The feud between the Executive and the Judiciary appeared to have hit feverpitch with the Tuesday arrest and prosecution of Deputy Chief Justice Philomena Mwilu.
Yesterday, Chief Justice David Maraga declined to comment on Mwilu’s tribulations when he presided over the swearing-in of the National Gender Equality Commissioners, citing the matter was before court.
Although the Judiciary has remained mum over the latest development, highly-placed sources intimated to People Daily that Maraga had protested the arrest that was personally executed by Director of Criminal Investigations George Kinoti and Director of Public Prosecutions Noordin Haji.
The two, said to have arrived at Supreme Court Tuesday morning as Justice Maraga chaired a crisis meeting following reports that detectives would arrest Mwilu.
Sources said Maraga and company had insisted the Judicial Service Commission (JSC) be allowed a chance to conduct own investigations before advising President Uhuru Kenyatta on need for tribunal to probe the DCJ.
Some commissioners are said to have opined that the intended charges were of a private commercial transaction that had nothing to do with Mwilu’s official duties. Furthermore, they questioned why police were taking over a matter that should have been handled by Kenya Revenue Authority.
According to the sources, the commissioners felt the arrest of Mwilu was an infringement on the independence of Judiciary. “Any misconduct of judicial officers and more so of the highest Judiciary office ought to be dealt with by JSC, which should initiate a tribunal,” a source quoted Maraga as stating.
However, Kinoti is said to have threatened to use force to arrest Mwilu if the stalemate and legal debate persisted.
It was on that premise that Haji came out guns blazing at a press conference and vowed his office “would prosecute anybody regardless of their positions and the resultant consequences.”
He even went further to state that although the CJ was his boss in judicial affairs, his office was independent. “I informed the CJ of the decision to arrest Mwilu…but I was not asking for permission because the ODPP is independent,” he said.
Last year, bad blood between Judiciary and the Executive came into the fore when the Supreme Court nullified the presidential election of August 8.
Then, various politicians when public with claims indicating they would ‘punish’ the Judiciary over the ruling.
The culmination of the threats was a statement by President Uhuru Kenyatta that the issue of the “rogue judiciary” would be “revisited”. Since then, the two arms of government have remained strange bedfellows.
The President’s three appointees to JSC—Prof Olive Mugenda, Felix Koskei and Patrick Gichohi—are yet to be sworn into office, almost five months after they were vetted and cleared by the National Assembly.
The CJ’s refusal to swear them in is seen as retaliation against refusal by the Executive to gazette the election of Justice Mohamed Warsame as Court of Appeal representative to the JSC.
Parliament had insisted on vetting Warsame, a move that was opposed by JSC aNd the Law Society of Kenya.
The nominees were nominated on February 13, they names forwarded to the National Assembly the same day and vetted by the House Justice and Legal Affairs committee on February 21 and approved on February 27.