Tag Archives: Supreme Court

What does Kenya’s High Court ruling on the civil society challenge to Uhuru and Ruto eligibility for election say about the state of Kenya’s judiciary?

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The Nairobi media reporting is a bit garbled but the gist of things is that the Kenyan High Court (as opposed to the Court of Appeal or the Supreme Court) has dismissed a petition filed some months ago by civil society groups, including significantly the Kenyan Chapter of the International Commission of Jurists, challenging the eligibility of many of the candidates for President of Kenya on the basis of the “integrity” provisions of the new Kenyan Constitution.

Almost 13 months ago I posted that it was time for Kenya’s judicial system to answer the question posed regarding the application of these constitutional provisions to the candidacy of those facing confirmed charges from the International Criminal Court.  Unfortunately, even though the election has ended up being set for a delayed date, the Kenyan court system has still managed to let the clock seemingly run out without reaching any clarity or finality, such that the election is expected to proceed with the “Uhuruto” ticket on the ballot.

Without having a copy of an opinion yet, from the media reports, the High Court ruled that it did not have jurisdiction over the challenge because the constitution vests exclusive jurisdiction in the Supreme Court over challenges involving the nomination and election to the presidency and that further the jurisdiction of the Kenyan courts and ICC was concurrent and with the ICC case proceeding only the ICC could bar the indictees from running for office.

As an American rather than Kenyan lawyer, and having not read the opinion, I don’t want to go too far into the details here, but I would note that (1) Ruto as opposed to Uhuru is no longer running for president, so the practical question now for his eligibility is distinguishable; (2) the High Court has original jurisdiction to interpret the provisions of the constitution, which seems to me to clearly be the issue here–as opposed to a more ordinary nomination or election challenge which would seem to me to be a more plain way to interpret the various constitutional provisions as a whole.

Here is a long quote from the Daily Nation story “Jubilee, Cord plaud ruling on eligibility case”:

Mr Odinga on his part said he respected the ruling saying that the court had held that in matters relating to the presidential election, the Supreme Court had ‘exclusive and original jurisdiction.’

“I have repeatedly said that my main competitor should have the opportunity to face me in a free and fair election whose outcome is determined by the people of Kenya,” said Mr. Odinga upon hearing of the Court’s decision.

But Restore and Build Kenya (RBK) presidential candidate Prof James Ole Kiyiapi accused the judges of failing to give Kenyans directions on matters of integrity.

“By declaring that they lack jurisdiction, Kenyan courts have failed to give the country direction on matters of integrity as outlined in chapter six of the constitution,” he stated.

The five High court judges – Mbogholi Msagha, Luka Kimaru, George Kimondo, Pauline Nyamweya and Hellen Omondi – dismissed a petition filed by civil society groups challenging Mr Kenyatta and Mr Ruto;s suitability to run for the presidency and deputy presidency as they face serious crimes at the International Criminal Court (ICC).

The Judges ruled that despite the serious nature of the crimes facing Mr Kenyatta and Mr Ruto at the ICC, they are still presumed innocent until the contrary happens.

“It is common knowledge the two have been indicted but since Kenyan courts and the ICC are of concurrent jurisdiction, we cannot adjudicate over the same matter. Only the ICC can bar them to run for public office,” ruled the judges.

They ruled that the High Court had no jurisdiction to hear any petition relating to presidential candidates’ nomination.

So I tend to agree with Prof. Ole Kiyiapi that the High Court has ducked the issue and left a real lack of clarity as to the meaning of the constitution.  The problem is appeals and further proceedings are now unlikely to have time to be resolved before March 4.

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Catching Up on Kenyan Politics–Three Related Big Developments on Reform

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The past three months or so have been especially busy for me and I have to apologize for having to let go of my past practice of at least noting most of the major headlines in Kenyan politics on a current basis.  Likewise, what I have posted has been more heavily weighted toward quotes and citations to other sources and less original.

First, the big issue that I have largely taken a pass on has been the nomination and appointment of the new Supreme Court, especially the Chief Justice.  I will say that the new Chief Justice Willy Mutunga got off to a good start yesterday, in my book, by forsaking the traditional robe and wig for his swearing in.  My more egalitarian American sensitivities have always been turned off by the white wigs–we rebelled against the British and got rid of all that a long time ago.  I can appreciate decorum and a sense of dignity for the court, but I’m not sure that the white wig is even really dignified as opposed to just silly.  And in a country with as much of a problem with dramatic inequality both economically and in the legal and judicial system, it seems to me that a bit of humility is a positive thing.

More importantly it is encouraging to see the hope engendered by Mutunga’s appointment.  Mutunga has a combination of serious bona fides as a reformer through leadership in the “Second Liberation” and serious legal credentials.  Here is a column from retired Presbyterian minister Dr. Timothy Njoya that I found to be particularly persuasive in this regard.  He is obviously qualified in training and intellect, but was also seems chosen by the Judicial Service Commission in substantial part to be a leader of reforming the judiciary through his position as Chief Justice.  My interest is the process, and I don’t think it is my place as an American to have a strong opinion about who should or shouldn’t be appointed to a judicial position in Kenya, but it is gratifying to see Kenyan civil society leaders and others whom I like and admire for their courage in the context of the late Kenyan election crisis feel that Mutunga’s appointment is a step toward reform and the rule of law.

In considering the process, I will way that the JSC was a bit harsh on some applicants and I hope that in the future this will be improved on.  Here is a column in the Star saluting one of the applicants whom I had the opportunity to meet socially and found to be a very considerate person who ended up being charactured a bit in the media as a result of her interview.  A woman who has served long on the Kenyan High Court without hint of scandal deserves respect as a pioneer and the JSC certainly could have chosen reasonably to go in the direction of seeking someone with experience on the bench.

