Many people must be scratching their heads wondering why on earth Chief Justice Willy Mutunga is in a hot seat especially with Jubilee barely a few months after he led the Supreme Court in making a decision in the ruling coalition’s favor.
Some of the woes Chief Justice Mutunga is facing existed even before he took over at the Supreme Court but many are largely his own making.
The irony of this is that CJ Mutunga was supposed to lead a new, reformed judiciary or at least one on the path to greater reform.
Those who pushed for his appointment as Chief Justice argued that as an outsider with a civil society background, Mutunga would bring a breath of fresh air, new ideas, resolve and no strings attached to the very rotten judiciary we had then.
Ask anyone of those who so believed what they think of the Chief Justice now. You are likely to be hit with unprintable epithets even before you finish asking the question.
To be sure, it’s not an exaggeration or in bad faith to say Chief Justice Mutunga has gravely and extremely disappointed Kenyans in the way he has handled himself as Chief Justice and President of the Supreme Court.
He has at a minimum squandered all the goodwill Kenyans accorded him to do the right thing in reforming the judiciary. Therefore, the right thing for him to do now is to simply resign and give the country an opportunity to jump start the reforms that were underway when he was appointed. The reforms appear to be stalling with the ongoing power struggles within and outside the judiciary.
Along with the Chief Justice resigning, the Judicial Service Commission should be disbanded and reconstituted or entirely scrapped.
In fact, the latter should happen first, namely, the reconstitution or altogether the scrapping of the JSC. President Uhuru Kenyatta’s move to suspend the six commissioners was constitutional and and the court was wrong to overturn it.
If the evidence is half as bad as it’s been reported, then all of these commissioners should be sacked and the management and staffing of the Judiciary be completely overhauled.
Meanwhile, if Chief Justice Mutunga does the right thing and resigns, Deputy Chief Justice Kalpana Rawal can temporarily take over his duties while the JSC is either reconstituted or scrapped. Its work can be delegated to the administration arm of the Judiciary or shared elsewhere, including the appropriate select committees of the Senate or Parliament as the case maybe.
That being said, it should be noted that significant reforms have taken place in the Judiciary despite the mess it’s in now with the ongoing power struggles.
A good testament of this is this very JSC mess whereby a judge has, in fact, issued an injunction preventing an order by President Uhuru Kenyatta from being given effect. Ask yourself, would this have been possible during the late President Jomo Kenyatta’s time or even during former President Daniel Arap Moi’s reign?
The point is, yes, we have made great progress to be where we are in terms of judicial and governance reforms but more must be done if we are to come close to fully enjoying the fruits of independence.
However, these reforms can only continue to advance with the right people in key positions. We have the wrong person heading the judiciary and it’s for this reason he should resign or be replaced.
Re: Open Letter Concerning Nomination of Mr. Keriako Tobiko As DPP
Dear Hon. Members of Parliament:
I am compelled to write to you about the nomination of Mr. Keriako Tobiko as Deputy Public Prosecutor (DPP) for reasons below that I believe are shared by most, if not all Kenyans.
As members of Parliament, you have the unique role under our new Constitution of acting both as representatives of your individual constituencies, as well as providing real checks and balance against the other branches of government.
In other words, unlike in the past when your votes did not really matter as long as the President wanted things done a certain way, this has changed under the new Constitution which gives you real and significant authority to check the president or the judiciary’s exercise of their respective powers.
With this authority also comes the responsibility and expectation that you as both individuals and as body, use that authority to promote the interests of the people first, and yours or your respective parties’ interests last, if at all.
It of course goes without saying it is never a good thing to use the authority vested in you by the people for personal gain.
It is with this in mind, that I write to you in behalf of all Kenyans and urge you to reject the nomination of Mr. Keriako Tobiko as Deputy Public Prosecutor (DPP).
Although Mr. Tobiko’s name was sent to you for approval or rejection by the President upon consultation with the Prime Minister, and following recommendation by the Public Service Commission (PSC) which, through a special nomination panel, shortlisted and interviewed qualified candidates who applied for the position, Mr. Tobiko’s nomination should nonetheless be rejected for several reasons:
While everyone agrees the Judicial Service Commission (JSC) did a terrific job in vetting candidates for Chief Justice and Deputy Chief Justice and recommended two superb candidates for nomination in Dr. Willy Mutunga and Ms. Nancy Baraza, respectfully, PSC, even with the use of a special panel, did not rise to the same level of credibility and thoroughness in its vetting of the candidates.
For example, PSC forwarded to the president the names of 3 individuals, who were selected as finalists through this process for further consideration and nomination.
However, one of the individuals, Mr. Keriako Tobiko, has a cloud over his head that most Kenyans believe appointing him as DPP will be contrary to the letter and spirit of the new Constitution, particularly taking into account integrity requirements under Chapter Six.
