News 2008

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By Prof. Alberto Bencivenga

26. Feb. 2008

Whoever reads Mr. S. N. Waruhiu’s book “From Autocracy to Democracy in Kenya” will be impressed by the amount of information and by the clarity of the analysis done by this author. Any reader who did not grow up in an Anglo-Saxon juridical culture will be additionally impressed by the fact that, in spite of the burden put on him by the bias of his Anglo-Saxon juridical education, the author was perfectly able to identify many of the sources of the present Kenyan problems, even if often without becoming aware of it.

The whole Anglo-Saxon constitutional history is characterised by the Executive trying to somehow keep the Judiciary under its control and people grown up within this system, usually fail in getting furious in front of some facts, which mightily irritate anyone who instead grew up within a Roman juridical culture.

The Attorney General, who is part of the Executive and a Cabinet member and who can enter a nolle prosequi, is a typical antidemocratic Anglo-Saxon invention, for the purpose of protecting from prosecution members of the ruling clique! The job of an attorney general is totally unknown and unheard of in countries following the Roman system of laws, because both the concepts of such an attorney general and of the possibility of entering a nolle prosequi ruling are unknown to the Roman code, even if nolle prosequi (don’t prosecute) is said in Latin.

Actually, one of the fundamental concepts of the Roman law is that there cannot be any discretionary power in prosecuting and the prosecution is a straight-forward, automatic and compulsory exercise that has to be started any time there is a notitia criminis (= news of a crime), even if this crime appears to be only possible and not at all sure. The Anglo-Saxon juridical culture justifies these two obnoxious ideas - attorney general and nolle prosequi – because they consider the needs of the Executive to be prevalent in respect of the needs of Justice and they want to have the possibility of stopping a case that may embarrass the executive, while the Roman law considers the interest of theoretical Justice to be paramount and having priority in respect of the interests of the Executive.

In a Roman system of law, for example, since the Goldenberg inquest hinted very clearly to the possibility of criminal acts having been committed, the competent prosecutor would have proffered his accusations long ago and a formal trial would have been started long ago. The Office of the Prosecutor, in continental Europe, where the Roman Code is prevalent, is not under the control of the Executive, but it is totally independent, as a branch of the Judiciary. In the Cabinet, there is a Minister of Justice, who is competent to supply the Judiciary with all the paraphernalia needed for it to function (buildings, machines, archives, secretaries, cleaners, etc.), but has nothing to say about how justice is administered and how the Judiciary recruits its court staff.

Let me give two examples of what this system causes:

1. About 20 years ago, as everybody remembers, the Press, all over the world, started reporting on what was at that time called the Lokheed Scandal. Newspapers gave the impression that the Lokheed paid bribes to several Ministers of Defence of NATO countries to convince them to purchase Lokheed combat aircrafts (which, by the way, were quite good crafts). The Chief Prosecutor of Rome read that piece of news on the newspapers and, since this was a notitia criminis (information about a crime) and since the Constitution commands that a notitia criminis must be automatically followed by a prosecution, he had no option other than prosecuting his Minister of Defence. The investigators of the Judiciary Police found and supplied him with the necessary evidence; he could prove his points in Court; won the case and the Minister of Defence went to prison for 4 and one half years, even if he was a powerful member of the ruling coalition.

2. Leone was one of the Presidents of the Republic of Italy. He was a famous criminal lawyer and he was paid a fee for a case he argued before becoming President of the Republic, 2 year after being in office. He forgot, probably in a genuine way, to declare this sum into his tax return and a journalist published the information on a newspaper (tax returns in Italy are available for inspection to every citizen). The competent Prosecutor of Rome Judiciary set-up read the relevant article in a newspaper and he had no other option than prosecuting the President of the Republic, who was found guilty, was heavily fined (a criminal offence politically charged, if committed by a politician, must be punished more severely than if committed by a private citizen), had to resign from the Presidency and disappeared from the political life.

How can one guarantee such a freedom for the Judiciary? Simple: the salary of judges is by law tied up with the salaries of the members of Parliament, who, in every climate do not like to starve; judges have tenure; the Executive has no power whatsoever on them, because judges are not appointed by the Executive or by the Head of state, but through a difficult competitive examination. (The idea of an executive president of republic appointing judges as in USA or in Kenya would give the creeps to any continental European! And with good reasons! Look at what happened in the USA, where the noble founding Fathers who wrote the American Constitution, have been also victims of their British juridical culture of the time and were unable to avoid being poisoned by it, with the result that they could not foresee devices capable of avoiding what happened recently: Bush father appointed the High Court judges and the High Court judges rigged Bush son to the Presidency. How many devices are regrettably missing in the American Constitution to prevent George Bush from successfully busying himself in constructing the Fascist state he seems to try to establish in America? None, which is simply horrifying!).

