It is only natural that Dr Willy Mutunga's nomination will give rise to speculation that his ear stud is a sign of his moral decrepitude. It has been used as a lightning rod by William Ruto and Canon Peter Karanja of the NCCK to cast doubt as to the moral probity and integrity of Dr Mutunga to hold the post of Chief Justice of Kenya. The fears that Mr Ruto and Canon Karanja expressed during the referendum campaign, to their minds, have come to pass and the nomination of Dr Mutunga, and Nancy Barasa to a lesser extent, is proof positive that the new Constitution is the doorway for immoral and 'unconstitutional' practices in Kenya and that Dr Mutunga, and his Judiciary, will be at the forefront of promoting 'alien' practices and ideas by 'legislating from the Bench'.
Lost in the debate about Dr Mutunga's stud is the fact that he has been at the forefront of the Second Liberation Movement, having not only been jailed unlawfully by President Moi's government, but also having articulated the intellectual and legal philosophies of the Second Liberationists, receiving recognition and acclaim for both his scholarly and political treatises. His personal life, if it has been of an immoral character, would be germane to the question of his suitability to serve as Chief Justice, but in the 21st Century, divorce is no longer a cause to question the integrity of a man or woman, not even if they are twice divorced.
Dr Mutunga and Ms Barasa have promoted the concept of equality before the law of all and the equal treatment of all before the law in their professional careers. This is the fundamental basis for the rule of law. Our Judiciary must be at the forefront of protecting the rights of individuals enshrined in the Bill of Rights of the Constitution that we ratified on August 4, 2010 and promulgated on August 27th, 2010. None can question their professional qualifications to hold the positions of Chief Justice and Deputy Chief Justice. It is only on the malleable concept of morality that their nominations are questioned, and the likes of Mr Ruto and Canon Karanja are promoting a false debate knowing full well that they have no legitimate basis for their opposition.
The Bill of Rights at Arts 27 (Equality and freedom from discrimination), 28 (Human dignity), 32 (Freedom of conscience, religion, belief and opinion) and 33 (Freedom of expression) protects the rights of the two nominees as much as of the Kenyan people. Dr Mutunga and Ms Barasa cannot be prevented from holding the two positions merely because they have expressed opinions regarding the rights of homosexuals, or on the unfounded innuendo that Dr Mutunga is himself a homosexual. The only legitimate ground for campaigning against their nominations would be that regardless of their professional qualifications, their moral conduct, either in public or in private have been such as to raise significant doubt about their moral probity and integrity. No proof has been presented to suggest that the two have been involved in any activities that would raise doubts about their morality or integrity, and Mr Ruto and Canon Karanja know this.
The nominees are set to be vetted by a discredited Tenth Parliament. The National Assembly is noted for the manner in which it has trampled over the rights of Kenyans, from awarding themselves pay-rises they did not deserve to ignoring the plight of millions who have suffered from the ravages of drought, food shortages, water scarcity and invasion by marauding raiders from across our borders. They have taken their personal political conflicts to ridiculous heights, sometimes defending men and women accused of heinous crimes against individuals and communities regardless of the pain and suffering of the victims. In their various dubious campaigns, they have been joined by men and women of the cloth, a partnership that has eroded the moral and spiritual authority of the church. In the Book of John at Chapter 8, Jesus is asked to judge a woman accused of adultery. He exhorts her accusers that the one without sin be the first to cast a stone against her and carry out what was the traditional sentence for adultery: stoning to death. None could, all being convicted by their consciences. In the case against Dr Mutunga and Ms Barasa, are Mr Ruto, Canon Karanja and their supporters blameless of sin that they should be the first to cast stones against the nominees?
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