2016 Public Lecture by Mr. Sharad Rao

2016 Public Lecture by Mr. Sharad Rao

 

courtesy: Vasant Nadkarni

by 
Mr Sharad Rao, former Director of Public Prosecutions and Chairman of Kenya Judges and Magistrates Vetting Board

The Gandhi Memorial Trust co-hosted a public lecture by the Hon'ble Mr. Sharad Rao, former Director of Public Prosecutions and Chairman of Kenya Judges and Magistrates Vetting Board. The event which was held at the Bar Council Auditorium in the late Friday afternoon of 15 April 2016, was graced by members of the judicial and legal fraternity and Diplomatic Corps as well as Trustees and friends.

Public Lecture

I was called to Bar in London just over 55 years ago. 16th June 1959 to be precise by Lincoln’s Inn. A few weeks later I returned to Kenya.  

The big law firms then were all European and before independence it was their stated policy not to accept Asian or African lawyers even for articles. I was unable therefore to get any of them to accept me.

I thought of applying to the Crown Law office, and was invited for an interview by the Attorney General. I arrived at the Attorney General’s office and parked my car in the only parking space I noticed was empty. As there was still time I went for a cup of coffee to a nearby coffee house. When I returned I found my car blocked by another car and a whole lot of police men surrounding it. A European came out of the building and spoke very rudely to me asking why I had parked my car in the parking reserved for the Attorney General. I told him I had not seen any sign saying that it was reserved for the Attorney General. As he continued speaking rudely, almost shouting, I asked him who he was anyway to speak to me like that. He said he was the Attorney General. Naturally I didn’t present myself for the interview. About ten years later I was invited to join the Office of the Attorney General as Assistant DPP and parked my car in the same parking bay.     

I started in private practice in July 1960 and one of the first high profile cases I had was a criminal case against an Indian who was accused of killing his wife and family. It came up before a New Zealand judge, Justice Macduff, known for his eccentricities. He could be very difficult with counsel and witnesses in court. I was a daily target. Once when I was cross examining the Investigating Officer – one Senior Superintendent Baker, I asked Baker who had recorded a number of statements from the Accused without caution ‘what was the atmosphere like when you were speaking to my client.’ The judge said he didn’t understand my question. I repeated it. Again the judge said he didn’t understand the question. This went on for some time. I then turned to the judge and asked what the problem was. I said the witness had understood my question and so also everyone in court. He said the word is atmosphere and not atmosphere as I had pronounced it. I lost my cool and said ‘Judge, I thought we were conducting a murder trial and not an English language class.’ He never been spoken to like that, and threw his wig down and said “you will see me in chambers’ In the chamber he asked me to apologise but I refused.

My client was called Bassan. He had apparently arranged to kill his wife and children after having fallen in love with a nurse. His wife, from what we could make out from the photographs, was beautiful. Naturally all thought that the nurse would be just as beautiful. The court was full to capacity to see her when she came to give evidence. But in walked a short, fat woman with pox marks on her face. That evening I met the Judge at a Law Society reception. He walked over to me and said “Rao, if for no other reason, I shall hang your man for his taste in women’ I said I wouldn’t blame him for it.

Throughout the colonial period Kenya was segregated racially. Residential areas were reserved on racial basis, so were hospitals, schools, clubs, hotels, and restaurants. Toilets were marked European, Asian and African. Trains had compartments reserved for Europeans only.

Even the national museum was only opened to all races when Canon Leakey – the father of Richard Leaky the famous anthropologist, was appointed its curator in 1941 against outcry from the Europeans who disliked the idea of viewing the exhibits side by side with Africans who they claimed “were smelly” and Asians  who they said were “over scented”. That was in tune with Lady Delamere the wife of an early European settler who had remarked that ‘to be within measurable distance of an Indian coolie is very disagreeable’.

This was despite the fact that the money for the forerunner of the museum established in 1911 was donated by an Indian - Alidina Visram who paid for the one storey two rooms building.

