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Kenya’s Constitutional Transition: The Challenge Of University, State, Society Relations

A Public Lecture Delivered at Taifa Hall, University Of Nairobi, on August 21, 2012, as Part of the Judicial Marches Week

By The Hon. Dr. Willy Mutunga, D. Jur, S.C., E.G.H.,

Chief Justice/ President, Supreme Court Of Kenya


Hon. Dr. Justice Willy Mutunga

HON. DR. WILLY MUTUNGA

 

The Vice Chancellor of the University of Nairobi, Prof George Magoha,

Distinguished professors and academics,

Justices of the Supreme Court, Court of Appeal, High Court,

Students,

Colleagues, fellow citizens and friends,

Ladies and gentlemen:

Thank you for your warm welcome. I feel greatly honoured to be back at the University of Nairobi, and at Taifa Hall — a place with a rich history for intellectual debate.

It is difficult to forget the debates of the Historical Association of Kenya on the reinterpretation of the role of Mau Mau in the liberation of Kenya; the Nairobi Debate in the Department of English on the place of language in the post-colonial State; the Kenya Debate, in the Department of Political Science, grappling with the question of indigenous capital accumulation vis-a-vis the State and international capital; the robust debate at the Institute for Development Studies on Sessional Paper No 10 on African Socialism and its Application to Planning, which sought to interrogate and settle the ideological choices of a new Republic.

The Free Traveling Theatre incubated the culture of revolutionary theatre and culture; and the Faculty of Law debated how law was to be researched, taught and practised. It was a debate at once ideological and political, as recorded in the book, Teaching Law in the Faculty of Law, edited by Kibwana, Nderitu and Rukwaro. This was a university in its natural and normal state trying to give intellectual leadership on the key issues of the day, and responsibly interrogating received wisdom.

It is for this reason that I have decided to give this public lecture here today. This is part of a public engagement programme we have launched in the Judiciary to explain how we work, and to receive feedback on how we can make our work better. We are able to do this because the Constitution not only enables us to, but also because it requires it. The Constitution has radically recreated the Kenyan Republic. Few have internalised this reality and, even many more, have yet to make the necessary mental shift that this is a new order. Vestiges of the old republic are actively resisting the new Constitution. Having been socialized in and benefitted from a retrogressive culture, they lack the skill, appetite and inclination to live and thrive in this new environment. It is terra incognita for a political class not used to accountability, and bureaucratic elite accustomed to patronage and insularity.

The remaking of the Kenyan state and society, that the new Constitution has engendered, requires a new approach and culture to power and authority. The Constitution has reset the power relations between the State and the society in favour of the latter. In Article 1, it has made an unambiguous declaration that sovereign power reposes in the people.

As we approach the second anniversary of the promulgation of the Constitution, I wish to pay tribute to the role that this university and its intellectuals – as well as other universities — played in creating the present moment.

Slightly over 30 years ago, my teaching career at this university came to an abrupt and unceremonious end. I was arrested and subsequently charged with possession of a seditious document. The document in question would be read in court for two months before the State gave up on pursuing a trial and instead sent me into political detention – without trial — for 16 months. My return to teaching thereafter was made conditional upon me issuing an apology to then President Daniel arap Moi, which I was — and still am — unable to give.

Teaching at the university, as I remember it, was extremely difficult. You could not read what you wanted to read. And you could not teach what you wanted to teach. We had Special Branch officers posing as students. We had lecturers who were State agents. I am glad that there are many police and intelligence officers who are now legitimately pursuing courses in our universities, rather than eavesdropping on lectures in order to write not-too-intelligent ‘intelligence’ reports. The political persecution of thought was vile and vicious. Thinking, in this environment, was a very risky enterprise. This is what drove many intellectuals to become activists. For the questions would linger: what is a university without freedom — freedom to think — freedom to read and to seek ideas — freedom to speak and to debate?

Concerns such as these forcefully thrust the academic community – lecturers and students alike — to the forefront of the quest for academic freedom, freedom of assembly, and freedom of the press. Spaces for self expression had been closing since independence, and because of its privileged and respected reputation as a hearth for new ideas, the university became a natural centre for dissent. This was the incubator for the Constitution. Indeed, when the universities were finally silenced between 1982 and 1992, Kenya slid down the slippery rope of dictatorship, and debate in public spaces almost ended. I suspect that the universities in Kenya and the intellectuals in them never quite recovered from the traumatic crackdown on dissent in the 1980s and 1990s.

For the past 20 years, the universities have been bystanders as the country has engaged in a vigorous debate on constitution-making. The rich debates of the 1960s and 1970s that I mentioned at the beginning of this lecture disappeared. The IDS Discussion Papers on developmental issues evaporated.

Notwithstanding the interregnum, there is a new Constitution. And it is not just part of the universities’ past. It defines their present and their future. The Constitution, in Article 11, recognises culture as the foundation of the nation, and the cumulative civilisation of the Kenyan people. It requires the State to promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage. The State must recognise the role of science and indigenous technologies in the development of the nation, and promote the intellectual property rights of the people of Kenya.

