MUTUNGA WAS UNDER PRESSURE ON RULING

TUESDAY, APRIL 30, 2013 - 00:00 -- BY NZAU MUSAU

CHIEF Justice Willy Mutunga had been under intense personal pressure before his outburst yesterday.

Former colleagues in academia, civil society, politicians and friends have been questioning the presidential petition verdict released by the Supreme Court on March 30.

The CJ felt singularly "overburdened" with the weight of the unanimous Supreme Court decision with everybody blaming him for all its alleged weak jurisprudential and philosophical grounding, according to one source.

Antagonistic social media commentaries and public jibes by the losers compounded matters. “The only element of pressure he had was the adverse social media commentary which has been growing worse and worse every day,” said a top judiciary source.

“Some people were thoroughly disappointed with the ruling when it eventually came out. They took it upon the CJ in a personal sense. The worst was when bribery claims started peddling around,” said another source close to him.

In the statement, Mutunga said he had been very hurt by the allegations levelled against him and his five fellow Supreme Court judges.

“For me the most hurtful allegation was that I had been bribed in the Presidential Petition. I did not know where to turn. I have never been offered a bribe in my life. I have no doubt in my mind that anybody who dares offer me a bribe, regardless of status, would be the first one I arrest under the Constitution and the laws of this land,” he tweeted on Twitter.

He took particular offence with the social media critic who wished he had died in the place of Makueni Senator Mutula Kilonzo. Mutunga is the president of the Supreme Court and chairs both the Judicial Service Commission and the National Committee on Administration of Justice.

He said that he and his colleagues had been the subject of slander, libel “and outright, vulgar and unacceptable abuses” but he did not believe he should sue fellow Kenyans for defamation.

“All I can demand from Kenyans is justice that they demand of me and the Judiciary I head. We must give justice to each other in implementing our progressive Constitution,” he said.

He acknowledged that public service demands accountability but said Kenyans should understand that judges and magistrates also have rights.

“I urge Kenyans to give us justice! To do so is simple. If you have any evidence of our wrongdoing the Constitution under its Article 168 allows you to petition the JSC for our removal," he said.

"And if you do not have such evidence then give us justice, treat us as family, compatriots and fellow human beings! I and the Judiciary demand justice from Kenyans at all times!” he said

Article 168 provides for the removal of top judges. The grounds for removal include inability to perform functions, breach of conduct, bankruptcy, incompetence, gross misconduct and misbehavior.

The removal can only be initiated by the JSC on its own motion or in reaction to a petition. The CJ chairs the JSC but might have to stand aside if a petition was made against him.

Once a petition is initiated, the president has only 14 days to suspend the judge in question and appoint a tribunal to investigate. In the case of the CJ, the tribunal would comprise the Speaker of the National Assembly, Justin Muturi, three superior court judges from common law jurisdictions, a senior advocate, and two other persons.

On March 30, the Supreme Court summarily dismissed the election petition against Uhuru for lack of merit. Two weeks later, the court published the full text of its ruling. Some of Mutunga's former colleagues in civil society felt that he had let them down at a crucial moment.

"Sadly, this judgment implies that it is acceptable to run a deeply flawed election. The precedent has now officially been set, and the judgment provides little motivation or incentive for the IEBC to improve its conduct in the future. Can Kenyans expect this to be the template for all future elections? Only time will tell, but if so, it is a sorry fate for Kenyan democracy," Africog's Sheema Shah wrote two weeks ago in the Weekend Star