Mutunga, JSC have wasted chance to demonstrate credibility of Judiciary

By Barrack Muluka

The Judiciary Service Commission (JSC)’s decision to snub the Parliamentary Justice and Legal Affairs Committee summons is unfortunate in the extreme. On the one hand, it smacks of the hubris, opaqueness and impunity that we appointed a new JSC to correct. On the other hand, Chief Justice Willy Mutunga and his team have shot themselves in the foot. They have opened up an awful credibility gap about the JSC in the public eye. Indeed, some would say they have widened an already existing credibility gap.

We appointed the current JSC in the open. That alone ought to remind them that they must always be above board. In a country in the ranks of the global headquarters of corruption and impropriety, a reformist Judiciary must stay above suspicion. It must be like Caesar’s wife. The story has been told about Julius Caesar who divorced his wife. It was not because she had been unchaste. It was simply that she had been suspected of being unchaste. It is bad enough for the Judiciary to be suspected. The accusations that a section of the JSC has recently made against the Chief Registrar of the Judiciary, Gladys Shollei, and her counter accusations leave the image of the Judiciary badly injured. Hiding behind legal masks to avoid public scrutiny in the matter only damages the tattered institution further.

If Chief Justice Willy Mutunga and company do not care about public opinion on their ongoing drama and posturing, we can only put it to Orwellian transformation. Their altercation reminds you of the death of a beautiful dream. Nowhere is this best captured as in George Orwell’s Animal Farm. The dream dies at the point where the identity of the revolutionaries fuses with that of the systems’ guys.

Listen to George Orwell, “There was the same hearty cheering as before, and the mugs were emptied to the dregs (note my emphasis). But as the animals outside (the citizens) gazed at the scene (the government), it seemed to them that some strange thing was happening. What was it that had altered the faces of the pigs (the revolutionaries)? Some of them had five chins. Some had four, some had three. But what was it that seemed to be melting and changing?”

We may want to ask, what is it that seems to be melting and changing in a Judiciary that we had so much faith in only two years ago? Hear Orwell again, “An uproar of voices was coming from the farmhouse (the Judiciary). They (lesser animals – or say the citizens) rushed back and looked through the window again (of the Judiciary). Yes, a violent quarrel was in progress. There were shoutings and bangings on the table, sharp suspicious glances, furious denials. The source of the trouble was that Mr Pilkington and Napoleon had played an ace of spades simultaneously.”

Look at the Judiciary again. There have been shoutings, bangings, suspicious glances and furious denials, followed by a sudden ceasefire. Did some people play an ace of spades simultaneously? Who? In any event, this is what the strange happenings of the past fortnight leave you with. Orwell again, “Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already, it was impossible to say which was which.” The dream was dead.

Justice Mutunga and his team have missed a golden opportunity to demonstrate the chasteness of the institution we have placed in their hands. This is not about the high sounding legalisms and assorted learned masquerades that they have elected to hide behind. Dr Mutunga and his people say that they are an independent body. Independent of whom? That they cannot be interrogated by Parliament. Are they so unfettered? Nobody can routinely interrogate them, supervise them? Must we resort to their removal as our only recourse? How so quickly has the CJ and his people forgotten that we all participated in their appointment, in the open? After televised public interviews, we subjected them to the same committee they now claim not to recognise. When the committee was satisfied with them, it tabled their names in the House. Parliament then endorsed them and allowed the President to appoint them. You cannot claim that the appointing authority – which is a whole organic institution – cannot monitor your work and invite you to clarify certain things. In any event, the summons was not about a case in court. It was about administrative and financial issues. Parliament as a public watchdog has a right and authority to investigate and assure the public that all is well with their funds under these people’s watch.

As if their snubbing of the Justice and Legal Affairs Committee is not bad enough, they now appear to be developing cold feet over Mrs Shollei. We have heard that they have reached a truce of sorts with her. Shollei had promised them that she was going to spill the beans. What beans was she going to spill? Is the JSC afraid of something we should know about?

I can tell the CJ this for free. When you are too close to tragedy, you don’t see its gravity. You deride public opinion. You say, “Who are they, anyway? Do they know the law!” Sir, beware the hubris, the hubris! Soon, it will too late to do anything about it. Sir, the integrity of the Judiciary is sinking under your watch. The last nail will be your coming out to tell Kenyans that you have “internally resolved the little misunderstanding that this matter was.” We shall lament the tale of another set of icons done their hour upon a treacherous stage. The interment of yet another lofty dream. For the stakeholders’ circle in this matter has expanded. It is no longer an internal affair. The public wants to know the facts. Only that can redeem the Judiciary’s sinking reputation. And our dream. Good luck.

The writer is a publishing editor, special consultant and advisor on public relations and media relations