On the other hand, the appointment of the Director of Public Prosecution is quite a different matter.  Keriako Tobiko was nominated and approved in spite of very serious and specific allegations of corruption.  It is very hard to understand why this appointment makes any sense unless it is intended to protect key people from public prosecution–I wish this was a far fetched notion.  In fact, the situation seems blatant enough to almost make one wonder whether there was an “understanding”–a reformist chief justice for an insider as prosecutor to make sure that the weight of the law does not fall on the current powers that be?

A third big event that I have not discussed is the effort by the U.K. to gain extradition of Chrysanthus Okemo and Samuel Gicheru for prosecution for prosecution in Jersey.  Okemo, a member of parliament and former finance minister, and Gichuru, a former managing director of Kenya’s power supply monopoly the Kenya Power & Lighting Co. Ltd., are wanted in Jersey on corruption charges.  The allegations are that Gicheru took bribes from KPLC contractors and laundered the money to accounts in Jersey.  Payments are also alleged to have gone to Okemo as Finance Minister and as well when he was Energy Minister.

Frankly the British just have not had the best history on fighting graft involving the developing world and this initiative seems to me to be a breakthrough, consistent with the spirit of the new U.K. anti-bribery act.   I firmly believe that the ability of the “well connected” to stash ill gotten gains abroad with impunity has been a key factor in keeping most Kenyans economically marginalized and keeping the Government of Kenyan underperforming.  If the U.K is successful in this prosecution it could be a turning point toward a better pattern of development in Kenya in which the benefits of economic growth reach more citizens.

Ironically, however, Director of Public Prosecutions Tobiko is in a key role in evaluating the extradition request:

The government has ordered the formation of a high-level panel to consider a request for the extradition of former power utility boss Samuel Gichuru and Nambale MP Chris Okemo over fraud charges.

Attorney-General Amos Wako said he had received a full extradition request comprising 13 bundles of supporting documentation from Jersey Island.

As a result, Mr Wako said, he had instructed the chief public prosecutor to constitute the panel.

“Due to the complexity, magnitude and voluminous nature of the request, I have directed the chief public prosecutor, Mr Keriako Tobiko, to immediately constitute a high level team to study and analyse the supporting documentation and deal with the matter soonest,” Mr Wako said in a statement.

Sources said Mr Tobiko had constituted the team.

“Panel to decide fate of Okemo, Gicheru”, Daily Nation, 10 June 2011.

US Supreme Court rules unanimously in Samantar case, allows Somalis to sue ex-minister

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BBC: US to allow Somalis to sue ex-PM
The US Supreme Court rules that a former Somali prime minister can be sued over claims of torture and extrajudicial killings. The Court found that the U.S. Foreign Sovereign Immunities Act does not protect individual defendants as opposed to foreign governments.

For background of case, see:   Today-Supreme Court hears oral argument in Samantar v. Yousef–Somalia and Somaliland Torture Case

Today-Supreme Court hears oral argument in Samantar v. Yousuf–Somalia and Somaliland Torture Case (Updated)

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NPR’s story from before the argument this morning.

For a recap of the today’s argument and other details see SCOTUSWiki on Samantar v. Yousuf

This site includes links to the various briefs, including the Amicus Brief filed by Foreign Minister Duale for the Republic of Somaliland in favor of Yousuf (the victims), and other supporting amicus briefs from three Democratic Members of Congress, Senators Spector and Feingold and Representative Lee, and from a group of former US diplomats including Princeton Lyman. The US Government also supported affirming the Fourth Circuit’s ruling overturning the District Court’s dismissal of the case on sovereign immunity grounds.

The Summary of Argument from the Somaliland brief:

TORTURE, EXTRAJUDICIAL KILLINGS AND THE ARBITRARY DETENTION OF SOMALI CITIZENS WERE ALL EXPRESSLY FORBIDDENBY THE CONSTITUTION THAT CREATED THE GOVERNMENT OF THE DEMOCRATIC REPUBLIC OF SOMALIA. SUCH ACTS THEREFORE COULD NOT POSSIBLY HAVE BEEN PERPETRATED UNDER ANY LEGITIMATE AUTHORITY GRANTED TO THE SOVEREIGN GOVERNMENT OF SOMALIA OR ITS PUBLIC OFFICIALS. UNDER THESE CIRCUMSTANCES, THE DOCTRINE OF SOVEREIGN IMMUNITY DOES NOT APPLY.

THE UNITED STATES CONGRESS HAS ENACTED STATUTES PROVIDING THE VICTIMS OF HUMAN-RIGHTS ABUSES A REMEDY WHEN THE PERPETRATORS OF THOSE ABUSES ARE FOUND WITHIN THE CONFINES OF THIS COUNTRY’S BORDERS. IT IS ESSENTIAL THAT THE JUDICIAL PROCESS ENVISIONED BY THE UNITED STATES CONGRESS BE PERMITTED TO GO FORWARD SO THE EFFORTS TO ACHIEVE PEACE AND RECONCILIATION IN SOMALILAND AND THROUGHOUT THE REGION CAN BE REALIZED. MORE IMPORTANTLY, IT IS ESSENTIAL THAT THE RULE OF LAW BE APPLIED TO THE PERPETRATORS OF INTERNATIONAL HUMAN-RIGHTS ABUSES WHEN THEY ARE FOUND WITHIN THE BORDERS OF THE UNITED STATES.

Amicus briefs supporting Samantar were filed by three former Republican Attorneys General, Meese, Barr and Thornburg, and by the Kingdom of Saudi Arabia.