Makau W. Mutua

Makau W. Mutua (born 1958) is a Kenyan-American professor at the SUNY Buffalo School of Law and was its dean from 2008-2014. He teaches international human rights, international business transactions and international law. He is vice president of the American Society of International Law and a member of the Council on Foreign Relations.[1]

He is a second-generation scholar of the Third World Approaches to International Law (TWAIL), which is critical of the colonial foundations of the extant international law.[2][3]

In 2016, he made an unsuccessful bid for the office of Chief Justice at the Supreme Court of Kenya.[4]

Mutua has faced criticism and law suits concerning his tenure as Dean and professor at Buffalo School of Law.

Early life and education

Makau Mutua was born Robert Mutua in Kitui, Kenya, in 1958, the second of seven children. He was educated at Kitui School and Alliance High School, and in 1975 graduated from an American high school in Fisher, Illinois, to which he was taken by Catholic missionaries. He recounted for a Nairobi newspaper that "the Catholic Church had murdered my spirit as an African. I contemplated dropping the name Robert before going to Illinois, but didn’t know how – and lacked the courage to do so at that age. It was only after I returned from America that I "killed" Robert and left the church."[5]

In May 1981, his education at the University of Nairobi was disrupted by his anti-government activism. He left Nairobi and enrolled in the University of Dar es Salaam, where he graduated in 1983 and 1984 with bachelor’s and master’s degrees in law. He then returned to the United States, where he earned an LL.M in 1985 and an S.J.D. in 1987 at Harvard University.[6][7]

He was an associate for one year at a commercial law firm in New York, where he worked on equipment leasing, licensing, and distributorship contracts, and then moved to Human Rights First, at that time known as the Lawyers Committee for Human Rights, where he directed the Africa Project. In 1991, he returned to Harvard as associate director of its human rights program. In 1996, he joined the SUNY Buffalo Law faculty.[8]

In 2003, while on sabbatical, he was appointed to an official task force that recommended a "truth, justice, and reconciliation" commission for Kenya. That year he was also a delegate to a constitutional conference, which attempted to draft a new constitution for Kenya. In 2006, he was an advisor to John Githongo, the former anti-corruption czar who exposed the Anglo-Leasing scandal in the Kibaki government. He is also chairman of the board of the Kenya Human Rights Commission, which is registered in Nairobi as a non-profit political advocacy group or NGO.[9]

In December 2007, following the resignation of his predecessor, R. Nils Olsen, Jr., Mutua was appointed interim dean of the Buffalo School of Law. He was reappointed as dean by the university’s provost in May 2008, after the failure of a national job search. He remained in office until he unexpectedly resigned from his deanship in December 2014.[10]

In January 2017, Mutua was appointed to a four-year-term as Editor of the Routledge Series on Law in Africa.[11]

Memberships, honors and awards

In 2015, Mutua received the Distinguished Africanist Award from the New York African Studies Association at its 40th Annual Conference.[12]

He was elected vice president of the American Society of International Law from 2011-2013 after serving on its executive council from 2007–2010.[12]

In May 2010, he became a member of the Sigma Pi Phi fraternity, the first Greek-letter society founded by African-American men in the United States and has been named several times as among the most influential black lawyers and educators in the United States.[13]

Application for Chief Justice, Supreme Court, Kenya

Following the early retirement of Dr. Willy Mutunga from the Office of Chief Justice of the Supreme Court of Kenya in June 2016, Mutua applied for the office of Chief Justice in response to the vacancy announcement by the Judicial Service Commission. During an interview for the position, Attorney General Githu Muigai questioned Mutua over his tweets not recognizing the election of Uhuru Kenyatta as President of Kenya in March 2013. Mutua responded that he would have no problems working with the President if he was appointed Chief Justice, and that his comments were made as a private citizen.[14] In addition, the Attorney General questioned his qualifications for chief justice on the grounds that he has not resided in Kenya or paid Kenyan taxes for over thirty years, and has never tried a case or served in any judicial office. Mutua responded with his readiness to renounce his American citizenship.[15]

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.[16]

Controversies at SUNY Buffalo

Faculty dissent

On 24 September 2014, Mutua announced that he was resigning from the deanship of SUNY Buffalo Law School. The university's student-run newspaper, The Spectrum, issued the initial account of Mutua's resignation claiming that "[it] comes amid allegations that he lied in federal court and in a state administrative proceeding," and allegations of perjury and human rights violations against law school employees, including due process rights, union rights, women's rights, and faculty governance rights. The article also stated 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."[17]

