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PROCESSES AND PROCEDURES FOR STRENGTHENING THE EFFICIENCY OF THE JUSTICE DELIVERY SYSTEM THROUGH JUDICIAL

REFORMS: THE CASE OF KENYA

By

OTIENDE AMOLLO*

A PAPER PRESENTED TO THE SADC LAW ASSOCIATION CONFERENCE

ON THE THEME: SAFEGUARDING JUDICIAL INDEPENDENCE IN AN ERA OF JUDICIAL REVIEWS IN THE SADC REGION.

AT

ROYAL SWAZI SPA EZULWINI SWAZILAND,

24TH

AUGUST, 2012

* CMMR. OTIENDE AMOLLO, EBS, LL.B, LL.M, Advocate, Chairperson Commission on Administrative Justice

/Ombudsman, and former Member of The Committee of Experts on Constitutional Review of the Republic of Kenya

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1.0 INTRODUCTION

1.1 Overview

An independent and effective Judiciary is vital for a democratic society founded on the

rule of law and respect for fundamental rights and freedoms. The primary role of the

Judiciary is to independently and impartially administer justice or arbitrate legal disputes.

It also reinforces checks and balances between other arms of government to ensure

constitutionalism. In arbitrating societal disputes or upholding the rule of law and

limitation of governmental power, the Judiciary contributes to social order as a

foundation for socio-economic development.

The Kenyan Judiciary was faced with various institutional challenges which hampered its

ability to effectively perform. Key players failed to recognize the critical role played by

the Judiciary in maintaining a just, fair, stable and secure society resulting in serious

challenges such as lack of operational autonomy or independence, inadequate

financial and human resources, weak administrative structures, corruption, ineffective

complaints and disciplinary mechanisms, poor terms and conditions of service and

complex technicalities. All these resulted in loss of public confidence in the Judiciary.

1.2 Socio-Political and Historical Context

This decline of the Judiciary was also influenced by socio-political and historical factors

since independence. For many years, it was considered as an institution not equal to the

Executive or the Legislature. This subordination not only undermined its development, but

also exposed it to political patronage taking the form of opague political appointments;

nepotism, favoritism and tribalism in appointments and promotion; and judicial

subservience by some judicial officers. In the 1980s and 1990s, most court decisions were

in favor of the Executive as the Judiciary abdicated its role as custodian of the rule of

law, human rights and the vanguard of fundamental freedoms. The State even passed

amendments that removed the security of tenure of judges!

During the single party-era, the courts of law failed to enforce the Bill of Rights, holding

that the provisions were inoperative due to absence of rules contemplated by the Constitution. The Judiciary condoned, or ignored, gross human rights abuses perpetrated

by the regime. Government critics were subjected to torture, detention without trial,

denial of freedom of association or political assembly, or charges of sedition. Numerous

task forces were set up to examine the institutional deficiencies of the judiciary resulting

in several recommendations on the ways in which it could be transformed to meet the

expectations of the public. Unfortunately, due to lack of resources and a clear

framework for implementation, the execution of the recommendations were slow,

uncoordinated and lacked political support. Minimal reforms were however carried out

such as the introduction of specialized courts, the institutionalization of Law Reporting

through the establishment of the National Council for Law Reporting and the

establishment of the Judicial Training Institute

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The resolution of cases remained inefficacious and s unfair, owing to undue regard to

procedural technicalities and unconscionable delays (with some cases taking as many

as ten years to be determined, or ultimately dismissed altogether on the basis of

technicalities) which fueled agitation for constitutional and institutional. Even after the

de-linkage of the Judiciary from the civil service in 1993, it still continued to perform

below the expectations of the people and longstanding calls were made for

comprehensive reform of the institution within the context of constitutional review.

2.0 JUDICIAL REFORMS WITHIN CONSTITUTIONAL REVIEW CONTEXT.

2.1 The Struggle for Constitutional Reform: 1992 2002.

In Kenya the early 1990's marked the advent of multi-party democracy and the

beginning of a formal process of constitutional reform when in 1991, section 2A of the

Constitution was repealed. Following this, elections were held in 1992, but the general

mood in the country was that these did not introduce genuine democracy in Kenya.

Attention became focused on spearheading comprehensive constitutional reforms. In

1997, the Constitution of Kenya Review Act was published and subsequently amended in

2001 after intense negotiations between the government and the opposition. The aim

was to facilitate the merger of the formal Government initiative and the parallel Civil

Society/Religious groupings/Opposition Parties Initiative.

A reconstituted CKRC was appointed in the year 2000 with Prof. Yash Pal Ghai as its

Chairperson. It embarked on a massive programme of public education followed by the

collection of the views of Kenyans on a new constitution. In 2002 the Final Report of the

Constitution of Kenya Review Commission was published, the CKRC Draft Constitution

which set the stage for the National Constitutional Conference. However, despite the

clear programme for constitutional review in the amended 1997 Review Act, former

President Daniel Moi prorogued Parliament in October 2002 to hold general elections,

and thus effectively put the constitutional review process on stop.

2.2 A Constitutional Quest: The National Constitutional Conference (Bomas) 2003-2005

In the area of constitutional reform, it will be remembered that the Judiciary itself was

considered an obstacle to the realization of a new Constitution, when in 2002, a section

of Judges sought judicial Review orders to stop the discussion and adoption of provisions

relating to the Judiciary in the Draft Constitution, on the basis that the Judges would be

adversely affected by the proposals. These Orders were granted. While the Judges application was not founded on a policy of the Judiciary, it reinforced public

perceptions that the Judiciary was unable to facilitate political transformation through its

role as a fair, impartial and effective arbiter in the process of constitution making. In

addition, the process had not given the people their fundamental right to ratify the

proposed constitution in a referendum.

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A coalition of parties under the umbrella of the National Alliance Rainbow Coalition

(NARC) Party was formed to contest the 2002 elections against the then ruling Kenya

African National Union (KANU). In its campaign, NARC promised to deliver a new

constitution for Kenya within one hundred (100) days. Once elected, NARC reconvened

the National Constitutional Conference. The Conference produced a draft constitution

referred to as the Bomas Draft Constitution. However, before the adoption of this draft at

the National Constitutional Conference, political differences arose and a group of

delegates walked out in disagreement about the position of the Prime Minister, amongst

other matters. Nonetheless, the Conference adopted a draft constitution, called the

Bomas Draft.

