NAIROBI, Kenya, Jun 10 – If veteran advocate John Khaminwa is to be believed, the ‘Cabal’ is not only the preserve of popular American television series The Blacklist but in existence outside the realm of fiction; pulling strings in Kenya’s Judiciary.
A cabal is described as a “a secret political clique or faction,” in the Oxford Dictionary and is represented literally in The Blacklist in which it’s used in reference to a shadowy group of characters who operate above the law and as puppet masters, lurk behind the curtain as they choreograph events to suit them.
Khaminwa shone a light on what he contends is a cabal that stalks the halls of Kenya’s justice system on Thursday when his client, Kituo cha Sheria, withdrew as amicus curiae in a case that has turned brother against brother in the highest court in the land; a retirement case that pits the Deputy Chief Justice Kalpana Rawal and Supreme Court judge Philip Tunoi against the Judicial Service Commission of which the Chief Justice Willy Mutunga is Chairman and Supreme Court judge Smokin Wanjala a member.
The dispute has also led Supreme Court Judge Njoki Ndungu to seek protection in the High Court from the JSC which found her guilty of, “misconduct,” – together with Rawal and the two as yet unmentioned Supreme Court judges Mohammed Ibrahim and Jackton Ojwang – for weighing in on the retirement dispute before it was brought before them.
“This court takes the position that the security of tenure for all Judges under the Constitution of Kenya, 2010 is sacrosanct, and is not amenable to variation by any person or agency, such as the Judicial Service Commission which has no supervisory power over Judges in the conduct of their judicial mandate. We find and hold that the Judicial Service Commission lacks competence to direct or determine how, or when, a Judge in any of the Superior Courts may perform his or her judicial duty, or when he or she may or may not sit in Court,” the four adjudged in October last year when ruling on an election petition filed by KANU Secretary General Nick Salat.
It is on account of this conflict that the Law Society of Kenya had sought to have the matter resolved out of court and the reason an activist, Okiya Omtatah, has applied to have the bench disqualify itself from hearing the dispute.
All of which Khaminwa disputed and which eventually led to Kituo cha Sheria withdrawing his instructions while informing him that, “the position you have taken is conflicting and embarrassing to the institution and will have grave ramifications.”
Khaminwa did not take this kindly and on Thursday – despite reservations expressed by the Chief Justice and Justice Ibrahim – accused his client of bowing to pressure from said cabal.
The cabal who advocate Nelson Havi later claimed was composed of lawyers Ahmednasir Abdullahi – known as the Grand Mullah in some circles – Paul Muite and Issa Mansur.
“Let me put it in on record that indeed I belong to a cartel.” Muite shot up to say to the accusation on Friday. “The cartel I belong to is the cartel that believes in the rule of law. I have no apologies for belonging to that cartel. I am a permanent life member.”
But given what Mutunga said was a lack of evidence that said lawyers were in the business of, “arm-twisting,” judges to get their way, he sought to have the lawyers tone down their antics by reminding them of the bar requirements on the manner in which lawyers should conduct their business.