Willy Mutunga told AwaaZ of a truly shocking trauma that was visited upon him when he was just 12 years of age. The cruelty of some of our traditions and cultural beliefs are mind-boggling, we felt we should share the narrative with our readers.
Apparently one weekend when young Willy came from Kitui town where he was schooling to his parents’ home he found an older girl, Kathoki, from their village at home. My mother had Kathoki’sinfant daughter on her back and when Willy was just about to greet her, he was told she was his wife… Dr Mutunga says: ‘I will never know how this marriage was entered into without my knowledge.’
He describes his reaction thus: “It felt as if I had just walked straight into a glass door, but I couldn’t see it because it was so clear, and I thought I was going to faint! I cannot honestly remember what I said or how I reacted, but my heart did somersault and skip several beats, and I felt all the blood drain from my head straight into my feet. I would have preferred it greatly if the ground had opened up at that moment and swallowed me, or I woke up gasping from a nightmare, but none of those things happened.
“I had a thousand questions, but my mouth remained glued shut and Kathoki who was much older than me just sat there staring at the ground. When I finally regained my composure and asked my parents why I was not told about this earlier, my father of all people, responded saying Kathoki didn’t know either! Huh, what? How was that even an answer?
“How do people get married without even being physically present??! All respect to my African traditions aside, what kind of nonsense was this??! I felt bewildered, to say the least. That was the only time I felt that my father betrayed me, and deep inside I was shattered as I could not believe he would do this or such a thing to me. After drilling me day and night about the importance of education and doing my best to stay on the straight and narrow how on earth does he go and marry or sell me off like a cow in his shed. I surmised that he had probably succumbed to my mother’s advice, and she became the target of my wrath.
“I truly felt that my life had come to a screeching end that day. My first experience of betrayal, and not from outside, but within my sacred family circle… Incredible. All visions of terror flashed through my mind. What did it even mean to be a husband at that age, let alone with no preparation? Each time the thought of my schoolmates knowing that as a boy of eleven, I already had a wife and child almost choked me to death. There were young girls of my age at school and there was even one I liked very much although I hadn’t told her so. In my adolescent daydreams, I imagined that I would probably meet my future wife in an institution of learning.
“I was bewildered, scared, shocked, angry, and dismayed if feelings can be summed up. Maybe that’s the day I unconsciously decided I could never trust women who would eventually end up hurting me, so maybe it was better if I hurt them first, move on and let them figure out the rest. That has sadly been part my pattern of behaviour and I never linked it to that trauma that I experienced as a child until now as I write these words on this page.
“Kathoki had never gone to school but came from a family known for their beautiful and kind women. She looked on, staring blankly into space as this discussion ensued. Maybe this is also where my first awareness of human rights and women’s rights was born. As dramatic as it may seem, I felt violated, as I am sure Kathoki did too in this situation where we were completely helpless and vulnerable at the hands of those who were supposed to be protecting our well-being.
“I never had an issue showing emotion or crying when my mother or my teachers beat me, but this is the one time, I can guarantee you I cried more than what seemed the rivers of Babylon, and the mighty Tana River and Nile combined. I was so afraid, so hurt, and mostly very let down. All my dreams of the future went up in smoke in a blink. I felt completely deceived by my parents, particularly my father, and I felt alone.
“If my father were the strong tree I leaned on, from whom I had always sought shelter from the outside storms and from the scorching sun; if he was my truest guide and teacher, then why would he allow me to be bound in this way? What type of life was I supposed to lead by marrying an older girl, one who already had a child, at the tender age of 11 going on 12? What did I know about anything, and what purpose was this marriage serve? What was I supposed to do?
“The strong surge of defiance arose in my belly, and I stood there resisting the orders to go to my hut, now also my ‘matrimonial home’, and where Kathoki was already staying. She just stood there motionless, watching me wail and beg my parents to end this madness. I cried and cried as though someone had died or worse, hoping that my parents would change their minds and send Kathoki back to her home. This never happened.
“My protestations fell on deaf ears and my parents completely disregarded my pleas. As young as I was, I decided to take matters into my own hands. I was determined to resist this marriage by whatever means I could find. I got out my bicycle and rode out furiously from my homestead crying all the way to my grandmother’s home. I knew for certain if anyone would protect and defend me, she would be the one.
“My grandmother managed to calm me down and I stopped crying and gathered myself sufficiently to tell her what had happened. Imagine my horror to find out that this woman whom I loved more than anyone else in the world knew, and that she had also been part of this conspiracy! She tried to rationalize the marriage, telling me that I could always get married to another woman when I grew up. I was stupefied.
