The ‘Epic’ Journey
Willy Mutunga’s long journey beginning with legal studies at the University of Dar es Salaam, passing through teaching and lawyering, leading a radical staff union at the University of Nairobi, forced into prison cells and torture chambers of a dictator, occupying the highest legal position in the country as the Chief Justice with all its glamour and seduction of power, and now working with the youth of Social Justice Centres rooted in their homelands called slums, can only be described as an ‘epic’ journey in search of justice. And Willy continues consciously to nourish his mental and physical health through yoga and meditation in order to continue to travel on the corrugated and thorny road in search of justice.
Willy is neither a saint nor a saviour. He is a mortal, decent human being who has dedicated his life to the cause of the struggling working people for a better life in the fulfilment of their right to be human. Nor would Willy describe himself as a revolutionary. He is too modest for that. The furthest he would perhaps go is to accept the description of a left radical fighting with fellow radicals for, in his own words, “a humane, non-militaristic peaceful, ecologically safe, prosperous Kenya and the planet.” That indeed is a call for a systemic revolution. Revolution against what and for what? The answer perhaps lies in a short succinct sentence addressed to his young interviewee. “You will definitely add ‘socialist’ when you understand the limitations of capitalism.” Willy is not a preacher. He does not preach the vices of capitalism and the virtues of socialism. No. He is calling for an ‘understanding’ of capitalism and its limitations and, I can comfortably add, an ‘understanding’ of socialism too and how can it overcome the limitations of capitalism and transcend the system.
In his long journey, Willy has met many fellow radicals together with whom he continues the journey. He has undoubtedly seen many more fellow-travellers who drop out which disappoints Willy, but does not dent his determination or break his heart. Far more are spectators standing by the roadside, a few cheering but many ‘shouting’ insults and vulgarities. Others do not conceal their maliciousness, confidently predicting the end of radicals when they face the real world. ‘It’s a matter of time before he changes course and joins the system’, would be their incessant refrain against a radical. No doubt, Willy has faced all this but has remained steadfast in his resolve.
The Inevitable Introspection
Like many a progressive lawyer who espouses the cause of social justice and human rights on the legal front, Willy too, I believe, has had moments of agonising and introspection. By taking the struggle of the working people to what are essentially institutions of the state, are we not giving the system legitimacy on the one hand, and disarming the people ideologically by a make-believe that they can get justice in bourgeois courts on the other? By advocating their cases in courts on their behalf where they are spectators and their lawyers actors, are we not taking away their agency, individualising their collective grievances into disparate disputes? Are we not reinforcing and reproducing the very system which we believe births injustices and oppression of the working people in the first place?
These rhetorical questions do not have textbook answers. Our refrain has always been that whether or not progressives should engage with the state depends largely on the concrete situation and the state of the social struggle. While correct in principle that too is not a satisfactory answer being too general, almost a cliché. There is another response which I have had an occasion to discuss with Willy. Progressives cannot stand on the side-lines and announce from the rooftops their commitment to the struggle of the working people without engaging with the day-to-day struggles of the people for their basic rights – right to land, right to shelter, right to decent conditions of labour, freedom from torture and inhuman punishment, freedom to organise and freedom to meet, discuss and express their concerns and grievances. In Gramscian terms, we are saying that the ruling ideas and modes of thought should not be allowed freely to reinforce and reproduce themselves becoming common sense without being challenged, without being questioned and without bringing alternative and counter-hegemonic ideas on the table. The struggle on the legal front is thus one of the fronts to expose hegemonic legal system, demystify it and use it as a pedagogical tool to raise the consciousness of the people. Injustice is palpable and felt by the people but its cause is not. People still have faith in the institutions of the state. Gramsci’s great contribution was that the bourgeoisie does not rule by coercion alone. There is a mixture of coercion and consent that constitutes what he called hegemony. Ruling ideas become ruling precisely because the bourgeoisie has succeeded in making its ideas and world outlook common sense. It is the process of ruling ideas becoming common sense that has to be breached, that has to be disrupted, that has to be ‘sabotaged’, so to speak. Dominant ideas of power have to be challenged, exposed, demystified and demythologised by the power of resistant and counter-hegemonic ideas. Walter Rodney was one of my PhD supervisors. I often complained to him that I had to waste my time mastering useless bourgeois ideas instead of doing political work among the working people. Rodney would calmly respond in his unforgettable sonorous voice: ‘Comrade, we should be twice as good as bourgeois scholars. We should master bourgeois ideas while at the same time master the skill to rip them apart with the ideas of the working people.’*
The Dilemmas of a Radical
It also behoves us to acknowledge that contradictory ideas in our minds occasionally manifest themselves in our contradictory behaviour and practices or dilemmas. I may cite two examples from Willy’s candid interview that he gave to Damaris Agweyu of Qazini in 2019. (I am sure my friend Willy will take it in a comradely spirit.) After being released from Moi’s prison, Willy ‘decided to open a lucrative business in criminal practice defending bank robbers’ (ibid p. 496). On the face of it defending bank robbers looked like contradicting his ethical stand. His liberal lawyer friends took no time to taunt him.
