By Harriet Kanaiza
In Kenya’s legal framework exists the Oath and Statutory Declaration Act Cap 15 Laws of Kenya. Over a century old – having come into effect on 22nd March 1919 – the legislation provides for the appointment of commissioners for oath, and also outlines the entire process as regards the administering of oaths and the taking of statutory declarations.
The legislation is instructive that the Chief Justice may, by commission signed by him, appoint persons who are practicing Advocates to commission oaths. The powers to revoke such appointments when need be is also vested on the CJ. The Act empowers the Commissioner for oaths to administer oath or take any affidavit for the purpose of any court matter in Kenya, including matters ecclesiastical, band matters relating to the registration of any instrument, whether under an Act or otherwise.
A commissioner for oaths is also empowered to take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate Court. As far as statutory declarations are concerned, the Act in part three gives magistrates or commissioners for oaths the powers to take the declaration of any person voluntarily making and subscribing it before them. Section 11 on the other hand creates an offence where any person knowingly and willfully makes any false statement. This offence attracts a fine and or imprisonment.
A supporting affidavit is another genre of affidavits which is mostly sworn to support a case presented in court along with witness statements and other exhibits. The principle is that evidence should be presented by the maker. If not, such evidence is deemed inadmissible and Courts of law and quasi-judicial offices are encouraged to reject such evidence. Affidavit evidence is, however, an exception to the rule and is admissible in courts of law and quasi-judicial offices.
Recent trends suggest that affidavit evidence has been abused and misused indiscriminately. More often than not, parties willingly and knowingly swear misleading information, falsehoods and even exaggerate information, oblivious of the repercussions of their mis/doing. In some instances, individuals have even interpreted swearing an affidavit to mean poking fun of the situation and will go miles to swear anything that will attract attention and arouse laughter to whoever may come across it.
The import of the foregoing is that justice is defeated, denied and in other instances delayed. The whole purpose of affidavit evidence is also lost and one is forced to believe that the only safe alternative is the archaic means of adducing evidence where need be.
Our judicial system seems to deliberately ignore cases where deponents swear affidavits only for the statements alleged in their affidavits to turn out to be false. In a situation where parties swear affidavits and present diametrically opposed statements of fact, it is fair to assert that one or indeed both have lied under oath. The natural consequence should be an expeditious investigation, leading to subsequent prosecution of the deponent that was economical with the truth.
Perhaps it is against this backdrop that, the National Hospital Insurance Fund made a public announcement in February 2018, announcing it would no longer accept Affidavits witnessed by Advocates. The National insurer, however, indicated that it would accept Affidavits witnessed by Magistrates. The Law Society of Kenya promptly challenged the directive arguing that the same was biased, and was informed by an error in the law. LSK was of the view that the directive imposed an unnecessary burden on Magistrates who were already grappling with backlog of cases within court rooms. Justice John Mativo agreed with LSK noting that the directive by NHIF was irrational, unreasonable and lacked a legal basis.
I celebrated the outcome of the case, majorly because I disagreed with the attempt by the national insurer to draw a line between practicing Advocates who are empowered to commission oath and members of the bench specifically magistrates. I am however alive to the fact that the insurer raised number of legitimate questions concerning the credibility of Affidavits commissioned by Advocates. An oath is supposed to be sacrosanct and abusing or giving misleading information is undesirable. The effect of such is irreparable and should not exist in a Country that fully adheres to the rule of law.
Trivializing the oath taking process has the overall effect of denting the image of administration of justice in the country and beyond. Degradation of the oath taking process is a vice that should be frowned upon by both commissioners for oath and judicial officers. Our judicial system should promptly and severely punish anyone found defiling the sanctity of the critical process.
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