CHAPTER 101

JUDICIAL POWER, STRUCTURE, AND INDEPENDENT ACCOUNTABILITY

IN KENYA AND AFRICA: INTERESTS, FUNCTIONS, PROCESS AND OUTCOMES 2

This Chapter may be cited as Ben Sihanya (forthcoming 2022) “Judicial Power, Structure, and
Independent Accountability in Kenya and Africa: Interests, Process and Outcomes,” Chapter 10,
in Ben Sihanya (2022) Constitutional Democracy, Regulatory and Administrative in Kenya and
Africa Vol. 1: Theory, Structure, Method and Systems, Sihanya Mentoring & Prof Ben Sihanya
Advocates, Nairobi & Siaya.

10.1 Commissions and Independent Offices as Quasi-Judicial Tribunals in Kenya and

Africa3
This section problematizes and contextualizes at least four (4) fundamental questions. First, how
does Afro-Kenyan constitutional sociology and constitutional democracy conceptualize tribunals
and (some) commissions and independent offices as quasi-judicial tribunals in Kenya and
Africa? Second, what are Commissions and Independent Offices, and? Q quasi-jJudicial
tribunals? What are the similarities and differences?

Third, what are the merits and demerits as compared to the three (3) arms, branches, or organs of
Government? Semi-Autonomous Governmental Agencies (SAGAs)? Ministries departments and
agencies (MDAs)? Constitutional Commissions and Independent Offices (CCIOs)? Fourth, what
are their relevant quasi-judicial powers and functions...?

There are at least three (3) main jurisdiction questions. First, what is the objective and source of
exercise of quasi-judicial powers by commissions and independent offices in Afro-Kenyan
constitutional democracy? People? Constitution? Statute? Inherent? Second, what are the limits
of the jurisdiction of commissions and independent offices exercising quasi-judicial powers in
Kenya? Third, what are the appeal mechanisms and administrative procedures on decisions made
in the exercise quasi-judicial powers? What are the reform questions regarding quasi-judicial
tribunals?

This is similar to the section on tribunals in Kenya and Africa, as discussed in Chapter 9 above.

1
This Chapter 10 is a continuation of, and is linked to Chapter 9.
2
See generally Ben Sihanya (2019) “Securing judicial independence and accountability in Kenya,” Vol 10, Issue
No. 11, Nairobi Law Monthly 38-43.
3
See Chapter 20, CODRALKA 1 on Constitutional Commissions and Independent Offices in Kenya: Experiences,
Challenges and Opportunities ….

Page 1 of 87
10.1.1 Quasi-Judicial Tribunals, Public Enquiry, and Commission of Inquiry in Kenya and
Africa
Does Kenya still need administrative, quasi-judicial tribunals and commissions of inquiry in light
of a restructured judiciary (courts, tribunals, and bodies) as well as the establishment of
constitutional4 commissions and independent offices? Are such tribunals still necessary in the
light of stricter rules on the establishment of public offices?

Significantly, to establish a public office (like the tribunals), there should be needs assessment,
popular participation, and a recommendation of the Public Service Commission (PSC) as
stipulated under Arts. 1 (sovereignty of the people), 10 (national values and principles of
governance), 47 (fair administrative action), and 132(4) (functions of the President)).5
These also exercise public power. These are now subject to the 2010 Constitution especially with
respect to presidential.6
The establishment and the regulation of the conduct and effect of the proceedings of quasi-
judicial tribunals are not clearly stipulated under Kenya’s Constitution and public law. Some
relevant provisions include Arts. 47,7 and 1628 Constitution 2010.
Section 23 of the 1969 Constitution and the Commissions of Inquiry Act, Cap 102 empowered
the President to establish quasi-judicial tribunals and related agencies.
Under the 2010 and 1969 constitutional dispensation, there are no details on how the tribunals
are to be operated. Can they engage in criminal or only civil proceedings? Generally, tribunals
handle civil matters, with criminal matters limited to magistrates courts, High Court, Court of
Appeal and the apex court. Section 28(2) of the Tribunals Bill, 2015 provided that:
“(2) The jurisdiction of a Tribunal shall not include the trial of any criminal offence.”
There have been proposals for the reform of the regime regulating the operation and jurisdiction
of tribunals. A case example was the proposal by the Commission of Inquiry on Post-Election
Violence (Waki Commission) for the creation of a Special Tribunal with criminal jurisdiction
over crimes of humanity during the 2007-08 post-election violence (PEV).
An equally contentious proposal was the creation of an International Crimes division domiciled
within the High Court, with criminal jurisdiction over international crimes under the Rome
4
See also the Fair Administration Actions Act (FAAA), 2015….
5
….The mandate of the Executive (President) in the appointment of members of commissions that exercise quasi-
judicial powers has also been debated with regard to claims of lack of inclusivity, political tokenism, lack of public
participation, and as an infringement of judicial independence…. See also Chapter 8 and 9 of CODRALKA 1….
6
They were also subject to presidential and premier powers under the 2008 Constitution and National Accord and
Reconciliation Act (NARA), 2008; would be under BBI’s proposed Presidential and Prime Minister powers….
7
On fair administrative action. See also the Fair Administrative Action Act (FAAA), 2015.
8
On system and structure of courts. See also Table 9.1 on structure of courts in Kenya in Chapter 9 of CODRALKA
1….

Page 2 of 87
Statute, including genocide, crimes against humanity and war crimes. 9 Additionally, section 5(4)
of the Indian Commissions of Inquiry Act, 1952 states that:
“(4) The Commission shall be deemed to be a civil court…”
Such proceedings before the commissions of inquiry are also considered judicial proceedings.
How do tribunals, quasi-judicial tribunals and commissions of inquiry conduct their
proceedings? They are limited within the existing legal frameworks, rules of evidence, natural
justice, and constitutional provisions, except where necessary to formulate new rules to guide the
operations of the tribunals….
Section 9 of the Commission of Inquiry Act, 2008 also recognizes that commissions of inquiry
“may make such rules, not inconsistent with any regulations made under section 19 or with the
terms of the commission, for the conduct and management of the proceedings of the inquiry.”
For instance, the Waki Commission was regulated by the Commission of Inquiry into the Post-
Election Violence (CIPEV): Rules and Procedure, 2008, signed by Johann Kriegler, the then
Chair of the Independent Review Commission (IRC).10 Section 2 of these rules and procedures
also provided that the Waki Commission had the discretion to determine the procedure and
conduct of its hearings, subject to the Commission of Inquiry Act.11
Relatedly, most commissions of inquiries are designed to conduct their hearings in public.
However, the choice of holding private hearings can be determined based on the nature of the
proceedings, especially where it is important to protect state security.12
Another debatable point is to whom are tribunals, quasi-judicial tribunals and commissions of
inquiry, accountable to? Section (nn) of Gazette Notice No. 2941 stated that:
“Upon completion of the report of the Commission it shall be transmitted under the hand of the
Chairman of the Commission to the President of the Republic of Kenya and the Panel of Eminent
African Personalities without undue delay and at any rate not more than 2 days after such
completion and cause to be published a notice of such transmission without undue delay.”
Similarly, the Waki Commission was accountable to the President by virtue of section 7(1) of the
Commission of Inquiry Act, Cap 102, as it forwarded a report of its proceedings and findings to
the President, in writing.
The Building Bridges Initiative (BBI) Report 2019 and 2020 Reports made at least three (3)
reform proposals. First, recommendation that more than 20 judicial tribunals be consolidated to

9
See section 6 of the International Crimes Act, 2008…
10
Cf. the Commission of Inquiry into the Post-Election Violence (Waki Commission) and Nambuye tribunals.
See….
11
See also section 11 of the Tanzanian Commissions of Inquiry Act, (Commissioners’ power for regulating
proceedings) Cap 32.
12
See Gazette Notice No. 2941, Kenya Gazette, Vol CX (30), Nairobi, April 11, 2008, at 763.

Page 3 of 87
save money (and rationalize their work?).13 Second, the proposal that the National Appeals Board
(NAB) be established as the umbrella institution for any appeals lying from the recognized
tribunals.….14 The second proposal was problematic given the variety, diversity and amount of
work and scope of jurisdiction of the more than 60 tribunals in Kenya….
Third, the BBI Reports and Constitution of Kenya (Amendment) Bill, 2020 recognized the need
to enhance judicial independence by stipulating that the proposed Judiciary Ombudsman under
Art. 172A should not investigate any matters pending before the tribunals and courts, in the
exercise of its mandate.
Fourth, the proposal to vest the Political Parties Dispute Tribunal (PPDT) with powers to
adjudicate over disputes arising from nomination processes by political parties. This was meant
to enhance service delivery and speedy resolution of matters. 15 In light of the Supreme Court’s
decision in The Hon. Attorney General and Others v. David Ndii and Others [2021] eKLR (BBI
appeal), these reforom proposals are likely to be subjected to the popular vote and implemented.

10.1.2 Functions and Typology of Quasi-Judicial Tribunals in Kenya and Africa

This section begins by defining Wwhat are tribunals are in Kenya and Africa.? Section 2
(interpretation) of the Tribunals Bill, 2015 defined tribunals as “a Tribunal established by an Act
of Parliament.” Hence, the scope of what constitutes a tribunal is defined by the legislation
creating it.
On the other hand, Commissions of inquiry are defined as “ad hoc advisory bodies set up by the
government to obtain information”16 and as any inquiry or commission established under the
Commissions of Inquiry Act, as defined under section 2 of the Act.
In Ccomparinge administrative, quasi-judicial, and judicial tribunals, . The key difference across
the three (3) tribunals is in the nature of their establishment, the scope of their jurisdiction and
accountability. The common denominator is that they are established through statutes, and
exercise discretion in evidence and formulation of procedures.
There wereWere there 81 tribunals in Kenya in 2015. ? The main What was the rationale or
intention for the establishment of these tribunals was to ensure access to justice to all citizens, in

13
Cf. Okiya Omtatah Okoiti v. Judicial Service Commission & 2 Others; Katiba Institute (Interested Party) [2021]
eKLR
14
Everlyne Kwamboka (2020) “BBI wants judicial tribunals consolidated to save money,” Standard, Nairobi,
November 30, 2019, at https://www.standardmedia.co.ke/kenya/article/2001351449/bbi-wants-judicial-tribunals-
consolidated-to-save-money (accessed December 4, 2020).,
15
…See the discussions under Chapter 9 of CODRALKA 1 above.
16
Eliud Kibii (2018) Omissions or Omissions of Inquiry? Why Kenya has failed to address historical and other
injustices,” Elephant, April 5, 2018, at https://www.theelephant.info/features/2018/04/05/commissions-or-
omissions-of-inquiry-why-kenya-has-failed-to-address-historical-and-other-injustices/ (accessed September 8,
2021).

Page 4 of 87
sectoral adjudicatory institutions with easily comprehensible procedures, rules and evidentiary
burdens. The tribunals would also address case backlog hence contribute to the general
efficiency of the Kenyan judicial system….?17 The intention was to ensure access to justice to all
citizens, in sectoral adjudicatory institutions with easily comprehensible procedures, rules and
evidentiary burdens. The tribunals would also address case backlog hence contribute to the
general efficiency of the Kenyan judicial system….

10.2 Public inquiries in Kenya and Africa18

Under this section, we problematize and contextualize at least three (3) substantive matters. First,
what is the constitutional and legal framework on the structure and composition of public
inquiries and inquests in Kenya? Second, what is the administrative and institutional framework
of public inquiries in Afro-Kenyan constitutional democracy? Third, what substantive,
evidentiary, and procedural laws apply in tribunals, public inquiries and commissions of inquiry
in Kenya and Africa? Do the law of contempt, sub judice,19 res judicata,20 apply?

10.2.1 Substantive law on Judicial Tribunals in Kenya and Africa

What is the constitutional and legal framework on the structure and composition of public
inquiries (inquests?) in Kenya? What is the administrative and institutional framework of public
inquiries in Afro-Kenyan constitutional democracy and sustainable development?

Some conceptualize executive power to include the establishment of judicial tribunals by the
President under Art. 168 (removal from office) to adjudicate over the dis-appointment of judges
of superior courts. This power must be exercised within the confines of legislation and the
Constitution as stipulated under Arts. 129 (principles of executive authority).

Art. 129 states:

17
Wahome Thuku (2015) “Kenya’s Judiciary starts reforming tribunals,” Standard Digital News, Nairobi, February
19, 2015, at http://www.standardmedia.co.ke/article/2000152159/kenya-s-judiciary-starts-reforming-tribunals
(accessed 21/02/15)... See Report on Tribunals reform (Justice Kathurima M’Inoti); Republic of Kenya (2010)
“Final Report of the Task Force on Judicial Reforms,” July 2010, at
http://kenyalaw.org/kl/fileadmin/pdfdownloads/Final_Report_of_the_Task_Force_on_Judicial_Reforms.pdf
(accessed September 9, 2021)... See also Chapter 9 of CODRALKA 1 above on tribunals in Kenya and Africa.
18
Cf. public inquest for instance, the one on the Baby Pendo conducted by Kisumu Resident Magistrate Ms Beryl
Omollo… See… National Coroners Service Act No. 18 of 2017? Not implemented because police control matters of
dead bodies…. Yet some of them complain that handling dead bodies should not be part of their duty…. If Coroners
handled dead bodies, perhaps more cases of extrajudicial killings by police would be revealed. See….
19
Section 6 of the Civil Procedure Act stipulates that no court should handle any matter where there exists a
previous matter between the same parties or on the same issues in substance. It applies to where the cause of action
and or issue are identical to a previous suit or proceedings. Cross ref…
20
Section 7 of the Civil Procedure Act. The doctrine of res judicata means ‘the thing has been decided.’ It means
once a matter has been settled by a court of competent jurisdiction, then the matter is closed..…. See also Chapter 9
of CODRALKA 1 above.

Page 5 of 87
 “Executive authority21 derives from the people of Kenya and shall be exercised in accordance
with this Constitution. (2) Executive authority shall be exercised in a manner compatible with the
principle of service to the people of Kenya, and for their well-being and benefit.” 22

This provision binds the President to constitute judicial tribunals in a manner that promotes and
upholds constitutional values, objects, principles and constitutionalism. Art. 130 (National
Executive) of the Constitution 2010 provides that the Executive constitutes of the President,
Deputy President and the Cabinet.

Thus, in the exercise of executive authority, the President works in cooperation and consultation
with the Deputy President and Cabinet Secretaries under Art. 131 (authority of the President).
They are bound to respect, uphold and protect the Constitution, rule of law, human rights and the
sovereignty of the people. The composition of Judicial tribunals must also reflect the diversity of
the people.

The question of inclusivity and unity was one of the notable issues that the BBI Reports and
Constitution of Kenya (Amendment) Bill, 2020 sought to address in Art. 10A (regional
integration and cohesion), Art. 11A (economy and shared prosperity) and Art. 18A
(responsibilities of a citizen).

Art. 132(4) of the 2010 Constitution stipulates that the President shall exercise any other
Executive function provided by the Constitution or national legislation. Relatedly, the President
has a mandate of establishing judicial tribunals to consider petitions for the removal of judges of
superior courts in cooperation with the Judicial Service Commission (JSC)under Art. 168(5)
(removal from office).

…..Consider also the Commissions of Inquiry Act, Cap. 102) and Section. 23 of the 1969
Constitution (Executive authority of the Government of Kenya).23 Section 23 states thus:
21
Cf. what is power?…. See also Chapter 8 on Executive Power, Function, and Structure in Kenya and Africa:
Concepts, Theory and History…; Ben Sihanya (2011) “The Presidency and Public Authority in Kenya’s New
Constitutional Order,” Constitution Working Paper series No. 2 Society for International Development (SID)
Eastern & Central Africa, Nairobi, at http://www.sidint. net/docs/WP2.pdf (accessed September 9, 2021).
22
Art., 129 of the Constitution 2010 on principles of Executive authority.…
23
What was the constitutional and judicial basis of the Commission’s Inquiry or probe into the death of Internal
Security Minister Prof George Saitoti, and five others, namely, his Assistant Minister Mr Orwa Ojode, the pilot, co-
pilot, his personal assistant and a bodyguard in Ngong in June 2012? It was presided over by Justice (Rtd) Kalpana
Rawal, the then DCJ-designate. They submitted the report to President Mwai Kibaki in January 2013. Not released.
No action was taken…. What is the constitutional and legal implication of their findings? What of the inquest into
the death of Baby Samantha Pendo presided over by Hon Beryl Omolo, Resident Magistrate (RM)? See Standard
Digital Reporter (2019) “Inquest: Five officers have a case to answer in the death of Baby Pendo,” Standard,
Nairobi, February 14, 2019, at https://www.standardmedia.co.ke/article/2001313051/inquest-finds-five-officers-

Page 6 of 87
 “The executive authority of the Government of Kenya shall vest in the President and, subject to
this Constitution, may be exercised by him either directly or through officers subordinate to him.
(2) Nothing in this section shall prevent Parliament from conferring functions on persons or
authorities other than the President.”

The 1969 Constitution provided for a wide mandate of the exercise of Executive (President)
powers in the establishment and disbandment of judicial tribunals including any offices
exercising quasi-judicial powers.24

10.2.2 Procedural rules in public inquiries in Kenya and Africa

What are the procedural rules of public inquiries? There are no clear procedural rules for the
exercise of quasi-judicial powers in public inquiries. A case example is the argument by the
Judges and Magistrates Vetting Board (JMVB) that they could make decisions that were not
subject to the jurisdiction of courts.

Relatedly, I have argued in various fora and publications including my paper on Constitution
implementation in Kenya, 2010-2015: Challenges and Prospects, that “the rules and practice of
administrative justice require that decisions are only final if they comply with the doctrines of
validity and legitimacy in terms of substance and procedure.”25

Also, the 2010 and 1969 Constitutions do not provide details, esp. on ad hoc tribunals (including
on tribunals to investigate Judges, the Chief Justice (CJ), Deputy Chief Justice (DCJ) etc).26

What evidentiary rules should they follow? Should they apply the law of evidence (including the
Evidence Act, Cap. 80) entirely? There have been divergent opinions on this matter.
culpable-in-the-death-of-baby-pendo (accessed 6/5/2020); Inquest into the death of the late Makueni Senator Mutula
Kilonzo, George Saitoti, and Orwa Ojode, Tony Ndilinge? Judy Angaine (daughter of then Lands Minister Jackson
Harvester Angaine; was Cabinet Minister Paul Joseph Ngei involved ?). See Standard Reporter (2020) “Corruption,
murder, womanizing: Paul Ngei, the man who bullied Jomo Kenyatta,” Standard, Nairobi, at
https://www.standardmedia.co.ke/entertainment/showbiz/2001390187/corruption-murder-womanizing-paul-ngei-
the-man-who-bullied-jomo-kenyatta (accessed April 9, 2021); What were the final outcomes of these inquests? To
develop a typology and create sections on how assassinations and unexplained deaths have been and may be dealt
with… (Sham) inquests, murder trials (Pio Gama Pinto, Tom Mboya, Robert Ouko); manslaughter trials….;
commissions of inquiry….; Nothing was done (Argwings Kodhek, JM Kariuki, Jacob Juma, Christopher Chege,
Musando…..
24
See also Chapters 6 (on Fusion and separation of powers, and checks and balances in Kenya and Africa), 7 (on
Legislative Power, Structure and Functions in Kenya and Africa), 8 (on Executive Powers, Functions, and Structure
in Kenya and Africa: Concepts, Theory, History, and Practice), 11 (on President and Deputy President in Kenya and
Africa), 13 (on Prime Minister and Deputy Prime Minister in Kenya and Africa).
25
Ben Sihanya (2011) “The Presidency and Public Authority in Kenya’s New Constitutional Order,” op. cit.; See
Paul Craig (2008) Administrative Law, Sweet & Maxwell, London (sixth ed).
26
Cf. Report and Recommendation into the Conduct of the Hon. Lady Justice Nancy Makokha Baraza [2012] Eklr,
Tribunal Referral Net 1 of 2012…

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 But the preponderance of opinion is that procedural and evidentiary rules should be less strict
than in a civil or criminal court of law. Hence, they may admit but not necessarily act on and or
place a lot of weight on hearsay, and rumours, among others.

10.2.2.1 Evidentiary rules in public inquiries in Kenya and Africa

What evidentiary rules should public inquiries apply? For instance, who bears the burden of
proof? ...............Generally, there is lack of substantive procedure or burden of proof in public
inquiries. This is because of the wide latitude given to the Commission and inquests to guide
their proceedings based on their own rules.

Is it the tribunal or the subject of the public inquiry? What is the standard of proof? Is it on a
balance of probabilities (civil cases) or beyond reasonable doubt as in criminal cases?

The Report of Njonjo Inquiry noted that the evidentiary burden and standard are related to the
scope of the role of the commission of inquiry which includes being a probe of inquiry in the
literal sense. Hence, the Inquiry confined itself to the Evidence Act, and even adopted hearsay
evidence in its “fishing expedition” to ascertain questions of public importance. Hallett’s Royal
Commissions and Bowds of Inquiry 1982 Edition argues that where such hearsay evidence leads
to the discovery of a matter of general public importance, then it is admissible.27

Alternatively, where the tribunal it does no’t rely on any evidence, then no inquiry took placer,
based on such evidence….

Some have also argued that public inquiries are generally constituted as a result of circumstantial
evidence. For instance, President Daniel Arap Moi established the Devil Worship Commission to
inquire into the devil worship allegations raised by the Church. Indeed, collecting the nature of,
and viability of such evidence would be preposterous28…..

In other countries, there are express evidentiary rules for public queries. For instance, in Canada
there is an Inquiries Act, 1985 which even permitted expert evidence under section 11(2)
(Experts may take evidence and report) states thus:

“The commissioners may authorize and depute any accountants, engineers, technical advisers or
other experts, the services of whom are engaged under subsection (1), or any other qualified
27
Hallett’s Royal Commissions and Bowds of Inquiry 1982 Edition.
28
Gregory Deacon & Gabrielle Lynch (2013) “Allowing Satan in? Moving toward a political economy of neo-
Pentecostalism in Kenya,” 43(2) Journal of religion in Africa, 108-130.

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 persons, to inquire into any matter within the scope of the commission as may be directed by the
commissioners.”29

…… However, some of the Kenyan commission of inquiries have been cited for their dismissal
of biased appreciation of evidence in the hearings.30

There are at least two (2) relevant instances. First, the Bosire Commission invoked its own rules
in dismissing any adverse evidence by witnesses where such evidence referred to other persons,
who had no prior notice of such evidence being called against them.

Second, the Akiwumi Commission dismissed the evidence of Father John Kaiser on grounds that
such evidence would poise a threat to the national security. The Commission argued that:

“The evidence made adverse the Head of State must be expunged from the records of those
proceedings. That evidence came without warning. Rule 4 of our rules of procedure provides that
without the leave of the Commissions, “No evidence...” The only action we must now take is to
order that the evidence wherein the President is mentioned must be expunged from records of
these proceedings.”31

The Miller Commission also formulated rules of procedure that barred the admissibility of
evidence prejudicial to the President. These show grounds upon which evidence may be
admissible or not in public inquests. If so, how are the decisions of tribunals and inquests
regarded in Afro-Kenyan constitutional democracy vis-à-vis the courts?

10.2.3 Contempt and sub judice in tribunals in Kenya and Africa

How may the dignity and integrity of the tribunals be protected? The law of contempt of
tribunals court applies. However, it should be noted that tribunals are considered inferior to the
High Court. There are three (3) types of contempt. First, civil contempt. Second, criminal
contempt. Third, civil and criminal contempt.32

29
Section 11(2) of the Canadian Inquiries Act, 1985.
30
Daily Nation (1999) “Akiwumi Team accused of blocking evidence,” Daily Nation, May 20, 1999 (accessed
September 9, 2021).
31
Kenya Law Reports, Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya, at
http://kenyalaw.org/kl/fileadmin/CommissionReports/ReportoftheJudicialCommissionAppointedtoInquireintoTribal
ClashesinKenya.pdf (accessed April 25, 2022).
32
See Republic v. Wangari Mathai & 2 Others [1981] eKLR …… Wangari Maathai was charged with contempt of
court based on her comments in an interview by Miriam Kiarie for the Viva magazine Vol. 7(1) in 1981. Prof
Maathai stated: “What shocked me most of all was the court’s acceptance of the divorce on the grounds of adultery.
That charge was never proved in court, and I will say without fear that there can only be two reasons for the court to
have said that I committed adultery: corruption or incompetence.” The court sentenced her to six (6) months
imprisonment …..

Page 9 of 87
And contempt may be tried and punished through the usual trial process, or summarily. Under s.
5 of the Judicature Act, Cap. 8, the High Court has the power to try and punish for contempt in a
manner equivalent to the High Court of Justice in England.33 Some argue that tribunals cannot
punish for contempt of tribunal summarily.34

What of the sub judice rule?35 Justice John Mativo in Republic v. Paul Kihara Kariuki, Attorney
General & 2 others Ex parte Law Society of Kenya (2020) held that what constitutes sub judice
is determined from the substance of a matter, and must be substantially similar to another matter
that was filed consecutively.36

Indeed, to safeguard constitutionalism and the rule of law, what is required of courts and judges
in the enforcement of court orders is akin to Chief Justice Gascoigne who almost sent Henry IV
to the slammer for contempt of court in Cheddar v. Savage (1406).

10.2.4 Utility of Tribunal Findings and Reports in Kenya and Africa 37

What has been the impact of the reports and tribunal findings to Afro-Kenyan constitutional
democracy, political economy and sustainable development? Remarkably, some were dissolved
before they completed their mandate, for instance, the Gicheru (Robert Ouko’s death inquiry)
Commission …38 There was debate on whether the President could dissolve it prematurely, and
whether the tribunal was still bound to hand in its report.39

33
….See also Contempt of Court Act 1981, United Kingdom…
34
The Contempt of Court Act, 2016 was declared unconstitutional in Kenya Human Rights Commission v. Attorney
General & Another (2018) eKLR, Petition No. 87 of 2017 on grounds that there was no public participation as
stipulated under Art. 10 and 118(b) of the Constitution, and that its enactment was an infringement on judicial
independence….
35
Cf. Philomena Mbete Mwilu v. Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima (Interested
Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR, Petition 295 of 2018.
See also Joachim Buwembo (2020) “If courts listen to noises outside a case, taxpayers won’t be punished,”
EastAfrican, Uganda, June 22, 2020, at https://www.theeastafrican.co.ke/tea/oped/comment/if-courts-listen-to-
noises-outside-a-case-taxpayers-won-t-be-punished-1443616 (accessed April 9, 2021).
36
Republic v. Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya [2020] eKLR.
37
The BBI Taskforce 2019 and 2020 Reports noted that numerous public inquiry reports had not been implemented
and therefore, a necessity for national conversation.
38
….President disbanded the inquiry in November 1991 and therefore it did not produce a report of its findings. See
Oliver Mathenge (2020) “Unsolved Moi-era murders that officials called suicide,” Star, February 4, 2020, at
https://www.the-star.co.ke/news/2020-02-04-unsolved-moi-era-murders-that-officials-called-suicide/ (accessed
April 19, 2021).
39
….Ibid. President Moi woke up and disbanded the Gicheru Commission, instead establishing another commission
to investigate the nexus between the construction of the Kisumu Molasses plant and Robert Ouko’s murder…See
Martin Minns (2020) “Kisumu corruption - stuck in molasses,” Star, Nairobi, March 6, 2020, at https://www.the-
star.co.ke/opinion/2020-03-06-kisumu-corruption-stuck-in-molasses/ (accessed April 19, 2021).….

Page 10 of 87
Upon dissolution of the Commission, Jaramogi Oginga Odinga remarked that “it is an insult to
the intelligence of Kenyans to set up a commission of inquiry to clear the same mess it has
created.”40 This was inferred (interpreted?) as the Government’s culpability in the murder of
Ouko and subsequent attempts to cover up the whole scheme.

What is the weight or integrity of Commission’s report? Can it be questioned by the High Court
after the report is made, a la (as in the case of) Biwott’s application regarding the Akiwumi
Commission’s report on politically instigated land clashes?41 Some decisions of tribunals and
public inquiries are final, others can be appealed at the High Court, while others can be appealed
to the relevant Cabinet Secretary.

The appellate period also ranges between 14 to 21 days, while others even extend to 90 days. A
further question, is whether tribunal decisions can be appealed only on points of law or also on
points of fact. There is therefore lack of uniform appellate procedure and framework for
decisions by tribunals and findings by commissions in Kenya…

What constitutional, legal, and political purposes do public inquiries serve? What is their value?
Prima facie, public inquiries are established to serve the public interest. They are also paid by
taxpayers money. However, the reports of public inquiries have been used by successive regimes
in Kenya, especially for political and governance reform purposes. This may be due to the fact
that the establishment of such inquiries generally arises from public interest.42

President Mwai Kibaki in presenting the Bosire Commission’s report to the public stated that:

“I have today directed the immediate release of the Goldenberg Commission report to the public.
The release of the report marks the beginning of a new phase in the war against corruption… The
Government has made public the recommendation for the Commission and will move decisively
and with speed to implement these recommendations.”

This was to reinforce Kibaki’s Government’s resolve to address corruption in Kenya as a key
part of his manifesto. Alternatively, public inquiries were especially adopted under the President
40
See David William Cohen & ES Atieno Odhiambo (2004) The Risks of Knowledge: Investigations Into the Death
of the Hon. Minister John Robert Ouko in Kenya, 1990, Oxford, Ohio: Ohio University Press….
41
Nicholas Biwott, a Moi confidant, proceeded to the High Court to question the decision of the Commission of
Inquiry into land clashes chaired by then High Court Justice Akilano Akiwumi…. See Republic of Kenya (1998)
Report of the Commission of Inquiry into the Tribal Clashes, Gazette Notice No. 3312 of Ist July, 1998(Reported
August 19, 1999 after several extensions); See also Biwott Kiprono v. Judicial Commission of Inquiry into the
Tribal Clashes (2002) eKLR….Justice PJ Ransley held that the Commission had the mandate to inquire into the
matter. However, due to its dissolution, the matter was dismissed since proceedings could not be brought against a
non-existent entity.
42
Alexander R. Macdonald (2011) “An Analysis of the Forms and Functions of Independent Commissions of
Inquiry,” Montreal: McGill Faculty of Law, Royal Commission, Canada. 

Page 11 of 87
Moi’s regime against political opposition. This was clear in the establishment of the Miller
(Njonjo) Inquiry. This was informed by allegations that some Cabinet Minister was being
groomed for the succession of President Moi. The findings of the Miller inquiry was thus
considered a lesser but fatal political strategy in eliminating Njonjo from the Moi succession and
transition politics.

