Act on this JSC cronyism, lawyers tell Mutunga

PHOTO/FILE Chief Justice Dr Willy Mutunga during the vetting of judges on July 5, 2011 at Anniversary Towers, Nairobi.

By ALPHONCE SHIUNDU ashiundu@ke.nationmedia.com
Posted  Saturday, July 9 2011 at 16:19

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Chief Justice Willy Mutunga has come under pressure from lawyers over the belated inclusion of former judge Mukunya Samuel Ndung’u in the shortlist of candidates for the positions of judges of the High Court.

The lawyers allege the belated inclusion was a sign of cronyism in the Judicial Service Commission.

They have singled out the chairman of the Public Service Commission, Mr Titus Gateere, as being behind the inclusion of Mr Justice (rtd) Mukunya’s name.

In an anonymous email sent to the registrar of the High Court and to the Judiciary, the lawyers point out that Mr Justice Mutunga’s explanation – as the chairman of the JSC – that the controversial inclusion was as a result of an error of omission does not wash.

Why delay?

They argue that it should not have taken “a whole 22 days” to correct an error, if it was a genuine case.

“On May 27, 2011, the JSC published the 234 names of applicants for the position of judge of the High Court in local dailies.

“The name of Mr Mukunya Samuel Ndung’u did not appear in the list of applicants. Similarly and obviously the name of Mr Mukunya did not appear among those of the 114 names of the shortlisted candidates,” reads part of the letter by “Concerned Legal Practitioners, Mount Kenya Region”.

“Why did the JSC not correct the anomaly regarding Mr Mukunya within the 22 days?

“When the matter was rightfully raised by the media on June 28, 2011, Mr Gateere explained that Mr Mukunya’s name was inadvertently left out in good faith.

“But how did this happen? Mr Mukunya did not appear in the published list of 234 applicants in the first place, how could his name have been left out? Was his application received belatedly and by whom?” the lawyers ask.

They now want Mr Justice Mutunga to take over the matter and ensure that he “makes things right” regarding the controversial shortlisting of Mr Mukunya.

They allege that the former judge and Mr Gateere are close friends and that they both boast of high-level connections in the government.

Mr Mukunya is scheduled to appear before the JSC’s interview panel on August 10 at 4 p.m.

“Mr Mukunya is well connected and has relations with the political class, right up to State House.

“He does not shy to remind young advocates who reside and practice in Mt Kenya region of this fact,” the lawyers wrote in the email seen by the Sunday Nation.

“We hope that this matter regarding Mr Mukunya is not an indication that there are candidates who have already been assured of appointment to the office of judge of the High Court beforehand”.

When the controversy erupted, Mr Mukunya said he had applied for positions in the Supreme Court and in the High Court and referred journalists to the JSC.

Similarly, Mr Gateere, who chaired the preliminary selection committee, said Mr Mukunya’s name was inadvertently left out adding that everything regarding the shortlisting was done above board. The commission had written to him to inform him of the situation.

He could not however say why it took about 20 days to single out the omission or explain why they were quick to inform Mr Mukunya in private why he was left out and did not bother to publish the omission in the media for public consumption considering the sensitivity of the matter.

“His name was inadvertently left out and we had contacted him on the same. Kenyans are bound to be suspicious but JSC did that in good faith and that can be explained.

“We appreciate there was a mistake which should be taken in good faith,” he said in a telephone interview.

The lawyers however are of the view that there was foul play in the way the name was included and they also note that interview dates for some candidates were changed, when they ought not to have been altered.

“We do not expect the shenanigans of the old Kenya to persist in the JSC and the Judiciary. We look upon you to make things right.

“The past impunity by the President and CJ under the repealed Constitution must not be allowed to go on.

“You are in charge now and we expect truth, fairness, justice and transparency in this matter,” the lawyers write.

“The era of entitlement to public positions is over. We will hold our horses until we see the outcome of the ongoing interviews.”