In Conversation With Dr Willy Mutunga

October 25, 2021

Former Chief Justice Dr Willy Mutunga sat down for an interview with Sunday Nation on wide-ranging topics including his plan to bring Miguna Miguna back home.

Here are some excerpts.

You have said that you will be travelling to Canada to bring back lawyer Miguna Miguna on November 16, 2021. Why now when he has been away for three years?

That is the beauty of it because it has been three years of injustice and it is about time we took it up. It was my own thinking, mainly because of the Judiciary. There are these orders that have been blatantly disobeyed and that go to the core of the independence of the Judiciary. Since the Judiciary cannot come out and defend itself, the job has to be done by somebody like me who was a Chief Justice. I am sure former CJ David Maraga has also been speaking about the obedience of court orders.

I thought that in this season of politics, it might be important to resurrect this issue of disobedience of court orders and the independence of the Judiciary, and the one case that is well known locally and internationally is that of Miguna. I thought that having that case, along with those of political detainees and corporations in Kenya that are owed money by the government, would be timely.

The timing is quite right and this is the proper season for political parties that want to take up these issues as their own in the campaigns. I think they should. Raila went to the airport to see him there.

That is the timing from my perspective. Resurrect it, let people talk about the orders from the courts which should be obeyed, and let this be an issue in the 2022 elections. Let us see what the leaders say about court orders, let’s see what position they take on Miguna, the political detainees and corporations that are owed by the government.

But the move to bring back Miguna Miguna could put you on a collision course with the government. 

I have been in collisions with Kenyan governments since the 1970s. That will not be new. I am doing it for the country. If I were to talk to the government, I would tell them exactly what I am telling you because I think these are issues of national interest.

There still exists the red alert issued by the Kenya government to airlines stopping them from flying Miguna to Nairobi or to any other African country. How do you intend to go around this?

First, we have asked for legal advice on red alerts, including their legality under international law. Can airlines refuse to fly you to your country of origin when you have a national ID? We lose passports sometimes but when we get to Nairobi we use the ID. The courts have said Miguna is a Kenyan citizen. Once we know which route he is taking, we want to find out which countries have these red alerts and determine the best way to deal with them and their airlines. In my view, it is not the airlines’ business to offload passengers on the basis of red alerts that they have not investigated.

We are not seeking any confrontation. It is a whole question of dealing with issues in a way that benefits the world as well. If the airlines get a red alert, does that alert have the force of law, especially if it is given by a government that is violating orders? Are we going to be stuck all over the place as Kenyans because the government has issued a red alert?

There was an order that Miguna could be accompanied by a representative of the Kenya National Commission on Human Rights. That did not happen. I then said that if the order is that he be accompanied by somebody, I can do it. Journalists, the Law Society of Kenya and other people who want to come are free to do so. It is just a matter of solidarity.

You and the Supreme Court Bench then were harshly criticised for the 2013 presidential election petition verdict. There were allegations that you were bribed, and that you employed technicalities to block the evidence of the petitioners. What happened during that petition?

People forget that Jubilee carried propaganda that I was close to Raila because we were in detention at the same time, I worked with him in NARC and others and therefore I would rule in his favour. And there was a lady (Nazlin Omar) who filed a case suggesting that I should disqualify myself but that was rejected.

When I swore President Uhuru Kenyatta at Kasarani Stadium on April 9, 2013, I got the greatest ovation I have ever received in my life. If I was in Kitui or the other CORD strongholds, I probably would have been physically attacked. The point I want to make — and which I keep on making — is that presidential petitions and other election contests are political and whatever you decide will never be accepted by all across the political divide.

Obviously, supporters of CORD, including the Kambas, were very angry, and it was not just with me; it was also with judges Mohamed Ibrahim and Smokin Wanjala. For the latter, people camped in his mother’s house in Busia after the decision wanting to know why we decided the petition in that way. Politics of division is just about that. You cannot satisfy everybody.

When people criticise that decision as a ‘quickie’, as Dikembe (ODM activist) calls it, they have valid concerns, but I also explain in my upcoming book that we debated on how to deliver it. My view was that we should talk to the people and tell them why we have ruled in a particular way, but the consensus was reached that we might say something that is not in the reasons that we were to give 21 days later.

I still don’t believe that was the right thing because we were on television for almost 14 days and we should have told the public why we had rejected the petition. Every judge was handling a particular issue. For instance, I was handling the issue of technology that failed. I was ready to come and say in this particular issue there was no problem because the parties agreed that if technology failed they would go manual.

What this petition taught me is that judicial proceedings should be a dialogue with the people. The person who loses is the one that wants to know why they have lost. We did not do this immediately. We should have told CORD why they lost. In my memoir, I describe what I saw as weaknesses.

When I get abused on social media I don’t often respond because these are people probably pained by the decision, and rightly so. When I lose my head sometimes I respond to a few people and say, ‘Well, you see Baba is now a co-president. What has he done for you now?’ They don’t reply. It is a whole question of telling Kenyans to know that when there is a petition, it is going to be ruled one way or the other.

When Kalonzo Musyoka said that we were bribed we almost sued him. He said that we were bribed and he knew where the money was kept in offshore accounts. We told lawyers to write to him so that he could tell us where those offshore accounts were. He did not say anything and we dropped it.

Let me give you a story that I have not given to the media about that petition. On March 30, 2013, my nephew and my family were meeting somewhere in Muthaiga. My nephew was going to get married (and he did) to a girl from Mukurweini. The two families were in Muthaiga discussing dowry and the wedding arrangements. They had to stop to listen to the verdict. The moment we decided in favour of Jubilee the Mukurweini people started singing their songs and dancing while the Kambas became very upset with me and my family. I think some people said rude things about me. That meeting almost collapsed that relationship.

