How the Willy Mutunga succession plays out will affect the credibility of the entire Judiciary for a generation. The Chief Justice and President of the Supreme Court of Kenya announced that he would leave the Bench in mid-2016, more than a year before the next general elections in August 2017. This date has not been a mystery; all the interested parties in the succession of the Chief Justice have known this for at least six months. But in what may appear to be typical Kenyan fashion, unless the tea leaves have been read by those that read tea leaves and bets placed by those placing bets, nothing seems to be happening. That impression is wrong.
No one really expected Mr Mutunga to take the line that he did after he was appointed Chief Justice of Kenya. No one. Not least his boosters. If one cares to remember, when civil society was co-opted by Mwai Kibaki's government in 2003, what began as a trickle became a full-fledged river of sleaze and graft. None of the warriors of the Second Liberation remains untainted. Wihere we have concentrated overwhelmingly on Anglo-Leasing and the farces that were the Radical Surgery and Judicial Vetting, less grand graft and sleaze surged out of sight of the people.
Mr Mutunga took such a radical approach to power, and the power to control the Judiciary's money, that he has been unable to do anything of significance. Not in the ways that matter to those that matter in the corridors of power in this town, anyway. First, he challenged the Chief Registrar's penchant for pomp and circumstance. He had to be shoe-horned into his swanky new Mercedes-Benz S350. How they managed to pry his rucksack from his hands remains a mystery. Second, he said no to the 300 million shilling mansion and has never set foot in it. Third, when it came to the Chief Registrar's own problems, he did not lift a finger to help and she is now the subject of an increasing number of anti-corruption complaints. Finally, he may have been slow off the mark, but whenever his judges got their fingers burnt in one fiddle or the other, he let them stew in their own juices.
The likes of Aden Duale and other like-minded windbags may take political advantage of the Chief Justice's travails, but they fail to appreciate the effect of the Mutungi Way on the Judiciary. He may not have succeeded in cleaning out its Augean Stables, but Mr Mutunga has reminded Kenyans that Judges and judicial officers are not gods and that they cannot act with impunity and expect to live a long and untroubled life. When the finger of suspicion is pointed at you, you will discover that the CJs robes can only be occupied by one person: the CJ. No hiding behind them either.
I have no idea whether Judge Tunoi has been the beneficiary of part of a $3 million bribe or whether any of his colleagues on the Supreme Court have benefitted from that sum and I don't care. It used to be that when a Judge was accused of something, all he had to do was to file a suit for defamation and bring the might of his colleagues on the Bench to bear on the miscreant. Large sums were invariably awarded to the judges and little by little, judges became part of the odious stench emanating from the government. Mr Mutunga has shattered that cozy illusion.
I will not purport to stand in judgment of the Chief Justice; that I shall leave to history which has a very long view of things. But I will declare that he has done more to show Kenyans that the Judiciary can be better. If it takes the [complete reconstitution of the Supreme Court, I have a feeling Willy Mutunga, Chief Justice of Kenya and President of the Supreme Court, won't care one fig about it.
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