It is the view of most Kenyans that PSC, through the special committee that vetted the candidates who applied, should not have recommended a person with such a cloud and the president should have certainly not forwarded Mr. Tobiko’s name for approval under these circumstances that have only come to light, after the interview and after the names were already forwarded to you for approval.
To be sure, there is no question Mr. Tobiko is academically and intellectually qualified to serve as our DPP; the question is whether he satisfies the requirements of Chapter Six of the Constitution.
Most Kenyans strongly believe he does not for a number of reasons, chief among them being information provided by, among others, Prof. Yash Ghai, one of the experts retained to advise the country on the new Constitution.
Prof. Ghai, according to the East African Standard Online alleges that Mr. Tobiko “engaged in a campaign to disrupt the work of the commission to prevent the drafting and adoption of the new constitution” when he was a commissioner at the Constitution of Kenya Review Commission (CKRC), including breach of confidentiality rules governing the commission.
This is a serious allegation that PSC should have at least investigated further, if Prof. Ghai provided it with this information as he says he did.
You certainly cannot have someone appointed to an office he did not want established to begin with, if Prof. Ghai allegation is true; it just makes no sense and thus the reason PSC should have at least vetted Mr. Tobiko more about this question and at best even included a vetted explanation why the nomination should go forward and considered, despite Prof. Ghai’s allegation.
The fact that this does not appear to have been done is troubling at best, given the desire to completely clean our judiciary system and reestablish its honor, integrity and trustworthiness in delivering justice according to the law, not according to who has the deeper wallet or even a wallet at all as we have come to know it.
If this was all the adverse information the special PSC commission considered and overlooked or did not consider at all, a timid case may be made to go forward with the nomination of Mr. Tobiko, but there is more:
According to the same paper, Mr Philip Murgor, who Mr Tobiko succeeded as current DPP, said “there was no way Mr Tobiko would be innocent of claims of conflict of interest in handling the Anglo Leasing case involving former PS Zakayo Cheruiyot.”
Former Local Government PS Sammy Kirui, for his part, told CIOC that Mr. Tobiko “used proxies to demand a Sh5 million bribe from him.”
According to the paper, Mr Kirui is facing three charges in connection with the fraudulent acquisition of cemetery land but the former PS claims Mr. Tobiko “added two counts after he failed to bribe him.”
Mr. Tobiko for his part, says these allegations are false and that Mr. Murgor has an ax to grind and ostensibly ditto as to Prof. Ghai.
That may as well be the case but, Honorable Members of Parliament, these are serious allegations which on their own weight, given the nature and character of those making the accusations, given the history of the judiciary, and particularly given JSC took the approach and has been loudly applauded for having done so and nominated someone, consistent with Chapter Six of the Constitution, who cannot be linked to any past or existing corruption to be appointed Chief Justice, CIOC should have at the minimum investigated these charges before clearing Mr. Tobiko’s name for a vote.
Having not done so, and the committee having essentially punted and sent Mr. Tobiko’s name to the floor on an evenly divided vote, you now as a full house have a choice of approving a candidate with a cloud over his head to hold this security tenured and critical position in the fight to end corruption and impunity, or reject it and give the president and the prime minister the opportunity to either have Mr. Tobiko vetted afresh, or submit a new nominee.
Rejection of the candidate is in most people’s view, the best and only option.
On a related issue, most of us know and have expressed concern about complications that have intermittently arisen in connection with implementation of the new Constitution, and there may as well be others in wait from those still bent on thwarting or delaying timely implementation of the Constitution, but we have faith and confidence a majority of you will in the end do the right thing in making sure the Constitution is implemented fully and according to schedule.
We pray for you as you individually or collectively decide on how to vote on whether to approve or reject the DPP nominee as well as for all other important deliberations, decisions, and votes you must undertake in the future that equally affect our country’s progress and development.
The ongoing public scrutiny of shortlisted candidates for Chief Justice and Deputy Chief Justice is an exercise which is long overdue and good for the country. It is a testament of how far we have come in recognizing the fact that transparency and accountability are not just words to be spat around without meaning. It is also one practical example of how gone are the days when the president handpicked and appointed people to these important offices without regard to qualification leading to the decay of institutions we must now revitalize and clean-up.
I must, however, say I was quite surprised the ghost of JM Kariuki came back to haunt one Justice Lee Muthoga who equally surprisingly had detailed recollection of names and information of this case he handled 40+ years ago. I think it was inappropriate to dig that far but having answered the questions, Justice Muthoga must have expected and deemed them not be other than the small grenades they are aimed at dashing his hopes of becoming the Chief Justice.
