In an interview with the International Crisis Group on Wednesday, June 2, Mutunga accused the Appellate Court of being one of the weakest links in fighting for the independence of the judiciary.
He argued that the High Court was always leading in upholding the Constitution, but the Court of Appeal and Supreme Courts were always wavering. Mutunga added that the Judiciary is not yet independent and that it is at a crossroad with one section pushing for appeasing the Executive and undermining the rule of law.
He alleged that some judges wives and associates were bribed to influence the justices’ rulings in some cases. The other section was focused on defending the Constitution at all cost.
“The High Court is at the forefront of this struggle. Sometimes, the Court of Appeal has become a graveyard of progressive jurisprudence and the Supreme Court seems to see-saw even when I was in the Supreme Court.
“There are many cases and not just the nullifying of Presidential elections in 2017 – there have been many others in the High Court, particularly where legislation from Parliament has been struck down even legislation that the President had assented to,” Mutunga stated.
He further opined that he believed the BBI appeal case would finally be decided by the Supreme Court. However, Mutunga warned that Kenyans were opposed to the referendum and were cautious of the political atmosphere ahead of the 2022 General Elections.
“What I see, even if they (BBI team) win in those courts, what I see is that there is going to be serious, serious resistance that is already building against a referendum and against what people are afraid would be very dangerous 2022 elections. You can see quite clearly that we are headed to very, very serious political instability.
“The High Court decision (to nullify the BBI) is very important because of its fidelity to the 2010 Constitution. You have to realise that the elite in Kenya finds this Constitution very progressive. Since its promulgation, we have seen struggles to claw back the fundamental pillars of this particular Constitution,” Mutunga stated and called for the impeachment of President Uhuru Kenyatta for undermining the Constitution.
He nonetheless defended his colleagues from political attacks after they issue judgements. The BBI ruling, he said, was seen as a win for Deputy President William Ruto and a loss for Uhuru, who has led the onslaught against the High Court judges who declared BBI as null and void.
“Kenyan politics is what I call the politics of division, so whenever the Judiciary makes a decision, it might be celebrated by some people because they see it as their victory.
“The intra-elite divisions are the ones that create all these problems. People see these findings of judges through these divisive lenses,” he stated.