Remarkably, in the Maize Commission of Inquiry (the then Cabinet Minister for Marketing and
Cooperatives, Paul Joseph Ngei was reportedly questioned regarding maize mismanagement and
corruption in 1965 that also involved his wife, Emma Ngei…. 43 The Maize Commission of
Inquiry was established in 1943. When Ngei ws questioned before the House, he remarked:
“Where were you when I took up arms to chase away the white man!” Paul Ngei was not
penalized after the inquiry report found him culpable.44

The recommendations of public inquiries have also not been considered or implemented at all. A
case example was the recommendation of the Akiwumi Commission for the prosecution of
police officers and politicians for their alleged involvement and role in the 1992 tribal clashes.
The Attorney-General Charles Njonjo declined to prosecute.45

And following the Miller (Njonjo) Inquiry, Njonjo was pardoned. 46 It is not also very clear to
what extent public inquiries have power to summon witnesses and to what extent they may
invoke the doctrine of contempt of court.47

43
….See Chapter 3 of CODRLKA 1; Macharia Kamau (2017) “Kenya’s first major graft at independence was about
maize,” Standard, Nairobi, May 16, 2017, at https://www.standardmedia.co.ke/business/article/2001239883/kenya-
s-first-major-graft-at-independence-was-about-maize (accessed April 9, 2021).
44
Was Paul Ngei temporarily suspended in the usual formula, method or modus operandi of “step aside”…then
resumed the (related) official powers and functions?....Kamau Ngotho (2017) “Paul Ngei, the rogue minister who
respected no law,” Daily Nation, Nairobi, https://mobile.nation.co.ke/news/Paul-Ngei--the-rogue-minister-who-
respected-no-law-/1950946-4099010-10lr7pe/index.html (accessed September 10, 2021).
45
African Centre for Open Governance (2008) “Commissions of Inquiry in Kenya: Seekers of Truth or Safety
Valves?”
46
See Chapter 9 and 10 on Judicial power, structure, and independent accountability in Kenya and Africa: Interests,
process and outcomes…
47
Cf. the debate on whether Juma Kiplenge or Kamau Kuria was in contempt of the Goldenberg Tribunal. East
Africa Standard and Daily Nation, July 9, 2004. Nation (2005) “Court rejects plea to halt demolitions,” Daily
Nation, June 25, 2005, at https://www.ogiek.org/indepth/break-also-ogiek-evict.htm (accessed April 9, 2021);
Standard (2005) “More families sue over evictions,” Standard, June 25, 2005, at
https://www.ogiek.org/indepth/break-also-ogiek-evict.htm (accessed April 9, 2021); EastAfrican (2005) “Court
Upholds Order oOn Mau Evictions,” EastAfrican, Nairobi, June 23, 2005, at https://www.ogiek.org/indepth/break-
also-ogiek-evict.htm (accessed April 9, 2021)….

Page 12 of 87
It has not been very clear what the role of assisting counsel is. 48 Some commissions of inquiry
were established under s. 23 of the 1969 Constitution and this is where the President had powers
to exercise executive authority “either directly or through officers who are subordinate to him.”

These Commissions and committees appointed at the discretion of the President are subordinate
to the President and are executive agencies inferior to the High Court too even when presided
over by a Court of Appeal Judge. For instance, the report of the Akiwumi Commission on land
clashes was subjected to review in the High Court (non- meritorious case). Another (Bosire)
Goldenberg Commission was subjected to judicial review in the High Court although Justice
Bosire was a Court of Appeal judge at that time….49

These are some of the reasons why some legislators including former Kisumu Town Member of
Parliament (MP) Mr John Olago Aluoch proposed the amendment of section 7 of the
Commissions of Inquiry Act, 1962 to provide that the reports of the public inquiries be presented
to Parliament for public debate, as opposed to the President. This proposal remained moot.
Section 7(1) of the Act stated thus:

“It shall be the duty of a commissioner, after making and subscribing the prescribed oath, to make
a full, faithful and impartial inquiry into the matter into which he is commissioned to inquire, to
conduct the inquiry in accordance with the directions contained in the commission and on
completion of the inquiry, to report to the President and to the National Assembly, in writing, the
result of the inquiry and the reasons for the conclusions arrived at.”

What about the report of the Truth Justice and Reconciliation Commissions (TJRC), 50 the
Jonathan Kriegler Commission on Electoral Reforms Post 2007/08 elections, 51 the report of the
Commission of Inquiry into the Post-Election Violence (CIPEV) (Waki Report); 52 Report on

48
See Justice Bosire’s ruling on an application by Kamau Kuria (assisting counsel) seeking that Justice Bosire
disqualifies himself … See also Eliud Miring’uh & Biketi Kikechi (2004) “Kenya: Drama as Muite denies Lawyers’
claims,” Standard, Nairobi, July 6, 2004, at https://allafrica.com/stories/200407061079.html (accessed April 9,
2021)...See also Africa Centre for Open Governance (AfriCOG) (2007) “A study of Commissions of Inquiries in
Kenya,” at https://www.africog.org/reports/Commissionsofinquirypaper.pdf (accessed April 9, 2021).
49
….Ibid….
50
…Kenya Human Rights Commission (2018) “Truth Justice and Reconciliation Commissions,” June 18, 2018, at
https://www.knchr.org/Portals/0/Transitional%20Justice/TJRC%20Downloads/TJRC_report_Volume_4.pdf?
ver=2018-06-18-174714-950 (accessed April 9, 2021)…
51
….See The Elephant (2008) “Summary of the Kriegler Commission 2007 Report,” at
https://www.theelephant.info/wp-content/uploads/2018/04/Elephant-Kriegler-Table.pdf (accessed April 9, 2021).
52
…. The Elephant (2018) “The Waki Report (Commission of Inquiry into Post-Election Violence),” Elephant,
August 9, 2018, at https://www.theelephant.info/documents/the-waki-report-commission-of-inquiry-into-post-
election-violence/ (accessed April 9, 2021).

Page 13 of 87
Artur Sargasysan and Artur Margaryan (mercenaries) who were linked to the Kibaki presidency
and State House….?53

Section 49(1)(h) of the Truth Justice and Reconciliation Commissions (TJRC) Act, implored the
Minister of Justice to implement the recommendations of the Report of the TJRC made pursuant
to section 48(2)(f). Section 49(1)(h stated that:

“The Minister shall, upon the publication of the report of the Commission, operationalize the
implementation mechanism or arrangement in accordance with the recommendations of the
Commission under section (48) (2) (f) to monitor the implementation of the recommendations of
the Commission and to facilitate their implementation.” 54

More than 14 years later, the TJRC Report had not been implemented with the then Deputy (DP)
President William Ruto remarking in July 2017 in Kilifi County that the TJRC Report should not
be implemented to avoid “re-opening old wounds.” The Jubilee Government, later on, merely
released an apology to the victims.

Part of the debate has been the abstract nature of such provisions on implementation of the
reports or findings of the tribunals. This is due to two (2) reasons. First, the lack of political will
by successive regimes, especially where key Government officials are implicated. Second, the
commissions and public inquiries lack powers to grant reparations and or prosecutorial powers 55
Equally significant are the political sides taken by legislators, especially when the TJRC Report
was presented for debate in Parliament56……

53
It was chaired by former Police Commissioner Shadrack Kiruki. Ahmed Isaack Hassan who rigged the 2013
(presidential) elections as IEBC Chairperson served in this Commission. See the Report on the Commission of
Inquiry chaired by Shadrack Kiruki.
54
Section 49(1)(h) of the Truth Justice and Reconciliation Commissions (TJRC) Act.
55
See the Truth, Justice and Reconciliation Commission of Kenya (TJRC)(2013) “Report of the Truth, Justice and
Reconciliation Commission,” Volume 4.
56
John Ngirachu (2013, 2020) “MPs can now change Truth commission report,” Daily Nation, Nairobi, July 3,
2020, at https://nation.africa/kenya/news/politics/mps-can-now-change-truth-commission-report-923512 (accessed
April 25, 2022).

Page 14 of 87
Why have Kenyan Presidents (Kenyatta I, 57 Moi,58 Kibaki,59 and Kenyatta II60) established
Commissions of Inquiry? For example, the Maize Commission of Inquiry (1964), 61 Njonjo
(1983/84), Insurance (Hancox) (1986), Goldenberg, Akiwumi Commission, Ouko and the ,
Education (Davy Koech) Commission? These are discussed in the section below….

10.3 Case Studies of Public Inquiries in Kenya and Africa

We discuss at least four (4) case studies of public inquiries in Kenya and Africa. These include
Njonjo, Ouko, Koech and Bosire. Compare Marikana Inquest in South Africa- Police shooting of
34 South Africans.62

10.3.1 Njonjo (Miller) Commission of Inquiry in Kenya

Charles Mugane Njonjo was subjected to a Commission of Inquiry by President Moi in 1983- 84.
Njonjo was the first independent-Kenya’s Attorney-General (A-G) during 1963-1980. He was
also the Moi Kingmaker in 197863….

57
At least three (3) including the Maize Inquiry, 1965, Marriage and Succession Laws Commission, and the Public
Service Structure and Remuneration Commission, 1970; Implemented? See also Chapter 8 of CODRALKA 1 on
Executive Powers, Functions, and Structure in Kenya and Africa: Concepts, Theory, History and Practice….
58
He established at least four (4) including the Miller Commission, Taskforce to erview laws relating to women,
1993, Davy Koech Commission, and the Land Systems Commission; Implemented? See also Chapter 8 of
CODRALKA 1, ibid…
59
He established at least five (5) including Ndungu Land Commission; Waki and Kriegler Commissions;
Goldenberg Inquiry, and TJRC. Implemented? The Commissions of Inquiry, op. cit., into the Death of George
Saitoti and Orwa Ojode in an helicopter crash in 2012 was presided over by Justice (Rtd) Kaplana Rawal as the then
High Court Justice. What were some of the remarkable constitutional issues (elections some months away); Political
issues (had he shown interests in political pacts?); security issues (a few days earlier, he cautioned against dark
forces and how they affected elections, security, and governance….) What technical issues arose regarding the pre-
flight, flight, and post flight “accident” issues…. See Betty Njeru (2020) “Eight years later, questions on Saitoti's
death linger,” Standard, Nairobi, June 10, 2020, at
https://www.standardmedia.co.ke/politics/article/2001374690/eight-years-later-questions-on-saitotis-death-linger
(accessed December 9, 2020)
60
He established the Taskforce to implement the ruling on the Endorois community; Presidential Taskforce on
Parastatal Reforms; Taskforce on Building Bridges Initiative, 2018 and Taskforce to Review Legal, Policy and
Institutional Framework in Kenya, 2015... Implemented?
61
See Kenya Law (2021) “Report on Maize Commission of Inquiry,” March 19, 2021, at
http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-the-Maize-commission-of-Inquiry.pdf (accessed
April 9, 2021) …. See also Report of the Ndegwa Commission of Inquiry into Public Service Structure and
Remuneration, 1970-1971, at https://books.google.com/books/about/ReportoftheCommissionofInquiryPubl.html?
id=Q8Q-tAEACAAJ (accessed April 9, 2021)…..
62
BBC (2014) “Marikana mine killings: South African police ‘'planted weapons’,” BBC, November 6, 2014, at
https://www.bbc.com/news/world-africa-20218828 (accessed April 9, 2021).
63
Christopher Clapham (1988) “Epilogue: political succession in the third world,” 10(1) Third World Quarterly, 
281-288.

Page 15 of 87
Charles Njonjo resigned as the A-G in 1980 and was thereafter elected unopposed as Kikuyu
MP. This was after; Amos Ng’ang’a had resigned with Njonjo paying him KES 160, 000. 64
Njonjo was appointed Minister for Constitutional Affairs (abolished after Tom Joseph Mboya
held it in 1960s...). Njonjo had been a very powerful A-G and Minister. He had been responsible
for direct and indirect appointment to the Executive (including Cabinet), the administrative
bureaucracy; elections to Parliament and appointment or promotion in the Judiciary….
Numerous officers in the Ministries, Ddepartments and Agencies (MDAs), were directly,
indirectly, formally and informally answerable to Njonjo. These also included Chief Justices.
Some of the Chief Justice including Kitili Mwendwa called him “Sir”… including ( Police
Commissioner Benard Hinga and Ben Gethi;65 the then Criminal Investigation Department
(CID) Director Ignatius Nderi, the then Director of the Special Branch James Kanyotu;
prosecutors in the A-G chambers like Shadrack Rao and in the Police Force, like Joginder Sokhi
Singh….66
From 1981, Njonjo’s constitutional and political power and authority wereas questioned directly
when his cousin Mr Andrew Mungai Muthemba was charged with treason, and Dixon Muiruri
with misprision of treason.67 Evidence was adduced to the effect that Njonjo was privy to the plot
to overthrow Moi68…..
And the August 1, 1982 coup attempt was allegedly mounted to pre-empt a Njonjo coup. 69 Then
Moi said there was a “traitor” being groomed to overthrow his administration in Kisii Stadium in
April 1983. Then Elijah Wasike Mwangale, who was the then Member of Parliament (MP) for
Bungoma East named Njonjo as the traitor in Parliament. 70 Njonjo challenged Elijah Mwangale
64
There were claims that Njonjo had attained retirement age. The more compelling reason seemed to be the quest for
political power, especially the presidency…. which he could not do as A-G….
65
….Ben Gethi was widely mentioned in the Njonjo inquiry. It was reported that he even demanded that Raila
Oginga Odinga be given pen and paper to write everything about the circumstance of August 1, 1982. He later tore
Odinga’s statement in pieces, four times since Odinga’s statement mentioned Njonjo. Ben Gethi and Charles Njonjo
were also mentioned by the then President Albert Rene France of Seychelles for their involvement in the November
25, 1981 attempted overthrow of the Seychelles socialist Government.
66
….Cyprian Fernande (2021) “Two of the most hated and feared men in Kenya,” at
https://www.headlinesofmylife.today/2020/05/two-of-most-hated-and-feared-men-in.html (Accessed September 9,
2021).
67
See also Paul Mwangi (2001) The Black Bar: Corruption and Political Intrigues Within Kenya’s Legal Fraternity,
Oakland Publishers, Nairobi. What were the written and verbalized opinions of Advocate Paul Mwangi in the post-
2017 period?
68
David W. Throup, Daniel arap Moi and one-party rule (1978–1991). In The Oxford Handbook of Kenyan Politics.
69
…. See Miller Report. See also discussion of the Miller Report, at
http://www.africog.org/reports/Commissionsofinquirypaper.pdf (accessed December 9, 2020).
70
Elijah Mwangale had chaired the 15-member Parliamentary Select Committee (PSC) on JM Kariuki’s
Assassination in 1975…Members of the PSC included Martin J. Shikuku, John Seroney, Mark Mwithaga….(to
verify) complete list and discuss details under JM Kariuki PSC probe….. Vice President Moi had told Parliament
that JM Kariuki had gone to Zambia to visit his friend [Vernom Mwaanga] and had left for Tanzania…. This was
the same report released by Daily Nation Editor, George Githii on Saturday, March 8, 1975… One of the wives said
that she had JM’s passport…. Moi said a Vice President had travelled without a passport before…. The body was

Page 16 of 87
to repeat it outside Parliament. Some of the options included: First, suspension from KANU.
Njonjo was suspended on July 3, 1983?71 expulsion? These would make him ineligible to
participate in the planned September 1983 elections since he had no party. Second, resignation,
which he did on July 1, 1982? Third, sacking? Njonjo was sacked from Cabinet as the Minister
for Home and Constitutional Affairs on June 29, 1983. Fourth, treason trial? The findings of the
Inquiry later exonerated him on this charge.....
In clear and satirical reference to the fact that despite the work of the Parliamentary Select Probe
Committee, President Kenyatta I would not implement the Committee’s report, Mr Mwangale
remarked in Parliament on the fable of the hyena and the rock:
“Once upon a time, a hyena came across a stone. The hyena stopped by and hailed the stone but
the stone did not respond. As it passed the stone, the hyena turned around and said, ‘Even if you
have not responded, you have heard’, and with those few remarks, I beg to move .”72
A Commission of Inquiry was then established to investigate the allegations against Charles
Mugane Njonjo. The members appointed were Justices CHE Miller, CB Madan, and Justice
Effie Owuor.
The terms of reference of the Commission included the following four (4). First, to investigate
allegations that Charles Njonjo acted in a manner that threatened national security, position of
the President and Government of Kenya. Second, to inquire into allegations that Charles Njonjo
in a manner that threatened national interests, policy, good neighbourliness including opposing
apartheid by the South African regime. Third, allegations of abuse of the office of the Attorney-
General including attempts to arrogate to himself the President’s powers. Fourth, to report its
findings.73
The counsels assisting the Commission were Lee Muthoga, Timan Ngugi, Onyango Otieno. The
joint Secretaries were Jared B. Kangwana and Benjamin Patrick Kubo…. SM Otieno was a
Consultant to the Commission. Njonjo was represented by the late William S. Deverell of the
M/S Kaplan and Stratton Advocates (he later became a Court of Appeal Justice) assisted by Mr

identified at City Mortuary by one of the wives who identified herself as Ms Kamau, and then Butere MP Martin
Shikuku, among others…. Three of his lower teeth had been knocked off by his killers and the body was labelled
“Luo gangster…” Parliamentary Select Committee was summoned by President Kenyatta I before they would
release their report. The then Kisumu MP Grace Onyango, and Martin Shikuku(?) hid the original report in
Parliament’s “Kamiti room”…. Kenyatta I insisted on deleting the names of his State Minister and brother-in-law
Mbiyu Koinange and body guard Arthur Wanyoike Thungu…. Moi later allegedly took a handkerchief and wiped
his face while with Mark Muthoga, Nakuru town MP claiming they killed him….and feeling sorry he had lived.
71
….Mary Anne Fitzgerald (1983) “Treason Charge Brings Fall of Key Kenyan Politician,” Washington Post, July
9, 1983, at https://www.washingtonpost.com/archive/politics/1983/07/09/treason-charge-brings-fall-of-key-kenyan-
politician/8825f9d2-3708-443f-8351-71d582bddd7f/ (accessed September 10, 2021).
72
Aggrey W. Mabolo (2016) A Political Biography Of Elijah Wasike Mwangale: 1939-1992, Doctoral dissertation,
University of Nairobi.
73
Republic of Kenya (1984) “Report of Judicial Commission Appointed to Inquire into Allegations involving,” at
Report-of-Judicial-Commission-Appointed-to-Inquire-into-Allegations-Involving.pdf (accessed April 9, 2021).

Page 17 of 87
Paul Kibugi Muite of M/S Wamuhiu and Muite Advocates, who later became a Member of
Parliament (MP) for Kikuyu constituency.74
The inquiry took 109 days. The Inquiry found that Njonjo was guilty on all charges except
treason. These are discussed in Table 1 below.
Table 1 Report of the Judicial Commission of Inquiry on allegations involving Charles Njonjo, 1984

Allegation Findings

1 Allegation that Njonjo By instigating, facilitating and participating in the

conducted himself in a manner
prejudicial to the security of
State.
2 Allegation that Njonjo
conducted himself in a manner
prejudicial to the position of the
Head of State, the image of the
President and the
constitutionally established
Government of the Republic of
Kenya.
3 Allegation that Njonjo was a
party to a conspiracy or
conspiracies to overthrow by
unlawful means the
Government of the Republic of
Kenya, during the month
o[ August 1982, or the
concealment thereof.
4 Allegation it at Njonjo was a
party to the unlawful activities
of Andrew Mungai Muthemba,
or the concealment thereof.
5 Allegation that Njonjo was a
party to the convening of the
74
Muite served as Kikuyu MP (1992-2007)… ….David Thorup (1993) “Elections and Political Legitimacy in
Kenya,” Vol. 63(3) Journal of the International African Institute, Cambridge University Press….
illegal importation of arms and ammunition into Kenya,
by building up an arsenal in the Haryanto home, which
must have been intended for use in an insurrection, and
allowing the residents of South Africa to enter Kenya in
utter disregard of Kenya's security, Njonjo conducted
himself in a manner prejudicial to the security of State.
Njonjo conducted himself in a manner prejudicial to the
Head of State, the image of the President and the
constitutionally established Government of the Republic
of Kenya.
Njonjo was implicated in the illegal importation of
army, in the build-up of the cache in the Haryanto
home, and also in Muthemba’s attempts to acquire arms
and train personnel; these activities in which he was
involved, were part of conspiracies to overthrow, by
unlawful means the Government of the Republic of
Kenya during the month of August, 1982, and also the
concealment thereof.
Njonjo was a party to Muthemba’s unlawful activities.
Njonjo was also a party to the concealment of
Muthemba’s unlawful activities.
No finding regarding this allegation, or any implication

Page 18 of 87
 purported Rungiri Presbyterian arising therefrom.
Church of East Africa prayer
meeting on l2th June, 1983
and/or its conversion into an
irregular political gathering with
the intention of undermining the
position and image of the
President and the political
leadership in the country.
Allegation that Njonjo acted Njonjo acted against Kenya's national interest and
against Kenya's national interest policy of maintaining good neighbourliness by openly
and policy of maintaining good declaring his hostility, both at Arusha and thereafter in
neighborliness. Parliament and by celebrating the break-up of the East
African Community which comprised Kenya, Uganda
and Tanzania.
6 Allegation that Njonjo acted Njonjo actively collaborated with South Africans in
against Kenya's national interest total disregard of Kenya's national interest and policy at
and policy of opposing the a time in 1980, when the country was preparing to host
inhuman regime of South a Meeting of the African Heads of State with a view to
Africa. His Excellency the President taking over the
Chairmanship of the Organization of African Unity.
7 Allegation that Njonjo was a There were in Kenya persons involved in the attempted
party to a conspiracy or overthrow of the Government of Seychelles. These
conspiracies to overthrow by persons included Njonjo and Parkinson.
unlawful means the brotherly
government of the Republic of
Seychelles as by law established
during the month of November,
1981, especially when His
Excellency the President of
Kenya was Chairman of the
Organization of African Unity.
8 Allegation that Njonjo misused No evidence to support this allegation.
his office as Attorney-General
and/or Minister in that he
arrogated to himself the Cuties
and powers of the President.
9 Allegation that Njonjo misused Njonjo corruptly made the payment of Sh. 160,000 in

Page 19 of 87
 his office as Attorney-General
and or as Minister in that he
solicited or received or
attempted to receive or offered
or made or attempted to make
corrupt payments.
consideration of Amos Ng’ang’a resigning his
Parliamentary Seat to enable him (Njonjo) to seek
election thereto, as well as to seek political support,
thereby undermining the process of democracy.
Njonjo corruptly made two payments of Sh. 10,000 each
to Francis Mutwol to seek political support and
undermine the process of democracy.

Njonjo attempted to make a corrupt payment to

Lawrence Sifuna in order to induce him to join his
(Njonjo’s) camp thereby seeking political support and
undermining the process of democracy.
10 Allegation that Njonjo misused Njonjo’s conduct in relation to Gachago and Muchiri
his office as Attorney-General amounted to misuse of office of Attorney-General to
and/or as Minister in that he seek political support.
granted favours or acted to the
prejudice of individuals, to seek Njonjo misused his Ministerial office by granting
political support, to undermine favours to prisoners who came from his constituency
the process of democracy and to with the object of seeking political support.
protect persons involved in Njonjo misused his office as Minister with the object of
illegal activities. seeking political support in releasing two other
prisoners, namely, Benson Mbugua Kariuki and Njiru
Gikuma.

Njonjo misused his office by acting to the prejudice of

Mwachofi and Sifuna by intimidation and threats of loss
of personal liberty in order to seek political support
thereby undermining the process of democracy.

-By persecuting Mwidau, an innocent man, Njonjo acted

to Mwidau’s prejudice and detriment.

Njonjo instigated corrupt practices through his

emissaries Said Hemed and Shariff Nassir by providing
them with money to buy elected councillors to rig the
election of the Mayor and Deputy Mayor of Mombasa
with the object of seeking political support thereby

Page 20 of 87
 undermining the process of democracy.

-Njonjo acted to the prejudice and calamitous detriment

of E. K. Kioni in misuse of his office as Minister.

-Njonjo acted to the prejudice of both Kenya Airways

and Sofat and granted a favour to A.B.C. Travels and
Tours London by his abrupt intrusion at the meeting of
Kenya Airways in London and his curt derogatory
accusation of Sofat. He did this with the object of
preserving A.B.C. Travels and Tours monopoly, in
which he held an interest through Acharya Travel
Agency Limited, Nairobi.

Source: Part VII of the Report of Judicial Commission Appointed to Inquire into Allegations
Involving Charles Mugane Njonjo75
President Daniel arap Moi then exercised the power of mercy, clemency or pardon in favour of
Charles Njonjo on 12/12/1984 in the context of the release of the Cecil Miller Commission
report.76 President Daniel Moi gave reasons that Njonjo had served Kenya for a long time, and
that he was old with age.77
Was establishing the Commission in the public interest or merely a public relation (or PR) stunt
by President Moi? Was it to indicate that Moi respected the rule of law or was he using the
constitutional and legal network and process to solve a political problem? By edging Charles
Njonjo and his (Njonjo’s) supporters out of Government? 78 Was Moi seeking some legitimacy
and sympathy for the Moi dictatorship and kleptocracy? Was he seeking legitimacy as a
sympathetic leader by forgiving Njonjo for treasonable allegations? How did Njonjo use the
tribunal as a legal and political forum?
Critics would argue that this was an abuse of constitutional and legal process. The allegations
were serious–even treasonable. Hence former Attorney General (A-G) Charles Njonjo should
have been subjected to the criminal justice process which would have accorded him some
75
Report of Judicial Commission Appointed to Inquire into Allegations Involving Charles Mugane Njonjo, at
http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-Judicial-Commission-Appointed-to-Inquire-into-
Allegations-Involving.pdf (accessed 14/5/2020).
76
See Weekly Review, December 21, 1984.
77
…. Omondi Onyatta (2020) “Moi’s bittersweet relationship with former AG Charles Njonjo,” Star, Nairobi,
February 7, 2020, at https://www.the-star.co.ke/news/2020-02-07-mois-bittersweet-relationship-with-former-ag-
charles-njonjo/ (accessed April 10, 2021).
78
Cf. GG (Godfrey Gitahi) Kariuki (2001)’s Illusions of Power: Reflections on fifty years in Kenya politics, East
African Publishers.
… GG Kariuki claimed that he did not exercise real power. Was he candid?

Page 21 of 87
protection – for instance, on burden and standards of proof (limited hearsay; no rumours), and
the right of appeal, among others.
Remarkably, Njonjo had manipulated the law and the instruments of office to harass, intimidate
and imprison (perceived) rivals or non-conformists. Thus, Ghai, another Njonjo victim,
concluded after an incisive study on the rule of law, legitimacy and governance in Kenya,
Uganda and Tanzania that: “those who live by the law will die by the law.”79 The “death” may be
professional or political ….80
Because politics is about transient (medium and long term) political and economic interests, and
not so much about personal friendship… 81 Njonjo and Moi reconciled and Moi even appointed
Njonjo the Chairperson of Land Commission of Inquiry into the Land Law System in 1999…..82
Njonjo lived to mark his 100th birthday….83 He also participated in the 50th assassination
anniversary of CMG Argwings Kodhek in January 2019 84 and Thomas Joseph Mboya on July 5,
2019….85
The exercise of presidential power of mercy, clemency or pardon was also debated in the context
of the April 2021 interviews by the Judicial Service Commission (JSC) for Chief Justice. Justice
Mohamed Warsame inquired on whether the President could exercise judicial functions under
Art. 133 (power of mercy)…86 ….

79
See Yash Ghai (1986) “The rule of law, legitimacy and governance” International Journal of Sociology of Law,…
also in Yash Ghai, Robin Lukham and Francis Synder (eds) (1987) Political Economy of Law: A Third World
Reader, Oxford University Press….
80
See also the discussion on Aaron Ringera “radical surgery” in Chapter 10 on the Judiciary….
81
Moi once remarked, addressing Vice President Saitoti and the public that Uongozi na urafiki ni tofauti (leadership
and friendship are different)(BS to review….)….
82
…. Report of the Commission of Inquiry into the Land Law System of Kenya on Principles of a National Land
Policy framework, Constitutional position of Land and new Institutional framework for Land administration, 2002,
at https://searchworks.stanford.edu/view/5492500 (accessed April 10, 2021).
83
….Siago Cece (2020) “Charles Njonjo turns 100,” Daily Nation, Nairobi, June 28, 2020, at
https://nation.africa/kenya/news/charles-njonjo-turns-100-thanks-family-243710 (accessed April 10, 2021).
84
….Standard (2019) “Exclusive: Carole Argwings Kodhek on her father’s death 50 years ago,” Standard, Nairobi,
at https://www.standardmedia.co.ke/amp/politics/article/2001311182/exclusive-carole-argwings-kodhek-on-her-
fathers-death-50-years-ago (accessed April 10, 2021); Levin Opiyo (2019) “How British Govt fought to clip
Argwings-Kodhek’s wings,” Daily Nation, June 28, 2020, at https://www.nation.africa/kenya/news.how-british-
govt-fought-to-clip-argwings-kodhek-s-wings-132106 (accessed April 10, 2021). See Chapter 22 on Lawyers,
Public Interest Lawyering, and Constitutional Democracy in Kenya and Africa; Ben Sihanya (forthcoming 20212)
“CMG Argwings Kodhek and Constitutional Public Interest Lawyering in Kenya and Africa.”
85
….Joe Ombuor (2019) “Tom Mboya’s 50 th anniversary,” Standard, Nairobi, July 5, 2019, at
htttps://www.standardmedia.co.ke/amp/politics/article/2001332635/tom-mboyas-50 th-anniversary (accessed April
10, 2021). The author participated in both Anniversaries of CMG Argwings Kodhek and Tom Mboya… See Ben
Sihanya (due 2021) “Tom Mboya the Architect of Kenya’s Independence Constitution….”….
86
…………. Douglas Kierieni (2021) “Origin of presidential pardon and its abuse,” Business Daily, Nairobi, May
28, 2021, at https://www.businessdailyafrica.com/bd/lifestyle/society/origin-presidential-pardon-and-its-abuse-
3416410 (accessed September 13, 2021).

