Mbote questioned over unethical use of colleague's work

Law lecturer Prof Patricia Mbote was on Tuesday put to task to explain integrity issues during an interview for the position of Chief Justice.

She was confronted to explain why she did not acknowledge Prof Migai Aketch when she used a concept note he developed to source for funding from Ford Foundation.

The concept note in question is about searching for balance and reflections on Kenya's presidential election in 2013, which she used to get funds from Ford.

Mbote said though Migai developed it, the concept was from the University of Nairobi and as such she was noted as the person responsible for it. She had the intention of having his name on a book that was to come out of the concept.

"I have given my response. It is the Judiciary that called me to work on a concept to discuss that very difficult Raila case. I called a number of people and Prof Migai put together the concept. In universities when you develop a concept it is submitted as a concept of UoN. Prof Magoha was not there so I was noted as the person responsible for the activities. I did involve Prof Migai and there was going to be a book but because his name was not on the concept he didn't want to work on it and we gave back the money for the book," she said.

She was also asked to respond to accusations of engaging in underhand activities that disadvantaged a candidate in relation to the Law Society of Kenya male member of the Judicial Service Commission, which she flatly denied having any interest in.

She further denied failing to attend critical meetings of LSK as a senior council member.

"It is not true that I was not at the meetings," she said.

She expressed support for creation of the controversial office of ombudsman for Judiciary proposed under the Building Bridges Initiative, with a view to making the institution more accountable.

She noted that creation of the office of ombudsman, which has received huge resistance from the Judiciary, is not a big deal because it makes the institution more answerable.

She said the issue should be approached with an open mind because, as things stand, mwananchi has no way of holding the Judiciary accountable.

"Anything that makes us answerable, for me is good. It is a good thing for the Judiciary."

However when pushed by commissioner David Majanja if she was suggesting that the JSC had failed in communicating what the Judiciary had achieved or done to warrant creation of the office of ombudsman, the professor appeared uncertain.

"I stand guided if judges think this is....how I had thought about it, it's not such a big deal," Mbote said.

She said she has engaged with BBI in two different capacities.

At the village level she was called up by the locals to look at the document and give interpretations, to which she obliged but made it clear that she did not take part in writing the document.

Secondly, she said she is currently engaged by Parliament to advise on the amendments proposed in the document.

Mbote said having built different institutions and led in academia she is best suited to be the Chief Justice.

She listed Strathmore Law School and organisations such as Women in Law in East Africa as institutions she started from scratch.

In academia, she said, she served as dean at the University of Nairobi for five years, leading the institution through difficult times.

"I am not only a leader but also an institution builder," she said.

Though leadership is not gendered, the professor said, she has an advantage being a woman because she will bring on board the gift of nurture.

However as a woman in leadership she encountered a few challenges such as being snubbed or assumed not to be dean when she was with male colleagues going for a function.

"I once went with my registrar who is a man to an event and given that I am not huge or built the organisers welcomed the registrar as the dean and I said, well, proceed dean," she said.

If appointed CJ, Mbote said, she will enrich the bench with her intellectual contributions having been in academia.

Even though she has not done private legal practice she assured Kenyans that she is up to the task having done some work for the Judiciary such as birthing the performance improvement documents, which she said has helped her have an in-depth understanding of the institution.

Prof Mbote said disobedience of court orders is an issue of great concern.

Even though she would not keep a black book of those disobeying court orders, she would engage in talks with different arms of government over the issue with the aim of promoting the rule of law.

"I will talk to different arms of government about working together to ensure the rule of law is abided by because failure to abide by rule of law will affect the entire nation," she said.

She said she would deploy technology to deal with the backlog of court cases.

Prof Mbote said that she will try to ensure that courts that are now hearing cases virtually due to the disruptions of Covid-19 record proceedings which then can be downloaded and will help in reducing the time within which a decision is reached.

"The issue of long hand writing is no longer a problem because they can record proceedings and one can download the recordings and make decisions quickly," she said.

Mbote proposed talks with the Executive to resolve the issue of failure by President Uhuru Kenyatta to appoint the 41 judges selected by the JSC.

If selected CJ, Prof Mbote said she would tackle underfunding of the Judiciary.

She would leverage her networks in academia and request her colleagues to teach Judiciary staff without pay.

She believes the current budget set for JSC is not sufficient. Prof Mbote would also reach out to her international networks for funding.

Mbote who described herself as a scholar and an intellectual said she will use her strength to contribute and lead the Supreme Court in setting jurisprudence.

She acknowledged that there are challenges facing Judiciary in achieving judicial accountability.

She said the Judiciary Fund should be operationalised so that the institution is able to determine its use of finances.

Prof Mbote said she would make good use of the office of the ombudsman to tackle corruption.

"The whole issue of the Judiciary being corrupt I have not done any research but there is a perception of corruption, which is as bad if not worse than corruption itself," she said.

"You have to use carrots and sticks. As the CJ, I will get the institution to accept the perception of corruption is not good. Then I would use the mechanisms that are there such as process of whistle blowers who then enable us to get those engaged in the vice and once you get one and handle it well you would have removed the rotten egg."