Judicial Theatre (Punch & Judyciary) PDF Print E-mail
Written by Chris Makau   
Friday, 04 May 2007

The indispensable role that the Kenyan judiciary, especially the higher judiciary (High Court) plays in the maintenance, support and valorous defence of corruption in Kenya, cannot be overestimated.

Corruption could not and still cannot think of an ally more loyal, more steadfast, and more reliable, to jump in at its beck and call whenever necessary.

True to the spirit of "sector-wide" approach (elegantly vested from the hands of GJLOS, and turned against its inventors), the judiciary's operations in favour of corruption are manifold and multi-pronged, but that would be the topic for a more thorough article than I can write right now. Rather, I want to single out only one very specific and very telling incident. It is to Mwalimu Mati (formerly of Transparency Kenya) that I am ingratiated for making the case public; the KACC has not commented on it in its press releases (maybe due to shyness or uneasiness, maybe due to a wrong understanding of the quaint and increasingly dysfunctional "sub judice" rules of Common Law tradition), and the Kenyan print media once again seem to be united in a conspiracy of silence.

As we know, and as the director of KACC was and is wont to say, "corruption fights back". What else would you expect a hydra to do? For we know that heroically cutting off some of her many heads is not enough, as the antiquity tells us, one must also cauterize the stumps with fire, and exactly that was not done.

Multi-headed Hydra Indeed, numerous of these heads are now busily hissing and slithering back to join their body again (I'll just name Justice Tom Mbaluto as one example, who was regarded even before Ringera's purge as one of the more corrupt judges within an already rather tainted judiciary).

One of the well-known champions for corruption - in several judgements where she had a dirty hand in the game - is Justice Roselyn Wendoh (sworn in office as High Court judge on 28th October 2003, after 21 years of service through the rank and file. Beginning as a District Magistrate Grade II in Kenya on 19th August 1982, Roselyn Wendoh, now 49 years old, previously rose to the rank of Chief Magistrate, hearing both civil and criminal cases. She is also spelled Roselyne, Roseline, Roselinne, or Wendo).

In an utterly astounding and perplexing preliminary decision - which does not seem to be tainted with basic understanding of the law, or endowed with the ability to read a statute -, she granted leave to a contempt of court action against a magistrate and three KACC officers, because they allegedly did not comply by a previous order by the selfsame justice Roselyn Wendoh from 20th February 2007 (this case is the national facet of the Anglo Leasing scam). She granted leave, though this endeavour of Alldean Satellite Networks (applicant) most obviously does not even have a faint reflection of a prima facie case. While a magistrate can err (and not infrequently does so), it is through judicial appeal that such an error must be corrected, and not through criminal prosecution. Mwalimu Mati explains in some more detail why this is so, and his very same legal argument was also used by advocate Otiende Amollo in an unrelated recent HIV case (curiously, this case is also heard before a bench comprising Justice Wendoh).

 Like many wananchi Kenyans, I have lost faith in the judiciary. Also and especially after 2003. One must still do one's duty I understand, and such sense of duty in spite of adversity and in spite of impending fruitlessness is probably what this country needs (who was it who stated that Sisyphus must be imagined as a happy man?). But I wonder increasingly what sense it should make to shun corruption in one's private life, to work hard (and often, far too often overtime), to do one's own civic (and maybe professional) part in the fight against this hydra that is choking our country to death, if all efforts are being counterpoised and frustrated by other players in this game, be they located in the Attorney General's Office (true, most corruption cases of petty offences - which make up 90-95% - sail through easily and are prosecuted, for it's only the big and well-connected cases where the AG intervenes in favour of the culprits and shields them), or be they located in the judiciary, and there notably not in the magistrate level anti-corruption courts, which work quite decently, but in the High Court.

