The said publication and the intended strange application at the Goldenberg commission where its assisting counsel are to make an application for Hon. Justice Bosire to disqualify himself are two developments that will impact on the legal practice and profession forever and one may be tempted to ask if the same are not in the throes of death.

Several issues arise. There are twin basic principles of law that the entire rule and edifice of law are built on; that no man shall be a judge in his own cause (nemo judex in causa sua), and that no man shall be condemned unheard (audi alteram partem). In publishing the names, the entire media and the court of public opinion have already convicted the judges. The public will not be there, or will not care should the said allegations be found to have been erroneous. The media and the public have already taken sides.

The law as is established in statutes, court decisions and juristic writings clearly establishes that these twin principles must be observed whenever a need arises to deprive a person of his livelihood or legal status.

Are the judges who have been "shamed" ever going to get a fair trial?

With tremendous respect and deference to the two presidential tribunals set up to investigate them, I think that is an unlikely event. The judges have already been indicted, prosecuted and convicted.

On October 16, 2003, in the glare of public media, counsel assisting the Goldenberg Inquiry, with Mr Paul Muite strangely in their company, intimated that they shall on Tuesday, October 21 apply that Hon Justice Bosire disqualify himself.

Without fear of contradiction, Hon Justice Bosire’s reputation as an upright and intelligent lawyer and judge is beyond peradventure. For Messrs Khaminwa and Kamau Kuria, who are my friends, to accept Mr Paul Muite to hijack the process befuddles me.

How can they ever imagine that as a foreigner, Mr Nassir Ibrahim Ali should be given priority over Professor T. Ryan? In law and practice, their intended application is mischievous and Mr Muite’s presence in it renders their intention a farce.

Assisting counsel cannot dictate to the judge how to conduct the proceedings, and that is why Hon Justice Bosire is called the "chairman" and the lawyers "assisting" counsel.

What is the way forward? I again postulate that the legal practice and judicial service can only be redeemed at a complete overhaul on the way judges are appointed. The pretence that judges are appointed and sacked by the President on an alleged independent Judicial Service Commission is a complete and fraudulent lie.

It is an open secret that all judges’ appointments are dependent on patronage and tribalism, both in this and previous regimes. I stand to be corrected.

In Kenya, most of the advocates appointed judges are either those whose practices had failed and come from the same village with either the Attorney-General or a powerful part of the executive. To purport that merit is always followed is naked perjury and subversion, a few exceptions notwithstanding.

In civilised democracies, judges are appointed either through judicial ranks on promotion or from the rank of advocates in private practice who have distinguished themselves.

The appointment of judges to the High Court and Court of Appeal must be left entirely to Parliament, who will have the powers to scrutinise and vet each nominee.

It is only through such a process that the moral and intellectual integrity and probity of a judge can be gone into and exposed to the public. If a nominee is not sure of his or her moral and intellectual fabric then he or she will not dare offer themselves.

It is only then that our judicial and legal practice shall be well grounded. Meanwhile, our country shall continue to wallow in lego-judicial darkness.

Mr Kipkorir is and advocate of the High Court of Kenya

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