Willy Mutunga: All Is Well Until You Fight Graft

Chief justice Willy Mutunga

Chief justice Willy Mutunga

What do you do when you are not working as CJ?

The position of the CJ is a 24/7 assignment involving judicial, administrative, ceremonial, and public engagements. I have enormous oversight duties as Head of the Judiciary and Chair of JSC. I read a lot. I do yoga every morning and at night for at least 30 minutes. I meditate every night; walk and go to the gym at least twice a week.

You have been granted divorce recently. Do you plan on marrying again? Are you in a relationship?

My divorce petition has been in the public domain. The litigation has not ended. It is at the Court Appeal. What I have is a decree nisi and not decree absolute . It is the latter that gives me the capacity to marry. The former allows me to be in a relationship.

I have thought through your question on whether I am in a relationship is one of those questions a state officer should answer in compliance with the constitutional values of transparency and accountability. Judicial independence faces daily challenges from many forces: executive, parliament, politicians, business, civil society, ethnic communities, family, and friends.

The last three forces – tribe, family and friends – tend to be downplayed, yet they are very critical. Judicial independence must be comprehensively conceptualized to include non-State actors, and we must always remind communities, friends and family that the oath of office keeps them at bay too. State officers must disclose their marital status, their family, and friends. Judicial officers face pressure from communities that seek to ethnicize their public office. Family and friends can be serious conduits of corruption, and the subversion of judicial independence. I believe these disclosures that ordinarily belong to the private domain, have been elevated to the public domain by the Constitution.

Do you engage in sporting activities? If yes what sports and why? If not why?

I was engaged in various sports from my childhood until 1989 when, while playing football, I suffered a back injury, an injury to my right knee and fractured my right wrist. I stopped playing football and I was advised to walk and never jog. I took to swimming, but I hardly have time nowadays.

If you were to mention one thing you stand for what would that be? Why?

This question is restrictive as I stand for many things! However, I would prioritize

the implementation of the Constitution which has a transformative vision of our society. It is a transformative charter, a codification of decades of struggle, aspirations and ambitions for a progressive, prosperous and democratic Kenya which I have been part of.

Do you think you have done a good job in midwifing the Constitution?

Yes, at various levels: jurisprudentially, administratively, and politically as head of an organ of State. The Judiciary has spearheaded dialogue and collaboration with the other organs of State, and counties, without compromising its independence. I have played these various roles by upholding my Oath of Office and by fidelity to the Constitution. One of the things I am proud of as Chief Justice at this transitional moment is that the Judiciary has played a significant role in protecting and upholding the Constitution amidst great opposition and confusion and, admittedly, learning. We have firmly resisted the unmaking of the Kenya Constitution, 2010 and Kenyans must not for one moment underestimate the push back from retrogressive forces.

In the eyes of some Kenyans your handling of the presidential petition in 2013 reflected your performance as Chief Justice. What would do differently given another chance?

No single case however important, emotive or divisive can reflect the performance of a CJ in his varied roles. I will write about this petition in my forthcoming memoir, and it will be a lengthy commentary on all aspects of the petition. In the spirit of transparency, and imbued by a sense of learning both for the academy and the Bench, I gave out all the petition documents to all the law faculties in our universities, so that they make their own analysis and determinations on the jurisprudential aspects of that petition. The future Supreme Court, the Universities, the Bar shall all benefit from this scholarly inquiry.

What are your regrets?

None that I can think of immediately but life after office will afford a better moment of reflection. I have enjoyed the opportunity to serve. With the support of JSC and colleagues, I have pushed the needle of change, sometimes in the face of strong subversion both from within and without, but the change agenda has prevailed. These are the dynamics and outcome I expected, the few surprises notwithstanding.

Given a chance would you take up the job of the CJ again?

On June 16, 2017 I turn 70. I cease to qualify for

the job of the CJ. The Constitution does not give me that chance! You can’t reverse the hand of time.

What have you learnt?

Wait for the book, Transformation from the Margins: Transforming Judiciaries in the Global South, the Kenyan Case. But I have also witnessed, not so much learnt, that in Kenya, all is ‘well’ until you start confronting corruption head on. At that point, all hell breaks loose, and the insidious and elaborate corruption networks rear their ugly heads in all manner of surprising places, including in oversight institutions that are created to help. You must not cede one inch to them.

Does the Office of the CJ have enough or too little powers to effectively lead the Judiciary?

Once the capacity of the Office is institutionalized (and this is an ongoing project since 2011), and a democratic balance is struck on the various roles of the Office, then one will be able to say that the vision of the Constitution of that Office will have been fulfilled. The Office of the CJ must be professionalized by a cadre of professionals to enable it discharge its varied mandates. The Office of CJ is beyond that of judge of the Supreme Court. It plays a leadership, oversight (including financial), administrative, intergovernmental relations, international relations, public communication functions. The office requires a variegated skill-set to function optimally and effectively as the head of an organ of State.

Where is the Judiciary strongest and weakest?

The Judiciary consistently and continuously reinforces its strengths and rescues its weaknesses. That is the history of our transformation since 2011. In my 120 Days Speech I said I found a Judiciary that had been designed to fail because of weak structures and poor funding. We have dealt with each of these: increased numbers of judicial officers, expanded access to justice by making more courts available, invested heavily on infrastructure ( we have over 100 court reconstruction and rehabilitation programs countrywide); and produced many policies that the Judiciary didn’t have. We have secured more funding from Ksh. 3 bn when I assumed office to about Ksh.17 bn now.

What are the issues you would handle differently if given a chance?

The leadership of the judiciary, its organs, and staff collectively have been implementing a blue print, the Judiciary Transformation Framework 2011-2016. Our performance and reflections on its implementation are contained in our annual reports, the State of the Judiciary and the Administration of Justice (SOJAR).

