By: James Thuo Gathii*
On the merits, Dr. Willy Mutunga meets and exceeds the criteria set out in the 2010 Constitution of Kenya for appointment to the position of Chief Justice. His detractors have ignored the values, concerns and issues that have characterized his public service and career. Instead, they have shamefully in the time tested politics of dirt smearing and character assassination began scouring everywhere, including on his earlobes and his private life, to look for disqualifying characteristics.
Dr. Mutunga has had significant litigation experience in a career spanning over three decades. He has won high respect among practicing attorneys having been elected as the Chair of the Law Society of Kenya. He is also designated to the prestigious status of Senior Counsel. Although he has never been content to change Kenya from behind his keyboard, Dr. Mutunga has undertaken significant academic work in important fields of law. This in addition to his distinguished practice experience exhibits his thorough understanding of our legal system and to be the next Chief Justice.
His doctoral work at Osgoode Hall Law School focused on the law of contracts and the extent to which significant legal developments in this area of the law in North America were applicable to countries like Kenya. His work on landlord tenant relationships undertaken for his Master thesis is unparalleled in highlighting the plight of low income tenants. In his legal practice he, defended such tenants in his appearances before various Rent Tribunals. Dr. Mutunga’s commitment to low-income housing has extended to those living in informal settlements such as those in Korogocho. Few lawyers in this country can claim, like Dr. Mutunga, to have visited these informal settlements and worked with individuals and groups there to make a difference.
Dr. Mutunga’s experience spans significant milestones in Kenya’s democratization. Dr. Mutunga was a member of the progressive University Academic Staff Union, (UASU), and became its Secretary General in 1979. His opposition to the repression of state dissent and his campaign to reinstate Ngugi Wa Thiongo’s job at the University of Nairobi landed him in jail in 1980 and in detention in 1982. As Chair of the Kenya Human Rights Commission, (KHRC), the KHRC focused not only on civil and political rights, but also on social and economic right. In so doing, the KHRC worked to improve wage rates and the employment practices relating workers at Del Monte farms. Under Dr. Mutunga, the KHRC also advocated on behalf of the rights of Mwea Rice farmers to organize freely at a time when the government was clamping down on their efforts against restrictions on the freedom to market their coffee. As Co-Chair of the Citizen’s Coalition for Constitutional Change, (4 C’s), in the mid-1990’s, Dr. Mutunga helped to build a broad coalition of political parties and civic groups. It was the outcome of this coalition’s intense lobbying and advocacy that in 1997 the Moi government acquiesced to Inter-Party Parliamentary Group minimum reforms. Those minimum reforms included the appointment of a Constitutional Review Commission.
Another important legacy of the 4’s, however, was its National Convention Executive Council, which advocated comprehensive, rather than minimum, constitutional change through a National Convention Assembly (NCEC) through street protests and other pressure points. The work of the NCEC greatly influenced the shape of the wieldy National Constitutional Conference in early part of the 2000 decade. Those initial start-stop processes, that included the unsuccessful 2005 referendum eventually culminated with the successful 2010 referendum. Dr. Mutunga was at all times at the very center of this pro-longed and ongoing struggle to democratize Kenya, both on the streets and in the behind the scenes organizing. Dr. Mutunga has never sought accolades for all his service to this country. Hence, in 2003, he declined an appointment to the governing council of the Jomo Kenyatta University of Agriculture and Technology arguing he was not qualified for the appointment and noting that he had not been consulted prior to being appointed.
Whether Dr. Mutunga was advocating for the displaced Kenyans and against environmental degradation with respect to titanium mining in the Kwale District, or against the scourge of ethnicity within Kenya’s civil society, he exemplifies in every respect the values of the new Constitution. Article 10 of the Constitution identifies those values to include patriotism, the rule of law, democracy, human dignity, equity, social justice, good governance, integrity, transparency and accountability. In addition, he meets and exceeds the qualifications for appointment to Chief Justice in Article 166 of the Constitution. Based on Dr. Mutunga’s distinguished record, I see no reason why Parliament should not approve his appointment.
*Associate Dean for Research and Scholarship and Governor George E. Pataki Professor of International Commercial Law, Albany Law School