Why Willy Mutunga wept


Former Chief Justice of Kenya Willy Mutunga during an interview at Serena Hotel, Nairobi on September 15, 2023. PHOTO | WILFRED NYANGARESI | NMG

Willy Mutunga speaks in very long-legged and ambitious paragraphs. They grow like dough in an oven, delicious in texture and often emitting the sweet aroma of intelligence and knowledge. Words come easy to him, in torrent, and if they weren’t captivating, one would even describe them as gluttonous.

A man with his formidable resume needs every word he can get to illustrate those experiences. He was the first indigenous Kenyan to teach constitutional law at the University of Nairobi. During his tenure at the university, he was detained for 16 months for his activism before exiling in Canada and returning to join the democratic struggle. He has served in many civil society organisations, including the Kenya Human Rights Commission and the Law Society of Kenya, where he was chairman.

He has been the Chief Justice and President of the Supreme Court and played a pivotal role in the constitution-making process and the implementation of the progressive 2010 Constitution.

He’s authored two books with another on the way, and in the sister newspaper to this paper, he wrote a column for over a decade under the pen name Cabral Pinto. If you were to find him in a pigeon-hole, you might find him under “intellectual and reform activist.”

Your dad was a tailor. Did that, in any way, inform your fashion sense or style?

That’s a great question. I’ve never really reflected on it. I guess that affects one’s sense of fashion, especially growing up. Our school uniforms, which my father did himself, were usually well done. He was very innovative, even with our casual clothes. I would sit with him while he was doing the tailoring and, with time, got involved in that work.

Growing up in the village during the colonial period, the vision was that you would probably end up doing what your father does. But that all changes when you get to school. At that time, there was a talk about independence, so my father sat me down and told me, “You know, you had better concentrate on education because you guys are going to be the black wazungus (white people). These wazungus are going to leave. How will you take care of me if you are a tailor? ”

What kind of a woman was your mom?

Hard-working. She brought the eight of us up alone because my father didn’t stay in Kitui. He worked in Mombasa for a long time. When he came to Kitui, he was always busy working for the Arabs and the Muslims, so he was hardly there and... (waiter interrupts to ask him how he wants his coffee]...coffee has to be black like us.

You put milk, it weakens it. Anyway, our mother did the heavy lifting. In the process, my elder sister didn’t go to school because she had to help her.

When I went [to school] and started doing well, I would brag, but my mother would always bring me down. I never liked it. There was this incident where I passed my KPE and was set to be admitted to Kitui Secondary School. Being the first young man from the village to do it, I was excited. My mother told me, ‘So why are you shouting about your success? Don’t you know that this village has witches and wizards?’ (Chuckles).

Interesting childhood…

In my village, the rich helped the poor. The grazing fields and watering holes were communal. Every child was a child for everybody. We had communal values even though we had chiefs who would harass us with their askaris during colonialism. When my father could not afford my school fees, the community came in, and that’s how I went to Strathmore after my Form Four.

I always tell people that my politics was shaped by the community. We came together to protest against the violence of the chiefs. We helped each other out, sharing what they had. During this period, the likes of Jomo Kenyatta and Bildad Kagia returned from the war in 1946 (I was born in 1947). The Mau Mau war struggle started when I was in primary school. There was excitement about independence, and after we attained it, we went to see where the wazungus lived. For the first time in my life, I saw a swimming pool. It was strange seeing one because we swam in a river.

What sparked your interest in law, in justice?

One of my uncles was an elder in the Native Courts, some sort of a dual judicial system. I used to go there during the holiday just to listen. But that's not what got me into justice because I already had firm justice in the community. The way they treated wrongdoers was restorative justice. They didn't punish them like the colonial criminal system. They would bring them back into the community and reform them.

The Law School back then was at Strathmore, where I did my A levels. Prominent people like the late Charles Njonjo would come and talk a lot about the law. This notion was that we were the chosen ones and would replace the mzungu. So, we discussed it with the likes of Dalmas Otieno and Eliud Waiyaki. The peer pressure was, if you are good [academically], study law, medicine, or engineering. We might also have been persuaded by this book by Robert Bolt, The Man of All Seasons. It's about the English jurist called Thomas More. Being one of our set books, it generated excitement about law.

