BY GEORGE KEGORO, timisiano@yahoo.com

Willy Mutunga, who is one of two applicants from outside the Judiciary in the race for the position of Chief Justice, had a distinguished career as a law lecturer at the University of Nairobi. From the public viewpoint, an assessment of his candidature would weigh his intellectual standing as a respected legal scholar against his image as a radical who could easily upset the political apple-cart.

As one of the youngest lecturers, Dr Mutunga had a good following among the student community for whom he was a mentor. While at the university he was elected secretary general of the Universities Staff Union (not to be confused with the University Academic Staff Union (Uasu). The latter was formed to represent the interests of the teaching staff only, while the former had acted for all the staff of the university, both teaching and non-teaching. When Moi came to power in 1978, he released the political detainees incarcerated by Jomo Kenyatta, including Ngugi wa Thiong'o, Martin Shikuku and Adam Mathenge. The Universities Staff Union then started advocating for the reinstatement of Prof Ngugi to his university job.

In June 1982, two months before the attempted coup, rather than reinstate Ngugi, Moi banned the union, rounded up its entire leadership and placed them in detention without trial. This was the first batch of detainees under the Moi regime. Those detained included Mutunga, Edward Oyugi, Maina wa Kinyatti, Kamonji Wachira, Al amin Mazrui and Mukaru Ng'ang'a.

Following the detention, the university dismissed Mutunga, bringing an end to his academic career. Upon his release, Mutunga set up private legal practice. It was during this period that he also embarked on further studies, earning a doctorate degree from Osgoode Hall Law School in Canada. He then ventured into the Law Society of Kenya, where he was elected to its council, eventually becoming the vice-chair in 1991, when Paul Muite was chair. Mutunga succeeded Muite in 1993, a position to which he was elected unopposed. At the time, the society had deep divisions reflecting those in the wider political society.

Notwithstanding the society's challenges, Mutunga put together what was to become an influential constitution reform programme at the society. With a team of young lawyers, including Maina Kiai, he put together a project for constitutional reforms with funding from Ford Foundation. Teaming up with the Kenyan chapter of the International Commission of Jurists and the National Council of Churches of Kenya, the project wrote the first ever draft new constitution of Kenya, as a way of demonstrating that constitutional reforms, then resisted by the Moi government, were possible. The project translated into several local languages a simple booklet outlining the governance demands for the country under the title, "The Kenya WeWant?' The booklet contained a simplified version of the draft constitution.

Later, the programme was transformed into a movement, the Citizens Coalition for Constitutional Change (4Cs), whose secretariat became the coordination point for the various constitutional reform forces. The secretariat still exists. Another offshoot of the Mutunga constitutional reform programme was the National Convention Executive Council (NCEC), which brought together leading actors in the constitutional reform movement, including Gibson Kamau Kuria, Kivutha Kibwana, Pheroze Nowrojee, Timothy Njoya, and Davinder Lamba.

Mutunga was a co-convener of NCEC. The NCEC developed proposals for reforms that it considered necessary to provide a level playing field and enable the country to consider a comprehensive review of the constitution, by then an accepted possibility by the government.

By 1997 the demand for constitutional reforms was irresistible. The opposition threatened to boycott the elections if there were no constitutional reforms. Kanu acceded to the demand for minimum reforms before the elections under the Inter-Parliamentary Parties Group (IPPG) platform. The entire package of reforms agreed to by IPPG was those that the Mutunga-Ied initiatives had identified. Mutunga and Kiai, who had worked together at the law society, re-united in 1993 when they formed the Kenya Human Rights Commission (KHRC). The enormity ofthe KHRC in the history of Kenya has never been properly appreciated. This was a big step in the democratisation of the country: it was a legalisation of the space that had previously been occupied by the various underground movements in the country, and recognition of the legitimacy of the yester-year struggles which had invited heavy political reprisals.

If as a lecturer, Mutunga had been involved in activism which the government regarded as subversion, but which contributed to the improvement of the political situation in the country, on the resumption of multiparty politics he again played a pioneering role in the consolidation of the democracy, by leading in the establishment of a civil society movement that would monitor the democracy. In 1998, Mutunga was appointed the executive director of the Kenya Human Rights Commission and, in this capacity, served in the NGO coordination board. It is while he served on the board that he got the KHRC to be formally registered, normalising the recognition of an organisation that would previously have been regarded as a dissident movement.

