- The former Vice President Kalonzo Musyoka – also a senior counsel – said only a tribunal can remove a judge from office, terming last week’s High Court order shocking.
- The ruling leaves the Supreme Court with no representative at the Judicial Service Commission.
Image: CHARLENE MALWA
Political leaders and lawyers have castigated a High Court ruling against acting Chief Justice Philomena Mwilu as the impact of the decision becomes apparent.
Wiper leader Kalonzo Musyoka over the weekend condemned the ruling by the Meru court and demanded that the acting CJ be accorded a fair hearing as required by law.
The former Vice President – also a senior counsel – said only a tribunal can remove a judge from office, terming last week’s High Court order shocking.
“I was shocked because the Constitution is clear on how to deal with the matter of vacancy of a judge of the High Court or Supreme Court or Court of Appeal. If you want to get rid of them, under the Constitution there is a very elaborate formula,” Kalonzo said.
"As a senior counsel I am shocked that a judge sitting in Meru can purport to get rid of the Chief Justice. He must know they need a tribunal. We must be sticklers for the rule of law. Philomena Mwilu is not an angel but please give her due process. We must speak loudly about these things.”
Kalonzo was at Mwingi West Constituency at the burial of businessman and politician John Mwavu Nzuze.
The High Court in Meru on Friday barred Mwilu from acting as Chief Justice and chairing the Judicial Service Commission following a petition questioning her integrity.
Kalonzo’s remarks came a day after lawyer James Orengo also criticised the ruling which he described as "a judicial act of terror".
"The rule of law is broken and judicial anarchy sets in when judicial processes are used and abused to achieve unlawful outcomes or brazen political objectives," the Senate Minority leader said.
"The orders obtained ex-parte against CJ Mwilu (Ag) is an egregious act of judicial terror and oppression," he declared.
On Sunday, Makueni Governor Kivutha Kibwana also disagreed with the Meru ruling, terming it a coup.
“Justice PJ Otieno has executed a coup d'etat against the Judiciary by beheading the Supreme Court,” Kibwana said.
Apart from her being the Deputy Chief Justice of the Judiciary, Mwilu is a judge of the Supreme Court, a member of the Judicial Service Commission, the acting Chief Justice and acting chair of the JSC.
The orders by the Meru court throw the entire Judiciary into confusion. This is because JSC was planning a series of activities including recruitment of a new CJ and a judge to the Supreme Court to fill the vacancy left by the retired judge Jackton Ojwang.
Officials aware of the intrigues revealed several parties plan to move to the Court of Appeal today or this week to seek that the orders be set aside for inter-party hearing.
Makueni Senator Mutula Kilonzo said the order will not survive if challenged at the appellate court.
“The Court of Appeal should not have any difficulty staying the ex-parte order purporting to remove acting Chief Justice Philomena Mbete Mwilu . The people of Makueni are taking notes,” Mutula tweeted.
This, if granted, will give Justice Mwilu a reprieve to enable her discharge her duties and fight the cases there.
Justice PJ Otieno issued orders suspending the DCJ as a judge of the Supreme Court, barred her from carrying out her duties as a member of the JSC and restrained Justice Mwilu from occupying the office of the Judiciary Ombudsman pending the determination of a case filed by one Isaiah Mwongela.
The issue of Justice Mwilu has been pending before a number of courts in the city with many other plots to ensure she does not continue with her duties.
Mwongela claimed he has evidence that provided sufficient grounds for instituting criminal proceedings against Ms Mwilu and thus was not fit to continue holding office.
Law Society of Kenya president Nelson Havi said in a tweet, “A judge cannot issue an injunction restraining another Judge from acting. Besides, Justice Mrima dismissed a similar case”.
JSC had commenced the process to recruit Justice Maraga’s successor by calling for applications, an exercise that closes on February 10 and thereafter the JSC will have 28 days to scrutinise the applicants.
Mwilu has not shown interest in seeking the position of CJ because had she had, the JSC would have announced the same and asked her to step down from the commission.
The orders by Justice Otieno mean the Supreme Court will be left with four judges.
The Constitution states that the Supreme Court is properly constituted, for the purpose of its sittings, when it is composed of at least five judges.
With Maraga out, he left five judges at the court who included DCJ Mwilu, justices Smokin Wanjala, Mohammed Ibrahim, Njoki Ndung’u and Isaac Lenaola.
A case on the Building Bridges Initiative filed by Kericho and Nandi county assemblies was among those the court was scheduled to hear.
The effect of the order given by Justice Otieno on Friday is that it paralyses the Supreme Court because it will not have quorum to sit and hear cases.
The order also leaves Supreme Court with no representative at the Judicial Service Commission.
According to experts, every member of JSC has security of tenure and that means for one to be removed a formal complaint has to be filed before Parliament which will then be sent to the Head of State who will in turn form a tribunal to investigate.
The anti-corruption law which requires public office holders step aside if faced with a corruption case has an exception for constitutional office holders, which include judges.