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Juma Chitembwe: ‘Worst judgment’ Judge Seeks a Seat in the Apex Court

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Justice Chitembwe’s strongest suit will be that he is the only contender from the coastal region seeking a senior position in the judiciary.

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Juma Chitembwe: ‘Worst judgment’ Judge Seeks a Seat in the Apex Court
Photo: Judicial Service Commission Kenya

Justice Said Juma Chitembwe, 54, shot to global infamy in 2017 when he was awarded the Golden Bludgeon for the worst judgment in the world.

In acquitting 24-year-old Martin Charo, in April 2016, Judge Chitembwe argued that the offence of defilement should not be limited to age and penetration. “If those were to be taken as conclusive proof of defilement, then young girls would freely engage in sex and then opt to report to the police whenever they disagree with their boyfriends.

“Where the child behaves like an adult and willingly sneaks into men’s houses for purposes of having sex, the court ought to treat such a child as a grownup who knows what she is doing. The appellant was 23 years old when the incident occurred . . . It would be unfair to have the appellant serve 20 years behind bars yet [the complainant] was after sex from him,” the Judge wrote in his judgment before acquitting Charo and setting him free.

Women’s Link Worldwide criticised the decision, saying it set a dangerous precedent by assuming that girls who consent to sex before they are 18 years old do not deserve protection from the law.

Scholars have roundly criticised the decision as clawing back the protections that the constitution and the law extends to children, but have not appealed further. Dr Luis Franceschi, former dean at Strathmore University Law School, observed: “It appears that the learned trial judge treats the crime of defilement in the same light as that of rape . . . Indeed, consent or its absence, is only a necessary element when an offence of rape is alleged. Not so for defilement.”

He further argued that consent and enjoyment were not synonymous; that they do not mean the same thing, as the judgment seemed to imply.

Justice Chitembwe’s controversial 25 April 2016 judgment is not on the list of the five sample writings he supplied to the Judicial Service Commission in applying to become Chief Justice, or in the alternate, to join the Supreme Court. He has instead supplied an October 2015 judgment allowing the prosecution of parents who arranged a child marriage, and a November 2016 decision denying a petition to throw out a sexual assault case on the grounds that the magistrate allowed the accused to remain out of the complainant’s view during cross-examination.

In another decision, Justice Chitembwe allowed two artists to be exempted from the collective management of their royalties on Skiza Tunes, noting: “Section 30A of the Copyright Act is unconstitutional as it was enacted without public participation and it is being retrospectively applied. It also limits artists’ freedom not to be compelled to join an association of any kind as provided under Article 36 of the Constitution. The petitioners are being forced to receive their royalties through Collective Management Organization yet they have no dealings with them. This is unconstitutional.”

Justice Chitembwe’s mixed bag of jurisprudence also includes his decision to dismiss the challenge to the election of the Marsabit governor in February 2018. It also offers a rare glimpse into his temperament in his ruling on an application to withdraw himself from an election petition appeal in 2013. The lawyer had claimed that when she appeared before Judge Chitembwe and informed him of an application to strike out the appeal, he raised his voice and ordered her to sit down, and then went ahead to dismiss the matter.

“When the court told [counsel] to sit down, it was only exercising its power to control proceedings in court. If the court is to allow counsels [sic] or their parties to conduct the proceedings in the manner they want then there will be no order in court. Counsel was not shouted at as alleged. It is true that counsel was told to sit down and wait, which she complied.”

Justice Chitembwe is no stranger to controversy. In December 2009, anti-corruption detectives arrested the judge over a Sh1.37 billion ($13.3 million) fraud allegation and abuse of office claims arising from his tenure as corporation secretary at the National Social Security Fund. He was acquitted three years later, along with former NSSF managing trustee Rachel Lumbasyo, when the court ruled that neither of them had a case to answer.

After returning to the bench, Justice Chitembwe barred then Interior Minister Joseph Nkaissery and then Inspector-General of Police Joseph Boinnet from deporting Italian tycoon Mario Mele to Rome, where he was wanted for tax evasion. Mele was among three Italians arrested during an anti-narcotics operation in Mombasa and Kwale in 2017. He was later deported.

A graduate of the University of Nairobi, Justice Chitembwe practised law for several years as an advocate of the High Court in Mombasa before working as company secretary for a chemical firm and later taking up the NSSF job.

