How the Ocampo Six plan to use Kibaki’s unconstitutional nominees to perpetuate impunity

By Miguna Miguna

It was a blockbuster constitutional violation and an act of impunity like no other. That a president who publicly took an oath to protect and preserve the Constitution is now violently breaching, disregarding and disrespecting that very Constitution is astounding. Equally, it is shocking that a president who is enjoying the trappings of power courtesy of a power sharing agreement is busy violating the National Accord that legalized that deal and his coalition partner at every turn. The violations are reckless, arrogant and repugnant. But we shouldn’t have been surprised; should we? For 50 years, impunity has ravaged Kenya. And those who have perpetuated it were not going to let go; were they?

Truth be told, the president has trashed the Constitution numerous times since August last year. The first violation was the unilateral appointment of the CID director without regard to the power-sharing arrangement and the impending new dispensation. The second violation was the callous invitation of the Sudanese fugitive strong man, Al Bashir, to the promulgation ceremony. That was a terrifying threat.

The third violation was the unconstitutional appointment of Michael Gichangi as the Director General of the newly established National Security Intelligence. From August 27, 2010, the NSIS ceased to exist and with it went Gichangi’s old job. The NSI is a new constitutional office whose holder must be recruited pursuant to section 24 and 29 of the Sixth Schedule, subject to the National Accord and in consultation with the PM. As well, the nomination must be approved by Parliament. The President didn’t follow this well-laid down process. Gichangi’s purported appointment is therefore a nullity.

The fourth breach was the unilateral decision to seek a deferral of the ICC cases at the IGAD, AU and UN Security Council. That decision wasn’t made by the cabinet. Nor was it made with the PM as the Constitution requires. And the fifth one is the purported nominations for the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget.

Yet the question many Kenyans are asking is why; why is a retiring President who is sharing power with a PM acting this way? Is it possible that President Kibaki has forgotten how he became president in 2007? Why is Kibaki insisting on the four nominations? Why? Why has he consolidated the control of the military, the police, the intelligence, finance, energy, transport and now justice under one ethnic group? What is it that the President wants to do or protect with such zeal?

The answers to these questions are both political and constitutional. It would appear that the President and those surrounding him have decided not to hand over power peacefully to a popularly elected president in 2012. You see this in the gusto with which he entertains those who consider the PM their political enemies such as the KKK chauvinists. Kenyans are enthralled with the President’s provocative acts against his coalition partner. The President refused to accompany the PM to Mau when the latter led a high powered conservation event last year. Last month, the President attended a highly charged and politically symbolic rally in Eldoret with William Ruto and Uhuru Kenyatta. Almost weekly, the President makes a point of “meeting” politicians perceived to be opposing the PM. And recently at the IGAD and AU meetings in Addis Ababa, the President’s entourage made and presented a vile DVD that falsely portrayed the PM as the architect of the post election violence and Uhuru Kenyatta as a peaceful leader who tried to prevent the PEV. In fact the DVD was a cunning endorsement of Uhuru’s candidature.

All these activities are coordinated and funded by the President’s office. From these acts, it’s obvious that the President is coordinating anti-Raila activities around the country and beyond. So, how are those activities connected to the four unconstitutional nominations?

Judicial cleansing of the Ocampo Six

The connection is so obvious I’m not sure why the media hasn’t broken the story. Take a look at the nominee for Attorney General. This individual is a known PNU and Presidential strategy and legal advisor. Credible reports indicate that the deferral ploy is one of his babies. More significantly, he is believed to be holding brief for Uhuru Kenyatta and Francis Muthaura; two juicy toads in the Moreno-Ocampo’s list. Some reports suggest that he has been coordinating a team of lawyers who have sought and obtained accreditation at the ICC to act as defense counsel for the Ocampo Six.

The nominee for DPP has been until very recently representing William Ruto at the High Court where the latter faces serious charges of fraud. This nominee has also acted for Goldenberg, Anglo Leasing and other major racketeering culprits. Many of those cases are either ongoing or pending.

According to the Law Society of Kenya, the nominee for CJ was proposed for appointment by one of the Ocampo Six. Needless to say, the Law Society of Kenya has made credible claims impugning that nominee’s integrity. Apart from the fact that he hasn’t been vetted as required by the Constitution; he is also at the bottom of the Court of Appeal in terms of seniority. Moreover, many don’t consider his judgments rigorous.

Add to this the fact that the candidate nominated for Controller of Budget was a member of the PNU strategy team and that he contested and lost as a PNU candidate in Eldoret North constituency in 2007 and you see the picture. But more egregiously, he is currently being probed by Parliament for corruption related to his current occupation. In addition, he comes from the same community and region with the newly appointed Chairperson of the Revenue Allocation Commission.

The idea is to pretend that we are serious about setting up a division of the High Court as a special tribunal to try all the perpetrators of PEV including the Ocampo Six. The Ocampo Six would quickly be charged and arraigned before the fake special tribunal. However, once that is done and these appointments are made, Ruto, Uhuru and Muthaura would quickly challenge the constitutionality of the proceedings. The argument will be that because their former advocates are now effectively in charge of their prosecutions, they would suffer serious and irreparable prejudice; that their former advocates would use privileged information they acquired when they were acting for the accused in order to obtain convictions and that to allow the proceedings to continue would violate their right to a fair trial. And viola; they would win. The proceedings will quickly be struck early enough to enable them to run for 2012 elections.

Meanwhile, the special tribunal will suddenly find teeth and haul before it a big fish in the name of the PM. If in doubt, watch the DVD that was played at the AU meeting in Addis Ababa again.

That way, the Ocampo Six would be judicially cleansed and primed for better things while the PM would have been permanently hobbled.

Do you see how ironclad the strategy was supposed to be? Unfortunately for them, we deconstructed the complicated strategy early enough. And with the state security, intelligence and finance exclusively in their hands, the KKK brigade and their sponsors would romp home without any hindrance. That is, if we allow them.

Now you know why the KKK chauvinists and their sponsors have been laughing at us and goading Kenyans so much. Do you also see why the unconstitutional nominees are seen as a matter of life and death from some elevated quarters?

If we allow these schemes to succeed, we will only have ourselves to blame.


Miguna is the PM’s advisor on Coalition Affairs. The views expressed here are his own.