It was only after Kenya’s independence in 1963 that the various institutions that had been racially segregated slowly but reluctantly started to open up, although some clubs continued to restrict their membership to Europeans for a long time even after independence.

And years after independence Europeans still resented non-Europeans moving into elite residential areas which had been restricted to Europeans. I bought my house in one of these areas in 1970. It is called Muthaiga. On the day we moved in our European neighbour – one Thornton who was Editor of a Settler newspaper shouted across the fence telling my mother to stop our dog from barking. This is Muthaiga not Parklands he told her. That evening I happened to see him at a cocktail party. I went up to him and told him that I was his new next door neighbour. I said whereas I am Indian my dog is not. He is European – a German Shepherd.

Asian immigration to Kenya began in earnest in 1895 when the British decided to build a railway and brought out workers from India to build it. 

The first group of Indian workers to arrive consisted of 350 men who came in a dhow from Karachi in 1895. Each paid Rupees 35 per person inclusive of rations for the passage from India to Kenya, and was allocated, under a Government of India regulation, nine square feet of deck. More followed and by the time the Railway reached Lake Victoria in 1901 there were 31,983 Indians working on the Railway. Of these 2,493 died in the construction - 4 workers for each mile of line laid; more than 38 dying every month during the six years.  A number of them were eaten up by the men eating lions which the European Engineer in charge of the construction said ‘had taken fancy to the Indian vegetarian and organic flesh. One of the Indian workers had been devoured just outside his tent. All that remained was his skull, a few fingers one of which had a silver ring. The ring along with his teeth were sent to his wife in India.

To make the railway viable the then Governor recommended the colonization of the Kenya Highlands - which one Briton had said was tailor made for English farms, and reserved the Highlands for the whites. ‘East Africa’, he said, ‘is not an ordinary colony. It is practically an estate belonging to His Majesty’s Government on which an enormous outlay has been made and which ought to repay that outlay’.

There were then 13 British settlers. The Governor sent his Chief of Customs to South Africa to attract more immigrants. Almost immediately every steam ship that arrived from Durban or Cape Town brought at least three dozen South African colonists. They were followed by British, Australians, Germans and Europeans of other descents who came to live a more privileged life style than what they were accustomed to in Europe.  Not surprisingly, Indians and Africans were subjected to discrimination at the hands of these European settlers - a majority of whom then were from South Africa and had come with the ambition of making Kenya a Whiteman’s country.

In an effort to attract immigrants the Foreign Office had even considered establishing a colony of Finns which did not come off. In another instance, an idea was floated by Joseph Chamberlain, Colonial Secretary and Zionist sympathiser, to hand over a large part of Kenya to Russian and Polish Jews. He confirmed the offer on a visit to Kenya in 1902 offering the Jews 5000 square miles or 3.2 million acres of prime land in the highlands with full self government, a Jewish Governor and right to practice their religion and customs. The proposal was resolutely opposed by the settlers who felt offended that land which was ideally suited to them should be handed over to “Jews from the ghettos of Russian and Polish cities”. To the Jews though it was unthinkable that the Children of Israel might settle anywhere else than the promised land.

Kenya became independent on 12th December, 1963. At that time the civil service was almost entirely Indian dominated, with Europeans in managerial positions. The Post Offices, Railway and other establishments were run by Indians. The legal and medical professions were dominated by Europeans and Asians. There were, I recall, only three African lawyers, one of whom was later disbarred, and two or three African doctors.

All judges and Magistrates during the colonial period were Europeans. After independence a few Asian judges and magistrates were appointed. The seventies saw an influx of locally trained African lawyers. Some of them gradually replaced the European and Asian Judges and magistrates.

Throughout the colonial period the Europeans were entitled to be tried by an all white jury, the Asians and Africans by a single judge assisted by 3 assessors who gave their opinions individually which were not binding on the judge.

