Is Willy Mutunga to Uhuru what Kitili Mwendwa was to Jomo?

[Daktari wa makazi]

Willy Mutunga is not the only Chief Justice of Kenya to hail from Kambaland.

Jomo Kenyatta had Kitili Mwendwa who was from Matinyani village in Kitui and who at 39 became Kenya’s youngest and first African Chief Justice. He was appointed in 1968 only to resign in 1971. He was initially Jomo Kenyatta’s Solicitor General with little experience in legal trial and judgements. Charles Njonjo, then Attorney General picked Kitili Mwendwas as a successor to a colonial judge who was forced to resign.

Mutunga and Mwendwa come from two different worlds although they both hail from same town of Kitui. Unlike Mutunga, Mwendwa was born an “aristocrat”, his father having been a paramount chief.

As a chief Justice, Mwendwa is remembered for a notorius criminal judgment - Republic vs El Mann case of 1969. In that case, the CJ Mwendwa led a bench in misinterpreting the Constitution to suit political expedition. The Constitution then said, “No person who is tried for a criminal offence shall be compelled to give evidence at his trial.” El Mann’s evidence was used to convict him as the court held that the compulsion did not included acts prior to the trial and that he was not given the legal protection he sought as per the Constitutional provision. That decision led to the Constitution being rendered almost ineffective during the Jomo Kenyatta and Moi era. Happily, this decision has now been consigned to the dustbins of legal history. See here

Mwendwa fell out with Jomo Kenyatta when he was accused of military plot to overthrow the government with other prominent Wakamba in the govt. He later entered politics, became an MP but was tragically killed in a traffic accident during Moi’s era in 1985. Many said he was killed for political reasons – and the then Attorney General, Matthew Guy Muli’s inquiry on his death never materialized fermenting widespread suspicions of foul play. His wife later dropped private legal inquiry – she entered politics, and was made a minister in Moi’s govt.

Enters the scene another Mkamba Chief Justice Willy Mutunga from Kitui and this time round it is the son - Uhuru Kenyatta.

Before analysing the Mutunga vis-a-vis Uhuru, it is important the facts are gathered. To achieve that end, I have reconstructed below the Petition of Dr Alila as reported in the Star

www.the-star.co.ke/news/article-144592/plot-begins-remove-cj-mutunga

Dr Dan Alila, the Petitioner hereby files a solemn petition before the Judicial Service Commission (JSC) seeking the removal of Chief Justice (CJ) Willy Mutunga.

The Petitioner is reliant upon these Prayers.

THAT

1. The CJ has clearly and evidently displayed personal bias and partiality. The CJ displayed bias by supporting Supreme Court Mohammed Warsame after he was initially dropped by the Judges and Magistrates Vetting Board for failing to clear a backlog of cases, some dating back five years.

2. The CJ unfairly and unprocedurally removing the former Chief Registrar of Judiciary Gladys Boss Shollei in October. Shollei was removed without following due process, the constitution, the JSC Act and the judicial code of conduct.

3. The CJ failed to act when Shollei informed him of the meddling of JSC in the financial management of the judiciary, leading to the loss of public funds and the creation of “healthy environment” for corruption.

4. The CJ made prejudicial remarks in respect of former Deputy Chief Justice Nancy Baraza. The CJ made “unfortunate remarks” during a TV breakfast show when he asked Kenyans to read the tribunal’s ruling and the Mumo Matemu ruling to acquaint themselves on integrity issues, yet Baraza had moved to the Court of Appeal to challenge her removal.Matemu was later cleared by the Court of Appeal and took up his position at the Ethics and Anti-Corruption Commission.

5. The CJ has failed irredeemably and displayed ineptitude and ineffectiveness in the management of the Judiciary.

6. The CJ failed promote a good working relationship between the Judiciary and other organs of government, especially the National Assembly.

7. The CJ has failed to enforce professional ethics in the judiciary personnel including the JSC members.

The Petitioner hereby prays – that the JSC set in motion the removal of Justice Mutunga as the head of the Judiciary, President of the Supreme Court, chairman of the JSC, and chairperson of the National Council on Administration of Justice because the CJ has shown open bias, interference, partiality and unfairness[/b contrary to the Judicial code of conduct and Ethics as well as expectation from him.

Next task is to analyse the legal standpoint of the petition.

