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Trust in Kenya's top judge tested by election challenge

By Richard Lough

NAIROBI (Reuters) - With a history of pro-democracy activism and an unconventional streak, Kenya's chief justice has won broad support for his campaign to clean up the country's discredited judicial system.

Now, with a nation's expectations weighing on his shoulders, 65-year-old Justice Willy Mutunga must rule on a disputed presidential election in the biggest test yet of the country's newly reformed judiciary.

Defeated presidential candidate Raila Odinga's decision to challenge the result in court is already a dramatic shift from 2007, when he lost in another disputed election but called for protests because he said the judiciary could not be trusted to be fair.

The tribal violence in the weeks that followed that vote led to a new constitution that gave Kenyans a reformed judiciary and a new chief justice, Mutunga, breaking the mould of presidential appointees who were seen as political insiders.

For Kenyans, the hard-won democratic gains are now at stake.

Whatever Mutunga rules, upholding Uhuru Kenyatta's victory or deciding in Odinga's favor, he will face a tough job convincing the losers that his court has not again played politics. He has already faced some sniping from critics who suggest he is too close to Odinga and question his ability to be impartial.

But Mutunga's background as a lawyer who was detained in the 1980s for challenging the autocratic government at that time means he may stand a better chance than predecessors in ensuring his final ruling, due by March 30, wins popular acceptance.

"People have never had as much faith in the chief justice as they do in Willy Mutunga," said John Githongo, a former anti-corruption official turned whistleblower. "Before now there has never been this level of confidence in the judiciary."

Odinga alleges the poll was rigged and said Kenyatta's win had put "democracy on trial". Kenyatta said the vote was fair. Both have promised to abide by the Supreme Court's ruling that could throw out Odinga's challenge or order a re-run.

Kenyatta secured 50.07 percent of the vote to Odinga's 43.28 percent but only just scraped enough votes, a little more than 8,100 of the 12.3 million cast, to avoid a second round run-off.

Mutunga opened the petition hearing on Wednesday, sporting his habitual diamond ear-stud, something that too many Kenyans symbolizes his readiness to challenge convention and establishment.

SNUB TO ESTABLISHMENT

The judiciary was long considered a rotten institution that served corrupt interests of the political and business elite. A well-worn joke in Kenya that highlighted the lack of trust went: "Why hire a lawyer when you can buy a judge?"

"The chief justice in those days was considered as an insider within government," said George Kegoro, director of the International Commission of Jurists in Kenya. "Willy Mutunga is not an insider of this government."

Mutunga, a former law lecturer and reform activist, was appointed chief justice in mid 2011. His nomination underscored a determination to clean up the judiciary from the outside in and was widely seen as a deliberate snub to long-serving judges.

Throughout his early career Mutunga challenged the state's stranglehold on Kenyan society. At the turn of the 1980s, during the early years of former President Daniel Arap Moi's autocratic rule, the lecturer at the University of Nairobi was part of an underground movement seen as a hotbed of alternative thinking.

Mutunga was detained without trial between 1982-83 as Moi's government cracked down on dissent. Afterwards, he left Kenya for Canada where he pursued a doctorate and linked up with other Kenyan rights activists in North America.

Maina Kiai, who co-founded the Kenya Human Rights Commission with Mutunga during those years abroad, told Reuters the chief justice, who he said had grown up poor in an unequal society, stood by the same values that spurred his early activism.

"He has been a resolute defender of human rights and democracy, he's for social justice and his focus is very much on lifting the country so everyone has an equal opportunity," said Kiai, who has also challenged Kenyatta's win in a separate suit by civil society group Africa Centre for Open Governance.

Accepting the job as Kenya's top judge, Mutunga said it should no longer be possible to talk about corruption and the judiciary in the same breath. He warned judges they must guard against becoming captives of political and commercial interests.

But he has already had to fight off accusations of bias, spurred on by comments attributed to him praising Odinga.

"I am convinced that Kenya's transition needs Raila as the president of this country," Mutunga was quoted as saying in Babafemi A. Badejo's biography of Odinga.

"TWO MUTUNGAS"

Two weeks before the vote, Mutunga said had received threats from the Mungiki criminal gang. The group wanted to prevent any obstacles to a presidential bid by Kenyatta, who faces charges of crimes against humanity at the International Criminal Court.

"Let no individual, group, candidate or supporter imagine that cowardly and dark acts such as these will cower us," Mutunga told a news conference.

Kenyatta's Jubilee coalition condemned the threats. But some in the coalition question whether Mutunga can be impartial.

"There are two Mutungas. Mutunga the professional is totally professional. Sometimes the Mutunga the activist conquers Mutunga the professional. There is a battle there," said Moses Kuria, a strategist for Kenyatta's Jubilee coalition.

Mutunga helped Kuria and other student leaders in 1992 win a case when they were threatened with expulsion from university for campaigning against Moi's government. But Kuria said he was concerned by Mutunga's published comments regarding Odinga.

"I have got worries at the same time," Kuria said. "I would hope that the same Mutunga I knew 20 years ago is the same Mutunga that is going to preside over this petition."

Mutunga promises Kenyans an impartial hearing and for the moment at least he enjoys a good deal of public confidence.

Reflecting the thoughts of many, Paul Maina, a 32-year-old banker, said: "I believe the Supreme Court ruling will be a test for the judiciary. I have no reason to doubt the court."

Mutunga has overseen the vetting of judges. Magistrates are being put through the same rigorous examination. He has striven to streamline the courts and root out corruption.

"He has a rock-steady history for which he has paid a very high personal price," said former anti-graft czar Githongo. "That gives him a level of credibility and legitimacy going into this that is not shared by anyone else."

Odinga's challenge, though, will be a stern test of the public's confidence. The election race divided the nation. More than 40 percent of those who cast ballots backed Odinga.

Before the vote Mutunga issued notice to politicians that the rule of law would triumph over whatever decisions they made.

"I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay," Mutunga said.

(Additional reporting by Humphrey Malalo; Editing by Edmund Blair and Giles Elgood)

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