Uprooting mischiefs of Kenya's past Chief Justices

Once again, some sad events took place as I wrote my piece.

First was Britain’s choice to leave the European Union. The pound has already fallen by 10 per cent against the dollar and we hear rumours of a financial collapse.

Second, the Pangani Six. First there were the Kapenguria Six, then the Ocampo Six, and now the Pangani Six. 666 is a scary biblical number.

Certainly, there is nothing in common between these three groups, save for the fact that the Kapenguria Six and the Ocampo Six had a president amongst them, both from Gatundu.

We hope this coincidence stays thus and that there is no President among the Pangani Six, for only Moses Kuria is from Gatundu.

This week I wanted to give the readers a historical snapshot of the Chief Justices we have had in Kenya, to help us reflect on the type of Chief Justice we should get now that Willy Mutunga has retired. The Brexit notwithstanding, this is what we will do.

Sir Alfred John Ainley, was the first CJ of independent Kenya, from 1963 to 1968. His appointment was published by the London Gazette on 8 January 1963:

The QUEEN has been pleased to give directions for the appointment of Sir Alfred John Ainley, M.C., formerly Chief Justice, Unified Judiciary of Sarawak, North Borneo and Brunei, to be Chief Justice of Kenya.

Ainley's tenure was tainted by the dismissive judgment he delivered on the matter of the assassination of Pio Gama Pinto in 1965. He said “the case wears an unfinished aspect…we may not have all who were involved in the crime before us”.

Only Kisilu Mutua was convicted and sentenced to a life imprisonment. Ainley was succeeded by Arthur Dennis Farrel, appointed by President Jomo Kenyatta on May 2, 1968. He had the shortest stint in office as he retired in July of the same year.

His most significant case was the appeal by Bildad Kaggia, one of the Kapenguria Six, against his one-year conviction for holding a political meeting without a license. Justices Farrell and Dalton upheld the conviction but reduced the sentence to six months.

In July 1968, Kitili Mwendwa was appointed Kenya’s first African CJ and the youngest, being 38 at the time of appointment. He stayed on until 1971.

Kitili was probably the most educated African lawyer at the time, with a bachelor’s degree from Exeter University and a master’s from Oxford.

He had served as the Solicitor-General before ascending to the top seat in the Judiciary. After his stint as CJ, he took an active part in politics and was the Kitui West MP during his demise in a tragic car accident in 1985.

It is during his tenure that the El Mann doctrine, well known in constitutional law circles, was formulated. His widow, Nyiva Mwendwa, is the current woman representative for Kitui County.

TOO SUBSERVIENT

Kitili was replaced by Sir James Wicks in 1971. Sir James was too comfortably subservient to the Executive, and ushered in an age of judicial cosiness with it.

He served in two presidencies — Jomo Kenyatta’s and Moi’s — and if there is one judge who may take the blame for the recent drama in the Supreme Court over retirement age, it must be Wicks.

In 1982 a suitable replacement, Sir Alfred Henry Simpson was appointed. Simpson, who lasted for three years, was a career lawyer, having served as Counsel for the British Military Administration, Crown Counsel to Singapore and High Court judge in Ghana and Malaysia before making his entry into Kenya as a judge in 1967.

He was appointed the Chief Justice of Kenya on March 19, 1982 by President Moi. The high-profile cases he presided over included the trial of Nahashon Isaac Njenga, who had been accused of assassinating Tom Mboya.

Simpson also heard and determined a landmark case in constitutional law, Margaret Magiri Ngui v Republic in 1985, which stated the position that “bail as a general rule should not be granted where the offence charged carries a mandatory death penalty, so great is the temptation to abscond or 'jump bail' in such cases.” The 2010 Constitution reversed this rule.

POETICAL JUDGEMENTS

In 1985, Simpson was succeeded by one of the most prestigious and prolific Chief Justices Kenya ever had, Chunilal Bhagwandas Madan. Madan was more than Kenya’s finest Chief Justice and his account is as yet unsoiled. His prose and poetry added a touch of distinction to his judgments. Take for instance his closing statement in Stanley Munga Githunguri v Republic (1986):

Stanley Munga Githunguri! You have been beseeching the Court for Order of Prohibition. Take the order. This Court gives it to you. When you leave here raise your eyes up unto the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya.

Madan relinquished his position to Cecil Henry Ethelwood Miller in 1986. Miller served as the Kenyan top judge for three years. His tenure saw the hearing and determination of the SM Otieno case, in which he issued a terse warning to the advocates and litigants:

 stop fooling around with the judiciary and judicial processes … ye advocates and litigants must assist the courts to remain true umpires and not subjects of your private empires… I want to see no more of the cat and mouse play in the courts. Decide what is your true complaint and come to us: and then by constitutional and sworn duty we will umpire.

Miller’s critics allege that he had the unbecoming tendency to interfere with other judges’ work. He died under mysterious, controversial circumstances and was succeeded by Alan Robin Winston Hancox in 1989.

