Judiciary to intensify war on impunity

By Felix Olick and Moses Njagih

Just when Kenyans are faced with roguish attempts by Parliament determined to lower the vetting and integrity bar and Government officials are defying court orders, a reassuring message comes from the Judiciary.

 The message was delivered by Chief Justice Willy Mutunga, who is the face of a neutral arbiter, Kenya needs during constitutional implementation and elections.

 His message came on the day MPs were in an informal meeting to discuss national outrage over the way they were weakening stringent vetting rules, and against threat by Commission for the Implementation of the Constitution (CIC) to go to court if the legislators uphold the assault on leadership and integrity clauses.

The President of the Supreme Court, while launching this year’s ‘Judiciary Week’, declared justice was no longer on sale, the era of impunity manifested by defiance of court orders is gone, and judicial officers must bring honour and dignity to their offices.

He reassured the public that Leadership and Integrity Bill that has caused outrage among the public is still at the debating stage and new input to improve it is welcome.

He said that the Government is committed to capture the consensus that creates a law that replicates the constitutional standards.

“We are committed that we capture the consensus that creates a law that replicates the constitutional standard practical and enforceable in a reliable and a meaningful way,” he said. Dr Mutunga reminded the Government the country must be run by the rule of law. He warned that the culture of disobeying court orders that seem to have crept in the system must end.

Though he did not specify the instances when Government has defied court orders, one such glaring example is the refusal by Office of the President to recall 47 county commissioners, even after a High Court judge declared the President’s appointments were unconstitutional.

Mutunga decried the disrespect of court orders by a clique in Government that has not appreciate Kenya had moved to a new constitutional dispensation.

Speaking at two different occasions, one to launch the Judicial Marches Week at Kenyatta International Conference Centre, and later at the University of Nairobi, the CJ sent a strong message to those still living in the ‘old order’ that their time was up.

He insisted time had come for everyone, including Government agencies to respect court orders, adding that not all court decisions would be popular.

Conservatives in Government

 “For those who seek to subvert the Constitution, we must remind them that it is our only defence against lawlessness and disorder. Unless we obey the law – of which court orders are a part – we cannot expect others, be they Government agencies, private interests or individuals, to be held to that standard,” Mutunga said.  He was sworn-in a year ago, as Kenya’s first CJ to be publicly vetted and cleared for the position by Parliament. 

Mutunga reiterated his pledge to remain true to all Articles of the Constitution.

The CJ is on record warning the Judiciary would respect Chapter Six on Leadership and Integrity.  He said the Judiciary would enforce it to ensure only credible candidates are allowed to vie in the March 4 General Election.

“The Constitution has radically recreated the Kenyan Republic. Few have internalised this reality and, even many more have yet to make the mental shift to the new order. Vestiges of the old republic are actively resisting the new Constitution,” added Mutunga.

The CJ warned that the major problem the country was facing with respect to the rule of law was mainly the conservatives in Government.

“Having been socialised in and benefited from a retrogressive culture, they lack the skill, appetite and inclination to live and thrive in this new environment. It is terra incognita (unexplored land) for a political class not used to accountability, and bureaucratic elite accustomed to patronage and insularity,” he told the students at University of Nairobi’s Taifa Hall, a place he frequented in his days as a lecturer at the institution.

He called upon all Kenyans to commit to a free, fair, and peaceful election by being law-abiding in the exercise of their rights.

Mutunga received support from Attorney General Githu Muigai on the need to respect court orders, saying the Executive should lead by example.

New approach

Muigai, who is also the Government Chief Legal Advisor, said some public officials have lately been under criticism for disobeying court orders with the latest being the appointment of 47 county commissioners.

The commissioners have continued to discharge their roles despite a court order by Justice Mumbi Ngugi declaring the appointments illegal.

Prof Muigai maintained the Executive has a greater responsibility to respect court orders. “Many times we disagree with the courts. Many times we think that the courts are not right in the interpretation of law. Many times we think that the courts are more zealous. But this is not an excuse to disobey the law, “ he noted.

The CJ said the remaking of the Kenyan State and society that the new Constitution had engendered required a new approach to power and authority.

“The Constitution has reset the power relations between the State and the society in favour of the latter. In Article 1, it has made an unambiguous declaration that sovereign power reposes in the people,” he added.

Mutunga said it was sad that universities played little role in the Constitution making, and have also not taken part in debates about its implementation, leaving the crucial responsibility to politicians.

 “It is, for instance, difficult to recall the voice that the Faculties of Law, or the Departments of Political Science, made in the debate on presidential and parliamentary systems of government or Devolution”.

“Even now, it is very surprising that as debate rages on what should constitute our laws on integrity and leadership, those who study ethics, philosophy, law and political science have not yet organised a forum to discuss these issues,” said the CJ, who was accompanied by 30 judges.