Petitioner accuses Chief Justice Willy Mutunga of displaying bias at JSC hearing

By Kurian Musa

Nairobi, Kenya: A petitioner argued his case against Chief Justice Willy Mutunga during a closed door hearing of the Judicial Service Commission (JSC) at the Supreme Court Building in Nairobi Tuesday.

Dan Alila accused Dr Mutunga of breaching the judicial code of conduct and ethics as he allegedly “displayed bias” and interest by constituting a three-judge bench, which included Justice Mohamed Warsame to hear a constitutional petition No 11 of 2012.

The bench is reported to have issued an injunction on the judges and magistrates vetting board, while Justice Warsame had been summoned to appear before the board on October 16, 2012. The petition was heard by JSC members Samuel Kobia, judge Emilly Ominde, PSC chairperson Margaret Kobia, Florence Mwangangi (LSK) and Tom Ojienda (LSK) and chaired by Supreme Court Judge Smokin Wanjala.

“Justice Mutunga created a fertile ground for conflict of interest on the part of Justice Warsame, who was set to be vetted by the board,” said Dr Alila.

“It brought to question Justice Mutunga’s grasp of the basic principle of law, especially the judicial code of conduct, which disallows conflict of interest on the part of judicial officers.”

Alila questioned whether the CJ appreciated the judicial transformation to which the vetting process plays a critical role, and which process is shielded from any judicial intervention as per Section 23(2) of the sixth schedule of the Constitution.

“It is my humble submission to JSC panel that by appointing Justice Warsame to the three-judge bench was a display of personal interest, impartiality and personal bias in favour of the judge in breach of the code of conduct and ethics,” said Alila.

The CJ is also accused of showing bias by trying to influence the vetting board’s decision against Justice Mohamed Ibrahim.

In his presentation, Alila told JSC that Mutunga favoured judge Mohamed. He said that when the judge first appeared before the vetting board on April 27, 2012, he had 162 pending cases in Mombasa, 79 in Eldoret, and 29 in Nairobi.

“Unfit to serve”

Alila said that on May 2, 2012, Judge Mohamed requested Mutunga for a three-month leave to finish the pending cases.

He told JSC that the leave was granted effective from June 1, 2012 to July 20, 2012, while the judges and vetting board ruled that Justice Ibrahim was “unfit to serve” in the Judiciary.

“Once a judicial officer is determined unsuitable by the vetting board, he is deemed removed unless that decision is reviewed otherwise. The constitutionality of the judgments, rulings written after July 20 are questionable,” said Alila.