Being charged made me a better judge — Chitembwe

Justice Said Juma Chitembwe on Monday told the Judicial Service Commission that his having been charged in a court of law has made him a better judge.

Chitembwe is remembered for setting free a man who had been convicted of defilement. He defended his ruling, saying the child appeared willing to have sex with the defendant.

He had set free Martin Charo who was sentenced to 20 years in prison for defilement.

Chitembwe on Monday faced the JSC for interviews to become the next Chief Justice after David Maraga retired in January.

That ruling came up during the interview. Chitembwe explained it away saying despite the fact that law finds anybody who defiles someone below the age of 18 guilty, there has to be consideration of the practicality of the issue.

“How do you take a 19-year-old young man to 15 years in jail for having a relationship with a 17-year-old girl?” he wondered.

Chitembwe became emotional when he was asked by commissioner Evelyne Olwande what he thinks of prosecution given that he has gone through the process of being prosecuted and ended up with an acquittal.

The judge initially wondered why it took the judicial officer handling his case 30 days to give a bail ruling.

“As you say it’s the wearer of the shoe that knows, but mine cannot be a bad example because we were heard in one year and the magistrate ruled no case to answer.”

He added, “I moved to the court of appeal and said can the public know what I stole so that this issue is heard after 35 witness; no case to answer.”

That recollection made Chitembwe emotional. He said, "From experience, if you see an accused raising his hand in court listen to them."

He was charged with a corruption offence in relation to embezzlement of funds at the NSSF when he was the company secretary.

The judge also defended the executive against claims of interfering with the independence of the Judiciary, saying he was never influenced in his 12 years as a judge.

While answering questions from Attorney General Kihara Kariuki who is also a member of JSC, Chitembwe said he was never called by any chief justice to influence his decisions in favour of the Executive.

“I speak for myself. No CJ has ever called me to say the Executive wants this case to go in a certain way,” he said.

Chitembwe is one of the 10 candidates being interviewed for the position of Chief Justice.

He noted that his weakness is that he tends to overwork himself and also give lenient sentences.

However, he said he has learnt over time how to manage his time and not overwork himself as he tried to persuade the commission to give him the job.

The issue of overworking himself came up earlier in the interview when he indicated that he suffered diabetes as he overworked to clear a backlog of cases in the Kakamega High Court.

Chitembwe said he won't go to the Supreme Court with the mindset of fixing the bench because he sees no problem there. However, he said he will enhance collegiality in the Judiciary. The Chief Justice is the president of the Supreme Court.

Justice Chitembwe asked JSC to appoint him CJ because he understands what the Judiciary requires having worked there for 12 years.

He said he understands his colleagues and the institution very well which makes him suitable for the work.

“I have been in the Judiciary for 12 years now. I have seen it from the period where it was difficult to have a pen and foolscap to write on. I have seen what my predecessors have done. Judiciary needs one who is energetic and resourceful. One who appreciates the competencies of colleagues.”

Chitembwe was the first to face the JSC panel. He said he will not impose himself on the people as a leader.

“I am not here to tell you I am a charismatic leader like the likes of Napoleon who people follow what he says. I will be a people-centred leader whereby you use the energy and experiences of those you work with to transform the institution,” he said.

He told the commission that he will bring on board leadership skills he acquired while working at the National Social Security Fund.

At NSSF, Chitembwe was part of an investment committee that sat every week to look at the investments at the fund.

He said he has worked with senior and junior Judiciary officers with no problem.

Chitembwe wondered why anti-corruption cases take long to be determined yet the law provides that such matters be heard on a day-to-day basis.

He promised to ensure quick hearing and conclusion of corruption cases.

And this will be done by ensuring there is an anti-corruption court in most areas which will in turn reduce the need to bring suspects from far-flung areas like Samburu to be charged in Nairobi.

Chitembwe says he will not bring in any new agenda for the first six months if appointed CJ and will instead concentrate on dispensing justice within reasonable time.

On the issue of 41 judges who have been appointed but not sworn in after President Uhuru Kenyatta declined their appointment by the JSC, Chitembwe said he will try to negotiate to resolve the matter.

“I will approach the Executive and say we have a problem and the Court of Appeal is not working,” he said.

Commissioner Mohamed Warsame reminded him that the Court of Appeal was working. "Not working at optimal level," Chitembwe said.

He promised to find the reason behind the refusal by Executive to swear in the 41  judges and reach a compromise.

For example, he said, if he was to be told that he can have half the number of judges with no complaint sworn in, then he will accept it instead of insisting on the whole team.

“As the president of the Supreme Court, I will not solve it alone but I will sit down with the President and know their reasons for swearing-in. If there is no problem with 10 judges of Labour court, I will say swear them in then go to the Land division then to Court of Appeal. I have to know first what is the problem and if there are individuals who have a problem.”

Excerpt of the interview 

Commissioner Mwilu: Since the promulgation of Constitution, the institution has sung the transformation song. What to you is transformation and why?

Chitembwe: Thank you commissioner acting CJ. The Judiciary can be equated to even a business and one has to keep on their toes and keep on reengineering. We have to know where we came from. When I was recruited there were 42 judges and with a population of 40 million Kenyans, I don’t think the Judiciary could have served public. That’s why when Mutunga came in, he found the Judiciary in a position where it could not dispense justice.

Commissioner Mwilu: Please tell us what CJ Chitembwe brings in the form of transformation

Chitembwe: For the first six months in office, I will not bring in a new agenda other than pick from the strategic plan which is already running. I already know the weakness of the institution. I will pick up on sustaining the Judiciary transformation and do what Maraga did. I will emphasise on the core pillars such as access to justice. I will reduce the backlog of cases.

Commissioner Warsame: In your view, there is no problem to be resolved in the Supreme Court both in terms of working of the court, jurisprudence?

Chitembwe: Let me say this: If there are problems ... the Bible says if there is a problem return it to me and so [does] the Quran.

Warsame: In your view there is no problem in terms of perception, delayed judgment for you to settle?

Chitembwe: I don’t like beating about the bush. Perception will always be there how do you please perception.

Commissioner Warsame: Has jurisdiction of court in terms of criminal law, election petition been settled 10 years down the line?

Chitembwe: There has been dynamics.

Warsame: Has the jurisprudence to jurisdiction on arbitration, election matters and criminal matters been settled?

Chitembwe: I can’t say it has been settled. It is not a problem in the sense that a similar problem will come and judges will stick to their decision so what do you do? I am not a magician; I won’t tell judges why did you decide like this? It doesn’t work like that.

Edited by P.O