Judiciary independence: Former CJ Mutunga, legal experts raise alarm over Koome’s security detail withdrawal
While speaking to The Eastleigh Voice, former Chief Justice Willy Mutunga explained that what the 2010 Constitution does is to provide sites for struggles for social transformation, and one such site is the struggle for an independent Judiciary that has integrity and is committed to the implementation of the Constitution.
The reports that the security detail of Chief Justice Martha Koome had been withdrawn and installed after an outcry from human rights organisations and the public is not the first in a trend that is getting accustomed whenever relations between the Executive and Judiciary go sour.
In the past, judges too have come out to protest over the withdrawal of their security detail upon making rulings that do not favour the State. The Eastleigh Voice explored the long-standing conflagration between the two arms of government entwined with deep interests in governance and the rule of law.
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It was the Kenya Magistrates and Judges Association (KMJA) President Justice Stephen Radido, in a strongly worded letter who poked holes into Inspector General of Police Douglas Kanja's explanation of recalling the officers for training and promotion, saying he ought to have followed due process and even informed the CJ earlier.
"Unknown to the Judiciary and its leadership, the National Police Service was in the process of recalling the security detail/close escort(s) attached to the Chief Justice and President of the Supreme Court of Kenya," he said.
Terming the initial move as 'unilateral and arbitrary', Justice Radido faulted the National Police Service leadership, reiterating that it amounted to intimidation tactics, presumably to influence the independence of the judicial arm of government.
CJ Koome accused the government, through the Ministry of Interior, of withdrawing her security detail on Thursday evening.
While speaking to The Eastleigh Voice, former Chief Justice Willy Mutunga explained that what the 2010 Constitution does is to provide sites for struggles for social transformation, and one such site is the struggle for an independent Judiciary that has integrity and is committed to the implementation of the Constitution.
"The political leadership in Kenya, which controls the other two arms of the state, finds the Constitution and an independent Judiciary that has integrity very inconvenient. Yes, the political leadership intimidates the Judiciary but the Judiciary resists it all the time," says Mutunga.
President William Ruto with Chief Justice Martha Koome during his swearing-in ceremony in Nairobi on September 13, 2022 (Thomas Mukoya/Reuters)
In his view, the political question is which side the Kenyan people are on in this struggle. He adds that It's high time the citizens of Kenya support the resistance by the Judiciary because it is the only arm of the state that stands between them and the KANU dictatorship that has ruled us since 1963.
"New low"
Leading human rights lawyer Gitobu Imanyara regretted that the decision to withdraw Koome's security detail has made the country strike a new low.
"An Inspector General of Police who is facing contempt of court charges for multiple defiance of court orders threatens and intimidates the entire government by unlawfully withdrawing the Chief Justice's security. What arrogance!" Imanyara said.
In Imanyara's view, the belated return of the CJ's security is not sufficient purge of this "brazen act of impunity." He expects them not only to be removed from office but to be also punished.
He too wants President William Ruto to speak over the saga. "The President's voice as the principal defender and protector of the Constitution must be heard. Otherwise, we will draw conclusions."
The Law Society of Kenya President Faith Odhiambo said the action infringed on the independence of the Judiciary and was an attempt to coerce it to operate as an appendage of the Executive against the constitution, terming it unfortunate and acceptable.
She said the decision by the National Police Service also points to coordinated efforts to weaken the Judiciary Police Unit.
"Whether by omission or commission, the said situation is unacceptable and indicates grave systemic and administrative lapses within the National Police Service," she said.
"This mistaken perception that the Judiciary is subordinate to the other arms of government is a historic bastardisation of the Principle of separation of powers, which must be deconstructed."
Interior Cabinet Secretary Kipchumba Murkomen has however criticised Koome's handling of the recall of three officers of her security detail citing the leaking of a letter to the press.
Speaking in Kwale during the launch of the National Government Administration Unit, a formation assigned to national administration officials, Murkomen claimed that he had learned of some details through the media rather than through direct communication.
He explained that he had spoken with CJ Koome about the issue and had promised to address it, only for her to escalate the matter publicly.
"Unfortunately, our Chief Justice went too public about this issue. I want to assure you that I have an excellent relationship with the Chief Justice—unless, on her side, she has an issue. The IG and I have no problem with her." said Murkomen.
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