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Chief Justice Willy Mutunga Should Resign

Mutunga.Mess

In my column this weekend Chief Justice Mutunga Should Resign I start making the case why the CJ should resign or be replaced for the good of the judiciary and country.

Excerpts:

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.

 
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Posted by on December 7, 2013 in Law, Politics

 

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Likely Scenarios In Case of Uhuru, Ruto Conviction

Ruto_and_UK

In Likely Scenarios In Case of Uhuru, Ruto Conviction published in the Star today, I examine the question of what will happen were either or both Uhuru and Ruto were to be convicted at the Hague where they face the very serious crimes against humanity.

Excerpt:

This, then, would be the scenario in which the duo is convicted, a petition is filed challenging their holding office under such circumstances and the Supreme Court renders a decision with a view of redeeming itself from the intellectually shallow and embarrassing decision in the Raila and AfriCog decisions.

Were the circumstances to be the same but the Supreme Court wished not to redeem itself but to dig itself deeper into where it finds itself today, the court will simply hold that such a challenge is premature as those convicted would appeal.

The court would cite the constitution itself which provides that the integrity provisions do not come into play until one has exhausted all appeals.

Their decision will be arguably in sound legal footing except it would infuriate even more and create more tensions. There would be no telling what the outcome would be short of violence, not the least being a thirst to “throw out the bums” as the Americans would say. Interesting days lie ahead, indeed.

 
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Posted by on June 8, 2013 in Law, Politics

 

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Chief Justice Is Wrong In Threatening Arrest Of Those Criticizing Him and The Supreme Court

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According to the Standard Online, Chief Justice Willy Mutunga has denied claims that he was bribed during petitions that challenged the election of President Uhuru Kenyatta.

In a post on his Facebook page, the CJ said he has been hurt by the allegation and said he would order the arrest of anyone who tries to hurt him.

“For me the most hurtful allegation was that I had been bribed in the Presidential Petition. I did not know where to turn. I have never been offered a bribe in my life,” he stated.

He challenged those attacking the judiciary to petition for their removal from office by the Judicial Service Commission.

He stated: “If you have any evidence of our wrong doing the Constitution under its Article 168 allows you to petition the Judicial Service Commission for our removal. And if you do not have such evidence then give us justice, treat us as family, compatriots and fellow human beings!”

The CJ said the judiciary, especially the Supreme Court has recently been under attacked by Kenyans in what he termed as “slander, libel, and outright indecent, vulgar, and unacceptable abuses.”

He said such attacks were unwarranted and hurtful to members of the judiciary and their families.

“We are human beings and we hurt, too. We have families that are hurting because of these attacks,” said the CJ saying the Judiciary demands from Kenyans the justice that they demand from the Judiciary.

Several things can be said about what the CJ has said.

First of all let this writer make it clear he does not believe the CJ himself was bribed; his belief is the CJ was threatened with removal from office even if Uhuru did not become president because Jubilee has the majority in both houses and what votes they would need to cross the constitutional threshold to impeach him they can buy or coerce.

One can therefore understand why the CJ will go along with a decision even he surely must agree flies in the face of facts and the reality of what happened in the 2013 elections.

Understanding, however, doesn’t make the CJ innocent of failure to deliver justice in a fair, unbiased and impartial manner as a justice is expected to do neither does it make it any better than being bribed for wrong is wrong and the CJ along with his other justices in the court got the decision wrong and contrary to the law and facts for which they must remain judged accordingly.

If there was any doubts as to the wrongness of the decision and how it lacked any basis in fact or law, that doubt was removed when the court issued an opinion few will disagree is intellectually shallow and an embarrassment to the court itself and country.

That being the case, one can expect people without any rational answer for the court’s shocking decision to come up with their own rationalizations and explanations to try and make sense of it even when one cannot.

Having made the bed, the court must lie on it.

As to CJ threatening to “direct” that anyone saying he was bribed to be arrested, that’s another shocker!

Does the CJ not know something called freedom of speech guaranteed under the very constitution he was not only sworn to uphold but to lead in upholding?

Where is the criminality in people expressing their views so long as they are not deemed or can be proven to be hate speech?

