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Daily Nation : February 8th 2014
SATURDAY NATION February 8, 2014 Special Report 11 lawyers take total control Honeymoon is over, new leadership tells Judiciary BY DAVE OPIYO email@example.com AND BONIFACE MEENA firstname.lastname@example.org T Ahmednasir Abdulahi The combative former LSK chairman was defeated by Prof Tom Ojienda to the coveted membership of the powerful Judicial Service Commission. Ironically, it was Prof Ojienda who took over from Abdullahi the LSK chairmanship in 2005. He was viewed as the controversial face of JSC, especially at the initial stages of the commission when they were recruiting a new Chief Justice, the deputy and judges of the Court of Appeal and High Court as well as the fall-out with former Judiciary Chief Registrar Gladys Shollei. While conceding defeat, Mr Ahmednasir said judicial reforms would continue even without him at the JSC. “People should stop thinking that without me certain things in the JSC will not happen. I was wrongly associated with everything happening in the JSC when the commission has 11 members chaired by the Chief Justice and any decision is collective, not individual,” he said. He said reforms were not about an individual within the JSC but the Constitution, which is the bedrock of changes within the institution and that whether he is in or not, judicial reforms would continue as prescribed by the Constitution. “I congratulate Prof Ojienda for taking over from me just as he did at LSK and wish him well. What we started will go on, every person has his own style different from the other and I believe Tom is coming with his ideas which will help the JSC,” said Ahmednasir. Previously, a media discussion of the elections of the society would have been unthinkable, and would have been frowned upon. Turning to the results, they re- flect the complete takeover of the society by young lawyers who have pushed their older colleagues to the peripheries of the society. The statistics reflect this take- over: out of the current 10,700 lawyers who are members of the society, 3,000, or one third, were admitted to membership within the last five years. It took the society more than 60 years to build a membership of 4,000 lawyers, but it has taken less than 10 years to increase that Githu Muigai: Attorney General He is one of the key members of the JSC who will shape the succession at the Judiciary. In fact, he is being touted as a possible replacement for the Chief Justice’s position when Willy Mutunga retires in 2016. Prof Muigai holds a bachelor’s degree in Law from the University of Nairobi and Master’s degree in international law from Columbia University School of Law. He also holds a doctorate in law. When the Cord Coalition contested the victory of President Uhuru Kenyatta, Prof Muigai was allowed by the court to be amicus curiae. In his presentation, he told the court that the Constitution is not clear on what “fresh elections” would entail. He further stated that if the court declared the voters register as having substantial defects as the petition was asking them to, it may mean that the legality of the elections for senators, governors and other elective posts may be questioned since they were elected using the same registers. He is believed to be a close ally of the President although questions whether his advice is heeded by Mr Kenyatta came to the fore during recent presidential appointments, some which turned out to be in breach of the law. Chief Justice Dr Willy Mutunga Dr Mutunga was the first beneficiary of judicial reforms under the new Constitution in 2011 when he beat a strong field of senior judges to become Chief Justice despite having no experience as a judge. His ambitious reforms and vision for the Judiciary will, however, be cut short in 2016 as he attains the mandatory retirement age of a Chief Justice. Lobbying for his position has begun in earnest with the reorganisation of the Judicial Service Commission, seen as a strategy for selecting Dr Mutunga’s successor. Dr Mutunga’s low moments at the helm of the Judiciary occurred last year during a fall-out with former registrar Gladys Shollei, which led to supremacy battles between the Judiciary, the Executive and the National Assembly. Also set to retire in the next three years is Dr Mutunga’s deputy Lady Justice Kalpana Rawal, Supreme Court Judge Philip Tunoi and Court of Appeal judge Onyango Otieno. he new Law Society of Kenya leadership yesterday fired a warning shot to the Judiciary that they would push it hard to deliver justice to Kenyans. Chairman-elect Eric Mutua said they would strive to ensure that the backlog of cases, which many courts are facing, became a thing of the past. “We shall look into the manner in which cases are concluded. We gave the Judiciary two years to organise and transform itself. During this period, justice delivery was affected as we did not have adequate judges,” he said. “But now the honeymoon is over. We shall now engage with them firmly to put an end to this because we cannot even take dates for new cases this year. We will serve notice to the Chief Justice and Chief Registrar that this time we shall demand that lawyers are allowed to conclude their cases in time,” he declared. His deputy, Ms Renee Omondi, also issued a similar warning. “We will take the Judiciary head on to ensure it does what is required of it,” she said. Mr Mutua and Ms Omondi retained their seats in hotly contested elections on Thursday. The won 2,543 votes with his closest challenger, Mr Charles Kanjama, coming a distant second with 740. Lawyer Ambrose Weda was third with 530 votes. Ms Omondi won 2,061 votes, with her only challenger, Ms Faith Waigwa, getting 1,738. Sign of confidence Prof Tom Ojienda replaced lawyer Ahmednasir Abdullahi as the society’s representative on the Judicial Service Commission after he won 1,689 votes against Mr Abdullahi’s 1,445. Former LSK chairman Okong’o Mogeni was third with 548 votes while little known lawyer Kabaru wa Ndegwa got 117 votes. Yesterday, Mr Mutua said he would demand full implementation of the Constitution. He said his re-election and that of his deputy was a sign of confidence in them. “Lawyers have shown that we worked very hard. For the first time in the history of the LSK we have had a chairperson re-elected for a second term of two years. I will now serve for four years...which has never happened before,” he said. He pledged to look into the welfare of mem- to more than 10,000. The most important divide reflected in the results is the takeover of the younger members and the re-definition of the concept of “seniority,” which is some interest to lawyers. Senior lawyers In a context of pre-dominantly young members, lawyers who have worked for 10 years, and who in other jurisdictions would not be regarded as seniors, are now the seniors in the Kenyan profession and form the majority of its leadership. An air of impatience has been evident in the manner in which the society conducts its affairs. This is attributable to the fact that at the LSK, the youth, and the youth only, are in charge. All serving members of the council who offered themselves for re-election were successful, reflecting a theme of continuity. It was feared that members of the society would break along ethnic lines when choosing their leaders. However, this is not reflected in the data representing the results. The elections at the law society affect the succession politics in the Judiciary. Ahmednasir Abdullahi, who lost his position in the JSC, has been a strong supporter of the Chief Justice, and the two would probably have fought in the same corner in the succession battles that lie ahead. The new entrant, Tom Ojienda, is not associated with the CJ and it remains to be seen what role he will play in the succession process. The retention by Eric Mutua of his position as LSK chairman represents an opportunity for a principled relationship with the Judiciary that characterised his first term. His presence on the scene will have an important balancing influence. Mr Kegoro, an advocate of the High Court of Kenya, is executive director of ICJ-Kenya. email@example.com bers. Mr Mutua also promised to ensure that the construction of the International Arbitration Centre is completed. “I really want to see this project completed. There are many benefits from this centre, not just for lawyers who will undertake arbitration,” he said. Previously, lawyers have undertaken such courses in Nigeria, South Africa, Rwanda and Malaysia. Prof Ojienda said as the lawyers’ representative in the JSC, he would defend the independence of the Judiciary. “You can rely on me to speak for the society on those matters that touch on the independence of the profession,” he said. “I will strive to enhance the efficiency of the JSC for it to deliver to those who work in the Judiciary and those in the legal profession,” he added. He also said he would press the Judiciary to end the case backlog. ‘I will ensure that judges are empowered to hear, for instance, land and labour matters,” Prof Ojienda said.
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