It is good to notice that KACC (meaning its leadership or directorates, who frequently are perceived as integer and sincere, but too aloof and far too distanced from the daily nitty-gritty work of their peons) here loyally stood behind their officers and investigators when those were attacked or impeded, be it in the case of the four AP policemen roughing up a team that was to arrest the DO of Kikuyu, or in the almost - but not quite - comical case of the Hon. Reuben Ndolo first falling back into his old boxing habits, and then running away from the law for the umpteenth time. Both offences have immediately and speedily been brought to court and that was not only much-awaited by the rank and file, but indeed absolutely necessary if one wants at all to uphold morale and team spirit. Also, it has been seen with some relief that the press work of the Commission seems to have become more reactive and more forceful in the last months, whereas in the time before a certain noble spirit of "we shall not stoop to react against any dirty attack" seems to have ruled. But you cannot use an elegant foil in a boxing match (I was tempted to call it a free-style wrestling contest, but one of the two contestants is bound by so many rules, for good reason, that free-style does not seem quite to match it). Strong rules on professional secrecy and confidentiality forbid the KACC employees to comment on any ongoing cases and activities, and indeed even minor breaches and leaks have been perse... I mean prosecuted mercilessly. But it is then all the more important that one can at least feel assured that the spokesman of the Commission will speak out and defend its officers against violence or injust allegations whenever that is felt to be necessary.

Now back to injustice on the bench. In Mwalimu Mati's very noteworthy and knowledgeable website http://www.marskenya.org (I call it so even though I feel that he attacks the Commission unnecessarily often, and often quite injustly too), he even termed it "judicial lynching". In fact, the present leave was granted by Lady Justice Wendoh to an outright and blatantly frivolous application (this one advanced through the white advocate Keith Osmond Esq., who in and by himself it considered one of the better lawyers in Kenya, mostly doing high-cost corporate and commercial work; their main case however is - very fittingly - handled by advocate Amritlal B[hagwanji] Shah, a former Appeal Court Justice who had received his high office in 1994 as a personal gratification by Moi for services rendered as his lawyer, and who was ousted for corruption through the purge following the Ringera report). This is only too characteristic both of the legal ignorance and the ineptness that characterises even and especially our high judiciary - just see the infamous recent Saitoti and Murungaru judgements, both also reviewed in the aforementioned website - and of the spirit of corruption that pervades it into every crook and nanny.

While the corrupt judiciary operates mainly and with great preference through procedural machinations such as leaves to proceed and orders of stay (the former when eagerly accepting frivolous lawsuits against corruption fighters, the latter when obsequiously protecting culprits from impending prosecuting whenever it threatens them), sometimes it has to put its card deck on the table. Such was done in the two cases I mentioned (Saitoti and Murungaru); and as usually, the rotten tiny legal core of the judgements was cloaked and enveloped in endless pages of judicial chatter and empty, pompous rhetorics. In Kenya, the more resounding a judgement is, the larger and the more hollow it can usually be suspected to be - it's a simple law of acoustics.

Punch & Judy

Let me now utter an educated guess what might be the next case to be tabled before Justice Wendoh (and, of course, to be proceeded in favour of the plaintiff/applicant). One look into my crystal ball (I cheaply bought it from the landlord auction of the remainders of a travelling rural market booth that also used to exhibit a computing goat and a talking head; the goat was made chief auditor of an important parastatal, and the head is sitting in Bunge now) tells me that it will be Dr. Sally Kosgey (appl.) v. KACC and Head of Civil Service (resps.). The (obviously bought, and expensively bought) article in the Standard heralded the pre-announcement for that move.

The labour lawsuit of Jason Maingi (former KACC employee) is also before Justice Wendoh, and there is little doubt how she wants to decide it.

And of course, there still is the infamous case of Joshua Kulei on her desk, which has been stalled. Maybe some secretly dragging negotations between the Kulei financial administration and the judicial bench have not yet been concluded successfully?

As Punch is wont to say to his Judy(ciary): "That's the way to do it!"





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More backgound info
written by editor , May 04, 2007
In the context of this article, it may serve to mention that Winluck Wahiu has published a rather informative article on the Independence and Accountability of the Judiciary in Kenya (respective the lack of either).

Interested readers may wish to have a longer look at it.
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Corrupt judge arrested
written by aeichener , May 05, 2007
There is a small positive sign in the midst of all this judicial filth:

Kenya Anti-Corrupt Commission recently arrested a magistrate in Kakamega and his accomplice right in the judge's chambers, where they were sharing the bribe. Unlike in the alleged case of judge Tom Mbaluto, to whom the author above caustically refers, it was not a bag of millet this time, but a sum of 19,000 KSh (the crooks had initially solicited for 40,000 in order to decide a civil law court case in the plaintiff's favour, but had apparently been haggled down to this sum, of which 11,000 went to the magistrate and 8,000 were for the agent/accomplice).

