Archive | June, 2016


13 Jun

By Javas Bigambo

If there ever was a Drum Major for justice and the rule of law, it is Justice Willy Mutunga. This week is historic. The honourable Chief Justice who elected to retire a year early, leaves office. A fair-minded judge has walked among us.

Justice Willy Mutunga has retired from office.

Justice Willy Mutunga has retired from office.

The stars in the expansive sky are not illuminating his name in twinkles, but it cannot be denied that the mortal judge has left a legacy so immortal.

In comparison, his predecessors dim in their glow juxtaposed with Willy Mutunga’s irrefutable shine. No Chief Justice had ever proven their mettle in the leadership of the judiciary in the interest of justice as opposed to political interference, than that which has been witnessed in his time.

More by example than precept, the first President of the Supreme Court in the new constitutional order has demonstrated that justice must not always be understood to be an advantage to the strong or the wealthy. In his time, he has been seen as that force at the helm that possibly hindered the executive from wanton miscarriage of justice through the justice system as a tool.

The state has openly done much to wane the independence of key institutions, including the judiciary, and he has overtly chided at the all-powerful state machinery, culminating in his last hoarse wail that Kenya is a bandit economy.

Except for the glitch he nearly suffered with the entire Supreme Court during the 2013 presidential petition, the man has irradiated light on the maxim that whoever comes to equity must come with clean hands.

Cartoonist GADO's impression of the spectacle that was the 2013 Presidential Petition at the Supreme Court.

Cartoonist GADO’s impression of the spectacle that was the 2013 Presidential Petition at the Supreme Court.

He impressed even the more when he made the report on the transformation of the judiciary after his first hundred and twenty days in office.

From the start, he courted controversy. The President of the Supreme Court preferred to carry his rag pack like a magician, defended his stud, and did not give himself to don the finest suits and converse in legalese, the pride in the realm of the learned friends. The man has had his flaws, but credit him for the good work done.
Those who propagate the status quo will want to forget him so quickly, no doubt, but history has a place for him already. No mud would stick on him. And those earnestly diametrically opposed to Mutunga’s leadership, finding no torn hem on his garment of leadership, chose to hate on him for the stud he wore, an artifact that never blocked his ear for justice.

He took over an institution that had suffered the stroke of public confidence crisis, thoroughly underfunded and where justice was procured by the highest bidder. While the judiciary is not yet out of the woods, it is fair to say that it is nearer the road than when he took up its leadership.
No one doubts where he stands on the issue of corrupt judicial officers, and it is alright that he is not standing in the grey area.

The judiciary has opened up new and expanded courthouses in most areas within counties, and has done much to reduce backlog of cases in a bid to dispense justice. Admission to the bar for new attorneys no longer had to wait for eternity and a day.

Under Willy Mutunga’s leadership the judiciary has ceased being an allegory of judicial obfuscation where access to justice was known to shrivel on account of social status. Now social justice has a bigger and better platform, reinforced by an even more liberal Bill of Rights in the Constitution of Kenya 2010.

Perhaps Justice Mutunga’s last best efforts and attitude for justice is evident in the Justice Rawal retirement appeal imbroglio, now set for determination at the Supreme Court. By a stroke of his pen, Mutunga rolled back the date initially issued by Ndung’u Justice on the hearing date for the Supreme Court hearing of the appeal, on a matter so open to the naked eye.

It is famous for the dictum of Lord Camden who once quipped that “If it is law, it will be found in our books. If it not to be found there, it is not law”, in the famous Entick v Carrington. One only hopes that the Supreme Court will not fail to agree with the initial High Court ruling and the recent Court of Appeal ruling on the express issue of the retirement age of judges inscribed in the Constitution in glowing letters.

Whatever path the leadership of the Supreme Court takes henceforth, is justly in the wisdom of whoever takes over. But if wisdom be ours for the pride, the conscientious among us will node in agreement with the uncannily judicious Lord Denning who asserted “Let justice be done, though the heavens fall.”

In the journal of human affairs on earth, nothing hoists justice better than unprejudiced course of liberty among men.

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