Dr Willy Mutunga’s unmistakable message to the nation when he established his tenure as Chief Justice of Kenya was that ‘the judiciary would not be accountable to the elite who had been ruling the country since Independence nearly half a century before. This was going to be a journey of transformation, marking a new beginning to ensure that justice would be administered in a way that would serve the interests of the people’.
He took his oath of office in a plain suit, not in judicial robes and addressed the nation similarly from the steps of the Supreme Court and not seated on some regal chair with a retinue of judges.
It was clear that under his leadership, the supreme Court would give more weight to experience gained in struggles for the liberation of Kenya from exploitative, authoritarian rule than to citing the magna Carta or cherry-picking from erudite statements by this judge or that in the Court of Appeal in London. A solitary figure on the steps, with heavy battles ahead, he was armed with only two weapons. The one was the Constitution; the other a tiny, square stud in his left ear lobe.
The determination by Willy Mutunga that documents should be digitised not only sped up court processes quite dramatically, but made them secure. One of Willy Mutunga’s most audacious challenges was to the business community. Did they wish to continue as racketeering enterprises, or would they financially sponsor the creation of commercial courts that would settle disputes in a fair and reasonably swift manner? Addressing church leaders in a building that had played an important role in the Kenyan Independence struggle, he called upon the church to continue with its vocation of encouraging the achievement of more freedom for more people in the country.
When Willy Mutunga’s own vetting had been done by Parliament, he was met with fierce questioning. The first big issue arose out of the fact that he had never been a judge. He had obtained law degrees from the University Dar es Salaam, received a Doctorate in Legal Studies at Osgoode Hall at York University in Toronto, taught at the University of Nairobi and practised as a Lawyer. For a number of years, he had served as the Ford Foundation’s representative in East Africa. Willy Mutunga had been one of a generation of courageous Kenyan intellectuals, among them the writer Ngugi wa Thiong’o who had put themselves at great personal risk in the struggle to achieve what they called the ‘second liberation’ of their country and who been imprisoned by the elite regime for their challenges to the repressive one-party state.
He was thus well-loved among the general populace. At a time when public opinion polls showed that the reputation of the old-guard judiciary was extremely low; being untainted by any suggestions of corruption or tribalism meant that Willy Mutunga’s never having been a judge turned out to be the strongest argument in his favour.
His ear-stud served as a harbinger of changes to come in the culture of the judiciary and pointed to a more organic, less hierarchical system of justice, less obsessed with technicalities and formalism. Courts would have to be made more friendly to the people, with less kowtowing to authority, less fear, less gate keeping, less compulsion to bend the knee to whoever was higher up on the rungs of power. It presaged more honesty, more integrity, more chance for law at last to be allowed to take its course in keeping with the Constitution’s injunction to serve the poor, the marginalised, the whole nation, not just the rich and the powerful. Willy Mutunga’s internal spiritual prompt was telling him that what mattered most was to restore respect for the judicial conscience in the minds of the judges and magistrates themselves. The guiding star would always be the Constitution. If the Constitution represented the soul of the nation, his ear-stud stood for his individual soul.
Regarding his insistence on wearing an ear-stud, I mused that if wearing an African ear-stud made Willy feel good, all well and good. He was a grown person, and it was his business to decide how he wished to comport himself.I never gave the matter a further thought – until, that is, I read this memoir. What I was learning was that Willy had not simply been declaring that he was his own person, who within the limits of decorum, had the right to adorn himself as he pleased. That, too, would have been an easy path to follow. Instead, he takes the reader on a road I have never before seen traversed in a judicial memoir, and one which I find personally quite challenging. To begin with, he describes how the ear-stud signified something deep and special about the way his consciousness evolved while he was growing up as a curious, questing, slightly solitary boy in an African village. Becoming a judge, and the top one at that, should not have required him to dissolve and obliterate his African personality and then fill the void with the rigid accoutrements of wig, etiquette, stiffness and punctilio of a colonial-type judge.
Willy could have taken the easy way out. He could have said that, although these deep spiritual beliefs might have had enormous meaning for him in his personal life, they had had no influence whatsoever from the moment he had donned his judicial gown and taken his seat on the Bench. Instead, in this thoughtful and carefully prepared book, Willy insists that these totally non-scientific ideas both continue to influence his life in general and providedsomething specific and central to his vocation as a judge in particular.
I have never discussed the question of traditional knowledge with Willy. On the broad outlooks of the great themes of law, revolution and society, the views of Willy and myself are virtually identical. For example, we would agree completely that every judge anywhere in the world should be obliged to spend at least one day in prison before going on to the Bench. We could take it further and urge that every Judge should spend at least 24 hours in solitary confinement.
Like-minded in so many things, how could we differ so profoundly on core questions of existence?
He is saying that these deep personal beliefs had indeed been fundamental to the way he had embarked upon the task of being Chief Justice. The spiritual experiences had both established a destiny for him in this world and given him the protection, courage and energy to fulfil that destiny.
So, Willy is daring sceptical readers like myself to be more respectful of traditional knowledge systems. And more generally, the ear-stud could prefigure a move towards leaning in favour of African concepts of interconnectedness and sociability and away from the extremely egoistic individualism at the centre of certain currents of American jurisprudential thought. But these would be issues to be worked out with colleagues in the judiciary as a whole, supported by the legal profession, the academy, the media and the public at large, and not in consultation with his spiritual guardians. The point of departure would be the text and spirit of the new Kenyan Constitution, and great help could be obtained from looking at the jurisprudence of courts elsewhere in Africa and other parts of the world.
For years we in Africa have been regarded (and sometimes have regarded ourselves) as universal recipients of legal wisdom from abroad. Now, through the work and words of people like Willy Mutunga, we are becoming universal donors.
Albie Sachs first wrote the Forewords to Beacons of Judiciary Transformation (2021) and later to Dr Willy Mutunga’s Studded Justice – A memoir with a manifesto for change. He has very kindly permitted AwaaZ to publish extracts from the forewords for the purpose of this Cover Story.