Page 22 of 87
The practice and law dictates that the President under the Constitution 2010 cannot arbitrarily
pardon anyone. Pardon are prerogative powers under the Power of Mercy Act. Otherwise, the
President is bound by the recommendations of the Power of Mercy Advisory Committee
(POMAC). However, the President exercises discretion as to whether to pardon offenders or not,
absolutely or conditionally….87

Some of the considerations include the age of the offender, length of sentence served, nature of
offence and the public interest, among other factors. Such an offender must petition POMAC,
with a prison or probation report annexed to the formal petition. It was reported that:

“A petition becomes admissible if the offender has served at least a third of the sentence. Those
on life or death sentence must have served at least five years.” 88

Despite this, the political economy around pardons points to political favouritism as opposed to a
process guided by law. This explains why the nature of presidential pardons are often debated
from a political perspective. For instance, despite Donald Trump only granting 143 pardons and
94 commuted sentences, as compared to Barrack Obama who granted 212 pardons against 1715
commutations. Trumps’ exercise of this benevolent was heavily skewed towards his political and
business associates….89
nexus….

10.3.2 Ouko (Gicheru) Commission of Inquiry in Kenya90

The disappearance and death of Dr Robert John Ouko was the subject of a presidential
commission of inquiry in 1990/91. Dr Ouko was then the Minister for Foreign Affairs and
International Cooperation. He had been Minister for Community Affairs in the East African
Community (EAC)91 and subsequently held the same docket in the Jomo Kenyatta
administration, following the collapse of EAC in 1977.92

87

88
Susan Muhindi (2021) “2,509 prisoners appeal for pardon,” Star, Nairobi, March 21, 2021, at https://www.the-
star.co.ke/news/2021-03-21-2509-prisoners-appeal-for-pardon/ (accessed September 13, 2021).
89
Douglas Kierieni (2021) “Origin of presidential pardon and its abuse,” Business Daily, Nairobi, May 28, 2021, at
https://www.businessdailyafrica.com/bd/lifestyle/society/origin-presidential-pardon-and-its-abuse-3416410
(accessed September 13, 2021).
90
See also Africa Center for Open Governance (Africog) (2007) A Study of Commissions of Inquiries in Kenya,
AfriCOG Reports 2007, at https://www.africog.org/reports/Commissionsofinquirypaper.pdf (accessed 6/5/2020);
Wachira Maina (2019.) “Governments by Commissions of Inquiry,” Nairobi Law Monthly…
91
That was EAC 1 under the East African Community (EAC) Treaty, 1967….
92
See also Chapter 1,2, 4 and 6 of CODRALKA 1….See also BBI proposals in Art. 10A, 11A and 18A on regional
integration and cohesion, economy and shared prosperity and responsibilities of a citizen….

Page 23 of 87
In November 1979, Dr Ouko became MP for Kisumu Rural Constituency and was appointed as
Foreign Affairs Minister, to replace the late Dr (Frederick Lawrence) Munyua Waiyaki. 93 Dr
Waiyaki later served in the Ministry of Agriculture …. 94 Dr Ouko subsequently served as
Minister for Labour, after his re-election in 1983,… before being reappointed to the Ministry of
Foreign Affairs (MFA) following the 1988 General Elections. 95 He had nearly lost the Kisumu
Town seat to Mr Joab Omino, a former Permanent Secretary in the 1988 elections. Ouko won
with a slim edge of only 2000 votes.96

Dr Ouko had been an ardent “Moi supporter,” “a Nyayo follower,” and or “Nyayo man,” in the
political and public parlance or lingo of the time. He had been keen on the development of the
Molasses Plant in Kisumu, partly to provide job opportunities for his constituents. He had been
associated with the few Government officials who opposed corruption and shunned primitive
accumulation or acquisition.97

Dr Ouko was one of the very few intellectually curious and sophisticated, articulate, persuasive,
and engaging Moi Government officials. 98 For instance, he persuaded some Kenyans and the
international community to give the Moi administration the benefit of doubt, in his speech in
Oslo which was rebroadcast on Kenya Broadcasting Corporation (KBC) (formerly Voice of
Kenya (VOK)) by public demand.99

Dr Ouko defended the Moi Government on serious accusations and allegations of human rights
abuses, including the, killing in the Maasai Mara of British journalist, Julie Ward in the Maasai
Mara ….100
93
Dr Munyua Waiyaki was also regarded as a reasonably good performer. Hillary Ng’weno’s Weekly Review and
many praised Dr Ouko: “same song, different tune….” Waiyaki had been called the “Kissinger of Africa”…. Cf.
Wikipedia (edited) “Dr Munyua Waiyaki.” See Standard (2017) “Tributes pour in for Munyua Waiyaki,” Standard,
Nairobi, April 26, 2017, at https://www.standardmedia.co.ke/amp/kenya/article/2001237650/kenya-mourns-
munyua-waiyaki (accessed April 10, 2021).
94
….Ibid….
95
In the 1980s, Dr Ouko was popular among university students. Some of the students who were detained then
report that statements written by the police for (not by) them claimed that the students hoped Dr Ouko would
become a better President.
96
….Troon’s Final Report even pointed to the death of Ouko arising from this political rivalry.
97
The Final Report of Detective Superintendent John Troon indicated that Dr Ouko could have also been killed due
to the report on Inquiry into corruption in Kisumu Town Council which involved investigations into claims of
misappropriation of the repossessed houses by the then Kisumu Town Council members…
98
These were demerits in the Moi system: Dr Ouko “knew too much” (“ong’ee mang’eny’) on corruption …. Hence
the “risks of knowledge and the sociology of power” in the Cohen-Atieno Odhiambo theoretical framework….
99
….Standard (2020) “Robert Ouko: Kenya’s most celebrated Foreign Affairs minister,” Standard, Nairobi, October
9, 2020, at https://www.standardmedia.co.ke/amp/moi-cabinets/article/2001389374/robert-ouko-kenyas-most-
celebrated-foreign-affairs-minister (accessed April 10, 2021).
100
…. “How many deaths occurred in New York daily?” Dr Robert Ouko posed. This was problematic because the
US tried to resolve most of the cases, except some of the black lynchings….. in fact, Chief Magistrate Mango had
ruled in the Julie Ward inquest (trial?) that the “animals are innocent….” ….Cf. Grace A. Musila (2015) A Death

Page 24 of 87
On January 27, 1990, Dr Ouko accompanied President Moi, Minister Nicholas Biwott, as part of
about 83 ministers and officials for a prayer breakfast hosted by US President George H.W. Bush
(Bush 1) at the White House, Washington, DC.101

It wais reported that the Bush administration was not happy with the human rights abuses and
corruption in the Moi administration. After all, the Berlin Wall had collapsed and, the Cold War
was ending, hence human rights, democratization, trade (and less aid) and anti-corruption were
now major planks of the principled and idealistic (and not just “pragmatic”) US foreign policy in
Africa.102

President Bush reportedly had a liking for Dr Ouko…., prompting Biwott to mock Ouko:
“Morning, Mr President.”103 Biwott was also not happy about the Kisumu Molasses project as he
and Prof George Saitoti had conspired to switch Government priorities for that project to
different projects in their preferred political constituencies, and also to secure kick-backs.104

Ouko was reportedly ordered by President Moi to find alternative means to return to Kenya. He
then met Moi who ordered him to proceed on leave until he would be recalled. He therefore went
to his Kisumu home.

Dr Ouko “went missing” between Monday, February 12, 1990 and Tuesday, February 13, 1990.
On Tuesday, February 163 1990, the Moi administration announced on public radio that Foreign
Affairs Minister Robert Ouko had gone missing and he or anyone who may have information

Retold in Truth and Rumour: Kenya, Britain and the Julie Ward Murder, James Currey….
101
See same co-authors, same titles, as a book; David W. Cohen & ES Atieno Odhiambo (2006) “The risks of
knowledge: investigations into the death of the Hon. Minister John Robert Ouko in Kenya,” Vol. 40 No.3, Canadian
Journal of African Studies, 559-561.
102
Atieno Odhiambo (2000) “Africa’s place in world dialogue at the beginning of the twenty first century,” in
Godfrey P. Okoth (ed) Africa at the Beginning of the Twenty First Century, NUP, Nairobi. Prof ES Atieno
Odhiambo also credits the changing US and Western Foreign policy on Kenya to struggles led by Jaramogi Oginga
Odinga and his organic reformers, unlike USIU International Relations and History, Prof Macharia Munene who
emphasized the role of (the) US (“nyama choma” Ambassador Smith Hempstone)….
103
….Even the USA Government denied any allegations that Dr Ouko was hosted by President Bush. However,
years later, US Ambassador to Kenya, Smith Hempstone, wrote in his memoir that “About a year after Ouko death, I
received, from my friend Joseph Verner Reed, President Bush’s long-time friend and White House chief of protocol,
a manila envelope containing an undated photograph of a smiling President Bush shaking hands with an equally
happy Ouko at the steps of the White House.” See Kamau Ngotho (2017) “George Bush, Robert Ouko breakfast
meet that infuriated Moi,” Daily Nation, Nairobi, September 11, 2017, at https://businesstoday.co.ke/george-bush-
robert-ouko-breakfast-meet-infuriated-moi/ (accessed September 13, 2021).
104
…. Peter Leftie (2017) “Biwott, Ouko and the Kisumu Molasses plant,” Daily Nation, Nairobi, June 28, 2020, at
https://www.nation.africa/kenya/news/biwott-ouko-and-the-kisumu-molasses-plant-423640 (accessed April 10,
2021).

Page 25 of 87
should report to the nearest police station.105 How could this happen to Aa Government Minister,
? who had With state security? Apparently, on February 12, 1990 he Dr Ouko had been with his
bodyguard Zablon Agalo who was usually armed, from the testimony of Selina Were, a
househelp at Ouko’s homestead. Mr Agalo alleged that on this fateful night he was guarding the
cattle boma and “did not see anything.”

Was the Government not concerned that a Cabinet Minister had disappeared even two days after
the family had appealed to the public for any information on Ouko’s whereabouts? Then on
Friday, February 16, 1990 President Moi announced that Dr Ouko’s charred remains had been
found at Got Alila (Hills), about 3 kilometers from his Kisumu home….106

Public pressure mounted including demonstrations by university students, seeking full disclosure
on the disappearance and (apparent) assassination of Dr Ouko. Then the Moi administration
through Hezekiah Nelson Oyugi Ogango,107 Permanent Secretary (PS) in the Office of the
President (OP) responsible for Internal Security and Provincial Administration, and his
colleagues started saying that Ouko had committed suicide.

As law students, we demonstrated and sung:

“Where is Ouko? Where is the diplomat?

Who killed Ouko? Who killed the diplomat? Res ipsa loquitor108
Why kill Ouko? Why kill the diplomat?
No suicide
Why kill the diplomat?
We must speculate….”109

105
….Webmaster (2013) “Dr Robert Ouko is missing,” September 10, 2013, at http://www.kenyaunsolved.com/?
page_id=5048 (accessed April 10, 2021).
106
….John Oywa & Kepher Otieno (2018) “Ouko murder mystery: Where almost all major witnesses and suspects
in the probe have died,” Standard, Nairobi, at
https://www.standardmedia.co.ke/entertainment/local-news/2001252263/ouko-murder-mystery-where-almost-all-
major-witnesses-and-suspects-in-the-probe-have-died (accessed April 10, 2021).
107
He was also referred to as the “Governor,” “Kalam maduong,’” the big pen. He had been a powerful Rift Valley
Provincial Commissioner…. Rumour has it that Provincial Commissioners (PCs) and District Commissioners (DCs)
…stood at attention as they spoke to him on the analogue (video-less) phones of the day….
108
Res ipsa loquitor is a tort law doctrine meaning facts speak for themselves. Latin partly to protect our bones from
being broken by the trigger, baton and teargas-happy police, although the students didn’t seem to fear these either.
Or did we want to demonstrate our learning, and that we were learned street demonstrators?
109
“We must speculate” was also a response to Moi, Biwott, and Oyugi Ogango… who had asked the public not to
speculate….As students, we had other confrontations with police who prevented some of us from reaching Kisumu
where the residents and university students had …battle. Most of us then succeeded in attending the burial in Koru
the following day.

Page 26 of 87
Even after the burial of Dr Ouko, which President Moi attended, 110 the pressure continued to
mount for full disclosure and taking of responsibility.111

Then the Government took at least five (5) measures. First, denial of involvement in Ouko’s
disappearance and death. Second, the suicide theory.112 Third, blaming Ouko’s “rivals,” who
included a brother,113 and an alleged cuckold (love triangle?).114 Fourth, mobilizing political
opinion, and particular, Luo politicians and the then Vice President George Saitoti to exculpate
the Moi Government….115 Fifth, establishing investigating agencies from the police, Scotland
Yard, and establishing a Commission of Inquiry.116
The British Scotland Yard was called in because of the people’s lack of confidence in the Kenya
Police investigations. It was led by Detective Superintendent John Troon, Dr Ian West, a forensic
pathologist,117 and three (3) other Police Constables of International Organized Crimes. 118
Troon’s team was frustrated and intimidated by Nicholas Biwott, Hezekiah Oyugi, John Anguka

110
Some regarded Moi’s participation in the burial as bold and or arrogant, cynical…. See….Caleb Atemi (2020)
“Ouko burial: How Moi's surprise attendance went south,” Daily Nation, Nairobi, September 7, 2020, at
https://nation.africa/kenya/news/ouko-burial-how-moi-s-surprise-attendance-went-south-248090?view=htmlamp
(accessed September 13, 2021).
111
….See Crispin Odhiambo Mbai (2003) “The Rise and Fall of The Autocratic State in Kenya,” in Walter O.
Oyugi, Peter Wanyande and Crispin Odhiambo-Mbai (2003) (eds) Politics of Transition, Heinrich Boll Foundation.
112
Suicide is a favourite excuse whenever the Government cannot explain the death of a politically significant
person. Others are love triangle….,, are placing Viagra near the body. These are to embarrass the family so that they
do not seek justice for the assassinated….
113
The Moi administration brazenly claimed that Robert Ouko’s brother, Eston Barak Mbajah had the motive, means
and opportunity to kidnap, kill, and dispose of the body of Dr Ouko….and then engage in the massive cover up
including post assassination “clean up” of killing any possible witnesses…. Does it help that since 1964, Moi had
been an insider or stakeholder and part of the Ormatis personae in terms of direct and indirect beneficiaries of
assassinations as a tool for retaining power to an extent that by 1975, he could boldly say that JM was in Zambia
while JM was dead in Kenya?
114
The then Nakuru DC John Anguka was the main focus…. See a nuanced discussion on “politicians and their
women” in Atieno Odhiambo, op. cit. Whatever his indications or his offence, Anguka (alone), like Mbajah, could
not kill Dr Ouko and cover up as indicated under Mbajah above….
115
….The Parliamentary Committee (Gor Sunuguh Commission) recommended the investigation of George Saitoti
together with Nicholas Biwott and the then State House Comptroller, Ibrahim Kiptanui over the death of Dr Ouko.
116
In the Kibaki Administration, Gor Sunguh, then MP for Kisumu East chaired a Parliamentary Select Committee
investigating circumstances leading to the death of the late Dr. Robert Ouko…..and in 2010, the matter rose again….
See John Oywa & Kepher Otieno (2017) “Ouko murder mystery: Where almost all major witnesses and suspects in
the probe have died,” Standard, Nairobi, at
https://www.standardmedia.co.ke/entertainment/adblock?u=https://www.standardmedia.co.ke/entertainment/local-
news/2001252263/ouko-murder-mystery-where-almost-all-major-witnesses-and-suspects-in-the-probe-have-died
(accessed December 9, 2020).
117
He wrote a book, Dr Ian West’s Diary which was the subject of litigation in Biwott (and earlier Moi) v. Dr Ian
West, Book Point (KES 30 million awarded by Justice (now Rtd) Alnashir Visram?)…. To IFLAC. Akiwumi v. Dr
Ian West…
118
….Martin Minns (2020) “Moi era: Robert Ouko's murderers are still alive,” Star, Nairobi, March 5, 2020, at
https://www.the-star.co.ke/news/2020-03-05-moi-era-robert-oukos-murderers-are-still-alive/ (accessed April 10,
2021).

Page 27 of 87
and the entire Moi administration generally.119 Troon reported having been poisoned while eating
fish.120 Their report was kept under lock….121

Pressure on Ouko continued to mount, even as pressure picked up on the re-introduction of

multi-party democracy, following trends in former communist single party Soviet satellites in
Eastern Europe.122

Moi relented and in October 1990, he established a Commission of Inquiry. The terms of
reference (ToRs) were generally to enquire into the circumstances leading to the disappearance
and death of Dr Robert Ouko. The terms of reference were at least two (2):

“(a) to inquire into the circumstances surrounding and leading to the disappearance and
subsequent death of Dr. Robert Ouko;
(a) to inquire generally or in particular into any other
matter pertaining to the above; and in accordance with the provisions of section 7 (1) of
the said Act, to report thereon.”123….

The Commission was chaired by the then Court of Appeal Justice Evan Johnson Gicheru, 124 with
members being Justice (later Rtd) Richard Otieno Kwach (Court of Appeal), and Justice
Augustus Akilano Molade Akiwumi (High Court of Kenya from Ghana). 125 Counsel assisting
were Bernard Chunga who was the then Deputy Public Prosecutor (DPP) and ….

The Joint Secretaries were Dan Ameyo and Ezekiel Omwombo Abang’…. Mr Moses Wetangula
represented Dr Ouko’s wife, Mrs Christabel Ouko and family. Dr Oki Ooko Ombaka and
Mohamed Nyaoga represented Ouko’s Ominde clan.126
119
….Dennis Onsarigo (2016) “I was poisoned as I ate fish in Kisumu - Scotland Yard detective John Troon,”
Standard, Nairobi, at https://www.standardmedia.co.ke/entertainment/city-news/2000192227/i-was-poisoned-as-i-
ate-fish-in-kisumu-scotland-yard-detective-john-troon (accessed April 10, 2021).
120
….Ibid….
121
Mwangi Githahu (2004) “Queries persist on who killed Ouko,” Daily Nation, February 14, 2004, at
https://allafrica.com/stories/200402160297.html (accessed April 25, 2022).
122
…. See also Canada: Immigration and Refugee Board of Canada (1992) “Restoration of Multiparty Government
and Kenyans of Somali Origin,” March 1 1992, at https://www.refworld.org/docid/3ae6a80a28.html (accessed April
10 April 2021).
123
Cf. Eliud Kibii (2018) “Commissions or omissions of inquiry? Why Kenya has failed to address historical and
other injustices,” The Elephant, Nairobi, April 5, 2018, at
https://www.theelephant.info/features/2018/04/05/commissions-or-omissions-of-inquiry-why-kenya-has-failed-to-
address-historical-and-other-injustices/ (accessed 6/5/2020).
124
He served as the Chief Justice under President Kibaki.
125
….Republic of Kenya (1990) “Kenya Government Gazette dated October 2, 1990, Number 42,” at
https://gazettes.africa/gazettes/ke-government-gazette-dated-1990-10-02-no-42 (accessed April 10, 2021).
126
…. David W. Cohen & ES Atieno Odhiambo (2004) The Risks of Knowledge: Investigations into the death of the
Hon. Minister John Robert Ouko in Kenya, 1990, Ohio University Press. See also Chapter 22 on Lawyers, Public

Page 28 of 87
Chunga argued a preliminary objection that the clan had no locus standi. As Dr Oki Ooko
Ombaka’s research assistants at the Public Law Institute (PLI), we found Australian (and British)
authorities to the effect that a Commission of Inquiry is (always) more open and intended to
secure as much information as possible. Hence it doesn’t have strict rules of locus standi
associated with criminal cases….127

The Commission proceeded with its work amidst harassment and intimidation, including the
bugging of the rooms of the Commissioners and non-Government lawyers.128

Chief Government Pathologist Dr Jason Kaviti testified that Ouko had committed suicide. 129
Then Biwott, Anguka and Oyugi were arrested and allegedly remanded. 130 Biwott was the spoilt-
brat-turned-rogue bully in the league of Moses (Bashir) Bwogo and Mulili in Ruganda’s and
Imbuga’s poetic drama, respectively.131 Then Oyugi sought legal assistance132 and indicated that
he would be proceeding to the Kisumu Ouko Inquiry to clear his name.

Moi revoked or disbanded the Commission on 3/1/1991 under section 4(1) of the Commission of
Inquiry Act133 claiming that it was engaged in “hearsay” and “rumours”?. The admission of
hearsay evidence eventually damaged its credibility…

Part of the questions raised around witness testimony were three-pronged. First, several key
witnesses were absent from the inquiry. These included Barrack Mbajah, Ouko’s brother, ,who
later fled to the United States (USA) before testifying. Second, the evidence of James Onyango
K’Oyoo changed dramatically over the course of the investigations, driving investigators in a

Interest Lawyering, and Constitutional Democracy in Kenya and Africa…

127
Remarkably, in the SM Otieno case the court …Umira Kager clan had played a major role in the litigation on the
side of SM Otieno’s brother Joash Ochieng’ Ougo and cousin Omollo Siranga…. Increasingly, under the 2010
Constitution and the Victim Protection Act, locus standi and remedies have been expanded under Arts 22, 23, …. In
criminal matters. In civil matters, interested parties and amicus curiae are also heard….
128
Cf. Eliud Kibii (2018) “Commissions or omissions of inquiry? Why Kenya has failed to address historical and
other injustices,” The Elephant, Nairobi, April 5, 2018, at
https://www.theelephant.info/features/2018/04/05/commissions-or-omissions-of-inquiry-why-kenya-has-failed-to-
address-historical-and-other-injustices/ (accessed 6/5/2020). Wachira Maina (2019) “Presentation on State capture
report launch,” Youtube, at https://www.youtube.com/watch?v=o-A9hwPaRLA (accessed 14/5/2020).
129
Justice Kwach retorted: “You are lucky you are consulted by dead clients.”….
130
Biwott was allegedly in a hotel and even later boasted that only the fring had gone. That he was still a powerful
total man…..
131
John Ruganda (1980) The Floods: A Play, East African Publishing House, Nairobi. (Moses or Bashir) Bwogo,
boss of the “State Research Bureau (SRB)” (who kills on a whim and profiteers at will…); Francis Davis Imbuga
(1987) Betrayal in the City, East African Publishing House, Nairobi. (Mulili Boss’s cousin; soldier turned farmer…
and similar character in the Kafira triology….
132
….cf. Makau wa Mutua (1992) “A Break with the Past?” 37(1)  Africa Report, 21.
133
See Gazette Notice No. 5840 of 3/1/1991…. discussed in R. v. John Anguka [1992] eKLR (Abdullah, J)….

Page 29 of 87
spin. His evidence was also “too detailed.” Third, Marriane Briner Mattern and Domenico
Airaghi, who came up with the Kisumu Molasses theory fled the country, hence did not
testify134….

Yet Commissions of Inquiry have more flexible evidentiary rules and may even admit hearsay
evidence which may not be relied on to decide or may have limited weight. And yet Moi ordered
that the Commission submit its report. They did not submit the Report. 135 They did not submit
the Report.

Oyugi later fell ill and President Moi denied him permission to seek treatment in the United
Kingdom (on time). He subsequently died. Neither Moi nor his power men nor women attended
the burial of the man who had his Mr Fix-it, and who he had visited at home….

Former Nakuru District Commissioner (DC)136 Jonah Anguka was then tried in 1992 allegedly
for murdering Ouko. The motive was the allegation that Ouko had an interest in Anguka’s wife
who had been Ouko’s Secretary. 137 Justice Fidahussein Abdullah died just before delivering the
judgement.138 It was thus declared a mistrial, then later a retrial was convened before High Court
Justice Daniel A. Aganyanya …. Jonah Anguka was later acquitted with Justice Aganyanya
finding and ruling that there was lack of evidence to implicate him in the murder of Ouko, hence
handing a “not guilty” verdict on July 29, 1994 139 …

Despite the overwhelming discrepancies in Jonah Anguka’s testimony and on his alibi, Justice
Aganyanya admitted Anguka’s alibi that on the fateful day around 12.30 am, he was being
massaged by his cousin Otieno Odotte.140...

134
Martin Minns (2020) “What did Jonah Anguka know about the killing of Ouko?” Star, Nairobi, February 22,
2020, at https://www.the-star.co.ke/news/2020-02-22-what-did-jonah-anguka-know-about-the-killing-of-ouko/
(accessed September 13, 2021).
135
….Eliud Kibii (2018) “Commissions or Omissions of Inquiry? Why Kenya has failed to address Historical and
Other Injustices,” 5, The Elephant, 5.
136
District Commissioner (DC) was renamed County Commissioner under Kibaki and Kenyatta II.
137
David W. Cohen & ES Atieno Odhiambo (2006) “The Risks of Knowledge: Investigations into the Death of the
Hon. Minister John Robert Ouko in Kenya,” Vol. 40 No. 3, Canadian Journal of African Studies, 559-561.
138
R. v. John Orao Anguka [1992] eKLR, HCC No. 41 of 1992 (Ruling per F.E. Abdullah) (holding that Mr
Chunga’s participation as a counsel assisting the Ouko Commission and as a prosecution counsel was “not
tantamount to not affording a fair hearing to the accused”….
139
See Nyambega Gisesa (2020) “Ailing Jonah Anguka stranded: Ouko ghost returns to haunt former DC,” Daily
Nation, Nairobi, November 12, 2020, at https://nation.africa/kenya/news/ailing-jonah-anguka-stranded-ouko-ghost-
returns-to-haunt-former-dc-3019428?view=htmlamp (accessed April 10, 2021).
140
Martin Minns (2020) “What did Jonah Anguka know about the killing of Ouko?” Star, Nairobi, February 22,
2020, at https://www.the-star.co.ke/news/2020-02-22-what-did-jonah-anguka-know-about-the-killing-of-ouko/
(accessed September 13, 2021).

Page 30 of 87
Then later, Jonah Anguka went on exile to the United States and published an elaborate
exculpatory but not necessarily candid 141 or objective book, Absolute Power: The Ouko Murder
Mystery.142 Anguka instead pointed fingers at President Moi, Nicholas Biwott and Oyugi.

David Cohen and ES Atieno Odhiambo in their book The Risks of Knowledge: Investigations
into the death of the Hon. Minister John Robert Ouko in Kenya, 1990, dismissed Anguka by
stating that he was “here, there and everywhere from virtually the first hours of Ouko’s
disappearance.” Further, that the authors posed the question:

“But what did Jonah Anguka know, and what did he hide?”143

This is significant in discussing the unusual disappearance and killing of several witnesses
during and after the Ouko inquiry. Many more people who knew or were deemed to know
anything to do with Ouko’s movement during this period died including herds-boy, Paul
Shikuku, who discovered Ouko’s body, and the then Police Commissioner Philip Kilonzo….144

Barak Mbaja, Ouko’s brother and former official in the A-G’s Chambers also went on exile and
swore an affidavit…. Had they had sibling rivalry with Ouko?145

What was the meaning and significance of the inconclusive Gicheru Commission? How did
Gicheru and the Commissioners perform? Despite the final report not being made available to
the public, the interrogations of witnesses by the Gicheruu Commission, including the later Dr
Chief Government Pathologist Jason Kaviti showed the extent to which the State could go into
hiding the truth. Dr Kaviti claimed that “I formed the opinion that he (the minister) had shot
himself.”146 These served the general regime’s plans of ensuring political expediency….
141
Anguka claimed that Ouko was a very close family friend….(as a way of emphasizing he had no motive to
participate in Ouko’s murder…. David W. Cohen & ES Atieno Odhiambo (2006), op. cit., have remarked on
important silences in Anguka’s book, including Anguka’s distance from the Ouko family during the Ouko
“disappearance” phase (Tuesday, 13/2/1990 to Friday, 16/2/1990)….and relationship with Oyugi….
142
John Anguka (1998) Absolute Power: The Ouko Murder Mystery, Pen Press, Brighton, UK.
143
David William Cohen & ES Atieno Odhiambo (2004) The risks of knowledge: Investigations into the death of the
Hon. Minister John Robert Ouko in Kenya, 1990. Ohio University Press.
144
The media have repeatedly named those killed following the Ouko assassination…. In 2020, Jonah Anguka was
in the news having been denied clearance by the DCI (?) because the murder case against him was still open…. The
file could not be traced…. But the Judge Aganyanya had declared him “not guilty.” See Nyambega Gisesa (2020)
“How the courts cleared Jonah Anguka on Robert Ouko murder,” Daily Nation, Nairobi, November 12, 2020, at
https://nation.africa/kenya/news/how-the-courts-cleared-jonah-anguka-on-robert-ouko-murder-3019430 (accessed
December 9, 2020).
145
…Star (2020) “Mbaja, late Robert Ouko brother, dies at 79,” Star, August 21, 2020, .at https://www.the-
star.co.ke/news/2020-08-20-mbaja-late-robert-ouko-brother-dies-at-79/ (accessed April 10, 2021).
146
Daily Nation (2020) “Kaviti takes State secrets to the grave,” Daily Nation, Nairobi, September 7, 2020, at
https://nation.africa/kenya/news/kaviti-takes-state-secrets-to-the-grave-790042?view=htmlamp (accessed September
13, 2021).

Page 31 of 87
What is the contribution of the Ouko inquiry to the legal method, jurisprudence, and
constitutional and legal sociology of commissions of inquiry and public inquiry in Kenya and
Africa? There are at least two (2) critical contributions. First, the testimonies in the Gicheru
Commission contributed to enhanced debate on the need for transparency and accountability in
Government actions. These were critical in the civil society and clamour for multiparty
democracy in Kenya in the 1990s.

Second, the secrecy with which the Government kept the Ouko Commission’s report, and the
blatant interference in the operations of the Commission, helped in the shaping of Chapter 15
commissions under the Constitution 2010. The 2010 Constitution fashioned independent and
impartial commissions, which exercise sovereign power, subject to proper checks and balances,
as opposed to working at the whims of the President.

