THE "NEW" CONSERVATIVE CHIEF JUSTICE SHOULD GIVE WAY TO THE "OLD" LEFTIST MUTUNGA

Some months ago I wrote an article in this space predicting a very rough time ahead for Chief Justice Willy Mutunga.

At that time, Mutunga was embedded in a bruising and controversial battle to oust Chief Registrar Gladys Shollei over matters related to alleged financial impropriety. The President of the Supreme Court was also facing resistance from a section of judges who were protesting against their relocation to the new court house on the hill.

That prediction appears to be coming to pass as the former human rights crusader has been caught, once again, in a "deadly" triangle of political diatribe and professional humiliation.

In the 1980's when he was active in civil rights and democracy campaigns, Mutunga was a tough-talking, fire-spitting operative who, together with others, gave President Daniel Arap Moi many nightmarish nights. He was the Secretary General of the University Staff Union (USU), an active leftist, and one of the alleged master-minds of the toxic Pambana publication that spread Moi's dictatorial ills for the whole world to know.

He was detained in July 1982 and spent 15 months at the Kamiti maximum prison. His activism continued upon his release and relocation to Canada the following year. But by 2009 when he joined the Nairobi office of Ford Foundation, the left-wing academic had mellowed into an arm chair civil rights bureaucrat. His controversial entry into the Kenya Judiciary in 2011 transformed him further into a humble and demure individual who was focused on only one thing: transforming the corrupt and inefficient Kenya Judiciary into one of the best-run institutions.

Never did he know that the post of Chief Justice is as political as it is administrative. This is not to say he has failed to deliver in terms of reforms. He has not, and the evidence is there. Today, the public has more confidence in the Judiciary than at any time in the country's history.

However, with the new Constitution came fresh expectations from both the public and the ruling elite. It wasn't long - after the Supreme Court ruling in 2013 on the presidential election dispute between Raila Odinga and Uhuru Kenyatta - that Mutunga found himself receiving punches left, right and centre from angry politicians who thought he had been "bought" by the Jubilee Coalition. Joining in were corrupt cartels determined to resist any changes in the statusquo.

The current crisis in which the Judiciary is embroiled in, is to my opinion, just one of several covert and overt schemes to frustrate efforts at reforming the Judiciary. In any democracy, the Judiciary is independent of both the Executive and Parliament. It is also the principal custodian of justice which it must dispense justly and fairly. But persistent interference in its affairs now threatens its independence, something likely to scare judges and magistrates when making rulings.

A good example of this interference is seen in the current case of Governor Martin Wambora. A High Court overruled - based on the evidence it had - a Parliamentary decision to impeach the Embu Governor on account of abuse of office. Soon thereafter, the Judiciary came under attack from politicians who charged that it had acted "unconstitutionally" and warned of retribution including the re-introduction of a vetting system for judges. From past experiences, no judge would want to go through the traumatic kind of public vetting process that Parliament envisages.

The man who could have saved Mutunga in the Judiciary-vs-Parliament verbal contest - President Uhuru Kenyatta - appeared not to take sides although he did express some displeasure over the ruling.

As I write this piece, Mutunga has not responded to the attacks, perhaps not wanting to publicly take on Parliament and the Executive.

However, It would be interesting to see how long the Chief Justice would take punches without hitting back. His disadvantage is that he is a civil servant and cannot just convene a public meeting and start to bash politicians. Perhaps, the "new" conservative Mutunga should bring back the "old" firebrand Mutunga to the battle front and find a way of excavating himself from this quagmire.

The Chief Justice has nothing to lose after all since the constitution does not give Parliament or anyone else powers to sack him. Short of a voluntary resignation, the ear-studded former law lecturer has four more years ahead of him to fight off humiliation from politicians.

And that is my say.

THE HEAT IS ON FOR SHADY KENYA COUNTY EXECUTIVES

The Senate's decision to send Governor Martin Wambora home on charges of abuse of office is sweet news to those inside and outside Kenya who have been fighting for transparency and accountability in the conduct of public affairs. He is the first on a long list of top County officials on the radar of the Upper House over matters of gross misconduct. Not less than nine others are lined up for investigations by the Senate, according to latest reports.

The struggle to instill fiscal discipline in government has been going on relentlessly, albeit unsuccessfully,  for the past 50 years.

The founding father, Jomo Kenyatta, did nothing to stop avaricious characters from plundering the public. For 15 years, he presided over a regime that condoned land grabbing and encouraged rapacious appetite for greed among officials. Other than Minister Paul Ngei whom he suspended and quickly reinstated through a hurried change of the Constitution for involvement in a maize scandal in 1966, not a single senior official was ever censured for abuse of office during Jomo's term.

