Havi called for the incident not to be abused to hold Kenyans at ransom and to deny them access to justice
Former Law Society of Kenya (LSK) President, Nelson Havi has condemned the tragic killing of Makadara Law Courts Principal Magistrate Monica Kivuti by an armed senior police officer, though he believed that the unfortunate incident should not be used to disrupt normal operations at the Judiciary.
In a detailed statement on Monday, June 17, Havi called for the incident not to be abused to hold Kenyans at ransom and to deny them access to justice through the closure of all Courts and Tribunals or threat of industrial action to secure compliance with demands unrelated to the issue.
He also deemed as urgent the need for the root cause of the problem in criminal courts presided over by Magistrates to be located, illuminated and addressed, citing the following points to be noted and for action.
“First, Courts should never be closed, not even for a day, for any reason whatsoever. The legal fraternity has over the years put in place elaborate mechanisms to mourn a deceased Advocate, Magistrate or Judge.
An undated photo of the Makadara Law Courts. /MAKADARA LAW COURTS
“It is therefore, inconsiderate and impertinent of the Chief Justice to unilaterally close all Courts and Tribunals in the Country on 18th June 2024 and dictate that it is in the discretion of Courts and Tribunals to “accommodate” affected cases. Hundreds, thousands and millions of Kenyans have been affected by this decision. The action may be forgiven but the legal fraternity should not countenance its repetition,” Havi hit out at Chief Justice Martha Koome.
Secondly, Havi termed the deployment of a special armed Police Unit inside courtrooms in response to the shooting as not the solution to insecurity, given that the Magistrate was killed by a senior armed policeman and not a civilian.
“A firearm, especially a rifle is the least effective weapon for close-quarter combat or crowd control. A pistol is even worse unless in the hands of a highly trained elite commando.
“Let us have officers in Courtrooms who are trained in the manner appropriate for close-quarter combat without guns. The fascination with guns in Courtrooms as a permanent solution to the tragedy must depart the minds of the legal fraternity,” he continued.
Havi further termed the want of or inadequate transport and security for Magistrates as not grounds for the Kenya Magistrates and Judges Association (KMJA) and the Kenya Judicial Staff Association (KJSA) to withhold judicial services from June 19-21, and to threaten industrial action unless demands unrelated to the issue at hand are met by “the JSC [Judicial Service Commission], the SRC [Salaries and Remuneration Commission], Parliament, the Executive and the National Security Organs…”
According to him, 90 percent of court proceedings are conducted online with no human contact between Courts and litigants, thus being “no communal peril to hinder members of KMJA and KJSA from serving Kenyans.”
“Besides, did the Kenya Airforce down tools following the death of the CDF in a plane crash? No! They took other planes, proceeded to the rescue, mourned, buried the fallen soldiers and proceeded with work as they find a solution to avert a similar tragedy.
“It will be gross misconduct for any Judge or Magistrate to heed the misinformed call by KMJA and KJSA not to sit and preside over matters from 19th to 21st June 2024 or any other date thereafter. There should be no hesitation on the part of affected litigants and Advocates to lodge petitions with the JSC for the removal of any such Judge or Magistrate who will abscond work or sabotage the delivery of judicial services in Kenya,” he added.
Nonetheless, the former LSK boss called for an inquiry to be undertaken by JSC, the Director of Public Prosecutions and the National Police Service to establish the circumstances under which the late Magistrate Kivuti was alleged to have cancelled the bond of an accused person reported to have undergoing palliative care for cancer, and is said to have been brought to court on life support equipment.
“If that is the case, that was an inconsiderate, inhumane and injudicious act by the Honourable Magistrate. Sad as it may be, this is the difficult question that must be asked and answered without skirting around in the manner intended by statements from the Chief Justice, KMJA and KJSA. And it must be so, now that the assailant policeman is dead and unavailable for his side of the story or retribution,” he continued.
He also called for Magistrates in criminal courts to learn without the need for any further schooling, the propriety of conducting proceedings to uphold the rule of law and render justice to Kenyans.
Photo of the late Makadara Law Courts Principal Magistrate, Monica Kivuti. /LINKEDIN
“Every criminal law practitioner knows that bail and bond is avenue number one for corruption in the criminal justice system in Kenya. Magistrates cut deals with accused persons, complainants, the prosecution and defence counsel to reduce or increase bail and bond to serve their selfish interests.
“What they do is despicable! It must stop! Let Magistrates understand that bail and bond is intended to secure the attendance of the accused person and not for pre-conviction punishment in cases where they have not been “seen”,” Havi slammed, further calling for the issues highlighted to be addressed.