December 30, 2002: In the crowd a song rings out and every one of the thousands assemble breaks out into song, clapping along to the chorus: Yote yawezekana bila Moi—anything is possible without Moi. This reworking of a gospel song captures the euphoria of the inauguration taking place; autocrat Daniel arap Moi handing over power after 24 years to Kenya’s new democrat, Mwai Kibaki, elected with a landslide.
June 20, 2011: As Willy Munyowki Mutunga takes oath of office as independent Kenya’s 14th Chief Justice, there is a euphoria in the air. One polling company conducted a survey weeks ago and found Mutunga has an 80 percent approval rating. The stuffy office of Chief Justice finally connects with the grassroots, as it were. During the parliamentary vetting process, human rights activists, academics and even members of the panel paid glowing tribute to Mutunga’s integrity, his struggle for justice in Kenya and the mentoring he has given a wide range of people. The parliamentary debate that ran late into Wednesday night, that clinched his approval for Chief Justice echoed similar sentiments. The vote took place hours just before Mutunga’s 65th birthday, a nice gift.
Never has a new Chief Justice come into office in Kenya with such expectation. In a brief statement Friday, Mutunga recognised this, describing what Kenyans feel as “astronomical expectations.”
So what will face the new Chief Justice once he sits at his desk Monday?
Of course, managing the huge public expectation is one. The expectation of the man or woman whose case is yet to go to trial 10 years later and he or she remains in prison because he or she is too poor to post bail or is facing capital crime charges. The businessperson whose capital is tied up in a court case(s) running for years and yet to be concluded. The ex-air force man whose case for wrongful dismissal because of his presumed involvement in the abortive 1982 coup is still pending decades later. The wife searching for her husband who went missing years ago and the police deploy their full arsenal of delay tactics to deny her resolution. These and other cases Mutunga will be expected to unclog, order swift resolution and justice for all concerned.
“I come to this office without illusions about what citizens expect of me and my colleagues, and this institution,” said Mutunga after he was sworn-in. “That the citizens place such onerous expectations on an institution they have lost confidence in is not lost to me.”
Mutunga can help them all by seeing through the recruitment of additional judges at the High Court and Court of Appeal levels as well as additional magistrates. More hands will certainly help move the wheels of justice faster. The Judicial Service Commission has already began that process, scheduling interviews for additional High Court judges for next month.
But there is apprehension among current Court of Appeal and High Court judges. The process to select a Chief Justice and other judges of the Supreme Court, has seen most of them rejected for the positions. This has signaled to them, rightly or wrongly, that long-serving judges are not wanted. For some it was a slight, just like in the Bar, the Bench holds high the principle of seniority being the route to promotion. The just concluded interviews for positions to the Supreme Court turned that principle on its head.
Their apprehension is further driven by a soon-to-be implemented vetting process, required by the constitution. All serving judges will be required to face an independent board that will assess their handling and management of cases before them as well as any allegations of corruption against them. Some of the judges told one newspaper that they will sabotage efforts to reform the judiciary.
From day one, that reform, reversing a culture of sloth, corruption and hubris will be Mutunga’s daily struggle. He begins with a stack of official reports written by former and serving judges, analysing what went wrong with the judiciary and what can be done to fix it. The most comprehensive and up to date one is the July 2010 report of the Task Force on Judicial Reforms. Chaired by High Court Judge William Ouko, it was a broad-based task force made up of members of the Law Society of Kenya, the Federation of Women Lawyers-Kenya as well as officials from government and autonomous government-funded agencies.
Mutunga, who referred to it during his vetting interviews, would do well to keep it close.