Reforms may have ended with Mutunga exit

As a victim of injustice and a crusader for justice, let me say something about Willy Mutunga’s crusade for reform as Chief Justice, who rose from a detainee to a topmost dispenser of justice. However, I write this knowing that “the best hunter of the leopard is always the one who was not there”.

When Mutunga became Chief Justice, his fellow campaigners for justice received his incredible enthronement with as much joy as the world welcomed the political enthronement of Barack Obama to the pinnacle of global power.

As Kenyans looked up to Mutunga to save them from injustice, understandably, they also took him as the personification of judicial reform and emancipation. Indeed, this is what had propelled people’s support for Mutunga. Unfortunately, they also trusted Mutunga to carry out judicial reforms singly, same way they had expected Jomo Kenyatta to save them from colonial oppression alone.

And people’s faith in Mutunga to singly save them from judicial terror emanated from their belief that, having hoisted himself up the tree of reform, Mutunga could also hoist judicial reforms to fruition.

Though unsupported by any experience, Kenyans believed Mutunga could win the war of judicial reforms without an army of reform. Notwithstanding the fact that Mutunga was commander-in-chief of judicial reforms without an army, he fought well but didn’t win the war. To reform the Judiciary, Mutunga needed an army of reformed judges.

I disagree the new Constitution alone can suffice to bring about judicial reforms. Nor can it substitute the need for the army of reformed judges. Without reformed judges, who will implement the progressive Constitution?

Tragically, when trying to reform the Judiciary, Kenyans forgot to learn from Tanzania. When Julius Kabarage Nyerere became president and decided to make Tanzania socialist, he failed because he lacked an army of socialists to help him. Indeed, when Nyerere died, even his successor President Hassan Mwinyi quickly abandoned Azimio la Arusha, the ideological bedrock of Nyerere’s socialism.

Likewise in Kenya, judicial reforms stunted and were unfelt by masses for lack of helpful judges, lawyers and champions of social justice.

And though Mutunga believes he built an unshakeable foundation for reforms, without him, his reforms might wither and die.

As I said, the mere elevation of an ex-detainee to Chief Justice was tremendous victory. Later, however, Mutunga won some and lost some. But when he exited, he did not leave behind an unassailable movement of judicial reforms. He even left the Supreme Court in frightening disarray.

With his reforms so fragile, Mutunga should have stayed a little longer, to allow them time to take root. As is clear below, when Mutunga left, his speeches pointed to a faltering – if not failed – reform agenda.

As courts were ruled by terror under one party dictatorship, in Mutunga courts, there was more stench of injustice than scent of justice.

When International Criminal Court judge Ekaterina Trendafilova electrified Kenyans with her friendliness in the ICC, it was because our courts are so cold and tyrannical that I can count judges who have greeted me in court corridors.

Mutunga increased court buildings, trained more magistrates and qualified more judges without raising the level of humanist and progressive jurisprudence.

Despite Mutunga reforms, I don’t have more confidence in courts today than I had yesterday.

Mutunga’s courts did not eradicate corruption; justice is still for elites, not Wanjiku; courts failed to investigate and resolve historical injustices. Unbelievably, Mutunga courts denied torture in detention, police cells and prisons under one party dictatorship.

Mutunga courts lacked courage to retry Dedan Kimathi, Mekatilili wa Menza, Koitalel arap Samoei and other freedom fighters to rescue them from colonial demonisation.

Mutunga courts even dictated to citizens what prayers they will take to the Supreme Court.

If judicial reforms still enjoy national priority, the next Chief Justice must be a champion of reforms whose credentials must be well known publicly.

He must remove ownership of courts from elites, to the people. He must believe in letting right be done though heavens fall in every case. He must be an uncompromising foe of negative ethnicity. He must champion truth for justice. He must never countenance dictatorship of the Executive. His integrity must be unquestionable.

Koigi wa Wamwere is a former Member of Parliament for Nakuru North (now Subukia); [email protected].