Mu­tunga af­fi­davit lays bare in­trigues dog­ging top court

Doc­u­ment shows how two judges went on strike; one filed in­ac­cu­rate min­utes

Daily Nation (Kenya) - - FRONT PAGE - BY WAL­TER MENYA @menyawal­ter wmenya@ke.na­tion­media.com

For­mer Chief Jus­tice Willy Mu­tunga has laid bare the in­trigues and in­fight­ing which char­ac­terised his seven judge bench, al­most paralysing the op­er­a­tions of the Supreme Court.

The for­mer CJ, in an af­fi­davit sworn on Au­gust 7, de­tails how two of the judges — Lady Jus­tice Njoki Ndung’u and Jus­tice Jack­ton Ojwang’, at one time went on strike and crip­pled the court’s op­er­a­tions for close to two weeks.

Dr Mu­tunga also dis­owns as­ser­tions by the two judges that the de­ci­sion by the Supreme Court judges to go on strike in 2015 was a col­lec­tive one. Fur­ther­more, Dr Mu­tunga ac­cuses Jus­tice Ndung’u of fal­si­fy­ing the min­utes of an Oc­to­ber 6, 2015 meet­ing of then Supreme Court judges.

Ac­cord­ing to Dr Mu­tunga, “The said let­ter (no­ti­fy­ing the with­drawal of ser­vices by a sec­tion of Supreme Court judges) was not au­tho­rised by a col­lec­tive de­ci­sion of the Supreme Court judges, and ought to be treated as the sole work of the three sig­na­to­ries to the said let­ter.”

Ju­di­cial op­er­a­tions

Be­sides Jus­tice Ojwang’ and Jus­tice Ndung’u, the let­ter to ini­ti­ate “a mora­to­rium on all ju­di­cial op­er­a­tions” was also signed by Jus­tice Mo­hammed Ibrahim but who later pulled out of ac­tu­al­is­ing the strike.

Dr Mu­tunga’s af­fi­davit is in re­la­tion to the con­sol­i­dated pe­ti­tions 204 and 218 of 2016 by for­mer Law So­ci­ety of Kenya (LSK) CEO Apollo Mboya and Supreme Court judge, Jus­tice Ndung’u re­spec­tively.

Mr Mboya had filed the pe­ti­tion to chal­lenge the Ju­di­cial Ser­vice Com­mis­sion’s (JSC) de­ci­sion to ad­mon­ish rather than rec­om­mend to the pres­i­dent for the for­ma­tion of a tri­bunal to in­ves­ti­gate the­con­duct of Jus­tices Jack­ton Ojwang’ and Ndung’u for par­tic­i­pat­ing in an il­le­gal strike and thereby paralysing the Supreme Court’s op­er­a­tions. The strike was to protest the de­ci­sion of JSC to re­tire then Deputy Chief Jus­tice Kal­pana Rawal and Jus­tice Philip Tunoi.

On the other hand, Jus­tice Ndung’u, in her pe­ti­tion, is con­test­ing the JSC’S de­ci­sion to ad­mon­ish her, ar­gu­ing she was not ac­corded a fair hear­ing.

The hear­ing for high­light­ing of sub­mis­sions in the con­sol­i­dated pe­ti­tion is set for Septem­ber 20, which will be around the same time the Supreme Court will be pub­lish­ing the de­tailed and rea­soned judg­ment of the court for nul­li­fy­ing the Au­gust 8 pres­i­den­tial election and the dis­sents thereof.

Since the Supreme Court nul­li­fied the re-election of Pres­i­dent Uhuru Keny­atta on Septem­ber 1, there has been a sus­tained on­slaught on the apex judges and the ju­di­ciary in gen­eral with the Pres­i­dent derog­a­tively call­ing the cur­rent judges “crooks”. The Pres­i­dent’s party has also height­ened the at­tack on in­di­vid­ual judges, in­clud­ing the fil­ing of a pe­ti­tion by Ny­eri Town MP Ngun­jiri Wam­bugu seek­ing to re­move cur­rent Chief Jus­tice David Maraga.

In the Na­tional As­sem­bly, Ju­bilee MPS have also ramped up the rhetoric, with pro­pos­als for changes to the law to limit the pow­ers of the ju­di­ciary to an­nul pres­i­den­tial elec­tions.

Ac­cord­ing to Dr Mu­tunga, JSC con­vened as soon as it re­ceived the strike no­ti­fi­ca­tion by th e judges to dis­cuss the con­tents of the let­ter and re­spond to the sig­na­to­ries that the com­mis­sion stood with its de­ci­sion of Septem­ber 4, 2015 that the re­tire­ment age of judges is 70.