He was appointed judge in 2009. He holds master’s degree in law from the University of Essex, an executive Master of Business Administration from Moi University and is enrolled in the doctoral degree programme in peace and conflict studies at Masinde Muliro University of Science & Technology.

Justice Chitembwe has served as judge in Kakamega, Malindi, Marsabit and Migori, and is currently stationed at the Civil Division of the High Court in Nairobi.

Justice Chitembwe received a rap on the knuckles in December 2014 when three appellate judges barred him from determining the disputed possession of a petrol station in a case filed by two oil companies. Justices Erastus Githinji, William Ouko and Kathurima M’Inoti ruled that the case between Total and Vivo Energy “in Kakamega be heard and determined by a judge other than Justice Chitembwe”.

“The conclusion at that stage that Mr Maloba’s conduct was fraudulent, is even more baffling to us. The judge was not justified in making such findings at that stage,” they said in the ruling.

Last year, the Judicial Service Commission received a misconduct complaint against Justice Chitembwe regarding a land case he presided over in Malindi. Tsangawa Ngawa Chome filed the complaint but the commission did not recommend that a tribunal investigate Justice Chitembwe.

Justice Chitembwe’s strongest suit will be that he is the only contender from the coastal region seeking a senior position in the judiciary.

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Kwamchetsi Makokha
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Kwamchetsi Makokha is a journalist with over two decades on the frontline of the struggle for human dignity. Co-editor (with Arthur Luvai) of the East African poetry anthology, 'Echoes across the Valley', he escapes into literature, the performing arts and agriculture. He is currently Programme Advisor at Journalists For Justice.

Profiles

Fredrick Ngatia: Uhuru’s Lawyer Who Added a ‘Province’ to Kenya Now Wants CJ Job

Beyond his 40 years’ experience in the practice of law, Ngatia will be brandishing his freshly minted masters in applied philosophy to prove that a CJ needs a multidisciplinary approach.

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Fredrick Ngatia: Uhuru’s Lawyer Who Added a ‘Province’ to Kenya Now Wants CJ Job
Photo: Judicial Service Commission Kenya

Fredrick Ngatia has never had to attend a job interview in the past 40 years. Selected as one of the top six students from the Kenya School of Law to join the Attorney General’s office, Ngatia sat across Frank Shields — who later become a notorious duty judge — as he lit a cigarette and asked the rookie lawyer to choose between criminal prosecution and civil litigation.

Ngatia chose civil litigation and takes great pride that he subsequently added a 9,000 square-kilometre hump to the map of Kenya at the border with Sudan. He had begun to inquire into the Ilemi Triangle, and his thesis for a Master of Laws degree at the London School of Economics shaped Kenya’s case when it acquired the territory of over 9,696 square kilometres.

Sudan, an Anglo-Egyptian condominium, had an imprecise international boundary with Kenya because the area then known as Rudolph Province was originally in Uganda, and was customary grazing grounds for the Turkana.

A joint survey team in 1938 created two lines, a straight one in the northern part of Kenya, and a patrol line by Sudan in 1950. Below the patrol line, Sudan was not interested in the territory, but Kenya decided to administer the area to pacify grazing communities in what would come to be known as the Ilemi Triangle. It is possible to acquire territory through the inaction of the other country and the passage of time. Ngatia believes that similar reasoning could save Kenya heartache in its territorial dispute with Somalia at the International Court of Justice.

Having represented Uhuru Kenyatta in three presidential election petitions at the Supreme Court, Ngatia feels the need to fight off claims that he is partial to the Executive. Some reckon that nominating him to the Chief Justice’s position will be the equivalent of the Judiciary handing itself over to its Executive executioner. He is perceived as someone with access to the president, and his appointment could be read as capitulation on the part of the Judicial Service Commission, which is engaged in a struggle with the president over the appointment of 41 judges it nominated, as well as reductions in the judiciary development budget.

In his application, Ngatia has disclosed that he donated KSh500,000 to the Jubilee secretariat in 2017 during a luncheon for professionals.

Ngatia’s allies consider him to be just the person to introduce structured dialogue over the appointment of judges and inadequate funding. He is keen to be seen as his own man, but, because of his regular advocacy for Uhuru Kenyatta in the courts, he is likely to be perceived as someone who will not need to break the ice to get conversations with State House going.

Ngatia has represented the Council of Governors as well as the National Assembly in the Supreme Court and believes that his experience would stand him in good stead in understanding the interests of the various institutions the judiciary has to deal with.

