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September 23, 2018

Response to Maraga and the JSC

Supreme Court judges (L-R) Isaack Lenaola, Smokin Wanjala, Mohamed Ibrahim, Deputy CJ Philomena Mwilu, CJ David Maraga, Jackton Ojwang and Njoki Ndungu. Photo/Monicah Mwangi.
Supreme Court judges (L-R) Isaack Lenaola, Smokin Wanjala, Mohamed Ibrahim, Deputy CJ Philomena Mwilu, CJ David Maraga, Jackton Ojwang and Njoki Ndungu. Photo/Monicah Mwangi.

have noted the statement issued by the Chief Justice and President of the Supreme Court of Kenya on behalf of the Judicial Service Commission.

As one of those who have exercised their constitutional right to petition the JSC on matters that I deem important, I wish to state the following:

All Kenyans have an equal responsibility to uphold and defend the Constitution. Article 3 (1) of the Constitution of Kenya exalts every person to “respect, uphold and defend the constitution”.

No one person or institution is the custodian of the Constitution. We all are. e notion that the protection of the Constitution is the responsibility of one institution is fallacious and must be rejected. The people are the custodians of the Constitution.

Article 3(2) further declares that, “any attempt to establish a government otherwise than in compliance with the Constitution is unlawful”. Kenyans have a particular obligation to ensure that no one, not even constitutional organs, and certainly not singular arms of government, supports the establishment of a government outside the realm of the Constitution.

On the concerns by the CJ and the JSC on picketing, I would like to point out the following:

a. Article 37 of the Constitution guarantees all Kenyans the right, peacefully and unarmed, to demonstrate, to picket and to present petitions to public authorities. ere are no indications that any of the demonstrations complained about by the CJ were not peaceful or were by armed persons.

b. Article 20 provides that in interpreting the Bill of Rights, the courts should promote values that underlie an open and democratic society based on human dignity, equality, equity and freedom. The USA is a pillar of democracy globally. Observers will have noted that the US Supreme Court will have demonstrators picketing outside it every time a major case is argued. This has never been and cannot be seen as “intimidation”.

c. There have been previous demonstrations outside courts. In fact, very recently NASA supporters demonstrated outside the Supreme Court during the hearing of the petition against President Uhuru. It is noteworthy that neither the JSC nor the Chief Justice felt the need to issue a statement on that occasion.

d. The Constitution of Kenya guarantees the independence of the Judiciary and provides that the Judiciary shall be subject only to the Constitution and the law, and shall not be subject to the control of any person or authority.

Wambugu is the Nyeri Town MP 

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