Why CJ should not sit in presidential poll petition


The just concluded General Election, the first under the under the new constitution captured the imagination of the world as Kenyans lined up in droves and stood for hours to cast their votes. A turnout of above 80 percent was recorded and the process was almost entirely peaceful. As the final results were announced, celebrations rent the air in several parts of the country after Uhuru Kenyatta was declared the duly-elected President of the Republic of Kenya.

As in the norm with any competition, there will always be losers and winners. Of the seven presidential candidates who courted Kenyans to elect them as their leader through a peaceful albeit slow process, six of them conceded defeat; while the runner-up Raila Odinga discredited the integrity of the electoral process and vowed to fight the results in court.

This is well within his constitutional rights and his supporters expected as much from him. Kenyans are now waiting with bated breath as the Supreme Court prepares to hear and determine these disputes as set out in Article 140 of the Constitution of Kenya.

Expectations are high on both sides of the political divide have pledged to accept the outcome of the poll petition. Chief Justice Willy Mutunga has promised Kenyans that Supreme Court is ready to hear this petition and that it will guided by fairness to both parties.

In the view of the high expectations that Kenyans have from the Supreme Court, it is imperative that the judges constituting the bench to hear and determine the any petitions relating to the presidential election be beyond reproach and their impartiality be unimpeachable.

I have recently read Miguna Miguna’s book Kidneys for the King and what he says about Chief Justice Willy Mutunga. Miguna quotes Mutunga stating as follows, “I have been talking to the old “Young Turks” because if they accept Raila’s leadership (and) the reform forces in civil society and corporate sector, we can build an important movement to capture power in 2012 under Raila’s leadership”.

Kenyans must also have noted that in another book, “Raila Odinga: an Enigma in Kenyan politics by Babafemi A. Badejo”, the author quotes Dr Willy Mutunga stating as follows: “Raila is a lot of things. He is an aggressive and astute politician. A great mobiliser and organiser… As a Kenyan leader, he would not just be a spineless sycophant. He would insist on dialogue in the pursuit of Kenyan interest.

He also has a vision and road map for Kenya unlike other politicians. I am convinced Kenya’s transition needs Raila as the President of this country”.

From the statements above, which are in the public domain, it is clear that Dr Mutunga has a soft spot for RailaOdinga and it is highly unlikely that such visibly displayed affections have dissipated.

Such statements raise serious conflict of interest and doubts as to his ability to be impartial in hearing and determining the presidential election petitions before the Supreme Court. It is clear that Mutunga has advanced a cause in which Raila is presented as the best man to be President of Kenya. As lawyers will put it no man should be a judge in his own cause.

From the conversation taking place in streets to social media (after you have sifted through the tribal vitriol been spewed there), Kenyans are clear that they want only one thing-justice. Justice is a cardinal virtue of any emerging democracy and Kenyans want the gains the judiciary has painstakingly made to be built upon so as to advance our democracy, not watered down.

Jubilee argues that the will of the people was manifestly reflected during the elections while Cord contends the election was bungled.

The Supreme Court is now in the unenviable position of determining where the truth lies. However, the process through which this is done ought to be transparent and free from either actual bias or appearance of such.

In light of these facts, wouldn’t it perhaps be prudent that the Chief Justice ought to disqualify himself from participating in hearing the presidential petition? The statements he has made coupled with recent developments concerning a “threatening letter from the Mungiki” and the statement he made in response in which he appeared to be campaigning for one presidential candidate casts serious doubt on his ability to impartially determine the petition without an appearance that he will favour Raila Odinga who is a party in the case.

In this regard, justice must not only be done but must also be seen to be done. This need has been emphasized by none other but the Chief Justice of Canada who has stated, “Judicial independence is valued, because it serves important society goals. It is a means to secure these goals.

One of these goals is the maintenance of public confidence in the impartiality of the judiciary, which is essential to the effectiveness of the court system. Independence contributes to the perception that justice will be done in individual cases”.

