Social media has been preparing the ground for a legal challenge on the capacity of Chief Justice Willy Mutunga to sit as a member of the Supreme Court in the petitions filed by Cord leader Raila Odinga and the civil society challenging the declaration of Uhuru Kenyatta as president of Kenya.
Dann Mwangi mainstreamed this issue through his well-argued opinion in The Standard of March 20 as to why Dr Mutunga should not sit on the bench in the two petitions.
He cited Miguna Miguna’s book, Kidneys for the King, in which, according to Miguna, Dr Mutunga discloses the view that Kenya’s progressive forces in the civil society and the corporate sector should unite behind the candidacy of the Prime Minister in elections then scheduled for 2012.
Mr Mwangi also refers to the biography of Mr Odinga by Nigerian writer Babafemi Badejo in which, again, Dr Mutunga is quoted as admiring the Prime Minister’s leadership, and expressing the hope that Kenyans can unite behind his presidential bid.
As a citizen and a voter, Dr Mutunga, just like the other judges that can sit on the petition, has his political preferences.
That is why, like all other citizens, including the judges in the Supreme Court, he may have voted in the elections well knowing that the results may be the subject of a contest before the Supreme Court.
The difference between Dr Mutunga and the other members of the Supreme Court is that even though they may all have personal political preferences, these have not been verbally expressed and are, therefore, not known.
His background in civil society and in the donor community, where he was a significant thought leader, means that he will have documented opinions on many different subjects.
Without having spoken about their political preferences, the other judges may have been involved in past conduct which, like the views now attributed to Dr Mutunga, can lead to a reasonable doubt as to the existence of personal political preferences, or close association with any of the litigants.
The most glaring example would be Justice Njoki Ndung’u.
She served as a high profile Nominated Member of Parliament in the Ninth Parliament, a fact that exposed her to direct political participation and association.
She was in the PNU campaign in 2007, where she worked with Mr Uhuru Kenyatta.
As she sits to hear these petitions, her former colleagues in politics, on all sides, may have expectations that she understands their side and would be willing to rule in their favour.
However, as a judge who has taken a solemn oath of office which requires her to do justice without favour or ill-will, Justice Ndung’u is expected to transcend her previous political associations and be impartial in this most political of cases.
It would be unreasonable, therefore, to raise the fact that she has a political background as a disqualifying factor.
The suitability of other members of the court, based on known past professional, personal or family associations with some of the parties before court, has also been questioned on-line.
If this issue is raised in court, there will be any number of reasons as to why a large part of the bench cannot sit in the petition.
By law, the quorum for a properly constituted bench is five judges.
Currently, Deputy Chief Justice-designate Justice Kalpana Rawal cannot sit, as her appointment has not been approved by Parliament. That leaves six eligible judges.
If Dr Mutunga is asked to disqualify himself, that would leave five judges. If, because of known past political, professional or private associations, any of the remaining judges is unable to sit, the court will fail to achieve a quorum.
Once a judge goes through the very public appointment process, he is deemed to have transcended these past associations.
I am confident that the Supreme Court understands the importance for the country, and for the court itself, of the cases before them and that the judges will act only in accordance with the law and the evidence, and their consciences.
The writer is the executive director of ICJ-Kenya. [email protected]