Do you think if you'd have studied medicine you would have still had a keen sense of justice and activism in you?

Yeah, I think so. If I had become a doctor, the sense of humanity would still have been with me. It’s always been in me.

What do you miss most about your youth? If you miss it at all.

Whenever I reflect on my youth and how children were cared for by the community, it makes me wonder, nags me even, why the government can’t love its people and take care of them. I guess it’s also my attraction to socialism that humanity is about equity and equality and sharing and not about classes. [Pause[ I…I have never put my life on a trajectory before, so this question makes me reflect. I think my youth was fine. We weren’t that rich, but we had enough to eat, and as I said, the community took care of everyone, so you could go and eat mangoes and cassava from anybody’s farm.

Is there a position you have taken in life before that you've changed drastically?

I’ve always avoided being dogmatic. I’ve always valued my critics. I think the only time my life has been shaken in a way that I could say was drastic was when I was detained in ’82. I knew I was innocent. I didn’t do anything except fight for academic freedom. And so, when I was released after 16 months, that was the crucible of my resistance.

I said, ‘What has happened to me should not happen to anybody in the university. It shouldn’t happen to any student.’ It’s important to take a position in life.

Recently, when we went to negotiate the release of the young men who were detained in police cells and got tear gassed, one of my friends in Canada WhatsApped me saying, “What do you think you are doing? You are not young anymore. Why can’t you just leave this?” I was outraged.

So I asked him, “Suppose your children are in prison or a police station, wouldn’t you want to go and see them?” And in any case, I told him I wasn’t tear-gassed. It’s the media that created that narrative. I’ve been through those fires.

Were there any positives in being detained in 1982?

Detention makes you reflect a lot. If you are detained with other people, like I was at Shimo La Tewa with George Anyona, Mukaru Oyugi, and Kamuaji Wachira, you have a lot of discussions. That helped a lot. But when I went to Manyani Prison, I was all alone. Manyani was extremely cruel. It was hot, and there were snakes.

In the month I stayed there, I developed problems with my kidney and had to be airlifted. If I had stayed in Manyani for a long time, it would probably have affected my head because of the heat, torture, and loneliness. You can easily lose your mind. I don't know how Jaramogi Odinga survived for 18 months in Manyani where Jomo Kenyatta detained him for 18 months.

Did you ever meet the late President Moi, the man who sent you to detention, and how was that meeting?

Actually, Moi didn’t detain us. Our detentions were mainly spearheaded by Njonjo. I met Moi once after I became Chief Justice. He sent professor Geoffrey Moriaso Maloiy from the University of Nairobi with the word that he wanted to see me. I was taken aback, so I sought advice from my Judiciary colleagues, who urged me to go.

He was an old guy, an elder; what could he do to me? I went to Kabarnet Gardens. Lee Njiru [Moi’s long-time presidential press service head], Maloiy, and others were present. The meeting was bizarre because I don’t know what signal he gave them, but as soon as tea was served, everybody stood up and left me alone with Moi, staring at each other.

I started getting scared, you know, because I didn’t know what this was about. And then, out of nowhere, Gideon [Moi’s son] saved the day. He said, “Oh, hello, professor, how are you?” The air relaxed, and the old man said, “Okay, let’s go to my house and eat something.” We ate goat ribs, very good stuff. Up to today, Biko, I haven’t a clue why Moi wanted me to go see him. People say he probably wanted to apologise for detaining me.

At that point, I would have told him that if our positions were switched, if I were the President, I would detain anybody I thought was a danger to whatever. But anyway, as a son of a tailor, I could see that his suit was designer. His house, the furniture, and the curtains were like going to a wealthy person’s house who doesn’t know what to do with their money. The last thing I saw was a man who was alone because they were lighting a fire for him as I left. I thought, oh my God, this old man is so lonely; he will sit by the fire alone?”

