Why Law Society is fighting the Chief Justice

At first sight, Law Society of Kenya chair Eric Mutua’s baby face makes him look benign. But there’s every indication that Mr Mutua — no relation to me — may not mean well for Chief Justice Willy Mutunga.

That’s because Dr Mutunga’s reformist broom threatens to upend long-standing cartels in the Judiciary. I don’t know who is orchestrating Mr Mutua and the LSK, but I smell a rat — a very rotten rat.

You don’t have to be from the rodent control department to know there’s a dead animal in the neighbourhood when the stench hits you in the face. The Judiciary is the only branch of government in reformist hands, and the merchants of impunity are determined to send CJ Mutunga and his amigos packing.

Dr Mutunga is a clean man. This point is unarguable and even his opponents have no doubt about it. The man was appointed CJ because Kenyans demanded an open process. Otherwise, President Mwai Kibaki was determined to ram his choice — Judge Alnashir Visram — down our throats.

The people prevailed, and Dr Mutunga took the helm of the levers of justice. He promised to restore dignity and confidence in the Judiciary. He’s been true to his word. He promised to give the Judiciary an independent spine, and he’s done so.

He promised to recreate the Judiciary, and there’s every indication he’s doing so. He’s been the “people’s CJ,” a man who knows that Kenya belongs even to the “littlest” Kenyan.

In Kenya, this is revolutionary, and Dr Mutunga might as well be Che Guevara or Dedan Kimathi. Remember them? They believed in something, and were ready to die for their beliefs — which they did.

Those who doubt CJ Mutunga’s resolve better be warned. The man isn’t a coward and won’t cave to looters, rapists, and murderers.

Trying to intimidate him won’t work, nor will skullduggery and media attacks. He’s lived for this moment — to be the midwife of a new Kenya. Not money, not fame, sways him.

He’s more at ease with peasants and workers than hobnobbing with the elite. Those who speak of “servant leadership” should first go study the meaning of the term under him.

Those who would turn the clock back thought that Dr Mutunga was all talk and no action, or, as they say in Texas, “all hat and no cattle”. They expected him to be “business as usual”. They were wrong. That’s why they’ve panicked.

They expected him to provide a “Kenyan judicial solution” to the predicament of the Ocampo Four before the International Criminal Court. In other words, they thought he’d help them subvert justice.

Anyone who knows Dr Mutunga well would’ve been foolish to think so. It’s not even clear how anyone — including President Kibaki — would ever broach such a subject with Dr Mutunga.

Nor would such a conversation be legal under the Constitution. Need I say more? But the Judiciary isn’t CJ Mutunga alone. It’s a group of rejuvenated men and women, most of whom are savouring their newly found independence.

And those who want to stick to the old ways had better pack and leave before the broom arrives. If you doubt me, just refer to the High Court nullification of anti-corruption czar Mumo Matemu’s appointment.

The case turned on the court’s reading of Chapter Six — on leadership and integrity — of the Constitution. The ruling should send chills down the spines of shady characters seeking high office.

This, in my view, includes any of the Ocampo Four who are seeking the Presidency. The courts — and not the ICC — may very well do them in. Then there is the volatile matter of the vetting of judges and magistrates.

This is why the LSK may be giving CJ Mutunga the evil eye. Until CJ Mutunga’s entry, there had been a sick, but true wisecrack — “why hire a lawyer when you can buy a judge?”

Iconic civil society activist Davinder Lamba immortalised the phrase by making thousands of T-shirts emblazoned with it. Lost in translation were the lawyers — members of the LSK — who would be the “buyers of the judges”.

Lawyers in Kenya have been the indispensable cog in the wheel of judicial corruption. That’s why — among other reasons — they aren’t happy with CJ Mutunga. He’s the Grinch who’s come to steal their “Christmas.”.

That’s why the recent flap between the CJ and the LSK over the vetting of judges hides more than it reveals. In a legalistic opinion piece (“Why the CJ stands accused over vetting of judges,” Sunday Nation, September 30, 2012), Mr Mutua lit into the CJ.

Mr Mutua accused the CJ of appointing Judge Mohamed Warsame, who hadn’t been vetted, to hear a case involving the vetting of Supreme Court Justice Mohamed Ibrahim whom the vetting board had deemed unfit to serve.

Mr Mutua and the LSK had argued that CJ Mutunga was desperate to save Justice Mohamed from the board. CJ Mutunga has since removed Judge Warsame from the bench hearing the case. What’s my point?

What’s important here isn’t that Judge Warsame hadn’t been vetted. It’s the zeal with which Mr Mutua and the LSK went after the CJ.

They even accused the CJ of “interference” with the court and the vetting board when he wrote — and copied them — to Justice Mohamed thanking him for completing the writing of his rulings.

This is baloney. Mr Mutua, the LSK, and anti-reform elements seem inclined to say anything to taint the CJ. The CJ isn’t a perfect man — nobody is — but he’s always acted with compassion and in good faith. Let him do his job.

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.