Dr Mutunga and Ms Baraza are NOT the Supreme Court

The Constitution Implementation Oversight Committee, headed by Abdikadir Mohammed, today held public hearings to either approve or disapprove the President's and Prime Minister's nominations of Dr Willy Mutunga, Nancy Baraza and Keriako Tobiko as CJ, DCJ and DPP. Mr Mohammed has acquitted himself well in the hearings, steering them towards matters of substance and attempting to rein in his more excitable colleagues, notably Budalang'i MP Ababu Namwamba. As has become the norm for Mr Namwamba, he is yet to see a red flag that he does not charge at like a bull at a torero with a red cape. However, it is the thoughtful interventions of Bishop David Oginde and Father Ferdinand Luganzi of Christ is the Answer Ministries and the Kenya Episcopal Conference, respectively, that require a robust riposte.

In their submissions before the CIOC, the two men of the cloth have raised issues regarding the suitability of both Dr Mutunga and Ms Baraza to helm the Judiciary, relying on the argument that their personal and professional stances raise serious doubts about their moral integrity, contrary to the provisions Article 166 of the Constitution. They argue, rather persuasively, that as the Constitution does not allow same-sex marriages or abortion, and that the Constitution affirms the place of the family in society, their stances on these issues disqualify them from taking up the position of CJ and DCJ. However, George Kegoro of the International Chamber of Jurists-Kenya argues that the question of moral integrity should be viewed from the perspective that the Constitution of Kenya affirms that Kenya is a secular republic and not a theocracy, and therefore, it is secular moral values that should determine whether or not Dr Mutunga and Ms Baraza are fit to hold the positions to which they have been nominated.

First, the Chairman of the CIOC is not competent to rule that the Constitution outlaws same-sex marriages, or that abortion is absolutely banned. Neither are church leaders. The interpretation of the Constitution is the exclusive preserve of the High Court of Kenya, and until it does so, the views of the Chairman and the church men are at best opinions. Secondly, 'family' is not defined in the Constitution. Indeed, given the changing social mores of Kenyans, 'family' includes single fathers, single mothers, divorced persons, orphaned children, adoptive families, widowed parents or widowers with children. Therefore, the traditional definition of family composed of a father, mother and their offspring may no longer apply strictly. Finally, high moral integrity does not automatically disqualify divorced persons or persons who, in their professional capacity, have represented 'sexual minorities' in defining and protecting their rights.

Mr Kegoro raises an important point. While the Constitution in its preamble proclaims the supremacy of Almighty God, it also affirms Kenya as a secular republic. In other words, no single religion holds sway under the Constitution. It follows therefore, that the moral integrity being addressed under Art 166 is not a religious quality, but a social one. Whether one is a Christian or a Muslim or a follower of another faith or no faith at all, it is imperative that the moral integrity that is demanded of candidates for high judicial office include the virtues of honesty, impartiality and fairness. Any candidate who has been involved in corrupt practices, theft or other offences would automatically be disqualified from holding such office. To the best of my knowledge, Dr Mutunga and Ms Baraza have not been accused of any vices that would suggest that their interest in these judicial positions wee anything but guided by the national and public interests.

The church men also advance an argument that the two have displayed a philosophy that is at variance with values Kenyans hold to be dear. They point out that Dr Mutunga, in his legal practice, has represented persons who would seek to change the law as regards the question of homosexual relationships. This, they argue, is proof that when Dr Mutunga as CJ will be faced with this question, he will invariably side with them. Therefore, he is unfit to sit as the CJ and should not be confirmed by the CIOC or Parliament. The fact that Dr Mutunga and Ms Baraza are divorced also points to the fact that they do not value the family as the foundation of society and would therefor, in the capacity as judges, encourage the breakdown of the family unit, raining chaos on Kenyan society. What the church men fail to demonstrate is how the leadership of the two nominees of the Judiciary would be carried on in isolation from the rest of the Supreme Court.

The Supreme Court will have seven Judges, including the two nominees, and the judgments of the Court must reflect the judicial consensus of all the Judges and not just the two nominees. The Supreme Court is not a dictatorship of the CJ and DCJ. If appointed, the two nominees must work with the other five judges to pass judgments that are acceptable. This is why the job of the Judicial Service Commission is not done. In choosing the remaining five Judges, the JSC must also recommend men and women who have demonstrated independence and a keen understanding of the law and an appreciation of the Kenyan situation. It is the only way that Kenyans will regain their trust in the Judiciary.