Kenya’s fake democracy Part III

Dr Willy Mutunga

The then Chief Justice, Dr Willy Mutunga. 

Photo credit: File | Nation Media Group

What you need to know:

In this unprecedented series on Kenya’s fake democracy, I’ve so far trained my guns on the concept of Black fatalism and Kenya’s Independent Electoral and Boundaries Commission as the killer of Kenya’s democratic spirit.

Today, I stretch my analysis further and look at the Supreme Court as a part of this axis. Although I condemn the whole kit and caboodle – which I once wanted to lead – my eye is on the jinx on the person of the Chief Justice, the most important factotum on the highest court in the land.

The Chief Justice is only the first among equals, but she, or he, embodies the zeitgeist of the court. As the CJ goes, so does the court. The CJ is the court.

If the head of any court is a skank, or a judicial john, then the court is the politician’s brothel. It will, perforce, stink like a skunk. You might protest these strong words, and I might agree with you.

But “strong” words do not equal “wrong” words. For that reason, I would be intellectually vacuous – now knowing in intimate detail what I know – to sugarcoat anything I say about Kenya’s top court, with all due respect to the so-called “mi-lords” and “mi-ladies”.

How cute – but also utterly gross and disgusting. I was shocked to see African lawyers in the tropics go back to feudal – virtually medieval – England. The judgment was as ridiculous as the archaic regalia and verbiage.

Infamous ‘red phone’

But I digress, if only slightly. Let’s retrace our steps, or is it “mi-steps”. The Supreme Court was created in the 2010 Constitution as the “cure-all” for Kenya’s executive judicial capture.

Gone would be the days when the CJ would sit by the infamous “red phone” waiting for a call from the Big Man at State House. Perhaps former CJ Willy Mutunga – my earliest intellectual mentor – can correct me, but I seem to recall him telling me that either he ripped the red phone off the wall, or he never used, or answered, it.

I can’t remember which, but either memory speaks volumes about his independence as a judge. We believed CJ Mutunga would take us to judicial “Canaan”.

Then came the 2013 Supreme Court presidential election petition. Raila Odinga vs Uhuru Kenyatta and IEBC. The judgment was historic, but not in the way we usually deploy the term. Like a man who disappoints a woman, CJ Mutunga read a “two-minute” opinion.

He left the country high and dry, and for that he was rightly pilloried. I am not sure, but I think Dr Mutunga – easily the most popular man in Kenya when he was named CJ – has never recovered from that encounter with the vox populi.

The people take him out to the woodshed for shellacking every time he tweets. They still believe he stamped a fraudulent election. Imagine that – the most progressive CJ collapsed when it counted the most.

Dr Mutunga has never explained to the satisfaction of the progressives what happened in 2013. Perhaps he will in the future. Then enter CJ David Maraga.

No two CJs could be more dissimilar. CJ Maraga had no known, or discernable, progressive credentials. He had no history in the struggle for the Second Liberation, or any civil rights fight. He was a plain lawyer and judge.

Some say he was inarticulate and not a deep thinker. Others saw him as too religious to be a good CJ. Many condemned him as a conservative who was planted in the Judiciary by the system to do its bidding. But just as CJ Mutunga had shocked us, CJ Maraga made our hearts stop.

CJ Maraga nearly gave some of us a heart attack. He did the unthinkable. He showed the system the middle index. He told the Executive – in an earth-shattering ruling celebrated the world over – that Kenya’s Supreme Court would clean up the electoral system.

Kicking and screaming

He struck down Jubilee’s victory in Raila Odinga vs Uhuru Kenyatta and IEBC. He sent the country back to the ballot box with the ruling Jubilee kicking and screaming.

Most of us were ecstatic. It looked for a moment as though the Supreme Court would play its rightful role in the Constitution. Kenyans were proud people again. But before the re-run, deep-seated interference invaded the judiciary and took us two steps back.

Even so, CJ Maraga soldiered on. He earned a place in history. Today, the roles of CJ Mutunga and CJ Maraga are reversed in the public mind. To some, the former is a villain while the latter is a hero. That’s how Kenya’s history books read now.

How could the most conservative CJ become the most progressive, and the most progressive become the most conservative? And how could the Supreme Court somersault so unpredictably in just two election cycles? Had the court failed in the most important task for which it was created? Next week, in Part IV of this series, I look at the Koome Court.


Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School, The State University of New York. @makaumutua.

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