ARE JUSTICE EVANS GICHERU'S DAYS AS CJ NUMBERED?

THE STANDARD
NAIROBI, KENYA
OCTOBER 15 2008

By Lucianne Limo

Will President Kibaki appoint a tribunal to inquire into the conduct of Chief Justice Evan Gicheru? This is the million-dollar question after the Law Society of Kenya formally petitioned the President for the appointment of a tribunal to investigate the head of the Judiciary.

The President has the option of ignoring the petition. But if he were persuaded that the lawyers have sufficient reason to have the CJ investigated, he would appoint a five-man tribunal headed by the Speaker of the National Assembly to look into the myriad allegations against him.

If a tribunal were set up, it would be the second time in five years at the prompting of the lawyers’ umbrella body that boasts of a membership of more than 6,000. The CJ would have to step aside if a tribunal is appointed to investigate the allegations of misconduct. He would, however, resume his duties if the tribunal exonerates him of the accusations.

In February 2003, the President appointed a tribunal to investigate then Chief Justice Bernard Chunga on allegations he protected corrupt judicial officers, intimidated fellow judges, interfered with judicial procedures, and misappropriated public property. Chunga resigned before the tribunal could sit in 2003.

The LSK council, in the petition submitted to the President through Justice and Constitutional Affairs Minister Martha Karua, raises questions about the conduct, integrity and independence of the Chief Justice and his ability to exercise his duties.

The petition, signed on behalf of the LSK council by Mrs Betty Nyabuto, was received by Karua’s office on Thursday, last week. The LSK confirmed yesterday the petition had reached the President.

The LSK alleges the Chief Justice is "subverting the Constitution of Kenya in breach of the oath of office of the Chief Justice". LSK claims the CJ is overburdening the Court of Appeal judges by failing and/or ignoring to sit in Bench of the Court of Appeal.

The CJ, LSK claims, failed to uphold the independence and integrity of the Judiciary and the office of the CJ by selectively and arbitrarily transferring judicial officers without reasonable notice. "There are situations where judges are transferred and not allowed to finish part-heard matters, thus interfering with case management leading to backlog," stated the petition.

The Society alleges the Chief Justice has failed to institute a proper and efficient human resource component within the Judiciary, thus occasioning unnecessary constraints.

When contacted, the acting Judiciary public relations officer Nick Ndeda said they have not received the petition against the CJ, although it had not been copied to him.

Yesterday, Senior Counsel Paul Muite said the Constitution allows the President to assess the merit of the allegations and make a decision on the matter.
Section 62 (7) of the Constitution gives the President powers upon receiving a petition questioning the conduct of a judge to appoint a tribunal to investigate claims.

Among the allegations, was also the LSK claiming the CJ had assigned a Government vehicle to his son. Gicheru is also alleged to have sat as a judge in a case in which he was named as the respondent, contrary to principles of natural justice. This doctrine does not allow a judge to sit in a case where he is enjoined.

Lawyers are also angered by Gicheru’s failure to deliver judgement and rulings within the stipulated 42 days. They cited a court case HCCC 12/06 Royal Media Services vs. Telkom-Kenya Ltd and 13 others, where the CJ gave judgement after three years.

Gicheru is alleged to have abused the Judiciary resources by commissioning several committees and not implemented their recommendations. These allegations, even those where proof may be wanting, casts doubt on the CJ’s integrity. As a judge, and leader of the Bench, he is expected to be beyond reproach, "Like Caesar’s wife".

In 2003, Gicheru presided over a team that recommended a purge of the Judiciary. Some of the judges the Gicheru team found to have been of questioned integrity either resigned or were brought before tribunals.