Long ago, the Jubilee government decided that Justice Mohamed Warsame of the Court of Appeal should never be allowed to serve a second term in the Judicial Service Commission (JSC). In government circles, Justice Warsame is too independent-minded as judge and is seen as anti-establishment, who has little time for the interests and needs of government.
With looming changes in the Supreme Court and the Court of Appeal, the government put in place an elaborate scheme to effectuate its plan and ensure that a more pliable representative is elected to the JSC. The present fight over whether the judge should be vetted in parliament is, according to many observers, an attempt to take full control over the judiciary and crush the assertiveness of the institution.
An elaborate strategy has, in the process, been developed and put into play by government at the highest echelons. Apart from politicians, senior pro-jubilee judges in the Judiciary have played crucial role to see to the execution of the scheme. The tug of war between the Judiciary, on one hand, and the Executive and the legislature on the other, over the vetting of justice Warsame has brought to the fore the single-minded wish of the executive to control and overhaul the Judiciary.
According to multiple sources that spoke to the Nairobi Law Monthly on absolute condition of anonymity due to the sensitivity of the topic, the government offered judges as high as Sh20 million per vote to vote against Justice Warsame. Unfortunately, for the government, there was not a single taker of the offer. Many judges expressed horror that the government could even attempt such scheme. The Offices of the President, Deputy President and State Law undertook a campaign that shocked the judges of the Court of Appeal. This effort was made despite a detailed intelligence report prepared and given to government by the Directorate of National Intelligence Services (NSI) that Justice Warsame was on course to winning, and resoundingly so.
Following Warsame’s re-election, Deputy President William Ruto called for a crisis meeting of top government officials to put in motion a scheme to ensure Justice Warsame will not be sworn in or gazetted as a member of the JSC. According to multiple sources at Harambee house Annexe, members who attended the meeting chaired by DP Ruto were Internal Security CS Fred Matiang’i, Joe Mucheru of ICT, Leader of Majority in the National Assembly Aden Duale, Chair of the Legal Affairs Committee William Cheptumo, Attorney-General Kihara Kariuki and Solicitor-General Ken Ogeto, among other high level government officials. According to our sources, a number of options were discussed to ensure success of the plan.
Whereas members brainstormed on a wide range of options, two options were finally proposed for adoption. Some attendees suggested that Inspector General of Police Joseph Boinnet should be authorised to arrest and charge Justice Warsame on a trumped-up criminal offence, to discredit him and the entire process. The other option was for the President to formally announce that he had nominated Justice Warsame, and forward his name for parliamentary vetting. The meeting specifically ordered Dr Matiang’i not to gazette Warsame’s name as the elected representative to the JSC. While charging justice Warsame with a criminal offence was strongly argued for and supported by many of those in the meeting, this option was finally rejected as being counter-productive.
The meeting also specifically tasked Duale and Cheptumo to ensure that once Warsame’s name was forwarded to parliament, he would be voted against and rejected. Two members in the meeting were designated to source for local NGOs and were ordered to prepare doggy dossiers on justice Warsame that would form the basis for his rejection.
Accordingly, whereas some members of the legal affairs committee are pushing the vetting option, the Nairobi Law Monthly has learnt that the committee is deeply divided. Some members have told their chair, Cheptumo, that they will not be used as a rubberstamp for Executive interference in the Judiciary. Members of the Committee from Northern Kenya and those belonging to the pastoralist parliamentary forum, have vowed that parliament will not discuss the vetting of Justice Warsame as the same contravenes the Constitution.
The process, according to members of parliament from Northern Kenya, has also exposed the double standards employed by DP Ruto, who uses pastoralists as a political power base when his strong opposition by himself and that of his lieutenants – in this case Cheptumo and Duale – clearly demonstrate that it is his personal self-interest that guides him, rather than his confessed concern for common justice and good of those who support him. ^