/ 23 November 2012

Weary Kenyans pin hope on hip judge

Kenya's chief justice Willy Mutunga.
Kenya's chief justice Willy Mutunga.

Don't look what is on Willy Mutunga's ear but rather what is between his ears." That was the pithy comment of one Kenyan blogger when controversy erupted over the appointment of a chief justice with a penchant for ear studs.

Mutunga is a tad revolutionary by Kenyan standards, not only because of his sartorial tastes, but because he is a former human rights activist who was hired to clean up Kenya's justice system. Activism and earrings spell trouble for an entrenched elite in a socially conservative country where the phrase "why hire a lawyer when you can buy a judge?" is a sardonic reminder that corruption runs deep.

Yet to millions of Kenyans Mutunga represents a possibility that the stranglehold of state corruption and impunity can be broken – a possibility, not a certainty.

In his wood-panelled office in what was until recently the high court, Mutunga is remarkably approachable. The trappings of high office are still evident: the paintings on the walls, the security detail at the door and the entourage of fawning lawyers outside, eager for a discreet word. But there is an air of informality about him. He answers his own emails, keeps to our agreed schedule and offers me his personal copy of Kenya's new Constitution. I suspect he has probably memorised most of it by now.

As Kenya heads for fresh elections in less than five months' time, Mutunga confided that he was having sleepless nights. As chief justice, his job will be to swear in the next Kenyan president. Last time round it was like a shotgun wedding: a rushed, hastily convened ceremony – characterised by diplomatic absences and empty seats – to confirm Mwai Kibaki's second term – an election that many believe was rigged.

Election disputes should, in theory, be handled by the supreme court, but after the previous poll, amid claims by Kibaki's opponents that the election had been "stolen", the politicians took their fight to the streets. "If we can't arbitrate next year, then that will be the end of the institution, I think," was the sober warning from Kenya's most senior judge. "We can't have the judiciary rejected again and really survive."

Ruffling feathers
But the legal landscape has changed. In 2010 Kenyans approved a new Constitution – the first since independence in 1963. It brought with it the promise of devolution of power, a bill of rights, gender equality and, crucially, reform of the judiciary – effectively forcing sitting judges to reapply for their old jobs. So in May 2011, in a nationally televised broadcast, Mutunga was interviewed for the top legal job. He impressed and he was hired. Kenyans watched open-mouthed as this "neoliberal", earring-wearing academic-turned-activist was given his robes and sent off to shake up the establishment.

A year later he has already made inroads fighting impunity in the judiciary. The country's deputy chief justice, Nancy Baraza, resigned a few months ago after allegations that she threatened a security guard with a gun. Mutunga has promised that more heads will roll. Among them will be "backroom staff" – key recipients of bribes in the legal system. But he is coming up against "resistance from very powerful forces".

This one-time detainee under former president Daniel arap Moi, who spent time in exile in Canada, is ­ruffling feathers. "Kenyans have basically said that the status quo is unacceptable," he said, adding that the new Constitution is not about "overthrowing it but mitigating it".

But, with the ink barely dry, Mutunga points out concerted attempts to "sabotage" new legal freedoms that have taken a half-century to secure. Sacked lawyers are seeking to get their jobs back and senior police officials are clamouring for court orders to exempt them from giving evidence to the International Criminal Court, which is investigating alleged crimes against humanity following Kenya's elections in 2007. Those elections brought what was once considered a regional safe haven to the brink of civil war. About 1200 people were killed and half a million left homeless during violence that exposed fragile ethnic tensions.

In a country in which 46% of the 41million population live in poverty and a handful of politically connected families own a sizeable proportion of the land, Mutunga knows that a lot is at stake in the next election. Historical injustices have not been addressed and two presidential hopefuls face the prospect of jail if the International Criminal Court can prove its case. The critics accuse him of being "inexperienced" in practising law and display a prurient interest in his marital affairs, but he is an outsider who has been brought in to spearhead the reform agenda and he shows no signs of shying away from that.

So, has Kenya learnt lessons from its recent past? For the chief justice, the jury is still out. On the face of it Kenya is co-operating with the International Criminal Court, which is investigating "war crimes" allegedly perpetrated by four senior figures – two former ministers, a radio DJ and a former head of the civil service. But the reality is very different. Mutunga recently met the court's chief prosecutor, Fatou Bensouda, who publicly complained that she was struggling to obtain key documents and evidence from the Kenyan authorities.

Ethnic suspicions
Although Bensouda has recited the mantra that it is a judicial investigation and not a political witch-hunt, Mutunga said the argument cut little ice in Kenya. "There is a very thin line between police, justice and law in Kenya. The court is being used by some politicians to whip up ethnic suspicions in Kenya. What the Kenyans don't realise is that the court is not a foreign court, it is a Kenyan one; the Constitution says it is part of our legal system."

But perceptions are everything. "If this election is not free and fair and we get into trouble, people are going to say that the International Criminal Court was the main culprit," he said.

The shooting dead of dozens of young police recruits less than a fortnight ago in the remote and arid northern Samburu region and the recent massacre of civilians in the southeast of the country are stark reminders of simmering tension. Although on the face of it these were local disputes, most people are able to read the political signs. Historically, local rivalries have been manipulated at election time.

Kenya may have moved mountains to secure a new "basic law", emboldening a population to demand more accountability from its leaders, but it is the police that worries Mutunga the most. "There is an assembly line for the administration of justice and police reforms are as critical for me as judicial reforms," he said. Yet Kenya enters the next elections with the same police force it had during the previous poll – albeit led by a new police commissioner.

Stories are now swirling around the Kenyan media about links between the police and illegal militias and gangs that are allied to rival political parties contesting the upcoming elections. At this stage the claims are hard to prove, yet there is a palpable sense of nervousness.

Mutunga recounted how, in August, he attended a meeting at which the Kenyan president vowed to disarm and disband the militias. "The issue for me is: Who is going to do that? Everybody knows there are links between these militias and the police."

There is little evidence that much has changed in the investigative arm of the "assembly line". Vigilante groups and the police are among those being investigated by the International Criminal Court. What is frighteningly different this time is that more people have guns, assisted by the spillover of weapons from neighbouring Somalia and South Sudan. "Too many arms in the wrong hands in this country worries me [and] that nothing has been done."

Despite the government's insistence that elections will be peaceful as voter registration gets under way this week, many Kenyans, like the chief justice, are yet to be convinced.