Posts tagged as: court

Blame for Nullified Poll Lies Squarely On IEBC – Supreme Court

By Olive Burrows

Nairobi — The Supreme Court on Wednesday laid bare its reasons for – by a majority – declaring the August 8 presidential election and the result thereof, null and void.

Chief Justice David Maraga, his deputy Philomena Mwilu, Isaac Lenaola and Smokin Wanjala (in absentia) sought to show why elections are more than just about numbers amid a clamouring led by President Uhuru Kenyatta that they were misguided in not ordering a recount of the votes cast.

“Elections are not just about numbers, even in numbers, we used to be taught in school; to arrive at a mathematical solution, there is always a computational path that one has to take. Elections are not events but processes as many, even senior lawyers would like us to believe. Incidentally, IEBC’s own elections manual recognises that indeed an election is a process,” Deputy CJ Mwilu stated.

In a stinging indictment of the Independent Electoral and Boundaries Commission, the four judges went to great lengths to demonstrate why the comparison of the electronic results transmission system to a ‘matatu’ by President Kenyatta’s counsel, was misguided.

Fundamentally, they found IEBC failed in its constitutional duty to verify the results by going ahead to declare a final result and winner, before receiving in scanned format, a significant number of Forms 34A from the polling stations.

Kenya

Duale to Seek MPs Approval of Sh11.5 Billion for Poll

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Ruto Slams CJ, Says He Sounds Like the Opposition

By Jeremiah Wakaya

Nairobi — Deputy President William Ruto criticised Chief Justice David Maraga’s statement on attacks against the Judiciary, describing the tone of the speech as political.

Through his Twitter handle on Tuesday night, Ruto said the proclamation by Maraga on Tuesday evening closely resembled political declarations by the Opposition National Super Alliance (NASA) and wondered if the CJ had decided to take sides.

So has CJ taken sides? Listening to the tone, language & drift of Maraga’s lecture the only phrase missing is NASA HAO! TIBIN! & TIALALA!

– William Samoei Ruto (@WilliamsRuto) September 19, 2017

Ruto’s attack did not however auger well with some Kenyans who urged him to respect the court regardless of his opinion on the outcome of the presidential petition.

Narc Kenya leader Martha Karua who is challenging the election of her political rival Anne Waiguru as Kirinyaga Governor said in response that respect for institutions should transcend the misgivings people may have against individuals heading them.

A judge is a judge even when they rule against you!

– Martha Karua (@MarthaKarua) September 19, 2017

In a quick rejoinder to Karua, Kikuyu legislator Kimani Ichung’wah accused Maraga of openly exhibiting his bias in the political contest between Jubilee Party and NASA, saying some of the judicial officers needed to own up to their mistakes.

our institutions are run by human beings therefore are as imperfect as human beings ! These are the systems we have chosen let’s respect.

– Martha Karua (@MarthaKarua) September 19, 2017

Then they shouldn’t act like they are small gods.They have exhibited their biased & should own up.We respected but disagreed with them.

– KIMANI ICHUNG’WAH (@KIMANIICHUNGWAH) September 19, 2017

In his remarks on Tuesday, the CJ said the Judiciary and its officers were prepared to pay the ultimate price in protecting the Constitution, saying they will not be intimidated.

“On our part, we’re prepared to pay the ultimate price to protect the Constitution and the rule of law,” he said flanked by JSC members who included Deputy Chief Justice Philomena Mwilu, Justice Mohamed Warsame, as well as Commissioners Prof Tom Ojienda, Emily Ominde and Mercy Mwara Deche.

“Since the Supreme Court delivered the judgment on the 2017 Presidential Election Petition on September 1, 2017, these attacks have become even more aggressive, culminating in lengthy uninterrupted demonstrations right outside the Supreme Court Building,” the CJ noted.

Maraga also criticised the Inspector General of National Police Service (NPS), Joseph Boinnet, accusing him of ignoring requests to beef up the security of judges, the courts, and litigants.

“JSC notes with dismay that the IG who is expected to provide security to all Government facilities has repeatedly ignored calls to act, exposing judicial officers, property, and litigants to danger,” he claimed.

Boinnet’s office however countered the accusation saying all judicial officers had police bodyguards attached to them, their residences as well as their courts.

