NUBIAN LAND QUANDARY

History

A Nubian name, Kibera[1], is the official name that was assigned to the parcel of land. It means jungle or forest.  Presently it is the largest urban slum in Kenya and Africa. It is occupied by tens of thousands of Nubians[2]. They are predominantly Muslim in a Christian Country. It is believed that they descended from the Nuba Mountains. They were forcibly conscripted into the British Colonial Army which was known as the Kings African Rifles by Captain Fredrick Lugard in 1891[3].

It is worthy to remember that the Crown lands ordinance of 1902 specified that all public land belonged to the Crown.

The colonial authorities did not grant them citizenship. Hence, they remained as British subjects and were considered British Protected Persons. The British Colonial Authority has promised the Nubians Kibera and in 1904 the British Colonial Authority assigned Kibera to Nubians to serve as their home. Titles of land were not conferred instead permits to reside were issued to the Nubians as individuals. As per 1917 the size of the land was 4197 acres[4]

In 1933 there was a report made by the Kenya Land Commission, it was also known as the ‘Carter Commission’. The findings of the report were that while it was necessary to move unauthorized persons out of Kibera this did not apply to the Nubians. They had served the government and the Commission was of the view that it would be advantageous to let them stay.

The Commission further stated that the legal position of Kibera appears to be that they are tenants at the will of the Crown and the tenancy is liable to termination by the Commissioner of lands but on the other hand they could not deny that the Nubians had rights to the land under equity. The government had a clear duty to either repatriate them or provide accommodation. They ought not to be moved without receiving suitable land elsewhere and adequate compensation for disturbance. The Carter Commission recommended that Kibera be preserved for the Nubians. At independence, the citizenship status of Nubians was never directly addressed and as such they were treated like aliens. 

The Government Lands Act[5] which replaced the Crown Lands Ordinance, under Article 43(1) states that the area of government land situated in Nairobi Area and described in the 4^th schedule shall be known as the Kibera Settlement Area, the minister may make rules as to its management and control[6]. This clearly stipulates that Kibera is a settlement area and not private land. The Government Lands Act under 4^th schedule describes Nairobi’s boundaries in sufficient bearing.

The 1963 Constitution of Kenya under Article 205 stated that all land that was vested in the governor general or in her majesty now vests in the government of Kenya. This shows that post- independence, the fate of the Nubians was lay the on the new government.

The Interpretation and General Provisions Act[7] states that the meaning of the term government land is to be found in the Government Lands Act[8] which further states that government land means for the time being land vested in the Government by virtue of sections 204 and 205 of the Constitution (as contained in Schedule 2 to the Kenya Independence Order in Council, 1963), and sections 21, 22, 25 and 26 of the Constitution of Kenya (Amendment) Act, 1964.

Articles 204 and 205 of the 1963 Constitution as read with sections 21, 22, 25 and 26 of the Constitution of Kenya (Amendment Act) 1964 hold that all interests, estates and rights over land in Kenya and Nairobi Area that was vested in the governor general on behalf of her majesty immediately before 12^th December 1963 are now vested in the government of the republic of Kenya and this includes lands that were registered under ‘special areas’. This has the underpinning effect to show that even land that had been used for special purposes such as settlement was now also property of the Republic of Kenya.

There has been public recognition of the Nubians as the original inhabitants of Kibera. In 2007 there was a public meeting between the Nubian council of elders and the president of Kenya. The President promised them a collective title deed for 780 acres and that the title would be issued in three days. This never came to pass.

When the new constitution was promulgated it opened a new avenue of Kenyan land law and particularly it brought about crucial principles that govern land policy. The principles that are under Article 60 of the Constitution of Kenya 2010 are;

(1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles—

(a) Equitable access to land;

(b) Security of land rights;

(c) Sustainable and productive management of land resources

(d) Transparent and cost effective administration of land

(e) Sound conservation and protection of ecologically sensitive areas

(f) Elimination of gender discrimination in law, customs and practices related to land and property in land; and

(g) Encouragement of communities to settle land disputes through recognized local community initiatives consistent with this Constitution.

