NAIROBI, Kenya, Sept 14 – Law Professor Makau Mutua on Wednesday told the Judicial Service Commission that he would have no problem working with President Uhuru Kenyatta if appointed Chief Justice despite twice tweeting, in 2013 and 2015, that he, “can’t and won’t,” (in all caps) recognise his rule.
While not denying that those were in deed his words, Mutua said that his position was informed by the crimes against humanity charges President Kenyatta faced, at the time, before the International Criminal Court.
It is however worth noting that his second tweet came on November 1, 2015, a cool seven months after the Court terminated the case.
“I don’t take it back. I don’t. I simply think that time has moved and we’re in a different context now. The cases at the ICC have been dismissed so part of that concern that I had is addressed by that dismissal. If the cases were still ongoing I would have concern.”
That being said, he admitted he still had reservations regarding President Kenyatta’s leadership but acknowledged him as the, “de jure and de facto President of the Republic of Kenya,” and even threw in “personable,” and, “reasonable guy.”
“In terms of governance, there are some things that I would like to see happen in this country. I would like to see the government of the day address corruption, address insecurity, do many things.”
He also expressed concern over what he deemed a lack of transparency in Kenya’s dealings with foreign governments.
“Many of these agreements appear to be signed in darkness without full disclosure,” he said.
But if appointed Chief Justice, Mutua said, he would endeavor to sit down with President Kenyatta in his first week in office for a, “candid,” and, “good faith,” discussion despite maintaining his position that the Supreme Court erred when it failed to declare his 2013 election invalid or at the very least, call for a re-run given the uncontested, “system failures,” of the Independent Electoral and Boundaries Commission.
In 2013, I vowed I CAN’T – and WON’T – recognize Uhuru Kenyatta as president. I’ve been proven RIGHT. Kenya is COLLAPSING under his watch.
— Prof Makau Mutua (@makaumutua) November 1, 2015
That being said, he denied ‘fixing’ – as chair of the Kenya Human Rights Commission – those indicted for the 2007/8 post-election violence. “I have never been an intermediary of the ICC ever. I was never involved in encouraging, helping, working with the witnesses. I’ll just say this for full disclosure, I did train prosecutors and investigators of the ICC and I thought by so doing I was actually fulfilling the obligations of the statute and my obligations as a human rights scholar and advocate.”
He also said he would, “absolutely,” be willing to renounce his US citizenship if necessary to his taking up the role of Chief Justice.
Questions regarding his qualifications for the role were also raised given his law degrees are from Tanzania and the US respectively, his having been expelled from the University of Nairobi in his second year for agitating for multiparty democracy as a student leader.
He was also hard pressed to show 15 years Commonwealth common-law experience as required of a judge in the Constitution.
His faith also came up with Mutua explaining that while he was raised Catholic and almost even became a priest, he did not subscribe to organised religion but admired such values as compassion espoused by the Pope, Mother Theresa and even in the practice of alms by Muslims.
Not one afraid to be disagreeable, Mutua also took issue with the ease with which Parliament can amend the law; a concern justified, he said, by the manner in which they, “gutted,” the independence Constitution and a precedent not to be so easily dismissed.
Given his own, “robustly,” expressed views, freedom of expression, he said, was a right to be jealously guarded.
“Even if I don’t agree with what you say I’ll fight to the death for your right to say it.”
And in that spirit, he said, social media interaction is, “a must,” for any Chief Justice serious about being directly accountable to the people of Kenya.
A foundation which retired Chief Justice Willy Mutunga laid and which Mutua said, Kenyans had to be grateful for.