There is a tendency to limit Willy Mutunga’s contributions to Kenya’s political and social progress to only the last decade and specifically to his legacy as Chief Justice. There is no doubt that this recent phase is crucial and I hope that other writers who are more knowledgeable than me in legal matters, will address the many pros and cons of Mutunga’s recent work. It would, however, be incomplete and unfair to limit Mutunga’s contributions and political impacts to just the last decade or two. I attempt here to highlight other less known but equally significant contributions, including at a more personal level. I have drawn from settings where he and I and other close comrades shared experiences. Such settings include political organizing during our foundational underground work before 1982; our incarceration together in various detention camps; our eventual release and/or exile, and finally our conversations during the run-up to the nominations for the position of Chief Justice. Some of those earlier activities were risky and often painful given the prevalent state repression and surveillance but difficult times often forge character. They also bring out unique attributes in ways that may at first seem insignificant but which eventually contribute towards notable outcomes over time. Mutunga’s contributions represent a good example of this kind of positive change.
In a brief article such as this, what better place to begin than our time together in Moi’s captivity? Moments of joy and excitement are rare in political prisons. One such moment occurred unexpectedly one cold morning in July 1982 when suddenly the huge steel gates were flung open and an emaciated Mutunga was thrown into the segregation compound of Kamiti prison. Where there had been only three of us inmates – anointed ‘the rebel profs’ by the warders – now there were four: Alamin Mazrui, Edward Oyugi, myself and this new-comer.
In an instant, what was surely going to be just another tedious day erupted into joy. Ordinarily one does not welcome anyone to prison but for this one comrade we did so happily.Why? Originally framed-up with crimes of sedition, Mutunga had spent weeks in remand at Nairobi’s Industrial Area jail which is notorious for man-eating pests and vermin. It would be an understatement to say he looked scruffy when he joined us. Unlike ourselves – who were detained directly following prolonged police custody and the torture chambers, Mutunga had bounced back and forth between remand and kangaroo courts. His sudden switch from sedition to detention seemed to be a clear admission that the state had no case against him even by their usual low standards of evidence. Besides it was a great pleasure to have one more good comrade added to our midst. We knew he would bring his legal skills to bear and help contribute to our possible court challenges for illegal imprisonment.
Mutunga’s experience in remand had been brutal. While our injuries from torture were buried deep in the mind, barely noticeable from the outside, Mutunga’s scars were literally borne on his person, visible to all. He appeared undernourished, his skin looked like mange as a result of scratching off lice and bug bites, etc. We gradually nursed him towards recovery and soon set about recounting and comparing our various stories since our arrests. It was quite gratifying to note that Mutunga’s deep sense of humour and comedy had not been diminished and had even expanded to include healthy doses of self-deprecation. As we assessed various strands of ‘intelligence’ we had each gleaned from police interrogations we discovered several probable causes of our wholesale capture and possible areas of betrayed trust among our very own. More importantly, we were able to pinpoint areas of our own internal errors and organizational dysfunctions in one particular work group which had been mistakenly assigned roles too demanding for its level of discipline and political maturity.
Unknown to us on 1 August 1982, even greater excitement was brewing outside prison and across the country. We were to learn later from the prison grapevine that President Moi was nearly ousted in a coup. Oddly, by coincidence or otherwise, early that same morning three of us detainees had been blindfolded, handcuffed, and flown off to Shimo-la-Tewa prison, Mombasa. Shimo therefore became our new home-base and we made full use of it as you would suspect – once a political activist always an activist even inside the bowels of the state. Especially so if you brought along your own lawyer! Out of Shimo we organized networks and sources which proved critically useful for many subsequent activist contributions from inside prison.