[Daktari wa makazi]

To analyse the petition by Dr Allila, one needs to look at the provision of the Constitution,

168. Removal from office

(1) A judge of a superior court may be removed from office only on the grounds of--

(a) inability to perform the functions of office arising from mental or physical incapacity;
(b) a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament;
(c) bankruptcy;
(d) incompetence; or
(e) gross misconduct or misbehaviour.

(2) The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission.
(3) A petition by a person to the Judicial Service Commission under clause (2) shall be in writing, setting out the alleged facts constituting the grounds for the judges removal.
(4) The Judicial Service Commission shall consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President.
(5) The President shall, within fourteen days after receiving the petition, suspend the judge from office and, acting in accordance with the recommendation of the Judicial Service Commission.

Dr. Allila's petition was in writing, (as per Article 168(3)) but I think it fails in setting out the alleged fact which forms the ground to remove the CJ. I don't know what has happened to the Petition so far, as per Article 168(4). I doubt the JSC has considered because it will need a quorate meeting to consider the Petition. As things stand, that will be a long time to come as JSC is battling for its own survival in the High Court. And when the Petition reaches Uhuru Kenyatta, he is duty bound to suspend the judge, and is mandated to follow the recommendation of the JSC. Duty bound because the 168(5) uses the language of 'shall' - "the President shall…suspend the judge". Hence, the President has no choice on the matter provided the first part is achieved.

Reading the Petition, as reported in the Star, it does not specifically mention any of the five (5) grounds under the constitution on which it is supposedly based. I assume therefore the two closest grounds one can envisage are (d) incompetence; or (e) gross misconduct or misbehaviour.

Starting from Dictionary definition, incompetence is inability to do something successfully; ineptitude. In Law especially Employment (Labour) Law, the charge of incompetence is difficult to sustain. It has different angles to it - the lowest one being an under performance. If it is under performance, Dr Allila needed to show that he has evidence that the CJ has failed to meet established standards. As there are no competent standards to be used as a yardstick, it is very difficult to argue incompetence. What evidence will he adduce? He can't bring judgement of the CJ ( for example the Presidential Election judgement) and say that the CJ was at fault because he and the bench did not make a particular judgement.

What is usually argued as an incompetent employer ( not sure if the CJ is an employee, a worker, or an office holder), is where the person does not fulfil the objectives of the job. To most people, it is do with illness leading to absenteeism. The best judge for performance is usually the management who have seen the productivity of the individual in question. So Dr Allila as an a common man has no change in hell to know how the CJ faired in his job. And contrast the CJ peformance to the objectives set for him ( if there is anything like that) on his contractual agreement when the CJ agreed to take the job after recruitment. Even if found to have not reached the levels expected of him, the CJ needs to be given an opportunity to improve and his performance needs to be monitored. I don't think it applies, but there is a specific duty to make reasonable adjustments if the CJ suffers from a disability. But, the CJ was vetted and underwent long and tedious recruitment, it cannot therefore be said he is unfit to hold the position to which he was appointed.

The charge of gross misconduct is equally difficult to sustain. As an example, the former DCJ who assaulted another person was to face the charge of misconduct in public office - meaning she used her office to cause public mischief and tried to get away it. So, she misconducted herself and the facts were clear for her to take the decision to resign before facing a Tribunal. For a gross misconduct charge to succeed, the alleged conduct of the CJ should be so bad that it destroys any public relationship, and were it to be a normal employment circumstances would merits instant dismissal without notice or pay in lieu of notice. In my view the various conducts Dr Allila includes in his petition do not reach anywhere near satisfying the high threshold for gross misconduct. Further, all of what he allege as misconduct are actually conduct of the JSC not CJ. I don't see how the actions of the JSC, an entity on its own merit, can be said to be that of the CJ.

[Onyango Oloo]

In the meantime, from Twitter, Tuesday, December 17, 2013:



Dr Willy M Mutunga ‏@wmutunga 11h

"I may not be of your tribe, but maybe your blood type." Juliani.