It further states that community land consists of land that is ancestral lands and lands traditionally occupied by hunter-gatherer communities[9] and that any unregistered community land shall be held in trust by the county government on behalf of the community.

Issues

1.      Whether the Nubians are a Marginalized Community/group under Kenyan Law?

Under Kenyan law, specifically the Constitution in Article 260 avers that a marginalized community is one which by virtue of its relatively small number or of any other reason has been unable to fully participate in the integrated social and economic life of Kenya.

A marginalized group on the other hand means a group of people who because of laws or practices before, on or after the effective date were disadvantaged by discrimination based on any one of the following grounds: race, sex, marital status, health status, ethnic origin, colour, disability and religion etc.

The Nubian came from the Nuba Mountains which are in Sudan. They were used by the British in the British Colonial Army for military expeditions. This made the local community breed contempt for the Nubians who at times suppressed the local communities in Punitive expeditions.     

As a reward or sympathetic compensation for their service the Nubians were settled in Kibera by the British and promised that it will be their home. They were never granted British citizenship thus remained British subjects. This had the status of a Protected British Person. During and after independence their citizenship dilemma was not addressed and this has disadvantaged them in numerous ways. They have been denied the right to nationality, property, health services etc.

The Nubians have a relatively low number as compared to other tries in Kenya, they have no other home in Kenya, they speak a different language, have a different religion and culture. The area in which they live in has poor infrastructure in terms of housing, education and health services.

It is submitted that the fact that the Nubians do not have a homeland in Kenya, have a relatively low number, lack enough political representation, stripped of government facilities and now face a violation of their right to nationality and property.

It should be noted that the right to nationality is somewhat like a spring upon which many other rights flow from, for example in the decision of the African Committee of Experts on Rights and Welfare of the child in Nubian Minors v Kenya[10], it was held that the fact the government of Kenya had many discriminatory procedures in obtaining birth certificates for Nubian children, it was held that this had consequential violations of the right to education as registering for key examinations requires such documentation as birth certificates

2.      Whether Kibera Constitutes Ancestral Lands?

According to Article 63(1) a community land, consists of land that is ancestral land. 63(3) further asserts that any unregistered community land shall be held in trust for the community by the county government land.

The Nubians have lived in Kibera for over a hundred years, in fact the name Kibera is Nubian that means forest or jungle. They were settled there by the colonial authority that this would be their land.

The Nubians have no other home land in Kenya, they opted to be repatriated in the 90’s but the colonial government refused. They have historically established possession as the original inhabitants of the land. Further they have inextricable ties to the land because this is where they have buried their dead. Lastly they speak their own language and practice Islam as a religion.

It is therefore submitted that Kibera is an ancestral land to the Nubians.

3.      Whether the Nubians have an equitable title to the land?

The Colonial Authority settled the Nubians on the Kibera land and promised them that this will be their home. The Carter Commission in 1993 recommended that it would be advantageous if the Nubians are given the land to stay and acknowledged that they had rights in equity. The Nubians have stayed on the land until to date. Further in 2007 there was a public meeting between the then President Kibaki and the Nubian council of Elders. It was agreed that a collective title deed of 708 acres would be issued in 3 days. This never happened.  

The Nubians have constructed houses and schools on the land. They also trade on the land.

It is submitted that the fact that Kibera is ancestral land, the Nubians need not have legal title to establish proprietal interest in the land. International jurisprudence posits that mere possession of ancestral land should suffice as to recognition of a proprietary interest[11]. It is submitted further that the Nubian have lived on this land for more than 100 years.

Furthermore the Constitution of Kenya of Kenya under 63(3) states that any unregistered community land is to be held in trust for the community by the county government. It is therefore submitted that the Nubians need not be indigenous in order for them to obtain a collective title[12]

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[1] https://en.wikipedia.org/wiki/Kibera

[2] T.Parsons, Kibra Is Our Blood": The Sudanese Military Legacy in Nairobi's Kibera Location, 1902-1968

[3] Pg 3 Ibid

[4] Communication 317/06: Nubian Community in Kenya (Nubian Adults) v Kenya, Para 8

[5] Cap 280

[6] Section 43(2) Government Lands Act

[7] Chapter 2

[8] Ibid 9 (n 5)

[9] Article 63(2)(d)(ii) Constitution of Kenya 2010

[10] Communication: No. Com/002/2009, 22/3/2011

[11] The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001, InterAm. Ct. H.R., (Ser. C) No. 79 (2001).