“She gave me the example of her son, my uncle Mati Ngoma, who had died two years earlier in a car accident and was married to a woman older than himself, my aunt Nganzyoka. This story only made things worse for me. My maternal uncle, Mati, my mother’s younger brother was married since he was ten, but Nganzyoka, his wife, under our customs, was ordered to cohabit with one of my other maternal uncles, Kathingo, until he came of age. When Mati came to reclaim his wife, the story in the village was that he was bewitched and killed in that accident.
“I had no idea who among my stepbrothers had been asked to cohabit with Kathoki, but my grandmother’s story scared me even more, if it was meant to comfort me. I left her home weeping until I was nearly convulsing with fear, realizing for once in my life that I was truly done for, alone, abandoned by those who I had loved and trusted. I couldn’t believe my family, my own blood, could just toss my life away so easily when I was working so hard to do the best I could in school. Education was the only tree I could trust, and I was not going to let it go…
“I rode my bike furiously back to town to Titus Kamanda and I said nothing of my story to him. I decided to remain focused on my education and just block this nonsense out. Since my family had turned their backs on me, I decided no one else would be able to help me either. I never told my teachers lest they confronted my parents about their star student. I somehow managed to successfully block the whole issue of this marriage from my mind, dived into my schoolwork and studied like a soldier headed to war.
“I played and watched football at school and in Kitui town. I watched Indian movies in the only Indian movie theatre called Naina Theatre. I stayed away from home for six months without anyone coming to visit me.
“I will never forget the day my mother came to see me. I was curious as to why she was there. She gave me some home cooked food and money and told me to come back. Seeing that I was about to start crying, she told me that Kathoki had gone back to her parents and remarried, and the dowry they paid on my behalf had been repaid by her new husband, Malile Nzau. My mother confessed she was behind the marriage and although my father opposed it, she had ultimately convinced him about it.
“She said it was all done in good faith to secure my part of the family inheritance. She honestly thought I would not refuse but had underestimated my stubborn resolve and determination. She told me to get in touch with my father so that I could open a bank account with a cash deposit of six hundred shillings that was part of the dowry refunded to us. The cows and goats, once returned, would also be mine, too.
“I was so relieved by the news, that if I didn’t still have searing anger weighing me down, I think I would have defied gravity that day and flown to the sky. Such was the spirit of relief and freedom I felt. Once more restored but still shocked, the relief was indescribable.
“The anger was still too great, and I didn’t really know what to do or say, or how to react. My mother must have sensed my turmoil and left immediately. To say that I was happy that the marriage was over would be an understatement. I was also happy to learn my father had been opposed to the marriage. I loved him again and my faith in him was restored. But at that point I was still not able to forgive my mother, along with my grandmother. With time how-ever, after a long time, I finally forgave them.
“My arranged and imposed early marriage at the sensitive age of twelve traumatized me into being suspicious in my relationships with women and with people in general. As far as I know, child marriages do not exist in the Akamba community anymore. I did not know much of Kathoki’s values and virtues, but I will forever remember her kindness. It is a great feeling of gratitude and humility to get kindness from an unexpected quarter. That evening as I wept, I had expected kindness and sympathy from my parents and my grandmother, but it was Kathoki, who I hardly knew and who at the time I regarded as my enemy, who came to my rescue. She later told me that seeing me weeping with such sorrow made her decide that she would not stay in the marriage. In me, she saw a young kid who needed protection and she gave that to me.”
Willy Mutunga spoke to AwaaZ about how childhood experiences influence our ideas about life. He told us that he grew up in a family and community where polygamy, infidelity, child marriages, circumcision (referring to male and female genital cuts), were prevalent. Siblings would step in child marriages as surrogate husbands, and cultures of not sending girls to school were all accepted, as was the denigration of women as witches. It was also a time when colonial education and missionaries were competing with traditional education and religion, and this created serious cultural tensions and struggles.
His arranged and imposed early marriage at the sensitive age of twelve traumatized him into being suspicious in his relationships with women and with people in general.
It was at the University of Dar es Salaam that he developed his intellectual, ideological, and political positions. He read feminism in a theoretical and abstract sense and got into human rights and social justice work and the issues of women’s rights and gay rights. Later, he had to make serious decisions on funding these matters at the Ford Foundation. In the Judiciary these justice issues were part of his daily institutional and work experiences. He talked about sexual harassment, leadership in a Judiciary that has marginalized women, and overall Judiciary transformation.
