Shermit Lamba: Three Important Criticisms to the Wako Draft
Prepared by
S. Lamba
B.A,B.Sc, LL.M.Dist.
(Jurist)
Doctor of Laws [Candidate], Osgoode Hall Law School, Canada.
Graduate Diploma in Democratic Administration [Candidate], Department of Political Science, York University, Canada.
My six page criticism touches on the following:
26th August 2005
Shermit Lamba
c/o Mazingira Institute
PO Box 14550, Nairobi, Kenya.
Email: shermit_lamba@hotmail.com
Dear Friends,
1. The Composition of the Judicial Service Commission (JSC) has been Radically Altered
The Judicial Service Commission is the organ which supervises the Judiciary, and is ultimately charged with maintaining the health of the Judiciary. In the Bomas Draft the (JSC) was given a specific shape and form meant to revitalize the Commission. The Wako draft constitution seriously threatens great gains that had been made by the civil society in promoting the independence of the judiciary via the (JSC). This change will have drastic repercussions in the administration of justice.
Under Bomas, the (JSC) would have had a full-time Chair. This person would need all the qualifications to be a Judge in the Supreme Court, but they didn’t have to be sitting on the bench. All that was required is that the new Chair be appointed by the President; and garner the approval of Parliament.
In the Wako draft, the (JSC) will now be chaired by the Chief Justice, who will share this responsibility with his other numerous laborious duties. Further, it is apparent that the number of seats on the Judicial Service Commission has been slashed from (18) to (8); effectively eliminating all civil-society seats.
The remainder of the (JSC) as constituted under Bomas, would have looked something like this:
JUDICIAL SERVICE COMMISSION – BOMAS DRAFT (Section 204)
The Attorney General | 1 Supreme Court Judge | 1 Court of Appeal Judge |
1 High Court Judge | The Chief Kadhi | 2 Magistrates (1 Woman) |
2 LSK Advocates (1 Woman) | 2 Law Teachers (1 Woman) | 1 Council of Legal Education |
1 Chair - Public Service Commission | 3 NGO seats (1 Woman) | 1 Muslim Woman |
The composition of the remainder of the (JSC) as contained in the Wako draft looks like this:
JUDICIAL SERVICE COMMISSION – WAKO DRAFT (Section 196)
The Attorney General | 1 Supreme Court Judge | 1 Court of Appeal Judge |
1 High Court Judge | 2 LSK Advocates | 1 Nomination by the Public Service Commission |
Sincerely,
Shermit Lamba (Jurist)
B.A,B.Sc, LL.M.Dist.
26th August 2005
Shermit Lamba
c/o Mazingira Institute
PO Box 14550, Nairobi, Kenya.
Email: shermit_lamba@hotmail.com
Dear Friends,
2. The Right to Not be Evicted; or Have Your House Demolished (Without A Court Order), Goes Missing in the Wako Draft.
I write to you having discovered that the Bomas draft has been altered in a manner that is worthy of public comment prior to the referendum. The matter in question centers on the Bill of Rights as presented in the Wako draft, and in particular Section 63 on Housing. It has come to my attention that two paragraphs (that would have prevented arbitrary house demolitions and evictions) have inextricably gone missing.
The missing text is highlighted below:
BOMAS DRAFT
THE BILL OF RIGHTS (Ch.5)
I have attached to this letter, a transcription of relevant text as it appears in the Wako-draft, and have labeled it Appendix [A]. Please refer to it as needed.
Shermit Lamba
(Jurist)
B.A,B.Sc, LL.M.Dist.
25th August 2005
Shermit Lamba
c/o Mazingira Institute
PO Box 14550, Nairobi, Kenya.
Email: shermit_lamba@hotmail.com
Dear Friends,
3. A Law Which Will Be Instrumental in Determining the Future of Many Human Rights Legal Challenges in Kenya, Goes Missing in the Wako Constitution Draft.
A clause that would have been integral to any future human rights legal battles in Kenya has gone missing in the Wako draft constitution. This clause was noted in the Bomas Draft to be ‘particular’ in its importance because it specifically ordered the Chief Justice to redefine the rules governing court proceedings in a specific way – not a small task. Further, the Bomas constitution demanded that the contents of that clause be met within 12 months, or the CJ could risk violating his constitutional directives. Such a directive was present in the Bomas draft in the following form, but is missing in the Wako draft:
[The highlighted text is missing in the Wako draft which retains much of the remainder of this section. The text would have ordered the Chief Justice to re-define the rules that govern court proceedings in a subtle yet profound way as regards applications seeking the enforcement of fundamental human rights.]
BOMAS DRAFT
THE BILL OF RIGHTS (Ch.5)
Right to ask the Commission on Human Rights and Administrative Justice or Court to uphold the Bill of Rights.
