NAIROBI, Kenya, May 29 – Chief Justice Willy Mutunga admits the Judiciary has a role to play in the fight against terrorism but says there is need to strike a balance between human rights and national interests.
He says it is necessary for all three Arms of Government to work together in tackling the challenge.
“The search for balance between security and rights is usually a difficult one even in developed democracies but it is finding that balance that stabilises societies and debate between rights and security is not new or peculiar in Kenya.”
During the opening of a two-day discussion on the role of the Judiciary in the war against terror on Thursday, he said: “This is an important dialogue and one which tests Kenya’s new constitutional order in a very fundamental and encouraging way. It’s directives of this nature that develop democratic culture,” he stated.
“This is why the war is taking the view that the Judiciary must interface with the rest of the society in an environment where free exchange of ideas can occur without compromising the Judiciary and its independence.”
He said terror investigations should be thorough for the prosecution to have facts on the cases it presents.
“The Judiciary finds itself in a difficult position where it has to remain true to its constitutional mission of validating rights while at the same time insure itself against populist public anger when it does its work,” he pointed out.
“Both judicial and security officers ought to protect and defend the Constitution, inconveniences not withstanding… for us to make any progress it has to be cooperation.”
He said the security agencies must, “share with us strategic intelligence information that can aid in policy and administrative action.”
“They must assist in exposing and breaking cartels even when they reach the judicial officers…the issue of cartels is very serious.”
He however noted that the war against terror will be as per the law as much as it is being, “waged against our motherland. Our commitment is that our motherland must survive.”
Aware of the pain terrorist cause, Mutunga said; “inhuman and murderers as they are, they cannot be our teacher and we cannot therefore treat them as they treat us.”
“As painful and unpopular as this statement may sound, terrorists, rapists, murderers, drug traffickers…they have their rights under our Constitution.”
Interior Principal Secretary Mutea Iringo said the discussions will help in the development of a mechanism for enhancing consultation and co-operation between the Interior Ministry and the Judiciary.
In a speech read by his deputy Victor Okioma, Iringo called for formation of a special court that will deal with cases of terrorism.
“We should think of how we can use the law in securing the country and our people,” he affirmed while giving instances where terror suspects have been bailed out despite committing serious crimes.
“The next time you hear they are in Somalia…these are the real challenges we are facing.”
High Court judge Richard Mwongo said the law must be interpreted, “without regard to external pressure or personal bias.”
Judge Mwongo said Article 49 (1h) of the Constitution explains on when the arrested person should be granted bail.
The Article states that, an arrested person has the right – “to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
Lack of evidence and crucial facts remains a major challenge for the police in the war against terror.