Tuesday, November 5, 2013



By Jerry Okungu
Nairobi, Kenya
October 25, 2013

Chief Justice Mutunga is an honorable judge. So are his judges and magistrates in the judicial fraternity. It is the reason Kenyans must continue to give him the benefit of the doubt even when it is obvious that he has erred or faltered in his decisions.

In the last two years of his reign as the supreme judge, Willy Mutunga has never been without controversy. Strangely enough, the bulk of his woes have originated from his former bosom friends in the trenches of the reform agenda.

Perhaps as part of his reform agenda, Willy Mutunga should look afresh at the people surrounding him, the people he handpicked, some from the streets to be his aides. Being an activist of many years, one understands if he has kept the faith with some in the media fraternity that might have supported  him when he had no media outlet during his days at the NGO outfits.

Right now Justice Mutunga needs honest counsel that can look him in the eye and tell him the truth. He does not need sycophants and court jesters waiting for crumbs from under his table. More importantly, he does not need self proclaimed war council and fake generals who flatter him that he Mutunga is the Commander in Chief of some imaginary army. Being a Chief Justice, Mutunga is at the apex of power and does not need any fake titles.

It is true that there can be no two centers of power in the judiciary. We cannot have a judiciary where every low life feels like a boss. We have to conform to the administrative structures of other arms of government. In parliament, the Speaker is the undisputed center of power while in the Executive the President’s authority is never challenged by Cabinet or the Head of the Civil Service. Such a challenge is never anticipated without attracting  summary dismissal or resignation where there is honour and self respect.

Having said that that, there is a growing trend that seems to go against the constitution in so far as women are concerned.
Our constitution drafters were explicit in the role of women in the new dispensation. It is the reason we included 30% of either gender in public service. However, what we have seen in the last one year has been worrying. Women have been removed from the judiciary in their droves.

When Nancy Barasa was removed as Deputy CJ for pinching a guard’s nose at the Village Market , we thought it was a one off thing. It was not to be.
Since then, the following women have been removed from the judiciary:
Jean Gacheche
Joyce Khaminwa
Grace Nzioka
Rosemelle Mutoka

What is baffling is that there is very little information available to the public when a high ranking judge leaves office under mysterious circumstances. One has to go kicking like Baraza and Shollei did in order to give the public a glimpse of the goings on in the corridors of justice.

We all know that women have suffered even in other arms of government. We know of Eva Oduor of the Kenya Bureau of Standards who was sacked by an overzealous Cabinet Secretary on flimsy grounds. We also know of Rebecca Nabutola who was briefly jailed for misappropriation of public funds or misuse of office. She has since appealed and is out on bail but jobless.

However, when Gladys Boss Shollei’s case erupted, we all stood up to ask what on earth would pit the Chief Registrar of the Judiciary against her boss the Chief Justice.
Looking at all these cases I have cited, one cannot help to notice that the Judiciary leads the pack in stripping women of their positions regardless of the circumstances. Does it mean that male counterparts of these women have never committed minor offences worth disciplining?

As I write this article, there is talk in the air about the possibility of disbanding the Judicial Service Commission whose membership is riddled with serious allegations ranging from sexual predators to senior counsel who practice without valid papers.
All these things are happening in Kenya because we are a country that has perfected the art of impunity and thick skin. No amount of scandal or adverse publicity will force us to resign our public offices.

The paradox here is that if one labels accusations against the Chief Justice, chances of finding a judge to hear the case and determine it on point of law will be hard to come by. It is the reason all judges rallied behind Mutunga to deny Shollei a public hearing and hound her out of office.
Another tragedy is that former voices of reason like FIDA and other women groups including the LSK have gone mute. For how long will this silence continue? Until the last woman leaves the judiciary?
I rest my case.