Section 73
(3) The Chief Justice shall within one year of the coming into operation of this Constitution, make rules providing for court proceedings contemplated in clause (1), and those rules shall satisfy the following criteria -
(a) that the rights of standing provided for in this Article are fully facilitated;
(b) that formalities for starting proceedings are kept to the minimum, in particular that the courts will, if necessary, be prepared to start proceedings on the basis of informal documentation, such as a letter or newspaper report;
(c) that the courts, while observing the rules of natural justice, shall respond to the justice of the claim and not be unreasonably restricted by technical requirements;
(d) that no fee may be charged for commencing proceedings under the Article; and
(e) that organisations or individuals with particular expertise may appear before the court as ‘amicus curiae’ (friend of the court).
This legal clause, which has been removed, would have done that which most post-colonial countries desperately need to be addressing in their legal reforms: Recognizing where strategic changes in administration can be made, so as to eliminate needless suffering caused by the strangle-hold of a legal system too-rigidly founded on the affidavit system of evidence, that has aggravated this suffering; and perhaps even become deleterious to the system of enforcement and protection of the rights of its citizenry? We must grasp that the Bomas draft had a better understanding of how the post-colonial legal system should change to genuinely address the needs of poor people, the needs of the illiterate, and the needs of those who travel vast distances (where a simple affidavit may turn out to be the biggest obstacle for some to traverse on their long path to justice). This piece of law would have changed all of that forever, and is based in the doctrine of ‘epistolary locus’ pioneered by former Chief Justice Bhagwati of the Indian Supreme Court.
This law would have ensured that to begin proceedings in court where a ‘human rights’ violation had been averred, lesser forms of evidence than that of an affidavit could now be considered sufficient to initiate legal proceedings. Under this clause, a person (or group of persons), could now seek remedy from the courts with such bare bone evidence as a letter, or scraps of newspaper that detailed a human rights violation. The Wako draft does not compel any court to do this at all. Let alone charge the CJ into swift action to redefine the rules of court procedure to suit these needs.
This law would have paved a new way forward for the Kenyan court system to address how it administrates the handling of the rights and entitlements of the citizenry, and in a truly beneficent manner too. It would be very unfortunate if such an omission was due to some clerical error.
It is true that the choice of the Wako draft when compared the current operational constitution is the hands down winner; this, however should not excuse such an omission. Especially since it was a particular, clear, and direct administrative order to the Chief Justice. Further, if this order was left out because of oversight, I only hope that news of such a shortcoming is addressed when the Attorney-General confronts the matter of any errata he may have committed during his conversion of text.
I hope that these thoughts will be party to any debate about the future of the legal system in Kenya, via its new constitution. I have attached to this letter a transcription of relevant text as it appears in the Wako-draft in regards to this matter, and I have labeled it Appendix [B]. Please refer to it as needed.
Sincerely,
Shermit Lamba
(Jurist)
B.A,B.Sc, LL.M.Dist.
APPENDIX [A]
(Housing Rights)
WAKO DRAFT
BILL OF RIGHTS (Ch6)
PART II – FUNDAMENTAL RIGHTS & FREEDOMS
Housing
63. Every person has the right to affordable and adequate housing.
[TWO MISSING CLAUSES REGARDING THE PREVENTION ARBITRARY EVICTIONS AND HOUSE DEMOLISHING SHOULD APPEAR HERE]
APPENDIX [B]
(Epistolary Locus)
WAKO DRAFT
BILL OF RIGHTS (Ch6)
Section 32
(3) For the purposes of clause (1), the Chief Justice shall make rules of procedure which shall satisfy the criteria that –
(a) the right of standing provided for in this Article is fully facilitated;
(b) formalities relating to the proceedings are kept to the minimum; [THE DISPUTED CLAUSE SHOULD APPEAR HERE].
(c) the court, while observing the rules of natural justice, shall not be unreasonably restricted by technical requirements;
(d) no fee may be payable by an indigent person for commencing proceedings under this Article; and
***********************************************************************************(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.
Editorial Note from Onyango Oloo, Kenya Democracy Project, Montreal, Quebec:
We truly appreciate the timely scholarly/activist intervention of Shermit Lamba who is also the author of the following publications:
Towards New Constitution of Kenya: Essentail Ideas of Justice, Principle and Process
Title: Towards New Constitution of Kenya: Essential Ideas of Justice, Principle and Process
Author: Shermit Lamba
Published By: Mazingira Institute, Nairobi, Kenya, 2000.
Type of Publication: Monograph
ISBN#: 9966-9994-4-2
Abstract: The article first summarizes the stalemate in public debate on a new constitution for Kenya at the turn of the millennium. It then discusses the fundamental ideas of justice and principle which should guide the process of constitution making. These are analyzed in the context of Kenyan realities. Four models of constitution making that have been articulated in public debate are examine: the constituent assembly, executive branch, evolutionary and parliamentary models. These are evaluated in relation to justice and principle and guides to the process are outlined. Finally, the constituent assembly and parliamentary models are compared in relation to justice, principle and the realities of power in Kenya.