While at the KHRC, Mutunga became the convener of the National Alliance for Change. This was a movement that brought together the various opposition forces to discuss a united front for the 2002 elections. It was based on a realisation that political miscalculations had been made in 1992 and 1997 which allowed Moi to easily win the elections. The alliance was to become the precursor to the National Rainbow Coalition (Narc). When Narc was formed, Mutunga declined an invitation to chair it, since he considered that his work was 'only to assist the opposition to organise, rather than joining them as an active politician.

Following the 2002 elections, which the coalition won, President Kibaki appointed Mutunga to the Council of the Jomo Kenyatta University of Technology. However, Mutunga declined the appointment, explaining that he did not consider himself qualified for the position and also that the President had not consulted him before making the appointment. In 2003, Mutunga joined the Ford Foundation as a programme officer, the first national to serve in this capacity in his own country in the history of the organisation.

Later, he was also appointed the regional representative for eastern Africa in the same organisation, a position he currently holds. Again, he is the first person to serve in that position in his own country. Mutunga has written several books including Constitution Making Through the Middle, which he wrote while at the Kenya Human Rights Commission. Mutunga served as one of the judges in the mock trials established to inquire into project wrote the first ever draft new constitution of Kenya, as a way of demonstrating that constitutional reforms, then resisted by the Moi government, were possible. The project translated into several local languages a simple booklet outlining the governance demands for the country under the title, "The Kenya We Want?' The booklet contained a simplified version of the draft constitution.

Later, the programme was transformed into a movement, the Citizens Coalition for Constitutional Change (4Cs), whose secretariat became the coordination point for the various constitutional reform forces. The secretariat still exists. Another offshoot of the Mutunga constitutional reform programme was the National Convention Executive Council (NCEC), which brought together leading actors in the constitutional reform movement, including Gibson Kamau Kuria, Kivutha Kibwana, Pheroze Nowrojee, Timothy Njoya, and Davinder Lamba. Mutunga was a co-convener of NCEC. The NCEC developed proposals for reforms that it considered necessary to provide a level playing field and enable the country to consider a comprehensive review of the constitution, by then an accepted possibility by the government.

By 1997 the demand for constitutional reforms was irresistible. The opposition threatened to boycott the elections if there were no constitutional reforms. Kanu acceded to the demand for minimum reforms before the elections under the Inter-Parliamentary Parties Group (IPPG) platform. The entire package of reforms agreed to by IPPG was those that the Mutunga-led initiatives had identified. Mutunga and Kiai, who had worked together at the law society, re-united in 1993 when they formed the Kenya Human Rights Commission (KHRC). The enormity of the KHRC in the history of Kenya has never been properly appreciated. This was a big step in the democratisation of the country: it was a legalisation of the space that had previously been occupied by the various underground movements in the country, and recognition of the legitimacy of the yester-year struggles which had invited heavy political reprisals.

If as a lecturer, Mutunga had been involved in activism which the government regarded as subversion, but which contributed to the improvement of the political situation in the country, on the resumption of multiparty politics he again played a pioneering role in the consolidation of the democracy, by leading in the establishment of a civil society movement that would monitor the democracy. In 1998, Mutunga was appointed the executive director of the Kenya Human Rights Commission and, in this capacity, served in the NGO coordination board. It is while he served on the board that he got the KHRC to be formally registered, normalising the recognition of an organisation that would previously have been regarded as a dissident movement.

While at the KHRC, Mutunga became the convener of the National Alliance for Change. This was a movement that brought together the various opposition forces to discuss a united front for the 2002 elections. It was based on a realisation that political miscalculations had been made in 1992 and 1997 which allowed Moi to easily win the elections. The alliance was to become the precursor to the National Rainbow Coalition (Narc). When Narc was formed, Mutunga declined an invitation to chair it, since he considered that his work was 'only to assist the opposition to organise, rather than joining them as an active politician. Following the 2002 elections, which the coalition won, President Kibaki appointed Mutunga to the Council of the Jomo Kenyatta University of Technology.

