The nominations of Dr. Willy Mutunga as Chief Justice and Nancy Barasa as his deputy have caused considerable disquiet within the religious community. This week, as Parliament’s Constitution Implementation Oversight Committee (CIOC) started receiving public submissions on the nominations, along with that of Keriako Tobiko for Director of Public Prosecutions, Church representatives were not shy about their reservations.
Bishop Martin Oginde of the Nairobi Pentecostal Church said that though Dr Mutunga was a gentleman, he would be uncomfortable with a Chief Justice who wears a stud. He was appalled by the thought of, as he colourfully put it, “our young men becoming young women” and the prospect of “the highest person in our judicial system expressing themselves in the same way,” by wearing an earring. Mr Peter Waiyaki of the Christian Association took issue with Dr Mutunga’s and Ms Barasa’s support for abortion and same sex relations.
Father Ferdinand Lugonzo, who represented the Kenya Episcopal Conference, perhaps best summarised the church’s position: “We are … raising concerns about the family values that Dr Willy Mutunga stands for. We observed here, that one who has a philosophy that promotes gays and lesbians, aggressive population control, commercial sex work... We emphasize that family principles are not issues of private domain. Marriage and family are ordained by God”
The church’s stand betrays a fundamental misunderstanding about the nature and role of the state in a free and just society. To understand why this is so, we must examine the rationale for government and individual rights.
In their natural condition, all men, just like animals, are absolutely free to do as they wish, guided only by their instincts and conscience. Natural man is a law unto himself, born free and acting free. Sadly the law of the jungle respects only might and does not necessarily foster security or justice. The lamb has no forum to argue its right to life against a hungry lion. In similar manner, the strong, unrestricted by any outside agency, will tend to oppress the weak; the powerful will take from the powerless.
However, by acting together in civil society and binding ourselves to its laws, we pass from the natural state to a civil state, substituting justice for instinct and right for might. Natural independence is given up in favour of civil liberty, the former being guaranteed only by the individual’s might while the latter is guaranteed by the collective power of the community. This arrangement, what 18th century French philosopher Jean Jacques Rousseau referred to as “The Social Contract”, substitutes legal equality for natural inequalities in strength and intelligence evident among men.
We become part of a corporate body politic, a public person made up of the unification of many persons, called the state. The individuals within it are individually known as citizens and they all share equally in the sovereign power and are equally subject to its laws. The state itself is therefore formed for the common good as defined by the general will of the governed. Since the natural, some might say God-given, rights have been relinquished in favour of civil rights, the state now draws its legitimacy not from a higher being, but from its subjects, the people. It is, by definition, secular.
From the above, it is clear that Father Lugonzo is fundamentally wrong when he declares that “family principles are not issues of private domain.” Marriage and family may be ordained by God, but the state does not exist to serve Him. And even when one resorts to the dictum vox populi, vox dei – the voice of the people is the voice of God – there is no relief from having to allow for individual choices that may not be to the liking of the majority. The late US Supreme Court Justice Harry Blackmun said: "A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices” adding that “we should be especially sensitive to the rights of those whose choices upset the majority”. In this, he was echoing a famous argument by another late Supreme Court Justice Oliver Wendell Holmes Jr. who stated: "If there is any principle … that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate."
The common good being common to all, there is no question of sacrificing one person or group in the interest of another. Rather, since the state is the result of a negotiation by different interests, it is the common points of agreement that constitute common good. The contemporary ethicist, John Rawls, defines it as "certain general conditions that are...equally to everyone's advantage". Common good is thus a confluence of interests, not of moral values or traditions. The latter are important only in as much as they influence an individual’s sense of where his interests lie. At the state level, however, the discussion is only informed by interests. Far from enforcing a moral code, the only thing the state is committed to is the pursuit of common interests through the creation of social systems, institutions, and environments which work in a manner that benefits all persons without elevating the interests of one group over those of another.
The clergy should, therefore, not be allowed to impose its views on the rest of society without, at the very least, being required to show how the common interest is otherwise injured. As John Stuart Mill stated in his 1859 essay, On Liberty: "The only purpose for which power can be rightly exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant . . . Over himself, over his own mind and body, the individual is sovereign." We cannot punish or deny opportunities to individuals for making choices, when those choices have no perceptible harm on the rest of us, without demolishing the façade of justice and individual freedom.