Mutunga built a strong Judiciary but failed to make top court coherent

Chief Justice Willy Mutunga bids farewell to members of the Judiciary on June 16, 2016 at the Supreme Court after his retirement. All will agree that he undoubtedly was one of the most successful CJs in the history of independent Kenya. PHOTO | JEPTUM CHESIYNA | NATION MEDIA GROUP

What you need to know:

  • In a historic judgment, Dr Mutunga and four other Supreme Court judges sent Justice Rawal and Justice Tunoi to retirement when they finally pronounced themselves on the retirement age for judges.
  • The infrastructure and institutional growth of the Judiciary under Dr Mutunga have been simply phenomenal. This stands as his biggest achievement.

After five years at the helm of the Judiciary as Chief Justice, Dr Willy Mutunga triumphantly hanged his gloves Thursday.

On Tuesday, and like a pugilist who had won a fight, he stood with his hands held high, surveying the two victims lying breathless and badly bruised on the floor of the ring.

Ironically, it was Deputy Chief Justice Kalpana Rawal and Justice Philip Tunoi who were to feel the impact of Dr Mutunga’s last act as CJ.

In a historic judgment, Dr Mutunga and four other Supreme Court judges sent Justice Rawal and Justice Tunoi to retirement when they finally pronounced themselves on the retirement age for judges.

The judgment of the Supreme Court on the retirement of the two judges captured both the contradictions and totality of Dr Mutunga.

It also showed the ingredients that form and shaped his judicial personality as CJ, to wit, being fair but firm; nice but vicious; gentle but brutal; thorough but pleasant; trusting but regretful; honest but calculating and decent with total fidelity to the Constitution.

Whereas Dr Mutunga’s successes and failures as head of the Judiciary will be the subject of a robust debate, his friends, foes and the public acknowledge a number of his successes as well as notable failures.

All will, however, agree that he undoubtedly was one of the most successful CJs in the history of independent Kenya.

Dr Mutunga left the Judiciary in a much better state of health than he found it. He inherited a timid, inward looking and insecure Judiciary without any institutional solidity or gravitas.

He inherited a Judiciary that was despised nationally, habitually ignored and enveloped by multiple layers of corruption, ineptitude, ethnic and political patronage.

However, he left a Judiciary that is feared and respected in equal measure by the Executive and the Legislature, a Judiciary that is respected by many Kenyans and one that serves all Kenyans in the 47 counties.

It is also a Judiciary full of confidence in dispensing justice and one that has taken the mantle as the ultimate defender of the Constitution against the perpetual transgression of the powerful and the rich.

However, Dr Mutunga had a number of notable failures. He failed to tame corruption in the courts. He failed to rein in politically-connected judges who have powerful patrons in the Executive and the Legislature.

He failed to force the Supreme Court to be jurisprudentially coherent.

In reviewing his tenure, a dispassionate and holistic review of the same can be categorised under five headings.

NOTABLE SUCCESSES

These are, first the infrastructure and institutional growth of the Judiciary. Second, the constitutional advancement and the role the Judiciary plays in providing checks and balances to the Executive and Legislature.

Third, the personality of Dr Mutunga and its impact in demystifying the Judiciary. Fourth, judicial reform and the fight against graft. Was he too soft, too nice?

Fifth, his relationship with lawyers, friends and foes. Lastly, Dr Mutunga in the political scene. Did President Uhuru Kenyatta and Deputy President William Ruto covertly undermine him or did they give him the necessary support?

The infrastructure and institutional growth of the Judiciary under Dr Mutunga have been simply phenomenal. This stands as his biggest achievement.

The numbers of judges at all levels were increased. The High Court was extended to remote and politically forsaken counties like Hola, Marsabit and Lodwar.

The Court of Appeal was decentralised to five regions. The Kadhi courts were expanded. The backlog of cases in the Court of Appeal disappeared and reduced by 50 per cent in the High Court.

Technological advancements brought the justice sector to the information age. These advancements were transformative and brought the Judiciary and justice closer to many Kenyans.

Dr Mutunga liberated the Judiciary from political and hegemonic dominance. He led by example and kept his distance from the political elite.

Having no meaningful previous contact with this elitist class, he didn’t see the need to join it late in life.

