The new constitution gave the judiciary more powers so that it could it could promote judicial activism particularly during the transition period, outgoing Chief Justice Willy Mutunga has said.
Mutunga who gave a farewell address to the Senate yesterday, said: “Conservative societies don’t vote for such a progressive Constitution, it is only an activist or a progressive society that would have recommended the total disbanding or vetting of the Judiciary.”
“It is only a progressive society that could have provided for an open, competitive recruitment of a Chief Justice in the full glare of the media. Conservative societies do not do that. It is also a progressive not a conservative society that frowns upon legislative supremacy in favour of constitutional supremacy even while acknowledging the important role played by the people in a democracy,” Dr Mutunga added.
“If by conservatism, they mean what I found in the Judiciary. Then I’m so glad I am not conservative even by unconscious accident,” he went on.
He said the Constitution and the courts have become a symbol of hope for the people of Kenya through its activism.
Dr Mutunga also dismissed critics who have questioned his overtures to the police and Senate saying that it is aimed to foster better and cohesive relationships among the various arms and agencies of the government.
“This alarm that dialogue between two independent organs of State triggers, is grounded on the fundamental understanding of our Constitution and that is why I always get amused when some observers, clearly powered by a weak appreciation of the origins, context, content of our Constitution, charge that the Judiciary through its decisions and conduct has become activist. The Constitution 2010 is exactly activist by origin, design, text and intent,” the CJ stated.
At the same time, the CJ listed judicial independence, growing public and staff confidence and integrity in the Judiciary as among key gains realised in his four year tenure at the helm of the judicial arm of government.
Dr Mutunga who retires from office Thursday, said that he is proud to be the first Chief Justice to oversee the implementation of the 2010 Constitution which among others has granted the Judiciary its own funding and independence.
He also pointed out that the changes were not well received by cartels that had used the Judiciary to advance their interests.
“Kenya’s Judiciary was a corrupt secretive zone before my entry. I opened it up and we became transparent ignoring the peddled wisdom among government functionaries that their dirty linen should not be washed in public or be swept under the rag so as to project the image of a clean institution. Instead we have opened ourselves to public scrutiny believing that sunshine is the best disinfectant,” remarked Dr Mutunga.
The outgoing CJ said during his term the Judiciary achieved gender parity, and fought corruption with resolve and grit.
“You will recall that long before the fight on corruption become vogue, we were the first Arm of Government to take bold action against corruption. in the administrative wing and the cartels and bandits fought us viciously using their beachheads in the National Assembly, Executive and the media, but we prevailed,” said Dr Mutunga.
Senate Speaker Ekwee Ethuro on his part said African leaders can learn from Mutunga who is retiring a year before end of his term.
“While a considerable number of Kenyans regret your exit at this time, it is useful heed the words of a renowned British author and satirist Malcolm Muggeridge, “Few men of action have been able to make a graceful exit at the appropriate time. I dare say, that this is an audacious example to all our leaders across the board.”
“The culture of extending leadership term limits, be they presidential, institutional or county leadership in our African countries can borrow a life from the humble Dr Willy Mutunga, it is indeed possible to go home and still lead an enriching life,” he said of CJ Mutunga who steps down one year before his term was to end in June 2017.
Mutunga who turns 69 on June 16, 2016 announced he would be leaving early in order to avert a constitutional crisis come 2017, when Kenya holds a General Election.
Mutunga was appointed in June 2011 and has overseen a number of reforms in the Judiciary.
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