Kenya's Chief Justice Willy Mutunga. PHOTO | FILE
By JOHN GITHONGO
In Summary
- CJ Mutunga thinks Kenya is again on the precipice and may flip over
- What I hear are ominous messages of strife, violence, civil war, and sad prospects of dismembering our motherland. Am I the only one hearing these messages?
- At the moment, I do not like the state of the country’s preparedness for peaceful, fair, and free elections. My decision is in part aimed at triggering national dialogue on this critical issue.
MUTUNGA: I came in with a mission to fight corruption, and judiciary has made strides in fighting the vice
Part II of the Big Interview - Dr Mutunga's personal life
MUTUNGA: I have had my dark and light sides with shades of grey on both sides
Part III of the Big Interview - Justice Mutunga’s professional life
MUTUNGA: My decision to retire early should trigger dialogue on fair elections
Dr Willy Mutunga, Chief Justice and president of the Supreme Court of Kenya, speaks in the final part of a series of interviews.
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There are concerns in some quarters — strongly expressed
— that by leaving office a year early the Chief Justice allows counter
reformers to undermine this critical institution at a critical time.
Are these concerns based on an understanding of the basis of
this decision? From where I sit I believe that the country is again
standing on the precipice and this time round it may flip over.
What I hear are ominous messages of strife, violence, civil war,
and sad prospects of dismembering our motherland. Am I the only one
hearing these messages? On this basis, therefore, I decided that the
process of recruiting my successor needed more than two months.
Elections will take place on August 4, 2017 and if the JSC
started the protracted recruitment process next year there would be
sufficient time to accomplish this goal. I expect there will be many
candidates seeking to be the next CJ and president of the Supreme Court.
Public participation will lengthen the process.
Parliament may reject some of the nominees by the JSC, resulting
in starting the process from scratch. Swearing in the next president in
the absence of a CJ could trigger a serious constitutional crisis.
At the moment, I do not like the state of the country’s
preparedness for peaceful, fair, and free elections. My decision is in
part aimed at triggering national dialogue on this critical issue.
Counter-reformers have resisted the transformation at the
judiciary for the past four years. The resistance will not abate as I
finish my fifth year. The counter-reformers I fear are collectively the
ruling elites and their cartels. They have the potential to undermine
all institutions and our motherland. I do not believe the
counter-reformers will cease to exist if I stayed an extra year. The
dangers of one year are very clear to me and they are in part the basis
of my decision.
Jurisprudentially, what is the legacy of the Mutunga Supreme Court? Both positive and negative in your opinion?
I believe the Supreme Court has developed some critical pillars
in our search for a progressive jurisprudence. Our mainstreaming of the
theory of interpreting the 2010 Constitution is one of the pillars. Our
position on the jurisprudence on devolution is sound and patriotic. I
believe we have clarified some key aspects of electoral jurisprudence.
I cannot predict how the pending matters on land, leadership and
integrity will be decided but these are also critical pillars of the
Constitution that we will have to decide on. Our idea of a progressive
African jurisprudence is one that will be nurtured in Africa and the
Global South. Some of our decisions have been followed in some other
jurisdictions.
Our decision in the 2013 presidential election will always be
controversial and I have promised to discuss it in another forum.
Advocates and scholars have criticised our development of progressive
jurisprudence. I believe that critique is part of our positive and
negative legacy. I welcome this critique. I leave it ultimately to our
objective and patriotic historians to judge us.
There is a sense of constitutional reversals under way
via a raft of legislation with regard to the media, security, and civil
society liberties and freedoms generally. What is your view in this
regard?
I believe these matters are currently in our courts. It would be
unwise to express an opinion, view, or comment on them as they may end
up in the Supreme Court.
You talked of the expansion vis-à-vis the Kadhi’s Courts
in our first chat. We have groups of elders gathering to ruminate
because fig trees have fallen and others claiming the legal problems, of
for example the deputy president, are caused by a curse in the
19th century. Could our legal system be better harmonised with
traditional beliefs, systems and processes of justice? Especially, with
regard to land rights and family disputes with many wananchi finding
themselves standing stupefied in alien, expensive, and hostile territory
when they go to court.
Only five per cent of Kenyans go to this “hostile territory.”
The rest go to other forums where they believe they will get justice.
You probably know that we had a dual legal system in the colonial system
and our traditional justice system was in the Native Courts.
The Magistrate Courts Act 1965 merged the traditional justice
with the so-called modern justice system. Article 159 of the
Constitution has restored the co-existence of the two systems. In my
opinion there was never a rupture.
Kenyans still stick to their traditional justice systems. We are
currently undertaking pilot schemes that look at the traditional
justice systems from the lens of the Constitution. I believe going
forward it should be possible to register decisions coming out of
traditional justice systems in courts of law to give them the legitimacy
they lack. When that happens we can rightly talk of access to justice
for all Kenyans.
I also believe that traditional justice systems will be ideal in
land and family cases in court annexed mediations and arbitrations.
They could also deal with minor criminal offences such as assault,
cattle trespass, affray, and threats to community peace by those who
subvert the social ownership of land and resources by communities. The
formal courts are the ones we have been transforming so that they do not
become places for the sale of justice.
During your time as CJ — and you have visited a range of
jurisdictions — which countries would you say Kenya has most to learn
from in terms of rule of law and the management of the judiciary and
why?
Article 2 of our Constitution decrees that the general rules of
international law shall form part of the law of Kenya. The same Article
provides that any treaty or convention ratified by Kenya shall form part
of the law of Kenya under the Constitution.
It has been argued that our Bill of Rights is the most modern in
the world since it has reinforced the strengths of the whole gamut of
human rights while rescuing the various weaknesses. I have been very
open about where we will look to develop our jurisprudence.
I have found the jurisprudence from such jurisdictions as India,
South Africa, Colombia, Venezuela, Ecuador, and Bolivia very useful
because of the history of their struggles for constitutionalism, rule of
law, and their human rights and social justice jurisprudence. So has
the constitutionalism and human rights jurisprudence of Hungary,
Germany, and Philippines. Since we are now developers and shapers of
international law, all global jurisdictions are worth looking at.
Our common law, which we received via Britain and the
Commonwealth, is foundational to our justice system and we continue to
change it, develop it, and make sure it does not subvert our
Constitution. As we develop our jurisprudence, it is my hope that we
will not pay unthinking deference to these other jurisdictions and that
our jurisprudence can be exported. We, too, can be teachers to the rest
of the world.
The judiciary is historically Kenya’s most conservative
governance institution, even more resistant to change than, say the
civil service. Why? How do we change this?
This narrative has to be historicised, interrogated and
problematised. It may turn out to be a dangerous stereotype. My
experience after working in the public service in the past four years
has convinced me that we have paid scanty attention to the
decision-making layer of the civil service. It may be the engine of our
problems and the mother of all cartels. It may be the sole arm of the
state!
In another life, what would you have been if you had not
gone the route you had? Could we have imagined Chief Inspector of
Police Mutunga, managing director of ABC Tyres Mutunga?
I believe if the Narc government had offered me the post of
Director-General of National Intelligence I would have considered it!
You know they offered me a slot in the Council of JKUAT.
What is home to you and where is home?
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