• Mutunga said Uhuru’s conduct in the appointment of judges is 'beneath the dignity of that high office' he holds.
• He asked the President to resign or retire.
Former Chief Justice Willy Mutunga has criticised as “a dangerous dalliance with impunity” President Uhuru Kenyatta's failure to swear in six judges approved by the Judicial Service Commission.
Mutunga accused Uhuru of abusing his presidential authority, terming his exercise of power as egregious, reckless and insensitive.
He said in a letter that Uhuru’s conduct in the appointment of judges is “beneath the dignity of th[e] high office” he holds as President and asked him to resign or retire.
“I have elected to speak elaborately and strongly on this issue because when apparently innocuous and blithe breaches to the Constitution begin to occur, especially from the highest office in the land, they signal a dangerous dalliance with impunity,” he said in the letter dated June 8.
“This is particularly so when these occurrences are intentional, persistent, defiant and brazen – fuelled by an inexplicable determination to overrun the barricades of Kenya’s constitutional order.”
Mutunga’s remarks come hardly a week after he told International Crisis Group that Uhuru should be impeached for consistent violation of the Constitution.
According to the former CJ, anybody seeking public office should be familiar with the Constitution and must comprehend the allocation and demarcation of its power.
This, according to Mutunga, is the meaning of public officers taking oaths before assuming office and swearing to protect, defend, and promote the Constitution and abide by all other laws of the republic.
“If any public officer does not like the power the Constitution donates to them, or finds the exercising of those powers annoyingly inconvenient, they have no business continuing to occupy those offices,” he said.
“Resignation and early voluntary retirement are readily available options that the Constitution merrily provides, in order to protect itself from individuals who may find further fidelity to its edicts, a burdensome enterprise.”
On Thursday, Uhuru declined to appoint High Court judges Joel Ngugi, George Odunga, Weldon Korir and Aggrey Muchelule, as well as chief magistrate Evans Makori and High Court Registrar Judith Omange.
State House said some of these judicial officers had suitability issues.
In his letter, Mutunga said the list of judicial officers whose suitability Uhuru had initially questioned had now changed, meaning the objection is driven by a personal vendetta.
“Strikingly, the President ‘list of hate’ has even mysteriously changed, meaning the objection to the judges’ nomination is driven more by personal pique rather than principle. That is not the way to conduct serious business of the state,” he warned.
Former JSC member Mercy Deche first raised the issue of the list from State House initially shown to the commission.
Deche expressed concern that some new names had been added to the list.
"The authorities just gave us a one line that they had negative reports with no evidence. I am shocked some of them were cleared,” Deche said.
Like his former comrade at the Kenya Human Rights Commission Makau Mutua, Mutunga described some of the six judges as exceptional and urged Uhuru to urgently appoint them.
Just after the landmark ruling that scuttled the BBI, Mutua had described professor Joel Ngugi as “best jurist in Kenya”
“Politicians and their acolytes must stop all attacks on Justice (Prof) Joel Ngugi for the BBI ruling. He and his fellow justices (Odunga, Mwita, Matheka, Ngaah) are brilliant. Presiding judge Ngugi – a former student of mine at Harvard Law School, is the best jurist in Kenya. Period,” he stated.
In his letter, Mutunga said state offices are not personal property of individuals and that all Kenyans have a right to seek to serve.
“No individual or authority can arbitrarily renounce, withdraw or abrogate this right,” he said.
Mutunga is a renowned academic, former political detainee and reform activist. His nomination as CJ was opposed by some who saw him as too radical for the job.
However, his credentials came under scrutiny after he led the Supreme Court bench in upholding Uhuru’s 2013 victory, an election critics claim was dogged by anomalies and illegalities.
The ruling was ridiculed and torn apart by many legal scholars.