Chief Justice's Statement on Judges' Security and Elections

Fellow Kenyans,

I have called this press conference to inform the country of two separate but significant events that have occurred in the past one week. I have considered the possible implications of this public statement, but concluded that given the history of this country, such a public disclosure is warranted, necessary, and proper. This statement does not seek to cause alarm but to strengthen the resolve of each and every Kenyan to protect our Constitution, secure our transition, and affirm our future.

On Monday, February 18, 2013, as I was sitting in the Judicial Service Commission interviews for the recruitment of the Deputy Chief Justice, my office received a poison-pen letter from the Mungiki Veterans Group/Kenya Sovereignty Defence Squad. The letter, which was dated Wednesday, February 13, 2013, makes all manner of threats against the Judges, ambassadors and my person. It warns against an adversarial ruling on the Presidential and Deputy Presidential candidacy of Uhuru Kenyatta and William Ruto. The letter extols the violent ‘exploits’ of the Mungiki movement and threatens dire consequences.

This letter was posted only a day before my departure to Dar es Salaam, Tanzania, where I had been invited by the Tanzanian Constitution Review Commission to a one-day event to share my thoughts and experiences on Kenya's constitutional experience. I was stopped at the Jomo Kenyatta International Airport (JKIA) by an Immigration Officer, who insisted that I could not travel because I had not been cleared by Mr. Francis Kimemia, the Permanent Secretary, Head of the Public Service, and Secretary to the Cabinet. I told the official that there is no constitutional, statutory, or policy basis or requirement that provided for the Chief Justice of the Republic to seek clearance to travel from the Head of Civil Service or anybody.

Further, the said Circular that he was invoking to make this illegal demand and decision did not -- rightly so -- even have the Chief Justice listed among the Public Officials on it. It requires quite some courage, ignorance, or political patronage or a combination of all three for an Immigration officer, on his own motion, to summon the confidence to stop a Chief Justice from traveling, particularly in the face of a nonexistent circular! After much haggling, I did eventually travel. The Immigration Shift Supervisor kept insisting that they were awaiting instructions. However, I still find the insistence on permission from Mr Kimemia bizarre to say the least. Even more baffling was that the Chief Registrar of the Judiciary received a purported ‘Clearance to travel”letter by Mr. Kimemia dated February 14, stating ‘..it has been noted the Chief Justice is travelling to Dar es Salaam, Tanzania’.

Upon landing in Dar es Salaam, I received a telephone call from the Director General of the National Intelligence Service, Major-General Michael Gichangi, apologizing for the 'small hiccup' at the airport. I told the DG that a Chief Justice being gratuitously stopped by anybody from traveling cannot fit the definition of a small hiccup, however generous one may want to be. It has never happened on any of my numerous previous trips. I have, therefore, concluded that this is deliberate harassment; and whereas I was keen to have this resolved bureaucratically, I am convinced it is political, and public accountability requires that I make it public.

These two incidents evidence a pattern of emerging harassment against my person, the Office of the Chief Justice, and the Judiciary -- especially since no fewer than five (5) Judges have been attacked in the recent past, with some involving gun incidence – as we head into the elections.

I, therefore, wish to state as follows:

1. Kenyans have invested heavily in this country's democratization, and this investment has resulted in a new Constitution. This Constitution must be protected and guarded jealously. Threats and intimidation of this nature against the Chief Justice, judges, or any other Kenyan or individual must be resisted actively, and rejected resolutely. I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay.

2. I have invested heavily in the past one and a half years in creating a new Judiciary. I have repeatedly given my pledge to the country that the Judiciary will not flinch in interpreting the Constitution as is required, a task we have executed very well. For the 2013 General Election, we have done sufficient ground work to handle both pre- and post-election matters in accordance with the law. On February 28, 2013, we shall hold a special session with all judges of the High Court to give Kenyans a final statement on our preparedness. Therefore, candidates or their supporters -- real or claimed -- should not panic. We shall decide all cases independently, and with scrupulous fidelity to the Constitution and the law. Let no individual, group, candidate, or supporter imagine that cowardly and darkly acts such as these will cower us. We have seen and overcome worse, and we will all soldier on for this country. None will be held hostage by a cabal of retrogrades.

