Former
Prime Minister Raila Odinga has accused President Uhuru Kenyatta of
being a “willing participant” in a scheme to destroy the Judiciary.
In
a strongly worded press statement Saturday, Mr Odinga said the
President and his government had failed to steer the country to
prosperity and was now bent on silencing alternative voices including
the media, non-governmental organisations and now the Judicial Service
Commission (JSC).
In reaction to President Kenyatta’s
suspension on Friday of six JSC members and appointment of a tribunal to
investigate their conduct, Mr Odinga said the Jubilee government had
failed “at every point” to resolve the problems at the Judiciary.
“The
appointment of the tribunal must be viewed in the wider scheme of what
is going on in the country at the moment. The National Assembly has
already enacted the Kenya Information and Communication Bill, which
contains severe limitations on the freedom of the media in Kenya.
Currently, the National Assembly is debating amendments to the Public
Benefits Organisations Bill, the passage of which will severely limit
funding for civil society organisations in the country, and bring an end
to the culture of civic vigilance which is an important source of the
freedoms that we enjoy in this country,” said Mr Odinga, who is the
leader of the opposition Cord.
The former prime
minister said the Jubilee leaders had failed to contain insecurity in
the country, allowing bandits a free rein in northern Kenya “while the
promise to institute inquiry into Westgate attack remains just that; a
promise”.
“Viewed together, these three developments
lead to the conclusion that the Jubilee government is determined to
bring an end to all autonomous institutions in the country. A pattern of
a return to repression is taking shape. What is being attempted
currently is to establish a country of presidential and legislative
tyranny, and where no other institution in and out of the government
will be allowed a voice. The people of Kenya must wake up to the fact
that the new Constitution which they enacted and which they cherish, is
now under threat because of the actions of this government,” Mr Odinga
said.
Mr Odinga released the statement to newsrooms as
the Law Society of Kenya (LSK) accused President Kenyatta and the
Executive of opening many unwarranted battlefronts “to divert attention
from the ICC cases against the Jubilee principals”.
LSK chairman Eric Mutua, who spoke on the sidelines of an induction course for newly admitted advocates at Panari Hotel, predicted that the suspended JSC members would move to court to stop the tribunal chaired by Justice (rtd) Aaron Ringera from taking off. The Media Bill, once it is assented to by the President, would also be challenged in court, added Mr Mutua.
According to Mr Mutua, the
Ringera tribunal is unconstitutional and its appointment would paralyse
the operations of the Judiciary.
“Look at the way
these issues are being done systematically. It is a question of not
wanting the ICC issue on the table at all. The headlines should not be
ICC every time. Bring controversy; come with issues which you can see
are clearly against the Constitution, but are being driven with an
agenda so that we wake up tomorrow and the headlines we have is
Judiciary fighting Parliament, the Media Bill etc. That is really a
question of diversion of attention,” said Mr Mutua.
In
his statement, Mr Odinga said President Kenyatta’s alleged failure in
leadership was manifested when the National Assembly adopted the report
of the Legal Affairs Committee calling for a tribunal for the removal of
the six JSC members.
“Better counsel would have led to
the search for a more amicable way of dealing with this matter at that
point. The President had a choice to accept the recommendation of the
National Assembly for the appointment of a tribunal or to reject the
recommendation. He could have used the opportunity presented to him to
bring about dialogue among the concerned branches with a view to
averting the crisis.
“However, he has failed to do so
and has chosen to appoint a tribunal whose effect would be to dismember
the Judiciary and to leave it as an appendage of the Presidency and the
Legislature. Again, the failures by the President have been failures in
judgement and in leadership. It is now clear that the President is a
willing participant in the scheme to destroy the Judiciary,” Mr Odinga
added.
President Kenyatta had on Friday evening suspended six members of the JSC despite a court order against it being in place.
Those
suspended were LSK representatives Mr Ahmednassir Abdullahi and Ms
Florence Mwangangi, Rev Samuel Kobia, Justice Mohammed Warsame, Prof
Christine Mango and Chief Magistrate Emily Ominde.