Shortly thereafter, this a group of Kenyans led by Reverend Timothy Njoya commenced

judicial proceedings to review the constitutionality of the constitutional review procedure

as set out in the amended 1997 Review Act and the existing Constitution. Among other

things, they argued that the Constitution permitted its amendment by Parliament but not

its replacement and that the process denied the people of Kenya their sovereign right to

approve a new constitution. In Timothy Njoya and others v- the Hon. Attorney-Generali the High Court held that for replacement of the Constitution, full participation of the

people was required apparently through both a Constituent Assembly and a

Referendum. It further held that not all the members of the National Constitutional

Conference were directly elected and the MPs were not elected for the specific

purpose of replacing the Constitution, the Conference was not a Constituent Assembly.

2.3 The 2005 Referendum on a Proposed New Constitution in 2005

After the collapse of the Bomas process, a Proposed New Constitution of Kenya (2005)

(commonly known as the Wako Draft) was adopted by the National Assembly and

presented to Kenyans in a referendum on 21 November 2005. It was rejected by 57% of

the votes cast. The referendum became the perfect forum for the political elite to air

long standing grievances. Each group resorted to distortion and incitement based on

ethnicity and tribal affiliation, and raised hostility and animosity to levels that

exacerbated the divides in Kenya. It was apparent that a process of reconciliation was

needed but no efforts were made to institute a process of national healing. It laid the

ground for the catastrophic 2007 elections.

2.4 The Disputed Presidential Elections and the Electoral Crisis in 2007

During the referendum, the campaign for a yes vote was characterized by the symbol of a banana and the campaign for a no vote was characterized by the symbol of an orange. The deep political divide that arose from Bomas and was manifest in the

referendum led to the collapse of the NARC coalition after the referendum. The Oranges

became organised under the umbrella of the Orange Democratic Movement (ODM)

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while the Bananas, what remained of NARC and other allied political parties, e.g., KANU,

formed a loose coalition under the banner of the Party of National Unity (PNU). The

general elections held on 27 December 2007 were heavily contested with the two main

presidential candidates being the incumbent, His Excellency President Mwai Kibaki, and

the Honourable Raila Odinga, MP.

The final results were delayed and then announced amidst public tension and

accusations that the delay was a sign that the Presidents party was attempting to rig the elections. Eventually the results were announced on 30 December 2007 and

President Kibaki was sworn in for a second term. Violence erupted in different parts of the

country and scenes of people killed, and property being destroyed, were projected by

the national and international media. More than 1,300 people died and about 350 000

people allegedly not indigenous to particular regions were displaced through forcible evictions or in fleeing the violence. The country was visibly torn apart and teetered on

the brink of civil war.

The African Union became the focal point for mediation efforts and the Panel of Eminent

Persons led by the former United Nations Secretary General, Kofi Annan brokered a

delicate agreement which was signed by His Excellency the President Mwai Kibaki and

the Right Honourable Prime Minister Raila Odinga on 28 February 2008. This agreement

resulted in the formation of a Coalition Government and effectively restored calm in the

country. The agreement also laid the foundation for the formulation and implementation

of constitutional and institutional reforms aimed at guaranteeing the political stability of

Kenya in the long term. Four main agenda items for reform were identified by the Kenya

National Dialogue and Reconciliation Team (KNDR):

(1) Immediate action to stop violence and restore fundamental rights and liberties.

(2) Immediate measures to address the humanitarian crisis, promote reconciliation,

and healing.

(3) How to overcome the political crisis.

(4) Addressing long term issues, including constitutional, legal and institutional reforms,

tackling youth unemployment, tackling poverty, inequality and regional

development, imbalances, consolidating national unity and cohesion, and

addressing impunity, transparency and accountability.

3.0 JUDICIAL REFORMS IN THE COMMITTEE OF EXPERTS CONTEXT: 2008- 2010

3.1 National Accord and Reconciliation Act 2008.

Following the post-election crisis in 2007, judicial reform was identified as one of the areas

of focus towards restoring the credibility, integrity and independence of public

institutions in Kenya. Under Agenda Item IV of the Kenya National Dialogue and

Reconciliation, the two Grand Coalition Government partners agreed to undertake

comprehensive reform of the Constitution and key governance institutions including the

Judiciary, as part of the long-term solutions to the crisis. Similarly, the Medium Term Plan

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(2008- 2012) identifies judicial reform as an important aspect of the economic, social and

political pillars of Vision 2030. To effect these reforms, the Government established a Task

Force to examine and advise on the most effective and efficient ways of transforming

the Judiciary.

These circumstances also offered Kenya a constitutional moment, an opportunity to

reinvigorate the stalled constitutional process. To that end, two key pieces of legislation

were enacted in 2008: the Constitution of Kenya Review Act and the Constitution of

Kenya (Amendment) Act. The purpose of the 2008 Review Act was to facilitate the completion of the review of the Constitution of Kenya. The Act set up the CoE as an organ of review with the mandate to identify and resolve outstanding issues before

preparing a draft Constitution for adoption by Parliament and ratification in a national

referendum. In addition to the CoE, three other organs of review were identified in

Section 5 of the Act:

(1) The PSC a 27 member, multi-party Parliamentary Committee; (2) The National Assembly (NA); and

(3) The Referendum.

The total membership of the CoE was 11. Six of the members were Kenyans chosen by

the PSC and approved by Parliament; three were foreigners, chosen by the PSC from a

list of five prepared by the Panel of Eminent African Persons and approved by the

National Assembly. The additional two were the Director and the Attorney-General who

were non-voting members. These organs were guided by principles laid out in section 6

of the Review Act. Under these principles, the review organs were to ensure completion

of the constitutional review process in a manner that ensures that the national interest

prevails over regional or sectoral interests and an outcome satisfactory and

accountable to the people of Kenya;

In addition to the Review Act, other constitutional and legislative changes introduced as

a result of the KNDR process influenced the course of the constitution making exercise.

The Constitution of Kenya was amended to achieve four main things:

(1) To entrench the political agreement reached by the KNDR team. The amendment

authorized Parliament to enact legislation concerning the Coalition Government,

and appointment and termination of the offices of the Prime Minister (PM), Deputy

Prime Ministers and Ministers as well as to determine their functions. The new

cabinet would consist of the President, the Vice-President, Prime Minister, two

Deputy Prime Ministers and the other Ministers.

(2) To establish a procedure for its replacement by a new constitution.

