Dr Willy Mutunga and Nancy Baraza yesterday ended speculation about their sexuality when they told MPs they are not gay. "Let me say it straight up, l am not gay. However, l want to add here that l do not discriminate against the gay society," was Mutunga's answer to a question from Cecily Mbarire, a member of the Constitution Implementation Oversight Committee. "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," Baraza said amid laughter from the committee.
The two are being vetted for the posts of Chief Justice and Deputy Chief Justice. They appeared before the committee yesterday to respond to the issues raised on Monday by the clergy and the public and to explain why they should be considered for the posts.
Keriako Tobiko, nominated to be the new Director of Public Prosecutions, also appeared before the CIOC and was hard pressed to respond to allegations about his performance, contributions to reform and his integrity.
Mutunga appeared first before the vetting committee and defended his ear stud saying it had nothing to do with his sexual orientation as alluded to by the clergy.
Mutunga was also questioned about his two failed marriages, his views of family values and abortion. "I want to invoke a Kamba saying that when you face a circumciser's knife, you must be naked, so today I lay my life bare," Mutunga said.
He confirmed that his law firm had facilitated the registration of the Gay and Lesbian Society of Kenya. "However, Principal 18 of the UN Charter for Lawyers clearly states that lawyers should not be identified with their clients' causes," he said. He said the public should accept that homosexuality was a reality and that even his own nephew had confessed to being gay.
Asked why he wore an ear stud, Mutunga said he fitted the description of an African who was "notoriously religious" as defined by Prof Muinde Mbithi. "I practised traditional religion until ten years when I was baptized as a Protestant and named William Mutunga. I was later confirmed a Catholic and named William Jacob, before becoming Muslim and named Wale Mohamed," he said. Asked by Trade minister Chirau Mwakwere to state under which religion he wore the stud, Mutunga replied, "All".
Budalangi MP Ababu Namwamba asked whether the stud was "a hotline realm to the Kamba spiritual world". Mutunga again quoted Prof Mbithi saying that a symbol belongs to religion which is a right protected under the new constitution.
Asked about his views on abortion and family values and how he would interpret the law accordingly, Mutunga said he would be guided by the law and the constitution. He said he would be a team player and not dictate the outcome of any application in the Supreme Court. "If anybody feels I am going to interpret the law to that, then let them not give me the job. I don't see any law that will allow giving divorce and allowing abortion on demand," he said in response to concerns raised by the clergy and voiced by Public Health minister Beth Mugo and nominated MP Millie Odhiambo.
He denied that he would interfere in his own divorce case with American wife Prof Beverle Lax and asked the public to keenly follow the matter if he was appointed.
Asked how he was going to deal with those judges who have vowed to sabotage him if he was appointed CJ, Mutunga said he envisioned a reformed judiciary and the "saboteurs" would be removed if proper vetting was done.
He said he would deal with corruption in the judiciary and allayed fears that he will use the CJ position to take revenge against those responsible for his detention.
He remembered the 2003 transition period when Cabinet minister Kiraitu Murungi told President Moi to keep off politics and said, "I stood up to protect Moi's rights to prove then that we did not fight for reforms only to violate the rights of others including Moi."
Baraza faced queries on her sexuality, education, her views on abortion, family values and links to the gay community in Kenya. "I don't think I have views on abortion outside the law. If you want to know Nancy Baraza and her value system, look at the new Constitution," she said.
Baraza said her PhD thesis on the rights of gays and lesbians in Kenya had been informed by her experiences during the now defunct Constitution of Kenya Review Commission, the Kenya Law Review Commission. Her research had established that health services were non-existent for gays. "Those who say I'm supporting them are jumping the gun. I have gone into the unknown. I have no findings yet," said Baraza.
She denied allegations made on Monday by Okoch Mondo from the Kenya Leadership Trust who claimed she was intolerant and alleged she had thrown him out of a meeting at the Golf Hotel in Kakamega.
Baraza, who is divorced and has two sons, defended her activist background. "Activism is an attribute and it has taken us far. What has been lacking in the Judiciary is a drop of activism," she added.