Already fabulously wealthy, Ngatia does not need the Chief Justice’s job but perhaps he feels the call of public service; a number of professional colleagues are pushing him to do something for the judiciary.

Although Ngatia defines his mission as focused on improving the work ethic and the speed in processing matters in the Supreme Court, he has not applied for the vacancy in the court, instead putting all his eggs in his application for the Chief Justice’s job. Ngatia is keen to deflect political attention from the Supreme Court, saying that it is established for reasons other than as a forum for politicians to flex muscle. Yet his application speaks just to those political anxieties. Jubilee Party had tasked Ngatia with identifying a suitable candidate to support for the position of Chief Justice but after that search collapsed, he put in his application.

Although Ngatia has never sat on the bench, he is a familiar presence in litigation circles, and has been repeatedly recognised by Chambers International as a top arbitrator in Kenya. At 65, few other judges in the Supreme Court can outrank Ngatia in seniority. This will likely calm fears about a Chief Justice who would overstay at the top by serving 10 years. His is the ideal age to serve for five years, dispense with one presidential election petition, and be gone before feelings harden against him. Ngatia is keen to deploy more information communication technologies to improve efficiency as he builds collegiality and civility in the courts.

Ngatia’s long client list includes Kamlesh Pattni when he faced a murder charge, Justice Philip Tunoi when he faced a tribunal investigating his misconduct, Judges Philomena Mwilu, Mohammed Ibrahim and Abida Ali-Aroni at the Judges and Magistrates Vetting Board, and the late Vice President George Saitoti when he challenged his prosecution over the KSh158 billion Goldenberg scandal. Ngatia also filed a complaint against Judge Joseph Mutava at the tribunal investigating him, calling him a serial liar. The judge was removed from office.

Ngatia shot to fame with his representation of Uhuru Kenyatta in the 2017 presidential election petitions. As soon as the 1 September 2017 nullification decision came in, Ngatia began preparing for the next petition – which followed in November after the fresh election. He has managed a frenetic 14-day petition, and believes the same leadership principles would enable him to lead the institution.

Yet, Ngatia does not consider the presidential petitions as his greatest achievement. The apogee of his law practice is the pro bono case former Chief Justice Willy Mutunga handed him when he requested Ngatia to represent death row suspects. His success in the Francis Kariokoo Muruatetu case at the Supreme Court, where it was declared unconstitutional to impose a mandatory death sentence on convicts, is what he considers his finest piece of work. Some 5,000 prisoners have since gone back to the High Court for resentencing.

Beyond his 40 years’ experience in the practice of law, Ngatia will be brandishing his freshly minted masters in applied philosophy to prove that a CJ needs a multidisciplinary approach. He researched euthanasia, which is prohibited in Kenya, and his research found that where it is administered, the moral questions it raises demonstrate that apex courts deal with questions of bioethics, theology, the transcendental nature of man.

Last year, Ngatia joined the hallowed ranks of Senior Counsel, and he will be battling the optics of ethnic balancing in joining a Supreme Court where another member of his Kikuyu community is also a long-serving member.

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Matthews Nduma Nderi: Judge With a Heart for Oppressed Workers Seeks CJ Job, Spot on the Apex Court

Justice Nderi’s most famous defence of workers was in a 30 June 2015 judgment; for a few months thereafter, Justice Nderi was the darling of the teaching fraternity after he awarded teachers a 50 to 60 per cent increment on their basic salary.

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Matthews Nduma Nderi: Judge With a Heart for Oppressed Workers Seeks CJ Job, Spot on the Apex Court
Photo: Judicial Service Commission Kenya

Underdogs have an unfailing defender in Matthews Nduma Nderi, the 59-year-old former principal judge of the Environment and Labour Relations Court.

Justice Nderi has written and read many judgments that strike a blow for justice for low-income workers such as security guards and domestic workers. Last year, he ruled in one such case: “It is unlawful to terminate the employment of a house help without giving her notice. It is also illegal and unfair labour practice to send a house help away without paying her any terminal benefits and not giving her certificate of service.”

The domestic worker had challenged her dismissal, which had followed her request to her employer for a salary increment. The judge awarded her Sh270,964 for the unfair termination of contract.

Justice Nderi’s most famous defence of workers was in a 30 June 2015 judgment; for a few months thereafter, Justice Nderi was the darling of the teaching fraternity after he awarded teachers a 50 to 60 per cent increment on their basic salary.

