After the high-brow probing of philosophy, scholarship, and reform strategy by the Judicial Service Commission at the end of May, the nominees for Chief Justice and Deputy Chief Justice faced questioning on personal matters by a parliamentary committee, the last step of a drawn-out vetting process.

Again the unprecedented happened. Members of the public lined up to present written and oral submissions for and against the approval of the nominees. This was done on live TV, with all channels carrying part or all of the day-long proceedings.

The questioning was less concerned with illuminating the nominees’ legal scholarship or understanding their knowledge of matters judicial or hearing how they plan to tackle corruption in the judiciary. It was almost taken as a given that they have scholarship worthy the name; that they understand the judiciary and how to fix the rot there.

What interested the public, especially those who opposed the nomination of Willy Munyowki Mutunga for Chief Justice and Nancy Makokha Baraza for Deputy Chief Justice, were personal matters. Their sexual orientation, their marital status, and their perceived support for abortion rights.

Mutunga is presently the Eastern Africa representative of Ford Foundation, which funds projects and conferences that look into sexuality. His law firm drew up the deed of the Kenya Gay and Lesbian Trust. The Catholic Church and some other clergy used those acts as reasons for declining to confirm Mutunga because he did not meet the bar on morality as stipulated in the constitution. The same argument was made against Baraza because her PhD thesis is on the area of gay rights.

Also, both Mutunga and Baraza are going through divorce proceedings, which the clergymen saw as evidence they cannot up hold family values.

Mutunga faced the Constitutional Implementation Oversight Committee, saying he is open to any question.

Cecily Mbarire, a member of the Committee, after calling Mutunga her mentor, said she had to ask the hard question: are you gay?

“I am definitely not gay. But having said that, I would like to say I do not discriminate against gay people,” responded Mutunga.

Hours later Baraza was asked whether she was a lesbian.

“If I was, there are many of my friends here [the Committee members] who I would have hit on,” was Baraza’s response, which drew laughter from the members of parliament.

Sexual orientation is not a criterion for public office in Kenya. However, as the chairman of the parliamentary Committee, Abdikadir Hussein Mohammed, observed several times, there was an elephant in the room: would Mutunga or Baraza use their position on the Supreme Court to interpret the constitution to allow for same sex unions, abortion, and liberalize divorce?

Mutunga was categorical that the constitution is clear: it does not allow abortion and defines life as beginning at conception; it does not allow same sex unions. He said his personal views will not guide him, if he is confirmed to the post.

“I am the unyielding servant of the constitution,” Mutunga said. A platitude if there was one, but coming from a man who has been at the forefront of the campaigns for a new constitution, it is not to be taken lightly.

The Constitutional Implementation Oversight Committee is now writing its report and will present it on Tuesday, June 14, for parliament to debate.

The position of Chief Justice fell vacant in February this year, after the immediate former occupant was constitutionally retired as part of wide-ranging reform of the judiciary stipulated in Kenya’s new constitution. The constitution was passed in a referendum last August.