Does being married twice give you any unique insights into marriage?

I haven't been married twice; I've been married three times. My first marriage was a traditional child marriage, which I rebelled against. It's a long story. The communities would do that, particularly if you came from a polygamous family.

I was in school, and the woman I was supposed to marry was very kind. I cried a lot during those marriage discussions. I didn't know that the dowry was being paid. I used the money to open a bank account in the post office. [Pause].

But that's a great question on marriage. Of course, marriage will give you all manner of perspectives. The first marriage…Rukia was a Muslim, and I was Christian, so we faced many problems with both families even as we were courting. Nonetheless, we resisted and got married, and that was it. You know, one of the casualties of my detention was my marriage. She didn't know about my underground political work. I didn't tell her in case she panicked.

She only discovered this when I was in prison, and then she didn't have the strength to deal with the situation. We had three children. One died some months before I was detained. In fact, we were still grieving when I went to detention. She worked as a secretary in the Ministry of Information, where the pay was low. It became very complicated, and she suffered a lot in the process.

The second marriage was... complicated. I realised that I owed it to my first wife. The pain she was going through was because of my detention. I thought the best thing I could do was ensure Rukia was well cared for. And that becomes difficult in marriages; when you're telling your wife, 'You know, I've got to help my ex-wife.' My daughter really helped me because she was studying in the UK, and she returned and cared for her mother. And even now, she does. I don't know whether my second marriage would have survived if it wasn't for her. So there's a lot of perspective in there.

Do you think you've been a good father?

Yeah, I think so. I guess the detention brought me closer to my children. We became friends and protective of each other.

I realise this is an old drum we are beating here, but let’s talk about your earring one more time. What are some of the insights you've had about humans and society from wearing that earring?

I didn't wear an earring until 2003. And this is the story I told the Judicial Service Commission and even Parliament. I tried to explain my spirituality and religion and told them that when you grow up in a colonial village where people are of a traditional religion, the Kamba religion, is what you see as you grow up.

There was no church in my village when I was born. My parents would pour libations. For me, traditional religion is concrete even though I moved into being a Protestant in 1956 and then being a Roman Catholic in 1963. In between those changes, I never abandoned my traditional religion. It was so fundamental even when I became a Muslim because I believed that my children had to grow up with a particular religion.

Now, in 2003, one of my only surviving uncles called me and said," The ancestors are saying that you should wear a stud for them, an earring." Earrings are something communities had, of course, they used wood. There was no way I was going to disobey the elders, the ancestors, okay? I went to America for work and got one. I didn't think of the repercussions but I knew there would be consequences if I refused my ancestors' request.

There was the talk of me being gay because of an earring. I said I'm not, but I'm not homophobic and if I become Chief Justice I'll be Chief Justice of all Kenyans. I wore this earring because the ancestors asked me to and I couldn't disobey them. My memoir, which should be coming out before the end of the year, is called Studded Justice (chuckles). I enjoyed writing it and you will find some of your brilliant questions answered there.

What's the convergence between traditional religion and your Islamic faith?

I regard myself now as belonging to that group of people called syncretism. Syncretism is somebody who believes in many faiths and somebody who has come to terms with the fact that there is a supreme being who is worshipped by people of all faiths and also the realisation that there is no religion that is closer to God than any other.

You are in great shape for a 76- year-old man. How do you keep in shape?

I used to play football. I played until I was 42. I swim, I do yoga and meditation. I walk on Saturdays. I walk to my meetings sometimes. I also watch what I eat because I think the issues of health are just about what you eat. And even if you exercise and you're not watching what you eat, it's not balanced. I also partake of the devil's urine but, you know, in moderation.

Wine, I suppose?

Red wine. Yes.

Who takes care of you now, at this age? You have someone?

(Chuckles) Yes, I have a partner, a great woman. That is also very good for someone’s health. My children are grown, they have children and so forth, if I was just staying in my apartment alone, you know, that would be like another prison, a detention.

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