Over the past two months, a clear smear campaign targeting Justice Chacha Mwita has emerged on social media platforms. Government leaning bots and personalities, have mounted a vicious assault on his integrity. The unwarranted and unjustified attack undermines our Constitution and its promise of rule of law and judicial independence. The Chief Justice has said the same.
The latest assault on the integrity of Mr. Justice Mwita has been through an unsubstantiated plot to link him to the recently convicted Akasha brothers. The Akasha brothers, who were convicted in the United States on drug trafficking charges, have linked some yet un-named judicial officers at the Kenyan coast to a syndicate that protected the Akasha brothers from being held to account by the Kenyan criminal justice system, and extradition to the United States.
It is noteworthy, as pointed out by Chief Justice David Maraga in his press statement dismissing the propaganda linking Justice Mwita to the Akasha saga, Justice Mwita has never handled any Akasha related matters. Since his appointment as a Judge of the High Court, he has worked in only two judicial stations: Kakamega and the Constitutional and Human Rights Division of the High Court in Nairobi. During his legal practice years, before appointment as a judge, the then advocate Chacha Mwita did not practice in what was then known as Coast Province. The Akasha related trials and judicial processes were handled exclusively in Mombasa and Malindi court stations. This therefore means that there is no link between the Akasha drug cartel and Justice Mwita as alleged in social media propaganda aimed at discrediting him.
The attempts to frame Justice Chacha Mwita and implicate him in criminal acts are aimed at delegitimizing his judicial decisions. It should be recalled that since the nullification of the August 2017 Presidential elections, the country has been treated to a mind-boggling display of executive contempt for the judiciary. The need to exercise unchecked power is driving those tied to the government to attack anyone who stands in the way of the ruling elite. If this includes the judiciary and damages the constitutional order in the process, then so be it. This brings Justice Mwita to the picture in this push back by the executive branch against judicial oversight. As the Presiding Judge of the Constitutional and Human Rights Division of the High Court, Justice Mwita often hears and determines matters involving challenge to the legality and constitutionality of acts by governmental functionaries. In this role, he has performed admirably and deserves accolades for his courageous stand in support of the principle of accountable government. Against overwhelming pressure from the government, he has remained resolute in his independence; a key quality demanded of his judicial office.
It is noteworthy that this malicious plot to discredit Justice Mwita through propaganda is not supported by evidence. There is very little doubt, when you read Justice Chacha Mwita’s judgments, that he has been loyal to his judicial oath and decides cases in accordance with the law and the facts of the case at hand. His legal reasoning is firmly rooted both in acceptable constitutional principles and compares favourably with those by acclaimed judges within and without our borders.
While one might have legitimate disagreement with the jurisprudential orientation of a particular judge, such judicial opinions should be challenged through reasoned critique. This follows from the truism that expressing reasoned disagreement with the reasoning in judgments and rulings given by the judiciary is part of the envisaged accountability of the judiciary to the people who are the source of the judicial power held in trust by the judges. However, we must take care not to damage our constitutional framework in the process.
Puzzlingly, there has been little reaction, let alone outrage, from civil society, the legal profession, the office of the Attorney General, or the office of the Director of Public Prosecutions to the unjustified propaganda targeting Justice Mwita. Except for the lone voice of the Chief Justice, no major critical player in the justice sector has come out to rebuke this attack on the independence of the judiciary.
Kenyans must always bear in mind that the Judiciary is a vital pillar of our Constitution. The ongoing subversion of this arm of the government if not checked will result in the demise of the rule of law within our polity. Thus the government must defend the judiciary from these unconscionable attacks –or put all our freedoms at risk. The government has an obligation to defend judges given that judges cannot descend on the arena of politics to defend themselves. The government needs to make it clear that it dissociates itself from these attacks and propaganda.
In particular, the Attorney General and the Director of Public Prosecutions, have a constitutional duty to defend judges when they are wrongly maligned and attacked on the basis of unjustified propaganda.They are officers of the court. The Attorney General, in particular, needs to make it clear that the government does not doubt the integrity of Justice Mwita. He should make it clear that the judge has always acted in a manner that comports with the demands of the Constitution, and that attacks on his integrity are factually unfounded and undermines the promise of the rule of law embodied in the Constitution. The silence by the Attorney General and the Director of Public Prosecutions feeds the sense that the government supports the ongoing scheme to undermine public confidence in the judiciary or does not care about the rule of law. This lack of action is breach of their oath of office, which clearly envisages that they will respect and uphold the Constitution and the laws of Kenya.
It is the position of this publication that the Judiciary is a pillar of our Constitution. Therefore to allow faith in Judges and Magistrates to be eroded will have huge bearing to the freedoms and liberties enjoyed by Kenyans. Moreover, given our compromised executive and dysfunctional parliament, the Constitution and the judiciary are the remaining bulwarks for freedom –loving, and law abiding Kenyans. Thus whenever there are attempts to discredit judges, like Justice Chacha Mwita in recent times, Kenyans must rise up as a democracy loving people to thwart such schemes.