In Kenya last month there was an intense debate over a newly appointed Chief Justice, Dr Willy Mutunga, and his Deputy, Ms Nancy Baraza. Christian groups raised the alarm, including the Catholic bishops’ conference which made a statement signed by all the bishops, questioning the moral integrity of the two appointees, particularly their moral values and family principles.
Here is the background: according to the new constitution approved by referendum last year, a judicial commission was to present nominees for these two posts to the president for approval and forwarded to parliament. The president has given his approval; parliament still has to give its go-ahead so the furore has died down for the moment.
Dr Mutunga is co-founder of the Kenya Human Rights Commission, which receives funding from a German aid agency to foster gay rights and get acceptance for sexual orientation. The Commission also supports liberal moral views on the right to life. In an article he authored in 2003, Mutunga wrote: “I think the influence of religion in this country is very harmful.
They don’t allow proper sex education in school; they don’t allow condoms in a country with HIV/AIDS. That kind of rubbish makes me very mad.” In 2006, he facilitated the registration of the Kenya Gay and Lesbian Trust. In 2007 he attended a conference in Naivasha, Kenya, whose focus was on abortion, sexual violence, commercial sex work and the rights of sexual minorities. One source of funding was the Ford Foundation’s regional office, where Dr Mutunga is the chief executive. (The Ford Foundation is known for its heavy funding of abortion and liberal sex education groups).
He has changed his religious beliefs several times and is now in divorce proceedings in relation to his second marriage.
s Baraza also attended the Naivasha conference. It is known that she, like Dr Mutunga, supports “judicial activism”, which is legislation from the Bench, and is doing her Ph.D thesis on gay rights. She was head of an international organization of women lawyers called FIDA (Kenya). FIDA has made positive approaches regarding women’s rights, but has taken its stand in favour of abortion legislation and expansion, is funded by the Centre for Reproductive Rights and is campaigning to liberalize the legal status of marriage.
Christians are justified in expressing their concern since the new constitution requires all judges to be “of high moral character, integrity and impartiality”, a standard that includes every aspect of a person’s life. Also, some lawyers argue that a proper interpretation of the constitution must take into account what Kenyans understood to be the meaning of the document when they voted.
The clauses on the question of abortion and gay “rights” were left such that both can be permitted, -although at a superficial reading they appeared forbidden-, depending on the judicial philosophy and interpretation of the holders of the posts of chief justice and deputy.
So, what is happening? Why has there been so little reaction to the new appointees apart from that of Christian leaders? Are Kenyans softening? Are they losing their “Africanness”, if this is to be typified, among other things, by opposition to gay rights and abortion? Why do they seem so different to their neighbours, the Ugandans who so vociferously detest homosexuality, and who were internationally condemned when an anti-gay bill was tabled in parliament?
The fact is that culturally they are similar, but Kenya, especially the capital Nairobi, is much more Westernised than Uganda and its capital, Kampala. Nairobi hosts the world headquarters of UNEP (United Nations Environment Programme), has good communications, is more cosmopolitan, more secular, more disciplined and better organized by Western standards, more open to outside cultural influence and less “African”.
For example, the birth rate in educated, middle-class families has been declining for several years, whereas Uganda still has one of the highest birth-rates in the world despite the growth in prosperity of the past two decades.
For the 50 years since Independence Kenya has been generally very peaceful, made impressive strides in education and sent thousands of Kenyans abroad for studies, many of whom have returned with liberal ideas; add to that an aggressively anti-Catholic, liberal media, political leaders without ethics or principles, and you have the makings of a cultural and social transformation, which the country is currently experiencing.
Kenyans were grossly deceived during the run-up to their constitutional referendum last year. Their political leaders told them (and too many Kenyans do as their leaders tell them; few work out such issues independently) that, admittedly, it was not a perfect constitution and the anomalies could be ironed out in parliament later; that they should vote in favour for the sake of national unity and to build the “new Kenya”; and that we should get rid of the old constitution which went back to colonial times. Besides, there were insufficient personnel and too little time to educate the population on the constitution’s contents and implications. Kenyans trust their leaders will look after their interests, especially their material and social development, then complain when they don’t. In ethical matters their attitude is one of “Let’s wait and see what happens!” Ugandans are more pro-active especially where cultural matters are at risk.
Now Kenyans are being deceived again, and most will barely utter a whimper if and when the new chief justice and his deputy are ratified by parliament, and even if and when gay rights and unions are approved, except the Catholic Church and some Protestant groups.
In Uganda the gay debate was spear-headed by the Pentecostal churches, who took it to the university campuses and other forums with great success; other churches and the Islamic community supported the bill too, except its more severe penalties; the educated openly approved it. Only some more liberal media half-heartedly and very cautiously opposed it. Political leaders did not need to say anything; in this the people had spoken. Uganda is more traditionally African and respects much of its age-old culture – and abortion and homosexuality are not part of it.
Kenya, on the other hand, stands to lose its good African values, and within ten to fifteen years could be facing many of the social, moral problems of modern Western society. I just hope I shall be proved wrong.
Martyn Drakard is Spero correspondent in Africa.
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