Sunday, July 3, 2011

A new Chief Justice starts a new era in Kenya, after the new constitution


Above: Chief Justice of Kenya: Dr. Willy Mutunga

Below: Catholic John Cardinal Njue who opposed

the new Kenyan constitution and Mutunga for Chief Justice.

Religious voices in Kenya: Unending contradictions

Kenya is celebrating. We have a new Chief Justice. He is among many positive things, magnanimous, unlike the leaders of faiths. I am particularly engaging the Catholic Church as you will see below. They are among those who tried to rescind his successful nomination for this post. Yet, Dr. Mutunga had applied for an advertised post, presented his credentials and been shortlisted and eventually he triumphed. Interviews by the Judicial Servive Committee had been aired live on TV. He passed. Nancy Baraza is the Deputy Chief Justice.

Both Dr. Mutunga and Nancy were waiting to be vetted by the House of Parliament, and finally signed by the President when churches struck. Mutunga had an ear stud. He is not married. And after they found out he was married, a case with his former wife was brought up. Nancy Baraza is a divorcee. It was being said she would like to see the whole world divorced. Besides, she is studying homosexuality for her Ph. D!

The whole thing is worth forgetting and even consigning to a side show but no. There are interesting consequences of the move by the faith leaders and also for others. There are also important levels of engagement we must get to. When Mutunga got through all these dilemmas, he went to a slum to celebrate his victory. He went to a Catholic project too.

Dr. Mutunga had reason to give a cold shoulder to all. He could have chosen to hit back at the churches that had tried to prove him unworthy. He chose, even whilst confessing Islam as a faith, to turn the other cheek. He chose to visit a slum and pointed out that home for him is where all communities are engaging. In Kenya ethnic polarisation due to politicization of origins and votes has been a big problem. He chose 'home' for a place where all religions are represented. He chose to call 'home' a place where people are dignified in spite of having to endure endless problems. And it is not their fault. Here the poor know that if Kenya had justice they would live a better life. They would have less problems.

He chose one of Nairobi's slum areas known as Korogocho. Our society is riven by a sharp division between the wealthy and normally politically connected people and the poor and 'voiceless'. The Catholic church has some who voice for the poor all over the world. Some who ask for justice. And some who engage bishops, the Vatican and secular society about justice. They do it at their own risk. They are normally poor priests. There are rich ones there too. Vocal and poor priests are not tolerated all the time. I know this. I have been told by some of them. I have seen what happens to them. It may not always be the case. I am talking about some priests. Bishops belong to another class. If not always in wealth, at least in voice.

John Cardinal Njue of Kenya, led his flock against the new constitution which the people inspite of the church's disapproval voted for, including many Catholics oon August 27th 2010. It is Kenya's constitution today inspite of that. Many pentescostal and other churches rejected it too. They said the new constitution of Kenya, allowed for abortion, divorce and supported homosexuals. They argued that the coming of this document along with some lay people brought with it all evil in morality. They said it had to be amended. Sample this as one of the articles they found problematic.

Chapter 4: Bill of Rights 24. the right to a fair trial; and

(d) the right to an order of habeas corpus.
Part 2––riGhts and fundamental freedoms
26. (1) Every person has the right to life.
(2) The life of a person begins at conception.
(3) A person shall not be deprived of life intentionally, except to
the extent authorised by this Constitution or other written law.
(4) Abortion is not permitted unless, in the opinion of a trained
health professional, there is need for emergency treatment, or the life
or health of the mother is in danger, or if permitted by any other written
27. (1) Every person is equal before the law and has the right to
equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights
and fundamental freedoms.
(3) Women and men have the right to equal treatment, including
the right to equal opportunities in political, economic, cultural and
social spheres.
(4) The State shall not discriminate directly or indirectly against
any person on any ground, including race, sex, pregnancy, marital status,
health status, ethnic or social origin, colour, age, disability, religion,
conscience, belief, culture, dress, language or birth.
(5) A person shall not discriminate directly or indirectly

Dr. Willy Mutunga supported this constitution. He now says that he is bound happily only by this constitution of Kenya and service to Kenyans. Not by any politician, not a political party, not gender, not class but only by our Mother law. He holds a stunning record as a lawyer and fighter for human freedoms. He is a man of the struggle. His record is clean. He is ready to work. He knows his job.