[jakaswanga]

Dec 13, 2013 23:34:59 GMT 3 Daktari wa makazi said:

As a chief Justice, Mwendwa is remembered for a notorius criminal judgment - Republic vs El Mann case of 1969. In that case, the CJ Mwendwa led a bench in misinterpreting the Constitution to suit political expedition. The Constitution then said, “No person who is tried for a criminal offence shall be compelled to give evidence at his trial.” El Mann’s evidence was used to convict him as the court held that the compulsion did not included acts prior to the trial and that he was not given the legal protection he sought as per the Constitutional provision. That decision led to the Constitution being rendered almost ineffective during the Jomo Kenyatta and Moi era. Happily, this decision has now been consigned to the dustbins of legal history. See [a href="http://www.kenyalaw.org/Downloads_Other

Sadik,

SHOOT TO KILL UNOPPOSED!

what does the 'great''constitution say about 'shoot to kill' orders by the Dirty Harry's of the police force?

Let me explain:

Baringo Commissioner issues shoot to kill order against cattle rustlers

By Vincent Mabatuk Updated Friday, June 5th 2015


ITEN: Baringo County Commissioner Peter Okwanyo has given security officers in Loruk a shoot to kill order following attacks early this week.

Read more at: www.standardmedia.co.ke/thecounties/article/2000164633/baringo-commissioner-issues-shoot-to-kill-order-against-cattle-rustlers

And live, here he is in full glory.



It is not that I flinch on the kill, nor that I shudder at a latter-day DC in colonial glory, ordering Africans shot on sight, on mere suspicion. Nay, Africa has brutalised me well; my only worry and footnote, is that Kenyans may not recognise what other depths lawless killings, or arbitrary fatwahs are likely to touch base with.

I mean, if a cow-thief or a cattle rustler bent on arson can be shot on sight to protect innocent Kenyans, what makes you think a landgrabber should not get the same treatment?, shot on sight to protect public wealth! Shoot to kill without due process is a very good policy so long the barrel of the gun is not facing one. But when one is on the receiving end of the bullet, one may have a couple of seconds to preciously think: innocent until proven guilty is not a bad idea, fcuk! where is my 'Miranda' before I die.

Because there is a vacuum at the top of government, both intellectual and administrative, the colonels at the frontline would of course be thrust in decisive decision making. The frontline under fire is very different from cosy offices in the capital city, where bureaucrats spend their whole intellects fighting over tenders, promotions and the intrigues over political influence.

General Nkaissery give a fire-spitting press conference about zero tolerance on corruption, then confronted with rotten Ukrainian choppers and rusting rotors, procured by known people, he goes silent like an extinct species. Instead he and Boinnet use the same process and people to tender for new.

The 5YEDM had been the only remaining functional police helicopter until it ran aground recently because the main rotor system, bought from suppliers in Ukraine in 2014, had only two flight hours left and has since expired.

The National Police Air Wing (NPSA) bought the system, comprising five blades, for the Mi-17 helicopter, registration 5Y-EDM at the cost of Sh13 million. The system had already done 27 flight hours and NPSA officials were told as much but they still went ahead and bought it.

www.businessdailyafrica.com/Police-targets-five-helicopters-in-revised-tender/-/539546/2681020/-/hr25ul/-/index.html

These ones who bought the rotten Ukrainian rotor, I would should to kill them on sight! (but gun-totting naked pokot arsonists out to rustle cattle and pay dowry are of course just practicing 'their culture'! and I would not be too trigger happy with them!)

Earlier on, the now folded General Nkaissery breathed fire and brimstone thus

I will sack all corrupt state staff - Nkaissery
BY DAVID MWERE

NOMINATED Interior Cabinet Secretary Joseph Nkaissery yesterday said he will sack corrupt officials at the Office of the President once appointed.
“Corruption and lack of integrity at the Office of the President have been of great concern. I intend to address them by first taking operational stock if appointed. They will be my areas of focus,” he told the National Assembly Committee on Appointments during his vetting yesterday.
“Corruption is evil. It exists in the Interior ministry and fights back. It will not be business as usual to those who have conspired to enrich themselves.”

- See more at: www.the-star.co.ke/article/i-will-sack-all-corrupt-state-staff-nkaissery#sthash.obrVRiWG.dpuf

That is how men surrender command during a crisis. They promise what they cannot deliver. Then somebody in the field has to take over.

But I put this in the CJ Mutunga thread, coz I need an opinion from the top of the judiciary ---even as I think the Judiciary is now irrelevant in the 'security crisis': Shoot to kill: What do we need judges for, when tough men can be juror and executioner rolled into one?
The Mpigs made a farce of chapter six. The Judiciary a farce of the vetting. Etc etc. And now Peter Okwanyo jovially drives the point home. It is a progression.