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
----- Forwarded Message -----
From: Lamin Darbo <[log in to unmask]>
To: [log in to unmask]
Sent: Thursday, 21 March 2013, 23:34
Subject: [G_L] A CHIEF JUSTICE IN COMMAND OF HIS LARGER CONSTITUTIONAL BRIEF
All
A wonderful and refreshing read from the Chief Justice of Kenya.
A courageous, cogent, and compelling argument
Material originally sent to me by a contact
LJDarbo
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