The CJ, like anyone else, can go to court and sue for slander and libel but good luck suing for “outright indecent, vulgar, and unacceptable abuses” and given he is a public figure for which there is a higher standard of proof and often hard to prove case for slander and libel, good luck on that, too.

When the CJ invites those with evidence of wrongdoing on his part to go to court, he forgets this is the court the very same people know justice cannot ultimately not be found on matters such as this because they believe the court was wrongly influenced to reach the decision they did in in dismissing Raila and AfriCog’s petitions so it’s futile to go to the same court seeking justice for criticizing or condemning the same wrongness.

The justices may be hurting from the criticism but the country is hurting even more from their decision which has destroyed at least a majority of the country’s faith and belief in the Supreme Court’s impartiality, fairness and competence it’ll take years, if not decades for the Court to regain that faith and confidence.

Update:

This blog is based on reporting on the Facebook post by the Chief Justice. Another reporting on the same post says as regards having people arrested:

“I have no doubt in my mind that anybody who dares offer me a bribe, regardless of what status, would be the first one I arrest under the Constitution and the laws of this land.”

The CJ is also quoted in this version as having posted as to being slandered or defamed:

I do not believe I should sue fellow Kenyans in defamation.  All I can demand from Kenyans in justice that they demand of me and the Judiciary I head.

That being the case, references to these two issue in the original version of this blog should be read and understood from this probably updated post by the CJ.

 
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Posted by on April 29, 2013 in Law, Politics

 

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The Supreme Court Opinion Is Intellectually Shallow, A Sham and Embarrassment To The Country Part II

Supreme Court Justices

In More Reasons Why Supreme Court Ruling Is Shameful published in the Star today, I continue my analysis of the unfortunate Supreme Court opinion attempting to justify dismissal of former Prime Minister Raila Odinga and AfriCog’s petitions which as this series clearly shows was an opinion few will disagree is intellectually shallow, a sham and embarrassment to the court itself and country.

This is not an assertion made lightly or without clear thinking and analysis of the opinion objectively but I have yet to find anyone who can make the case this is not the case.

That being the case then this must be the case the question is, what next?

What should be the take-away from all of this, especially given this unfortunate and embarrassing decision?

That will be answered in Part III and the final part of this series.

 
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Posted by on April 27, 2013 in Law, Politics

 

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2nd Update: Why It’s Wrong For Chief Justice To Attend Miguna Book Launch

Supreme Court of Kenya

I have received comments and even read elsewhere in other Kenyan fora people saying there is nothing wrong with the Chief Justice being a guest of honor for Miguna in his book launch.

Those taking this view argue that the Chief Justice has the right to freely associate and so does Miguna, which is true but they are all missing the point.

The constitution which guarantees us all freedom to associate also prescribes State Officers from so freely associating, otherwise, we might as well accept the argument it would be proper for our Chief Officers to freely associate with prostitutes or engage in drunken stupors and so on.

The fact is, there are certain things our public officers, especially at the level of Chief Justice must not engage in as they otherwise would if they were not state officers.

The relevant part of Chapter Six states as follows with respect to State Officers of which the Chief Justice is one:

75. (1) A State officer shall behave, whether in public and official
life, in private life, or in association with other persons, in a manner
that avoids—
(a) any conflict between personal interests and public or official
duties;
(b) compromising any public or official interest in favour of a
personal interest; or
(c) demeaning the office the officer holds.

Can a case be made that the CJ’s obligation to his personal friend to attend this function is in conflict with his role as Chief Justice?

Can a case be made that by attending the book launch of a personal friend and author of a book that has been touted as the mother of all punches to knock Raila out of the presidential run puts the Chief Justice in a compromised position?

Can a case be made that Dr. Willy Mutunga’s attending the book launch demeans the office of Chief Justice?

These are questions that must be asked and answered [i]objectively[/i], not with emotions and how one answers them cannot be and must not be seen from their partisan perspective for some times we all must rise above politics and see things from the perspective of what is good for our country as a whole.

A simple test to determine this is simply asking oneself is this something that brings us together as a nation or one that divides for surely there must be something we all as Kenyans must agree to see the same way otherwise we are doomed.

