In one of the ongoing interviews for the position of Chief Justice of Kenya, High Court judge David Majanja, a member of the Judicial Service Commission that is conducting the interviews, got engaged in a memorable exchange with Philip Murgor, a former public prosecutor during the reign of Daniel arap Moi. In those days, the judiciary and parliament were mere extensions of the executive. Parliament was used to pass dictatorial laws which the courts ruthlessly enforced.
Sedition, which encompassed any utterance or action deemed to be critical of the regime, was such a statute. People arrested under this law would be tortured in specially-constructed torture chambers at Nyayo House in order to get a confession, then hurled before courts which often sat at night.
It was in this judicial and constitutional context that four men — George Anyona, Ngotho wa Kariuki, Edward Oyugi and Njeru Kathangu — were arrested and charged with treason. The crime the four had committed was to meet at Mutugi’s Bar in Nairobi and discuss the formation of an opposition party. The treason charge was later changed to sedition.
During the trial, prosecuted by Murgor, the men complained to the court about torture but, as in tens of other instances, the judge, knowing Big Brother was watching, would not entertain such complaints. The “Mutugi Four” were found guilty and handed lengthy jail terms.
This was the infamous case Majanja referred to in his exchange with Murgor. Posed Majanja: Did the former prosecutor have any regrets about his role in that judicial and political era?
To which question Murgor answered that he performed his role with professionalism of which he was proud. Majanja then concluded: “A man is his history”.
Majanja’s indicting conclusion was not just memorable; it raised a fundamental question about the role of history in a country trying to reinvent itself. Does our national history have a bearing on our present attempts to re-engineer a new constitutional, political and social order? Does a person who played an active role in enforcing a dictatorial political order have the moral authority or the ideological depth to preside over a democratic judicial and constitutional transition? Would such a person have the requisite philosophy and sympathies that come with a history in the struggle for human rights?
Majanja’s question is not just relevant in the hiring of the next chief justice, but it needs to be part of the conversation as we prepare to elect a new president next year. We continue to grapple with issues of crippling corruption that swallows a third of our budget every year, subterranean ethnic hatreds that are easily provoked, and a political culture of lies and pathological egotism. Can people who have grown their political careers on the staple of these ills preside over a transformative and revolutionary national agenda? My guess is no, because, as Majanja says, a man — to a significant extent — is his history.
Tee Ngugi is a Nairobi-based political commentator