Retired Chief Justice Willy Mutunga remains active in his agitation for reforms, with constant calls for respect for the rule of law and constitutionalism in the governance processes. He spoke to Journalist Barack Oduor on his tenure and what he thinks the future holds for Kenya.
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Retired Chief Justice Willy Mutunga remains active in his agitation for reforms, with constant calls for respect for the rule of law and constitutionalism in the governance processes. He spoke to Journalist Barack Oduor on his tenure and what he thinks the future holds for Kenya.
Q: Your tenure as Chief Justice helped demystify judicial proceedings and practices, thereby making the courts less formal and more user-friendly. What was the significance of that move?
A: The formal justice system is accessible to only 5 percent of Kenyans. We found this justice opaque, delinked from the vision of the 2010 Constitution, not pro-people. We knew we were to embark on a journey of justice for all by engaging the African justice systems that catered for the rest of the 95 per cent. To do this, we needed the support of the formal justice system.
Q: You worked to ensure the decentralisation and decongestion of the court system to reduce case backlogs and increase access to justice. How did you make this possible in an arm of government where the elite wants to maintain the status quo?
A: The Kibaki-Odinga Grand Coalition increased the Judiciary’s budget from Sh3 billion to Sh17 billion. We were able to implement the Judiciary Transformation Framework 2012-2016. The JTF involved building courts in what our detractors called “far-flung areas” like Garissa and Lodwar.
We increased Kadhis courts from 14 to 57. We decentralised the Court of Appeal. We increased mobile courts in the “far-flung areas.” The elite did not want backlogs. The elite wanted access to justice. The Judiciary reforms were for everyone, they were inclusive of the elite and the working classes. The African justice system projects started us on our path to delivering justice to all Kenyans.
Q: You have continually defended the new constitution, often at the risk of your own life and even reputation. What is the foundation of your belief in the rule of law?
A: I did not know I risked my life and reputation for respecting, upholding, and defending the 2010 Constitution. Our 2010 Constitution is about social transformation. It has significant sites of struggle for such social transformation. I believe that if we had a political leadership committed to its implementation, we would make essential steps towards social transformation. And these steps could be small revolutions heading to the great one.
Q: Because of a quest for a graft-free Judiciary, the country’s history is littered with reports of commissions established over the years to rid the Judiciary of corrupt practices. What makes it difficult to end corruption in the Judiciary?
A: You may as well have asked what makes it difficult to end corruption in the country. All I need to say is that the Constitution has a framework for dealing with corruption in the Judiciary that is rigorous. I believe corruption in the Judiciary can end if the declarations of wealth which are filed routinely every two years were used for forensic lifestyle audits. The culprits would be caught. Finally, let us be clear that we have incorruptible women and men of integrity in the Judiciary.
Ending corruption in our country will require an alternative political leadership that will not steal and waste our resources, a leadership that is committed to end corruption. And significantly, I must add, a political leadership that is ideologically and politically different from the KANU leaderships we have had for the last 60 years.
The KANU leadership still continues, and they have always been slaves of foreign interests. An alternative political leadership in Kenya must, at the minimum, be anti-imperialism and anti-KANU’s dictatorship that has ruled since independence.
Q: Residents of northern frontier counties have felt treated like second-class citizens while seeking identification documents like IDs and passports. What is the solution to this discriminative tendency that has gone on for decades?
A: The implementation of the 2010 Constitution is the solution. The northern frontier citizens, their county governments, and their politicians must breathe life into the Constitution so that the continued colonial and postcolonial gross injustices against the people of the NFD (northern frontier districts) can be addressed. The Judiciary continues to do its part in this social transformation by promoting African justice systems in NFD. We now have high courts in Garissa, Lodwar, Marsabit, Maralal, and Kapenguria. The Judiciary has set up High Court sub-registries in Moyale, Wajir, and Mandera.
Q: The infamous Wagalla massacre is one of the greatest transitional justice issues in Kenya today, committed by the government in 1984 in Wajir. How can such injustices be addressed with reports about them gathering dust on government shelves?
A: They will be addressed when we have an alternative political leadership that I have talked about. Let us be clear, the massacre has never been forgotten and I have seen resistance movements that make sure that the issue is never swept under the carpet of status quo regimes that do not want to do the right thing.
Q: Many Kenyans have thought that the Supreme Court decision declaring the 2013 election “free and fair” makes your legacy chequered. Does that ruling weigh on you sometimes?
A: Who cares about legacy, be it glorified or chequered in this country of politics of ethnic and other divisions? Do you believe for a moment that the Supreme Court will ever deliver a decision in a presidential election petition that will be accepted by all Kenyans?
One has to be very naive to believe so. I see that like other Kenyans you believe I am the only one who made the decision. There were six of us who made a unanimous decision. Do you care about the legacies of the other five judges? The country is ruled by a comprador class that uses presidential election petitions as a continuation of its politics.
Until Kenyans realise that both the government and the opposition are led by members of the same class, they will not see any social progress. The insanity of ethnicity, other divisions, and monetisation of politics must end before we can talk about free, fair, and credible elections. And why don’t we blame the politicians who openly buy votes before those who lose run to the courts for justice when they actually get there with their hands dirty?
Have you not witnessed how politicians and their parties fight to enslave IEBC? If they wanted free and fair elections, they would not fight to enslave IEBC. If you want the details of the 2013 Presidential petition you will find my views in my forthcoming memoir – Studded Justice.
Q: What is it like to be a retired Chief Justice who is in activism, and what has fighting for the downtrodden taught you about Kenyan society?
A: You got that right: I have retired but I am not tired! I have faith in my fellow citizens in our Motherland. I believe it is the Kenyan people who will liberate our country.
Q: What future do you see for Kenya?
A: Our future is integrated into the future of other countries on the planet. If Kenya is to have a future, it must have a political leadership that believes that the country is not free and independent. Indeed, we do not own this country. And that can be said of leadership in Africa and the Global South.
These collective leaderships must have a clear understanding of what ails the planet, who controls its status quo, and how citizens of both the Global North and South will identify their common enemy, forge a consciousness of the liberation of the planet from its unacceptable and unsustainable status quo.
I still believe in that planet that is just, free, peaceful, non-militaristic, non-racist, gender just, non-sexist, non-eugenicist, that is devoid of negative nationalism, domination, exploitation, and oppression, non-homophobic, ecologically safe, equitable, prosperous and socialist is possible. I see global citizens who have not lost their humanity, which is the basis for struggles to liberate the planet. I see the future of Kenya in that context.