It was not surprising that in August 1960 a European was found guilty and sentenced to death. It was a High Court ruling, upheld by the Court of Appeal.  One Peter Harold Poole, a 28-year old Engineer who owned an electrical shop in Nairobi was the first and only European ever to be hanged in Kenya. He was found guilty by an all white jury of killing his servant who had thrown a stone at one of Poole’s dogs which had bitten him.  “May courage be rewarded in heaven” shouted a white man, but “Justice has been done” said an African who was promptly arrested by prison warders. The Governor refused to exercise his prerogative of mercy. The settlers reacted with anger because they said “he had only killed a black man.” The then labour Under Secretary disagreed with the Governor’s refusal to grant a reprieve and said it was a mistake while an MP Marcus Liptur described it as “callous.”  But a London newspaper commented saying ‘all men regardless of colour became equal at the end of a rope.’

When I said that was the first case where a European had been convicted by an all white jury was not quite true. There was a case of another European who had been charged with murder and had an all white jury to try him. He had a friend among the jurors and he was able to persuade his friend that he should insist on a verdict of manslaughter and not murder. When the jury did find the accused guilty of manslaughter the accused went up to thank his friend on the jury. The juror said that he fought hard to get the jury to agree to convict him of manslaughter. They were all out he said to acquit him!

It took a while for Kenya to appoint an African Chief Justice. The first African Chief Justice though academically well qualified was a disaster. He ran a bus service and spent most of his time sitting in his counting house counting his money. A successor spent most of his evenings at a casino. A European Chief Justice brought back to remedy the situation established a direct line to State House and sought directions in every politically sensitive case. Indeed few of our Chief Justices, if any, showed an independence of mind and action in the discharge of their responsibilities.

Law enforcement slackened in the late 80s and the integrity level fell to its lowest. Several magistrates and even judges in collusion with lawyers took to accepting bribes. Why hire a lawyer – one asked, when you can buy the judge. Stories about inappropriate interactions between judges and lawyers became commonplace. It was acknowledged that corruption within the judiciary was largely the product of corruption within the advocates.

In addressing corruption as an obstacle to the rule of law, the Government set up in 2003 an ‘Integrity and Anti-Corruption Committee of the Judiciary. The committee cited credible evidence of corruption on the part of a number of judges and magistrates. Prior to informing those accused of the allegations against them, a ‘list of shame’ was published in the media, naming the judges and magistrates mentioned in the report.

However, the process of publicly naming individual judges and magistrates as corrupt without giving them prior notice of charges was widely criticized, as was the pressure placed on them to resign from office.

By then public confidence in the judiciary had virtually collapsed. Given the public’s express concerns about the poor state of the judicial system, these concerns had to be addressed in a way that restored public confidence in the administration of justice.

This was the historical and constitutional context in which, as a transitional measure to help restore public confidence in the judiciary, the Kenya Judges and Magistrates Vetting Board was established which I have the honour to chair.

In Kenya all too often judicial skills had been used to honour the text of the previous constitution, which included a bill of rights, more in the breach than in the observance. It followed from this that, although one-off in character, the vetting of judges could not be seen as a stand-alone activity. Rather, it constituted one of a raft of measures designed to revitalise and restore public confidence in the judiciary.

The new Constitution came into force on 27th August 2010. All judges and magistrates who held office before 28 August 2010 were not subjected to vetting.

The Constitution and the Act established a comprehensive and objective system of factors that must guide the vetting process. The Constitution required that judges be vetted to determine their suitability to hold office in accordance with the values and principles set out in the Constitution. These values and principles include the rule of law, democracy and participation of the people, human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized, good governance, integrity, transparency and accountability.

The vetting process was sui generis – of its own kind. It could not be equated with, or modelled on, impeachment or a disciplinary hearing, or a criminal or civil trial, or a job interview or a security clearance. Its modalities had to be structured around the objectives, processes and values identified by the Constitution and the Act. The Board had to function carefully and appropriately within those specific constitutional and statutory parameters.

The Board’s objective was not to punish, discipline, exonerate or reward a judge, but to help restore public confidence in the judiciary.

Eligibility could not be determined in a pre-ordained or mechanical manner. There could not be a one-size-fits-all formula. Selection had to be fairly and appropriately arrived at, based on a holistic evaluation of suitability based on the specific material before the Board, coupled with the answers given and the impression made by the judge at the interview.

