In my column this weekend Chief Justice Mutunga Should Resign I start making the case why the CJ should resign or be replaced for the good of the judiciary and country.
Many people must be scratching their heads wondering why on earth Chief Justice Willy Mutunga is in a hot seat especially with Jubilee barely a few months after he led the Supreme Court in making a decision in the ruling coalition’s favor.
Some of the woes Chief Justice Mutunga is facing existed even before he took over at the Supreme Court but many are largely his own making.
The irony of this is that CJ Mutunga was supposed to lead a new, reformed judiciary or at least one on the path to greater reform.
Those who pushed for his appointment as Chief Justice argued that as an outsider with a civil society background, Mutunga would bring a breath of fresh air, new ideas, resolve and no strings attached to the very rotten judiciary we had then.
Ask anyone of those who so believed what they think of the Chief Justice now. You are likely to be hit with unprintable epithets even before you finish asking the question.
To be sure, it’s not an exaggeration or in bad faith to say Chief Justice Mutunga has gravely and extremely disappointed Kenyans in the way he has handled himself as Chief Justice and President of the Supreme Court.
He has at a minimum squandered all the goodwill Kenyans accorded him to do the right thing in reforming the judiciary. Therefore, the right thing for him to do now is to simply resign and give the country an opportunity to jump start the reforms that were underway when he was appointed. The reforms appear to be stalling with the ongoing power struggles within and outside the judiciary.
Along with the Chief Justice resigning, the Judicial Service Commission should be disbanded and reconstituted or entirely scrapped.
In fact, the latter should happen first, namely, the reconstitution or altogether the scrapping of the JSC. President Uhuru Kenyatta’s move to suspend the six commissioners was constitutional and and the court was wrong to overturn it.
If the evidence is half as bad as it’s been reported, then all of these commissioners should be sacked and the management and staffing of the Judiciary be completely overhauled.
Meanwhile, if Chief Justice Mutunga does the right thing and resigns, Deputy Chief Justice Kalpana Rawal can temporarily take over his duties while the JSC is either reconstituted or scrapped. Its work can be delegated to the administration arm of the Judiciary or shared elsewhere, including the appropriate select committees of the Senate or Parliament as the case maybe.
That being said, it should be noted that significant reforms have taken place in the Judiciary despite the mess it’s in now with the ongoing power struggles.
A good testament of this is this very JSC mess whereby a judge has, in fact, issued an injunction preventing an order by President Uhuru Kenyatta from being given effect. Ask yourself, would this have been possible during the late President Jomo Kenyatta’s time or even during former President Daniel Arap Moi’s reign?
The point is, yes, we have made great progress to be where we are in terms of judicial and governance reforms but more must be done if we are to come close to fully enjoying the fruits of independence.
However, these reforms can only continue to advance with the right people in key positions. We have the wrong person heading the judiciary and it’s for this reason he should resign or be replaced.