With just over two months to go before he leaves office as Kenya’s first Chief Justice under the new Constitution, Dr Willy Mutunga has been making a series of tours around the country witnessing various projects that have been launched as part of the Judiciary transformation initiative.
In a long conversation with Sunday Nation journalist Emeka-Mayaka Gekara at a Kisumu hotel, Dr Mutunga addresses a broad sweep of issues relating to national politics and the Judiciary.
He expresses frustration that corruption has virtually become a national hobby celebrated and protected by tribalism.
He also blames voters for not doing more to change the situation and reflects on his legacy as head of the Judiciary, his plans in retirement and the halting path towards reforms under the new Constitution. Excerpts.
The process of Kenya’s social transformation is ongoing. Where are you going?
A: In the progressive and optimistic world where I come from, the slogan is always Aluta Continua! Vitoria e Certa (The Struggle Continues; Victory is Certain). I am going nowhere. I’m not the office and the office is not me. Before the office, I was, and after office, I will be. Inshallah.
What do you consider as some of your biggest achievements in the Judiciary?
Historians will decide but some important developments have occurred. These include humanising the Judiciary, improving access to justice by recruiting more judges (from about 47 in 2011 to 143 now) and magistrates (from 316 in 2011 to 443 now) and Kadhis ( from 15 in 2011 to 56 now), and posting them equitably countrywide; increasing mobile courts from 19 to 52 at almost the same cost; opening new courts, including in marginalised areas; decentralising the Court of Appeal and reducing waiting time in that court from 12 to nine years to three years to one year currently.
Also, reducing case backlog from one million to just about 500,000 now; reclaiming and re-asserting the independence of the Judiciary; standing up for the Constitution; making the institution more service-oriented and accountable and massively investing in infrastructure.
Others are developing a series of policies and manuals that were not there; improving how the judiciary organises itself internally through codified policies that were not there, including introduction of performance contracting, daily court returns template which allows us to know how many judgments, rulings and adjournments a judge or magistrate does, and improved terms of service for staff;
Additionally, I have revived a culture of learning and scholarship; and fighting corruption consistently long before it became vogue.
So what goes on in your mind when you read reports about litigants complaining that they cannot get justice because courts in Kakamega have not been sitting for a week due to the absence of magistrates?
The media reports were not completely accurate, even though the station was not operating optimally and that should not have happened.
I apologise for that. However, the courts were not shut down. Kakamega has six magistrates; one is on interdiction; two were on emergency leave; two were sitting; while one was in training.
Notices were put up informing litigants how their matters would be handled.
The chief registrar, director judiciary training institute and heads of station have been instructed to work on a coordinated plan so that no station operates with less than 85 per cent capacity at any time.
Tribalism and corruption characterise every facet of the society. How can we rescue the country from a cartel of tribal elite?
Our politics is run on the ethnic stock exchange, and this is most unfortunate, nearly 60 years after independence.
And it is a regression — the politics of nationalism was witnessed at independence and during Narc (in 2002), which means that it is possible to overcome tribalism.
Historically, it has always been a small, parochial elite that betrays these nationalist moments and they should be ashamed.
Every community must feel it has an equal opportunity to lead and serve the country — and thrive in it — based not on numbers, education, financial muscle or history, but merit and fair treatment.
I hope devolution will revive the nationalist movements based on politics of issues.
It is tragic that we see even clear cases of corruption through ethnic lenses — and that, tragically, includes the media.
People defend and rationalise corruption based on ethnicity. It is sickening. Yes, vernacular elite purveying vernacular politics.
The corrupt cartels legal and illegal, international and national are known. The most fundamental and patriotic decision that any political leadership in Kenya must take going forward is to dismantle cartels from being the only arm of government or state!
Kericho Woman Rep Hellen Chepkwony last week warned that Kenya is held hostage by a few big men through corruption and plunder of public resources. Do you share her view?
If the masses are genuinely morally outraged about corrupt leaders, they must show it at the ballot.
There is no point musing about runaway corruption but at the sight of a ballot box, forget all that and only see the tribe.
The country’s tolerance band for corruption is becoming larger and longer, which is wrong.
We are getting to a point where people are no longer ashamed to be caught in corruption scandals and instead seem to say, ‘now that you have caught me, uta do’ (what will you do)?
Have we become this civically and morally numb? I don’t think so, and leaders who think so, are living in fools’ paradise.
Their tenancy will be short, and its termination most likely very painful.
Have Chapter Six and Article 10 of the Constitution achieved their intentions?
The jurisprudence on Chapter Six and Article 10 are developing. If you examine emerging case law, you see the contours clearly forming.