Besides this special consideration, which the Constitution gives to the enterprise of producing knowledge and trafficking in it, universities have another role as crucibles for moulding a responsible citizenry and leadership for the country.

I am throwing down this challenge because universities have not been able to reclaim their true heritage as sites for the contestation of ideas and thoughts.

It is, for instance, difficult to recall the voice that the faculties of law, or the departments of political science made in the debate on presidential and parliamentary systems of government or devolution. I know Prof Chrispin Odhiambo-Mbai, then Chairman of the Department of Political Science, lost his life while serving as the chairman of the Devolution Committee at the Bomas Constitutional Conference. But his participation there was out of individual drive rather than institutional effort. There are many others who have made similar private interventions.

Even now, it is very surprising that as debate rages on what should constitute our laws on integrity and leadership, those who study ethics, philosophy, law and political science have not yet organised a forum to discuss these issues. Academics must remember that peasants disposed of their property, sold their cows and land to fund their education so that they can provide leadership in thought. We have taken leave of our historical mission, completely bewildered and displaced by notions of popular participation. Indeed, when we attain our professorial status, we are all too keen to be anointed as ‘elders’ by our fellow villagers, instead of giving inaugural addresses before our peers!

The question that goes begging is, how do we enrich the country’s jurisprudence, or even policy outlook, if the people who have been commanded to think and paid to think, are reluctant to think?

The rise of neo-liberalism in the second half of 1980s saw the intellectual surrender of our academics to the orthodoxy of the World Bank. We forgot that the “Chicago School”, which was the incubator of this World Bank ideology, was just another university. Ngugi wa Thiong’o attempted, in his book, Moving the Centre, to find a new ideological positioning following the collapse of the Soviet Union. I hardly heard a squeak from the departments of Economics, Institute for Development Studies or Political Science in challenging this orthodoxy with cogent and clear proposals, even as the effect of Structural Adjustment Programmes led to an exponential rise in poverty levels in this country. I never heard any robust reposte to Francis Fukuyama’s End of History and the Last Man. May be the trauma from the legacies of the 1980s still lingered, but it is time to reclaim territory.

We have privatised research through consultancies to the point of intellectual surrender, with the consequence that our body of knowledge remains thin and our broad understanding of society is inadequate. Kenya’s development, politics, and jurisprudence pay a heavy price for these epistemological gaps. This point speaks to another critical issue: financing of university education. Unfortunately, State funding for university education, particularly for this university, has declined considerably. A sustainable production of knowledge in the manner that I describe here requires a secure funding base. The budget deficits have seen the rapid commercialisation of university education, with costly consequences. We are risking a university education policy that is revenue rather than knowledge driven. The State needs to restock even as the university explores more imaginative models of raising finance, but which do not compromise on quality. The State can no longer shirk its responsibility to fund research and education because the Constitution requires it to invest in the social sector. On the other hand, if Kenya’s indigenous capital was more enlightened, they would have seen the sense in investing in the production of knowledge, both for self interest and for public good.

I note that the space we are using today is part of the famed Gandhi Wing, constructed with funds from social justice philanthropists and private entrepreneurs. It is many years since any individual or organisation came forward to fund the construction of a public university hall or other facility. Though several firms and individuals have endowed annual awards for top students, the business sector has not been sufficiently enlightened to forge partnerships with universities that enable them to create wealth and grow knowledge. I would like to challenge individuals and organisations to make endowments for scholarships and chairs for the study of specialisations at the university not only to secure the future of the academy, but also to demonstrate that their accumulation was not of a primitive character.

The university needs to forcefully reinsert itself in the world of theory building and the pursuit of knowledge. Kenya’s new constitutional moment presents an opportunity to chart new directions. The Judiciary will be a willing partner and beneficiary of the stock of knowledge that this great institution will generate.

I would now like to address myself to the students who are gathered here today, and the young generation in this country who may be watching. It was Frantz Fanon who said that every generation must discover its mission, fulfil it or betray it. My generation has done its bit in delivering a new constitutional dispensation. It is now the duty of the next generation to nurture this Constitution and bring it to life.

Youth is the time of hopes and dreams. In our times, students were the conscience of the nation. This conscience has since been corroded and student politics, sadly, just as our national politics, is driven by ethnic calculations and loyalties. It is bereft of any clear ideological content, and fuelled by considerations of personal benefit and private gain. I invite all of you to think back to the crisis in 2007 and 2008, and how confusing it must have been for you. The wages of sectarianism is violence and conflict. That is why I urge young people to shun violence and to embrace this Constitution in order to reap all that it promises. The rule of law means that no one is above the law – whether it is the government, private corporations or individual citizens.

Student leadership, particularly, SONU, played a big role in opening up the democratic space in this country. There was progressive leadership on the one hand, and a divisive, thieving and opportunistic one on the other. In most cases, the institution played a pivotal role by either denting the progressives through oppression, supported by the State or corrupting the leadership through goodies, promises of jobs and status – and creating a student leadership in the image of the corrupt elite. My message to you students is that you must be the change the Constitution decrees you to be. And to the university leadership, I remind you, like all of us State officers, that we must uphold the values of the Constitution and nurture student leadership that abides by those values. The university used to expel students and faculty members because they agitated for transformation within the university and in the country. Bread and butter are important, but they fit into wider issues that affect the whole society. That is why many of us are nostalgic about the staff and student unions that were part of the struggles of a new Kenya. And for good measure, there is evidence in the wider Kenyan society that this was an important training ground for national leadership. Now it is time to glorify such agitation and implement the Constitution within the university and the country. The university is not an island away from the freedoms and values the Constitution proclaims.

