Anthony Kariuki
1 December 2011
Chief Justice Willy Mutunga has said the Judiciary is an independent institution that will not be intimidated in the performance of its duties.
Dr Mutunga’s remarks come in the wake of a Kenyan court ruling directing the arrest of Sudan President Omar Al-Bashir on Monday.
High Court judge Justice Nicholas Ombija issued the warrant ordering the Attorney General and Internal Security minister to arrest the Sudanese leader if “he sets foot in Kenya”. President Bashir is wanted by the International Criminal Court (ICC) for war crimes in Darfur.
“In accordance with Article 160 of the Constitution of Kenya, 2010 each judicial officer is independent and is not subject to the control or direction of any person or authority in the dispensation of judicial duties,” said the CJ in a statement Thursday.
He said that the Judiciary will exercise its independence while respecting the doctrine of separation of powers and does not intend to “transgress the domain of the Executive or the Legislature”. But this should not be interpreted to mean that it will not defend its territory.
“The Judiciary and its officers will not be intimidated to bend the law,” said Dr Mutunga.
Justice Ombija’s ruling sparked a diplomatic row with Sudan expelling Kenyan ambassador Robert Mutua and recalling its Nairobi- based envoy for “consultations”.
However, Foreign Affairs minister Moses Wetangula distanced the government from the ruling saying it was committed to ensuring that the ruling would not hurt relations between the two states.
“The Government of Kenya therefore expresses its deep concern at the very unhelpful High Court ruling and will do everything within its powers to ensure that the ruling does not undermine in any way whatsoever the very cordial and fraternal relations that exist between Kenya and Sudan.”
Mr Wetangula also indicated that Kenya would appeal the ruling.
The CJ said the Constitution provides avenue for aggrieved parties to seek recourse and that it was “worrying that senior government officials can make disparaging public pronouncements that seek to undermine the independence of our judicial officers and ultimately the judicial system”.
“Any dissatisfaction with a decision of the court should be followed with an appeal and not proclamations of non-observance of court orders,” the CJ said.
He warned failure to obey court orders amounted to overthrowing the Constitution.
“Court orders apply universally- to ordinary citizens, corporations, members of the Judiciary, Executive and Legislature. If a country chooses to live by anarchy, it must be ready to face the consequences of disregarding the law.” Dr Mutunga said.
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