In a strongly worded press statement Saturday, Mr Odinga said the President and his government had failed to steer the country to prosperity and was now bent on silencing alternative voices including the media, non-governmental organisations and now the Judicial Service Commission (JSC).
In reaction to President Kenyatta’s suspension on Friday of six JSC members and appointment of a tribunal to investigate their conduct, Mr Odinga said the Jubilee government had failed “at every point” to resolve the problems at the Judiciary.
“The appointment of the tribunal must be viewed in the wider scheme of what is going on in the country at the moment. The National Assembly has already enacted the Kenya Information and Communication Bill, which contains severe limitations on the freedom of the media in Kenya. Currently, the National Assembly is debating amendments to the Public Benefits Organisations Bill,
the passage of which will severely limit funding for civil society organisations in the country, and bring an end to the culture of civic vigilance which is an important source of the freedoms that we enjoy in this country,” said Mr Odinga, who is the leader of the opposition Cord.
The former prime minister said the Jubilee leaders had failed to contain insecurity in the country, allowing bandits a free rein in northern Kenya “while the promise to institute inquiry into Westgate attack remains just that; a promise”.
“Viewed together, these three developments lead to the conclusion that the Jubilee government is determined to bring an end to all autonomous institutions in the country. A pattern of a return to repression is taking shape. What is being attempted currently is to establish a country of presidential and legislative tyranny, and where no other institution in and out of the government will be allowed a voice. The people of Kenya must wake up to the fact that the new Constitution which they enacted and which they cherish, is now under threat because of the actions of this government,” Mr Odinga said.
Mr Odinga released the statement to newsrooms as the Law Society of Kenya (LSK) accused President Kenyatta and the Executive of opening many unwarranted battlefronts “to divert attention from the ICC cases against the Jubilee principals”.
LSK chairman Eric Mutua, who spoke on the sidelines of an induction course for newly admitted advocates at Panari Hotel, predicted that the suspended JSC members would move to court to stop the tribunal chaired by Justice (rtd) Aaron Ringera from taking off. The Media Bill, once it is assented to by the President, would also be challenged in court, added Mr Mutua.
According to Mr Mutua, the Ringera tribunal is unconstitutional and its appointment would paralyse the operations of the Judiciary.
“Look at the way these issues are being done systematically. It is a question of not wanting the ICC issue on the table at all. The headlines should not be ICC every time. Bring controversy; come with issues which you can see are clearly against the Constitution, but are being driven with an agenda so that we wake up tomorrow and the headlines we have is Judiciary fighting Parliament, the Media Bill etc. That is really a question of diversion of attention,” said Mr Mutua. In his statement, Mr Odinga said President Kenyatta’s alleged failure in leadership was manifested when the National Assembly adopted the report of the Legal Affairs Committee calling for a tribunal for the removal of the six JSC members.
“Better counsel would have led to the search for a more amicable way of dealing with this matter at that point. The President had a choice to accept the recommendation of the National Assembly for the appointment of a tribunal or to reject the recommendation. He could have used the opportunity presented to him to bring about dialogue among the concerned branches with a view to averting the crisis.
“However, he has failed to do so and has chosen to appoint a tribunal whose effect would be to dismember the Judiciary and to leave it as an appendage of the Presidency and the Legislature. Again, the failures by the President have been failures in judgement and in leadership. It is now clear that the President is a willing participant in the scheme to destroy the Judiciary,” Mr Odinga added.
President Kenyatta had on Friday evening suspended six members of the JSC despite a court order against it being in place.Those suspended were LSK representatives Mr Ahmednassir Abdullahi and Ms Florence Mwangangi, Rev Samuel Kobia, Justice Mohammed Warsame, Prof Christine Mango and Chief Magistrate Emily Ominde.
The President appointed a four-member tribunal headed by Justice (rtd) Ringera to investigate the conduct and suitability of the six. Other members of the tribunal are Mr Ambrose Weda, Ms Jeniffer Shamalla and Mr Mutua Kilaka.
In suspending the six and appointing the tribunal, President Kenyatta said he had “no choice but to follow the dictates of the law. Failure to do so will set a bad precedent for the country”.
“The allegations of financial interference and obstruction of justice are serious in nature and, therefore, require investigations by an independent and impartial tribunal. The commissioners concerned must rightly also have the opportunity to clear their names if possible, over allegations now in the public domain, so that the commission can continue with no aspersions on its character and regain the full confidence of Kenyans,” the President said in a statement.
But Mr Mutua, who was flanked by the president of the East African Law Society, Mr James Mwamu, LSK vice chairperson Lillian Omondi and council member Faith Waigwa, said the President erred in law in appointing the tribunal and, thereby, paralysing operations of the Judiciary.
According to Mr Mutua, the suspension will create a prolonged stalemate that would hinder the JSC from hiring judicial staff, or at least even meeting.
“We expect, by January as the Chief Justice had mentioned sometimes back, that there is going to be appointment of 40 judges to deal with the backlog in the Judiciary in terms of hearing cases. I don’t think that come January the JSC will be in a capacity to even meet. Even if they get a temporary order I don’t think they will have the legitimacy to proceed with their mandate. They would need to resolve those issues and unless the Executive steps in again and tries to bring these two arms of government (Judiciary and Parliament) together then this stalemate will continue. It will continue hurting the profession,” said Mr Mutua.
The integrity and impartiality of the members of the tribunal has also come under sharp focus.
Justice (rtd) Ringera, for instance, had applied to be a judge of the Supreme Court in 2011. However, he was not shortlisted and publicly attacked the JSC for snubbing him. He even threatened to sue the commission, whose members he is now supposed to investigate. Mr Abdullahi then responded to his attacks on the JSC, saying Mr Ringera had no entitlement to the the position.
“Having had this kind of confrontation between one of the JSC commissioners and now the appointed chair, we don’t expect justice from that tribunal. Secondly, another member, Jeniffer Shamalla, has come on national television to say that the JSC does not know what it does. She has come out even to attack the honourable CJ,” said Mr Mutua.
Mr Ringera had also served in the appeals chamber of TNA that was handling the disputes from the party nominations while Ms Shamalla has been on the offensive against the ICC, even unsuccessfully filing a case in court to stop President Kenyatta and his deputy William Ruto from going to The Hague.
Mr Weda, a city lawyer, had contested the last elections on a TNA ticket in Seme Constituency without success while Mr Kilaka was the Financial Secretary in the Treasury when President Kenyatta was the Finance minister.
Last evening, State House dismissed the LSK statement as “personal opinion.” In any case, State House said, President Kenyatta was reacting to a petition from the National Assembly.
“The President has not just woken up to form the tribunal. There is a history to it,” said Mr Munyori Buku, the Director of Media and External Relations at State House.
“No one prevents (LSK chairman) Mr Mutua from giving his personal opinions. There is more to law than big ears. The President has the constitutional prerogative to set up the tribunal to investigate an issue, especially when issues of integrity concerning public office holders are raised. Mutua has been asking the President and the Deputy President to clear their names so he should also allow JSC members to clear their names,” said Mr Buku.
He also defended the composition of the tribunal saying the personal history of the members does not take away their skills to deliver.
“Justice (Rtd) Ringera is an old hand in matters of law. We should look at the work of the tribunal not the membership. Those people have the skills,” he added.