Mutunga has no moral authority to tell progressives how to organise

Can Mutunga offer alternative ideas?

In Summary

• The former Chief Justice recently disparaged the party and its leadership during the launch of his book — a compilation of his old Nation newspaper articles.

• Mutunga presents himself as the man with the formula for progressive change, who can lecture Kenyans and CPK on what to do.

Former CJ Willy Mutunga. /FILE
Former CJ Willy Mutunga. /FILE

In his opinion columns in this newspaper, Willy Mutunga takes it upon himself to dictate to Kenyan progressives on how they should organise to change this country for the better.

While at it, he never misses an opportunity to attack the Communist Party of Kenya, which is the only political party in Kenya with a clear working class and mass-based ideology.

For instance, in his column published on October 22, 2022  titled “Struggle for implementation of 2-3 gender rule must continue”, Mutunga wrote “chama cha Wavujajasho kimenunuliwa na chama cha wavunajasho” in reference to CPK.

Again in his recent article titled “Should we expect yet another political handshake?”, he dedicates three paragraphs to CPK. He repeats his earlier Kiswahili claim and further talks about a weakened ‘political momentum’ and split in CPK. 

The former Chief Justice also recently disparaged the party and its leadership during the launch of his book — a compilation of his old Nation newspaper articles.

In all these three occasions, Mutunga presents himself as the man with the formula for progressive change, who can lecture Kenyans and CPK on what to do. His motive is to demoralise Kenyans from joining and supporting the party of the oppressed and exploited. But the question is; can Mutunga offer alternative ideas?

Whereas he claims to speak against capitalism and neo-liberalism, it is not lost on Kenyans that before he was appointed Chief Justice, Mutunga had worked for the Ford Foundation for a long time.

Ford Foundation has a history of spreading western cultural imperialism across the world, and fought the rise of socialism in Asia in the 60s and 70s. His attacks on CPK can thus only be interpreted as a continuation of such imperialist campaigns, but now against revolutionary organising in Kenya.

In his October two-thirds gender article, Mutunga makes populist demands knowing very well that he failed to advance the gender agenda as the head of the Judiciary. Here is a man lecturing everyone on the implementation of the two thirds gender principle, yet he comfortably presided over a Supreme Court that did not meet this threshold!

If he was honest about the implementation of this constitutional requirement, as he purports, then he should out of principle have turned down his appointment as the CJ until at least a third of the bench was made up of women.

When it came to the implementation of this principle in Parliament, the best Mutunga could do was to make a populist dissenting opinion on the matter in 2015. His successor, however, took a bolder step by recommending the dissolution of Parliament, which gave huge impetus to the actualisation of this principle.

Mutunga’s retrogressive attitude towards women can best be seen by the public mansplaining attack he made against CJ Martha Koome in 2021 dictating to her how she should run the Judiciary. At no one time did Mutunga write such a condensing public letter to his male successor, David Maraga.

In his article on handshakes, Mutunga notes that “Ironically, Kenya Kwanza has resurrected the politics of issues and class in no small measure,” yet he still proceeds to attack CPK, a party that has since inception advocated class politics, for joining the Kenya Kwanza coalition.

In his view, the party could only have made such a decision for monetary gain. Logically, if his view is that historic decisions can only be made under the influence of money, what then does that say about his historical presidential petition judgement in 2013 where he upheld an election that was clearly marred with serious illegalities and irregularities? Was “money poured” as many have claimed?

Progressive Kenyans have correctly praised former CJ Maraga’s 2017 judgement. However, it is impossible to appreciate Maraga’s courage, integrity and leadership, if we do not analytically compare the 2013 and the 2017 judgments.

For example, whereas in 2013 the electronic voter identification machines failed completely, in 2017 they generally worked perfectly. Whereas in 2013 the electronic results transmission system completely failed midway, in 2017 this failure was not experienced.

In addition, in 2013, the Mutunga court ordered for recount of random ballots and the discrepancies were quite significant. In 2017, a similar scrutiny was done and lesser discrepancies were found. Further, the difference between Raila Odinga’s votes and those of Uhuru Kenyatta in 2013 was less than a million votes, while in 2017 it was 1.4 million votes.

If Maraga nullified the 2017 presidential election that had fewer illegalities and irregularities than the 2013 one, then it goes to show  there was something morally and ethically wrong with how the 2013 Mutunga decision was arrived at. He has in the past stated that the decision was not his alone but was rather unanimous. But the question is, why didn’t he at least dissent? Why didn’t he offer leadership, integrity and courage as Maraga did?

Lastly, at his recent book launch, Mutunga appointed a committee to lead the struggle for the downtrodden. However, unbeknownst to many,  Mutunga is part of the reason why most of the urban poor, the youth and rural folk are unconstitutionally held in police cells and remand prisons even when they have been accused of petty crimes like being drunk and disorderly or importuning for purposes of prostitution.

Article 49(2) of the Constitution provides that no person shall be remanded for an offence punishable by a fine only, or by a prison term of less than six months.

However, in 2015 the National Council on the Administration of Justice, under the chairmanship and reactionary direction of Mutunga, developed the Judiciary Bail and Bond Policy guidelines that overturned this constitutional decree with the argument that there was a “real probability that many persons who are charged with offences that attract only fines or that attract imprisonment for six months or less will not bother to turn up in court for their trials…”

Mutunga sanctioned this anti-poor people policy yet the same policy observed that a majority of the people in remand prisons are petty offenders who cannot afford even cash bail of as low “as Kshs 1,000 bail due to poverty”.

What I have highlighted in this right of reply is just a tip of the iceberg on why Willy Mutunga has no moral or ideological right to dictate to progressives, revolutionaries or the Communist Party of Kenya on how we should organise for the total liberation of this country. But we understand him.

There are many others who have come before him. People who are not progressive, but want to maintain the veneer of progressiveness. These are capitalist wolves in progressive sheepskin. 

Benedict Wachira is the secretary general, Communist Party of Kenya

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