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Dr. Willy Munyoki Mutunga (born, 16 June 1947 in Kitui District, Eastern Kenya) is a Kenyan lawyer, intellectual and pro-reform activist. On 13 May 2011, he was nominated by the Judicial Service Commission (JSC) as the sole candidate for the position of Kenya’s Chief Justice that became vacant following the exit of Justice Evans Gicheru. President Mwai Kibaki, after consultations with Prime Minister Raila Odinga, passed on his name to the National Assembly for vetting and confirmation in line with the country’s new constitution. Mutunga’s nomination drew a razor-sharp searchlight on his hitherto little-known private life, pioneering an American-style scrutiny of the private records of those seeking high public offices.

Background
On Friday 13 May 2011, the Judicial Service Commission (JSC) established under Article 171 of the Constitution recommended Dr. Willy Munyoki Mutunga to the President for nomination and consideration by the National Assembly for the position of Chief Justice of the Republic of Kenya. Subsequently, both the President and the Prime Minister approved the nomination, leaving it to parliament to decide on what has unfolded as one of Kenya’s most contentious appointments. Dr. Mutunga was born in Kitui District, Eastern Kenya on 16 June 1947. At this time, his father worked as a tailor in the small town of Nuu, Mwingi. He attained a law degree from the University of Nairobi in the 1970s and a master of law from the University of Dar-es-salaam. Dr. Mutunga joined the faculty of law at the University of Nairobi as a lecturer, becoming one of the first indigenous Kenyans to teach law at the university level. In the late 1980s, he went for his Doctorate (PhD) from the Osgoode Hall Law School, York University, Toronto Canada.

The Roots of Radical Activism
More than two decades of writings particularly in the media revealed that Mutunga’s activism was inspired by a medley of nationalist thoughts. Among these are the anti-colonial fighter, Dedan Kimathi, Kenyan activist of Asian descent, Pio Gama Pinto, and the Guinea Bissau’s intellectual nationalist, Amilcar Cabral among others.

As a law lecturer in the 1970s and 1980s, his activism was identified with a small but determined group of radical academics among them Ngugi wa Thiong’o, Al-Amin Mazrui, Kamonji Wachira and Maina Wa Kinyatti identified with the Marxist/socialist ideologies in vogue at the time.

On 19 April 1972, members of this group formed the University Academic Staff Union (UASU). Mutunga became the General Secretary of the Union in 1979, months after Daniel arap Moi succeeded Jomo Kenyatta and embarked on tightening his grip on power. He immediately rallied other UASU officials around a daring campaign for the reinstatement of Prof. Ngugi wa Thiongo to his former job of teaching English and Literature at the University of Nairobi. Ngugi, incarcerated by the Kenyatta government in December 1977, was released in December 1978 but never returned to his job.

As a result, Mutunga was arrested by the police an 10 June 1980, and a month later UASU was banned on 19 July 1980. However, Mutunga’s arrest threw to the public limelight alleged activities of a seemingly burgeoning Kenyan underground in the dark 1980s decade. He was accused of being a member of the underground insurgent group known as the December Twelve Movement, and participating in the production of the Movement’s publication, Pambana. The police alleged they had found stamps used for mailing Pambana after searching his house. On 12 June 1982, he was charged in court before before the late senior Magistrate, Mr. P.N. Tank. He was accused of being in possession of a ‘seditious’ leaflet bearing the headings: “J.M. Solidarity Day”; Don’t Be Fooled: Reject these Nyayos.” On 29 July 1982, he was detained, just three days before the 1 August 1982 abortive coup by the Air Force. He was also dismissed from his University job.

Mobilizing in Exile

Mutunga went to exile in Canada after his released on 20 October 1983, joining a group of exiled Kenyan student and intellectual activists. While here, he furthered his legal studies at the Law from Osgoode Hall Law School in Canada, obtaining a doctorate in law.

As the Berlin Wall collapsed, Mutunga, like many radical African academics made the neo-liberal turn, and began reconfiguring politics around a re-engineered liberal civil society. His exploits in this public sphere would earn him the accolade of the “father of Kenya’s civil society.” While pursuing his doctorate in Toronto, Canada, Mutunga joined hands with other Kenyan exiles to launch the Kenya Human Rights Commission as the sharp spearhead of the struggle for socio-economic justice and a democratic constitutional order. Among these were Kiraitu Murungi, then a law don and undertaking his masters at Harvard Law School; Makau wa Mutua, and Maina Kiai, both US-based anti-Moi activists in America.

