The nomination of Willy Mutunga and Nancy Baraza as chief justice and deputy chief justice respectively by the Judicial Service Commission has been a watershed for a pro-people leadership in Kenya. By endorsing their nomination the president and prime minister seem to have recognised the aspirations of the Kenyan people. The confirmation by the vetting committee and parliament was indeed a moment that gave the world a chance to experience another Kenya.

The Kenyan people have for a long time struggled for judicial and security institutions that protect their rights and interests. Instead, greed and impunity in the leadership bred a system serving only the wealthy and the politically connected. Fortunately, the Kenyan people have known this only too well and have openly shown their indignation at the injustices and impunity in the system. In 2010, for example, they expressed their distrust of the judiciary when a whole 97 per cent of visitors to a judiciary open day said they did not trust the institution to execute justice. Moreover, of those asked in many opinion polls whether they think Mutunga and Baraza are suitable choices for the posts of chief justice and deputy chief justice, nearly 80 per cent have always said yes. In other words, the people believed that Mutunga and Baraza would improve the image of the office.

So, who opposed Mutunga and Baraza and for what reasons? Who among those opposing them on moral grounds can cast the first stone? Should the men of faith continue dragging the country backwards using what they regard as the only family or moral values, even when it has become clear they too break their own values?

Moreover, why has there not been the same depth of public action and condemnation among the men of faith of those who obtain wealth through corrupt means and fraud? Or is it that the men of faith receive huge contributions for God’s work from that ill-gotten money. Remember the public show of wealth by some filthy rich Kenyan politicians out-doing each other during fund raising functions, hoping to garner votes from the religious constituency?

Here, very critical self-reflection is needed. Is it right to be filthy rich when, as Reverend Timothy Njoya would argue, one has not made any invention of the Bill Gates type? When one knows one’s wealth is actually taken from the Kenyan people through corruption or fraud? That one has harvested where one did not plant? That one did not plant back where one reaped? What is moral with this type of behavior? Some politicians then cry foul after global justice institutions catch up with them demanding that they answer for their ill-gotten wealth.
The Kenyan people have recently been treated to another drama where millions of tax payer’s money has paradoxically been wasted in attempts to protect leaders suspected of instigating the post-election violence in 2007-2008, which left over 1,500 people dead and 300,000 internally displaced. High-powered delegations led by none other than vice president Kalonzo Musyoka and agriculture minister Sally Koskey hopped around the world from capital to capital seeking support to defer the International Criminal Court (ICC) case for the six suspects from The Hague back to Kenya. Meanwhile, thousands of IDPs were still rotting in camps, three years after they exercised the right to vote. During the same period, some of the suspected leaders have been allowed to traverse the country exonerating themselves as men who will emerge from The Hague as heroes. They campaign in a manner likely to ignite violence come the 2012 general elections. What has emerged, however, is that even as the effort to defer the case to Kenyan courts was championed, there was little evidence of investigations being done by Kenyan security and prosecuting institutions. Indeed, it appears like they expected to be given the same ICC investigative reports to be used as a basis for the prosecution in Kenyan courts.

Back to the nomination of Mutunga and Baraza. Some judges and magistrates had, according to Star News on 14 May 2011, vowed to ‘make it hell’ should the two be confirmed, saying: ‘We cannot be led by a man who is wearing a stud and another who is doing her PhD on “gayism?”. We are regrouping so we can agree on the best way to protest this decision and if the two principals and parliament endorse the names, then it will be hell for the two.’

The Judicial Service Commission, which nominated them, was accused by other High Court judges of using public interviews to demean the judges who appeared before them and to depict them as incompetent. They said: ‘Those interviews were a mere charade. They had predetermined names and all they did was scandalise judges and make them look very incompetent. It is unacceptable and we will protest.’ Another judge said Mutunga and Baraza should brace themselves for obstruction from judicial officers. ‘If the government accepts that decision of JSC, the judges will know that the government does not support them. The two should be prepared for total non-cooperation from the judges. They will not be hearing cases most of the time. We will hear cases and they will have no control over what we do,’ said another judge.

Now that Mutunga and Baraza have been confirmed and are in office, will the judges and magistrates walk their talk or are they going to understand that a new dawn has arrived in Kenya?

Was it a moral issue with Mutunga’s ear studs or Baraza’s PhD topic, or are the judges and magistrates who promised ‘hell’ afraid the ‘politics of the pocket’ they have so well crafted has come to an end? Did they seriously believe Mutunga and Baraza are not qualified to take the position? Or do the learned judges think wearing an ear stud is an issue? Have they forgotten that ear decoration, as many Kenyans have reminded them, is an old tradition for most African people, both men and women? This fall back on cautioning others not to break African values only when it suits the one cautioning - in this case the judges - is similar to what came to be known as the ‘Kenyan theory of love’. The theory evolved when in 1978, the Kenyan parliament introduced the marriage bill, which among other things had a clause against wife-beating. The bill would have gone a long way to promote gender equality and improve the welfare of women and children in the case of death of a spouse or after divorce. Nevertheless, the bill was shelved largely because of the wife-beating clause. The men in the male dominated parliament argued they would have no means of demonstrating their love to their wives. According to one MP, the bill would make it impossible for men to teach their wives ‘manners’, while another added that African women loved their men when they were slapped, but also argued that the proposed legislation was ‘very un-African’.

Thus, for the majority of Kenyan people, wearing a stud is a non-issue. It is justice they want. And if the opposition by the judges is an act of protecting African values, what about the wig the judges wear under the tropical sun? Do the judges actually need this colonial relic to institute justice?

Shortly after taking office, the chief justice has promised to start a clean-up of the judiciary by the end of August, when the vetting of the 26 judges of the High Court is expected to be completed. He has also indicated that he expects their first duty to be to clear the files of pending cases on their shelves, including the high profile corruption cases which continue to consume huge sums of tax payer’s money. The chief justice has moreover promised to never compromise in ridding the judiciary of corrupt magistrates. The era of the ‘untouchables’ and the common saying of ‘why hire a lawyer when you can buy a judge?’ has, according to Mutunga, come to an end because it is such practices which have damaged public faith in the judiciary. Rebuilding the public faith in the judiciary is the critical priority for Mutunga and will therefore require vigilance from the Kenyan people, because ending graft and corruption is a huge ‘political project’.

Is this cleaning up of the judiciary what the judges and magistrates are opposed to? Will they really oppose a clean up to ensure the end of impunity and the cultivation of the rule of law and justice for the Kenya people? If indeed their aim is to continue with business as usual then their fear of public interviewing and a clean up of the judiciary is understandable. The Kenyan people therefore have a daunting job ahead in getting rid of the corrupt judges.

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