Politicians must ask themselves the same question ditto for State Officers but the Chief Justice, the President/PM more so than everyone else and were the Chief Justice to ask himself is what he contemplates to do something that brings us together as a nation or one that divides us, he would obviously have to agree it’s the latter and not the former which means he shouldn’t engage in such conduct for the sake of the office he holds.

Conversely, if the Chief Justice thumbs his nose on everyone asking him not to attend this event and goes ahead with it, then he has to know this will not be without consequence even if that is merely the creation of doubt in people’s minds that his judgment is wanting and that cannot be anything worth the risk.

Another way to look at this is even more simpler: If you don’t want to be part of a controversy, stay away from it.

Miguna is obviously a controversial figure and for the Chief Justice to dive in and join him in the controversy says more about the Chief Justice than it does about Miguna who has done nothing wrong to invite him to be the guest of honor in his book launch; all of us would do the same thing, but not all of us would readily accept the invitation for some of us are of the view doing so is inappropriate and contrary to Chapter Six of our constitution.

 
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Posted by on June 29, 2012 in Law, Politics

 

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Why Its Wrong For Chief Justice Willy Mutunga To Attend Miguna Miguna’s Book Launch: An Update

Supreme Court of Kenya

I have it from an impeccable source that several judicial colleagues of the Chief Justice have actually asked him not to attend the event but, according to my source, the CJ “has his own mind,” which basically means to me his mind is made up and he’s blowing everybody off on this and that would be very, very unfortunate, if it’s, in fact, the case.

My take on this is, let those who care about judicial reforms and establishing and maintaining high integrity as in the spirit of the new political dispensation and freedom continue to put pressure on the Chief Justice by visiting the Supreme Court website and simply sending a message the Chief Justice should not attend Miguna’s book launch as it would bring disrepute to not only the Supreme Court, but the entire judiciary.

As noted in the blog, first, let’s all remove our partisan hats and look at this as a Kenyan, not political issue.

Would you like to have someone as our Chief Justice entrusted with the critical responsibility to lead our judiciary in a new direction of reform to be embroiled in defending the appropriateness of attending some nondescript book by a friend who has clearly staked his position relative to Raila in the presidential race?

What does that say about our Chief Justice and his ability to be fair and impartial, let alone his ability to effectively lead the judiciary if he is deliberately thumbing his nose at his colleagues who are urging him not to attend the Miguna book launch for fear and rightly so that such high profile gesture would forever cast a shadow over the CJ and the entire judiciary?

Is there any doubt in anyone’s mind who critically thinks about this that people would rightly and easily start to entertain the notions that the CJ is on to the wrong track in how he is handling himself vz the demands of that office in taking the judiciary in a new, reformed direction?

When the CJ visited Moi soon after his being sworn, there was almost no reaction from anyone save for some of us due to willful suspension of disbelief because most people were simply still awash with the aura and happiness of having gotten rid of the top echelon of the judiciary and infused new blood in the system and many even simply overlooked the very bad reason given as an explanation by the CJ.

Having come from outside the judiciary to take a seat at the highest possible place in the judiciary and let alone leading it, the CJ has an extraordinary expectation and requirement that he treads rather very carefully both in how he manages the judicial affairs as well as how he relates to his colleagues throughout the judiciary such that he does not give any of them reason to thwart his efforts to reform the system, which they can.

Ignoring those from the bench who have asked him not to attend this book launch by essentially a disgruntled former employee of the PM’s office or even ignoring those who have not yet asked him not to but would if they had the opportunity to is not exactly the way to go in light of this delicate tread the CJ must carefully tread on.

I could go on but you get the drift so just log on to the Supreme Court website and let your voice be heard in opposition to this troubling decision by the Chief Justice that has nothing to do with what he should be honed in and exclusively so and that is, guiding the judiciary in these critical phase of its new life.

Again, in the larger scheme of things, the Chief Justice thumbing his nose on his colleagues and attending a nondescript event like this other than the excitement its eliciting among those who can’t stand Raila may look trivial, but the real tragedy shall be in the amount of judicial capital and goodwill the Chief Justice would have lost at the time he needs every bit of it to bring about the necessary reforms at judiciary.

That’s no small price for all of us to pay but the Chief Justice has it still within him to save himself and ultimately all of us the loss.

