Dr Eunice Sahle
Since the 1970s, Willy Mutunga has been at the forefront of debates and mobilization against injustices in Kenya. During his time at Nairobi University’s Law School, he was among a group of intellectuals and students who spoke truth to power. That development led to his detention by the state, which in its neo-colonial mode was more interested in securing its interests and those of political, economic, and socio-cultural elites linked to it, and its external allies in the geopolitical context of the Cold War rather than protecting and promoting human rights. Overall, Mutunga’s history as a public intellectual and institutional actor during his tenure as Kenya’s Chief Justice and President of the Supreme Court represents a substantive example of the importance of conceptualizing agents of human rights and justice in general through a plural and multi-scalar lens.[1] Thus, such agents can include members of alternative justice systems in Kenya who have grappled with how to promote gender equity and transform socio-spatial arrangements in a manner that contributes to deepening social recognition and belonging across various axes of social difference, particularly in what local communities term as ‘cosmopolitan’[2] geographies. South Africa’s Treatment Action Campaign, which mobilized for the right to health in the context of the HIV and AIDs health crisis, represents another example of such an agent.[3] In Mutunga’s case, in addition to advocating for institutional developments geared toward constitutional change and the protection of human rights, he has been an important public voice in struggles for gender equity, particularly for women and LGBTQI+ persons. Considering space limitations, in what follows, I briefly highlight his contributions to such struggles as they pertain to women.
In my conversations with Mutunga and observations of his generative dialogues with my students during his guest lectures in my classes over the years, his commitment to struggles against systems, structures, and ideals that contribute to the marginalization of women and others in the peripheries of society has been amply evident. His activities in the domain of knowledge production, which in my view includes judicial pronouncements,[4] further support this conclusion. Foundational to his analysis in that regard is the work of feminist scholars of African descent, leading among them, the late African American scholar bell hooks, who Mutunga for years considered as one of his mentors following his introduction to her scholarship by another of his mentors, Professor Micere Githae Mugo.[5]
While cautious about the pitfalls of generalizing about women’s experiences in Kenya, considering their diverse realities due to social class, gender, sexuality, religion, region, and other markers of social difference, Mutunga’s work nonetheless persuasively demonstrates the historical marginalization of most of them in the public sphere and other domains. One example will suffice. In his Supreme Court’s Dissenting Advisory Opinion In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Gender Representation Advisory Opinion) in 2012, he highlighted the historical dominance of men in national politics.[6] At independence in 1963, all the members of parliament were male and that trend has ‘only been marginally improving [with] 4.1% female representation in Parliament in 1997, 8.1% in 2002 and 9.8% in 2007,’ in a country where ‘the female population’ is ‘the majority, albeit slightly, at 50.44%’.[7] Thus, for him endorsing a progressive implementation of the 2010 Constitution’s two-thirds gender principle in the national assembly and senate would perpetuate the discrimination of women in the arena of political representation.[8] Consequently, the equitable path was the immediate implementation of that constitutional principle. Such an approach was in line with the constitutional ‘values of patriotism, equity, social justice, human rights, inclusiveness, equality and protection of the marginalized’.[9] His warning about the dangers of interpreting the two-thirds gender principle through a progressive implementation perspective was on the mark for after three electoral cycles (2013, 2017, and 2022), that principle has not yet materialized; thus, parliament continues to be unconstitutional. Parliament’s dithering in passing an enabling registration,[10] political parties’ gender power dynamics, and structural and socio-cultural realities that constrain the ability of women to contest for political office have contributed to this development.[11]
For Mutunga, the social marginalization of women in the political and other spheres does not occur in a vacuum. Economic systems, state policies, and ideas generate conditions that enable such marginalization.[12] For instance, while taking different forms in each society, patriarchal norms contribute to injustices against women. Socialization processes play a constitutive role in the embedding of such norms, for they facilitate the normalization of what dominant social groups sanction as the acceptable gender norms and hierarchy.[13] As powerful as dominant patriarchal ideas are, however, women have individually and collectively contested them, as the work of Wangari Maathai, Sylvia Tamale, and the Black Communities’ Process movement in Colombia indicates.[14]
In her work, hooks has also highlighted men’s resistance to patriarchal gender norms. As she argues, while in the social milieu of her upbringing, community members preferred the dominant ‘patriarchal’ vision of masculinity, other forms of masculinity existed. [15] As such, her work challenges a singular view of masculinity. In a similar vein, Mutunga’s work reminds us that men do not constitute a monolithic group, as social class and other dynamics shape their experiences, including their views about gender norms and practices.[16] Such nuanced analysis by hooks and Mutunga enrich ongoing debates focusing on masculinities.[17]
Mutunga’s work has also foregrounded the role of men in mobilizing against toxic masculinity and other factors that contribute to injustices against women. In that regard, he has explored the rise of men’s social movements advocating for gender equality in Malawi, Namibia, Kenya, and South Africa and the contributions of the African Women’s Development and Communication Network in the emergence of these movements.[18] While contradictions[19] characterize the work of such movements, Mutunga notes that their emergence marks an important development in struggles for gender equality in these countries.[20] During an interview, the founder of Men for Gender Equality Now in Malawi echoed similar sentiments. According to him, given the ‘patriarchal context’ underpinning gender power arrangements in Malawi, men’s involvement in struggles for women’s rights was urgent and imperative.[21] To conclude, this piece has highlighted only a few examples of Mutunga’s contributions to debates concerning gender equity. In light of his extensive work on issues pertaining to gender justice, a more detailed analysis awaits in the future.
