It is now over half a century since we first met. Fifty plus years in which Willy’s friendship and support, and his commitment to social justice have been of the greatest importance to me, particularly at some of the most important stages of my professional career.
In 1964 I allowed myself to be persuaded to return to East Africa from studies abroad to join the very new Law Faculty in what was then still a College of the University of London – later the University of East Africa and now the University of Dar es Salaam. The time I spent there was one of the most satisfying and stimulating of my life. It made me, I felt, an East African, not just a Kenyan, and I am sure that was true of many colleagues and students. Formative factors included for me the intellectual approach to studying law. Mutunga has quoted my own comments on that experience, including “Many of us who turned out to be birds of passage were profoundly influenced by insights obtained in Dar, but the fuller working out of these insights took place elsewhere. But these flowerings are also part of the history of Dar.” And he added that he, too, “did not leave Dar behind. I came back home with a continuously developing intellectual, ideological, and political mindset”. (In his Inaugural Lecture as Adjunct Professor of Public Law, Kabarak University, 2022.)
For me, as for many others, I believe, another important factor was the experience of living in the era of Julius Nyerere whom I greatly admired – and who interacted with us at the university in a remarkably informal way, at least initially. And the students themselves were a pleasure to teach (and learn from).
When I arrived in Dar John Khaminwa was still a student – being one of the very first batch of Dar students of law – and thus the first of any discipline. Later came, for example, the late Okoth-Ogendo, and his year-mate, Tanzanian Issa Shivji, still a much loved and admired friend. And among those who finished their time (at last as undergraduates) in Dar about the same time I finished mine were Gibson Kamau Kuria – and Willy Mutunga.
As we, the teachers, realised that the students were mostly going to be the first African lawyers in their countries. (At independence Kenya had a handful of African lawyers, Uganda a few more, and Tanganyika merely one – no wonder Nyerere was so keen to set up the law school in the new university college, and that it was in fact the only department teaching for some time.) Their teachers therefore devoted considerable attention to political issues in law. And because the students were few, we were able to spend some time discussing what I call politico-law, especially after formal classes. Of the Kenya students, Willy was most conscious about achieving true independence through the medium of the law.
Being the youngest teacher, living on my own, I had generally more time than others to discuss how we could establish the basis for a democratic state in that period so soon after independence. Willy and I became friends and discussed these political issues constantly.
Leaving Dar es Salaam
In the early 1970s the University of Nairobi decided to set up its own law school, as support for the East African Community, and East African unity, waned especially in this country. Although I was very happy in Dar, I was persuaded to apply to head this new Law School. To come to teach in my own country would clearly have been an important stage in my career. I was actually appointed, and had resigned from the university in Dar, but the Attorney General vetoed my appointment. Willy was one of a few former students who got in touch to warn me not to come to Nairobi.
About a year later I left Tanzania to move to the United States and later to Europe.
Willy himself joined the University of Nairobi a few years later, and was an innovative, thoughtful and much respected teacher. Incidentally he has commented that ironically, when he joined the University he took the same sort of approach to the work as I would have done – thus we had the last laugh as he put it on those who excluded me. He became secretary-general of the University Staff Union, an organization that was eventually banned, and for his work with which Willy was himself detained and tortured. Clearly university and government were still more closely linked than is healthy for an academic institution. It is not for nothing that the Constitution now says that everyone has freedom of expression including ‘academic freedom and freedom of scientific research’ (Article 33(1)(c)).
Since those days in Dar, we have remained close friends, both committed to law, justice, fairness, and equality (important factors in a racially divided state). Over the years, I saw him rise not only in the legal profession but also in politics and social justice, being among other things a founder of the Kenyan Human Rights Commission, still our premier human rights NGO, and working with the new Kituo cha Sheria – another NGO still going strong – and demanding a constitution based on democracy and justice. In my view Willy was almost the first Kenyan to do so.
Although I was unable to come to Kenya for a long time, we still kept in touch. He visited me in 1979 when I was in the Faculty of Law at the University of Warwick in the UK, for example, on his way to Canada for PhD studies – something that offered him refuge when he had to leave the country a few years later. In fact, Dr Seema Shah quotes Willy as saying that I made it my business to mentor him ‘by inviting me to conferences in various places, by getting me to Warwick Law School as a visiting fellow when he taught there…’.
The Constitution and after
In 2000 I was invited by President Moi to return to Kenya to help start the process of replacing the national regime by a democratic and human rights-oriented constitution. This was obviously a real landmark in my career – practically debarred from visiting my country for a long time, I was now being invited (through another former Dar student, Amos Wako, the Attorney General) to play a key role in the writing of a new Constitution for it! However, I insisted that before I could accept the invitation, I must consult civil society and friends. Willy was foremost among these.
Some friends were sceptical both of Moi’s intentions and of anyone who appeared prepared to work with Moi. One person said that I should accept and come immediately to Nairobi, another that I should not because I would be in danger, at the least locked up. Willy advised me that I should come, but not make any decision until I had consulted other friends and some other groups, including women, politicians, who might want to talk to me. I followed this very wise advice.
