The relationship between the executive and the judiciary plunged to a new low on Monday after Chief Justice Martha Koome protested that police had withdrawn the security of a judge who had jailed the acting police boss for contempt of court.
There has been a lull in the storm between the two arms of government that had escalated in January when President Ruto accused the courts of being corrupt, angry at judicial orders that had blocked key policies of his government.
At the time, CJ Martha Koome had warned that the "threats and declarations" against the judiciary were an "assault against the Constitution, the rule of law and … can lead to chaos and anarchy”.
After weeks of a bitter row, a meeting at State House between the warring parties led to an uneasy ceasefire, which, however, has been breached by the latest attack.
The CJ revealed that the National Police Service (NPS) has withdrawn security detail assigned to Justice Lawrence Mugambi in a move seen as a retaliation after the High Court judge sentenced acting Inspector General of Police Gilbert Masengeli to six months in jail.
The withdrawal of Justice Mugambi’s bodyguards and driver was made over the weekend, a day after the judge imposed the sentence against Mr Masengeli for snubbing court summons.
Last week, the judge also summoned senior administration police officer Lazarus Opicho in court for spying on him ahead of the hearing of the case in which Mr Masengeli was required to appear in court to explain the whereabouts of three missing men.
Mr Opicho appeared in court on Friday, September 13 and apologised for his conduct but his boss, Mr Masengeli was a no-show.
On Monday, CJ Koome, who is also the chairperson of the Judicial Service Commission (JSC), termed the move as intimidation and an affront to the independence of the Judiciary.
The CJ asked the NPS to restore the security of Justice Mugambi immediately saying any benefits or conditions of service related to a judge’s position, including their security, cannot be varied to their disadvantage, particularly in retaliation for the lawful execution of their judicial duties.
Mr Masengeli was sentenced to six months imprisonment after failing to appear in court to explain the whereabouts of activist Bob Micheni Njagi and two brothers Jamil and Aslam Longton, who was abducted on August 19, by persons believed to be police officers. The three were allegedly abducted following protests in Kitengela.
In a petition filed at the High Court, the Law Society of Kenya (LSK) said the three were active citizens on social media platforms and had been sensitising the youth on wide-range of issues, more so advocating for the rejection of the finance bill in totality and to actively participate in the protests.
The two Longton brothers were abducted on August 19 at around 2pm while leaving their house at Kitengela, while Mr Njagi was taken away by masked men later at night, on the same day, as he headed to his home at Kasina area.
The three have never been seen then, forcing LSK to file a habeas corpus petition, seeking their production.
Justice Mugambi wanted the police to release the missing men or produce them before any court, even though the police have maintained that the men were not in their custody.
Speaking yesterday at the Supreme Court building, Justice Koome said the security for judges is an accrued benefit that cannot be withdrawn whimsically.
“The act of withdrawing the security of a sitting judge, following a judicial decision that displeased certain authorities, is deeply concerning. It sends a chilling message to the Judiciary and the public at large: that those entrusted with upholding justice and safeguarding our rights can be intimidated, bullied, or retaliated against for their rulings,” the CJ said.
She added that such actions erode public trust in the independence of the courts, undermine the very foundation of the country’s constitutional democracy and pose a risk to disregard of institutions and descent into lawlessness.
In his decision last week, Justice Mugambi sentenced Mr Masengeli to six months imprisonment and directed him to present himself to the Commissioner General of the Kenya Prisons Service (KPS) for the commencement of his sentence.
“In the event that Gilbert Masengeli does not submit himself to the Commissioner General of KPS as ordered. The Cabinet Secretary for Interior and National Security must take all steps that are necessary and permissible in law to ensure that he (Mr Masengeli) is committed to prison to commence serving the sentence imposed on him,” said the judge in the ruling on September 13.
The judge, however, suspended the sentence for seven days and said Mr Masengeli can avoid serving the jail term if he complied with his directive and appears before him in person. “In default, the sentence shall automatically become effective,” added the judge.
The CJ said article 160 of the constitution unequivocally protects judicial independence, and the Judiciary shall not be subject to the control or direction of any person or authority.
“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 said.
Justice Koome said if the police boss was dissatisfied with the decision, the appropriate recourse is to appeal to a higher court.
She said she was aware that an appeal has been filed and it is yet to be heard but cautioned that retaliatory measures against a judge or judicial officer have no place in a democratic society.