 
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Posted by on June 28, 2012 in Law, Politics

 

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The Reaction to Deputy Chief Justice Incident Is Overblown and A Distraction, Intentional or Otherwise

Upon reading the story about the incident involving Deputy Chief Justice Nancy Baraza, I posted the following comment on Standard Online: “This is an unfortunate situation. While giving the Deputy CJ the benefit of doubt and see things in the light she urges that we do, it still leaves her with at least a diminished level of goodwill that came with her appointment. She will unfortunately henceforth be viewed in light of this incident as having poor judgment judges are NOT supposed to have at ANYTIME!””

Following that post, I saw another blogger calling for DCJ Baraza’s head and I responded to him as follows:

I fully understand where you are coming from but, let me share a couple of thoughts why I don’t think calling for her resignation is a good thing.

Those who read my blog during the appointment know that I was opposed to her appointment as Deputy CJ not so much for lack of credentials or qualification but because I thought it would be an overload to have both the CJ and deputy who are total outsiders and non-judges.

This, I argued, was to say there was not a single judge in the system who could fit the shoe and we all know that’s not the case, rotten as the judiciary has been. I also argued such an overload at the top with outsiders will demoralize the dejected judges with unwanted shenanigans we are yet to see.

It is with that background I have commented on the Standard story saying it’s unfortunate this incident occurred and that we should all give DCJ Baraza the benefit of doubt and try to understand the incident from the perspective she urges.

However, as I also say in that comment, Baraza will henceforth be seen as a judge with poor judgment judges are NOT supposed to have at ANYTIME.

That’s what is unfortunate.

As to the incident itself, I am getting a slightly different version from a source who is privy to what at least one person who saw the incident unravel says happened and the investigation will confirm that.

So, I would urge people to give our DCJ a break on this.

I have since made other comments elsewhere, including the following:

In response to a blogger taking the same position I have, but adding an element of this possibly having been a set-up (a position I have not), I said the following:

I agree with you and point to my post last night about this incident, based on my own sourcing suggesting there is more to this story than meets the eye, even though I am lead to believe and noted so that DCJ Baraza did act uncharacteristically of her or someone in her status–notwithstanding the provocation you allude to. In her statement, she referred to things happening raising concern for her safety which all of us as Kenyans must be on her side, regardless of what happened in this incident.

Those rushing to condemn her are not being fair.

Let all the facts be known before reaching any conclusion beyond the obvious and that is, on the face of it, she did not react prudently consistent with who she is, given the circumstances she was met with at the market entrance.

And I say this as one of those who did not support her appointment as DCJ for the reasons I have previously stated.

….

In response to someone saying those of us calling for caution and not over-reacting to this story to shove our views “you know where,” I responded, thus,

Speaking for myself, neither you nor I were there but I have based my observations and reporting on a source who is privy to what someone who was actually there saw when the incident unraveled.

My source is actually a reporter and I can tell you based on what he knows, the reporting is not accurate and this is just going by what happened on the scene, not whatever else maybe happening elsewhere that DCJ Baraza herself alluded to and I am not even sure that’s the same thing Churchill is alluding to.

However, whatever that is, I have no information or knowledge of it and neither am I passing it as an excuse for what happened, which I have said is unfortunate in that it shows poor judgment on the part of Baraza and will likely always influence people’s thinking of her and whatever she does hereon.

All I am saying is let not people be in hurry to condemn or call for Baraza’s head without knowing all the facts.

The incident was not as it’s been reported or is being portrayed but I am sure all this will be cleared up sooner than later.

Another netter in some way agreed with me and said,

“She [Baraza] behaved arrogantly and that is it.  The only thing I can say is that at least she had the decency to apologize

And to the netter, I commented,

This is what I have been reporting the investigation will conclude, based on information from at least one bystander with no ax to grind. So, as I have said many times now, let’s condemn her for such and nothing more. She is not the first VIP person to act that way in public neither will she be the last.

Here in the US, the former Speaker of the House and now one with a pie on his face as he tries to seek the Republican nomination for president he will not get, having risen in the polls to the top, only to crush and burn severely in Iowa yesterday threw tantrums when asked to sit on the back of the presidential jet, Airforce One instead of next to or across from then president Bill Clinton.

Indeed, he took this snub so far with his monumental arrogance, he decided to refuse to deal in good faith with the president in then ongoing budget negotiations even to the point of shutting down the government for lack of money to spend.

