With parliament’s approval of nominees, DR Willy Mutunga and Nancy Barasa, as Kenya’s CJ and DCJ respectively, the clergy in Kenya has lost out yet again as far as its opinion on the key areas of politics of the country is concerned. This latest defeat comes only a year after the clergy failed in its efforts to convince Kenyans to shoot down the proposed constitution, which saw its proponents prevail by a win of 5.9 million votes against 2.6 millions votes.

The morality of the two nominees was cast in doubt and generated a lot of public debate, with the clergy arguing that the two were not suitable to hold such key positions in the judiciary, while those defending the nominees argued that Kenya is not a religious but a secular state. “We are not seeking to appoint a bishop; we are just looking for a Chief Justice. So I don’t understand why Church leaders are attacking the nominees,” Kisumu Town West MP Olago Aluoch had to remind the church.

Ironically, that was the same statement used by the clergy last year in their campaigns against the proposed constitution, when citing reasons why the khadhi’s courts should not be in the constitution; Kenya is not a religious but a secular state.

Both nominees undoubtedly have a pro-gay history and that – plus Mutunga’s stud earring, which he claims stands for spiritual reasons – has led to an enormous fight between civil society and anti-gay forces, led by the Church.

Mutunga supported the foundation of the Gay and Lesbian Coalition of Kenya and Baraza addressed the issue in her PhD thesis topic, ‘Criminal Law: Homosexuality and Law Dilemma in Kenya’. Their family values had also been questioned as they are both divorcees.

The Catholic Church could not agree on the ‘stud issue’ when questioned by journalists about their views on the matter. Cardinal Njue was kept mum; Archbishop Kairo said the stud was “un-African”, while Archbishop Okoth said that studs have been worn by many African communities since time immemorial and therefore saw no problem in the stud itself but that it depended on what it signifies on a man.

The bishops argued that the holders of the two judicial positions should be people who respect life; recognize the importance of family wellbeing and “our appreciation of religion in public and private life”. However, when asked on whether the nominees lacked any of the above qualities, the Bishops said they were not pointing a finger at them but just urging Parliament to use the criteria in order to approve or reject the two nominees.

The church failed to cite in black and white the moral deficiency of the two candidates. The fears however are, judging from Dr Mutunga’s family history and views on homosexuality, that he would grant every divorce brought before him, grant abortion on demand and retain the kadhi courts in the constitution (which was one of the key reasons for the clergy to reject the constitution) and be pro-Islamic (as Dr Mutunga is a Muslim).

However if the findings released by research firm Infotrak Harris, a week before parliament approved the nominees are anything to go by, whereby 78 per cent of those polled endorsed the nomination of Dr Willy Mutunga and Nancy Baraza as Chief Justice and Deputy Chief Justice respectively, it becomes apparent that the clergy was reading from a different script to the rest of Kenyans.

According to the poll, nearly nine in ten (89 per cent) of Kenyans were satisfied that Dr Mutunga and Ms Baraza will reform the judiciary if given a chance. Well, a believer would probably quote this popular verse in the bible, “when you are in tune with the world, you are out of tune with God.”

“Perhaps what is worrying is not even that the clergy, primarily the catholic clergy, even dared oppose the nominations at all. Rather, it is the reasons they are giving for opposing the nominations” asserted one blogger, Hassan Ole Nado.

The Forum agrees with Hassan Ole Nado and the Church in Kenya once again failed to get their message across but there were other genuine concerns about the appointment and the manner of appointing Mutunga and Baraza, and over the on-going row over Keriako Tobiko’s elevation to the post of DPP, of which more later this week…