Here is the KACC press release:

http://www.kacc.go.ke/archives...STRATE.pdf
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...
written by Chris Makau , May 26, 2007

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Reasons for judicial rot
written by aeichener , June 06, 2007
An additional remark. There are many reasons why Kenya is putting up with such a bad and thoroughly legally ignorant judiciary as she has. There is absolutely no culture of public criticism of judicial decisions, even less of judges. Chris Makau and Mwalimu Mati are two most notable and noble exceptions.

One reason for this lamentable state is a misunderstood doctrine of the ancient and nowadays dysfuctional sub iudice rule.
A second reason is the total inability of magistrates and justices to see themselves in due humility as fallible and criticizable. That is partly rooted in Kenyan office-bearers' assumed character, partly in the vicissitudes of the very inferior legal training that they have received, and partly in the totally confused concepts about what constitutes "contempt of court", which are hovering like poisonous miasmatic clouds in judicial and citizen minds alike.
And thirdly, any parliament that shackles itself with such a heavy slave's chain as the infamous Standing Order No. 73 (1) can of course not fulfill its role as a self-confident and powerful representation of the people.

There are, admittedly, institutions that are an even greater shame than the Kenyan judiciary. Such as the Attorney General's Office. But my keyboard would refuse service with disgust, were I to address them in the same comment. MP Omingo has done part of this job already (Hansard of 18th April 2007, p. 759).

Lastly one quote from MP Raila:
"But even after the so-called surgery of the Judiciary, it continues to remain one of the most corrupt judiciaries in Africa.
It continues to remain very corrupt, despite the fact that we have continued to increase the salaries of its members. So, something serious needs to be done about the Judiciary and the Office of the Attorney-General, if we want to seriously deal with this issue of corruption."
Hansard of 12th April 2007, p. 618

Alexander
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...
written by Alexander , June 23, 2007
Another lawsuit - this time not by sacked judges nor by corrupt politicians, but by irrepentant land grabbers - has been raised against KACC in Mombasa. Let's see whether that High Court justice will not (like allegedly his colleague) favour and shield corruption.

Alexander
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Again!
written by Baraza , June 23, 2007
As much as I would like to believe the contents of this article,there is a sixth sense that cautions me to tread carefully. History may be repeating itself. This is how the infamous surgery of the Kenyan judiciary started. Innocent Kenyans were made to believe that the Kibaki government was out to get rid of corrupt Magistrates and Judges from the bench. Least did we know that it was a calculated move to sweep out some targeted individuals and elevate the "right" persons. Innocent blood was shed and very qualified brains were laid to waste. To date, no one has compensated those innocent members of the bench that were brutally victimized. Wonder who is the main force behind this article. Like the late Mobutu of Zaire, I say, if you see a dog barking on top of a tree, someone has put it there!
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Shield and defender...
written by aeichener , June 25, 2007
The Standard has now done a quick report on the communicated contents of the judgement, written by Nyakundi Nyamboga.
http://www.eastandard.net/hm_n...09&catid=4
While the style of the quoted elements appears as bad as wont with many Kenyan higher judges (pompous rhetoric devoid of any legal scholarship and precise reasoning), some of the elements of the judgement also appear blatantly unconstitutional.

I would like to reserve a more explicit comment until I can read and analyze the original contents; but I would not be surprised to find there again a 60-pages blathering with only 1.5 pages of brief and superficial legal reasoning.

Alexander
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re: Corruption fights back aga
written by Kamale , June 25, 2007
Once again, (in)Justice Roselyn Wendoh struck a blow against integrity and for corruption, whose stalward defender she has proven to be n(together with two colleagues):

http://www.nationmedia.com/dai...sid=100919

http://www.eastandard.net/hm_n...1143970300

It is really time than the so-called "radical surgery" of the Kenyan judiciary be continued. Maybe Jerry Rawlings' style could serve as an example.

Alexander


I had the opportunity to discuss this judgement with some state lawyers last Friday over a drink.

I initially held the view that the judiciary had once again helped corruption fight back by allowing the Kamani's to get their passports back and the ruling that KACC or Immigration had no authority to cancel a passport was a serious blow to Ringeera's crusade.

But if you look at the ruling more closely, it has fundamental constitutional issues that had been raised in the case by Fred Ngatia for the Kamani's. In the process the constitutional bench that also comprised Nyamu and Amukhule was unanimous that the government cannot cancel a passport once issued as that would be an infringement on the constitutional freedom of movement that is allowed to Kenyans and no law can take away that right. So whlst it in the Kamani's case or any other intending fugitive from corruption, that would appear a blow to the war, but you surely must think about anyother ordinary Kenyan who would be denied the right to hold a passport for purely political reasons as happened in the past?

