Dr. Mutunga: The Judiciary Will Not Be Intimidated

[adongo23456]

The Chief Justice is damn right. Intimidating the judiciary is the sure way to bring back dictatorship where judges have to find out what the president and the powers that be want before they can make any ruling. The days of lap dog Chief Justice to cover such nonsense is over. Willy has done a good job to stand up for the judges. This inspires a lot of confidence. Bravo.

Here we go:

www.standardmedia.co.ke/InsidePage.php?id=2000047645&cid=4&ttl=Mutunga%20tells%20Government%20off%20over%20Bashir%20court%20ruling

www.nation.co.ke/News/CJ+Mutunga+says++Kenyan+Judiciary+will+not+be+intimidated/-/1056/1282548/-/7sfdrs/-/index.html

I like this part:

"In accordance with Article 160 of the Constitution of Kenya, 2010 each judicial officer is independent and is not subject to the control or direction of any person or authority in the dispensation of judicial duties,"

And this one:

"Court orders apply universally- to ordinary citizens, corporations, members of the Judiciary, Executive and Legislature. If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law."

Too bad they never got any of their lap dogs in this position. Twende kazi. An independent judiciary is a very powerful tool.

PS: I posted this on another thread but I think it is an important development worthy of its own thread.

[Omwenga]

Dec 1, 2011 23:03:13 GMT 3 adongo23456 said:

The Chief Justice is damn right. Intimidating the judiciary is the sure way to bring back dictatorship where judges have to find out what the president and the powers that be want before they can make any ruling. The days of lap dog Chief Justice to cover such nonsense is over. Willy has done a good job to stand up for the judges. This inspires a lot of confidence. Bravo.

Here we go:

www.standardmedia.co.ke/InsidePage.php?id=2000047645&cid=4&ttl=Mutunga%20tells%20Government%20off%20over%20Bashir%20court%20ruling

www.nation.co.ke/News/CJ+Mutunga+says++Kenyan+Judiciary+will+not+be+intimidated/-/1056/1282548/-/7sfdrs/-/index.html

I like this part:

"In accordance with Article 160 of the Constitution of Kenya, 2010 each judicial officer is independent and is not subject to the control or direction of any person or authority in the dispensation of judicial duties,"

And this one:

"Court orders apply universally- to ordinary citizens, corporations, members of the Judiciary, Executive and Legislature. If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law."

Too bad they never got any of their lap dogs in this position. Twende kazi. An independent judiciary is a very powerful tool.

PS: I posted this on another thread but I think it is an important development worthy of its own thread.

@adongo,

I have no problem at all with what the CJ said and can't even say I agree with it as he has simply stated a fact but I am disappointed he even bothered to say it at all.

While I fully support the need to put people on notice the days when the president dictated to the judiciary what to do are in the past, this can be done without the CJ himself necessarily doing it; let others do this for him otherwise he starts talking ovyo ovyo he'll soon find himself and the new judiciary held to the same ridicule many politicians are when they payuka around not that he is here and that will be a sad day not just for him and the judiciary but the whole country.

[adongo23456]

Omwenga,

The CJ is the only person who could make such a statement. All judges serve independently as judicial officers but administratively they are under the CJ. It is the CJ that has to come out and defend the judiciary when the vultures of impunity all the way to the president and cabinet ministers are issuing threats to judges for making rulings they don't like.

Dr. Mutunga would be a coward to hide under his big chair and let somebody else defend judges being attacked by the highest offices in the country.

I have known Dr. Mutunga and worked with him for many years. He is a very deliberate person and one thing he is NOT is a coward. That man never rushes on to anything unless he thinks it through. That the Chief Justice we are going to have for the enxt five long years for the merchants of impunity.

If you read the comments from the often largley conservative DN crew you see how Kenyans feel so proud of the stand Dr. Mutunga took. Impunity must be licked in the teeth over and over again. That is the only language they know. Bravo to the CJ.

[Omwenga]

Dec 2, 2011 0:53:34 GMT 3 adongo23456 said:

Omwenga,

The CJ is the only person who could make such a statement. All judges serve independently as judicial officers but administratively they are under the CJ. It is the CJ that has to come out and defend the judiciary when the vultures of impunity all the way to the president and cabinet ministers are issuing threats to judges for making rulings they don't like.

Dr. Mutunga would be a coward to hide under his big chair and let somebody else defend judges being attacked by the highest offices in the country.