Some people see you as hands off leader who was quick to entrust others [with responsibilities] and when that led to crises you joined Kenyans in crying. Why were you a reluctant CJ?

I am not such a leader. I have led the Judiciary under the dictates of the Constitution. There are no crises in the Judiciary I have not solved. I know “some people” miss the old monarchical CJ the way they miss the imperial presidency. They can continue crying, but I have never joined them in that wailing. I believe I have been active and energetic and, occasionally, as a scholar, analytical and reflective.

I do not even know what a reluctant CJ looks like! May be one that subverts the Constitution at every turn? I do not think a reluctant leader would have consistently fought corruption directly as I have, both in the administrative and judicial wings, amidst outsized opposition from elements in the Executive, a section of the National Assembly and the media. A reluctant CJ would not have managed to push through performance contract in the Judiciary. A reluctant CJ would not have led the struggle to reduce case backlog , including some that have been in the system for 30 or 40 years such as Kubai, Koinange and others such as Ambala and JM Kariuki that are about to be concluded now. A reluctant CJ would not have stood for the independence of the Judiciary.

What is your legacy?

My legacy is not mine to write but the better way to ask the question is: what were your terms of reference when you became CJ and how do you think you have executed those ToRs?

I think my ToRs were about seven:

First, defend, protect and uphold the new Constitution. On this, my colleagues and I have done well. Just look at the jurisprudence in the Kenya Law Reports or the Annual State of Judiciary Report that we gazette and submit to Parliament.

Second, reclaim public confidence in the institution, especially to avoid a repeat of violence in the 2013 elections. This we did. And the public outreach programs through Judicial Marches, Open Days, establishing Customer Care Desks, being friendly to litigants have helped in this regard. But building public confidence is a daily grind as one incident in one court may influence perception of  a very large and complex institution.

Third, reduce case backlog. This I have done by reducing this from an estimated 1 million cases in 2011 to 519,000 in 2014, and declining. By the time we complete the on-going case census, I believe it will be much less. During the Justice@Last Initiative, we cleared 55,328 old cases.

Fourth, reclaim and reassert the independence of the Judiciary. This has been achieved – just look at the decisions of the courts, and judges will tell you that the era of phone calls from the Executive or CJ to interfere with cases has disappeared in the last five years.

Fifth, improve on internal organization of the Judiciary. This has been accomplished through a number of policies. The country will be surprised that the Judiciary did not have a Finance Procedures Manual, Human Resources Policy, Transfer Policy for judges. We never even used to induct judges or staff. These have and are being done. We also have a Disability Policy; JSC Charter and a Strategic Plan; draft Gender and Sexual Harassment Policies too.

We have introduced Performance Contracting, improved staff welfare where staff now have medical cover, mortgage, and car loan facilities; promoted nearly 500 staff who had stagnated for as many as 10-15 years, in some cases doubled or tripled staff salaries; revived a learning culture by reviving the Judiciary Training Institute, which used to hold less than 5 trainings in a year to the current 65, establishing a CJ Scholarship Initiative that annually takes magistrates and staff for further education abroad, and forging a close working relationship with the universities. In 2011 only about 15 court stations had station vehicles; today, 116 of the 120 stations have vehicles which are used for mobile court services.

Sixth, improve access to justice. This has been accomplished as the number of judges has increased from 53 to 143; magistrates have shot up from 316 to 443, Kadhis have increased from 15 to 52. The number of High Court stations have risen from17 to 34, Court-Annexed Mediation and Alternative Justice System are at an advanced stage, to be launched in May. The Court of Appeal has been decentralized to Malindi, Nyeri Kisumu and the waiting time in that court for civil matters has reduced from a high of 12 years to a low of 1 year in out stations. Before this court used to circuit once or

twice a year in these towns; now the court has a permanent seat. And we have achieved near perfect gender parity in the Judiciary. In 2011, the Court of Appeal had no woman judge; now, out of 25 judges in the court, 8 are women.

Seventh, fight corruption. This we have done with resolve and grit. We set up the Office of the Judiciary Ombudsperson, established the Internal Directorate of Risk and Audit that is auditing all court stations, and is directly answerable to the JSC and CJ. We have referred judges to disciplinary committees and Tribunals when allegations are made instead of sweeping them under the carpet; more than 60 staff members are facing disciplinary proceedings, 20 of whom are account clerks/accountants . The Judiciary Land and Assets Recovery Committee is making excellent progress.

These achievements are not mine alone. Some of them build on the work done by my predecessors, many of whom operated under extremely difficult circumstances. The JSC and colleagues have been very supportive as well, and I must thank them. And inspite of our occasional disagreements, the Executive and Parliament have also been supportive.

You are leaving the Judiciary at a time of uncertainty or instability in the Supreme Court. What do you have to say?

It is because complaints or petitions against judges by the public are no respecter of the retirement schedule of the Chief Justice. The constitutional provisions on discipline of judges are active 365 days of the year. A petition may arise in June 2016 or June 2017 at any other time. Question is: when a Chief Justice receives petitions against judges alleging corruption and misconduct, does the CJ push it under the carpet in pursuit of ‘institutional stability’ or submits it to the constitutional process in pursuit of integrity or truth? If he conceals it, he becomes complicit and has betrayed and breached his Oath of Office and the Constitution. A stability that rests on rotten foundations is a façade, and entirely false, and will soon crumble. What you call uncertainty are important growth tests for our Constitution and institutions, and I am sure they will deliver. Kenyans should not worry as long as the institutions operate within the Constitution and the law and are guided by pursuit of truth and justice. The Americans are facing one now in their Supreme Court.





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