• He says Ruto, like other Kenyan politicians, is a liar that tells the truth by accident
• Calls the Court of Appeal the "graveyard of progressive jurisprudence" but High Court at forefront of the struggle for an independent Judiciary
Retired Chief Justice Willy Mutunga has lifted the lid about the pressure that Kenyan judges face, including bribes being offered to their spouses and close associates without their knowledge.
In a wide-ranging interview with the International Crisis Group, Mutunga also explained why President Uhuru Kenyatta fears a potential presidency by his second in command, William Ruto.
He said Ruto, like other Kenyan politicians, is a liar who tells the truth by accident and described ODM leader Raila Odinga as a progressive politician who has gone to bed with dictators.
Like his successor David Maraga, Mutunga said Uhuru should be impeached for consistent violation of the Constitution.
“Judges face all manner of pressures, so it’s a very lonely place where a judge has to find out whether his spouse or her spouse is talking to politicians and promising them stuff,” he stated.
“My experience confirms that has happened where colleagues who are incorruptible just discover that there were gatekeepers who were getting money from people with a promise that decisions would be handed down in their favour.”
Unlike many judges, Mutunga said, he never faced any pressure from the Executive but from his community.
“There are people who still believe that if you are chief justice, you are not chief justice for all Kenyans but a particular community,” he said without elaborating or identifying the case.
Mutunga, who led the Supreme Court bench in throwing out Raila Odinga’s 2013 presidential petition, has always come under fire for a poorly reasoned argument.
The ruling was ridiculed and torn apart by many legal scholars.
But in his interview, Mutunga turned his guns on the Court of Appeal, describing it as “a graveyard of progressive jurisprudence”.
The criticism comes at a time when the court is seized of the critical matter of the Building Bridges Initiative, which was declared unconstitutional, null and void by the High Court.
Mutunga said the High Court is at the forefront of the struggle for an independent Judiciary.
“Sometimes, the Court of Appeal has become a graveyard of progressive jurisprudence and the Supreme Court seems to seesaw even when I was in the Supreme Court,” he said.
Mutunga also addressed claims that judges had become activists, a practice that was allegedly entrenched in his tenure.
“The Constitution itself is activist. That is why the Executive and Parliament find it too progressive for their liking,” he said.
“There was a time when I discussed this issue with the Speaker of the National Assembly because he said publicly that I was an activist CJ and my response was that he was also an activist speaker.
"I told him it depended on the causes for which we are activists. Mine was to uphold the dignity of the Constitution. His was to subvert it because Parliament was always very active in passing legislation that was unconstitutional.”
Mutunga said President Kenyatta is a candidate for impeachment for consistently violating the Constitution and ignoring court orders.
He said Ruto has never been pro-reforms and is only being opportunistic by opposing the amendment of the 2010 Constitution.
“In my view as a lawyer, he (Uhuru) has subverted the Constitution in so many cases that he should be impeached. There are all these cases where the courts have ruled and he has refused to obey. Disobedience of the court is tantamount to overthrowing the Constitution. It’s a very, very serious issue,” Mutunga said.
In his assessment, Raila started off as a progressive politician but his history in forming alliances tells a different story.
“When you look at the history of Raila Odinga and alliances, you will be surprised. This is somebody who starts as being very progressive, anti-government and a patriot. But he keeps on joining those dictatorships and reinforcing them,” he said
Here is an abridged version of that interview:
Why is this decision (High Court ruling on BBI) so significant?
This decision is very important because of its fidelity to the 2010 Constitution. You have to realise that the elite in Kenya finds this Constitution very progressive. Since its promulgation, we have seen struggles to claw back the fundamental pillars of this particular Constitution. That is why it's landmark because it has preserved the progressiveness of this Constitution. This decision emphasises the sovereignty of the Kenyan people and that is the hallmark of democracy. It’s been praised by Constitutional law academics from various parts of the world.
What are your reflections on how exactly Kenya got here with such a uniquely assertive and independent Judiciary?
The Judiciary is not yet independent. There is a quest for this independence. The High Court is at the forefront of this struggle. Sometimes, the Court of Appeal has become a graveyard of progressive jurisprudence and the Supreme Court seems to seesaw even when I was in the Supreme Court. So cases are many and not just the nullifying of presidential elections in 2017, there have been many others in the High Court, particularly where legislation from Parliament has been struck down even legislation that the President had assented to.
That vision of the independence of the Judiciary is something the Judiciary has faced since the promulgation. What I can say is that the Judiciary is at a crossroads. Part of the Judiciary want to be an appendage of the executive and other influences and forces that undermine judicial independence, but there are others who want to emphasise fidelity to the Constitution and breathe life into it.
Independence of the Judiciary is a contested terrain but what I see is maybe the institution itself is getting united, in terms of its role to the people, but maybe we shall just have to wait and see.
What is it like for justices to stand up to the Executive and even to the President himself?
The judges get attacked. In 2017 when the Supreme Court nullified the presidential election, the President, the deputy and others attacked the four judges who ruled that the election was not conducted under the Constitutional principles and therefore nullified it. There is a lot of pressure but the Judiciary also gets a lot of support from people. Like this decision on BBI is supported by Kenyans.
Kenyan politics is what I call the politics of division, so whenever the Judiciary makes a decision, it might be celebrated by some people because they see it as their victory. The BBI, for example, may be seen as a victory for the deputy president. So the intra-elite divisions are the ones that create all these problems… People see these findings of judges through these divisive lenses.
Do you think BBI is dead?
This matter is already in the Court of Appeal but I think it would be decided by the Supreme Court ultimately.
What I see, even if they [pro-BBI group] win in those courts, what I see is that there is going to be serious, serious resistance that is already building against a referendum and against what people are afraid would be very dangerous 2022 elections. You can see quite clearly that we are headed to very, very serious instability political instability.
Right now there is such a poisoned relationship between Uhuru and Ruto, what are the prospects of a smooth transition if Ruto wins?
Although it's not spoken, there are has been a convention in our politics around the issue of presidential succession. It started in 1978 when Kenyatta died and Moi came in and protected the interests of the Kenyatta family. President Kibaki, not only protected President Moi in his retirement, but he also gave him lucrative retirement benefits. President Uhuru Kenyatta has done the same in protecting President Kibaki.
So everybody is talking about that convention in the presidential succession that has made presidents retire and just go home and they know they are not going to face politics of vengeance. I am of the view that at some point, President Uhuru Kenyatta is not convinced that his prospective successor would actually protect his family interests, protect his security and that he would probably undermine that political convention which is not constitutional or legal.
My own hypothesis is that at some point, President Kenyatta started looking for a successor who would protect their interests. I don’t believe he wants to stay in power, he might want to have somebody who would protect his interests.
(Edited by V. Graham)