I have known Dr. Mutunga and worked with him for many years. He is a very deliberate person and one thing he is NOT is a coward. That man never rushes on to anything unless he thinks it through. That the Chief Justice we are going to have for the enxt five long years for the merchants of impunity.

If you read the comments from the often largley conservative DN crew you see how Kenyans feel so proud of the stand Dr. Mutunga took. Impunity must be licked in the teeth over and over again. That is the only language they know. Bravo to the CJ.

@adongo,

You are forgetting one big bullhorn the CJ has is the bench itself.

Let him and the court start churning legally sound and well reasoned judicial opinions and that will speak louder than anything he can say in the media as the latter is bound to drag him down to the trenches with the illiterate but sharp-witted politicians who will always win the debate in the public eye forget about his intellectualism and ability to call it right and the way he sees it.

That's the danger I see and thus my counsel to be selective in what he says publicly outside rendering an opinion on a case before the court.

I am otherwise in agreement with you in substance I suppose we disagree only in how the message should be delivered.

BTW, when I say let others speak for him, I include us here for we are fully behind what he stands for--well, as fully as we know.

[job]

This is precisely why I strongly supported Dr. Willy Mutunga for Chief Justice. What a breath of fresh air! It ain't business as usual fellas. The CJ must protect the independence of the Judiciary.


Isn't the contrast already obvious; between the dark era under Gicheru vs Mutunga's new dawn?


These are great strides in the right direction. Let's now wait and see what Githu and the PNU does in their relentless effort to continue perpetuating impunity.

[foresight]

My problem with this whole thing Adongo is straight forward , I perceive some KIND OF CHEST THUMPING on the part of the JUDICIARY. I see a dangerous trend being introduced by this CJ.. something like "WE ARE THERE FOR EACH OTHER" kind of a thing. Will our Judiciary under the guise of "separation of powers" turn into a cult? God forbid!!!

The Executive has a VALID point in as far as the bigger picture touching on international relations IS CONCERNED

Should I root for a JUDICIARY and a CJ who dismisses synergy? i.e The working together of two things (muscles or drugs for example) to produce an effect greater than the sum of their individual effects]. I particular don't think so.. and we should not allow this trend to take root.

I have to say that his timing is off in all dimensions, and it now appears that he is desparately trying to please the Judiciary far from leading them. He wants to lead by being a type of demagogue. In essence the CJ is mutating into a politician.

I am dissapointed.

[mzee]

Apart from the question of wanting helicopters, this CJ has done really well. Wetangula can go to Sudan and do what he does best i.e. represent his master, the other lord of impunity Mr. Kibaki who missed The Hague by a whisker. But as the people of Kenya, we will support Dr. Mutunga to the core.

I think that’s a great thing for the judges to know that the CJ will always be behind them and not against them as in the past. The judges now know that they can bravely make any decision based on the law of the land and the executive is not going to threaten them with all manner of sanctions including demotions, transfers and firings.

Bashir can twist and turn in the air but the court’s decision stands and Kibaki has no power whatsoever to reverse or modify it. What a nice time to live in Kenya.

[amunra]

While I applaud the judiciary’s new sense of independence it comes at a backdrop of THE BASHIR RULING(i wish it was a loca/national issue)

In my humble layman opinion, the COURT RULING on an international matter whether we have domesticated international law or not is BOTH poor IN time and a blunder diplomatically for Kenya.

1. Why does the judiciary have to prioritise an international matter THEN CLAIM TO BE INDEPENDENET YET It is a different story where simple domestic, national issues..Etc..But we want to arrest Bashir yet we can’t DO SOMETHING about our own BASHIRS,CMON?

2. We are at war, what Kenya needs is allies across the region not courts that go after these allies

The judiciary would have considered ignoring the case till a later date OR delay ruling like in most nations do when facing matters in court that would affect other nations and their relations

for e.g US Act of State doctrine a principle recognized and adhered to by United States federal courts. Its aim is not to protect other nations' sovereignty by intervention from the U.S.but rather to protect the US Executives prerogatives in foreign affairs from being frustrated by a decision issuing from U.S. courts (WIKIPEDIA)

[Omwenga]

Dec 2, 2011 15:18:17 GMT 3 amunra said:

While I applaud the judiciary’s new sense of independence it comes at a backdrop of THE BASHIR RULING(i wish it was a loca/national issue)

In my humble layman opinion, the COURT RULING on an international matter whether we have domesticated international law or not is BOTH poor IN time and a blunder diplomatically for Kenya.