In a nutshell, if there is the need of appointing 15 new judges, the Minister of Justice (a cabinet member, I repeat it, responsible to supply the Judiciary with all the means necessary to do their work, without any power whatsoever in the running of court affairs) advertises the jobs. Eventually 50 persons apply. After being vetted by the Judiciary Police (nobody can be a judge if in his enlarged family there is somebody convicted for a criminal act), 45 candidates remain. They are summoned one day in Rome at the Palazzo degli Esami (State Examination Building) and given several points of law, on each one of them they have to write an essay. A panel of examiners made by senior judges and professors of law in the Universities reads, discusses and marks these essays and only after marking them, the sealed envelopes containing the names of the candidates are opened. The 15 candidates scoring higher are employed!

A newly employed judge, after a thorough training program, serves 4 years as junior judge in a lower court to gain practical experience in the bench and, after this period, he may be sent to gain a similar experience in a prosecution office. During his career, he can serve 4 year long tours of duty either as a judge or as a prosecutor as the need may arise and as he is inclined to and his promotions will happen also through his performance and through competitive examinations. (In Kenya, this system would have the added advantage of putting to work very competent prosecutors, instead of half literate policemen).

Who rules the Judiciary? Every member of the Judiciary votes for the election of the Superior Council of the Judiciary, whose honorary (not executive!) Chairman is the President of the Republic. The Parliament chooses a small number of members, that however will not be able to strongly influence a majority and who, anyway, must be respected and well known men of law and, if they were parliamentarians, they have to resign form their chamber. This Council administers discipline and supervises the career of every judge or prosecutor, so that, if you are a judge that convicted a member of the political party of the Minister of Justice, all this minister can do against you, is to write a letter of complaint to the Superior Council of the Judiciary alleging that you dress improperly or you are late for work and the Superior Council will decide on merit if to follow up the matter or dismiss it.

The Judiciary is so independent and so powerful in continental Europe, that in Italy it destroyed an omnipotent political system who had become utterly arrogant and corrupt, by simply prosecuting abuses not permitted by the law (one of the most powerful politicians and Prime Ministers of Italy, Craxi, run away and died in Tunisia because he was sentenced to 12 and one half years in prison for corrupted practices in favour of his party, when Prime Minister).

Germany and Italy, at the end of the 2nd World War, re-established a democratic government after being under dictatorships for many years. Obviously, the new states inherited a lot of laws passed during the dictatorship years which were not tolerable under the re-established democracy. So, one of the first steps in both countries was to establish, as mandated by the Constitution, a Constitutional Court of highly competent judges. Anybody on trial because of a law made by the Nazis or by the Fascists, that appears to be unconstitutional, has the right to ask for a temporary suspension of his trial, pending a request for an opinion of the Constitutional Court and, when the Constitutional Court declares the law under which the citizen is prosecuted to be unconstitutional, the accused is immediately acquitted and the relevant law becomes ope legis null and void and is cancelled from the Code. In a short time, all the pre-existing anti-democratic laws were killed.

This is the same situation in which colonies found themselves at the moment of acquiring their independence. Of course, a colonial ruler did not want problems and made therefore laws stating, for example, that a party must be registered, that a political rally must be licensed and that newspapers or magazines must receive permission from the executive before starting publication and all sorts of activities, trades and professions need to renew an annual licence. Now, these rules infringe congenital rights, which belong to a citizen as birth rights and are not granted from above: the freedom of association, the freedom of speech, the right to have a free press, the right to freely practise one’s profession or trade and, if we had in Kenya such a Constitutional Court, these liberticidal laws would have disappeared since long time. (About the press, there is in European countries run under the Roman law a Registry of magazines and newspapers, usually kept by the Judiciary. If one wants to publish a newspaper, one has to inform this Registry about the date when one starts publishing, the name of the responsible editor and the name of the paper. The Registrar of the Press, before entering the information into the public Registry of the Press, can only object to the chosen name and write to the perspective publisher “Sorry, Sir! You cannot publish in Nairobi a newspaper called ‘The Standard’ because this name is already used by an existing newspaper. Please choose a different name”). Of course a party does not need any permission or any licence to start functioning nor a professional needs to renew a licence every year, once he has passed all his state exams to practice his/her profession!

