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Kenya: Spotlight on Willy Munyoki Mutunga

By Parselelo Kantai
Posted on Monday, 8 August 2011 16:36

The outspoken new Kenyan chief justice worries the traditional establishment, writes Parselelo Kantai, but the task of judicial reform may prove larger than his personality

Willy Mutunga’s appointment as the first chief justice under Kenya’s new constitution, promulgated last year and celebrated among domestic legal experts as one of the most liberal in the world, was greeted with a nationwide sigh of relief. A dogfight early this year, provoked by President Mwai Kibaki’s unilateral nominations for chief justice, attorney-general and director of public prosecutions, stalled the nomination process. Pro-reform forces cheer Mutunga’s appointment as a victory over the ageing elite that has ring fenced the Kibaki presidency and which they blame for the glacial pace of the constitutional implementation process.

Mutunga, nominated by a recrafted, independent Judicial Service Commission, underwent a rigorous public vetting overseen by a parliamentary committee and aired nationwide on TV and radio. It is unprecedented in a country always informed of key appointments by a presidential announcement relayed via national broadcaster. And if the drama of a public vetting process captured the nation’s attention, the intimate nature of the questioning laid bare the country’s ideological and ethical divisions.

Mutunga wears a stud in his ear, is known to shun the rigid formalities of suits and ties, and much like a US university student, will often be seen carrying his laptop in a back-pack. His style, coupled with his open advocacy for gay and lesbian rights, frightened the religious lobby and raised questions about whether he himself was gay and, therefore, what direction he was likely to take the judicial reform process.

Having placated the general public – “I am not gay,” he categorically stated before the vetting panel – and with his appointment fast-tracked through parliament and the executive, Mutunga has quickly rolled up his sleeves to begin changing the Kenyan judiciary.

Public expectations are huge that Mutunga will restore independence to the judiciary, a painfully hilarious myth for at least two generations of Kenyans for whom the institution is best known for its entrenched conservatism, its surreal displays of incompetence and corruption. Case files disappear before they arrive in court; legal disputes are resolved by an exchange of money in the corridors even as a backlog of hundreds of thousands of cases pile up, many stretching back decades.

For each of independent Kenya’s three presidents, the judiciary was the most effective tool of executive impunity. President Kibaki’s controversial December 2007 swearing-in by former chief justice Evans Gicheru under cover of darkness, and so hastily put together that the organisers forgot to play the national anthem, epitomised how compromised the judiciary had become.

The challenge for Mutunga, a legal scholar and activist detained by the Daniel arap Moi regime in the 1980s, lies both inside the judiciary and outside among the forces determined to keep the nation’s skeletons inside the closet. He has promised to eradicate corruption in the judiciary, but this will be easier said than done. “The forces ranged against him are considerable,” observed a senior lawyer. “If this was the corporate world, he would use a big broom to sweep out the old lot. But what you have are judges unused to any form of scrutiny and accustomed to an established peck- ing order. They will resist him.”

While there is a constitutionally mandated vetting process under way for judges – meaning in effect that they will all have to re-apply for their jobs – some observers predict two scenarios. The first is that many senior judges will simply opt to retire, intolerant of scrutiny by the Judicial Service Commission that consists of officers they consider their juniors. The other is that the vetting process itself may be frustrated by the usual suspects and allow many of the old lot to retain their positions.

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