A major lesson that some politicians and Moi supporters spoke about was Moi’s murderous,
despotic, tribal and kleptocratic brutality: if he and his administration could kill one of his key
supporters and defenders, who was safe? Later Moi and Prof Saitoti alleged that the people who
had killed Ouko had poisoned the Vice President, Prof George Saitoti….147

In December 1991, then Health Minister, Mwai Kibaki, Vice President during 1978-88, claimed
that he was resigning from Cabinet and KANU because of the Ouko assassination (about two
years late?). Why had he been so quite? Cynical opportunism? Cashing in on a cruel
assassination? These were some of the arguments raised by FORD leaders in opposing Kibaki’s
calls for reforms including majimboism.148

What are the related outcomes and consequences of the Ouko assassinations and Commission of
Inquiry? Why did Justice Akilano Malade Akiwumi sue Andrew Morton the British biographer
of President Moi? Akilano Akiwumi sued Andrew Morton for libel following Morton’s assertion
that Hezekiah Oyugi doctored the Commission’s report to direct the Commission to find
Nicholas Biwott culpable in the murder of Dr Ouko. He sued Morton in his capacity as one of
the commissioners in the Ouko Inquiry.149 Justice PJ Ransley awarded Justice Akiwumi
compensation and exemplary damages amounting to KES 3 million for his “ hurt feelings and
vindicate his character to the world.”150
147
George Saitoti spoke in Parliament…. Who were they? Anguka? Sorry- or the “suicidal Ouko”? Ddid he poison
Saitoti after he himself had committed suicide? Why tell the public so late?
148
Tony Mochama (2021) “Political Parties after Political Parties,” February 9, 2021, Konrad-Adenauer-Stiftung, at
https://www.kas.de/documents/286528/286577/Party+After+Party.pdf/c9b04fc1-34f8-93cb-55da-176245590a39?
version=1.0&t=1613983455681 (accessed September 13, 2021).
149
See Akilano Malade Akiwumi v. Andrew Morton & Another [2005] eKLR HC Civil Case No. 1717 of 1999….
150
Ibid.

Page 32 of 87
Why did lawyer George Oraro, an Ouko family lawyer, sue the Nation newspaper? George Oraro
argued that the affidavit sworn by Barak Eston Mbaja, in Washington DC that he, together with
three (3) other people, were responsible for the disappearance and murder of Dr Ouko, was
defamatory. The affidavit alleged that Oraro was aware of the circumstances that led to the
circumstances that led to the death of Ouko, and failed to disclose the same in the public
interest.151

What damages were awarded? The court ordered the Daily Nation to pay George Oraro KES 1.5
million as damages for libel. Any other consequences of Ouko assassination and commission?.....

10.3.3 Hancox (Insurance) Commission of Inquiry in Kenya152

Kenya had experienced a lot of road and industrial accidents as it still does. And most of the
victims could not be compensated because of at least three (3) reasons. First, most of the motor
vehicles or occupiers of the premises are underinsured or illiquid. 153 Second, most of the victims
are not insured.154 Third, in some cases, there is contributory negligence….155

What were the terms of reference? The Commission was tasked with investigating the insurance
industry.156
What were the findings? .... The Insurance (Hancox) Commission of Inquiry was also not
released to the public– shelved. Was this another waste of tax payers’ money and time? Dr Oki
Ooko-Ombaka of Public Law Institute (PLI) participated in the public interest.157
There were claims that strong recommendations had been made for a “no fault compensation”
framework…. These issues are still unresolved, even in the context of the implementation of the
Work Injury Benefits Act No. 13 of 2007.158
151
See George Oraro v. Wangethi Mwangi & Nation Newspapers Ltd, Nairobi Civil Case No 1205 of 1993.
152
Pravin Bowry (2010) “An inquiry into Commissions of Inquiry,” Standard Digital, January 13, 2010, at
https://www.standardmedia.co.ke/article/2000000823/an-inquiry-into-commissions-of-inquiry (accessed 6/5/2020).
153
….See the Report of the Commission Inquiring into the Insurance Industry. It was not released to the public.
154
….Ibid.
155
…. Joy Muthoni Muroki (2017) A Critique on Kenya’s traffic legislation and its deterrence from traffic offences,
Doctoral dissertation, Strathmore University.
156
…Eliud Kibii (2018) “Commissions or Omissions of Inquiry? Why Kenya has failed to address historical and
other injustices,” Elephant, April 5, 2018, at https://www.theelephant.info/features/2018/04/05/commissions-or-
omissions-of-inquiry-why-kenya-has-failed-to-address-historical-and-other-injustices/ (accessed April 18, 2021).
157
… See a highlight of the Hancox (Insurance) Commission of Inquiry Report at Africa Centre for Open
Governance (AfriCOG) (2007) “A study of Commissions of Inquiries in Kenya,” at
http://www.africog.org/reports/Commissionsofinquirypaper.pdf (accessed December 9, 2020).
158
See the litigation under the Work Benefit Injuries Act (WIBA) including Kenya Plantation & Agricultural
Workers’ Union v. Kenya Export Floriculture, Horticulture And Allied Workers’ Union (Kefhau); Represented by
Its Promoters; David Benedict Omulama & 9 Others [2019] eKLR, Petition No. 4 of 2018; Constitutional Petition

Page 33 of 87
10.3.4 Davy Koech Commission of Inquiry 1998
The Davy Koech Commission of Inquiry on Totally Integrated Quality Education and Training
(TIQET) (1998/9) was to review the education and training law and policy. 159 The report was
very good generally, including on education law even though it was political on the (8-4-4)
education structure…. It glossed over the question of the (8-4-4) structure arguing that content
was more problematic….?160
Most of it has not yet been implemented. This includes the recommendation on post-secondary
educational or training opportunities before university. However, some aspects of the totally
integrated quality education (TIQE) as proposed by the Davy Koech Commission can be
attributed to the reform and implementation of the competency based curriculum (CBC) under
the Kenyatta II Government.
Does this point to another … waste of tax payer’s money? Or does its value – like others - lie in
the fact that the public are more aware or better educated on the issues? E even if the report(s) it
is not (fully) implemented ? (like the Goldenberg Report and others – which held public
hearings)?.
10.3.5 Akiwumi Commission of Inquiry in Tribal Clashes 1998
What was the context of the Akiwumi Commission of inquiry into tribal clashes? There had been
Government sponsored tribal clashes in Kenya which threatened the stability, security and
political economy of Kenya. The Commission was thus established vide Gazette Notice No.
3312 of July 1, 1998.

The terms of reference (ToRs) of the Commission were five (5). First, to investigate the tribal
clashes that have occurred in various parts of Kenya since 1991, with view of establishing and
/or determining the causes(s)….?. Second, to establish the origin, the probable, the immediate
and the underlying causes of such clashes.161

Third, to establish action taken by the police and other law enforcement agencies with respect to
any incidents of crime arising out of or committed in the course of the said tribal clashes and
where such action was inadequate or insufficient, the reasons therefor. Fourth, the level of
No. 196 of 2018….
159
Cf. Ominde Commission (1964) ….; Gachathi Commission (1976)….; Chairperson Kamunge and Vice
Chairperson Sihanya (“Kamunge II”) (2007) Task Force on Education, Training and Research in Kenya….;
Douglas Odhiambo Aligning Education to the Constitution (Ben Sihanya was a member and Chair of the Drafting
Committee)…; Competency Based Curriculum (CBC) (2018-2020)….
160
….Paul Korir (2016) A Critique of Approaches to Educational Reform in Kenya with Special Reference to
Richard Paul’s Theory of Knowledge, Learning and Literacy. Unpublished Master of Education in Philosophy of
Education Thesis, Kenyatta University, at http://ir-library. ku. ac. ke/bitstream/handle/123456789/10920/A%
20critique% 20of% 20approaches% 20to% 20educational% 20reform. Pdf (accessed September 13, 2021).
161
….Ibid.

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preparedness and the effectiveness of law enforcement agencies in controlling the said tribal
clashes and in preventing the occurrence of such tribal clashes in future.162

Fifth, the commission was to make recommendations on the following three (3) issues: First,
prosecution or further criminal investigations against any persons or persons who may have
committed offences related to such tribal clashes. Second, make proposals on means and
measures that must be taken to prevent, control, or eradicate such clashes in future. And third, to
inquire into or investigate any other matter that is incidental to or connected with the foregoing

The members of the Commission were Mr Nyagah Gacivih and Ms Dorcas Oduor, both State
Counsel in the office of the Attorney General (A-G), and who initially served as the counsel
assisting. Later on, Mr Gacivih was removed and replaced by Mr Bernard Chunga, who was
then Director of Public Prosecutions (DPP) in the office of the Attorney General. 163 The Law
Society of Kenya (LSK) opposed Mr Chunga’s appointment, arguing that Chunga would
compromise the Commission of Inquiry’s work.164

What were the findings?165 The Akiwumi Commission presented its report to President Moi oin
July 31, 1999. The report indicated that some politicians, leaders, national security officials and
local leaders were to be investigated over their alleged roles in the 1991-1994 tribal clashes that
had caused the death of more than 800 Kenyans and displacement of about 135 000. Others
claimed that more than 300, 000 individuals were displaced as a result of the 1992 clashes in the
context of the clamour for multiparty politics. The report also claimed that police officers and
provincial administration were responsible for failing to prevent violence.166

What were the Cconclusions and recommendations….? What is the status of its
Iimplementations? The Report even implicated the Attorney-General, Amos Wako, and proposed
for his prosecution, among other political leaders also. This would only suffice where adequate
evidence was available.

The then Attorney-General Amos Wako in critiquing the Akiwumi Commission Report
remarked that:
162
….Ibid.
163
….Kenya Law Reports (2019) “Report of the Judicial Commission Appointed to inquire into Tribal clashes in
Kenya, 1998,” March 14, 2019, at
http://kenyalaw.org/kl/fileadmin/CommissionReports/ReportoftheJudicialCommissionAppointedtoInquireintoTribal
ClashesinKenya.pdf (accessed April 12, 2021).
164
See the Law Society of Kenya (LSK) (1998) Impunity: Report of the Law Society of Kenya on the Judicial
Commission of Inquiry into Ethnic Clashes in Kenya (unpublished)….
165
See Republic of Kenya (1999) Report of the Commission of Inquiry into Tribal Clashes, Government Printers,
Nairobi. See also Chapters 1, 3, 4, 5 on resources, power and tribalism….
166
Ibid…..

Page 35 of 87
 “The government is of the view that the report was not objective in its analysis of the evidence
before it.”167

What were the outcomes? Some of the leaders who were allegedly to be investigated for having a
role in the Rift Valley Province clashes included Cabinet Minister of Trade and Industry
Nicholas Biwott and Julius Sunkuli. What were some of the Aafter effects?168 For instance,
Biwott sued the Attorney-General in trying to exculpate himself from the adverse findings of the
Akiwumi Reporing?169….

The Report therefore proposed the delinking of the Police Force from the provincial
administration. It recommended that the police force be made an independent unit for efficiency,
organization, and accountability.

Similarly, the Akiwumi Report was not published or availed to the public from July 1, 1999,
until October 2002 when an order was granted by the High Court in Roshanali Pradhan v.
Attorney General and Others, which ordered the Government to avail the Akiwumi
Commisson’s Report to the public. In this case, the Plaintiff instituted a petition against the
Government for negligence and breach of statutory duty for failing to implement the reports of
Commissions of Inquiry, including the Akiwumi Commission Report on tribal clashes. The High
Court found the state culpable.170

Despite such an order, the Attorney-General also published an alternative report entitled
Comments by the Government on Report of the Judicial Commission to Inquire into the Tribal
Clashes in Kenya (Akiwumi Report) which was argued as an attempt to water down the contents
of the Akiwumi Report.

Actually, during the inquest into Father John Anthony Kaiser’s death, it was argued that some
names were redacted from the Akiwumi Report. Justice Maureen Adero observed in her ruling
that:

“In 1999 Fr. Kaiser had given his testimony before the Akiwumi Commission at which he blamed
certain very senior and influential personalities for fuelling the clashes. It is a matter of public

167
Relief Web (2012) “Clashes commission urges IDP returns,” October 24, 2002, at
https://reliefweb.int/report/kenya/kenya-clashes-commission-urges-idp-returns (accessed April 12, 2021).
168
Cf. CIPEV; TJRC…. Reports….
169
Biwott Kiprono v. Judicial Commission of Inquiry in tribal Clashes [2003] eKLR, HC Misc. App. No. 1269 of
2002 (Ruling; Rawal, J., who else?) She quashed the Commission’s recommendations that Biwott be “investigated
regarding his role in the tribal clashes that occurred in Kericho District…”….
170
Roshanali Pradhan v. Attorney General and Others Miscellaneous Civil Application No. 65 of 2002.

Page 36 of 87
 knowledge and is well documented that when Fr. Kaiser named the then President Moi before
that Commission, this reference was expunged from the record.” 171

What then was the utility of commissions of inquiry where the truth would not be published to
Kenyans in the “public interest.” The “public interest” angle was also critical in the formation of
the Devil Worship Commission of Inquiry.

10.3…..(?) Presidential Commission of Inquiry into the Cult of Devil Worship in Kenya,
1994
What of the Presidential Commission of Inquiry into the Cult of Devil Worship in Kenya….?
The Devil Worship Commission was established against a backdrop of intense public pressure,
and increased student protests and destruction of property in the 1990s to 2000s.172 This was also
evaluated in the context of the introduction of the 8-4-4 system of education in 1985, which
faced significant opposition.

Some institutions including the Anglican Church attributed these student protests to devil
worship in learning institutions. The Minister of Education also ordered the expulsion of all devil
worshipping students in secondary schools. Thus, President Moi established the Devil Worship
Commission on October 20, 1994, composed of ten (10) members. There was no counsel
assisting.

However, just like other commissions of inquiry, the report of this commission was not availed
to the public. President Moi argued that the report contained information, “sensitive” in nature.
Relatedly, the report made at least three (3) recommendations. First, to curb drug abuse. Second,
creating of employment opportunities. Third, censorship of some content viewed in cinemas.
These proposals were actually, already part of the then existing Government policy.

Some authors thus deemed it a waste of time.173 The formation of this Commission was also
made difficult by the fact that its mandate was largely a subjective matter, wherein even the
collection of evidence would be problematic, as compared to objective questions like graft in the
Goldenberg Inquiry. What was it about? To adopt a typology or parameters similar to those
applied under TJRC and other commissions of inquiry….

171
Kenya Human Rights Commission (KHRC 2011) “Lest we Forget: Faces of Impunity in Kenya,” at
https://www.khrc.or.ke/publications/30-lest-we-forget-the-faces-of-impunity-in-kenya/file.html (accessed
September 13, 2021).
172
…. Francis Malenya Likoye (2016) “Students, violent protests and the process of self-realization in Kenyan
secondary schools,” 18(2), Journal of international Cooperation in Education, 67-82.
173
Africa’s Centre for Open Governance (AfriCOG) (2008) “Commissions of Inquiry in Kenya: Seekers of Truth or
Safety Valves?”

Page 37 of 87
10.3.6 Bosire (Goldenberg) Commission of Inquiry in Kenya174
The Goldenberg Commission of Inquiry was established on February 24, 2003. This was
following the primitive accumulation, neo-patrimonialism, and the rush by political leaders
towards raising a campaign war chest and increased corruption in the context of the post 1992
multiparty elections.
The terms of reference of the Commission were to:
“Inquire into allegations of irregular payments of export compensation to Goldenberg
International Limited, popularly known as the ‘Goldenberg Affair’, and into payments made by
the Central Bank of Kenya to the Exchange Bank Limited in respect of fictitious foreign
exchange claims ….”175
As elections approached, President Moi’s dictatorship through the single party (KANU) was
threatened. Kamlesh Pattni176 teamed up with Government officials in the Treasury (like the then
Finance Minister George Saitoti (“Bwana [or Mr] Goldenberg”), Permanent Secretary Wilfred
Karuga Koinange, Central Bank Governor Eric Kotut….) and intelligence officials (James
Kanyotu who claimed to be a farmer….).177
The plan was to make money by pretending to export gold and thereby allegedly earn Kenya
foreign exchange, and seeking export compensation under the Export Compensation Act.178
At least KES 100 billion was fraudulently looted which some alleged to have been used in
funding the campaigns during the 1992 General elections…. With more than $76 million
released by Permanent Secretary (PS) Koinange to Goldenberg International, on alleged-verbal
instructions from President Moi. While testifying to the Commission, Koinange said that:
“I telephoned the president and told him I have been informed by Prof Mbithi that I should pay
out all the amount outstanding to Goldenberg International and the president said yes, I have
spoken to Prof Mbithi.”179

174
Cf. K.J. Macharia (2018) Towards Effective Commissions of Inquiry in Kenya, University of Nairobi, LLM
Thesis.
175
See the Gazette Notice No. 1237 of February 24, 2003.
176
He rechristened himself Paul Pattni, Brother Paul…. Could Saul become Paul (that fast and easily)? He had the
impunity to run for Westlands MP in 2013… and lost to Tim Wanyonyi who won 42, 558 against Patni’s… votes.
177
Kanyotu was allegedly a Director in Goldenberg…. to promote his and Moi’s interests.
178
…. The Goldenberg cost Kenya about 10% of its GDP (KES 158 Billion….; USD 2.8 Billion….). See Isaac Otidi
Amuke (2020) “Revisiting the Goldenberg Ghosts,” The Elephant, February 20, 2020, at
https://www.theelephant.info/features/2020/02/20/revisiting-the-goldenberg-ghosts/ (accessed April 12, 2021).
179
BBC News (2004) “Moi ‘ordered’ Goldenberg payment,” BBC, February 17, 2004, at
http://news.bbc.co.uk/2/hi/africa/3495689.stm (accessed September 13, 2021)

Page 38 of 87
When pressure mounted locally, and from development partners, President Moi allowed criminal
prosecutions.180 These were abused by all concerned in the dock,181 the Executive,182
Legislature,183 and Judiciary.184
After the 2002 Moi succession, there was pressure on President Kibaki to establish a commission
of inquiry.185
The Commission was chaired by Court of Appeal Judge Samuel Bosire, a pro-Executive, pro-
Moi judge. He found that Saitoti and others should be investigated. 186 But not Moi. Saitoti later
had Justice Joseph Nyamu of the High Court nullify the record, findings and recommendations
on him in R. v. Judicial Commission of Inquiry into the Goldenberg Affair, ex parte Prof George
Saitoti (2006).187
Justice Bosire recommended and some agree that in future, a Commission of Inquiry should not
be chaired by a Court of Appeal judge (which was then the highest Court), because the
possibility of the High Court overturning their decisions would affect the authority, prestige and
dignity of the Court of Appeal.188
Its main value may lie in educating the public on how the Government (does not) work(s). And
on bad economic and political governance – and hence the need for the rule of law,
constitutionalism, and good governance.

180
…. Isaac Otidi Amuke (2020) “Revisiting the Goldenberg Ghosts,” The Elephant, op. cit.
181
…. Paul M. Mwangi (2006) “Why Saitoti Ruling is Dangerous for Future of Justice in Kenya,” Sunday Nation,
Nairobi, August 6, 2006, at....
182
….See Kenya Law Reports (2021) “Report Judicial Commission of Inquiry Goldenberg Affair,” at
http://kenyalaw.org/kl/fileadmin/CommissionReports/Report-of-the-Judicial-Commission-of-Inquiry-into-the-
Goldenberg-Affair.pdf (accessed September 13, 2021).
183
….See the Republic of Kenya, Report of the Parliamentary Anti-Corruption Select Committee, May 2000.
184
….Justice Joseph Nyamu failed vetting by the JMVB mainly for granting an order for permanent expunging of
George Saitoti’s name from the Goldenberg Report; See Daily Nation (2012; 2020) “Court will not reopen cases that
felled judges,” Daily Nation, July 3, 2020, at https://nation.africa/kenya/news/court-will-not-reopen-cases-that-
felled-judges--809806?view=htmlamp (accessed September 14, 2021).
185
….See the debates around the establishment of the Judicial Commission of Inquiry into the Goldenberg Affair;
The Kibaki campaign had centered largely on addressing the endemic corruption under the Moi Government.
AfriCOG (2008) Shattered Dreams: An Audit of the Kibaki Government’s Anti-Corruption Drive 2003-2007, at 4;
See AfriCOG, (2011) “All that Glitters? An Appraisal of the Goldenberg Report,” at https://africog.org/wp-
content/uploads/2011/03/Goldenberg_Report2029_03_20111.pdf (accessed September 13, 2021).
186
Cf. Judicial Commission of Inquiry into the Goldenberg Affair, Justice SEO Bosire, Waweru Gatonye, A-G v. Job
Kilach, Civil App. No. 77 of 2003 (UR 4013) (Riaga Omolo, Philip Tunoi, Effie Owuor, JJA); Misc. App. No. 304
of 2013 (Mbito, J).
187
See R. v. Judicial Commission of Inquiry into the Goldenberg Affair, Justice S.E.O. Bosire, Peter Leo Pelley, ex
parte Prof George Saitoti (2006) eKLR (Justice Nyamu, Roselyn Wendoh and Anyara Emukule) The Judges and
Magistrates Vetting Board (JMVB) later found Justice Nyamu unsuitable to serve partly because his conduct of the
Saitoti case…. See JMVB determination…. See also Wachira Maina (2019) “Tales of State capture: Goldenberg,
Anglo Leasing, and Eurobond’” The Elephant, Nairobi, at https://www.theelephant.info/features/2019/09/05/tales-
of-state-capture-goldenberg-anglo-leasing-and-eurobond/ (accessed 6/5/2020).; Wachira Maina
188
Cf would embarrass the court and judges. To quote verbatim.

Page 39 of 87
10.3.7 Waki Commission, Kriegler Commission in Kenya
As part of long-term institutional reforms in Kenya before 2010, the Panel of Eminent Persons
recommended the establishment of two (2) commissions of inquiry to review the 2007 General
Elections and the other the 2008 post-election violence (PEV). The Commission on the Review
of Electoral Process (CREP) was headed by retired South African Judge Johan Kriegler.189

The Commission of Inquiry into Post Election Violence (CIPEV) was chaired by Judge Phillip
Waki of the Kenyan Court of Appeal. 190 The Secretary was George Mong’are Kegoro 191 and Mr
(later High Court Justice) David Majanja was the counsel assisting the Commission.

CREP and CIPEV both submitted a scathing indictment of the Kenyan electoral process and the
manner in which the ECK commissioners and officials had handled the 2007 elections. 192 Of
particular importance, was the assertion that the 2007 elections in Kenya were irredeemably
flawed and that it could not be said with certainty who had won or lost the Elections.

The report of the Judge Waki-led Commission of Inquiry into Post Election Violence (CIPEV)
report concluded that the post-election violence (PEV) had been pre-meditated and planned long
before election day. The report further indicated that the election merely provided a trigger for
entrenched inequalities and grievances that had existed in Kenya since independence.

The Waki (CIPEV) report formed a basis for the post-election trials at the International Criminal
Court (ICC) against Uhuru Kenyatta, Deputy President William Ruto and Joshua Arap Sang that
continued at The Hague as Kenyans went to the 2013 polls.
Why was the Waki Report handed over to former United Nations (UN) Secretary General Kofi
Annan, President Mwai Kibaki and Prime Minister Raila but the sealed envelope to Annan?
Philip Waki handed Kofi Annan the sealed envelope to avoid the ignorance of the Commission’s
report, just like the President and Parliament had done to other commission’s reports before.
Also, despite Raila Odinga and Mwai Kibaki voicing their support for the capacity of domestic
courts, several Members of Parliament (MPs) opposed the idea under the slogan “Don't be
vague, go to The Hague.”

189
CREP said the results had been so polluted that they could not tell who won…. An indictment of the Kibaki
Administration that had micromanaged the elections…. In 2017/18 Kriegler seemed to have been part of the choir to
legitimize rigging.
190
….See the Report of the Commission of Inquiry into Post Election Violence (Waki Report), 2008.
191
Director Kenya Human Rights Commission (KHRC); formerly Director International Commission of Jurists,
Kenya….
192
These were the Independent Review Commission (IREC) and Commission of Inquiry into Post Election
Violence…. (CIPEV), respectively.

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Had Kenya lost sovereignty as some claimed? Across the Ruto-Sang and Kenyatta II ICC cases,
they were terminated by the ICC Trial Chamber due to the insufficiency of evidence to warrant a
conviction.193 Remarkably, Kibaki’s authority had been questioned when his rigging and through
mediation and grund norm or volk geist had changed….194
The cases were terminated… why? Post-2017? In November 2020, the Director of Criminal
Investigations (DCI) George Kinoti released a presser indicating that the DCI would reopen the
2007-08 post-election violence cases.195 President Uhuru Kenyatta stated his disagreement (with
DCI Kinoti) apparently against this issue and stated that:
“If you have decided to reopen the investigations, you don’t know the kind of problem you are
getting this country into.”196
In the same period, Ms Fatou Bensouda, the former ICC prosecutor stated that the Ruto and
Sang’ cases at ICC were still open. 197 These debates were revived in 2021 after the voluntary
surrender of Lawyer Paul Gicheru to the ICC to answer charges of witness interference.198
How and when will the Kenyan Government implement equitable closure on some of the most
complex and complicated cases of injustice?

10.3.8 The Truth Justice and Reconciliation Commission (TJRC) of Kenya and Africa
What issues of political economy, constitutional democracy, and legal sociology led to the Truth
Justice and Reconciliation Commission (TJRC) process in Kenya?199 South Africa? The Kenyan
TJRC was similar to the South African Truth Justice and Reconciliation Commission (TJRC)
which was established to investigate and make recommendations on the apartheid in South
Africa. It was established pursuant to Promotion of National Unity and Reconciliation Act, No
34 of 1995.

193
International Criminal Court (ICC) (2016) “Ruto and Sang case: ICC Trial Chamber V(A) terminates the case
without prejudice to re-prosecution in future,” April 5, 2016, at https://www.icc-cpi.int/pages/item.aspx?
name=pr1205 (accessed September 13, 2021).
194
…Vox populi vox dei …the voice of the people is the voice of God…the spirit of the people …. Volkgeist Cf. Von
Savigny on… historical jurisprudence school…Cf. 2007/08; 2017-2020 political dispensation; swearing in of the
people’s President, handshake, Jubilee intraparty debates, political realignments….
195
Nyambega Gisesa & Mary Wambui (2020) “DCI pledges justice for PEV victims as State reopens cases,” Daily
Nation, Nairobi, November 23, 2020, at https://nation.africa/kenya/news/dci-pledges-justice-for-pev-victims-as-
state-reopens-cases-3207490?view=htmlamp (accessed December 4, 2020).
196
Ibrahim Oruko (2020) “Uhuru slams DCI Kinoti over reopening of PEV cases,” Daily Nation, Nairobi,
November 26, 2020, at https://nation.africa/kenya/news/uhuru-slams-dci-kinoti-over-reopening-of-pev-cases-
3209780?view=htmlamp (accessed December 4, 2020).
197
Onyango K’Onyango (2020) “Bensouda: Ruto and Sang’ Cases still alive,” Daily Nation, Nairobi, Friday,
December 4, 2020, at https://nation.africa/kenya/news/bensouda-ruto-and-sang-cases-still-alive-3218232?
view=htmlamp (accessed December 9, 2020).
198
Kamau Muthoni (2021) “ICC evidence against Ruto to be used in lawyer Paul Gicheru case,” Standard, August
24, 2021, at https://www.standardmedia.co.ke/national/article/2001421690/icc-evidence-against-ruto-to-be-used-in-
lawyer-paul-gicheru-case (accessed September 13, 2021).
199
Cf. TJRC Report (Chaired by Prof Makau Mutua); Legislation on TJRC….

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What were the terms of reference (ToRs) of the Kenyan Truth Justice and Reconciliation
Commission (TJRC)? The terms of reference were at least four (4). First, to investigate the
possible causes of the gross human violations between December 12, 1963 to February 28, 2008.
Second, to recommend the prosecution of the perpetrators of human rights violations. Third, to
propose redress mechanisms for victims of human rights violations. Fourth, to compile a
comprehensive report on the commission’s findings and recommendations. This was later
published in May 2013. The Report itself was presented to President Uhuru Kenyatta in May 21,
2021.
Parliament had the responsibility of adopting and implementing the TJRC Report, which they
have not done, eight (8) years down the line….. This would include adopting the amendments to
the Public Finance Management (Reparations for Historical Injustices Fund) Regulations 2017,
which would operationalize the Restorative Justice Fund.200
In 2013, Lawyer Njonjo Mue asked:
“Although Parliament amended the law to give themselves power to have the report tabled for
consideration, there are certain things within the original Act that remain unchanged. One, is the
timeline of six months. So the question to be asked is, one year down the line, how come that
timeline has not been obeyed?”201
What was the composition of the Kenyan TJRC? The members of the TJRC included Mr (ex
Ambassador) Bethwel Kiplagat as the Chairperson, Tecla Namachanja Wanjala (later acted as
Chairperson when Mr Kiplagat stepped down in 2010), Ahmed Sheikh Farah, Berhanu Dinka,
Gertrude Chawatama, Margaret Shava, Ronald Slye, and Prof Tom Ojienda….
Some of the commissioners had been part of the President Moi Government hence their
impartiality was debated.202
What was the methodology and approach? The TJRC conducted interviews with victims and
alleged perpetrators, public hearings, through submission of memoranda and statements.
There were also shenanigans, for instance, on the question of the role of the TJRC Chairperson,
Bethuel Kiplagat in the 1984 Wagalla massacre, under President Moi? Bethuel Kiplagat was
accused of culpability in the same crimes that the TJRC, which he chaired, was tasked to inquire
on. Some of these questions were even raised by the Kenya Transitional Justice Network which
cited “the credibility crisis” of the Commission given the alleged culpability of Bethuel Kiplagat.

200
Tom Maliti (2015) “Kenyan President and Chief Justice Apologize for Past Injustices,” International Justice
Monitor, April 9, 2015, at https://www.ijmonitor.org/2015/04/kenyan-president-and-chief-justice-apologize-for-
past-injustices/ (accessed September 13, 2021).
201
Oliver Burrows (2015) “Uhuru Apologises For Past Atrocities Much To Kiplagat’s Delight,” Capital FM, M,arch
26, 2015, at https://www.capitalfm.co.ke/news/2015/03/uhuru-apologises-for-past-atrocities-much-to-kiplagats-
delight-2/ (accessed September 13, 2021).
202
…..See Lanegran, Kimberly (2015) “The Kenyan Truth, Justice and Reconciliation Commission: The importance
of Commissioners and their appointment process,” Vol. 1(3) Transitional Justice Review, 41-71.

