Interview with CJ Mutunga on early retirement and elections

Dr Willy Mutunga, Chief Justice and president of the Supreme Court of Kenya, speaks in the final part of a series of interviews.


There are concerns in some quarters — strongly expressed — that by leaving office a year early the Chief Justice allows counter reformers to undermine this critical institution at a critical time.

Are these concerns based on an understanding of the basis of this decision? From where I sit I believe that the country is again standing on the precipice and this time round it may flip over.

What I hear are ominous messages of strife, violence, civil war, and sad prospects of dismembering our motherland. Am I the only one hearing these messages? On this basis, therefore, I decided that the process of recruiting my successor needed more than two months.

Elections will take place on August 4, 2017 and if the JSC started the protracted recruitment process next year there would be sufficient time to accomplish this goal. I expect there will be many candidates seeking to be the next CJ and president of the Supreme Court. Public participation will lengthen the process.

Parliament may reject some of the nominees by the JSC, resulting in starting the process from scratch. Swearing in the next president in the absence of a CJ could trigger a serious constitutional crisis.

At the moment, I do not like the state of the country’s preparedness for peaceful, fair, and free elections. My decision is in part aimed at triggering national dialogue on this critical issue. 

Counter-reformers have resisted the transformation at the judiciary for the past four years. The resistance will not abate as I finish my fifth year. The counter-reformers I fear are collectively the ruling elites and their cartels. They have the potential to undermine all institutions and our motherland. I do not believe the counter-reformers will cease to exist if I stayed an extra year. The dangers of one year are very clear to me and they are in part the basis of my decision.

Jurisprudentially, what is the legacy of the Mutunga Supreme Court? Both positive and negative in your opinion?

I believe the Supreme Court has developed some critical pillars in our search for a progressive jurisprudence. Our mainstreaming of the theory of interpreting the 2010 Constitution is one of the pillars. Our position on the jurisprudence on devolution is sound and patriotic. I believe we have clarified some key aspects of electoral jurisprudence.

I cannot predict how the pending matters on land, leadership and integrity will be decided but these are also critical pillars of the Constitution that we will have to decide on. Our idea of a progressive African jurisprudence is one that will be nurtured in Africa and the Global South. Some of our decisions have been followed in some other jurisdictions.

Our decision in the 2013 presidential election will always be controversial and I have promised to discuss it in another forum. Aocates and scholars have criticised our development of progressive jurisprudence. I believe that critique is part of our positive and negative legacy. I welcome this critique. I leave it ultimately to our objective and patriotic historians to judge us.

There is a sense of constitutional reversals under way via a raft of legislation with regard to the media, security, and civil society liberties and freedoms generally. What is your view in this regard?

I believe these matters are currently in our courts. It would be unwise to express an opinion, view, or comment on them as they may end up in the Supreme Court.

You talked of the expansion vis-à-vis the Kadhi’s Courts in our first chat. We have groups of elders gathering to ruminate because fig trees have fallen and others claiming the legal problems, of for example the deputy president, are caused by a curse in the 19th century. Could our legal system be better harmonised with traditional beliefs, systems and processes of justice? Especially, with regard to land rights and family disputes with many wananchi finding themselves standing stupefied in alien, expensive, and hostile territory when they go to court.

Only five per cent of Kenyans go to this “hostile territory.” The rest go to other forums where they believe they will get justice. You probably know that we had a dual legal system in the colonial system and our traditional justice system was in the Native Courts.

The Magistrate Courts Act 1965 merged the traditional justice with the so-called modern justice system. Article 159 of the Constitution has restored the co-existence of the two systems. In my opinion there was never a rupture.

Kenyans still stick to their traditional justice systems. We are currently undertaking pilot schemes that look at the traditional justice systems from the lens of the Constitution. I believe going forward it should be possible to register decisions coming out of traditional justice systems in courts of law to give them the legitimacy they lack. When that happens we can rightly talk of access to justice for all Kenyans.

