Former Chief Justice Willy Mutunga has exposed the infighting which rocked his seven judge Supreme Court bench during his time that almost paralyzed the operations of the highest court in the land.
In an affidavit sworn on dated August 7th, the former CJ documents how two of the judges — Lady Justice Njoki Ndung’u and Justice Jackton Ojwang’, at one time went on a strike that crippled Supreme Court's operations for nearly two weeks.
Dr Mutunga in the affidavit further disowns assertions by Njoki and Ojwang that the decision by the Supreme Court judges to go on strike in 2015 was a collective stand and accuses Justice Ndung’u of falsifying the minutes of an October 6, 2015 meeting of then Supreme Court judges.
“The said letter (notifying the withdrawal of services by a section of Supreme Court judges) was not authorised by a collective decision of the Supreme Court judges, and ought to be treated as the sole work of the three signatories to the said letter.” Mutunga says.
"Besides Justice Ojwang’ and Justice Ndung’u, the letter to initiate “a moratorium on all judicial operations” was also signed by Justice Mohammed Ibrahim but later pulled out of actualising the strike," Mutunga adds.
The former CJ's affidavit is in response to the consolidated petitions 204 and 218 of 2016 lodged by former Law Society of Kenya (LSK) CEO Apollo Mboya and Supreme Court judge, Justice Ndung’u respectively.
Mboya had filed the petition to contest the Judicial Service Commission’s (JSC) decision to reject rather than recommend to the president for the formation of a tribunal to investigate the conduct of Justices Jackton Ojwang’ and Ndung’u for participating in an illegal strike that paralysed the Supreme Court’s operations.
The strike by the two was to protest the move by JSC to retire the then Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi.
On the other hand, Justice Ndung’u filed a petition to contest the JSC’s decision to admonish her, arguing she was not given a fair hearing.
The hearing for highlighting of submissions in the consolidated petition will be heard on September 20, coincidentally, the same time the Supreme Court will be publishing the detailed and reasoned judgment of the court for overturning the August 8th presidential election and the dissents thereof.
“Despite receiving the response of the JSC, I am aware that two of the three judges who signed the aforesaid letter (namely Judge Ojwang’ and Judge Njoki) acted upon their threat to down tools thereafter, and as a consequence, the Supreme Court did not proceed with its regular sitting for about two weeks from September 29, 2015 to October 15, 2015,” Dr Mutunga avers.
An annexed memo by the Registrar of Supreme Court dated April 6th, said that the strike affected eight matters that had been listed for hearing, including an appeal by former Nyando MP Fred Outa against the annulment of his election.
“Justice Ibrahim availed himself for possible sittings of the Supreme Court but Judge Ojwang’ and Njoki did not, hence causing various matters to be taken out,” Mutunga adds.
Mutunga further alleges that notes by Justice Ndung’u of a meeting held on October 6th, 2015 were inaccurate.
“I recall very clearly that the notes taken by Judge Njoki for the latter portion of the said meeting were challenged in a subsequent meeting of the Supreme Court judges and rejected on the ground of inaccuracy and failure to reflect the true position of the discussions we had held,” the former CJ states. Thus, the minutes by Justice Ndung’u were discarded.
As a result of the incident, Dr Mutunga states it was resolved that confidential minutes should also be taken by the Deputy Registrar “to avoid recurrence of inaccurate recording by a judge in future.”
Dr Mutunga refutes that there were discussions on administrative matters during the conferencing of the judges. The conferencing of judges, he states, “was always about discussion of judicial matters that had been heard before us and were pending for judgment with the purpose of determining possible verdict on the said cases.”
The affidavit exposes the ideological and personal differences among the apex court's judges during Dr Mutunga’s time as the Chief Justice, divisions which have persisted to date.