1. Why does the judiciary have to prioritise an international matter THEN CLAIM TO BE INDEPENDENET YET It is a different story where simple domestic, national issues..Etc..But we want to arrest Bashir yet we can’t DO SOMETHING about our own BASHIRS,CMON?

2. We are at war, what Kenya needs is allies across the region not courts that go after these allies

The judiciary would have considered ignoring the case till a later date OR delay ruling like in most nations do when facing matters in court that would affect other nations and their relations

for e.g US Act of State doctrine a principle recognized and adhered to by United States federal courts. Its aim is not to protect other nations' sovereignty by intervention from the U.S.but rather to protect the US Executives prerogatives in foreign affairs from being frustrated by a decision issuing from U.S. courts (WIKIPEDIA)

amunra,

I echo your sentiments which mirror mine; well stated and hope all agree or at least see the underlying logic.

[b6k]

Now that Omwenga succeeded in bringing the debate to a screeching halt by agreeing with both Adongo & Amunra, who appear to be arguing very different cases, don't we need to go back to square one? What does the new constitution say regarding the judiciary's ability to interfere or meddle in matters that touch upon foreign affairs? Once that can be defined then we can know if Mutunga is talking hot air or is fighting the good fight for an independent judiciary.

[kamalet]

What Dr Ear Ring (as they referred to him in a Nation comment) said was right. But the question that needs to raised is whether it was actually necessary for him to issue the statement he issued.

As CJ, he cannot be responding to every statement made by a politicians for in time we may not tell the difference between him and the politicos. The politicians threatened to ignore the court ruling but they had not - and in any case none of the people named in the order had commented on the orders or even suggested that they would disobey the orders -which is why I think the statement was misplaced.

On the disobedience, the court had recourse in the name of contempt should the orders have been disobeyed by the two officials had Bashir come to Kenya and not been arrested. No one had even suggested that Bashir was coming to Kenya for preparations to disobey to be in place and for the good CJ to start yapping away.

The second thing that the statement raised was the effect it would have had on any appeal by government to the same courts and whether the government would have had a fair hearing. I can imagine the government feeling disadvantaged in the event of an appeal and would probably not even bother to appeal.

Do not be surprised if the CJ dons those ugly robes that makes the justices look like Machakos Municipal councillors in session at Machakos town hall, and heads to the streets carrying placards condemning something else - looks like people never change!

[jakaswanga]

Dec 3, 2011 7:46:44 GMT 3 b6k said:

Now that Omwenga succeeded in bringing the debate to a screeching halt by agreeing with both Adongo & Amunra, who appear to be arguing very different cases, don't we need to go back to square one? What does the new constitution say regarding the judiciary's ability to interfere or meddle in matters that touch upon foreign affairs? Once that can be defined then we can know if Mutunga is talking hot air or is fighting the good fight for an independent judiciary.

b6k,
This why I maintain [on the other thread on the same issue] that I would laud the AG giving a professorial reading of the constitution, interpreting it at nobel price-levels, and clearly reducing the judgement to a layman's lunacy.
Amigo, the constitution is still a baby, and I would love to see the recepts from the best of the 'obstetrics and gynaecologist' department! Even if only for academic intertainment [--professors can be mighty irrelevant and absent minded you know!]

But fat Wetangula smacking his lips with his lazy brains fresh from an oily feast at Bashir's loins reading our Judges the riot order....
A-A yawa, mago ahingo, --my fishy brains are strong enough to smell the rot!

[Onyango Oloo]

In the meantime...

www.sudantribune.com/Sudan-s-Bashir-gives-Kenya-two,40892

[Titchaz]

Dec 3, 2011 14:33:41 GMT 3 Onyango Oloo said:

In the meantime...

www.sudantribune.com/Sudan-s-Bashir-gives-Kenya-two,40892

How do you withdraw a warrant by the way?

Thank God we have a new dispensation to work with and Bashir needs to know that. Sisi apana nchi kama ya huko kwake!

[okolowaka]

...This is the problem Kenya, "the Island of Peace" has to deal with now that we have a new constitutional dispensation that attempts to stamp the authority of the judiciary.

Sudan and some other countries in Africa are still living in the past; much like what we had during the Moi era when the one O'clock afternoon news bulletin was the most important time of day...the official dictates or pronouncements of the baba na mama were made.

Bashir is baba na mama in Sudan, judge number one; oil trader number one; soldier number one, etc. When anyone appears to question his authority, the result may be like what happened in Dar-fur, Kodorfan, and South Sudan that led the ICC to indict and find him guilty on charges of crimes against humanity.

