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Willy Mutunga: Forget Supreme Court; tribunals best for election petitions

By Andrew Kipkemboi | November 27th 2021

Former Chief Justice Willy Mutunga. He regrets that there is a lack of courage within the Judiciary “to face the Executive.” [Courtesy]

Former Chief Justice Willy Mutunga presided over the hearing and determination of the CORD presidential petition challenging Uhuru Kenyatta’s win in 2013.

From his experience, he is of the view that there is no way the top court’s verdict can be agreeable to all sides given Kenya’s divisive politics and suggests that, perhaps, politicians should settle for trusted tribunals to clean up their mess, writes Andrew Kipkemboi

To understand – and to judge – Dr Willy Mutunga, who was Chief Justice between 2011 and 2016, one must first immerse themselves in his world. He is not shy to be unconventional and even ruffle a few feathers. Some consider him a radical.

I am meeting Dr Mutunga for lunch at Art Café at the Junction Mall off Ngong Road. At 74, he is a man at ease in all spaces.

After I requested that we push the lunch forward by 30 minutes, I make sure to be there 15 minutes earlier. He shuffles into the restaurant five minutes later just in time for lunch. I noticed that he is alone. No security men pushing people around to give him way.

“Is this okay for you or would you like somewhere else?” I ask him standing besides the table for two I had picked. “This is perfect for me.”

It being a Friday, the place is rather busy. “You are free to ask me anything,” he says as we set the ground rules. The ice had been broken.

He doesn’t adorn a Rolex Submariner Date on his wrist or any of those expensive watches; he has the most ordinary of watches. He is dressed in a turquoise blue T-shirt and matching khaki trousers with sneakers.

The menu arrives. He goes first. “Will you have your usual?” the waitress asks him, a signal that he is a regular. His usual is salmon pasta.

I take grilled fresh fish fillet served with Mediterranean roasted vegetables. The waiter returned moments later and said they had run out of salmon. “At least that says it is a popular meal.”

He then settles for prawns tagliatelle, “but a dry one”.

A lawyer, Dr Mutunga eschews the swashbuckling mien of most of his legal compatriots even after rising to be the top-most judge in the country. Of course, that rise remains intriguing as ever.

“When I applied (for the CJ job in 2011), I didn’t care what would happen because my contract at the Ford Foundation had just been renewed for three years,” he says with a sense of pride.  He believes he merited the job by far.

So he wasn’t really looking for a job, dismissing claims that he was Nairobi lawyer Ahmednasir Abdullahi’s candidate. Mr Abdullahi was a member of the Judicial Service Commission (JSC) then.

“I knew Ahmednasir Abdullahi when he was the chair of the Law Society and briefly as Dean at University of Nairobi Law School.”

“Some of those who fell by the wayside (in the interview) had skeletons in their cupboards which Ahmednasir Abdullahi rattled.” Referring to the volley of revealing questions - and some would say intrusive - in the live interviews from the lawyer.

Dr Willy Mutunga retired in June 2016. [File, Standard]

Arguably, until those CJ interviews in 2011, the country had not ‘experienced’ the 2010 Constitution.

Then, President Mwai Kibaki had forwarded a list of nominees to Parliament to be considered for appointment as CJ, Attorney General and Director of Public Prosecutions (DPP).

Dr Mutunga was not on the list, which had Justice Alnashir Visram as CJ, Githu Muigai as Attorney General and Kioko Kilukumi as DPP.

It was Raila Odinga’s close aide, James Orengo, who raised a query in Parliament about the list insisting that Raila (then Prime Minister) had not been consulted leading to the televised and quite frankly, riveting day-time TV drama.

His name was one among the 10 of the 11 applicants. He reveals that he and a couple of his close friends got down to some serious work in preparation for the interview that eventually got him the job.

“We wanted to look good, and offer the promise of change.”

But he was nonetheless disappointed with how his interview turned out. “The interview became more about my stud.” He is still wearing it.

How did he take that? 

“They were discriminating against me on the basis of dress. They are lucky I didn’t throw the Constitution at them.”

Our meal arrives and after a few scoops he calls back the waitress. “Could you ask the chef to make it a little bit more dry?” he says as the waiter and his plate disappeared behind a door. While making his order he had made that order. I am surprised he didn’t kick up a huge fuss about it.

I chomp on my fish. Not the most of my favourites, but it was a far better option. When it comes to food, I am inclined to go for the familiar cuisine.

