263/02 : Kenyan Section of the International Commission of Jurists, Law Society or Kenya and Kituo Cha Sheria / Kenya Summary of Facts 1. The Complainants are Kenya Section of the International Commission of Jurists (1st complainant), nd rd Law Society of Kenya (2 complainant) and Kituo Cha Sheria (3 complainant), all based in the Republic of Kenya. th 2. The Complaint was received at the Secretariat of the Commission on 18 October 2002 and is against the Republic of Kenya a State Party to the African Charter on Human and Peoples‟ Rights (the African Charter) since 1991. 3. According to the Complainants, the Constitution of Kenya Review Act Chapter 3 A of the Laws of Kenya (the Review Act) sets up the Constitution [of Kenya] Review Commission (CKRC) to facilitate the comprehensive review of the Constitution by the people of Kenya and for connected purposes. 4. Pursuant to the provisions of the Constitution of Kenya Review Act and in exercise of the rights conferred upon it by Section 79 of the Constitution of Kenya and Article 9.2 of the African Charter, the 1st Complainant submitted a written memorandum on the Judiciary and Human Rights in Kenya to the CKRC. 5. The 1st Complainant also facilitated an examination of the Kenya Judiciary by a panel of eminent jurists drawn from the Commonwealth, which in turn presented its views in a form of a written memorandum to the CKRC. Among other things, the written memorandum highlighted the fact that from the programme of consultation, the advisory panel concluded that as constituted, the Kenyan judicial system suffered from a serious lack of public confidence and was generally perceived as being in need of fundamental structural reform. nd rd 6. The 2 and 3 Complainants submitted written memoranda pursuant to their mandate and in exercise of rights conferred upon them by Section 79 of the Constitution of Kenya and Article 9.2 of the African Charter. In the memoranda, presentations were also made on how the Kenyan judicial system could be improved. 7. In September 2002, the CKRC published a draft report of its work, which collated the views submitted by Kenyans in terms of the Review Act. In so far as the legal system was concerned, the CKRC reported, among other things, that many Kenyans submitted that they had lost confidence in the judiciary as a result of corruption, incompetence and lack of independence. To this end, the CKRC recommended the inclusion of several basic principles of a fair and acceptable judicial system into the draft Constitution. 8. After the publication of the report, Justice Moijo Ole Keiwua, a judge of the Court of Appeal of Kenya and Justice Vitalis Juma, a Judge of the High Court, jointly sought leave before the High Court of Kenya to file Judicial Review proceedings against the CKRC and its chairperson, Professor Yash Pal Ghai. 9. Amongst other things, the judicial review proceedings sought an order of certiorari for the quashing of the decision and/or proposals actual or intended and/or recommendations of the CKRC and Professor Ghai concerning and touching on the Kenyan Judiciary contained in the CKRC report. th 10. On 26 September 2002, Justice Andrew Hayanga, judge of the High Court issued an order granting leave of Court to file a Judicial Review. The Complainants allege that the effect of this order was that in terms of Order 53 of the Civil Procedure Rules of Kenya it doubled as a staying order on further proceedings subject to the review application. 10. Subsequent to this ruling, the Complainants

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