[12] Moiwana v the State of Suriname  InterAm. Ct. H.R Judgment of June 15, 2005

Sua Sponte/Sua Motu/ Own its own Motion Powers Curtailed.

Abstract

This paper will address the issues that arise when a decision making body initiates a matter on its own motion, every decision making body is subject to the rules of Natural Justice, whether it starts a matter on its own motion or when it is moved by a person. No one is allowed to play God. Not even the Courts or Tribunals can assume the role of investigator,prosecutor,judge and executioner a matter.

So when and in what circumstances can a decision making body act on its own motion?

Suppose that children run to their father to submit complaints for settlement and the father instead of resolving the dispute brought to him, declares ‘Well now that I see what is going on here , I announce the following rule must be observed. To some measure the father has not only breached the children’s trust but sacrificed his role as an adjudicator[1]. A court which decides issue entirely on its own is not likely to be regarded as fair.

Kenya uses the adversarial process, this process promotes litigant and societal acceptance of decisions rendered by courts as a decision making body. The integrity of the adjudicative process itself depends upon the participation of the advocate[2]. Many don’t imagine that an issue may be raised by a court and decided without the input of the parties concerned, but it happens.

The principles of an adversarial process entail;

1.     That the parties control the litigation

2.     The decision maker will be neutral and passive

When a court or a decision making body raises an issue on its own motion, it deviates from the passive role that the court or a decision making body’s practice.  Courts or decision making bodies may raise issues such as standing, subject matter jurisdiction or errors committed by the lower court on their own motion. Courts and decision making bodies do have the authority to raise issues on their own motion however they do not have authority to direct the issues on their own motion.[3]

It would be illegal and improper for a decision making body to play God and decide issues raised on their own motion without input from the parties who would be most directly affected by the decision.

Issues that are decided by courts on their own motion may often have a far reaching consequence on the development of the law and individual parties. Picture Mapp v Ohio[4]. This decision overruled Wolf v Colorado[5] precedent without briefs or arguments from the parties on the issue. Dolree Mapp was convicted for being in possession of obscene material that was found through an unlawful search of her home. The court held that the exclusionary rule that applies to illegally obtained evidence applies to federal as well as state courts. Wolf v Colorado had been the precedent for more than ten years and it stated that the 14^th amendment did not bar admission of evidence that was obtained by unreasonable search and seizure in state court prosecutions. The petitioners brief never mentioned Wolf v Colorado, and when pressed by questions from the bench as to whether they were asking the court to overrule Wolf v Colorado, the petitioner disavowed such purpose. The court in its own opinion stated that it was urged to once again review Wolf v Colorado and went on to overrule it. Justice Clark wrote the majority opinion. Justices Stewart and Harlan, dissenting, questioned the wisdom of overruling an important doctrine in a case where the issue was not briefed, argued or discussed by the parties. The court should have put it as a point for determination.

Mistakes are made when the court is acting on its own motion. Picture the case of Poyner v Loftus[6] in this decision the court identified and applied a common law rule from another jurisdiction which had not been briefed by the parties and which had specifically been abrogated by statute. Poyner is legally blind and does not use a cane or a walking dog. He was injured when he fell from an elevated walkway. He had walked through the area many times and testified that there were bushes at the edge of the platform that prevented him from falling if he walked too far. On the day of the accident it is alleged that he heard someone shout the name Billy, turned to look behind but kept on walking towards the door and one of the bushes was missing.

He brought a negligence suit against the landlord and tenant of the premises, he was found to be contributorily negligent. On appeal he argued whether it was reasonable for a legally blind man to turn towards the direction of the caller but still reach forward for the door? The court raised a more general matter which is whether a different standard of care would apply to disabled persons when analyzing contributory negligence. The court noted that the parties furnished no authority with regards to this and went about to decide the issue on their own. The court found no authority in the Columbia District and went to other jurisdictions where they applied the common law rule that a blind person walking without a cane or dog is contributorily negligent. The District of Columbia had a statute that abrogated the common law position. The statute was never discussed or mentioned in the case. Poyner lost and this error would have been avoided were the parties given a chance to make submissions on the issue that the court had raised on their own motion.   