He spends a few moments explaining himself yet again just like during the interview. And expresses his frustration at the JSC and the MPs (who vetted him) for seemingly misunderstanding the symbolism of the stud, which he says his ancestors passed on to him.

“Instead of focusing on my abilities, they dwelt on this small thing… why?”

He says he tried to explain to them “but they didn’t get it and I didn’t bother.” It is perhaps apt that he chose the title ‘The Studded Justice’ for his upcoming memoirs.

Besides the stud, there were insinuations that he could be irreligious. “I am a man of all faiths who has no problem going to churches, temples, synagogues or mosques.”

“I have never rejected the fact that there is a Supreme Being, but I reject the notion that our ancestors were devil worshippers.”

To him, the spirits of our ancestors are our protectors.

So what happened exactly during the 2013 presidential elections petition? There is a feeling among especially CORD (Raila Odinga) followers that their petition would have been upheld had the Judiciary accepted a tranche of new evidence demonstrating how the vote had been compromised by Jubilee (President Uhuru Kenyatta).

By dismissing their evidence, CORD followers accuse the Mutunga-led court of delivering a ‘quickie judgment’.

First, he reveals that he was overruled on the method to use in delivering judgement.

Former Chief Justice Willy Mutunga. [Courtesy]

Apparently, each of the judges was handling a different of the five issues CORD had brought to court. From registers, total votes cast to “the failure of the electronic transmission system.”

“I would have loved to explain to the public that when the electronic transmission of votes failed, there was an agreement between the parties that they adopt a manual system. So this didn’t affect the results.”

“Also,” he goes on, “the scrutiny of votes that would have helped the court reach a just decision was not yet complete. Shollei (Gladys) told the court that they were able to do 18,000 polling stations and not 30,000.”

He candidly reveals his lack of experience in electoral matters.

“I hadn’t heard an election petition before then and some of the judges were of a different opinion. They simply said that route was dangerous because some of what you say could be contradicted when the final ruling is made in 21 days. It made sense.”

And throws in a caution for the future: “There is no way that the Supreme Court will decide an election petition and get the approval of the nation because the country is divided.

“For example, when CORD filed the petition, Jubilee followers asked for my resignation since I was Odinga’s friend. We rejected the application. But when I went to Moi Sports Centre Kasarani to swear-in President Uhuru Kenyatta on April 9, there was a rapturous applause (of 60,000 Jubilee supporters) when I stepped out onto the podium.”

“If I were in some stadium in Ukambani or Nyanza, I would have been stoned,” explaining the seesaw change of emotions and how those working in such apolitical spaces often find them between two forces grinding against each other.

There is no way even if you are Solomon that you will find a fair judgement, he says.

It has been an hour already, our table is cleared and we order for a beverage. He asks for double latte with hazel nut, I settle for black tea with a slice of lemon.

“Until the politics is settled, decisions will continue to destroy the institution of Judiciary because the leading narrative is the politics of division.”

He offers a cure to this anomaly; “If necessary, though it is not in the Constitution… the politicians could form tribunals that they can trust to clean up their mess.”

In fact, “they (politicians) should not try to control the IEBC so that whatever outcome, they are happy with it.”

He despairs at the political class for not even thinking about a plan of how to share power and thereby spare the country the trauma of contested outcomes.

“Can’t they even think about a rotational presidency like they do in Nigeria?”

In the seemingly unending power struggle between the Judiciary and the Executive, is the Judiciary out of options? What if, for example, the Court of Appeal were to decline the Building Bridges Initiative (BBI) appeal on account of existing contempt from the Executive?

He regrets that there is a lack of courage within the Judiciary “to face the Executive.”

He says during his time, he told judges to disabuse themselves of the notion that judges don’t do politics.

“Politics is part of life… even the Constitution is so political. It is so activist.”

He says the Constitution has tied the hands of the Executive and suggests that the Judiciary hasn’t taken much advantage of this new reality.

Though he believes that for the Judiciary, integrity remains its Achilles heel.

“Unless this is addressed, if you are in Judiciary and you have skeletons in the cupboard… they will be rattled.” Insisting that judges should be “squeaky clean.”

According to him, everyone is an activist including the Judiciary. The best case is the BBI; those who wanted to change the Constitution were activist, and for ruling against it, the judges were activist, he argues.

Former Chief Justice Willy Mutunga. [Courtesy]

He has a radical view of how the Judiciary can push back against an overbearing Executive and a meddlesome, impolite Parliament.