The Buffalo News reported on 27 September 2014 that "some of the school’s most highly regarded faculty members" claimed "Mutua’s management style divided the school at a time of great economic turmoil.... Critics say Mutua, who came from within the ranks of the faculty, arrived in the dean’s office with a 'divide and rule' philosophy that placed a priority on loyalty and penalized critics while rewarding allies."[18] The article also mentioned those who were in support of Mutua's deanship describing that "alumni and donors view his stewardship as a much-needed step forward. In their eyes, Mutua shook up a moribund faculty, reached out to alums who felt alienated from the school and succeeded in raising $23 million in private donations. They say the law school’s endowment has nearly doubled since he became dean....Mutua would not be interviewed for this story. But in a prepared statement, he said the allegations of perjury and his disagreements with faculty had nothing to do with his decision to step down."[19]

On 20 November 2017, after years of litigation by the New York State United Teachers and two individual faculty members over anti-union animus charges and due process violations in the law school, the U.S. Court of Appeals for the Second Circuit held that clinical educators in the SUNY system, under the Policies of the SUNY Trustees, have no legal rights in federal court. That ruling was followed by a lawsuit against the American Bar Association in Chicago. In a decision dated 11 December 2019, the U.S. Court of Appeals for the Seventh Circuit held that SUNY law professors had no legal standing to challenge Mutua’s repudiation of the ABA’s accreditation standards for due process and faculty governance.[20] In response to what he called his "vindication," Mutua told the Buffalo News that he had been the victim of "a bigoted personal vendetta" by a "cabal of racist law faculty who had trouble accepting that a competent, reform-minded and independent black man was running the Law School."[21]

Criticism for absence

The law school’s official history has praised Mutua for "bringing a global focus to the School of Law, drawing on the numerous human rights, diplomatic and rule of law missions he had conducted in countries in Africa, Latin America and Europe."[22] In May 2009, the law school sponsored the visit of a Kenyan government delegation, where then-Prime Minister Raila Odinga gave newly graduated lawyers and their families a lecture about African politics and praised Makau Mutua as "a great Kenyan patriot."[23]

However, the campus newspaper The Spectrum reported that "[f]aculty and students who were interviewed offered tepid to scathing critiques of Mutua’s tenure and many students insist they have never seen Mutua on campus nor interacted with him."[24] He was criticized for his disengagement from campus life and prolonged absences while he toured many international destinations.[25]

Criticism concerning law-school-ranking

In 2010, Mutua has been accused of presiding over SUNY Buffalo's drop below the top one-hundred American law schools for the first time in its history, despite his pledge to devote his deanship to returning it to the top fifty.[26]

In 2016, the campus newspaper criticized Mutua for hiring eighteen new professors during a decade in which the law school’s enrollment was dropping by almost 40% alleging that the imbalance resulted in the resignations, buy-outs, or early retirements of more than half the faculty and a tuition that doubled in the aftermath of his deanship.[27]

Criticism concerning income

After Mutua had taken a sabbatical in 2015 and accepted a consultancy at the World Bank, he was criticized by the campus newspaper 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."[28]

Newspaper columnist

Mutua, for the better part of a decade, was a columnist for the Sunday Nation, one of the two main newspapers in East and Central Africa. In September 2013, he departed the Sunday Nation and joined the Standard on Sunday, the Sunday Nation's chief competitor. He returned to the Sunday Nation in July 2019.[29]

Selected works
  • Human Rights Standards: Hegemony, Law, and Politics. SUNY Press. March 2016 ISBN 978-1-4384-5939-4
  • Kenya's Quest For Democracy: Taming Leviathan (Challenge and Change in African Politics). L. Rienner Publishers. 30 April 2008 ISBN 1-58826-590-0
  • Human Rights NGOs in East Africa: Political and Normative Tensions. University of Pennsylvania Press. 12 September 2008 ISBN 978-0-8122-4112-9
  • Human Rights: A Political and Cultural Critique. University of Pennsylvania Press. 10 November 2008 ISBN 0-8122-2049-8
  • Zaire: Repression As Policy (with Peter Rosenblum), New York: Lawyers Committee for Human Rights, 1990.

