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April 12, 2021 | Justice Chitembwe Said Juma appears before the Judicial Service Commission/ JSC Media Service

Kenya

Chitembwe prescribes enhanced Judiciary-Executive engagement, practical application of the law

Justice Chitembwe, 54, keen to succeed David Maraga who retired in January 2021 on attaining the mandatory retirement age of 70, noted he will build on the legacies left by his predecessors under the Constitution (2010); Justices Maraga and Willy Mutunga.

NAIROBI, Kenya, Apr 12 – High Court Justice Said Chitembwe on Monday defended his candidature for Chief Justice saying he had what it takes to head the Judiciary.

Justice Chitembwe who was grilled by members of the Judicial Service Commission (JSC) conducting interviews for the position of Chief Justice and one Supreme Court Judge noted that his experience and familiarity on Judiciary affairs makes him the suitable candidate for the job.

“The Judiciary needs somebody who understands it, somebody who is energetic, resourceful and somebody who can work with those ones who are within. You appreciate the energies and competences of your colleagues and you become the leader so that you enhance the institution,” he told the Commission chaired by Professor Olive Mugenda at the Supreme Court.

Justice Chitembwe, 54, keen to succeed David Maraga who retired in January 2021 on attaining the mandatory retirement age of 70, noted he will build on the legacies left by his predecessors under the Constitution (2010); Justices Maraga and Willy Mutunga.

“I will continue with what my predecessors started but coming from within, I know where we have done it well, I know where there are weaknesses and I know where we can do better and improve the institution,” he said.

Banking on his 29 years in the legal profession and being a member of the Judiciary for 12 years, Justice Chitembwe noted that he will focus more on ensuring that Kenyans get justice expeditiously, more courts are constructed, and more importantly work towards reducing the backlog of cases at the courts.

“I will not impose myself to my colleagues to get the job done but I will be constantly engaging with them to ensure we achieve results,” he said.

Justice Chitembwe who presented a composed demeanour and was swift in responding to the queries from the commissioners was outright when he revealed that he had no regrets for freeing a man who was serving a 20-year jail sentence for defiling a 13-year-old girl in 2012.

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He freed Martin Charo aged 24 in May 2016 discontinuing a 20-year jail sentence handed to him for having sex with the minor.

“If you go to the prisons currently, robbery with violence is no longer an issue. There are few such cases compared to defilement and so the prisons are full with young men charged with defilement cases,” Justice Chitembwe mentioned.

“If we are to go with the law anybody who defiles somebody below the age of 18 is guilty that is what the law says but what is the practicality?” he asked illustrating that in the particular case, the court had been convinced beyond doubt that the two were indeed lovers.

In the ruling which has since been ranked the world’s worst ruling for women’s rights in 2016 among 18 other cases, Justice Juma noted that the same law should not be applied blanketly especially when there is reasonable evidence that the minor was willing to engage in the act.

“How do you take a 19-year-old young man to 15 years in jail for having a relationship with a 17-year-old girl? If people have been dealing with each other for three years why should I close my mind that because age was not permitted this person could not give the consent I should convict the man,” he wondered.

At the same time, Justice Chitembwe noted that the art of negotiation will be his policy once he gets to be appointed.

While citing the refusal by President Uhuru Kenyatta to swear in 41 Judges to the Court of Appeal recommended by the Judicial Service Commission, Justice he said he will engage with the Executive without tiring in a bid to find a lasting solution on the matter.

“Constant communication with the Executive is the key to solving such matters because I cannot sit and swear these Judges even if the courts orders me to swear them I will not. I am a man of principles and I have to follow the law. The law says it is the President to gazette them and to swear them,” he said.

The refusal by President Uhuru Kenyatta to swear in the 41 Judges who he claimed have integrity issues formed part of the persistent feuds that he and Maraga were embroiled in.

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Justice Chitembwe also noted that the remedy to ensuring that court orders are not disobeyed mostly by the Executive is through negotiating with them.

He got emotional at some point when his past anti-corruption case was highlighted.

In December 2009, the judge was arrested by the Ethics and Anti-Corruption Commission (EACC) detectives in Mombasa over a Sh1.37 billion fraud and abuse of office claims.

He was however, acquitted three years later, along with former National Social Security Fund managing trustee Rachel Lumbasyo, when the court ruled that they had no case to answer.

Justice Chitembwe was the first to be interviewed for the position which has attracted the interest of other nine candidates.

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