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February 19, 2019

In Defence Of The CJ And Judiciary Politics

Willy Mutunga.
Willy Mutunga.

In last Saturday’s Star, the blogger and investment adviser, Sam Omwenga launched a scathing , and in my view totally unfair, attack on the CJ, Willy Mutunga.

Normally I would ignore articles of this genre driven by narrow political motives, but I am responding because of the prominence given to the article, and more importantly, because what we need to deal with the most serious constitutional crisis since the new constitution, is not polemics but a sober reflection on the mandates given to the three major state institutions.

Omwenga attacks the CJ for having failed to promote judicial reform, fending off “powerful forces”. He is under siege and must make room for another CJ. He says that the CJ has lost the confidence of the people. Onwenga has no understanding of the constitution or political science.

His article is a meaningless and spiteful rambling, full of inconsistencies and non-sequiturs. He provides no evidence for sweeping statements.

There is no analysis of the role of the judiciary in Kenya’s political and constitutional system; no understanding of political and judicial reform that the constitution requires.

He has no understanding or respect for the different roles of principal state institutions (particularly the delicate and crucial role of the judiciary in a regime of the rule of law), and the intricate relations between them.

It is as if his sole mission is to discredit the CJ, using highly abusive language.

He accuses CJ of “good old dirty politics” without telling us what they are. Arrogantly, he tells him to resign, for “the benefit of the nation”.

He thus shows himself as partisan, carrying out the mission of those who are determined to undermine judicial reform. Unfortunately for them, and fortunately for us, this man has few skills for this “mission”.

Contrary to what says, the CJ is not spending all his time fending off “powerful forces”, whoever they may be. But he is fending off the powerful forces that are undermining the constitution, as he must as the head of the judiciary.

He may be under siege but that is not of his doing, but people to whom Omwenga seems partial.

Contrary to what Omwenga says, the C J has indeed brought “a breath of fresh air, new ideas, resolve and no strings attached to the very rotten judiciary we had then” (his words). He has worked tirelessly to generate a new spirit among the judges of serving the people. The quality of justice has increased markedly since he became the CJ. It is this engagement of the judiciary with justice as defined in the constitution that has worried the likes of Omwenga.

As to his inconsistencies and non-sequiturs, he says that we cannot have someone under “siege as the CJ”, and then rather oddly refers to the ICC decision to allow the president to appear via video in his trial—the connection escaped this reader.

He goes on to prescribe that the JSC should be disbanded. He also says that the president’s decision to appoint the tribunal to enquire into the conduct of six commissioners was correct and that of the court challenging the decision was wrong—without any analysis of the constitution which governs this matter.

He has already made up his mind that the six commissioners are guilty: “if the evidence is half as bad as it’s been reported, then all of them should be sacked and the staffing of the judiciary be completed overhauled”.

Only someone who has no understanding or regard for due process or the organisation of the judiciary could make such a statement. He makes another odd remark, that while the JSC is re-organised or scrapped, “its work can be delegated to the administration arm of the Judiciary or shared elsewhere, including the appropriate select committees of the Senate or Parliament as the case may”.

Then he goes on to say equally absurdly, “We do not need the JSC as its functions can easily and more cost effectively be handled by the Supreme Court itself working in tandem with the Law Society of Kenya with oversight from the National Assembly”

In the same sentence he says that the judiciary is in the same rotten state as before and then goes on to say that “significant reforms have taken place in the judiciary despite the mess it is in now”—and having earlier stated that no progress was possible under Willy Mutunga.

The giveaway line is this: “A good testament of this is the very JSC mess whereby a judge, has in fact, issued an injunction preventing an order by President Uhuru Kenyatta from being given effect. Ask yourself, would this have been possible during the late President Jomo Kenyatta’s time or even during former President Daniel Arap Moi’s reign”.

This statement tells us a lot about Onwenga, apart from his somewhat muddled mind.

He wants CJ removed so that judicial reform can take place, and yet he hankers after the lawless days of J Kenyatta and D Arap Moi.

What with Uhuru’s admiration for Moi’s style of ruling (disclosed courtesy of Wikileaks) and the invocation of Moi by Omwenga, we are clearly headed for difficult and troublesome times.

The author is a director of the Katiba Institute.

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