Back off, Mutunga tells Raila on courts

Chief Justice Willy Mutunga on Monday told Prime Minister Raila Odinga to keep off the Judiciary and respect court rulings.

Dr Mutunga said it was wrong for Mr Odinga to refer to the January 13 Constitutional Court ruling on the date of the General Election as “fake” for failing to give precise date for the polls.

A three-judge bench comprising Justices Isaac Lenaola, Mumbi Ngugi and David Majanja ruled that the elections could be held within 60 days of the expiry of term of Parliament on January 15 or this year if the two principals dissolve the coalition government in writing.

Mr Odinga dismissed the ruling at the weekend shortly after the Independent Electoral and Boundaries Commission (IEBC) said the elections would be held on March 4, 2013.

Speaking in Kisii, Mr Odinga said the IEBC was interpreting a decision by “korti ya bandia” (fake or kangaroo court).

“Such unprovoked utterances are as unfortunate as they are unacceptable. They reek of Executive impunity and have no place in properly functioning democracy,” Dr Mutunga said.

He urged leaders to be conscious of the “heavy ramifications” their statements could have on the country.

“Mr Odinga is the Prime Minister of the Republic of Kenya. As a creature of the law, he is a critical and fundamental arm of the Executive. He must be aware that he bears a duty to uphold and protect the independence of the Judiciary as required by the Constitution-especially in instances where he is unhappy with its decisions,” he said.

He said the IEBC is mandated to interpret both the Constitution and the decisions of the Constitutional Court to carry out its mandate under the law. “Those who believe the decisions are wrong can seek redress in a court of law,” the CJ said.

The CJ, however, described the debate over the elections date as healthy but said it must be conducted with civility and within the margins of the law. “The law and the Constitution anticipate such disagreement and creates avenues of appeal to resolve them amicably.”

He added: “Nowhere is it acceptable to disparage the courts through name-calling and utterances that seek to undermine their authority. It is therefore, distressing that individuals who bear a special responsibility to uphold the Constitution because of their leadership role would appear to vilify the courts.”

Meanwhile, President Kibaki and Mr Odinga have never met to discuss the dissolution of the coalition government to set the stage for an election date, it emerged on Monday.

Sources said the President rejected an attempt by the PM to have the matter discussed in the Cabinet on grounds that the court had already ruled on the issue.

It also emerged that the government was yet to decide on whether to withdraw the Bill seeking to amend the Constitution and fix the election date on the third Monday of December in the fifth year.

Justice and Constitutional Affairs minister Mutula Kilonzo confirmed that the matter arose during the February 16 Cabinet meeting.

He added that this was a day after the PM told MPs in Parliament that they would decide on the date of the election because the matter was “too important” to be left to the discretion of him and the President.

“Since the court had already ruled on the issue, the President was of the opinion that the government should be guided by the court ruling, a position that was upheld by the Cabinet and was communicated to the public in the Cabinet brief that day,” said Mr Kilonzo.

A PPS brief on February 16 stated “Cabinet also resolved that the government will be guided by the court decision that ruled on the election date. Cabinet noted that the issue of the election date must be guided by the country’s level of preparedness, for a date that will guarantee a free, fair and credible election that sets the country on a path of transformation.”

Mr Odinga, during the PM’s question time in Parliament had also said that due to the expectations of Kenyans that the process be democratic, it was important that MPs be involved in setting the election date.

“We feel the election is too important to be left to the discretion of the principals but should involve the National Assembly. As such, we will be bringing a Bill to this House so that members can debate and participate in fixing the date of elections once and for all,” Mr Odinga said on February 15.

On Monday, Mr Kilonzo said that though he had indicated on Friday that he would seek Cabinet’s approval to withdraw the Constitutional Amendment Bill, he would allow the public to debate the matter further before making the decision.

MPs overseeing the implementation of the Constitution will meet this morning to discuss the March 4, 2013 date.

Mr Abdikadir Mohamed, the chairman of the Constitution Implementation Oversight Committee (CIOC), said his team would use a scheduled meeting with the Salaries and Remuneration Commission to discuss the election date “as an emergency issue.”

“Our hope is that we manage the issue in a prudent manner so that we avoid a situation where we end up with a contested election,” he said.

On January 13, judges Lenaola, Majanja and Ngugi said that the election would be held in 2013 after the end of Parliament’s term unless the two principals agreed to dissolve the National Accord in writing earlier. It ruled that if the coalition was disbanded, the IEBC would fix an election date within 60 days.

On Monday, Muslim and Christian religious leaders from the Coast asked Mr Kibaki and Mr Odinga to show leadership and reach consensus on an appropriate date for the elections.

United Methodist Church bishop Pius Kagwi said the differences between the top officials could easily trigger chaos in the country.

“If the two principals are for the good of the country then they need to agree on the election date to avert rising tension,” he said.

The Council of Imams and Preachers of Kenya (CIPK) organising secretary Sheikh Mohamed Khalifa called on Mr Kibaki and Mr Odinga to meet urgently and resolve the election date crisis.

“It is important for our top leaders to reach an agreement on the election date to diffuse the boiling political temperatures in the country,” he said.

Mombasa Anglican Church bishop Julius Kalu suggested that the life of Parliament be extended by seven months so that the General Election can be held in August next year.

“It is better for the poll to be held in August as it falls within the new Constitution statutes,” he said.

Mombasa Catholic bishop Boniface Lele opposed the suggestion that the poll be held in December.

“When the poll is held in December it will interfere with family unions and the marking of the day of the birth of our Lord Jesus Christ,” he explained.

Presidential aspirant Eugene Wamalwa challenged Mr Odinga to dissolve the coalition government to pave way for the next election.

Addressing ODM delegates from Nyamira and Kisii counties at the Kisii Sports Club on Sunday, Mr Kajwang said that he may mobilise Parliament to impeach Ahmed Isaack Hassan, the IEBC chairman, for overstepping his mandate. (READ: Raila insists on December elections)