Chief Justice Dr Willy Mutunga is a soft-spoken man but the work he has undertaken at the Judiciary speaks volumes about his work ethic. Backing his achievements are outstanding academic and professional credentials. When he did his O-levels, he became the first student in Kitui District to score six points in the exam (an ‘A’ in all subjects), a feat that earned him a place at Strathmore College for his ‘A’ levels. He obtained his Bachelor of Law degree from the University of Nairobi in 1971 and his Masters from the University of Dar es Salaam in 1974. He then joined the Law Faculty at the University of Nairobi as a lecturer, becoming the first indigenous Kenyan to teach constitutional law at university level.
He has been writing for more than two decades, mostly on activism, drawing inspiration for his works from nationalist heroes, including anti–colonial fighter Dedan Kimathi and the late Pio Gama Pinto. At University of Nairobi, his activism was associated with academicians such as Ngugi wa Thiong’o and Professor Ali Mazrui. Because of his work as an activist, he was arrested in 1980 and detained without a trial. Upon his release, he went in exile in Canada where he did his doctorate in law, majoring in jurisprudence at the Osgood Hall Law School in Toronto.
His passion for law and justice cannot be gainsaid. He was instrumental in the launching of the Kenya Human Rights Commission, now anchored in the Constitution, and has established and served in many civil society organisations, among them the Legal Advice Centre (Kituo cha Sheria), the Law Society of Kenya, the Council for Legal Education, the Citizens Coalition for Constitutional Change (4Cs), and the East African Centre for Constitutional Development (Kituo Cha Katiba), Uganda, among others. Due to his contribution to the development of law, human rights good governance and social justice he has received national and international honours and awards, including the lifetime achievement award for the protection and promotion of human rights from the Kenya National Commission on Human Rights in 2003.
The reforms instituted by him at the Judiciary in the last four years cannot be understated or downplayed; to do so would be an injustice. But when the Public Accounts Committee (PAC) tabled a report in September regarding investigations on financial improprieties at the Judiciary, and about leadership at the crucial institution in particular, it was a devastating indictment of Chief Justice Willy Mutunga’s credentials and leadership of the Judiciary. The PAC accused him of “failing to assert himself” as officials engaged in activities that had cost the taxpayer millions of shillings.
In the 144-page report, PAC painted the picture of a “headless” Judiciary in which Dr Mutunga is “unable to control his officials amid massive misappropriation of resources” and “routine flouting of laid-down rules for management of public funds”. For an outfit that routinely takes money from both individuals and institutions to ask questions, fail to ask questions, trash investigation reports, pass and adopt premeditated resolutions, and rubberstamp legislation, among other misdemeanours, that MPs had finally compiled and presented a report was something to celebrate.
As it turns out, the PAC may have been more than economical with the truth regarding the goings-on at the Judiciary, and at whose behest the Committee deliberately ignored certain pertinent facts and distorted the truth about some accusations levelled against the CJ is a matter of debate.
Last month, Dr Mutunga finally wrote to National Assembly Speaker Justin Muturi about the allegations by the PAC. While he was not as crass in his response as the MPs were in their accusations, he demonstrated that the Committee’s indictment of his leadership was not only untruthful, but malicious as well, deliberately designed to cast aspersions about his performance.
Amongst the shortcomings of the report, the CJ noted, was that most of the recommendations made had been overtaken by events as they came after disciplinary processes against culpable individuals had been undertaken by both the CJ and the Judicial Service Commission, recovery of misappropriated assets initiated, prosecutions commenced and requisite institutional policies developed. In fact, a big chunk of the recommendations made in the PAC report were adapted from the JSC’s “Report on the removal from Office of the Chief Registrar of the Judiciary, Mrs Gladys Boss Shollei”, from a year before, forwarded by Dr Mutunga to the PAC. It was on the basis of this report that Ms Shollei was removed from office.
Further, Mutunga reveals in his response that even after offering to appear before the committee to respond to questions raised, the PAC, whether by genuine error or deliberate effort, chose to go ahead with a lopsided report that painted the CJ and the Judiciary as being under an irredeemable cloak of mismanagement. Further, the CJ says, he was amenable to receiving and responding to questions on email – a fact he made sufficiently clear.
The CJ notes:
“Whereas PAC has done well in assessing the state of accounts, there are sections or the report that sound strange. There is a manifest desperation and demonstrably embarrassing compulsive obsession to find fault with the Chief Justice. In this unfortunate pursuit, logic is tortured, truth is parsed, fact is denied, reasoning is circular, law is ignored, and evidence is suppressed… None of the documents the current CRJ provided made it to the final report. The sense of urgency to find fault was so great that the Committee could not even get the spelling of my name right.”
