Mutunga, you fought a good fight and left the Judiciary a better place

Willy Mutunga retired this week aged 69, exactly one year before the constitutionally mandatory age of his retirement. He served in the Judiciary from June 20, 2011, to June 16, 2016, leaving exactly five years since his appointment. Ironically, his last duty in office was to preside over a case in which two of his colleagues, who have definitely passed the constitutionally mandated age of retirement, contested. With the case determined in favour of the Constitution, he handed over the instruments of leadership at the Judiciary, its property and left.

A few days before his departure, Dr Mutunga invited Kenyans to have their say on his term. Many thanked him for his service. A few, however, are convinced that he did not make any significant impact on the Judiciary. Each time I have read their verdict, I have wondered if they know how receptive Dr Mutunga is to such criticism and how seriously he takes it.

I am reminded of this because when Dr Mutunga’s book, Constitution Making from the Middle, was published, I published a review essay of the book. It was a harsh review in some ways. He was excited by the review and cited sections of it in his next article.

Dr Mutunga is a rare and unique a person, one who is guided by conviction and principles. Yet he is also easy to engage. He arguably has been the most accessible CJ, available on Twitter and capable of intervening in critical national discussions with his considered opinion. His convictions and principles carry a love for humanity, a commitment to leave the world a better place and a resolute desire to empower the downtrodden and poor.

This is why his journey as CJ started in the Korogocho slums on Nairobi and ended there. When our politicians troop to homecoming parties in their tribal enclaves, Dr Mutunga took us to a cosmopolitan and multi-ethnic neighbourhood in the city populated by the wretched of the earth. His presence there strove to shine a light to their life and experiences and to ensure that a social justice message finds footing there.

Chapter Six of the Kenyan constitution guided Dr Mutunga. He once called for a chapter six movement in Kenya. Attempts to soil his integrity were made not just by colleagues in the Judiciary and the media, but also by some in other arms of government, who took cheap shots at him and the Judiciary. I engaged at least two of these. Everything went mute when Dr Mutunga responded to the falsehoods.

There is no doubt the Judiciary is much better now than it was in 2011 or before then. Judges and magistrates enjoy their independence. They work in the knowledge that there will be no interference in their decisions. Further the old habit where well-connected lawyers secured favourable decisions without necessarily going through the rigour of arguing their cases is rare.

Such security has gone a long way to assure court users of a level of justice never before witnessed. Delays are no longer the norm. The result has been a restoration of confidence in the Judiciary. In several opinion polls comparing different arms and departments of government, the CJ and Judiciary consistently came out as enjoying the greatest confidence of Kenyans. In contrast, the President and his Deputy enjoyed confidence as individuals while the institutions they lead performed dismally.

As you retire, Dr Mutunga, you must walk with your head high. You are civil society’s gift to Kenya’s Judiciary and you did not disappoint. You were thrown at the deep end, forced to work with many who did not believe in the new Constitution and its progressive agenda. But you did your thing, made your mark and left when it was time to leave. We thank you for your service.

Godwin R. Murunga is a senior research fellow at the Institute for Development Studies at the University of Nairobi.