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October 27, 2011 1:56 pm
In the time-honoured tradition of Kenya’s big men, one Friday afternoon in January, President Mwai Kibaki elevated three people to head the judiciary. The announcements were made via a terse media release from State House that expected no dissent.
Not only did Mr Kibaki’s coalition partner, Prime Minister Raila Odinga, loudly and publicly object to the appointments, but the entire country, waving the new constitution in the president’s face, rose up in outrage, so much so that State House was forced to beat an embarrassing retreat.
This collective act of defiance was perhaps a measure of how far Kenya had come since the promulgation of a new constitution in August last year. Under the new constitution, all important nominees to public positions have to undergo a rigorous and transparent vetting process.
It was this changed procedure that favoured the nomination of Willy Munywoki Mutunga, 65, to the position of chief justice. A legal scholar and a political detainee, Mr Mutunga’s nomination initially seemed unlikely.
Not only had he never been a sitting judge, he had served in the trenches of civil society whose opposition to the system limited the kind of networking necessary to win him allies among the men and women that sit on the vetting board.
In addition, Mr Mutunga has over the years cultivated a reputation as a liberal – almost a no-no in broadly conservative legal circles. He wears a stud in his right ear, carries his laptop in a backpack and prefers the cultivated informality of the civil society activist crowd to the sniffy legal eagles in central Nairobi.
Running the Ford Foundation’s regional office for the past five years, Mr Mutunga has actively funded some controversial causes, including the nascent gay and lesbian community. It was therefore not unexpected that questions about his liberal bent, emerging in rather pedestrian fashion from his ear-stud (and therefore his sexual orientation), would become a sticking point.
Most Kenyans have never known an independent judiciary. Corruption, executive interference and incompetence have become the hallmarks of the justice system.
It was judicial complicity with State House that precipitated the political crisis after the botched 2007 presidential elections. The image of an acquiescent chief justice swearing in Mr Mwai Kibaki as night fell remains one of the most central to the months-long orgy of post-election violence that pushed Kenya to the brink of civil war.
Recognising this, the vetters at the Judicial Service Commission unanimously recommended Mr Mutunga.
It was a risky choice. With no experience of judicial administration, Mr Mutunga has had to contend with the grey beards who, it is said, were most unhappy with the idea of this interloper as their boss.
Just as daunting is the challenge of cleaning up the Augean stables. There are more than 2,000 pending criminal cases, some not heard for as long as 20 years because files were missing or the records were incomplete. The judiciary is overworked and understaffed. Low staff morale is made worse by cronyism, nepotism and tribalism, as well as shockingly low remuneration.
Mr Mutunga says: “We found an institution so frail in its structures, so thin on resources, so low in confidence, so deficient in integrity and so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. It was designed to fail.”
In the four months since his appointment, however, Mr Mutunga has moved courageously to sort out the mess.
Mr Mutunga and his revamped team have been working behind the scenes to address what he regards as the nuts-and-bolts issues: corruption and incompetence.
He has moved to digitise 60m pages of cases covering a decade, a project that should bring to an end the famous courtroom litany of lost files.
He has also directed the fast-tracking of cases, many of them more than 10 years old, while putting pressure on slow-moving judges and magistrates to deliver rulings through the introduction of performance contracts.
Kenyans and investors who have long shunned the judicial process, preferring to settle their matters privately, can begin to hope for change. But Mr Mutunga’s supporters say he is likely to face severe resistance from the old guard.
While sitting judges have had to undergo the humbling vetting process to reclaim their old jobs, it is this very process that will make it doubly difficult for the new chief justice to secure internal support for his transformative vision. “The ends of justice cannot be met when the judiciary suffers an integrity deficit, and is also perceived as the playground of the corrupt,” Mr Mutunga says.
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