Following are excerpts from the Dr Mutunga’s letter:
PAC Recommendation 1: “There is need for every Kenyans to adhere to the rule of law, particularly Article 125 of the Constitution that gives Parliament the power to call evidence from any person. The Committee notes with concern the Chief Justice’s refusal to honour summons by the Public Accounts Committee during its probe into the Judiciary and JSC expenditure. As the head of Judiciary, the Chief Justice should lead from the front in demonstrating fidelity to the rule of law and Constitutionality.”
Chief Justice’s Response: “The observation that I refused to honour summons by the PAC is not borne out of facts. In a letter dated June 9, 2014, to then PAC chair Ababu Namwamba (evidence attached), I indicated my willingness to attend. In a subsequent letter addressed to the Speaker dated June 30 (evidence attached), I further addressed this matter. None of these letters were formally responded to. However, in between, a conversation emerged about the appropriateness of the heads of other organs of government (the President and Chief Justice) being questioned before Parliamentary Committees. That conversation was not concluded by the time of writing the PAC Report, and it is time to establish appropriate custom, protocol and rules on this matter.
My inclination to appear is clear from the correspondences; the mechanics of this appearance were still a subject of discussion before the report was concluded.
Recommendation 2: “Henceforth, the Chief Justice should annually report as required by Section 5(2) of the Judicial Service Act, 2011, to Parliament on progress towards implementation of the Judiciary Transformation Framework, and progress of the Judiciary.
Response: “I have actually presented two, State of Judiciary and Administration of Justice Reports for, 2011/2012 and 2012/2013 (evidence attached); a third one is being launched in December. These reports have been sent to each and every member of the National Assembly and the Senate. Neither Chamber has debated these reports. This recommendation should be purged and rewritten to require that Parliament debate these reports. Again, had PAC granted me a hearing, or sent an enquiry to me on this matter, this factually inaccurate recommendation would not have been made.
Recommendation 3: “The CJ should forthwith refund the leave allowances irregularly drawn from the Judiciary. He should henceforth exercise effective general direction and firm control of the Judiciary as provided for under Section 5(2) of the Judicial Service Act, 2011.
On leave allowances: First, commutation of leave is consistent with government policy. Because of the elections in 2013, all judges of the Supreme Court decided not to take leave. In order to guarantee judges’ presence at a delicate political time, and also ensure that did not lose their leave days, the judges’ outstanding leave days were commuted for cash; the leave days were earned and they were proper. What was irregular was for the CRJ to pay them from the Judiciary Fund instead of from the Consolidated Fund. When then director of Finance brought this to my attention and stated that I had been paid Sh524,055 as leave commutation from the Judiciary Fund, which was irregular, I immediately refunded the money to the Judiciary Fund as contained in official receipt number 1426758 of April 29, 2013 (evidence attached).
On effective control: I have exercised effective control in a consultative and democratic manner. In my “120 Days” speech, I stated that the era of Chief Justice as a “judicial monarch” was over. Power and authority are now dispersed to the JSC, President of the Court of Appeal and Principal Judge of the High Court. I have, further, established the Judiciary Leadership Advisory Council (JLAC).
The problem here was not absence of effective and firm control but having a Chief Registrar who, both in writing and conduct stated she was NOT accountable to either JSC or the Chief Justice. In fact, in the letter PAC has annexed in Paragraph 2, the former CRJ asked the Chief Justice to write to the National Treasury “to seek designation either as an additional accounting officer… or as the accounting officer singularly responsible for financial management of the Judiciary.”
In my memo dated July 30, 2013 (evidence attached), under the theme “Restructuring the Reporting and Accountability Framework”, I had attempted to streamline the accountability framework, which was actively and arrogantly resisted by the former CRJ.
And PAC seems to want it both ways: When things go wrong, it calls for exercising of firm and strong control; when CJ/JSC intervene against these wrong things and exercises strong oversight, PAC calls it meddling in the work of the accounting officer. PAC needs to be clear and demarcate where meddling ends and firm and effective control begins, to avoid this kind of circular reasoning.
When JSC and I realised there was a problem, we called the former CRJ to account. She took refuge in the Cabinet Secretary of National Treasury who, without inquiring why JSC was inspecting the suspicious payments, quickly fired a letter (what PAC calls ‘Treasury Advisory’) ominously warning JSC against “interfering with the work of the Accounting Officer. PAC calls this meddling in the work of the accounting officer “against advice by the Treasury”. JSC calls it oversight to protect public resources.
Recommendation 4: “For his failure to provide leadership, the Chief Justice must take personal responsibility for allowances paid to JSC Commissioners for attending meetings that were not convened with his knowledge and approval. Similarly, an audit of all such meetings should be undertaken and the responsible commissioner surcharged.
