Willy Mutunga gifts posterity thoughts on law and society

Today books are not what they were just about two decades ago. Then books meant a printed and hardcopy of text. The paper book was expensive mainly because of the cost of preparing the manuscript, printing it and distributing it. Even today the cost of printing is one reason not many people publish books. There are millions of writers with stories out there to tell. But they are hindered by means.

Yet, technology has also made it much easier and affordable to prepare manuscripts, print and distribute books. It can easily all be done even on a phone, just by the author. 

Thus, today, ideas that would never have been looked at twice by book commissioning editors easily end up in print. Such ideas are then archived for posterity, when gatekeepers would have killed them right there in the mind. Books in themselves don’t have a material value. That’s why some people burn them when they are unhappy with their content.

It is what is inside the book that matters. Ideas don’t die. This is why we still talk about African traditions, which, although not recorded on paper, have been transmitted through generations to us. And which is why our public intellectuals, our leaders, and those who are convinced they have ideas worth passing on to future generations need to write and publish books.

Sylvia Kang’ara, Duncan Okello and Kwamchetsi Makokha have just done such a thing in collecting the thoughts of Willy Mutunga in the book Beacons of Judiciary Transformation: Selected Speeches, Writings and Judicial Opinions of Willy Mutunga (Sheria Publishing House, 2021).

Beacons of Judiciary Transformation is just the right kind of memorialisation of Willy Mutunga. This is significant in a country where the tendency is to write long obituaries extolling the virtues – and hardly mentioning the vices – of the departed. It is important that this kind of book has been published, so that it can be read alongside previous books and essays by Willy Mutunga, and questions be asked about his thoughts and practice as a lawyer, activist and public intellectual.

Willy Mutunga’s thoughts

Indeed, the content of the 16 chapters is a menu of commentary on literally every subject of public importance in Kenya. There is something for everyone who would like to know Willy Mutunga’s thoughts on a diverse range of subjects. 

The nature of an anthology of selected speeches, writings and opinions also means that this is a book that can be read from any section. In fact, in this particular case, the Foreword by Albie Sachs is an apt starting point.

Like such preludes it illustrates Judge Sachs’ appreciation of the Kenyan judiciary. After all, he spent some time in this country helping Kenya reform its judiciary. His is a laudatory comment on Willy Mutunga’s subsequent role in the transformation of the cultures and language – should one say languages – of law and justice in this country.

Yash Pal Ghai’s ‘Introduction’ is what friends say about friends. But it is instructive in one key sense: he confirms that whether as a lawyer, an exile, an activist or the Chief Justice, Willy Mutunga was driven by the desire to ensure justice for the poor and marginalized. 

One could then just jump from page 7 of Beacons of Judiciary Transformation to page 495. Why? Because, as the editors of the volume suggest, it is in chapter 16 ‘In Lieu of a Postscript’ where Willy Mutunga perhaps speaks most openly about ‘his life philosophy.’ Indeed in the interview with the online magazine Qazini, Willy Mutunga summarizes his life by speaking about that (silly) old question of the ‘stud’ and sexuality; why did he decide to study law; how he did end up in the human rights movement in Kenya – because he had been defending small-time robbers, who would later be killed extra-judicially; why does he speak openly about issues of public interest; how he managed not to be corrupted by power; his ideas of feminism and gender equality etc. Willy Mutunga reveals his guilty pleasure – he is a sweet tooth. And that he loves Indian movies! What really these last pages do is to uncover a very ‘human’ Willy Mutunga. Who last heard of a Kenyan judge discussing in public what they love and what they do when they aren’t talking about the law?

Demystify the legal edifice

But Willy Mutunga had been ‘humanized’, so to speak in the 400 pages of his selected thoughts before the last chapter. In these pages, Willy Mutunga speaks the language of a lawyer and that of the founding head of the highest court in the land when he gives dissenting or concurring opinions in matters judicial; he is an activist when he suggests that ‘Men should be feminists, even if it is hard work’; he is a legal philosopher when he speaks about ‘Elements of progressive jurisprudence in Kenya’; but there is also Willy Mutunga the activist who insists that seekers of justice must have access to it near them.’ Here are words that bring the jurist closer to both fellow jurists and the lay. 

In a country where lawyers, judges and the entire judiciary system remain a mystery to millions of Kenyans, who through unintended or intended acts, may end up in front of a prosecutor and a judge, Willy Mutunga has been duly and rightly so, credited with significant attempts to demystify the legal edifice.

One, though, would say, that this is work in progress that may take ages to bear fruits. Isn’t it surprising that in this age and time the Kenyan judiciary and legal community still use a language that is incomprehensible to those they serve? What about those hideous gowns and wigs? Why do we still call judges lords or ladies? Is this just nostalgia for outdated colonialisms or a desire to be seen to be superior to the mere mortals that seek justice? 

To use a legalism, the jury is still out on Willy Mutunga’s tenure at the Supreme Court of Kenya. Until he writes that memoir, until Kenyans ‘hear’ him speak about his fears, triumphs, tribulations and dreams when he was the CJ, in his own words, in a book that they can read and reread, that chapter of his life, probably the most momentous – not just for him but for Kenyans as well – will remain inconclusive. But Beacons of Judiciary Transformation is enough of a teaser. 

Beacons of Judiciary Transformation is a gift to many Kenyans today, tomorrow and in the future who would wish to know part of the story of the struggles in this country to make the law comprehensible to Kenyans, to make justice accessible and affordable to a majority of Kenyans, and to begin to ‘domesticate/localise/Kenyanise/Africanise’ the theory, philosophy and practice of law, in a sense.

(Beacons of Judiciary Transformation was launched at Taifa Hall, University of Nairobi on March 4, 2022). 

The writer teaches literature and performing arts at the University of Nairobi. [email protected]