One man, a lay Catholic and social activist Okiya Omtatah Okoiti opposed this document. He went to court. Others also did. Here are a few. Moi did. Koigi Wa Wamwere did. Wanyiri Kihoro too. Moi was the president who had Raila Odinga detained. He also detained Koigi Wa Wamwere who was in exile in Norway for some years, and Wanyiri Kihoro. Both of them have been Members of Parliament since. Moi tried to influence for the draft to be rejected during a referendum. They all failed miserably but they are entitled to their own ideas.

Dr. Willy Mutunga was also detained by Moi. Now he is the Chief Justice of Kenya. Some people are terribly uncomfortable with this reality. Many wish Dr. Mutunga the success. It is for Kenya. I am impressed by his thoughts and works so far. He has started on a very positive thought. He is appealing to the best in us, a task that many who have been in leadership and are paid overly well to do so, have failed in. I am speaking about most politicians in Kenya.

To begin with, when politicians win positions they have huge 'homecoming' parties sometimes their colleagues flying over to their constituencies. This has always hit many other Kenyans as unnecessary and a sign of the acceptance of a lifestyle of excesses amidst tough poverty. It had not occured to elected MPs too that home can be many places in Kenya. Leaders had failed to see that in our societies we do not need people who keep flashing their wealth at us while most of us go hungry daily. This is just one of the ways in which they do it. It makes no sense. The big feast is justified as a voter's treat. But not all voters can even participate. Besides are we not seriously charged with sobering up political work. We have enough problems with alcohol, pun intended, with so many drinking almost pure alcoholic brews to their deaths to forget their misery it is not even funny. This is a nation that requires much wisdom and leadership. Unlike the religious leaders failure- the Catholic and Protestant churches included, Dr. Willy Mutunga's meritorious win of the position after a public interview is historic in many ways.

First to note is that he could have lost it. Initially, the current president of Kenya, Mwai Kibaki and the Prime Minister had attempted to ignore the new constitution and to nominate as Chief Justice Githu Muigai whom many Kenyans rejected. It was the people, many civil society activists and the media and all the sensitive people who blew the whistle on Githu's nomination. It was not the churches. The churches did not tell the president that he had to follow the constitution. Why, they still do not believe in it. They have not made the president accountable in the past. He breaks bread on the Catholic table of the Lord especially whenever the elections are near. Dr. Mutunga's win would never have been. This was a truly a result of vigilance and courage.

Dr. Mutunga moved many of us on taking his 'homecoming' moment to the slums of Nairobi, Korogocho. Besides he went to a Catholic Church centre run by a priest he had worked with 20 years before. It was there that Dr. Willy Mutunga spoke to Kenyans about giving a better chance to reconciliation and not always rushing to the law courts for all disputes. He said that people should try first to settle scores whenever possible: in churches (actually just remembered that this is recommended by Christian teachings), schools, homes and so on. It may look like he is a strange Chief Justice who gets to the top and tells people to look elsewhere for justice but he means it whenever possible. I think this spirit of reconciliation is so needed in Kenya. It is so important that people at different levels of leadership tell many in a country so torn apart by suspicion and also by history and the enrichment of a few at the expense of many, that we must increase our space for reasoning.

Saying it clearly like Catherine of Sienna!

I wonder if the Cardinal and his people, the pastors and the Imams heard the deeper message of Mutunga's homecoming? It is at home where we listen to and love one another regardless of differences. Are we sitting up? I wonder do the Catholics they remember that in Rwanda nuns and priests are included in guilt for genocide? Do they remember that? Do the bishops? Do they see the great responsibility they have to stop antagonising ethnic groups and sometimes even taking sides with their own folk ruling out the others on tribal basis? This is true, not hearsay. Do they know what keen listening and wisdom we need? I do not think so. I have seen them kowtow to presidents for too long. I have seen them not able to say to the powerful that they are just like other worshippers even inside churches themselves. I know quite a lot first hand.

