Monday, December 19, 2011

Miguna contract haunts his bid to get back job



BY WAHOME THUKU
Whenever Miguna Miguna, the former adviser to Prime Minister Raila Odinga pens down his memoirs, a chapter by High Court Judge Mohamed Warsame will come in handy.
No one has perhaps described Miguna more vividly than Warsame in a ruling last week.
Judge Warsame allocated the first 36 lines of his16-page ruling to describe Miguna, who was in court, in most graphic and colourful language.
"Miguna Miguna is not an ordinary folk, he was a key aide and the Prime Minister’s Adviser on Coalition Affairs," the judge began. "As we know life is full of conundrums. Before his suspension he was described as focal, fearless and sometimes reckless in his approach to issues."
He went on, "He (Miguna) is a man who exhibits mental and emotional fits in his defence of issues and principles, which adhere to him. He is a man who is likely to ask sharp, probing, confrontational and sometimes sardonic questions. At the time he was in good books with the Prime Minister, he came across as the son and the heart of the Prime Minister. He is a man who anticipated every question against the Prime Minister and responded instantly in a complete grammatical article salted down with analogies but sometimes lacked wicked wit."
All that must have been Warsame’s common knowledge of the man, what in law is called judicial notice, as lawyers had submitted none of it.
Mental darkroom
"He (Miguna) often writes and published authoritative articles, which are entertaining, serious, informative and perhaps provocative," the judge said. "To his detractors, he is unpleasant, portrays delicate temperament and lacks humour and diplomacy. All in all, he is a man who has relentless sense of fighting back, who writes imminently readable articles but who appears unpredictable and ready to fight. He is described as a man living in mental darkroom."
He added Miguna was a brilliant and intelligent advocate who is willing to engage detractors with vigour and energy. "He is a lawyer of 15 years experience as a barrister and mediator in Canada. He took up a fight against the person who was so dear a few months ago. One may say he is not fighting the person he ably protected from real and perceived enemies, but he is pursuing a personal right, which he feels was infringed by the State."
President Kibaki appointed Miguna on March 6, 2009 as Raila’s Adviser on Coalition Affairs. The appointment letter for a three-year contract was signed by Head of Civil Service Francis Muthaura. He was to report and take instructions from the PS in the PM’s office. Kibaki also appointed Prof Kibutha Kibwana as his adviser on similar matters.
Miguna refused to sign his appointment letter demanding equal and similar terms of service like those of Prof Kibwana. His contract was thus on month-to-month basis.
On August 4, the PM through the PS suspended Miguna for alleged misconduct. He was accused of refusing to sign the Local Agreement Form, harassing, intimidating and using abusive language to colleagues and misrepresenting the PM’s office.
Disciplinary proceedings were started against him and he was asked to respond to the allegations. Meanwhile, he was not to receive any salary until the proceedings were concluded.
Miguna filed a suit against the PS and the Attorney General arguing that he had not been served with a warning letter detailing particulars of the allegations.
He argued that the PS was not his appointing authority or his supervisor as he reported directly to the PM. His lawyer Nelson Havi submitted that Miguna was a public officer in the rank of a PS, having been appointed by the President hence entitled to monthly salary, allowances and benefits.
Suspension be overturned
Under the Public Service regulations, he could only be suspended if convicted of serious criminal offence or if there were pending proceedings for his dismissal.
And even if interdicted, he would be entitled to half the salary, allowances and benefits pending investigation. Miguna asked that the suspension be overturned, the PS prohibited from suspending his salary, benefits and allowances and ordered to pay him.
The PS’ case was that Miguna was not a Public Service Commission (PSC) employee hence not a public officer. He had been appointed by the President under Section 107(4)(e) of the old Constitution. Indeed on August 17, the PSC wrote to confirm that Miguna was not a civil s
ervant but a personal staff of the PM. The contractual appointment was supposed to be on the local agreement terms, which he had refused to sign hence the suspension for misconduct was in order. Judge Warsame had no difficulties determining the case based on those facts. "It’s clear in my mind that the applicant was not appointed as a public servant or civil servant," the judge said.
"He was appointed a personal staff of the Prime Minister and his position was political, which could be terminated or abolished any time, depending on the circumstances."
The judge said Miguna’s intention was to stop the disciplinary process against him, which could not be accepted.
Services are terminated
"It’s for the applicant to justify the continuation of his employment in the Office of the Prime Minister and answer the charges levelled against him. It is not the duty of the court to intervene in the disciplinary process against a personal staff of the Prime Minister."
The judge dismissed the case but directed that disciplinary proceedings at the PM’s office be completed by December 30. If Miguna’s services are terminated, he shall be paid all his dues as per terms of the employment.
And whether Miguna finally succeeds or not, Warsame had one opinion: "He is going to go down as an absolutely historic figure for his defence and attack on the politicians of this country."
The writer is a court reporter with the Standard Group
Email: wthuku@standardmedia.co.ke
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