Dr Mutunga said there was no law that called for a suspect to deposit bail money, which would at the same time be used to offset a victim’s medical bill.
Addressing students at Kenya Methodist University (Kemu) where he gave a keynote lecture, he said the ruling put the Judiciary on the spot and could erode confidence in the eyes of the public.
The former Chief Justice at the same time said there was grumbling by the public over a seemingly selective war on corruption, citing the multibillion shilling NYS scandal. “What happened to the NYS case so that some can be charged and others be treated as witnesses?” he posed.
Dr Mutunga, however, shielded Mr Ongili from attack by the public, saying every case must undergo trial, despite the evidence.
Reacting to students who wanted to know why murder suspects were granted bond, Dr Mutunga said all suspects, irrespective of their crimes, deserved fair hearing and to undergo due process of the case.
“The Constitution says that one is innocent until proven guilty, evidence has to be brought to court and heard. Even if you are guilty in the eyes of public opinion. Unless we try someone the right way, we will set bad precedence,” he said.
The former CJ also called for increased budgetary allocation to the Judiciary so that it can expedite cases without falling to State capture. He said during his tenure, the government increased allocation from Sh3 billion to Sh21 billion, which helped Judiciary employ more staff and build more courts.
“Independence of the Judiciary is built around the institution itself, it should have finances, integrity and stand up against influence from Parliament and the Executive.
“I can tell you that when I was CJ, my independence was tested seriously by various leaders from the Kamba community. When you are there, your community thinks that is their post,” he recalled.
Dr Mutunga said only five per cent of Kenyans went to court, perhaps as an indication of the trust they have in other dispute resolution mechanisms.
He encouraged the public to carry out a citizen’s arrest when they feel senior individuals are flouting rules, recounting how vigilant Kenyans arrested police officers taking bribes during the early days of the Narc regime.
At the same time, Dr Mutunga called for the formation of a commission of enquiry to probe cases of extrajudicial killings perpetrated by State actors. He said many cases of arbitrary killings had increased and many innocent Kenyans had lost their lives, mainly in the hands of police, yet the matters remained unresolved.
The former CJ said most of the victims were people in informal settlements, mainly young people participating in demonstrations or unprovoked attacks and want President Kenyatta to step in and stop the killings.
“Article 238 of the Constitution gives guidelines on how police should handle protests,” he said.
If a person is a criminal, take them to court and not shoot them in the back. It is up to the police to ensure the demonstrations are peaceful because they are the ones with guns,” he appealed.
Dr Mutunga who is currently on a nationwide tour themed “Team courage exhibition,” called on the government to take stock of the ambitious police reforms, saying the programme had not been successful.
