Kenya: Should a Chief Justice Wear a Stud in His Ear?
John Ngirachu and Njeri Rugene
7 June 2011
Nairobi — The lives of the man and woman who could become Kenya's next Chief Justice and Deputy Chief Justice were Wednesday laid bare in the ongoing vetting by a committee of Parliament.
Dr Willy Mutunga, the nominee for Chief Justice was put to task over his career in law and civil rights activism as well as his sexuality and the stud in his ear that have become the subject of public debate.
Nancy Baraza, who is nominated to become Kenya's first ever Deputy Chief Justice, was also questioned by members of the Constitutional Implementation Oversight Committee (CIOC) about her family values, sexuality and links with the gay and lesbian community.
Ms Baraza said her doctorate thesis, seen to be the cause of this discomfort, was informed by her experiences during her work at the defunct Constitution of Kenya Review Commission and the Kenya Law Review Commission.
She said the result of her research would eventually help Kenyans, and especially the health sector, where the gays and lesbians are not catered for.
Ms Baraza said she has through her research established that the Kenya Medical Research Institute puts the gays and lesbians at 15 per cent of the Kenyan population, which the National Aids and STIs Control Programme is grappling with.
"Those who say I'm supporting them (gays and lesbians) are jumping the gun. I have gone into the unknown. I have no findings yet," said Ms Baraza.
She caused laughter when she said: "I'm not a lesbian. If I were a lesbian, there are some very good friends of mine in this room (and) I would have dated them."
Calm, collected, confident and clearly well-prepared, Dr Mutunga told the Constitutional Implementation Oversight he was happy to answer the questions.
"My community, the Kamba, have a saying that 'When you go for circumcision, you go naked so I'm okay. I'm happy to answer these personal questions," said Dr Mutunga.
"I'm aware that we are in an era where leaders are being held accountable. I'm cool with that," he added.
He had with him his curriculum vitae, a copy of Desmond Tutu's God is Not a Christian and a copy of the Constitution that he referred to throughout the hearing.
Dr Mutunga also spoke of his ongoing divorce case, in which he is the petitioner, citing it as a potential cause of conflict of interest, and later said it had "its own problems, its own pains and is not a casual affair." But he said if appointed the CJ he would not interfere with the proceedings which he was sure would also attract public interest.
Dr Mutunga described himself as man of all religions, having practiced traditional religion in his childhood before being baptized as a Protestant, confirmed as a Catholic and later adopting Islam.
His baptismal name is William, he said, and had acquired Jacob as a Catholic, before adopting Wali Mohammed when he converted to Islam.
Dr Mutunga said he has also visited synagogues, the Jews' house of worship.
"For me, the earring is about my religion, about my beliefs. I get as hurt as one would be who is told to take off their crucifix or a Muslim to take off their tasbi," said Dr Mutunga.
"Once you have your Bible. Koran or Gita or that other bone you use to talk to your ancestors, also read the Constitution," he added.
Clergymen had on Monday told the committee they were wary of Dr Mutunga's association with the gay community and his views on family values.
Father Ferdinand Lugonzo and Bishop David Oginde had also said they would be uncomfortable with having a Chief Justice who wears a stud given its relation to homosexuality.
Dr Mutunga boldly declared: "Let me say it straight out. I am not gay. I don't discriminate against gay people" and said he treasures the family, which is the smallest unit of society.
He said he had given a nephew who is gay moral support when he approached him for the same.
He also declined to give his personal views on abortion on the basis that being Chief Justice would not be about his personal views but the law.
"My constant north, if I get this job, will be the Constitution," said Dr Mutunga, who was a lecturer at the University of Nairobi before he was detained by the Moi government in 1982.
Public Health minister Beth Mugo said she was glad that Dr Mutunga is not gay but said his association with gays would make Christians uncomfortable.
Sotik MP Dr Joyce Laboso also sought clarification over a meeting in Naivasha that Dr Mutunga was said to have funded through Ford Foundation, the American organisation he currently works for.
Dr Mutunga said the event was funded by many donors and he was not the programme officer at Ford Foundation who authorised funding for it.
Asked by Nominated MP Sophia Abdi Noor about how he would deal with corruption in the Judiciary, Dr Mutunga asked the MPs for support as it required political will as well as proper laws from Parliament.
He said corruption at the Judiciary is at four levels; the clerks at the administrative level who hide files, judges who hawk their judgements, others who get instructions from MPs and politicians and lawyers who know who the corrupt judges are.
"I would want my legacy to be putting the Judiciary in the public domain so that it would have the confidence of all Kenyans. If there is a perception that "korti ina wenyewe", we're going to correct that perception," said Dr Mutunga.
On her part, Ms Baraza said she would "assist the CJ serve Kenyans and ensure that the Judiciary is made a home for all Kenyans and that they all are served."
"When it comes to service delivery in the Kenyan Judiciary, every Kenyan has been marginalised," she added.
Ms Baraza said in response to a query by Kapenguria MP Julius Murgor that the vetting of judges and magistrates would rid the Judiciary of those that lack the dignity to serve on it.
Keiyo North MP Lucas Chepkitony asked the nominee to state her views on abortion, to which Ms Baraza said: "I don't think I have views on abortion outside the law. If you want to know Nancy Baraza and her value system, look at the new Constitution."
Nominated MP Millie Odhiambo asked her about the case in 1991 where she had sued the Law Society of Kenya, with Dr Mutunga as chairman.
Ms Baraza said it was a case she never gave much thought to and of which she was not very proud and which culminated in her giving an apology to the society of lawyers.
"I have never felt so bad in my life," said the divorced mother of two boys, who is a strong Quaker.
She said the Kenyan Judiciary would do with "a drop of activism"
"Activism is an attribute and it has taken us far. What has been lacking in the Judiciary is a drop of activism," said Ms Baraza.
Ms Baraza a part-time lecturer at Nairobi University's School of Law said her Church considers her a role model.
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