June 25, 2013 Mad Hatter

Ahmednassir should indeed be kicked out of Judicial Service Commission

“The good Doctor, who taught me professional ethics in my law school barely a year ago, said one integral component of intellectual honesty is to declare what may lead to biases in your opinion. I am a law student, who is a loyal reader of the daily Nation, and who, on reading an Interview on Daily Nation, I discovered that in Ahamednassir’s estimation the training I am undergoing is at best “pathetic”. No one likes to be pathetic. I also happen to be a peer of Moi University Law students, who, in the estimation of the learned lawyer, cannot answer a one plus one of law”

Ahamednassir

Ahamednassir

Article 171 of the Constitution of Kenya establishes the Judicial Service Commission. Its functions thereafter are outlined in Article 172. The Judicial service commission’s primary responsibility is to ensure the independence and accountability of the judiciary.

The Constitution, vests in the commission, authority to recommend to the President, persons for appointment as judges among other duties.

Section 3 of the Judicial Service Commission Act, 2011 sets out the objectives of the commission; while there is no allusion as to the order of importance, it cannot be lost that the first objective is to ensure that the Judiciary and the Commission are organs of management of judicial services and, in that behalf, shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law

Section 3 (b) however requires the commission to facilitate a judicial process designed to render justice to all. As an officer of the commission, I can safely presume that that duty attaches to him, and that his conduct and speech, within his term of service should live strictly to those expectations.

The good Doctor, who taught me professional ethics in my law school barely a year ago, said one integral component of intellectual honesty is to declare what may lead to biases in your opinion. I am a law student, who is a loyal reader of the daily Nation, and who, on reading an Interview on Daily Nation, I discovered that in Ahamednassir’s estimation the training I am undergoing is at best “pathetic”. No one likes to be pathetic. I also happen to be a peer of Moi University Law students, who, in the estimation of the learned lawyer, cannot answer a one plus one of law.

That notwithstanding, I will attempt to be very objective in my discussion. It is my view that Ahamednassir’s conduct warrants his stepping down from the JSC. However, since he has declared his interest to still contest for the position, the Law Society of Kenya, has an obligation to kick him out of that position.

In the recent past, a local daily published a disturbing expose that brings into sharp disrepute the personal integrity of the lawyer. In particular, an allegation that the lawyer ‘forged’ a pupilage letter undermines what he has distinguished himself as, an advocate of truth.

Give it to him, the lawyer is among the very few Kenyan’s who stood up against the tyranny of Moi; and convinced many that he indeed was a person of exemplary standing and opinion. But as it would be, a little authority has exposed, in my opinion, who Ahmednassir really is, a brilliantly ambitious Kenyan who just knows what song to best sing- when.

Ahmednassir has undermined the very judiciary that he is supposed to ensure it is operating accountably and impartially.

As a member of the JSC, his opinion on certain matters certainly carries weight that could have profound implications. And, prudence would demand that we moderate our opinion, where our obligations impose on us a burden of facilitating a greater good.

The Constitution guarantees freedom of opinion and conscience, and Ahmednassir is justified to hold an opinion that the ICC is a foreign tool to perpetuate neocolonial schemes.

I would however imagine that the Lawyer also understood that the ICC is not a foreign court in the context of The International Crimes Act of 2008 which domesticated the Rome statute. I would also imagine that by that virtue the great lawyer understood that when he questioned the impartiality of the ICC, he was questioning the impartiality of Kenya’s legal system. This is perfectly in order. It could even pass as his role.

But wouldn’t his position require slightly more backing that the profound political harping of ‘western interests’. Wouldn’t the commissioner, perhaps need to expound, beyond stern talk, what the exact interests were?

Further, while the commissioner was questioning the ICC, which is certainly within his rights, was he aware of his obligation to facilitate a judicial process that gives justice to all people.

I beg to conclude that perhaps, his role of a publisher, which requires some sensation a times, got the better of his judgment.

This however is not an accident. Ahmednassir has shown that he can actually change and conform, with such an admirable ease.

No one for example, no one I remember, has ever written a glowing tribute of the former AG, Amos Wako as Ahmednassir; from a fierce critique to a near loyal defender. Just like a week to the General election, he highlighted with ease the shortcomings of the IEBC just to excuse those very shortcomings barely a month later in the Supreme Court.

I would like however to turn my attention to my confessed discomfort with Ahmednassir, the training of Advocates.

As a student, I have had instances when my training is inadequate, but what is sickening is that a person charged with developing the training of judicial officers sees fit to call students, ‘pathetic’ without offering any tangible solution.

And yes, the judicial service Commission has a constitutional mandate, in article 172 (1) d to prepare and implement programs for the continuing education and training of judges and judicial officers. While it is the responsibility of the Council of Legal Education to regulate legal training, some the Chief Justice, a colleague member at the JSC is the statutory head of the Council and Nassir would be better off advising him on how best to improve training in our law schools.

While this may be unsavory, as we read this interview on Daily Nation with a few peers, something cropped up. That a while ago, the Supreme Court gave a not so smart decision on the CORD petition, not the outcome of the petition. But a few of the smartest things in that ruling was a determination that the Supreme Courts involvement in Political litigation has to be faithful to the Constitutional threshold. That was a direct rejection of his persuasion to the bench.

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