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

Annan, Bensouda visits show West is meddling in Kenyan internal affairs

Fatou Bensouda

By Mwangi Wilson Murimi

Recent visits to Kenya by the 2008 post-poll chaos chief mediator Kofi Annan, and the ICC prosecutor Fatou Bensouda raise eyebrows. The oddity of some of Annan and Bensouda’s remarks during their visits raise even more eyebrows!

When Annan visited the country early this month he made an outburst that Kenya risked suffering a diplomatic entanglement with the West if either Uhuru or Ruto were elected as president.

This was a statemnet ran against the political freedom of the Kenyan people from whom the legitimate authority of choosing their leaders is derived. It was in fact a flagrant infringement into sovereignty of the country.

While he was justified as the chief mediator in the 2008 post-poll chaos to visit the country and assess the progress of the coalition government, it was competently erroneous for him to flagrantly discredit the candidacy of the two.

Additionally during his visit Annan comment on judiciary, one of the most reformed arms of the coalition government. There has been a general feeling that the comments could have been an inducement for the Kenyan courts to give a verdict that suits the stand of the West on the Uhuru-Ruto candidacy.

The comment must not be taken seriously since the same judiciary has goofed in the recent past in what can be termed as judicial activism by removing the ban on Mombasa Republican Council (MRC) which has been discredited with the recent past by chaos.

There is also a general feeling in part of the country that Chief Justice Willy Mutunga sides with some political class under the reform agenda.

This same feeling, which can’t be set ignored even though it’s a long shot claims Annan on his meeting with Prime Minister Raila Odinga behind closed door meeting talked on issues of the forthcoming elections and not about the coalition government.

Now the recent meeting by ICC prosecutor Fatou Bensouda to visit 2007/08 PEV hotspots and seek cooperation on evidence in Hague cases from the government though good got muddled by her statement like Annan.

In her press statement she spoke of the politicization of the ICC, and exonerated the court from claims of persecuting Kenya or finishing certain tribes.

Bensouda also became a subject in the mouth of Kenyans after her remarks that the ICC would not adjust its calendar to allow the participation of Ruto and Uhuru in the forthcoming elections scheduled for March year didn’t augur well with some Kenyans .

The international community must respect not only the sovereignty of the Kenya but also the right of the Kenyans to exercise their political freedom in choosing leaders.

Although both Annan and Bensouda may be black they work for West backed institutions like UN and ICC who often intervene when West interest are threatened by developing countries.

Like the current escalating cold war between five permanent members of the Security Council on fundamental issues like nuclear arms race, Arab spring, green energy and the rise of China.

China’s economic reputation with bilateral trade with Africa (including Kenya) has irked the West which is sinking in economic crisis which can be used by UN and ICC to meddle with Kenyan elections to bring in West friendly nations.

This is why allegations that the ICC could be used as a tool to settle political scores between Kenya and the West by entrenching a West-Friendly government should not be ignored..

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