Saturday, 4 May 2013

Is party over for Mutunga Judiciary?

Chief Justice Dr. Willy Mutunga. PHOTO/ FILE
Chief Justice Dr. Willy Mutunga. PHOTO/ FILE 
Posted  Saturday, May 4  2013 at  20:47
Shortly after Chief Justice Willy Mutunga released a statement on the social media mourning over hatred directed towards the Judiciary, one blogger advised him to “accept the reality and move on”.
This must have been in reference to the March call on Kenyans to accept the presidential poll outcome and continue with their lives.
Another blogger advised the CJ to read reports in the American media last week by former US Supreme Court judge Sandra Day O’Connor. On Friday, Judge O’Connor whose decision to vote with the majority in the 5-4 Bush v. Gore decision ended the 2000 presidential election recount, told the Chicago Tribune that she regretted the decision.
“It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day,” Justice O’Connor said.
The decision, the judge told the Tribune, “stirred up the public” and “gave the court a less than perfect reputation”.
Like the US Supreme Court, the Kenyan Judiciary is reeling under a barrage of criticism after the Supreme Court’s decision on the presidential election petition which has split the country and threatens to erode the public confidence the institution had worked hard to regain.
The issue is said to have come up at a meeting of the Judicial Service Commission on Friday but none of its members was willing to confirm.
Dr Mutunga is the president of the Supreme Court that rejected a petition filed by former Prime Minister Raila Odinga that challenged the election of President Uhuru Kenyatta.
In its judgement, the Supreme Court said Mr Odinga failed to prove that Mr Kenyatta did not get the required votes to qualify as President-elect.
But on Friday, Mr Odinga accused Dr Mutunga of presiding over an “injustice” and told him to stop complaining about bribery allegations levelled against him.
“Remember that 800 pages of our evidence were struck out by the Supreme Court with a stroke of the pen. Then the same court goes ahead to say that there was no evidence, is this justice or injustice?” Mr Odinga asked.
“When the Chief Justice says he is offended, he should know that there are Kenyans out there who are more offended than him,” a visibly agitated Mr Odinga said on Friday.
Notably, the criticism is coming from some of Dr Mutunga’s old friends such as Mr Odinga, Prof Makau Mutua who was at one point his boss at the Kenya Human Rights Commission and former Kenya National Commission on Human Rights all which defended his appointment.
Besides the much-debated Supreme Court decision, a series of judgements such as the recent termination of the Goldenberg cases have started raising questions on whether there has been any radical shift in the thinking of the Judiciary from the Kanu era.
The country lost billions of shillings in fictitious exports of gold and diamonds, in a scheme designed by businessman Kamlesh Pattni.
Incidentally, Dr Mutunga at one time unsuccessfully tried to prosecute Mr Pattni over the scandal while serving as chairman of the Law Society of Kenya. 
Dr Mutunga was on the spot last year over what the LSK saw as a move to rescue Supreme Court judge Mohammed Ibrahim who had been declared unfit to continue serving by the Sharad  Rao-led vetting board.
Before the March 4 election, the Supreme Court was polled as one of the most trusted institutions in Kenya. However, such rating is unlikely today if comments in the Media is anything to go by.
Whereas a section of the country jubilated, another section felt let down by a court they expected to order an election re-run on account of alleged irregularities.
Critics have also accused the court of relying on authorities from countries such as Uganda and Nigeria whose democratic record was wanting.
“The credibility of the Supreme Court evaporated after the decision on the presidential election petition was delivered,” says Mr Joseph Simekha, a governance and public administration analyst.
“By looking up to Nigeria and Uganda as pace setters in upholding justice and development of jurisprudence, the Supreme Court fell on the worst possible precedence,” he said.
Two weeks ago, the CJ sought to clarify that “he was not the Supreme Court”.
Other judges in the court are Justices Philip Tunoi, Njoki Ndung’u, Smokin Wanjala, Jackton Ojwang’ and Ibrahim.
However, Senior Counsel Ahmednasir Abdullahi, a member of the Judicial Service Commission, came into the defence of the Judiciary, particularly the Supreme Court judgement.
“It was an earth-shaking precedence which will be quoted in many days to come,” he said.
The lawyer, who acted for the by the electoral commission chief Issack Hassan in the petition, dismissed arguments that the Judiciary has lost face as “utter nonsense”.
He said the Supreme Court was composed of distinguished jurists with many years in the academy and that many Kenyans were “satisfied with the jurisprudential wisdom of the judgement”.
“Kenyans must interrogate those making the claims that the judgement had no intellectual stature. Most of them are jua kali analysts with small degrees who have not practised law.
“Have they ever published a paper in a peer-reviewed journal? Which cases have they handled? Which book have they written?” Mr Abdullahi asked.
Instead, the lawyer said the Judiciary emerged stronger from the case and solidified itself as an arbiter of disputes.
“The Judiciary is not about Raila,” he says.  “The court was meant to scrutinise facts and evidence but they found none. Any objective Raila supporter will agree that he had no case.”
On Odinga’s rejected 800-page affidavit, Mr Abdullahi said the former PM was bound by the decisions and rules of the court. “The second volume of evidence was supplementary and was interrogated and dismissed.”
Mr Abdullahi also defended the judges saying they relied on developing countries which have experienced elections challenges.
“Those were most relevant. Countries such England, France and Germany have no such problems.”

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