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February 16, 2019

NGUNJIRI WAMBUGU: DCJ Mwilu, please recuse yourself

Deputy Chief Justice Philomena Mwilu at Milimani court on Tuesday, August 28.
Deputy Chief Justice Philomena Mwilu at Milimani court on Tuesday, August 28. /COLLINS KWEYU

Exactly a year ago I took a petition to the Judicial Service Commission (JSC) asking them to look into Chief Justice Maraga’s conduct during the presidential election petition that culminated in the nullification of Uhuru Kenyatta’s victory. This petition was deemed to be political as it seemed to be attacking the CJ because of the decision he and his bench had made.

In the midst of the very loud political noises, I slowed down on following up on the petition after Uhuru publicly requested me to do so during a meeting at Sagana State Lodge.

What escaped public notice was that the JSC then sat over my petition during a retreat in Mombasa early this year and dismissed it. I was never called to substantiate my claims. There were no investigations done (that I know of). There was no interrogation of the fundamental issues that I had raised. I have never even known why they dismissed it, as they never communicated with me despite my being the petitioner. I read it in the newspapers.

I will not prosecute the petition here afresh. But I have always wondered: did Maraga even bother to excuse himself from the JSC session that discussed my petition?

Anyway, today we are watching the JSC jump through hoops to protect the Deputy CJ Philomena Mwilu, who has been charged with corruption. She managed to get orders stopping her trial after she argued that she should first have been taken to the JSC. We read that the JSC even wanted to first look at the evidence against her!

This is the same JSC she seats in to represent the Supreme Court. As in my Maraga petition — do you think she would recuse herself from the JSC meeting discussing her issue — especially considering that they need her presence to make quorum?

Anyone following the JSC’s argument cannot help but hear them saying that if a judge commits a crime, the usual rules that apply to Wanjiku, or a government technocrat, or an MP, or a CS, do not apply to them. A judge, especially one like Mwilu, cannot just be carted off to court like an ‘ordinary criminal’, they seem to be saying. Then there was the ‘shock’ that she was presented before a ‘mere’ magistrate. One wonders, where was she expected to go for a corruption case!

Meanwhile, JSC nominee Justice Mohammed Warsame has refused to come before Parliament for vetting. He says because judges of the Court of Appeal elected him to sit on the JSC, Parliament has no business vetting him. The JSC is the only body Kenyans have to oversight the Judiciary. But apparently a judge nominated by his peers does not need to be vetted by the people’s representatives to check whether he is worthy of serving in the body that oversights one arm of government.

It also does not matter that Warsame, or any other member of the JSC, is not vetted by Parliament as a judge or member of their seconding organisation; but on whether they qualify to be a member of the JSC. If judges of the Court of Appeal say Warsame qualifies, who is Parliament to vet him? (We are just the arm of government directly elected by the people to represent them, oversight all of government, and legislate.)

The reality is that the JSC as currently constituted operates like a judicial welfare association; a ‘Cotu’ of judicial officers to protect them from public accountability. We need to fix this. I will be introducing a bill in Parliament on this when we resume.

Meanwhile, can Mwilu step aside until she is cleared?

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