However, Mutunga declined the appointment, explaining that he did not consider himself qualified for the position and also that the President had not consulted him before making the appointment. In 2003, Mutunga joined the Ford Foundation as a programme officer, the first national to serve in this capacity in his own country in the history of the organisation. Later, he was also appointed the regional representative for eastern Africa in the same organisation, a position he currently holds. Again, he is the first person to serve in that position in his own country. Mutunga has written several books including Constitution Making Through the Middle, which he wrote while at the Kenya Human Rights Commission. Mutunga served as one of the judges in the mock trials established to inquire into institution as the Judiciary, which is not only rigidly hierarchical but attaches high premium to convention and "proper" appearance.

To this generation, the fact that Mutunga wears an earring would be a commentary on his suitability for the highest law office in the land. While his supporters would defend this as a reflection of his independent personality, critics would without doubt use this against him. Either way, he would not be universally a popular choice.

On the question of his lack of judicial experience, it is necessary to look at previous practice in relation to the appointment of Chief Justice. In 1968, President Kenyatta dismissed Chief Justice Denis Farrell after he had acquitted his political nemesis, Bildad Kaggia, of a criminal charge, a decision that the president did not agree with. Kenyatta then appointed the Solicitor General, Maluld Kitili Mwendwa, as Chief Justice. Other than having had no previous judicial experience, Mwendwa was the first indigenous Kenyan to assume this high office. Justice Mwendwa made little contribution as a judge partly because he served for only a short period. In 1971, Justice Mwendwa was implicated in a coup attempt that was led by a section of the army. He was forced to resign his office.

Another outsider appointed as Chief Justice was Justice Zaccheus Chesoni, who replaced Chief Justice Majid Cockar. Strictly speaking, Justice Chesoni had had previous experience having served as a judge of the High Court for 16 years, but had then left the Judiciary after he encountered personal financial problems. He had been out of the Judiciary for seven years when he was returned in 1997 as Chief Justice. During his time out of the Judiciary, he had a highly contentious tenure as chairman of the Electoral Commission of Kenya (ECK), from which he was appointed Chief Justice. The immediate reaction by the senior Judiciary, which expected that one of them would be promoted to Chief Justice in the place of Justice Cockar, was one of shock and disbelief. As Justice Cockar's retirement approached, the Law Society of Kenya had stated in preference for an African Chief Justice, a wish that Moi fulfilled by appointing Justice Chesoni.

However, because of his controversial tenure at the ECK, the society rejected the appointment, and expressed its deep disappointment with the choice of ChiefJustice. In response to this, during a farewell party for Justice Cockar, Justice A.B. Shah, then a judge of appeal and one of the hopefuls to replace Justice Cockar, chided the chairman of the Law Society thus: "But you wanted an African?" Notwithstanding the initial rejection, Justice Chesoni settled well in his new role as Chief Justice. There are no known internal problems that he faced as Chief Justice which are attributable to his position as an outsider. AB Chief Justice, he faced external disapproval, partly attributable to his legacy in the ECK and partly because, rather like Justice Gicheru after him, he had no time for stakeholders such as the Law Society.

The last outsider to be appointed Chief Justice was the Director of Public Prosecutions, Bernard Chunga, who replaced Justice Chesoni in 1999. Again, the appointment of Chung a was unexpected, and was received with disbelief by the senior Judiciary. During his tenure. Justice Chunga had a poor relationship with individual members of the senior Judiciary. However. this was largely because of his abrasive style. His efficient handling of the external relations of the Judiciary won him much approval. and the Law Society, for example, had few problems with him. It was his alleged association with the Nyayo House torture project which led to his removal as Chief Justice when Narc came to power in 2003.

A self-effacing person. Mutunga has. on several occasions. stepped aside and allowed others to take the glory. even where he was entitled to hog the limelight. He has made a significant contribution to the democratisation of the country and to the process of making it safe for all to live in Kenya. This. however. is not to say that he is necessarily a suitable candidate for Chief Justice, a decision that must be based on a balance between personal virtues and the objective needs of the country. as will be determined by the Judicial Service Commission.