A great service by Kenya's chief Justice. Thanks JDAM for sharing. Affirmative events of such integrity are to behold.
 

 Haruna.

 

-----Original Message-----
From: Lamin Darbo <[log in to unmask]>
To: GAMBIA-L <[log in to unmask]>
Sent: Thu, Mar 21, 2013 8:12 pm
Subject: [G_L] Fw: [G_L] A CHIEF JUSTICE IN COMMAND OF HIS LARGER CONSTITUTIONAL BRIEF





 CHIEF JUSTICE’SSTATEMENT ON JUDGES’ SECURITY AND ELECTIONS 




FellowKenyans, I have called this press conference to inform the country of twoseparate but significant events that have occurred in the past one week. I haveconsidered the possible implications of this public statement, but concludedthat given the history of this country, such a public disclosure is warranted,necessary, and proper. This statement does not seek to cause alarm but tostrengthen the resolve of each and every Kenyan to protect our Constitution,secure our transition, and affirm our future. 
 
On Monday, February 18, 2013, as I was sitting inthe Judicial Service Commission interviews for the recruitment of the DeputyChief Justice, my office received a poison-pen letter from the Mungiki VeteransGroup/Kenya Sovereignty Defence Squad. The letter, which was dated Wednesday,February 13, 2013, makes all manner of threats against the Judges, ambassadorsand my person. It warns against an adversarial ruling on the Presidential andDeputy Presidential candidacy of Uhuru Kenyatta and William Ruto. The letterextols the violent ‘exploits’ of the Mungiki movement and threatens direconsequences
. 
This letter was posted only a day before mydeparture to Dar es Salaam, Tanzania, where I had been invited by the TanzanianConstitution Review Commission to a one-day event to share my thoughts andexperiences on Kenya's constitutional experience. I was stopped at the JomoKenyatta
InternationalAirport (JKIA) by an Immigration Officer, who insisted that I could not travelbecause I had not been cleared by Mr. Francis Kimemia, the Permanent Secretary,Head of the Public Service, and Secretary to the Cabinet. I told the officialthat there is no constitutional, statutory, or policy basis or requirement thatprovided for the Chief Justice of the Republic to seek clearance to travel fromthe Head of Civil Service or anybody. 
 
Further, the saidCircular that he was invoking to make this illegal demand and decision did not-- rightly so -- even have the Chief Justice listed among the Public Officialson it. It requires quite some courage, ignorance, or political patronage or acombination of all three for an Immigration officer, on his own motion, tosummon the confidence to stop a Chief Justice from traveling, particularly inthe face of a nonexistent circular! After much haggling, I did eventuallytravel. The Immigration Shift Supervisor kept insisting that they were awaitinginstructions. However, I still find the insistence on permission from MrKimemia bizarre to say the least. Even more baffling was that the ChiefRegistrar of the Judiciary received a purported ‘Clearance to travel”letter byMr. Kimemia dated February 14, stating ‘..it has been noted the Chief Justiceis travelling to Dar es Salaam, Tanzania’. 
 
Upon landing in Dares Salaam, I received a telephone call from the Director General of theNational Intelligence Service, Major-General Michael Gichangi, apologizing forthe 'small hiccup' at the airport. I told the DG that a Chief Justice beinggratuitously stopped by anybody from traveling cannot fit the definition of asmall hiccup, however generous one may want to be. It has never happened on anyof my numerous previous trips. I have, therefore, concluded that this isdeliberate harassment; and whereas I was keen to have this resolvedbureaucratically, I am convinced it is political, and public accountabilityrequires that I make it public.
 
These two incidents evidence a pattern ofemerging harassment against my
person, the Officeof the Chief Justice, and the Judiciary -- especially since no fewer than five(5) Judges have been attacked in the recent past, with some involving gunincidence – as we head into the elections. 
 
I,therefore, wish to state as follows: 
 
1. Kenyans haveinvested heavily in this country's democratization, and this investment hasresulted in a new Constitution. This Constitution must be protected and guardedjealously. Threats and intimidation of this nature against the Chief Justice,judges, or any other Kenyan or individual must be resisted actively, andrejected resolutely. I have given most of my life to a better Kenya and iftaking it is what will be required to consolidate and secure our democraticgains in this election, or even thereafter, that is a price I am not afraid topay. 
 
2. I have investedheavily in the past one and a half years in creating a new Judiciary. I haverepeatedly given my pledge to the country that the Judiciary will not flinch ininterpreting the Constitution as is required, a task we have executed verywell. For the 2013 General Election, we have done sufficient ground work tohandle both pre- and post-election matters in accordance with the law. OnFebruary 28, 2013, we shall hold a special session with all judges of the HighCourt to give Kenyans a final statement on our preparedness. Therefore,candidates or their supporters -- real or claimed -- should not panic. We shalldecide all cases independently, and with scrupulous fidelity to theConstitution and the law. Let no individual, group, candidate, or supporter imaginethat cowardly and darkly acts such as these will cower us. We have seen andovercome worse, and we will all soldier on for this country. None will be heldhostage by a cabal of retrogrades.
 
 
3. The Judiciaryhas, in a private correspondence, communicated to Mr. Kimemia as to the legalposition on the matter of the 'small hiccup' to ensure it never occurs again. 
 
4. I believe thatKenyan security agencies, unless they willfully neglect or refuse to, have thecapacity and resources to investigate the sources and partnerships of thisthreatening letter. To this end, I have this morning sent the letter to theInspector General of Police, the Director of the Criminal InvestigationsDepartment, Director of the National Intelligence Service, and the Director ofPublic Prosecutions to investigate this matter and give the country a progressreport. I am also asking the Inspector General of Police to take the necessarysteps to enhance the security of judges and other judicial officers at thistime. 
 
5. If anybody, anycandidate, any party, any agency, or any other actor thinks that it will bendthe ear, mind and resolve of this Chief Justice to do anything that isunconstitutional or illegal, then they are mistaken. On any matter that willcome before me or the Supreme Court, I and the Court shall operate strictlywithin the confines of the Constitution. Intimidation and threats are uninvitedguests and will not be hosted in the execution of our mandate. 
 
6. The politicalclass must choose whether, either through direct pronouncements or suggestivebehaviour, they want a peaceful, democratic and fair election free from thering of rigging and intimidation, or whether they want to put the country on apath of violence. Whatever choice the political class and leadership makes,they must remain aware that ultimately, the people of Kenya and the rule of lawwill triumph. The Judiciary is playing its part in protecting and upholding theConstitution; let Kenyans also do their part. 
 
7. I appeal to Kenyans to hold a peacefulelection. It is only by so doing that we shall silence these dark forces ofretrogression and also advance our
constitutional and democraticpromise. My fellow Kenyans, with confidence and tribute to the nation, go andvote for our Constitution. It is the only way to reject those who threaten andproclaim violence as a false choice. 
 
Thank you. 
 
Hon. Dr. WillyMutunga, D. Jur., SC, EGH Chief Justice/ President, Supreme Court of Kenya



  
 
 
  ----- Forwarded Message -----
  From: Lamin Darbo <[log in to unmask]>
 To: [log in to unmask] 
 Sent: Thursday, 21 March 2013, 23:34
 Subject: [G_L] A CHIEF JUSTICE IN COMMAND OF HIS LARGER CONSTITUTIONAL BRIEF
  
 


All



A wonderful and refreshing read from the Chief Justice of Kenya.


A courageous, cogent, and compelling argument
 




Material originally sent to me by a contact






LJDarbo

 









 
 
  
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