“The truth of the matter is that all judges have police bodyguards attached to them and their residences,” NPS Spokesperson George Kinoti stated in a press release Tuesday evening.

“We also provide security to all courthouses and as the situation demands in some circumstances we enhance security to ensure that courthouses and judicial officer are secure,” he added.

Court Clears DPP On Drug Evidence

By Faustine Kapama

THE Director of Public Prosecutions (DPP) has won an appeal over refusal by the High Court to admit as evidence an envelope containing Heroine Hydrochloride valued at over 169m/- in the criminal trial of Lithuanian woman, Kristina Biskasevskaja.

Justices Mbarouk Mbarouk, Richard Mziray and Sivangilwa Mwangesi ruled that the exhibit in question was wrongly rejected by the High Court when the prosecution sought to tender the same as part of evidence in the trial through a Government Chemist, Mr Machibya Peter.

They allowed the appeal lodged by the DPP having noted that there was no dispute that the envelope with 3.775.26 kilograms of heroin valued at 169,886,700/- was addressed to the Government Chief Chemist, and Mr Peter, a chemist in that office, was the one who analyzed the same.

“We buy the argument of senior state attorney that (Machibya Peter) was in the circumstances, with full information and knowledge of the envelope and, therefore, a competent witness than anyone else to tender in court the envelope and its contents,” they said.

The justices ordered the record of proceedings to be remitted back to the High Court for admission of the exhibit in question and continuation of the trial where it ended prior to the filing of the appeal.

“For interest of justice, we direct that the record be placed before another judge for continuation of trial from where it ended. Taking into consideration the nature of the offence and the fact that the respondent (Kristina) is in custody, a quick disposal of the case is necessary,” they directed.

The 25-year old woman from Lithuania was arrested at Kilimanjaro International Airport on August 28 this year and was allegedly found in unlawful possession of the drugs.

According to police sources, Kristina Biskasevskaja, who is a musician by profession, was on her way to Brussels aboard an Ethiopian Airlines flight number ET 0814.

On her first arraignment before the High Court, the accused person denied the charge.

On February 15, 2016 when the trial was still in progress, the prosecution led by Senior State Attorney Tamari Mndeme, assisted by Ignas Mwituka, a State Attorney, sought to tender the envelope through the government chemist as exhibit in the trial.

Tanzania

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BOU Under Probe Over Shs1.4 Billion Payment to Private Lawyers

By Ibrahim a Manzil

Parliament — Parliament’s Committee on Commissions Statutory Authorities and State Enterprises (Cosase) is investigating Bank of Uganda officials over the expenditure of Shs1.4b in legal fees to private law firms, despite having a fully-fledged legal department.

In four successive Financial Years, the committee heard that top city law firms, including MMAKs Advocates, the firm representing BoU in Crane Bank case involving city tycoon Sudhir Ruparelia, were paid more than Shs1.4b, with an accrued balance of Shs15.8b.

The BoU matters handled by hired lawyers include representation in different court cases and offering legal opinions and processing of land documents.

The Committee chairperson, Mr Abdu Katuntu (Bugweri, FDC) yesterday grilled the central bank officials on the rationale of having in place a legal department and then hiring private lawyers.

The MPs, who are currently scrutinising the Auditor General’s reports on BoU, described the expenditure as ‘uncalled for’.

Mr Katuntu and other committee members said it is untenable to provide for a legal department, yet most of the legal work is done by private lawyers.

“Who takes the decision that this case has to be referred to the legal counsel outside?” Mr Katuntu asked.

Other MPs who spoke to Daily Monitor after the meeting called the disputed hiring of private lawyers as “a money-making venture” and called for an investigation into the deals.

The central bank’s legal director, Ms Margaret Kaggwa Kasule, however, explained that the decisions on what cases are handled by the contracted lawyers are taken with a consideration to the “complexity of the matter.”

The MPs questioned her explanation on account of the various cases BoU officials sent to private lawyers.

“That decision is taken by the legal counsel through internal consultation with the lawyers. It depends on the complexity of the matter and a number of other issues,” Ms Kasule said.

Mr Katuntu asked why “even a caveat” is placed by external lawyers, to which Ms Kasule responded that “the issues of land office, Mr chairperson, are outsourced.”

Ms Anita Among (Bukedea, Ind) said in their next siting, the central bank will be required to present “a budget for internal and external operations”.

