• Senior Counsel dismisses fears that his perceived closeness to the President might interfere with the independence of Judiciary.
• Says though he is happy to have represented the head of state, their relationship ended at the end of the cases.
Image: CHARLENE MARWA
Senior Counsel Fred Ngatia on Tuesday urged the Judicial Service Commission not to discriminate against him over his representation of President Uhuru Kenyatta in two election petitions.
Ngatia said President Kenyatta was a client like any other and has not in any way tried to influence him or interfere with his decisions.
He told the JSC panel that it should not be used to deny him the chief justice job.
He dismissed fears that his perceived closeness to the President might interfere with the independence of the Judiciary, saying although he is happy to have represented the head of state, their relationship ended at the end of the cases.
“I was appointed in 2013 to lead a team, for which I am forever grateful, and in 2017, I was appointed to do the same. Despite acting for the President-elect, I went back to my private practice. The President has at no time tried to interfere or influence me in any decision I have made,” he told the JSC interviewing panel.
“No Kenyan properly informed will see me as being influenced by the president. I have worked for condemned prisoners, many other Kenyans and I am not in any way influenced. Do not discriminate against me for the clients I have acted for. Judge me across board,” Ngatia said.
He noted that the politicians were not raising the matter.
"But why is that political formations are not raising it? Why is it people who ought to be afraid are not raising it?" he posed.
He was also put to task over his closeness to the President by commissioner Macharia Njeru, who noted that the [Catholic] church he attends had thanked him for bringing both the President and his deputy for a fundraiser.
In his response, Ngatia said as a devout Catholic he does a lot of work for the church and they are putting up a big structure in honour of Consolata missionaries.
“We decided to have a fundraising and the first person I approached is our MP Wanyonyi. We invited Uhuru as a Catholic,” he said.
When the issue of the public perception of his closeness to the President kept on emerging, he said, “I think it is important I say this as clearly as I can. 2013 great mark of honour to be entrusted with this task. This it was a one off.”
“In other words, after I finalised our work, I never continued to work for the President and it ought to be put in public knowledge. I have never been a member of the Jubilee Party not that there’s anything wrong but I prefer to be lawyer for everybody”.
“I am here as a candidate as people of Kenya I am their candidate and given the honour to serve to them, I would be appearing for the people of Kenya,” Ngatia said.
When he was questioned about KRA non-compliance, he said he has a tax compliance certificate, but the agency told him that all candidates needed to go to their offices.
He sent his tax consultant who was told that he had a Sh1 million penalty, which he paid.
Ngatia, however, said he sees a third hand in the KRA issue that wants to take advantage of the CJ candidates.
The lawyer, who did his second masters in Applied Philosophy and Ethics at Strathmore conducted research on whether euthanasia should be administered by medical doctors. His thesis was aimed at helping superior courts reach a decision when faced with the question of ending someone’s life.
When the panel asked him where he stands on the issue, he said “an individual is because others are” as opposed to saying “a person is a sovereign being”.
He took the team through different approaches taken on the issue, with one example being the decision of Judge Kennedy of the UK, which held that ultimately, one is responsible for their body and what to do with it.
The decision has had a direct influence on abortion and euthanasia.
“But I would say I am who I am because you are,” Ngatia said in his conclusion.
When asked whether or not it is time for Kenya to appoint a female CJ, Ngatia said what JSC should consider is merit more than gender.
“I would not be gender-driven in an important process as this. I am not saying a lady is not sufficient but will look for an able leader. I will not discriminate [against]. The most merited person is what I think the JSC should go for.”
He said he would want to be remembered as the CJ who not only cleared the backlog of cases but also ensured expeditious disposal of cases.
He gave an example of Singapore, where he wants to borrow from.
“Singapore had a huge backlog of cases and has done special reading and within four years, Singapore did overcome that backlog and simultaneously put in place a system I am craving for that ensured cases are dealt with in good time.”
He added: “It’s one of the shining examples of what can be done in a short time.
As a CJ, he said, he will ensure criminal cases are concluded in six months.
“I would not be CJ where criminal cases take so long that witnesses disappear and acquittals are granted,” he said.
And in order to achieve this ambitious proposal, he said, he will talk to all stakeholders in the National Council on Administration of Justice to play their roles.
He said, if appointed CJ, he will move the Judiciary to the next level by putting in place a system that ensures expeditious disposal of cases.
Though he said the Judiciary has under the past two chief justices concentrated on access to justice through hiring of more judges and building more courtrooms, there is a need to move to the next level which can only be done through quick finalisation of cases.
On the issue of delayed appointment of 41 judges, he said he would dialogue with other arms of government to have them appointed.
Ngatia said he would adopt a day-to-day hearing of cases and enhancement of IT capability to ensure the Judiciary clears the backlog.
He also noted that ethics is one of his core attributes and as such, he will bring that on board and inculcate the culture of service to the Judiciary.
Ngatia said he would also bring on board the value of continuous learning. He said he managed to be a successful lawyer due to his perseverance, laying brick by brick.
On the issue of whether an insider or an outsider should become the 15th chief justice, he said, merit should guide the commission.
He gave an example of Chief Justice Earl Warren of the US, whom he said having come from private practice and at one time being governor, managed to abolish racial segregation in America.
“Warren is coming from a lawyer; he never held a judicial position and became CJ and the question of racial segregation came and Warren marshalled all his colleagues and held that there can never be racial segregation in the US something career judges who became CJs were unable to do,” he said.
Ngatia has 41 years of legal experience under his belt.
Court of Appeal President William Ouko will face the panel on Wednesday.