It was at the University of Nairobi which he joined as a law lecturer that he got grounded on the issue of Feminism, and his mentor was Professor Mĩcere Gĩthae Mũgo. Willy describes her as “feminist sage/scholar/socialist/activist, and pioneer of feminist masculinity and utu-centric liberation” and “a comrade, political friend, sister, a fellow socialist, and the woman who got me on the path of feminist masculinity”. While at the Ford Foundation he got to know Riki Wilchins who enriched his knowledge of transgender, intersex, and queer sexual identities. His present companion is Tazim Elkington who Willy affirms as “a brilliant, stunningly beautiful, spiritual woman, self-educated, a great human being and the greatest friend I have ever had”.
All of them and others have enriched Willy’s life and recommended to him inspiring books to read and ponder on. He says: “I learnt from them the theory, practice, ideology, politics, and revolutionary potential of feminism. I believe my ongoing struggles to be a better/new man can be traced from all these mentors and teachers. In societies like ours, these struggles are so real, where masculinity and patriarchy are deeply entrenched and keep reasserting themselves with greater viscousness, to the detriment of all society. They come in different forms, in public and private spheres, in faith and particularly in the home.”
Willy concludes with an observation that we as readers need to be constantly reminded of: ‘Struggling against socialized and internalized patriarchy and sexism is not easy. It requires serious ideological, political, intellectual engagement and most importantly, social engagement.’
The Disputed Presidential Election 2013 and The Final Judgement Delivered By The Supreme Court.
AwaaZ in conversation with Dr Willy Mutunga regarding:
THE DISPUTED PRESIDENTIAL ELECTION 2013 AND THE FINAL JUDGEMENT DELIVERED BY THE SUPREME COURT.
Dr Willy Mutunga, the Chief Justice, described 30 March 2013 as THE DAY OF JUDGEMENT and underscored this with a saying by The Buddha:
Three things cannot be hidden, the sun, the moon, and the truth.
The Petition was: Raila and Others (Zahid Rajan, Gladwell Wambui Otieno) vs. Uhuru and Others (Moses Kuria and Others)
This was Kenya’s first General Election after the formation of the new 2010 Constitution. There was also great excitement about the creation of a Supreme Court, the appointment of a Chief Justice and a team of competent Judges to the apex court. The country had also selected a new electoral Commission for the first time in a long time. “You could say that the electoral process and the Supreme Court were themselves on trial,” said Dr Mutunga.
“The entire country was at a standstill since the official announcement of the disputed Presidential Election results on 4 March 2013 declaring Uhuru Kenyatta’s narrow victory over Raila Odinga by securing 50.07% of the vote. It was exactly one year and nine months into my tenure as Chief Justice running in what many and I believed was a judiciary in reform – they even called it the ‘Willy Mutunga Judgement”. In the historical case six out of seven judges sat to hear the petition. Judges Philip Tunoi, Mohamed Ibrahim, Jackson Ojwang, Smokin Wanjala, Njoki Ndungu and Willy Mutunga. The position of the Deputy Chief Justice was vacant. “The entire Kenyan nation was on edge and glued to their television sets. I could feel the tension in the court as the six of us walked in to deliver our unanimous verdict.”
“And we confirmed Uhuru’s victory,”- he made it sound like a death knell!
Within ten minutes they were done dispensing their mandate of delivering their determination and quickly left the grounds of the Supreme Court. They delivered their reasoned decision on 20 April 2013 and framed five issues in this political dispute all related to: All votes cast, the failure of the electronic systems, the burden of proof, the issues of electoral registers and the subject of scrutiny in determining if the petitioners (Raila and others, and Zahid and Otieno) had proved that the election was a sham and had to be nullified.
Dr Mutunga clarified the final judgement for us: “Quite simply—the petitioners, in our collective view did not succeed in proving any of these five issues, given the burden of proof required by law resulting in the petitions being dismissed.”
In his own words: “It had been two weeks of immense pressure, drama, legal arguments, and politics in the courtroom that left me completely exhausted and depleted … I had no idea how the nation would react to our verdict and what kind of consequences would unfold … The final Supreme Court Judgement had the very real potential of violence and the dismembering of the nation. Our historically bloody, ethnic, religious, race, gender, regional, generational, and class divisions that permanently kept our country in a political abyss deeply frustrated me.”
Of course, the Uhuru/Ruto camp were ecstatic and the Raila camp were aghast. Members of the legal fraternity as well as civil society were deeply disturbed by the Judgement and as Dr Mutunga stated,“close friends, colleagues and comrades were astounded”.
