Makau W. Mutua


Makau W. Mutua is a Kenyan-American professor of law and a leading scholar of the Third World Approaches to International Law.
He is a SUNY Distinguished Professor and the Floyd H. and Hilda L. Hurst Faculty Scholar at the Buffalo School of Law at SUNY, where he served as dean from 2008 to 2014, when he stepped down amid allegations of perjury and civil rights violations against law school employees. He is the first professor in the history of the Buffalo School of Law to be named SUNY Distinguished Professor and teaches international human rights, international business transactions and international law. Mutua is a member of the Council on Foreign Relations and ranked No. 110 by Buffalo Business First in the Power 200 most influential people in 2013 in Western New York.
In 2003 Mutua was appointed by Kenya's President Kibaki to chair a task force that eventually led to the establishment of the Truth, Justice and Reconciliation Commission in 2008.
From September 2015 to September 2016 he consulted the World Bank in Washington D.C. on the development of its human rights policy and governance. In January 2017, after having already served as Vice Chairman since 2016, he was elected to a four-year term as Chairman of the Board of Advisors of the Rome-based International Development Law Organization or IDLO.

Biography

Early life and education

Mutua was born in 1958 in Kenya, the second of seven children. He received secondary education at Kitui School and Alliance High School. An excellent student throughout his life, he gained attention in other ways while attending the University of Nairobi with his vocal opposition to the national government. He was arrested in May 1981 for his dissent and was only released after fasting in a hunger strike for several days. He eventually found his way to Tanzania where he applied for United Nations refugee status. He earned a Masters in Law at the University of Dar es Salaam, ultimately attending Harvard Law School in 1984. There he earned an LLM in 1985 and an SJD in 1987.

Legal and academic career

After graduation from Harvard, he worked for White & Case, a New York City law firm, but later pursued his dreams of human rights advocacy with his work at Human Rights First, then known as the Lawyers Committee for Human Rights. In 1991, he returned to Harvard where he became the Associate Director of the Harvard Law School Human Rights Program. In 1996, he joined the University at Buffalo Law School faculty.
In December 2007, after the unexpected mid-year resignation of his predecessor, R. Nils Olsen, Jr., Mutua was put into office as the Interim Dean at the SUNY Buffalo Law School. The university president made his appointment continuous in May 2008, after a national job search failed to identify a successful alternative candidate. He held the deanship for the next six and a half years, until he, in turn, resigned amid faculty unrest and legal turmoil the middle of the 2014-2015 academic year.
Mutua has served as Visiting Professor at Harvard Law School, the University of Iowa College of Law, the University of Deusto in Bilbao, Spain, the University of Addis Ababa in Ethiopia, the United Nations University for Peace in Costa Rica, the University of Coimbra, Portugal, and the University of Puerto Rico School of Law, among others. He was elected Vice President of the American Society of International Law from 2011-2013 after serving as its Executive Council from 2007–2010. He was the co-chair of the 2000 Annual meeting of the ASIL. He sits on the boards of scholarly journals and NGOs.
In 2003, while on sabbatical in Kenya, he was appointed by the government of President Mwai Kibaki as Chair of the Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission, which recommended a truth commission for Kenya. He was also a Delegate in 2003 to the Kenya National Constitutional Conference, which produced a contested draft constitution for Kenya. In 2006, he was legal counsel to John Githongo, the former Kenyan anti-corruption czar who exposed the Anglo-Leasing scandal in the Kibaki government.
He was a founder and serves as Chairman of the Nairobi-based Kenya Human Rights Commission. In 2007, he gave the Abiola Lecture, the signature keynote address at the annual meeting of the African Studies Association, the leading Africana Studies academic association in the world. In April 2015, Mutua received the Distinguished Africanist award from the NYASA, the association's highest honor. He has authored several books and dozens of scholarly articles in law journals and other publications. His latest book, Human Rights Standards: Hegemony, Law, and Politics was published by SUNY Press in February 2016. James Thuo Gathii considers him part of the movement known as TWAIL, or Third World Approaches to International Law. In January 2017, Mutua was appointed to a four-year-term as Editor of the Routledge Series on Law in Africa.

Mutua and faculty dissent at SUNY Buffalo

After seven full years in the Dean's Office, Mutua announced on September 24, 2014, that he was stepping down amid allegations of perjury and multiple civil rights violations against law school employees, including due process rights, union rights, women's rights, and faculty governance rights. According to the Buffalo News, a delegation of female professors met with the University's Provost in the early months of 2014 to accuse Mutua of anti-feminism and using a "divide and conquer" strategy to instill fear and mistrust in the faculty, but the administration failed to take any action to protect them.
The University's student-run newspaper, The Spectrum, issued the initial account of Mutua's removal from the Dean's Office, reporting that "he resignation comes amid allegations that he lied in federal court and in a state administrative proceeding." The Spectrum further reported that "the law school faculty in October of 2010 attempted to hold a vote of no confidence in Mutua, but the attempt was dismissed by then-President John B. Simpson and then Provost Satish Tripathi." The Spectrum concluded that "aculty and students interviewed by The Spectrum offered tepid to scathing critiques of Mutua’s tenure and many students insist they have never seen Mutua on campus nor interacted with him."
These accounts of turmoil in the law school were confirmed by a front-page story in the Buffalo News on September 27, 2014. "The dean’s critics," the story reported, "are numerous, and include some of the school’s most highly regarded faculty members." In their interviews for the Buffalo News they alleged that "Mutua lacks an educational vision and is more concerned with power and control than with the school’s future."
In November 2017, after almost a decade of legal battles in state and federal courts, including an anti-union animus charge brought against him by the New York State United Teachers, the U.S. Court of Appeals for the Second Circuit held that clinical professors in the SUNY system, under the Policies of the SUNY Trustees, have no due process rights in federal court. That ruling finally ended the civil rights litigation. In response to what he called his "vindication," Mutua claimed that he had been the victim of a conspiracy by "a cabal of racist law professors who could not accept the leadership of a talented and forward-thinking black man."

