Raila odinga writes to CJ Mutunga over court ban on calling for mass action

CORD leader Raila Odinga has written a letter of complaint to the Chief Justice Willie Mutunga over what he termed as suppression of civil liberties.

Mr Odinga wrote the letter after a Nairobi Court barred him and his co-principals in the opposition Cord coalition from calling for mass action during their Saba Saba rally scheduled for Monday in Nairobi. The court also ruled that in the event that Mr Odinga and his co-principals – former vice president Kalonzo Musyoka and Bungoma Senator Moses Wetangula – defy the court order and call for mass action leading to chaos during the rally, they will be personally held liable for the consequences.

The ruling was issued by Justice Isaac Lenaola who however declined to stop the rally.

Justice Lenaola also decared CORD’s calling July 7th a public holiday as null and void.

In his letter to Mr Mutunga, Raila referred to article 37 of the Kenya constitution stating that “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities”.

He accused the judiciary of being an ally to the Executive branch.

HERE IS THE LETTER BY MR ODINGA TO CJ MUTUNGA

Dr. Willy Mutunga, E.G.H

Chief Justice and President of the Supreme Court

Republic of Kenya

Supreme Court

Nairobi

Dear Sir,

RE: COMPLICITY OF THE JUDICIARY IN SUPPRESSION OF CIVIL LIBERTIES.

The CORD fraternity is dumbfounded by news that a court of the Kenya Judiciary has issued an order against the Principals of the coalition ordering them not to convene any mass action in Kenya on the 7th July 2014 and stating that the said Principals shall be personally liable for any damage during the protests they convene.

From the very outset I wish to reiterate to you Article 37 of the Constitution of Kenya which states that:

“Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities”.

Mass action is just a common phrase to describe the exercise of this constitutional right and is not a legal principle that can rend itself to interpretation of the court outside the confines of Article 37.

It must then be taken to mean that the Kenyan court has ex-parte, without wanting to hear any representation from us, and without due regard to the indefeasibility of our rights as citizens of Kenya, decided that I, my co-Principals and the entire CORD fraternity, cannot enjoy any of the rights granted to us by Article 37 of the Constitution.

Further, against all principles of Constitutional law, dictates of responsibility of government and basic common sense, the court has purported to create a hitherto unknown legal responsibility for the conveners of an assembly to be personally liable for the independent personal conduct of all attendees.

In what we now call the dark days, the Judiciary became an ally of the Executive in the abuse of the rights of people, particularly those who fought for greater democratic space. We all remember how Judges like Norbury Dugdale were kept as watchmen for the Executive and readily issued any order, however outrageous, that was needed to stop the exercise of fundamental rights that the State considered to be a threat to its dictatorship.

Rulings like the one issued against CORD today only fortify our concern that Kenya is marching backwards to the dark era, instead of forward to a happier, freer society that we long desired and fought for.

It is disheartening to see that we are going back to those days and that it is happening under the new Constitution.

Kenyans have put their faith in this Judiciary and in you as its Chief Justice to restore the constitutionalism that was abused in the years past and to restore, preserve and protect their liberties against all threats from the State.

You must not let Kenyans down.

We hope that this matter will receive your urgent attention and intervention. On our part, we in the CORD fraternity shall ignore this attempt at unconstitutionally delimiting our rights and shall continue with our planned assembly and demonstration as was intended by the people of Kenya when they promulgated the Constitution. The Constitution is on our side.

RT. HON RAILA ODINGA,

LEADER, ODM/ CORD COALITION

JULY 4, 2014.