The losing party in a proceeding where a matter was raised in the courts own motion is normally the worst affected. The losing party’s lack of an opportunity to present its views on the determination of an issue is;

1.     Inconsistent with the right to fair administrative action and right to a fair trial

2.     Inconsistent with key aspects of the adversarial system

3.     An abuse of judicial discretion

When the JSC acts on its own motion, it is only procedural that it petitions itself as it is a person, in this instance if it petitions itself but does not accord the other party a hearing, it can be said that it was moved by the motion of one party without listening to the other?

Consider Nelson v Adams USA Inc.[7].   Nelson was the president and sole shareholder of OCP (Ohio Cellular Products Corporation) which had sued Adams claiming a patent infringement. The District Court ruled for the defendant and ordered that the plaintiff pay costs as well as attorney’s fees. Nelson wrote to Adams stating that if they dared sought more than nominal fees then OCP would be liquidated. Adams moved the Court to amend the pleadings and add Nelson personally as a party from whom fees may be collected and also asked the court to amend the judgement and make Nelson immediately liable.  The District Court granted the motion and amended its judgement without a hearing.

On appeal, the Court held that Nelson was not prejudiced as he had/ would not have shown anything different or additional to, that would prevent judgement if he were a party, in his individual capacity from the beginning of trial.

The Supreme Court reversed the holding and stated that due process required that Nelson be given an opportunity to be heard and respond to the amended pleading before judgement was entered against him. This highlights the importance of a party’s right to be heard.

Professor Vestal[8] explains that when a court considers a matter on its own motion, it means that the litigants have not been given an opportunity to consider the matter and urge arguments in support of and against the position adopted by the court. If the question had been raised and put before the parties, there is at least the possibility that the other facts other authorities they may have been presented would have influenced the courts attitude on the matter but this opportunity is never given to the parties.

A court is more likely to reach a correct decision because advocates will uncover and present more useful information and arguments to the decision makers than when the court will develop on its own.

Prof Lon Fuller[9] says that, ‘before a judge can gauge the full force of an argument, it must be presented to him with partisan zeal by one who is not subject to the constraints of judicial office and cannot understand how strong an argument is until he hears it from the lips of he who has dedicated all the powers of his mind to its formulation.

Snider v Melindez[10]. The second circuit reversed a District Courts decision dismissing a prisoner’s action on its own motion because he had failed to exhaust administrative remedies. The problem was not that the matter was raised on the courts own motion but because Snider was not afforded notice and an opportunity to be heard.

For the court to raise a matter and consider it alone would be an abuse to judicial discretion, which must be exercised according to well settled principles of law.

A case on good practice? Consider Brown v Board of Education[11]the court through the proceeding raised issues on its own motion and also restored cases to the docket for rehearing. Whenever it did so, it requested supplemental briefs from all the parties concerned. The court actions in this case show an implicit recognition of the need to hear from parties on issues that are raised by the court on its own motion so that the court must reach the most fully informed decision.

In the case of Isodore M.K Bagorogoza v Bazilio Mbarinda[12], the application involved whether the place of trial should be at Kabale or Kampala or Mbarara. O.44 r.8 of their civil procedure rules stated that the plaintiff has no right to fix the venue of the trial but subject to the courts discretion. It was held that in fixing the venue of the trial it may do so on its own motion but must take into account the wishes of the parties involved.