(3) To establish the Interim Independent Constitutional Dispute Resolution Court which

would shield the review process from the existing judiciary informed out of the

experience when a section of the Judiciary in 2002 issued orders seeking to stop

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the Bomas constitutional review process.

(4) To establish a new Interim Independent Electoral Commission (IIEC) and an Interim

Independent Boundaries Review Commission (IIBRC).

The National Accord and Reconciliation Act (2008) (The National Accord) reinforced the

constitutional amendment by giving effect to the agreement of the two Principals to

establish a Coalition Government and foster national reconciliation. The provisions in the

constitutional amendment that established a procedure for the replacement of the

former constitution with a new one was of particular relevance to the review process.

First, it contemplated comprehensive reforms the replacement of the Constitution and not mere amendment. Most importantly, the Act required a new constitution to be

adopted by the people of Kenya in a referendum.

In addition, the Interim Independent Constitutional Dispute Resolution Court was

intended to protect the process from unfounded legal challenges and was granted

exclusive original jurisdiction to hear and determine matters arising from the

constitutional review process. (The Court made decisions that were vital to the success of

the process when this was challenged before the referendum and promulgation of the

new Constitution.) The function of the IIEC was to reform the electoral process and

management of elections in order to institutionalize free and fair elections. Importantly

this body was mandated to organise the constitutional referendum and it played a

magnificent role to that end.

The issue that arose in relation to the National Accord Act in the context of the

constitutional review process was the terminal effect that a new constitution would have

on the Act and the arrangements for a coalition government that it established. Under

section 8, the Act would cease to apply upon dissolution of the tenth Parliament, if the

Coalition was dissolved, or if a new constitution was enacted, depending on whichever

was earlier. This showed that the coalition arrangement was transitional in nature and

that a new constitutional settlement was necessary for longer term stability.

3.2 Public Views on the Judiciary.

Submissions to the CoE on the Judiciary were virtually unanimous on one point: the

Judiciary had to be reformed. The CoE received a number of submissions on how that

should have been done. Those submissions were classified into two groups:

(1) Those that proposed that the entire Judiciary should be reappointed (with all

judicial officers or at least all judges being treated as having lost their jobs but

permitted to reapply); and

(2) Those that proposed a more gentle approach - that judicial officers remain in

office but are required to take a new oath and to undergo a vetting process.

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The first question that the CoE had to consider in relation to the justice system was

whether all judicial officers should be treated in the same way. Although equality of

treatment is superficially attractive, the Committee decided that it was not practical and

that judges and other judicial officers should be treated differently. This is because there

were significant differences between judges and other judicial officers. The first

difference was in their numbers. The Judiciary is relatively small making their

reappointment or vetting under a strict timetable possible. The magistracy, on the other

hand, is large. Reappointment or vetting would be a long and complicated process with

severe implications for the operation of the subordinate courts unless it was handled very

carefully.

The second difference relates to the independence of the Judiciary. Although judicial

independence was not expressly provided for in the Harmonised Draft Constitution, it

was implied in a number of provisions. These provisions gave judges stronger protection

than judicial officers serving in subordinate courts. For instance, magistrates can be

removed from office by the Judicial Service Commission while a special procedure

involving Parliament is required for the removal of a judge of the superior courts.

Generally the initiation of a procedure to remove a judge should be a rare occurrence.

It seemed appropriate to consider the appropriate procedure in relation to judges and

other judicial officers separately and to ensure that all questions about judges were dealt

with after enactment of the constitution.

3.3 Harmonized Draft Constitution.

The Committee in its Harmonized Draft Constitution sought to deal with judges and

magistrates in different ways as explained below:

3.3.1 Judges

Informed by submissions, the weight of opinion at a technical consultation on the issue,

the concerns of many of those directly involved in the justice system and its own

understanding of the issue, the CoE decided that to retain the status quo and simply

allow members of the judiciary to continue in office was not appropriate. In addition, on

careful consideration of the options suggested in submissions, the CoE decided that

wholesale reappointment of the judiciary was not appropriate. Instead, it decided that

some form of vetting of the current judges should take place as was done in Bosnia-

Herzegovina, East Germany, the Czech Republic and elsewhere in Eastern Europe and

as proposed by the CKRC and Bomas Drafts.

This approach is also similar to that proposed by the August 2009 report of the Task Force

on Judicial Reforms. There had been calls for the total renewal of the judiciary. On this

approach, all judges would lose office when the constitution comes into effect but, to

ensure that the court system continues working, they would continue working in an

acting capacity. A process would then be followed which allowed judges to reapply for

positions on the bench. (Those that chose not to reapply would be provided with

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suitable retirement benefits.) The process of reappointing judges would be done by the

Judicial Service Commission at the same time as filling new positions in the judiciary.

However, this approach would be disruptive, causing a sense of insecurity amongst

judges.

The alternative of vetting would achieve the same goal as renewal: judges with

problematic records would not be able to remain on the bench. However, it would be

less disruptive than a process requiring all judicial positions to be filled anew. On the

vetting approach adopted in the Harmonized Draft Constitution, every judge would be given an opportunity to resign (with appropriate benefits). Those that remained in office

would be vetted by an independent commission (the Interim Judicial Service Commission). The main aim of the process would be to ensure that any serious

complaints against sitting judges were properly considered.

If, on an initial review of the record of a judge, including any complaints against him or

her, the Commission found that further investigation was warranted, the matter would be

referred to the process established in the constitution for investigating complaints against

judges. The Constitution would guide the process to be followed by the Commission, but

the Commission would establish its own procedure and develop criteria for the process.

Once cleared in the vetting process, the judge would continue in office and would be free to be considered for more senior judicial positions.

3.3.2. Magistrates

As noted above, the CoE did not think that the approach provided for judges should be

applied to magistrates and other subordinate court judicial officers. The approach the

CoE decided to take was that the newly composed Judicial Service Commission should

have the authority to investigate complaints against them (whether the complaint arose

before or after the new constitution came into effect) but that no special process should

be adopted to vet every magistrate. This approach also reflected the fact that decisions

of the subordinate courts are reviewable by higher courts and so these judicial officers

are subject to control by judges of the superior courts. Nonetheless, the CoE recognised

that most of the publics experiences of the justice system were at this level and therefore provided for the newly appointed JSC to recommend as to how concerns

about efficiency and corruption could be addressed at the magistrates level.

