Mutunga’s legacy haunting Kenya in country's search for new Chief Justice

What you need to know:

  • From Willy Mutunga's character and the habits he embedded in the courts, we can draw a number of qualities that the JSC should look for in their hunt for a new CJ.

  • The JSC should recruit judges who can stand up against any mischief against the Judiciary.

  • It must stand firm against merchants of Parliament, merchants of tribe and merchants of the bar.
  • It should give us judges of integrity and firm mental fibre to build a better Kenya. 

Sometime in the early 1990s, university students had a tendency of forming “tribal associations” for the purpose of reaching State House for “envelopes with money” and jobs in parastatals. Powerful district politicians were at the centre of these visits and would get a few students jobs in state banks, other parastatals, or employment in the Provincial administration.

One evening, I happened to meet a group of friends who had just come from visiting State House. They had assembled near a five-star hotel to discuss a follow-up on jobs that had been promised. They shared “their envelope” happily.

In the discussions, I heard that the politicians had pleaded to have the President appoint a judge from their community. They had identified one lawyer whom they wanted employed as a judge. His qualification was simple: he had acted in electoral petitions on behalf of Kanu. They argued that the lawyer was so good in arguing their case, with false evidence, that he needed a reward.

A few months after this incident, the lawyer was among the people appointed judges of the High Court. I did not bother to follow his career as a judge for almost a decade until 2003 when a report on the “radical surgery of the Judiciary” recommended establishing of a presidential tribunal of inquiry on corruption in the Judiciary. This judge, among others, opted to retire rather than face the tribunal.

This is the character of the judges that comprised the Judiciary before 2010. This is also why many Kenyans wanted all the judges and magistrates sacked. In fact, people had resorted to sorting out their commercial disputes through violence. They could not trust the courts because judges would take bribes from both sides but rule in favour of anyone who gave more.

The Constitution passed in 2010 destroyed these courts. It provides for political and financial independence of the Judiciary. It also establishes an independent Judicial Service Commission (JSC) to guard, promote, and protect the Judiciary as an independent arm of government, and to ensure constructive engagement with other arms of government.

This is the JSC that recruited the first Chief Justice, Dr Willy Mutunga, under the new Constitution. How the JSC recruited Dr Mutunga, and the character that he brought to the Judiciary, together with his legacy, however, have begun to haunt the recruitment process for a new CJ.

CANDIDATES' SUITABILITY

At present, the discussion on the recruitment is not focused on the suitability of the candidates or even on the future of the Judiciary. The discussions appear to miss the point. They have brought on board subjects to block a rich conversation on the qualities of the next CJ and the character of the Judiciary. There are those who are more concerned about whether the next CJ should come from within the Judiciary or from outside. There are those who are concerned about recruiting a CJ who will be a “manager” rather than an intellectual to add to the jurisprudence on implementation of the Constitution. There is yet another group that is keen to have an “ethnic CJ”. This group is keen to have “one of their own” or a “tribalised” CJ. They argue that the Kikuyu and the Kalenjin have the Executive and the Parliament, and, therefore, another tribe should be “given” the Judiciary. There is also a concern that the big five tribes have colonised the Judiciary at the Supreme Court level leaving “nothing for others”.

The Judiciary is such an important institution that the JSC should not entertain these thoughts no matter how politically important they are. In fact, as a country we can forgive political parties, the Executive, and Parliament for being partisan because they are representatives of partisan interests. But the Judiciary cannot be allowed to sink to this level because it is the only institution entrusted with the responsibility to resolve our madness most of it caused by tribal loyalties, self-interests and desire for short-term gains.

Those parading these naive arguments are haunted by the legacy of Dr Mutunga because he brought a new character that is not known among Kenyans. And from his character and the habits he embedded in the courts, we can draw a number of qualities that the JSC should look for in their hunt for a new CJ.

First, Dr Mutunga preached and lived integrity as a principle. The Judiciary had an annual budget of more than Sh18 billion but we have not heard that he dipped his fingers in the trough to build a palace somewhere. This is common among our thieving elite.

Relatedly, he submitted himself to financial audit by declaring his wealth. There are very few, if any, leaders who have the courage to declare their wealth in an open manner yet clean wealth is not a subject of hide-and-seek game.

Third, he defended devolution in word and practice. The courts have followed up the defence of devolution to a point that devolution remains a strong plank in Kenya’s development discourse. The courts have gone against all odds particularly because world over, devolution is not rolled out with ease. Even after about two centuries of devolved power, UK and the US are grappling with challenges of the centre wanting to keep more and give less. The courts have stood up on this so well that the next CJ will have difficulties lowering the bar.

A FACT

The independence of the Judiciary, the courts and judges, politically and financially, is now a fact of life. The JSC can stand up and claim it has presided over construction of the most independent Judiciary in our history. Unfortunately, this independence is not received well by those with an appetite to control, tribalise, and co-opt public institutions.

Important also is that under his tenure, Dr Mutunga reconnected the Judiciary to the academy. It is during his tenure that the judges reconnected to other disciplines such as economics, sociology, political economy, and development studies. In the past, many judges acted in isolated silos of law. They wrote judgments that clearly showed lack of scholarship.

While the JSC is not short of candidates for the CJ, DCJ, and the Supreme Court Judges, these qualities and the character that Kenyans now associate with the Judiciary may make it difficult to achieve. But the JSC must begin by agreeing that they are not beholden to any constituency, ethnic or political. In fact, to its credit, the JSC has survived as one of the few institutions that has demonstrated integrity in its practice in the last five years. It has remained “Kenyan” even though members are appointed through partisan interests. The JSC must live up to this collective foundation.

The JSC must also recruit those who show, and have shown, that they are committed to integrity and are incorruptible. Those recruited must demonstrate they have no appetite to put their fingers into the public troughs. They should also declare their wealth at the outset and agree to forensic audit of themselves and everyone else on the bench, every three years or so. People would want to know how much they have, how they acquired what they have, and so on.

Important also is to recruit judges who will take political and financial independence of the Judiciary a bit higher. They must engage constructively with other arms of government, knowing too well that a cosy engagement with any arm of government is bad for the Judiciary and its image. The JSC should recruit judges with political bone to stand up against any mischief against the Judiciary. If courts are biased in how they intervene in our disputes that are largely tribal in character, they can lead to the burning of the nation. That is why the JSC must stand firm against merchants of Parliament, merchants of tribe, and merchants of the bar. They should give us judges of integrity and firm mental fibre to build a better Kenya. 

 

Prof Karuti Kanyinga is based at the Institute for Development Studies at the University of Nairobi; [email protected].