It is not one of the judgments he has sent to the Judicial Service Commission as part of his five sample writings to be considered in his application for the positions of Chief Justice and Supreme Court judge — and for good reason.

Within four months of that decision, five Court of Appeal judges had torn his legal reasoning to shreds, faulted his fidelity to procedure, and accused him of encouraging litigants to commit offences.

Justice Erastus Githinji found that the Labour Court had no jurisdiction to award the teachers a basic salary increment and allowances, as it could not derive such jurisdiction from the consent order Judge Nderi used as a basis to convert the petition into an “economic dispute”.

“If a judge takes up the role of a conciliator or mediator, then he or she should relinquish the role of an adjudicator,” wrote Justice Martha Koome in the same judgment. “It was unprocedural and untidy for a judge to switch from one role to the other.”

Koome added that the judge probably saw himself as a problem solver, referring to the tension caused by the incessant teacher strikes: “The judge was in a hurry to finalize the matter and resolve the dispute expeditiously. However, the award turned out to be a ‘quick fix’ that could not stand the test of the law and the Constitution.”

For her part, Justice Philomena Mwilu (as she then was) added: “The trial judge appears to have been overzealous to end the perennial cause of teachers strikes and thereby ignored the petition that started the proceedings, and framed issues for determination which were outside the petition.”

Another judge, Justice Festus Azangalala, did not spare Judge Nderi either, writing in his appeal judgment: “The Judge assumed a jurisdiction which, under the circumstances, he did not have.”

In concluding, Justice Otieno Odek declared that a judgment of a court cannot, and should not, direct any person to commit an offence. “To the extent that the judgment directs TSC to effect payment without following constitutional procedures and to the extent that the judgment requires TSC and or its officers to commit an offence, [the judgment] is unconstitutional, null and void.”

Government experts had argued that implementing Judge Nderi’s award – flowing from a tentative offer the TSC had made to the teachers’ unions before they were advised by the Salaries and Remuneration Commission to hold their horses — would expand the teachers’ wage bill by KSh216 billion, and trigger an additional increase of KSh360 billion for the rest of the civil service. In total, the economists projected that the public wage bill would swell by KSh929.8 billion, representing 95.3 per cent of all domestic revenue. They further argued that this would also significantly increase the pension liability from the KSh991 billion at the time.

Born in Embu County in 1962, Judge Nderi graduated with a Bachelor of Laws degree from the University of Nairobi in 1987 and practised law in his Nairobi law firm for five years after qualifying for the bar at the Kenya School of Law. He was in the team of lawyers that successfully defended George Anyona, Njeru Kathangu, Ngotho Kariuki and Edward Oyugi against treason charges during the Daniel arap Moi era.

After the 1992 elections, Nderi joined the Swaziland prosecution service where he worked as crown counsel from 1993 to 1998. He was appointed Judge President of the Industrial Court of Swaziland in 1998 and served until March 2006.

Justice Nderi then returned home to head the Federation of Kenya Employers’ legal and industrial affairs division for a year before moving to Tanzania as the Principal Legal Counsel for the East African Community.

He worked at the East African Community between 2008 and July 2012 before returning home to be appointed judge in the new Employment and Labour Relations Court. Nderi was elected as the first Principal Judge of that court, a perch from where he was able to showcase his case management skills.

The judge, a Nairobi School alumnus, also obtained diplomas in business organisation and management and human resource management from the South African Institute of Management between 1994 and 1995, as well as a Master’s degree in law from the University of Stellenbosch in 2004.

The judgments he has supplied as part of his sample writing include an award of KSh6.9 million to a university employee who was denied permanent employment and salary increment once she tested positive for HIV. He has also supplied a dissent from a majority decision allowing unions to charge non-union members agency fees.

Judge Nderi has an aggregate of 31 years experience in the legal profession.

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Profiles

Moni Wekesa: Double Doctor Offers Potpourri of Law and Sports Medicine

Wekesa’s attempt to join the Supreme Court will likely be checked by the fact that the region already has a judge from his ethnicity in the person of Smokin Wanjala.

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Moni Wekesa: Double Doctor Offers Potpourri of Law and Sports Medicine

An independent investigation by World Rugby in March 2016 laid to rest allegations that there was systematic doping of Kenyan players through food supplements. The allegation first surfaced in a 2014 report prepared by a committee under the chairmanship of Prof. Moni Wekesa, 62, who has applied for the position of Chief Justice.

