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Mutula Kilonzo was a jolly fellow and lover of finer things in life. Over mugs of tea, the senior counsel regaled journalists with his exploits as President Moi’s lawyer and shepherd in the implementation of the 2010 Constitution.

But he always laughed off claims he was one of the biggest persecutors of judges and breeders of the skunk that was the Moi-era Judiciary that President William Ruto would love to resurrect.

Under the old order, judges served at the whims of the Executive—they were appointed by the President—and bent the law to suit the appetites of the ruling elite.

Judges who ruled against Moi were removed while his stooges were appointed as gatekeepers, especially in the constitutional court.

Old hands in the Judiciary say in some cases, lawyers for Moi and other powerful members of the Executive wrote judgements for cases they were litigating in favour of their clients. In one famous case, Mutula engineered the removal of Ghanian judge Edward Torgbor and Briton JA Couldrey when they ruled against Moi. Their contracts were terminated after they determined that the 1992 election petition against Moi by Ford Asili’s Kenneth Matiba was validly filed. The contention was that it was signed by Matiba’s wife, Edith, because her husband had suffered a stroke. But Moi’s lawyers, including Mutula, argued that such was improper and asked the court to dismiss the petition.

The judges were not persuaded and allowed it to go on. Subsequently, on the advice of Mutula, then Head of Public Service Joseph arap Letting, wrote to the judges informing them their contracts will not be renewed. Mutula had advised Moi the foreign judges were working in cahoots with the Opposition to bring down his government. Their goose was cooked.

Predictably, the Court of Appeal, comprising among others judge Riaga Omollo, who would later be found unsuitable to serve for favouring the Kanu regime, quashed the decision. The Sharad Rao vetting board which recommended the sacking of Omollo, his colleagues Emmanuel Okubasu, Samuel Bosire and Joseph Nyamu found that they were generally impartial “so long as the cases did not involve the wealthy or politically powerful.”

The ghost of Nyamu’s decisions on the Goldenberg case involving the late George Saitoti and Bosire’s handling of hearings on the scandal returned to eat them.

Nyamu made the famous order expunging Saitoti’s name from the Bosire report, saying the findings were “entirely irrational and unreasonable.”  The sycophancy with which the judgement was written was oiled and coated by colourful poetry. “Like so much straw into a burning fire, let this order of certiorari consume all offending references be consumed. Like fire that converts everything to itself, let this order of certiorari remove and convert the dark spots. Like guided missiles hit only the target, let this order have the same effect by hitting only the affected paragraphs which are in relation to the applicant, Saitoti, only.”

A relieved Saitoti said “the hand of God had guided the judges.”

 The Rao board found Bosire unsuitable for ignoring a court order, as chair of the Goldenberg inquiry to question Moi, Saitoti and former spymaster James Kanyotu who were mentioned adversely. 

For days, Ruto has been reeling at “corrupt judges” who he accuses of sabotage by declaring his projects unlawful. One senses an unfortunate desire for a return to the Moi-era Judiciary. But is the current Executive qualified to make noise at judges? The reality in Kenya is that good people don’t get elected. Instead, thieves and drug lords wash money by bribing their way into political power.

A Cabinet and Parliament with primary school dropouts who can barely write a sentence in English and former ward administrators cannot purport to rant at justices.

The Judiciary has its little failings by Kenyans cannot allow members of a kangaroo administration to write judgements in their own cases.

— The writer, a founder of the Kenya Speechwriters Clinic, is the political editor, People Daily – [email protected]