(Dann Mwangi is a lawyer and researcher at CPS Research International)

89 Replies to “Why CJ should not sit in presidential poll petition”

  1. Point on.There is no way CJ can claim he is standing on the fence,and I think the way he handled ‘threats’ was reckless and pointing to the same issue of objectivity.

  2. I really have a very bad feeling about the CJ in relation to this petition. Former boss of FORD Foundation? His chief of staff former director of AFRICOG who have also file a petition and whose current directors include Pseudo civil rights crusaders like John Githongo, Maina Kiai, Gladwell Otieno and the like!!!??? You can tell a man by the company he keeps and old habits don’t die easily. I am an optimist though and i will give Mutunga, whom by the way we come from the same county, benefit of doubt.

  3. Probably as chairman of the highest court in the land,the Hon. Mutunga should disqualify himself for simple reason he has now six judges including himself because the seventh judge has note yet been appointed. He should set a bench of an odd number of judges excluding himself for voting purposes to avoid a tie vote (3versus3). DM

        1. The point is not about CJ Mutunga getting rid of one of the judges so that he can vote! Despite people not finding Dann Mwangi palatable, he does cite some worrying examples from the public domain that indicate that Dr Mutunga is not entirely unbiased in his personal (not professional) opinion.

          So that the ruling – whichever way it goes – can remain one that is viewed as having been judged fairly – without any reasonable doubt – if he has any just and unbiased intentions, the CJ should exclude himself from the hearing. The intent of having a bench of odd number would be an excuse that would establish him as a just, fair and unbiased professional from whatever approach one would want to examine him.

          Suffice it to say that this is a case that the world watches with bated breath. If Dr Mutunga does not exclude himself from the hearing, IEBC and Jubilee have grounds for accusing him (retrospectively) of being on record as having bias. If Dr Mutunga does exclude himself from the hearing CORD may suggest that he was complicit in their grounds for bringing the case in the first place.

          Whichever way the decision goes, he needs to man-up and show himself as someone Kenya can rely on for justice – no matter what skeletons his past as an activist (and ill-timed statements) may reveal. His record as a CJ thus far is nowhere near stellar, and this may be a decisive moment in his career as leader of the country’s judiciary.

    1. who told you there was going to be a tie vote. there is no case here you sell outs. we shall catch up with you mzungu gold diggers.

  4. Mr. Mwangi, You may be a learned lawyer thus qualified to be a judge. As such, you know better than an Engineer like me that your dissatisfaction with Mutunga’s credibility seems to be banking on quotations from books; one written by a hysterical and disgraced defender of Raila turned dog of war against his former boss due to clipping and consequent sacking from his previously prestigious position.

    If Mutunga is to step aside from the case because of your flimsy argument, then so should Njoki Ndung’u due to her former activities (including being nominated to parliament) in the politics of this country and her close proximity to the Mount Kenya politicians who are now in Jubilee.

    You ought to have raised such issues during the appointment of the Judges and not
    at this time when the autonomy of the Supreme Court and by extension the
    integrity of it’s office holders is in question.

    It is disgusting to find elites in the society turn to partisan propagandists more so during such an important moment in the judicial and political history of this country.



  6. Well, about our cj me-think he is above board and i think we should wait for justice either-ways law is an ass anybody schooled is aware,guys we got the best brains at work,we have a chance to make history and law reference in future for the learned friends to refer to. the cj must be in that bench if any reason bars him then so does Mohamed who i think have worked with this iebc man issa,so lets hold our horses or is it as!!!!!!s.

  7. What does the law say about Judges and their opinion and or friends? Judges don’t come from planet Mars, they are breed here and have friends and a history. And why does the writer wants us to believe the authors of the various books/ biographies (these are not gospel truths) he has quoted. If we follow this myopic reasoning then all the Judges will be disqualified, since they have had association and interactions with Raila, Uhuru and Ahmed over the years. Let us learn to trust our institutions and the persons appointed therein.

    1. Dann Mwangi,you’d be acting foolish to use Miguna a sworn enemy of Raila’s writings as a basis to argue why Willy Mutunga is not the right person to preside over the presidential ballot petition. The same reason why you don’t find it appropriate for Mutunga not to preside over the case is the same reason why Miguna’s literature should not be a basis for your argument.