In the case of Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others ex parte Petronilla Were [13]. There was a dispute as to which firm was appointed to represent UDF, a political party. 2 suspended officials appointed Muma and Kanjama instead of Kithi and Co advocates. The honourable court in deciding the matter stated that a tribunal can raise a matter on its own motion only if it is under the obligation of listening to the parties concerned. The best course to be taken by a tribunal is that when it raises a matter on its own motion, the parties affected must be notified and given ample opportunity to respond before a ruling is made

The legal lacuna that is to be found in section 168(2) is what prompted this positive review. It is my desire that the scholarship will be a guide as to how Constitutional Commissions can decide on matters in their own motion

Bibliography

1.     Laws

2.     The Constitution

3.     The Judicial Service Act

Journals/Articles/Reports

1.     Lon l. Fuller, The Problems of Jurisprudence 707 (temp. ed. 1949)

2.     Professional Responsibility:  Report of the Joint Conference of the American Bar Association and the Association of American Law Schools, 44 A.B.A. J. 1159, 1160 (1958)

3.     Allan D. Vestal, Sua Sponte Consideration in Appellate Review, FORDHAM L. REV. 477, 493 (1959)

4.     A. Milani and M. R. Smith, Playing God: A Critical look at Sua Sponte Decisions, Tennessee Law Review, Vol 69

5.     Lon L. Fuller, the Adversary System, in TALKS ON AMERICAN LAW 31 (Harold J. Berman ed., 1976).

Caselaw

6.       Mapp v Ohio 367 U.S. 643 (1961)

7.       Wolf v Colorado 338 U.S. 25 (1949).

8.      Poyner v Loftus 694 A. 2d 69 (D.C 1997)

9.      Nelson v Adams USA Inc. 529 U.S. 460, 471 (2000)

10.   Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)

11.  Brown v Board of Education  344 U.S. 1 (1952)

12.  Isodore M.K Bagorogoza v Bazilio Mbarinda H.C Kampala, Uganda, civ case no 849 of 1958 E.A.L.R pg 125. 

13.  Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others ex parte Petronilla Were H.C Nairobi Miscellaneous Civil Application no. 406 of 2014

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[1] LON L. FULLER, THE PROBLEMS OF JURISPRUDENCE 707 (temp. ed. 1949)

[2] Professional Responsibility:  Report of the Joint Conference of the American Bar Association and the Association of American Law Schools, 44 A.B.A. J. 1159, 1160 (1958)

[3] Playing God: Sua Sponte Decisions pg 7

[4] 367 U.S. 643 (1961)

[5] 338 U.S. 25 (1949).

[6] 694 A. 2d 69 (D.C 1997)

[7] 529 U.S. 460, 471 (2000)

[8] Allan D. Vestal, Sua Sponte Consideration in Appellate Review, 27 FORDHAM L. REV. 477, 493 (1959)

[9] Lon L. Fuller, the Adversary System, in TALKS ON AMERICAN LAW 31 (Harold J. Berman ed., 1976).

[10] Snider v. Melindez, 199 F.3d 108, 113 (2d Cir. 1999)

[11] 344 U.S. 1 (1952)

[12] H.C Kampala, Uganda, civ case no 849 of 1958 E.A.L.R pg 125. 

[13] H.C Nairobi MISCELLANEOUS CIVIL PPLICATION NO. 406 OF 2014

Clarified: The Correct Procedure of the JSC acting on its own motion, Kenyan Administrative Law

 The grund norm of our country which is the Constitution of Kenya 2010 provides the procedure of a judge’s removal under Article 168. It states that the Judicial Service Commission (JSC) may proceed with the process of a judge’s removal on its own motion .
The JSC may be seized of a matter in various ways these include through complaints and whistleblowers. The matter must disclose a ground under section 168(1), which include;
1. Inability to perform functions of office by reason of infirmity of body or mind
2. Incompetence
3. Bankruptcy
4. Gross misconduct or misbehavior
5. Breach of a code of conduct prescribed for judges.
When the JSC is seized of a matter and it pursues it on its own motion, then it can start investigations, if there are witnesses it may summon them; this is pursuant to the fact that they have all powers necessary and incidental to carrying out their mandate .
Thereafter it was a well settled principle of law from the Ole Keiwua Case that before a representation is made to the president under Article 168(4) the accused judge must finest be summoned and given a chance to respond to the accusations. This is buttressed by Article 47 of the Constitution of Kenya that provides for the right to fair administrative action. It is beyond dispute that the function that the JSC does in this stage is administrative. The rules of natural justice are the bedrock of the rule of law and administrative justice.
After the judge responds to the claims, the JSC will consider the case and if a prima facie case is found then the JSC will send the petition to the president with appropriate recommendations.
The president on receiving this petition must suspend the judge immediately and appoint a tribunal within 14 days this is because the judge has a right for his matter to be hears expeditiously. And further the United Nations Basic Principles of Judicial Independence guides us that the process of a judge’s removal shall be processed expeditiously and fairly under an appropriate procedure .
It is to be noted that the ruling in Judicial Service Comission v Mbalu Mutava & another [2015] eKLR, with all due respect to the judges sitting was per incuriam on the basis that the learned judges held in their wisdom that the president must suspend the judge in 14 days but appoint a tribunal in reasonable time, which in that case was 31 days. Given the fact that there are diverse interests in such a matter, the judge, JSC and the public, the matter must be heard expeditiously and 31 days is not. It is my submission that the president must suspend the judge and appoint a tribunal in 14 days.

