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.
