Mixed bag for Chief Justice Willy Mutunga as he exits Judiciary

Western Parliamentary caucus led by Budalangi Mp Ababu Namwamba addressing the press on the importation of sugar from Uganda and how its likely to kill the industry in the country. He is flanked by the chairman Sakwa Bunyasi. Ababu feels that Mutunga has not lived up to his expectations. (PHOTO: TABITHA OTWORI/ STANDARD)

Chief Justice Willy Mutunga leaves the Judiciary with a mixed bag of praise and criticism on his five-year tenure.

While some described his tenure as a success, others saw it as a failure. 

Consumers of justice cited the increase in the number of judges, the setting up of courts in the counties and the increase in the number of magistrates, plus the resolution of longstanding cases as some of Dr Mutunga’s achievements.

“I was the chairman of the Justice and Legal Affairs Committee that interviewed Dr Mutunga for the position of CJ. At that time there was a lot of optimism that his appointment heralded a new dawn in the Judiciary. Even though as a party he came in with good intentions, he has not lived up to his expectations,” Budalang’i MP Ababu Namwamba said.

The ODM Secretary General avers that the point of departure is the manner in which the Supreme Court ruled in the presidential election petition in 2013 where CORD leader Raila Odinga had challenged President Uhuru Kenyatta’s election.

“In the presidential ruling, Kenyans expected a thorough, very reasonable ruling in what we call in law, locus classicus. A ruling that resonates beyond the realms of time. But instead the court gave a single line ruling and began justifying their ruling thereafter. It was a big disappointment. The result, public confidence in the Judiciary remains low. The quality of rulings remains suspect,” Mr Ababu said.

Succession battles

He criticised the manner in which the CJ handled his succession.

“Look at the many cases of division and succession battles we are now experiencing. He did not handle the removal of Deputy CJ Nancy Barasa, Registrar Gladys Shollei and even the current DCJ Kalpana Rawal well,” Ababu said.

Mutunga critics say he failed to unite the Judiciary.

“As a CJ appointed on the platform of reforms, he failed to rise to the occasion. He has left the Judiciary worse than he found it,” lawyer Nelson Havi, one of Mutunga’s fiercest critics, said.

But to a host of others, Mutunga has done the best he could under the circumstances.

“You cannot fault the reforms in the Judiciary. He is quite clear on what he wanted the Judiciary to be. The challenge is that he may have under estimated the magnitude of the challenges in reforming the Judiciary,” Amani National Congress leader Musalia Mudavadi said.

“He needed a lot of support from the Executive, Treasury, and even Parliament for a Judiciary to function properly.”

Mutunga is credited with expanding the Judiciary’s physical infrastructure.

“He has done very well in terms of improving the judicial infrastructure and the circumstances under which he took over after the promulgation of the Constitution. He has restored trust in the Judiciary, an institution Kenyans have more trust in than the other two arms of government (Executive and Parliament),” Mandera Senator Billow Kerrow said.

Mr Kerrow said Mutunga reduced a backlog of cases and thereby ensured the poor accessed justice.

“There are cases that used to take more than 10, 15, or even 20 years to conclude. He has managed to have many cases settled in the shortest time possible,” he said. He opened up the Judiciary to the public.

“The CJ, given the conservative nature of the Judiciary, has done well. He has not shied away from making rulings that would otherwise have been a problem in the old constitutional order,” said Kerrow.

Most people do agree that under Mutunga’s tenure, more people accessed courts and to an extension justice.

“He has expanded the Judiciary to the remotest parts of the country in the spirit of devolution,” said Council of Governor Chairman Peter Munya.

“He has spoken his mind, including on graft,” said former Deputy Speaker Farah Maalim.

Some cite decentralisation of the Employment and Labour Relations Court in 2012 to cover Mombasa, Kisumu, Nakuru, Nyeri and Kericho as some of the achievements, while others pour cold water on the claim.

In 2016, the Mutunga gazetted Malindi, Machakos, Meru, Eldoret, Bungoma and Garissa as sub registries of the Employment and Labour Relations Court.