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There were also questions of deletions from the land section of the TJRC Report?........
What were the findings and conclusions? Outcomes? Post report debates in 2013, 2017
(presidential) elections? Post 2017? The 2015 “commitments” by President Kenyatta in
Parliament- to implement TJRC through KES 10B restorative justice fund raised the public’s
expectations of compensation203….
Critics argued that this was Government’s political re-election gameplan in the context of the
then upcoming 2017 General election. This was largely due to questions of “no regulations” or
the lack of a regulatory framework to implement the TJRC Report and to actualize the KES 10
billion fund. The disputation between Prof Ronald Slye, and Prof Tom Ojienda….
The debates around the implementation of the TJRC report again arose in 2019-2021 period with
regard to the BBI debates and proposals. Most Kenyans submitted memoranda for the full
implementation of previous reports on historical injustices including the TJRC Report, to the
BBI Task Force.204

10.4 Judiciary Ombudsman (Ombudsperson) in Kenya and Africa …. [To restructure for
flow]….
Under this section, I conceptualize, problematize and contextualize at least three (3) key
questions. First ,what is Ombudsman? Second, what is the constitutional and legal framework of
the Ombudsperson or Judiciary Ombudsman in Kenya and Africa? Third, how does the office(r)
work in Kenya and Africa?
10.4.1 Conceptualizing the Judiciary Ombudsman in Kenya and Africa
Kenya and Africa have always needed the office of the Judiciary Ombudsman which was a
Scandinavian innovation to address issues of maladministration. The theory, rationale or
justification include(d) the inconvenience cost and delays associated with litigation. It is now
entrenched in Kenya and Africa, in various formats.

Maladministration means public administration that is inequitable, inefficient, improper, and

dishonest. It includes “service failures, delay, inaction, inefficiency, ineptitude, discourtesy,
incompetence, rudeness, bias, faulty procedures, unfair treatment and unresponsiveness”. 205 KC

203
Natascha Mueller-Hirth (2021) “Reparations and the politics of waiting in Kenya,” 15:3, Journal of Eastern
African Studies, 464-484.
204
See Section on shared prosperity of the Building Bridges Initiative (BBI) 2020 Report…..cf. the Reparations for
Historical Injustices Bill, 2021 Bill to provide a legal framework for the implementation of the TJRC Report,
including the establishment of a Reparations for Historical Injustices Restorative Justice Fund.….
205
See Art. 2(4), 47, 59 of the Constitution 2010…. (Kenya)…section 5(1) of the Parliamentary Commissioner Act,
1967 (United Kingdom),…. Chapters 1 of CODRALKA 3 on Administrative Bureaucracy, Cabinet, Cabinet
Secretary, Chief Administrative Secretary, Permanent Secretary, HOPs (HOCs) and County Administration in
Kenya and Africa; Regulatory and Administrative Law and Justice in Kenya and Africa….

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Wheare defines maladministration as “as administrative action (or inaction) based on or
influenced by improper considerations or conduct.”206

In the Afro-Kenyan and UK context, the concept of maladministration was not been explicitly
defined under the Commission on Administrative Justice Act, 2011, or the Parliamentary
Commissioner Act, 1967 of the UK.

The English Courts in R v. Local Commissioner for Administration for the North and East Area
of England, ex p Bradford Metropolitan City Council (1979) held that maladministration covered
issues like:

“bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and
so on.”207

Such broad definition may blur the scope of the operations of the Ombudsman. Relatedly, It is
recognized that the Legislature, Executive, and the Judiciary may not effectively redress every-
day occurrences of (mal)administration 208 (especially those that occur in the Executive and
administrative agencies …). The Executive and most Governmental institutions lack self-
correcting and self-improving mechanisms.
Hence, offices of the Judiciary Ombudsman are regarded as suitable in a generic format, or
Ombudsperson that focus on specific (categories of) institutions like Judiciary Ombudsperson…
This was debated in the context of the BBI Report 2020’s proposal for the inclusion of a
Judiciary Ombudsman.
Thus, the Commission on Administrative Justice (CAJ) which is also referred to as the
Ombudsman. It was established by the Commission on Administrative Justice Act, 2011
pursuant to Article 59(4) of the Constitution of Kenya. Art 59(4) stipulates:
“Parliament shall enact legislation to give full effect to this Part, and any such legislation may
restructure the Commission into two or more separate commissions.” 209

Ms Florence Kajuju later succeeded Mr Otiende Amollo, the first Chairperson of the CAJ.210

10.4.2 Powers and functions of the Commission on Administrative Justice vis-à-vis the
Judiciary Ombudsman in Kenya and Africa
206
KC Wheare (1973) Malaadministration and its_Remedies, The Hamlyn Trust
207
R v. Local Commissioner for Administration for the North and East Area of England, ex p Bradford Metropolitan
City Council (1979).
208
Problematize and contextualize definition of maladministration….
209
Review the post 2010 and BBI debates on securing the 2010 and Bomas gains by protecting Commission on
Administrative Justice (CAJ) and the National Gender and Equality Commission (NGEC)…
210
Mr Otiende Amollo later became MP for Rarieda constituency in Siaya County (ODM party, NASA coalition).
Ms Kajuju served as Women’s Representative for Meru County in the 2013-2017 Parliament (Jubilee Coalition).

Page 44 of 87
What are the powers and functions of the Judiciary Ombudsman in Kenya and Africa? The
powers and functions majorly focus on addressing maladministration, administrative injustice
and promoting alternative dispute resolution (ADR).

The problem may be minor - but important to an individual….

The ombudsman may be an ad hoc211 or permanent entity; The latter example is the CAJ and
Permanent (Presidential) Commission of Inquiry (like in Tanzania historically).212
A grievance may require resolution by a lay person rather than those trained in technical judicial
procedures.…
Some of the issues of maladministration are thus addressed through complaints commissions,
complaints or suggestion boxes, or hotlines in corporations, and public bodies providing various
services … There are complaints boxes, helplines and hotlines on corruption, and slow provision
of services. The National Police Service (NPS), Ministry of Health have established hotlines on
some crimes, for example carjacking, the Corona virus 2019 (COVID-19) pandemic… How
effective are helplines and hotlines in redressing grievances in Kenya and Africa?
Before the CAJ, the Kenya National Commission on Human Rights (KNCHR) served as the
Ombudsman. It was a statutory commission.213 What is the efficacy of the ombudsperson
established in Kenya in the light of the Kenya National Human Rights and Equality Commission
(KNHREC), Commission on Administrative Justice (CAJ), National Gender and Equality
Commission (NGEC), and other commissions? Equally important are the constitutional
provisions on fair administrative action (Article 47);214 judicial remedies and judicial
reforms.....?215
Art. 59 states:
“(1) There is established the Kenya National Human Rights and Equality Commission.”

With regards to the eleven (11) functions of KNHREC, Article 59(2) provides:216

“(2) The functions of the Commission are—

(a) to promote respect for human rights and develop a culture of human rights in the Republic;

211
Examples include….
212
….
213
Kenya National Commission on Human Rights (KNCHR) may have been inspired by the Kenya Human Rights
Commission (KHRC), an NGO….
214
See also the Fair Administrative Action Act (FAAA), Statutory Instruments Act, Interpretations and General
provisions Act….
215
Cf. George K. Rukwaro (1973) “The case for an ombudsman in Kenya,” 9, EA Law Journal, 43-58; To cite
recent studies….See Chapter 4, 9 and 20 of CODRALKA 1….
216
To quote and analyze further….

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 (b) to promote gender equality and equity generally and to coordinate and facilitate gender
mainstreaming in national development;
(c) to promote the protection, and observance of human rights in public and private institutions;
(d) to monitor, investigate and report on the observance of human rights in all spheres of life in
the Republic, including observance by the national security organs;
(e) to receive and investigate complaints about alleged abuses of human rights and take steps to
secure appropriate redress where human rights have been violated;
(f) on its own initiative or on the basis of complaints, to investigate or research a matter in respect
of human rights, and make recommendations to improve the functioning of State organs;

Equally important is that KNHREC is,

(g) to act as the principal organ of the State in ensuring compliance with obligations under
treaties and conventions relating to human rights;
(h) to investigate any conduct in state affairs, or any actor omission in public administration in
any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in
any impropriety or prejudice;
(i) to investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful,
oppressive, unfair or
unresponsive official conduct;
(j) to report on complaints investigated under paragraphs (h)and (i) and take remedial action; and
(k) to perform any other functions prescribed by legislation.”

In addition, Article 59(3), (4), and (5) provides:217

“(3) Every person has the right to complain to the Commission, alleging that a right or
fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.
(4) Parliament shall enact legislation to give full effect to this Part, and any such legislation may
restructure the Commission into two or more separate commissions.
(5) If Parliament enacts legislation restructuring the Commission under clause (4)––
(a) that legislation shall assign each function of the Commission mentioned in this Article to one
or the other of the successor commissions;
(b) each of the successor commissions shall have powers equivalent to the powers of the
Commission under this Article; and
(c) each successor commission shall be a commission within the meaning of Chapter Fifteen, and
shall have the status and powers of a commission under that Chapter.”
The KNHREC was restructured into KNHREC and Commission on Administrative Justice
(CAJ) and National Gender and Equality Commission (NGEC).218

217
To cite and analyze further….
218
National Gender and Equality Commission Act, 2011…. The BBI 2019 and 2020 debates included: Merge them
or let them be? Don’t claw back gains already made (by women?)…. Rationalize a few- e.g. National Police Service
Commission (NPSC) and Salaries and Remunerations Commission (SRC)… See Chapters 1, 3, and 8 above on
“Executive Power, Function, and Structure in Kenya and Africa.” Consecutively, Chapter 20 on “Constitutional
Commissions and Independent Offices in Kenya: Experiences, Challenges and Opportunities Financing based
[categorization of CCIOs…]….

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The mandate(s) of the Commission on Administrative Justice (CAJ) are stated in section 8 of the
Commission for Administrative Action Act, 2011:219
First, inquiries into allegations of maladministration and administrative injustice. Second,
investigate complaints of abuse of power, unfair treatment. Third, work with the Kenya National
Commission on Human Rights to ensure efficiency, effectiveness and complementarity in their
activities.

Fourth, facilitate the setting up of, and build complaint handling capacity in, the sectors of public
service, public offices and state organs. And fifth, investigates any conduct in state affairs, or any
act or omission in public administration by any State organ, State or public officer in National
and County Governments.

10.4.2.1 Proposed reforms and related debates on the Office of the Ombudsman in Kenya
and Africa……
…. The BBI 2020 Report recommended the inclusion of the Office of the Judiciary Ombudsman
in the JSC to handle complaints on the judicial process from Kenyans in a proposed Article 172A
(Office of the Judiciary Ombudsman), and also to deal with maladministration in the Judiciary.220

The JSC in its memoranda in 2020 acknowledged that judicial independence and judicial
accountability are critical in a constitutional democracy. They expressed three (3) concerns.
First, the nature of the President being the appointing power of the Judiciary Ombudsman,
subject to approval by Senate…. The proposed Judiciary Ombudsman would serve for a single
non-renewable term of five (5) years. The Constitution of Kenya (Amendment) Bill, 200 also
provided that the qualifications of the Ombudsman would be equivalent to that required for
appointment as a Supreme Court judge221…..
The argument was that the President already exercises significant influence over the JSC in the
form of the Attorney-General, and two (2) representatives of the public….
“The unusually heavy tilt towards Executive representation in the JSC compared to other
Commissions has the potential danger of entrenching Executive authority in the JSC and by
extension, in the Judiciary.” 222

219
Section 8 of the Commission on Administrative Justice Act, No. 23 of 2011. Regulations....office manual. See
also Commission on Administrative Justice Annual Report (2013); and the Annual Report of the Commission on
Administrative Justice, 2014……..
220
JSC and BBI debates on the effectiveness of the Judiciary Ombudsman vis-à-vis the role of the JSC and judicial
independence….
221
Moses Odhiambo (2020) “BBI proposal: Judiciary Ombudsman created as JSC allowed to discipline judges,”
Star, Nairobi, October 22, 2020, at https://www.the-star.co.ke/news/2020-10-21-bbi-proposal-judiciary-
ombudsman-created-as-jsc-allowed-to-discipline-judges/ (accessed September 14, 2021).
222
Carolyne Tanui (2020) “Proposed Judiciary Ombudsperson Under BBI Will Entrench Executive Control:
Maraga,” Capital FM, December 11, 2020, at https://www.capitalfm.co.ke/news/2020/12/proposed-judiciary-

Page 47 of 87
Against this backdrop, some argued that already there was a Judiciary Ombudsman introduced
during former Chief Justice Willy Mutunga’s tenure……..
Second, the likelihood of conflict of parallel complaints being instituted at the JSC and in the
proposed Judiciary Ombudsman. The then Chairperson of JSC, former Chief Justice David
Maraga argued that:
“The risk of parallel complaints being instituted with the JSC as well as the Ombudsman and the
possibility of different decisions being arrived at is real. Of greater concern is the fact that there
already exist other alternative channels such as the office of the Judiciary ombudsman and the
Commission on Administration of Justice through which the public can voice complaints.” 223 

Third, …….

10.4.3 Methodology of Commission on Administrative Justice in Kenya and Africa

The mandate and methodology and mode of operation (modus operandi)224 of the Commission
on Administrative Justice include alternative dispute resolution (ADR), especially mediation,
conciliation, negotiation.225
Some of the matters that the Commission on Administrative Justice (CAJ) has handled include
the following five (5)…. First, the Commission on Administrative Justice (CAJ) mediated a
dispute between a complainant and his former employer, Kenya Revenue Authority (KRA)
following a summary dismissal by the Authority on July 23, 1998.226
Second, a complaint was lodged against the Kenya Polytechnic University College (now
Technical University), by a complainant who alleged unfair treatment and administrative
injustice in his suspension from the College in July 2010.227
Third, the Commission intervened on behalf of 83 former employees of the Kenya Railways
Corporation regarding alleged delay and unresponsive conduct by the Kenya Railways Staff
Retirement Benefits Scheme.
Fourth, the Commission on Administrative Justice (CAJ) successfully pursued a complaint by a
Ms Cecilia Mbugua from Kiambu County who claimed that the then (later impeached) Governor
Ferdinand Waititu (Baba Yao) had taken away her two parcels of land. The Commission on
Administrative Justice (CAJ) uncovered that a prime property belonging to Ms Cecilia Mbugua

ombudsperson-under-bbi-will-entrench-executive-control-maraga/ (accessed September 14, 2021).

223
Ibid.
224
The standard operating procedure….
225
….See the Commission on Administrative Justice (CAJ) Act, 2011.
226
See Commission on Administrative Justice Annual Report (2013) “CAJ/KRA/000/374/2012,” at
file:///C:/Users/Eugene/Documents/X_Kenya_OM_Annual%20Report_2013_EN.pdf (accessed April 12, 2021).
227
Ibid.

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was fraudulently transferred to the elderly Ms Esther Nyatu through the office of the Governor
and the Governor himself.228

Fifth, CAJ helped resolve of a dispute between Eldoret Grains Ltd and the Kenya Bureau of
Standards (KEBS). The miller’s directors had alleged that they were being discriminated against
by KEBS as the company had already implemented a corrective action and plan recommended
by KEBS following an earlier suspension in November, 2019. Eldoret Grains claimed that they
had complied by purchasing and installing an aflatoxin testing machine at their factories.229

10.5 Adjudication in the Criminal Justice System in Kenya230

What is the Justice System?231 A justice system involves policy and institutional frameworks for
the maintenance of law and order, upholding the rule of law and human rights. There are at least
two (2) types of justice systems. First, traditional justice systems which were restorative in
nature. Countries including Kenya and Uganda (through the integration of the practice of mato
oput into the formal judicial processes) have adopted blended justice system. Second, “western
model” of justice systems which is more punitive.

The criminal justice system (CJS)? The criminal justice system involves the institutional
frameworks involved in the application of criminal procedures while upholding equality, human
rights, rights of the accused, against the general welfare of the society.232

The Constitution of Kenya 2010 embodies substantive, evidentiary and procedural or processual
rules on criminal justice and law.233 Substantive issues include the rights of the accused, 234 and
victims,235 and jurisdiction of courts….236

228
The findings of the CAJ were part of the grounds and evidence that led to the impeachment of former Kiambu
County Governor Waititu by Kiambu Members of County Assembly (MCAs) and subsequent removal by Senate
under Arts 181of the Constitution (removal of a County Government) and section 33 of the County Government
Act, 2012….
229
…Ibid.
230
Cf. Chapter 5 of CODRALKA 1... on Participation and Representation: Electoral System, Parties, CSOs,
Business Organisations; and Human Rights and the Bill of Rights in Kenya and Africa
231
The justice system is broader than the Judicial System…. What of the legal or constitutional system?
232
…. Onyango, LA. Israel (2005) “Overview of the Kenyan criminal justice system (Corrections),” in 153rd
International Senior Seminar Participants’ Papers.
233
…National Council of Administrative Justice (NCAJ) (2016) “Criminal Justice system in Kenya: An Audit,” at
https://acjr.org.za/resource-centre/kenya-audit.pdf (accessed September 13, 2021).
234
…. See Arts. 48 (access to justice), 49 (rights of arrested persons) and 50 (fair hearing) of Constitution 2010.
235
….Subject to Article 50(9) of the Constitution 2010 enacted the Victim Protection Act, 2014 for the recognition
and protection of victims including their dignity.
236
….Chapter 10 of the Constitution (Judiciary)…Art. 23 (authority of courts to uphold and enforce the Bill of
rights), and Article 159 (judicial authority)…

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Evidentiary rules include the presumption of innocence, 237 the right to silence,238 or rule against
self-incrimination,239 evidence under caution,240 evidence taken in violation of human rights,
including torture, breach of privacy.are unconstitutional.241

The Court of Appeal at Malindi expressed itself on the constitutionality of two (2) related issues
regarding a mixed bench in Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati v.
Republic (2015). First, whether a judge appointed to the Environment and Land Court (ELC) has
jurisdiction to deal with criminal appeals specifically reserved for the High Court.

Second, whether the former Chief Justice (Willy Mutunga) acted within his constitutional
mandate by empaneling a bench consisting of judges from the High Court and the Environment
& Land Court (ELC). The Court held that judges appointed to specific courts sanctioned by the
Constitution, cannot perform the duties reserved for another court.242

Some of the questions that we addressed in Chapter 9 above include the following three (3).
First, are the powers of the Chief Justice as the head of Judiciary merely administrative? Does
empanelling a mixed bench go beyond the supposed “administrative” powers of the Chief
Justice?243 Second, was the decision meritorious especially in the light of the following three
issues? First, the equivocal provisions on the jurisdiction of the High Court (judges)? Second,
shortage of judicial officers…. Third, the rapid results initiatives (RRI) adopted by the Judiciary
in seeking to clear the backlog of cases in the Courts?244

In the contemporary analyses of the role of the Chief Justice (CJ), emphasis was and are laid on
the Chief Justice’s administrative and monarchial powers.245

10.6 Judicial Control of Executive, Administration and Judicial Powers in Kenya and
Africa
237
.Article 50(2) of the Constitution (fair hearing).
238
…Article 49(1)(b) of the Constitution (rights of arrested persons).
239
….to quote in text Arts 50….; Compare R. v. El Mann, …. (s. 77(5) of the 1969 Constitution.); The Fifth
Amendment of the US Constitution (Fifth amendment rights). See Chapters 1, 3, 4, and 6 of CODRALKA 1….
240
Arts…. In the US, this is Miranda rule…. See Miranda v. US…. (the Miranda rules; Judges rules…)…. See
Evidence (Out of Court) Rules 2009? Applied in, inter alia, Republic v. Leliman (Peter Ngugi v. Republic) (trial
within a trial)
241
Art. 50(4); Philomena Mbete Mwilu v. Director of Public Prosecutions & 3 Others; Stanley Muluvi Kiima
(Interested Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR, Petition 295
of 2018….(bench… judges) The author was one of the lawyers for the DCJ Philomena Mwilu….
242
Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati v. Republic [2015] eKLR.
243
Cf. section 5(2)(c) of the Judicial Service Act which grants the Chief Justice the power to “exercise general
control over the judiciary.” CJ’s executive, administrative powers…..
244
Judiciary (2017) Sustaining Judiciary Transformation (SJT): A Service Delivery Agenda 2017-2021, Government
Printers, Nairobi, at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Strategic_BluePrint.pdf (accessed 21/4/2020).
245
Former Chief Justice Willy Mutunga popularized the critique of former Chief Justices as constitutional judicial
monarch. Was he not?

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The Judiciary has powers to control the scope and exercise of the powers of the Legislature, the
Executive and matters administration of the Judiciary itself. The other arms, organs or branches
of Government also have some powers under the doctrine of fusion of powers, separation of
powers, and checks and balances.246

10.6.1 Judicial Control of Legislative Powers in Kenya and Africa

Legislative powers in Kenya are vested in Parliament (Senate and National Assembly); and in
the 47 County Assemblies.247 These powers are subject to the control of the judiciary in the sense
that any legislation which contravenes the Constitution can be challenged and nullified in Court.

The High Court has the original jurisdiction to interpret laws and determine whether the laws are
constitutional.248 The court can therefore enquire into substantive and procedural or processual
constitutionality- did the Legislature follow the right procedure including public participation? 249
The Kenyan Judiciary has played a great role in the determination of the constitutionality of
several statutes, hence contributing significantly to the Afro-Kenyan constitutional democracy…
These are substantively discussed under Chapter 7 of CODRALKA 1 above on the Legislative
Power, Functions and Structure in Kenya and Africa.

10.6.2 Judicial control of Executive Powers in Kenya and Africa

The Judiciary also controls executive powers through the exercise of its jurisdiction to review
decisions made by the executive. This is referred to as judicial review. For instance, High Court
Justice Chacha Mwita issued orders following the Executive and especially President Uhuru
Kenyatta, failing to gazette the elected Judges as members of JSC after names were submitted to
him. The Court stated at paragraph 130, that:

“The people of Kenya wanted to be represented in JSC and conferred discretionary mandate on
the President to make the appointments on their behalf. In doing so, the people, and by extension
the framers of our Constitution, expected the President to act in good faith and in the best interest
of the public when making such appointments; consider merit and national values and principles
including integrity, national diversity and above all suitability to serve in JSC.” 250

246
See Chapters 4, and 6….of CODRALKA 1 above.
247
Articles 181, 182 of the Constitution 2010…. See also Chapter 7 on Legislative Power, Structure and Process in
Kenya and Africa.
248
….See also Chapter 9 on the jurisdiction, power and functions of the High Court….
249
Public participation is a substantive and procedural requirement in legislative and administrative processes. Cf.
Legislature slicing Judiciary budget. See Chapter 4 of CODRALKA 1 above on Participation and Representation in
Kenya and Africa.
250
Katiba Institute v. Attorney General & 6 Others [2018] eKLR.

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The Judiciary in Afro-Kenyan constitutional democracy, therefore plays a role in reviewing the
exercise of discretion by the Executive, including validating public policy where questions are
raised regarding constitutionality and legality…..

10.6.3 Judicial Review of Judicial Decisions in Kenya and Africa

In exercise of its supervisory powers under judicial review, the High Court may issue any of the
following ten (formerly called prerogative) writs. 251 There are also remedies that are available in
human rights violations, and to enforce the Bill of Rights (Arts 23(2); 22), and three (3) are the
generic Judicial Review remedies.252

The court may be moved or approached through a petition under Arts. 22 (enforcement of the
Bill of Rights) and 23 (authority of courts to uphold and enforce the Bill of Rights), or through
the judicial review process under the Civil Procedure Act and Civil Procedure Rules….253

First, mandamus. This is an order issued by the High Court to any person or body commanding
him or them to perform a public duty imposed by law or state. The order is available to compel
administrative tribunals to do their duty.254

Second, certiorari. This is an order issued by the High Court directed at an inferior court, tribunal
or body exercising judicial or quasi-judicial functions to have the records of the proceedings
presented to the High Court for at least five (5) purposes: First, to secure an impartial trial.
Second, to review an excess of jurisdiction. Third, to challenge an ultra vires act. Fourth, to
correct errors of law on the face of the record.

Fifth, to quash a judicial decision made against the rules of natural justice. An order of certiorari
will be issued wherever anybody of persons having legal authority to determine questions

251
The Constitution is now the basis of these “orders,” and they are not issued as a matter of right once a litigant
meets the standards; not entirely discretionary or prerogative…. And they are “orders,” not common law “writs”….
See the definition of “prerogative” and “writs”....
252
Remedies for infringement of intellectual property, innovation and technology transfer may be addressed through
a human rights and a generic methodology and approach (Art. 159)…. See Ben Sihanya (2016; Reprinted 2020)
Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable
Development, IL & SM, Nairobi & Siaya; Ben Sihanya (forthcoming 2020) Intellectual Property and Innovation
Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya.
253
Philomena Mbete Mwilu v. Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested Party);
International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR Petition 295 of 2018; and
numerous decisions by Justice Odunga, Justice Mativo and Justice Chacha Mwita as well as many others from the
Constitutional, Human Rights and Judicial Review Divisions of the High Court….
254
Gabriel Lubale (2012) “Courts system in Kenya,” at https://gabriellubale.com/courts-system-in-kenya/ (accessed
2/9/2019).

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affecting the rights and having a duty to act judicially, acts in excess of their legal authority. 255 It
therefore serves to quash what has been done irregularly.256

Third, prohibition. This is an order issued by the High Court to prevent an inferior court, tribunal
or body from hearing or continuing to hear a case either in excess of its jurisdiction or in
violation of the rules of natural justice. Natural justice has two (2) elements. First, audi alteram
partem (no one should be condemned unheard), and second, procedural fairness in any
administrative action or nemo judex in causa sua (no man shall be a judge in their own cause). A
violation of these principles would warrant the granting of these judicial remedies by a court of
law.257

Fourth, the writ of habeas corpus. Habeas corpus (sub judiciendum) means “produce the
body,”258 “alive or dead.”259 This order is issued where the personal liberty of a person is
curtailed by arrest and confinement without legal justification. 260 By issuing this order, the High
Court calls upon the person holding the body to answer by what authority are they continuing to
withhold the individual and with the aims at securing release of such persons held apparently
without legal justification.261

Indeed, as the Court of Appeal opined in Republic v. The Commissioner of Lands ex parte Lake
Flowers Limited (1998): -
255
This formulation is problematic. Under the Constitution of Kenya, and even in (post war) England, the test has
been simplified: are the rights of a person or a citizen likely to be affected? Then fair administrative action, due
process or natural justice, administrative justice applies.
256
Gabriel Lubale (2012) “Courts System in Kenya,” at https://gabriellubale.com/courts-system-in-kenya/ (accessed
2/9/2019). Cf. Paul Craig (2012) Administrative Law, Sweet & Maxwell, London (seventh ed), Chapter 15; Paul
Craig (2019) “Prorogation: Three assumptions…,” Mark Elliot of Cambridge University is author of Mark Elliot
(2019) “Prorogation and justiciability: Some thoughts ahead of the Cherry Miller (No. 2) case in the supreme
Court”… These articles influenced the subsequent Supreme Court judgment on Brexit R (on the application of
Miller and Another) v. Secretary of State for Exiting the European Union, 2017. See also their other article and
opinions before and after the case. Paul Craig (2011) “Proportionality, rationality and review,” Oxford Legal Studies
Research Paper, No. 5/20111; Mark Elliott (2017) “The Supreme Court judgement in Miller: In search of
constitutional principle,” Vol. 76, Issue 2, Cambridge Law Journal 257-288; Mark Elliott (2019) “The Supreme
Courtin Cheryl Miller (No. 2): A new approach to constitutional adjudication?” Public Law for Everyone, at
https://publiclawforeveryone.com/2019/09/24/the-supreme-courts-judgment-in-cherry-miller-no-2-a-new-approach-
to-constitutional-adjudication/ (accessed 3/4/2020).
257
Ibid. Add the meaning of natural justice. Art. 47 (fair administrative action) of the Constitution 2010 is given
effect by the Fair Administrative Action (FAA), 2015 which emphasizes on due process…. ….
258
It is one of the four non derogable super rights under Art. 25. “Alive or dead” is my expression of positivity and
hope….
259
This is to express my positivity and (stubborn) hope in the quest for criminal justice….
260
See the reported and unreported cases on detention without trial in Kenya – Raila Odinga, Mwangi Muriithi,
Willy Mutunga, Oduor Ong’wen, Mirugi Kariuki, Paddy Onyango…. Habeas corpus applications have been
common in cases of the disappeared and instances of police extrajudicial killings and brutality like Willie Kimani,
Josephat Muiruri and Stephen Karanja….
261
Ibid.

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 “Judicial review is a tool of Justice, which can be made to serve the needs of a growing society
on a case-to-case basis. The court envisions a future growth of judicial review in the human rights
arena where it is becoming crystal clear that human rights will evolve and grow with the
society”262

The Constitution 2010 provides various remedies to address human rights violations. The
following six are provided for under Art. 23(3) with focus on remedies to help enforce the Bill of
Rights (Art. 22).

Sixth, a declaration of rights.263

Seventh, an injunction.264

Eighth, a conservatory order.265

Ninth, a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or
fundamental freedom in the Bill of Rights and is not justified under Article 24;
Tenth, an order for compensation.266

Eleventh, an order of judicial review.267

In Republic v. Kenya Power & Lighting Company Limited & Another (2013), the court stated
that:

“It is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted
illegally, unreasonably or in breach of rules of natural justice. The actual sins of a tribunal must
be exhibited for judicial review remedies to be granted.” 268

262
Republic v. The Commissioner of Lands ex parte Lake Flowers Limited [1998] eKLR.
263
Art 23(3)(a) of the Constitution 2010…. Declaratory orders can be used in creative ways, per Justice Odunga.
Elaborate… examples…
264
Art 23(3)(b) of the Constitution 2010…. Injunctions were initially discretionary remedies in equity…. What is the
impact of legislation and constitutionalization? Especially in IP: copyright, patent, trade marks, trade secrets….
Have the (standardized) rules remove (almost) absolute discretion in old English equity?
265
Art 23(3)(c) of the Constitution 2010…. To address limited variety of authorities on conservatory orders v.
injunctions …. See the Supreme Court of Kenya in the election petitions in Gatirau Peter Munya v. Dickson
Mwenda Kithinji & 2 Others (2014) eKLR (the author was an advocate in that case). “‘conservatory orders’ bear a
more decided public law connotation: for these are orders to facilitate functioning within public agencies, as well as
to uphold the adjudicatory authority of the Courts, in the public interest.” Applied in Platinum Distillers ltd v. Kenya
Revenue Authority (2019) eKLR (Ruling, Weldon Korir, J)
266
Art 23(3)(d)…. Cf. damages, account of profits….
267
Art 23(3)(e)….
268
Republic v. Kenya Power & Lighting Company Limited & Another [2013] eKLR.

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For a court of law to grant the judicial remedies indicated above, therefore, a litigant must
demonstrate a fundamental breach of the rules of natural justice, especially in cases of
administrative action. However, considering that administrative action cases are clear cut, how
should the Judiciary respond in an emergency or revolutionary situation?

