Epic battle looming in fight for judicial independence during search for next CJ
By Kwamchetsi Makokha | January 14th 2021
On any given evening, acting Chief Justice Philemona Mwilu is likely to receive multiple calls on her telephone from unidentified people insulting her and pointedly asking her what it would take for her to resign.
A Court of Appeal judge once reached out to her with an offer to negotiate her exit, which she declined.
Eulogising Machakos Senator Boniface Kabaka last month, Justice Mwilu revealed for the first time, “I have been tested to the limit.”
Within the Judiciary, the petitions, cases and allegations against the Deputy Chief Justice have presented severe public posture dilemmas for the leadership.
While some bulked at the presence of the DCJ at public functions where the Executive and the Legislature would be in attendance, such as presentation of the annual State of the Judiciary report, Justice Mwilu has insisted on being present and visible.
Now ensconced in the Chief Justice’s chambers – even if only in an acting capacity, Judge Mwilu is reportedly determined not to drop the ball in consolidating the judiciary’s independence.
The handover from Chief Justice Maraga to Judge Mwilu is the first orderly transfer of power in the judiciary since the promulgation of the Constitution in 2010.
When Chief Justice Evan Johnson Gicheru retired, it took six months for Dr Willy Mutunga to be appointed in his place. By the time he came into office, matters were in great disarray.
On the day Dr Mutunga elected to retire early in June 2016, Deputy Chief Justice Kalpana Rawal also left her post after unsuccessful litigation to stay on past her retirement age.
Judge Mwilu, who is widely expected to apply for the Chief Justice’s job, is nonetheless keen to ensure that the person who gets the job finds an orderly house in her role as leader of the management committee.
Until opposition leader Raila Odinga rocked up at the Supreme Court for the second time in five years with a presidential petition in August 2017, Deputy Chief Justice Philomena Mbete Mwilu was a little remarked judge.
In nine short years, she had gone from being a judge of the High Court to the Court of Appeal, and leaping into the second-highest office in the Judiciary.
She had sailed through interviews at the Judicial Service Commission ahead of 15 other applicants and laid on her charm for the parliamentary committee vetting her for the deputy chief justice’s job.
It was during the hearing of the presidential election petition that Judge Mwilu’s mettle began to show.
Delving into discrepancies in vote tallies for the presidency and the other positions contested in the general election, she posed: “The assumption is that you are given six ballots. So if you only vote for one position (the President), where do the other five ballots go?”
Her pointed questions got the electoral commission’s lawyers hot under the collar, but behind closed doors in a judicial conference, she was even more forthright. What she did not know was that the judges’ deliberations were not as private as they imagined: Officials at State House, the seat of the presidency, had a blow by blow account of the discussions in the conference.
Basking in the afterglow of the historic September 1, 2017 nullification of the presidential election, Chief Justice Maraga loudly remarked in the hearing of staff: “This lady is a brave woman.”
Judge Mwilu’s courage, if one were to call it that, came from a place of the deep conviction that she had nothing to hide.
In the days that followed, as the first petitions seeking her removal from office — alongside the Chief Justice and Supreme Court judge Isaac Lenaola — she spoke to her legal researchers and staff seeking assurance that none of them had skeletons in their closets.
She seemed to have a premonition of the troubles that would come, but nothing had prepared her for the scale of harassment, intimidation and violence coming her way.
On the eve of a crucial sitting of the Supreme Court to hear a petition seeking to postpone the October 26 fresh presidential election, Judge Mwilu’s driver and bodyguard was shot and seriously wounded while he ran an errand for her at 7 pm.
The Judge and her boss, the Chief Justice, were at his bedside well past 1 am. The following day, Judge Mwilu could not make it to court. Another three judges were absent, and one abroad.
With the Chief Justice and Judge Isaac Lenaola the only Supreme Court judges on duty and the petition still unread, the fresh election went ahead unchallenged.
It would take two years before the full import of what happened to her staff was felt.
Reportedly, her bodyguard’s shooter opened her car and remarked, “Mama hayuko [The Lady Judge is not in]” before his companion urged that they finish off their victim. When her bodyguard was shot in the face, his jaw deflected the bullet to his chest, saving his life.
The petition for Judge Mwilu’s removal from office, filed at the JSC by the Director of Public Prosecutions and the Director of Criminal Investigations, initially hinged on her private transactions with Imperial Bank Limited, which is now under receivership.
Judge Mwilu was stunned that the allegation about replacing security for a loan she is still repaying did not emanate from any complaint on the part of the bank.
One of the ironies of Judge Mwilu’s tribulations is that after Chief Justice Maraga appointed her as the Judiciary Ombudsperson, an arm of government has pursued her removal on allegations of corruption.
The security services have thrown the kitchen sink at Judge Mwilu. Now the petition for her removal includes allegations that she was in communication with a suspected criminal ring involved in printing large sums of fake currency.
It is alleged that suspected mastermind of the fake currency ring has since jumped bail in the period he was allegedly in communication with the Judge.
“It is a matter of national security,” contends JSC commissioner Macharia Njeru while referring to the allegations in his ruling on Judge Mwilu’s application for him to disqualify himself from considering her petition.
Judges and judicial officers who asked not be named in this story expressed fears that petitioning for the removal of the Deputy Chief Justice for private dealings could mean that they were all fair game.
“If you can take down a Deputy Chief Justice on a civil matter, it means that no one is safe,” a senior magistrate said.
Since President Kenyatta publicly declared war on corruption, the assumption that prosecutors are acting in good faith has been sorely tested, especially in instances where they have been thought to weaponise the criminal justice system to settle political scores.
The allegations against Judge Mwilu date back to 2016 when she was a Court of Appeal judge. That the intelligence agencies failed to detect or flag these incidents when Judge Mwilu applied for the position of Deputy Chief Justice and went through public interviews and parliamentary vetting remains confounding.
Entreaties to President Kenyatta to let the matter rest have not succeeded, and emissaries say he remains unrelenting.
Notably, the appointment of 41 High Court and Court of Appeal judges (one nominee died while awaiting gazetting) has been held up for more than a year and a half on account of intelligence reports the president has received but not shared.
In an ironic twist of fate, the President’s refusal to appoint Court of Appeal judges has kept the two appeals on the unmoving queue.
Given the bad blood between the judiciary, the executive and the legislature, the Judicial Service Commission’s nominee for Chief Justice will face a tumultuous time during vetting in the National Assembly – especially if that person is Judge Mwilu – but the clash could begin to bring resolution to the three-year struggle for the independence of the judiciary.
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