There must be more than meets the eye judging from the haste with which Kibaki seems to want to rush to Bashir's side, disregard Kenyan court rulings and risk looking like just another dictator in Africa supporting his fellow dictator...not just the Kshs 200 million trade volume that Wetangula wants to save...things must be thicker than we see...

Kibaki will have himself to blame on how he is handling this one, especially with the ICC office in Nairobi actively monitoring the unfolding shuttle diplomacy to try to soothe the bloated ego of a wanted fugitive. It would have been better to just let the ambassador return home now and instead take any IGAD meetings elsewhere away from Kenya because he will still have to come home in two weeks time anyway...the court ruling will still stand...

It is time the executive and legislature accept and appreciate that it is not business as usual in Kenya...go tell it on the mountains, over the hills and everywhere...

[mzee]

This is going to go to the wire and Im sure that the court will not reverse its decision.

The question is, what will Kibaki do? Invite the field marshall Bashir to show him that all is well and that he has nothing to fear or try bribing the court of appeal to overturn the verdict? What is it gonna be?

Kenya has taken many steps ahead by the judgement. The indepence of the courts has clearly been shown.

Bashir ameze wembe

[Deleted]

Amnesty International Urges Ethiopia, Tanzania, Zambia to Bring George W. Bush to Justice

Contact: Sharon Singh, [e-mail], 202-509-8194
(Washington, D.C.) -- Amnesty International urges the governments of Ethiopia, Tanzania and Zambia to arrest former U.S. President George W. Bush during his expected visit to the region between December 1 and 5, 2011, for crimes under international law.
Amnesty International considers that there is enough evidence in the public domain, from U.S. authorities and from George W. Bush himself, to trigger requirements for Ethiopia, Tanzania and Zambia to investigate his alleged involvement in and responsibility for torture, and to secure his presence during the investigation.
"All countries to which George W. Bush travels have an obligation to bring him to justice for his role in torture," said Matt Pollard, senior legal adviser.
Amnesty International recognizes the value of raising awareness about cervical and breast cancer in Africa, the stated aim of the visit, but this cannot lessen the damage to the fight against torture caused by allowing someone who has admitted to authorizing water-boarding to travel without facing the consequences prescribed by law.
"International law requires that there be no safe haven for those responsible for torture; Ethiopia, Tanzania and Zambia must seize this opportunity to fulfill their obligations and end the impunity George W. Bush has so far enjoyed," said Pollard.
Amnesty International has written to the Ministers of Justice in each of the respective countries to remind them about their obligations under international law and providing them with the supporting documentation making the case for the investigation of George W. Bush.
Amnesty International is a Nobel Peace Prize-winning grassroots activist organization with more than 3 million supporters, activists and volunteers in more than 150 countries campaigning for human rights worldwide. The organization investigates and exposes abuses, educates and mobilizes the public and works to protect people wherever justice, freedom and dignity are denied.

www.amnestyusa.org/news/press-releases/amnesty-international-urges-ethiopia-tanzania-zambia-to-bring-george-w-bush-to-justice

[moesha]

What a mockery of our judiciary system by Wetangula' careless statements. I thought that once a court decision has been reached, that the ruling stands unless reversed by an appeal. Why are the arms of government not working together on this matter? Either way you look at this, Kenya ends up looking bad.

Question is, why is this relationship so important that our principals are willing to do whatever it takes to allow this tragedy to happen? It is a tragedy, given that he is a mass murder still roaming around free intimidating people and no one can touch him.

[merkeju]

Kenya given ultimatum to change its ruling within two weeks or else....

www.nation.co.ke/News/Bashir+issues+ultimatum/-/1056/1283742/-/ji9tiuz/-/index.html

[kamalet]

Dec 4, 2011 5:12:07 GMT 3 moesha said:

What a mockery of our judiciary system by Wetangula' careless statements. I thought that once a court decision has been reached, that the ruling stands unless reversed by an appeal. Why are the arms of government not working together on this matter? Either way you look at this, Kenya ends up looking bad.

Question is, why is this relationship so important that our principals are willing to do whatever it takes to allow this tragedy to happen? It is a tragedy, given that he is a mass murder still roaming around free intimidating people and no one can touch him.

Just what is careless about a statement by Wetangula disagreeing with a judgement of a court whilst he has also indicated that the government intends to appeal?? You appeal because you do no agree with a decision and saying it is not against the law!

