He entered office with 88 per cent public approval ratings and worked hard to speed up and improve delivery of justice. While many appreciate his impact, mixed feelings persist on his role in the 2013 presidential petition ruling and leadership of the Supreme Court.
Reforms, reforms and more reforms. That is what outgoing Chief Justice Willy Mutunga will be remembered for. Lawyers, civil society organisations and judges agree that the initiatives the CJ put forth are unmatched, as they helped reduce an estimated one million cases in 2011 to 400,000 now. However, questions linger over some of his decisions, especially on Cord's March 30, 2013 presidential poll petition, which the Supreme Court unanimously dismissed.
Advocate Tom Ojienda says Mutua's reforms have helped the judiciary receive more funding. "Confidence in the judiciary had been eroded over the years, but during Mutunga's tenure, that goodwill was restored," he said.
Ojienda adds that Mutunga's initiatives enhanced access to justice. Lawyer Titus Koceyo agrees, saying apart from more judges and better infrastructure, cases filed are concluded faster than before.
Since he took up the job after competitive interview in 2011, Mutunga and the Judicial Service Commission have increased the number of judges from 53 to 143. The CJ has also decentralised the Court of Appeal to Kisumu, Nyeri and Malindi.
Before Mutunga took over, Court of Appeal judges would gobble up to Sh100 million every year in what were termed judges circuits. In the plan, the judges would visit Nyeri, Eldoret, Nakuru, Kisumu and Mombasa for one week and hear cases before moving to the next town.
New court stations have been established countrywide, bringing justice closer to the people. The CJ has established 17 new High Court stations, four new magistrates courts in Engineer, Githongo, Kakuma and Mbita. A fifth one was opened last week at the Jomo Kenyatta International Airport.
Mutunga said in a recent report that an analysis of the 14 cases in the Commercial Division revealed that cases take an average of 4.9 years to determine.
Koceyo says it is now possible to file a case and get a decision within a year. Cases could drag up to seven years before, he said. The lawyer also admires Mutunga's transparency. He says the CJ has been transparent in his operations, thereby demystifying the judiciary. His predecessors were too closed-up to the people and no one knew what was going on in the judiciary.
Lawyer Suyianka Lempaa is impressed with Mutunga's simplicity. While most judges carried themselves with so much power, he says Mutunga always presented himself as a humble man. The CJ did away with titles such as Your Lordship but, as they say, old habits die hard, some resisted it and still use the title. His goodness, Lempaa adds, was also his undoing, because some people took advantage of it.
According to Lempaa, the CJ was also let down by conservative judges in his quest to transform the judiciary. "The CJ is a down-to-earth man. He has really tried but the system kept pulling him down," he said.
The lawyer praised the recruitment of more judicial officers but said the effect is yet to trickle down. "The appointment of more judges is a positive thing. However, this has not helped speed up cases. It is frustrating to litigants," he said.
To constitutional lawyer Kibe Mungai, Mutunga strikes him as a principled person. "He defended what he believed in whole-heartedly," he said. Kibe remembers that Mutunga was ready to reject the CJ's position than do away with his ear-stud. "It takes a principled person to do so, whether right or wrong," he said.
The advocate further says that the fact that Mutunga opted to retire one year earlier proves that he is a person of strong character. "The reason he gave — to allow his successor be appointed early enough as Kenyans head to the general election — is something commendable," he said.
He says Mutunga's decision to quit early while some fight to remain in office is something that should be emulated. "It is not everyday that a Kenyan does that," Mungai said.
Although the presidential election petition filed by Cord made the Supreme Court unpopular, the move by the CJ to defend it and open it up for scholars to dissect and critique it is something commendable, according to Kibe.
Ndung'u Wainaina considers the opening up of court stations and widening of access to justice a milestone. "Apart from infrastructure, the CJ ensured there is enough personnel to dispense justice," he said.
Wainaina, of International Centre for Policy and Conflict, says Mutunga defended the independence of the judiciary with zeal. Gone are the days when the executive or Parliament would manipulate the judiciary, he said.
Wainaina says under Mutunga's tenure, the judiciary has its own budget of about Sh16 billion and also got donor funding. He commends the CJ for allowing judges to exercise their powers without interference.
Mutunga should be commended for strengthening the Judicial Training Institute to ensure judges get adequate training and a clear career progression, Wainaina says. And on demystifying the courts, he says the court users' committees, judicial marches and judicial service weeks have helped break down the barriers and allow ordinary Kenyans to mix with judges.
On the flip side, Wainaina says Mutunga let Kenyans down on the presidential petition. Mutunga "will one day be required to explain to Kenyans what really happened", he said.
James Mwamu, the President of East Africa Law Society, is pleased with Mutunga's transparency and courts expansion. He says the CJ has defended judges and ensured that other arms of government do not push their way through the legal system.
But perhaps Mutunga's undoing is how he has managed the "circus" at the Supreme Court. "Administratively, Mutunga has not been good. He was not the best manager, compared to, for example (former CJ Bernard) Chunga," Mwamu said. He says Mutunga should have anticipated the crisis and managed it early enough. The tussle, he says, has been simmering for more than two years.
When he took over the reigns, the CJ promised to increase the number of judicial officers, train staff, professionalise the administrative cadre, expand court infrastructure, improve and reduce the caseload and reach out to other agencies to ensure speedy delivery of justice.
"The judiciary has been given a great opportunity by Kenyans to rebuild their confidence in the institution. It is an opportunity that the judiciary does not take for granted. The judiciary shall deliver justice and, from now henceforth, we will be missionaries of justice for all Kenyans," the CJ said when the Supreme Court received the presidential petition filed by Cord leader Raila Odinga in 2013.
On the CJ's failures, Ojienda said under Mutunga's tenure, judges and magistrates placed more emphasis on seminars and forgot their core duty. "As much as the trainings are important, they should be structured in a manner that does not interfere with judicial officers' work," he said. Mwamu agrees, suggesting that the trainings should be timed with judges' vacation.
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