Another judge cites Executive interference

By Judy Ogutu and Patrick Muthuri

The Judiciary is increasingly being forced to fight for its space in the changed constitutional dispensation.

Early this week, it was the turn of Chief Justice Willy Mutunga to defend the Judiciary and tell the Executive to respect court rulings.

On Wednesday a Judge of the High Court — whose controversial ruling called for the arrest of Sudanese President Al Bashir if he ever steps on Kenyan soil — spoke out over what he claimed was a scheme to hound him out of office.

Justice Nicholas Ombija has alleged there is a scheme by the Executive to hound him out of office [Photo:File/Standard]

Justice Nicholas Ombija made the stunning claims as he referred to the Chief Justice a file on a case filed byformer Industrialisation Minister, Mr Henry Kosgey.

"I have reliably been informed there is a scheme by the Executive to hound me out of office. The orchestrated intimidation by the DPP’s (Director of Public Prosecutions) office in Kosgey’s case is part of this scheme," the judge said.

Tribulations

He attributed his tribulations to last year’s ruling ordering the arrest of the Sudanese president, following an application by the International Commission of Jurists (ICJ) Kenya Chapter.

Bashir was the first Head of State to be indicted by the ICC over claims of genocide and war crimes in Darfur. He denies the charges.

Elsewhere in Meru, Education minister Sam Ongeri and Imenti North MP Silas Muriuki called on politicians to respect the reformed Judiciary.

Mr Muriuki criticised Prime Minister Raila Odinga for dismissing a court ruling on the election date as having been made by "korti ya bandia" (Kangaroo court) as being disrespectful of the courts.

A three-judge Bench comprising of Justices Isaac Lenaola, Mumbi Ngugi and David Majanja had ruled that the elections could be held within 60 days of the expiry of Parliament’s term on January 15, or this year if the two principals dissolved the Coalition Government in writing.

"It is very unfair for the PM to condemn the court over elections date. We have already established the new judicial dispensation, and the Chief Justice underwent rigorous vetting before being appointed. The courts cannot be said to be bogus," Muriuki said.

Seek redress

Prof Ongeri said those not satisfied with court rulings should follow the court process to seek redress rather than resorting to public spats that demean the Judiciary.

"Those dissatisfied with court decisions can go to the Court of Appeal or the Supreme Court. If we do not agree with courts, then we should amend the law in Parliament," said Ongeri.

Dr Mutunga had told Mr Raila that it was wrong for him to refer to the January 13 Constitutional Court ruling as "fake" for failing to give the precise date for the polls.

Justice Ombija referred the Kosgey matter to the Chief Justice on Wednesday, saying he was doing so to enable the CJ to independently familiarise himself with the intimidation that the Judiciary was facing at the hands of the Executive.

The CJ, he added, would make appropriate orders after studying the file — and that such orders would be binding on the parties.

Kosgey had last year filed an application challenging the legality of the Special Prosecutor, Mr Patrick Kiage, to handle the abuse of office case against him.

Consequently, the judge ruled that Kosgey was being prosecuted illegally by a Special Public Prosecutor whose contract had expired. Ombija granted Kosgey permission to initiate a judicial review of his prosecution and ordered that the case pending before an anti-corruption court be stopped pending his the hearing and determination of his petition.

The judge also ordered that Kosgey deposits Sh1 million within seven days as security for the 11 counts of abuse of office charges in the Magistrate’s Court.

The DPP made an application seeking that the judge disqualifies himself from the case.

Through Principal State Counsel Edwin Okello, the DPP claimed that Ombija had unprocedurally called for the trial court case file on the eve of defence hearing "thereby scuttling the defence hearing yet plainly had no jurisdiction or authority to so call for the file while dealing with judicial review application."

Flat refusal

It was also the DPP’s argument that the judge had flatly refused to refer the matter to the CJ or the proper division for handling of the case and this displayed an unsettling antipathy towards the respondent (DPP) and the interested party (Kiage).

"The judge’s failure to place a record, both for the matter to be refered to the Chief Justice or the relevant division as well as his own caustic and sarcastic remarks that a long letter be written to the Chief Justice dispels the first respondent’s (DPP’s) confidence about fair hearing," the court heard.

He swore that given the gestures and utterances, as well as the orders of the judge allocating the matter to himself, clearly implied that the judge had an interest in the matter.

Kiage joined in the application arguing that fair administration of justice dictated that he disqualifies himself from the case as sought by the DPP. He claimed that Ombija had on March 13, 2012, tried to convince Principal State Counsel Edwin Okello to withdraw the application for his disqualification.

Allegations

Ombija said he decided to refer the matter to the CJ in view of the allegations against him.

"Given the allegations, especially by the affidavit of the interested party (Kiage), I want the file to go to the CJ. Allegations have been made against me in an affidavit form and I have no forum to respond. You have been unfair to me, this is an attack on the Judiciary," said Ombija.

On his part, Kosgey had opposed a petition by the DPP seeking the withdrawal of the Judge.

The Tinderet MP argued that the action was a belated attempt to attack the court’s November ruling that Kiage was prosecuting illegally.

"The alleged complaints raised by the DPP are not only disingenuous but also reflect an unfortunate attempt to delay the just and expeditious disposal of the matter," swore Kosgey.

The case will be mentioned before the CJ on Friday.