Chief Justice Willy Mutunga’s interview with the International Crisis Group: Abridged version
Why is this decision (High Court ruling on BBI) so significant?
This decision is very important because of its fidelity to the 2010 Constitution. You have to realise that the elite in Kenya finds this Constitution very progressive. Since its promulgation, we have seen struggles to claw back the fundamental pillars of this particular Constitution. That is why it’s landmark because it has preserved the progressiveness of this Constitution. This decision emphasises the sovereignty of the Kenyan people and that is the hallmark of democracy. It’s been praised by Constitutional law academics from various parts of the world.
What are your reflections on how exactly Kenya got here with such a uniquely assertive and independent Judiciary?
The Judiciary is not yet independent. There is a quest for this independence. The High Court is at the forefront of this struggle. Sometimes, the Court of Appeal has become a graveyard of progressive jurisprudence and the Supreme Court seems to seesaw even when I was in the Supreme Court. So cases are many and not just the nullifying of presidential elections in 2017, there have been many others in the High Court, particularly where legislation from Parliament has been struck down even legislation that the President had assented to.
That vision of the independence of the Judiciary is something the Judiciary has faced since the promulgation. What I can say is that the Judiciary is at a crossroads. Part of the Judiciary want to be an appendage of the executive and other influences and forces that undermine judicial independence, but there are others who want to emphasise fidelity to the Constitution and breathe life into it.
Independence of the Judiciary is a contested terrain but what I see is maybe the institution itself is getting united, in terms of its role to the people, but maybe we shall just have to wait and see.
“The Constitution itself is activist. That is why the Executive and Parliament find it too progressive for their liking,”Willy Mutunga
What is it like for justices to stand up to the Executive and even to the President himself?
The judges get attacked. In 2017 when the Supreme Court nullified the presidential election, the President, the deputy and others attacked the four judges who ruled that the election was not conducted under the Constitutional principles and therefore nullified it. There is a lot of pressure but the Judiciary also gets a lot of support from people. Like this decision on BBI is supported by Kenyans.
Kenyan politics is what I call the politics of division, so whenever the Judiciary makes a decision, it might be celebrated by some people because they see it as their victory. The BBI, for example, may be seen as a victory for the deputy president. So the intra-elite divisions are the ones that create all these problems… People see these findings of judges through these divisive lenses.
Do you think BBI is dead?
This matter is already in the Court of Appeal but I think it would be decided by the Supreme Court ultimately.
What I see, even if they [pro-BBI group] win in those courts, what I see is that there is going to be serious, serious resistance that is already building against a referendum and against what people are afraid would be very dangerous 2022 elections. You can see quite clearly that we are headed to very, very serious instability political instability.
Uhuru is afraid of a Ruto presidencyWilly Mutunga
Right now there is such a poisoned relationship between Uhuru and Ruto, what are the prospects of a smooth transition if Ruto wins?
Although it’s not spoken, there are has been a convention in our politics around the issue of presidential succession. It started in 1978 when Kenyatta died and Moi came in and protected the interests of the Kenyatta family. President Kibaki, not only protected President Moi in his retirement, but he also gave him lucrative retirement benefits. President Uhuru Kenyatta has done the same in protecting President Kibaki.
So everybody is talking about that convention in the presidential succession that has made presidents retire and just go home and they know they are not going to face politics of vengeance. I am of the view that at some point, President Uhuru Kenyatta is not convinced that his prospective successor would actually protect his family interests, protect his security and that he would probably undermine that political convention which is not constitutional or legal.
Raila Odinga as a progressive politician who has gone to bed with dictators.Willy Mutunga
My own hypothesis is that at some point, President Kenyatta started looking for a successor who would protect their interests. I don’t believe he wants to stay in power, he might want to have somebody who would protect his interests.
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