People were asking me why I was defending bank robbers. My rule was: I would defend them as long as there was no death in the robbery. But my answer was always banks are robbers themselves. I used to tell lawyers who worked for banks, “You can’t judge me; banks are exploiters. They just rob us legally – they take over people’s land and do all manner of terrible things. My clients were just small-time robbers”. (ibid. p. 496)
His liberal critiques may as well have retorted: that’s just a rationalisation of running a lucrative practice while assuming a high moral ground. Presumably his friends from the left while applauding the little Robin Hood that Willy was playing would still feel uncomfortable. They would have perhaps rhetorically asked how was Willy’s little Robin Hoodism advancing the cause of social justice or helping to make a dent in the actually existing hegemony. Chances are that even ordinary wananchi did not look kindly upon bank robbers. Wasn’t that practice then affecting Willy’s credibility as a progressive person? Fortunately, Willy’s practice did not go far. Ironically, the hideous practice of the coercive apparatus of the comprador capitalist state showed its true colours, making the decision for Willy. “Tragically, all my clients were killed extra-judicially. So that was it. I closed shop and went to do my doctorate in Canada (ibid).”
The second example comes from Willy’s practice on the bench as Chief Justice. One of the first cases he had to determine was the first presidential election petition under the new 2010 constitution. Progressive people in Kenya and elsewhere expected a progressive, in this case meaning anti-status quo, judgement from the Mutunga Supreme Court. It was not to be. Under the lead judgement written by Willy himself the petition was dismissed. It sent waves of consternation in the progressive world. When his interviewer suggested that Willy must have found handling the presidential election petition ‘a tough one’, Willy replied.
“No, it was simple, and here’s why: These presidential petitions in my view, remind me of two gamblers who go to the casino or are gambling with each other – they bribe voters, interfere with servers and then when it’s all done, somebody comes to the courtroom and says, ‘You know I’m a thief, but he is a bigger thief so give me justice.’ That was my philosophical position. I didn’t care who won, I looked at the Constitution, the law and the evidence and that was it. I didn’t have a problem”. (ibid. p.502)
Willy’s justification is a little ingenuous. One could as well retort: what happened to Willy’s analogy of defending small bank robbers against big bank robbers! Shouldn’t he then have given justice to the small thief of votes against the bigger thief? But rhetoric aside, there is a more serious issue here. Progressive lawyers pride themselves in critiquing positivist approach to the interpretation of law, that is, applying law as it is out of its context. But by saying that he applied the constitution, the law and evidence, no more, is Willy not taking a positivist philosophical position?
More significantly, in the circumstances of an election petition, where there is a more fundamental third party – the voters – involved, couldn’t Willy have arrived at a different conclusion? Assuming that he found vote-rigging on both sides, as the flow of his argument seems to suggest, couldn’t he have decided that as a result the election was not fair and that the larger cause of free and fair election demanded that the election be nullified. In the course of his judgement, he could have as well, made strictures against both sides and where appropriate even imposed penalty. Wouldn’t such a decision, albeit unconventional, have set a better precedent and served the political cause of free and fair election? To be sure, the reasoning of, and grounds for upholding the petition would have been somewhat unconventional but then Willy is known for making unconventional judicial decisions which is, in fact, what endears him to the progressive community.
Willy’s Dilemmas are Our Dilemmas
But then Willy is not alone. Some of us, progressive lawyers, find ourselves in similar dilemmas and contradictions. I will give two examples from my own practice: one, from my legal writing and another from my legal practice.