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 NGOs in the civil society which could not secure registration from the Moi government. It also served as the think-tank for Kenya’s pro-democracy movement.

Civil Society and Constitution-Making
In 1992, Mutunga joined the ranks of the country’s pro-democracy Young Turks who included Paul Muite, James Orengo, Kiraitu Murungi, Gitobu Imanyara and Raila Odinga among others. As most of his Young Turks compatriots drifted to active politics following the formation of the Forum for the Restoration of Democracy (FORD) in 1992 as an omnibus political movement, Mutunga took his place in the nascent civil society.

Mutunga took his place as the Chairman of the KHRC, which he later also served as Executive Director. The KHRC supported the formation of organizations such as Kituo Cha sheria (Public Law Institute), Muslims for Human Rights (MUHURI) and the International Centre for Human Rights and Democratic Development. But Mutunga retained his global intellectual networks. He served in the boards of various organisations, including the Human Rights Centre at the law school of the state University of New York at Buffalo.

Mutunga was elected Vice-Chairman of the powerful Law Society of Kenya (LSK) in the 1991-1993 stint, serving under the lawyer and politician Paul Muite, and elected unopposed as the LSK Chairman in 1993—a position he held for two years. During his tenure as the LSK chief, Mutunga helped launch the society onto the path of activist politics making it to appear as a more formidable opposition than the splintering opposition parties.

Mutunga’s concept of “Constitution-Making from the middle” also got its best practical expression during the period. LSK teamed up with the Kenya chapter of the International Commission of Jurists (ICJ) and the National Council of Churches of Kenya (NCCK) to produce a new constitution draft supported by a Ford Foundation grant. This project, aimed at showing that constitutional reforms were possible despite resistance by the Moi regime, was later transformed into a movement—the Citizens Coalition for Constitutional Change.

By 9 December 1994, when the Steering Committee for the Proposal for a Model Constitution was convened, Mutunga’s focused his activism the struggle for a new constitution. On 6 January 1995, the Constitutional caucus was renamed Citizens’ Coalition for Constitutional Change (or 4Cs) with Mutunga and the late Chris Mulei as its face. The 4Cs put together a coalition of political parties and civic groups that planned for the National Convention on the constitution on 29 May 1996 at the Limuru Conference Centre. This initiative resulted in the formation of the National Constituent Assembly (NCA) and its executive wing, the National Convention Executive Council (NCEC) with former dean of law, Professor Kivutha Kibwana, as its spokesperson.

The NCEC campaign led to the Inter-Party Parliament Group’s (IPPG) minimal reforms before the 1997 elections, and also saw the enactment of the Kenya Review Act (1997). Mutunga has chronicled this struggle for constitutional reform in his book, Constitution-Making from the Middle: Civil Society and Transition Politics in 1992-1997 (1999).

The Negotiator and Divided Elite
Mutunga has been hailed as “an excellent negotiator.” He was the convenor of the famous 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 (NAC) as a single coalition of fourteen parties, later renamed the National Alliance Party of Kenya (NAK). The Alliance merged with rebels who decamped from President Moi’s KANU and joined the Liberal Democratic Party (LDP) to form the National Rainbow Coalition (NARC), which clinched victory in the 2002 elections.

Despite his success as a negotiator, 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. However, President Mwai Kibaki named Mutunga one of the senior counsels he appointed in 2003. But while not taking a notable position in government, Mutunga’s colleagues in the KHRC—Maina Kiai, Wambui Kimathi and Makau wa Mutua—secured position in government commissions, including the Kenya National Human Rights Commission (KNHRC).

NARC became the litmus gauge for Mutunga’s 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’s factions of NARC set in after 2003, Mutunga’s relations with the Kibaki government grew palpably frosty. In 2004, he turned down an appointed by President Kibaki to the Council of Jomo Kenyatta University (JKUAT), saying that he was not consulted before the appointment and lacked the right qualifications for the position.

Like many left-wing academics, Mutunga was a great admirer of Jaramogi Oginga Odinga. After 2003, he steadily drifted ideologically to the NARC identified with Raila Odinga’s LDP wing. In a 2003 interview with Raila Odinga’s biographer, Babafemi Badejo, Mutunga lauded Raila as “an aggressive and astute politician” whose role in the 1997 NCEC rallies showed him as a “great mobilize and organizer.” His only misgiving was Raila’s contradictory role as a “nationalist and a patriot” on the one hand and an “an ethnic baron” who “uses both nationalist and ethnic cards for the advancement of his political project.”   But he exculpates Odinga from this contradiction arguing that after all he “has always struggled against dictatorship and oppression and has been for social justice.”

