The wave of attacks by the Jubilee administration on the Judiciary could intensify this week with individual judges and court officials likely to be singled out in petitions to remove them, the Sunday Nation has learnt.
Judiciary has had little space to breathe since the Supreme Court nullified the August 8 presidential election and the rough ride has continued in recent weeks following a series of High Court rulings that some government officials and Jubilee politicians perceive as “favouring” the opposition.
On Saturday, Jubilee Secretary-General Raphael Tuju stood by a hard-hitting letter he sent to Chief Justice David Maraga, saying it was time for the Supreme Court to come clean on the judgment that overturned President Uhuru Kenyatta’s win.
“If you examine the judgments that have been rendered by High Court judges regarding election petitions, there is a clear pattern: High Court judges have shelved the Supreme Court judgment of September 1 as a precedence.
"The Supreme Court judges should examine their conscience and do an internal audit on how they ended with such a decision,” he said.
He said the Supreme Court judges should admit that their judgment was wrong “and Kenyans will forgive them”.
“The judges made a political decision that allowed the opposition to play politics with that decision by refusing to contest the subsequent presidential election. Had they envisaged the way things turned out they probably would not have entered the political arena,” Mr Tuju said.
But on Friday, the Kenya Magistrates and Judges Association said attacks on the Judiciary are unwarranted and it is important to obey court orders.
“The membership of Kenya Judges and Magistrates Association is resolute that we shall uphold the rule of law, steadfastly defend the Constitution and diligently dispense justice without fear or favour,” secretary-general Derrick Kuto said.
The association warned the country could plunge into chaos “when there is disregard of court orders”.
But at the end of a week in which Nyeri Town MP Ngunjiri Wambugu has asked for an explanation from the Judicial Service Commission on why his petition to remove Chief Justice Maraga last year was thrown out, similar moves appear to be in the works in the coming days targeting judges who are seen to be independent minded.
The attacks have also continued at political functions.
Jubilee leaders in Tharaka-Nithi, led by Governor Muthomi Njuki, have, for example, accused the Judiciary of being indifferent to the opposition’s illegal activities.
Mr Njuki, together with MPs Kareke Mbiuki (Maara) and Patrick Munene (Chuka/Igambang’ombe), said courts have been reversing all the decisions made by government.
The onslaught on the Judiciary started soon after the Supreme Court nullified the presidential election when an agitated President Uhuru Kenyatta promised to deal with the Judiciary.
“We shall revisit this thing. We clearly have a problem. Who even elected you? Were you? We have a problem and we must fix it,” the President said.
True to that, there have been systematic attacks with Jubilee and its surrogates going all out to humiliate individual officers and the institution, as the ruling party tries all within its power to weaken the Judiciary, the only institution that so far has relatively managed to insulate itself from external interference.
THREAT TO JUDGES
When Mr Tuju fired a personal letter at the Chief Justice accusing him of “open bias”, it was not an innocent or isolated case but one in a series.
It started soon after the nullification of the presidential election on September 1 when surrogates of the ruling party started flooding the Judicial Service Commission with petitions against the Supreme Court judges led by Chief Justice David Maraga, Deputy Chief Justice Philomena Mwilu and Justice Isaac Lenaola.
Other than the petitions filed last year, there was mudslinging of the individual judges, branding them wakora (crooks), direct threats to the lives of judges, and with support from some Judiciary insiders, erecting barriers to ensure that the Supreme Court does not sit on the eve of the repeat of the presidential election on October 26.
The latest onslaught has taken the form of recent personnel changes at the 11-member JSC as Jubilee moves to have a grip on the commission and influence its decision-making process.
The JSC has the final say on who becomes Chief Justice and all other judges and magistrates and with a looming retirement of several judges, President Kenyatta’s recent appointments to the commission reveal a well calculated move to have it firmly under Executive control.
The current membership of JSC has Mr Maraga as the chairperson, Deputy Chief Justice Philomena Mwilu representing the Supreme Court judges, Justices Mohamed Warsame and Aggrey Muchelule representing Court of Appeal and High Court respectively, and Prof Tom Ojienda and Mercy Deche as representatives of the Law Society of Kenya.
President Kenyatta has also nominated former Kenyatta University Vice-Chancellor Olive Mugenda, former Agriculture Cabinet Secretary Felix Koskei and Public Service Commissioner Patrick Gichohi, who previously served as a clerk of the National Assembly, to the JSC as the ruling party expands its control of the commission.
Once formally appointed, nominee for position of Attorney-General Justice Kihara Kariuki will also join the ranks of those who will be doing the Executive’s bidding in the JSC.
Among the tasks of the commission is the recruitment of judges and magistrates as well as investigations into the conduct of judicial officers and recommending those found unfit.
Apart from CJ Maraga, Supreme Court Judge Jackton Ojwang’ is set to retire before the 2022 General Election.
With the current configuration of the commission, Jubilee could have cast its sights into the future with the aim of getting a compliant Supreme Court just before the elections.
Further, the Court of Appeal has about 10 positions to be filled after several judges retired last year.
COURT OF APPEAL
Court of Appeal judges John Mwera, Anyara Emukule, Festus Azangalala and GBM Kariuki retired leaving the court with only 20 judges while five others are between 65 and 69 years, meaning that more judges are set to retire in the next three years.
As well as the recent changes to the JSC composition, Mr Tuju’s letter, according to some, was condescending if not threatening the Chief Justice.
“Raphael Tuju. Your letter to CJ Maraga reflects the arrogance of political power and utter disrespect for the institution of the CJ as head of the judiciary, and the institutions he heads, namely, the JSC, NCAJ (National Council on Administration of Justice), and NCLR (National Council for Law Reporting). Your complaint should have been addressed to OJO (Office of Judiciary Ombudsperson),” former Chief Justice Dr Willy Mutunga tweeted.
In the letter, Mr Tuju had accused the CJ of “bias, double standards, impunity and poor leadership on the part of the Judiciary” and proceeded to cite eight instances he claimed the Judiciary has been biased.
“Independence of the Judiciary, Executive and Parliament must be put in context.
"Independence cannot exclude another definition of relations that is referred to as inter-dependence. It will require mature leadership of all the players and most importantly from you too, Mr Chief Justice,” Mr Tuju had stated in the letter.
Interior Cabinet Secretary Fred Matiang’i last week said that there is a need for a “national conversation about the state of the Judiciary”.
The Executive has repeatedly said that the Judiciary has been giving rulings detrimental to the Executive’s agenda while turning a blind eye to excesses by the opposition coalition, Nasa.
By Walter Menya, Wanjohi Githae, Sam Kiplagat and Alex Njeru