And therein lies the problem with Kenya(ns) - everything is all political!

[jakaswanga]

It is nolonger the government tends to appeal. The minister for Constitutional and Justice Affairs [...] Mutula Kilonzo is with the judge. Kalonzo Musyoka is surveying the way the wind goes. And Bashir has demanded a withdrawal in 2 weeks. And the judge ofcourse has the prerogative of choosing a sitting date to schedule the appeal!

[kamalet]

Dec 4, 2011 16:14:05 GMT 3 jakaswanga said:

It is nolonger the government tends to appeal. The minister for Constitutional and Justice Affairs [...] Mutula Kilonzo is with the judge. Kalonzo Musyoka is surveying the way the wind goes. And Bashir has demanded a withdrawal in 2 weeks. And the judge ofcourse has the prerogative of choosing a sitting date to schedule the appeal!

A tard bit selective with regard to Mutula being with the judge!!! I am with the judge as well. He issued an order that requires obedience....but do I agree with the judgement? NO! That is why I am for an appeal....ala Wetangula?

[jakaswanga]

Dec 4, 2011 16:35:47 GMT 3 kamalet said:

]
A tard bit selective with regard to Mutula being with the judge!!! I am with the judge as well. He issued an order that requires obedience....but do I agree with the judgement? NO! That is why I am for an appeal....ala Wetangula?

This appeal is a right, and it is privillege of the executive arm [in this case appearing to be the defendant] to exercise it. Correct should have been when the leading government consulent [the AG] informs of the intention to appeal, and substantiates the legal base. Ministers, not just Wetangula but even Kilonzo, should just refer to the AG, and further shut up, saying it would be inappropriate to comment on a matter before the courts. Since all their pronouncements will be politically interpreted, however the merit.
This [clininical protocol] saves alot of hullabaloo... and [old] Gor Mahia like stone-throwing!

[Omwenga]

Dec 3, 2011 7:46:44 GMT 3 b6k said:

Now that Omwenga succeeded in bringing the debate to a screeching halt by agreeing with both Adongo & Amunra, who appear to be arguing very different cases, don't we need to go back to square one? What does the new constitution say regarding the judiciary's ability to interfere or meddle in matters that touch upon foreign affairs? Once that can be defined then we can know if Mutunga is talking hot air or is fighting the good fight for an independent judiciary.

b6k,

Courts should not "interfere" or "meddle" in any issue even though a case can be made they try to do this all the time as in this Bashir matter.

As to the extent of the court's power, it is simply to state what the law is with respect to its power to interpret the constitution without limitation as to what the issue is and the power to apply the law within its jurisdiction as provided by the constitution, which I can posit here and soon elaborate that jurisdiction is not and cannot be unlimited, other than noting this is so in part because of the reasons I have stated in my blog on this topic www.standardmedia.co.ke/InsidePage.php?id=2000047761&catid=507&a=1.

[subsaharanite]

As much as everyone here seems to side with Mutunga, I would take the opposite stand reason being, this guy has not done anything yet apart from requesting Copters for his colleagues and changing judicial attires to some church like robes.

With the falling Milimani Courts, Mutunga has done nothing other than point out the problem. He has not even directed anybody prosecuted yet. As far as I am concerned, someone should be brought to court over the shoddy work done, not another long and winding inquiry to be made. This guy is simply shouting at the executive to do something.

Someone remind him that he he on top now. He his not another activist. The last time we accorded one activist (PLO)with hefty powers resulted in preacher like rants all over about corruption with nothing to show. I remember one instance where he participated in a walk to the lands office like Omtatah yet he had powers to bring the culprits to book. Mutunga actually represents the entire judiciary, a post more powerful that PLO's and should adjudicate in such matters instead of trying to 'Kuomba Serikali Imsaidie kufanya uchunguzi kwa yale yaliyofanywa huko Milimimani law courts'

The damages on the building are visible. Someone should be bundled to the court by now. Already a policeman has received injuries. Shouldn't this man direct the policeman to sue the contractors?

The government has already responded in support of the contractor. Obure claims the foundation of the building is one of the strongest in Nairobi. He actually told us that the contractor did nothing since the foundation and structure of the building were set many years back. We spent a billion over 8 years for nothing. Someone one should be sent to the gallows.


On the Sudan case, again I await to see whether he will stand firm with what he stated or he will buckle. Its only a matter of one or two weeks.

I am still waiting for real reforms from Mutunga.