Law and legal experts, your indulgence is sought here. Who delivered what can be said to be Solomonic wisdom with regard to our constitution in the case of the Kadhi Courts? It is a matter that needs scrutiny because we have been crying about the rot in the judiciary, this is a test case to actually pause and ask ourselves; a tale of similar suits, a case of two differing judgements.Somebody is sleeping on the bench.Somebody is not telling the truth as per the provisions of the current KATIBA, who??? Joseph or Ibrahim?
Are thy Lords using the same set of the constitution or is it a case similar to the draft KATIBA where there are two, one a sabotage attempt and the other the actual one? If so, how so is it that they can be worlds apart on what the position of the constitution is on this matter at this point in time and given the prevailing circumstances?There is the letter of the law and the spirit of the law, who captured both?
Is it possible that they can interpret the constitution is such varied ways? If so, does it mean there may be several differing rulings to a similar situation?
Is justice being miscarried by our very own judiciary?
Who, pray learned friends, can be vindicated by the constitution itself? I am not just talking some greenhorn Otieno Sungu here, I am talking some “grey haired” fellows who should be full of judicial wisdom and experience aided by the sanctity of the constitution.
Otieno Sungu.
Juba-Southern Sudan
The problem with our judges is that most of them are not quite educated. Most of them have only a batchelor’s degree in law and are, therefore, intellectually wanting in both knowledge and interpretation of the law. That is why you find someone with a basic degree in law claiming to be a constitutional lawyer and at the same time acting as a criminal lawyer or judge. In all other fields(Kenyan medical doctors excepted-strangely) one is only a specialist in any field if one has a Ph.D. in that field.
One can imagine the disaster waiting to happen if a Kenyan judge enters into a discussion with an American or German judge. An batchelor degree holder trying to hold(no pun intended) his own with a Ph.D. holder in law!!!
Actually, the same problem crops up in very many facets of the Kenyan situation.
Regard,
Professor Chunga Nyamburaka, Ph.D.
They might have been similar suits but lodged under different circumstances!While Justice Nyamu’s judgement was on a case filed against the inclusion of the Kadhis courts in the Draft constitution that went to the referendum in 2005,the case before Justice Ibrahim was against the inclusion of the Kadhis courts in the proposed constitution for which a referendum will be held on 4th august 2010.The current constutional review Act removed the mandate for dispute resolution from the high court and placed it under an independent dispute resolution tribunal and thats what Justice Ibrahim stated in his ruling.