In 1990, I delivered my professorial inaugural lecture titled Tanzania: The Legal Foundations of the Union. The Tanganyika-Zanzibar Union was then considered a very sensitive subject to touch. Most academics steered clear of it. In 1992, a slightly revised and expanded version of that lecture was published with a Foreword by our mutual teacher and friend, Yashpal Ghai. Yash is a very prolific and preceptive scholar. After making legal comments on the lecture Yash observed.
Shivji’s analysis is textual and doctrinal. It is abstracted from the social and political origins and contemporary context of Tanzanian federation. This comes as a surprise, for most of his work is distinguished by his sharp insights into the social and political origins of law. He has inspired the scholarship of many (including his former teachers—me certainly) to explore the intimate links of law to social formations and modes of authority. His major contribution has been to demystify the law and its rhetoric. But in the austerity of his legal analysis here, he lays bare the modalities of federalism.
In effect, in his polite and sophisticated language, Yash is reproaching Shivji’s positivist approach contrary to his (Shivji’s) historical and social contextual analysis for which he is known. Yash cannot be faulted on that score. He was right. Ironically, only a couple of months before Yash’s observation I had made a similar self-criticism. In a talk titled What is Left of the Left Intellectual at ‘the Hill’, I compared the radicalism at the University of Dar es Salaam (‘The Hill’) in the late 1960s and 1970s, with the setting in of (neo)liberalism in the 1990s. In the course of my talk, I quoted my article ‘The Educated Barbarians’ written in 1969 when I was still an undergraduate. In the militant and polemical student language of the time, the author is condemning bourgeois compartmentalisation of knowledge and how the students were uncritically accepting such compartmentalisation.
And their learned friend the law undergraduate is a complete sell-out! His world revolves around the 15th century law reports and what their feudal lordships said in such-a-such a case. … [T]he learned student of law mouths Latin Phrases, asks you to meet him in his ‘Chambers’, and awards himself (and seriously too) the title of ‘Lord’ without land and without a seat in the House of Lords, argues for hours on end whether the cases under consideration are distinguishable (ending up by giving differences rather than distinctions!) and vies with his fellow ‘learned’ friend over who can produce the oldest authority in support of his contention. (at p.217)
And then the following comment follows:
‘That was Shivji, a student, in 1969.
But Shivji, a professor, in 1990 gives his Inaugural Lecture which is positivist through and through. Times have indeed changed.’
The second example comes from my legal practice. Only once in my whole career as an advocate I defended the case of a business person against a big South African bank. The latter’s intention was to grab the assets of the Tanzanian business person through a legal case to recover a debt owed to the former state bank which was then privatised to a South African bank. My justification for taking this case was that I was defending a ‘national bourgeois’ against a foreign financial shark. Well, wasn’t this simply a rationalisation to appease my radical conscience? How is it different from Willy defending a small robber against a big robber! I leave it to the readers to make their judgement.
The personal lives of radicals and progressives are fraught with such contradictions. Social contradictions that Marxists are fond of talking and analysing should perhaps also acknowledge that their own lives are not free of contradictions.
To sum up. The fact that Willy Mutunga’s life throws up such fundamental philosophical and political conundrums itself speaks volumes of Willy’s profound intellectual and political life journey.
And I cannot pay him a greater tribute than engage meaningfully the dilemmas in his life because they are the dilemmas of the progressive legal community as a whole.
 ‘Walking in Your Truth’, Willy Mutunga interview (‘the interview’) with Demaris Agweyu of Qazini, December 6, 2019 reproduced in Kang’ara Sylvia, Duncan Okello & Kwamchetsi Makokha, eds., (2021), Beacons of Judiciary Transformation: Selected Speeches, Writings and judicial Opinions of Chief Justice Willy Mutunga, Nairobi: Sheria Publishing House, pp.495-504, at p. 504.
* Not exactly his words. My paraphrasing but I believe close to his meaning.
 Shivji, Issa G., 2009, Tanzania: The Legal Foundations of the Union (2nd edn), Dar es Salaam: Dar es salaam University Press. I made amends when I published my book in 2008. See Shivji, Issa G., 2008, Pan-Africanism or Pragmatism: Lessons of Tanganyika-Zanzibar Union, Dar es Salaam: Mkuki na Nyota
 Reproduced in Shivji, Issa G., 1993, Intellectuals at the Hill: Essays and Talks, 1969-1993, Dar es Salaam: Dar es Salaam University Press.
 Reproduced ibid. pp. 3-13.