Fence-sitter or reformer? Opinions differ as Willy Mutunga calls it a day

Willy Munywoki Mutunga’s final days and eventual exit yesterday were every bit as controversial as his first interview for the most influential job in the apex court of the land, when he remained defiant that he would not lose the stud on his right ear.

His family life and failed marriages also featured heavily on the television broadcasted interview, with queries raised whether indeed he would take on challenges of the Judiciary by the horns.

Even as he marked his last day in office yesterday, Dr Mutunga was deciding whether his peers Justices Kalpana Rawal and Philip Tunoi — who he had worked with for the last six years — would go home in a huff or have a few more days to relish the hard verdicts given on the bench including that of the contentious 2013 presidential election petition.

On his social media page he found something light to mark the day. “It’s my 69th birthday today & my last day as CJ. Have your say at #AdiosCJMutunga,” he wrote on his twitter handle.

An hour later when his timeline was flooded with goodwill messages, he could not resist to express his eloquence in sheng. “Thanks tweeps kwa jumbe zenu za hbd na za kuretire na sio kuexpire, wacha Chief Jajiko aji prepare kuelekea Kotiko. #AdiosCJMutunga.”

In recent months Dr Mutunga has insisted on his early retirement from office to avoid a constitutional crisis in 2017 where there would be no CJ to swear in the President after the General Election.

To some of his colleagues within the corridors of justice Dr Mutunga was a soft-spoken and humble leader who made great strides in transforming the Judiciary and the tainted public image of being a government enforcer rather the deliverer of justice.

His critics viewed him as being a fence-sitter and afraid to tackle head on the challenges of the country’s judicial system which he himself described in a recent media interview as being influenced by cartels.

His detractors have also faulted him for leaving office before the expiry of his term and leaving the Supreme Court in mayhem brought about by the long-running dispute over the retirement age of judges.

The delivery of the five-hour judgement which ultimately sent Rawal and Tunoi home on Tuesday evidenced the clear difference of opinion in the row that had no doubt divided the bench.

Dr Mutunga undertook both his undergraduate and master’s degrees at the University of Dar es Salaam in the 1970s before joining the University of Nairobi as a lecturer in the Faculty of Law.

His strong advocacy for human rights when he was secretary general of the University Staff Union soon put him in the cross-hairs of the Moi era government and landed him a year-long detention without trial in 1982.

Dr Mutunga got his doctoral degree in Jurisprudence from Osgoode Hall Law School, Canada, in 1992 and was elected chairman of the Law Society of Kenya (LSK) a year later.

His vast experience in the NGO world — including working with Kituo cha Sheria, the Council for Legal Education, the Kenya Human Rights Commission and the Ford Foundation — served him well when the country began the search for the first president of the Supreme Court.

The judges’ employer in June 2011, while looking for a radical activist to reform the Judiciary, recommended to then President Mwai Kibaki that he appoints Dr Mutunga as first chief justice under the new Constitution.

Lack of judicial experience seemed to fit in with the demand for someone who could go against the corruption grain that had long taken root in the corridors of justice.

Too trusting nature

Granted, his tenure has been marked by more drama than any other predecessor which some say is a result of his too trusting nature. He delegated too much power to his juniors.

It began with the scandalous “slap” by his then deputy chief justice Nancy Baraza of a guard at a Nairobi upmarket shopping mall that came with the infamous quote ‘‘you should know people’’.

The incident saw the public bay for her blood and Dr Mutunga had to provide leadership in resolving the matter without letting the institution wade into the controversy.

Next was the corruption scandal in which chief registrar Gladys Shollei faced numerous allegations which saw her part ways with her employer.

In the most recent dispute his deputy, and over 40 other judges, were looking to hang on to their offices for four more years on the premise that they should retire at 74 and not 70 years as stipulated in the Constitution passed in 2010.

In unapologetic splendour, Dr Mutunga on Wednesday told the Senate of how the Judiciary had over the last five years transformed and “opened itself to public scrutiny — believing that sunshine is the best disinfectant.”

Under his watch, an institution once plagued by corruption has been able to reclaim some of its glory. When he took over leadership at the institution it lacked data on the number of cases in courts. He undertook to establish a database and reduce the case backlog from an estimated one million in 2011 to 420,000 in June 2016.

He improved the interaction of the Judiciary with the public and established customer care desks at courts.

Staff and infrastructure shortages which long plagued the Judiciary were also addressed through increasing the number of judges from 53 to 136, magistrates from 316 to 443 and Kadhis from 15 to 56 and further decentralising the Court of Appeal to Malindi, Nyeri and Kisumu.

Before June 2011, financial constraints were the order of the day with 65 per cent of the Sh3 billion Judiciary Budget consumed by the 53 judges.

“There was endemic institutional corruption; litigants were treated rudely; high courts were confined to the railway line, marginalising large swathes of the Kenyan society,” said the former CJ.

Staff did not have a medical insurance cover and many had stagnated in the same job group for over 10 years.

As Dr Mutunga leaves office, his track record is a reflection of a man who kept his word when he took the oath of office that he would protect the Constitution to the letter.

Earlier, he told the Senate; ‘‘Those who frown upon an independent Judiciary only do so until they get into trouble, at which point their language changes from profane condemnation to profuse celebration of independent and strong judges.’’

In his final public  address he sternly warned that ‘‘if the country’s political leadership continued to frown on  dialogue and maintained bigotry, then it was the common man that would suffer and the country  would lose everything that it has built so far.’’

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