By the time the whole constitutional process was finished Willy was heading the East African office of the Ford Foundation. When I raised with him (even before the final, Committee of Experts, stage of constitution making) my fears that any new constitution would face major opposition from politicians especially; the idea of forming an organisation to support the constitution was born. And, he said, he thought the Foundation would be able to give financial support.
I returned to live in Kenya in late 2008, and watched as the new constitution making process finally produced a document that was adopted in August 2010. Nothing had allayed my apprehensions about the response it would receive from our too often greedy and power-hungry politicians.
You might say that Katiba Institute has been the final stage in my career. And again, Willy Mutunga has been a crucial part of it.
In two ways his help was fundamental in setting up what we called Katiba Institute. First, Ford was able to make us a modest but crucial grant to get things going. Not perhaps as much as might have been possible those years ago when he and I first talked about it because a programme of African philanthropy had come to an end, but enough to get us going.
Perhaps even more important, he introduced us to Waikwa Wanyoike. Waikwa had been a university student in Kenya during the Moi period and like many others had to leave the country. He went into exile to Canada where he finished a first degree and then studied law. On completion of his studies, he had entered legal practice there, but by 2010 felt it was time to come home. Katiba Institute was really born in a prolonged lunchtime discussion between Waikwa, my wife Jill and myself in Toronto.
Soon Waikwa was the only certified lawyer at KI. Waikwa is an excellent lawyer, (Dr Seema Shah has quoted Ambreena Manji as saying ‘He is Kenya’s most brilliant lawyer’) who quickly took charge of litigation, and at that stage everything else. He won most cases, and is also a very good administrator. He ran it while we helped as we could. It is hard to imagine that without him KI would have had such a successful now eleven plus years. When was leaving, we held a meeting with staff to learn how they felt about him and what we should look for in the next ED. Their comments were most positive, glowing in fact. And we owed him to Willy!
Willy has continued his contribution in other ways, including membership of the Katiba Board, his discussions regarding our strategic policies, protecting people’s rights, elaborations of arguments as KI staff prepare for litigation, and even more importantly on policies for KI policies. Ever since he has been of great value for us and we hope that he will continue giving us his time.
Meanwhile, it was a great pleasure to see him appointed as the first Chief Justice and President of the Supreme Court under the new Constitution – in a court that was the brainchild of the Constitution of Kenya Review Commission that I chaired. I felt privileged that he asked me to write a reference for him. It was hard to imagine any other lawyer of his expertise and commitment to justice.
It was a great pleasure also to be able to assist in the induction of the first Supreme Court under the Constitution which Willy organised, including helping to bring some distinguished judges from other jurisdictions for the event.
Chief Justice Mutunga
Among Willy’s numerous achievements, arguably the most outstanding has been as Chief Justice under the new constitution. His role as CJ changed the very nature of Kenya’s judiciary. His approach and achievements have created a new vision of the judiciary, reinforcing the norms in the Constitution. He had a rather short period before retirement but it is widely acknowledged that he had entrenched a fundamental role for the judiciary. He had enormous understanding of the law and the role of the judiciary, and it was clear that he would establish a fully competent and honest judiciary as well as the necessary administration for Kenyans seeking justice. He was very successful in all these objectives. In addition, the case law improved greatly, reflecting his determination that Kenya should have ‘robust (rich), decolonizing, patriotic, progressive, indigenous, and transformative jurisprudence’. The conduct of other judges also improved a lot and there has been much greater integrity in their conduct. Clearly the impact of that formative period in Dar e Salaam remained with him.
Occasionally he cited my (or Jill’s and my) work in a judgment. To put in a plug for Katiba Institute, one of these was our book – the first on the Constitution I think and the first publication by Katiba Institute – Kenya’s Constitution: An Instrument for Change, published in 2011 (second edition published recently).
On a very personal note, one of Mutunga CJ’s last acts in office was to admit me to the rank of Kenyan lawyers. Years before I had done my pupillage in Dar and been admitted to the Tanganyika Law Society. That society confirmed this to the Kenya Law Society and I was admitted here on that basis. It was a great pleasure to both of us. I was very moved to read what Willy told Seema Shah, “As Chief Justice, it was my singular and great honour to admit Yash in the Roll of Advocates on 10 June 2016, six days before I retired. I fought tears as I conducted this ceremony. It seemed like a culmination of brother-comrade-friend-teacher-student-patriot.” In the end I decided not to pay a practising fee and be entitled to practise, finding that increasing age and diminishing hearing would have made it impracticable for me to appear in court. What might have been yet another stage in my career in which Willy was key thus withered.
Katiba Institute has been most fortunate in having a Board of friends to advise it. Willy is in fact the most recent addition to that group, who have all made a great contribution to our work. But it is a particular pleasure to come together in the work of Katiba Institute.
It is perhaps another indication of how far we have seen the world, and the law, from a similar perspective that we also share support for the social justice centre movement in Kenya though we arrived at this relationship quite independently.
I can honestly say that there is no-one whose friendship, and influence on my life have been greater.