A number of Supreme Court decisions have been premised on Article 10. The courts and tribunals have made great findings on leadership and integrity.
These were governance and leadership laundry chapters, and you see just how widespread Kenya’s dirty governance and leadership garments were.
The resistance to Chapter Six (remember at some point the political class edited it from the draft Constitution, and subsequently passed a very weak law to operationalise it) is an indicator of the difficulty of cleaning up Kenya’s political system but that struggle must continue, even in the courts.
Kenyans must breathe life into these articles and, indeed, the entire Constitution.
You recently observed that Kenya is a bandit economy. What did you mean?
We need equity, transparency, and accountability in the way opportunities are accessed and distributed.
We need an economy where there is rule of law, business is clean; wealth is a product of clean addition of value to the factors of production, not dealership and tenderpreneurship; criminal enterprise is not sold as success; ethno-economic and political haegemons are not paraded as innately better business people even though what they have is privileged access and state and private sector patronage.
The ethnic concentration of capital and power tend to incentivise bandit behaviour, as is corrupt electoral politics.
Spivs emerge as the face of ‘entrepreneurship’ - a very vulgar edition of entrepreneurship if you asked me. That was KANU YK92.
In recent interviews, you have painted a gloomy picture about Kenya’s preparations for the next elections. Why do you think we are about to fall from the precipice?
Nationhood is possible but it takes an enlightened elite to achieve it. If our elite continues to be reckless and parochial; making hateful and insulting speeches against other Kenyans; engaging in mindless, primordial political contests as champions of cultural politics, excluding large sections of the country from participating in government and perfecting the art of exclusion, undermining independent institutions, both within and without, then the unmaking of the Kenyan nation is possible.
I want our political elite to expand their minds and enlarge their hearts, accommodate each other, engage in dialogue and allow this country to flower and flourish, not fail and fall.
The moral burden or curse of a failed state will be theirs to bear, if they survive it in the first place.
They should know that countries are not toys to be played with; they are lives and livelihoods to be protected.
The occasional juvenile jaunts and taunts I see among sections of the political leadership, and the bureaucrats who work for them, make for a very depressing spectacle.
Sometimes I read the press statements they make and wonder whether their authors have any sense of the office they hold, the damage such carelessly crafted statements do our institutions, and the danger it exposes the country to.
Having said that I express the optimism that alternative leaderships including above all political leadership are possible; that issue-oriented politics is with us thanks to a large extent to devolution where resources are reaching the grassroots.
Ours from now on is going to be politics about the equitable distribution of national and county resources.
There is an argument that you are leaving behind a fairly reformed judiciary but a Supreme Court in tatters. What’s your response to suggestions that the court be reconstituted following corruption allegations?
The dichotomy you make is a false one. The fact that Supreme Court judges can be subjected to investigations following a petition by the public alleging misconduct and corruption is an integral part of the reformed Judiciary you are celebrating.
It was unthinkable in the old Judiciary. I have been subjected to petitions before!
That is good; it is how accountability works; it is what the designers of our Constitution had in mind; and it is what I hope the public will use responsibly and not misuse by making false claims.
I leave a Judiciary and a Supreme Court where no one is above the law, and judges and magistrates and staff can and should be held to account.
That’s progress from an insular ‘lordship’-sodden institution to an open public service-oriented institution.
I have created an institution where the public feels confident enough to report allegations in the belief that something will be done about it.
Whether these allegations are true or false, is for the institutional processes designed to determine, not me.
There is concern about the quality of law graduates from our universities. That most them are out of depth. What does this portend for administration of justice?
By the time I leave office, I shall have admitted probably well over 5,000 new advocates.
The quality of training in our institutions of higher learning is suspect across all disciplines, not just in law.
I can see the new Cabinet Secretary for Education has started working on this, and I support him 100 per cent. The crisis of higher education is a national tragedy and national emergency.
We cannot continue like this where you have universities in village corridors and bars.
This is the elite crisis I keep talking about: what sort of professor or vice-chancellor are you, when you open vibandas (temporally structures) as universities!
Where you have Masters degree holders teaching and supervising masters and even PhDs students.
It is criminal! What sort of professor are you who, as the in-charge of regulatory regimes for universities, licenses vibanda universities without battling an eyelid?
People should pay professionally for these kinds of unconscionable conduct. We have lost our sense of self-respect, and the professors who teach at these vibanda campuses, surprisingly do so with no shame - in exchange for alms.
The crave and lure for money has numbed our sense of self-worth!
