BY SAM ALFAN.
Senior Counsel Ahmednasir Abdullahi recalls Judiciary clean up after new the Constitution to get rid of corruption judges.
While speaking to Nairobi Timez, the lawyer said that he vied for the position of the chairman of the Law Society of Kenya to get rid out the rot in the Judiciary and corruption that pavaded the corridors of justice.
Ahmednasir added that he succeeded in his quest because what followed afterwards was the so called radical surgery in which more than 20 judges and 82 magistrates were fired.
Ahmednasir added that the radical surgery and vetting were meant to address the historic shortcomings of the Judiciary and lead to a rebirth of a new Judiciary with a Supreme Court as the apex court in the 2010 constitution.
He added that 10 years after the 2010 constitution the Judiciary is the same position it was and no major changes have been seen. “Whereas we acknowledge the sparodic brilliance and few progressive decisions coming from the courts occasionally, a holistic appraisal clear show that the dream of a reborn Judiciary under the 2010 has turned into a nightmare”
“The supreme Court has failed to aspire to new heights and inspire the lower courts. It is a court defined by lethargy, useless jurisprudence and corruption” said Ahmednasir
Reflecting more than a decade later, Ahmednasir said he a very idealistic view of practice when he returned back to the country from Cornell University where he had went to pursue his masters in law.
After returning to the country he taught law at the University of Nairobi for some time, he added.
“I thought Law was one plus one must give you two so when I discovered the reality you know of you know, I mean corruption a lot of political. I became very vocal and I think I gave a very famous presentation in one of the lawyer’s conference in Utalii college I think sometime late 1990 or early 2000,” recalls Ahmednasir.
Soon after his election as LSK chairman, he called for the resignation of former Chief Justice Benard Chunga it created a buzz.
President Kibaki listened to him call immediately appointed a tribunal to investigate the CJ’s conduct.
“I think the hallmark of my tenure especially the first time was the radical surgery. When Kibaki came to power, he appointed a commission. I mean the chief justice Evans Gicheru, appointed a panel of judges headed by former Judge Aaron Ringera to investigate corruption, incompetence and they went throughout the country and came with a report called the Ringera report that called for the dismissal of 50 percent of judges and about 35 percent of magistrates,” he added.
To the Seniors Counsel, it was a huge win since it had never happened anywhere in the world.
He further added that as the chairman of LSK, the society said that they won’t just trust the commission and he also appointed his own committee headed by Senior Counsel Nzamba Gitonga, a former chairman of LSK.
The committee prepared a huge report in which Kenyans came out in large numbers to share the views for the intended cleanup.
And then the good thing about his time is when the new judges were being appointed, the LSK was considered.
“I mean the chief justice called me, it was very rare and said I want to involve the Law Society in the recruitment of judges,”he says.
“You know, I want you to go get me a list of the judges you want recruites and I remember, I prepared a list with a good friend of mine who is a judge called Justice Kanyi and we prepared a list of 35 people. Many of the judges in the high court are people we recommended for appointed, among them the current Chief Justice.”
During his presentation at Utalii College, he said that there was need to fire all the judges in the country and have a fresh start because most of the judges at the time were not the best.
“It was on Friday and an article was splashed in the newspapers, saying that you know there’s a lawyer who teaches at the University who is saying that all judges should be fired because they are corrupt,” he remembers.
He recalled that he had a matter before commercial court before Justice Tom Mbaluto and when he saw him, he wondered how how courageous I was to make such views and appear before him the following morning.
The judge, he said, demanded an apology. He refused and instead said those were his views and the judge was free to share his.
The Judge refused to hear his matter and the file was transferred to another judge.
The stinging attack at the judiciary created a lot of trouble for him and his firm but there were some judges who were very understanding.
Two weeks later he appeared before Justice Githinji and even before he started hearing the matters, the judge asked other lawyers if they expected him to treat Ahmednasir the way Justice Mbaluto treated him and the lawyers said no.
“I mean he said you know Ahmednasir I share your sentiments. We have a lot of issues in the courts. He opened up and I was pleasantly surprised,” he said.
It was the same feeling with the LSK members because they thought it was time to take on the judiciary. That was what propelled me to the position,” he added.
He made the decision to vie for LSK the last minute.
The presentation of nomination papers, he recalls was closing on a Friday and on Thursday at four o’clock, he called the then secretary of the law society George Kigoro.
“I asked him whether anybody has put in his papers? Then he told me Evans Gaturu is the one who has put in his papers then I said I mean we need someone really to challenge Evans. I said Evans is an old school, I mean he will not take the society where we want. I then called another lawyer whom I’ll not mention”.
He said the lawyer told him he is taking his papers very early in the morning but then asked him to become his vice chair.
The question offended him and he felt slighted and it was then he made up his mind and presented his nomination before midday, the following day. He won the elections decisively.
He recalled that when he was elected as chairman in March 2003, Kibaki came to power and came with a big broom to clean up.
“And I remember although I was not chairman in January when Kibaki was sworn in, our chairman was Raychelle Omamo. We normally vote in December so we know by then you know how we can guess how the election was going on, so when we were in January of 2003, we had a meeting of the council and you know we said there’s a new government, Kibaki looks like he has new guys, this guy will listen to us, why don’t we be the first guys to call for the immediate resignation of the chief justice, Bernard Chunga and that was something big”, he remembered.
So Raychelle was our chair she said over her dead body, she will never call for the resignation of Bernard Chunga. So we told her why, then she said he is my uncle. That simple. So we told her whether he is your uncle or not, we want to call for his resignation. Let the government picks it up or not. So she said you guys, I will not stop you, call a press conference but I’ll sit outside.
Ahmednasir said the current council reflects the chairman Nelson Havi who he defines as a strong character, very strong and he’s a little bit out of the ordinary in terms of his personality.
“He is strong, he has strong views, and also what shapes the law society is the general dynamics of the country. How is the country being run? I mean if the country is being run very smoothly, the chairman of law society may have little to do, but when there’s a lot of political activities in the country, the law society will always be part of that factual or legal matrix that’s going on in the country. So Havi is a strong man, I mean he’s running the society with a strong fist, I think many people like it” added Ahmednasir.
He said Havi is a man who’s keeping the government on its toes and he’s doing a lot of active litigation which is very important in this country. He added that the only thing he should start doing is private prosecution which he used to do during his tenure and people used to fear it a lot.
“When the law society starts a private prosecution, whether you are a minister or an attorney general, it’s a very powerful statement. So I think although Haji is doing a good work in terms of prosecution, but there are certain people they don’t touch who are involved in all kind of corruption and deals and I think that’s something Havi you know, and his council will probably look into in the coming future” said Ahmednasir.