Judges in the dock over Kadhi Courts
By Athman Amran, Cyrus Ombati and Harold Ayodo
The storm ignited by a court ruling Kadhis’ Courts are illegal has put the Judiciary in the dock of public opinion and made judges subject of upcoming debate in Parliament.
It has also brought into sharp focus Justice Joseph Nyamu who was among those who wrote the High Court’s judgement for a case that started in 2004, despite his having been elevated to the Court of Appeal.
Already the Attorney General who is the Government Legal Advisor has filed formal notice he would appeal against the ruling that has excited the ‘No’ camp, infuriated the ‘Yes’ side and elated Churches opposed to clauses on Kadhi courts in the Proposed Constitution.
The ruling on a suit by Christian clerics who opposed inclusion of the courts in the Constitution also focused attention on the division of the High Court that deals with constitutional issues. The division is called Constitutional and Judicial Review Division. It deals with suits against the Government and issues that deal with interpretation of the law.
This is the court division, that in a judgment read by Nyamu in 2008, gave an order seeking to temporarily shield the defunct Electoral Commission of Kenya (ECK) under Mr Samuel Kivuitu from disbandment by a resolution of Parliament.
Kisumu Muslims Forum Chairman Aslam Khan (right) and other leaders condemned Monday’s High Court ruling. [PHOTOS: TITUS MUNALA AND COLLINS KWEYU/STANDARD]
Kivuitu’s team was then under attack over the 2007 election mess and violence set off by the electoral dispute. Today, President Kibaki’s Party of National Unity and Prime Minister Raila Odinga will hold a joint Parliamentary Group meeting to discuss the threat posed by the ruling by Justices Anyara Emukule, Roselyn Wendoh and Nyamu to the Proposed Constitution, which they officially support.
Wendoh and Emukule are members of the court division.
Raila and Vice President Kalonzo Musyoka are out of the country but Kibaki is expected in the meeting at Kenyatta International Conference Centre alongside ‘Yes’ team heavyweights in Cabinet, including Prof Anyang’ Nyong’o, Mr Henry Kosgei, Mr Mutula Kilonzo, Mr Kiraitu Murungi and Prof George Saitoti.
Imenti Central MP Gitobu Imanyara revealed he filed a Motion for the House to discuss the ‘conduct’ of the three Judges and review the rulings they have made before Monday’s that inclusion of Kadhis’ Courts in the Constitution discriminated against non-Islamic faiths.
“I have filed a formal notice to have the conduct of the judges discussed in the National Assembly,” Imanyara revealed during a Press conference at Parliament Buildings.
Among issues Imanyara wants discussed is why the judges delayed giving judgement on the case, which was concluded over 14 months ago, and only released it this week, two months to the referendum on the Proposed Constitution.
He also urges the President to appoint a tribunal under section 62 of the Constitution to investigate the conduct of Justices Emukule, Wendoh and Nyamu.
He wants the matter discussed as soon as Parliament resumes its sittings next month. He said he would ask fellow MPs to review the “trend of judgments” made by the three judges in the past to see if they have been “unfair, biased or unpatriotic”.
An MP has filed a Motion in Parliament to debate the conduct of the three judges and has urged the President to appoint a tribunal under section 62 of the Constitution to investigate the conduct of Justices Nyamu, Wendoh and Emukule.
“The Judges should explain why they chose this particular time to give the judgement. Was the intention to sway public opinion in favour of the ‘No’ camp?” Imanyara asked.
He also wants Parliament to discuss the constitutionality of Justice Nyamu’s presiding role over a judgement in a High Court when he was promoted to the Court of Appeal.
There were also reports the country’s top security chiefs are set to meet today to among other things discuss the impact of the ruling.
Sources revealed there was a general feeling among the security chiefs the judgement was weighty and had a national security implication.
Matter of security
The meeting was first scheduled for Tuesday at the Office of the President, but according to the sources it was pushed to today to allow the security chiefs “to gauge the mood of the country”.
“You know what it means to touch on the Kadhi courts in this country and especially at this time of constitution-making. It is a security issue,” said a senior Government official.
Among those expected at today’s meeting are Internal Security PS Francis Kimemia, Commissioner of Police Mathew Iteere, Director of National Security Intelligence Service Maj-Gen Michael Gichangi and Vice-Chief of General Staff Gen Julius Karangi.
Saitoti, who is the Internal Security Minister, is also expected. The officials are expected to review the security situation and brief the President.
Imanyara argued courts are not supposed to give orders in vain and wondered why judges went ahead with their ruling with knowledge their judgement would not effect any changes in Constitution.
“All the three judges were Christians yet they sat without any Muslim judge and gave a ruling on a matter that only affects Muslims thus giving a Christian perspective,” he argued.
“The proceedings were completed more than a year ago. The case was completed when Nyamu was still a High Court Judge. There was nowhere the case was listed for hearing since he was promoted,” Imanyara said.
Parliament would also question the legal basis on which the judges were “questioning constitutionality of a provision in the Constitution”.
“When they say a unconstitutional provision is unconstitutional, what Constitution do they have to measure against the current Constitution?” Imanyara, also a lawyer, asked.
“It was an inspired piece of political activism disguised as judicial wisdom. The Constitution is the supreme law of the land so Justice Nyamu and his two colleagues must tell us whether they have a secret Constitution that they referred to,” he said.
The Constitutional and Judicial Review Division deals with suits against the Government and issues on interpretation of the law.
The judgement on ECK read by Nyamu gave orders restricting AG and Parliament from undertaking any executive or legislative process to disband the ECK.
Speaker Kenneth Marende dismissed the ruling saying the Judiciary had no powers to silence Parliament. He argued the principle of separation of powers did not allow the Judiciary to interfere with the Legislature, which has law-making capacity while Chief Justice Evan Gicheru argued the Judiciary had powers to rule on any matter.
Court of Appeal
The powers of judges sitting in the division have also been subject of decisions by the Court of Appeal — the highest court in the country. In 2006, Court of Appeal Judges Riaga Omolo, Samuel Bosire and Onyango Otieno took issue with a ruling made by Justice Nyamu, who then headed the division. They said they wanted to set the record straight on the division Nyamu called “the Constitutional Court”
They were ruling on an appeal filed against a ruling delivered by Justice Nyamu on case No1382 of 2003 involving Peter Ng’ang’a Muiruri and Credit Bank Limited. The ruling is available on the Kenya law reports website.
They said Nyamu assumed he was sitting in a court that had supervisory powers over all other courts. “Justice Nyamu’s decision was based on the mistaken belief that the Constitution created a Constitutional Court with supervisory powers over other courts,” the judges said in their ruling.
They also said “the Constitutional Court” was non-existent saying the Constitution established the High Court, Magistrate, Kadhis’ and Court Martial. “It is our view that Justice Nyamu considered this issue to give him opportunity of answering his critics and popularise his view and powers of his jurisdiction,” they ruled. “The law is not on his side,’’ they concluded.