“We also need a list of your contracts [with external lawyers] and a list of all the advocates,” she added.

BoU officials have also been asked to present the budget for MMAKS Advocates and AF Mpanga Advocates – the external lawyers representing BoU in Crane Bank case.

Mr Ruparelia accuses the two legal firms contracted by BoU of conflict of interest. The case is pending before the Commercial Court.

Mr Katuntu said the committee interface with BoU officials will see a legal audit of the bank, asking BoU governor, Prof Emmanuel Mutebile, who was characteristically silent throughout the sitting, to provide the terms of engagement.

“Bring the term of engagement between legal firms, we want to see the performance of your legal counsel, do a quick audit of cases you won and those you lost and also the costs you recovered because the cases you win, you win with costs,” said Mr Katuntu.

Other orders

Mr Katuntu also asked the central bank officials to produce its legal department’s itemised annual budget in today’s sitting without fail.

Ms Kasule said she did not have it off-head yesterday, but promised to avail it in the set of documents that will be presented today.

In an array of documents seen by this newspaper, a particular law firm received a total of Shs62m being paid in respect of “balance on agreed instruction fees and Value Added Tax.”

Another case in the documents involved another law firm, which received shs31m for “obtaining planning permission in respect of plot 15-17 Birch Avenue.”

Mr Katuntu said the legal department will have to justify its existence in relation to the amounts of money paid to the external law firm.

Mbarara Municipality MP Michael Tusiime claimed that whereas BoU is hiring private lawyers, their land in parts of Mbarara “has been encroached on.”

The central bank undertook to investigate the claim.

Totals paid

In Financial Year 2016/2017, the total amount paid to external lawyers was Shs300m, with an outstanding balance of Shs2.9b.

For FY 2015/2016, the amount paid was Shs387m, and the remaining balance amounts to a total of Shs8.8b

In FY 2014/2015, Shs681m was paid, with a total of Shs4.1b remaining in balances.

For FY 2013/2014, a total of Shs61m was paid, with no detail of the balance remaining.

President Says 60-Day Timeline Cannot Change in Repeat Polls

press release

President Uhuru Kenyatta today said he expected elections to be held within the 60-day period set out in the Constitution after the Supreme Court annulled the Aug 8 pol, and that the electoral agency IEBC would conduct it.

The President said no one had the right to impose conditions on the IEBC before the repeat elections were held, and that threats by the opposition coalition NASA amounted to bullying, intimidation, and rogue politics, but would amount to nothing.

President Kenyatta spoke when he received a 8,000-strong member delegation from Narok County, at which former gubernatorial candidate Patrick ole Ntutu and 10 MCAs pledged full support for his re-election campaign.

“The election must be done within 60 days (of the Supreme Court decision) and two, the election must be conducted by IEBC as required by the Constitution,” President Kenyatta said.

President Kenyatta was accompanied by Deputy President William Ruto and Narok Governor Samuel ole Tunai.

The President said “noises” by the opposition that they would boycott + or block the election amounted to empty banter.

“We are telling our opponents to stop intimidating Kenyans. Nobody can block the election. And we will not give in to any kind of intimidation from anybody,” President Kenyatta said.

He told the opposition to seek votes from the electorate countrywide instead of focusing on issuing threats. He argued that threats and press conferences in Nairobi had yielded no votes for the opposition in the August 8 elections.

The President also poured cold water on opposition claims that there would be a vacuum or constitutional crisis if NASA skipped the repeat polls. If no election was held, the President said he would divert the savings to development, such as the flagship energy programme “last mile”.

Deputy President Ruto trashed the opposition’s demands on the repeat presidential election, saying no one has the authority to interfere with the right of Kenyans to exercise their democratic will.

“Our competitors should stop telling us that there will be no election. Who else has powers and authority to tell Kenyans that they cannot exercise their constitutional right?” asked the Deputy President.

“We must all follow the law for the country to progress,” the Deputy President said.

He told off the opposition leaders, saying they should not take Jubilee for granted thinking that its leaders are weak just because they have accepted to abide by the law.

The DP said Kenyans will not allow individuals to continue using unconstitutional means to interfere with independent organizations.

“The opposition used unconstitutional means to remove Samuel Kivuitu from office, a similar method was used to remove Isaac Hassan from office and now they want to use unconstitutional means to remove the IEBC secretariat. This will not be allowed,” said the Deputy President.