The constitution provided an ouster clause whereby our determinations could not be challenged in court. Thus Board had both the first and the final word on the suitability of the judge. All of these underlined the importance of the Board weighing the evidence before it with special care. It had to ensure that its evaluations were solidly based on the material before it. Indeed, restoring public confidence in the judiciary required the Board to function in a manner that was expeditious but at the same time firm, and fair. In a word, the vetting process itself had to be just.

Lack of impartiality played a particularly significant role in relation to the judges on the Court of Appeal, which, until recently, had been the highest court in the land. Relying largely on pronouncements made by the judges themselves, the Board found that three of these judges had significantly and unduly distorted the law in a manner that granted impunity to powerful and wealthy public figures. Given their lack of introspection and capacity to face up to the damage that their decisions had caused to public confidence in the judiciary, the Board decided that they were not suitable to remain in office.

Although there were strong grounds for believing that corruption had penetrated deeply into the judiciary, relatively little hard evidence came to the fore. Therefore some judges who though widely accepted as been ‘on the take’ ended up being declared suitable because the Board based its determinations on evidence and not general perceptions of bribe taking.

The Board was conscious that each judge has an individual judicial conscience; in any jurisdiction, some judges tend to be literalist in their approach to interpreting laws, others more purposive; some develop a reputation for being executive-minded, others for favouring the individual; some as being tough on crime, others soft.

These were not issues of direct concern to the Board. Its queries, rather, related not so much to whether a particular case had been correctly decided on the facts or the law, but to whether the decision had been so extraordinary in itself, and so embedded in a larger pattern of legally-strained decisions, as to point to the existence of a judicial mind-set that was manifestly lacking in fairness and impartiality. Associated with this was the issue of whether the decision(s) involved an unacceptable degree of bending of the law in order to achieve a pre-determined result favouring powerful personalities.

One judge was questioned extensively about his handling of a petition brought by a Presidential candidate in the 1992 elections who had been declared a winner, alleging irregularities in the voting process. The judge participated in two decisions of the Court of Appeal which had the cumulative effect of preventing the Elections Court which had the sole jurisdiction to decide an election dispute from hearing this petition. The decision of the Court of Appeal was that the candidate, who was paralysed following his detention by the state, could not authorise his wife to sign the petition on his behalf, and the Petition therefore was a nullity. The Board was astonished by the totally unpersuasive technics of the principal judgment, which had read the statutory provision concerned in a peremptory and totally literal way that excluded any possibility of signature by anyone else in any circumstances, even where the petitioner was unable to sign for himself because of physical incapacity. Counsel asked what if the Petitioner had no hands, to which the judge retorted that a person who has no hands has no business to want to be the President of Kenya. 

The Act also required the Board to take into account a number of other factors such as professional competence, which includes the ability to work well with a variety of people, and demonstrable possession of compassion and humility. In assessing work style and temperament the Board noted that judges are not automatons. They are human beings drawn from the ranks of the people. They too have their emotions, their pride, their sensitivities and their disappointments. And yet as judges, while retaining close links to the people, they have to abstract themselves from the ordinary hurly-burly of popular life.

Public trust in the fairness and objectivity of the courts is central to the successful operation of the judiciary. If the courts themselves behave in an unjust way, then the public lose confidence both in the judiciary as an institution, and in the Constitution as the basic law of society.

Even though in the most difficult times many Kenyan judges had fulfilled their functions with dignity and fairness, many had become identified with arbitrariness and intrigue. Cultivating an imperial style, any criticism of the way they worked was treated as an attack on them as persons so that intolerance became the order of the day. Contempt of court proceedings instituted in the name of upholding the dignity of the courts, easily morphed into clumsy mechanisms for preserving the self-esteem of thin-skinned and easily-wounded judicial officers. Judicial caprice created a climate in which advocates hesitated to do their duty to speak fearlessly. As guardians of justice, the courts had themselves to be just in everything they did.