“The judges should be candid and say that unless the Executive purges their contempt, they won’t be listened to.” This chimes with his recent call for judges to go on strike.

He says three rulings; the presidential petition against Jubilee and NASA both in 2017 sent a powerful message of neutrality and independence of the Judiciary.

“That is a very, very powerful message… that we can rule against any faction.”

And adds that the Supreme Court should have found the IEBC in contempt of court for refusing to open the (elections) servers.

Those servers remain unaccessed to date. So what else is behind his renewed agitation for social justice and the rule of law?

“There are detainees (political) who have taken the government to court and those businessmen who have unsettled government bills deserve to be heard… the government should pay these people before paying any foreigner.”

We order for another round of coffee and black tea.

“It must have been good,” the lady taking away our cups quips.

“Are you sure it was delicious or perhaps it was not a double as ordered?” he says tongue-in-cheek as we laugh about it.

“Or I am getting addicted to your coffee.” Dr Mutunga has a wry sense of humour and likes to pepper his chat with jokes and witty anecdotes and occasionally bursts into a hearty laughter.

I realise that it has been one-and-a-half hours since lunch started. We are not yet even half way through.

He advocates for cordial relationship between all arms of government and once he settled in, he deployed the Judiciary Training Institute to great effect to achieve that.

Through the institute, he engaged many stakeholders including those in the security, media, and political sectors.

He regrets the scathing statement he released in June soon after President Kenyatta appointed some judges and left out others, including High Court judges, Prof Joel Ngugi, George Odunga, Weldon Korir and Aggrey Muchelule, who had been recommended for appointment to the Court of Appeal, and Evans Makori and Judith Omange who were recommended to the Labour Court–who he insists are very diligent and smart judges.

He says he learnt a lesson from that incident: That when one is angry “they shouldn’t issue statements where you expect people to support you.”

“The scientific formulation in the provision of the Constitution on the appointment of judges was intended precisely to be an antidote to this kind of whimsical and capricious presidential conduct such as is being seen in ugly display in this matter.” He had written.

Concluding: “Mr President, simply do the right thing.”

You are not persuasive when you are angry, he says.

He says a similar situation arose in 2015 “but they found a way to work around it.”

And that is the more ironical from a man who comes across as one who couldn’t possibly say boo to a goose.

Though he says the president is unfair for not giving the evidence he used to decline the promotion of the six judges. Saying if that were to be tabled, we won’t be talking about their promotion but their exit. “And there are procedures to govern that.”

He drops the hint that a memoir is on the way and a compilation of his speeches “and another book on jurisprudence.”

He has written two other books already; ‘The Rights of an Arrested and an Accused Person’ and ‘Constitution-making from the Middle: Civil Society and Transition Politics in Kenya - 1992-1997’.

He supports his controversial views on religion through scholarly reading and listening to church sermons like those of the Christ is the Answer Ministries where he challenges dogmatic teachings of the pastors on his Twitter handle.

And to buttress his unspoken rule of not arguing from ignorance, he lists Desmond Tutu’s book ‘God is not a Christian’ and other provocations among his many reads. In the book, the renown South Africa Nobel Peace Laureate argues that no individual and no one religion can own and claim God. And that God is not homophobic.

His argument is that you are socialised into religion. For example, had he been born in India, he would probably have been an Indian.

So his being born in Kitui “in 1947” influenced his leaning towards African religion because he saw his parents practicing it and even when his mother got born again “she practiced both.”

Our lunch overshot by nearly two hours. He interrupts to call his plumber.

“Please come back… I am sorry I have kept you waiting. I need you to fix my water problem else I may have to use the bucket to bathe tonight.”

The plumber dutifully obliges.

Just as we were wrapping up, a man perhaps in his 20s approaches our table and whispers something to the CJ. I sat pensively, wondering who this was.

“Ooh, thank you, where is your father?”

“He is at home… he really admires you. I know he will be very happy to know that I met you.”

“Do you want to take a selfie to send him?” Mutunga offers charitably.

The young man turned down the invite without much thought. Though I am sure he must rue the missed opportunity.

This encounter with the man summed up everything about the former CJ.

Like the Man in Rudyard Kipling’s famous poem IF, Dr Mutunga had “walked with kings but never lost the common touch.”

He invites me to join him on his flight to Toronto to bring back Miguna Miguna from Canada. I hope my employer will be magnanimous as to pay for my ticket.

After offering to pay for the meal (despite my loud protestations) he saunters off into the Kilimani darkness unperturbed, alone.

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