• The cardinal rule of justice administration is espoused in the Latin maxim that states “audi alteram partem”, which means nobody shall be condemned unheard.
• But we saw the JSC break this cardinal rule and in the process, wasted taxpayers’ money in a tribunal that cleared Justice Jackton Ojwang of any wrongdoing.
Once upon a time, the Dog sued the Sheep for a debt, of which the Vulture and the Wolf were to be judges. The judges, without debating long upon the matter, or requesting for sufficient evidence against the Sheep, gave sentence for the plaintiff; who immediately tore the poor Sheep in pieces, and divided the spoil with the unjust judges.
This is a simple story of someone who treacherously persecutes and destroys innocent people. And the question on most of our minds is whether this is what the Judicial Service Commission has turned into.
The cardinal rule of justice administration is espoused in the Latin maxim that states “audi alteram partem”, which means nobody shall be condemned unheard. This is the bedrock of justice: That a person has a chance to face their accuser and explain their side of the story either in person or through a legal representative.
But recently, we saw the Judicial Service Commission break this cardinal rule and in the process, wasted taxpayers’ money in a tribunal that cleared Justice Jackton Ojwang of any wrongdoing.
For context, Nelson Oduor Onyango and others forwarded a complaint to the JSC against Justice Ojwang in March 2016. It was alleged that Migori Governor Okoth Obado had constructed a road for the Judge to his house as a form of bribery.
The JSC summoned Justice Ojwang to appear before it but the judge opted for an allowed path in the law of appointing a counsel to represent him. Instead of listening to the counsel, the JSC turned him away and referred the matter to the President to form a tribunal to investigate Justice Ojwang.
This tribunal has since established that Justice Ojwang was innocent of all the allegations made against him. It is clear that the JSC, in this case, acted as the prosecutor, judge and executioner by refusing to accommodate Justice Ojwang’s right to be represented by counsel.
One wonders how many other decisions of the JSC have been executed in a similar manner. JSC is not just any other body – it is the central pillar of our judicial system and should uphold the right of any accused to fair trial and fair representation.
Two of the JSC members are colleagues of the honourable judge at the Supreme Court and all its members are equally learned and experienced. It's, therefore, a travesty of justice that such esteemed persons would rely on conjectures, suppositions, and innuendos to ask the President form a tribunal to investigate the judge.
Public confidence in the JSC has been dwindling fast and this case just underscores this feeling among Kenyans. By refusing to accept his choice of representation, the JSC can only be said to have been seeking a replay of the humiliation the Judge went through during his infamous interviews for the position of Chief Justice.
In fact, one would rightly deduce that the JSC based its decision on a very weak premise where it is now a crime for two prominent people to know each other and be neighbours. Other than this fact, nothing concrete was adduced to show that this relationship between the governor and the judge has influenced the building of the road.
In any event, it’s not clear why the complaint, which was forwarded to the Commission in March 2016, was prosecuted in March 2019. Such inordinate delay was not explained and goes against the cornerstone of expeditiousness in dealing with judicial matters.
The JSC must be in the forefront of safeguarding the Constitution as this process has not only failed to follow procedure but also denied Justice Ojwang his rights besides tarnishing his name.
It would appear that the process was a show of bravado by the commission, which has now been deflated by the Visram led tribunal, and rightly so!
Kenyan’s look forward to seeing Justice Ojwang on the bench!