The Constitutional Court is also competent to ruling on controversial issues that might arise between ministries and between the central and the regional governments and on the constitutionality of new laws approved by the Parliament. Its powers are limited only by the Constitution! For example, Berlusconi, when he was Prime Minister of Italy, , using his majority in both chambers of the Parliament, had a law passed, according to which a Prime Minister cannot be prosecuted while in office. This law survived just one week and was duly and timely killed by a sentence of the Constitutional Court that found it contrary to the Constitution, which states that everybody, without exception, is equal in front of the law.

Another basic rule is that nobody can be removed from his natural judge, a concept totally alien to the Anglo-Saxon juridical culture! What is my natural judge? If I commit a felony for which the Nairobi Court has the territorial competence to try me, I have to be tried by the judge of this Court that was on duty in the very moment in which my case became a case and nobody can appoint special courts or commissions of judiciary inquires! Either you prosecute me or you shut up!

It is fashionable and probably justified now to attack the Kenyan establishment because of corruption, but when this criticism comes from the British High Commissioner it cannot be tolerated at all, because this institutional corruption is a direct and obligatory consequence of the idiotic principles laid down by the Lancaster House constitution imposed on Kenya at independence! If you give to a country becoming independent after being a colony and therefore without any previous experience in self government a constitution that puts the head of state above the law, that does not consider the prosecution as compulsory and that establishes an attorney general with the power to stop any prosecution, one secures to politicians an unlimited impunity and creates the most effective school of corruption that can be imagined!

Another issue that is usually overseen by scholars educated within the Anglo-Saxon juridical culture is the electoral system. Everybody believes that the United Kingdom is an old democracy, but this is absolutely wrong! England started resembling a real democracy only 30 years ago, when the Labour party changed the electoral system, because till that date, if it is true what I am told, there were electoral constituencies in northern Scotland, where aristocrats and bourgeoisie were at home, that used to send an MP to the Commons with just 12 votes, while in Birmingham, where the working classes are living, 300,000 votes were needed to send one MP to the House of Commons! In this frame of mind, everybody accepts as democratic the system of election they have in UK and we have in Kenya, without remarking how much it leaves to be desired. It has been several time published by the press that, after an election in UK, the opposition polled actually more individual votes than the majority, but received less MPs because of the faults inherent in the used system and by means of a clever carving of the constituencies, because surely a clever executive can carve constituencies to the exclusive benefit of a party or a group of parties. The only 100% democratic way of electing MPs is the so called pure proportional system, in which the elector votes in the same ballot paper first for a party, by making a cross on the symbol of the chosen party (in Italy it is called voto di lista or party vote) and, after it, if he/she wants, a limited number of names chosen among the list of candidates proposed by that party can be indicated either by writing the names of by writing the individual number under which the preferred candidate is listed in the official party list of candidates (in Italy it is called voto preferenziale or preferential vote). If party A is voted by 30% of the electors, it has the right to have 30% of the parliamentary seats and the candidates who received the highest amount of preferential votes are returned to Parliament (if one of them dies or resigns, the first of the non elected in the same party’s list automatically fills up the vacant place).

Also, the system of having to register in order to vote opens a big door to abuses, as Black Americans have learned the hard way in the past, when the Ku Klux Klan prevented them from registering. In continental Europe, everybody has to be registered in the citizens’ roll of the municipality where he/she lives. Each municipality sends the poll certificate to his/her house and records his/her name in the list of the voters in the polling station closer to his/her house. Anyway, if the poll certificate cannot be delivered or if it went lost, one can receive a duplicate straight away at the electoral office of his/her municipality in a few minutes.

Mr. Waruhiu spoke in his book of instability in France and Italy because of this system, but he uses a misnomer. It is not instability. It is democracy! Italy, after the war, has been one of most stable and economically most successful countries in the West, even it they changed 55 cabinets, because the cabinet was always formed by the majority Christian Democratic Party and its allies. You see, I can be the best option for the Prime Minister job today, but in a few months I can go politically nuts and begin doing nonsense. Well, either my coalition partners demand my resignation or I am given a vote of non confidence by the sovereign Parliament and I am replaced. Meanwhile the business of the different ministries goes on untroubled because the local equivalent of the Kenyan Permanent Secretaries continue working. These Permanent Secretaries (called in Italy Direttori generali or Directors General) have tenure. They are people who started their career from scratch and that have reached their position by successive promotions, all of them through difficult and demanding competitive examinations, on the outcome of which politicians have no say whatsoever. These people know their job much better than their politically appointed Ministers.