Everyone who entered a court was entitled to receive equal concern and protection. There should have been no room for uncivil, arbitrary or unduly subjective emotionalism by the judge. The judicial oath may not require judges to love their litigants but it does obligate them never to despise, belittle or wound their litigants in a way that they would not permit themselves. 

The Board bore in mind that judges were individuals in their own right, with their respective style of work and temperament. Some judges hardly opened their mouths, while others never closed them. What mattered was that differences of individual work style and temperament should not e so capricious as to transgress certain shared parameters of expected judicial behaviour. In particular, behavioural tics should not be so exaggerated as to affect the manner in which justice is done, and seen to be done and thus tarnish the reputation of the judiciary as an institution playing a key role in upholding constitutional democracy.

It is accepted that judges have good days and bad days. Also that if every frown or impatient gesture would render a judge unsuitable, then the Bench could be completely denuded of incumbents. The ultimate test is whether, bearing in mind all the difficulties under which the judiciary operates, and acknowledging that a degree of robustness and lack of polish does not need to be fatal, the judge’s conduct is so injurious, repetitive and, in all likelihood, so unamenable to correction, that any reasonable member of the public would say: ‘That’s just too much, this person is incorrigible and simply not fit to be a judge!’

Delay in rendering judgments and rulings again points to their unsuitability as judges. Delivering a judgment is a judge’s core function, and is neither a favour nor a courtesy to the litigant. It invokes his or her individual conscience and literally lies in his or her hands (or, if delivered orally, issues from his or her mouth).

Leaving litigants in limbo grievously undermines the dignity of the court and encourages corruption. The litigants want to enjoy all the rights promised to them in the Constitution; they want to do so not in some imaginary world of abstract words, but in the here and now of their daily lives. It is not right therefore that they be condemned to ask for the bread of justice, only to receive the stone of silence.

The raising of technical and procedural issues has been a particularly strong weapon in the armoury of those seeking to defend the powerful and the wealthy with the connivance of compliant judges. Far from furthering the rule of law, these narrow, technical rulings, issued in the name of legality, has contributed massively to the prevalence of impunity.

This is recognized in the new Constitution which contains express provisions to ensure that judicial authority is exercised to ensure that justice is done to all irrespective of status, that justice is not delayed and is administered without undue regard to procedural technicalities and thereby help create a judiciary that the public believes would fearlessly uphold the rights of all in society, particularly those whose rights have most been disregarded in the past. It was to remove the taint of being seen as a judiciary that is corrupt, unduly favourable to those in power, obsessed with technicalities, incapable of dealing with cases with requisite promptness and generally unable or unwilling to administer justice in an appropriate manner. It was thus in the interest of the judiciary as a whole, and of each member, that a fresh start be made so that the public is persuaded that the traumas undergone by litigants in the past will not continue into the future. Seen in this light, the vetting process was not inherently threatening to the rule of law or the independence of the judiciary.

To conclude allow me to refer once again to the New Zealand judge I spoke about earlier. As I told you this judge was difficult with everyone who appeared before him and most lawyers would pass on their briefs to someone who dared appear before him rather face his wrath. One Patel was brave enough to appear before him. Appearing in his best dark jacket and pin striped trousers, he stood up to address the Judge. ‘I appear’, he said, ‘for the Accused’ The judge responded – “I cannot hear you”. Patel spoke louder and again the Judge said he could not hear him. This went on until the Judge told the prosecuting counsel to tell Patel him why he couldn’t hear him. Apparently Patel was wearing a pink inner jacket and that had offended the judge. He adjourned the case for a few minutes for Patel to go and change his jacket. When Patel appeared again, this time wearing a dark inner jacket he proudly stood up and putting his thumbs behind him and laying bear his coat as most lawyers do he said confidently ‘I appear for the Accused’. The judge responded ‘Yes, Mr. Patel I can now hear you, but if I were acting for the Accused I would not open my brief so early in the trial.’ Patel had in a hurry forgotten to zip his trousers. Let me close my brief here.