Were Mutunga and Baraza signalling end of the old order with their attire?

Monday June 20 2011

By MACHARIA GAITHO

“…the English judges of the higher ranks are saddled with enormous horsehair wigs that can cost over one thousand pounds and weigh almost that much. They are also expected to wear garish robes trimmed with the carcasses of small woodland creatures. The English judicial costume is said to be itchy, unhygienic, and uncomfortable. It also doesn’t always smell terrific”.

So wrote Prof Charles Yablon in Judicial Drag: An Essay on Wigs, Robes and Legal Change, published by the Wisconsin Law Review in 1995.

Many, many years earlier, Alexander Herzen, a contemporary of Thomas Jefferson, described the English judges as “wearing a fur coat and something like a woman’s dressing gown”.

A refreshing image from the swearing-in ceremony at State House on Monday was that the new Chief Justice Willy Mutunga and his Deputy, Nancy Baraza, opted to go through the rituals unencumbered by the medieval robes and horsehair wigs still beloved of the Kenyan Bench and Bar.

The Director of Public Prosecutions, Keriako Tobiko, however, turned out in his dress, powdered wig and stiff collar and that accoutrement down the neck that always reminds me of a child’s bib starched solid with the usual detritus from feeding time.

By taking oath of office in their ‘civvies’, Justices Mutunga and Baraza might have been signalling a break with the past and the onset of a regime that intends to chart a fresh course.

But then it might seem that Mr Tobiko – succeeding himself as Director of Public Prosecutions but in a newly enhanced, independent and very powerful role that is not subservient to the Attorney-General or any Cabinet minister – represents the old order.

Maybe this is unfair. It is probable that the new Chief and Deputy Chief Justice did not consult the prosecutor on the dress-code for the swearing in.

Or it could even be that Justice Mutunga and Justice Baraza were not actually making any statements with their attire; only that the robes and wigs and other paraphernalia could not make it to Kenya in time from the London tailors and saddlers and whatever other craftsmen make those ancient costumes.

Matters of dress aside, however, there’s a new sheriff in town, and that seemed to be the message Dr Mutunga was delivering to his fellow judges from the steps of the imposing Supreme Court building soon after the swearing-in ceremony at State House witnessed by President Kibaki and Prime Minister Raila Odinga.

The new Chief Justice was gracious in his acknowledgement that the new broom must co-exist and work together with the judges it finds in service.

But he also, in polite but very serious words, said that “we as judges must guard against becoming captives of political, commercial or other interests.

It should no longer be possible to speak about corruption and the Judiciary in one breath”. The “we as judges” but must have been very deliberate.

The message is that he is not coming in from the outside to sweep away the existing Bench; but reaching out as brother-judge to colleagues he intends to work with in transforming the Judiciary and ensuring it wins public trust.

Justice Mutunga is no doubt in a powerful position to drive reforms in the Judiciary, but he will achieve so much more if he wins the trust and co-operation of his colleagues.

Hostile and angry judges can throw all manner of spanners into the works. The Chief Justice can be limited in his actions because he will not alone preside over all cases or sit in review over the rulings of other judges.

One of the key failings of the criminal justice system in Kenya is the failure or refusal to prosecute and convict the high and mighty, a culture that involves unholy alliances across the length and breadth of the entire establishment from the police to prosecutors and judges.

And this is where major challenges could arise because a reformist judge would be helpless if a prosecutor beholden to the old order refuses to charge his political patrons or presents cases that are doomed to fail.

A prosecutor who wrote opinions seeming to justify the rape of nuns and attacks on religious leaders and places of worship as just punishment for a church that dared question the excesses of the Moi kleptocracy provides little room for comfort.