3. The Judiciary has, in a private correspondence, communicated to Mr. Kimemia as to the legal position on the matter of the 'small hiccup' to ensure it never occurs again.

4. I believe that Kenyan security agencies, unless they willfully neglect or refuse to, have the capacity and resources to investigate the sources and partnerships of this threatening letter. To this end, I have this morning sent the letter to the Inspector General of Police, the Director of the Criminal Investigations Department, Director of the National Intelligence Service, and the Director of Public Prosecutions to investigate this matter and give the country a progress report. I am also asking the Inspector General of Police to take the necessary steps to enhance the security of judges and other judicial officers at this time.

5. If anybody, any candidate, any party, any agency, or any other actor thinks that it will bend the ear, mind and resolve of this Chief Justice to do anything that is unconstitutional or illegal, then they are mistaken. On any matter that will come before me or the Supreme Court, I and the Court shall operate strictly within the confines of the Constitution. Intimidation and threats are uninvited guests and will not be hosted in the execution of our mandate.

6. The political class must choose whether, either through direct pronouncements or suggestive behaviour, they want a peaceful, democratic and fair election free from the ring of rigging and intimidation, or whether they want to put the country on a path of violence. Whatever choice the political class and leadership makes, they must remain aware that ultimately, the people of Kenya and the rule of law will triumph. The Judiciary is playing its part in protecting and upholding the Constitution; let Kenyans also do their part.
7. I appeal to Kenyans to hold a peaceful election. It is only by so doing that we shall silence these dark forces of retrogression and also advance our constitutional and democratic promise. My fellow Kenyans, with confidence and tribute to the nation, go and vote for our Constitution. It is the only way to reject those who threaten and proclaim violence as a false choice.

Thank you.

Hon. Dr. Willy Mutunga, D. Jur., SC, EGH
Chief Justice/ President, Supreme Court of Kenya

Why fanatical support for TNA, ODM will lock out key candidates in Kikuyu, Luo area respectively

PM Raila Odinga and DPM Uhuru Kenyatta, both with their ODM and TNA parties are tribal chieftains in Luo and Kikuyu tribes respectively.

By Mwangi Wilson Murimi

I was drinking recently in a bar with a Luhya friend when our discussion took a political detour. Somewhere in the course of our conversation, I heard him mention that Kikuyus and Luos would be to blame in event that Kenya elects an inefficacious president.

I sought to know why my tribe and our lakeside brothers and sisters would carry the blame for such a national disaster. In response he said that the arrogance of the Kikuyu and Luo nations had brought the predicament of hopelessness that now stares the nation in the eye.

He told me that the Agikuyu have two of the best presidential candidates but the larger kikuyu populace has unanimously thrown their weight behind the pinnacle of kikuyu elite impunity by endorsing Uhuru Kenyatta.

According to my Luhya friend, Peter Kenneth and Martha Karua are two of the best presidential candidates for the country but the Kikuyus have refused to elevate either of the two to the Kikuyu Chiefdom, which would have automatically boosted their election to statehouse since they enjoy support across the Kenyan tribal divide.

Back in my home county of Kirinyaga where one of the presidential candidates, Martha Karua hails from, there is a general displeasure among the locals that one of their daughters has sought the presidential vote in clear disregard of the Son of Jomo whom they have already anointed president.

The general feeling there is that Martha Karua would do the country more good if she contested the Gichugu parliamentary seat or the Kirinyaga County senatorship, rather than heralding herself to political oblivion by fighting a losing battle.

The story is the same for Peter Kenneth whom the entire nation acclaims for his track record of development in his Gatanga constituency. Majority of his constituents have already endorsed him as the most preferred candidate for the Murang’a County Governorship, though they have shortsighted his presidential bid.

When Rafael Tuju was the MP for Rarieda he went to the history books of Nyanza as one of the best parliamentarians that Rariedans had ever elected. In just five years his development record was speaking for itself. Tables only turned against him when he vied his reelection on a PNU ticket, something unheard of in Nyanza.

Nothing in the world seems to convince even the Rariedans to even vote him in as MP unless he endorses Raila Odinga for the presidency, let alone his attempt to feature in the presidential ballot paper.

