Thursday 21 March 2013

[wanabidii] Re: [YP_Ke] KENYA’S CHIEF JUSTICE DR. WILLY MUTUNGA & JUSTICE OJWANG SHOULD RECUSE THEMSELVES FROM HEARING THE CORD PETITION

Ndugu Ochwangi,
With all due respect, I suggest we desist from such unwarranted propaganda. Every Kenyan has a right to critic the Judiciary, or even better still, to bestow confidence in the Judiciary (especially, given that Dr Mutunga and his teams have continued to demonstrate great milestones in reforms at the Judiciary). Why do you only see the speck in Raila & ODM members changing their minds re to trust the Judiciary? It seems you've forgotten so fast. How about those who voted NO to the constitution and are now pledging to fully implement/uphold it? Are they any different? Remember only constant stays constant -- these changes of mind are for the better -- it partly shows these people have searched their souls hard and opted for the (better) alternative. So, let the Judiciary do their thing and let Kenyans pursue their rights -- in PEACE! Let's promote peace, these hurdles we are going through notwithstanding.
Regards. 
Chris


From: David ochwangi <dochwangi@yahoo.com>
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Sent: Wednesday, March 20, 2013 9:37 PM
Subject: [YP_Ke] KENYA'S CHIEF JUSTICE DR. WILLY MUTUNGA & JUSTICE OJWANG SHOULD RECUSE THEMSELVES FROM HEARING THE CORD PETITION

Folks
The recently concluded Kenyan general elections expose yet another soft underbelly of Kenya's convoluted legal system. The petition challenging the election of President elect Uhuru Kenyatta filed before the Supreme Court offers the best glimpse of how justice is up for grabs and even for sale by special interests at the highest annals of justice, the Supreme Court of Kenya. Not too long ago, Prime Minister Raila Odinga lampooned the courts as phone (Mahakama Bandia, he said) when the court ruled on a March 4 2013 election date. Now he and his CORD coalition have made it abundantly clear, confidently so I may add that it is only the Supreme Court that will grant them the win they claim they were robbed at the ballot box and not the people themselves. What changed? Read on.
 
The Supreme Court in this context is made up of six unelected Kenyans whose decision is supposed to be final; they can unliterary overturn the will of the people and as it is framed right now, without an explanation until later. So this begs the question, who are these mighty unaccountable Supremos? To an undiscerning observer, it would appear that the Kenyan Supreme Court is indeed an impartial arbiter to this political melee but a closer look tells of a very different story. The answer is straightforward, look no further than the cozy relationship between Prime Minister Odinga and two of the Supreme Court Judges, Chief Justice Dr. Willy Mutunga and Justice Jactone Boma Ojwang. The bold manner in which Mr. Odinga and his CORD coalition have unreservedly pressured and courted the court only means one thing, the ruling is predetermined  and it is only a matter formality before they are handed victory. The Prime Minister and his CORD coalition are so sure of the outcome that they are in full campaign mode with rallies scheduled across the country already.
 
