Former Law Society of Kenya (LSK) President Nelson Havi has faulted Chief Justice Martha Koome and judicial officers for closing courts countrywide over the murder of Makadara Magistrate Monica Kivuti.
In a statement on Monday, June 17, 2024, Havi said the incident should not 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 of demands unrelated to the issue.
“Courts should never be dosed, 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 of judge. It is therefore, inconsiderate and impertinent of the Chief Justice to unilaterally dose 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,” Havi stated.
“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.”
According to Havi, the deployment of a special armed police unit inside courtrooms is not the solution to insecurity.
“The Honourable 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 of in courtrooms officers trained in the manner appropriate for close 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 added.
Havi has also faulted the Kenya Magistrates and Judges Association (KMJA) and Kenya Judiciary Staff Association (KJSA) for threatening industrial action if their demands are not met, pegging their demands to Kivuti’s death.
“Want of or inadequate transport and security for magistrates cannot be a ground for KMJA and KJSA to withhold judicial services from 19th to 21st June 2024, and to threaten industrial action unless demands unrelated to the issue at hand are met by “the JSC, the SRC, Parliament the Executive and the National Security Organs…. 90% of court proceedings are conducted online with no human contact between courts and litigants. There is no communal peril to hinder members of KMJA and KJSA from serving Kenyans,” Havi added.
“Besides, did the Kenya Airforce down tools following the death of the CDF in a plane crash? No! They look 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.”
He has called on litigants and advocates to lodge petitions with the JSC for the removal of any judge or magistrate who will abscond work or sabotage the delivery of judicial services in Kenya.
Havi calls for inquiry
The former LSK President has also called for an inquiry to be undertaken by the JSC, the Director of Public Prosecutions and the National Police Service to establish the circumstances under which the Kivuti is alleged to have cancelled the bond of an accused person who was 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,” Havi added.
Kivuti succumbed to her injuries while receiving treatment at the Nairobi Hospital, where she had been transferred for specialized care after being shot by a senior police officer during a court session.
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