  8. It is good kenyans are now maturing in the political approach on issues.what we now need is to leave the legal institutions alone to do their work.let us not judge judges of the supreme court before they even start the exercise.Please let us be patient and wait for the outcome of the court.Rowa Orao .Nyahera kisumu.

  9. Kenyans we must not forget we have SUPREME JUDGE OF ALL TIMES in whichever way the Kenyan Highest court will decide remember THE SJ.

  10. I find your argument baseless. similar to giving so many reasons as to why IEBC should not hold another election if the past one was rigged with their Knowledge

  11. I fully concur with the authors opinion, going by the past public proclamation from the Chief Justice as well as his past civil society activism, I highly doubt he will be impartial on this matter. It is not a secret that he is a political admirer of Hon. Raila Odinga who is a complainant in this matter. Bearing in mind that his overall position in the Judiciary wields a lot of power and influence, it is unlikely that he would not attempt to apply his position in order to determine the outcome of this position. I therefore suggest that he sit out of this petition and let the rest of the Judges give their determination.

  12. DR. Willy mtunga was the man behind narc in 2002 ..because he was and he is a friend to kibaki and raila ..now that 2007 passed like that ..he needs to make things right ……….

  13. I disagree with you Mwangi in TOTALITY.Why?
    1. Its totally bullshit to disqualify yourself as a judge reason “I HAVE A SOFT SPOT FOR HIM” (the dumbest argument I have ever heard of)
    2. Who tells you that the other five have nothing beneath their sleeves?
    3.Dude the judgement is not going to be a one man affair.Out of the six the majority decision rules.He’s only got one single vote.

  14. I am a kalenjin but I got to agree.This man Dan Mwangi was so tribal during his days as the chairman of SONU.Shut up dude you should be ashamed of yourself first

  15. I’m not surprised by Mr Dann Mwangi’s beefing, the fellow is what can for the extremist in negative ethnic issues sense, I have always followed his views with apprehension as he always plays up the ethnic thing when ever he writes.
    He is the same character who was dead set against an Barack Obama, win in the USA.

    Jared Waswa, –e-mail jaredwaswa@yahoo.com

    1. Let’s laugh at this Dann Mwangi:D:D:D He was against the election of Barrack Obama. The guy was runnin for president of US of A, not this tribalistic country, 254.

  16. I think some of you need to understand that there’s a difference on one’s opinion and one’s professional duty. Mutunga and all these Judges voted for their candidates but when it comes to the petition, they have to use their heads and not their hearts as you are doing. That is their call of duty.

  17. Kikuyus will always be kikuyus until we will dislodge them from the presidency. If it ever happens, forget of ever getting closer to that seat again. Kenyans have now gotten a clear picture of who you are – wolfs in the sheepskin

    1. Like someone said earlier on here, kenya has 42 tribes, not 1… I may not know the author of this article, but he sure oozes ‘mudu wa nyumba’

    2. That is hate speech, refrain from this please, you are contributing to a vice that is about to end. Are you not aware that Kenya has a new constitution?

  18. well, those who were with you at uon say you were so tribalistic as the sonu chairman, a reason why me thinks you should disqualify yourself from any debates involving the impending dispute. wot do you say on that?

    1. Exactly where in the article was there a discussion on tribalism? Why have you reduced RAO’s petition to a tribal petition?

      1. surely, if someone has a record of always favoring one group over the other yet he has been appointed in a public office that requires him to be impartial always when handling issues, is he then, in position to judge why so and so in this case the CJ should not handle the petition just because he is believed to have a soft spot for the plaintiff? to make matters worse he is quoting what miguna wrote!

        1. Is that to imply that you fault the article, not on its merit, but on account of the background of the author? Are you suggesting that it could have some validity if another author with more integrity wrote it?

          1. preach water and also partake of the same. dont take wine while your supplicants take gallons and gallons of water. thats all i can say.good evening!