3.3.3 Transitional provisions on the Judiciary.

Views about the transitional provisions with respect to the Judiciary manifested three

trends:

(1) First, there were views expressed that mistakenly claimed that the Judiciary was to

resign in its entirety upon the promulgation of a new constitution. The Harmonized

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Draft Constitution actually offered sitting judges who opt to do so the choice of

resigning with benefits upon the promulgation of a new constitution. Those who

chose to stay on would be vetted in a phased approach on the basis of clearly

identified principles. Judges who were cleared by the Judges Review Commission

would automatically continue to serve under the new Constitution. The provisions

for a phased approach were to ensure that the provision of judicial services would

not be disrupted.

(2) Secondly, some argued that the transitional provisions pertaining to the Judiciary

were unfair and suggested that existing judges should, upon the promulgation of a

new constitution, be sworn into office under the new constitution and continue to

serve without being subjected to any transitional process.

(3) Finally, there were contrary views proposing that all the judges currently in office

should be sent home to ensure a clean slate.

The Judiciary is the third organ of government. Unlike some members of the executive

and the members of the legislature, members of the Judiciary (i.e. judges) are not

elected and enjoy security of tenure. While the provisions concerning elections would

ensure that the constitutional office holders who belong to the other organs of

government could be transited effectively through the electoral process, which will

actually vet their suitability under the new constitution no such mechanism exists for judges and other appointive constitutional office holders.

There was therefore also need for an appropriate transition mechanism for judges. The

Final Reportii of the Constitution of Kenya Review Commission, stated that serious allegations were made against the Judiciary, including inefficiency, incompetence and

corruption. Furthermore the need for Judicial Reform was identified as one of the long term issues causing conflict in Agenda Four of the Kenya National Dialogue and

Reconciliation in February 2008. The Judiciary itself acknowledged the need for reform

and established a Task force on Judicial Reform, the report of which was published in

August 2009 and informed the CoEs proposals.

Like all the other forms of institutional reform that have a constitutional dimension, judicial

reform entailed structural reform as well as mechanisms that would enable and require

individual officeholders to comply with the provisions for office within the new

constitutional order. Given the publics expressed concerns about the poor state of the judicial system, there was need that these concerns be addressed in a way that restored

public confidence in the administration of justice. Not providing for a transitional

mechanism for the Judiciary would have further eroded the publics confidence in the justice system. Yet the means of restoring public confidence must also not undermine the

Judiciary as an institution.

The CoE considered the suggestion of the clean slate approach but were of the opinion that like the radical surgery it ran the risk of undermining the Judiciary and also would condemn wholesale all members of the Judiciary. The CoE held the view that the

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vetting procedure allowed those members of the Judiciary who wanted to continue

serving to be eligible for reappointment whilst those who preferred not to could choose

the option of resigning with their appropriate benefits. The transitional provisions in the

RHDC also provided that the processes for vetting be in keeping with international

principles. Accordingly, the CoE retained the framework of the Harmonized Draft

Constitution in the RHDC with some minor modifications to the detail.

3.3.4 Chief Justice and Attorney General.

From the on-set it is pertinent that any judicial reforms initiative would be impossible

without a reform minded leadership both in the Judiciary and the policy wing of

administration of justice as headed by the Attorney General. To this end the COE in its

transitional provisions with respect to other appointive office holders such as the Chief

Justice and Attorney-General provided that the officeholder(s) would cease to hold

office within six months and a year respectively of the coming into effect of the new

constitution. These two had been adversely mentioned as being too pro-establishment

and provisions therein expressly provided that they would be ineligible for

reappointment. The then Attorney General had been indicted by the UN Special

Rapporteur Philip Alston's report on Extra-judicial Killings while the then Chief Justice had

conducted the hurried and hushed swearing-in of President Kibaki at night in State

House, Nairobi.

3.4 Structure of the Judiciary.

In its proposals the COE formulated constitutional provisionsiii that would establish a

fundamental principle, namely that judicial authority is derived from the people. That

authority would therefore essentially be exercised with the sole objective of fulfilling the

aspirations of the People as espoused in the new Constitution. The constitutional

provisions sought to create a basic architecture for judicial Transformation in granting the

Judiciary independence by providing that it shall not be subject to the control or direction of any person or authority. In exchange for this constitutional guarantee of independence, the Constitution then prescribes clear principles that the Judiciary must

adhere to in exercising judicial authority, namely:

(a) The Judiciary must do justice to all irrespective of status;

(b) The Judiciary must not delay justice; instead it must provide justice expeditiously;

(c) The Judiciary must promote alternative forms of dispute resolution;

(d) The Judiciary must administer justice without undue regard to procedural

technicalities; and

(e) The Judiciary must protect and promote the purpose and principles of the

Constitution.

The new Constitutional provisions sought to re-organize the leadership of the Judiciary in

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a manner that is a significant departure from the previous Constitution. Whereas, under

the previous Constitution, the Judiciary had monolithic leadership under the Chief

Justice, who was a member of both the High Court and the Court of Appeal, the new

Constitution confines the Chief Justice to the Supreme Court and does not give him a

role in the affairs of the other tiers of the higher Judiciary, the High Court and the Court of

Appeal. Instead, the Constitution mandates the election of the Principal Judge as the

leader of the High Court and the President of the Court of Appeal, as the leader of that

court.

The Supreme Court would also be able to clarify and give authoritative text of

indigenous jurisprudence. While these changes significantly reduce the powers of the

Chief Justice, one of the complaints against this office under the former Constitution, it

also creates problems of co-ordination between the courts, which will now act more

autonomously that under the previous Constitution. The new Constitution while solving

the problem of concentration of power in the Chief Justice creates the problem of the

need for the courts to consider the co-ordination of their functions so that they do not

end up undermining their collective mission. This is due to the specialized courts dealing

with employment/ labour relations and Land/Environment all of which have been

granted the constitutional status of the High Court.

3.5 The Case for a Constitutional Court.

In the Harmonised Draft, the CoE recommended that a Constitutional Court be

established for the following reasons:

(1) A court presided over by judges that have specialised in, or have experience in

constitutional law and human rights, who would concentrate on matters or

interpretation and implementation of the constitution would promote

constitutionalism and the proper implementation of the Constitution.

(2) It would permit the speedy determination of disputes arising out of presidential

election.

(3) It would ensure effective resolution of disputes between the national and

devolved governments.

(4) It would permit speedy and effective handling of disputes/appeals over elective

and administrative boundaries.

