Goldenberg Commission of Inquiry Report - Mars Group Kenya

on 17 th September, 2003 during the Robert F. Kennedy Memorial,
Human Rights Award, Laureate. This is what, in pertinent, he said:
“The members of the Kenya Commission are three.
Two of them are High Court and Court of Appeal judges
who were appointed by former President Moi who did not
believe in the independence of judges. The third member
is an old conservative attorney from one of the country’s
oldest law firms. In colonial Kenya it served colonists.
The Commission is assisted by four counsels. Two
of them Mr. Waweru Gatonye and Mrs. Dorcas Oduor were
appointed by President Kibaki on the advice of Attorney-
General Wako who served former President Moi loyally.
The appointment was made on March 28, 2003 when the
new government wrongly thought that it could get
competent legal advice from that Attorney-General. The
other two assisting counsel Dr. John Khaminwa and I, are
human rights attorneys who were detained by former
President Moi because of asserting the independence of
the Kenya Bar, were appointed assisting counsel on March
28, 2003 after President Kibaki concluded that there was
a likelihood of the Moi appointed judges manipulating the
Commission to defeat its legal objective and consequently
counsels(sic) who would assert the independence of counsel were
needed.” [http//www.rfkmemorial.org/human_rights/laureates]
39. It is immaterial whether or not what he said is true. He has
portrayed us as not being dependable merely because the Chairman and
Hon. Mr. Justice Aganyanya were appointed by the former President,
Daniel Arap Moi. He gives the source of his information as the current
President, His Excellency, Mwai Kibaki, who incidentally is the
appointing authority of this Judicial Commission of Inquiry. As we
stated earlier there may not be any truth in what he says. His belief or
perception may be taken as true. Thus the credibility of the Judges
concerned is adversely affected.
40. The other argument against the appointment of Judges to head
public inquiries is the increasing tendency of suing Judges conducting
public inquiries. Apart from forcing a Judge into a legal dispute in which
he has no personal interest, it exposes him to ridicule and possible
pecuniary liability by way of costs as happened both in High Court
Miscellanous Civil Application Nos.1415 of 2004 and 1279 of 2004 in
which we were individually ordered to pay costs. Besides the Judge
who eventually will deal with the matter is likely to be embarrassed.