By definition, a conflict of interest (COI) occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in another. There is no question that for the reasons articulated below these two justices, unless checked in time, are a threat to democracy because of their inherent conflict of interest diametrically aligned to Mr. Odinga and his CORD coalition. I even venture to speculate that both men voted for Prime Minister Odinga and they are equally frustrated that he did not win and therefore would use their official positions at the Supreme Court to overturn the will of the people. In fairness to these two,  I think that all the justices hearing this petition should be required to disclose under oath whom they voted for so as to remove any doubt as to their vested interest in the outcome of the case. Paradoxically, conflict of interest is one of the primary premises cited by Mr. Odinga in his petition against President-elect Uhuru Kenyatta, i.e.  That the IEBC and Mr. Kenyatta's TNA party shared the KENCALL server platforms; as absurd and farfetched and remote as that sounds, Mr. Odinga's application to the court cites this as one of the grounds why the court must overturn the people's verdict, I am not making it up. So I say that similarly, by the Prime Minister's own stated standard, his two friends at the Supreme Court, Justice Mutunga and Justice Ojwang  should not be adjudicating Mr. Odinga's petition.  So what exactly are those connections that create the conflict of interest or the impression thereof? You may ask;
CHIEF JUSTICE DR. WILLY MUTUNGA:
I personally like Dr. Mutunga and I think he is a good man. However, since his appointment, he has been very publicly outspoken in expressing his displeasure with the possibility of President elect Uhuru Kenyatta and his running mate William Ruto being allowed to run for President and Deputy President respectfully. 
Justice Mutunga and the Prime Minister have a history have a history of camaraderie spanning back years from his activism and push for human rights protections and there is no question that his political statements and posturing has been tinged in the Prime Minister's favor. He was vocal in trying to use the courts to prevent the president elect from running because of chapter 6 of the constitution. Just like the ICC, the Kenyan courts refused to be drawn into the presidential politics but it did not stop there. Dr. Mutunga was the first to report to the media (not the Police) that he and his officers had been threatened by Uhuru's supporters about the integrity case filed against Uhuru. This turned out to be an amateurish poorly choreographed inside job designed to discredit President elect Kenyatta. In another instance, Justice Mutunga made several prejudicial statements against Mr. Kenyatta on cases pending before his courts, at one point Mr. Kenyatta's attorneys had to admonish him and request the courts to restrain the Chief Justice.  In yet another incident that shows a pattern of bias against Mr. Kenyatta, Justice Mutunga is said to have made a trip to Arusha Tanzania about a month ago to dissuade the Tanzanian government from hosting the ICC cases against Uhuru and Ruto. Some of you may remember the fiasco at the Jomo Kenyatta International Airport where it is alleged that a clerk prevented the CJ from travelling, the truth is the CJ travelled incognito to conceal his real mission to Arusha. He is a VIP who heads the third arm of government- he had no reason to hide his travel unless it was a secret, a secret that was later revealed by the Tanzanians themselves. As recent as two weeks ago, one of his closest friends, Professor Makau Mutua, a diehard supporter of Prime Minister Raila Odinga and Dean of SUNY Buffalo Law School wrote an article on the Daily Nation titled "CJ stands between Kenyans and tyranny or chaos", in it he practically rubbishes the IEBC role and instead arrogates it to Dr. Mutunga. Professor Makau wrote, "
Forget the IEBC for the moment – it's just a technocratic bureaucracy to organize the elections, and to "collect and count" ballots. That's why the ultimate legitimacy of an election rests with the Judiciary. This makes Chief Justice Willy Mutunga the most important Kenyan on March 4, and the next few months. That's the truth. I am not knocking the IEBC. But important as it is, the IEBC won't be the final arbiter of who won––or lost––the elections. That solemn task rests with CJ Mutunga's Judiciary. Nor should state apparatuses – Executive factotums in the civil service, police, armed, and security agencies – play any other role beyond ensuring order and stability. They must remain strictly impartial in the contest. http://elections.nation.co.ke/Blogs/CJ-stands-between-Kenyans-and-tyranny-or-chaos/-/1632026/1709396/-/llkvap/-/index.html  
Clearly, the good professor was spiking the ball and teeing up for his friend the Chief Justice to overturn the will of the people and this is consistent with both men's public posturing of  their common goal of designing a government headed by Prime Minister Odinga rather than one elected by the people themselves.
There are yet more reasons why Dr. Mutunga should not be adjudicating the CORD petition. Open Society Foundation, the civil rights group funding the petition in court by civil society also funded Justice Mutunga's  trip to Washington DC recently. That is a conflict like day and night.
Duncan Okello, reported to be at the core group of names from the Civil Society who filed a petition at the Supreme Court asking for annulment of the Presidential Election, has been until recently the Chief of Staff at the Judiciary and Chief Justice Willy Mutunga key Point man, they are close friends.
JUSTICE JACKTONE OJWANG:
This one is open book and there shouldn't even any contest as to whether Justice Ojwang should recuse himself from hearing the petition because it touches on him personally and his entire family. First, sources reveal that Justice Ojwang is married to Professor Colleta Suda, a renowned scholar who is a close confidante of the Prime Minister's wife mama Ida Odinga. They are both members of ODM, the Prime Minister's party. Justice Ojwang's wife also ran for a County seat in Migori on an ODM ticket. Even though she wasn't elected, she is reportedly on ODM's  list of nominees for political office.
Additionally, it is alleged that Mr. Odinga saved Justice Ojwang in 2011 when the justice's job was on the line during the purge of the judiciary.  Clearly, this is one justice who has absolutely no business hearing the petition filed by his friend the Prime Minister. His stakes in the outcome of the case and the inherent conflict of interest screams aloud and clear. Justice would be irreparably defeated and democracy severely undermined if Justice Ojwang were allowed to adjudicate this case. 
Folks, this is not rocket science, these two justices are severely compromised and they may as well be bought and paid for already- we can't just stand by and watch the people's will being denigrated  without raising the alarm. These men's associations and track records speak for themselves and no man should be allowed to judge his own cause in or outside the supreme court. The Kenyan constitution expressly manifestly bestows the supremacy of government on the people themselves and not the Supreme Court. Contrary to what Professor Mutua would have you believe, the people's prerogative supersedes any and all interference by any branch of government and that includes Justice Willy Mutunga's Supreme Court. The will of the people must and will always prevail- PERIOD! 
 
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