References
  1. "Mutua, Makau W." www.law.buffalo.edu. Retrieved 6 October 2020.
  2. Gathii, James (26 September 2011). "TWAIL: A Brief History of its Origins, its Decentralized Network, and a Tentative Bibliography". Rochester, NY. SSRN 1933766. Cite journal requires |journal= (help)
  3. Mutua, Makau (2000). "What is Twail?". Rochester, NY. SSRN 1533471. Cite journal requires |journal= (help)
  4. "Uhuru Swears in New Chief Justice David Maraga", The East African, 19 October 2016,(retrieved 1 February 2020).
  5. Makau Mutua, "Let’s Fully Reclaim Our African Identity, Overcome Imperialism", The Standard, 25 Feb. 2018,(retrieved 1 February 2020).
  6. (retrieved 6 October 2020)
  7. "From Obama to Ng'weno to Kirubi: The Harvard trailblazers in Kenya". Nation. 4 August 2015. Retrieved 11 October 2020.
  8. All facts regarding "legal, academic career, and honors," are derived from Mutua’s cv, which he posts and updates on-line at (retrieved 1 February 2020).
  9. "The Kenya Human Rights Commission (KHRC) was founded in 1991 and registered in Kenya in 1994 as a national non-governmental organisation (NGO). Throughout its existence, the core agenda of the Commission has been campaigning for the entrenchment of a human rights and democratic culture in Kenya." See "KHRC – About Us" (retrieved 6 October 2020).
  10. See news coverage of Mutua’s resignation from the UB Spectrum, dated 24 September 2014, and the Buffalo News, dated 27 September 2014, both cited in footnotes immediately below.
  11. "Routledge Studies on Law in Africa - Routledge". Routledge.com. Retrieved 23 November 2017.
  12. "Recognition puts Mutua in distinguished company - University at Buffalo School of Law - University at Buffalo". www.law.buffalo.edu. Retrieved 23 November 2017.
  13. "On Being A Black Lawyer (OBABL) Names Makau Mutua One of the Most Influential Black Attorneys in the U.S. - University at Buffalo". www.buffalo.edu. Retrieved 23 November 2017.
  14. Leftie, Peter; Mureithi, Brian. "Makau Mutua on the spot over remark on Uhuru's election". Nation. Retrieved 10 October 2020.
  15. "Prof. Makau offers to give up U.S. citizenship if appointed C.J.", KUTV, Kenya, 14 September 2016, (retrieved 1 February 2020).
  16. "Makau Mutua ranked third with 70 marks in CJ interview". The Star. 23 September 2016. Retrieved 10 October 2020.
  17. "Law School Dean Makau Mutua Resigns", UB Spectrum, 24 Sept. 2014, (retrieved 1 February 2020).
  18. Phil Fairbanks, "Deep Rift Exposed as UB Law's Dean Resigns", Buffalo News, 27 Sept. 2014, retrieved 6 October 2020
  19. Phil Fairbanks, "Deep Rift Exposed as UB Law's Dean Resigns", Buffalo News, 27 Sept. 2014, retrieved 6 October 2020
  20. Malkan, et. al v. American Bar Assoc. (11 December 2019).
  21. Tokasz, Jay (10 November 2017). "Federal Case that roiled UB Law now over". Buffalo News. Retrieved 1 February 2020.
  22. "History, Our Past Deans"; See also "Travel and Honors Fill Dean Mutua's Calendar", UB Law Forum, spring 2010, at 16, (retrieved 1 February 2020); These facts verified by tweets and photos from Mutua’s Twitter feed See .
  23. "Kenyan Prime Minister Urges Solidarity with Africa", UB Law Forum, Fall 2009, (retrieved 1 February 2020).
  24. "Law School Dean Makau Mutua Resigns", UB Spectrum, 24 Sept. 2014, (retrieved 1 February 2020).
  25. "UB still paying former Law School Dean Makau Mutua full salary despite his new job", UB Spectrum, 9 March 2016 (retrieved 1 February 2020).
  26. Dan Herbeck, "UB Law School Drops Out of Top 100 in Law School Rankings", Buffalo News, 15 July 2010, (retrieved 1 February 2020). See also Makau Mutua, "Building the Law School of the Future", UB Law Forum, Fall 2009, ("As I have said before, my ambition is not to build a good local law school – it is to create a great national law school. I believe that a top 50 ranking, which I have set as the goal for my deanship, will be one measure of that greatness.")
  27. "UB’s law school went from having 54 full-time faculty members teaching in the fall of 2010 to just 27 last fall, according to the American Bar Association’s annual 509 information reports. That includes a drop off from 48 full-time faculty members who taught in the fall of 2014. UB’s decrease is among the top 10 largest net decreases in the country." "Less Full-Time Faculty Teaching at UB Law School", UB Spectrum, 27 January 2016, (retrieved 1 February 2020); Current and historical enrollment and tuition data is available on-line at ; See also Faculty Directory – Emeritus (listing professors who acceded to early retirement during his deanship); Stacy Zaretsky, "The future is so bright at this law school that it has to offer faculty buyouts", Above the Law, 18 March 2014 (retrieved 1 February 2020).
  28. "UB still paying former Law School Dean Makau Mutua full salary despite his new job". Retrieved 23 November 2017.
  29. Mbati, John (16 July 2019). "Makau Mutua Makes Comeback at Nation Newspaper". Kenyans.co.ke. Retrieved 10 October 2020.
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