Everyone was looking forward to see who would become the first Chief Justice under the 2010 Constitution. President Mwai Kibaki had attempted, unsuccessfully, to appoint the now retired Court of Appeal judge Alnashir Visram for the position but was stopped by his then coalition partner ODM, civil society and the courts, which affirmed that the task of recruiting judges and the Chief Justice constitutionally belonged to the Judicial Service Commission (JSC).
But the Kibaki State House still wanted to have a significant say on who should become the next Chief Justice when JSC began the process.
Lawyer Ahmednasir Abdullahi ,
But even before he got to the recruitment of the Chief Justice, his own election to the inaugural JSC had faced headwinds. The then Director of National Intelligence Service (NIS) Michael Gichangi, a man he says knew him personally, almost sank the boat for him, only for MPs to save him.
Mr Abdullahi spoke to Nation on his time in the JSC, his views on the Judiciary past and present, and of course the political scene
Grand Mullah! A random Kenyan on the street will most likely know you by that name but has no idea who Ahmednasir Abdullahi is. How did this name come about?
First of all, Somalis and nicknames is something very common. When I was at the JSC and we were recruiting judges for the Kadhi Courts, there was an issue of Islamic law and Dr Willy Mutunga, the chairman of the JSC said, “We have a Grand Mullah here. If there is any controversy about the Islamic law, he is the one to resolve it”. That is how that nickname came to be.
But the current connotation was given by Gladys Boss Shollei, who was then the chief registrar of the Judiciary. When she had issues with the JSC, she and The Star newspaper sort of made me the fall guy. I think for six consecutive days, they put me on the headline. In one of them, they said ‘This man, the Grand Mullah’. That is how they popularised the name. It has become popular, when I am on the streets, people call me Mullah or Grand Mullah.
The relationship between the JSC and the government has often been antagonistic, especially under the current constitution. Why?
I was only in the JSC for three years though people think I was there for 10. During that time, even though people thought I was close to Uhuru and Ruto, the government was so antagonistic to the JSC. On the other hand, JSC was extremely independent. Nobody could influence us. When we fired Shollei, they tried to bring the whole house down.
This Jubilee government, unlike Kibaki, has been obsessed with controlling JSC. Because they are obsessed with control, they have kept on changing the two members of the public whenever they feel they are not effective enough. They have also influenced the elected members. If you look for example the representative of the law society, he is not one-tenth of what I was or one-twentieth of what Prof (Ojienda) was. That is a loss for the law society and the Kenyan public because the representative of the LSK in the JSC is one of the most important public representative. To make it worse, as law society, we even don’t have the woman representative because of what is going on at LSK. The JSC now is a fully government organ, that means the government can do what it wants, install whomever it wants, and discipline who it wants. Imagine now if they had that Ombudsman as proposed in the BBI. The Judiciary would have been completely finished.
When I compare the JSC then to what is there currently, this is a sham. During our time, of course I played a very strong role, I had my agenda and I make no apologies for that. My agenda was that all those Kanu judges should not go to the Supreme Court. I told everybody that we will not allow Kanu judges to come to the Supreme Court or to become Chief Justice. We wanted a reformist person and that is why we gave it to Willy.
How did you deal with government attempts to control JSC during your time as a member of the commission?
It is all about the integrity of the individual members. Let me give you an example, when we were recruiting the first Chief Justice under the 2010 constitution, the government lobbied members of the JSC that Kibaki needed three names. They were lobbying from the very top and it was very much coordinated, and some members of the JSC bought into that idea. I asked them the usefulness of having JSC as an independent commission if we have to give the President three names to make a choice. That is where it started and I led that resistance. Some members supported me but eventually they became a majority.
Some members who I will not mention here had really been converted by state lobbyists and insisted that the President be given three names. What for? The President has other things to do. The constitution and the statute did not say we give three names because the recruitment is a function of JSC. The government has attempted to amend the law variously and the courts have struck them down many times.
As a member of the JSC then, you were often accused of being part of the cartel that was influencing judges’ appointment and decisions. Did these allegations have any merit?
When I was at the JSC, I had very strong views on what kind of judges we should appoint. I think it should be clear that I was not neutral. A candidate would not sit there and we ask them general questions. I used to do a lot of investigations on the candidates, including the cases they have decided for serving judges. I also used to consult a lot with LSK.
There are lawyers and serving judges who applied but did not get the jobs they were looking for. They would go out and blame Ahmed for denying them the jobs. But even after I left the JSC, they applied and again did not get the jobs. So the Ahmed influence is not empirically true.
