Chief Justice Harassed and Threatened: Executive Must Apologise and Take Measures

“I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay.” – Chief Justice Dr. Willy Mutunga, 20th February 2013.

Fellow Kenyans, make no mistake about it: “Eternal vigilance is the price of liberty”.

Yesterday the Chief Justice (CJ) made a public statement (available in full here) where he highlighted two seemingly isolated events that point to a calculated and sinister plot by those seeking to reverse Kenya’s constitutional gains, undermine institutional independence within the Government, and subvert the Rule of Law. Indeed, the CJ’s “poison-pen” letter and “small hiccup” at the Jomo Kenyatta International Airport (JKIA) must be cause for renewed “resolve of each and every Kenyan to protect our Constitution” because, after all, an injustice to one is an injustice to all.

Kenya is at a precarious moment in its history and with Parliament out of the picture, only two arms of government remain: the Judiciary and the Executive. As far as the “small hiccup” goes, the average observer can clearly see that this is nothing more than the Executive taking advantage of the fact that Parliament is no longer around to make noise and call into question the Executive’s move to blatantly undermine the authority and independence of another arm of government namely, the Judiciary. We must take comfort in the CJ’s statement as it exposes the Executive’s feeble attempt to ‘bend the ear, mind and resolve’ of the Judiciary through its head, the CJ.

The statement affirms that despite this intimidation, the Judiciary will uphold, protect and defend the Constitution and the Rule of Law. This incident at JKIA also illustrates the systematic disrespect of the Judiciary as an arm of government, where in the recent past we have seen the Executive failing to obey court orders and decisions. After all, one wonders, in the hierarchy of power and authority under the law, who is PS Francis Kimemia to bar the Head of the Judiciary from traveling, let alone the lone Immigration Officer carrying out the Executive’s bidding? Although it may not be in dispute that this Immigration Officer must “know people”, one is relieved that the CJ preferred to negotiate his way out of the situation rather than cause a scene at JKIA that may have ended up being politicised to remove him the Bench’s apex court.

On a personal note, this incident at JKIA should remind us all that our right to freedom of movement is enshrined in the Bill of Rights of the Constitution and specifically guaranteed under Article 39. Any limitation or transgression of this right or any other must not be treated lightly.

It is therefore fair, just and proper that the Executive through the very PS Kimemia do issue an unconditional and unequivocal public apology for abusing the powers that We, the People of Kenya have donated to the Executive under Article 1 of the Constitution. This public apology must also be coupled with the Executive’s deepest regrets conveyed to the Judiciary and its officers whom it needlessly harassed.

Moving to the matter of “the poison-pen letter” alleged to be authored by the outlawed Mungiki sect, one thing is clear: anyone thinking they can scare or intimidate the CJ is terribly mistaken. In another life, the CJ, Dr. Willy Mutunga had been a legal academic and a prominent human rights activist in Kenya since the 1970s. Indeed one wonders whether a man who has been hardened by mistreatment, arrest and detention under former President Moi’s authoritarian regime, would now feel the least bit intimidated or cowed by death threats from so-called Mungiki. Be it as it may, the issues of security during and after elections must not got unaddressed and the State is squarely responsible for guaranteeing that law and order prevails.

Finally, there are those who argue that this public disclosure by the CJ ought not have happened and instead the two events handled in camera between the relevant state agencies concerned. To many this argument may be ably challenged with reference to Article 35 on the right of access to information under the Constitution. In particular, attention may be drawn to Article 35(3), which requires that the State (which includes the Judiciary) must publish and publicise any important information affecting the nation. In a previous post, this blogger has discussed the import of Article 35 and argued that whistle-blowing and/or public disclosures must be made with due consideration for the hierarchy and chain of command within the public institution in question. In essence, public disclosures of information held by the State must be sanctioned by the highest authority concerned and the manner of disclosure must be clear and concise. In this present case, one must bear in mind that the CJ is acting not merely an individual but as the Head of a branch of government. Thus, to whom is the CJ supposed to make disclosure other than the People in whom sovereignty is vested?

What we all must learn from the CJ’s statement is that silence is not always the right option and that truly wise and brave Kenyans will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.

3 thoughts on “Chief Justice Harassed and Threatened: Executive Must Apologise and Take Measures

  1. I share the sentiments that, Mutunga has gone through a lot under more refined goons in the Moi admin……with kina Raila, Orengo, these are the people you threaten with death and they tell you, “bring it on..” because they have suffered ordeals worse than death……the Kibaki lakeys have no idea what they up against……

    My problem is people who think he didn’t have to go public with this info…..he had to and in future he will because as the CJ, his power is donated to him by Kenyans.
    iRest.

  2. First off, on what basis is the Executive expected to apologise for the actions of one Mr. Kimemia? Were Mr. Kimemia’s alleged actions sanctioned by an office in the Executive? Since Bw. Mutunga proceeded to fly out and back without contravening any statute, law or regulation then it would seem any ‘hiccup’ was not caused by an office of the Executive, more probably an officer acting beyond the Executive’s jurisprudential legislation. If at all.

    Secondly, both myself and the Jubilee Coalition legal affairs secretary Jasper Mbiuki are saddened that Mr Mutunga had “dragged [Jubilee Coalition’s] name into this sordid affair on such flimsy [evidence]…As a judicial officer, he must surely know that a letter allegedly written by alleged supporters of [the Jubilee Coalition’s] candidates would have no evidentiary value and no court would admit it into evidence.”

    And finally, the only correlation I see between Ms. Nancy Baraza’s incident and consequent termination of office with the incumbent CJ’s recent ordeals is absolutely bupkis. When you factor in the killing of a High Court judge’s assigned AP outside their residence on a Sunday afternoon in broad daylight or the hostage situation of another member of the judiciary at her house in Karen for HOURS by thieves however, it would seem like something is indeed afoot.

    #MyOpinion

    • On the question you raise in your first paragraph, let us not forget the principle of collective responsibility.

      The actions or inactions of any officer in a branch of government are those of that arm of government. It is clear that the Immigration Officer was not acting in a vacuum but under superior orders. Therefore why must the officer be interdicted for carrying out orders from his/her superior(s) and the superior officer(s) escape(s) scot-free? Public accountability and transparency demand that those in charge take responsibility for those under them.

      Let me be clear, the basis of the public apology is that a grave public disclosure was made by one branch of government against another branch of government.

      In light of Art. 129 of the Constitution, a disservice has indeed been done to the People of Kenya who have donated their sovereign power to the Executive arm.

      At any rate, we all know how government “investigations” are handled in this country; the truth never seems to get out.

      How can we expect to progress or even transform as a country if we can’t even apologise when we wrong each other?

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