CJ interviews: Justice Nderi asked to explain why he fled Kenya in 90s

CJ interviews: Nduma Nderi faces panel

The Employment and Labour Relations judge Nduma Nderi was on Monday put to task over his decision to flee the country in the early 90s amid claims of State intimidation.

Justice Nderi, who appeared before the Judicial Service Commission for the interview for the position of Chief Justice, was at pains to explain whether he would still flee the country, should the job of a Chief Justice add pressure to his life, including threats and intimidation from the state.

JSC commissioner Mohammed Warsame, while cross-examining the judge, asked him to explain what his decision would be, given the strained relationship between the Judiciary and the other two arms of government –Executive and the Legislature-- that have often criticised and castigated judges over the decisions of the courts.

But in response, the judge said the circumstances surrounding his decision in the 90s were different from the current ones and that the 2010 Constitution had put in place enough checks and balances to ensure proper accountability and the independence of all arms of government.

“I am a very courageous person. To take the position I took at the time, very few people would have. I had a wedding, most of my friends would not dare attend my wedding. It is also the few people I worked with who were able to attend my wedding,” said Justice Nderi.

Cowardice

The judge said his decision in the 90s was not an act of cowardice or a measure of his character but was informed by the threats and intimidation he got while working in the Judiciary, including a summon from the Directorate of Criminal Investigations (then Criminal Investigations Department -CID) to appear and explain his work.

“Having received real threats in the corridors of this judiciary while discharging my duties as a young lawyer aged 28 years, you will understand where I was coming from. Also, there were positions advertised by the kingdom of Swaziland,” he added.

Justice Nderi had in 1992 moved to Swaziland where he was appointed a crown counsel in the government’s prosecution office, a position he served in before he was promoted to senior crown counsel and later a Judge President of the Industrial Court of Swaziland.

He later moved back to Kenya in 2006 where he worked briefly as head of legal and industrial affairs at the Federation of Kenya Employers (FKE). He again moved to Tanzania as the principal legal counsel for the East African Community.

The 59-year-old judge, with over three-decade experience in legal practice, was in 2012 appointed judge in the Employment and Labour Relations Courts.

Justice Nderi was the sixth candidate to appear before the commission seeking to replace retired Chief Justice David Maraga. He promised to expedite the delivery of justice and improve the workings of the Judiciary should he be appointed the Chief Justice.

“My vision for the Judiciary is to upscale and consolidate the gains so far in the access to justice and delivery of justice to the people of Kenya in an expeditious, fair, equitable, inclusive and accountable manner,” he said in response to question from Prof Olive Mugendi, who chairs the JSC panel.

Court proceedings

“I am very easy and amiable to work with. I have not had difficulties in my court proceedings all those years I have been a judge. And I believe I have built many friendships across,” he added.

But the soft-spoken judge was also put to task to explain his 2014 decision reinstating former Chief Registrar of the Judiciary (CRJ) Gladys Boss Shollei, following her suspension by the JSC.

The judge had, in his decision, determined that Ms Shollei has been unlawfully removed from office and directed that she be reinstated as the Chief Registrar, a decision the JSC appealed at the Court of Appeal.

But in the cross-examination, JSC commissioner Warsame pressed the judge to explain dissenting opinions from the Court of Appeal that emanated from his decisions, leading to a heated back-and-forth between the two.

“A lot of emotions were expressed because the matter involved us as the Judicial family. There was a lot of partisanship in the manner in which the matter was handled, and I still believe it should have gone to the Supreme Court. How do you judge against your colleague? I disagree with all those sentiments,” he said.

“The judgment was completely misunderstood by the Court of Appeal. You were involved in that matter commissioner Warsame and cannot have an objective view on the judgments. I do not agree with the decision of the Court of Appeal,” he added in response to further probing from Justice Warsame.

All 10 JSC commissioners – Deputy Chief Justice Philomena Mwilu (Supreme Court), Justice Mohamed Warsame (Court of Appeal), Justice David Majanja (High Court), Ms Olwande (Chief Magistrates Court), Macharia Njeru (Law Society of Kenya), Ms Ann Amadi (Judiciary Registrar), Mr Kihara Kariuki (Attorney General), Patrick Gichohi (Public Service Commission), Mr Felix Koskei (public representative) and Prof Olive Mugenda (public representative) – are presiding over the selection process.

The JSC will also hire another Supreme Court judge to replace Justice Jackton Ojwang who retired last year.