Nomination of ‘outsiders’ could herald reform that Judiciary requires

Monday May 23 2011

If Dr Willy Mutunga stood for office in war-ravaged Gulu in northern Uganda, he would perhaps win.

About six years ago, Dr Mutunga, then a programme officer at the Ford Foundation, visited the town.

He had come on a pilgrimage to the grave of one of Africa’s greatest authors, Okot p’Bitek.

Very few people revere the beauty of Africa’s traditions, the wisdom of its ways, and the strength of its people the way Bitek did, especially in his much acclaimed Song of Lawino.

Not many outsiders visited Gulu those days. And ever since Bitek died in 1982, hardly a single of his army of admirers had braved his graveside.

Writing later about the visit, Dr Mutunga said he was hit by the sad irony that someone like Bitek, who railed against the fact that the “White man’s” religion had trampled African traditional religions, found his last resting place in a church cemetery.


The Gulu “pilgrimage” perhaps tells us that when Dr Mutunga talks about a connection to African ancestors and our soil, it is not just a piece of faddish and fashionable Afro-ethnic chic.

His nomination to be Kenya’s Chief Justice, welcomed by a large part of Kenyans, has caused rancorous debate among the political elite.

This is possibly because he is a Judiciary outsider and a progressive intellectual in an institution, and an establishment, that tends to err on the side of conservatism.

For many ordinary Kenyans, though, his appointment is a good thing because it signals that in our long journey together as a country, we have come to the point where people of diverse intellectual backgrounds are equally trusted with the important jobs of our country.

One criticism of Dr Mutunga’s candidacy is his lack of Bench experience.

While that might have its downside, history suggests that countries seeking to reform and break new ground are most likely to be better served by a well qualified outsider.

Earl Warren, the famous CJ of the American Supreme Court, was a three-time governor of California and a running mate to Thomas Dewey’s losing 1948 presidential bid.

However, his court delivered the famous case of Brown versus the Board of Education in 1954, a decision that led to the desegregation of American schools. This decision also built a momentum for the civil rights movement.

One of the great advocates in that case was Thurgood Marshall, who President Kennedy appointed to the Supreme Court as a judge.

These were individuals who understood the transition that the US required at the time in question, namely, that racial discrimination in the US was unacceptable.

In South Africa, former President Nelson Mandela in 1994 appointed Arthur Chaskalson the Chief Justice of the Constitutional Court. Mr Chaskalson had spent decades fighting the apartheid system.

Before his appointment he had founded a human rights NGO, the Legal Resources Centre, which not only fought against the apartheid system, but was also a think-tank for the transition after the fall of that inhumane system.

In Kenya, the man who is regarded as the greatest CJ ever, Chunilal B Madan, was an elected member of the Legco (1948-61) and served as a minister in the colonial government.

That experience made him a great judge after independence and rose to be a CJ whose legal scholarship, fairness, and political acumen made him spearhead the rule of law even in Moi’s Kanu dictatorship.

We all remember his great judgment in the Stanley Githuguri case, a case that may have ended his illustrious career on the Bench.

A civil society background is not a liability and experience gained in building institutions advocating values and ideas is as valid as any.

It is unfortunate that the centrists, progressives, and leftists have been marginalised in Kenya.

But the reforms we see today are, in the main, the fruit of these groups in civil society. Their ideas and values are largely the reforms which we are implementing today.

If Kenya’s reform story were a pregnancy, Dr Mutunga’s appointment would be the birth. It might be a bit painful, but it can only end well.

The danger for Dr Mutunga is that because, if Parliament gives him the nod, he would come to office with the highest level of expectations ever for a Kenyan CJ, if he comes short, his failure would be equally spectacular.

And for a long time, it would be used as a stick against progressives who claim they will do miracles if are given important leadership positions.

The writers are Nation editors. The views expressed here are their own.