I HAVE taken time to listen to CS Matiangi’s grievance against justice Odunga. Unless there is any other, the key issue he has is that he (and the govt) were condemned unheard. And for that, he has taken judge Odunga to the JSC. Now, let’s understand that the only reason a petition/complaint is made to the JSC against a judge is to lead to his/her removal from office, nothing else.
The JSC can’t for example reprimand a judge or write him a warning letter or demote him or punish him. There is no such a thing in law. In fact JSC can’t remove a judge, its a tribunal set up by president on recommendation of JSC.
In short, Matiangi wants Odunga removed from office. That is the story the media should have flagged. The process between now and the time Odunga leaves that office is long and wide, I dare say that Matiangi will leave Odunga in office. The constitutional grounds alone, for removing a judge from office are nowhere near Matiangi’s grievances.
Now I have something to tell the good CS. If every Kenyan was to refer a judge to the JSC for “condemning him/her unheard” we would all be queuing at the JSC. In fact no judge would be in office, they would all have gone home. Remember how bitter Uhuru was with Maraga team. And then Raila picked the bitterness. That is how it works.
The independence of judges/judiciary is fully taken care of in Article 160. The authority of judiciary is derived from the people (Article 159). That is why we Kenyans were careful to secure the judges tenure against the present and future Matiangis. And the reason why we have an appeal system is to check and balance the powers of judges.
In fact failure to give you a fair hearing and condemning you unheard is the most fertile ground for appeal. Just to point out, a judge can make 100 rulings in a day, all against the govt, if need be. Odunga heads the Judicial Review division which deals with decisions made by the State bodies. Lawyers know that its not anything unique to issue orders against Matiangi.
Let’s therefore conclude that Matiangi like any other Kenyan deserves fair hearing and due process of law. But let Matiangi not assume that the judiciary will be intimidated by the executive especially where a judge commits an err that is easily appealed against.