Supreme Court Justice Jackton Ojwang’ has challenged former Chief Justice Willy Mutunga on his claim that that some Supreme Court Judges went on strike crippling the court’s operations for two weeks.
The former Chief Justice swore an affidavit on August 7, 2017 in support of a petition filed by ex-LSK CEO Apollo Mboya seeking to have the Judicial Service Commission (JSC) initiate the process for the removal of Justices Ojwang, Njoki Ndungu and Mohamed Ibrahim for gross misconduct after they downed their tools in support of their colleagues Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi who had been asked to retire after attaining the age of 70 years.
Justice Ojwang’ has accused the former Chief Justice of being partisan by apparently acting in cahoots with Apollo Mboya. According to Mboya, the said judges striked in solidarity with Justices Tunoi and Rawal after the two were directed by the JSC not to hear any matter.
However, Justice Ojwang’, in his affidavit sworn in reply to Mutunga’s affidavit said the judges of the Supreme Court were of the view that JSC had no power to direct judges when to sit since this would amount to interfering with the independence of the judiciary.
His view is further supported by the fact that at the time of the JSC’s directive, the judges had obtained orders of stay from the High Court effectively stopping the JSC’s directive to retire the two. By directing the former Deputy Justice and Justice Philip Tunoi not to sit, the JSC was circumventing the stay orders.
The natural consequence of the directive was to make it difficult to have a quorum to hear and determine cases. The minimum number of judges which can hear a matter in the Supreme Court is five.
Justice Ojwang’ has through his lawyer Daniel Musyoka of MMC Africa Law challenged the former Chief Justice to demonstrate one instance where he constituted a bench and he refused to sit. He also states that the former Chief Justice Willy Mutunga was part of the meeting in which the judges agreed to write the letter to the JSC.
However, because he and Justice Smokin Wanjala were members of the JSC, they would be excluded from signing the letter on the basis of which the former LSK CEO Apollo Mboya petitioned for their removal. Justice Ojwang’ now believes it is the former Chief Justice who gave that the letter to Mr Mboya to petition considering all communication to the JSC is confidential.
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“It is disconcerting to note that he would conveniently wish to dissociate himself with discussions which he was part of. At the very least having played a dual role as the Chair of the Judicial Service Commission and a judge and the President of the Supreme Court, wisdom would have demanded that he keeps off the dispute, if for nothing else, to maintain a semblance of impartiality. To my dismay, my hitherto belief that he could have been impartial has now been debunked”, states the judge.
Mr Mboya has filed the petition in the High Court seeking to challenge the decision of the JSC to admonish the judges instead of finding that the judges were guilty of gross misconduct and forwarding the same to the President to form a tribunal to investigate the matter.
Justice Ojwang’ is of the position that JSC has no power to admonish judges in the first place.
“The JSC has already made a determination that there was no gross misconduct on the part of Justice Ojwang’ and the court cannot come to a conclusion that there was gross misconduct as no such power in the Constitution exists.” added the judge.
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