|The Hon. Justice
Dr Willy Mutunga
|Chief Justice of Kenya|
20 June 2011 – on or before 16 June 2017
|Appointed by||Mwai Kibaki|
|Preceded by||Johnson Gicheru|
16 June 1946 |
Kitui District, Kenya Colony
|Alma mater||University of Nairobi (LLB)
Willy Munyoki Mutunga (born, 16 June 1947 in Kitui District, Eastern Kenya) is a Kenyan lawyer, intellectual, reform activist, and, since June 2011, the Chief Justice of Kenya and President of the Supreme Court of Kenya.
- 1 Background
- 2 Roots of radical activism
- 3 Activities while in exile in Canada
- 4 Reforming civil society and the constitution
- 5 Coalition building and division
- 6 Move to the foreign donor sector
- 7 Appointment of Mutunga as chief justice
- 7.1 Recommendation from the Judicial Service Commission to appoint Mutunga
- 7.2 Reactions to President Kibaki's appointment of Mutunga
- 7.3 2013 presidential election challenge
- 8 Further reading
- 9 Notes
- 10 References
Mutunga attended Ithookwe Primary School before proceeding to Kitui School for his Kenya Certificate of Education exams. He was the first student to score six points in the exams (an "A" in all subjects), earning him a place at the Strathmore College for his "A" levels. Mutunga received a Bachelor of Laws degree from the University of Nairobi in the 1970s and a Master of Laws from the University of Dar es Salaam. Mutunga joined the law faculty at the University of Nairobi as a lecturer, becoming the first indigenous Kenyan to teach constitutional law at the university level. In the late 1980s, he received his Doctorate of Laws from the Osgoode Hall Law School at York University in Toronto.
On 13 May 2011, the Judicial Service Commission of Kenya[Note 1] recommended to President Mwai Kibaki that he appoint Mutunga to be chief justice of Kenya. After consulting with Prime Minister Raila Odinga, Kibaki appointed Mutunga, and the National Assembly approved the appointment on 15 June 2011. He was sworn into office on 20 June 2011. Because of Kenya's mandatory retirement age of 70, Mutunga must leave office no later than 16 June 2017.
Roots of radical activism
More than two decades of writings, particularly in the media, reveal that Mutunga's activism was inspired by several nationalists. Among these were the anti-colonial fighter Dedan Kimathi, Kenyan activist Pio Gama Pinto, and Guinea Bissau's intellectual nationalist Amílcar Cabral.
As a law lecturer at the University of Nairobi in the 1970s and 1980s, Mutunga's activism was associated with a small but determined group of academics who identified with Marxist / Socialist ideologies, including Ngũgĩ wa Thiong'o, Al-Amin Mazrui, Kamonji Wachira, and Maina wa Kinyatti. On 19 April 1972, this group formed the University Staff Union (USU). Mutunga became the general secretary of USU in 1979, months after Daniel arap Moi succeeded Jomo Kenyatta as president and began tightening his grip on power. Mutunga immediately rallied other USU officials around a campaign for the reinstatement of Prof. Ngũgĩ wa Thiong'o to his former job of teaching English and Literature at the University of Nairobi. Ngũgĩ was incarcerated by the Kenyatta government in December 1977, and although he was released in December 1978, he never returned to his job. Police arrested Mutunga on 10 June 1980, and USU was banned on 19 July 1980.
Mutunga's arrest threw light on the activities of a seemingly burgeoning Kenyan underground in the dark 1980s. He was accused of being a member of the underground group known as the December Twelve Movement and of participating in the production of the movement's publication, Pambana. The police alleged they had found stamps used for mailing Pambana after searching Mutunga's house. On 12 June 1982, he was charged in court of being in possession of a "seditious" leaflet bearing the headings "J. M. Solidarity Day" and "Don't Be Fooled: Reject these Nyayos". On 29 July 1982, he was detained, just three days before 1 August 1982 abortive coup by the Air Force. He was also dismissed from his University of Nairobi job.
