In Defence of Justice Chacha Mwita – A Beacon of Integrity

Our Opinion

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. This unwarranted and unjustified attack undermines our Constitution and
its promise of rule of law and judicial independence.

The latest assault on the integrity of Justice Mwita has been through an evil plot attempting to
link the judge to the recently convicted Akasha brothers. The Akasha brothers, who were
convicted in the United States on drug trafficking charges, have linked some judicial officers in
Kenya 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, that Justice Mwita has never handled
any Akasha related matters. Since his appointment as a Judge of the High Court, Justice Mwita
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 the judge.

These desperate 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, and 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 the judiciary 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. The Attorney General 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 is 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 evil schemes.