Look, Mutunga and I remain friends. I knew many people but not so much for Mutunga before he came for the interviews. My first physical interaction with him was many years ago when I was a young lawyer. It was during a prayer at Jamia Mosque. I saw him in the crowd and that is also the time I knew he was a Muslim. But we did not talk. When my term as chairman of the law society was ending, he called me to congratulate me for my service.
When he became CJ, I came to know a lot about him. He used to consult a lot and never made any big decision without involving the JSC. Also, you need to appreciate that Willy is wired and is connected to many power grids. He has friends in the NGO and civil society, his former colleagues at the university and many others. But a war council that meets to strategise? Never!
What is your assessment of former Chief Justice David Maraga era and the current Chief Justice Martha Koome? How do the two compare to Dr Willy Mutunga?
Under the 2010 constitution, the Chief Justice cannot be an ordinary judge. He must have some academic background. He must have some intellectual predisposition and be someone who can propound some deep theories of the law. Both Maraga and the current CJ don’t fit in that category. Willy was fortunate because he wore so many hats: a former chairman of the law society, he was in civil society, he was a university professor, and wrote a lot on law and governance. He was a man that was made for that moment and he did very well. But Maraga and Koome cannot stand on that pedestal.
Not very long ago, the current LSK president Nelson Havi and youself were on the extreme opposites. I would imagine that if the two of you met in some dark alley, it wouldn’t have ended well. Now you are the best of friends. What happened?
First, you need to understand that Havi was my student. We have a teacher-student relationship. I taught him when he was in his fourth year at the university. On many occasions, when we were in private practice, there are cases I led him either on his initiation or at his client’s instructions. So I would say we had very good relationship. But we had a fallout in relation due to the Tatu City case of which we were on opposite sides. And there was absolutely nothing wrong with that but he took it personally and if you look at the records, he was the one who was on the warpath. I don’t keep grudges. Sometimes we disagree but then reconcile. When he wanted to contest for LSK chairman post, he came to me and asked that we forget the past and requested for my support. I didn’t have a problem with that.
The other important point is that as a former chairman of the law society, no matter how it is run, the tradition is to always support the chairman. That is why I support him. To be fair to Havi, his style is abrasive and combative but he has done very good things. The main function of the law society is to be a watchdog against the State. That is something commendable and that is why I support him. People like myself and (Prof Tom) Ojienda and others who support him do so because we don’t want the chairman of the law society to fail no matter what disagreements we may have. It would be calamitous if we don’t support him. No matter what happened in the past and no matter how he has run the society, we can help him to achieve his goals.
What in your view is the problem with LSK? Would it help if all the council members, including the president and the secretary, resigned and allowed members to elect a new office?
Havi says that there is evidence that the government is involved and is weakening him with a view to controlling the society. I have no evidence. Of course I know from experience that the government is never a friend of the law society because it is one of the most important watchdogs of a government at any given time. The term of the current council is ending and in another five months, we will be going to the polls. The elections will be held one way or another because it is statutory.
From your tweets and public comments, it seems you are rooting for DP Ruto to become president and in fact you recently represented in court the Turkish businessman Harun Aydin – his ally. You are also representing the DP in the Weston Hotel case. What can you say about your relationship with him?
I tell my friends, Prof Makau Mutua and Donald Kipkorir, that I am not a card-carrying member of any party like themselves. I have also said that unlike many people who say that they are for Raila or Ruto or another person, I have never declared my support for anybody including the deputy president.
Of course you can see from my tweets I could be leaning on DP’s side and I don’t hide that. I acted for the President and the deputy in the last elections. I have an advocate-client relationship with them. I sat with them during those cases and some other things here and there. The DP is, therefore, someone I know. When you are a lawyer, you passionately believe your client and you disbelieve the other side’s case. Therefore, when I support Uhuru or Ruto, or I don’t support Raila, there is some lingering aspect from that advocate-client relationship that we developed.
The DP is also my neighbour in Karen. Our houses face each other. In my religion, we value a lot how you treat your neighbours. I have not declared that I am supporting the DP but I am sympathetic to him, I think I can say that.
We talk a lot. He calls me and I also call him. We are in constant communication. He seeks my advice on one or two things. We are not strangers. I speak with him often.
I don’t want to speak in the past tense but when Uhuru came in 2013, I was very fond of the candidate. I am one of the people who bought the agenda he put on the table. Uhuru ticked all the boxes in 2013: a young man, educated, nationalistic, no record of blemish. When the presidential petition came we jumped into it and did it to our best of abilities. After they formed the government, Uhuru invited us for lunch at his home, the whole team that defended the election. I was very supportive. The same in 2017. The last time I met him was when we were preparing for the presidential election petition.