The Deputy President said Jubilee agreed to accept the Supreme Court ruling so as to abide by the rule of law but that should not be misconstrued to mean that the party is weak or its members are stupid.

“As Kenyans, we have agreed to follow the Constitution. Not because we are weak but because we love peace and respect the Constitution,” said DP Ruto.

Mr. Ole Ntutu said he decided to concede defeat for the sake of unity and peace in Narok County so as to allow the residents to continue with their development programmes.

He thanked the President for initiating several development projects in Narok county which would ensure prosperity for the residents.

All Narok leaders assured the President that they will conduct door to door campaigns with the aim of delivering over 90 per cent votes to Jubilee in the repeat election.

Narok Governor Samuel Ole Tunai said the leaders – both elected and those who lost in the August election – agreed to work together for the sake of the re-election of President Kenyatta.

“All those who won electoral seats both at county and national Assemblies have agreed to work together to ensure you win the seat,” the Narok Governor assured President Kenyatta.

“We are determined to make sure you get over 90 per cent of the Narok votes,” Governor Tunai said.

Other speakers included MPs Soipan Tuya (Women Rep), Andrew Sunkuli (Senator), Korei Lemein (Narok South), Lemanken Aramat (Narok East) and Gabriel Ole Tongoyo among others.

Kenyatta Insists Fresh Election Must Be Held Within 60 Days

President Uhuru Kenyatta on Tuesday said he expects the fresh election to be held within the 60-day period set out in the Constitution after the Supreme Court annulled the August 8 presidential poll.

The President also said he expects the Independent Electoral and Boundaries Commission to conduct the poll.

He said no one had the right to impose conditions on the commission before the repeat election, and that threats by the opposition amounted to bullying, intimidation, and rogue politics, which were futile.

President Kenyatta spoke when he received 8,000 delegates from Narok County during an event in which former gubernatorial candidate Patrick ole Ntutu and 10 MCAs pledged full support for his re-election campaign.

UNLAWFUL

“The election must be done within 60 days (of the Supreme Court decision) and two, the election must be conducted by IEBC as required by the Constitution,” said President Kenyatta who was accompanied by Deputy President William Ruto and Narok Governor Samuel ole Tunai.

Mr Ruto said no one had the authority to interfere with the right of Kenyans to exercise their democratic will. “Our competitors should stop telling us that there will be no election. Who else has powers and authority to tell Kenyans that they cannot exercise their constitutional right?” asked the Deputy President. “We must all follow the law.”

He added: “The opposition used unconstitutional means to remove Samuel Kivuitu from office, a similar method was used to remove Issack Hassan from office and now they want to use unconstitutional means to remove the IEBC secretariat. This will not be allowed.”

The Deputy President said Jubilee accepted the Supreme Court ruling so as to abide by the rule of law but that should not be misconstrued to mean that the party is weak.

Kenya

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Kenyatta Insists Fresh Polls Must Be Held in 60 Days

Photo: The East African

President Uhuru Kenyatta

President Uhuru Kenyatta on Tuesday said he expects the fresh election to be held within the 60-day period set out in the Constitution after the Supreme Court annulled the August 8 presidential poll.

The President also said he expects the Independent Electoral and Boundaries Commission to conduct the poll.

He said no one had the right to impose conditions on the commission before the repeat election, and that threats by the opposition amounted to bullying, intimidation, and rogue politics, which were futile.

President Kenyatta spoke when he received 8,000 delegates from Narok County during an event in which former gubernatorial candidate Patrick ole Ntutu and 10 MCAs pledged full support for his re-election campaign.

UNLAWFUL

“The election must be done within 60 days (of the Supreme Court decision) and two, the election must be conducted by IEBC as required by the Constitution,” said President Kenyatta who was accompanied by Deputy President William Ruto and Narok Governor Samuel ole Tunai.

Mr Ruto said no one had the authority to interfere with the right of Kenyans to exercise their democratic will. “Our competitors should stop telling us that there will be no election. Who else has powers and authority to tell Kenyans that they cannot exercise their constitutional right?” asked the Deputy President. “We must all follow the law.”

He added: “The opposition used unconstitutional means to remove Samuel Kivuitu from office, a similar method was used to remove Issack Hassan from office and now they want to use unconstitutional means to remove the IEBC secretariat. This will not be allowed.”

