OPINION: The political angle in Havi’s case against the Supreme Court seven

On January 13, 2025, Nelson Andayi Havi, a former President of the Law Society of Kenya (LSK), filed an Affidavit of Complaint to the Judicial Service Commission (JSC) against the Judges of the Supreme Court of Kenya.

Although Havi has been fairly controversial in and out of court before, during and after his tenure at the LSK (and I say this only very modestly speaking), I will purposefully focus on his message and, even then, only on part of it: I will shoot the message, not the messenger.

Among the accusations against the Supreme Court Judges is that they “grossly misconducted themselves and misbehaved” in March 2022 in the delivery of the judgment in the appeal by the Attorney l-General against David Ndii and others on various proposals by retired President Uhuru Kenyatta and Raila Odinga (the BBI Appeal), in which they had sought to have the Independent Electoral and Boundaries Commission to consider and act upon various proposals by the Building Bridges Initiative (hence the BBI Appeal).

The bone that Havi has picked with the Supreme Court judges in the BBI Appeal is not on the appeal itself but, rather, that the Judges “constituted themselves as complainants” on a cause of action against him, Ahmednasir Abdullahi SC and Esther Ang’awa, and convicted them for contempt “without notice or a hearing” and “without jurisdiction” in relation to comments allegedly made by the trio on 15th and 19th February 2022.

Havi says that neither he nor his close legal associate Ang’awa made the comments but vaguely suggests that they may have been made by Ahmednassir Abdullahi SC and asserts that they were not reproduced in the Supreme Court’s decision.

Havi goes on to say that “after the delivery of the judgment on 31st March 2022”, he “spoke on national television and called out Chief Justice Martha Koome for her unlawful and unconstitutional order and conviction for contempt of court" against him.

The above scenario begs the question: If the sequence of events took place in early 2022, why does he find this to be the right time to take the step he has taken? As a matter of fact, yet another allegation in his Affidavit relates to a tiff he had with the Chief Justice regarding her threat to sue him for defamation, following his claim that she was unsuitable for appointment as the Chief Justice.

Back now to the alleged contempt, it is worth noting (as deposed by Havi) that at the time the contempt issue was live he even went on national television to condemn his conviction.

So it is uniquely significant to ask why he would take no legal action on issues that occurred three or even more years ago and only pull out his ‘litigious’ card now. 

Some aspects of Havi’s Affidavit of Complaint to the JSC raises several constitutional issues and in fact make direct reference to various Articles of the Constitution.

As a seasoned litigator and former LSK President, Havi is no doubt aware that the High Court (and not the JSC) is the institution properly clothed with primary jurisdiction in respect of the application or interpretation of the Constitution, yet he chose the JSC as the forum to address his grievance.

In furtherance of the issues he has raised in his Affidavit, it is equally interesting that Havi has made reference to a judgment of the High Court relating to rules promulgated by the Supreme Court to govern issues of contempt, which were declared unconstitutional by the High Court, in exercise of its primary jurisdiction on constitutional matters.

Given that the High Court Petition which declared the Supreme Court rules unconstitutional was fixed by Omwanza Ombati, now a Commissioner of the JSC, it will be interesting to see how the JSC will handle Havi’s Complaint, at least on this aspect of the complaint.

The long and the short of this is that in my view, the issues raised by Havi in his Complaint ought in the first instance to have been raised for determination by the High Court due to their substantial constitutional content, rather than before the JSC which comprises both members with legal training and others who are not lawyers.

This, on first impressions, makes the JSC a somewhat political institution. But perhaps even more serious is the distinction that can be drawn in relation to the Havi Complaint when one makes a classification of “political” and “non-political” members of the JSC, as we see below.

According to Article 171 of the Constitution, the JSC comprises the Chief Justice, one Supreme Court Judge, one Court of Appeal Judge, one High Court Judge and one Magistrate, the Attorney-General, two Advocates, one person nominated by the Public Service Commission, and two persons (one a man, and the other a woman) to represent the public, neither being a lawyer, appointed by the President with the approval of the National Assembly.

In relation to the Havi Complaint, the Chief Justice and the Supreme Court Judge would necessarily have to opt out as JSC Commissioners in the determination of the Complaint, given that it touches on them. The current male LSK representative to the JSC, Omwanza Ombati, would also need to recuse himself. This would essentially leave eligible 2 Judges, 1 Magistrate, the Attorney General (necessarily a political appointee), 1 LSK representative to the JSC, 1 Public Service Commission nominee (necessarily a political appointee and a non-lawyer), 2 persons representing the public (both non-lawyers and, strongly arguably, both politically appointed).

In short, therefore, out of the 11 members who make up a full establishment of the JSC, only eight would be available to consider the Havi Complaint. And of the eight, four would be political appointees and the other 4 would be 2 Judges, 1 Magistrate and 1 Advocate.

With the Chief Justice’s ineligibility to chair the JSC in this case, the chairing of the JSC would be in the hands of its Vice Chairperson, Isaac Rutto, who was appointed to the JSC as one of the two persons “to represent the public”.

During his vetting process, the Baringo North MP, Joseph Makilap, of the UDA party said of him in Parliament: “If the nomination of Hon. Isaac Rutto is approved, he will be the engine of the Judiciary”.

Rutto is a former Member of Parliament, a former Cabinet Minister, a former Governor, former Chairman of the Council of Governors, and “a farmer”, as disclosed by him in the Self-Declaration Form pursuant to the Leadership and Integrity Act at the time of his vetting for the JSC appointment.

His referees for the appointment were Prime Cabinet Secretary Musalia Mudavadi, Bungoma Governor Kenneth Lusaka, and Aden Duale, a Cabinet Secretary. Rutto is also a close ally of President William Ruto.  

Havi gives what he calls a “historical context” to his Complaint, by referring to judicial actions and excesses relating to the period in and around 1999, well before the promulgation of the 2010 Constitution. At the time of these excesses, which saw Tony Gachoka among others cited in contempt (by the Court of Appeal, then the highest court of the land), judicial appointments were made directly by the President, without any competitive process.

Today, of course, the situation is different. This different scenario necessarily allows perceptions (and, sometimes, the reality) that some Judges are inclined towards one political leader or another.

Similarly, the current situation allows one to go beyond the formal appointment of JSC Commissioners in order to understand the circumstances and basis for their appointment, and the impact that political appointees to the JSC can have in making decisions towards the removal of Judges from office.  

With an emasculated legislature setting the background for the current politico-judicial situation, it can indeed be very tempting and fashionable to seek the resolution of legal problems through political rather than through judicial institutions.

The author is a Senior Counsel