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{
"id": 1121446,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1121446/?format=api",
"text_counter": 191,
"type": "speech",
"speaker_name": "Sen. (Prof.) Kindiki",
"speaker_title": "",
"speaker": {
"id": 1046,
"legal_name": "Kithure Kindiki",
"slug": "kithure-kindiki"
},
"content": "The Chief Justice never published those rules. Courts could not enforce human rights simply because the Chief Justice had refused to do a public duty, which was merely administrative and not decisional. It was not judicial. Similarly, for the Judiciary, there are certain acts they should be held liable for. This immunity of the Judiciary applies functionally, when they are performing judicial functions. Madam Temporary Speaker, for example, if the Judicial Service Commission is hiring judges, that is a judicial function of that Commission and so forth. However, for example, in matters of procurement, the Judiciary should be held accountable if there are procurement anomalies in the usual standards that apply to other institutions. I believe that the order of mandamus could apply in the case, and I am disturbed when I see a creeping notion not based on any law on the infallibility of the President. Recently, I participated in some proceedings in the Court of Appeal where I heard very weird arguments by very seasoned lawyers about certain levels of infallibilities of the President on a different matter of immunity of the President. Madam Temporary Speaker, time has come for us to stand firm and I thank this Committee for coming up with such a robust report. I maintain that the President’s role is ceremonial. If he does not appoint those judges, what should happen is what the High Court has already decided. Since this is a ceremonial function, the most important part for these judges is the swearing in. They can be sworn in before the Chief Justice and automatically become appointed. I associate myself with that judgment, although now it is pending appeal in the Court of Appeal and the reasoning is quite solid. Most likely, the Court of Appeal or even the Supreme Court will uphold that logic. The same case applies to legislation. If the President refuses to assent to a legislation passed by either the National Assembly, the Senate or Parliament, within 30 days that law is presumed to have been assented to. This is already in the Constitution and we do not have to do anything about it. This is the logic that is applying in this issue of appointments. We cannot hold this country backwards and delay justice simply because of an administrative function, which can be dispensed with. Madam Temporary Speaker, I would like to say two or three quick points, so that I give other Members an opportunity to contribute. On the issue of the report of the National Intelligence Service (NIS), Sen. Omogeni has told this House that the Judicial Service Commission (JSC) told the Committee that the NIS had objected to the appointment of certain judges, but when they were asked for particulars, they were unable to provide them. They made the allegations blanketly without giving the particulars. I submit that such an action is egregious and an affront to the old canon of natural justice, which presumes that nobody should be condemned unheard. It is not only against natural justice, but also against the direct provision of Article 47 of the Constitution, which provides for fair administrative action before a decision is made. In conclusion, going forward, it is not our argument or submission that judges are infallible, cannot be questioned or held criminally liable. It is also not our argument that whatever judges say or do is always right. What we are arguing is that the chapter on Judiciary in the Constitution gives strong protection on the Judiciary, to enable them deliver on their functions. Any person who has an issue of a criminal or adverse nature against a judge, the procedure is not to arrest a judge inside his or her chamber or courtroom. The procedure is to, first, initiate the process of removal of that judge and a tribunal is established. Once"
}