Nairobi Star (Nairobi)
David Makali
1 June 2011
opinion
After all the bickering, the names of Dr Willy Mutunga and Nancy Baraza are destined to the National Assembly for approval before their formal appointment by the President as Chief Justice and deputy respectively.
The naysayers will have their day but the majority will have the way. The opponents of Kenya’s troubled transition to a functional democracy will have lost yet another battle to stop the reform train. Its part of the legacy of social transformation all over the world; history records that at every turn, there are always antitheses of every milestone that are either consumed by the tempest or eventually catch up with time.
But it is a pity, really, that the two nominees should take up their positions in the knowledge that their nomination was opposed by a significant section of this society – the church leadership – that has historically been associated with the reform movement.
A pity because after all these years of collaborating with the civil society in crusading for reforms, the church leadership should be the last to turn around to question the morality of one of its acclaimed leaders. At no time have civil society organisations questioned the morality of the clergy even when allegations of scandals are writ large. If they could hear, the Walls of Ufungamano House would tremble at the things being said now about Dr Mutunga, who as convenor of the crucial Citizens’ Coalition for Constitutional Change, spearheaded the reforms that are now finally coming to pass.
Moreover, it is odd for the Catholic church to challenge the nominations when one of its own – Bishop Antony Muheria -resigned from the Judicial Service Commission that interviewed the candidates citing pressure of responsibilities.
Perhaps the public would better understand their views if the religious leaders came out fully to pronounce their position on the morality of the current judiciary or President Kibaki’s earlier nominees as well. They should also tell us who they believe is more suitable and deserving of the position and if they applied and were interviewed for the job. They should also pass judgment on all public office holders and give us their rating of the executive and legislature.
Willy Mutunga must have felt a whiff of betrayal when he watched the Catholic bishops oppose his nomination during their press conference last week. What were they saying, really? That because he dons a stud, which in my view he hasn’t satisfactorily explained, he is not fit to be Chief Justice? It was the first time we were hearing of “radical reformism (as opposed to?) from the clergy, who we have believed all along to be interested in change.
The actions and omissions of the Church leadership over the past five years point to a deepening crisis. The church seems unable to find the voice of the populi, which should concern the hierarchies of the Pentecostal, Anglican and Catholic denominations.
Taken generally, the church has been groping in the wilderness since the exit of President Moi in 2002. The loyalist evangelical church leadership appears all the more orphaned by the absence of a father figure to rally around, while the mainstream Catholic, Anglican and Pentecostal denominations have lost influence because of their own folly – inability to provide sound and decisive leadership to their flocks and kowtowing to ethnic interests. It began with the 2005 referendum when they abandoned the flock to decide, intensified at the 2007 general election when the people decided to turn on each other, and worsened in the 2010 referendum when the flock abandoned the their leadership over the controversial position they took on the constitution.
It is time for the clergy to do some soul searching if they hope to redeem themselves and their place as the moral and spiritual compass for the highly politicised Kenyan society. Their stand on the nominees for Chief Justice and deputy does not help matters. It is against the grain again. Opinion polls show that the majority of the country is satisfied with the choices.
Their opposition, without offering clear reasons for their objection does not show the clergy to be transparent. Are they opposed to Dr Mutunga because he is a Muslim? Or if they have a problem with the nominees marital statuses, let them be candid about it. Obfuscation in philosophical and ideological terms isn’t good enough. But that is what can be gleaned from their statement that the judiciary needs to be led by people with a “judicial philosophy that reflects natural law, the Kenyan religious and African cultural values, including our universal respect for life, our recognition of the importance of family wellbeing and our appreciation of the role of religion in public and private life.”
The church will only regain its respectability as an arbiter in the political arena if it is seen to be impartial and consistent. The clergy cannot wake up one morning to lecture the country about morality and respect for the constitutional principles and keep quiet when the same are broken or other illegalities are committed. Where were they when President Kibaki flouted the constitution by unilaterally nominating Justice Alnashir Visram and Professor Githu Muigai? Strange that they should find offence where the President and Prime Minister have already agreed.
Makali is the director of the Media Institute.
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