How Justice Mwilu has handled attempts to remove her

Deputy Chief Justice Philomena Mwilu [File, Standard]

In our second of three-part series, writer Kwamchetsi Makokha traces battles in court as she fights to keep her job.

A fresh petition seeking to stop the Deputy Chief Justice from succeeding retired Chief Justice David Maraga in an acting capacity is still pending in the High Court.

Activist Okiya Omtatah has sought court orders to block Deputy Chief Justice Philomena Mwilu from acting as Chief Justice because four petitions are seeking her removal as a judge.

It is the last in a series of spirited attempts to edge Judge Mwilu out of the Judiciary that go back to June 22, 2018, when detectives arrived at Imperial Bank Limited, which had just been placed under receivership, with a court order to access loan books and 10 client files. Although the order was directed at the manager of Kenya Commercial Bank in respect of accounts for Blue Nile East Africa Ltd, detectives stumbled on information that led them to Judge Mwilu’s accounts with Imperial Bank.

Detectives convinced the Imperial Bank manager that the order in hand allowed them to access and investigate accounts in his institution, including Judge Mwilu’s.

The information gleaned opened the door to investigations into Judge Mwilu’s transactions, resulting in a highly publicised attempt to charge her with abuse of office, obtaining security by false pretences, failing to pay tax, and forgery. The High Court stopped her prosecution because misconduct allegations should first have been processed through the Judicial Service Commission, but notably ruled that evidence that had been illegally obtained could not be used to prosecute the judge.

Few tragedies could have been as botched as the attempt to hastily dispatch Judge Mwilu from the Judiciary.

Within the weeks that followed, and in quick succession, Peter Kirika and Alexander Mugane lodged petitions at the JSC seeking to remove Judge Mwilu from office. Then on June 27, 2019 when the JSC was in session the Director of Public Prosecutions personally delivered to the JSC copies of his petition and that the Director of Criminal Investigations seeking Judge Mwilu’s removal from office. It was the first time that organs of state were seeking the removal of judge.

Though successful in stopping the prosecution, Judge Mwilu appealed parts of the High Court decision on July 3, 2019. Not to be outdone, the DPP and DCI also appealed against the High Court decision on July 11, 2019, seeking to overturn it in its entirety.

Deputy Chief Justice Philomena Mwilu [File, Standard]

What had initially seemed like a swift and bloodless coup in the judiciary was turning into a murky struggle that would embroil two arms of government in an endless brawl.

Judge Mwilu, who represents the Supreme Court in the JSC, says the commission does not consider complaints relating to matters pending in court. Since she and the DPP had appealed the High Court decision, it seemed strange that the JSC would require her response to allegations against her. She objected to the JSC proceedings, and on August 27, 2019, the commission asked the DPP to respond.

The DPP argued in his September 9, 2019 letter that his complaint was separate and distinguishable from the pending appeals in the Court of Appeal. JSC resolved to give the DPP oral audience in December 2019.

The fact that the DPP and the DCI, independent offices under the Executive, were seeking Judge Mwilu’s removal from office convinced her that her attempted prosecution and push to remove her from office were a collateral attack in retaliation for the September 1, 2017 decision of the Supreme Court to annul that year’s presidential election. Judge Mwilu’s vote together with that of Chief Justice David Maraga, Justice Smokin Wanjala and Justice Isaac Lenaola constituted the majority to annul the election.

At the time, President Uhuru Kenyatta, whose re-election had been annulled, immediately threatened reprisals against the judiciary, seen in later weeks in legislative attempts to constrain institution through law and budgetary constriction, physical and verbal attacks. A petition for the removal of the Chief Justice as well as his deputy were lodged with the JSC in September but later abandoned.

The new petitions against Judge Mwilu would likely come down to a vote in which she would not participate. The other members were the Chief Justice, the Attorney General, the two representatives of the Law Society of Kenya Mercy Deche and Macharia Njeru, the two representatives of the public Prof Olive Mugenda and Felix Koskei, and judges Mohammed Warsame and David Majanja as well as magistrates’ representative Emily Ominde.

Three days before the JSC audience with the DPP on December 16, 2020, Judge Mwilu asked that the Attorney General be excluded from hearing the petitions against her citing bias. She claimed that he was conflicted in view of the fact that her woes could be attributed the President’s dissatisfaction with the Supreme Court decision to annul his re-election, and that the AG had been involved in recommending her prosecution.

Attorney-General Kihara Kariuki [File, Standard]

She also sought to disqualify JSC commissioner Macharia Njeru, who represents the Law Society of Kenya, from hearing the petitions against her because of alleged biased and being conflicted towards her on the petitions.

On January 8, 2020, the Director of Criminal Investigations opposed the applications seeking to disqualify the AG and Macharia Njeru, but the Director of Public Prosecutions did not file any.

Hearings scheduled for March 2020 were scuttled after judiciary operations were scaled down as part of measures to contain the emergent coronavirus pandemic. By July 2020, a restive Director of Public Prosecutions wrote to the JSC asking that the disqualification of the Attorney General and Commissioner Macharia Njeru be decided on the basis of written submissions without need for two days’ oral hearing as previously planned.

The twists and turns of how to conclude the application to disqualify the Attorney General and Macharia Njeru from hearing petitions against Judge Mwilu culminated in the JSC decision of December 13, 2020, dismissing it. The commission had asked the two to decide if they would disqualify themselves, which they declined, and adopted their decision.

The two argued that the JSC could not disqualify a commissioner from carrying out his constitutional functions and that the question of disqualification was personal and discretionary.

Attorney-General Kihara Kariuki wrote, “I have no hesitation in concluding that the allegations of bias against [me] lack supporting evidence and are based on [Judge Mwilu’s] apprehension of bias as opposed to perceptions of a reasonable and fair-minded person.

For his part, Commissioner Macharia Njeru declared in his ruling: “I shall not recuse myself.

“My observations looking at the respondent’s actions exhibit someone who is not keen to have the petition disposed of with expediency.”

JSC Commissioner Macharia Njeru [File, Standard]

Judge Mwilu’s lawyers had already applied to the High Court and obtained orders stopping the JSC from processing the petitions against her. The DPP and DCI sought to be enjoined in the case, and they have since challenged the orders stopping proceedings at the Court of Appeal.

In the meantime, the composition of the JSC continues to change. Besides the departure of Chief Justice Maraga, Emily Ominde ended her representation of the magistrates in December 2020 and was replaced by Everlyne Olwande. In March, the term of the LSK woman representative Mercy Deche expires: she could seek reelection or be replaced. But the petitions seeking Justice Mwilu’s removal from office remain on ice