Mutunga's dubious legacy that he now cannot erase

Chief Justice Willy Mutunga
Chief Justice Willy Mutunga

Just as Chief Justice Willy Mutunga seemed to be enjoying a honeymoon with the public ahead of his retirement, a new scandal has erupted in the judiciary that has once again brought his leadership under scrutiny.

Last Sunday’s report by NTV alleging that Supreme Court Justice Philip Tunoi was given $2 million (Sh204 million) to influence the ruling in a gubernatorial election petition has shaken the little confidence that was still left in the judiciary, of which Mutunga himself has sounded alarm in recent weeks. There are many unanswered questions about the Tunoi bribery allegations. Could one judge solicit such a large amount for himself, or was it for the entire bench?

Only a thorough investigation can absolve the Supreme Court of this new infamy. However, what came as an immediate surprise to many is Justice Mutunga’s revelation after the NTV report that he had received the allegations in November 2015, and that the Judicial Service Commission, which he chairs, had done investigations.

A day after the NTV exposé, Mutunga called an urgent JSC meeting, and promised to forward to the Director of Public Prosecutions and the Ethics and Anti-Corruption Commission the report of JSC’s findings. The critical question is why Mutunga and JSC sat on this report for so long. Were they waiting for the story to leak before acting on their findings – good or bad?

The reality that corruption persists in the judiciary, despite reforms under the new constitution, is well recognised. The Judges and Magistrates Vetting Board has received substantial evidence about new corruption that it couldn’t address solely due to legal limitation of its mandate to cases that arose before the new constitution was promulgated.

But Mutunga has been caught napping whenever a major scandal broke in the judiciary. In the Tunoi matter, Mutunga was so rankled by criticism from the majority leader in the National Assembly, Aden Duale, that he effectively confessed to his inability to address the vice. To Duale’s mischievous tweet: “Now the CJ can confirm that the judiciary and the Supreme Court in particular is full of graft,” Mutunga responded clumsily: “I can confirm the judiciary will never reach the graft levels achieved by Parliament,”. That response laid bare his rudimentary thinking on strategic leadership of the judiciary.

The exchange generated a Twitter war in which establishment lawyers like Ahmednasir Abdullahi naturally aligned with the CJ. But ordinary Kenyans were outraged. @Kenyanproject wrote: “Our efforts should be on #zerograft... It shouldn’t be a contest on which arm of government ‘stinks’ more...” Another tweeter, @salano254, wondered: “So it is a competition? You people should just go and kill yourselves somewhere and we forget we ever had leaders like you.”

Such tactless publicity was typical of Mutunga who in 2013 engaged his then chief registrar Gladys Shollei in a media brawl over corruption. When the case against Justice Joseph Mutava, who was accused of special relationship with Goldenberg mastermind Kamlesh Pattni, surfaced, the CJ was again caught on the wrong side. Just last year, the CJ watched helplessly as the government muzzled its way through the courts to get a predetermined outcome on the teachers’ salary issue.

Once Kenya’s great hope, Mutunga has succumbed to political pressure at every stage. There is no doubt Mutunga is a nice man at heart. He takes extreme ideologically reformist positions in his public diplomacy. But his positions amount to nothing if they can’t influence societal transformation. While Kenyans wanted a CJ who could shake up the system, Mutunga was scared to death by the entrenched interests, and he lacked the organisational dexterity to manage dynamics of power.

Ahead of the last elections, he made bold pronouncements that our new integrity standards were so high that even wife batterers wouldn’t be allowed to stand for office. But he watched as power cartels played games with the eligibility case then facing Uhuru Kenyatta and William Ruto, until the political climate was so polarised as to make their disqualification explosive.

In 2014, as the government came under pressure from insecurity and terrorism, Mutunga fell to the whims of security chiefs and promulgated extra-constitutional guidelines for judges in the bailing of terrorist suspects.

But ahead of his retirement, Mutunga was beginning to charm the country again, going overboard in some statements, like by claiming that Kenya was a bandit economy, controlled by mafia-style, deep-rooted cartels who can kill those who stand in their way. His dangerous comments received scant attention not because he was right, but because Kenyans just want him to retire in peace.

As the Tunoi matter unfolded, the Law Society of Kenya published its long-awaited analysis on the Supreme Court ruling in the Raila Odinga presidential election petition of 2013, reminding Mutunga about the biggest dent in his public career. Kenya now approaches the 2017 elections with confidence in the judiciary comparable to pre-Mutunga levels. That is Mutunga’s true legacy.

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