BY SAM ALFAN.
Activist Okiya Omtatah has petitioned the High Court to stop Deputy Chief Justice Philomena Mwilu from becoming the acting Chief Justice upon retirement of current CJ David Maraga in January.
Chief Justice Maraga will proceed on leave on December 15, pending his retirement on January 12, 2021.
As the senior most judge and DCJ, Justice Mwilu is set to assume office, in an acting capacity, pending the appointment of the next Chief Justice.
But activist Okiya Omtatah wants the court to bar Justice Mwilu from assuming the office or stop the Judicial Service Commission from appointing her, in acting capacity, until she is cleared of allegations of corruption and abuse of office.
Mr Omtatah said there are four petitions pending before JSC touching on the conduct of Justice Mwilu. He said the accusations against her are grave as they touch on corruption and abuse of office.
He also wants the file to be forwarded to the Chief Justice to appoint a three or five judge bench to hear and determine it pursuant to Article 165(4) of the Constitution of Kenya, 2010
“For example, the Director of Public Prosecutions (DPP) and the Director of Criminal Investigations (DCI) claim in their petition that Justice Mwilu is unfit for public office as she was involved in the irregular sale and acquisition of property including obtaining the execution of a security by false pretence,” he said.
The DPP and DCI also want her removed from office for failure to pay taxes to the Kenya Revenue Authority, forgery and uttering a false document.
“It goes without saying that it is a matter of compelling and overriding public interest that the office of the Chief Justice must at all times be occupied only by persons of impeccable character,” he said.
The charges against the DCJ were quashed by a bench of five judges but the DPP Noordin Haji filed an appeal and at the same time, filed a complaint before the JSC. The case at the Appellate court was put on hold to allow the JSC hear the petition.
Justice Mwilu challenged her planned prosecution stating that the allegations against were pure commercial transactions, concluded in the normal course of the banking relationship between her and the Bank.
She said the matter has no rational correlation with the pursuit of criminal justice in the public interest and that the actions of the DPP and DCI was an abuse of power and arbitrary exercise of authority.
The High Court judges, however, said the matter should have been referred to the JSC. The DPP had lined up a total of 13 charges over transactions with collapsed lender, while she was a judge of the Court of Appeal.
The activist says judges exist to accomplish the essential goal of delivering justice to their fellow citizens, a vigorous ethical commitment should constitute their conduct.
He says any ethical behaviour by the legal professionals, particularly judges, has an essential role in the legitimacy of the judicial system, as necessarily based on a bond of trust with the involved community.
Omtatah also argue that the fight against corruption within the judiciary is an essential prerequisite to demand for integrity and transparency in all other state powers given that the only consistent demands are those legitimated by concrete examples and positive leadership.