Activities while in exile in Canada
Mutunga went into exile in Canada after his release on 20 October 1983. There, he joined a group of exiled Kenyan student and intellectual activists and obtained his Doctorate of Law from Osgoode Hall Law School in Toronto.:pages: none While pursuing his doctorate, Mutunga cooperated with other Kenyan exiles to launch the Kenya Human Rights Commission (KHRC) to further the struggle for socio-economic justice and a democratic constitutional order. Among these exiles were Kiraitu Murungi, then a law lecturer and pursuing his masters at Harvard Law School; and Makau W. Mutua and Maina Kiai, both United States-based anti-Moi activists.
As the cold war ended, Mutunga, like many radical African academics, made the neoliberal turn and began reconfiguring politics around a re-engineered liberal civil society.
Upon Kenya's return to multi-party democracy in 1991, Mutunga and other exiles began returning home. In 1992, the KHRC itself was relocated back to Kenya and registered in March 1994, starting its operations from the Chambers of Kamau Kuria and Kiraitu Murungi Advocates. It gave legal cover to an array of nongovernmental organisations in civil society that could not secure registration from the Moi government. It also served as the think tank for Kenya's pro-democracy movement.
Reforming civil society and the constitution
Most of the Young Turks drifted to active politics following the formation of the Forum for the Restoration of Democracy - Kenya in 1992 as an omnibus political movement. Mutunga, however, became the chairman of the non-governmental Kenya Human Rights Commission (KHRC), which he later also served as executive director. The KHRC supported the formation and existence of organisations such as Kituo cha Sheria[Note 2] and the Public Law Institute.
Mutunga also retained his global intellectual networks. He served on the boards of various organisations, including the Buffalo Human Rights Center[Note 3] at the University at Buffalo Law School, the State University of New York.
Mutunga served as vice-chairman of the Law Society of Kenya (LSK) from 1991 to 1993 and chairman from 1993 to 1995. During his tenure as vice-chairman and chairman, Mutunga helped launch the LSK into activist politics, making it appear as a more formidable opposition than the splintering opposition parties.
Mutunga's concept of "constitution-making from the middle" also got its practical expression during this period. Supported by a Ford Foundation grant, LSK teamed with the KHRC and the Kenya chapter of the International Commission of Jurists to produce a draft of a new constitution.:page: 104 This project was aimed at showing that constitutional reforms were possible despite resistance by the Daniel arap Moi regime. On 6 January 1995, the constitutional caucus was renamed the Citizens' Coalition for Constitutional Change (or 4Cs) with Mutunga and Christopher Mulei as its face. The 4Cs put together a coalition of political parties and civic groups that planned for a national convention on the constitution. This initiative resulted in the formation in April 1997 of the National Constituent Assembly and its executive wing, the National Convention Executive Council (NCEC) with former dean of law, Professor Kivutha Kibwana, as its spokesperson. The NCEC organised constitution reform rallies in May, July, and August 1997. Moi responded by arguing that the government could not negotiate about constitutional reform with the civil sector, including the NCEC, that consisted of people who had no elective mandate. Members of the National Assembly bought the argument and abandoned the NCEC in favour of the newly formed Inter-Parties' Parliamentary Group (IPPG), which overtook the NCEC's initiative and allowed Moi to take control of the reform process and then emasculate it.:page: 107:page: 733 The IPPG shepherded minimal reforms before the 1997 elections and the enactment of the Constitution of Kenya Review Commission Act in 1997. The NCEC, however, condemned the reforms as greatly flawed and not addressing the basic problems that caused the constitutional crisis.
Coalition building and division
Mutunga has been hailed as "an excellent negotiator". He convened the breakfast meetings of the then opposition stalwarts, Mwai Kibaki, Charity Ngilu, and Michael Wamalwa, to forge a common alliance ahead of the 2002 elections. The unity talks culminated in the creation of the National Alliance for Change as a single coalition of fourteen parties, later renamed the National Alliance Party of Kenya. The Alliance merged with defectors from President Daniel arap Moi's Kenya African National Union and joined the Liberal Democratic Party (LDP) to form the National Alliance of Rainbow Coalition (NARC). Mutunga declined an offer to serve as the chairperson of NARC, saying that his main interest was to unite the opposition and not to join active politics. The NARC won the 2002 elections. After the elections, Mutunga was one of the senior counsels appointed by President Kibaki in 2003 under Section 17 of the Advocates Act.[Note 4]
The NARC became the litmus gauge for Mutunga's political neutrality, which lasted as long as the coalition elite stayed united by the post-election euphoria. As soon as power wrangles between the Kibaki and Raila Odinga factions of the NARC set in after 2002, Mutunga's relations with the Kibaki administration grew frosty. On 8 April 2003, he turned down an appointment by President Kibaki to the university council of the Jomo Kenyatta University of Agriculture and Technology, saying that he lacked the right qualifications for the position and was not consulted before the appointment.
