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September 20, 2018

The Mutunga Legacy : What he needs to do now

The Mutunga Legacy : What he needs to do now
The Mutunga Legacy : What he needs to do now

When Willy Mutunga was sworn in as Chief Justice in June 2011, the excitement nationally was palpable. This was especially the case within the ranks of civil society for whom Mutunga had been the esteemed guru for two decades. He brought with him all the right baggage to the most important governance institution in Kenya: a long history of struggle for progressive causes that had at one point seen him detained; a reputation for integrity; and, gravitas that was unprecedented in that crucial position. A master diplomat and nurturer of talent, the network of leading figures in civil society and Kenya at large that he had mentored was the longest of anyone in the sector.

That Mutunga assumed the office of CJ just after the new constitution had been promulgated in August 2010, meant that it now had a defender at the top of government whose credentials to protect it were impeccable. This was as a result of decades being at the forefront of the struggle to bring about constitutional change.

The first and most refreshing thing about the new CJ was his style. He aggressively championed a culture shift to make the judiciary more open, friendly and accessible to wananchi. Given Kenya’s history the judiciary has traditionally been the most conservative and often reactionary governance institution in Kenya. For the poor it was a hostile colonial beast with only the most tenuous relationships with justice for the disadvantaged.

He even got rid of the powdered wigs judges wore that we inherited from the British. It wasn’t something Kenyans discussed often but for decades I’d quietly marvelled at the comical sight of black men and women walking around wearing white weaves on top of their heads with a straight face. He also managed to drop the title ‘Your Lordship’ and replace it with ‘Your Honour’ for all judges and magistrates.

In terms of personal style he was a breath of fresh air. A moderate Muslim who wears an earring in one ear and when he picks up the phone it is just as likely he could be talking to a President or a youth activist from Korogocho slum. Since he became CJ, his roster of public appears has included not only official ones but a wide range of socially important activities in academia, the arts and culture and civil society.

The Supreme Court’s ruling on the election dispute after the March 4, 2013 general election was a massive body blow to the credibility of the fledgling institution, not only because of the ruling itself but how it was delivered. This was a deeply polarising event that caused many to believe Mutunga had failed his first major test. It’s indicative of the scale of the new CJ’s credibility that it was him who took the heat. In a sense, the Supreme Court is Mutunga’s court. The bitterness around this lingers still and it affected important relationships, especially in civil society. That said I’ve taken time over the past few months to watch the CJ roll out his reform programme.

There have a host of ‘software’ changes that have humanised the judiciary. Judges, for example, greet litigants in the morning, which never used to happen before. All court stations now have customer care desks to respond to public inquiries. Additionally, the number of Court of Appeal while also being decentralised across Kenya, judges went from nine to 26, eight of them women, where there were none before. The number of high courts went up 100 per cent from 17 to 34. Where there were once only 43 High Court judges, now there are 143.

New stations have been established in Garissa (the first High Court station in Northeastern in 50 years), Homa Bay, Malindi, and many more to follow especially in the marginalised areas. An Office of the Judicial Ombudsman has also been established to handle public complaints. In addition, a host of important new rules have been gazetted like Article 22 on Fundamental Rights and Freedoms; Sexual Offences rules etc.

By December, they shall also have cleared 80,000 old cases. Indeed, the backlog of a million old cases when Mutunga took over had been reduced to about 430,000 by mid-last year.

Sources close to the CJ confirmed that corruption has accelerated in the judiciary. The early decisive actions with regard to the case of the former Deputy Chief Justice and corruption in the administrative wing of the judiciary has led to a ferocious blowback coming out of the political elite. Indeed, a grim sign of success that a carpet bombing of the CJ’s reputation has began out of the political class and legal profession aimed at ensuring that in months there shall be no ‘reformer’ left standing. Add to this the rise of powerful cartels around public procurement has led to another corruption-related blow to the head of the judiciary.

While the Judicial Service Commission is setting up an inspectorate to deal with corruption among judges, the terms and conditions of all judicial staff have also been dramatically improved. However, insiders observe that the temporary stalling of the exercise of vetting of judges, accompanied by graft in the administration wing of the judiciary, led to a spike of corruption in the judiciary that still hasn’t been stemmed. A considerable part of Dr Willy Mutunga’s legacy depends on what he does about this before his term ends. 

 


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