Nelson Andayi Havi, former President of the Law Society of Kenya (LSK), lodged an Affidavit of Complaint with the Judicial Service Commission (JSC) against the Judges of the Supreme Court of Kenya.
While Havi has often stirred controversy both within and outside the courtroom, particularly during and after his time at LSK, I intend to focus on the substance of his claims rather than the individual behind them: I will critique the message, not the messenger. Among the accusations, Havi claims that the Supreme Court judges “grossly misconducted themselves” during the March 2022 judgment in the appeal by the Attorney General against David Ndii and others regarding proposals from retired President Uhuru Kenyatta and Raila Odinga (the BBI Appeal).
The matter was regarding proposals submitted to the Independent Electoral and Boundaries Commission (IEBC) as part of the Building Bridges Initiative (BBI).
Havi’s primary complaint against the Supreme Court judges isn’t with the appeal itself but with their actions following the case.
He contends that the judges effectively became complainants in a matter concerning him, Ahmednasir Abdullahi SC, and Esther Ang’awa, accusing them of contempt “without notice or a hearing” and “without jurisdiction” for remarks allegedly made on February 15 and 19, 2022.
Havi maintains that neither he nor Ang’awa made these comments, though he suggests Ahmednasir Abdullahi SC may have.
He further claims that these alleged comments were not included in the court’s judgment.
Havi also points out that following the March 31, 2022 judgment, he appeared on national television to criticize Chief Justice Martha Koome for issuing an unconstitutional order against him for contempt of court.
This raises a pertinent question: Why did Havi wait so long to file this complaint, when the events in question occurred in early 2022? Additionally, another part of his affidavit touches on a dispute with the Chief Justice over her threat to sue him for defamation after he questioned her suitability for the Chief Justice role.
Turning back to the alleged contempt, it’s notable that at the time, Havi publicly condemned his conviction on national television.
Given this, it is curious why he would now choose to pursue legal action over matters that have been dormant for years.Some elements of Havi’s complaint raise constitutional concerns and refer to specific Articles of the Constitution.
As an experienced litigator and former LSK President, Havi surely understands that the High Court, not the JSC, holds primary jurisdiction in constitutional matters, yet he chose to address his grievances with the JSC.
Moreover, Havi references a High Court ruling that declared Supreme Court rules on contempt unconstitutional.
This case was overseen by Omwanza Ombati, now a JSC Commissioner.
This connection will likely influence how the JSC handles Havi’s complaint, particularly this aspect.In my view, the issues raised by Havi should have been addressed by the High Court first, due to their constitutional nature.
The JSC, which includes both legal and non-legal members, does not seem to be the appropriate forum for such matters.
The JSC’s composition, as outlined in Article 171 of the Constitution, includes the Chief Justice, a Supreme Court Judge, a Court of Appeal Judge, a High Court Judge, a Magistrate, the Attorney-General, two Advocates, and members representing the public, neither of whom is a lawyer.
Given that the complaint involves the Chief Justice and a Supreme Court Judge, both would need to recuse themselves from the matter.