UTILITY OF EXPATRIATES

Hancox was the stepson of one of his predecessors, Simpson. He started his career in the Kenyan Judiciary as a magistrate in 1957 before shifting location to Nigeria and later coming back to Kenya. He was appointed to the High Court at Mombasa in 1965 and four years later, in 1969, as a High Court judge.

Hancox is criticised for his lack of independence, and he showed an uncomfortable leaning to the Executive. He died in 2013. After him, the Ghanaian-born Fred Kwasi Apaloo became CJ for a year. He studied law at University College Hull before being admitted to the English Bar in 1950. He joined the Ghanaian Judiciary a decade later, quickly rising to become Ghana’s CJ in 1971.

Upon his appointment as the Chief Justice of Kenya in March 1993, he attained the distinction of having served as the top judge in two African countries. He shared a bench with his successor Justice Abdul Majid Cockar, who succeeded him in 1994.

Cockar is best remembered for conscientious humility, which earned him praise and criticism at the same time. He retired from the bench in 1997 and authored a book titled Doings, Non-Doings & Mis-Doings by Kenya Chief Justices 1963–1998, which was published in 2012.

According to one review, the book is “an insider’s account of a world not normally open to public scrutiny. It talks about corruption and sycophancy, the utility of expatriate judges, and political influence in Kenya’s judicial system.” Cockar sat on the bench that saw the controversial dismissal of Kenneth Matiba’s election petition on the basis that it did not bear President Moi’s signature.

LAST OF THE OLD GUARD

He was followed by Zacchaeus Richard Chesoni, appointed CJ in 1997. His appointment as CJ was marred with controversy following his record of financial troubles as a High Court judge.

While many questioned his capability, President Moi showed his confidence in him. Before his appointment, Chesoni was the head of the Electoral Commission in Kenya. Allegations of corruption and financial incompetence haunted his judicial career. His health deteriorated and he died in September 1999.

Bernard Chunga was appointed on September 14, 1999 by President Moi. He oversaw the change of regimes from the Moi to the Kibaki administration.

Before his appointment, he had served as the Deputy Public Prosecutor and as lead counsel in the Commission of Inquiry into former minister Robert Ouko’s death. His eventual successor, Justice Evans Gicheru, headed that commission.

Chunga was accused of having planned, condoned and carried out torture during his tenure as a public prosecutor; as being corrupt and interfering with judges. He resigned before a tribunal set up to investigate his conduct could do so. 

Johnson Evans Gicheru became the last of the old regime’s Chief Justices. He served from 2003 to 2011. One of his legacies is the "radical surgery" of the Judiciary.

This was part of the reforms introduced by the NARC coalition government. His lowest moment is perhaps the swearing in of President Kibaki at dusk in 2007 amidst the contested elections and allegations of rigging. He was the first person to swear allegiance to the 2010 Constitution and also one of the first people to leave office under it.

As the new Constitution was ushered, the mood in a section of the political circles was still pre-constitutional. The President had always appointed the CJ, and Kibaki was misadvised to continue with this post-independence tradition.

The President jumped the gun by nominating Justice Visram, the one publicly nominated CJ Kenya never had. A dispute arose and it became clear that the CJ’s appointment was the exclusive prerogative of the Judicial Service Commission.

INNOVATIVE JURISPRUDENCE

After some grueling public interviews and cautious vetting, Willy Mutunga was nominated. Independent-minded, he was new to the judicial system and politically unpredictable.

Willy Mutunga ushered in an unusual type of judicial independence, where he would not tell any judge how and what to decide. This was perceived by some as a sign of weakness, but in reality judicial independence is the most precious hallmark of a true judiciary.

This new type of freedom threw the judicial apparatus into a sort of disarray. Jurisprudence’s consistency in Kenya had been pegged to two major factors, a very prescriptive and reduced Constitution and the Executive’s constant direct or indirect influence.

Once judges felt this freedom, they went on to decide as they pleased, founding their sometimes perplexing innovative jurisprudence on an amazingly broad Constitution.

The waters will settle, some changes will be unavoidable, but this was clearly the result of a sense of freedom only curtailed by the judge’s sense of justice, and some times just by the willingness to innovate and think outside the box.

Justice Mutunga’s legacy will be better viewed after the dust of his retirement has settled. Critics claim that they were let down by the inconsistent and superficial jurisprudence emanating from the Supreme Court, and the JSC will need to be aware of this when choosing the new judges.

As the new applicants submit their CVs, all we can hope for is transparency, accountability and professionalism in the appointment of the new CJ.

We all hope that the JSC will seek in the future CJ a person who is good at managing, delivering, and uniting, while at the same time being a jurist of depth and conviction, but this is a matter for another day.

Dr Franceschi is the dean of Strathmore Law School. [email protected], Twitter: @lgfranceschi