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Mutungas' ghost to haunt corrupt judges for decades

By Makau Mutua | February 7th 2016 at 00:00:00 GMT +0300

There are three distinct moments of national ecstasy in Kenya’s recent history. The first was the NARC election in 2002 when Kanu irrevocably lost power. The second was passage in 2010 of the Constitution. The third was the unlikely elevation in June 2011 of Dr Willy Mutunga to the Office of Chief Justice. Each of these singular — and historical — events bespoke of a moment pregnant with national renaissance. But as they say, fire often begets ash. To our collective national shock, each of these milestones have been still-born. NARC stole our dream. Jubilee is mutilating the Constitution. Regrettably, the Judiciary is full of vipers. The Judiciary — the guardian of Kenya’s legality — has become a cocktail of hemlock.

I want to focus only on one of those historic moments — the capture of the Judiciary by progressive forces in the person of Dr Mutunga. In the early days, Dr Mutunga set about to deliberately deconstruct and demystify the Judiciary. Methinks he was actually defrocking the judges. I will give several reasons why judges needed to be uncloaked. First — and I believe no sane person will dispute this — the Judiciary as an institution was a fountain of injustice. The very pillar of the justice system was the epitome of its exact opposite. No single Kenyan I know of ever believed justice could be done — and be seen to be done — in the courts. This was fact, not fiction.

Second, only God knows what the judges hid behind their forbidding gowns and strange wigs. At some point, a damning saying was coined by Mazingira Institute’s Davinder Lamba, the doyen of T-shirts slogans. Mr Lamba came up with the catchy phrase — Why hire a lawyer when you can buy a judge? Kenyans instantly believed the saying. That’s because they instinctively knew it to be true. The truth is that judges were only “remote” and “mystical” to hoi polloi. To the elite, the judges were worse than charlatans — they were men and women for sale to the highest bidder. I don’t speak ill of judges, but tell only the truth, and nothing but the truth. I’ve no forked tongue.

Third, if a truth-meter was available, it would show that the majority of Kenyan judges have been corrupt. But we have no truth serum to catch them. I personally believe that a forensic lifestyle audit would show — beyond the shadow of doubt — that most judges live way beyond their means. That’s why judges have never convicted anyone of substance. That’s why impunity rains on Kenyans. That’s why the wealthy and politically powerful can poke us in the eye and then say mta do? [What are you going to do about it?]. The business and political cartels own the judges, and they know it. I am damn certain that Kenya’s secret services have plenty of evidence against thieving judges.

Fourth, judges always had each other’s backs until CJ Mutunga showed up. That’s why many loathe him. They saw no evil, heard no evil, and spoke no evil. But CJ Mutunga has blown their cover, and refused to protect the corrupt webs and networks of cartels of judges, lawyers, brokers, businesspersons, politicians, and law enforcement agencies. Recently, we have been treated to allegations of high graft at the pinnacle of the Judiciary. Nothing has been proven, but I wouldn’t be shocked if the rot runs deeper than we think. After all, the CJ himself has already publicly said that the Judiciary is rotten to the core. He’s opined that Kenya is a bandit economy run by unrepentant thieves.

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This brings me to Dr Mutunga’s ascendancy to the pinnacle of the courts. Kenyans had a lot of hope in Dr Mutunga. Personally, I don’t think such hope was misplaced. I’ve argued endlessly with my friends — especially Prof James Gathii— the acclaimed international trade law scholar at Loyola University Chicago School of Law. We both have enormous respect for Dr Mutunga. My view is that the individual has a large historical role, and can often bend institutions to his will. Prof Gathii has a more restrained view of the power of the individual. He may be right, and may be wrong. Or we both could be right — Dr Mutunga’s legacy will loom large over Kenya’s Judiciary.

Finally, the cocktail of hemlock in the Judiciary is so strong that Prof Gathii has a salient point. Nevertheless, the fruits of Dr Mutunga’s reforms will only become evident with the passage of time. I believe he has exposed the nakedness of the emperor and unmasked their feet of clay. Yes, he will be gone by the end of the year. But his ghost will haunt the corrupt judges to their graves. They will be looking over their shoulders, and running from the light.

chief justice willy mutunga judiciary
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