Talk about the height of arrogance, you can’t find any more than that.

But no one called for his head, even though Republicans lost many seats in ensuing elections owing to that shut-down orchestrated by the arrogant Newt Gingrich.

DCJ need only show henceforth she is not that arrogant and this was an aberration and all will be okay for there is nothing more to this than an incident she badly reacted to, whether or not she had reason to.

She did not show any weapon to anyone as the investigation will conclude, again, based on my source.

I have now seen a statement issued by the Chief Justice about this incident and have posted the following comment on Standard Online:

While everything the CJ has said about this incident is all good and one can say goes without saying, the CJ should, in fact, not have injected himself into this story which is basically an investigation in progress. Neither is it necessary to initiate his own investigation as if he has no confidence our police CID can competently investigate this simple incident which is an embarrassment at worst.

These, then, are all my thoughts on this issue that I hope is brought to a conclusion promptly and not made what others are trying to make it and it’s not, compared to issues we need to focus on and address, like holding people accountable for the massive corruption many have engaged in with impunity.

Distracting us all to focus on an embarrassing but insignificant incident like this suits the masters of corruption just fine because they can point to it and tell you to be worked over it while they are enjoying their loot.

Rather than expending a dime’s worth of time investigating this incident, the Chief Justice should let the police and CID do their jobs and focus with a razor beam on reforming the judiciary so that at least some of these thieves can be held accountable for the sins they have committed against the country in their looting.

Peace, Unity and Let’s Focus On the Right Issues

Omwenga

 
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Posted by on January 5, 2012 in Law, Politics

 

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Chief Justice Willy Mutunga and The Judiciary Must Stay Above Politics

Chief Justice Dr. Willy Mutunga is once again having some of us scratching our heads by what he is saying or more precisely, how is going about saying it.

While no one can disagree with what the CJ is saying about ministers upholding the constitution or resigning, I find it wholly wanting that he has seen it fit to do so in a manner that appears and can, in fact, be said be an injection of himself and our courts into politics which is as bad as having no independent judiciary to begin with; of what difference is it if the CJ is another politician?

Would this not lead us to yet another era of blurred or no distinction between the politicians and the robed ones who are supposed to make sure the politicians are put in check and respect the law?

It would be prudent for our CJ to use the powers of his office and court to implement real change in the judiciary and rule of law in Kenya, not the media for if he chooses the latter as his primary vehicle, the politicians, especially those who would prefer status quo would reduce him to ridicule in no time and before one blinks, the court will be held to the same low esteem it’s been rather than bringing itself above politics and establishing itself as a noble place of awe and respect.

I am not here suggesting that the CJ should keep quiet and not say a word outside the bench or his chambers; far from it.

What I am suggesting is, the CJ should be selective and make public utterances outside his traditional avenues, namely, outside of court opinions and decisions only when it’s necessary to do so to explain the court’s judicial philosophy or policies but not politics.

The role of the court and judges in society is to interpret and apply the law made by politicians with minimal political considerations and an example of the latter would be such as the Al Bashir issue in which case I have suggested Kenyan courts should defer to the Executive on the basis of the “political question” or “unjusticiability” doctrines both of which hold there are certain issues better left for the politicians to resolve in the national interest.

The CJ will, in fact, accomplish and be more effective in both laying a firm foundation for the new court and effecting the desired reforms in the judiciary by simply focusing on carrying out the reforms, while ensuring that the court renders sound, well-reasoned decisions and opinions grounded in the constitution which would speak volumes and go far in reforming the judiciary than what the CJ can say in the media.

As the saying goes, sometimes actions speak louder than words and therein lies the conundrum in that the CJ feels compelled to say something about the court’s independence because, I assume, he believes if he doesn’t, the politicians will tramp all over it but this need not be.

Although one can assume there are some politicians out there who might still be living in the past in believing the new court and others can be manipulated or dictated to by the Executive, this is just not possible anymore and the CJ need not even say that; let them try to and he can easily show them who the CJ and the new court is in the new political order but there need not be a public showdown for that.

In sum, the CJ and the new court has a lot of goodwill more akin to the goodwill Kibaki was given in 2002.