The Deputy President said Jubilee accepted the Supreme Court ruling so as to abide by the rule of law but that should not be misconstrued to mean that the party is weak.

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Former ADEPR Head Applies for Bail at Kigali High Court

By Marie Anne Dushimimana

Bishop Jean Sibomana, the former ADEPR representative who is accused of funds misappropriation on Tuesday prayed High Court in Kigali to grant him bail, saying he would not jump it because of his honest.

Sibomana and six of his colleagues are accused of misappropriating more than Rwf 2 billion between 2015 and 2017. Only one of them, Tom Rwagasana, has been temporarily released.

He said that the government was also aware of his honesty and appointed him a board member of the National Commission for the fight against Genocide (CNLG).

Bishop Sibomana also presented a medical report showing that he suffers from high blood pressure and diabetes which would be difficult to deal with if he was jailed.

His lawyer, Jean Claude Abayo, told the court that his client’s illness was very serious and prayed the court to grant him bail just as was the case of his colleague, Bishop Rwagasana.

The prosecution said they are conducting a deep investigation inside ADEPR, including an audit to know how its funds were misused. It said they had summoned Sibomana but he had refused to cooperate and should therefore not be granted bail.

A ruling on the bail application is expected on September 22.

Rwanda

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South Africa: 53 Arrested During Cape Town Taxi Strike Chaos

A total of 53 people were arrested in Nyanga during a minibus taxi strike that saw roads being barricaded, buses set alight and commuters injured, Western Cape police said on Tuesday.

They were arrested for allegedly looting businesses in the Nyanga area during the strike on Monday, said warrant officer Henrietta van Niekerk.

She said some people had “made use of the chaotic circumstances” to commit the crimes.

The offences included business robbery, malicious damage to property, public violence and possession of stolen property.

The arrested men and women were between the ages of 18 and 25.

They were all set to appear in the Athlone Magistrate’s Court on Wednesday.

Taxi drivers suspended their strike on Monday afternoon.

The morning had been marked by sporadic violence, with two buses torched and at least 52 people injured.

The strike was called off after Western Cape Transport MEC Donald Grant and representatives of the SA National Taxi Organisation (Santaco), as well as a Taxi Task Team, met to address a dispute over leadership issues.

Drivers had agreed to mediation over how their new leadership structures would be elected.

During the strike, a Golden Arrow bus and a MyCiTi bus were torched. Roads in the city were also barricaded.

A pregnant commuter and another passenger were injured when a MyCiTi bus was stoned in Khayelitsha, said Brett Herron, a member of the city’s mayoral committee for transport.

“One of the commuters was hit in the face by a flying rock and the pregnant commuter fell during the violent attack near the Kuyasa stop,” said Herron.

Golden Arrow spokesperson Bronwen Dyke-Beyer said at least 50 people had been injured, primarily as a result of stones being thrown at them.

Source: News24

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When Judges Go Rogue

Photo: Seychelles News Agency

Seychelles’ Supreme Court Judge Durai Karunakaran.

columnBy Carmel Rickard

You could almost hear a sharp intake of breath around the world’s human rights community when news broke at the weekend of moves to impeach Kenya’s Chief Justice, David Maraga. Just days before, he had been one of a Bench of judges that found Kenya’s 8 August elections invalid and ordered a re-run. Now, a member of the disappointed political party – apparently trying to get his own back – claimed that the judge was part of an international ‘regime change’ conspiracy, and petitioned for an inquiry leading to dismissal.

The MP has subsequently agreed to withdraw his petition, at least for the moment. The content of his spurious complaint is worth examining in some detail, but for now it serves another purpose: it puts Kenya on the growing list of African countries in which the judiciary, judicial independence and the rule of law, are all under serious threat.

One of the most extraordinary of these stories concerning current threats to the judiciary comes from the Seychelles. Over the past months this column has noted the bizarre behaviour of a prominent judge from that jurisdiction, Judge Durai Karunakaran. He is a senior member of the Bench and was even acting Chief Justice for a period. But his judicial behaviour became increasingly inexplicable and ultimately even appeal judges, called on to revisit decisions he had made, found they had to comment and chide him.