The
President appointed a four-member tribunal headed by Justice (rtd)
Ringera to investigate the conduct and suitability of the six. Other
members of the tribunal are Mr Ambrose Weda, Ms Jeniffer Shamalla and Mr
Mutua Kilaka.
In suspending the six and appointing the
tribunal, President Kenyatta said he had “no choice but to follow the
dictates of the law. Failure to do so will set a bad precedent for the
country”.
“The allegations of financial
interference and obstruction of justice are serious in nature and,
therefore, require investigations by an independent and impartial
tribunal. The commissioners concerned must rightly also have the
opportunity to clear their names if possible, over allegations now in
the public domain, so that the commission can continue with no
aspersions on its character and regain the full confidence of Kenyans,”
the President said in a statement.
But Mr Mutua, who
was flanked by the president of the East African Law Society, Mr James
Mwamu, LSK vice chairperson Lillian Omondi and council member Faith
Waigwa, said the President erred in law in appointing the tribunal and,
thereby, paralysing operations of the Judiciary.
According
to Mr Mutua, the suspension will create a prolonged stalemate that
would hinder the JSC from hiring judicial staff, or at least even
meeting.
“We expect, by January as the Chief Justice
had mentioned sometimes back, that there is going to be appointment of
40 judges to deal with the backlog in the Judiciary in terms of hearing
cases. I don’t think that come January the JSC will be in a capacity to
even meet. Even if they get a temporary order I don’t think they will
have the legitimacy to proceed with their mandate. They would need to
resolve those issues and unless the Executive steps in again and tries
to bring these two arms of government (Judiciary and Parliament)
together then this stalemate will continue. It will continue hurting the
profession,” said Mr Mutua.
The integrity and impartiality of the members of the tribunal has also come under sharp focus.
Justice
(rtd) Ringera, for instance, had applied to be a judge of the Supreme
Court in 2011. However, he was not shortlisted and publicly attacked the
JSC for snubbing him. He even threatened to sue the commission, whose
members he is now supposed to investigate. Mr Abdullahi then responded
to his attacks on the JSC, saying Mr Ringera had no entitlement to the
the position.
“Having had this kind of confrontation
between one of the JSC commissioners and now the appointed chair, we
don’t expect justice from that tribunal. Secondly, another member,
Jeniffer Shamalla, has come on national television to say that the JSC
does not know what it does. She has come out even to attack the
honourable CJ,” said Mr Mutua.
Mr Ringera had also
served in the appeals chamber of TNA that was handling the disputes from
the party nominations while Ms Shamalla has been on the offensive
against the ICC, even unsuccessfully filing a case in court to stop
President Kenyatta and his deputy William Ruto from going to The Hague.
PERSONAL OPINION
Mr
Weda, a city lawyer, had contested the last elections on a TNA ticket
in Seme Constituency without success while Mr Kilaka was the Financial
Secretary in the Treasury when President Kenyatta was the Finance
minister.
Last evening, State House dismissed the LSK
statement as “personal opinion.” In any case, State House said,
President Kenyatta was reacting to a petition from the National
Assembly.
“The President has not just woken up to form
the tribunal. There is a history to it,” said Mr Munyori Buku, the
Director of Media and External Relations at State House.
“No
one prevents (LSK chairman) Mr Mutua from giving his personal opinions.
There is more to law than big ears. The President has the
constitutional prerogative to set up the tribunal to investigate an
issue, especially when issues of integrity concerning public office
holders are raised. Mutua has been asking the President and the Deputy
President to clear their names so he should also allow JSC members to
clear their names,” said Mr Buku.
He also defended the
composition of the tribunal saying the personal history of the members
does not take away their skills to deliver.
“Justice
(Rtd) Ringera is an old hand in matters of law. We should look at the
work of the tribunal not the membership. Those people have the skills,”
he added.
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