Like many left-wing academics, Mutunga was an admirer of Jaramogi Oginga Odinga. After 2003, he drifted ideologically to the portion of the NARC that identified with Raila Odinga's LDP wing. In a 2003 interview with Raila's biographer, Babafemi Badejo, Mutunga lauded Odinga as "an aggressive and astute politician" whose role in the 1997 National Convention Executive Council rallies showed him as a "great mobilizer and organizer".:page: 102 His only misgiving was Odinga's contradictory role as a "nationalist and a patriot" on the one hand and "an ethnic baron" who "uses both nationalist and ethnic cards for the advancement of his political project".:page: 102 But he exculpated Odinga from this contradiction arguing that he "has always struggled against dictatorship and oppression and has been for social justice".:page: 102 Ahead of the divisive 2007 presidential campaign, Mutunga threw his weight behind Odinga, saying "I am convinced Kenya's transition needs Raila as the president of this country".
Move to the foreign donor sector
In 2004, as the intra-elite rivalry in the National Alliance of Rainbow Coalition and fissures over the constitutional negotiations turned perilous ahead of the 2005 referendum, Mutunga joined the Ford Foundation in Nairobi as a human rights programme officer. In 2009, he became the executive director overseeing all grant making in Eastern Africa, mainly focusing on human rights and social justice and protection of women's rights.:page: 102
Mutunga's decision to leave Kenya's declining civil society for a foreign foundation operating in Kenya dented his pro-reform credentials in the eyes of some. Foreign bilateral donor countries, such as the United States and the United Kingdom, had long been accused of having double-standards, supporting despotism, and responding inadequately to pre- and post-presidential election violence, government corruption, ethnic tensions, and presidential authoritarianism.:page: 2 Based at least in part on a December 2008 interview with Mutunga, Canadian scholar Stephen Brown said, "Donors [defined by Brown as western governments and their missions in Kenya, including both diplomatic and aid representatives, but not specifically including private entities] might not actually mind the 'imperial' powers of the presidency, as it makes for a strong interlocutor. For instance, they would prefer not to renegotiate access to military bases with parliament.":pages: 1, 9
When he was participating in the donor sector, Mutunga is said to have grown ideologically intolerant, tagging and parodying those of his former colleagues in civil society and the academy aligned to the Kibaki government as "traitors".
At a July 2010 meeting of the Bunge La Mwananchi[Note 5] movement, one participant alleged that Mutunga had "intruded into the movement's affairs eroding the ideals set by the founders and causing needless friction and infighting amongst the rank and file". Another said that Mutunga had been claiming falsely that the Ford Foundation was working with the movement and that Mutunga had planned a counter-demonstration to support certain corrupt individuals when the movement was planning to move against them.
Some Christian Kenyans accused the Ford Foundation of funding, while Mutunga worked for the foundation, abortion rights advocacy organisations and liberal sex education groups worldwide, including among others the International Planned Parenthood Federation, the Planned Parenthood Federation of America, and the Sexuality Information and Education Council of the United States.
Appointment of Mutunga as chief justice
Recommendation from the Judicial Service Commission to appoint Mutunga
Mutunga was among twelve applicants, and one of the ten shortlisted,[Note 6] for the position of chief justice. On 13 May 2011 after a televised interview, the Judicial Service Commission (JSC)[Note 1] recommended to President Mwai Kibaki that he appoint Mutunga. This recommendation was pursuant to the JSC's obligation under Article 172(1)(a) of the Constitution of Kenya to "recommend to the President persons for appointment as judges".