Similarly in the 24 years that President Daniel Arap Moi ruled, there was a catastrophic mismanagement of resources. The biggest financial scandals happened during his rule and impunity took root. Corruption gnawed the nation with absolute viciousness leading to an almost collapse of the economy.

While President Mwai Kibaki talked loudest against corruption, a conceited cabal of officials in his government went on a looting rampage. By the time he was being sworn-in for the second term, his government had bottled out of the corruption war.

Thus, for President Uhuru Kenyatta recently to issue a stern warning against corrupt officials - including some in his own office - is testimony enough that the vice is far from being tamed. I hope the President will go beyond rhetoric and take concrete action to slay the dragon once and for all. The Standard Gauge Railway and the Laptop projects have already put a bloat on the Jubilee Government's commitment to fighting corruption.

However, the impeachment of Governor Wambora provides a flicker of hope that something positive is on the way. We have also seen in recent weeks top parastatal officials being hauled to court, and soon a governor of another kind, could be in the dock.

By voting overwhelmingly in a bipartisan manner to punish Wambora, the Senate sent a strong message to the other 46 County Governors that it is not business as usual and that no one is above the law. But the most important message the Senate has sent to the country - particularly to those who only recently called for its abolition - is that it is not a toothless bulldog; that it has sharp teeth that can bite even those at the highest level of County Governments.

The grumbling we are hearing from the Chairman of the Governors' Council and his defence of Wambora sound like kicks of a dying horse. Take it from me, the court action the Council is taking is not about protecting devolution but everything about preserving personal interests.

The responsibility of oversight should not be left to the Senate alone, however. The people have a duty too, and that is why I commend the Embu County Representatives (MCAs) for blowing the first whistle over faulty procurement procedures.

It is now the turn of MCAs in other Counties where cases of financial recklessness have been reported. I have in mind the case of Kilifi where 140 million shillings was spent to purchase a house for the Governor in a County currently facing acute levels of famine and hunger.

Kilifi has one of the highest poverty rates in the country, one of the highest illiteracy rates, one of the highest pregnancy rates among under-aged children, one of the highest child mortality deaths; the list goes on and on. Yet, the County Government there had the temerity to engage in fiscal extravagance by purchasing what must be the most expensive dwelling in the whole of the coastal strip.

Kilifi is not alone.

The manner in which Governors are authorising overseas trips for themselves and their officials has reached an extent where complaints are pouring in from foreign nations about incidences of misconduct by visiting Kenyans. Their nocturnal visits to brothels, misbehavior in bars and clubs and general acts of debauchery are irritating our friends abroad and embarrassing the Jubilee Government. Since such visits are made without the knowledge of host countries, there have also been complications in terms of hospitality and security provisions.

The Central Government is unhappy about the extravagance at the County level, where substantial amounts are being spent on allowances and grandiose personal projects than on development. The Anti-Corruption Commission has already announced that all the 47 County Governments are under probe.

It is my view that implicated officials should not just be suspended or impeached but surcharged to recover illegally obtained public funds. Where evidence is conclusive, they should also be prosecuted.

And that is my say.

TIME HAS COME FOR LSK TO DEAL HARSHLY WITH CROOKED LAWYERS

Now that the Law Society of Kenya has completed its bitterly contested elections and new officials are in office, time has come to focus on one issue lawyers loathe to talk about - misconduct in their profession.

Like all other sectors in Kenya - a country considered to be at the top layer of the most corrupt nations in the world - the legal fraternity has had its share of ignominy. Learned friends have been caught stealing clients' money; engaging in fraudulent activities; and even practicing illegally with suspended or expired certificates.

Every year, thousands of complaints pour into the offices of the Advocates Complaints' Committee from angry clients complaining about misbehaving advocates. Two years ago, LSK announced 44 lawyers had been struck off the Advocates' roll for professional misconduct - embezzling money and going against the professional code of ethics; and 28 others had been suspended pending investigations.

In the past year, the LSK disciplined not less that five lawyers for filing election petitions without valid practising certificates. Because of the recklessness of those lawyers, a number of election petitioners lost their cases, thus dashing their political aspirations.

Even some of those appointed to the Bench as Magistrates and High Court judges have been netted. In the vetting exercise by the Judges and Magistrates Vetting Board, a number of them have been sacked or retired after failing the ethics test.

These bad apples have, and continue to tarnish the reputation and good name of the legal profession.

A day before the LSK polls, P.L.O. Lumumba - one of the most respected legal minds in the country and a former anti-corruption guru - sent a letter to the LSK drawing its attention to cases of bribery by candidates seeking office. Lumumba said he had received materials under the guise of Christmas and New Year greetings and an SMS inviting him to a "sumptuous lunch."

Lumumba said they had engaged in bribery to influence the membership to vote for them. He wanted the culprits barred, but a senior LSK official dismissed reports of free lunches, travel perks and cash hand-outs as nothing but "rumours."

