Thursday 16 June 2011

Editorial: Sexuality pervading discussions about judges

Judging judges

Sometimes I wonder why people are so quick to judge on the matter of sexuality and its expression. It is a topic I have written about extensively and most notably is the one I wrote in 2006 titled, Somehow, strange sexualities excite Africans [1] which has been one of my most read blogs as well as the most referenced from search engines when sexuality and Africa appear in the search phrase.

The matter of judging, judges, judgment and justice and sexuality becomes even more interesting in a number of recent events.

Last year, Judge Vaughn R. Walker ruled Proposition 8 against gay marriage unconstitutional and one reviewer of the judgment [2 PDF file] felt that it was factual, well-reasoned and powerful [3].

It showed you could not underestimate the abilities and genius of a sound legal mind but the supporters of Proposition 8 were unhappy that this ruling was put in abeyance as it was being contested in a higher court.

Avoiding pernicious precedent

There was the minor issue that that Judge Walker is homosexual but they felt he should have recused himself because he was in a long-term same-sex relationship with the possibility of it culminating in gay marriage and thereby presenting a veneer of conflict of interest.

A judge in a higher court had Tuesday ruled that he had no legal obligation to exclude himself [4] from adjudicating the case with a rather staunch defence of the judge’s impartiality and integrity by saying, “It is not reasonable to presume that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceedings.”

In terms of Judge Walker not revealing his presumed vested interest, he goes on to say, If Walker had disclosed "intimate but irrelevant details of his personal life," he could have "set a pernicious precedent" for other judges by promoting disclosure of highly personal information, before being able to adjudicate on matters of life and society of which they are as citizens and human-beings are part of.

Defending the integrity of judges

In essence apart from defending the integrity of Judge Walker, it was a staunch defence of judges in general from vexatious and outrageous attacks on their impartiality and professionalism just because they might be affiliated to situations or causes that their decisions might impact even if their legal commentary is sound and unimpeachable.

Back on African soil, the spotlight is on Kenya where decisions are to made regarding the nominations of Chief Justice and Deputy Chief Justice.

Dr. Willy Mutunga is being considered for the top job; he has never been on the bench but is a distinguished academic and a respected activist in the promotion of law and justice in Kenya.

An opinion piece [5] appearing in the Business Daily Africa lauds his credentials suggesting that he meets and exceeds the requirements for the job and avers that his “experience spans significant milestones in Kenya’s democratisation” going on to list examples of his work.

Courting controversy

It would amount to tautology to stress his qualifications; his eligibility is unimpeachable however appearing for vetting [6] at a committee of the Kenyan parliament, the members of the Constitutional Implementation Oversight Committee (CIOC) seem to have been distracted and engaged in the subjective, sentimental, speculative and sensational.

Obviously, it is a matter of interest in Africa if a man wears an earring stud and especially a man of Dr. Mutunga’s standing which should not detract from his professional ability but can excite insinuations that associate such fashion with homosexual even though it has never been conclusively proven to be of that progeny.

He proves an enigmatic figure having been baptised a protestant, confirmed a catholic and then now a convert to Islam creating all the avenues for courting controversy and more.

Misreading human rights activism

At which point, one would wonder how the vetting for the two top offices of justice got embroiled in the fascination with the sexuality of the nominated principals whose jurisprudence credentials were primarily the reasons why they were put forward.

Ms. Nancy Baraza who ideally should be addressed as Dr. Nancy Baraza is known for her work in the defunct Constitution of Kenya Review Commission and the Kenya Law Review Commission. Besides she has fought for seemingly unpopular causes in Africa as adequate healthcare provision for gays and lesbians in Kenya.

However, those laudable human rights accolades lead to a bizarre set of exchanges that resulted in her saying, “I'm not a lesbian. If I were a lesbian, there are some very good friends of mine in this room (and) I would have dated them.

No-nonsense justice

Not sparing the blushes of the inquisitively voyeuristic committee, Dr. Mutunga also has a line that might have sent the prude scurrying back into their forsakenly atrocious holes, “My community, the Kamba, have a saying that 'When you go for circumcision, you go naked so I'm okay. I'm happy to answer these personal questions,’ I'm aware that we are in an era where leaders are being held accountable. I'm cool with that.

With these people Kenyan might well be ushering in a period of straight-talking, upright, confident and principled justices who are not going to apologise for their opinions, lifestyles, causes or activism – this probably is the kind of judiciary every African country needs, no not blind-sided by titillation and unprofitable distractions but given to entirely without reservation to the principles and cause of trusted and impartial justice based on sound application of the law and its credible precedents.


[1] Somehow, strange sexualities excite Africans

[2] Judge Walker’s Proposition 8 decision. [PDF file]

[3] Judge Walker's decision to overturn Prop 8 is factual, well-reasoned, and powerful. - By Dahlia Lithwick - Slate Magazine

[4] Gay jurist in Proposition 8 case had no legal obligation to remove himself, judge rules [Updated] -

[5] Business Daily Africa | Kenya needs Mutunga as Chief Justice

[6] | Kenya: Private Lives of CJ, Deputy Nominees Queried

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