Petitions for judges’ removal an affront to judicial independence

Monday September 25 2017

Nyeri Town MP Ngunjiri Wambugu

Nyeri Town MP Ngunjiri Wambugu leaves Sagana State Lodge after a Mt Kenya region leaders' meeting with President Uhuru Kenyatta on September 15, 2017. The President asked him to withdraw the petition against Chief Justice David Maraga. PHOTO | JOSEPH KANYI | NATION MEDIA GROUP 

By NICHOLAS SUMBA
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Although the petition by Nyeri Town MP Wambugu Ngunjiri to the Judicial Service Commission (JSC) against Chief Justice David Maraga was withdrawn, its main aim had been achieved: The petitioner received the attention and relevance that he sought, even catching the eye of President Uhuru Kenyatta.

The accusations against Supreme Court Judges Philomena Mwilu and Isaac Lenaola are also meant to gain political mileage out of what even the petitioner well knew were frivolous petitions. They are politically motivated and purely meant to intimidate the judges.

Some advocates also chose to play to the gallery, terming the court’s nullification of the presidential election political when statements made after the full judgment amounted to nothing but threats. They have persistently continued to prosecute and persecute the judges on social media.

PARTISAN

Lawyers have openly become partisan even in the face of crude attacks directed at judges while politicians have turned into legal experts, choosing to analyse the decision in whichever biased way.

Leading the park is Elgeyo-Marakwet Senator Kipchumba Murkomen, who has threatened the judges with unspecified action in a veiled threat widely circulated on social media asking everybody to mark his words on the next course of action. But, despite his contempt for the court, the senator still camouflages himself and attends the court donning a gown and carrying himself as a court officer, a young assisting advocate.

The Law Society of Kenya (LSK) should confine the likes of Murkomen to where they belong — the political arena — by initiating disciplinary action against them.

It should also rethink whether a certain senior counsel who only believes that every case he handles must be won by intimidation and threats or judges are demonised and ostracised should continue holding such a revered title.

INTIMIDATE

It is unfair to persistently and continuously threaten, intimidate and even insult judges merely for exercising their constitutional obligation. Or were they only expected to dismiss the petition?

The common narrative has been about the will of the people having been subverted. Nobody has chosen to listen to the fact that the much-talked-about figures were a product of a process that had to be verified by computation of the famous Forms 34A, 34B and 34C.

The figures could not have been imported into the Independent Electoral and Boundaries Commission (IEBC) tallying centre without the documents — some of which the court said could not be authenticated as they were photocopies, had no serial numbers, were not signed ... There could be a reasonable conclusion that they could have emanated from elsewhere.

Judges are not politicians but judicial officers who decide cases on nothing other than the evidence placed before them.

We are now being told that the judges should have ordered for the recount of ballot papers in Kasarani stadium when, ideally, the respondents objected to every application by the petitioner for access to the server or production and auditing of Forms 34A and 34B.

JUDGES THREATENED

Never before in recent times in Kenya have judges been so vilified, threatened, abused, ridiculed and ostracised by the powerful, high and mighty and also every Tom, Dick and Harry as since the delivery of the verdict on the petition.

Attempts at amending the Constitution to clip the powers of the court simply because of the ‘bad’ verdict will be the slow start to the opening up to the rule of the jungle and a free-for-all, lawless, chaotic society where impunity and anarchy will take the centre stage.

The principles of democracy are such that the majority should have their way and the minority their say. Jubilee Party’s “super tyranny of numbers” in Parliament should not be abused to kill the hard-won progressive constitutional democracy in our beloved land.

 

Mr Sumba is an advocate of the High Court of Kenya. [email protected]