The animosity between the Judicial Service Commission and Supreme Court judge Jacktone Ojwang yesterday played out in open during the interviews for chief justice.
The six hour interview session became very heated at some point Justice Ojwang who is seeking to be hired as CJ lost his cool and refused to answer questions he was being asked by Judge Mohammed Warsame (who is also a commissioner of JSC).
Judge Ojwang was put to task to explain why he did not challenge a decision of Judicial service commission which found him culpable of misconduct for allegedly taking part in a go slow.
Judge Warsame asked: “You were found culpable and found guilty of misconduct and reprimanded, is that not true? And that misconduct is in your file?”
Justice Ojwang answered: “I don’t keep the files, if you keep the files and you put such things in that is your choice,”
Justice Warsame : “But you received the letter?”
Justice Ojwang : “This question I have answered earlier. There are too many cases filed in court,”
Justice Warsame : “Just answer yes or no. You have not challenged?,”
Justice Ojwang : “This matter is in court. It is a matter lodged by one of our colleagues.”
Justice Warsame : “But you have not challenged it?”
Justice Ojwang : “Please give me a break,”
Visibly agitated Justice Ojwang was forced to ask the chairperson of the JSC Prof Margaret Kobia to protect him against justice Warsame whose line of questioning he was unhappy with.
Immediately justice Warsame interjected saying: “No no let me ask my questions I am not the one seeking the job,”
Justice Warsame dwelt a lot in his questioning on past decisions of judge Ojwang in cases and his writings during the Kanu era.
He painted a picture that justice Ojwang was in bed with both the Jomo Kenyatta regime and Daniel Moi regime.
However, justice Ojwang denied this vehemently saying he wasn’t in bed with any government but in his writings chose to dwell on issues touching on institutions than criticize oppressive individuals.
The judge was also asked if his wife who is currently a permanent secretary was given the job as an incentive for him sitting on Presidential election petition. He denied the allegations.
Justice Ojwang who is a law professor also denied being partisan to the executive.
However, he was clear in his mind that the courts do not and ought not to assume supervisory role over executive and legislature.
He said the constitution gives judiciary a role of checks and balances over the other arms of government but this should not be misconstrued to mean supervision role.
Asked by justice Warsame what he understands by the supervisory role of High court over all bodies, judge Ojwang said it is clear in the constitution high court doesn’t have supervisory role over Parliament what it has is checks and balances.
Justice Warsame asked Justice Ojwang to list challenges at the Supreme Court that he will address but before he could answer Prof Kobia sought to stand down the commissioner from continuing with questioning.
Prof Kobia : “Judge you are past your time I will stand you off.”
Justice Warsame : “No let me do my work. Judge answer my question.”
Justice Ojwang hinted that there are cartels who are trying to control the minds of judges which if he is given the job he will deal with them accordingly.
He gave an example of an incident that happened at the recent colloquium where a presentation was made and judges were apparently persuaded against accepting a certain kind of evidence in their courts.
In his view this amounted to works of cartels trying to use back door to persuade judges on what evidence to use and what not when there is a clear provision in the constitution that judges should consider all evidence before them in determining a matter.
“Who is this coming through subsidiary rules to tell a judge what kind of evidence he should take? That’s the work of cartel,” he said.
Justice Ojwang is the last candidate to be interviewed for the position of the CJ and now the JSC will retire and make a decision on who will lead the judiciary before it embarks on hiring a deputy chief justice.