[1] Women and Law in Southern African Research and Education Trust (Malawi), In Search of
Justice: Women and the Administration of Justice in Malawi (Blantyre: Dzuka Publishing Limited, 2000); and Onora O’Neill, Justice Across Boundaries: Whose Obligations? (Cambridge: Cambridge University, 2016).
[2] Interviews, members of alternative justice systems in, Kericho, Nyeri, Isiolo, and Karatina, Kenya, March 2019. For them, plurality in terms of ethnicities and histories are the key characteristics of cosmopolitan geographies.
[3] William Forbath, with assistance from Zackie Achmat, Geoff Budlender, and Mark Heywood, “Cultural Transformation, and ESR Practice: South Africa’s Treatment Action Campaign,” in Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global Poverty, edited by E. Lucie White and Jeremy Perelman, with a Foreword by Jeffrey Sachs and Lisa E. Sachs, 51–90 (Stanford: Stanford University Press, 2011).
[4] I develop this idea in a more sustained way in a forthcoming book.
[5] Drawn from various dialogues with Mutunga.
[6] Gender Representation Advisory Opinion, no. 2 of 2012, available at: http://kenyalaw.org/caselaw/cases/view/85286.
[7] Gender Representation Advisory Opinion.
[8] Gender Representation Advisory Opinion.
[9] Gender Representation Advisory Opinion, paragraph 11.6; emphasis original.
[10] On September 13, 2022, the newly elected president declared that he would push for legislative measures to ensure the realization of the two-thirds gender principle. Whether his pronouncement will result in the implementation of that principle is an empirical question that remains open as of this writing in November 2022. For more details on his statement see Moraa Obiria, ‘Ruto’s plan on the two-thirds gender principle,” Nation, September 14, 2022, available at: https://nation.africa/kenya/news/gender/ruto-s-plan-on-the-two-thirds-gender-principle-3948686.
[11] Interviews (2014, 2016, 2017, and 2019, Nairobi, Kenya), members of parliament, judicial officers, and civil society leaders on the 2013 and 2017 elections. Given the results of the 2022 elections, the concerns they raised remain relevant.
[12] Willy Mutunga, “Feminist Masculinity: Advocacy for Gender Equality and Equity,” in Human
Rights NGOs in East Africa: Political and Normative Tensions, edited by Makua Mutua, 112–30 (Philadelphia: University of Pennsylvania Press, 2009).
[13] Mutunga, “Feminist Masculinity.”
[14] Wangari Maathai, Unbowed: A Memoir (New York: Alfred A. Knopf, 2006); and Sylvia Tamale, “Think Globally, Act Locally: Using International Treaties for Women’s Empowerment in East Africa,” in Agenda: Empowering Women for Gender Equity, no. 50 (2001): 97–104. Insights on the Black Communities’ Process movement are from a guest lecture by one of its members, Charo Mina-Rojas, in my class on October 27, 2022.
[15] bell hooks, “Reconstructing Black Masculinity,” in Black Looks: Race and Representation (New York: Routledge, 2015), 88.
[16] Mutunga, “Feminist Masculinity,” 116.
[17] For other works that provide generative insights on masculinities on the African continent, see Egodi Uchendu, ed., Masculinities in Contemporary Africa (Dakar: CODESRIA, 2008); Carole Ammann and Sandra Staudacher, “Masculinities in Africa Beyond Crisis: Complexity, Fluidity, and Intersectionality,” Gender, Place & Culture, 28 (2021): 759–68; and Robert Morrell, Rachel Jewkes, and Graham Lindegger,“Hegemonic Masculinity/Masculinities in South Africa: Culture, Power, and Gender Politics,” Men and Masculinities 15, no. 1 (2012): 11–30.
[18] Mutunga, “Feminist Masculinity,” 116.
[19] Dean Peacock, Bafana Khumalo, and Eleanor McNab, “Men and Gender Activism in South Africa: Observations, Critique and Recommendations for the Future,” Agenda: Empowering Women for Gender Equity, no. 69 (2006): 71-81.
[20] Mutunga, “Feminist Masculinity,” 116.
[21] Interview, Marcel Chisi, National Chairperson, Men for Gender Equality Now in Malawi, June 2014, Blantyre, Malawi.