Ahead of the divisive 2007 presidential campaign, Mutunga threw his weight behind Odinga: “I am convinced Kenya’s transition needs Raila as the president of this country.”

Despite exalting Raila as an “extremely talented and...arguably the best politician in the country,” Mutunga’s long-time friend and comrade-in-arms in KHRC, Makau wa Mutua, was more sober and nuanced in boldly facing the demon in “Raila Odinga enigma”: “Raila has to operate within an institutional structure of openness for the containment of his proclivities. Left to him, he would destroy democracy. He needs to be contained.”

Move to the Donor Sector
In 2004, as the intra-elite rivalry in NARC 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 the Eastern Africa region, mainly focusing on human rights and social justice and protection of women’s rights.

Mutunga’s decision to abandon Kenya’s declining civil society for the foreign donor sector--for long accused of double-standards and expediently propping despotism—was most intriguing. The move also seriously contradicted and dented his revered pro-reform credentials. Indeed, for a while, donors played a catalytic role during the 2008 post-election violence that followed the disputed presidential elections in 2007. In a 2008 interview by the Canadian scholar, Stephen Brown, Mutunga revealed that “donors might not actually mind the ‘imperial’ powers of the presidency, as it makes for a strong interlocutor” and “they would prefer not to renegotiate access to military bases with parliament”. Donors are permanently driven by geo-political interests and not genuine reforms in developing countries.

As part of the donor crowd, 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.” In the minutes of one civil society organization, activists are reported to have accused him of using his position as a donor to propagate a right-wing donor agenda and entrench himself in the civil society movement. This has promoted infighting and divisions in some emerging civil society groups. As donor agent, Mutunga is said to have pushed neo-liberal activism and agenda to new dangerous heights. Kenyan faith-based lobbies have accused Ford Foundation of funding anti-life organizations worldwide, including International Women’s Planned Parenthood Federation (IPPF), International Women’s Health Coalition (IWHC), Planned Parenthood Federation of America (PPFA), Sexuality Information and Education Council of the United States (SIECUS), among others. Recent funding grants by the Eastern African Programme have increasingly focused on abortion advocacy and liberal sex education groups.

Nomination as Chief Justice
Mutunga was one of twelve applicants for the position, and one of the ten shortlisted, for the position of Chief Justice, one of the six constitutional offices that fell vacant in the process of implementation Kenya’s 2010 constitution. On 13 May 2011, after a televised interview, his sole name was forwarded by the JSC to President Mwai Kibaki and Prime Minister Raila Odinga for approval and forwarding to parliament for vetting.

Reactions to the Nomination
Mutunga’s nomination was well received by major sections of the Kenyan public. Public arguments backing his nomination highlighted his credentials as an intellectual, a “reformer,” “activist with a track-record of integrity and sound legal grounding.” This opinion saw him as the “new broom to clean up the institution,” especially the judiciary.

The nomination also drew an equally fierce resistance. Public opinion against nomination hinged on two-strand argument. First that Mutunga has no experience as a judge or legal practitioner. As such, he is ill-suited to spearhead a credible and surgical reform of the judiciary. His nomination is blamed on sections of Kenya’s manipulative civil society, accused of having earmarked him as the preferred candidate long before the interviews started and carried out a calculated but quiet lobbying for him. If confirmed, he would be the first Chief Justice in Kenya without judicial experience.

The second argument against his nomination critically interrogates the real content of the discourse on the neo-liberal “reform” ideology identified with Mutunga and how it is likely to impact on the judiciary and the spirit of the new constitution. One writer observes that “enthusiasm for neo-liberal values is not and cannot be a judicial virtue” since, ultimately, “judicial independence requires neutral judges.” In the light of this, the infusion of Mutunga’s neo-liberal populism has been perceived ominously as a real threat to the country’s new judiciary and spirit of the new constitution. Judicial activism would undo the visions of many Kenyans regarding the new constitution should he carry his passions to their final station. However, those in defence if Mutunga’s style of neo-liberal activism, state that “the judiciary, perhaps more than any other institution, needs men and women of principle loyal first to the constitution and to the people.”

Criticism of the JSC’s Nomination
Mutunga’s nomination badly divided the judiciary. Some of the judges interviewed charged that the JSC had used the interviews to demean senior judges and portray them as incompetent. They view the interview process as unjust and a pre-determined sham informed by a misleading philosophy of ‘reformist’ Chief Judge from outside the current judiciary.