The recommendation divided the judiciary.
Some of the judges and lawyers interviewed charged that the JSC had demeaned senior judges and portrayed them as incompetent. They viewed the interview process as unjust and a pre-determined sham informed by a misleading philosophy of a "reformist" chief justice from outside the current judiciary.
Because the JSC recommended to the President only one person for appointment as chief justice, the JSC was faulted for usurping the powers of the President as the appointing authority. This approach also was seen as risky because if the appointee were rejected by the National Assembly of Kenya, the hiring process would have had to start afresh.
Reactions to President Kibaki's appointment of Mutunga
Mutunga's appointment was well received by major sections of the Kenyan public. Proponents highlighted his credentials as an intellectual, a "reformer", and an "activist with a track-record of integrity and sound legal grounding". They also saw him as the "new broom to clean up the institution," especially the judiciary.
The appointment also drew an equally fierce resistance. Opponents hinged on a two-stranded argument. First, Mutunga had no experience as a judge or legal practitioner. Because of this, opponents claimed he was ill-suited to spearhead a credible and surgical reform of the judiciary. Second, some questioned Mutunga's neoliberal "reform" ideology and how it would likely impact the judiciary and the spirit of the new constitution. One writer observed that "enthusiasm for neo-liberal values is not and cannot be a judicial virtue, since, ultimately, judicial independence requires neutral judges". Judicial activism would undo the visions of many Kenyans regarding the new constitution should Mutunga carry his passions to their final station. However, Maina Kiai, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, vigorously defended Mutunga's activism, stating,
[A]t some point, ... "activist" has taken on a negative sense in some Kenyan circles. Yet the opposite of activist is someone who is a conformist, takes orders, does not challenge authority even when it is wrong, and does what he or she is ordered. ... Whether in the judiciary, civil service, or legislature, we should be seeking women and men of principle who are willing to stand up for what they believe. ... We have assumed that what is needed to be a "good public servant" is someone who is essentially an "empty debe" to be filled in with orders from above and who will not challenge authority or question it. And without rigorous challenge, the quality of decision making suffers.... What we have then gotten, are public servants whose first loyalty is to power, rather than to principle, or to the Constitution. They have seen their task as doing what those wielding power want, no matter how wrong or ridiculous; and no matter that it could be illegal. And from this then arise the problems of impunity and tribalism as these are the natural defenses that conformists use. Let's be clear here: The Judiciary, perhaps more than any other institution, needs men and women of principle loyal first to the constitution and to the people.
Opposition based on Mutunga's sexuality, culture, and spirituality
Opposition by the church and various religious sections of the society made Mutunga's appointment controversial. Peter Karanja, the general secretary of the National Council of Churches of Kenya, led the Christian church's opposition to Mutunga's nomination. At the heart of the church's resistance was Mutunga's public defence of the gay and lesbian communities. As "Cabral Pinto", the name of a columnist with the Daily Nation newspapers that Mutunga used as his pen-name since 2006 to avoid conflict of interest as Ford Foundation senior manager, his articles were well known for defending gay rights and "Africanizing homosexuality" in Kenya and the region.
The gay movement in Kenya, however, welcomed Mutunga's nomination as a choice "that reflect the changing trends and pursuit for surgical reform within the Kenyan judiciary".
Mutunga's wearing of a single earring, often associated with women, turned the spotlight on his sexuality and spirituality. Mutunga asserted that the earring was a source of ancestral inspiration and not related to his sexuality. He also stated that he is not gay. However, the Eldoret North member of parliament, William Ruto, said, "We cannot have a CJ who spots studs on his ears and claims he uses them to communicate with unseen spirits". As a result, Mutunga categorically declared, "There is no way I can remove this earring even if I become the chief justice. If am told I must remove it to get the job of chief justice, I will say keep your job".
Compounding the controversy was Mutunga's religious identity. He started as a practitioner of African traditional religion but in 2001 was baptised a Protestant and subsequently became a Roman Catholic and then a Muslim, although he still follows his ancestors. He says it was his ancestors who instructed him in 2003 to wear the earring as a connection to them so that they can protect him. Muslim groups and parliamentarians backed the appointment of a Mutunga. They pledged, however, to advise Mutunga to remove the earring as Islam does not allow male believers to put on ornaments worn by women.