Absolutely. When history is written of the Uhuru presidency, BBI is one of the biggest blunders he has committed. ‘Handshake’ was okay for me. If you want to bring the country together, it is a good idea. But that the president can take an initiative to amend the constitution in such a radical manner, create 70 new constituencies and proceed to distribute them according to how he wants… Uhuru tried to do the most radical reconfiguration of the politics and legal set up of the country since independence. For me, BBI was such an audacious attempt to overthrow the constitution that I could not stomach it. Actually, that was my point of departure. Uhuru exercised power in the most unrestrained manner and BBI was contemptuous of the people of Kenya.
In your view, would DP Ruto make a good president than his current boss, Uhuru Kenyatta?
If you asked me this question in 2013, I would have said no. To be fair, during those times, I was an Uhuru man. If you asked me this same question in 2017, I think I would have said that Uhuru is the right man for this country.
But I think the proper political education of Ruto started after the ‘handshake’. I think he has seen how humbling it is when you are not in power, how unfair you can be treated, and what abuse of constitutional power is. I hope and think he has learnt the importance of checks and balances. I hope he has learnt a very good lesson what an independent Judiciary is, something he did not know or appreciate before the ‘handshake’. Any person who went through such baptism of fire will change. I think, but not sure, that what he has gone through has changed his political DNA.
Yes and no. Elections are about numbers and in Kenya, those numbers come in the form of tribes. If you want to know if Raila will win elections, you should ask which tribes are supporting him now. If he becomes a candidate who is being supported by One Kenya Alliance, he has a good chance of winning because he will bring together his traditional base and the support by the president. But Raila’s candidature faces two fundamental issues: one is that it is now easy to portray him as a project of Uhuru or Uhuru’s third term. That man Kenyans used to believe would change the status quo and overthrow the system now has become the system’s candidate. That is the biggest problem Raila is facing. Two, he needs to build an ethnic power base. He must bring back the Luhyas and Kambas or he must have an assurance that central will give him a big chunk of the votes.
You see, Kenya politics is not the kind a stranger can come and mess up with. Kenyans elect people they know and the only ones they know properly today are Ruto and Raila. One Kenya Alliance has zero chance on earth. First, they will not agree among themselves as to who will be their presidential candidate. Mudavadi is hell-bent on running as is Kalonzo Musyoka. Gideon, I think to be fair to him, cannot bring even 5,000 votes. At the moment he would even struggle to win an MCA seat in Baringo. Apart from the name recognition, there is nothing else. Wetang’ula is slightly better than Gideon but doesn’t fare much better.
My view is that One Kenya Alliance is a mirage. It is a waste of time. If they want to be relevant and be in government, they must join either of the two sides. The third option is political wilderness.
I will start with an illustration. I acted for the intelligence services and the Office of the President during the Waki Commission. (The late Prof George) Saitoti was my good friend and he recommended me to act for the Office of the President and the intelligence.
I travelled with them throughout the country when the commission was holding its sittings. (Michael) Gichangi, who was then the director general of the National Intelligence Services (NIS) knew me personally because we met so many times along with his top people. They gave us classified information. He is someone who knows me.
When I was elected to the JSC, for his own reasons, he made up his mind that I should not be approved by parliament. During the vetting, which should not have been there anyway for elected members and that is the law today, my candidature got bogged down in parliament. One day I asked Caroli (Omondi, then the Prime Minister’s Chief of Staff) why the ODM side was blocking my path to JSC. Karoli called Millie Odhiambo, who was my classmate and was in that committee of parliament that was to vet me and then came back to me to say it was not ODM side that was delaying the process but the PNU side that had a problem with me.
I was told that Gichangi wrote about one paragraph for all the other candidates but did three pages about me. Among the issues he wrote was that Ahmed’s wife has left him, that because of that, he is not a man that can look after his family and, therefore, is not fit for this job. He said my wife was living in Canada. It is in the report. I am not making anything up. That time my wife was on maternity leave after giving birth to our last born twin daughters.
Then he also said that Ahmed is holding all the money from Somali pirates. That is the director of national intelligence! He said a lot of things. Millie and people who know me said the accusations could not be true.
I just wanted to give you that background, that people propound their own theories. Gichangi did not want me to be in the JSC and came up with many things that were lies. I come from Mandera. I have no godfather. During my early practice, whenever I was paid by a client I would make sure I buy suits, very expensive ones. I know which case has financed which suit. The first time I was paid Sh500,000 by a client, I framed that cheque for some time because that was a lot of money then.