Eventually Karunakaran was the subject of an impeccably documented complaint by the Chief Justice, Mathilda Twomey, the first woman appointed to that post in the Seychelles. Her complaints launched an official inquiry, and in its report the tribunal appointed to hear the matter has reached the unanimous conclusion that he must go.

Under the Constitution, that should be the end of the matter: the country’s President, having received the report with its unanimous recommendation, is obliged to dismiss Karunakaran. Three weeks later, however, nothing has happened. At least not to Karunakaran – instead though, believe it or not, the Chief Justice has been notified of a complaint against her, and she has herself become the subject of an inquiry.

The nature of the complaints has not yet been made public, but what has leaked into social media appears trivial – more than trivial compared with the findings against Karunakaran.

Among those findings, the tribunal concluded that Karunakaran’s misbehaviour made him unworthy of his judicial office. He had turned himself into a ‘master’ instead of a ‘servant of the people’ via behaviour that was ‘so serious and gross’ as to warrant a recommendation for his removal from office.

A few examples: in a number of cases he delayed hearing a matter, sometimes for many years, until eventually the parties gave up and dropped the application. This seems to have been his preferred method to avoid dealing with anticipated difficult conflicts.

In one such case among many, Francois Octobre wanted to sue the government of Seychelles for medical negligence after a doctor cut a ligament in his leg during surgery for an injury. According to medical opinion the damage could be treated overseas, and he brought a claim for compensation intending to use the money for that purpose. In 2002 the case was allocated to Karunakaran. For 15 years the judge repeatedly adjourned the case. It was only after the judge’s suspension last year that the Chief Justice was able to take control of the matter and finalise it. Octobre told the tribunal he was ‘young’ at the time of the incident and if he had received the compensation he sought he could have obtained the overseas treatment he needed. Instead, because of the delay, he had to ‘cry and suffer for many years’.

A second astonishing complaint – like the enormous delays this was viewed by the tribunal as behaviour warranting dismissal – relates to what can only be described as judicial fraud. These examples relate to cases in which Karunakaran made an order in open court. After the hearing, however, he made changes to the order without informing any of the parties, and doctored the court papers to obscure the fact that he had made these changes. As the tribunal put it, ‘In reality he forged the order of court,’ something the tribunal characterised as ‘serious and gross misbehaviour’.

A final example relates to behaviour that the tribunal criticised but found did not merit dismissal, a ruling that I find hard to understand, made in relation to behaviour that would, without doubt, have led to impeachment in South Africa. It concerns his relationship with the Chief Justice and his sexist views more generally.

When the new Chief Justice was appointed Karunakaran refused for some time to move from the Chief Justice’s office space. He continued to sign orders and letters as ‘acting chief justice’. He made it clear that in principle he did not believe a woman should be a Chief Justice, saying he was a ‘Shakespeare man’ and agreed with Shakespeare’s words: ‘frailty thy name is woman’. He shouted at her and behaved in a threatening way, causing her and a staff member to feel afraid. He boycotted her swearing-in ceremony and tried to intimidate her when she asked him about complaints she had received relating to cases he was assigned. Clearly, this inappropriate and aggressive behaviour was very real: at one point he apologised to her – possibly the reason the tribunal did not recommend removal from office on this particular ground.

Behind the almost incomprehensible inquiry being launched into the Chief Justice lies an unpleasant reality: changes to the composition of the Constitutional Appointments Authority (CAA) that deals with appointing judges among others, and with setting up tribunals to inquire into impeaching judges. These constitutional changes have dramatically increased the potential for political decisions on the CAA. While the CAA is chaired by a practising lawyer, the Chief Justice does not have a seat on the CAA – in fact not a single judge serves on that body. Consider a situation in which the Chief Justice, or any judge for that matter, reprimands or even finds against the chair or other lawyer-members of the CAA in court. It’s easy to imagine the potential for retribution via the CAA and its power to invoke a tribunal. It’s also easy to imagine the politicised CAA causing a feeling of insecurity among the judges, with their jobs and their career prospects in the hands of party politicians who appear regularly in the courts.

It is an alarming situation, caused by flawed processes and structures. And it is made all the more troubling by the continuing and inexplicable failure to dismiss Karunakaran on the one hand and on the other, pending action against the Chief Justice that smacks of little more than retribution for her wholly justified complaints against a rogue colleague.

Tribunal report on Judge Durai Karunakaran

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