Congratulations are in order for Dr. Willy Munywoki Mutunga and Nancy Baraza on their appointment as Chief Justice and Deputy Chief Justice (of the Republic of Kenya) respectively. This post may be a little too late since a lot has been said about the vetting of the Chief Justice and Deputy Chief Justice and the issues that emerged therein.
One of the emerging issues, that proved to be a thorn in the flesh of many, especially the mainstream religious organizations and the conservatives was the issue of the sexuality of the two candidates. Dr. Willy Mutunga wears an ear stud and many people have questioned his moral standing and sexuality because of the stud. He is also going through his second divorce and many have said that he lacks the moral authority to be the head of the judiciary. Nancy Baraza on the other side, is writing a thesis about the rights of homosexuals in East Africa. This has led many question and speculate about her sexuality. Being her divorcee did not make it any easier for her.
Well, as a legal practitioner and one on the down low, I do not have issues with one being gay or lesbian and that person being the head of the Judiciary. I am sympathetic to the rights of the sexual minorities, as a result of circumstances, but I do not take to the streets and shout about it. The issue of concern here is, whether the recently appointed head of the Judiciary will be upto to task. In my considered opinion, I think they are upto task. I will be keen to see how jurisprudence will be shaped with them at the helm of the Judiciary. Someone told me that courts will soon make rulings as to the unconstitutionality of sections 162, 163, 165 of the Penal Act (Code) now that we have Dr. Willy Mutunga and Nancy Baraza as the Chief Justice and Deputy Chief Justice respectively. If that will happen, it is only a matter of time. I am however convinced that such a ruling is way overdue especially on section 165 of the Penal Act (Code) which simply outlaws any sexual activity or intercourse between two males (same sex activity) whether in public or in private. The Bill of Rights in the Constitution of Kenya, under Article 31 provides inter alia that;
Every person has the right to privacy, which includes the right not to have-
- their person, home or property searched;
- their possessions seized;
- information relating to their family or private affairs unnecessarily required or revealed; or
- the privacy of their communications infringed.
In view of the above, section 165 of the Penal Act (Code) is thus rendered obsolete and therefore not Constitutional. It would be difficult to prove if two men had sex in private. Anyway, that is enough digression.
Let us see what Mutunga and Baraza will do for the people of Kenya who have for a long time suffered due to the culture of impunity, corruption and inefficiency of the Judiciary