Former Chief Justice Willy Mutunga has escalated his onslaught on the Judiciary arguing that the third arm of the government under incumbent CJ, Martha Karambu Koome, lacks the courage to face the Executive.
Mutunga, on Friday, November 26, added that the foremost important reason why the Judiciary was acting timidly was that it was busy shedding off the term ‘activist’, which he argued clearly defined everyone who was supporting or opposing changes.
He referenced his tenure as CJ, stating that he directed Judges to acknowledge that they were involved in politics on a day-to-day basis.
“Politics is part of life… even the Constitution is so political. It is so activist.
“The best case is the BBI. Those who wanted to change the Constitution were activists, and for ruling against it, the Judges were activists,” Mutunga while speaking to the Standard
The former CJ underlined that the Constitution clearly stipulates the roles of the Executive, but blamed the Judiciary for failing to take the advantage and dictate the way forward.
Mutunga called on CJ Koome’s Judiciary to push back against the Executive led by President Uhuru Kenyatta and the Parliament, which he described as meddlesome and impolite.
“The Judges should be candid and say that unless the Executive purges their contempt, they won’t be listened to,” he advised.
On October 28, Mutunga and Koome differed on how Judges should exercise their powers and on how they should protest against the Executive. Mutunga asked Judges to strike arguing that the Executive will not respect the Judiciary if the Judges do not act.
Koome, in response, urged Mutunga to desist from interfering with the Judiciary.
“Though since retired, this solemn affirmation normatively transcends the life of every retired Chief Justice to secure, guide and protect the right of every Kenyan to access justice and indeed the substratum of the Constitution.
"The implications of calling for a judicial strike are far-reaching. It is in part, calling for the suspension or dismemberment of the Constitution by excluding one arm of Government from the constitutional operations of our democratic state,” Koome wrote.
Mutunga, however, heard none of it all and insisted that the Judiciary has the power to tame the Execution from disrespecting the Constitution. He cited 2013 and 2017 Presidential petitions where ODM leader, Raila Odinga, and Jubilee’s Uhuru Kenyatta lost respectively.
“That is a very, very powerful message… that we can rule against any faction,” he proclaimed.
Nonetheless, he regretted pushing Uhuru to appoint the six Judges he rejected, an action he says created tension between him (Mutunga and CJ Koome) in June 2021. The six were Justices Aggrey Muchelule, George Odunga, Weldon Korir, Joel Ngugi, Chief Magistrate Evans Makori and High Court Registrar Judith Omange.
In a letter dated Tuesday, June 8, Mutunga noted that Uhuru's behaviour was beneath the dignity of the office and boldly told the President that his conduct in the matter amounted to pettiness.
“Mr President, simply do the right thing,” he urged Uhuru.
While rejecting the six aforementioned Judges, Uhuru also argued that he was in possession of intelligence which alleged that the Justices had integrity issues.
Mutunga pointed out that the Judiciary should ensure they are not roped into any scandals. The latest to hit the headlines was the leaks by former Nairobi Governor, Mike Sonko, who accused High Court Judge, Said Juma Chitembwe, of using his brother and other proxies to receive bribes.
“Unless this is addressed if you are in Judiciary and you have skeletons in the cupboard… they will be rattled,” Mutunga stated.
In June 2021, he alleged that some Judges wives and associates were bribed to influence the justices' rulings in some cases.
