Chief Justice declares Judiciary won’t bow

Chief Justice Willy Mutunga at the Supreme Court yesterday where he told off MPs and the Executive. [PHOTO: FIDELIS KABUNYI]

By GEOFFREY MOSOKU and KURIAN MUSA

Kenya: Kenya edged towards a constitutional crisis after acrimony between the three arms of Government firmed up with the Judiciary vowing it remains unbowed and will fight for its space.

Chief Justice Willy Mutunga warned of what he called systematic rise in threats to the Judiciary by the other two arms of government: Legislature and Executive. Speaking in his capacity as chairman of the Judicial Service Commission (JSC) and head of Judiciary, Mutunga said the courts would not be intimidated or cowed by actions of the other institutions.

The CJ cited the decision by the National Assembly to slash the Judiciary’s budget by Sh500 million in retaliation for rulings that offended MPs, and recent cases where court orders were defied by the Executive and Legislature.

Protect turf

“There has emerged a pattern by political leaders and other Kenyans of intimidating judicial officers engaged in the official task of interpreting and applying the Constitution. It is both unhealthy and unwarranted,” Mutunga told a news conference yesterday at Supreme Court Building.

In a hard hitting, lengthy statement, the CJ who was accompanied by three JSC members, accused the political class of plotting to subvert the gains made by the new Constitution that entrenched an independent Judiciary, and declared that he would protect his turf.

“The Judiciary has been vested with powers to interpret the Constitution and any insults and intimidation are uncalled for as well as unwarranted,” the JSC said. Mutunga reminded Parliament that it could not choose what court orders to obey and which ones to ignore.

He said that casting aspersions on hard working judicial officers is similar to a lynch-mob mentality.

The transformation of the Judiciary terrifies some people, Mutunga said, adding that courts and their processes have been opened to the public and their frontal attack on corruption has not won the Judiciary many friends in powerful places.

“Kenya is a constitutional democracy and must operate as such —notwithstanding the inconveniences this constitutionalism may impose on institutions and leaders hungry for a democratic regression. It is the Judiciary that patrols the boundaries of our Constitution — and will continue to do so vigorously,” Mutunga said.

The CJ particularly told off Parliament, which has already slashed Judiciary’s budget by Sh500 million in the supplementary budget, saying denying them revenue won’t intimidate judges and magistrates from discharging their duties. “Yet, even as Parliament has the final word on how much access to justice to fund for the common mwananchi, on this we stand: no number of threats or amount of intimidation will deter the Judiciary from doing justice using the same plumb line of the Constitution, the law and the evidence in the quickest time possible,” he added.

However, Parliament in a rejoinder insisted it is determined to ‘reign in’ on the judiciary for what it termed as activism following recent courts orders directed at both Parliament and Executive.

“The level of activism that the CJ is now confirming is what we must now tame,” National Assembly speaker Justin Muturi told The Standard yesterday. “At this rate, these courts will issue orders restraining the Cabinet or even Parliament from sitting.”

Muturi insisted that Parliament would not be stopped in performing its mandate as the people’s representatives arguing that Article 101 of the constitution places the Legislature high in the pecking order.

Court orders

“Article 101 (3) says sovereign power of the people is delegated to Parliament, Executive and Judiciary in that order. I advise the CJ to revisit that article,” Muturi said.

The Speaker stood his ground arguing that the House will find it extremely difficult to implement some court orders, which he described as outrageous.

The latest turf wars between Parliament and Judiciary were sparked by High Court rulings that stopped the official publishing of the impeachment of Embu Governor Nyaga Wambora and suspended Senate summonses to nine governors. Governors and Senators are locked in a supremacy battle that drew in Members of the National Assembly who sided with their fellow lawmakers.

As retaliation, Parliament is passing two Bills designed to punish governors by whittling down their sweeping powers on fiscal management of county funds and stripping them of trappings of power.

“Neither the Chief Justice nor the Judicial Service Commission has any power — constitutional, legal or moral — to tell judges what to decide. Doing so would be corrupt, immoral and unconstitutional. When courts are approached and judicial processes begin, they cannot be stopped arbitrarily. They cannot be heckled or shouted down,” the CJ said.

He argued that respect for court orders was not a favour the Judiciary seeks but a duty that we all bear and one that has implications for peace, security, stability and economic development.

The Judiciary is also irked by what they see as President Uhuru Kenyatta’s deliberate failure to gazette the appointment of three commissioners who include Prof Tom Ojienda (picked by LSK) and Aggrey Muchelule (elected by High Court judges) to JSC and confirmation of 25 judges nominated by the commission.