On May 3, 2013, we were able to patch up and the wedding took place. I was invited to talk to the people in the church. I called out all those people and asked them to stand up. I was at the pulpit, I felt like a pastor and also a Chief Justice. I gave them a lecture and said, ‘You are the people who are ruining this country. These kids fell in love, you were not there when it happened and you are talking about dowry and marriage. And then the petition almost rocks their relationship and marriage’. I asked them what Uhuru or Kalonzo had done for them that they should come and destroy their children’s relationship. I spoke for 30 minutes from my heart. I told them, which was also a lie, that I almost had them thrown to prison for contempt of court. Some of them were shaking thinking I was going to be a judicial monarch and say they go to Kamiti.

I give this example to show you that administering justice is difficult when the politics is not right. Even your own relatives start thinking you were bribed. ‘How could you decide against your own Kamba community?’, ‘How could you decide against Raila your friend, who has suffered with you and all that?’ Justice is difficult. As long as you have politics of division, there is no way a judge will retire without people saying that they decided cases based on tribal affiliation or bribery. We have to clean it up.

In 2013, only Raila came to our rescue when he said that even though he did not agree with the decision, he nonetheless respected it. The others ‘wanted us hanged’.

Some of the parties to the petition were your former colleagues in the civil society. Did the decision in any way strain relations with them?

I am very happy you asked that question. Apparently, friends in the civil society thought I would rule in their favour and Raila. For almost a year, some of them wouldn’t talk to me. I spent time explaining to people that, look, I was a judge on a Bench of six, did you expect me to hit their heads and force them to rule in one way or another? Everybody forgot that we were six. It is very unfair when you get targeted like that. You ask yourself, what about the other five, did they not count? What is the Chief Justice expected to be, a rogue one who intimidates the others to rule one way or the other? That is not how it happens.

When you make mistakes, it is okay to be criticised. We have to create good politics so that those who lose cases do not go about saying judges were bribed. But when they win, they spread a very different message. You remember Raila in 2017 after winning the petition? He said that that was a landmark ruling! It is laughable. Either way, a judge or judges will be glorified by one group and vilified by another. It is not a good feeling to be in that situation because politics is organised that way.

Towards the end of your tenure as Chief Justice, the Supreme Court came across as a divided house as the dispute over the retirement age split the judges. In fact after you left office, you took the stand to testify in court against some of your former colleagues, Justices Ojwang’ and Njoki Ndung’u. What sort of a relationship did the Supreme Court Bench have?

We had a good relationship there. Difficult cases come to court and judges have conflicting views. You have to allow them to express them. On the issue of retirement, there were judges who said 70 was the constitutional age while others said it was 74. A judge of the Supreme Court stopped that process. One judge, and of course we had to deal with it. Any decision made by one judge can be reviewed by a full Bench and that is what we did and the majority —three — ruled that it is 70.

People don’t know we had serious discussions at the JSC about the issue. At some point, JSC told the judges who were saying they would serve until 74 that they would be given the benefits for those four years. I would have taken it. Four years getting salary and not working!

Then a colleague was facing a tribunal and the matter came to me before it went to the JSC. The context was very unfortunate and conflictional. We had to decide. It was not personal. It is what the Constitution said and we were clear about it.

Divisions among judges should not worry people. When we were unanimous in 2013, you were not happy. Judges should grow thick skin. Judiciary should focus on getting the confidence of Kenyans. That, for me, is very important.

Some decisions make Kenyans see that the Judiciary is actually interested in their affairs. The BBI ruling is one such. High Court judge James Makau also gave a ruling that Chinese passengers who had entered the country at the height of the Covid-19 pandemic should be tracked down, tested and quarantined. The order, of course, was disobeyed, but the ruling showed that the Judiciary was interested in our general wellbeing.

The Bill of Rights says that our rights have to be protected when violated or threatened, or when the Constitution is faced with a contravention. This was the only court decision I have read about in the world about Covid, but it was not glorified. When Judge Makau makes another decision, he will be pilloried.

What made you aspire to be the CJ?

I sought to vie for that position for two reasons: I had been involved in constitution-making projects since the 1970s, calling for laws that were pro-people and pro-social justice, and which did not allow imperial presidencies and dictatorships. Even in 1994, we drafted a constitution that we thought should be the constitution of Kenya. It was only logical that I applied to be at the top of the Judiciary and implement such a constitution. Secondly, I also knew that if Judiciary played a transformative role, even the other institutions would fall in line. I did not know I would make it. My contract at Ford Foundation had just been extended for three years and lo! I was informed that I got the job.

I knew the Judiciary needed all kinds of leadership. We took William Ouko’s report, which was very useful because the Judiciary had decided on what should be reformed. We dusted it off and that is how we came up with the Judiciary Transformation Framework. We knew that we could transform it from the margins. Maraga came and sustained some of the reforms and Koome will continue with them. There is a consensus that the Judiciary is very important in this county. That is why I applied.

By the time you were leaving in June 2016, had you achieved the goals you set out to?

If you go by the 2012-2016 transformation framework, I would say we achieved 80 percent. In the Grand Coalition Government, both Raila and Kibaki supported the Judiciary. The budget moved from Sh3 billion annually to Sh17 billion. That coalition government gave us resources and we were able to do a lot. I was also able to bring in my fundraising skills and we were able to do a lot on that front too.

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