Mutua's travels, and his journalism

During his deanship of SUNY Buffalo Law School, the Buffalo News reported that Mutua was a successful fundraiser and popular with the law school's alumni, who appreciated his attention to their interests and viewpoints.
On the negative side, The Spectrum reported widespread concern that Mutua had expanded the law school's faculty by hiring eighteen new tenure track professors between 2007 and 2014 -- as many as six in one year -- a time when its enrollment was in the process of dropping by almost 40%, from 240 to 140 in the first-year class. That imbalance resulted in buy-outs of senior faculty and a tuition increase of almost one-third during Mutua's time in office. In addition, SUNY Buffalo's U.S. News ranking dipped into the "third tier" of American law schools for the first time in the school's history, despite Mutua's pledge to devote his deanship to returning it to the top fifty. Finally, SUNY Buffalo's bar passage rate began declining alarmingly toward the end of Mutua's deanship, from the middle of the pack for first-time test takers when he took office to second from the bottom in the July 2019 test. By July 2014, the last test of Mutua's deanship, SUNY Buffalo had already slipped to tenth, with its percentage pass rate dropping from 83% in July 2012 to 76% in July 2014.
Following his removal from the Dean's Office, the President of the University granted Mutua an extraordinary three-semester sabbatical at his full pay in Rome, Italy, and Washington, D.C. Mutua’s Twitter account indicated that from January to September 2015 he served as a full-time consultant at the Rome-based International Development Law Organization. He then relocated to the Washington, D.C. area, from September 2015 to September 2016, for another full-time consultancy at the World Bank.
During those eighteen months, Mutua traveled to many international destinations including Costa Rica, Switzerland, France, Germany, Tanzania, Namibia, Ivory Coast, and his native Kenya. Mutua was particularly active in 2014, just prior to vacating the Dean's Office, when he spent roughly sixty days visiting places as close as New York City and as far away as Denmark and South Africa. From September 2015 to September 2016, Mutua was a human rights adviser at the World Bank to develop the human rights policy at a consultant's salary of $90,000 a year. The consultancy was criticized by the campus newspaper, which reported that "the university is still paying the former law school dean his full salary – a salary that nears $300,000 - despite being away from the school and taking on outside work."
For the better part of a decade, Mutua was a columnist for the Sunday Nation, one of the two the main newspapers in East and Central Africa. In September 2013, he departed the Sunday Nation and joined the Standard on Sunday, the Sunday Nations chief competitor. He returned to the Sunday Nation in January 2020 with a controversial critique of African women who straighten or dye their hair, calling it "disgusting hair pornography," and denouncing it as "an intellectual and cultural surrender among blacks to white supremacist notions of beauty."

Application to be Kenya's Chief Justice

Following the early retirement of Dr. Willy Mutunga from the Office of Chief Justice & President of the Supreme Court of Kenya in June 2016, Mutua was among the 10 people who applied for the job in response to the vacancy announcement by the Judicial Service Commission.
When the Commission drew the short list of applicants who were to be interviewed for the job, Mutua's name was conspicuously and surprisingly missing from the list, despite his strong credentials. A civil society organization filed a case at the Constitutional Court questioning the criteria used in the shortlisting, and demanding that applicants who met the constitutional requirements be interviewed.
It emerged in the litigation that Mutua had not been shortlisted since he had not obtained a tax clearance from the Kenya Revenue Authority since he had reportedly not met his tax obligations in Kenya. The Constitutional Court held that persons who meet the constitutional threshold for the office must be interviewed and given the chance to explain why they did not get clearances.
Following this case, Mutua and four other applicants who had been left out of the shortlist were invited to interview for the job.
During the interview, the Judicial Service Commission put him to task over tweets he had made following the contested election of Uhuru Kenyatta as President of Kenya in March 2013. In a tweet published shortly after the 2013 general election, Mutua indicated that he would not recognize Uhuru Kenyatta as president due to the circumstances under which he was declared the winner of the poll. Mutua stuck to his position, and referred to President Kenyatta as Mr. Kenyatta throughout the interview.
When the interviews ended, the commission announced that it had settled on Kenyan Court of Appeal Judge David Maraga as the nominee for the Office of Chief Justice. Mutua was ranked third in the interviews. On 3 December 2017, after the Supreme Court confirmed Kenyatta's reelection, Mutua reiterated his refusal to recognize his presidency.

Pan-Africanism

In 1994, Mutua suggested a reorganization of the continent of Africa into 15 sustainable states, from the 55 states he considered not viable. He said "the onsequences of the failed postcolonial state are so destructive that radical solutions must now be contemplated to avert the wholesale destruction of groups of the African people". These new states would be created based on ethnic similarities, cultural homogeneity, and economic viability. The new states included the Republic of Kusini, a new Egypt, Nubia, a new Mali, a new Somalia, a new Congo, a new Ghana, a new Benin, a new Libya, a Sahara state, Kisiwani, a new state made up of a collection of islands, and the current states of Angola and Algeria would remain the same.

Selected works