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Karua asks DPP Haji to quit if he has failed to deliver on his mandate
Karua asks DPP Haji to quit if he has failed to deliver on his mandate
NARC Kenya Party Leader Martha Karua has asked the Director of Public Prosecutions Noordin Haji to quit if he has found it tough to do his job. /Moses Muoki

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Karua to Mutunga: enjoy your retirement, stop inciting judges to strike

NAIROBI, Kenya Nov 6 – NARC Kenya party Leader Martha Karau has told off former Chief Justice Willy Mutunga against inciting judges to go on strike.

Mutunga said last week that Judges of the Court of Appeal should down tools in protest of the government’s failure to obey court orders, and particularly President Uhuru Kenyatta’s failure to appoint six judges in a list of 42 presented to him by the Judicial Service Commission (JSC).

“Traditionally there is an unspoken code when you have just left an office you do not try to direct your successor on what to do especially if there are things you never did yourself. There is that unspoken code whether it is a President or any other Head of the two other arms of government, if you have recently left a seat you better agree that you have retired from that position and let the holder of that office do their job,” she said during an interview with Capital News this week.

The former Justice Minister said Mutunga has broken “every rule in the book” and that instead of engaging on matters that do not concern him, he should “enjoy his retirement peacefully”.

In calling judges to go on strike, Mutunga said his lobby group will petition Court of Appeal judges to down their tools in solidarity with Justices Aggrey Muchelule, George Odunga, Weldon Korir and Joel Ngugi who were omitted from judicial appointments by President Uhuru Kenya despite having been cleared by the JSC for appointment as superior court judges.

NARC Kenya party leader Martha Karua during an interview with Capital FM’S Davis Ayega at the party headquarters on November 4, 2021. /SAM WANJOHI.

Chief Justice Martha Koome has also voiced concerns following Mutunga’s remarks and cautioned that such incitement risks disrupting the Judiciary’s mandate of delivering services to Kenyans.

A bench of three judges of the High Court on October 21, 2021 gave President Kenyatta two weeks to swear in the 6 judges, failure to which they will assume the positions after being sworn in by the Chief Justice.

The ruling that elicited mixed reactions and appeared to set the Executive and the Judiciary on a collision path has since been suspended by the Court of Appeal after the Head of State challenged the High Court ruling. The ruling of the case is due on November 19, 2021.

JSC had in 2019 presented 41 nominees to the President for appointment as judges of the High Court and Court Appeal who were to be appointed within 14 days. The Head of State however, only appointed 34 after a prolonged period, leaving out the rest.

President Kenyatta has maintained that his decision not to appoint the six judges was based on intelligence reports that indicted the judges but he has never made the claims made against them public.

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While the tiff between the Judiciary and the Executive seemingly appears to be far from over despite Koome’s efforts to mend ties and grease the skids for coordination, Karua observed that the President was making the efforts difficult by simply choosing to do the wrong thing by not “following the rule of the law”.

“Mr. President it is your role after the Judicial Service Commission selects, it is your role to appoint, it may be ceremonial but it is your role. We have ordered many times but you have failed to do, are we going to live like this and have endless litigation?” she posed and credited the High Court judges for being bold and safeguarding the Constitution.

“I do not see anything unusual the court has done. Courts of law have always resolved our disputes and as Kenyans in the Constitution we clearly give power to the Judiciary whenever there is conflict in interpretation to have the last word and whenever there is refusal by anyone including an individual or an institution to do what you are required to do the court must always find a path, we cannot stay in paralysis,” she said.

Karau however, noted that all is not lost and that the perceived tension and friction between the Executive and the Judiciary can only be resolved if and when the former commits to keep a level head and simply follow the rule of law.

“There can be healthy tension because each of the arms of government is independent but we must all agree that court orders unless upset by a higher court ought and must be followed otherwise we will not have the rule of law and that the institutions must respect one another. No one institution should try to put a hand into the territory of the other institution and I think failing to balance this is what has brought what appears to be the friction,” she said.

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