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‘Give me a break’, Justice Ojwang tells fellow judge at CJ interviews

This led Chief Magistrate Emily Ominde to later pose to him: “I keep hearing you saying that you have not been briefed on the budget, you don’t know what the organisational structure is, you will be briefed… we have interviewed people here who are not even judicial officers but from the way they answer questions you can appreciate that they purposed to know something about this institution that they seek to head.

“My worry is, judge Ojwang, you have been in it, you seek to head it but you seem not to have an idea of what is going on about and around and within the institution. Having made a conscious decision to make this application, I assume you could have done some little homework. That’s what’s worrying me… you know, running this institution is not easy. You have to have the passion. You have to have the heart. Where is the passion? I keep wondering if Justice Ojwang does not have the passion to know what is going on in this institution, then why are we here?”

The judge who described himself as, “honest,” did however claim ownership of another sort of knowledge: on the infamous cartels that have been associated with the Judiciary.

“It’s not really a matter of thinking, some you can see very clearly. But the one that concerns me the most is the cartel — a cartel is a clique of private persons that has decided to capture the fundamental institutions of the state to use for private gain — that seeks to control the judge. We had a cartel, someone coming to say this judge applied the wrong law, this judge applied the common law instead of the Constitution. It is for the judge to decide.

“The best evidence of a cartel is this, the judges have just had a colloquium two weeks ago in Mombasa. We reviewed situations that will tell you that there are cartels, a presentation was made, of code of conduct and ethics, there’s a provision there that no judge is allowed to take this kind of evidence. The taking of evidence is in chapter 80 of the laws of Kenya, that’s the evidence act. So here is an instrument that is not under any statute, saying no judge is allowed to take this kind of evidence. That cannot happen. So who is this coming through subsidiary legislation? That is the work of a cartel. A cartel is trying to rule the judges through the backdoor.”

His solution to the problem? A committee. A committee was also his solution to the problem of contradicting laws which he said Parliament needed to amend while taking issue with their setting of minimum sentences.

And given his strong views on when his former peers on the bench, Kalpana Rawal and Philip Tunoi, should retire, the JSC sought to know what age he would retire if appointed Chief Justice.

His answer: 70.

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