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 Former Chief Justice Dr Willy Mutunga. Photo/COURTESY


·         Former Chief Justice Dr Willy Mutunga has expressed his desire to have the Judiciary well funded in order for ordinary Kenyans to benefit in their pursuit for justice

·         Speaking on NTV Big Interview, Mutunga stated the need to factor the contribution of young people, women and other marginalized groups of the population when governing in order to make Kenya a more equal society

·         He said President Uhuru was legally a rubber stamp of judicial appointees but he is represented by the Attorney General and the Head of Public Service Commission in the JSC

·         The people’s sovereignty should guide implementation of new constitution which celebrates a decade since it was promulgated, he said

In a 40 minute interview with NTV Consulting Editor Joseph Warungu, former Chief Justice Willy Mutunga reflected on his tenure as the first Chief Justice under new constitution and his thoughts about plenty of current affairs such as the BBI, Executive ‘starving’ Judiciary funds and what he does after retirement.

Dr Mutunga started by saying that a lot of sins are committed in the name of the people but was optimistic that the constitution had benefited wananchi a lot especially the birth of Devolution where 47 county governments were established. He reiterated that the sovereignty of the people should be upheld throughout implementation of the constitution.

Mutunga attributed the problems facing the constitution to the Executive arm of Government. He said some forces found the new constitution too progressive hence the attempts to claw back gains made.

One matter that he disagreed with President Uhuru Kenyatta is his assertion that he was made to play the role of a rubber stamp when appointing judges. He said the Judicial Service Commission holds the responsibility of selecting the judges and not the president.

He appeared to double speak when he explained what he meant by the term rubber stamp. The President is legally a rubber stamp, he said. But the President nominates the Attorney General and Head of Public Service Commission to represent him in the recruitment of judicial staff.

However, Mutunga averred that the President is privy to intelligence reports by international organizations which other arms of government may not be and he should present the Intel report in order for JSC to recruit judges who are above board.

Mutunga lambasted the government for treating Dr Miguna Miguna harshly by deporting him and disobeying court orders that sought to have Miguna back to Kenya.

“Whether people like Miguna or not, that is not the issue. The issue is that the consequences of Miguna Miguna case are very frightening. That you can get validation of your rights in a court of law and they are not realised”, said the senior counsel.


Not to shy away from controversy, Dr Mutunga delved into the infamous Utado and Revisiting aspects of the Judiciary. He said that those who do not protect the independence of Judiciary will not have any defender after the Judiciary is taken captive by others. He supported Miguna’s return since he is a Kenyan by birth and dual citizenship cannot make him lose Kenyan citizenship. Miguna is also a Canadian citizen.

The former Chief Justice thinks that the notion of Separation of Powers should not supersede the national interest of the country. He says that when the country is facing national disasters that require joint approach by the Executive, Parliament and Judiciary, all these arms of government should collapse into one.

Mutunga expresses his shock that when he left the CJ post, President Kenyatta called him an activist. He thought Speaker Muturi did not support him. Only Senate Speaker Ekwee Ethuro invited him to address the House, he says.

“I wanted to go and see the President and basically say goodbye. He wasn’t available so I wrote to him… which was fine. Telling him how the Judiciary was".

The Executive plays a major role in recruitment of public officials. Clearances from Police, KRA and DCI are mandatory for candidates seeking State appointments. They should also clear with EACC, HELB and CRB.

It was against this backdrop where Mutunga wondered how President Kenyatta was saying he was made a rubber stamp yet the police and KRA clearances are in the Executive branch of government which the presidents heads. The president is also the Head of State.

The Parliament has been unable to achieve two-thirds gender rule, a decade after passing of new constitution. Mutunga says that the demand is not even 50:50 and Parliament has failed in this. It is 33 per cent. He then uses the term “shall” to show that the Parliament has no option but to be dissolved if the Chief Justice advises the President to do so.

The former CJ read politics in the calls for inclusivity being used in BBI yet the forces were excluding Deputy President Dr William Ruto. He condemned the regrouping of big five communities (Luo, Kalenjin, Kamba, Luhya and Kikuyu) in Kenya to dominate the Presidency and called for inclusivity when sharing national resources including appointments and elections.

In the end, Mutunga nailed his point home thus: I don’t think we need to amend the constitution.

He says that if the constitution is to be amended, it should factor the contribution of young people who he says have fresh ideas and were not factored in when 2010 constitution was being crafted.

Mutunga is retired but working as a consultant, writing opinions and participating in legal advice. He wonders: Why retire in this country when the struggle continues!

He says that he left his law firm to some family members who never paid him as agreed and when he retired, he repossessed the company.

Ironically, Mutunga is a victim of the lag of court cases in Kenya. He has two unfinished cases. One in the High Court and the other in the Court of Appeal. One of the cases is about his divorce and matrimonial property.

He uses his free time to meditate, do yoga and exercise, activities he says calm him.

On the judges and lawyers attire, he says that he sought to decolonize the Judiciary because in the past, Judges played God by being referred to as My Lord who answered Prayers of court petitioners. Mutunga says that judges should not be called My Lord but Honourable.

This is the book Mutunga wrote when he was Kenya's CJ:  Dressing and Addressing the Kenyan Judiciary: Reflection on the History and Politics of Judicial Attire and Address.



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