Excerpt : I am not a lawyer, or a learned man as they prefer to call each other. And I don’t like them either. There are a quarrelsome lot. Quite often, they find fault with everything; arguing boringly that there has to be two sides to every law.
I am not a lawyer, or a learned man as they prefer to call each other. And I don’t like them either. There are a quarrelsome lot. Quite often, they find fault with everything; arguing boringly that there has to be two sides to every law. Oh, and they defend the good, the bad and the ugly with passion alike. All are the same before the law, they argue idealistically, even when they are not. But they are not all bad, nosy folks. They have gentlemen too, real gentle! One such person is the immediate former Chief Justice and President of the Supreme Court, Willy Mutunga, who hang his boots this week.
I liked his simplicity, and humility. I remember how he walked into his office on his first day, very casually with his trademark knapsack from his activism days. Earlier, he told his interviewers for the job that he would not remove his earpiece because his folks in Ukambani wore them too as a cultural piece. He threw out the traditional wig for the judges, opting for simple robes. He burst into the judiciary with his liberal activism and transformed the once conservative institution and opened it to public scrutiny ‘believing that sunshine is the best disinfectant’. Soon, even emails between the Supreme Court judges were public documents!
For those who thought he was worried by accusations that he turned the courts into ‘activist’ institution, he charges that our ‘constitution is exactly activist by origin, design, text and intent’ as it espouses ‘principles of human dignity, social justice, human rights, protection of the marginalized, leadership integrity and fundamental freedoms’. He expresses that he ‘is not a conservative even by unconscious accident’!
Under his watch, judiciary regained its independence, issuing damning verdicts against the high and mighty in the land. This is a critical aspect of any judicial system that underpins the basic tenets of democracy, and separation of powers. Judiciary stood against all attempts to undermine it, mainly through the overt machinations of the Executive, often through the willy National Assembly. It has overturned unconstitutional laws from the legislature, and provided unwavering judicial reviews where institutions locked horns on their respective mandates in the implementation of our new constitution.
I dare say that many Kenyans love our judiciary and always look forward to their bold rulings. Kenyans inundated the courts with all manner of cases seeking to challenge decisions by the Executive, or pursuing fundamental rights very liberally provided in the Constitution. Under Mutunga’s tenure, access to the justice expanded significantly, even in remote parts of this country. He firmly locked horns with the bureaucracy within the judiciary that spin corruption and told off Parliament and other institutions that dared to challenge his mandate.
He told senate that “our political society is obsessed with zero-sum politics which are healthy constitutional contestations in emerging democracies’ and accuses the media of ‘being a tad too reductionists’ for terming it ‘supremacy wars’. This he stated is a ‘normal occurrence for countries struggling to find the right institutional equilibrium within the context of constitutional transition’. He believes ‘creative tension, responsibly handled, yield better political dividends’. So, for him, the hullabaloo of wars in the judiciary was positive, and necessary in the transformative journey.
Mutunga has left a venerable legacy during his short stint at the helm of judiciary. The ‘Robin Hood of the Judiciary’ never flinched from speaking his mind, whether in the courts or outside. His damning statement that our country is ‘a bandit economy, run by mafia-style cartels of politicians and business people’ ruffled feathers but he kept at it.
The country will dearly miss a man of integrity and selfless determination who ventured into a conservative, archaic den of wily men’ and slowly turned the wheels of transformation. Adios Willy!
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