Response: “The legal and common-sensical heresy of the first part of this recommendation is clear. Assuming the sub-committee meetings indeed took place, if they were meant to be ‘secretive’, and the CJ was not supposed to know, how then do you surcharge the Chief Justice for having been successfully blindsided? PAC asserts that I did not know about the meetings; I did not recommend or authorise that commissioners be paid; how then do I become culpable? Don’t you recover money from those who have received it or authorised its payment? The recommendation has no known constitutional, legal or common-sensical legs! It should be expunged.
Recommendation 5: “For disregarding the Treasury’s written advisory on the management of public funds, the Chief Justice must take personal responsibility for all payments irregularly made on his instructions.”
Response: In the entire PAC report, there is no evidence of any payment made on my instructions. It is not the duty of the Chief Justice to instruct how payments should be done. The Treasury “advisory” dated October 13, 2013, which was a solicited refuge from JSC oversight, was in response to the intervention of the JSC to inspect and stop further loss of public funds, and not make new payments. I also hope that PAC will find it useful to question the role of Treasury’s internal auditors who were in the Judiciary and who did not unearth these issues until JSC did. Like the rest, this recommendation should be purged.
Over and beyond these, the CJ goes on to enumerate reforms he has instituted at the Judiciary, among them the improvement of staff welfare through the expansion of staff benefits to include the establishment of car and mortgage allowances, and expansion of the medical scheme; introduction of performance contracting and the institutionalisation of data culture; stakeholder and public participation through Judicial Marches and the NCAJ; and development and gazettement of various Rules to speed up litigation and leadership in the review of numerous legislation, including election-related ones.
Indeed, in a memo to senior Judiciary staff titled “Restructuring the Reporting and Accountability Framework” and dated July 30, 2013, the Chief Justice directed Registrars and Directors to prepare periodic comprehensive status reports, with a focus on ongoing projects for the relevant financial year, which would include figures and explanations of any major variations. Major variations to projects, he said, were required to have the approval of the CJ and, where necessary, that of the JSC.
In his book “Progress Report on the Transformation of the Judiciary: The First Hundred and Twenty days”, Mutunga says on the state of the Judiciary when he took over: “We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. We found a Judiciary that was designed to fail…”
In retrospect then, the achievements enumerated above are no mean successes in the short period of three years, especially considering that they are reversals of decades of mismanagement and maladministration. In this regard, the Judiciary Transformation Framework has set the tone and laid the ground for transformation at the Judiciary; in the Chief Justice’s own words, “a single case (the Shollei saga) of staff indiscipline, which was handled in remarkable speed, cannot be the parameter to measure the state of implementation of the Judiciary, as the PAC would have people believe.
On Page 123 of its report, the PAC noted thus: “… the wisdom of placing a man with limited public service experience, and no record of having led a large organisation, to head a crucial arm of government like the Judiciary, must not only be questioned, but should be a critical point of consideration in future appointments.”
Even forgiving the fact that the MPs conveniently forgot the critical Parliament played in the CJ’s appointment, the fact that the CJ was grilled in publicly conducted interviews where he justifiably and meritoriously proved himself as the best candidate for the job ought to disprove this observation by the PAC for the spurious lie it is, and expose PAC for the posturing in matters of legal interpretation if engaged in. The qualifications for the CJ are quite straightforward in Article 166 (2) and (3); it is a combination that permits a cross-merging of skills for the office drawn from academy, legal practice and public service.
The CJ posits that the idea that all that is needed is experience in “some large public-sector organisation”, measured not in terms of quality and relevance but longevity, size or just having been there is both shallow and myopic. “The office of the Chief Justice is not merely artisanal and managerial; it is also the office of a judge – of the Supreme no less.
In his closing remarks at the close of the Registrars and Directors’ reporting meeting in January 2013, the CJ made the following remarks:
“…Registrars must be able to stand up to judges when they receive instructions that are incorrect. We set out to delink judicial functions from administrative ones. This is why the positions of the registrar were filled with the best cadre. All major capital expenses and decisions must be referred to me. I am surprised that one can make decisions about spending the equivalent of the annual turnover of DT Dobie, without losing sleep at night. That is what a billion shillings is… Worse, it is not private money; it comes off the taxes of people… I would like to see deeper respect for public money.
“Finally, you should desist from trying to confuse me (and even yourselves) with law and procedure. The Kenyan public does not buy it, and I certainly won’t. If a process is legally pure but produces a result that is an absurdity, would you still do it because you have broken no law? If you buy foolscap for Sh200 because the tendering process is right, is that a reasonable outcome? We are all distinguished professionals, and basic acts of misjudgement and miscommunication can be a lifelong cost… Feelings of territoriality and hierarchy have the same failure effects as feelings of fear.”