Opposition based on Mutunga's acrimonious divorce
Mutunga has been married twice. He has a daughter and son from his first marriage. Two additional sons were born to two different women in 1993 and 1999 while Mutunga was single. On 16 December 2009, Mutunga filed for divorce from his second wife, Professor Beverle Michele Lax, who he married in San Mateo, California on 20 July 2000. She filed an answer and a counter-petition on 13 May 2010. She accused him of being a "pathological liar" who "kept an open relationship with his former wife" and "concealed the existence of his relationship with women whom he had sired children with". Upon his nomination for chief justice, the proceedings became a subject of intense public scrutiny and media analysis. The nomination also raised the question of whether Mutunga would unduly influence the outcome of his divorce case should he be approved as chief justice. Mutunga denied that he would exercise such influence and asked the public to keenly follow the matter if he were appointed.
2013 presidential election challenge
After the first round of the presidential election took place on 4 March 2013, the Independent Electoral and Boundaries Commission declared Uhuru Kenyatta the president-elect of Kenya. Raila Odinga challenged this in the Supreme Court of Kenya. The court unanimously dismissed the challenge on 30 March 2013, with Mutunga reading the decision of the court.
- Atieno-Odhiambo, Elisha S., 2002. "Hegemonic Enterprises and Instrumentalities of Survival: Ethnicity and Democracy in Kenya", African Studies, 61, 2.
- The website of the Judicial Service Commission of Kenya.
- The website of Kituo cha Sheria.
- The website of the Buffalo Human Rights Center.
- The Advocates Act of Kenya.
- The website of Bunge Law Mwananchi.
- The others shortlisted were Judge Lee Muthoga; Court of Appeal judges Alnashir Visram, Joseph Nyamu, Riaga Omollo, and Samuel Bosire; and High Court Judges Paul Kihara, Msagha Mbogoli, Mary Angawa, and Kalpana Rawal.
- "The other side of Mutunga", authored by Mutinda Mwanzia, Standard Digital
- "Why Mutunga's past, credentials fit for the job", authored by Mutinda Mwanzia, Standard Digital
- "Kenya: Judicial Officers Should Read Signs of the Times With Selection of Reformists", Daily Nation, authored by Gitau Warigi, 13 May 2011
- "Reforms activist beats judges in race for CJ", Daily Nation, authored by Emeka-Mayaka Gekara & Paul Ogemba, 14 May 2011
- "National Assembly, Official Report" (PDF) (Parliamentary Debate). Parliament of Kenya. 15 June 2011. p. 72. Retrieved 24 April 2013.
- "Kenya: Mutunga Sworn in, Vows to Clean Up the Judiciary", The Star, authored by Pamela Chepkemei, 21 June 2011
- Constitution of Kenya, Article 167(1)-(2)
- "Human Rights and Academic Freedom in Kenya's Public Universities: The Case of the Universities Academic Staff Union", by Korwa G. Adar, Human Rights Quarterly, Vol. 21, No. 1, February 1999
- Raila Odinga: An Enigma in Kenyan Politics, authored by Babafemi A. Badejo, Nairobi, Yintab Books, 2006, page 102
- "Why former Detainee Won Race for CJ", Daily Nation, 13 May 2011
- Who We Are, Kenya Human Rights Commission
- "Kenya: Public Office Seekers to Brace for Mutunga-Style Scrutiny", Daily Nation, 11 June 2011
- "Dr. Mutunga’s Brief Professional Bio", Mose Karanja
- Peaceful Resistance: Advancing Human Rights And Democratic Freedoms, authored by Robert M. Press, Ashgate Publishing Ltd., 2006, page 113
- Constitution Making From the Middle: Civil Society and Transition Politics in Kenya, 1992–1997, authored by Willy Mutunga, Sareat & Mnwengo, Nairobi, 1999
