Judge Who Saved Music Copyright Society To Be Removed from Judiciary

Last week, the Judges and Magistrates’ Vetting Board determined that Lady Justice Jeanne Wanjiku Gacheche of High Court was unsuitable to continue serving as a Judge. This determination was made pursuant section 23(1) of the Sixth Schedule to the Constitution and sections 13, 18 and 21 of the Vetting of Judges and Magistrates Act No. 2 of 2011.

This determination is available in full here.

During the hearing before the Vetting Board, the judge was questioned about her conduct in “issuing blank conservatory orders as requested by three insurance companies”. The Law Society of Kenya complained that “orders of this kind were completely inappropriate because of their blanket nature. Furthermore, they had been issued on an ex-parte basis for long periods of time, without the judge having taken into account opposing argument.”

In the same vein, IPKenya believes that KECOBO also could and should have filed a complaint against this very Judge. As many may recall, on May 31 2011 the Music Copyright Society (MCSK) moved to the Constitutional and Judicial Review Division of the High Court seeking leave to apply for judicial review orders of certiorari to quash KECOBO’s decision to deregister MCSK as a CMO. Gacheche J made the following controversial orders in favour of MCSK:

“3. THAT the granted leave do operate as a stay to stay the implementation/enforcement of the decision by the Respondent (KECOBO) signified by the letter dated 1st April, 2011 purporting to revoke the licence of the Applicant (MCSK) until 27th July, 2011 or until further orders are given by the court.
4. THAT the grant herein do operate as a stay to stay the implementation/enforcement of the decision by the Respondent (KECOBO) published in Gazette Notice N. 5093 on 6th May, 2011 purporting to deregister the Applicant as a collecting society for music composers, authors and publishers be stayed until July 27 2011 or until further orders are given by the court.”

Indeed, many at the time questioned Gacheche’s orders especially given the prevailing state of affairs surrounding MCSK and the reasons for deregistration given by KECOBO.

This matter has been in court since these orders were issued on 2nd June, 2011. On April 23, 2012, a Press Release issued by the CEO of MCSK stated as follows:

“Music Copyright Society of Kenya (MCSK) is pleased to inform its members and the general public that MCSK has reached an agreement with the Kenya Copyright Board (KECOBO) for the licensing and issuance of MCSK with a current certificate as a collective management organization. The agreement was reached following intervention by the Honorable Attorney General who advised the parties to negotiate the terms of licensing of MCSK for the benefit of the music industry in Kenya. The agreement provides for MCSK license to be effective 1/04/2012 and the license period to be for one (1) year renewable as provided for under the Laws of Kenya.”

IPKenya promises to revisit this topic in a forthcoming journal article titled: “Towards Effective Regulation of Collective Management Organisations in Kenya: Lessons from the Deregistration of the Music Copyright Society of Kenya”

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