Candidates Praise Bill of Rights But Urge Caution

Paul Juma

14 June 2011

Nairobi — A proposal by Parliament that the Supreme Court shall have special powers to reopen some old and concluded cases is not in the Constitution, according to a judge.

Mr Justice Alnashir Visram on Tuesday told the Judicial Service Commission that the power, which is contained in the Supreme Court Bill, was not provided for in the Constitution.

He was being interviewed for the position of judge of the Supreme Court, whose five successful nominees will be known in about a week.

However, acting chairperson of the interview panel Prof Christine Mango hinted results could be ready as early as Wednesday or Thursday.

In the Supreme Court Bill, Parliament has proposed that the court shall have special but limited discretion to reopen matters whose judgements had already been delivered by the Court of Appeal.

However, the proposal has a condition; the court will only consider reopening a case judgement was delivered by a judge who was later sacked because of corruption, or by a judge who will have failed the vetting of all judges.

It was the second time the judge appeared before the interview panel, as it was for judges Riaga Omollo, Martha Koome and Mbogoli Msagha.

The first time, the judges were interviewed as candidates for the Chief Justice. On Tuesday, they were recalled to give any additional insight they had for the Supreme Court.

Mr Justice Omollo told the commission that implementation of the Bill of Rights will be one of the most important areas, but urged caution.

He said the court will have to avoid giving orders to the government to provide food, housing or water. Court of Appeal Judge Joseph Nyamu held a similar position.

He told the interviewers that similar rights had been progressively implemented in South Africa, adding that the Supreme Court would require advice from experts in different disciplines to come up with a formula for implementing the rights.

For Mr Justice Mbogoli, the Supreme Court will have to develop ways to make justice accessible to all.

He also disagreed with a proposal that a special roll of lawyers who can appear before the highest court be made. That would be discrimination and would result into suits, he said.

Lady Justice Koome said that if appointed, she would take “a wealth of experience” to the Supreme Court.

The judge, who was appointed in 2003 after 15 years in legal practice and a stint as chairperson of Federation of Women Lawyers, added that she had worked to promote social justice thus had the necessary human rights background.

Lady Justice Kalpana Rawal, who was the last to be interviewed, said the court will have to provide leadership to fully realise the spirit of the Constitution.

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