Sharad Rao at the Supreme Court, Nairobi on March 2, 2016.
A judge who was curiously allocated judiciary land then sold it. Another judge who said a person without hands has no business being the president of Kenya.
Then a judge who threw a lawyer in prison for applying for the judge to recuse herself from a case.
Those are among the highlights from the vetting of judges that happened between 2011 and 2016, as revealed in a new book by Mr Sharad Rao, who chaired the Judges and Magistrates Vetting Board during that period.
Do you know why Mr Rao came close to joining the club of Kenya’s senior counsel in 2019 but didn’t? In the book, he argues that it is because of two senior judges who voted against him.
Read also: Sharad Rao: My dalliance with Charles Njonjo, Richard Leakey, and when judge wrote an order from ICU
The judges, he claims, had it rough during the vetting but somehow made it. He had wanted them out.
“When in September 2019 the Senior Counsel Committee met to consider the appointments of senior counsel, [the two] blocked my appointment. This was despite the fact that I am one of the senior-most lawyers in Kenya, having been called to the Bar in June 1959, and having enrolled as an advocate of the High Court of Kenya in July 1960,” argues Mr Rao. “The two had literally scraped through the vetting against my better judgement.”
The revelations are made in the autobiography From Jomo to Uhuru, Rao’s Nine Lives, which is set to be launched in Nairobi today. The title is reproduced from a headline for a Sunday Nation article by John Kamau, published on March 6, 2016.
The book adds new layers to the key moments in Kenya’s history as Mr Rao interacted extensively with the country’s first three presidents and held key positions in the Jomo Kenyatta and Daniel arap Moi administrations.
He has served under the government in some capacity in all but President William Ruto’s administration.
Through Mr Rao, the reader gets glimpses of Jomo’s temper, through – among others – the day he witnessed Jomo running after two Britons at State House while carrying a walking stick.
Apparently, he wanted to beat them up because they presented a document for him to sign without following the procedure.
Did you know what made Jomo ban the use of the title “president” for any leadership position in Kenya except that of the commander-in-chief? Mr Rao has the story. He was working at the State Law office in 1974 when that happened.
“The President had gone to open the annual trade show (then called the Agricultural show) that was organised by the Agriculture Society of Kenya. The society’s president then was a European settler, a huge man and with big sideburns. He greeted the President saying, ‘One President greets another.’ Kenyatta didn’t take kindly to the remark. He said Kenya had only one President. From then on, he ordered Presidents of all societies, associations and clubs to be called Chairmen.”
Through Mr Rao’s narrations, the reader gets to see the attitude President Mwai Kibaki had towards his prime minister, Mr Raila Odinga, in the power sharing agreement.
One instance is when he spoke with Mr Kibaki ahead of his appointment as the chair of the vetting board.
When Mr Rao asked Mr Kibaki whether he had consulted with the prime minister, Mr Kibaki replied: “Consultation does not mean that the Prime Minister must agree. So, I will talk to him and make the appointment regardless.”
Being a seasoned lawyer, and having played a key role in the resetting of the judiciary following the 2010 Constitution, Mr Rao has some of the ink in the 268-page book focusing on judges and magistrates.
For instance, he goes after Chief Justice Martha Koome and the remarks she made while delivering the verdict of the petition by the Azimio la Umoja One Kenya coalition challenging the outcome of the 2022 election.
“I read and agreed with that decision but was displeased with the manner in which the Chief Justice announced it, calling it hot air, etc. Those comments, with due respect to the Hon Chief Justice, were in my opinion unethical and injudicious and were interpreted by the petitioner as showing bias,” writes Mr Rao.
Regarding the judge who was given judiciary land, Mr Rao writes: “The issue was whether it had been proper for the judge to accept an allocation of State land in the judiciary compound where he was stationed, which he resold within months to a private buyer at ten times the price he had paid.”
“The [vetting board’s] concern in this case was not whether the judge had broken the law when acquiring and then selling the land at a huge profit. It was whether, even if the transactions were lawful, they were appropriate, particularly for a judge. When questioned, the judge appeared unable to distinguish between what was legally permissible on the one hand, and what was judicially wise on the other. The majority considered that the judge’s failure to appreciate the impact on public perceptions of the judiciary were matters of particularly serious concern.”
And in the case of the judge who said that a person without hands has no business being the president, it was all to do with the handling of a petition that the late Kenneth Matiba filed challenging the outcome of the 1992 presidential elections. One of the reasons the case failed was that Mr Matiba did not sign the documents.
“The decision of the Court of Appeal was that Matiba, who was paralysed following his detention by the state, could not authorise his wife to sign the petition on his behalf,” writes Mr Rao.
One of the judges involved was being vetted.
“Counsel asked, ‘What if the Petitioner had no hands?’ to which the judge retorted that a person who had no hands had no business wanting to become President of Kenya. In addition to the concurrence reinforcing the main judgement’s defiance of common sense and closing down of space for democratic contestation, it gratuitously showed grave disrespect for disabled people, castigated [Mr Matiba] in an ungenerous and uncalled-for manner that manifested no sensitivity to the fact that he could well have been paralysed as a result of torture, and appeared to curry favour with the incumbent President. There was consensus amongst members of the board that the judge had played an active role in frustrating rather than enhancing judicial scrutiny of alleged electoral irregularity,” writes Mr Rao.
In the case of the judge who jailed a lawyer, the mistake was that the lawyer used the word “if”. “The judge took offence at the [recusal] application and stated that the advocate had made serious unfounded and untrue allegations against her, thus lowering the dignity of the court. The advocate apologised and said, ‘If I have sounded impertinent….’ The judge took offence at the word ‘if’ and immediately committed the advocate for contempt,” writes Mr Rao.
Mr Rao’s book, published by Free Press Publishers Limited, also chronicles some of the conflicts that defined post-colonial Kenya, and he argues that Kenya was never sympathetic to Indians who were evicted from Uganda by Idi Amin’s administration.
“The expulsion seemed to have the support, or at least sympathy, of Daniel arap Moi who was then the Vice President in Kenyatta’s government. Moi refused the Ugandan Asians even a temporary stay in Kenya to recuperate and was reported to have said ‘no, no they will swallow this place.’ Some Members of Parliament like Martin Shikuku also suggested that Kenya should follow suit adding to the anxiety that Kenyan Asians were already experiencing,” he writes.
He recalls a time in 1972 when the Kenyan hockey team was nearly denied a chance to go to the Olympics in Munich because it consisted of mostly Kenyans of Asian descent.
“We were summoned by Masinde Muliro, a senior politician who was the Minister for Co-operatives and Social Services, and in charge of Sports. Muliro informed us that he was going to exclude the Hockey team due to financial constraints. Puzzled, I asked him why the entire Hockey team? He said they ‘are Indians not black Africans,’” writes Mr Rao.
Mr Rao was for 14 years a prosecutor in the office of the Attorney-General. In 12 of the 14 years he spent at the AG’s office, starting from 1970, he was the Assistant Deputy Public Prosecutor.
In 1984, President Moi sent him to The Hague to represent Kenya in a tribunal set up to hear a dispute between the US and Iran. He returned to Kenya in 1996. He has also led a number of tribunals.
