REPUBLIC OF KENYA THE JUDICIARY

Transcription

1 REPUBLIC OF KENYA THE JUDICIARY REMARKS BY THE CHIEF JUSTICE ON THE TRIBUTE SESSION FOR THE LATE JUSTICE SHAIKH AMIN AT THE SUPREME COURT, NAIROBI ON JULY 01, 2015 Honourable Colleagues, The President of the Court of Appeal, The Principal Judge of the High Court, Judges of the Superior Courts, serving and retired, The Honourable Deputy Chief Kadhi, Honourable Magistrates, The Honourable Attorney General, The President, Law Society of Kenya, Distinguished members of the Legal Profession in Kenya, Cabinet Secretaries, Ambassadors, Members of the Family of the late Mr. Justice Shaikh Amin, JA. Ladies and gentlemen: Page 1 of 10

2 Let me start by reflecting on the practice of paying tributes to departed judges and advocates. We have not been consistent in performing this important tradition. The last time tribute was paid to a departed judge was in 1999 in honor of former Chief Justice, Zaccheus Chesoni. In 2013, I presided over a hearing in which we paid tribute to five distinguished counsel who practiced in Mombasa before their deaths. This is a tradition that should remind us that the bar and the bench are joined at the hip of justice. It is a tradition that does not require legislation, practice notes or case law. It is a tradition that reflects the great value of humanity. It is a tradition that reflects the constitutional value of equity. And this afternoon equity in the judicial hierarchy is glaringly reflected when all the courts are represented in this hearing. The Deputy Chief Kadhi who ranks similar Senior Principal Magistrate is sharing a court with the CJ, DCJ, President of Court of Appeal, and Judges of the High Court. We would have got the gender parity right had Chief Magistrate Hon. Ominde not pulled out at the last minute on account of her mother s death, and to whom we offer our condolences. We will now be consistent in the practice of this tradition and pay tributes to departed Magistrates and Kadhis as well. I would also suggest that we include in the Page 2 of 10

3 tradition paying tributes to retiring or retired judicial officers. I have always held the view that it is better to celebrate and honor colleagues when they are alive. It would reflect the great hallmark of due process when they can also be heard. That is the reason why the judiciary honoured retired Justice Onyango Otieno in March this year, by naming the Court Library in the new Court Complex in Kisumu, after him. I will not repeat the content of Judge Shaikh Amin s biography. It has been eloquently done by the Hon the Attorney General, the Chair of Law Society, and Senior Counsel Fred Ojiambo who is also the Chair of the Senior Counsel Bar. I want to reflect on Judge Amin s legacy within the context of the transformation of the Judiciary before and after the promulgation of the 2010 Constitution. I will focus on his work as an officer of the court, but more specifically reflect on the values he exhibited as a Judge. We all agree that the transformation of the Judiciary did not start with the 2010 Constitution because the judiciary dealt with the issue through various Task Forces. We used the recommendations of those Task Forces to design a Judiciary Transformation Framework The 2010 Constitution was, indeed, a giant leap Page 3 of 10

4 forward in restructuring the Judiciary and giving it a pivotal role in the fulfillment of the promise of democracy in this country. When it comes to values enshrined in the 2010 Constitution Judge Shaikh Amin lived them before they were decreed in the Constitution. He was collegial to a fault. He was modest, transparent, accountable, humble, and fair. He was the face of justice literally given his smiles, gait, and cool demeanor. He looked at the parties, the litigants, and was sharp to discover the justice of a case in an adversarial system. Equity, a value in our Constitution, was one of his attributes. He was always humane. Those who appeared before him will testify to his commitment to ADR once he saw the justice of the dispute before him. This was his approach as missionary or imam of justice. He understood that the adversarial justice system did not result in justice at all times. He clearly saw injustice in that system, a vision that the 2010 Constitution reflects under Article 159 of the Constitution. After his appointment to the Bench, Justice Amin made a reputation for himself for integrity, fairness, independence, courage and compassion. He believed in a higher Justice, not Page 4 of 10

5 the strict, technical, mandatory application of inflexible rules, regardless of the human cost. Those who appeared before him or colleagues who sat with him will recognize his personal guiding standards reflected in what we now know as the overriding objectives principle that is mandatorily applied in court procedure. The late Justice Amin was also one of the earlier Judges to actively encourage mediation and out-of-court settlement of disputes in a variety of civil cases that came before him, a principle now enshrined in the Constitution. He was also one of the first Judges to embrace the filing of written Submissions as a means of saving on valuable judicial time. He was keen to ensure that all litigants had their day in Court and questioned the value of interminable proceedings and unnecessarily lengthy adjournments, submissions, Rulings and Judgments when the litigants seeking Justice really only needed quick and fair decisions. That was long before the Judiciary even thought of Performance Management. He was clearly ahead of his time. It is when I reflect on the approach by Judge Shaikh Amin against the essence of values under Article 10, the whole notion of access to justice, and the broad parameters of justice under Page 5 of 10