I would at this juncture vote for the wider public who are honest.
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Corruption fights back again
written by aeichener , June 25, 2007
Once again, (in)Justice Roselyn Wendoh struck a blow against integrity and for corruption, whose stalward defender she has proven to be (together with her two colleagues Nyamu and Emukule):

http://www.nationmedia.com/dai...sid=100919

http://www.eastandard.net/hm_n...1143970300

It is really time than the so-called "radical surgery" of the Kenyan judiciary be continued. Maybe Jerry Rawlings' style could serve as an example.

Alexander
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Incuria resplendens
written by aeichener , June 25, 2007
Kamale: The state lawyers have probably not understood the judgement. Your initial view might have been much more correct than theirs. You should be well aware of the extremely low standard of legal knowledge and prowess in the State Law Office; it is truly appalling to anybody having received a real legal education (i.e. outside Kenya)

As much as it has been quoted in the press literally, the decision appears blatantly per incuriam, if ever was one (to quote Lord Denning). Section 72 of the Constitution is not even applicable here, as the Const. Bench of the High Court however wrongly alleged ("personal liberty" here means arrest and detainment only, not general freedom of movement, this fully in the Common Law legal tradition of habeas corpus); and section 81 (3) amply provides for executive action.

There may indeed have been flaws in the KACC-induced decision of the Principal Immigration Officer, flaws that might even lead to quash the administrative decision, but the reasoning of the court appears utterly unconstitutional so far, and this totally regardless of the outcome of the case.

Alexander
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Hydra attacked
written by Chris Makau , May 05, 2008
When I wrote one year ago:
"The indispensable role that the Kenyan judiciary, especially the higher judiciary (High Court) plays in the maintenance, support and valorous defence of corruption in Kenya, cannot be overestimated.

Corruption could not and still cannot think of an ally more loyal, more steadfast, and more reliable, to jump in at its beck and call whenever necessary."

I did not foeresee that exactly for the 1-year-anniversary, these my words would be taken up.

Br. Francis Atwoli, Secretary General of COTU - one of the few unbowing and courageous Kenyans who are not afraid to call the emperor naked when this latter parades his shame before courtiers and populace - in his Labour Day speech just spoke out clearly and harshly against the High Court and notably against the judge (for one cannot in good faith call her by the honorific title "Justice") Roselyn Wendoh.

Roselyn is one especially notorious Kenyan judge, both because of the above described slant of her decisions, and the hardly conceivable legal ignorance that pervades them (as already MARS Kenya had chastized). Worse and more faulty judgements than hers have never befoe been delivered in Kenyan legal history, and this lady judge has managed to even under-bid such notorious High Court judges of evil fame as Ransley Thacker (Jomo Kenyatta case) and Kenneth O'Connor (Dedan Kimathi case).

Incidentally, this new incident came briefly after her bench colleague Joseph Nyamu had bailed out of another corruption case out of sheer cowardice, handing over the entire decision and accountability (invariably in favour of the corrupt) to his colleague Roselyn.

Now again, serious and founded objections against her professinal itegrity were brought forth by Brother Atwoli, and this time, the accomplice in the robe had no other chance than to recuse herself, in face of the public shame that Atwoli brought on her.

Her chap Nyamu ranted helplessly in the background aboput the insolence of lowly commoners daring to criticize judges, and thereby only showed that he has understood nothing about judicial accountability in the Court of Public Opinion.

Let us hope that this will be a sign; and let us hope that the stalled "clean sweep" of the judiciary will sweep her out of her abused office soonest. It is long over time.

Chris Makau
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Silver lining at the horizon?
written by aeichener , May 13, 2008
I would like to rejoin this thread where I had previously commented, and to add another important event, maybe also symbolic:

For the first time in Kenyan history, a tribunal has formally found previously suspended judges guilty of misconduct (read: corruption; because if legal incompetence were sanctionable, Kenya would soon be found without judges) and has sweeped two from three suspended judges out of office: Tom Mbaluto and Vitalis Juma. Mbaluto was the chap of the "bag of millet" fame.

As to Chris' comment above, I would not only name the notorious colonial judges Thacker and O'Connor as negative examples now underbidden by Roselyn Wendoh, but also Bernard Chunga, so that we may not be accused of racism ;-).

Alexander
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