The Kenya Rugby Union has used the opportunity of Wekesa’s candidacy for the position of Chief Justice to lay bare what it saw as the anomalies that cast the country’s best internationally performing ball sport in an unseemly light.

Oduor Gangla, the chairman of the KRU, told the Judicial Service Commission in a letter that the Wekesa committee reached summary judgments and conclusions without giving senior coaches an opportunity to explain themselves, that it refused to follow procedure, instead preferring hearsay and innuendo, and that it treated the sport causally.

Gangla adds that the committee used laboratories that were not accredited by the World Anti-Doping Agency, and did not handle the samples and the testing professionally. Wekesa’s promotion of his report in the media despite its shortcomings, argues the rugby union, means that he is singularly unsuited for high judicial office.

Complaints notwithstanding, Wekesa wears his credentials on his sleeve – especially the two doctorates and his professorship in law. His pride in chairing the national task force on anti-doping between 2013 and 2014 is evident in the publicly available résumé on the Daystar University website. He credits his tenure with the subsequent enactment of the anti-doping law in 2016 and the creation of the Anti-Doping Agency of Kenya the same year.

Wekesa’s impressive sports resume includes chairing the disciplinary committee of the Football Kenya Federation and the Kenya Premier League Ltd. In 2005, the international audit firm KPMG recruited him as the chief executive officer of Kenya Football Federation in an effort to normalise soccer management in the country, but some members of the KFF board rejected his appointment and locked him out of office.

Wekesa has been in the thick of things in the anti-doping world, serving as a member of the integrity unit of the Disciplinary Tribunal of the International Association of Athletics Federations (IAAF). He served as vice-chair of the Bioethics Committee of the National Commission of Science, Technology and Innovation between 2012 and 2018 and was a sports medicine consultant for the national football, hockey and volleyball teams between 1990 and 1995. Wekesa was also Africa Doping Officer for the International Football Federation and Confederation of African Football. Wekesa still sits on the Anti-Doping Committee of the International Federation of Sports for Persons with Intellectual Disabilities, and is a director at the Anti-Doping Agency of Kenya.

After launching the law school at Mt Kenya University as dean in 2010, Wekesa was forcibly removed from the institution in 2016, and lodged a KSh58.1 million wrongful dismissal case in court. He moved on to Daystar University where he founded the School of Law as dean.

Wekesa earned a first class honours Bachelor of Education degree from the University of Nairobi in 1981 before going off to study sports medicine at master’s and doctorate levels in Cologne, Germany, in 1986 and 1989, respectively. He served as Deputy Dean of Faculty at the University of Botswana from 1996 to 1997, as departmental chair of Human Movement Science at the University of Namibia in 1998 and as regional manager of Special Olympics International in charge of Africa between 1999 and 2001.

After reaching the pinnacle of academic achievement in sports medicine, Wekesa taught the discipline at Kenyatta University, University of Botswana, and University of Namibia before switching lanes to law. He earned a bachelor’s degree from the University of Nairobi in 2002, followed by a diploma in legal practice from the Kenya School of Law in 2003. He enrolled for a master’s degree in law, writing a thesis on legal issues in technology transfer in doping control in sports, which he was awarded in 2005. He earned a doctoral degree in law from the University of Nairobi by writing his thesis on the regulation of doping in sports in Kenya.

Wekesa has been an itinerant law lecturer at the Catholic University of Eastern Africa and at the Kigali Independent Universit in, Rwanda, as well as at the Lusaka University School of Law.

Wekesa’s consultancy portfolio includes Special Olympics Inc., formulating the Regulations for the Sports Registrar, drafting the Anti-Doping Bill, Policy and Rules for the Ministry of Sports, drafting the amendment law and regulations for the Kenya Nutritionists and Dieticians Institute, and writing regulations for the Kenya Academy of Sports and Sports Kenya among others.

Although he has no judicial experience, he has practised law since his admission to the roll of advocates in 2003 and has written on intellectual property, sports and elections. As part of his sample writings Wekesa has submitted a self-published book, two articles in refereed journals and submissions to obtain a student admission to the Kenya School of Law.

Wekesa indicates that he has been teaching Sunday school since 1976, and additionally claims his work as honorary legal counsel for the East African Universities Sports Federation since 2003, as founding council member of Friends University, Kaimosi, and as member of the council of Pwani University since 2017, as part of his community service.

Born in Kakamega County, Wekesa’s attempt to join the Supreme Court will likely be checked by the fact that the region already has a judge from his ethnicity in the person of Smokin Wanjala.

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