In weighing the pros and cons, the Court had realised that whatever it decided could still be rejected by one of the political parties, and partisan hell would break out. It therefore had opted for a more definitive method – it decided to undertake a ‘scrutiny’ of all votes cast in the 33,400 polling stations. “This evidence would give us an overall picture of the conduct of the election,” explained Dr Mutunga. Or so it seemed!
On 13 April 2013, after the Judgment but before we gave reasons for our decision, the person who represented AFRICOG in the scrutiny that took place at the Kenyatta International Conference Centre, Dr Seema Shah, wrote an article in The Star newspaper, about the scrutiny entitled ‘Scrutinising of Election Results: What Didn’t Reach the Supreme Court.’
She openly stated that, ‘the report presented to the judges barely scratched the surface of what they found.’ She comprehensively wrote on what was omitted from the report filed in Court by the Chief Registrar of the Judiciary. She also wrote: ‘It is now clear that the judiciary staff never carried out a re-tallying of the 22 contested polling stations as ordered.’ She went on to give various examples of where the turnout was beyond 100% (238%, 301% and 450%). She ended her write-up by stating, ‘It will be interesting to see how the Supreme Court judges explain this when they release their judgment in less than 10 days’ time’.
Dr Mutunga admitted that, “All parties involved in the dispute were represented in the scrutiny yet the data was inconclusive. I smelt a rat, a very possible sabotage of the process. I believe we were duped and there was nothing anyone could do about anything as the final decision on the petition had been made. The mystery around the scrutiny haunts me up to this day and may for the rest of my days… I can only say that it was at times a lonely endeavour and that Courts do not exist in a vacuum of their political and social contexts.” He did also criticise the Court’s ruling on the non-participation of amici curiae as well as the cavalier way it delivered the Judgement.
Notwithstanding these concerns at the time, he did applaud and praise the decision by Raila Odinga for accepting the Court’s decision in spite of the fact that he did not agree with it. He termed it, “a great act of statesmanship on Raila’s part” and regretted that very little credit is given for this patriotic decision. He went on to say that, “Raila’s decision to accept the Court’s verdict meant he gave this country peace. If he had decided otherwise, I could guarantee a much worse replay of 2007 would have erupted and engulfed the nation in turmoil”.
To our question re how unanimous was the Court’s final decision really he had this to say: “We reached our consensus to dismiss the petitions within less than thirty minutes, and without any dispute, none of us had found for the petitioners on any of the framed issues.” He closed with another quote, this time by Shaaban Roberts who has said: Kweli itashinda kesho, kama leo haitoshi (Truth will win tomorrow, if today is not enough).
A more detailed narrative on this subject can be read in Dr Willy Mutunga’s memoir, STUDDED JUSTICE, A MEMOIR WITH A MANIFESTO FOR CHANGE by WILLY MUTUNGA WITH NATASHA ELKINGTON.
Willy tells AwaaZ: ‘How The Stud In His Left Ear Came To Be’
“Through one of my uncles (now deceased) the ancestors commanded us to wear a stud for them. I obeyed. In 2003, while in California I had my first stud on my left ear. Those who were at Bomas saw it and nobody seemed to be bothered by it. AWAAZ carried the relevant writings by Mazrui and Mazrui and John Mbiti in one of your early editions. The stud became a national issue when I was interviewed by the JSC in 2011 and then by the Judiciary Parliamentary Committee.
“Nobody talked about it after I became CJ. In solidarity some Kenyans gave me more studs. I believe I have over 50. In Parliament the issue turned out to be one of sexual orientation. I was asked if I was gay. I said I was not, but added I was not homophobic either. I gave them a long lecture on gay rights and quoted Desmond Tutu and the Constitution to support my position. I told them I was going to be a CJ for all Kenyans.”
Willy’s response to AwaaZ regarding the insidious forces of ethnicity, religion, family, friends, fellow judges, among other divisive forces which impacted on his term as Chief Justice:
“In the discussion on judicial independence and integrity insidious forces against it are rarely discussed. The usual forces discussed are the state institutions such the Executive and Parliament, and pivotal ministries. Corporate and civil society forces are also analyzed. Judicial independence is now decreed in the Constitution and the Judicial Service Commission (JSC) has powers to discipline judicial staff, officers and judges, and in the case of the last, the power to petition the President to set up a tribunal to conduct removal proceedings. Fundamentally the issue of integrity is that no judicial officer or a judge or a judicial staff can think of either taking a bribe or soliciting one. It is also about fidelity to the Oath of Office, and specifically to the following words: ‘In the exercise of the judicial functions entrusted to me, I will at all times, and to the best of my knowledge and ability, protect, and defend the Constitution [and the laws and customs of the Republic]…without any fear, favour, bias, prejudice any political, religious or other influence.’
