Deputy Chief Justice Philomena Mwilu has sensationally claimed that there have been efforts to remove her from office after she joined in nullifying President Uhuru Kenyatta’s election last year.
In an affidavit filed in court, and obtained exclusively by the Star, Mwilu says that following threats made by the President after nullification of his first win, a series of events have targeted the Judiciary, specifically the majority judges.
The vote was 4-3, Mwilu read the majority opinion and was adamant that the presidential outcome must be overturned and a rerun scheduled. The court cited massive “illegalities and irregularities”.
Tomorrow will be the first anniversary of the globally acclaimed landmark decision. It was the first time a supreme court has nullified the election of a sitting African president.
On Tuesday Mwilu was arrested. On Wednesday she was arraigned on corruption-related charges, including abuse of office, failure to pay stamp tax, improperly obtaining Sh12 million from the troubled Imperial Bank, obtaining security by false pretence, among other counts.
She did not take a plea and obtained a court order suspending the criminal trial until October 9, pending determination of weighty issues.
The trial court has fixed the criminal case for mention today. There was a mix-up in case numbers, which is to be rectified.
In her affidavit, Mwilu says the President’s public statements after the win was overturned were clearly understood to mean that there would be retaliation against both the Judiciary as an institution and the majority judges.
On several occasions after the decision, the President categorically took issue with the Judiciary over the decision and said the country has a problem with the Judiciary.
The President threatened, “We shall revisit this thing. We clearly have a problem,” reads the document. He cited ‘transmission of results’, indicating it was a minor issue not affecting the outcome.
The President also sensationally called the justices ‘wakora‘, or thugs.
On September 2 last year, Uhuru said, “Who even elected you? Were you? We have a problem and we must fix it.”
He continued, “The Supreme Court sat and decided that they are the ones with a bigger power than the 15 million Kenyans who woke up, queued in lines, and voted for their preferred presidential candidate.
“As a Supreme Court, they cannot annul the wishes of the people. And we will revisit this thing.”
Mwilu, Chief Justice David Maraga, Justices Isaac Lenaola and Smokin Wanjala were the majority judges. Mwilu, reading the opinion, said they concluded that the IEBC’s election transmission system was compromised and data interfered with, thus leading to the nullification.
“Immediately following the determination of the SCOK on September 1 last year, the President made public statements issuing both explicit and implicit threats against the majority judges who decided the outcome of the presidential petition. That is why I believe the impugned charges are not coincidental and appear to be part of a larger scheme to embarrass me, to expose me to ridicule and harassment,” the DCJ says. .
Mwilu says she will elaborate on the threats later. One involves the shooting of her driver, which she did not mention in the affidavit.
“The foregoing sequence of events provides the surrounding circumstances and the contextual backgrounds against which the conduct of the DPP, DCI and AG, whether jointly or severally, must be reviewed.
“Taken in their totality together with the frivolity of the charges now levelled against me, it is clear the impugned criminal proceedings have been commenced with an ulterior motive and are malicious,” she said.
Through lawyer Okong’o Omogeni, the DCJ says the criminal justice system is clearly being used to settle scores and instigate her removal from as a Supreme Court judge and more importantly as the DCJ.
Mwilu claims the office of the DPP and DCI are being used to achieve a purpose not connected with the rule of law.
“The charges brought against me, though fashioned as corruption and economic crimes, were in fact investigated and filed through the office of the Inspector General of Police, over whom the DPP exercises constitutional powers of control and direction..,” she says.
Mwilu is charged alongside lawyer Stanley Kiima who faces the same charges. He was acting as an advocate for her in commercial and civil transactions.
Kiima seeks to have the criminal trial stay orders issued in favour of Mwilu to apply to him as well.
The charges against Mwilu relate to credit facilities/transactions between her and Imperial Bank Limited (in receivership) and alleged failure to pay stamp duty on four properties she purchased between 2014 and 2016.
The judge says the basis for the alleged offences emanate from contractual commercial/banking relations, which are governed by the contractual relationship between her and her bankers, the Imperial Bank of Kenya.
According to court documents, any claim concerning banking and commercial transactions should have been pursued by the bank through the civil contractual relationship mechanism.
The bank has never confronted her with any complaints or issues, she says.
“The allegations are premised on pending transactions pertaining to a loan advanced to me by the bank and which I continue to service. It is unreasonable and inconceivable that the Bank would raise criminal complaints against me when they have never addressed the matters with me through contractual relationship mechanisms…,” she adds.
Mwilu explains that the Sh12 million referred to was an unsecured loan advanced to her by the bank and credited to her account.
“The loan was advanced to me in my capacity as the bank’s customer as negotiated with the bank. The loan has been repaid in full…”
“The DPP and DCI are being allowed to use the machinery of the justice system to cause injustice. The intended and ultimate effect or consequences of the actions complained is to punish, intimidate, and grossly undermine the institution of the Judiciary and to take away its independence,” says Mwilu’s affidavit.