If Fredrick Ngatia were to be nominated by the Judicial Service Commission for appointment as Kenya’s Chief Justice, he would have made a rare leap that is from the Bar straight to the head of the Judiciary.
Only Maluki Kitili Mwendwa, Bernard Chunga and Willy Mutunga have become CJ without having held any judicial office before.
However, this is not a bet he cannot pull off that feat. Mr Ngatia is the senior-most of the 10 CJ candidates.
For a profession obsessed with, if not slavish about seniority, Mr Ngatia’s four decades as an advocate will count on account of longevity and the title conferred to him as Senior Counsel last year.
The apogee of his law practice is the pro bono case former Chief Justice Willy Mutunga handed him when he requested Ngatia to represent death row suspects. His success in the Francis Kariokoo Muruatetu case at the Supreme Court, where it was declared unconstitutional to impose a mandatory death sentence on convicts, is what he considers his finest piece of work. Some 5,000 prisoners have since gone back to the High Court for resentencing.
Beyond his 40 years’ experience in the practice of law, Ngatia will be brandishing his freshly minted masters in applied philosophy to prove that a CJ needs a multidisciplinary approach. He researched euthanasia, which is prohibited in Kenya, and his research found that where it is administered, the moral questions it raises demonstrate that apex courts deal with questions of bioethics, theology, the transcendental nature of man.
Last year, Ngatia joined the hallowed ranks of Senior Counsel, and he will be battling the optics of ethnic balancing in joining a Supreme Court where another member of his Kikuyu community is also a long-serving member.
The holder of Bachelors and Masters of Laws degrees from the University of Nairobi and the London School of Economics respectively, Mr Ngatia seeks a return to public service, having started his practice as State counsel in the office of the Attorney-General.
Mr Ngatia then ventured into private practice where he has ploughed his trade in a firm that carries his name as principal.
Though this company may be deemed small, if not solo practice, its clientele would speak to a heavy hitting litigation practice. Chambers & Partners, an international firm that classifies lawyers, recognized Mr Ngatia as one of Kenya’s best litigators in 2019.
Ngatia’s long client list includes Kamlesh Pattni when he faced a murder charge, Justice Philip Tunoi when he faced a tribunal investigating his misconduct, Judges Philomena Mwilu, Mohammed Ibrahim and Abida Ali-Aroni at the Judges and Magistrates Vetting Board, and the late Vice President George Saitoti when he challenged his prosecution over the KSh158 billion Goldenberg scandal. Ngatia also filed a complaint against Judge Joseph Mutava at the tribunal investigating him, calling him a serial liar.
The judge was removed from office. Ngatia shot to fame with his representation of Uhuru Kenyatta in the 2017 presidential election petitions. As soon as the 1 September 2017 nullification decision came in, Ngatia began preparing for the next petition – which followed in November after the fresh election. He has managed a frenetic 14-day petition, and believes the same leadership principles would enable him to lead the institution. Yet, Ngatia does not consider the presidential petitions as his greatest achievement.
If an advocate can be defined by the work he does and his clients, then there is a lot to be said of Mr. Ngatia as a legal practitioner.
Even that would be a partial and incomplete description of the breadth of Mr Ngatia’s practice. Known mostly as one of the legal counsel to President Uhuru Kenyatta in the contentious petitions challenging the 2013 and 2017 elections, Mr. Ngatia is thought to be a system’s advocate, if such a job exists.
The choice of Mr. Ngatia as counsel for the high and mighty preceded the election cases.
In 2006, Prof George Saitoti, while a minister, sought Mr Ngatia’s representation in a case challenging the findings made by the Judicial Commission on the Goldenberg Affair as to the minister’s involvement in the scandal.
The court not only quashed the findings and recommendations of the Commission of Inquiry for prosecution of Mr. Ngatia’s client but also thanked him and his co-counsel for the quality of their research and advocacy in the proceedings. Prof Saitoti has since died.
Even members of the Judiciary have found themselves in need of his counsel. Justice Philip Tunoi of the Supreme Court sought Mr Ngatia’s representation when the judge faced a tribunal inquiring into whether he needed to be dismissed for gross misconduct.
While his practice is more on the corporate and commercial litigation, Mr Ngatia made a mark in the criminal bar in a case that will have a long lasting effect on the justice system in Kenya.
Mandatory death sentences
His representation of Mr Francis Muruatetu in the Supreme Court in 2017 changed the law in a refreshing way that points to his legal mind to give the Constitution its full tenor and effect in the lives of ordinary citizens.
Mr Ngatia’s client had challenged the Penal Code’s prescription of a mandatory death sentences for a person convicted of murder. On the strength of the advocacy, the Supreme Court agreed with Mr Ngatia that mandatory capital punishment was unconstitutional.
The court said a mandatory sentence is an unreasonable restraint on a judicial officer because it deprives the judges of the discretion to consider mitigating factors in sentencing and makes the process of mitigation an unnecessary gesture during trial.
With this decision, many convicts on death row got a reprieve by challenging the courts to reconsider their sentences. An indirect public benefit was served by Mr Ngatia’s advocacy in this case.
The truth, though, is that some may be anxious about the possibility of Mr Ngatia as Chief Justice for the reason that his clientele indicates an advocate for the high and mighty with little time for the ordinary litigant.
The Muruatetu case may be an answer to them as to how he perceives the constitutional liberties and rights of the common citizen. Additionally, it ears mentioning that an advocate by his professional obligation takes whichever client he finds himself with.
Advocacy does not necessarily infer alliance with or affinity to the client’s position.
As an advocate, Mr Ngatia is a formidable litigator described by many as polite and soft-spoken without being a pushover. It would be a mission of high guesswork to try and define the kind of judge, leave alone the kind of CJ, any person would make on appointment.
In a presumed Justice Fred Ngatia, that would be even harder for three reasons. One is that he has never been a judge. This would only be for those who believe and act on the divisive binary of the Judiciary having insiders and outsiders.
Secondly, it is never possible to define for a candidate what taking a judicial posting would mean for his or her personal jurisprudence.
Thirdly, and more importantly, the obsession with personal jurisprudence sometimes is but a harbinger by which a candidate for judicial office is defined by an ideological lens, which he may not even have given thought to.
It is never a given that a judge will decide cases in a guaranteed way , even to the administration responsible for his appointment. Those unwilling to believe this may take cue from Dwight Eisenhower who after naming Earl Warren as Chief Justice said the appointment was the worst decision of his presidency.
Warren, a Republican on his appointment, led the Supreme Court into a set of civil rights decisions, which transformed the United States in a way that did not please the president and his Republican party.
If Mr Ngatia were to be appointed Chief Justice, we can only guess the level of transformation he would make. No one knows for sure. The same would apply largely for all the other candidates to the office of CJ.
However, there is no denying that Mr Ngatia has the tools for the job in terms of qualifications.