10.7 The Judiciary in Emergencies, Crises and Revolutionary Situations in Kenya and
Africa
What is the role of the judiciary when there is a constitutional, political, electoral, economic
health, environmental, security or related emergency, war, disaster, stress, strain, crisis and in a
revolutionary situation in Kenya and Africa?269

Some argue that there are three (3) options. First, the Judiciary, the law, lawyers, and the
Constitution always speak, argue, litigate, arbitrate, indicate and serve justice. That in any event,
the Constitution and transnational legal instruments provide for emergencies, war, disaster….270

Second, the lawyers, judges, magistrates and law should be silent. 271 It is the Executive’s
mandate to deal with emergencies, war and disaster, epidemics, pandemics,272….
What of when the Executive itself is shaken to the core by an emergency or pandemic, partly
because of underlying injustices, economic exploitation, corruption and poor governance? 273 The
science, technology, politics and meta discourse underlying the coronavirus disease 2019
(COVID-19) pandemic aside, many African states including Kenya could not implement a total
lockdown because of fear of demonstration leading to starvation and revolt. There were only
partial lockdowns in hotspot areas including Nairobi Metropolitan area, Kisumu County and
Mombasa County.274
269
Cf. ICJ Kenya (2019) 60 Days of Independence: Kenya’s judiciary through three presidential election petitions,
The Kenyan Section of the International Commission of Jurist (ICJ Kenya) and Journalists for Justice (JFJ), Nairobi.
270
….Article 58 of the Constitution 2010 provides that a state or emergency may be declared where there is threat of
war, invasion, general insurrection, public emergency and natural disaster. Was COVID-19 a public health
emergency? …Such a declaration of a state of emergency would only extend to two (2) weeks, unless the National
Assembly passed a resolution for its extension.
271
….See Supreme Court Justice (SCJ) JB Ojwang’s dissenting opinion in Presidential Election Petition No. 1 of
2017.
272
CF Peter Kagwanja (2020) “Epidemics are slowly but surely remaking the world order,” Sunday Nation, Nairobi,
3/5/2020, at https://www.nation.co.ke/oped/opinion/Epidemics-are-remaking-the-world-order/440808-5540726-
14whl8kz/index.html (accessed 6/5/2020)…. What is the difference between epidemic and pandemic?...
273
Daniel Wesang’ula (2020) “Not at ease: How virus jolted Africa’s “big men”,” Sunday Standard, Nairobi,
3/5/2020, at https://www.standardmedia.co.ke/elections2017/article/2001369955/africa-s-big-men-and-the-
coronavirus-response (accessed 6/5/2020); Protus Onyango (2020) “Crime, violence on the rise in slums amid
pandemic,” Sunday Nation, Nairobi, 3/5/2020, at https://www.standardmedia.co.ke/article/2001369956/crime-
violence-on-the-rise-in-slums-amid-pandemic (accessed 6/5/2020).
274
Ayenat Mersie & Omar Mohammed (2020) “Kenya announces phased reopening from coronavirus lockdown,”
Reuter, July 6, 2020, at https://www.reuters.com/article/us-health-coronavirus-kenya-idUSKBN24718R (accessed

Page 55 of 87
For instance, the Government feared that the residents of, especially, the informal settlements
may seek support from or invade the leafy suburbs mentioned in brackets, among others
….Kibera (Karen?), Mathare (….Muthaiga?), and Githogoro (Runda)…275

Thus, “inter arma enim silent leges ” which means that “in times of war, the law is silent.” Lord
Atkin provided an excellent, theoretical and pragmatic postulate on this maxim…. My
considered opinion is that Lord Atkin’s dissent in the war time case of Liversidge v. Anderson
(1941)276 is the law:

“In England [as is in Kenya and Africa], amidst clash of arms, the laws are not silent. They may
be charged, but they speak the same language in war as in peace. It has always been one of the
pillars of freedom. One of the pillars of liberty for which on recent authority we are now fighting,
that judges are not respecters of persons, and stand between the subject and any attempted
encroachment on his liberty by the Executive, alert to see that any coercive action is justified in
law….”

Third, the lawyers, judges, magistrates, Constitution and the law generally should remain
“neutral.”277
Review the conduct of the judiciary during electoral crises in 2007/2008; 2017/2018. What is the
role of the judiciary in the contexts on an emergency, war, disaster? These are related to:
mutiny,278 coup attempt, coup, coup attempt, coup plot, (popular) uprising; demos, 279 revolt, or
insurgency, protests…280

To discuss the Judiciary in an emergency, war, disaster, revolution, curfew, lockdown, 281
voluntary and compulsory testing, self or forced quarantine, self or forced isolation, contact
September 14, 2021).
275
See….Levi Gikandi (2020) “COVID-19 and Vulnerable, Hardworking Kenyans: Why it's time for a strong social
protection plan,” Oxfam Briefing Paper, November 2020, at
https://reliefweb.int/sites/reliefweb.int/files/resources/bp-kenya-social-protection-101120-en.pdf (accessed
September 14, 2021); UNDP (2020) “Articulating the Pathways of the Socio-Economic Impact of the Coronavirus
(COVID-19) Pandemic on the Kenyan Economy,” Policy Brief, April 2020, Issue No: 4/2020, at
https://www.undp.org/content/dam/rba/docs/COVID-19-CO-Response/Socio-Economic-Impact-COVID-19-Kenya-
Policy-Brief-UNDP-Kenya-April-2020.pdf (accessed September 15, 2021)…
276
Liversidge v. Anderson (1941) UKHL 1.
277
To be “neutral” or non-partisan in the context of oppression or a clash of values is to be partisan on the side of the
oppressors….
278
Cases on anti IEBC demonstrations (Justice Onguto? Chacha Mwita?), Mpeketoni, Boni curfew? NASA v. IG of
Police & Others…
279
Upendra Baxi (2014) “Demosprudence versus jurisprudence: The Indian judicial experience in the context of
comparative constitutional studies,” LJ 14 Macquarie, 3; Upendra Baxi (2016) “Law, politics and constitutional
hegemony: The Supreme Court, jurisprudence, and demosprudence,” The Oxford Handbook of the Indian
Constitution, ….94-109…..
280
Cf. IEBC....

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tracing… in Kenya,282 Sudan, Algeria, France 2018/2019...283 South Africa,284 Malawi,285 Hong
Kong,286 Venezuela…and India?287 Generally, the Judiciary was viewed as the last line of
defence for the civilians against the excesses of the Executive and a subservient Legislature
across these countries …

In such and related contexts, how do Kenyans and Kenyan courts address Executive and
especially police excesses …. or “political justice” which public interest lawyer Dr Oki Ooko
Ombaka contextualizes as the use of the criminal justice system (CJS) for political objectives?288
A three-judge bench of the Constitutional Court in Malawi held that there was no legislation or
provision under the Public Health Act, that permitted the imposition of a nationwide COVID-19
lockdown. The Malawian Executive was also critiqued for making statutory rules to guide the
operations of courts during the lockdown. The Court summarised the Executive’s actions thus:
“consequently, a state of emergency was imposed through the back door.”

The Court argued that this was “….subordinary legislation like the Covid-19 rules could not take
away from the Chief Justice the power to make rules related to the courts. ‘The effrontery of the
Covid-19 rules … is therefore significant.” 289

Further that:
281
Cf. Graham Kajiwa (2020) “Lockdown lowers virus cases by 40% in Africa, says World Health Organisation,”
Sunday Standard, Nairobi, 3/5/2020, at 19, at https://www.standardmedia.co.ke/article/2001369952/lockdown-
lowers-virus-cases-by-40pc-in-africa-says-who (accessed 6/5/2020).
282
Cases on anti IEBC demonstrations (Justice Onguto? Chacha Mwita?), Mpeketoni, Boni curfew? NASA v. IG of
Police & Others… Pre-2017 elections on plots to deploy military….
283
….This was during the Yellow Vest movement which was a wide civil unrest against the establishment, regarding
the rise in taxes (fuel taxes and lack of accountability of taxpayers money)…See Holly Ellyat (2019) “ellow vests,
blue vests and red scarves — Here’s why the French are protesting,” CNBC, February 12, 2019, at
https://www.cnbc.com/2019/02/01/why-the-french-are-protesting.html (accessed September 15, 2021).
284
James Gant (2020) “Virus triggers African unrest: Riots break out in Johannesburg over food shortages and
Lesotho’s under-fire Prime Minister deploys army to restore order as COVID-19 claims 1000 lives across the
continent-including Nigerian Presidential aide,” Daily Mail Online, April 18, 2020, at
https://www.dailymail.co.uk/news/article-8232649/Virus-triggers-unrest-Africa-Riots-break-Johannesburg-food-
shortages.html (accessed 27/4/2020).
285
….See State on application of Kathumba and Others v. President of Malawi and Others (Constitutional
Reference Number 1 of 2020) [2020] MWHC 29 (03 September 2020).
286
….The Hong Kong Judiciary was viewed as the last line of defence by pro-democracy activists. See Greg Torode
& James Pomfret (2020) “Hong Kong judges battle Beijing over rule of law as pandemic chills protests,” Reuters,
April 14, 2020, at https://www.reuters.com/investigates/special-report/hongkong-politics-judiciary/ (accessed
September 14, 2021).
287
….
288
Oki Ooko Ombaka (1982) “Political justice in Kenya: Prolegomena to an inquiry into the use of legal procedure
for political purposes in post Kenyatta era,” Varfassung und Recht in Ubersee/Law and Politics in Africa, Asia and
Latin America, 393-420.
289
State on application of Kathumba and Others v. President of Malawi and Others (Constitutional Reference
Number 1 of 2020) [2020] MWHC 29 (03 September 2020).

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 “It is the considered view of this court that whilst the executive was well within its powers to
prescribe mitigation and control measures in response to Covid-19 … the measures imposed went
beyond limiting the rights in the … constitution as the impact of the restrictions was to actually
negate the essential content of these rights.”290

It is therefore important to note any policy making by Government during emergencies and wars
must be guided and undertaken within the constitutional limits, where there is likely to be any
violation of fundamental freedoms and human rights.

Some of the relevant provisions under the Constitution of Kenya, 2010 include Arts. 1
(sovereignty of the people), 10 (national values and principles of governance), 37 (Assembly,
demonstration and picketing), 38 (political rights), 58 (state of emergency), 132(4)(d) (functions
of the President including declaration of a state of emergency), 238 (principles of national
security)? and 240 (national security council). 291 These rights are inalienable and only subject to
certain constitutional limitations.

The upshot is that the 2010 constitutional framework sought to entrench the exercise of public
power as a “public trust” and in the public interest by subjecting the exercise of policy making
even during emergencies, to relevant limitations. These include being subjected to the judicial
review, the test of the rule of law, rules of natural justice and whether they satisfy the threshold
under Article 24 which provides the grounds of limitation of fundamental rights and freedoms.

Do courts are faced with at least three (3) questions? First, whether or not to question any
Executive action or omission or intention and threat? 292 Second, whether to question all conduct
in the usual manner?293 Third, to craft appropriate procedures, processes (Art. 159) and remedies
under Art. 23, 159….?

Justice Anthony Mrima in Law Society of Kenya v. Attorney General & Another (2021) was
faced with at least two (2) questions. First, the constitutionality of the constitutionality of Section
5 of the Public Order Act, 2020, which was enacted to give effect various COVID-19
containment measures including the lockdown and curfew restrictions. Second, the legality of the
policy directives given by the National Security Advisory Committee (NSAC) to the Inspector-
General of Police, and adopted by the Cabinet on October 8, 2020.
290
Ibid.
291
See also Chapter 7 on Legislative Power, Structure and Process in Kenya and Africa (state of emergency….)
292
Lord Atkin in Liversidge v. Anderson, “….the law and the Judiciary must speak even in war or revolutions.” Cf.
in the face of arms, the law(yer)s are silent? “inter-arms leges: silent…?” No. Lawyers must always speak, even
during COVID-19 pandemic…. to pursue a balance on life, liberty, security, health and justice
293
See Mr Justice Byles once stated that “the justice of the common law will supply the omissions of the
Legislature.” See Cooper v. Wandsworth Board of Works [1863] 143 ER 414.

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The effect was the selective application of the police force against the suppression of certain
targeted political gatherings under the guise of the enforcement of coronavirus containment
measures. The court made at least three (3) findings. First, Justice Mrima held that section 5 of
the Public Health Act was unconstitutional, and second, quashed all directives and policies
issued by the National Security Advisory Committee (NSAC), and adopted by Cabinet related to
COVID-19 measures. Third, Justice Mrima reiterated that the Inspector General of Police ought
not to take instructions from the National Security Advisory Committee (NSAC).294

What is a revolution in the Kelsenian? Many Afro-Kenyan courts have oft relied on the
Kelsenian concept of revolutionary legality to justify unconstitutional changes of Government
including coup-d’etats. Kelsen fails to distinguish between coups and revolutions since he argues
on an “operative premise . . . that the positive and deliberate destruction of the foundation of the
legal order presumes the intention to found a new state, a new sovereignty.”

Kelsen also states that “it is never the constitution merely but always the entire legal order that is
changed by a revolution.” By this statement, we can extrapolate that a revolution can be that
which derives an old normative constitutional framework of its validity or legitimacy and creates
a new framework which is justified and valid within the prevailing circumstances, whether it is
war, emergency or a coup d’etat.295

Relatedly, Finnis argues that there must be continuity in the laws of a state regardless of the
existence of a revolution. That laws can still exist even after a revolution. He states that “a
revolution is neither a necessary nor a sufficient condition for anything that should be described
as a change in the identity of the state or the legal system” and also acknowledges that indeed, a
formalistic approach to revolutionary situations is invalid since “the reasonableness of justice
and philia politike, which demand legal coherence and continuity and respect for acquired
rights.” According to Finnis, legitimacy is derived from whether a particular grund norm or law
is in the interest of the common good.296

What is a revolution in the Marxian system? According to Marx, a revolution means “dissolution
of the old society” and “constituted by the totality of the (social) relations of production”. At the
center of the Marxian theory of revolution, a revolution is not the literal change of Government
but a socio-economic revolution by the proletariat against the bourgeoise…297

294
Law Society of Kenya v. Attorney General & Another [2021] ekLR.
295
Hans Kelsen (1961) General Theory of Law and State, Anders Wedberg trans.
296
John M. Finnis (1978) “Revolutions and Continuity of Law,” 23, in Oxford Essays in Jurisprudence, AWB
Simpson, 2nd ed.
297
Karl Marx (2013) Manifesto of the communist party, Simon and Schuster.

Page 59 of 87
Marx also makes a distinction between the political revolution and permanent revolution thus:

“Political emancipation is indeed a great step forward. It is not, to be sure, the final form of
universal human emancipation, but it is the final form within the prevailing order of things. […]
In moments of special concern for itself political life seeks to repress its presupposition, civil
society and its elements, and to constitute itself the actual, harmonious species-life of man. But it
can do this only in violent contradiction with its own conditions of existence by declaring the
revolution to be permanent. [...] The political revolution dissolves civil life into its constituent
elements without revolutionizing these elements themselves and subjecting them to criticism.” 298

How have courts addressed cases before, including in ex parte Matovu?299 The Court upheld the
Kelsenian revolutionary legality in upholding that the 1966 Ugandan Constitution was valid after
ousting the 1962 Constitution in the context of a revolution. However, courts have been cautious
in wading into political question doctrines as Justice Udo Udoma warned in Matovu that:

“….any decision by the Judiciary as to the legality of Government would be far reaching,
disastrous and wrong because the question was a political one.”

In Grace Stuart Ibingira, the court held that a writ of habeas corpus is a right granted ex debito
justitiae, and can be limited only where the circumstances permit. The Court of Appeal in
Uganda dismissed the High Court’s argument that deprivation of liberty under the Deportation
Ordinance was permitted in the context of section 19(1)(j) of the 1962 Constitution which only
permitted deprivation of liberty to the extent permitted by law….300

Nonetheless, the Judiciary thus upheld the clearly unconstitutional detention of several cabinet
ministers during the tenure of President Milton Obote due to the fear of the reactions from the
Executive….

In Shaban Opoloto301 (Uganda), Lakanmi (Nigeria),302 and Madzimbamuto (Southern Rhodesia,

Zimbabwe),303 the Kelsenian revolutionary legality concept was upheld that successful extra-
constitutional change of Government can justify the change of constitutions….. The Ugandan
Judiciary in Opoloto upheld the unlawful and unconstitutional dismissal of Opolot, who was then
a Commander of the Uganda army. The court held that the President had the discretion and
prerogative power to appoint and dismiss civil servants at will…

298
Karl Marx (2014) On the Jewish question, Routledge.
299
…. Uganda v. Commissioner of Prisons, ex parte Michael Matovu [1966] 1 EA 514.
300
…. Grace Stuart Ibingira and Others v. Uganda (1966) EA 306; 445.
301
…. Shabane Opoloto v. Attorney General- Uganda (1969) EA 631.
302
…. Lakanmi & Others v. Attorney-General (West) & Others (1970) Vil. 6 NSCC.
303
…. Madzimbamuto v. Lardner Burke.

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Prof Phares Mukasa Mutibwa, a member of the Ugandan Constitutional Commission of 1995
thus noted in his book Uganda Since Independence: A story of Unfulfilled Hopes that:

“The political dispute between Obote and Ibingira and his supporters centred around the control
of UPC and ultimately the very leadership of the country in terms of the political and economic
ideologies that were to be followed. Obote claimed - not without justification - that Ibingira’s
group, which included president Edward Mutesa, and the Buganda government at Mengo, which
also counted on the support and assistance of the Army Commander, Brig Shaban Opolot, wanted
to remove him from power and that plans to this end were in an advanced stage by the end of
1965. No one, let alone Ibingira and his supporters, has denied that they wanted to see Obote and
those who believed in socialist philosophies removed. Their only regret is that they failed.” 304

This has also been applied in the USA, 305 and the UK306? Marbury v. Madison was a locus
classicus on the political question doctrine. Relatedly, the USA Supreme Court in NAACP v.
Button argued that public interest litigation (PIL) is permitted as one of the modes of political
expressions. The general exception has been the application of the justiciability standard to
questions of law and facts to determine whether they fall under the political question doctrine or
not….

How has the Kenyan Judiciary addressed the following emergencies and disasters in terms of
three (3) issues. First, applying and proposing or adapting new substantive laws, rules and
regulations through analogic and dialogic legal reasoning and analysis….? 307 Second, adapting
and proposing rules of evidence and address the emergencies and disasters? Third, adapting or
proposing rules of practice including filing, hearing, delivery of rulings and judgements….?

The emergencies and disasters include, the army mutiny in 1964; coup plot of 1971; coup
attempt in 1982; the 1960s secession (“Shifta”) war between the Kenyan Somalis and Kenya
Government; HIV/AIDS epidemic cases;308 the 2007/08 post-election violence (PEV); Al
Shabaab terror attacks, and the war in Somalia (2011-?);309 demonstrations and protests against
304
Prof Phares Mutibwa (1992) Uganda since independence: A story of unfulfilled hopes, Africa World Press.
305
….Article III of the US Constitution prohibits federal courts from deciding political questions. This is because the
federal courts are deemed as apolitical.
306
….India achieved independence from the UK in what was termed as a revolution, but there was no significant
change (domestically in the UK) even with the enactment of the Indian Independence Act, 1947.
307
….The High Court of Kenya even fashioned structural interdicts as a response to the protection of socio-
economic rights and the right to housing in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 Others;
Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] eKLR. The Supreme Court critiqued the efficacy
of such a remedy post-fact.
308
…. Henry Kiragu Wambuii (2004) The Politics of HIV/AIDS and Implications for Democracy in Kenya,
Dissertations, at https://scholarworks.wmich.edu/dissertations/1117 (accessed September 16, 2021).
309
Cf. General Robert Kariuki Kibochi to lead the Kenyatta succession and Kenya’s withdrawal from Somalia? See
Cyrus Ombati (2020) “New top soldier to oversee handover of power and KDF exit from Somalia,” Standard

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electoral fraud, economic oppression, and poor governance under Kenyatta I, Daniel Moi, Mwai
Kibaki and Kenyatta II….?310

How have courts responded to the Corona virus (COVID-19) in Kenya, 311 South Africa,312
Nigeria, Malawi,313 Uganda, Tanzania, the United Kingdom and USA? The USA Supreme Court
in a split and controversial decision invalidated the COVID-19 regulations of California which
banned indoor church gatherings. The Court however, stated that singing and chanting were
prohibited as they could increases chances of the spread of COVID-19.314
There are numerous issues arising in the context of COVID-19 some of which may be litigated
immediately or well into the future.315 These include proposed labour laws and regulations….316

Digital, May 2, 2020, at https://www.standardmedia.co.ke/article/2001369849/the-powerful-man-in-uhuru-

succession (accessed 6/5/2020). Mary Wambui (2020) “General Kibochi takes over as head of KDF,” Daily nation,
Nairobi, May 12, 2020, at 9.
310
See decisions by Chacha Mwita, G.V. Odunga, Weldon Korir, Patrick Kiage, Mumbi Ngugi, Onguto, Supreme
Court….
311
Law Society of Kenya v. Hillary Mutyambai & Others, Petition No. 120 of 2020 (COVID 025); at page 70 on
(cite and IFLAC)…. “dog-like” burial of Oyugi in Kamaluanga, Ugenya, Siaya County, (2020). See Dicken
Wasonga (2020) “Siaya burial: County distances itself amid criticism,” Daily Nation, April 13, 2020, at
https://www.nation.co.ke/counties/siaya/Siaya-man-burial-sharp-criticism-county-distances/1183322-5522504-
hjrqdyz/index.html (accessed 6/5/2020)…. Any cases on police brutality during curfew? ….Police detention or
quarantine and demand for bribes?....
312
A court ruled that an individual could not go to burry a family member…. See Franny Rabkin (2020) “High Court
refuses application to cross provinces for funeral,” Mail & Guardian, Johannseberg, South Africa, March 28, 2020,
at https://mg.co.za/article/2020-03-28-high-court-refuses-application-to-cross-provinces-for-a-funeral/ (accessed
21/4/2020). Some have demonstrated and litigated against lockdown, forced and self-quarantine, social distancing…
See…
313
Human Rights Defenders Coalition (HRDC) v. Attorney General, High Court of Malawi
314
Jason Breslow & Nina Totenberg (2021) “Supreme Court Rules Against Calif., Doubles Down On Religious
Rights Amid Pandemic,” NPR, at https://www.npr.org/2021/02/06/964822479/supreme-court-rules-against-
california-ban-on-in-person-worship-amid-the-pandemi?
utm_medium=social&utm_campaign=npr&utm_source=facebook.com&utm_term=nprnews&fbclid=IwAR0IHLaP
britfBhvmyCLPlm7ebaFvqGqMZYKxAKL7KWKINlrob1JZMwPQB0 (accessed September 16, 2021).
315
….These include the question of mandatory vaccination for civil servants… See Njoki Kihiu (2021) “Public
Servants Must Be Vaccinated By August 23 or Face Disciplinary Action – Govt,” Capital FM, August 10, 2021, at
https://www.capitalfm.co.ke/news/2021/08/public-servants-must-be-vaccinated-by-august-23-or-face-disciplinary-
action-govt/ (accessed September 16, 2021).
316
Cf. Cyrus Ombati & Roselyn Ombaka (2020) “Return to work for workers who test positive for COVID-19
patients,” Sunday Standard, Nairobi, 3/5/2020, at 19, at
https://www.standardmedia.co.ke/article/2001369951/return-to-work-rules-for-workers-who-catch-virus (accssed
6/5/2020).

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There are at least three (3) issues. First, cases were filed and some decided in Kenya, 317
Malawi,318 and South Africa,319 among others, to question the scope of COVID-19 regulations
and protocols on lockdown, curfew, quarantine, isolation….320

Second, in Kenya, Chief Justice David Maraga321 and the National Council on Administration of
Justice (NCAJ) have issued various and even contradictory practice directives and directions,
respectively in the age of COVID-19.322 These included limiting physical appearance in court
and enhancing online court processes; then upscaling;323 then reversing the upscaling
decision….324

Third, the Law Society of Kenya’s (LSK’s) presidential and council transition to President
Nelson Andayi Havi from President Allen Waiyaki Gichuhi, has largely been effected through
digital platforms, including Facebook, Zoom, Microsoft Teams, Microsoft Video Conference, 325
Google meet, Google video calls, Google Classroom….

Numerous LSK and academic actions were also processed online, including a call for articles for
a special edition of the Advocate magazine on legal aspects coronavirus 2019 (COVID-19)

317
…. Law Society of Kenya v. Attorney General & Another [2021] ekLR.
318
…. Kathumba v. President of Malawi, Constitutional Reference 1 of 2020. The High Court in Malawi held that
the lockdown measures implemented as a containment measure against coronavirus 2019 (COVID-19) pandemic
was unconstitutional as it violated fundamental rights including the freedom of association, religion and conscience,
which are rights that cannot be derogated, except in a state of emergency.
319
High Court of South Africa Mpulamalange Division (per Justice Roelofse AJ (Ag Judges) judgement of
27/3/2020.
320
…. Okiya Omtatah Okoiti & 2 Others v. Cabinet Secretary, Ministry of Health & 2 Others; Kenya National
Commission on Human Rights (Interested Party) [2020] eKLR. The petitioners were against the mandatory isolation
and quarantine of Kenyans in county and National Government health facilities, and the direction that each
individual was to cover their own costs. The court held that such mandatory and quarantine directions, and forcing
them to pay for their upkeep were in contravention of section 27 of the Public Health Act, and only legal where
there is a court order to that effect.
321
Practice Directions for The Protection of Judges, Judicial Officers, Judiciary Staff, Other Court Users and the
General Public from the Risks Associated with the Global Corona Virus Pandemic, Gazette Notice No. 3137, Kenya
Gazette Vol. CXXII—No. 67, Nairobi, 17th April, 2020.
322
National Council on the Administration of Justice (2020) press statement: Statement on the Justice sector
operations in the wake of COVID-19 pandemic..
323
….See the Practice Directions on the upscaling operations of the Employment and Labour Relations Court in
Nyeri and Meru by the Hon Mr, Justice Nzioki wa Makau, Presiding Judge of ELRC at Nyeri.
324
Cf. Sekou Owino (2020) “Virus or no virus, Courts must dispense justice,” Sunday Nation, Nairobi, 3/5/2020, at
33, at https://www.nation.co.ke/oped/opinion/Virus-or-no-virus--courts-must-dispense-justice/440808-5540744-
6swe9uz/index.html (accessed 6/5/2020).
325
See Judiciary (2020) Video Conferencing (VC) Guidelines….See also Judiciary (2021) “Statement by the Acting
Chief Justice of the Republic of Kenya, Hon. Lady Justice Philomena Mbete Mwilu, MGH, on the temporary
closure of the Family division of the High Court at Milimani Law Courts, Nairobi,” March 10, 2021, at
http://kenyalaw.org/kl/fileadmin/CauseList/LN/2021/01/Acting_Chief_Justice_s_Notice_on_Closure_of_Family_Di
vision.pdf (accessed April 11, 2021).

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pandemic in Kenya.326 Some Law Society of Kenya (LSK) Continuous Professional development
(CPD) seminars were also conducted online.

Significantly, President Nelson Havi led the LSK in litigating 327 matters related to Executive and
Chief Justice’s (in)actions on COVID-19.328 Advocate Havi and Vice President Caroline
Kamende Daudi have also led LSK in raising funds for needy or vulnerable LSK members and
Kenyan public.329

Relatedly, President Uhuru Kenyatta vide his press statement on March 26, 2021 enhanced
coronavirus disease 2019 (COVID-19) pandemic containment measures which also declassified
lawyers and advocates as essential service providers. This was successfully challenged by Law
Society of Kenya in April 2021 in LSK v. Cabinet Secretary for Interior and Coordination of
National Government & 3 Others. Justice Anthony Mrima issued a declaratory order exempting
lawyers from restriction of movement and arrest during curfew hours.330

This declassification was a continuation of the denial of Kenyans’ right of access to legal
services by the Executive through its policy measures including Legal Notice No. 57 on the
Public Order (State Curfew) Variation Order, 2020, which did not include legal services as
essential services despite a court order to that effect.331

The then Cabinet Secretary for Interior and Coordination of National Government, Fred
Matiang’i later complied with the High Court’s order on April 12, 2021, by amending Legal
Notice No. 46 to include Advocates of the High Court as the 26th category of essential service
providers (ESPs).332

326
See circulars on transition by President Nelson Andayi Havi and Allen Waiyaki Gichuhi…. March 2020 to April
2021.
327
…See Law Society of Kenya v. Hillary Mutyambai, Inspector General National Police Service & 4 Others;
Kenya National Commission on Human Rights & 2 Others (Interested Parties) [2020] eKLR where the court issued
orders directing the Inspector General of the National Police Service, Hillary Mutyambai to publish guidelines on
police conduct in effecting the Public Order (State Curfew) Order 2020.
328
See…Joseph Wangui (2021) “LSK wants ban on importing private Covid-19 jabs declared unlawful,” Daily
Nation, April 7, 2021, at https://nation.africa/kenya/news/lsk-sues-state-for-blocking-private-covid-vaccines-
3353158 (accessed April 11, 2021).
329
….
330
Annette Wambulwa (2021) “Court issues orders exempting lawyers from curfew,” Star, Nairobi, April 7, 2021, at
https://www.the-star.co.ke/news/2021-04-07-court-issues-orders-exempting-lawyers-from-curfew/ (accessed April
11, 2021); Nairobi High Court Petition No. E110 OF 2021 LSK v. Cabinet Secretary for Interior and Coordination
of National Government & 3 Others [2021] eKLR.
331
Kenya Law Reports (2021) “Inclusion of Legal Services as Essential Services during the Covid-19 Pandemic;
Comparison between Kenya and India,” March 25, 2021, at http://kenyalaw.org/kenyalawblog/inclusion-of-legal-
services-as-essential-services/ (accessed April 10, 2021). See also Legal Notice No. 37 Public Order (State Curfew)
Order, 2021.

Page 64 of 87
Relatedly, the Supreme Court in India in Suo Motu Writ Petition (Civil) No.3 of 2020 in Re:
Cognizance for Extension of Limitation recognized the essence of legal services as being
essential to access to and administration of justice. The court therefore urged the Government to
revise its containment measures.

The question for a balanced approach to lawyering and judicial work is at least four pronged.
First, life and health of judges, magistrates, Kadhis, judicial officers and staff, lawyers, and court
users…. Second, the Constitution, the rule of law, human rights, and constitutional democracy
demand that at any given time, all the three arms of government must check and complement one
another.

