The race for the male representative of the Law Society of Kenya to the Judicial Service Commission is heating up, although a court order against conducting the polls has tempered its tone.
Omwanza Ombati is giving his opponents a run for their money, sustaining his pitch in every forum he suspects lawyers are in attendance. He has taken the lead role in ground-breaking and public interest litigation. Amid his busy campaign stops, he sat down with the Star to discuss his candidature. Excerpt.
Q: Claims are flying that you are backed by Kenya Kwanza politicians and you are the state candidate in this campaign. Are they credible?
A: Those are claims made by my opponents and they know themselves. It is an unfortunate characterisation to play dog-whistle politics in this campaign. Dog-whistle politics is about priming a constituency and then directing them to a red herring to have an objective debate lost.
I accept that I represented William Ruto as an advocate in the 2022 presidential election petition at the Supreme Court. I was invited to the team by Fred Ngatia and not Ruto himself. The Cab-rank rule allows a lawyer not to be associated with the causes of clients, otherwise advocates would not have any opinion, be they politics.
I don’t know the President at a personal level and I have never visited the State House in my entire life, unlike my opponent whom we’ve seen taking tea on the lawns of State House frequently. I’m a professional and it has taken me 20 years to build my name and I won’t squander it for political expediency.
Q: How has your 20 years in law prepared you to represent lawyers at the Judicial Service Commission?
A: I have practiced law for the last 20 years, hence I’m well-seasoned to engage in the profession in terms of experience, competence, and suitability to run for this seat.
I have mentored about 50 pupils who in their own ways have gone ahead to become highly accomplished lawyers. I like saying, this without discriminating, that one of my pupils is an MP for Taita, John Bwire, the one who defeated Naomi Shabaan.
I’m happy that I have made that contribution. I have also contributed in the LSK in many ways. I have engaged in public-interest litigation and have made contributions in multiple ways that have made the practice of law better.
Among them was when I sued the Chief Justice over the Supreme Court presidential election rules that provided that advocates, interested parties and members of the public could not comment about the outcome or the proceeding that was ongoing that would be triggered by the 2022 elections. It got quashed.
Earlier on in my career, I was also engaged with the West Kenya branch of the Law Society to challenge regulations or practice directions that had been issued by Chief Justice to stop any filing of matters that were concerned with JR or constitutional matters.
We did that with JV Odunga who was then a practitioner in Kisumu and now he is a Court of Appeal judge. We succeeded in getting a stay and that Gazette notice was recalled. It was number 301 of 2008.
I have also participated in many other ground-breaking litigations for society, like the 2017 Raila Odinga petition when I sought court’s interpretation of Section 83 of the Elections Act. In 2018 I was awarded, by the LSK, as the pro bono lawyer of the year.
I went to court to challenge Procamla (Proceeds of Crime and Anti-Money Laundering Act, 2009), amendments which affected the practice of law and we got a stay. Later LSK joined in as an intervener and that matter got settled last year by the Law Society with the Financial Reporting Centre, together with Parliament in terms of the provisions that were acceptable to members.
During Covid in 2020, I also went to court and got orders that classified lawyers as essential service providers. So that is my history regarding my involvement with the society.
In terms of my agenda for the JSC position, I have a four-point plan. First is to be a visible and accountable representative. We have had challenges with the leadership of the Kenya Law Society and members accessing their own representative and yet the true meaning of representation is actually being available for members and offering services.
Second is the judicial independence and the rule of law. However, I want to make the Judiciary accountable under Article 172 of the constitution. Third is to champion for more opportunities for lawyers in the Judiciary, and also being able to push for their appointment whenever opportunities arise from judgeships to magistracies, to legal researchers and anywhere else the input of the bar is required. I will be their voice at the table of JSC. Last is to smooth practice areas for lawyers. For example, right now we have clerks drafting legal documents and charging for that, hence, taking real work from lawyers.
Q: You have tried your hand in LSK politics before, unsuccessfully running for its presidency. Why didn’t you try again this time?
A: I’m more of a professional and a person who is immersed in practice. JSC is the commission that affects the practice of law day to day. The mandate of JSC is narrower than that of the president of the Law Society. The president of the Law Society plays on a bigger plate and has a broad mandate including member welfare, protection of rule of law, a bit of politics, public interest litigation and a hence a big mandate. So I thought this role fits me because it moves from politics to professionalism.
The mandate of the JSC is quite professional and it affects us on a day-to-day basis on delivering to our clients, how the public is consuming services from the Judiciary and the broad principles of the rule of law and administration of justice. This is what motivated me.
Q: Like Macharia Njeru (outgoing LSK representative to JSC), will you commit not to practice if elected, and not seek second term?
A: That was Macharia Njeru and I cannot run on his agenda. He’s run his term and it is ending, and I cannot take over his commitments. Members will judge him on his deliverables. JSC is not a full-time commission. Judges who sit there also sit in court. If you don’t practice, you become disengaged from the constituency and you elevate yourself above the rest. Unless it’s a matter of conflict of interest. One commissioner cannot determine the outcome.
Q: Which Judicial reforms do you envision to push from your JSC seat?
A: Expansion of courts to every county as provided for in the law. We should have a High Court in every county and other lower courts should be in each of the 290 constituencies. Expansion of small claims courts is also top of my agenda. Hiring more judges, magistrate and researchers as well as support staff are also key flagships I will pursue.
Q: How do you think corruption in the Judiciary can be dealt with?
A: That question should be clarified because members of the public don’t seem clear on it. Right now, if you have any complaint on the Judiciary, they are received by the Judiciary Ombudsman who is in the office of the Chief Justice. If from the complaints a notice to show cause arises, they are directed to the JSC. For judges, the complaint is directed to the JSC and a proper process is triggered where cogent evidence is called and the judge asked to give their defence. The other issue is that the JSC seems to have a delay because they don’t have specific timelines when the matters should be dispensed with, and right now they are processing regulations on that.
Q: What’s your comment on CJ Martha Koome meeting the President and Speaker of National Assembly?
A: Mutuality of the arms of the government, without impugning their independence, is a constitutional principle. But in terms of mandate, the JSC cannot cede its constitutional mandate to the President or any arm of government or politician. My view is that the meeting between CJ and the politicians cause a public perception that she is kowtowing to the Executive. But also, a question worth pondering, what happens if the CJ goes to Parliament looking for money to fund the Judiciary because Parliament has the power of the purse? The President has a representation to the commission and if he has any complaints, he should follow the law.
Q: Who is Omwanza Ombati?
A: I’m a member of the greater society, not just LSK. I’m outgoing and sociable. I’m humorous, I’m a relatable and warm human. I’m a Christian, in SDA, and I believe in a society that is fair and just. I also want to make my contribution so that when all is said and done, I am able to account to God.