CJ: No regrets over Raila poll verdict

Chief Justice Willy Mutunga does not regret the Supreme Court decision which rejected former Prime Minister Raila Odinga’s election petition in favour of President Uhuru Kenyatta.

The judgment by the Supreme Court in April last year has been the subject of debate and heavy criticism by Mr Odinga’s supporters as well as some lawyers who have described it as incompetent, inadequate, poorly researched and one which had failed to break any new legal ground.

The ODM brigade has consistently charged that the Supreme Court relied on technicalities to determine their case, at the expense of material substance.

But speaking exclusively to the Sunday Nation in Kisumu on Friday morning, Dr Mutunga defended the judgment, saying it was guided by the Constitution, the elections laws and evidence presented.

“I do not regret the decision. We are accountable for the decisions we make. We did the best we could in our circumstances and we have nothing to hide,” he said in the breakfast interview.
Dr Mutunga also defended his call last week for Kenyans to explore other forums in the search for justice and clarified that he was not encouraging witchcraft.

Following are excerpts from the interview:
Q: Why are you encouraging Kenyans to consult witch doctors instead of going to courts?
A: I was quoted out of context.  We are still building and transforming courts using tax payers money. My call is pegged on Article 159(c) of the Constitution which encourages alternative forms of dispute resolution including reconciliation, mediation, arbitration, and traditional resolution mechanisms.

Only five per cent of Kenyans go to court. You would be concerned, where do the remaining 95 per cent go? That is why we are encouraging use of other forums of administration of justice such as respected council of elders, church leaders, mosques. There is a linkage between modern and traditional dispute resolution mechanisms. 

The Kambas, for instance, administered kithitu oath in land cases. The native courts were abolished but the place and value of traditional dispute resolutions mechanisms is accommodated by the 2010 Constitution. They are now part of our jurisprudence.
Q: But the same Constitution says the same traditional dispute resolution mechanisms should not be repugnant to justice. Are you advising Kenyans to go to kangaroo courts, and promote witchcraft?
A: These are not kangaroo courts. People are devoid of their history. We should not associate traditional justice systems with witchcraft. Even traditional courts punished witchcraft.  These systems exist and should not be marginalised.

We have elders in Isiolo who handle disputes ranging from murder, defilement and theft. We have started a pilot programme to ensure that their decisions adhere to the values of the Constitution and other laws.

Other alternative forms of dispute resolution include mediation, reconciliation and arbitration.

But even more important is that Kenyans must appreciate that the modern court system is adversarial, expensive and destructive especially in family cases. It produces a winner and a loser and strains relationships be it family or business partnerships.  I have seen instances where brothers have failed to bury their brothers after court settlements.

That is why we are saying let us only resort to court when every effort at conflict resolution has failed. It is because of the need to sustain relationships that arbitration is big and has now been accommodated under the relevant Act. It is ideal for commercial disputes.

Q: You have been going round the country building courts and other infrastructure as part of the Judiciary transformation. But what about the intellectual infrastructure?  
A: The balance is very critical. We are also concerned about what you are describing as intellectual infrastructure. The Constitution says that our jurisprudence should be both indigenous and progressive. We need very well trained personnel to do this.

We have revived the Judiciary Training Institute and emphasise recruitment and promotion on basis of merit. I think it will be extremely difficult for a judge to be promoted to the Supreme Court in future unless he or she has distinguished himself as a great jurist regionally and globally.

Most of our jurisprudence is imported. But Kenya now has the most modern Bill of Rights in the world. This comes with a new challenge for us to develop jurisprudence and export it to the rest of the world. This demands more investment in intellectual infrastructure.

To sustain the intellectual tradition in the Judiciary, we have increased budget for training and come up with scholarships for judicial officers. We have also started a course called Law 101 for secretaries, clerks and other non-lawyer members of the Judiciary. This prepares ground for intellectually grounded judicial officers.

Q: As a teacher of law, don’t some of the decisions coming out of your courts disturb you for their want of research and intellectual rigour?
A: I sit in the Supreme Court and I have not had opportunity to interrogate decisions from the lower courts. Some court decisions reflect intellectual rigour and others don’t. The bad decisions are overturned by the Appeal Court. With investment in more training, we hope the quality of judging will improve.

We are looking at and drawing from the experiences of South Africa from whose Constitution we benefited while writing ours, India and Columbia with equally recent constitutions to grow our jurisprudence.

Q: Probably the biggest decision you have made was the Raila election petition which has been widely criticised as incompetent. As the intellectual head of the Judiciary, how do you deal with such criticism?
A: I do not regret the decision though it is not the only one. The Supreme Court also rendered an important advisory on the processing of the Division of Revenue Bill  for sharing of revenue between the national government and counties.  We are accountable for the decisions we make. The critique on the petition judgment is divided. We did the best we could in our circumstances and we have nothing to hide.

We applied the Constitution and the law as well as the evidence presented. We were supported by a strong team of lawyers and a battery of researchers. I have always felt that the people who criticise our judgment have never read it, especially newspaper columnists. I maintain that the Supreme Court of Kenya neither has friends nor enemies among Kenyans. All the Court cares for is justice for and to all Kenyans.

That is why we took the material to the academy, to law schools and asked the professors to interrogate the judgment. If we made any mistakes we have let them be debated by the academy. But the Supreme Court is not bound by its decisions. There are opportunities in future to make changes but we have provided the basis.

Q: Despite your public pronouncements about fighting corruption in the Judiciary, the vice remains considerably rampant. Why? 

A: The old cartels are still holding strong. And it is not just in the Judiciary. It is like an octopus which has held the entire country hostage. It is like a feeding trough for the greedy but we have sealed loopholes, streamlined the registry and procurement to address the problem. There is also focus on judicial officers.

Q: What is your response to arguments that the Judiciary appears keen to lord over other arms of government. And that some of its decisions are not enforceable?

A: We are acting on the strength of the Constitution which has entrusted dispute resolution to the courts. Once a decision is made by the courts, it stands unless overturned by a superior court or reviewed. We give technical advice and enforce the rule of law.

Q: And what are the limits to judicial independence?

It is defined by the Constitution. I think it is absolute. But the misconception is that it is only curtailed by the Executive. It can be challenged by Parliament, corporate interests, the political class, family, civil society or individual Kenyans. It is work in progress and that is what we hope to attain. There are opportunities to dialogue and consult amongst the arms of government.