NAIROBI, Kenya, Oct 29-Chief Justice Martha Koome has termed calls for Judges to down their tools as dangerous, saying it would amount to dismembering the constitution.
Koome in a statement on Friday said she was deeply concerned over the calls by former Chief Justice Dr. Willy Mutunga, for judges to strike, in protest of the continued disregard of court orders by President Uhuru Kenyatta-led government.
The former CJ made the remarks during an event at the United Green Movement party’s headquarters in Nairobi on Thursday.
In a quick rejoinder, CJ Koome said such a move would have far-reaching implications.
“It is in part, calling for the suspension or dismemberment of the Constitution by excluding one arm of the Government from the constitutional operations of our democratic state,” she said in a statement released to newsrooms on Friday.
“While it is appreciated that every person is entitled to intellectual or opinionative expression, it must be remembered that where such expressions threaten the lives and livelihood of millions of Kenyans, we must all stand together to find lesser damaging alternatives which are not at variance with our collective obligations as a people to defend the Constitution.”
To justify her arguments, the CJ said Mutunga too, while serving in her capacity, disapproved any attempts by judges to down their tools.
“It is therefore regrettable that Dr. Mutunga has called for abscondment of duty by the Judiciary which in effect, will affect the operations of the entire justice sector,” she said.
As the CJ, she asserted that “my foremost obligation is to defend the tenents of Judicial Authority espoused under Article 159 of the Constitution. Justice shall be done to all and without delay,” she said.
She urged the Judges to “ignore the pernicious call and focus on the progressive reforms that we have committed to pursue, central to which is finding mechanisms to reduce case backlog.”
She said 700,000 cases “worth billions of shillings” are pending in the Judicial system.
“Clearing this backlog remains our top priority,” she said. “We, therefore, cannot afford to abandon our judicial mandate owing to a matter that is pending before the Court of Appeal and which will be accorded centrality that it deserves.”
When faced with a similar predicament, Koome said the former Chief Justice opted for a diplomatic route.
“The former Chief Justice perilous call to Judges to down their tools, an outcome which he consciously avoided during his tenure, is not the answer,” she affirmed.
“I welcome Dr. Mutunga to support the institution he transitioned from the difficult dictatorial days by strengthening its capacity to continue dispensing justice to Kenyans through constructive dialogue.”
Last week, Dr. Mutunga said that he would be travelling to Canada to accompany lawyer Miguna Miguna back into the country.
Dr. Miguna Miguna, a firebrand opposition lawyer, was ejected from Kenya in February 2018.
He had earlier been arrested for his role in the mock inauguration of opposition leader Raila Odinga as the “people’s president”, despite the High Court’s ruling that barred the Director of Criminal Investigations (DCI) and the Inspector General (IG) of the police from preferring any criminal charges against him and ordered that he be set free.
His subsequent attempts to return to the country from Canada, where he’s also a citizen, have been futile despite more than 10 court orders.
“I have taken this extraordinary step for two fundamental reasons. The first is because of the continued, flagrant and reprehensible defiance of the Government of Kenya, its agencies, and senior officials, against the numerous valid court orders in favour of Miguna,” said Dr. Mutunga in a statement released during Mashujaa Day celebrations.
“The second reason why I have decided to undertake this journey is to support and defend the independence of our Judiciary, its authority, and the people’s confidence in it.”
President Kenyatta was last week directed to appoint the remaining six out of 40 judges he declined to approve in June within the next 14 days.
“Upon the lapse of the 14 days, without Uhuru having made the appointment it shall be presumed that his power to make them has expired and his office becomes functus so far as the appointments are concerned and the six nominees shall be deemed duly appointed effective from the date of default as Judges of superior courts for which they were recommended,” reads a section of the ruling.
The six judges include Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi, who were to serve in the Appellate court.
The Attorney General has since appealed the ruling.
Law Society of Kenya President Nelson Havi however said Koome’s statement was unnecessary.
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