The Judiciary ought to be the citadel of intellectualism but there are strong doubts about the intellectual stamina of some of your judges and magistrates. What is not being done right?
A large number of our magistrates and judges are intellectually sound.
Many do not have integrity problems contrary to a single narrative that has lately emerged that unfairly paints all with one brush.
There are men and women in that institution that are hardworking, do not take bribes, and just do their jobs to the best of their ability.
In fact the high profile reports on corruption in the judiciary is not necessarily of evidence of more corruption but probably of the effectiveness of the accountability systems we have put in place that seem to working.
An accountability system that is working deserves praise not condemnation.
How do you explain the disturbing failure on the part of our judicial leaders to develop jurisprudence that can be exported to other jurisdictions?
Our jurisprudence under the Constitution is new and is being exported and celebrated.
Look at the Meru girls case, the Constitutional Division Court on anti-retrovirals, the Supreme Court advisory opinion on the Senate matter and on the theory of interpreting the Constitution mainstreamed in the Digital Migration case, or the Court of Appeal pirates decision and so on ad infinitum.
The problem with the country is that people do not pay attention to positive things; they get mentally colonised by the negatives, and form a single, hardened narrative of a complex institution or a complex situation based on the negative.
What do you think about the last elections in Uganda and the events in Rwanda and Burundi?
The ringtones of instability become loud and eloquent the moment you begin fiddling with elections.
Pluralism was intended to engender competition and allow equity in voice.
Once you start undermining elections, and the electoral agencies begin to lose confidence, just like during one party regimes when stifling of dissent was in vogue, you risk driving opposition underground with consequences we do not want to fathom.
What is the point of going for an electoral process whose outcome is predetermined?
It is not in the business of competitive politicians to ‘escort’ their rivals into power through a sham election.
Leaders must restore faith in electoral systems and elections otherwise the era of insurrections, irredentism, coups, and political instability will be back.
They probably never left but are incubated in our body politic. While I like some of the economic policies in Rwanda I believe good economics does not exist in a vacuum.
It exists in the national context of freedoms and rights. I believe Rwanda can improve on Pinochet’s Chile and Lee Kuan Yew’s experiments.
And what do you admire most about Kenya?
The Constitution, 2010; Our country’s ever hopeful bent and its resilience; and the self-assuredness of Kenyans on the international stage.
History records that we are a nation that never ceases to resist oppression, domination, and exploitation and that knows how to consolidate small gains and successes as the basis of capturing the ultimate political, economic, social, and cultural prize.
Is that not the lesson of the struggles over decades that culminated in the promulgation of the 2010 Constitution?
As a senior citizen and scholar what would you say is Kenya’s biggest challenge?
If I were to just mention the core challenge it would be the implementation of the 2010 Constitution.
If we did we would begin to fundamentally alter a status quo that is unsustainable and unacceptable.
We have fundamental jewels in the constitutional crown that are well known to us such as the Bill of Rights and devolution and we must pay attention to them.
We still operate under foreign domination, oppression, and exploitation, from the West and East.
We have a parochial elite that is unable to identify the country’s national interests. We are yet to consolidate the politics of issues.
We are yet to share national resources equitably. Our institutions are embryonic and fragile.
We are a country where adjectives ‘smart’ and ‘eloquent’ are used to describe thugs and thieves, not thinkers, scientists or inspiring leaders’ - a complete inversion of values.
You have been in Nyanza for four days. What have you been doing here?
You know we have over 100 court constructions and rehabilitation projects going on countrywide as part of the Judiciary transformation program.
This is probably the single largest public sector investment in work place infrastructure since independence.
I came to inspect some of these projects in Muhoroni, Nyando, Oyugis - all of which will be completed by September this year, some slightly earlier.
I also came to lay the foundation for an ultra modern court complex in Siaya County - a County that has made significant contribution to the development of law and the growth of the Judiciary.
This building will cost Sh320 million. The costs of these other constructions in Nyanza will come to over Sh500 million, and this excludes the new modern Kisumu Law Court Building and the modern High Court Building in Migori I launched last year.
As you leave, is there a decision which, in hindsight, you regret?
None comes to mind instantly.
The Raila/UhuRuto election petition will continue to draw your name. Are you still persuaded that you did a great job?
I have answered this question many times before, and I have also said that I will comment at length on this petition when I write my memoirs.
How do you plan to spend your time in retirement?
The academy is attractive, here at home and abroad. My grandchildren are fun, always. My progressive calling is undiminished.
My memoir will be rolling. So will a few books and scholarly articles. How can I retire when struggles for social change in Kenya, East Africa, Africa and the world continue?
I have banished that thought!