The recommendation for a specialised court was made against the background of the

eroded confidence in the independence and integrity of the judiciary; the prevailing

baggage of judicial practice that denied access to justice; and the introduction in the

draft, of new provisions, including an expanded Bill of Rights whose interpretation

necessitated a specialised court. However, the proposed Constitutional Court was

deleted from the draft by the PSC. The CoE received memoranda concerning the

chapter on the Judiciary that raised concerns about the need to clarify the role of the

constitutional court relative to other courts. Some members of the public were of the

view that a constitutional court was unnecessary and that the CoE had gone out of its

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mandate by creating one in the Harmonized Draft Constitution.

The CoE responded to these concerns by clarifying the role of the Constitutional Court.

The CoEs constitutive Act, the Review Act, did require in section 4 that the provisions of the new constitution secure and ensure constitutionalism and the rule of law. Kenya has

hitherto not had a strong culture of constitutionalism. This may have led to the views

expressed by the people to the CKRC and contained in their report at page 209 where,

in speaking to the issue of the structure of the courts, they are said to have expressed a need to establish a constitutional court. The Report of the CKRC was the statutory primary source document for the Harmonized Draft Constitution under section 29 of the

Review Act. While some memoranda argued that a Division of the High Court, as is the

current arrangement, could play the role of a Constitutional Court, the CoE found that

this would not be adequate.

Divisions of the courts are not established by the constitution and so could be abolished

over time. The existing Division was also temporary and did not have judges who sat on it

permanently. Nor is experience in constitutional law required for a judge to serve on the

Division. But, the Harmonized Draft Constitution provided for a new and strengthened Bill

of Rights as well as several new constitutional institutions, such as the devolved

governments. There was therefore need for a permanent judicial mechanism that would

enhance constitutional jurisprudence that promotes constitutionalism. The CoE was of

the view, however, that there was need to further clarify the role of the Constitutional

Court to ensure that there would not be conflicts between it and the other courts.

3.6 Appointment, Discipline and Removal of Judges, other Judicial Officers and Staff

To secure merit-based appointment of Judges, other judicial officers and staff and to

promote high standards of conduct, discipline and performance in the Judiciary, the

COE recommended that The Chief Justice, Deputy Chief Justice, Supreme Court and

Court of Appeal Judges be appointed from among persons of high moral character,

integrity, impartiality and intellectual competence as demonstrated by academic

qualifications, and who possess a minimum of at least 15 years or an aggregate of 15

years experience as a superior court Judge, distinguished academic, judicial officer or

other relevant legal practice in the public, private or any other relevant legal sector. The

Chief Justice and the Deputy Chief Justice be appointed by the President in

accordance with the recommendation of the Judicial Service Commission, and subject

to the approval of the National Assembly.

The other Judges of the High Court and Court of Appeal would be appointed from

among persons of high moral character, integrity, impartiality and intellectual

competence as demonstrated by academic qualifications, and who possess a minimum

of at least 10 years or an aggregate of 10 years experience as a distinguished

academic, judicial officer or other relevant legal practice in the public, private or any

other relevant legal sector. They would be appointed on the basis of a competitive

process in which vacancies are advertised, interviews conducted, and effective vetting

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undertaken by the JSC before names are presented to the President for appointment

The Judges were exempted from Parliamentary scrutiny since the Judiciary were

concerned it hamper their independence and such provisions that required they be

vetted by Parliament on appointment would politicise the appointment process.

The JSC be empowered to deal with disciplinary cases against Judges where the

misconduct or misbehavior in question does not warrant removal. The JSC was to be

mandated to consider and advise the President on the question of removal of Judges on

the grounds of breach of the Judges Code of Conduct and Ethics, incompetence, mental or physical incapacity, bankruptcy, gross misconduct and misbehaviour. Judicial

officers facing serious criminal charges were be suspended from duty pending the

determination of cases against them. Comprehensive criteria for the recruitment of

Judges, other judicial officers and staff be developed and adopted by the JSC to ensure

standardization in the recruitment process.

3.7 Kadhi's Courts.

The CoE arrived at the decision that Kadhis Courts were not contentious, based on the directions laid down by the Review Act, in particular:

(1) Views of Kenyans collected and collated by the CKRCiv: The Committees examination of these views revealed that Kenyans had indeed sought to have the

Kadhis Courts provided for in Kenyas new constitutional dispensation. There was no indication of the contrary on this particular issue in the Commissions final Report.

(2) Proceedings at the National Constitutional Conference: As required by the Review

Act, the CoE went through the records of the proceedings of the National

Constitutional Conference at Bomas. The delegates to the National Constitutional

Conference voted in favour of the retention of the provisions pertinent to the

Kadhis Courts.

(3) Provisions of the past Draft Constitutions: The past draft constitutions all provided

for Kadhis Courts, though with certain differences.

(4) Views from the Kenyan public on what they considered contentious: As earlier

pointed out, the Committee received over 12,000 memoranda from Kenyans on

what they considered contentious. These memoranda did not show Kadhis Courts as contentious. Only a minority mentioned Kadhis courts as a contentious issue. Others supported their retention as it was in the former Constitution.

Thus, the CoE could not identify Kadhis Courts as contentious. However, it noted its importance as a national socio-cultural issue that needed resolution amongst Kenyans.

Beyond identifying contentious and non-contentious issues, within the framework of the

current review process, the CoE was also mandated to provide recommendations on

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diverse issues concerning the review process. On the issue of Kadhis Courts, the Committee proposed that the status quo be maintained, i.e., Kadhis Courts be entrenched in Kenyas new constitution in exactly the same format as in the independence Constitution. Before arriving at the position mentioned above, the CoE

examined the following options:

(a) Remove the Kadhis Courts from the Constitution Because, as outlined above, Kadhis courts were not a contentious issue, this was not a viable option. Moreover, the views received by the CoE that were opposed to the courts were from a

minority. Moreover, the Kadhis Courts were not prejudicial to Kenyas judicial and legal system or to individuals.

(b) Retain but enhance the structure of the courts as per the Bomas Draft. This option

was also untenable because upon evaluation, the CoE was of the opinion that it

would present an almost parallel judicial system for Muslims and other Kenyans

who professed other faiths. Views presented to the Committee from Kenyans who

spoke to the issue also suggested that their discomfort was not with the

entrenchment, but the proposed enhancement of the courts.

