How corruption scandals are shaping Mutunga’s legacy

Kenya’s Judiciary — and society — is in a state of flux. A Chief Justice exiting by June 2016; a Deputy Chief Justice fighting to extend her retirement by four more years; and a mind-boggling bribery claim in the Supreme Court have thrown the Judiciary back into a profound crisis of confidence.

The ripples of the bribery claim against Supreme Court Judge Philip Tunoi are likely to be felt at two fundamental levels.

First, it does not only reveal the decay in the courts and the failure of our “reformed” Judiciary to slay the hydra of corruption, but also casts a dark shroud over the legacy of Chief Justice Willy Mutunga, also the President of the Supreme Court.

Second, and even more ominous, the scandal further erodes the credibility of our courts, potentially posing a risk to our nascent democratic experiment.

If unscrupulously exploited by political interests for political ends, this low moment in our judicial system can potentially push the country back to the uncertainty of the past where parties to election disputes cite “lack of trust in courts” to reject arbitration by our courts, take to the streets and re-ignite the kind of violence witnessed after 2007.

First, because our nascent democratic system is philosophically hoisted on the liberal theory that views an independent and accountable judiciary as the ultimate guarantor of the rule of law and enforcer of rights, the perennial perceptions of our courts, judges and magistrates as corrupt cannot be good for our society, politics and security.

Because of this quest for a graft-free judiciary, the country’s history is littered with skeletons of commissions upon commissions established over the years to rid the judiciary of corrupt practices.

RADICAL SURGERY

One of the boldest efforts to clean up the judiciary was the “radical surgery” of the judiciary in 2003, which saw the removal of the Chief Justice, Bernard Chunga, and the suspension of 23 judges and 82 magistrates on grounds of corruption. However, the “radical surgery” fell to procedural flaws and intense politicisation of the war on corruption along ethnic lines, which badly eroded public trust in the judiciary — cited as one of the causes of the 2007/8 post-election crisis.

Not surprisingly, judicial reforms after 2008 sought to create an efficient, accountable, independent and well-financed and remunerated court system led by the cleanest of the judges available in our land.

As Dr Willy Munywoki Mutunga, a renowned legal scholar and human rights activist, ascended to the helm of our judiciary in June 2011, few doubted that he had the intellectual and moral sinew and candor needed to put the Judiciary on a stable keel.

Kenya’s 2010 constitution positioned the courts and judges as the movers-and-shakers of a new court-based system that also gave Mutunga a larger-than-life stature in balancing between politics and law.

His primary duty was to ensure that courts and judges were above reproach for the court-based political order to function flawlessly and to win the trust and confidence of the Kenyan public.

Related to this, Mutunga was expected to intellectually and magisterially help the country come to terms with a new radical philosophical shift that the 2010 supreme law introduced — and which is poised to shape our democratic system for generations to come.

NEW CONSTITUTION

By voting the new constitution, Kenyans had swapped the old system where power was based on Parliament to a new one where Judiciary reigned supreme.

With the stroke of a pen, literally, Kenyan voters jettisoned the British-style “political constitutionalism” inherited at independence which, as the British constitutional scholar Adam Tomkins argues in his book, Our Republican Constitution (2005), is “more suitable and more effective” at restraining governments because it provides a better check on executive power and courts.

Kenya opted for “legal liberalism” or “legal constitutionalism” as practised in the United States and Germany, an audacious belief that politics should be constrained by legal constitutional boundaries. This, in turn, seeks to “confine politics to the strait-jacket of law.”

In this ideological fluidity, Mutunga’s acid test — and perhaps his single most important determinant of his legacy — was successfully managing this seismic philosophical shift in a divided developing country.

His work was cut out for him: To ensure at all costs that the courts and the judges presiding over them were as above suspicion as Caesar’s wife in order to be impartial, honest and trustworthy brokers in our delicate balance between law and politics.

What is clear is that the role of the court in inspiring the confidence of Kenyans in the new ideological shift from the British-style parliamentary system has come unstuck.

POLITICAL ISLE

Six months to his retirement, the jury is still out there, but both sides of the political isle are no longer at ease with the American-style court-based system.

Inside the Jubilee politics, there is palpable discomfort with incipient “judicial extremism” evident in the court’s handling of major issues of public concern — especially industrial disputes and the country’s war on terrorism.

Opposition intellectuals led by Professor Peter Anyang’ Nyong’o are publicly calling for Kenya’s return to the parliamentary system as an antidote for exclusion.

Seemingly, Mutunga’s own confidence in the dream Kenya he set out to reform five years ago is wearing fast.

In an interview published in December by a Dutch newspaper, NRC Handelsblad, the Chief Justice, rather controversially, described Kenya as “a bandit economy” where corrupt cartels operate with impunity. “I am riding a tiger, hoping that the monster will not devour me,” he lamented.

And, with this admission, the myth of the efficacy of “saintly individuals” idealised as the biblical Moses leading Kenya to “reforms” is going bust before our own eyes.

Kenya’s only hope is to renew its resolve to cleanse and deepen its democratic institutions. As the Ghanaian writer, Ayi Kwei Armah, reminded us in his 1968 novel, the “beautiful ones are not yet born.”

Prof Kagwanja is the Chief Executive of the Africa Policy Institute