Sunday, February 23, 2014

THE "NEW" CONSERVATIVE CHIEF JUSTICE SHOULD GIVE WAY TO THE "OLD" LEFTIST MUTUNGA

Some months ago I wrote an article in this space predicting a very rough time ahead for Chief Justice Willy Mutunga.

At that time, Mutunga was embedded in a bruising and controversial battle to oust Chief Registrar Gladys Shollei over matters related to alleged financial impropriety. The President of the Supreme Court was also facing resistance from a section of judges who were protesting against their relocation to the new court house on the hill.

That prediction appears to be coming to pass as the former human rights crusader has been caught, once again, in a "deadly" triangle of political diatribe and professional humiliation.

In the 1980's when he was active in civil rights and democracy campaigns, Mutunga was a tough-talking, fire-spitting operative who, together with others, gave President Daniel Arap Moi many nightmarish nights. He was the Secretary General of the University Staff Union (USU), an active leftist, and one of the alleged master-minds of the toxic Pambana publication that spread Moi's dictatorial ills for the whole world to know.

He was detained in July 1982 and spent 15 months at the Kamiti maximum prison. His activism continued upon his release and relocation to Canada the following year. But by 2009 when he joined the Nairobi office of Ford Foundation, the left-wing academic had mellowed into an arm chair civil rights bureaucrat. His controversial entry into the Kenya Judiciary in 2011 transformed him further into a humble and demure individual who was focused on only one thing: transforming the corrupt and inefficient Kenya Judiciary into one of the best-run institutions.

Never did he know that the post of Chief Justice is as political as it is administrative. This is not to say he has failed to deliver in terms of reforms. He has not, and the evidence is there. Today, the public has more confidence in the Judiciary than at any time in the country's history.

However, with the new Constitution came fresh expectations from both the public and the ruling elite. It wasn't long - after the Supreme Court ruling in 2013 on the presidential election dispute between Raila Odinga and Uhuru Kenyatta - that Mutunga found himself receiving punches left, right and centre from angry politicians who thought he had been "bought" by the Jubilee Coalition. Joining in were corrupt cartels determined to resist any changes in the statusquo.

The current crisis in which the Judiciary is embroiled in, is to my opinion, just one of several covert and overt schemes to frustrate efforts at reforming the Judiciary. In any democracy, the Judiciary is independent of both the Executive and Parliament. It is also the principal custodian of justice which it must dispense justly and fairly. But persistent interference in its affairs now threatens its independence, something likely to scare judges and magistrates when making rulings.

A good example of this interference is seen in the current case of Governor Martin Wambora. A High Court overruled - based on the evidence it had - a Parliamentary decision to impeach the Embu Governor on account of abuse of office. Soon thereafter, the Judiciary came under attack from politicians who charged that it had acted "unconstitutionally" and warned of retribution including the re-introduction of a vetting system for judges. From past experiences, no judge would want to go through the traumatic kind of public vetting process that Parliament envisages.

The man who could have saved Mutunga in the Judiciary-vs-Parliament verbal contest - President Uhuru Kenyatta - appeared not to take sides although he did express some displeasure over the ruling.

As I write this piece, Mutunga has not responded to the attacks, perhaps not wanting to publicly take on Parliament and the Executive.

However, It would be interesting to see how long the Chief Justice would take punches without hitting back. His disadvantage is that he is a civil servant and cannot just convene a public meeting and start to bash politicians. Perhaps, the "new" conservative Mutunga should bring back the "old" firebrand Mutunga to the battle front and find a way of excavating himself from this quagmire.

The Chief Justice has nothing to lose after all since the constitution does not give Parliament or anyone else powers to sack him. Short of a voluntary resignation, the ear-studded former law lecturer has four more years ahead of him to fight off humiliation from politicians.

And that is my say.