  19. you shut the fuck up..in law we dont argue the way you do..go back to school and learn law my friend..just young boy smking weed and claiming to be talkin law,,you cant compare yourself to the cj..you are showing how foolish and barbaric you are..

  20. Dann,just see the sources u r relying on. Can you go back and read ur notes coz u r suffering from scarcity mentality.

  21. Problem No. 1 is quoting Miguna Miguna, Problem No.2 is you can’t possibly be objective yourself, Problem No. 3 is the close vicinity of your office to Caledonia Estate……..

  22. If past deeds and affiliations are to be put in factor here then one DANN MWANGI should be the last person to speak here. Please Sir just remind us of your own record in SONU with regards to leadership and we will be glad to accept your opinion of others.

  23. Dan Mwangi, the tribal chief from UoN now has a say about morality? We never forget you for all the bad reasons.

  24. If you apply these premises fairly across the board then you effectively disqualify the whole bench and pretty much most Kenyans and foreigners. He, like anyone else who chooses to, can examine facts and draw conclusions based upon the facts, prejudices and opinions not withstanding.

  25. I totallydisagree with Dan Mwangi commentary, I think this are far-fetched just
    confabulation with no basis, the matter at hand are of National concern and CJ
    plays a big role to shaping the nation and its democracy, I am not being tribal
    but what I can say I wouldn’t like even
    to read anything from a Kikuyu because
    we are not feeling safe, we feel like we
    are still in 1940s to 50s. I hope you know that right?

    It is time when
    the right thing should be done to free Kenya.

  26. This a Jubilee mole. trying to soil the supreme court and CJ. utter nonsense. They will not make any ruling without the constitution as the basis and backed by the evidence provided by the parties involved. It is the petitioners burden to proof their case. So why drag the Hon. CJ in to your warped thinking. wacha ufala boss, kenya is bigger than you and the people you represent.

  27. Tribal Opinion. Learned or not, Tribalism still lingers. Quite a shame @dan mwangi @google-2168c7a6251d232d2672450c55226b85:disqus @facebook-100003976107129:disqus

    1. he doesn’t have to convince them, they all have their independent minds. And thank God you are not one of them.

  28. hahaha what is this nigga saying? he quotes miguna, your piece is just subjective and baseless. you dont know what you are writing. you just dont like Rao.

  29. CJ is a Kenyan and is expected to have an opinion. If he believe Raila would be the next president then its his opinion and he has a right to do so. All those judges that will be on the bench will definitely have a favorite but that does not mean they will not put this country before themselves. That is why they are reforming the judiciary to make sure that we have judges that put the society before their own agenda. Let us all wait for there decision and respect it.

  30. what u r asking is inevitable.there are better born lawyers than you.unfortunately the cj has to to be there and its not you to decide who to be there or not.let us kenyans be patriotic .if there is need to address mistakes done ,lets accept.let us be people who want to look for sustainable and long lasting solutions to rectify MISTAKES

  31. Full of political, overtones, maybe then njoki ndungu as she worked with PNU, why are people running scared, if we delve into each of these we will find relationships with almost all politicians

  32. The CJ as the head of The Supreme court, counts and has the overall decision on who seats at the bench thus in those previous books you have quoted please note the ENIGMA was published before CJ was accorded the powers and we have no proof of Miguna’s book because he is a person that Kenyan cant vest a vital trust in his work as a writer.
    Dr.Willy Mutunga as a Kenyan has a right for his personal view which is
    different from him as The Chief Justice thus lets face the Courts
    positively knowing that the Bench will vote and Willy is just part of
    the Six bench judges.

  33. Kenyans Kenyans why are we so tribal surely, Do you know nowadays you cannot even quote a bible verse because people will interpret it politically. I don’t know this author but for crying out loud you don’t have to insult him just because he expressed what he feels. I sincerely feel that we lack etiquette and we should watch our language.
    So what even if Raila or Uhuru wins?? So what?? Ask yourselves??
    If Mutunga Decides to form part of the bench and trully he knows he may be compromised, just leave him to do so…law will catch up with him one day

    PRAY FOR KENYA…am working for refugees and am sure you are not ready to be one!!

