MUTUNGA: Mr President, please don't intimidate Judiciary

I believe he should also respect the rights of the judges he was attacking.

In Summary
  • The Constitution is clear about the recruitment and disciplinary proceedings of judges, judicial officers, and staff.
  • It decrees how judges and judicial officers and staff can be removed from office.
Former Chief Justice Willy Mutunga
Former Chief Justice Willy Mutunga
Image: FILE

President Ruto’s recent speech against corruption in the Judiciary was full of threats, intimidation, and warnings.

While I respect his constitutional right to freedom of expression, opinion, belief, and conscience, I believe he should also respect the rights of the judges he was attacking.

His intimidation, threats, and warnings are a subversion of the independence and integrity of the Judiciary, and a subversion of the Constitution.

Let us start with the vision of the Constitution on the independence and integrity of the Judiciary.

Given the colonial and post-colonial history of a judiciary that was an enslaved appendage of the Executive, the 2010 Constitution’s vision of the independence and integrity of the Judiciary is not in doubt.

The Constitution is clear about the recruitment and disciplinary proceedings of judges, judicial officers, and staff.

It decrees how judges, judicial officers and staff can be removed from office.

The vision of the Constitution is that the independence and integrity of the Judiciary must be defended, upheld, and respected, This is what the Rule of Law means.

The Constitution’s vision is to end the Rule by Law that both colonial and postcolonial executives have had and continue to excel in.

While serving as head of the judiciary one consistent and continuous advice I gave to the powers that be was that political leadership needs an independent judiciary more than ordinary citizens.

If those in power enslave the judiciary what stops their successors from doing the same?

Granted our political leadership engages in politics of division, revenge, pettiness, and other ills that are devoid of national interest, the judiciary is indeed, the potential temple of justice where those who are running from political revenge can seek life, solace and protection from their political enemies.

Examples of this truth in Kenya are as historical as they are legion. When will our political leadership ever learn?

The Constitution also decentralized and democratized the institution of the Presidency.

In the appointment of judges, for example, the President has become a rubber stamp.

The moment the Judicial Service Commission sends nominees for the offices of judges of superior courts to the President he must swear them into office.

Only the offices of the Chief Justice and her/his deputy give the President the hope of influencing the voting in Parliament.

In that case, the President can influence Parliament not to approve the nominations of both positions.

Hopefully, that chapter of disobeying court orders on this issue by the President in the appointment of judges has become history when President Ruto swore in judges of the High Court and the Court of Appeal.

The Constitution decreed the end of our postcolonial imperial presidency when the President was the be-all and end-all in our system of governance politics.

I recall like it was yesterday when the KANU dictatorship refrain was: KANU iko wapi? Juu! Na Moi yuko wapi? Juu Juu Zaidi/Where is KANU? In the heavens? And where is Moi? Beyond Reach, God in the heavens!

The President then appointed judges in a most opaque manner and kept them on a leash via the Red telephone line in the Chief Justice’s office.

It was said in jest or in fact that when that phone rang the Chief Justice in answering it would stand up and salute the President’s portrait conspicuously displayed above her/his desk! The memoirs of the late Chief Justice Majid Cockar are worth reading in this regard.

That was just one of the many real and perceived powers of the imperial presidency.

In turn, the President saluted when he received calls from the capitals in the West! Is the past, indeed, the past? It seems to me to be the past and the present, but could also be the future unless we resist and refuse this status quo of death, exploitation, domination, and oppression.

On the issue of corruption in the Judiciary one fact must be stated. The executive, since colonial time, is a great factor in undermining the independence of the Judiciary.

Since the promulgation of the Constitution, we have not seen a President who is totally committed to this democratic cause. The reason is simple. Imperial presidencies do not countenance democratic checks and balances.

They are dictatorships. This explains why the 2010 Constitution is viewed by the Presidency as politically inconvenient.

When the President was issuing his threats and intimidations he talked of court orders that he obviously did not like.

Are judges corrupt when they are loyal to their Oaths of Office and the Constitution? Their decisions should not second-guess the President.

Whenever politicians and lawyers talk about corruption I always wonder whether it is not the integrity and loyalty the judges have to the Constitution and the Rule of Law that upsets these attackers.

Why is it that judges are attacked by political leadership when they decide against it in pursuance of the Constitution? Indeed, we all know that the Constitution decrees rights of appeal against these decisions up to the Supreme Court.

Is this not a more honourable route to take than the unconstitutional route of subverting the independence and integrity of judges through roadside declarations and denunciations?

Those in political leadership and lawyers who have made it their business to vilify the Judiciary must know that unless we are committed to an independent and just Judiciary we will be crushing an anchor institution on which our Rule of Law, Constitutionalism, and the constitutional promise of democracy, albeit embryonic, rotates.

Destroying independent institutions destroys nations. When shall we learn that we have to build our institutions, the electoral, security, political, financial, and devolved governments if our vision of a democratic sovereign and united nation is to be realized?

We must build strong, permanent, irreversible, and irrevocable institutions if we are going to build a stable nation in a world of planetary economic, social, cultural, spiritual, and political vultures.

My advice to the President is this: If you have evidence of corruption (whether you get it from NIS, Mossad, MI6, CIA, FBI, or other intelligence outlets, or cartels, all crucial components of the collective rulers of our country) invoke the Constitution and have the culprits removed.

The vision of a new judiciary under the 2010 Constitution is that an independent judiciary that has integrity will happen when its provisions on integrity, recruitment, disciplinary, and loyalty to the Oaths of Office become the new culture in the Judiciary.

That new culture is the bedrock of the jurisprudence envisioned by the Constitution. Why are we afraid of invoking the provisions of our Constitution to build a judiciary that has that culture? Is this not yet another evidence that our ruling class finds our Constitution inconvenient?

We are being unpatriotic by throwing the judicial baby out with the bathwater. It is not too late to learn and mature our politics under the vision of the Constitution.

Fellow Kenyans, that future will be a pie in the sky until an alternative progressive political leadership, that at a minimum, is anti-imperialist and anti-comprador is in power in Kenya.

Chief Justice and president of the Supreme Court, 2011-2016

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