Get Mutunga’s finger off self-destruct button

By TIMOTHY BOSIRE

If, as the Law Society of Kenya has complained, Chief Justice Willy Mutunga has attempted to rescue Supreme Court Judge Mohamed Ibrahim from being discharged from the Judiciary for gross incompetence, then Kenya is in big trouble.

Our last hope for actualising comprehensive reforms is surely crumbling before our naked eyes.

Once more Kenya’s hopes for change after a major leadership overhaul is being cannibalized. It is a manifestation of Kenya’s curse “ the more things change, the more they remain the same.”

Notably, in Kenya all major regime changes:- from the colonialiststo Jomo Kenyatta, from Kenyatta to Daniel Arap Moi, from Moi’s Nyayo politics to Mwai Kibaki’s rainbow revolution and from Kibaki’s first regime to the grand coalition regime, complete with UN, EU and AU supervision, the ghost of a stubbornly “permanent status quo” has proved impossible to exorcise.

Appalling delays

Hence, Kenyans have become accustomed to not reading too much in any major changes because history has shown that they turn out to be cosmetic. Just some shuffling of personalities and faces.

Reports that Dr Mutunga has communicated to Judiciary authorities handling the recent dismissal of Judge Ibrahim pleading to have him rescued from the guillotine on grounds that he has since delivered the over 250 over delayed judgments that made the vetting tribunal throw him out, are unbelievable.

The LSK has objected strongly to the tribunal. However, many Kenyans remain quiet. May be because they are used to similar betrayal by our leaders and institutions or because they are simply helpless.

The CJ’s strange intervention for Justice Ibrahim, if true, is like that of a referee in a football match allowing a team that has lost to score winning goals after the final whistle. It also is akin to a negligent doctor rushing to try and resurrect his patient whom he allowed to die earlier on.

He should be reminded that we mortals are compelled by nature to solve our problems in time. Not after. We should never try to ape God’s supernatural deeds. That amounts to blasphemy. For they are beyond us and very selective in this case.

Justice Ibrahim was convicted and dismissed by the vetting Board for chronic and appalling delays in making judgments in hundreds of cases he presided over while he served as High Court Judge in several parts of the country.

This, yet as a well read legal practitioner he knows that: “Justice delayed is justice denied”. Put simply, the man had perfected a habit of denying Kenyans justice.

That is a clear abomination in any democratic society that upholds the rule of law. It is ironical that now he is desperately pursuing justice yet he saw no evil when he callously denied many poor Kenyans. The CJ’s quick assistance to him smacks of double standard.

I am at a loss why the honourable CJ fell for this. All along, we had come to hold him in high esteem as our only true hope towards reforming this country.

We cheered him on when he led by example in sanctifying the magistrates and judges vetting process by submitting to it.

We also hailed him and praised him for good focus and steadfastness in ensuring the Judiciary always readily intervened to correct wayward games by the executive and parliament whenever they have tried to subvert the implementation of the new constitution.

This latest blunder

His neutrality in the handling of the Justice Nancy Baraza gun drama saga, his progressive expansion of the judiciary and push for expedition of cases in courts have impressed many. He even recently gave the country a firm assurance that he will ensure the independence of Judges and Magistrates in performing their duties and ensure court rulings are obeyed to the later. Yet on this one he easily stumbled.

In these trying times when the Executive came out as a bastion of impunity, attempting to circumvent constitution implementation and the rule of law and when MPs mischievously opted to go slow on reforms, we looked up to Mutunga and his promise of a truly reformed Judiciary to be their only insurance against forces of impunity.

Our Chief Justice should be alive to the popular view that a society can tolerate a bad executive and a non-performing Legislature but can never survive a non-performing Judiciary. Because the Judiciary is designed to be the arbiter, moderator, punctuation, control agent to always step in to rectify what is going wrong! I view this latest blunder by the CJ with consternation.

I wonder whether this has any relation with his failure to be tough and rough against the Executive breaking the law and defying court rulings and orders with impunity.

Wasn’t the CJ the one who recently teamed up with Attorney General Githu Muigai to promise Kenyans that they will soon establish a Judiciary Police Unit, to enforce court decisions?

By unprocedurally stepping in to rescue a disgraced Judge, isn’t the Chief Justice telling us loudly that he is slowly joining the elite club of Kenyan leaders who prefer personal convenience to the rule of law?

Animal Farm?

By rushing to Justice Ibrahim’s rescue while abandoning Justices Baraza, Jeanne Gacheche, Roselyn Nambuye and others to their fate, is he telling Kenyans that our Judiciary under him will become akin to George Orwell’s Animal Farm where “some Judges are more equal than others”?

God forbid!

Is Dr Mutunga succumbing to status quo forces to re-introduce impunity in the courts through the back door? Why does he forget that his first duty is to defend the Constitution and firmly pursue fidelity to the laws of the land “without fear or favour”?

But in this case both fear and favour are clearly manifest.

The writer is a politician.

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