After a vote of non confidence to the actual Prime Minister, the President of the Republic begins his most important political job, called consultazioni or consultations. He speaks with the speakers of both chambers, with previous prime ministers, with the leader of each party, with the leadership of trade unions and of employers’ organisations and with whomever he thinks useful. After this round of consultations he chooses the person who has the best chances to form a cabinet, informs him about what transpired from the consultations and, once the two chambers of the parliament have given a vote of confidence to the new government, the President of the Republic swears in the new cabinet. Meanwhile the civil service works as usually, probably better and faster than ever, because they have not to convince a possibly incompetent politician appointed as their minister, on what it is better to do.

A further criticism to the Constitution given to Kenya by the colonial ruler is the way the President of the republic is elected. Let us not look at Kenya, because being our country we are emotionally charged in judging it and let us examine the United States of America. Does anybody of sound mind really think that they had during their last election no better persons to choose for the job other than Bush and Kerry? With that system, the people are compelled to choose between the two persons that can collect more money and that can better manipulate their own party! Sorry, the chances that they may also be the best possible options for the country are very very slim! The President of the Republic must be elected by an assembly formed by all the members of the Parliament with representative of the regional governments (we might use in Kenya an electoral body formed by the members of the parliament and all the mayors elected in the Country) with a consistent compulsory majority, at least 75%, in order to compel majority and minorities to agree on somebody who is worth.

Look at Germany and Italy, where the head of state is elected by this system is in use: they have almost always had extremely good Heads of state. Ciampi, the former President of the Italian Republic, respected and loved by everybody there, is a famous economist, the man that, as the Minister of Finance, actually brought Italy into the Euro monetary system with flying colours. Germany had appointed as head of state a man of high culture and with top experience in international financial matters and now has an iron-lady-chancellor. In the system used in USA and in Kenya, none of them would have had any chance whatsoever to be considered for the top job that they are doing in a wonderful way today. Why must we prevent us from choosing among a wide pool of competent peoples, just to follow blindly the stupid, ineffectual and dangerous system used by the U. S. A.?

In order to make allowance for the different tribes, we might apply in Kenya the principle that every time that the President of the Republic must be elected, one of the tribes, on rotation, proposes a number of candidates among which one of them must be elected by the electoral assembly ad with the prescribed majority. This President should be in office for just two years in order to permit a quick involvement of every tribe.

I am strongly convinced that the application of these principles also in Kenya, would never permit the hatching of any potential dictator; it would assure effective check and balances, would guarantee to the Kenyan a brand of superior democracy and it would make Kenya the Switzerland of Africa in no time! Wherever this system is adopted, not even a single party returned in total control of the Parliament could enslave the country! So, it is high time that somebody in Parliament proposes these changes.

Finally I like to add to this essay that the methods of appointing judges of the Constitutional Courts are different in Europe, but all of them make sure that the Parliament, the Executive and the legal experts (Judiciary and Bar) are involved. A good method for Kenya would probably be that one fourth of the Constitutional Judges are indicated by the Parliament, one fourth by the Executive, one fourth by the Judiciary and one fourth by the Law Society. After this first step, vacancies are filled up by invitation of the Court itself.

Specialista in Chirurgia (M. Chir)(Florence)
Specialista in Chirurgia addominale (M. Abdominal Surg.)(Florence)
Specialista in Urologia (M. Urol.)(Florence)
Facharzt für Chirurgie (M. Chir.)(Tuebingen)
Professor Emeritus of General Surgery, Somali National University
Professor Emeritus of Orthopaedic Surgery, University of Nairobi

Though not born in Kenya, the author did choose to be a Kenyan, did it for the love to the Country and proved it with 30 years of dedicated work. When he arrived in Kenya in 1975, he found a middle age like orthopaedic surgery and immediately began to lift this sector of Kenya up and out of the dark ages to the extent that in Kenya, the most modern techniques of internal fixation of fractures developed in Switzerland by the AO (Arbeitsgemeinschaft fuer Osteosynthesefragen), became routine at least two decades before it happened in USA and in England.

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