Conceptualizing a Just Freedom:
In Search of Life and Virtuous Governance in Kenya
Title: Conceptualizing a Just Freedom: In Search
of Life and Virtuous Governance in Kenya
Author: Shermit Lamba
Published By: Mazingira Institute, Nairobi,
Kenya, 2000.
ISBN# 9966-9994-4-2
Abstract: The article delves into "What are the fundamental questions that we need to ask ourselves as Kenyans when searching for a new constitution?" A critique of the philosophical roots of ideas that govern choices about the future leads to the formulation of an approach to just governance. Essential principles of social justice and rights are developed, based on a critique of the dominant metanorm of globalization and neo liberalism in general. The idea of virtuous governance is proposed, and even a strategy for change towards putting it in practice.
Kenyan Courts
Title: There is a better way:An intoduction to the Development as Freedom Approach
Author: Shermit Lamba
Published By: Mazingira Institute. 2002`
Abstract:
"There shall be a fundamental right to good standing locus standii, including the fundamental right to epistolary standing (through written correspondence) to move the court for a remedy…for anyone acting in the public or common good."
This is just one of the proposed provisions of the new constitution that would mark a radical departure from the legal principles and practices in Kenya in this presentation to the Constitution of Kenya Review Commission (CKRC) by Shermit Lamba, Kenyan Jurist. It is couched in a comprehensive proposal for democratizing the judiciary, and for the administration of justice and courts in Kenya-areas that in the past have failed to foster trust between the ruled and the rulers in the context of an unequal social contract.
The proposals are, therefore made in the context of genuinely fresh constitution making-with the end of restoring trust between the people and a new people owned state.
This solidly valuable contribution covers wide ground. It addresses the concept of the role of the judiciary in the administration of the rule of law, in enforcing fundamental rights, creating trust between state and government and republic. It addresses the question of locus standii and boldly proposes opening up the courts to the people by the liberal interpretation of the right of good standing. Beyond this the contribution grapples with the political, procedural and bureaucratic aspects of liberalizing access to justice by the broad spectrum of Kenya's citizens.
It proposes the creation of three councils that will ensure a democratized judiciary. The Judicial Appointment Council will be anchored in the people, for the council will be recruited through advertisement, which will give broad sections of the society (incuding disadvantaged groups) the opportunity to apply for inclusion. The Judicial Complaints Council will listen to accusations against Judges. And the novel Judicial Marches council will be based on the Indian model, a programme that encourages judges to "take long marches through remote villages to solve people's grievances"; these judges are empowered to convert letters alleging rights violations into petitions.
The Contributions finally addresses the question of enforcing the concept of the separation of powers in rural villages, by creating empowered village and and neighborhood courts-thereby liberating the majority of Kenya's people from the unconstitutional domination of a provincial administration which plays a quasi-judicial and quasi punitive role.
After grappling with the nitty-gritty of matters like court buildings, court adornments and creating filing systems, the author of this contribution offers convincing answers to his initial questions: What does the most socially just legal system look like? How do you build it? How do you operate it?
It is constitution-making time in Kenya. All of us want to study this document.
A Post-Colonial Theory of Justice: Towards the new Constitution of Kenya.
Title:A Post-Colonial Theory of Justice: Towards the new Constitution of Kenya.
Author: Shermit Lamba
Published By: Mazingira Institute, Nairobi, 1982.
Abstract:
Kenya stands at a crossroads-desperately needing to overcome a crisis in its governance for it's very survival as a viable nation-state. The glaring symptoms of its crisis range from the spectre of bloody tribal clashes, a looming but uncertain presidential transition to the inability of millions of households to sustain livelihoods.
some people hope the planned constitutional review may go some way into resolving the crisis, and the continuing debate about the constitution has not been wholly drowned by the national despair and despair-generated apathy.
This book is the autho's concerned and well reasoned contribution to this debate. the author starts at the beginning-the imposition on the peoples of kenya of a colonial state constituted on the basis of imperial-inspired contract law and philosophy. He demonstrates that Kenya has remained shackled tothis legal tradition through the years of it's independence. The highlights of this concise book, a piece of writing packed with incisive thought per square centimetre, are the author's suggestions about how Kenya can liberate itself from this tardition.
The suggestions are encased in the author's strikingly fresh theory which marries the notions of "justice as process" and justice as substance"-as a check, as fairness-addressing the plight of the weak and the oppressed. Does the author manage a marriage of liberal and socialist jurisprudence?
His suggestions on how to constitute the offices of law in a anew dispenstion will surely excite lively debate.
posted by Kenya Democracy Project at
6:36 AM
