Judge to revisit 2003 courts radical surgery if named CJ

Judges and magistrates who were dismissed in the 2003 Judiciary radical surgery will be compensated if Justice Msagha Mbogholi becomes the next Chief Justice.

The High Court Judge told the Judicial Service Commission on Tuesday that should he occupy the office, he would form a commission to ensure all those who were unfairly dismissed from the judiciary got a fair hearing and appropriate compensation.

Some of his colleagues were dismissed on flimsy grounds while others were sent home in unclear circumstances, he said, when he was being interviewed for the Chief Justice position at the Supreme Court Building in Nairobi.

The surgery was a policy meant to rid the Judiciary of corrupt Judges and magistrates and was begun by then Justice and Constitutional Affairs minister Kiraitu Murungi immediately after President Mwai Kibaki took over power.

A committee chaired by Justice Aaron Ringera created to implement the policy concluded that five Court of Appeal judges, 18 High Court judges and 82 magistrates were corrupt.

Justice Mbogholi, who was among those indicted by the commission, told the JSC that he suspected that he and two other judges also named as corrupt were being punished for having disbanded the Kenya Anti-Corruption Authority in 2000, which was then headed by Justice Ringera. The judge however appealed against the indictment and was cleared by a tribunal.

“Will you seek compensation for those removed,” asked Court of Appeal Judge Mohammed Warsame, a member of the Judicial Service Commission.
“Any call for justice should be addressed regardless of time. If they were to persuade the court that there is light at the end of the tunnel for the judges removed, yes I will do so.”

“I chose to fight on in a tribunal and sailed through while my two colleagues did not fight it out and opted to retire,” he answered.
Attorney-General Githu Muigai sought his views on the retirement age of the Supreme Court Judges.

LEADERSHIP SKILLS

“I have two letters one stipulating my retirement at 70 years and the other at 74 . But let me be clear that I am for retirement at 70 years,” he said, adding that five years as CJ would be enough for him to complete his agenda. The Constitution says a CJ should serve for 10 years or upon reaching the age of 70 whichever is first.

Unlike Justice Alnashir Visram who was on Monday mainly interviewed on his managerial and leadership skills, the Judicial Service Commission questioned Justice Mbogholi, on the application of the law and his understanding of some of the contentious articles.

He was at one time caught flat-footed by Justice Warsame who questioned him on devolution and asked him to name the governors of Mandera, Tharaka Nithi and West Pokot counties. The judge said he didn’t know.

“This is just to gauge your understanding of devolution Judge. Please name the counties in the former Eastern Province?” Posed Judge Warsame to which Justice Mbogholi responded by naming Meru, Embu, Kitui and Isiolo Counties.

Justice Warsame also questioned the interviewee on the rationale of his 1997 ruling in which he dismissed a presidential election petition of the then Democratic Party candidate Mwai Kibaki against President Daniel Moi on a technicality.

The judge said : “At the time I considered the merits as they were. The petitioner Kibaki did not serve Moi personally as was required. Going back with coming of the new law, I would have ruled otherwise.”

Court of Appeal Judge David Maraga will be interviewed on Wednesday.