And the National Assembly and the Senate recognized this and adopted a balanced minimal
approach while observing the Ministry of Health coronavirus 2019 (COVID-19) pandemic
protocols, and enhanced or upscaled online processes…. Third, in the absence of Judiciary,
Executive, and especially, police brutality, execution, and tyranny increased. Fourth, legal and
judicial services are professional and occupational connect to many. It is also a bread and butter
question. Does the Chief Justice’s abdication mean that judicial and legal services are totally
disreputable?

10.8 Securing Independence, Performance and Accountability of the Judiciary in Kenya

and Africa333
In this section, we analyze interpreted issues and debates regarding the quest for judicial
independence, performance and accountability in Kenya and Africa. The focus is on the debates
that preceded or informed the Building Bridges Initiative (BBI) process and related reform
proposals. These fall into three prongs.

10.8.1 Challenges to the Judicial Functions in Kenya and Africa

What are some of the challenges that affect the performance of judicial functions in Kenya and
Africa?

332
Mary Wambui (2021) “Curfew hours in 5 counties to run until end of May, Matiang’i says,” Daily Nation,
Nairobi, April 14, 2021, at https://nation.africa/kenya/news/matiangi-curfew-hours-in-5-counties-to-run-until-end-
of-may-3362062?view=htmlamp (accessed April 18, 2021).
333
Roles of JSC; Magistrates and judges in Kenya…. Roles of the Chief Justice (CJ); President, Principal, Presiding
Judges….The election of judges and magistrates to Judicial Service Commission (JSC), KMJA ….power to sermon
“any person”. These are discussed in Chapter 9 of CODRALKA 1 above.

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First, the judicial power, function, and performance are anchored in Articles 10 (national values
and principles of governance), 21 (implementation of fundamental rights and freedoms), 22
(enforcement of the Bill of Rights), 23 (judicial remedies), 24 (limitation of rights and
freedoms), 25 (rights that cannot be limited), 38 (political rights), 47 (fair administrative action),
159 (judicial authority) and 172 (functions of JSC) of the Constitution 2010.

These find support in Articles 1(1),334 2(1) and 3(1) of the Constitution 2010 on the sovereign
power of the people, supremacy of the Constitution, and the obligation on every Kenyan to
respect, uphold and fulfill the Constitution.

Let us consider these weighty constitutional questions in the conjuncture of the siege on the
judiciary by the President, Director of Public Prosecutions (DPP) and some legislators and in the
Kenyan quest for the rule of law, due process, human rights, constitutional democracy, social
justice and the public interest.

Article 159(1) states:

“(1) Judicial authority is derived from the people and vests in, and shall be exercised by, the
courts and tribunals established by or under this Constitution.”

This power is based on and supported by Arts 1(1) and 1 (3) which state thus:

“(1) All sovereign power belongs to the people of Kenya and shall be exercised only in
accordance with this Constitution. And “(3) Sovereign power under this Constitution is delegated
to the following State organs, which shall perform their functions in accordance with this
Constitution: ... (c) the Judiciary and independent tribunals.”

The foundation of the judicial function in popular sovereignty has been correctly interpreted by
Justice George Vincent Odunga (“Lord Denning” as many lawyers call him 335) in the following
terms:
“Whereas, under Article 3(1) of the Constitution, every person has an obligation to respect,
uphold and defend the Constitution, pursuant to Article 165(3)(d) of the Constitution, the arm that
is constitutionally mandated with the task of deciding whether anything said to be done under the
authority of this Constitution or of any law is inconsistent with, or in contravention of, this
Constitution is the High Court. To my mind, courts are the best suited institutions to deal with
such matters since they do not owe their allegiance to partisan political interests but to the
Constitution – since we are a constitutional democracy.” 336

334
See the discussions in the sections below….
335
See also the appropriate WhatsApp fora for Nairobi and Kenyan lawyers generally (?)….
336
Justice George Vincent Odunga (2019) “Are courts the culprits?” Nairobi Law Monthly, Nairobi, January 5,
2019.

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That judicial power is intended to enjoy and promote judicial independence (Article 160) and
accountability to the people (Articles 1 and 159). Both are mutually interdependent and
reinforcing. The independence and accountability are institutional, structural or collective (the
judiciary, courts, tribunals, bodies, judges, magistrates, judicial officers, judicial staff…. as a
whole). They are also decisional (individual or personal).

Article 160 is a four-pronged elaboration of judicial independence:337 First, the Judiciary, as

constituted by Article 161, shall be subject only to the Constitution and the law and not be
subject to the control or direction of any person or authority. Second, security of tenure is
guaranteed. Third, guaranteed fair remuneration. Fourth, limited personal immunity (from suits)
regarding decisions made in good faith under Article 160 (2)-(5) with respect to judges. And
fifth, judges and JSC commissioners enjoy security of tenure.338

Judicial independence and accountability are elaborated and mechanisms provided, on the
review, appeal processes, on security of tenure of judges, on discipline and removal of judges
and magistrates and on the Judiciary Fund.

These are provided for respectively under Articles 172(1) and 159(2)(d), 24 (balancing rights and
power), 259 (1) (a), (b), (d); Articles 162, 163, 164, 165, 166, 167, 168, 169, 170, 171 of the
Constitution. These sections are quoted and substantively discussed in Chapter 9 (on Judiciary)
above and Chapter 20 (constitutional commissions and independent offices), including proposals
for reform under the Building Bridges Initiative (BBI) 2019 and 2020 Reports, and the
Constitution of Kenya (Amendment) Bill, 2020.

Art 172(1) states:

“(1) The Judicial Service Commission shall promote and facilitate the independence and
accountability of the judiciary and the efficient, effective and transparent administration of
justice.”

JSC’s core mandate, as discussed above, is five-pronged. 339 First, recommend to the President
persons for appointment as judges. The role and composition of the JSC was debated in March
and April 2021 on the succession of (Rtd) Chief Justice David Maraga. Some candidates for the
Chief Justice’s position, whose candidature was contested by the LSK including Philip Murgor
raised questions with regards to the constitution of, likely bias, conflict of interest, favoritism and
or impartiality of some JSC members including DCJ Philomena Mwilu and Prof Olive Mugenda.

337
See Chapter 9 on Judiciary, above….
338
…. Judicial Service Commission (JSC) Act, 2011….
339
…. See Chapter 9 on Judiciary and Chapter 20 on constitutional commissions and independent offices, and the
debates and proposals for reform in the Building Bridges Initiative (BBI) 2019 and 2020 Reports.

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However, the Chief Registrar of the Judiciary Hon Anne Amadi stated that:

“The only thing that can stop a commissioner from participating is probably a court order or a
commissioner's choice not sit on the panel.”340

Some argued that the critiques by some of the candidates were premature and unfounded, and
probably focused on derailing and frustrating due process in the selection of a successor to
former Chief Justice David Maraga and Prof Justice J.B. Ojwang’.

Second, “review and make recommendations on the conditions of service of judges and judicial
officers, other than their remuneration, and the staff of the Judiciary.” For instance, in its
memoranda to the Building Bridges Initiative (BBI) Taskforce in 2019, …. The JSC proposed
that the National Commission on the Administration of Justice (NCAJ) should be strengthen and
decentralized to the grassroots through the establishment of Court Users Committees (CUCs).
This would promote coordinated service delivery in the judiciary….341

Third, to appoint, receive complaints against, investigate and remove from office or otherwise
discipline registrars, magistrates, other judicial officers and other staff of the Judiciary, in the
manner prescribed by an Act of Parliament.

Fourth, “prepare and implement programmes for the continuing education and training of judges
and judicial officers. And fifth, to advise the National Government on improving the efficiency
of the administration of justice.”342
Remarkably, as part of judicial accountability, the Constitution requires judicial officers to
prioritize substantive justice over procedural technicalities. Article 159(2)(d) stipulates that:

“(2) In exercising judicial authority, the courts and tribunals shall be guided by the following
principles:...(d) justice shall be administered without undue regard to procedural technicalities.” 343

Judicial authority must therefore be exercised in a manner that upholds and promotes
administration of justice, irrespective of encumbrances, which may affect the capacity of the
Judiciary to deliver on its constitutional mandates.

340
Jacinta Mutura (2021) “JSC allows Mugenda to chair panel to pick next Chief Justice,” Standard, Nairobi, April
12, 2021, at https://www.standardmedia.co.ke/kenya/article/2001409353/jsc-allows-mugenda-to-chair-panel-to-
pick-next-chief-justice-amid-protests (accessed April 12, 2021), at 9; Brian Wasuna (2021) “Mwilu to sit in
interviews despite Murgor’s conflict-of-interest call,” Daily Nation, Nairobi, April 12, 2021, at
https://nation.africa/kenya/news/-mwilu-sit-interviews-murgor-s-conflict-of-interest-call-3358610 (accessed April
12, 2021).
341
See part 5(d) of the Memorandum of the Judicial Service Commission ( JSC) to the Building Bridges Initiative
(BBI).
342
….Section 13 of the Judicial Service Commission (JSC) Act, 2011…. See also Chapter 9 and 20 of CODRALKA
1.
343
See Chapters 4, 6, 9, and 10 of CODRALKA 1 . above.

Page 68 of 87
Judicial independence is linked to judicial accountability. And there is consensus from among
diverse scholars and judicial officers from diverse backgrounds. Yash Vyas in “The
Independence of the judiciary: A third world perspective,” writes:

“Independence [of the judiciary] does not mean independence from broad accountability to the
nation or its goals and objectives.”344

And I was once inspired to advance the accountability principle in a presentation to the Institute
of Certified Public Accountants of Kenya (ICPAK) on Judiciary. I argued thus:

“Accountability is one of the cornerstones of good governance and requires the due performance
of tasks or functions by an individual or agency [like the Judiciary]. Such a mandate and
performance are subject to another’s oversight, direction or request that the individual or agency
provides information or justification for its action [or omission]. Thus, accountability exists
where persons in authority [like judges and magistrates] are answerable for their actions and there
is transparency in leadership.”

In similar vein, former Supreme Court Justice JB Ojwang’, a conservative pro-presidential judge
and scholar states in Ascendant Judiciary in East Africa: Reconfiguring the Balance of Power in
a Democratizing Constitutional Order, (2013):
“While the Constitution requires all State organs to perform their part in giving fulfilment to the
Constitution, the ultimate arbiter is the Judiciary, which has unlimited powers of interpretation.
Interpretation of the Constitution and of any law, is far-removed from a condition of violence,
tumult, or hurt to anyone, as the Judiciary’s operations are minutely governed by known law and
procedure; and this justifies the standing of the judicial function as the essential underpinning of
the new constitutional dispensation.”345

This is part of the problematique of the judicial function: the judiciary does not have unlimited
interpretative jurisdiction. As discussed above, it is limited by the accountability principle, by
constitutional and legal provisions, and ultimately popular sovereignty (Arts 1, 159, 160). And
yes, the Judiciary’s lack of accountability has often hurt most Kenyans, especially through unfair
determination of cases on presidential elections or corruption, and through other contrived
orders, rulings or judgments. But the judiciary must be independent.

10.8.2 Separation of Powers as an Aid of Judicial Independence in Kenya and Africa

The second broad attack on the Judiciary relates to separation of powers, especially by President
Kenyatta II and some legislators like the then National Assembly Jubilee’s Majority Leader
Aden Duale and the then Senate Majority Leader Kipchumba Murkomen. Murkomen. Aden
344
Yash Vyas (1992) “The independence of the Judiciary: A Third World perspective,” Vol. 11, Third World Legal
Studies, 127-177.
345
Yash Vyas (1992) “The Independence of the Judiciary: A Third World Perspective,”  Vol. 11, Third World Legal
Studies, 127-177. My emphasis.

Page 69 of 87
Duale and Kipchumba Murkome later seemed to (belatedly?) recognize judicial independence,
only when some of their political associates were under police scrutiny and arrest.346

Some have argued that separation of powers means that the Legislature is supreme on law
making, the Executive in administration and execution of the law, and the Judiciary on
interpretation of the law. And that separation of powers as well as the “political question”
doctrine restrain the Judiciary from hearing or deciding matters which belong to the two political
branches.347

President Kenyatta II, Mr Aden Duale and others argued that separation of powers was the basis
of judicial “restraint.” To them, this negated judicial “activism” and thus permitted presidential
and Executive imperialism and impunity, as well as tyranny and overreach, respectively.

For instance, in a dissent in the Presidential Election Petition No 1, 2017, Raila v. IEBC and
Others,348 Justice (Rtd) JB Ojwang’ argued counter-textually (contra Article 140 of the
Constitution of Kenya, 2010) that the Supreme Court had no power under the separation of
powers doctrine to determine presidential elections.349

Following the Supreme Court nullification of his “election,” President Uhuru Kenyatta argued
rhetorically that “four judges” could not overturn the decision of “40 million” Kenyans. He then
threatened to “revisit” the judiciary and judges whom he called wakora (or crooks). And soon
enough, the Deputy Chief Justice (DCJ) Philomena Mwilu was arrested even as President
Kenyatta II and Mr Aden Duale continued to harangue, ethnically profile some (identified)
judges and magistrates.350

In the same vein, some legislators claimed separation of powers and ouster of the court’s
jurisdiction or power on important issues such as section 11 of the Parliamentary Powers and
Privileges Act (PPA) of 2017.351
346
….These include Hon Oscar Sudi who was arrested for incitement, and Hon Rigathi Gachagua who was accused
of money laundering, conspiracy to commit fraud of upto KES 27.4 million of Nyeri County. See Richard Munguti
(2021) “Gachagua business associates released on bail in fraud case,” Business Daily, Nairobi, August 3, 2021, at
https://www.businessdailyafrica.com/bd/economy/gachagua-business-associates-released-on-bail-in-fraud-case-
3497620 (accessed September 16, 2021).
347
They are partly called political branches because the top officials are elected and are expected to govern through
political compromises in a compromise to the strict legal or judicial structures of the judicial processes…
348
It was a 4-2 decision: David Maraga CJ, Philomena Mwilu, DCJ, Smokin Wanjala, SCJ and Isaac Lenaola, SCJ.
The dissent was by JB Ojwang’ and Njoki Ndung’u SCJ.
349
…. Presidential Election Petition No. 1, 2017, Raila v. IEBC and Others. 1-226 ….
350
….Kevin Cheruiyot (2021) “Uhuru’s constant threats to Judiciary must stop - Linda Katiba,” Star, Nairobi, June
3, 2021, at https://www.the-star.co.ke/news/2021-06-03-uhurus-constant-threats-to-judiciary-must-stop-linda-katiba/
(accessed September 16, 2021).
351
….In Apollo Mboya v. Attorney General & 2 Others [2018] eKLR, Justice Mativo held that section 3, 7, and 11
of the Parliamentary Powers and Privileges Act (PPA) which sought to insulate MPs’ actions from the jurisdiction
of courts, was unconstitutional as it contravened fair administrative action (Art. 47), access to justice (Art. 48) and

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The section read:

“No proceedings, elections or decision of Parliament or the Committee of Powers and Privileges
acting in accordance with this Act shall be questioned in any court.” 352

The Legislators had sought to immunize or to insulate themselves against any form of
accountability for the decisions and bills they pass. Section 11 was nullified by the High
Court….

And in some cases where the Judiciary or specific judges and magistrates have interpreted,
construed or enforced the law, the National Assembly (NA) has responded in kind by
unconstitutionally, illegally, unlawfully, unreasonably and irrationally reducing the budget of the
Judiciary and Judicial Service Commission (JSC). For instance, the Judiciary requested about
KES 31.2 billion in the 2017/2018 budget but the National Assembly cut this to only KES 14.8
billion.353

And President Kenyatta II later purported to allocate KES 17.3 billion.354 Was President Kenyatta
seeking presidential legitimacy and supremacy vis-a-vis the Judiciary and the budgetary process
that is supposed to be participatory, consultative and consensual under chapter 12 of the
Constitution?355 Or was it a populist stance to delegitimize the Judiciary and elevate the President
as the do-gooder? Happily, the then Chief Justice David Maraga partially responded through soft
politics by calling it what it was: a ‘strangulation of the Judiciary.’

Maraga’s predecessor, Chief Justice Hon Martha Koome rather, adopted a diplomatic stance to
mend the relationship between the Executive and the Judiciary. This was clear from her
ambivalent opposition to President Kenyatta II’s appointment of only 34 judges to the Court of
Appeal, ELRC and the ELC, from the 41 judges nominated by the JSC.356 This was debated in
the context of her opposition to the proposed petition by Katiba Institute against President
Kenyatta II’s ‘cherry picking” of judges.357

usurps the court’s role as the primary guardian of the Constitution.

352
My emphasis.
353
….Maurice Kiruga (2019) “Kenya’s judiciary budget restored after outcry: “We are even unable to pay for Wi-
Fi,” The Africa Report, November 8, 2019, at https://www.theafricareport.com/19873/kenyas-judiciary-budget-
restored-after-outcry-we-are-even-unable-to-pay-for-wi-fi/ (accessed April 11, 2021).
354
….Judiciary (2019) “Statement by Chief Justice David Maraga on Judiciary Budget cuts,” November 4, 2019, at
https://www.judiciary.go.ke/statement-by-chief-justice-david-maraga-on-judiciary-budget-cuts/ (accessed April 11,
2021).
355
See Chapter 7 on Legislative Power, Structure and Process in Kenya and Africa and Chapter 8 on Executive
Powers and functions in Kenya and Africa: Concepts, Theory, History and Practice…. above.
356
Frankline Mbogori (2021) “Did Martha Koome Negotiate away the Independence of the Judiciary?” Nairobi Law
Monthly, July 26, 2021, at https://nairobilawmonthly.com/index.php/2021/07/26/did-martha-koome-negotiate-away-
the-independence-of-the-judiciary/ (accessed September 16, 2021).
357
See Ben Sihanya in Brian Otieno (2021) “Lawyers and civil society challenge Uhuru’s decision to drop judges,”
Standard, Nairobi, June 5, 2021, at https://www.standardmedia.co.ke/national/article/2001414818/lawyers-and-

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Samuel Issacharoff observes in Fragile Democracies: Contested Power in the Era of
Constitutional Courts that:

“Whereas the judiciary cannot claim Herculean wisdom nor attempt to engage at a first order
levels the arguments for greater democratic legitimacy of the political branches, Courts have
rightly emerged as the stop gap protections to two of the classic disabilities of democracy:
electoral legitimacy and secondly, accountability.”

Courts must therefore act prudently to protect constitutionalism, rule of law, and democracy
through bold judicial decisions.

Also, as discussed above, and especially under Article 160 (independence of the Judiciary),
separation of powers must always be read together with checks and balances. “Political question”
is not textually supported. And it rests on a narrow a historical conceptualization of “politics.”358

The Judiciary has the power to settle or resolve all disputes subject only to the people, the
Constitution and the law. The Judiciary has jurisdiction to decide substantive issues (or on merit)
and review the process where the President, the Executive, the Legislature (National Assembly
(NA), Senate, County Assembly) or lower courts, tribunals, and bodies have not followed the
Constitution, the law or rules and regulations governing their own procedures. For instance,
Justice Mohamed Warsame was elected by Court of Appeal Judges to join the JSC under Art
171(1) but President Kenyatta II refused, neglected or failed to appoint him as required by law.

In fact, President Kenyatta II and some Jubilee legislators wanted him vetted by the National
Assembly which acted as President Uhuru Kenyatta’s rubber stamp. Progressive Kenyan lawyers
and even the LSK argued that section 15(2) of the Judicial Service Act, 2015 was
unconstitutional on at least three (3) grounds. First, this was because the stated provision
purported to give the President a role the Constitution had not assigned him regarding persons
elected pursuant to Article 171(2) (b) (c) (d) (f) and (g) of the Constitution. Second, it also
amounted to an unlawful exercise of state authority contrary to the Constitution. 359 Third, that it
is a threat to the independence of the Judiciary.360

Relatedly, President Kenyatta II utilized every opportunity to secure JSC Commissioners on a

tribal basis so as to control the Judicial Service Commission (JSC). Critics argued that in a JSC

civil-society-challenge-uhurus-decision-to-drop-judges (accessed June 7, 2021).

358
See Chapters 1, 5, 9, and 10 on politics; politicization of the administrative Judiciary, politicization of
Legislation; juridification of politics; judiciary, judicialization of politics…. See also “political justice”…. Oki
Ooko-Ombaka (1982) “Political Justice in Kenya: Prolegomena to an inquiry into the use of Legal Procedures for
Political purposes in Post-Kenyatta era,” Verfassung und Recht in Übersee/Law and Politics in Africa, Asia and
Latin America, 393-420, op. cit..
359
In Law Society of Kenya v. Attorney General & Another; Justice Mohamed Abdulahi Warsame & Another…
360
See Chapters 1, 2, 3, 4, 6 of CODRLKA 1…. on Tribes and Tribalism; Law Society of Kenya & Another v.
National Assembly of the Republic of Kenya & 3 Others [2018]….

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of eleven (11) members in the 2016-2020 period, four (4) were Kikuyu, and two (2) of these
were “public representatives” while the other two (2) included the Attorney General Paul Kihara
Kariuki, and one Law Society of Kenya (LSK) elected member, Ms Mercy Deche.

Also, until the appointment of Prof Margaret Kobia as a Cabinet Secretary (CS), there were a
total of five (5) commissioners from the Kikuyu tribe vis-à-vis 42-75 Kenyan tribes.361

President Kenyatta II had declined to swear in Justice Mohamed Warsame who was re-elected to
represent the Court of Appeal in the JSC. Significantly, in Law Society of Kenya v. Attorney
General & Another; Justice Mohamed Abdulahi Warsame & Another, High Court Justice
Chacha Mwita ordered the then Chief Justice David Maraga and JSC to facilitate Justice
Warsame to take his position at the JSC.362

Thus, Justice Chacha Mwita of the Constitutional and Human Rights Division ruled on
18/1/2019 that an administrative action such as the President’s appointment could hold a
constitutional process hostage.

Justice Mwita held that:

“The President’s action has been challenged as not founded on any legal pedigree and the court
has found the action to be in violation of the constitution and the law which makes it invalid, with
the consequence that the 1st interested party and all those concerned can ‘safely disregard it,’ so
that an administrative act is not allowed to frustrate a constitutional process.” 363

Further, Justice Chacha Mwita elaborated:

“In that regard, it is this court’s view that the 1st interested party having been elected as required
by the constitution and the law, but the President has failed to perform his duties as required by
law without constitutional or legal justification, the court should grant an appropriate relief that
should deem the 1st interested party to have been appointed to enable him take his position in the
Commission to representative [sic: as representative] of Judges of the Court of Appeal. This view
is informed by the fact that, it is not the President’s act of appointment that makes the 1st
interested party a commissioner but his election.” 364

The judge ruled that Justice Warsame ought to take his position in JSC immediately. This was
the case since Justice Mohammed Warsame was part of the JSC panel that interviewed
applicants for the Chief Justice post in 2021.

361
See discussions in Chapters 2, 3, 4 and 6 on pan-Thaguci, pan-Kikuyu, pan-Kalenjin, pan-Luo, pan-Kikuyu-
Kalenjin political economy in Kenya….
362
Law Society of Kenya & Another v. National Assembly of the Republic of Kenya & 3 Others [2018] eKLR….
363
Ibid. My emphasis.
364
Law Society of Kenya & Another v. National Assembly of the Republic of Kenya & 3 Others [2018]. Cf. the
technicalities of swearing in a rigged in President vis-a-vis people’s presidents in Kenya and Africa….

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In an earlier (related) petition in Law Society of Kenya v. National Assembly (2018), Justice
Mwita stated thus on the independence of Judiciary:

“The people of Kenya made a deliberate decision on how they wanted JSC constituted and its
members appointed. This was intended to guarantee independence to JSC and by extension to the
Judiciary. Independence of the Judiciary cannot be delinked from that of JSC because Article
172(1) of the Constitution mandates JSC to promote and facilitate independence of the
Judiciary. JSC cannot do so if it is not independent. Subjecting persons duly elected by peers as
required by the Constitution to approval by the National Assembly will not only expose them to
ridicule, possible political patronage and horse trading, but would also defeat the spirit of the
Constitution, thus interfere with independence of JSC and ultimately, that of the Judiciary.”365

Thus the “political question” doctrine does not apply under Kenya’s constitutional text and
intendment or spirit as well as Kenya’s constitutional and legal sociology or constitutional and
legal method and system at all or as it does on defence and foreign policy matters in the US.

Relatedly, the Judiciary, judges and magistrates have also helped check legislative tyranny and
overreach through unconstitutional laws in at least three (3) matters. First, the Security Laws
Amendments in 2014. Some of the supporters of the Security Laws (Amendment) Bill were,
remarkably, among the first to cry foul for its draconian application, with some alleging that it
was used as tool for political witch-hunt.

Second, the Legislature’s failure to play the oversight role on the President and the Executive.
And third, by judicially and politically responding to attacks by the President, the Executive
generally and some legislators.

The Judiciary, specific judges and magistrates should continue to question presidential and
Executive (ODPP and the DCI’s) imperialism and impunity. This is especially with regard to the
judicial function or role even in politicized Executive corruption cases. These include, the
National Youth Service (NYS), and the Kenya Power and Lighting Company (KPLC), 366
Standard Gauge Railway (SGR),367 the Kenya Pipeline Corporation (KPC),368 and the non-

365
Paragraph 93 of the Judgment in Law Society of Kenya & Another v. National Assembly of the Republic of Kenya
& 3 Others, Petition 106 & 119 of 2018, Nairobi, High Court (Coram….).
366
…. Okiya Omtatah Okoiti & Another v. Kenya Power and Lighting Company Limited (KPLC) & 4 Others [2020]
eKLR. The petitioner argued inter alia, that KPLC was a monopoly in the energy market, and had failed to protect
consumers. Justice referred the dispute to the Energy Regulatory Commission as the relevant adjudicating medium.
See also Jerotich Sei (2018) “Power struggles: Unmasking the thieves behind the KPLC heist,” The Elephant, at
https://www.theelephant.info/topic/kenya-power/?print=pdf-search (accessed April 22, 2021).
367
….See also Edwin Mutai (2021) “MPs take Swazuri team to task in Sh12bn SGR payout,” Business Daily,
Nairobi, March 30, 2021, at https://www.businessdailyafrica.com/bd/economy/mps-take-swazuri-task-in-sh12bn-
sgr-payout-3341224 (accessed April 11, 2021); Brian Ocharo (2021) “SGR Compensation suit for Kwale land to
proceed,” Daily Nation, Mombasa, April 7, 2021, at https://nation.africa/kenya/counties/kwale/sgr-compensation-
suit-for-kwale-land-to-proceed--3352068 (accessed April 10, 2021).
368
….Edwin Mutai (2020) “Lawyer Murgor wants ex-AG Githu locked out of Kenya Pipeline case,” Business Daily,
Nairobi, November 18, 2020, at https://www.businessdailyafrica.com/bd/corporate/companies/murgor-wants-ex-ag-

Page 74 of 87
prosecuted matters like Eurobond, (SGR), MAfya (or Health Ministry), or KES 10,000 bribes in
the National Assembly,369 among others.370

10.8.3 Political Engagement for Judicial Independent Accountability and Reforms in

Kenya and Africa
Third, and partly based on the foregoing and emerging context, there is need for appropriate
political engagement by the Judiciary, including courts, tribunals, judges, magistrates as well as
the leadership through the Chief Justice (CJ), Deputy Chief Justice (DCJ), Judicial Service
Commission (JSC), Kenya Magistrates and Judges Association (KMJA), National Council on
Administration of Justice (NCAJ), Law Society of Kenya (LSK), the private sector, and civil
society organisations (CSOs).

The two (2) key reasons are that the judicial power, function, performance and even survival are
political matters. They are about decision making; about making choices where there are
competing interests and options, and especially questions presidential and Executive power. It is
thus political in the positive sense; politics of capital “P”. Not the politics of small “p”: not the
politics of intrigue, fitina, propaganda, or uchochezi (subversion?).

As Yash Vyas states:

“Judges are parts of the machinery of authority within the state and as such cannot avoid
performing political functions.”

He adds:

“In supporting the institutions and stability of the system of government, the judges do perform a
political function. The judiciary is not only a legal but also a government institution and therefore
political in nature.”

The second reason is because in the 2015-2021 period President Kenyatta, the Executive
(especially the Director of Public Prosecutions (DPP) and the Director of Criminal Investigations
(DCI)), some legislators and some lawyers engaged in high octane politics to discredit and
delegitimize the judiciary, judges and magistrates.

As human rights activist Maina Kiai argued, the intention was to turn the spotlight away from the
impunity in the Presidency and the Executive as well the Executive’s actions and omissions that
perpetuated corruption. To what effect?
githu-out-of-kenya-pipeline-case-3165560 (accessed April 11, 2021);
369
….Kevin Rotich (2021) “The House of graft? Kenyans believe half of MPs corrupt,” Business Daily, Nairobi,
January 11, 2021, at https://www.businessdailyafrica.com/bd/data-hub/the-house-of-graft-kenyans-mps-corrupt-
3253038 (accessed April 19, 2021).
370
These were generally discussed under Chapter 3 of CODRALKA 1 on Constitutional values and principles in
Afro-Kenyan constitutional democracy.

Page 75 of 87
Maina Kiai stated:

“But there is also a hidden agenda in discrediting the courts: It prepares the public to be
sufficiently malleable to accept a particular woman as Chief Justice once Deputy Chief Justice...
is dispensed with and Chief Justice David Maraga retires. For this particular woman has proven a
diligent protector of the Gikuyu mafia, no matter the law or facts.” 371

And some said three (3) answered to that identity of the “CJ presumptive….” 372 Another
objective could be to secure an opportunity to reconstruct the Judiciary to be subservient to the
President through a constitutional amendment. Thus, soft politics and “fighting or playing
dirty”373 becomes relevant through what former Chief Justice Dr Willy Mutunga calls the role of
the Judiciary as an “institutional political actor.”374

Judicial philosophy, theory, vision, policy, strategy, tactics and response to presidential and
parliamentary political power play (5Ps) should of necessity be grounded on the key issues
discussed earlier on the judicial power, function, independence and accountability in this chapter
and Chapter 9.

