Saturday, 2 March 2013

CJ stands between Kenyans and tyranny or chaos

 By MAKAU MUTUA  ( email the author)

Posted  Saturday, March 2  2013 at  18:17

There are three co-equal arms of government in a democracy. None can – or should – command the other. This iron-clad principle is unarguable. But at pivotal moments, one arm can assume supremacy over the other two.The Executive must lead when the nation is under attack. Only the Legislature can pass laws to fill a legal vacuum. But the Judiciary triumphs them all during general elections.Forget the IEBC for the moment – it’s just a technocratic bureaucracy to organise the elections, and to “collect and count” ballots.That’s why the ultimate legitimacy of an election rests with the Judiciary. This makes Chief Justice Willy Mutunga the most important Kenyan on March 4, and the next few months. That’s the truth.I am not knocking the IEBC. But important as it is, the IEBC won’t be the final arbiter of who won––or lost––the elections. That solemn task rests with CJ Mutunga’s Judiciary.Nor should state apparatuses – Executive factotums in the civil service, police, armed, and security agencies – play any other role beyond ensuring order and stability. They must remain strictly impartial in the contest.

That’s why Head of Civil Service Francis Kimemia can’t afford to be implicated in any sleight of hand.But Kenya’s Executive has historically been predatory. That’s why we must accept that only CJ Mutunga stands between Kenyans and tyranny, or mayhem.There’s another reason why CJ Mutunga is the pivot of the country.That’s because the legislature doesn’t exist; it was disbanded for the elections.The “political executive” – the Cabinet – is on furlough. Only President Mwai Kibaki – and his praetorian guard – is on full time duty.He’s not running for re-election, but I am sure the outcome must be of more than a passing interest to him.His successor will either cement, or reverse, his legacy. But Mr Kibaki is more or less a hapless spectator, having refused to openly anoint a successor.He’s now bound by law and ethics not to use the State to bend the will of the people towards any candidate. But is he helpless to intervene?This civics lesson brings me back to CJ Mutunga. Let me clear the air on Kenya’s Chief Justice. I do so because I have seen misbegotten references to his character, and my relationship with him. Some malignant fellows want to lower CJ Mutunga’s moral standing and probity for their own nefarious agendas.
That’s because they are afraid of an upright chief justice, one whose ear they can’t bend, or whose heart they can’t weaken. We know Kenya’s history, and never has the country been fortunate to have the calibre of Dr Mutunga for a chief Justice.He’s a human being who towers over mere mortals. I know because I’ve known the man for decades. He’s a true icon.CJ Mutunga is my earliest and most influential mentor. I wouldn’t be where I am today without him. I am his student. But ours isn’t a relationship of sycophant and master, or simply teacher and pupil. It’s a learned and erudite camaraderie that rests on the tradition of “ruthless self-criticism” and “candid interrogation.”Ours is a kinship about “methods of inquiry” and not necessary the “outcomes of those inquiries”. It’s true we are yoked by the ideology of justice, but we don’t always agree on how to get there. That’s why it’s completely erroneous for anybody to attribute my views to CJ Mutunga, or his views to me. That’s the beauty of the freedom of thought.
I have strong views on Kenyan politics. Those views are well known because I don’t take any prisoners. But I have never spoken for CJ Mutunga, and never will. Nor do I discuss my political views with him as CJ.But I won’t dissociate myself from someone I have known for eons simply because he’s now Chief Justice. He’s my friend – I knew him before he was CJ, and I will still know him after he ceases to be CJ. I don’t work in the judiciary, nor do I have anything to do with how CJ Mutunga administers the judiciary.People who imply otherwise have sick agendas. But I will use my platforms to speak out in his defence.Several incidents relating to the judiciary worry me. A number of judges have been physically attacked. The CJ and the judiciary were sent an ominous letter recently. He rightly denounced it and informed the nation.We know Kenya’s history of assassinations. An immigration factotum purported to stop CJ Mutunga from international travel at JKIA on instructions from “above”.These are coordinated attacks on the CJ and the institution of the judiciary to cow them before the elections. That’s because “dark forces” may believe that only the CJ and the judiciary stand in the way of a power grab. They are right – CJ Mutunga’s fidelity to the Constitution is beyond question. He’ll defend it to the death.
They say that a birth is a beautiful thing. But it is also painful. Nations need impeccable people at the helm at key moments.The United States had Abraham Lincoln during the Civil War. South Africa had Nelson Mandela to transition it from Apartheid.My view is that Kenya has CJ Mutunga to implant the new Constitution. That journey starts in earnest either on March 4 – if there’s a clear and acceptable winner – or in the runoff thereafter.CJ Mutunga and the new-look judiciary will anoint the new dispensation. Let him do his job. 

Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC. Twitter @makaumutua.

No comments:

Post a Comment