I also believe that traditional justice systems will be ideal in land and family cases in court annexed mediations and arbitrations. They could also deal with minor criminal offences such as assault, cattle trespass, affray, and threats to community peace by those who subvert the social ownership of land and resources by communities. The formal courts are the ones we have been transforming so that they do not become places for the sale of justice.

During your time as CJ — and you have visited a range of jurisdictions — which countries would you say Kenya has most to learn from in terms of rule of law and the management of the judiciary and why?

Article 2 of our Constitution decrees that the general rules of international law shall form part of the law of Kenya. The same Article provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under the Constitution.

It has been argued that our Bill of Rights is the most modern in the world since it has reinforced the strengths of the whole gamut of human rights while rescuing the various weaknesses. I have been very open about where we will look to develop our jurisprudence.

I have found the jurisprudence from such jurisdictions as India, South Africa, Colombia, Venezuela, Ecuador, and Bolivia very useful because of the history of their struggles for constitutionalism, rule of law, and their human rights and social justice jurisprudence. So has the constitutionalism and human rights jurisprudence of Hungary, Germany, and Philippines. Since we are now developers and shapers of international law, all global jurisdictions are worth looking at.

Our common law, which we received via Britain and the Commonwealth, is foundational to our justice system and we continue to change it, develop it, and make sure it does not subvert our Constitution. As we develop our jurisprudence, it is my hope that we will not pay unthinking deference to these other jurisdictions and that our jurisprudence can be exported. We, too, can be teachers to the rest of the world. 

The judiciary is historically Kenya’s most conservative governance institution, even more resistant to change than, say the civil service. Why? How do we change this?

This narrative has to be historicised, interrogated and problematised. It may turn out to be a dangerous stereotype. My experience after working in the public service in the past four years has convinced me that we have paid scanty attention to the decision-making layer of the civil service. It may be the engine of our problems and the mother of all cartels. It may be the sole arm of the state!

In another life, what would you have been if you had not gone the route you had? Could we have imagined Chief Inspector of Police Mutunga, managing director of ABC Tyres Mutunga?

I believe if the Narc government had offered me the post of Director-General of National Intelligence I would have considered it! You know they offered me a slot in the Council of JKUAT. 

What is home to you and where is home?

Kitui and every part of Kenya are home to me. I realised this as a student at Strathmore in 1966-68, the first multi-ethnic and multiracial college in Kenya. 

Who is your favourite Kenyan author? Who is your favourite non-Kenyan author?

I am an eclectic reader. It is nearly impossible to choose who is favourite and non-favourite.

When you were an activist it’s clear a sense of Pan-Africanism informed your worliew. If you were to meet Amilcar Cabral, Miriam Makeba, Kwame Nkrumah, Marcus Garvey, Amy Jacques Garvey, Julius Nyerere, CLR James or Edward Blyden today and were asked to brief them on the general condition of things, what would you tell them has happened, been done, and still needs to be done?

In 2005, I attended the funeral service of my friend, brother, and comrade, Katama Mkangi, at the All Saints Cathedral. Wafula Buke and Otieno Aluoka addressed Mkangi thus: If you meet JM Kariuki please tell him that we now have 10 billionaires and 35 million beggars and for Jaramogi tell him Kenya is Not Yet Uhuru.

To answer your question, I would quote for them Eric Hobsbawm: “Our world risks both explosion and implosion. It must change.” Then I would recall their revolutionary optimism by adding: A Luta Continua, Vitoria e Certa (The Struggle Continues, Victory is Certain.)
What song defines your life and is the soundtrack to your life?
I believe Juliani’s Utawala.

Part I of the Big Interview – The graft narrative in the Judiciary

MUTUNGA: I came in with a mission to fight corruption, and judiciary has made strides in fighting the vice

Part II of the Big Interview – Dr Mutunga’s personal life

MUTUNGA: I have had my dark and light sides with shades of grey on both sides

Part III of the Big Interview – Justice Mutunga’s professional life

MUTUNGA: My decision to retire early should trigger dialogue on fair elections