Judicial decisions must be grounded on the Constitution and the law in a political and technical
sense in the context of Arts. 1 (sovereignty of the people), 2 (supremacy of the Constitution), 3
(defence of the Constitution), 159 (judicial authority), 160 (independence of the Judiciary), 172
(functions of the Judicial Service Commission)….These include direct application of the
Constitution and the law, or valid derivation from the constitutional, juridical and regulatory
texts, spirit and intendment.375

To be sure, former Chief Justice Maraga responded to attacks on the Judiciary on one important
occasion, he stated:

“If, for whatever reason, you think you might not win a case, then if you bring it to court you
know the result. It will be dismissed.”376

371
Maina Kiai (2019) “We can have inclusiveness without changing the Constitution,” Standard Digital, Nairobi,
January 20, 2019, at https://www.standardmedia.co.ke/article/2001310043/we-can-have-inclusiveness-without-
changing-the-constitution (accessed 21/4/2020).
372
….See Chapter 9 on debates with regard to the succession of the (Rtd) Chief Justice David Maraga…
373
Willy Mutunga (2020) “People power in the 2010 Constitution: a reality or an illusion?” The Elephant, Nairobi,
at https://www.theelephant.info/op-eds/2020/03/06/people-power-in-the-2010-constitution-a-reality-or-an-illusion/
(accessed 16/4/2020).
374
Willy Mutunga (2020) “People power in the 2010 Constitution: a reality or an illusion?” op, cit.
375
….See Article 1 (sovereignty of the people), 2 (supremacy of the Constitution), 3 (defence of this Constitution),
159 (judicial authority), 160 (independence of the Judiciary), and 172 (functions of the Judicial Service
Commission).
376
Abiud Ochieng and David Mwere (2019) “Maraga tells critics to stop accusing Judiciary of laxity,” Daily Nation,
Nairobi, January 15, 2019, at https://mobile.nation.co.ke/news/Maraga-tells-critics-to-stop-accusing-Judiciary-of-
laxity/1950946-4935190-125spd2/index.html (accessed 16/4/2020).

Page 76 of 87
He elaborated:

“If you bring a hopeless case, we will say in our judgment why we are dismissing it, and the
public will know where to place the blame. If you bring us a strong case and we are the ones
playing monkey business, the public will also see.”377

And during the anti-corruption conference in Nairobi on 25/1/2019, the Chief Justice boldly
responded thus:

“Since I am in the dock, I am going to be very candid. The war against corruption is not going to
be won by blame games by people who are involved, and some are here, hiring professional
bloggers to demonise the Judiciary”....378

President Kenyatta, the Director of Public Prosecutions (DPP), Director of Criminal

Investigations (DCI) and other officials in the Executive had reiterated attacks on Judiciary,
blaming it for the failure in the fight against corruption. The Chief Justice (CJ) appropriately
clarified on the separation of powers, checks and balances and accountability in the adversarial
(as opposed to inquisitorial) justice system:

“...The judiciary doesn’t go out there to look for cases. Those people who are aggrieved come to
us, we must hear them and if they have no basis dismiss them and uphold them if they have a
basis.”379

The Judiciary, on the other hand, has also blamed the DCI and the DPP of not supplying
sufficient evidence to the courts to procure convictions. This is in addition to what the Chief
Justice termed as “poorly drafted and duplicated charges.” 380 According to the then Chief Justice
David Maraga, some cases took long to take off due to the number of charges and accused
persons381 contained in one single charge sheet.382

377
Ibid.
378
Ibid…. The Chief Justice spoke during the swearing-in of the Ethics and Anti-Corruption Commission Chief
Executive Officer Twalib Mbarak at the Supreme Court in Nairobi, where he also advised that investigative agencies
must be thorough if they expect convictions.
379
Abiud Ochieng and David Mwere (2019) “Maraga tells critics to stop accusing Judiciary of laxity,” Daily Nation,
Nairobi, January 15, 2019, at https://mobile.nation.co.ke/news/Maraga-tells-critics-to-stop-accusing-Judiciary-of-
laxity/1950946-4935190-125spd2/index.html (accessed 16/4/2020).
380
Nancy Agutu (2019) “Maraga hits back at DPP, DCI over prosecution cases,” Star, Nairobi, January 25, 2019, at
https://www.the-star.co.ke/news/2019-01-25-maraga-hits-back-at-dpp-dci-over-prosecution-cases/ (accessed
25/3/2020).
381
Or numerous charges and numerous accused persons. For instance, the National Youth Service scandal cases, the
Kenya Revenue Authority case, and the Goldenberg case.
382
Nancy Agutu (2019) “Maraga hits back at DPP, DCI over prosecution cases,” Star, Nairobi, January 25, 2019, at
https://www.the-star.co.ke/news/2019-01-25-maraga-hits-back-at-dpp-dci-over-prosecution-cases/ (accessed
25/3/2020).

Page 77 of 87
A related case regarding institutional rivalry was the case against former Managing Director of
Kenya Ports Authority, Daniel Manduku. In this instance, Manduku was arrested and arraigned
in court by the DCI only for the DPP to dispute the charge sheet.383

Second, and to be sure, the interpretation, construction, execution, administration, application

and enforcement of the Constitution and the law must be pro-people, founded as it must be on
popular sovereignty (Articles 1(1), 1(3)). Third, judicial decisions must be founded on judicial
integrity (Arts 10, chapter 6, Art 232).

The alternative is direct or indirect judicial participation, collusion, connivance or acquiescence

in corruption through cartels controlled by judicial officers, politicians, the Executive or lawyers
and will compromise judicial accountability and even independence at two levels.

First, JSC would have to discipline, remove (like magistrates) or recommend the removal of the
officers (like judges). Second, such corruption or lack of integrity has given and will give the
President, Executive and some legislators the basis to delegitimize or discredit the Judiciary and
judicial function, the motives notwithstanding.

Judges and magistrates must, as William Shakespeare the English dramatist and poet stated, be
like Ceasar’s wife, “blameless and without blemish.”384 Where there are integrity challenges,
judges and magistrates, and the Judicial Service Commission (JSC) must address these
immediately to restore integrity and avoid eternal condemnation as ruled by High Court Justices
Joel Ngugi, Mumbi Ngugi, and G. V. Odunga 385 in Mumo Matemu v. Trusted Society of Human
Rights Alliance (2012).386

Significantly, judicial corruption and lack of integrity have sometimes accused the public to be
ambivalent on (the need for) judicial independence. And some have questioned judicial
accountability. Hence the Judiciary may lose the people when the Judiciary are pro Legislature,
or where they lack integrity, or where they are “more executive minded than the executive” as
Lord Atkin opined in Liversidge v. Anderson.387

Some of the challenges to the Judiciary and JSC relate to fair and equitable rulings and
judgments; consistency in legal method, especially on precedent and stare decisis. This is
383
Sara Okuoro (2020) “No charge registered: KPA MD Daniel Manduku released,” Standard Digital, Nairobi,
March 3, 2020, at https://www.standardmedia.co.ke/article/2001362738/court-orders-release-of-kpa-md-daniel-
manduku (accessed 25/3/2020).
384
….See also the discussions in Chapter 9 on impartiality and independence of judges..
385
Name the other judges in the text. Mumo Matemu v. Trusted Society of Human Rights Alliance (2012) eKLR,
Petition No. 229 of 2012.
386
Cf Mumo Matemu v. Trusted Society of Human Rights Alliance (2013) eKLR, Civil Appeal No. 290 of 2012; Cf
Mumo Matemu v. Trusted Society of Human Rights Alliance (2014) eKLR, Civil Application No. 29 of 2014.
387
Liversidge v. Anderson [1941] UKHL 1 Quote Lord Atkin and the case fully Ben Sihanya (2019) “Securing
judicial independence and accountability in Kenya,” Vol 10, Issue 11, Nairobi Law Monthly, 38-43….

Page 78 of 87
especially on election cases, corruption cases and cases where the President has a personal or
institutional interest in the JSC membership, including election of the judicial and Law Society
of Kenya (LSK) representatives.388

And critically, JSC would have to decide or influence the decision on vacancies in the Chief
Justice (CJ)’s office,389 and in the office of the Justices of the Supreme Court arising from
retirement, or arising from presidential or executive “revisit.”390

The JSC also nominated judges of the Court of Appeal and the Employment and Labour
Relations Court (ELRC), and the Environment and Land Court (ELC) in the period of July and
August 2019.391….. President Kenyatta refused to gazette the 41 judges and the A-G argued in
Law Society of Kenya v. A-G392 in the High Court that some of the judges had integrity issues or
questions….. The Head of Public Service Mr Joseph Kinyua was also involved in this Judges
case.393

The Judicial Service Commission (JSC) argued that the Executive had been asked for comments
pending the interviews and had not submitted any…. A threejudge bench of the High Court
empaneled by the then Chief Justice David Maraga returned a unanimous verdict that President
Kenyatta’s refusal to gazette the Judges was unconstitutional. The A-G indicated an intention to
appeal….394 President Kenyatta II later appointed only 34 judges out of the 40 judges
recommended by the JSC in July 2021.

The arrest of Justice Agrrey Muchelule and Justice Said Juma Chitembwe on allegations of graft
in 2021 sparked fresh debate on the question of impartiality and judicial independence in the

388
…. Frankline Mbogori (2021) “Did Martha Koome Negotiate away the Independence of the Judiciary?” Nairobi
Law Monthly, July 26, 2021, at https://nairobilawmonthly.com/index.php/2021/07/26/did-martha-koome-negotiate-
away-the-independence-of-the-judiciary/ (accessed September 16, 2021).
389
David Maraga retired in January 2021after having proceeded on terminal leave on December 11, 2020…. JB
Ojwang’ retired in early February 2020… Justice Mohamed Ibrahim had health and age challenges….
390
In Philomena Mbete Mwilu v. Director of Public Prosecutions & 3 others; Stanley Muluvi Kiima (Interested
Party); International Commission of Jurists Kenya Chapter (Amicus Curiae) [2019] eKLR , Petition 295 of 2018 the
court ruled that any reasonable person would conclude that the DCJ was being prosecuted pursuant to President
Kenyatta’s threat to revisit, probably because DPP and DCI are branches of the Executive headed by President
Kenyatta; President Kenyatta still pursued the “revisit” against the Deputy Justice Philomena Mwilu through to
2020….
391
Law Society of Kenya v. Attorney General & 2 Others (2016) eKLR, Petition No. 313 of 2014; …Adrian
Kamotho Njenga v. Attorney General; Judicial Service Commission & 2 Others (Interested Parties) (2020) eKLR,
Petition No. 326 of 2019.
392
Law Society of Kenya v. Attorney General & 2 Others (2016) eKLR, Petition No. 313 of 2014.
393
….Ibid.
394
Adrian Kamotho Njenga v. Attorney General; Judicial Service Commission & 2 Others (Interested Parties)
(2020) eKLR, Petition No. 326 of 2019. Status of Appeal?

Page 79 of 87
contemporary Afro-Kenyan constitutional democracy and political economy. Shimon Shetreet
notes in Judicial Independence and Accountability: Core Values in Liberal Democracies that:

“An independent and impartial judiciary is fundamental to the existence and operation of a liberal
democracy.......The modern conception of judicial independence is not confined to the
independence of an individual judge and to his or her personal and substantive independence. It
must include the collective independence of the judiciary as an institution. Likewise, judicial
independence should not be perceived only in terms of shielding the judge from executive
pressures or legislative interferences. It must also encompass internal independence, namely, the
independence of the judge from his or her judicial colleagues or superiors.”
The question of judicial independence vis-à-vis the need for enhanced accountability of judges
and magistrates is therefore a critical subject for judicial reform….This is because just as citizen
responsibility is fundamental in a constitutional democracy, so are judges expected to be
responsible for their actions and omissions….

10.9 Contempt of Court 395 Sub Judice, Fusion of Powers and Impunity v. Rule of Law… in
Kenya and Africa
Under this section, I address at least three (3) fundamental questions. First, what is contempt of
court and or Sub Judice? Second, what is the constitutional and legal basis for contempt of court
and sub judice in Afro-Kenyan constitutional democracy and sustainable development? 396 Third,
what are the impacts of these principles on administration of justice, rule of law, human rights,
democracy and judicial authority?

Contempt of court and sub judice are increasingly being important. They relate to the authority
and dignity of courts.

The Contempt of Court Act defines contempt under sec. 4 as follows:

“4. (1) Contempt of court includes- Contempt of Court. civil contempt which means willful
disobedience of any judgment, decree, direction, order, or other process of a court or willful
breach of an undertaking given to a court; criminal contempt which means the publication,
whether by words, spoken or written, by signs, visible representation, or otherwise, of any matters
or the doing of any other act which scandalizes or tends to scandalize, or lowers or tends to lower
the judicial authority or dignity of the court; prejudices, or interferes or tends to interfere with, the
due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends
to obstruct the administration of justice.

Section 4 of the Contempt of Court Act continues:

395
Cf. authority, dignity, integrity of judiciary, courts….what of National Assembly? Senate? County Assembly?
396
What is the economic or financial cost of contempt of court? Absence or limited rule of law….?

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 “(2) In any case not relating to civil or criminal proceedings as contemplated under subsection
(1), an act that is willfully committed to interfere, obstruct or interrupt the due process of the
administration of justice in relation to any court, or to lower the authority of a court, or to
scandalize a judge, judicial officer in relation to any proceedings before the court, on any other
manner constitutes contempt of court.”397

The Black’s Law Dictionary (Ninth Edition) defines contempt of court as:
“Conduct that defies the authority or dignity of a court. Because such conduct interferes with the
administration of justice, it is punishable usually by fine or imprisonment.”

Thus, contempt of court is a crime, 398 a civil wrong,399 and is generally punishable by the court.
The most common example of contempt is the disobedience of a court order.

In Halsbury’s Laws of England, it is stated:

“It was the plain and unqualified obligation of every person against or in respect of whom an
order was made by a court of competent jurisdiction to obey it unless and until it was discharged
and disobedience of such an order would as a general rule result in the person disobeying it being
in contempt and punishable by committal or attachment…. 400 an application to court by him not
being entertained until he had purged his contempt…. ”401

Contempt of court proceedings are necessary for the rule of law and administration of justice to
be effective and efficacious in securing compliance with the orders of the court. In the case of
Johnson v. Grant, (1923) at 790 Lord President Clyde stated that:

397
Contempt of Court Act, No. 46 of 2016.The Act was declared unconstitutional by Justice Mwita in Kenya Human
Rights Commission v. Attorney General & Another (2018) eKLR, Constitutional Petition 87 of 2017. The court held
that there had been lack of public participation before and during its enactment contrary constitutional values,
principles and objects.
398
…. JRL Milton (1968) “Defining Contempt of Court,” 85 SALJ 387, defined contempt as “the concept of contempt of court is
one which bristles with curiosities and anomalies. Of the various examples which may be chosen to illustrate this point perhaps
the most striking is that of the classification of contempt of court into civil contempt (or contempt in procedure) and criminal
contempt.”
399
….Ibid.
400
E.g…most courts including the High Court in Republic v. Principal Secretary, Ministry of Defence Ex-Parte
George Kariuki Waithaka [2018] eKLR prefer to charge such individuals with contempt of court and or fines.
401
In Maina Kiai v. Independent Electoral and Boundaries Commission case, we argued that IEBC represented by
Paul Muite, should have …. Contempt by opening servers in Raila Odinga v. IEBC, 2017 before unprocedural
appealing: “he who comes to equity must come with clean hands.”

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 “....The law does not exist to protect the personal dignity of the judiciary 402 nor the private rights
of parties or litigants. It is not the dignity of the court which is offended. It is the fundamental
supremacy of the law which is challenged.403”
This holding broadened the scope of the application of the law on contempt of court beyond the
parties and the courts. It emphasizes the sacrosanct nature of court orders and the need to respect
court decisions by the people, state, state organs, state officers including the President.

In Teachers Service Commission v. Kenya National Union of Teachers & 2 Others404 the court
opined:
“The reason why courts will punish for contempt of court then is to safeguard the rule of law
which is fundamental in the administration of justice. It has nothing to do with the integrity of the
judiciary or the court or even the personal ego of the presiding judge. Neither is it about
placating the applicant who moves the court by taking out contempt proceedings. It is about
preserving and safeguarding the rule of law. A party who walks through the justice door with a
court order in his hands must be assured that the order will be obeyed by those to whom it is
directed.”

There was also a finding by the High Court in Miguna Miguna v. Director of Public
Prosecutions & 2 Others (2018)405 that the Director of Criminal Investigations (DCI) and the
Inspector General of Police were in contempt of court for failing to produce Mr Miguna Miguna
in court after an order was issued following his arrest.406

Kenya enacted a Contempt of Court Act that was assented to in December 2016. This was
contested. In Kenya Human Rights Commission v. Attorney General & Another,407 Justice

402
See Republic v. Nowrojee Miscellaneous Criminal Application No. 461 of 1990. …. Mr Nowrojee had written to
the Registrar of the High Court against a judge who had allegedly delayed in deciding a matter which he termed as
refusal to adjudicate. The Attorney-General in turn applied to court for contempt of court orders against Mr Pheroze
Nowrojee. The court held that contempt of court must be clearly distinguished from what constitutes fair criticism,
comment and freedom of speech, and what entails undermining the authority of courts, hence holding in favour of
Mr Nowrojee.
403
Johnson v. Grant, 1923 SC 789.
404
Teachers Service Commission v. Kenya National Union of Teachers & 2 Others [2013] eKLR.
405
Miguna Miguna v. Director of Public Prosecutions & 2 others [2018] eKLR….
406
…. CS for Interior and Coordination of National Government, Fred Matiang’i issued a declaration for the
deportation of Miguna Miguna under Sections 43 and 33(1) of the Kenya Citizenship and Immigration Act, 2011.
The court held these declarations as null and void since they were made in contempt of court. The court had initially
ordered for the release of Miguna Miguna on anticipatory bail of KES 50, 000. Mr. Joseph Boinnet and Mr. George
Kinoti of the Director of Criminal Investigation were also held in contempt for deliberately failing to present
Miguna Miguna in court. Justice Luka Kimaru ordered that the two were to give a personal undertaking that they
would produce Miguna Miguna in court within 7 days. This was not obeyed (again). See Fred Matiang’i the Cabinet
Secretary, Ministry of Interior and Co-ordination of National Government v. Miguna Miguna & 4 Others [2018]
eKLR where Justices R.N. Nambuye, P.O. Kiage, and K. M’Inoti dismissed Dr Fred Matiang’is appeal against the
High Court’s ruling. The court opined inter alia that the appellants failed to show any real danger posed by the
return of Miguna Miguna to Kenya.
407
Kenya Human Rights Commission v. Attorney General & Another [2018] eKLR, Constitutional Petition 87 of
2017.

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Chacha Mwita found that the entire Act failed the constitutional test of validity for lack of public
participation and for encroaching on the independence of the judiciary.408

The Judiciary is the fountain of justice. The ultimate constitutional interpreter, subject to the
Constitution, the law and popular sovereignty. The Supreme Court and the Judiciary at large is,
as stated by Senior Counsel Fred Ojiambo, the exponent of national values and a safeguard for
integrity.

Art. 10 (national values and principles) stipulates that the rule of law is one of the fundamental
constitutional values and principles, that binds all state organs and state officers. The Judiciary
therefore, has a constitutional mandate under Art. 159(2)(e) (judicial authority) in safeguarding
the Constitution, rule of law, administration of justice, and ensuring checks and balances on the
other arms of Government.

In exercising its constitutional mandate, the Judiciary adopts various tools of constitutional
interpretation to meet certain objectives. What are the objectives, methods, rules, principles and
canons of constitutional interpretation? There is interpretation, construction and translation…409

There are at least three (3) canons of constitutional interpretation, construction or translation
which are (sometimes) unproblematically adapted from English methodology of statutory
interpretation. First, ordinary or literal meaning. Second, golden rule. Third is the mischief
rule.410

The US equivalent, and which is more adapted to constitutional interpretation is also three
pronged. First, text. Second, structure. Third, history or practice….411

First, the Constitutional interpretation can be literal or strict. Second, liberal. Third, purposive or
teleological interpretation.412 What of Kenyan interpretation based on political economy, tribe,

408
The fall back position would then be Judicature Act under section 5…. And then law of England under Rule 81.4
as held by the Court of Appeal in Christine Wangari Chege v. Elizabeth Wanjiru Evans & Others… What has been
done about it?.... Why should Kenyan law still be tied to English law of (pre) colonial vintage, or at all in the light of
important developments in the rule of law, human rights, and constitutional democracy and legal sociology under
the 2010 Constitution and transnational law. There is need to enact a law on contempt that abides by the
requirements of public participation as raised by Justice Chacha Mwita.
409
…..Majority of judgments and court decisions refer to “interpretation.”
410
…..See Heydon’s Case (1584), 3 Re 7a; and the court’s analysis in Republic v. Musikari Kombo for Local
Government & 2 Others ex-parte James Mwangi Waweru [2007] eKLR
411
…..See the submissions by the appellants including Ben Sihanya, James Orengo, Paul Mwangi, Jackson Awele,
Arnold Oginga in Civil Appeal No. E291 of 2021 (BBI Appeal).
412?
See also Willy Mutunga (2015) “The 2010 Constitution of Kenya and its Interpretation: Reflections from the
Supreme Court’s Decisions,” Vol 1(6) SPEC, at http://www.saflii.org/za/journals/SPECJU/2015/6.html (accessed
April 19, 2021); James Otieno Odek (2014) “Transmutation of Kenya Superior Court Jurisdiction: From pyramid to
hour-glass jurisdictional system,” …op. cit…..

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class, age, gender, political culture, constitutional sociology, and status or perspectives on
sustainable development.413

What are the intentions or motives of the methods of constitutional interpretation? Is it possible
to generate progressive and contextual jurisprudence using a strict constitutional interpretation
approach?

There are at least three (3) approaches………. First, Article 259(1) of the Constitution
(construing this Constitution) entails a purposive approach to constitutional interpretation. 414 The
purposive approach has four (4) limbs. First, does such interpretation promote the purposes,
values and principles of the Constitution? Second, whether it advances the rule of law. Third, …
constitutional sociology, constitutional and sustainable.

The US Supreme in Marbury v. Madison reiterated the court’s role in upholding the rule of law
through establishing judicial review of legislation by the courts. This is also the substance of Art.
165(3)(d) which empowers the High Court to hear and determine any matter relating to
constitutional interpretation, including whether a particular legislation is constitutional.

Third, whether it advances human rights and fundamental freedoms in the bill of rights. Fourth,
whether adopting such interpretation leads or contributes to good governance. This was clearly
captured in Anthony Ritho Mwangi and Another v. Attorney General:

“Our Constitution is the citadel where good governance under the rule of law by all three organs
of the state machinery is secured. The very structure of separation of powers and independence of
the three organs calls for judicial review by checking and supervising the functions, obligations
and powers of the two organs, namely the executive, and the legislature. The judiciary though
seems to be omnipotent, is not so, as it is obligated to observe and uphold the spirit and the
majesty of the Constitution and the rule of law.”415

The Judiciary is therefore is bound to promote the objectives and principles of the Constitution
under Art. 159 (judicial authority) and grant appropriate redress for violations including
conservatory orders, a declaration of rights, injunction, declaration of invalidity of any law that
contravenes the Constitution, an order for compensation, judicial review and structural interdicts
under Art. 23 (authority of courts to uphold and enforce the Bill of Rights).

Second, Article 20(2) yields to what is otherwise called the Alexy’s concept of optimization…..
Are constitutional rights optimization requirements? Some argue that due to the nature of
constitutional rights being subjected to institutional frameworks for their operation and
upholding, then they can be deemed to act as optimization requirements. This is however,
contextual, on a case by case basis including structural discretion.
413
……See also Chapter 5 of CODRALKA 1 above…
414
…See also Facebook post and debate including by Law Lecturer Mr Evans Ogada…
415
Anthony Ritho Mwangi and Another v. Attorney General [2001] eKLR.

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Alexy’s concept of the nature and structure of rights (constitutional rights) as optimization
reuiqrements would therefore be justified only, where there is a direct and paternalistic
interference with the constitutional rights, in question…. This relates to Alexy’s concept of rights
as “principles” or “norms which require that something be realised to the greatest extent
possible, given the legal and factual possibilities.”416

To what extent should the principle of proportionality apply to disputes between rights? The
Constitution 2010 expressly provides for alternative dispute resolution mechanisms under Article
159(2)(c) and (3). This express provision acknowledges that conflicts involving rights and
fundamental freedoms ought to be addressed through a variety of options, since rights not all are
optimization requirements….417

As Alexy argues, that to consider whether to apply proportionality to a conflict of rights, in a

situation where competing interests are subject to limitation, a balancing act must be undertaken.
To do this, Alexy proposes a Weight formula where rights are weighed against each other. This
has been widely debated in the context of the application of traditional dispute resolution
mechanisms in Kenya and Africa.

Third, Art. 159(2) recognizes the place of traditional dispute resolution (TDR) mechanisms in
our jurisprudence. The role of the courts is generally to create a nuance of TDRs into our formal
rules. The courts must ensure that constitutional interpretation on such matters, promotes and
upholds the Bill of rights including culture and diversity, respects the repugnancy clause and that
such TDRs are consistent with the Constitution.

A strict interpretation approach would therefore not enable the development of jurisprudence on
matters related to culture, which largely call for a contextual approach to specific questions of
law. This is otherwise what is termed the “holistic interpretation.” The Supreme Court In the
Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion
Reference No. 1 of 2012 [2014] eKLR held that;

“But what is meant by a holistic interpretation of the Constitution? It must mean interpreting the
Constitution in context. It is contextual analysis of a constitutional provision, reading it alongside
and against other provisions, so as to maintain a rational explication of what the Constitution
must be taken to mean in the light of its history, of the issues in dispute, and of the prevailing
circumstances.”418

416
Robert Alexy (2014) “Constitutional Rights and Proportionality,” 22 Revus 51, 52–57; Robert Alexy (2010) “The
Construction of Constitutional Rights,” 4 Law & Ethics of Human Rights, 21, 24.
417
……See Robert Alexy (2002) A Theory of Constitutional Rights, Julian Rivers trans, OUP; Alexy……See also
FB comments by Law Lecturer and Advocate Evans Ogada, April 2021….
418
In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion, Reference
No. 1 of 2012 [2014] eKLR, paragraph 26.

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This otherwise means that in interpreting the Constitution, the courts must adopt a contextual
approach that considers historical, social, economic and political phenomena, rather than a
formalistic or strict approach to constitutional interpretation. Such an interpretation will also
ensure coherence and harmony in statutes, Constitution and any by-laws. These and other
foregoing issues raised in this chapter form the basis of necessary constitutional, administrative
and policy reforms in Kenya and Africa….nexus….

10.10 Summary of Findings, Conclusions and Reforms Judiciary in Kenya and Africa
This Chapter 10 addressed three (3) research questions and arguments on judicial powers,
functions, and independent accountability in Kenya and Africa. We made three (3) key findings.
First, the Judiciary is one of the three co-equal arms of Government. It is not “the third arm” as
argued by some scholars.…. It includes the courts, tribunals, and “bodies” and indeed judges,
magistrates, Kadhi’s, judicial officers and judicial staff.

Second, the juridicial power, function and structure has been adversely affected by politicization
of the Judiciary,419 judicialization of politics,420 and juridification of society, politics and political
economy in Kenya and Africa.421 Third, reform, including debates in the context of the Building
Bridges Initiative (BBI) (have) rightly addressed the question of separating the Judiciary and the
Judicial Service Commission (JSC).422

Thus, the Judiciary, Bar and the legal academy have the constitutional powers and competence to
secure justice, the rule of law and human rights in normal times, and in emergency, war, terrorist
attack, disaster, strike, crisis, coup, coup attempt, mutiny, revolutionary times. These include
health or medical pandemics, epidemics or emergencies like in the age of the coronavirus disease
2019 (COVID-19) pandemic, HIV/AIDs, Ebola, malaria, (Spanish flu), Black death, small pox,
or war, disasters, among others.423

There are three (3) key recommendations or proposals for reform. They are related to the
Building Bridges Initiative (BBI) discussions and litigation. First, to secure independence and
accountability of the Judiciary, the Judiciary and Judicial Service Commission (JSC) should be

419
….cf. Bonaventure F. Ndifor (2014) “The politicization of the cameroon judicial system,” 1 J. Glob. Just. & Pub.
Pol'y, 27.
420
Hoolo Nyane (2020) “The judicialisation of politics in South Africa: A critique of the emerging trend,”
36(4) South African Journal on Human Rights, 319-337.….
421
See also Chapters 5, 7 and 8 of CODRALKA 1…
422
See submissions by the Judicial Service Commission (JSC) (not Judiciary?) to the Building Bridges Initiative
(BBI). One of the key proposals was that the Chief Registrar of the Judiciary (CRJ) remains the accounting offices
of the Jjudiciary while a separate officer be appointed the Secretary for the JSC….
423
See also chapters 1, 4, 5, 6 and 8 of… CODRALKA 1… Ben Sihanya (2016; 2020) Intellectual Property and
Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi &
Siaya; Ben Sihanya (forthcoming 20220) Intellectual Property and Innovation Law in Kenya and Africa:
Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya.

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strengthened, and also separated administratively. The Judiciary and JSC should be funded
appropriately, as one of the three arms, organs, or branches of Government and second, as an
independent constitutional commission which is intended to promote independent accountability
of the Judiciary.424

Second, the Judiciary has the power to decide all cases, disputes, conflicts or matters whether
“political” or not. The Judiciary should engage progressive politics in the sense of helping decide
among contested constitutional legislative, regulatory, and administrative, policy and political
options or choices.

Third, there are urgent constitutional, legislative, regulatory, administrative, and policy reforms
to secure justice, the rule of law, human rights, constitutional democracy and progressive legal
sociology.

The Judiciary must guard the rule of law, judicial independence and accountability, and in the
National Anthem’s credo: “let justice be Kenya’s shield and defender.”

... Let wisdom flow from the Oracle and back in class through books, articles, online, in the
Oracle’s Shrine, and in appropriate fora…

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14;
16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 7/2/19; 11/2; 24/4;
30/4; 2/9; 26/11/19; 22/3/2020; 25/3/; 14/4/; 16/4/; 19/4/; 21/4/; 25/4/; 27/4/; 3/5/; 6/5/; 13/5/;
4/12/; 7/12/; 9/12/2020; 11/4/2021; 12/4/; 17/4/; 18/4; 19/4/; 10/9/; 11/9/; 12/9/; 13/9/; 14/9/;
15/9/; 16/9/2021; 6/12/2022; 25/4/2022
email: sihanyamentoring@gmail.com; info@sihanyaprofadvs.co.ke (use both)
url: www.innovativelawyering.com

424
The debate include taking into consideration the fact that the Judiciary is largely a service provider and that it has
suffered weaponization of the budget by the Executive (especially the President and Treasury) and the National
Assembly. The balance? Ring fence or guarantee development and recurrent expenditure for at least 10 years?....

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