“The insidious forces that are rarely discussed are the forces of ethnicity, religion, family, friends, fellow judges, among other divisive forces. In my experience as the Chief Justice & President of the Supreme Court I did observe that judicial leadership, even the JSC, could subvert judicial independence and integrity. Although I did not order any judicial officer, staff, or judge to decide or act in any manner, I suspected that such actions could have happened with others. I did not have evidence at all, but I recall once we were assembled at State House to witness the swearing in of Judges by the President. As we waited a judge of a superior court walked slowly down the stairs from the State House Quarters of the First Lady. I do not know what the impact of such action had on judges present if ever, the judge in question, was to call a judge who witnessed the episode with orders on how to decide in a case? There have been examples of judicial bullying that the late CJ Majid Cockar discussed in his memoir.
“What about ethnicity, family, and friends? I was aware from the beginning that my independence and integrity could be compromised by these forces. I talked to my family and friends about it. They were supportive and appreciative. My ethnic community was not. Self-appointed individuals visited me on various occasions to question me about the construction of courts in Machakos and Makueni. I cordially invited them to the CJ’s boardroom and gave them tea whenever they came. What seems to irk them was the Judiciary was building courts in what they called ‘far flung areas’. They specifically talked about Lodwar, Garissa, and Malindi. Money had been allocated for these projects when I joined the Judiciary, and the Malindi Court had been built. I believe the Malindi Court was mentioned when I went to Kitui Law Courts to lay a foundation stone for the reconstruction of that court to add a second floor that was to house the High Court. Some prominent politicians drew my attention to the beautiful court in Malindi (it was in a judicial brochure that had been distributed during the ceremony) and demanded that it was a pity the Kambas of Kitui where I was born would only benefit from a reconstruction of an old colonial court!
“I did my best to talk to the people present and not the political leaders. I talked about access to justice for all through the construction of courts, the undertaking of mobile courts to where the disputes were, and the promotion of traditional dispute resolution mechanisms. I recalled the history of marginalization in Turkana, indeed, the entire corridor we call the North Frontier District. I visited Lodwar, Garissa, Moyale, Isiolo, and Marsabit, to see for myself about this marginalization. My talk about these areas shut up the politicians who knew that the Kitui Court did not have the land to build a bigger court because its land had been grabbed. I found that my familiar response to such demands, that I was a Chief Justice of all Kenyans, was getting attention.
“Going back to the teas drunk at the CJ’s Boardroom I realized they had to come to an end. I had said enough to my visitors and had been courteous about the immorality of the request that I move judicial funds from these ‘far flung areas’ to the districts in which my community lived. I reiterated I was a Chief Justice of all Kenyans. The response from ‘my people’ was this: “If you get to trouble do not come to us!” My response was also short: “If that happens, I will go for help from the Turkana and Somalis who I have helped.” I never got into any trouble until I retired. After my retirement the Makueni High Court has been built. Kapenguria in West Pokot has a High Court. There is a High Court in Marsabit. I am sure Mandera and Wajir are in the pipeline. I recall we established High Court Sub-Registries in Moyale, Mandera, and Wajir to facilitate litigants not to have to travel to Meru and Garrisa to file their appeals.
“Finally, the last story on these forces comes from religion and I have told it Furthering Constitutions, Birthing Peace: Liber amicorum Yash Pal Ghai The Supreme Council of Kenya Muslims (SUPKEM), knowing very well I was a practicing Muslim, came to the Supreme Court building to tell me that the discussion about hiring women Kadhis has to stop, telling me that ‘I had waded into dangerous terrain that could easily attract a fatwa!’ I repelled this force, through dialogue with the Shia Muslims (who had no objections) and by asking the Chief Kadhi to convene all sects of Muslims to discuss the issue. I was sure that the JSC would interpret the Constitution correctly and declare they could appoint women as Kadhis, when they qualified, to do what SUPKEM wanted was, and remains, unconstitutional.”
 Doings, Non-Doings and Mis-Doings by Kenya Chief Justices 1963-1998 by Justice Abdul Majid Cockar, EGH. Publ Zand Graphics 2012.
 eds Sipalla & Ambani (Nairobi: Strathmore University Press, 2021), 217 at 220-223.