(c) Retain Kadhis Courts as religious courts as couched in the PNC. This proposal also could not stand because the PNC was rejected during the Referendum in

November 2005. Moreover an examination of views from Kenyans presented to

the CKRC did not reveal any call for religious courts.

(d) Remove Kadhis Courts from the Constitution but propose to have them provided for in legislation. Provision of Kadhis Courts in legislation without entrenchment in the constitution was also considered. The CoE rejected this idea for various

reasons. First, the entrenchment of Kadhis Courts in Kenyas Constitution has a history (outlined below) that informed the totality of the makeup of Kenyas territory since independence. Secondly, Muslims in Kenya comprise a minority

reflected in Parliament. Therefore ordinary legislation would be vulnerable to

repeal.

(e) Maintain the status quo. The Committee considered this option and decided to

follow it for the following main reasons:

i) Kadhis Courts were in the former Constitution: Kadhis Courts were provided for in Kenyas former Constitution and their existence has neither threatened nor in any way negatively affected persons who profess other religions. Kadhis Courts handle Muslim personal law in situations where all the parties are Muslims.

ii) The 10 mile Coastal Strip: Until independence, the 10 mile Coastal Strip which

represents the current Coast Province was a protectorate under the British via an

agreement with the Sultan of Zanzibar. In determining that although the Kadhis Courts

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was a non-contentious issue within the purview of the Review Act, but was an issue of

concern, the Committee took into account, in addition to the factors stipulated above,

the special status of the Courts as part of the historical agreements underlying the

constitutional settlement of Kenya. These agreements were incorporated into the

Constitution at independence and could not be abrogated retrospectively by removing

the Kadhis Courts from the Harmonized Draft Constitution.

iii) Established expectations: The doctrine of legitimate expectation in law entitles

individuals to continue to enjoy existing forms of protection. The protection accorded to

Muslims by the Kadhis Courts under the Independence Constitution lay in providing a mechanism for settling disputes that are uniquely resolved on the basis of their personal

law and faith.

iv) Underlying principles of the civil courts in the judicial system: Leaving aside the

Kadhis Courts, the existing judicial system operates on the basis of the Judeo-Christian philosophy implicit in the laws introduced when Kenya was a colony.

v) Objects and Principles of the Review Process: In deciding that the Kadhis Courts should remain in the Constitution, the CoE was also guided the sections 4 and 6 of the

Review Act. Of particularly importance among the objects and purposes of the review

process set out in section 4 were paragraphs (a), (e), (h) and (k) which required the new

constitutional to guarantee peace, respect diversity and strengthen national unity and,

of the principles in section 6 of the Act, paragraphs (c), (d) and (e) which emphasise the

need to accommodate diversity, respect human rights, and reflect the wishes of the

people.

3.8 Reconstitution of the Judicial Service Commission

The RHDC made provision for a slightly more expanded Judicial Service Commission. The

CoE seriously considered the merits and demerits of having the Chief Justice as a

member of the JSC at all, and especially as the chairperson. The CoE chose to accept

the PSC decision, despite misgivings. But, it also provided that appointment of two lay

members of the JSC by the President should be subject to the approval of the National

Assembly. The COE noted that several reports on judicial reforms, including those

appointed by the Judiciary, had pointed out that the composition, functions and

practices of the JSC did not satisfy international best practices and standards.

Under the Constitution, the main function of the JSC is the appointment, discipline and

removal of the Registrar or Deputy Registrar of the High Court, magistrates of subordinate

courts, Kadhis and other court officials. In relation to Judges of the Court of Appeal and

High Court, the JSC only advises the President on their appointment. In terms of the

composition of the JSC, there was neither representation of the legal profession, the

public nor court users. All the members of the JSC were direct presidential appointees,

which reinforced a perception of lack of independence from the Executive.

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The composition of the JSC is set out under Section 68(1) of the former Constitution of

Kenya was as follows:

i. The Chief Justice as chairman

ii. The Attorney-General

iii. Two persons who are for the time being designated by the President from among

the puisne Judges of the High Court and the Judges of the Court of Appeal

iv. The chairman of the Public Service Commission (PSC).

The membership of the JSC was criticized for consisting only of persons appointed by the

President and there was therefore the perception that the JSC was not sufficiently

independent of the Executive. It was also said that the membership drew largely from

the public sector, thereby locking out the potential contribution that other sections of

society may bring into such a body. Finally, in comparison with the Commissions in the

other branches of government, namely the Public Service Commission and the

Parliamentary Service Commission, the JSC did not have a fully functioning support

administration or full-time Secretariat, separate from the judicial administration.

The Constitution does not provide for the position of a secretary to the Commission.

However, section 3(1) of the Service Commissions Act (Cap 185 Laws of Kenya) provides

for a secretary to the Commission. Initially, this role was played by the personal secretary

to the Chief Justice but with increasing institutionalization and complexity of the agenda

of the JSC, this role was naturally vested in the Registrar of the High Court. The Secretariat

functions of the JSC are performed by the Registrar instead of a Secretariat as envisaged

in the Service Commissions Act. Therefore, there was lack of a clear separation between

the operational or administrative arm of the Judiciary headed by the Registrar and the

policy making body for the Judiciary, namely the JSC. To enhance the independence,

operational autonomy, efficiency and effectiveness in the governance and

management of the Judiciary, COE recommended that:

(1) The JSC be restructured and expanded to include additional representation from

the Supreme Court, the statutory body responsible for the professional regulation

of advocates, the association of Judges and magistrates and the public. The

constitution was clear that these representatives would have to be elected by their

various nominating bodies to satisfy the demand for popular mandate.

(2) An independent Secretariat of the JSC headed by a Registrar be established to

support the Commissions functions.

(3) The functions of the JSC be expanded to include performance management and

enhancement, discipline of judicial officers including Judges, receipt and review

of complaints against judicial officers and advising the Government on ways of

improving the administration of justice.

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3.9 Revised Harmonized Draft Constitution.

The PSC made five fundamental alterations to the chapter on the Judiciary. These were:

(a) Removal of the provisions for the Constitutional Court;

(b) Provision for the Chief Justice to be a member and Chairperson of the Judicial

Service Commission (JSC);

(c) Removal of all references to vetting or transitioning of the Chief Justice and

Judiciary;

(d) Subjecting the appointments of all judges to parliamentary approval; and

(e) Removal of provisions for the establishment of specialized courts on employment,

and land and the environment.