He brought to an end the abusive cohabitation between the Judiciary, the Legislature and the Executive.

He disconnected the hotline State House had to the Chief Justice’s chamber. And whereas he was respectful and had a good opinion of the President, he was withering in his criticism of Parliament and was rightly contemptuous of its leadership.

He thought Parliament had taken legislative clowning to a new height. Parliament in turn viciously fought him and was the source of many vile, false, politically-inspired and malicious reports against the Judiciary.

However, it is not just freeing the Judiciary from State dominance that Dr Mutunga should be appreciated for.

Historically, lawyers in private practice pose the greatest challenge to judicial independence.

HONEST AND SOBER
We know too well how a few well-connected Kanu lawyers used to literally own and run the Judiciary in the 1980s and 90s.

They even used to pay salaries to some judges and authored some of the judgments of the courts during that era.

It is these lawyers who bore the brunt of the reforms by Dr Mutunga. For the first time in four decades, these crop of lawyers and their powerful clients had no access to the CJ.

The office of the Chief Justice is the gateway to the entire Judiciary, and its multiplier effect either for good or bad is enormous.

By bringing honour and probity to this office, Dr Mutunga put beyond reach an office that historically allowed some lawyers to exercise overseer role in the Judiciary.

These lawyers were the greatest opponents of judicial reforms during Dr Mutunga’s tenure and his fiercest critics.

The CJ’s personality and his philosophy on life demystified both his office and the Judiciary.

He is a remarkable man who is not associated with greed, treachery, corruption, primitive accumulation of wealth and temporal political games.

In setting high moral and intellectual standards, Dr Mutunga showed by example that one can lead a happy and fulfilling life without being greedy and corrupt.

Having an incorruptible CJ in an institution like the Kenya Judiciary is priceless. It sets the bar high and sets a yardstick for judges to emulate.

He subjected himself to a public lifestyle audit that revealed a collection of earthly possession that would have made Mother Teresa proud.

Dr Mutunga’s relationship with the Executive was critical in contextualising his philosophy and outlook as CJ.

That the Senate accorded him an opportunity to address it while other arms of government ignored or failed to acknowledge his retirement was telling.

At best, the Executive was suspicious of Dr Mutunga and saw him as a representative of the peasants and the proletariat.

At worst, he was viewed as a subversive element à la Mwakenya, who had hijacked the Judiciary from its lawful patrons.

A GOOD LEGACY

The Executive and Parliament were unhappy when Dr Mutunga assigned judges like Justices Isaac Lenaola, Mumbi Ngugi, George Odunga and Joseph Louis Onguto critical dockets that ensured the Judiciary remained the guardian angel of the Constitution.

The judgments rendered by these judges breathed life into the Constitution and signalled a seismic shift in the power play between the Judiciary and the other two arms of government.

Dr Mutunga was never forgiven for this. Dr Mutunga’s biggest regret remains the Supreme Court.

To be fair, he did his best to shape and nurture the court into a jurisprudential powerhouse but was let down by the court.

The Supreme Court has in the process become the laughing stock of the Judiciary because it is incoherent, flip-flops and back-flops jurisprudentially.

The court is capricious and impulsive in assuming jurisdiction and is totally unimaginative in its judicial philosophy.

The court has been mesmerised by its powers as the final court, and the democratic deficit and total lack of fidelity to the Constitution provides the defining feature of the court’s very short and uninspiring history.

So how will history remember Dr Mutunga? History will be kind to him. He will be remembered as the people’s Chief Justice, who demystified and made the Judiciary Wanjiku-friendly.

He will be remembered as the CJ who was more comfortable meeting Kenyans in Korogocho slum than in the leafy suburbs of Nairobi.

He will be remembered as the first CJ with a towering intellectual pose and who brought about a refreshing and liberating transformative jurisprudence in the courts.

He will be remembered for his down-to-earth attitude and charming traits.

He will be remembered for holding his oath of office dearly and close to his heart and for refusing to trade favours with both the State and individuals.

He will be remembered for refusing to get connected to the power and corrupt national grids. And he will be remembered for his diligence, honesty, decency and rectitude.

Mr Abdullahi was a member of the Judicial Service Commission that hired Dr Willy Mutunga five years ago