Wednesday, October 12, 2011

I am no magician, says CJ Mutunga



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Chief Justice Willy Mutunga has denied allegations that he is a magician and unfit to hold public office October 11, 2011. FILE
Chief Justice Willy Mutunga has denied allegations that he is a magician and unfit to hold public office October 11, 2011. FILE 
By PAUL OGEMBA
Posted  Tuesday, October 11  2011 at  16:26
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Chief Justice Willy Mutunga has denied allegations that he is a magician and unfit to hold public office.
He described an application seeking to remove him from office as reckless, misconceived and illegal; saying it contains false assertions of necromancy, magic, non-taking of oath of office and maladministration of justice on his part as the CJ.
“I have never practiced either necromancy or magic and no testimony that I have given before Parliament or the Judicial Service Commission amounts to the allegations made against me,” said the CJ Tuesday.
In a sworn affidavit, the CJ said all circumstances show that the offensive allegations have been made for the mere purpose of abuse and to prejudice the public against him.
He said that the petition intends to bring his character and that of the office of the Chief Justice into disrepute through reckless and false assertions of not swearing on the books of “all faiths” and that he took oath of office using an unknown “red book.”
He added that it was well known that he was sworn in and took the oath of office at State House upon the appropriate Holy Book given to him there.
“I took the oath of office at State House upon the Holy Quran, on a copy provided by State House as prescribed by the Constitution of Kenya before the president, cabinet ministers, senior civil servant and members of the JSC,” said Dr Mutunga.
He said the petitioner’s offhand description of what he does not like are dismissive and disrespectful of other faiths and is using the courts to achieve the same.
Dr Mutunga submitted that the application degrades his faith and in the process contravenes his right to freedom of conscience and worship.
“The petitioner seeks to use court process to under the Constitution to violate the Bill of Rights of the very same Constitution under the guise of a petition,” he said.
The CJ added that the petition against his appointment is an offensive, cynical, calculated and defiant abuse of court process and is liable in law to be struck out.
He accused the petitioner of constantly taking bits from whole answers to suggest whatever he wants to, and in so doing has misrepresented what has been said, adding that he will refer to the Hansard record of his testimony before the Parliamentary Committee for a true copy of what he said.
Dr Mutunga said that if the petitioner is seeking to remove him from office, he should do so as prescribed under Article 168 of the Constitution and not through the courts.
According to his affidavit, that is the only procedure permitted to oust him, and the Judicial Service Commission is the only body permitted to initiate the removal.
Article 168 (2) states that the removal of a judge may be by the JSC acting on its own motion or on the petition of any person to the commission.
He said that the court has no jurisdiction to hear a petition challenging his appointment and that the prayers sought by the petitioner are in violation of the constitutional doctrine of separation of power.
Dr Mutunga was making a reply to an application by lawyer Harrison Kinyanjui that he should have taken the oath of office under the many religions he professes to have faith in accordance with Article 74 of the Constitution and Section 15 of the Oaths and Statutory Declarations Act.
Mr Kinyanjui claimed that upon being questioned by the Constitutional Implementation Oversight Committee, Dr Mutunga said he professes all faiths, and yet he never took the oath as envisaged under all these religions.
In his application, he alleges that the CJ cannot uphold the dignity and the respect of the Judiciary while engaged in necromancy and wearing of the stud that he confessed connects him to unspecified ancestors.
He explained that necromancy involves contacting dead persons’ spirits and summoning of such spirits amounts to and is part of magical practices.
He has sued the Attorney General and the Judicial Service Commission and named Dr Mutunga, Justices Riaga Omollo, Samuel Bosire, Alnashir Visram, Joseph Nyamu, Kalpana Rawal and Kariuki Kihara as interested parties to the suit.
Also named as interested parties are Justices Lee Muthoga, Mary Ang’awa, Roselyn Nambuye, Hannah Okwengu, Mary Kasango, Martha Koome, Ms Gladys Boss Sholei, and Deputy CJ Nancy Baraza.
He argued that by appointing the CJ and his deputy, the Judicial Service Commission acted in breach of Article 10 of the Constitution, in that there was no transparency after the interviews as to the criteria, the manner of selection and how the selection was arrived at.
The hearing of the petition was adjourned to November 16 to allow the Attorney General time to file and serve his replying affidavit.

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