- "Civil Society and the Democratic Experience in Kenya: A Review of Constitution-Making from the Middle: Civil Society and Transition Politics in Kenya, 1992–1997 authored by Willy Mutunga," review by Godwin R. Murunga, History Department, Kenyatta University, Nairobi, African Sociological Review, 4,(1), 2000
- "Mutunga: A Man of Strong Virtue But with no Judicial Experience", Daily Nation, authored by George Kegoro, 21 April 2011
- "Authoritarian Leaders and Multiparty Elections in Africa: How Foreign Donors Help to Keep Kenya's Daniel arap Moi in Power", authored by Stephen Brown, Third World Quarterly, vol. 22, no. 5, 2001
- "Democracy and Good Governance in Kenya: Prospects and Obstacles", authored by Adams Oloo & Walter O. Oyugi, Department of Government, University of Nairobi
- "The Unfolding Political Alliances and Their Implications for Kenya's Transition", authored by Willy Mutunga, in Building on Open Society: The Politics of Transition in Kenya, edited by Wanza Kioko, Lawrence M. Mute, & S. Kichamu Akivaga, Nairobi, Claripress, 2002, pages 60–97
- "A Hundred Days Later: Some Old Habits Die Hard", Africa News Service, 16 April 2003
- "The Deal and Deal Makers in Kibaki's 2002 Victory – What Will the Future (2012) Bring?", authored by Kamau Ngotho, Africa Press International, 1 September 2008
- "Donor Responses to the 2008 Kenyan Crisis: Finally Getting it Right?", authored by Stephen Brown, subsequently printed in Journal of Contemporary African Studies, vol. 27, no. 3 (July 2009)
- "Minutes of the Bunge la Mwananchi Network Leaders’ Meeting Held at Wawa Restaurant Along Keekorok Road", 14 July 2010
- "Statement of Kenya Christian Professionals on the JSC Judicial Nominations", Kenya Christian Professionals Forum, 15 May 2011
- Constitution of Kenya, Article 172(1)(a)
- "By Rejecting Judges, JSC Failed in Assessing Suitability", Standard Digital, authored by Charles Kanjama, 14 May 2011
- "Judges Plot to Sabotage Mutunga", Nairobi Star, authored by Pamela Chepkemei, 14 May 2011
- "Why Panel Forwarded Only Two Nominees", Daily Nation, authored by Kipchumba Some, 15 May 2011
- "The neutrality of judges is crucial in ensuring judicial independence", Daily Nation, authored by Okiya Omtata Okoiti, 21 May 2011
- "Kenya: So, What Exactly Could Be the Problem With One Being Labeled an 'Activist'?", Daily Nation, authored by Maina Kiai, 21 May 2011
- "Kenyan Church Rejects Mutunga, Baraza", CapitalFM, 16 May 2011
- Pinto, Cabral (7 September 2009). "Kenyans and the man-woman thing: Thanks Semenya!". Daily Nation (Nation Media Group). Retrieved 18 October 2013.
- "Gay Kenya Welcomes CJ, Deputy CJ Nominations", Gay Kenya, authored by Denis Nzioka, 14 May 2011
- "Young Kenyan MP ejected for wearing stud earrings in chamber", USA Today, 2 March 2011
- "Mutunga and Baraza Face Uphill Task in Reforming Judiciary", Standard Digital, authored by Juma Kwayera, 15 May 2011
- "Kenya: Mutunga Smear is the Last Refuge of a Scoundrel", Daily Nation, authored by Otieno Otieno, 15 May 2011
- "Lawyer in Court Move to Block JSC Nominees", Daily Nation, 16 May 2011
- "Kenya: We're Not Gay, Say Mutunga, Baraza", The Star, authored by Mosoku Geoffrey, 8 June 2011
- "MPs: We'll Reject Mutunga, Baraza in Parliament", Standard Digital, authored by Philip Mwakio, 16 May 2011
- "Kenya faces media frenzy over its supreme court", Daily Estimate, authored by Martyn Drakard, 27 May 2011
- "Muslim MPs back Mutunga", Daily Nation, 18 May 2011
- "Mutunga Divorce", The Star, authored by Issac Ongiri, 21 May 2011
- "Uhuru's poll win upheld as Raila accepts Supreme Court ruling", Business Daily, 30 March 2013