Date: Mon, 29 Jan 2007 16:25:38 -0800 (PST) From: Joseph Okumu joseph_okumu@ . . .
Subject: Juducial Surgery

Dear all,
One Abdenassir Hassan has written in Nation supporting Judicial surgery. It is quoted below.

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COMMENTARY
Radical surgery of Judiciary was right and proper

Story by AHMEDNASIR ABDULLAHI
Publication Date: 1/30/2007
REINSTATEMENT OF MR Justice Daniel

Aganyanya by the tribunal investigating a number of judges suspended on corruption charges has brought to the fore the contested motives and consequences of the radical surgery.

He becomes the third judge to be cleared. Whereas that result was never in doubt due to the flimsy nature of the charges made against him, the strange thing is that the same is not being interpreted as a vindication of due process but is being construed as evidence of the flawed nature of the radical surgery.

The political thesis being peddled is that the Judiciary was a victim of political tinkering and ethnic rationalisation by the Kibaki administration. Both are utterly false. When the radical surgery was implemented, 24 judges of the High Court and the Court of Appeal were implicated. Seventeen of them, upon realising the weighty charges levelled against them, fled in a stampede without having the courtesy of allowing Kenyans the chance to decipher the sordid details of the allegations made against them.

That 90 per cent of those implicated resigned was clear testimony that the radical surgery was an overwhelming success and the methodology used both right and effectual.

Seven judges elected to contest the charges, and so far, three have been acquitted. Their acquittal doesn't mean that the radical surgery was flawed. On the contrary, it underlines two important but often ignored issues.

First, that due process was rightly followed and an independent tribunal after hearing the charges and the supporting evidence reached a fair and independent decision of not guilty. Second, the three cleared judges were "soft" cases. They are judges who, in all fairness, were never linked to corruption and never featured in the usually reliable daily corruption index maintained in court corridors by lawyers. That they were unfairly accused by litigants or their lawyers cannot be a legitimate ground to discredit the radical surgery.

The credibility of both the tribunal and the radical surgery will be under closer scrutiny when the tribunal determines the remaining cases. That is where the real test lies, for unlike the three judges that have been cleared, some of the remaining cases pending before it will be greatly scrutinised in many quarters.

To appreciate both the history and the current dynamics of the debate raging around the radical surgery, it is important to note some salient points.

By 2003, the Judiciary was an auction house in which judgments were sold to the highest bidder. The bids were usually in the open and depending on the depth of the protagonists' pocket, very competitive. It was also a dump-site for politically correct lawyers in the Kanu regime.

The radical surgery was thus necessitated by the need to have a clean Judiciary. It was also a clever attempt by the Government to water down the radical proposal pushed by the Law Society of Kenya (LSK) to have all judges resign and be re-vetted afresh. The Judiciary is an important arm of government and the way it manages its affairs is of concern to all. Since the implementation of the surgery great strides have been made. However, there are three grave problems facing the Judiciary that need urgent redress.

First, it has a "feminist" problem. There is a national consensus among consumers of justice that the calibre and competence of female judges is way below that of their male counterparts. This problem has a historic genesis. The appointment of female judges, unlike that of their male colleagues, is skewed and clouded in mystery. The appointment favours women lawyers in private practice. There are many female lawyers in academia and in the magistracy who are habitually ignored for lack of political connections.

The second problem is corruption. Quite a large number of judges who escaped the hangman's noose in the radical surgery have, instead of repenting and reforming, continued to perfect their bad ways. Even more disheartening is the fact that some of the new judges have taken corruption to new dizzy heights.

Third, the Judiciary needs to develop a proper and transparent manner of appointing judges. The recent fiasco in which some appointments were sent to the deep freezer under mysterious circumstances should be avoided.

The absence of a procedure for vetting new appointments makes these appointments easily manipulative. The Judiciary should resist being turned into a dump-site where the political elite unload lawyers that are too big a burden to carry.

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I think this man does not deserve a hearing. I have commented to him below.

Re: Radical Surgery of Judiciary: AHMEDNASIR ABDULLAHI

This Author and other like minded people were part and parcel of those naive people who peddled claims against certain Judicial Personnel regarding corruption in the Judiciary. Many informed Kenyans know that some of the most corrupt Judges were never touched and have not been touched to date. Some have even been promoted. Which Lawyers have been charged with corruption even at your time as Chairman of Law Society, or were these Judges bribing themselves? Spare us this nonsense. You are one of the people who messed up Bomas Conference with the hope of getting spoils from appointments. You were rewarded with being appointed Chairman of Anti Corruption Board and only resigned when you saw your bed fellows were up to no good. We are all Kenyans and intelligent people. You are a collaborator whose hands are soiled by making corrupt Kibaki government get some support early in 2003 when others already started seeing red lights of impunity, corruption, tribalism and Judicial incompetence. As an officer of the Court we don't remember you raising a finger the way CJ Chunga was hounded out of office. Many of us never liked his appointment as CJ but the way he was removed in an orchestrated chorus of court poets was an early sign of bad things to come. The rest is now History. Kenyans out here are very angry at the likes of you and cannot wait for some of you to answer for your actions even if that means being debarred for professional misconduct or for not standing up to the rule of law in accordance with the oath you took

Joseph Okumu
London