Willy Mutunga

Mutunga's father, Mzee Mutunga Mbiti, worked as a tailor in the small town of Kilonzo, Kitui County, Nzambani District. He died in 1985. His mother, Mbesa Mutunga, died in 1982.[1]

Mutunga attended Ithookwe Primary School before proceeding to Kitui School for his Kenya Certificate of Education exams.[2] 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 Dar Es Salaam in 1971 and a Master of Laws from the University of Dar es Salaam in 1974.[3] Mutunga joined the law faculty at the University of Nairobi as a lecturer,[3] becoming the first indigenous Kenyan to teach constitutional law at the university level.[4] In the late 1980s, he received his Doctorate of Laws from the Osgoode Hall Law School at York University in Toronto.[5]

On 13 May 2011, the Judicial Service Commission of Kenya[Note 1] recommended to President Mwai Kibaki that he appoint Mutunga as chief justice of Kenya. After consulting with Prime Minister Raila Odinga, Kibaki made the appointment, and the National Assembly approved it on 15 June 2011.[6] He was sworn into office on 20 June 2011.[7] Because of Kenya's mandatory retirement age of 70,[8] Mutunga must leave office no later than 16 June 2017.

Dr Willy Mutunga has been married twice. He has a son and a daughter from his first marriage. He had two other sons with different women in 1993 and 1999.

On 20 July 2000, he married professor Beverle Michele Lax in San Mateo, California. He filed for a divorce on 13 May 2010.

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 celebrated nationalist intellectual Amílcar Cabral.[9]

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).[10] 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.[11]

Mutunga's arrest threw light on the activities of a seemingly burgeoning Kenyan underground in the repressive 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.[3]

Mutunga went into exile in Canada after his release on 20 October 1983.[3] 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.[11]^{:pages: none}[12] 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[13] and registered in March 1994,[14] 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.

In 1992, Mutunga joined the ranks of the country's pro-democracy Young Turks,[15] which included, among others, Paul Muite, James Orengo, Kiraitu Murungi, Gitobu Imanyara, and Raila Odinga.

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.[4]

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.[16]

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,[17] making it appear as a more formidable opposition than the splintering opposition parties.[18]

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.[19]^{:page: 104} This project was aimed at showing that constitutional reforms were possible despite resistance by the Daniel arap Moi regime.[20] 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.[19]^{:page: 107}[21]^{: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.[22]

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.[23] 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.[20] 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[24] and was not consulted before the appointment.[25]

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".[11]^{: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".[11]^{: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".[11]^{: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".

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.[11]^{: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.[21][26]^{: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."[26]^{: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".[27]

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.[28]

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.[29]

Dr. Mutunga announced in 2015 that he would retire early from his office to give the country sufficient time to recruit a new Chief Justice to avoid the crisis that might arise if the August 2017 General Election is held without a substantive holder of the office of Chief Justice.[49] Having been born in 1947, Dr. Mutunga was set to retire from office when he turned 70 in June 2017 in accordance with Article 167(1) of the Constitution of Kenya.[50] This would be a mere two months before the August 2017, and he anticipated that the Judicial Service Commission would not have enough time to recruit a new Chief Justice who needed to be in office in case a petition challenging the presidential poll is filed in the Supreme Court.

True to his word, Dr. Mutunga retired on his 69th birthday on 16 June 2016, handing over the leadership of the Supreme Court to Justice Mohamed Ibrahim who is the senior-most of the four Judges remaining in the Court.[51] In his farewell speech to Kenyans, he expressed confidence that he was leaving behind "a Judiciary more independent and more humane; one that has defended the Constitution and exponentially expanded access to justice; one that had reduced case backlog, including some that have been in the system for over 30 years; one that has invested in massive infrastructure; one that has unflinchingly fought corruption, even as the corruption sisterhood and brotherhood have activated their solidarities in other arenas; and one that is accountable, open and responsible to the public, as well as to its employees."[51]

Dr. Willy Mutunga announced during his retirement speech that he had accepted an appointment by the Secretary General of the Commonwealth, the Rt. Hon. Patricia Scotland, QC, as a Commonwealth Special Envoy to Maldives, to try and bring the political leadership there together, and to aid in the process of constitutional and political transition. His overriding mandate would be to ‘support a sustainable political dialogue process leading to a stronger climate of pluralism and inclusive elections in 2018, and to encourage the strengthening of democratic institutions and culture in Maldives’.[51]

In August 2016 Dr. Mutunga became subject of criticism when he made the following statement on twitter after concluding 4-day trip to Maldives as Special Envoy:

"Three observations on the Maldives: beautiful islands and clean waters around them; malaria free; a presidential motorcade of TWO vehicles".

This trivial tweet from Mutunga came just days after president Yameen ratified a law restricting freedom of expression and on the day government-controlled parliament passed a bill curtailing freedom of assembly. Among the critics include UN Special Rapporteur for Iran and former Foreign Minister of Maldives Dr Ahmed Shaheed.

• Atieno-Odhiambo, Elisha S., 2002. "Hegemonic Enterprises and Instrumentalities of Survival: Ethnicity and Democracy in Kenya", African Studies, 61, 2.