Willy Mutunga - The human rights state

  • #3 Mutunga _ photo2

    Chief Justice Dr Willy Mutunga Photo: Bobby Pall.

  • #3 Mutunga _ photo1

    Chief Justice Dr Willy Mutunga Photo: Joseph Kariuki, Kenyareporter.

While Kenya has made great strides towards democracy and human rights over the last half century, the road has not always been straight-forward and smooth. Chief Justice of the Supreme Court of Kenya, Dr Willy Mutunga, reflects on the country’s history of human rights in the past fifty years from independence to the present.  

While sipping a cup of coffee in his usual calm demeanour, civil rights defender and Chief Justice Willy Mutunga walks us through Kenya’s journey towards democracy and his vision of a human rights state. Wearing his distinct earring on his left ear, Dr Mutunga smoothly unravels Kenya’s political landscape marred with upheavals since independence in 1963 – including his own detention in 1982 because of his underground activism during the Moi-Kanu dictatorship era.
“The state of human rights in Kenya, say from around ’66 was really horrible,” Dr Mutunga says. “Look at the political assassinations, the detentions without trials, the emasculation of parliament, single party dictatorship, a voting system where people were queuing up and the elections were being manipulated in broad daylight. The groups that stood up against this system were basically jailed and killed, and there was a lot of that in the late 60s, 70s, 80s and actually up to the 90’s.”
Willy Mutunga was one of the initiators of and a chairperson for the Kenya Human Rights Commission (KHRC) founded in 1990 while in exile in Canada. Along with other Kenyan exiles who were in the United States, including Kiraitu Murungi, Makau Mutua and Maina Kiai, the commission was launched to further the struggle for human rights, democracy and socio-economic justice.
“We wanted to operate from outside because it was not possible to have a Kenya Human Rights Commission around that time; you would have just been picked and locked up. It was as simple as that,” Dr Mutunga says.
KHRC received support from Scandinavian, Dutch and Canadian donors including the Swedish International Development Corporation (SIDA) and credits the success of the commission to grants received from these donors. A year after KHRC was founded things began to change. In December 1991 President Moi decreed multi-partism, resulting in an increased momentum for political change. In 1992 those in exile returned home and the KHRC began operating in Kenya, and was officially registered in 1994.
“That embryonic movement relied on Scandinavian countries because of their politics and ideologies. They were very sympathetic to what we were doing then,” Dr Mutunga says.
Economist Anders Karlsson was the head of Swedish development assistance to Kenya between December 1994 and January 2000. He says Sweden has always sought opportunities to support human rights and socio-economic development based on equality.
“In the 1990s, Sweden was very close to leaving Kenya altogether due to the country’s rampant oppression, corruption and exploitation of the poor. But a decision was made to ’hibernate’ and wait for the situation to improve. As a result, we had a very small – but anti-poverty-oriented – budget for development cooperation, combined with an ambition to support civil society and other progressive forces,” Mr Karlsson says.
Anders Karlsson adds that the Swedish ambition was to use their small resources to contribute to democratic development and transparency, wherever the opportunity arose.
“Thus, as soon as conditions allowed, we paralleled support to civil society with human rights training within the police force; human rights components in regular development programmes; and extensive support to improved financial management within the district administration,” he says.
From the beginning of his political career, Dr. Mutunga has openly shared his vision of a human-rights state, one that in his opinion closely resembles Scandinavian countries that reflect social and liberal democracy. Such a vision entails distributing resources equitably with an aim to reduce poverty and increase stability.
“A lot of these Scandinavian countries have very, very serious policies on social justice, transportation, maternity relief, unemployment, taxing the rich and so on – so that you can reduce the disparities. And that I have always found attractive,” Dr Mutunga says.
In terms of the Judiciary, Dr Mutunga says Swedish support helped him build the capacity of the Office of the Chief Justice (OCJ). When he was sworn in on June 20, 2011, that office had two secretaries and six bodies with weak support from the administration. With the bulk of assistance from Sweden he has been able to increase capacity to kick-start the transformation.
Kenya enacted a new constitution in August 2010, after twenty years of failed attempts at constitutional reform as well as a failed 2005 referendum. That was around the same time Dr Mutunga joined the Ford Foundation as a human rights programme officer. Efforts to recommence the reforms were addressed after the 2007-2008 post-election violence that emphasized the urgency to have a new constitution.
“If the Supreme Court does its job right, the government will be forced to progressively provide for example water and sanitation to people in Kibera (Kenya’s largest slum). And if they say they have no resources, the courts can say that you are spending your resources in an undemocratic way,” Dr Mutunga explains.
Willy Mutunga says Kenya has started this journey now of implementing the constitution. But it is a rickety process. The implementation of the constitution is the one issue that is going to guarantee or not guarantee the existence of a human rights state in Kenya.
“To quote the Chinese philosopher Lao-Tzu: ‘A journey of a thousand miles begins with the first step’. I can’t even say that we have achieved the first step, but the constitution itself is a great leap forward,” Dr Mutunga says.
However, he states, there are powerful and wealthy forces that don’t want the constitution implemented. This is the main challenge facing Kenya and impacting the judiciary. This means reforms will be slow to materialise:
“The moment you say that the state should share resources equitably, there’s always a group of very greedy people who will be opposed to that because they raid the people’s resources everyday.” Dr Mutunga says.
“You think you are going up and then all of a sudden you hit rock bottom. I personally wouldn’t be surprised if there was a reversal. That’s the nature of reforms.”
The journey towards democracy is further clouded with Dr Mutunga saying that there are very few people who are committed to transformation in the judiciary and he can count the people on two hands:
“They are really less than ten. And every day I get a shock when somebody I thought was on the road to Damascus with me has turned back,” he says.
But there is a ray of hope according to Dr Mutunga, who says you have to look at the Kenyan situation in terms of the gains that have been made and consolidated.
“Kenya in 2007 – even if there was political violence – was not the Kenya of the 80s. It was totally different in at least one respect: the people themselves had the sense to stop what was going to destroy the country. Had it been in the 80s, the state probably would have slaughtered everybody,” he ponders.
“So when you look at the incremental gains that have been made, my view is that the country is moving in the right direction. You always get these reversals, but the country is showing concern about things that are not acceptable. That consciousness is important, I think. ”
Text: Natasha Elkington.