Let the CJ not squander the goodwill to the detriment of Kenyans and the best way to do that, is to get more busy reforming the judiciary and not giving speeches and lectures on obvious matters it doesn’t need a CJ to tell us as even a simple Press Release by the court’s PR person can do the same thing while leaving the CJ above politics.

I know the CJ means good and has good intentions but he needs to understand being a CJ is unlike any position in government in that the less the politics in it, the better and not vice versa.

 
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Posted by on December 7, 2011 in Law, Politics

 

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Parliament’s Historic Vetting of Constitutional Office Nominees And Lessons Learned

I watched earlier this afternoon live the somewhat contentious debate in Parliament regarding the CIOC report on the nomination of Dr. Willy Mutunga, Ms. Nancy Baraza and Mr. Keriako Tobiko as Chief Justice, Deputy Chief Justice and Director of Public Prosecutions, respectfully, and have the following observations:

We are first of all witnessing history in all of these happenings since passage of the new Constitution so, as Hon. James Orengo and Hon. Abdikadir reminded the members, the debate about these nominations was historic and so was the vote on the motion to approve the nominations.

Our children and their offspring will never know, other than reading in history books, that our Parliament was once before just rubber stamp for what the President wanted done.

That’s all changed now and so much the better for our country.

Having said that, however, the debate and vote on the nominees has revealed something of a surprise to me and that is, Parliament is proceeding with the exercise of its newly reconstituted powers without aligning its procedural rules with the new Constitution, with the net outcome being its voting and approving of Mr. Tobiko can be persuasively argued to be at least inconsistent with the new Constitution.

More specifically, in proceeding to approve the nomination of Mr. Tobiko in the manner it has, Parliament has essentially defied the requirements of Chapter Six of the Constitution, for all practical purposes and intent.

First, it goes without saying, and one need not be a genius to conclude it is a mistake to bundle three candidates in one basket and ask Parliament to accept none or reject all.

This just does not make sense at all, unless, of course, it was the specifically intended that way, in which case the latter would have been and has turned out to be a brilliant scheme, if rejecting or approving all three candidates as bundle was the objective.

Either way, this procedure of vetting and voting on the nominees in Parliament was inappropriate and amounts to the same thing as the tactics past presidents utilized in shoving down our collective throats, people the public did not want serving in these important positions, less worse only in the appreciable and saving difference those previously appointed by fiat were wholly unqualified in every respect, in comparison, including academically and intellectually.

But this need not be; we have certainly reached a point in our maturing democracy where thoroughly vetting candidates for these important offices, indeed, to all offices should not be something to shy away from, regardless of how much we admire the individuals in question, or how stellar their resumes may otherwise be.

The allegations raised about Mr. Tobiko may or may not be true.

However, by confirming Mr. Tobiko without even as much as interrogating the evidence put forth as to these allegations, Parliament has essentially said it’s okay to serve with a cloud hanging over your head regarding your integrity, which is clearly in contravention of Chapter Six of the Constitution.

Second, even though it’s understandable and, indeed, it is desirable that CIOC be vested with complete authority, other than the final up or down vote, of guiding Parliament in the process of vetting of nominees, among other things, the manner in which the committee handled these nominations leaves a lot to be desired.

Having been evenly divided—and I have something to say below about the one member who abstained—the best thing CIOC should have done, given these circumstances, was to unbundle the nominees, with the Speaker’s approval, if necessary, send the two nominees with a majority support (Mutunga and Baraza) to the full house for an up or down vote but seek further vetting of Mr. Tobiko.

It could not have taken but a day or two to investigate the allegations made against Mr. Tobiko and, if upon such investigation the committee concluded there is nothing to the allegations, then the committee would have forwarded his name with its findings to the full house for approval or rejection, complete with its own findings as to the allegations.

Parliament would then have had an informed vote about Mr. Tobiko.

It would have been that simple but Parliament chose a path that leaves us with either a very clean DPP with nothing to be concerned about his integrity, as he embarks on the important task of leading the fight against corruption and impunity, or he is not and therefore setting the stage to second-guess him on everything he does from the day is sworn to the day he completely dispels such a concern, which may not be possible at all.

Third, no member of a committee should ever be allowed to abstain on a vote; that’s an abdication of responsibility.