Mutunga and I were locked up alone in a whole wing which permitted long conversations and debates. I was therefore able to know him more deeply than before and it soon became obvious that his prison experiences had pushed him deeper and deeper into spirituality: ablutions, prayer-mats, copious doctrinal readings and strict observance of a local muezzin’s daily calls and chants. While the rest of us would decry the ‘opiate’ effect of religiosity in Kenya or the growing idolatry by evangelical churches he was, to our surprise, quietly engrossed in ancient texts seemingly with great conviction. Survival in prison is always a tough call so an ‘any port in a storm’ attitude can sometimes be understandable. Since it seemed to bring him inner peace we affectionately referred to him more as Salim and less as Willy. Luckily since I myself had access to broader, non-religious classics I recall sharing diverse reading material with fellow inmates in an effort to counterbalance things and expand the horizons of mental and intellectual survival. A bit of practical survival science and healthy self care also helped. Salim did contribute prayer and reflection in one unforgettable ritual where we all solemnly memorialized two fighters who had then-recently passed on: J D Kali and Airforce Captain Mwanzia, both ex-political detainees, by planting a tree (Manihot glaziolii, the false tapioca) in the compound in their honour. Salim blessed it and from the last report 15 years ago it was still a thriving shade tree!
Mutunga’s major in-prison contributions however were definitely in his chosen discipline of the Law. I believe one of the more significant of these efforts was a little-known 1983 law-suit which he helped us draft against the Moi government. Fellow inmate, George Anyona, who had a remarkable grasp of parliamentary procedures had persuaded us in no uncertain terms that when Jomo Kenyatta died, President Moi had not bothered to table the mandatory enabling regulations to activate the Preservation of Public Security Act As such Moi technically had no legal authority to detain us. In fact, ours was demonstrably an illegal imprisonment on those grounds alone and Mutunga was able to craft a legal document for each one of us to take to court. The actual cases were then filed in a Nairobi court by our spouses in a pioneering act of bravery and radical feminism in 1983. Such an act of defiance – political detainees suing government – had no precedent in Kenya. Gitobu Imanyara’s then-Nairobi Law Monthly published a summary of the suit under the title Wachira vs Republic in 1983/4. Sadly, however our rather spineless advocates were intimidated by police and forced to leave the case hanging in mid-air where it remains to this day. Still, our ground-breaking civil rights innovation would never have been possible without Anyona’s and Mutunga’s leadership and of course the intrepid spouses who dared.
As a consequence of suing the state both the spouses and ourselves bore the brunt of Moi’s angry over-reaction. First the two detained lawyers amongst us – Mutunga and Khaminwa were banished to a remote punishment camp in the desert – the infamous Hola prison. Then one by one all the rest of us followed suit, each confined alone in that blighted hell-hole beyond Garissa. The whole exercise was grossly unfair to Khaminwa as he had nothing whatsoever to do with the lawsuit while Anyona, who was the initial mastermind, went unpunished.
Starting from 2005 when President Kibaki’s spurious referendum against a new constitution was defeated Mutunga and I held many talks about the continual dilution of the constitutional principles which we had so valiantly fought for since the early 1970’s. It was clear that we risked ending up with a document worse than or barely distinguishable from the Lancaster one then in place. This was a scary prospect given how much we had sacrificed for a democratic transition which we envisioned as the essential first step towards a revolutionary transformation of Kenya. Following the surprisingly slim margin of victory for the 2010 Constitutional referendum it became clear that there existed significant and powerful centres of opposition to the new dispensation. The likelihood was very high that within state structures and among the ruling elites there would be much reluctance to implement critical aspects of the new order. With these concerns in mind, I again approached Mutunga at the Ford Foundation and repeatedly floated the idea that unless we get a militantly progressive Chief Justice soon after promulgation we risked losing the meager gains we had already achieved. I made it clear to him that in my opinion he was exactly the person of the moment, the activist CJ with impeccable credentials that the country needed to ensure proper grounding of the new order right at the outset. Otherwise, the whole effort might flounder in the hands of any of the other status quo candidates. “Just take a look at those right-wing characters on the potential list” I remember telling him. I was struck how diffident he was, as he wondered if he truly could deal with the demands of being CJ. After many reassurances, it workedand in time he reluctantly agreed to defer his intended retirement and to offer his candidacy. I considered Mutunga’s simple act of accepting to run for the post, win or lose, as a great contribution in changing the debate as to what the profile of a good CJ might look like. History will judge his actual legacy and practice as CJ. Whatever the case nobody can dispute the fact that, in spite of great internal resistance, Mutunga endeavoured to lay longer term foundations for a less corrupt, more justice-oriented judiciary for our country. Our expectations were perhaps unrealistically high given the historical realities of an encrusted colonial, even racialist legal administration that he had to confront, then re-shape right from the start.