Friday, October 5, 2012



By Jerry Okungu Nairobi, Kenya October 3, 2012 Sharad Rao is complaining that the Judges and Magistrates Vetting Board that he chairs is under threat. This complaint is no longer a rumour. Rao has gone ahead and registered his displeasure to the Chief Justice and copied the same letter to a good number of officers concerned with the administration of justice in this country. Sharad Rao is not the only one crying foul. The Law Society of Kenya is equally unhappy with the Chief Justice. In these two displeasures with the Chief Justice’s role in the operations of the Judges and Magistrates’ Vetting Board, one must assume that neither the LSK nor the Vetting Board chairman is a deranged Kenyan capable of creating controversies out of nothing. It is the reason we must sit up and listen to the issues they have raised. At a personal level, I still belong to the majority of Kenyans who believe that Willy Mutunga is a good man and a level headed Chief Justice that should be allowed to continue leading reforms in the judiciary. What makes me feel uneasy are the accusations that are beginning to blot the character of a man Kenyans must see as the bastion of a fair and just judicial system. Semantics aside, Kenyans voted overwhelmingly for their new constitution in 2010 because they wanted real change in the way they were governed. Kenyans approved the new constitution because one of the most attractive aspects of the new law was that it spelt out clearly that the judiciary would be overhauled through a vetting process for all judges and magistrates. Kenyans were tired of sleaze in the judiciary. The judiciary’s dignity and integrity had fallen beyond redemption. Kenyans may care to know that this Judges and Magistrates Vetting Board that is now the subject of debate, that senior judges now want to scuttle was not a creation of Parliament or any other arm of government. The Board was a creation through the will of the people of Kenya and entrenched in the constitution. It is the reason new bench members such as Willy Mutunga, Nancy Baraza, Njoki Ndungu’ and Smoking Wanjala among others, went through a grueling moment before they were recruited so that we would not fall into the old trap of handpicking top judges who would do nothing about reforms in the judiciary. The reason why Willy Mutunga should not squander the good will Kenyans have bestowed on him is because Kenya is at crossroads. With the impending elections, this country badly needs a solid judiciary that Kenyans can believe in. And so far, Mutunga has shown that he can withstand the heat in the kitchen. He is the kind of judge that Kenyans would like to settle major political disputes following the impending elections. The reason why Willy Mutunga cannot afford any blemish on his character is because, very early in his reign, he chose to stand on the moral high ground and declared to all and sundry that all Kenyans are equal before the law. That moral high ground saw him convene a hurried judicial service commission when his deputy, Nancy Baraza was alleged to have pinched the nose of a female security guard at the Village Market on the eve of New Year in December last year. The speed with which Willy Mutunga handled Baraza’s investigations, never mind that the police were already on the case, only confirmed that Mutunga was not ready to accommodate any judge of questionable character or temperament in his ranks. Now, if it is true that Mutunga’s actions regarding the Vetting Board have been less than unquestionable, then the same standards that he applied on Baraza must apply to him for justice to be seen to be done. Without the Vetting Board to screen judges and magistrates and remove the chaff from the grain, there cannot be meaningful reforms in the judiciary. Corrupt and lazy judges who the public and lawyers have made submissions on must go through the process and respond to the allegations to clear their names failing which they must go home. It was therefore a sad day for Kenyans and the judiciary when they woke up one morning to learn that some of the judges that already had a date with the Vetting Board presided in a case that was disputing the legitimacy of the Board and actually had the audacity to suspend its operations for 14 days with the possibility of extending the suspension. Any Kenyan with a bit of common sense would smell conflict of interest a mile away. Why did the CJ not assign judges to this case, judges that had already been vetted? What was so special about these two judges whose relations with the CJ were under scrutiny? Personally I think the Chief Justice has slipped and slipping is not falling. All the CJ needs to do is to clear the air, apologize to the nation for the misunderstanding and move on with the difficult task of reforming the judiciary. Finally, Willy Mutunga should leave the Vetting Board to do its work and keep his judges out of the operations of the Board if indeed he needs to succeed. Otherwise Kenya’s flood of people power will sweep him downstream.