“De­spite re­ceiv­ing the re­sponse of the JSC, I am aware that two of the three judges who signed the afore­said let­ter (namely Judge Ojwang’ and Judge Njoki) acted upon their threat to down tools there­after, and as a con­se­quence, the Supreme Court did not pro­ceed with its reg­u­lar sit­ting for about two weeks from Septem­ber 29, 2015 to Oc­to­ber 15, 2015,” Dr Mu­tunga avers.

The strike, ac­cord­ing to an an­nexed memo of April 6, 2016 by the Supreme Court Reg­is­trar, af­fected eight mat­ters that had been listed for the pe­riod, in­clud­ing an ap­peal by for­mer Nyando MP Fred Outa against the nul­li­fi­ca­tion of his election.

Ac­cord­ing to Dr Mu­tunga, “Jus­tice Ibrahim availed him­self for pos­si­ble sit­tings of the Supreme Court but Judge Ojwang’ and Njoki did not, hence caus­ing var­i­ous mat­ters to be taken out.”

The for­mer CJ also claims that notes by Jus­tice Ndung’u of a meet­ing held on Oc­to­ber 6, 2015 were found to be in­ac­cu­rate. Dr Mu­tunga states that while the Deputy Reg­is­trar was in at­ten­dance for the for­mal part of the meet­ing and duly recorded the min­utes, Judge Ndung’u stepped in to take notes for the lat­ter por­tion of

the meet­ing.

I am aware that two of the three judges who signed the afore­said let­ter... acted upon their threat to down tools there­after, and as a con­se­quence, the Supreme Court did not pro­ceed with its reg­u­lar sit­ting.”

True po­si­tion

“I re­call very clearly that the notes taken by Judge Njoki for the lat­ter por­tion of the said meet­ing were chal­lenged in a sub­se­quent meet­ing of the Supreme Court judges and re­jected on the ground of in­ac­cu­racy and fail­ure to re­flect the true po­si­tion of the dis­cus­sions we had held,” the for­mer CJ states. Thus, the min­utes by Jus­tice Ndung’u were dis­carded.

As a re­sult of the in­ci­dent, Dr Mu­tunga states it was re­solved that con­fi­den­tial min­utes should also be taken by the Deputy Reg­is­trar “to avoid re­cur­rence of in­ac­cu­rate record­ing by a judge in fu­ture.”

In the said in­ac­cu­rate min­utes, the for­mer CJ points out sus­pi­cious record­ings by Judge Ndung’u. Ac­cord­ing to Dr Mu­tunga, the ques­tion­able min­utes in­di­cate the Deputy CJ was chair­ing the meet­ing yet the CJ, as the pres­i­dent of the Supreme Court, was present and par­tic­i­pat­ing. This ac­cord­ing to Dr Mu­tunga was not the nor­mal prac­tice.

Another anom­aly in the pur­ported min­utes, Dr Mu­tunga avers, makes ref­er­ence to a sub­se­quent meet­ing which was to take place on Oc­to­ber 14, 2015 yet the sig­na­ture page in­di­cates that the min­utes of Oc­to­ber 6, 2015 meet­ing were ap­proved much later on Oc­to­ber 27, 2015.

He also points out that the Oc­to­ber 6, 2015 min­utes were not only in­ac­cu­rate but also were never ap­proved.

In the same af­fi­davit, Dr Mu­tunga re­futes al­leged dis­cus­sions on ad­min­is­tra­tive mat­ters dur­ing the con­fer­enc­ing of the judges.

The con­fer­enc­ing of judges, he states, “was al­ways about dis­cus­sion of ju­di­cial mat­ters that had been heard be­fore us and were pend­ing for judg­ment with the pur­pose of de­ter­min­ing pos­si­ble ver­dict on the said cases.”

The af­fi­davit high­lights the ide­o­log­i­cal and per­sonal dif­fer­ences among the judges of the apex court dur­ing Dr Mu­tunga’s time as the Chief Jus­tice, di­vi­sions which have per­sisted to date.

For in­stance, there have been claims that Mr Wam­bugu’s pe­ti­tion could have been drafted with the help of ju­di­ciary in­sid­ers, es­pe­cially on mat­ters re­gard­ing its or­gan­i­sa­tion and in­ner work­ings, in­clud­ing bud­gets to some agen­cies within the ju­di­ciary.

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For­mer Chief Jus­tice Willy Mu­tunga

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