Mutunga proved an abject failure in managing Judiciary

It seems to me that Chief Justice (CJ) Willy Mutunga is destined to leave this high office in the same controversial circumstances that defined his appointment. Five years ago, Kenyans watched with a mixture of awe and admiration the determination of Dr Mutunga to keep his ear stud even at the risk of forfeiting the position of Chief Justice.

This week, Dr Mutunga will leave office in more controversial circumstances of having to preside over a spectacle that previously few people would have associated with the usual meaning of a kangaroo court.
For better or for worse, controversy is the common thread that defines Dr Mutunga’s five-year tenure, but to his credit he has survived multiple crises to continue with what he describes as a transformative agenda of the Judiciary. There are three broad achievements that Dr Mutunga can be credited with.

First, he presided over the Supreme Court bench that rightfully dismissed the two presidential petitions filed by Cord in 2013 thereby paving way for smooth transfer of power from the Grand Coalition government to the Jubilee administration. Second, Dr Mutunga has presided over a massive expansion of the Judiciary in terms of physical infrastructure and human resources. Third, the CJ has so courageously and jealously protected the independence of the Judiciary that today the political class tries to care about the legality of their actions and decisions. Put differently, the current crop of judges barks and bites more often than their predecessors, which has helped to keep the country within the narrow confines of a constitutional democracy.

In all probabilities the CJ might have achieved much more than the public is aware of but what I am certain of is that his failures and shortcomings are as many. The CJ has five major functions that must be critically analysed in evaluating his performance.

First, the CJ is the head of the Judiciary and therefore the leader of one of the three arms of government. Second, the CJ is the President and Presiding Judge of the Supreme Court. Third, the CJ is the Chairman of the Judicial Service Commission. Fourth, the CJ is the manager-in-chief of the judicial arm of government. Fifth, the CJ is the maker of rules and regulations that facilitate the judicial process.

In my view, Dr Mutunga scores poorly as the leader of the Judiciary. Over the last five years he has reigned as the titular head of the Judiciary but he was not truly in charge of the institution. The fall-out between the CJ and former Chief Registrar of Judiciary Mrs Gladys Boss Shollei two years ago gave Kenyans a sneak preview of the dirty games in the halls of justice. Factions and intrigues have been the order of the day during the tenure of Dr Mutunga not to mention the transcendental influence of Senior Counsel Ahmednasir Abdullahi. True enough, the CJ has no taste for the trappings of judicial monarchs but this seems to have succeeded in creating a power vacuum that was readily filled by cartels pejoratively described as “JSC lawyers and friends” in legal circles.

As the chief judge, Dr Mutunga’s achievements are fairly modest for a lawyer of his remarkable talents. The CJ has written relatively few rulings some of which make great reading.  However, his legacy as a judge will be defined by the collective decisions of the Supreme Court which he presides over. Of course, the CJ cannot be blamed by the collective low calibre of our Supreme Court but he seems to have done little to enhance the quality of its decisions. But I must admit that during Dr Mutunga’s tenure the High Court and the Court of Appeal have delivered remarkable decisions.
The CJ chairs the JSC whose primary role is to promote independence and accountability of the institution and facilitate efficient and transparent administration of justice. Specifically, the JSC recommends to the President persons for appointment as judges, and with regard to the CJ and deputy CJ the JSC is the effective appointment authority. While the composition of the JSC makes it amenable to faction and influence peddling, during the tenure of Dr Mutunga some of its members have succeeded in taking over control over the Judiciary in terms of appointment and discipline of judicial officers. 
The JSC is a perennial litigant in too many cases before judicial officers whose careers it can radically affect for better or worse. Apart from the judges of the Employment and Labour Court, it seems to me that under Dr Mutunga the JSC has not succeeded in recruiting the calibre of judges that Kenyans deserve.

As the manager-in-chief of the Judiciary the CJ is a dismal failure.  The kind of things Mrs Shollei is alleged to have done when she was the Chief Registrar depict Dr Mutunga as a manager who was disinterested in his job.  Moreover, for the CJ to be an effective head of the Judiciary he must be a skillful manager of the human resources at his disposal. Like the rest of us, judicial officers are susceptible to laziness, ineptitude, incompetence and lack of commitment among other things. The task of a good manager is to ensure judicial officers would be deployed in a way that ensures smooth operation of the Judiciary. 

The CJ takes pride in establishing high courts in many counties some of which he has done irrespective of needs assessment.  This wastage of public resources has been compounded by the posting of the more capable judges to such vacation work stations with the consequence that the wheels of justice are virtually grinding to a halt in most High Court divisions in Nairobi.
Finally, under the Constitution and many statutes, the CJ is vested with the power to make rules of practice and procedure in courts and tribunals. This is a profound power that Dr Mutunga does not seem to have appreciated enough. Today the Jubilee administration openly challenges the Judiciary to do enough in the fight against corruption and all we hear from the CJ are constant lamentations about how rotten our society is. 

To me, it is irresponsible for anyone with power to act not to do so and resort to lamentations.  For instance, the CJ’s mandate to make rules of procedure empowers him to ensure that all cases of corruption can be heard and determined within a maximum of one year irrespective of any constitutional and judicial review cases that may be filed to block prosecution.
As I pen off, I feel sad that a man who assumed office with a lot of promise is exiting the stage as an average achiever. During the recruitment of the CJ, the grapevine was abuzz that Dr Mutunga was a candidate of vested interests. Knowing his talents, I thought he would manage to shake them off once he took office. Unfortunately, the CJ chose the company of these vested interests and it could be worse with his successor. Cry for our beloved country.

The writer is a practising constitutional lawyer.