This is public lynching of the judges left out, former CJ tells the president
By Brian Otieno | June 10th 2021
Q: What do you make of the appointment (of the 34 judges) and the entire ceremony?
A: I have already stated my position on this. Even before I left office there were suggestions that we should swear in those who didn’t have what they called ‘integrity issues’, which were never given to us… and I said, no, if we allow that selection then we would be violating the Constitution… what has this swearing-in done? This is a public lynching of the six judges who have been left out.
Q: What next? Isn’t that a dangerous place to be, that there are court orders, but they will be disregarded because there is an individual sitting at the Office of the President who says this is the way I choose to go as part of my constitutional duty?
A: Take this scenario: After elections and the president has been elected, he is supposed to be sworn in by the Chief Justice. What would happen if the Chief Justice refused? The Chief Justice would be thrown out of office the following day. I can assure you.
Q: If you come in and say you have received some information?
A: For whatever reason… if a ceremony has been organised for the swearing-in of the president and the Chief Justice refuses to come and swear in the president, I can assure you that the whole country would roll – they will come and say remove this man. He doesn’t know what he is supposed to do. That is what should happen with the president. It is the duty of Parliament – when the president has violated the Constitution, is it Article 142, I can’t remember the provision – to take steps and remove him.
Q: To impeach the president?
A: To impeach the president. That is the only way you can have order. If this kind of act is allowed to continue, we are descending into a banana republic, very easily… you said that the president should not be a rubberstamp – there are so many other positions where the CJ swears in people as they have been appointed.
Q: Like the Auditor General…
A: The Auditor General, Inspector General of Police and several other state officers. Once they have gone through the recruitment office and they come, there is a gazette notice already published. The CJ does not question that unless there is a court action, which is a separate issue. The CJ does that (swears them in). That is ceremonial and that is the power the CJ has been given with respect to those people. With regard to the appointment of judges, the president’s position is also ceremonial. The appointing authority is the Judicial Service Commission, and for a good reason. Previously, the president used to pick who he wants to be the CJ, to be a judge, so that when cases are being decided, you don’t know what goes on behind the scenes and the orders are given as the government wants.
Q: So do you say then this is a president, who it’s his way or the highway?
A: I will say that. With all the court orders that have been given and with all the statements that are being made, the president is adamant and saying that look – and I saw that when he was swearing in the judges – as long as I am the president I will not take the easy way. Who says (he should take) the easy way? You take what the law requires of you.
Q: And he also says that he will not ignore reports given to him by the intelligence?
A: The Constitution has not given the intelligence the power to appoint judges. That has been given to the Judicial Service Commission. So he is preferring the views of the intelligence as against the views of the Judicial Service Commission. Those views of intelligence have their place. Bring them, as I said earlier, before the interview is over.
Q: Now the names have been referred back – the six that were found to have not met the threshold – to the JSC. Do you think they should consider relooking? Is there any such provision?
A: Former (JSC) vice-chair Mercy Deche says (that) there is no reverse gear in that process. Once the JSC has made recommendations and forwarded them to the president it cannot recall the names and begin examining anything that has gone there.
Q: Have you read the letter by former Chief Justice Willy Mutunga and do you agree with it?
A: I agree with every word in that statement. I have read it carefully. I agree with every word in that statement. When a situation gets so bad it requires that people be frank enough, people be brave enough, to state what their position is, because when you keep quiet – if Justice Mutunga kept quiet if we keep quiet – and we are seeing the country sliding into anarchy, can I come later and say that I wish I said? That is being hypocritical, that is being dishonest and extremely unfair – first to yourself and to your country.
Q: Do you sometimes think… that because of the handshake, that (the opposition) has been compromised and that is why we don’t see power held to account?
A: Yes. The opposition has died. The opposition has died and that is what has given the president the audacity to do what he wants.
Q: But handshake was good on one hand, right? It brought peace.
A: It brought peace but look at the cost. Look at this cost. In fact, if people were doing the right thing, the opposition – who are now in the handshake – should condemn this act of the president. They should be the first to tell the president that: “Look, Mr President, we are with you, but this one – you are not doing the right thing.”
Q: That is your fear?
A: That is my fear. We will not have a judiciary. The judges will be there, kesi ikikuja kotini judge anaangalia anasema, “Hii kesi nikikata namna hii, rais ama waziri fulani atasema nini? Acha nione vile nafanya (judges will be afraid to make decisions that go against the president and the executive)…” Is that the country we want to live in?
Q: …the president said the Judiciary must bring itself to consider the cost of the decisions they make…
A: The cost has not been occasioned by the Judiciary. The cost has been brought about by those who violated the law… We nullified the presidential election because the law was not followed. If the president, his people, and the IEBC followed the law, we would not have nullified the petition. So who has caused that cost? The president is putting it on the court. It is not the court which has done that. It is them who have violated the law and brought the cost of that.
Q: What will you remember President Uhuru Kenyatta for? What will his legacy be?
A: I am sorry to say that I will remember him as a president who had no regard for the law. It is unfortunate, but that is a fact. When you have court orders disobeyed from the top, do you know the ramifications of that? As a result of the disobedience of the court orders… criminal elements have taken advantage of that and they are disobeying the law left, right and centre because they know nothing will happen.
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