Former Chief Justice Willy Mutunga has laid bare the intrigues and infighting which characterised his seven judge bench, almost paralysing the operations of the Supreme Court.
The former CJ, in an affidavit sworn on August 7, details how two of the judges — Lady Justice Njoki Ndung’u and Justice Jackton Ojwang’, at one time went on strike and crippled the court’s operations for close to two weeks.
Dr Mutunga also disowns assertions by the two judges that the decision by the Supreme Court judges to go on strike in 2015 was a collective one.
Furthermore, Dr Mutunga accuses Justice Ndung’u of falsifying the minutes of an October 6, 2015 meeting of then Supreme Court judges.
According to Dr Mutunga, “The said letter (notifying the withdrawal of services by a section of Supreme Court judges) was not authorised by a collective decision of the Supreme Court judges, and ought to be treated as the sole work of the three signatories to the said letter.”
Besides Justice Ojwang’ and Justice Ndung’u, the letter to initiate “a moratorium on all judicial operations” was also signed by Justice Mohammed Ibrahim but who later pulled out of actualising the strike.
Dr Mutunga’s affidavit is in relation to the consolidated petitions 204 and 218 of 2016 by former Law Society of Kenya (LSK) CEO Apollo Mboya and Supreme Court judge, Justice Ndung’u respectively.
Mr Mboya had filed the petition to challenge the Judicial Service Commission’s (JSC) decision to admonish rather than recommend to the president for the formation of a tribunal to investigate the conduct of Justices Jackton Ojwang’ and Ndung’u for participating in an illegal strike and thereby paralysing the Supreme Court’s operations.
The strike was to protest the decision of JSC to retire then Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi.
On the other hand, Justice Ndung’u, in her petition, is contesting the JSC’s decision to admonish her, arguing she was not accorded a fair hearing.
The hearing for highlighting of submissions in the consolidated petition is set for September 20, which will be around the same time the Supreme Court will be publishing the detailed and reasoned judgment of the court for nullifying the August 8 presidential election and the dissents thereof.
Since the Supreme Court nullified the re-election of President Uhuru Kenyatta on September 1, there has been a sustained onslaught on the apex judges and the judiciary in general with the president derogatively calling the current judges “crooks”.
The President’s party has also heightened the attack on individual judges, including the filing of a petition by Nyeri Town MP Ngunjiri Wambugu seeking to remove current Chief Justice David Maraga.
In the National Assembly, Jubilee MPs have also ramped up the rhetoric, with proposals for changes to the law to limit the powers of the judiciary to annul presidential elections.
According to Dr Mutunga, JSC convened as soon as it received the strike notification by the judges to discuss the contents of the letter and respond to the signatories that the commission stood with its decision of September 4, 2015 that the retirement age of judges is 70.
“Despite receiving the response of the JSC, I am aware that two of the three judges who signed the aforesaid letter (namely Judge Ojwang’ and Judge Njoki) acted upon their threat to down tools thereafter, and as a consequence, the Supreme Court did not proceed with its regular sitting for about two weeks from September 29, 2015 to October 15, 2015,” Dr Mutunga avers.
The strike, according to an annexed memo of April 6, 2016 by the Supreme Court Registrar, affected eight matters that had been listed for the period, including an appeal by former Nyando MP Fred Outa against the nullification of his election.
According to Dr Mutunga, “Justice Ibrahim availed himself for possible sittings of the Supreme Court but Judge Ojwang’ and Njoki did not, hence causing various matters to be taken out.”
The former CJ also claims that notes by Justice Ndung’u of a meeting held on October 6, 2015 were found to be inaccurate. Dr Mutunga states that while the Deputy Registrar was in attendance for the formal part of the meeting and duly recorded the minutes, Judge Ndung’u stepped in to take notes for the latter portion of the meeting.
“I recall very clearly that the notes taken by Judge Njoki for the latter portion of the said meeting were challenged in a subsequent meeting of the Supreme Court judges and rejected on the ground of inaccuracy and failure to reflect the true position of the discussions we had held,” the former CJ states.
Thus, the minutes by Justice Ndung’u were discarded.
As a result of the incident, Dr Mutunga states it was resolved that confidential minutes should also be taken by the Deputy Registrar “to avoid recurrence of inaccurate recording by a judge in future.”
In the said inaccurate minutes, the former CJ points out suspicious recordings by Judge Ndung’u.
According to Dr Mutunga, the questionable minutes indicate the Deputy CJ was chairing the meeting yet the CJ, as the president of the Supreme Court, was present and participating. This according to Dr Mutunga was not the normal practice.
Another anomaly in the purported minutes, Dr Mutunga avers, makes reference to a subsequent meeting which was to take place on October 14, 2015 yet the signature page indicates that the minutes of October 6, 2015 meeting were approved much later on October 27, 2015.
He also points out that the October 6, 2015 minutes were not only inaccurate but also were never approved.
In the same affidavit, Dr Mutunga refutes alleged discussions on administrative matters during the conferencing of the judges.
The conferencing of judges, he states, “was always about discussion of judicial matters that had been heard before us and were pending for judgment with the purpose of determining possible verdict on the said cases.”
The affidavit highlights the ideological and personal differences among the judges of the apex court during Dr Mutunga’s time as the Chief Justice, divisions which have persisted to date.
For instance, there have been claims that Mr Wambugu’s petition could have been drafted with the help of judiciary insiders, especially on matters regarding its organisation and inner workings, including budgets to some agencies within the judiciary.