Hon. Mr. Justice David Maraga,
Chief Justice and President
of the Supreme Court,
Supreme Court Building
Hon. Mr. Justice George Odunga
I am addressing your Lordship as Chair of the Committee on Senior Counsel.
My attention has been drawn to a letter dated 1st August, 2017 apparently addressed to your Lordship by Mr. Raphael Tuju, Secretary General, Jubilee Party, regarding the above named judicial officer. The request in the letter is that your Lordship should remove Hon. Mr. Justice Odunga from the cause list as Duty Judge in the period beginning 31st July, 2017 to 11th August, 2017. The reasons for the request seem to be Mr. Tuju’s perception of his Lordship’s partiality in previous matters in which his Lordship has delivered judgements and/or rulings which are seen as having been skewed due to his alleged relationships with counsel who has or have appeared in those matters and other familial ties.
It was open for any party to the proceedings, or indeed Mr. Tuju, to make a formal application before the judge for recusal, and to appeal against an order declining the prayer. The requisite supporting affidavit evidence for such application would rule out speculative suspicions as grounds for alleged malfeasance. It would also be a public, transparent and fair manner by which to question any perceived partiality of a judicial officer. Regrettably, this has not been done in this case.
Article 160(1) of the Constitution is explicit that, in the exercise of judicial authority, the judiciary shall be subject only to the constitution and the law and shall not be subject to the control or direction of any person or authority. And, pursuant to Article 161(2)(a)the Chief Justice shall be the Head of the Judiciary.
Mr. Tuju’s letter sails perilously close to being a control of or direction to the Chief Justice on the manner in which the Judiciary should be administered. More fundamentally, it constitutes the undermining of the Judiciary by impugning one judicial officer on the ground of his ethnicity and apparent familial relationships, and not on the basis of the reasons advanced in his decisions for the conclusions reached. In this respect, the Committee on Senior Counsel made a statement on or about 13th July, 2017, a copy of which is annexed hereto, for your Lordship’s ease of reference.
The Senior Bar expresses in the strongest terms possible, its dismay and alarm at Mr. Tuju’s attempts at interference with the independence of the Judiciary. It amounts to a subversion of the constitution and the rule of law. We are also concerned that these kinds of attacks against a specific judicial officer could well expose the judicial officer to personal jeopardy, and undermine his security. Ultimately, it is contemptuous of the Judiciary as by law established and seeks to inaugurate a paradigm which brings the institution to public opprobrium. This is just a step away from anarchy.
I am aware that the greatest injustice often begins with an apparent justified exception to an established rule or standard. I also recall the powerful counsel from the late Dr. Martin Luther King Jnr who stated that there comes a time when silence is betrayal, and that the constitution must be defended by us before it is too weak to defend us. Those words still ring true today.
It is for the foregoing reasons that the Senior Counsel strongly oppose the request made in Mr. Tuju’s letter, both in substance and procedure.
Fred N. Ojiambo, MBS, SC
Committee on Senior Bar
Law Society of Kenya