How Mwilu ouster will affect the courts
By Paul Ogemba and Kamau Muthoni | January 31st 2021
Legal experts have warned of a crisis in the Judiciary following the decision by a Meru court to suspend Deputy Chief Justice Philomena Mwilu.
High Court Judge Patrick Otieno’s shock ruling on Friday following a petition by a Meru resident, however, won praise from other quarters. They argue that the judge was right to order Justice Mwilu to step aside until she clears her name over allegations of misconduct and abuse of office.
Justice Otieno ordered Mwilu to step aside from occupying the DCJ office, sitting as a Supreme Court judge, sitting as a member of the Judicial Service Commission and holding the position of Judiciary Ombudsperson pending determination of the suit filed by Isaiah Mwongela.
The consequences of the decision are that the Supreme Court cannot sit to hear and determine any matter pending before it for lack of quorum, and all disciplinary cases against judicial officers referred to Justice Mwilu as Ombudsperson will be suspended.
Justice Mwilu will also not sit in during JSC deliberations, perform judicial administrative duties or swear-in State officers in her capacity as the acting Chief Justice.
University of Nairobi law lecturer Peter Onyango said it was a blunder to issue the order since critical decisions in the Judiciary that require Justice Mwilu’s input as the acting Chief Justice will ground to a halt.
“The Judiciary needs leadership just like any other institution to function. It is like our bodies, which require oxygen to perform some functions. When oxygen is lacking, some organs will stop functioning,” said Dr Onyango.
But a senior State counsel who wished not to be named said Justice Otieno was right in ordering Justice Mwilu to step aside, and that the petition did not seek to remove her from office but to protect the integrity of disciplinary cases against her that are pending before the JSC.
“She should step aside as an act of honour. It is the same thing the courts have ruled in relation to governors facing corruption cases and were barred from offices. As a judge and acting CJ, she should be held to higher standards on integrity than the governors.”
Damisiano Maranya, the lawyer who filed the case against Justice Mwilu on behalf of Mwongela, said people should not read politics the matter.
“The client raised serious issues which we helped in advancing. This is just an issue of an advocate acting upon client instructions even though they might be stepping on someone’s toes, and this one is the DCJ. People will think it is political and people will want to associate it with some quarters but it is not the case,” Maranya told The Sunday Standard.
His views were echoed by the State counsel who said the Judiciary will be fine, and that the case is about the DCJ as a person and not her office.
“There will be no crisis in the Judiciary since we can have a senior judge acting at the Supreme Court and the deputy chair in the JSC taking up the mantle to recruit the next CJ.”
Lawyers are divided on the case, with some saying it touches on hitherto unattended matters while others read mischief, saying it reveals there is an internecine war in the Judiciary.
Siaya Senator and Senior Counsel James Orengo yesterday said that Justice Otieno’s decision was unlawful and likely to throw the Judiciary into anarchy.
“The rule of law is broken and judicial anarchy sets in when judicial processes are used and abused to achieve unlawful outcomes or brazen political objectives. The order obtained against Mwilu is an egregious act of judicial terror and oppression,” Orengo tweeted.
Rarieda MP Otiende Amollo said that while he supports judicial independence, issuing orders that result in the country having no acting CJ and DCJ, and a quorum hitch at the Supreme Court, amounts to judicial recklessness.
With the order denying the Supreme Court quorum to hear matters, there are fears that several matters that were listed for hearing, including a case filed by Makueni Governor Kivutha Kibwana challenging the Building Bridges Initiative (BBI), will collapse.
“There are BBI court cases on signature collection and verification still to be heard. There are cases challenging county assemblies’ process where the constitutional Bill is waiting. Now there is no Supreme Court quorum. Shall Wanjiku have her day in court?” Kibwana posed on Twitter.
Constitutional lawyer Waikwa Wanyoike said it is curious that the orders against Justice Mwilu will be in force until February 12 – when the court is set to hear all parties – while the Supreme Court had set February 9 to hear arguments touching on the Constitution of Kenya (Amendment) Bill.
Cripple the court
Dudley Ochiel, a lawyer working for Katiba Institute, said the order will cripple the Supreme Court. He wondered why it was issued when it contradicts another issued by Justice Anthony Mrima on whether Justice Mwilu can act as Chief Justice while her integrity case is not settled.
“The orders have deprived the Supreme Court of its representative in the Judicial Service Commission. Besides, the orders contradict other orders given against JSC in a pending case filed by the Deputy Chief Justice against the commission,” Ochiel said.
A senior judge who spoke to The Sunday Standard said the issues surrounding the DCJ can be resolved to forestall a crisis.
“These issues will not go and they will keep hurting the Judiciary. Can they be mediated? Yes. JSC would have been let to settle the issues surrounding the DCJ’s integrity and we move on. It is now a circus and this affects us all,” said the judge who requested not to be named.
Law Society of Kenya President Nelson Havi, who is Justice Mwilu’s lawyer, said the orders were illegal and have no effect on her position and duties.
The lawyers agreed that Justice Mwilu has two options: she can move to the Court of Appeal to have the order suspended or wait until February 12 and ask Justice Otieno to discharge the orders.
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