He said President Kenyatta’s move to gazette the names of the judges two years later, speaks to an exercise of power that ‘is egregious, reckless and insensitive’.
Dr Mutunga, a law professor and civil society activist spent 16 months detained without trial during President Moi’s regime.
Many may have thought he would ‘retire and keep his peace’ but Dr Mutunga, the activist is not about to keep quiet.
When former Chief Justice Willy Mutunga took over as the head of the Judiciary in 2011, he spoke of a horrible institution.
The system he inherited was well-known for inefficiency, corruption, and bias. And four months after being sworn in, Dr Mutunga said of the Judiciary: “We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. We found a Judiciary that was designed to fail.”
By the time he was leaving office after attaining the retirement age, Dr Mutunga had won back the confidence of Kenyans, helped increase the number of judges, and started new High Court stations in far-flung places like Garissa and Marsabit as well as decentralised the Court of Appeal to Kisumu, Nyeri, and Malindi.
Dr Mutunga’s only noticeable ‘low moment’ was when the Supreme Court came under huge criticism for how it handled the 2013 Presidential election petition, filed by ODM leader Raila Odinga and infighting with some judges of the top court, over the retirement age.
During his tenure, Dr Mutunga was not known to fear anyone and he took on both Parliament and Executive which at one time, he described as rogue and bandit economy.
And when he took on President Uhuru Kenyatta recently, for leaving out six judges who had been recruited by Judicial Service Commission (JSC), many were not surprised.
In a terse letter to the President, Dr Mutunga decried what he termed as innocuous and blithe breaches to the Constitution, warning that its occurrence, especially from the highest office was a signal to a dangerous dalliance with impunity.
Dr Mutunga stated that there is a reasonable presumption that anyone seeking public office would be familiar with the Constitution. He argued that such persons must read, re-read, and understand provisions specific to the office they seek. “If they haven’t, they don’t deserve to be in those offices in the first place,” he said.
He reminded President Kenyatta that nowhere in the oath he took states that “I will only obey and protect only those aspects of the Constitution that I find convenient and self-fulfilling; so help me God.”
Last Friday, President Kenyatta presided over the swearing-in of 34 judges at State House, Nairobi leaving out six.
The move attracted criticism from Kenyans who said the president has no power to reject judges as recommended by JSC.
The judges recently sworn-in included seven heading to the Court of Appeal, 18 to the Environment and Land Court, and 10 others to the Employment and Labour Relations Court.
JSC had recommended the appointment of 41 judges, but one died in a road accident last year. President Kenyatta, however, appointed 34 leaving out Justices Joel Ngugi, George Odunga, Weldon Korir, and Aggrey Muchelule, all currently serving as High Court Judges. He also rejected Evans Makori and Judith Omange Cheruiyot who had been appointed as judges of the Land court.
President Kenyatta rejected the six over alleged integrity issues surrounding them. In his speech during the swearing-in ceremony, President Kenyatta said, “As long as I serve as president, I will choose the right over convenient; the hard over the easy.”
But Dr Mutunga disputed claims of integrity saying the President did not present any adverse reports when the JSC called for the evidence, leaving the commission with no option but to recommend the appointment of the judges.
“The President’s conduct in the matter has been beneath the dignity of that high office. For two years he has subjected several advocates to untold personal suffering for no reason at all and called into question the integrity of serving judges and judicial officers without undue process.
He said President Kenyatta’s move to gazette the names of the judges two years later, speaks to an exercise of power that ‘is egregious, reckless and insensitive’.
Dr Mutunga, a law professor and civil society activist spent 16 months detained without trial during President Moi’s regime.
Many may have thought he would ‘retire and keep his peace’ but Dr Mutunga, the activist is not about to keep quiet.
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