicited information from lawyers
on a given candidate. I unearthed their properties, farms and houses. I
made copies of the Ndung’u Land Commission [report]. I had a credible
dossier on the corrupt dealings of some candidates.
I
then asked them direct questions. Many apologists of the old order have
endlessly accused me of being rough and unmannerly in the interviews.
Most are lawyers and others orphaned by the process. I tell them to go
to hell! It would have been blasphemous to entrust the new Judiciary to
Kanu zealots of yesteryears.
But was I biased against
the Kanu judges? I was ideologically and philosophically biased. It is
only natural. When you carry the grievances of an entire nation against
the Judiciary on your shoulders, you cannot pretend to be neutral in a
historic process that weighs in the balance their acts of commission and
omission.
With hindsight, I think the judges were
utterly naïve. How, for a moment, they thought they could pass public
scrutiny of their records is simply beyond my comprehension. They failed
the easiest of tests, which was an audit of their record as judges as
reflected in their past decisions. If I had interrogated them on the
damaging intelligence dossier I had, some would probably have had a
cardiac arrest!
The second highlight is the removal of
Nancy Baraza and Gladys Shollei. Barasa was involved in some altercation
at a shopping mall. JSC, after investigation, was convinced that the
matter raised troubling issues. Shollei, on the other hand, was accused
of a litany of grave financial impropriety and was sacked by the JSC.
I
think Baraza conducted herself with class. Despite her removal and the
excruciating nature of trial, she never lost her head. Second, the
political elite from her community acted with commendable restraint.
Kenyans were not subjected to the tribal cry that “our daughter is being
finished”.
The Shollei saga became a direct
confrontation between the Executive and the JSC. I was personally warned
that I had crossed a red line and would bear the consequences if
Shollei was dismissed. It took [on] huge political overtones.
The
reason was simple. With an annual budget of Sh16 billion and a massive
100 per cent increase in the employees of the Judiciary there are those
in the political elite who saw the Judiciary as a fattened cow they
would endlessly feast on.
My third experience relates
to the importance of the JSC, which has 11 members. Five are judges.
Four are presidential appointees. Only two who represent the law society
are independent members.
Many people falsely make the
unfair accusation that I own and run the JSC single-handedly. The most
powerful member of the commission is the CJ. After that, other members
are equal, although a lot depends on one’s foresight, character, vision
and history.
If the government wants to manipulate the
JSC, it can do so easily, especially if the representatives of the Law
Society take instructions from State House or the Governor’s parlour.
Remember the President appoints four commissioners.
From
my experience, the commission is important to both the country and the
Judiciary. It doesn’t need members who have no clue about what is at
stake, no vision of the Judiciary Kenyans want, or who don’t appreciate
the Executive’s designs on it. It certainly doesn’t need members who are
sponsored projects of the political elite.
For the
JSC to deliver to Kenyans, its independent members must have a track
record in judicial reforms, be independent of powerful politicians, and
have a history of truthfully chronicling the truth, justice and
reconciliation of Kenya.
I kept my bargain.
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