Sunday, August 28, 2016

Why Judge Visram is a Credible Candidate for CJ


I feel impelled to demur to Wachira Maina’s opinion, “Visram may be front runner in race for CJ post but he has hurdles to jump” published in the Daily Nation of 22nd July, 2016. In the article, my learned senior colleague questions Judge Visram’s suitability for appointment as Chief Justice of Kenya based merely on issues arising from the Judge’s legal partnership and the Judge’s decision in the defamation case involving Nicholas Biwott. I base my demurer on personal experience as an advocate in Visram’s court.
Barely six months after my admission to the bar, I litigated the case of Ronald Muge Cherogony v. the Chief of General Staff of the Armed Forces of Kenya & 2 Others (Nairobi High Court Misc. Cause No. 671 of 1999) before then Commissioner of Assize, Alnasir Visram.  As a newly admitted counsel, the decks were highly stacked against me for at least two reasons. First, courts are extremely deferential to senior counsel and their view on the law is often taken, at least at the perceptional level, to be the correct one. In my case, the Chief of Defence Forces was ably represented by the veritable and highly experienced Lt. Col. Mbewa (now demised), a man versed with the complex nuances of military law- thus the more reason his view could have been controlling.   Second, I was seeking the quashing of the decision of the military authorities to arraign my client, Ronald Cherogony, before a Court Martial for alleged ticketing offences; a rather near impossible undertaking. Pending the Court Martial, my client was remanded in custody. The legal question before the Court was whether the High Court’s supervisory jurisdiction under article 65(2) of our previous constitution extended to members of the disciplined forces whose rights had been circumscribed by section 86(2) of that same constitution. In other words, the contention was whether the High Court could interfere with proceedings of a Court Martial. After months of argument and interim applications (during which Col. Mbewa eloquently conveyed the tenets of military law and I weighed in with whatever force I could then muster of constitutional law), the learned Judge Visram handed down his ruling on 3rd of May 2000. While finding that no constitutional violation had been occasioned in the matter, the Judge nevertheless proceeded to lay down the legal principle in words that have now become the sine qua non of procedural fairness in military proceedings thus:
Where a statute lays down a particular procedure for the doing of an act, such a procedure may be construed to  be directory or mandatory.  If it is directory, then it is meant to be a guideline and a departure therefrom is not necessarily fatal to the validity of the decision-making process.  However, if it is mandatory then any departure renders the ultimate decision null and void. Where an act affects the rights of a person and that effect is penal in nature statutory conditions and procedure should be scrupulously adhered to.  I am much influenced by s.86(2) of the Constitution which states that ‘In relation to any person who is a member of a disciplined force raised under any law in force in Kenya, nothing contained or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter other than sections 71, 73 and 74.’  Since the applicant cannot rely on, inter alia, s.77 of the Constitution which establishes the right to a fair hearing, it is imperative that whatever procedural safeguards… provided by the Armed Forces Act and rules made thereunder are strictly preserved.  I therefore find the procedures laid down in the Act, Rules and Standing Orders to be mandatory, and departure therefrom [is] fatal.
Applying these principles, the learned Judge found non adherence by the Army with various statutory antecedents to the convening of a Court Martial, including the manner in which the judge advocate of the tribunal was appointed. He proceeded to grant my clients the order of Certiorari sought and ordered for reinstatement of his privileges.  
It is fair to say that Judge Visram’s principles in Cherogony has given forth a progeny of progressive jurisprudence in administrative law cited by many respected judges and jurists alike including by Judge Ojuang, an eminent supreme court judge, in Lt. Col. Benjamin Muema v AG and others.

More importantly, in Cherogony, I was able to vindicate my client’s rights because of the Judge’s even keeled disposition, gentle firmness, and willingness to make his court the true temple where equality of arms is extended to all.