Legal Lacunas in the Process of a Judge’s Removal

The process of removal of a judge from office is to be found under Article 168 of the Constitution of Kenya. According to Article 168(2) the removal of a judge may be initiated by the Judicial Service Commission suo-moto or on the petition of a person to the J.S.C. thus JSC is the genesis for the process. Article 168(10) further provides that parliament shall initiate legislation that provides for the procedure of a tribunal appointed under Article 168.

The Constitution under Article 168 (3), 168(4) and 168(5) gives the procedure of the process of a judge’s removal when a person presents a petition to the JSC. It is however mute when it comes to the procedure when the J.S.C is acting suo-moto. Thus the next likely search destination for this process is none other than the legislation that was passed owing to Article 168(10) of the Constitution, is the Judicial Service Act.

Section 31 of the J.S.A steers us to the second schedule of the Act where it is indicated that the process of removal of a judge is to be found. The 2^nd schedule gives us the powers of a tribunal appointed by the president inter alia but does not mention the process of removal of a judge when the JSC is acting suo-moto. This is the first legal lacuna.

In most, if not all legal proceedings, whether one is a complainant, applicant or petitioner, they are permitted to withdraw their complaint, application or petition before fruition.

1.      In this instance of the JSC is it possible for a petitioner to withdraw his petition after a tribunal has already been formed?

2.      What is the process of withdrawal?

3.      What can a tribunal do when a petition is withdrawn?

These are the other legal lacuna’s that exist within that process. The Constitution and the Judicial Service Act are silent on these matters.

Suo-Moto power in practice and in the absence of clear cut regulations? In the case of Joseph Mbalu Mutava v Attorney General & another [2014] eKLR the JSC received numerous complaints about how the judges had handled 3 cases. The commission formed a committee and delegated its functions under Section 14 of the Act. The committee investigated and submitted its report to the JSC that the threshold had been met. What is the threshold? The JSC in turn submitted the petition to the president. Is this the appropriate channel? though reasonable?

The law needs to be specific, lex specialis. We would thus seek a constitutional interpretation of Article 168(2) from the High Court.

Powers of the Tribunal Responsible for Removing a Judge

 Issue: What happens when a written petition is withdrawn whereas a tribunal had already been formed to hear the matter?

The process of removal of a judge is either initiated by the J.S.C suo-moto or the J.S.C is moved by way of a petition. The J.S.C considers it and if it has merit then it presents it to a president who in turn appoints a tribunal to hear the matter.

If it happens that the petitioner withdraws the petition at this stage, what happens?

According to the Constitution of Kenya under Article 168(7)(a) the tribunal is responsible for the regulation of its own proceedings. It must inquire into the matter fairly and expeditiously and then submit binding recommendations to the president[1].