JSC announced that it would submit a single nominee for approval and confirmation as Chief Justice. As such, it was faulted for usurping the powers of the president as the appointing authority by forwarding only one name to President Kibaki. Further, this approach was seen as risky, setting a precedent that may cause delays in implementation of the new constitution, especially if a nominee is rejected by the Parliament and the hiring process has to start afresh.

Opposition over Sexuality, Culture and Spirituality
Opposition by the church and various religious sections of the society potentially made Mutunga’s appointment divisive. The Secretary-General of the National Council of the Churches of Kenya, Canon Peter Karanja, has led the Christian Church in opposing Mutunga’s nomination. At the heart of the Clergy’s resistance is Mutunga’s public defence of the gay and lesbian communities. As “Cabral Pinto,” a name of a columnist with the Nation newspapers that Mutunga has used as pen-name since 2009 to avoid conflict of interest as Ford Foundation senior manager, his articles are well known for defending gay rights and ‘Africanizing homosexuality’ in Kenya and the region. However, the Gay Movement in Kenya 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, associated with women, turned the spotlight on his sexuality and spirituality. "We cannot have a CJ who spots studs on his ears and claims he uses them to communicate with unseen spirits... in a God fearing nation," said the Eldoret North MP, William Ruto.

However, Mutunga has asserted that “I wear my earring not because of my sexuality but spirituality.” He is cited as saying that “African culture and civilization [continue] to excite incite me in a dramatic sense.”  Further, one of his supporters stated that wearing earrings is perfectly African, reminiscing that his “grandfather used to sport earrings commonly known in Kikuyu language as hangi.” This, he argues, was not a statement in sexuality. As a result, Mutunga has categorically declared that “There is no way I can remove this ear ring 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 is Mutunga religious identity. He started off as a practitioner of African traditional religion, became a Catholic, Protestant and now is a Muslim although he still follows his ancestors. He says it is 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 “fellow Muslim.” However, they pledged to advice Mutunga to remove the earring as “Islam does not allow male believers to put on ornaments worn by women”. This claim of Dr. Mutunga being a Muslim added controversy with a section of the Christians population in the country.

Acrimonious Divorce
Mutunga is married twice and is a father of four daughter and son from the first marriage and two sons with two women in 1993 and 1999. On 16 December 2009, he filed petition in the Kenyan High Court for divorce with his second wife, Professor Beverle Michele Lax, who he married in San Mateo, California on 20 July 2000. His wife filed an answer and a counter-petition on 13 May 2011 at the same Court. Upon his nomination, the divorce became a subject of intense public scrutiny and media analysis. Mutunga’s divorce is nowhere near the Clinton-Lewinsky saga in terms of its impact. But it has spewed damaging facts. Mutunga’s professor wife, in her cross-petition, accuses 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.”

Can Mutunga influence the outcome of his case in the High Court if appointed the head of Kenya’s judiciary? This brings back the question of professional neutrality.

Selected Books and Articles

 * Atieno-Odhiambo, Elisha S. 2002. “Hegemonic Enterprises and Instrumentalities of Survival: Ethnicity and Democracy in Kenya”, African Studies, 61, 2.
 * Adar, Korwa G. 1999. “Human Rights and Academic Freedom in Kenya’s Public Universities: The Case of the Universities Academic Staff Union”, Human Rights Quarterly, Vol. 21, No.1, February.
 * Badejo, Babafemi A. 2006. "Raila Odinga: An Enigma in Kenyan Politics", Nairobi, Yintab Books.
 * Brown, Stephen, 2001. “Authoritarian Leaders and Multiparty Elections in Africa: How Foreign Donors Help to Keep Kenya’s Daniel arap Moi in Power,” Third World Quarterly, Vol. 22, No. 5, pp. 725-739.
 * Brown, Stephen, 2009. “Donor Responses to the 2008 Kenyan Crisis: Finally Getting it Right?”. Journal of Contemporary African Studies, vol. 27, no. 3 (July 2009): 389-406.
 * Mutunga, Willy, 1999. "Constitution Making From the Middle: Civil Society and Transition Politics in Kenya, 1992 – 1997", Nairobi, Sareat & Mnwengo.
 * Mutunga, Willy. 2002. “The Unfolding Political Alliances and their Implications for Kenya’s Transition.” In: Mute, L. M. / Akivaga, S. Kichamu / Kioko, Wanza (eds.): Building an Open Society: The Politics of Transition in Kenya. Nairobi, Claripress.
 * Ngotho, Kamau, 2008. “The Deal and Deal Makers in Kibaki’s 2002 Victory- What Will the Future (2012) Bring?”, Africa Press International, 1 September.