The case was the same with former Tetu MP and Noble Peace winner who lost her seat because she couldn't stand the wave of Kibaki's popularity and her continous call against corruption and nepotism in the government.

As I resumed drinking with another sip of my beer I realized that my Luhya friend actually had a point. If either Martha Karua or Peter Kenneth got the endorsement of the Kikuyus and Tuju got the nod of the Luo and the two candidates went for the presidency and running mate together, Kenya would have a better president than the one we are likely to vote in next year.

But Uhuru, with his rising stakes backed by his theory of the Kikuyu martyr being persecuted at The Hague will never let Kenneth or Karua sit on his Agikuyu throne. Neither will Raila abandon his Jakom’s throne to Tuju or any other Luo.

For Uhuru it is all about protecting himself being the custodian to the loot of his dad and company, and other Kikuyu and Kalenjin elite who illegitimately amassed wealth during the Moi regime.

For Raila, relinquishing the Luo chiefdom to another Luo would take from his hands the golden opportunity he has tasted in barely 5 years of handpicking family members and entrenching them into appointive positions including his own sisters brothers and cousins.

Is there something common between Raila and Uhuru? Yes, they are both merchants of impunity. While Uhuru seeks to become the gatekeeper to ensure that only members of the House of Mumbi loot the nation, Raila will leave no stone unturned to see to it that everybody from his lineage is appointed somewhere.

Now we the Kikuyus and Luos can’t endorse the better candidates for the presidential job. So why can’t Raila and Uhuru run together? They would make a winning combination with other likeminded tribal kingpins anyway.

That way they would have their way and we would resume our complaints of ‘Serikali ifanye kitu’ as we await another election to vote in troublemakers again.

The writer studies communication and media at Maseno University wilsonmurimi@yahoo.com

Tana River violence: Apart from Godhana three other politicians are involved- HRW

Police officers at a scene of tribal clashes in Tana River, HRW says four politicians are involved in the clash over internicine tribal clashes.

The Human Rights Watch, an international watchdog, has called on the government to investigate and prosecute all persons responsible in the Tana River violence.

In an online statement HRW said that apart from Galole MP Dhadho Godhana who was arrested last Wednesday in connection to the violence and sacked as Assistant Minister in Ministry of Livestock Development, there are at least three other politicians involved.

“(Our) research indicates that at least three other politicians may have been involved in inciting or organizing the violence…. and that the police and local administration in Tana River failed to respond to reports from residents over the past six months that violence could be imminent,” it says.

In the statement HRW criticizes the Police for failing to provide adequate security as revenger attacks continue and call on them “to investigate and prosecute all those potentially responsible for crimes, no matter how high-level they are.”

The call comes after President Mwai Kibaki met Coast MPs and said the government will be harsh on politicians who are inciting Kenyans against each other in ethnic lines.

HRW says it carried out research in Tana River in late August and early September to the Tana River clashes which started on 22 last month at Riketa village before September 7, 10 and 11 revenge attacks that have so far claimed 110 lives and displaced 6,000 people.

The research interviewed 16 witnesses from Ormo and Pokomo communities including victims and found that, “area politicians who hoped to win seats in next year’s elections were involved in the violence on both sides… aimed at displacing the supporters of opponents.”

Witnesses reported seeing “Constituency Development Fund vehicles for Garsen (Whose MP is Danson Mungatana) and Galole constituency carrying fuel to Riketa that was later used to burn buildings in the attack.”

The statemnet also points out that Internal Security Minister and Ijara MP Yusuf Haji who has had public spat with Godhana, who hopes to be Tana River County governor has been backing his rival Hussein Dado.

Godhana is facing charges of incitement that led to the September 10 Kilelengwani village attack that left 40 people dead including nine police officers in revenge of an earlier attack at Chamwanamuma which killed at least 11 people.

“Several politicians or political hopefuls have been linked to the violence in Tana River, ending the political violence in Tana River requires bringing to book those behind the clashes on both sides,” Leslie Lefkow, deputy Africa Director at HRW is quoted on the statement.

“For decades the Kenya police have failed to investigate politicians who may be implicated in serious crimes. If they are ready to do so now the authorities must be even-handed and investigate all sides,” Lefkow points out.

© Manuel Odeny, 2012