Be as it may be, we should nonetheless screen and appoint someone as Chief Justice who has the judicial temperament, vision and certainly positive reformist attributes to reform the judiciary, not a purist.
Justice Muthoga has not been the only victim of Judicial Service Commission (JSC)’s Abdulahi Ahmednasir, who has irritably albeit interestingly become a thorn in the flesh for these men and women who suddenly have found themselves forced to publicly explain the impossible: rulings without basis in law or fact.
Fending off sharp accusations from commissioner Ahmednasir that he was the “common denominator” in key cases Ahmednasir alleged were “fixed to serve State interests under the Moi regime” and the Court of Appeal and that the Court of Appeals where the justice now sits “dispenses justice on the basis of whims and bribery,” Justice Omollo struggled to maintain his calm but sought to inform the commission he was no man’s lap poodle: “I have earned my promotion not as a poodle of any individual,” the justice declared, “ I have never attached myself to any particular politician. My mind is not tunnelled.” The Justice lectured.
How is a mind “tunnelled,” you ask? Good question; my answer given the good justice’s response would be when a judge’s mind is either not working at all or if working doing so under the influence of cash and/or threat without regard to the law one is supposed to apply to reach an outcome desired by the one supplying the cash and/or threats or if applying the law, then doing so in a tortured manner so as to reach the outcome so desired by the one supplying the cash and/or threats.
Did Justice Omollo acquit himself well? I would say cautiously so. You will be hard put to find a single senior judge who served in the Moi era that was not forced one time or another to render a decision he or she otherwise would not have but for the connection of the case in some way with the Big Man.
Justice Samuel Bosire too, found himself invoking the same poodle defense in countering questions about handling the family law case involving the late lawyer S.M. Otieno in which he ruled in favor of Otieno’s family and against his widow, citing customary law which he still defended as having been the correct decision. Given this is the highlight of his grilling, one can conclude he has thus far had the better of the poodle defense therefore he may be that much closer to getting the nod.
The Reality TV saga goes but the final pick for the top post may be between these two justices, with Justice Kalpana Rawal looming above them in case neither is selected for reasons that surely would have to do with tribal considerations in which case Justice Rawal stands the next most plausible pick, if anything as a tribal compromise.
This is not to say the rest of the finalists are not fit to serve. They are but they cannot be selected for any number of reasons, not the least of which is my favorite and that is, they have not earned their stripes yet. I say this is my favorite because I truly believe in it and it is the same reason I maintain none of the presidential vying pack deserve to be elected other than Raila because they have not earned their stripes yet but Raila has has. I know a few of my friends this really annoys every time I say it but it is true and sometimes truth can be irritating or annoying. Ask any of the justices who are being grilled by JSC.
But that’s for another blog. Back to this one:
Notwithstanding my conclusion that either Justice Omollo or Justice Bosire is ahead of the pack and one of them will finish first, a viewer of Justice Omollo’s interview nonetheless posted the following opposite view to which I respond after the quote:”
“I got a chance to see the interview of Court of Appeal Judge Riaga Omollo on Citizen TV…This was a rare opportunity to see a man who was fronted by the ODM wing of Government, in particular PM Raila Odinga… Justice Riaga Omollo was everything that i did not expected such a person to be. He appeared to me a very tired Judge, who has spent all his life in the at the bar. He did not have the vigor, the energy, the right kind of mindset that is needed during this crucial reform period. His demeanor was pathetic. This man disappointed me. This is a person who belongs to the old generation of people who are wasted. He does not deserve that position.
I have not seen the interview with Justice Omollo you saw on Citizen TV but I am fairly confident there is someone else who has seen it and has the exact opposite view of Justice Omollo than the one you portray, namely, that Justice Omollo is energetic, sharp, articulate and has full command of the English language and the language of law.
These are the qualities that led to his quiet rise to the top at the Judiciary where he remains today and ditto for being the preferred natural successor to Gicheru as head of the Supreme Court and judiciary other than Justice Bosire, by those analyzing the existing pool of candidates objectively.
He was certainly not “fronted” by Raila in the sense you use that word here to suggest something sinister about Raila and others otherwise preferring Justice Omollo for the top seat at Judiciary. He was and still is one of the best candidates for the job.
The fact is, if it was strictly a question of merit, Justice Omolo would be an easy meritorious appointment to be our country’s Chief Justice. Ditto for Justice Bosire.
Unfortunately, however, tribal and slanted political considerations may sadly deny these fine jurists this opportunity to be our Chief Justice which they’re unquestionably qualified to be so appointed.
Let’s hope not and certainly let’s hope the new Chief Justice appointed is a true reformist, intellectual force and visionary to take our judiciary to the next and best level of reliability, accountability and competence much the same as any of the best in Africa and the rest of the world for that matter.