In the end, the CoE largely adopted the recommendations of the PSC except where, for

technical or other reasons stated below, it decided this would not further the interests of

justice. On judicial authority, the CoE reinstated reference to derivation of judicial

authority from the people consistent with provisions in the Chapters on the Executive and

Legislature. This provision is also consistent with the provisions stating that state and public

officials provide a service to the people: the public are not merely consumers of justice,

but are also be treated justly, reasonably and without bias. The CoE also reinstated

paragraphs deleted by the PSC from Article 191(3), which expressly subjected all courts

and dispute resolution mechanisms to the Constitution and Bill of Rights.

On the Offices of Chief Justice and Deputy Chief Justice, the PSC recommended

reinstating the Chief Justice as the chair of the JSC. CoEs initial position was that it was important to keep the Chief Justice out of the JSC if the latter institution was to be

independent and effective. However, the CoE accepted the PSCs reinstatement of the Chief Justice in the JSC. Consequently, the need for a Deputy Chief Justice became self

evident. The JSC established in the Proposed Constitution is an active and busy

commission. If the Chief Justice were to chair it, he or she would have to have a deputy

in the courts or at the JSC and for other administrative functions. The Deputy Chief

Justice would also double as the Vice-President of the Supreme Court and as the person

to swear in the President if the Chief Justice is not available.

Additionally, the RHDC had reserved the roles of implementing continuous education and training of judicial officers and advising national government on improving efficiency of the judiciary for the Chief Justice when the office was not part of the JSC. As the Chief Justice was now chair of the JSC, the CoE made these functions the

responsibility of the JSC in the Proposed Constitution. On System of Courts, the CoE

agreed to delete references to the Constitutional Court in the Proposed Constitution

following the recommendations of the PSC. However, it did not support the PSCs recommendation that the specialised courts on employment and land and the

environment be removed and replaced with a broad grant of authority of Parliament to

establish other courts with such jurisdiction, functions and status as Parliament may determine.

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First, such provisions would give Parliament a blank cheque to establish courts whose

level and jurisdiction might supplant the superior courts established in the Constitution.

Further, this would not signal establishment of specialized courts on employment and

land/environment, and would not solve the competing jurisdictional issues that have

historically existed between the High Court and the Industrial Court. Thus, the CoE

reinstated the provision allowing Parliament to establish, by legislation, employment and

land/environment courts with a status equivalent to the High Court as had been

provided for in the earlier drafts. The PSC retained the new Supreme Court and its

jurisdiction but its recommendation concerning the composition of the Court resulted in

a total of eight judges on the bench.

The CoE reformulated this to avoid an even number. Thus, the Court would now

comprise the Chief Justice, the Deputy Chief Justice, and five other judges, totalling

seven. In respect of the Court of Appeal and the High Court, the PSC agreed with the

RHDC provisions for a President and Principal Judge respectively, but suggested that he

or she be the most senior judge. On consideration the CoE amended this so that the

President and Principal Judge would be elected by their peers. Seniority may be easy to

implement, but may not achieve gender and other diversity requirements, or ensure the

most qualified, efficient or respected person gets to lead his/her peers. The CoE

therefore reverted to the mode of election to ensure respect, accountability and

efficiency of holders of this important office.

With respect to the High Court, the PSC retained that Courts fundamental structure and functions. It also anticipated this Court assuming the functions of the Constitutional Court.

However, the PSC Draft did not transfer the functions of the Constitutional Court fully. The

CoE rectified this by providing for jurisdiction respecting interpretation of the new

constitution, including unconstitutionality of any action taken under the constitution;

differences over the powers and function of national and county government and

between counties inter se; disputes between state organs; and questions of conflict of

laws. The CoE also made provision for constituting a bench of multiple judges for matters

raising substantial matters of a constitutional nature.

However, it was noted by the CoE that the removal of the provisions for a Constitutional

Court inhibited the development of a pool of judges specialised in constitutional matters.

It was particularly concerned that the High Court would not be well suited to exercise

the full mandate initially accorded to the Constitutional Court. Appointments of Chief

Justice, Deputy Chief Justice and other Judges. Concern that the appointment of judges

should be protected from political pressures led the CoE to remove the requirement of

parliamentary approval for all judicial appointments other than those of Chief Justice

and Deputy Chief Justice when it prepared the RHDC. This was changed by PSC to

make all appointments of judges subject to approval by Parliament. After lengthy

deliberations and especially noting the role of the Chief Justice in the JSC, the CoE

agreed to retain the requirement of parliamentary approval for the appointment of the

Chief Justice and the Deputy Chief Justice.

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However, the CoE was not satisfied that there were sufficient safeguards in the

parliamentary process to shield other judicial appointees from political negotiation and

political horse trading. The CoE settled for a competitive and transparent appointment

process conducted by the JSC, and for the President to appoint the other judges on the

JSCs recommendation. In the same vein, the CoE restored the involvement of three judges from the Commonwealth to be involved in the removal of the Chief Justice from office. As formulated by PSC, three sitting judges would determine if their boss was fit to continue to hold office.

This state of affairs would be vulnerable to perceptions of subjectivity and victimisation.

On the Judiciary Fund, amendments proposed by the PSC did not significantly alter the

Judiciary Fund. However, in introducing new provisions on the JSC, the PSC inadvertently

removed the Chief Registrar, as the Accounting Officer of the Judiciary, and inserted the

JSC in that role. Clearly, PSC could not have intended this in light of having retained

Article 146(3). The formulation was adjusted accordingly, and the regulation of finances

of the Judiciary accorded the same stature, sanctity and prescience as the budget of

Parliament.

4.0 VETTING AS A CRITICAL TOOL OF JUDICIAL REFORMS: KENYAN EXPERIENCE.

Kenyas Vetting of Judges and Magistrates Act, 2011, brings into force the constitutional provision on judicial vetting by establishing a one-year review mechanism that applies to

all judicial officers, except new applicants who are subject to public interviews by the

Judicial Service Commission (JSC). All judicial officers serving at the time of the

promulgation of the new constitution, i.e. 27th August 2010, will be vetted. Any judicial

official not willing to go through the process have only one option available to them- to

take an early retirement plus retirement benefits. In August 2011, the President appointed

a nine-member Vetting Board, which is made up of a chairperson and five other Kenyan

and three foreign nationals appointed from the Commonwealth with backgrounds in

judicial practice and other discipline.