A perfect example of this, is the 11-11 tie in the committee vote on the nominees, which was the result of one member abstaining. Had the member voted either way, the committee would have either rejected the nominees or approved and sent to the full house a report less confusing as to what it meant or said as it did.

Given its conflicting message, an amendment was promptly adopted that striped the report of its recommendation for Mr. Tobiko to be further investigated before taking office, which (the recommendation) in by itself made no sense.

How do you say to someone, “you are hired but before you assume office, I need to investigate to make sure you are not all these bad things I am told you are?” Doesn’t common sense dictate this is something you need to do before extending the offer of employment?

Yet, this is precisely what CIOC recommended, namely, approve Mr. Tobiko but let’s investigate him further after you approve him to determine if the allegations made about him are true or not.

Again, it is understandable time is of the essence in approving these nominees but one cannot ignore provisions of the very Constitution we are trying to implement just because there is a deadline to meet; yes, deadlines must be adhered to in implementing the Constitution but not at the expense of the quality of what is produced in the process.

A few days’ delay would not in the end make a difference, if such delay removes the doubts over Mr. Tobiko’s appointment as DPP.

Third, the committee should not have submitted its report when it was so evenly divided with one member abstaining. The member should have been forced to vote one way or another and have the committee take whichever position called for by his or her vote.

That’s what being a committee voter means in an important committee such as COIC; you exercise your right to vote one way or the other and let the chips fall where you wish they fall, abstaining only means you are afraid and can’t take a position because you wish not to be associated with it, one way or the other, which in turn defeats the whole purpose of you being there as a member of that committee.

I was, however, not sure how to react other than being genuinely surprised when the abstaining member, Hon. Rachel Shebesh, disclosed in parliament she was the abstaining vote and offered the reason was because she “had no reason to vote for or against” Mr. Tobiko and was thus counting on the rider recommending further investigation in the final vote.

The rider was, of course, promptly stripped from the report as surely Hon. Shebesh should have anticipated; or did she not?

Hon. Shebesh did say after the amendment was introduced, that she will vote “no” against Tobiko but as she has now found out, if she did not anticipate this in committee, her one vote on the floor almost means nothing especially on a voice vote like the one done in the final vote unlike in committee where the vote of each member counts more than on the floor.

Had Shebesh cast her “no” vote in committee, we’ll have likely had an outcome more consistent with the Constitution than what we have now, especially as it regards to further vetting of Mr. Tobiko to confirm or reject the allegations made against him.

She did not and therefore hers may as well be the historic vote that confirmed Mr. Tobiko as is.

Third, the voice vote taken on this historic vote was inappropriate. I cannot think of something more undemocratic than a voice vote. I know it’s a stable and favorite in almost all parliamentary schemes but it is nonetheless undemocratic.

Members should be forced to take a yes or no vote and be counted as to which, especially on an important vote such as this, rather than having everyone hiding under a voice vote they cannot be held accountable to, unless they are on the record one way or the other.

Finally, but not least, Parliament having approved these nominees, the nominees are all but certain to be appointed by the president.

That being the case, I congratulate Dr. Mutunga and Ms. Baraza and wish them well as they embark on this historic journey of reforming the judiciary.

I also congratulate and accept the nomination of Mr. Tobiko, with reservation, only because of the concerns that have been made against him that even he would agree would be better for everyone if cleared before he assumes office.

All is not lost, though.

Now that he has been approved for nomination, and assuming the president goes forward and appoints him as DPP as is expected, Mr. Tobiko will serve himself and the country well and remove any doubts as to his commitment to ending corruption and impunity by taking the fight against corruption and impunity to those some believe are quietly and behind the scenes, heavily pushing for his appointment in hopes he spares them the might of government power in punishing these evils, if and when brought to bear.

In sum, save for those who for obvious reasons wish he does not succeed or if he does, to do so negligibly, we all hope and pray that Mr. Tobiko is successful in carrying forth his duties and responsibilities notwithstanding the manner in which he has been nominated.

In other words, let Mr. Tobiko prove his critics wrong by doing the job we expect our DPP to do, consistent with the Constitution and our desire to rid the country of corruption and impunity.

 
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Posted by on June 15, 2011 in Politics

 

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