The Judicial Service Act sheds more light. According to the 2^nd Schedule Section 7 the tribunal is vested with all the powers necessary and incidental to carrying out its mandate under the Constitution. These powers include;

1.      2^nd Schedule Sec 6(3) Power to cure or waive an illegality in the proceedings

2.      2^nd Schedule Sec 6(2) Prevent a miscarriage of justice

3.      2^nd Schedule Sec 8(1) Power to summon judges through hearing notices

4.      2^nd Schedule Sec 12(1) Power to summon witnesses

5.      2^nd Schedule Sec 13 Power to overstep the strict rules of evidence subject to natural justice and relevancy

6.      2^nd Schedule Sec 16(2) Power to recall any already examined witnesses

7.      2^nd Schedule Sec 24 Chairman has the power to issue practice directions

8.      2^nd Schedule Sec 25 Power to extend the strict timelines if sufficient cause is shown as long as it is just and expedient

9.      2^nd Schedule Sec 27(1) power to regulate its own procedure

The situation becomes tricky because if the petitioner withdraws the petition before the tribunal hears the matter and the tribunal decide to proceed with the matter, then who are going to be the witnesses, how will the accused judge cross examine his accuser?  This will prima facie be a violation of the rules of natural justice.  One must face their accuser.

The powers of the tribunal do not expressly say that it has the powers to do. As such if a petition is withdrawn before fruition then the tribunal has no option but to drop the matter and make a recommendation to the president to exonerate the accused.

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[1] Art 168(7)(b)

What is the legality or otherwise of holding a suspect in custody for more than 24 hours in an extradition proceeding?

From a healthy dose of research an accused person has the right to be brought to court as soon as is reasonably possible and not more than 24 hours after being arrested[1].

The Criminal procedure code under section 36A provides that the court can extend the period upon application and satisfaction of the need to do so by the prosecution. It is argued that this provision threatens an arrested person’s right to a fair and expeditious trial[2]. There are two conflicting sides; the wheels of justice need to roll further whereas an arrested person’s rights need to be protected.

It can be argued that the mere fact that the suspect is produced to court for a capable magistrate to either extend or cut off the detention is a necessary check and balance to the fear that the police may abuse their powers to detain an arrested for more than 24 hours. Furthermore the right to be arraigned in 24 hours is not absolute as such this would constitute a necessary and proportional legal limitation.

Lastly Section 36A (7) of the C.P.C allows the remand of such a suspect for more than 24 hours but not more than 30 days.

Section 36A is similar to clause 15 of the Security Laws Amendment Act, the same was challenged in the case Coalition for Reform and Democracy (CORD) & another v Republic of Kenya & another H.C Nairobi Constitutional and Human Rights Division petition nos. 628 & 630 of 2014. The honourable court ruled that the keeping of a person in custody for more than 24 hours subject to a court order is not unconstitutional[3].

The other side of the coin is bail and bond.

The Constitution of 2010 does not give a category for bail-able and non-bail-able offences as such it falls under the discretion of the magistrate who is then guided by sound principles on whether to grant bail or bond. These principles include but are not limited to; 

1.     Likelihood of appearance at the trial.

2.     Likelihood of interference with investigations.

3.     Likelihood of interfering with witnesses.

4.     The nature of the offence the accused is charged with. Etc.

It is also worthy to note that bail is not an absolute right.

The third side of the pyramid is bail in extradition proceedings.

In an extradition case the magistrate pursuant to section 14(3) of the Kenya Extradition (Contiguous and Foreign Countries) Act has powers to remand or grant bail to an arrested person, this is decided from authenticated[4] evidence that is adduced in court. 

It is submitted by persuasive authority that in an extradition proceeding the presumption is against bail United States –Vs– Messina 566 District Court ED New York, however a presumption may be rebutted in special circumstances.

In the case of Republic v Baktash Akasha Abdalla alias Baktash Akasha & 3 others CR appeal 178 of 2014, H.C Mombasa. The accused had been arrested for the importation of drugs, they were to face extradition justice Muya held that bail/bond is discretionary and that stiff bond terms and daily reporting to a police station alleviated the temptation to flee as such he released the accused on bond.

It is therefore submitted that in such a case of extradition, whether to release the suspect on stiff bond terms( and other requirements) or keep in custody for more than 24 hours but less than thirty days, subject to a court order, is legal and proper

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[1] Constitution of Kenya, Art, 49(1)(f)(i)

[2] Constitution of Kenya, Art, 49

[3] Para 178, Kenya extradition (Contiguous and Foreign Countries) Act

[4] Sec 17(1)