6 the provisions of Article 159 of the Constitution, particularly what I have called without the law jurisprudence, that is the promotion of the traditional justice systems as critical pillars to access to justice to the majority of our people, and reflecting widely on what is justice that I appreciate what Judge Shaikh Amin pioneered in his own way. Through his approach, I have come to understand that justice must include a strategy of dialogue with the parties during the proceedings, and including judgment. Like Judge Shaikh Amin attempted to achieve justice in an adversarial system, justice is done when through the proceedings and judgment the judge is able to convince the loser that they had had justice. The winner does not need convincing. This is not easy and that is why a judicial culture that Shaikh Amin displayed helped him. He was persuasive and as I have said was modest, humble, equitable, and fair and made litigants and their lawyers feel he was committed to a justice system that was not always adversarial. I know a lot of lawyers did not see it that way, because they immortalized in their offices, that famous cartoon of a lawyer milking a cow, the subject of the dispute, while the parties pulled it in different directions. The lawyer is depicted as particularly endowed with a big rear while the litigants and the Page 6 of 10

7 cow are not in their best shape. But then it does take time for a lot of people to see injustice in the current comfort zones they work in while others like Judge Shaikh Amin did. His approach should have convinced many of us the reality of our country and that has been that there are various forums of justice and people decide where they will go for justice. Only 5% of Kenyans come to our formal court system (and within that ADR is consistently becoming prominent). Judge Shaikh Amin in his approach attempted to connect the formal and non-formal systems of justice. He may have been Muslim, but his approach was consistent with the teachings of the Bible, particularly Mathew 5:25 which says, Before you are dragged into court, make friends with the person who has accused you of doing wrong. If you don t, you will be handed over to the judge and then to the officer who will put you in jail. I promise you that you will not get out until you have paid out the last penny you owe. Throughout his legal career, both at the bar and on the Bench, Justice Amin distinguished himself as a true servant of the law and champion of access to Justice. Page 7 of 10

8 We remember and honour the late Justice Amin for being Kenya s own harbinger of two very important evidentiary and procedural standards - the Fruit of the Poisonous Tree evidentiary principle and the principle of focusing on overriding objectives of justice in each case. In in Republic v. Kuruma s/o Kaniu (1954), Justice Amin, then Defence Counsel for a client who had been charged with being in unlawful possession of ammunition, asserted a nuanced analysis of the Exclusionary Principle, venturing that evidence obtained as a result of an illegal search was inadmissible. The subsequent Judgments of both the Court of Appeal of Eastern Africa and the Judicial Committee of the Privy Council in London disagreed with him. However, thirty years after he made that submission in the that trial, the very same legal principle that young Barrister advanced came to form the basis of Section 78 of the Police and Criminal Evidence Act of 1984 applicable in England and Wales. In this case, Attorney Shaikh Amin articulated the principle and importance of observing the rule of law, even in times of war or conflict - a principle now substantively elaborated in Article 238 of our Constitution But we must also remember and honour Shaikh Amin today as an advocate who lived for a cause bigger than self and fees. Page 8 of 10

9 Few know about his deep commitment to the cause of independence in Kenya. Early in his career, he defended 11 of the 84 accused persons in the Lari Massacre Trial after the 1952 State of Emergency declared by the Colonial Government in Kenya. His role and service in defence of those freedom fighters in Kenya is acknowledged by Caroline Elkins in her book Britain's Gulag.Affected by the plight of its ordinary citizens who had suffered greatly under the colonial regime, he involved himself in elective politics in the elections of 1956 and 1961, as the brutal end of the Empire in Kenya approached. He also became a legal advisor to some of the political parties of the time. Several of the emerging African leaders of the time were amongst his closest friends. Being beyond tribal loyalties, he was a friend to all who were committed to the cause of freedom. The transformation of our judicial culture is about values that Judge Shaikh Amin reflected as a human being. Whether it is making sure tea is served to all staff, the equalization of salaries, transparency and fairness in recruitment, promotions, training, travel, our pledge to litigants and counsel all these values were practiced by Judge Shaikh Amin. His vision of justice captures all these attributes. Page 9 of 10

10 It befits his honor that this afternoon we have a tradition that reflects his values: equity in the judicial hierarchy; and the values that he reflected that have been enshrined in our progressive 2010 Constitution. As I conclude, I remember that the Late Shaikh Amin always invited fellow Muslims and judges to his home during this blessed season. Many judges visited Shaikh Amin during almost all those Ramadhan seasons,- always at his invitation. In honour of the hospitality of this great man, allow me, on behalf of the Judiciary of Kenya and the family of the Late Shaikh Amin to welcome you to an Iftar reception in his honour hereafter. May the Almighty Allah Rest the Soul of Judge Shaikh Amin in Eternal Peace! Shukran! HON. DR. WILLY MUTUNGA, D.Jur, SC, EGH, SEGH CHIEF JUSTICE & PRESIDENT SUPREME COURT OF KENYA Page 10 of 10