The framework for the Rules of Procedure of the Vetting Board is provided in section 33(2)

(b) and (c) of the Vetting of Judges and Magistrates Act, 2011 which is further buttressed

by regulations made under the Act. The Vetting does not in any way undermine judicial

independence since section 23 of the Sixth Schedule Constitution of Kenya specifically

provides that vetting would operate as a transitional reform measure despite the

provisions guaranteeing judicial independence. Those found unsuitable as per an

objective criteria would be discharged from judicial service.

4.1 The Reality of Vetting.

The Vetting Board has so far made precedent setting determinations on the suitability of

several Superior court judges on whether they should continue serving or quit judicial

service altogether. Some of the Vetting sessions have been held in public on the request

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of the particular judges being vetted. Four Court of Appeal Judges were found to be

unsuitable to continue serving in the newly reformed judiciary as indicated below:

JUDGE REASONS FOR UNSUITABILITY

1 Justice Samuel Bosire Failed to summoned ex-President to testify in

a judicial commission of inquiry on loss of

State funds.

2 Justice Habel Nyamu Acted corruptly in a land transaction when

he was an advocate. Gave pro-

government judgments

3 Justice Riaga Omollo Was pro-establishment and insensitive to

litigants.

4 Justice Emmauel Okubasu Giving Ruling which favoured the

government

Additionally, the following judges of the superior courts have also been dismissed for the

reasons given:

JUDGE REASONS FOR UNSUITABILITY

1 Justice Mohamed Ibrahim ( Supreme

Court)

Failed to deliver judgments on time. Delays

of upto four (4) years pending judgments.

2 Lady Justice Jeane Gacheche ( High

Court)

Misused her judicial power to issue blanket

orders to insurance companies to

detriment of claimants.

3 Lady Justice Rosemary Nambuye

( Court of Appeal)

Lacked court management skills and

delayed judgments for long periods.

4.2 Effects of a Reformed Judiciary.

The trickle down effect of the reforms initiated by the Judiciary were bolstered by the

appointment of DR. Willy Mutunga, a veteran crusader for human rights and former

political detainee, as Chief Justice. The President had initially attempted to unilaterally

appoint a new Chief Justice without the requisite consultation with the Prime Minister as

well as on the advice and recommendation of the Judicial Service Commission. The

appointment, as well as those of the Attorney General and Controller of Budget were

rejected by a cross-section of stakeholders and subsequently declared unconstitutional

by the High Court. The President thereafter withdrew the nominations and remitted to the

JSC the task of competitively selecting a Chief Justice. This enhanced public confidence

in the judiciary to high levels.

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Certain administrative and institutional reforms have been initiated by the Chief Justice

such as reduction in formalities in terms of dressing and formal court addresses, simplified

procedures to access courts, customer oriented service charter, sensitive and friendly

court staff and a responsive judicial service. The newly re-constituted JSC has become a

significant player in co-ordinating the functions of the Judiciary, because it is the one

organ where the leaderships of the various tiers of the judiciary is represented. So far, the

expanded JSC has been assertive, a departure from the JSC under the previous

constitution, and, for example, contributed to the resolution of the crisis that resulted

from the attempted nomination of Justice Visram to the office of Chief Justice.

The JSC rejected the action by the President as irregular, agreeing with a number of

other public officials who had taken this position in relation to the controversial

nomination. The JSC was notable not only because of the decisions made so far but also

because of the transparent process through which it has reached those decisions. Unlike

its predecessor, the expanded JSC appears to have embraced public communication

as part of its way of work. According to a recent public perception baseline survey of the

Judiciary conducted by Infotrak Research and Consulting in conjunction with the

Kenyan Section of the International Commission of Jurists, the Judiciary enjoys enormous

public confidence. Courts have greatly enhanced efficiency in their work systems

through reduction of technicalities and preference for substantive justice. Judicial

officers serving have more reason to performance well.

A major benefit of the reformed judiciary has been an emerging activist jurisprudence as

evidenced by the bold court decisions which have annulled Presidential appointments.

In Civil Society Vs AG the High Court declared unconstitutional the President's purported

unilateral appointment of a new Chief Justice, Attorney General and Controller of

Budget. In ICPC & Ors Vs AG the High Court declared unconstitutional the President's

appointment of County Commissioners for breaching the mandatory requirement on

gender and consultation. In ICJ Vs AG the High Court issued an arrest warrant against

the President of Sudan on account of war crimes under the International Criminal Court

system.

4.3 Integrity and Responsiveness of Judicial Reforms.

The integrity bar of public conduct within judicial service has been raised to a new level

taking into consideration the saga surrounding the Deputy Chief Justice Nancy Baraza.

During a shopping trip at a city mall she allegedly by-passed a security personnel

conducting body screening. The security guard who had recognized the Deputy Chief

Justice pursued her and insisted on conducting the body search. Whereupon an

altercation erupted resulting into the DCJ confronting and threatening to shoot the

guard with a gun. The further pinched her nose. Their was a public outcry after the saga

was reported in the media. The JSC called for an emergency session where it ordered for

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speedy investigations. The DCJ recorded a statement with the police. Upon a report

being made to JSC it recommended to the President for a tribunal to be set up to

investigate the conduct of the DCJ. The tribunal was set up and Chaired by Justice

Augustino Ramadhan, former Tanzanian Chief Justice. It made a report to the President

with a finding that the DCJ was unfit to hold office on account of gross misconduct. An

appeal currently lies with the Supreme Court.

5.0 CONCLUSION.

It is therefore imperative that a meaningful constitutional review process must take into

account judicial reforms. The Constitution, 2010 lays the foundation for the

transformation not only of the Judiciary but also of the Kenyan society as a whole. This is

through the normative values and principles that have been adopted and enshrined in

it. For the first time all facets of public and private life are governed by national principles

and values that are founded on human dignity, equality and the rule of law. Legislation

has been, and continues to be, enacted to further elaborate and actualize these

constitutional values and principles. In addition, a new team that has undergone

thorough public vetting has assumed leadership of the Judiciary. This leadership has

embraced changed management approaches and embarked on building institutional

delivery mechanisms to fulfill the Judiciarys mandate. It is also significant that the mandate of the Judiciary has been expanded by strategically placing it at the helm of

the National Council on the Administration of Justice (NCAJ).

i Miscellaneous Civil Application No 82 of 2004. ii 10 February, 2005 Page 210 iii Article 159 iv The Final Report of the Constitution of Kenya Review Commission, p 210

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