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.

The Challenge of Developing Indigenous and Patriotic Jurisprudence in Kenya

The following excerpts are taken from the Speech given by Chief Justice Willy Mutunga, President of the Supreme Court and Head of the Judiciary during the Admission to the Roll of Advocates on 19, June 2012 at the Supreme Court of Kenya.

“Some have spoken of the new Constitution as representing a second independence. This is when our institutions, and the people, are to come into their own. When the legislature will truly act as the representatives of the people, and the supervisors of the executive. When the executive will put the interests of the nation first, above the interests of tribe, individual and class. And when the curse of impunity will be ended and the rule of law prevails.

This will only happen if we all, including the judiciary, play our part, for the forces of resistance are strong.

By the rule of law, I do not mean the sort of mechanical jurisprudence we saw in cases like the Kapenguria trials. It was mechanical jurisprudence that led the High Court to reach an apparently technically sound decision that the election of a sitting President could not be challenged because the opponent had not achieved the pragmatically impossible task of serving the sitting President in person. It was mechanical jurisprudence that fuelled the decision of a High Court that the former section 84 of the old Constitution (on enforcement of Bill of Rights) was inoperative because the Chief Justice had not made rules on enforcement as he was obligated by the same Constitution to do.”

(…)

“It is perhaps remarkable that, although disappointment with the judiciary was at least as great among wananchi as frustration with politicians, it is also true that the Kenyan people chose to place their faith in the institution of the new judiciary in implementing the new Constitution.

But what I want to emphasise here is the need to develop new, not only highly competent but also indigenous jurisprudence. I link this last adjective to the Constitution’s value of patriotism. Patriotism requires putting love of country above love of self. For lawyers and judges, it does not mean putting country above justice. I conceive that it requires us to develop the law in a way that responds to the needs of the people, and to the national interest. I call this patriotic and indigenous jurisprudence. Above all, it requires a commitment to the Constitution and to the achievement of its values and vision.”

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