I really think that bishops of the Catholic church whom I know best must re-examine what they have been doing in Kenya. When the discussion on the constitution went so poorly, when a stud became a big obstacle to the churches, I remember wanting to write to all publications on earth. I wanted to ask them to tell specifically the Vatican that its bishops are retarding our growth. I had previously been thinking that all small states are run well, and I remembered shaking my head when it came to the Vatican. Every now and then, the Pope receives news and even bishops from other countries. Visita ad limina. This church operates on hierachical authority. It is very important that the bishops selected for Kenya and other developing nations be people who are able to engage with issues at a wise level. In some nations the lay have a say in the making of bishops. And them packing from time to time. We need to think about that.

If only there were enough fearlessness and honesty in this church even just in Kenya, many of them would confess how bishops have taken partisan and political sides often. This is not new in the history of the church but it cannot be allowed! It must stop.

Often heard in Kenya is that in the 80s and 90s, Cardinal Otunga and for a time Bishop Ndingi Mwana'anzeki had the people of Kenya at heart. That they spoke almost like Cardinal Sin of the Phillippines who led the people to people power. It is regretted that after sometime the church lost this. Cardinal Otunga died. Bishop Ndingi lost his sharp ways. This bishop received a Mercedes Benz from politician Njenga Karume and took it. It was a public matter. Surf the pages. Some people say it had lots of bank notes packed in the back. I might not believe that but I do remember A Man for All Seasons. I remember that it was not only about divorce. Thomas More would not take gifts given to him as he considered them bribes.

Why was I then to be scandalised that a parish priest told me he took 30 000 Ksh (300USD) from a politician I was opposing for a suit and a pair of shoes? He told me himself. He said there is no difference between 'money' and 'money'. I told him in this case this was not just money. He was actually telling to stop running against this politician, work with this politician and get my first two million shillings and be left rich. He was also saying that when I spoke on air about the constitution the old men I was opposing had sleepless nights. He had discussed this with them surely. To call me and find out my price. I know he lost his moral authority.

In 2007/2008 when Kenya was aflame as Kibaki had claimed victory and gone on to his swearing with the ex Chief Justice Evan Gicheru almost in the dark just to have the swearing in done, all religious leaders had lost moral authority. None of them could calm the country. What surprised me is that they should have seen this coming. They were involved. One priest I spoke to at Our Lady of Guadalupe, Kibera, Nairobi was very upset with Bishop Njue's visit there. He had spoken in a way as if to suggest everyone was going to vote for Kibaki.

Had the bishop lacked decorum or was he doing this deliberately? Kibera is represented by Raila Odinga the current Prime Minister of Kenya. Raila Odinga was the man the church and others had demonised. I still remember a Catholic priest giving me a letter that was supposed to be a memorandum of understanding that the previously atheist Raila Odinga had apparently signed with the Muslims. Just looking at the paper itself and scanning it fast, I was horrified that a priest should have believed it and even hidden it as a document to file. These struggles for a healthy nation are very deep.

We hope that we will all be willing to sit up and talk openly. That we shall embrace justice. That reconciliation and justice will be common terms in our churches, villages and mosques. Dr. Mutunga has acted like all these and many more instutitions should be doing. How we respond to his transparency and love for Kenya is up to us. We shall not tolerate the old tactics of taking those who speak clearly off their tracks by inventing issues against them and worst of all by silencing them. We want to speak and hear one another in a clear space. I want churches to allow us to tell them what is wrong and that they confess it and give justice if they can. In some cases as with the issues of abuse at different levels it is almost impossible for churches to make enough amends. It is therefore imperative that they be humble and listen for sometime. In any case, relevance is a challenge all the time!


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  2. Thats a great read Philo. One thing I would love to find out though is your thoughts on what has befallen the deputy chief justice Madam Barasa. Thanks.

  3. And then everything seems to have got mixed up by ELECTIONS again and now, there are questions about who is serving who and for what? Does the Constitution and do the Courts of Kenya really belong to the people? The law versus the people? Justice? Chief Justice?