Supreme Court attacks threaten legitimacy of justice system

Chief Justice Martha Koome chats with President William Ruto after the swearing-in of twenty Judges of the High Court and conferment of the Rank of Senior Counsel at State House, Nairobi on May 14, 2024. [PCS] Concerns are increasing about the impact of a storm brewing within the corridors of justice, as the very foundation of the nation's Judiciary faces unprecedented attacks and counter-attacks. What initially started as a battle against the leadership and the Supreme Court is morphing into a wider war against the Judiciary. Questions are emerging about the impact on the dispensation of justice and the long-term effect on the integrity and trust in the institution. The onslaught - which has targeted Chief Justice Martha Koome and the entire Supreme Court bench - has come in the form of multiple petitions to the Judicial Service Commission (JSC) and public attacks, sparking a constitutional and political debate over the independence of the judiciary. At the centre of this turmoil are two high-profile petitions to the JSC, one spearheaded by former LSK president Nelson Havi and the second by a group of 13 lawyers associated with Senior Counsel Ahmednasir Abdullahi. The petitions call for the removal of the seven Supreme Court judges: Chief Justice Martha Koome, along with her six colleagues - Deputy Chief Justice Philomena Mwilu, Mohammed Ibrahim, Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola, and William Ouko. This comes as some critics argue that the removal of all seven judges could have far-reaching consequences on the country's legal framework, plunging the Judiciary into a crisis of legitimacy. However, the conflict takes an even more dramatic turn with the filing of a separate petition by two city lawyers seeking the striking off of Abdullahi from the prestigious roll of senior counsel due to his vocal, often inflammatory, attacks on the Judiciary. At the heart of this growing judicial crisis is a battle for control over Kenya's Judiciary and the future of its institutions. READ: JSC to consider petitions seeking to kick out CJ Koome, 8 judges Havi's petition, filed on January 13, 2025, targets Chief Justice Koome and her colleagues, citing the alleged unlawful barring of certain advocates, including Abdullahi, from appearing before the Supreme Court. The ban, which was implemented by the court on January 18, 2024, followed Abdullahi's public criticism of the Supreme Court and its judges, particularly over their handling of the 2022 presidential election petition. In the petition, Havi also cites other reasons that he claims render the judges unfit to hold office. The latest petition, filed by Abdullahi's associates, who represent a group of 13 lawyers from his firm, echoes many of the concerns raised by Havi. The lawyers argue that the judge's decision to bar them from appearing before the court was an arbitrary, illegal, and unjust move that violated their rights as legal professionals. They contend that the judge's actions have undermined the independence of the judiciary. The lawyers argue that the judges have engaged in selective justice and violated due process by barring them from presenting their cases before the court without notice or a formal hearing. "We were never given a chance to defend ourselves. The decision was made without due process and in bad faith," said Asli Osman Mahamud, one of the petitioners. "This action reflects a culture of impunity within the judiciary." They have called for an independent investigation into the conduct of the seven judges and the formation of a tribunal to determine whether they should be removed from office. The petitioners also allege that the judges have abused their power to favour certain lawyers over others, undermining the legal profession's credibility. At the centre of the ongoing attacks on the Judiciary is Abdullahi, a vocal critic of the Supreme Court and its handling of several key cases. His public statements, including his controversial posts on social media, have attracted both widespread support and sharp condemnation. In response to his barrage of criticism directed at the Judiciary, two city lawyers have filed a separate petition before the Senior Counsel Bar, seeking to have Abdullahi removed from the role of senior counsel. Lawyers Paul Kiragu and John Njomo petitioned the LSK's Committee on Senior Counsel on January 28, 2025, accusing the lawyer of repeatedly engaging in conduct that discredits the legal profession and undermines the dignity of the Judiciary. "A senior counsel is supposed to be a role model in the legal community," said one of the petitioners, who is also a lawyer. "But Abdullahi has crossed the line by consistently attacking the Judiciary through social media and public statements. His behaviour is unbecoming of a senior counsel and brings the legal profession into disrepute." The attacks on the Judiciary have not gone unnoticed by other legal bodies in the country. The Kenya Magistrates and Judges Association (KMJA) strongly condemned the efforts to remove the Supreme Court judges, calling the actions a coordinated attempt to weaken the Judiciary. "Attack after attack on the Judiciary is part of a deliberate plan to undermine the independence of the courts," said Stephen Radido, KMJA president, in a statement issued on January 30, 2025. "These attacks are not only aimed at the judges but at the very foundation of our legal system. We cannot allow this to happen." Radido further warned that the ongoing public campaign against the Judiciary could escalate into dangerous territory. He highlighted posts made on social media by some petitioners, including coded language that could incite violence against the court and its judges. "There are clearly orchestrated efforts to intimidate the Judiciary, and we are concerned about the potential for these efforts to escalate further," he said. Meanwhile, the LSK Branch Chairs Caucus has voiced its concern about the recent developments, particularly the ban on Abdullahi from the Supreme Court. The caucus, through Eric Kivuva, chairperson of the LSK Nairobi branch, emphasised that barring advocates from appearing in certain courts is taking a dangerous trajectory. "Such unfettered jurisdiction is dangerous to our legal practice." ALSO READ: LSK boss seeks removal of Kenya's Supreme Court judges on go-slow The caucus, however, condemned any intimidation of the Judiciary by the Executive or other forces. "We cannot sit by and watch as our members' livelihoods are threatened by systematic inefficiencies and disregard of our members' rights to livelihood and the Kenyan people's absolute right to justice," Kivuva said in a statement issued on January 30, 2025. Canon Chris Kinyanjui, secretary-general of the National Council of Churches of Kenya, has also weighed in on the petitions, urging caution in the push to remove the Supreme Court judges. He called on the JSC to conduct a thorough, transparent, and impartial investigation into the allegations, warning that any political or personal motives should not interfere with the process. "While accountability is crucial, we must ensure that the process is not driven by political or personal interests," Kinyanjui said. "The credibility of our judicial system must remain intact, and any actions that compromise this must be addressed with care and due process." Kinyanjui also expressed concern that the ongoing efforts to remove the judges could be politically motivated, drawing parallels with the 2023 removal of the Independent Electoral and Boundaries Commission commissioners. "We must be careful not to allow political interests to cloud this process, or we risk creating a protracted crisis," he cautioned. A coalition of Kenyan women leaders on Friday also came together to voice their unwavering support for Chief Justice Koome and the Judges of the Supreme Court, condemning the ongoing malicious campaign to remove them from office. Led by distinguished figures such as Prof. Maria Nzomo, Mrs. Zipporah Kittony, Dr. Juliet Kimemia, and Roselida Andambi, the women voiced their strong disapproval of the attacks aimed at the Judiciary, which have included deeply disparaging remarks aimed at Chief Justice Koome.

Supreme Court attacks threaten legitimacy of justice system

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