The constitutional guarantees for equality have shattered the cultural and traditional barriers on the participation of young people, women, the disabled and other previously marginalised groups in the country’s public affairs. Specific seats have been secured for young people in the National Assembly, the Senate and the County Assemblies. More should follow as the implementation of the Constitution gathers pace.

The standards for public leadership are very high and are now greatly contested – but that is probably because Kenya is trying to recast individuals who are already set in their character and orientation. Kenya has opened a door for a fresh breed of leaders who may not have had the opportunity to make the mistakes of their elders. The country is searching for a new citizenship and a new leadership that respects the rule of law, is tolerant of difference, encourages the full participation of hitherto marginalised groups in public affairs, and eschews the manipulation of ethnic divisions.

The architecture of government places great emphasis on equity in the distribution of resources, and devolution. The forced migration of people from the fringes to the centre, out of a desperate search for labour and other economic opportunities, has robbed many regions of intellectual, human and economic capital. It no longer has to continue. The expansion of universities does not have to follow the metropolis. The university is the metropolis.

The Constitution lists sustainable development as one of the national values to guarantee intergenerational equity. Resources must be used in a manner that benefits the present generation, as well as generations to come. Article 201 (c), on Public Finance, requires that ‘the burdens and benefit of the use of resources and public borrowing shall be shared equitably between present and future generations’.

Finally, the guarantee of socio-economic rights expands opportunities for young people and protects their health and economic needs. The inclusion of socio-economic rights in the Constitution is revolutionary as it moves education, housing and health from the territory of privileges to the column of rights accruing to every citizen. That is why it is in your interests to respect, uphold and defend this Constitution. This is revolutionary. It is the manifestation of the socio-democratic character of our Constitution – a constitution alive to the fact that the excesses of the market need to be tamed by a Bill of Rights. What the original civil and political rights sought to do to excess political power is what the socio-economic Bill of Rights seeks to do to the excesses of the market. And as with the politico-civil rights, there will always be contestation.

As we implement the Constitution, we expect that numerous times, many of these issues will come to the Judiciary for adjudication. The Constitution establishes the Supreme Court, which has a responsibility to develop a robust, indigenous, patriotic and progressive jurisprudence. We are keen to turn the Judiciary into a learning and knowledge-based institution. Indeed, during the inauguration of the Supreme Court, I stated that the Court would establish a vibrant relationship with the academy as a necessary step in the enrichment of the jurisprudence that will be emerging from it. Through the use of expert witnesses and amici curiae, the Court is already nurturing a productive intellectual relationship with the academy.

The Judiciary Training Institute, which is the nerve centre of our learning activities, is working to establish contact with universities and other institutions of higher learning. It co-ordinates the Judiciary’s academic networks and the training programmes run in conjunction with scholars and other jurisdictions. Training is important to equip the Judiciary to breathe life into our Constitution. The jurisprudence that the courts produce cannot be entirely dependent on law. It must emanate from multi-disciplinary approaches, sources and expertise. Thus, experts in economics, science, politics, the arts, information technology and other disciplines will train judicial officers to give them a global outlook. It is for this reason that the Supreme Court has decided to employ Law Clerks that have qualifications from other disciplines. Indeed, learnedness that is discipline-singular is a contradiction of terms.

We are keen to create this intersection between justice and knowledge, and invite the community of scholars to rise up this challenge. There is need for a robust partnership between the Judiciary and scholars – as commentators, critics and experts. The judgments the courts make need to be subjected to critique. I also see great opportunities for collaboration on research and publication on the Constitution and the laws issuing from it. It is the only way we can take full advantage of the knowledge that is our collective wisdom.

Friends, I have contemplated life when my term as Chief Justice ends. I have given thought to making a return to this university to teach. I would like to come back to a university that is a ferment of ideological contestation, not an institution that still finds pleasure in victimising students and faculty for expressing divergent opinions on academic and national issues. I would like to come back to a university that is intellectually active – one where when I walk along its faculty corridors, I can see numerous notices of seminars on notice boards rather than those of car boot sales of vegetables! You may choose to be conservative or progressive — but for heaven’s sake let us have an ideological orientation. The university is not just a fountain of knowledge but also a spring for progressive politics. In order to live up to the commands of the Constitution, we need to go back recognising the role of the university in democratic development.

The stated Mission of this university is to seek to ‘embody the aspirations of the Kenyan people and the global community’. I hope that the university is conscious of the fact that the aspirations of the Kenyan people are codified in the Constitution. These are the aspirations you must protect. You must speak out when they are under threat. And you must assist in the pursuit of their realisation.

Thank you!

Dr Willy Mutunga, D. Jur, S.C., E.G.H.

Chief Justice/ President, Supreme Court of Kenya

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