The only other voice I heard making similar complaints was of lawyer George Kegoro. I wondered where the usual anti-corruption critics and non-governmental organisation mandarins were. Where were they when all this was happening?  Why didn't they come out to support Lumumba in what were truly genuine concerns

I have always thought corruption was corruption regardless of who perpetrated it. The same force applied against corrupt government officials must be brought to bear on deviant lawyers.

That is why I have nothing but praise for Lumumba and Kegoro for being candid and bold We need fearless people like them to get things corrected. The new LSK officials should not bury their heads in the sand on a matter as important as this. The youthful leadership must be courageous enough to deal more harshly with crooked lawyers.

Chairman Eric Mutua - the 46th in the history of the legal body that started with Humphrey Slade in 1949 - must find a way of nailing down such people. Having a Code of Conduct is one thing. Effectively implementing it is another.

My view is that Mutua can only guarantee his legacy in the LSK if he can restore the fading image of the legal profession and bring back the glory of an organisation whose mandate is to "assist members of the legal profession, the government and the larger public in all matters pertaining to the administration of justice in Kenya."

The LSK membership of 7,000 must help him achieve that goal.

And that is my say.

GOVERNOR WAMBORA'S PROPOSED IMPEACHMENT A CONSTITUTIONAL TEST

The Kenya constitution will this week face its first major test when the Senate sits to decide on whether or not to approve the impeachment of Embu Governor Martin Wambora.

The impeachment motion came with serious allegations from the Embu county assembly relating to procurement processes involving the upgrading of the Embu stadium. While details are sketchy about the inner details, the allegations must be serious enough to have pushed the assembly to censure Wambora and his deputy, Dorothy Nditi.

Kenyans will be watching closely to see how the Senate conducts itself because it will mark the first time that impeachment proceedings have been preferred against a sitting county executive since the coming of the devolved system of government last year. Whatever happens in the Senate will have far reaching constitutional implications. We will know as Kenyans whether or not our legislators are serious about implementing that part of the constitution fairly and justly. It will also be precedent setting. Whether it approves to impeach or not, the fact that the matter has reached the floor of the Senate sends a strong message to governors that there are limits in their actions.

What worries me, however, is the manner in which some governors have reacted to Wambora's tribulations. The chairman of the governor's council, Isaac Ruto, and others were swift in condemning members of the Embu county assembly and in declaring Wambora's innocence even before Senate investigations had begun.

The task of approving impeachments in the devolved system under the constitution rests with the Senate. This week, the Senate will meet in a special session to form a committee of inquiry to look into the charges against the two. It is only after it completes its inquiry and releases its report that Kenyans will know whether or not the allegations are true. For some governors to allude that "there is a hidden hand" in the decision of the Embu county assembly is ridiculous unless they can deduce evidence to that effect.

Even more ridiculous was the quote attributed to the Makueni governor, Kivutha Kibwana: "We will not be docile. We will protect one of us."

Protect, even where there is guilt? This is called impunity, the dragon we are trying to tame. I hope Wambora, a colleague in the 9th Parliament, will be exonerated. If not, he has to face the consequences.

Time of  protecting 'one of our own' are gone. We all have a moral duty to defend the constitution, protect the innocent and punish the offenders. I hope Wambora will be given ample time to defend himself. He has already rubbished the allegations via the media, but I would want to see him appear before the committee and explain to Kenyans what actually happened.

Governors know Wambora's impeachment would open a Pandora's box for more actions against other governors, many of whom are known to be engaging in unsavoury activities including extravagant use of public money.

One popular Kiswahili saying is pertinent here: if you see your neighbour's head being shaved, get yours ready.

Our governors must know they are not above the law. They may be flying the national flag; they may have emblazoned everything in their possession with "the Governor of...."; they may deploy hefty security details for themselves, but when it comes to the law they are not any different from any one of us.

No one envisaged that by establishing the devolved system of government we were creating small gods. The conduct of some of them is nauseating. There have been reports of debauchery and boorish behaviour amongst county executives.

All the campaign rhetoric about the devolved government bringing services closer to the people is turning out to be a nightmare for the majority of Kenyans. Apart from one or two counties, many of the jurisdictions are exhibiting suicidal tendencies due to a combination of poor leadership, runaway hubris and abuse of office.

Almost a year into the county system, people are still dying of hunger, unemployment is at a record high, many secondary school students are still at home because of lack of school fees etc etc,  while county officials embark on overseas junkets, building posh mansions for themselves and wasting time in unproductive seminars. To cover their tracks, they have been legislating meaningless taxes, adding a further burden to wananchi.

It is about time governors come down to earth and do what they were elected to do.

And that is my say.