    1. @Daniella, I dont think you can handle Kenyan politics. Just continue helping the refugees and leave politics those who can handle it.

      1. @upuzi, thats where you go wrong, almost 90% of the world refugees are caused by political wars…that’s why am a politician in the best way i know i how…

  34. Giving an opinion is different from professional work for example the other judges also voted for different candidates maybe even jubilee so why should they also be allowed to sit in the bench???

  35. Dann Mwangi… Hmmmmm what a poorly researched article and a waste of time. You have failed to impress brother.

  36. Do you even listen to your thoughts? or your are blinded by the opinion of others…who Quotes Miguna in their articles…nkt!

  37. the judges will base their decision on hard facts so they should be no reason for Dann Mwangi to ask the cj to disqualify himself. Should the author of this article Mr Dann Mwangi disqualify himself from writing this article because he is from the same community as Uhuru? NO he should not. Should the judges that come from the same community as Uhuru, Ruto, Kalonzo and Raila disqualify themselves? No they should not.
    The case is not complex, a reasonable man can judge the case.

  38. the CJ is not listening or judging the petition alone there r other members of the supreme court! when mentioning him alone is hate speech coz u r seeing him from his tribal perspective other than ethics of his job!! your statement is baseless n the only thing i can see is a kiuk defending one of his!! if u r conversant with our constitution chapter six which talks about integrity the president-elect could have been bold enough to first finish the icc case then if cleared come n seek to be elected!

  39. nonsense,thot there are 6 of them,can his vote really count if the 5 can sgree! tel us something beta! anyway it must be A MWANGI!

  40. I have read the article and most of the comments and most of you guys instead commenting on the merits/demerits of Dan’s writting, you attack his person with some going as far as tribal hate. You cannot contribute to the development of this great nation by not applying your brain and contributing objectively to matters at hand.

    1. though most people do this, the fact is you cannot preach waterwhile you yourself drink wine. you lead by example.if the author used to harass and intimidate his colleagues in college just because they were from different tribes then who is he to criticize the cj? a case of having to remove a log from your own eye before proceeding to remove in ua neighbours……

      1. I don’t hold brief for Dan for even for a moment by rather what i wanted was for a moment pretend that it was written by someone else and critic the blog from that premise.

  41. Dann you cant just go quoting Miguna’s Book.. An the other Enigma book i did it as a case study in school and Willy Mutunga was not even the CJ then.. The bench will have 6 judges who voted for their favorite, should we disqualify them all?

  42. I haven’t read it all…..not worth my read. Institutions are different from individuals and personalities. there is code of conduct. there is the law. let him do his job…you’ve done yours by writting this article and it aint a good job….

  43. Mr Lawyer…your name clearly suggests where your weight is and why u are worried about the Cj.if your reasoning is left to stand the simple argument would be that all the judges disqualify themselves since they all participated in the last election as voters for one of the candidates now in court…please allow the court process to end and avoid skewed arguments that only end up confusing we laymen..

  44. Great. If we follow through with such reasoning, you won’t find anyone to sit on that bench. e..g. Should Njoki Ndung’u sit? Is her new baby’s dad related to anyone whose friends with Uhuru’s Godfather?

  45. Do another article about Njoki Ndungu…………..and tell us why she too shouldn’t sit on that bench;J.B Ojwang and P.K Tunou should leave because of their ethnic backgrounds……….that leaves two judges…keep digging…..GIVE US A BREAK!

  46. If CJ could claim on national media that Mungiki and Kimemia intimidated him, A matter he never bothered to report to the reformed police and CID, this reveals his activists tendencies that he still harbor JSC made a terrible mistake to appoint this man.Dont forget the demonstrations in Nairobi which he participated while being a CJ. Don’t expect any justice if this man will be on that panel.Most likely he will rule in favour of CORD

  47. hmmmm all this time i thought Nazlin was just making noise for nothing. Well anyway, her approach was so wrong on so many levels

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