NAIROBI, Kenya, May 26, 2011 ( – Kenyans these days are involved in a media-made and trivialized controversy: the nomination of a new Chief Justice and Deputy, as required by the new constitution. The trivia is the left ear-stud of the appointee Chief Justice, Dr Willy Mutunga.

The real issue goes much deeper, and the Catholic bishops’ conference and other Christian groups have raised the alarm, because of the stand of both appointees on gay rights and abortion. From a statement signed by all Kenya’s bishops, Cardinal John Njue voiced their concern over the moral values and family principles of the two appointed, who still have to be approved by parliament.


Of Dr. Mutunga’s reform credentials there is no question. He has been actively engaged in the political reform movement for the past two decades; he was also a leader in the Citizens Coalition for Constitutional Change. However, he was also executive director of the Kenya Human Rights Commission (KHRC), which he co-founded in 1993. The KHRC is a recipient of 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.

On 4th November, 2003, in an on-line article entitled: “Are Africa’s taboos making gay people hide?” Mutunga is reported as stating, “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 the same article he speaks too of “the intolerance spread by organized religion.”

By a trust deed, dated 31st October 2006, he facilitated the registration of Kenya Gay and Lesbian (KEGALE) Trust, whose objectives include: “To engage in activism for the abolition of legal and extra-legal forms of discrimination encountered by same gender loving people… (and to) work towards the inclusion of Gay and Lesbian people in all forms of society especially politics, and all forms of social policy formulation.”

In June 2007 Mutunga attended a conference in Naivasha, Kenya, funded by overseas sources whose goal was to “explore how sexual rights can be incorporated into the human rights advocacy discourse and even highlighted as rights that continue to be denied to certain individuals. The focus was on abortion, sexual violence, commercial sex work and the rights of sexual minorities.”

One source of funding for the conference was the Ford Foundation’s regional Office for Eastern Africa, where Dr Mutunga was working in programmes, and is now its official representative. The appointee Deputy Chief Justice, Ms Nancy Baraza, attended the same conference.

Among the groups funded substantially funded by Ford Foundation internationally are: IPPF, the largest abortion provider world-wide; International Women’s Health Coalition, which works to establish universal abortion on demand for women and girls; Population Communications International, which pushes population control messages into popular culture around the world;  Sexuality Information and Education Council of the United States (SIECUS), a leading advocate of liberal sex education in the United States; Catholics for Choice, etc.

The Naivasha conference produced a report called “Sex Matters”. The introduction indicates the work of Urgent Action Fund – Africa in collaboration with the Ford Foundation’s Regional Office for Eastern Africa in pushing the lesbian, gay, bisexual, transgender and intersex (LGBTI) rights movement in East Africa. A representative from Urgent Action Fund explains their work on LGBTI rights, sex workers, population control and their collaboration with the KHRC.

Numerous other presentations were made and published, pushing for liberal sexual morality, free sexuality for youth, the legalization of prostitution, expanding abortions and legalizing them, permitting homosexual lifestyles, etc.

As regards the appointee Deputy, Ms Baraza, it is known that she supports “judicial activism”, which is a term given to the changing of laws from the bench. She is doing her Ph.D on gay rights. She was previous head of FIDA (Kenya), an international organization of women lawyers. FIDA has made several positive approaches and achievements in the area of women’s rights and fighting against discrimination against women. However, it has also taken its stand in favour of abortion legislation and expansion, is funded by the Centre for Reproductive Rights  and is influential in campaigning to liberalise the legal status of marriage.

Dr Mutunga’s ear stud is rather irrelevant in this whole context. Dr Mutunga’s says he is neither gay nor homophobic. Having moved through Catholicism, Protestantism and Islam, he says his ancestors instructed him in 2003 to wear it as a connection to them so that they can protect him. He is the father of four children from his first wife and is now engaged in divorce proceedings in relation to his second marriage.

The Catholic bishops and other groups expressing alarm about the nominations emphasize that the new constitution requires all judges to be of “high moral character, integrity and impartiality”.

They also question the manner in which the Judicial Service Commission selected the names, only one nomination for each position, out of a total of sixteen for the two positions, thus abrogating the Kenyan President’s constitutional duty to nominate by making a choice between qualified candidates.

With a liberal constitution and two apparent liberals heading the judiciary and almost certain to engage in judicial activism, the critics fear Kenya is headed in a very dangerous direction.