Judiciary, LSK demand reinstatement of Lawrence Mugambi's security

Chief Justice Martha Koome (C) addresses press on 16th September 2024 at Supreme court in Nairobi, flanked by Law society of Kenya JSC Member Omwanza Ombati (Left) and Justice Eric Ogola the principal judge of the high court of Kenya. Koome condemned the withdrawal of Justice Lawrence Mugambi's security detail after sentencing acting IG Masengeli to six months in prison for contempt of court. [Edward Kiplimo, Standard]

The Judicial Service Commission (JSC) has condemned the withdrawal of High Court Judge Lawrence Mugambi’s security detail and demanded immediate reinstatement.

Chief Justice Martha Koome, who is the JSC chairperson, said the judge’s security was withdrawn after he sentenced Acting Inspector General of Police Gilbert Masengeli to six months in jail for defying several court orders.

The judge had directed him to appear and explain the whereabouts of two brothers and an activist abducted by people who introduced themselves as police officers in Kitengela and Mlolongo respectively on August 19.

“In the wake of this ruling, a disturbing action was taken by the National Police Service over the weekend; the security detail assigned to Hon. Justice Mugambi were disarmed and withdrawn,” said Koome.

While addressing the press yesterday at the Supreme Court buildings, the CJ said the move was an intimidation tactic adding that judicial independence is protected by the Constitution.

“The act of withdrawing the security of a sitting judge, following a judicial decision that displeased certain authorities, is deeply concerning,” she said.

“This deliberate and punitive measure represents a direct assault on judicial independence, an affront to the rule of law, and a violation of the principles enshrined in our Constitution," she added.

Koome said withdrawal of Mugambi's security sends the wrong message to the judiciary and public that those entrusted with upholding justice and safeguarding the rights of Kenyans can be intimidated, bullied or retaliated against for their rulings.

According to Koome, such actions erode public trust in the independence of the courts while undermining foundations of Kenya’s constitutional democracy.

“The JSC calls upon all state actors, particularly the National Police Service, to immediately restore the security of Hon. Justice Lawrence Mugambi and fulfill their constitutional duty to respect and enforce the decisions of the courts.”

Koome said judicial independence is not a privilege for judges but is the cornerstone of justice for all citizens.

“Judges must be free to make decisions based solely on the law, without fear of retribution or interference," she added.

When asked what the JSC was planning to do other than issue statements condemning the act, Koome said they were appealing to the police bosses to reinstate Justice Mugambi’s security.

She stated that security is a tool of the trade for the judges and not favours extended to them by the police that can be withdrawn at any time.

The assigning and reassigning of officers to protect VIPs is done by the commandant of the SGB/VIP Unit Lazurus Opicho.

However, Opicho cannot withdraw the security detail of a VIP without the knowledge of his superiors.

We reached out for a comment, but Masengeli neither picked up calls nor replied to text messages.

Police spokesperson Resila Onyango said that she would find out what happened and get back, describing the issue as a human resource matter.

The Law Society of Kenya (LSK) called for immediate reinstatement of the security detail of Justice Mugambi. 

In a separate press briefing held at the Milimani Law Courts on Monday, LSK through its vice chair Mwaura Kabata condemned the withdrawal, describing it as a serious threat to Justice Mugambi’s personal safety and a direct attack on judicial integrity.

Kabata said such actions could undermine the independence of the Judiciary.

“The intimidation of a judge has far-reaching implications beyond the individual involved,” Kabata stated.

“It suggests that judicial decisions can be influenced by external pressures rather than being based solely on the law. This erosion of judicial independence undermines the foundation of our constitutional democracy, where rights are safeguarded by an impartial and independent judiciary," he added.

According to Kabata, LSK’s concerns are rooted in the belief that judicial independence is not just a privilege but a fundamental principle enshrined in Kenya’s Constitution. 

Article 160 guarantees that the Judiciary shall be subject only to the Constitution and the law, and not the control or direction of any person or authority. 

"The withdrawal of security for a judge, particularly in response to lawful judicial duties, directly violates this constitutional provision," Kabata stated 

The society called on the National Police Service and all relevant state actors to immediately reinstate Justice Mugambi’s security detail and to adhere to court orders.

LSK warned that failure to comply not only constitutes contempt of court but also reflects a disregard for constitutional principles and the rule of law.

“Judicial independence is a cornerstone of justice for all Kenyans,” Kabata stressed. 

He challenged the Executive and all arms of government to respect the principle of separation of powers and uphold the rule of law. 

"The National Police Service, as a key state actor, has a constitutional obligation to comply with the law and court decisions," Kabata said.

The Society expressed concern over recent trends of law enforcement disregarding judicial orders, which they see as setting a dangerous precedent for impunity.

Further, LSK warned that if the State fails to reinstate Justice Mugambi’s security, it will take legal action. 

"The Society remains committed to defending judicial independence, the rule of law, and the constitutional rights of all Kenyans," Kabata said.

Masengeli run-in with the law

Masengeli was first summoned on August 26, to explain the whereabouts of brothers Jamil Longton and Aslam Longton who were kidnapped in Kitengela, Kajiado County, and Bob Njagi who was picked up from a Kitengela-bound matatu in Mlolongo along Mombasa road on August 19.

He refused to turn up in court and ended up defying seven court orders with the last one being on September 9 when the judge set for his sentencing last Friday. 

On the same day, the judge summoned Opicho to appear during the sentencing of Masengeli where he decried spying and intimidation tactics from Opicho.

“The court would like to note that there has been unbecoming conduct by a senior officer, Mr Lazarus Opicho, which the court considers as bordering on intimidation,” said the judge.

During the sentencing, Justice Mugambi directed Masengeli to surrender to the Commissioner General of Prisons to serve the prison term.

“In the event, he doesn't submit himself, CS Interior must take all steps to ensure he is committed to prison to serve the sentence,” ordered the judge.

However, Justice Mugambi said Masengeli may avoid jail time if he appeared before him in the next seven days.

"The acting Inspector General Masengeli can redeem himself by availing himself before this court in person to answer to the issues which he has been avoiding failure to do so the sentence will take effect,” he noted.

Opicho appeared before Justice Mugambi where he offered an apology after admitting that he called the judge’s bodyguard and driver to know his whereabouts.

“I am sorry your Lordship that will not be repeated again,” said Opicho adding that he harboured no issues with judicial officers adding that from time to time, he normally makes contact with his officers and the VIPs they protect.

The Judiciary Protection Unit was created in August 2021 to protect judges, courts, and other judicial buildings, and Opicho named its head.

As he failed to honour the summons, lawyers led by Eric Theuri and Nelson Havi called for Masengeli’s jailing, saying that he was defiant and not attending to pressing security matters as had been presented in court by lawyers from the Attorney General’s office.

The lawyers said Masengeli had been to the Mombasa ASK show on the day he had been summoned to appear based on National Police Service social media activities where he was posted dancing.

Photos of Masengeli meeting the Coast region police bosses were later posted on their social media handles.

On September 8, he attended a concert organised by the Ministry of Foreign Affairs in solidarity with the gang-ravaged Haiti.

The following day, the acting IG was in the Northern region where he met security chiefs. He was accompanied by several top police bosses among them Director of Criminal Investigations Mohamed Amin. He concluded the tour on September 12.

On Friday, while he was being sentenced, Masengeli was at the National Police Leadership Academy in Ngong before visiting the K9 Unit headquarters in Lang’ata.