By MAKAU MUTUA
Posted Saturday, January 28 2012 at 19:47
Posted Saturday, January 28 2012 at 19:47
Let’s first get the basic facts right. Neither Finance Minister Uhuru Kenyatta, nor Head of Civil Service Francis Muthaura, has resigned from their offices.
They have rather “stepped aside”. “Stepping aside” is an oxymoron not known to Kenyan law.
Legally, both gentlemen are still the “substantive holders” of their offices.
Nor should anyone be fooled by President Mwai Kibaki’s appointment of Nairobi Metropolitan Minister Robinson Githae as “acting” Finance Minister and Internal Security PS Francis Kimemia as “acting” Head of Civil Service and Secretary to the Cabinet.
Substitution not disqualification
In football, President Kibaki has simply “substituted” Mr Githae for Mr Kenyatta and Mr Kimemia for Mr Muthaura.
Mr Kenyatta and Mr Muthaura can “still play” because a “substitution” isn’t a “disqualification”.
Mr Kenyatta and Mr Muthaura have supposedly been shown the “yellow card” and not the “red card”.
But, in fact, Mr Kenyatta’s card isn’t even “yellow”. Mr Kenyatta is still the sitting Deputy Prime Minister to whom Mr Githae, the “acting” Finance minister, will report.
Effectively, this means that Mr Githae will be nothing but Mr Kenyatta’s puppet. Semantics aside, Mr Kenyatta is still in charge.
Which begs the question: What’s Mr Kenyatta’s logic in “stepping aside” as Finance minister while stubbornly squatting in the Deputy Prime Minister’s office?
Isn’t that what we call a “distinction without a difference?”
Doesn’t Mr Kenyatta’s circumlocutous thinking utterly defy the logic and the essence of “resigning” from public office?
It’s an open secret that President Kibaki trusts Mr Muthaura and Mr Kenyatta more than any other two officials in the government.
You can also take this to the bank – I believe that Mr Kenyatta is Mr Kibaki’s preferred successor at State House.
It’s true that Mr Kibaki hasn’t officially named a successor. But don’t conflate the lack of a public endorsement with a refusal, or failure, to name a political scion.
That’s why Mr Kibaki can’t contemplate wholly “neutering” Mr Kenyatta by “fully” severing him from state power.
That would render Mr Kenyatta fully impotent in standing up against PM Raila Odinga in the presidential sweepstakes.
Let’s dig deeper. The International Criminal Court has caught Mr Kenyatta and the Kibaki courtiers with their pants down.
Mr Kibaki must be confounded. The National Security Intelligence Service, the spy agency he personally controls, has wrecked Mr Kibaki’s succession plan.
ICC Prosecutor Luis Moreno-Ocampo relied heavily on official NSIS records to nail Mr Kenyatta.
The corroborating witnesses were but icing on the cake. Mr Muthaura and Mr Kenyatta have been done in by the very state they control.
Methinks it’s now time to stop blaming Mr Odinga for acting in cahoots with Mr Moreno-Ocampo to bring Mr Kenyatta down.
How should we understand this “stepping aside” jargon? Usually, it’s children that are afraid of being orphaned by their parents.It’s the NSIS that says Mr Kibaki, Mr Kenyatta, and Mr Muthaura met with Mungiki at State House.
But it’s the parent – Mr Kibaki – who’s afraid of being orphaned by his “children” – Mr Kenyatta and Mr Muthaura.
That’s why they are “stepping aside” and not “resigning”. Mr Kibaki can’t fathom surviving the balance of his term in office without them.
In the twilight of his political life, the man from Othaya wants to give the baton to Mzee Kenyatta’s son, but Mr Moreno-Ocampo has said “nyet’’.
Mr Kibaki wants to hoodwink the public that Mr Kenyatta and Mr Muthaura aren’t calling the shots anymore, but the public isn’t buying it.
Hoodwink the public
By the way, I don’t think anyone – and I mean “anyone” – charged with crimes against humanity should hold “any” public office.
This includes Eldoret North MP William Ruto.
Postmaster-General Hussein Ali and Tinderet MP Henry Kosgey narrowly escaped the ICC’s axe.
But Mr Ali and Mr Kosgey shouldn’t sit pretty because Mr Moreno-Ocampo may come calling again.
Radio journalist Joshua arap Sang doesn’t hold public office per se, but he must leave Kass FM.
Although private, the radio station uses public airwaves which Mr Sang could manipulate from his position of power to interfere with the trials.
The Ocampo Four – Mr Kenyatta, Mr Muthaura, Mr Ruto and Mr Sang – shouldn’t be in a position to taint the trials.
The matter of “stepping aside” raises another nuclear question.
How can people who are charged with crimes against humanity – killing, pillaging, and rape – contemplate occupying the highest office in the land?
Isn’t this, as Justice minister Mutula Kilonzo says, plain impunity?
In what civilised country would such a thing happen? I am not a Kenyatta and, therefore, don’t know the burden of being one.
But I would ask Mr Kenyatta to let the ghost of Mzee go.
I fear that Mr Kenyatta is still in a position to work with the government to sabotage the ICC.
Look at the past – the state’s bitter response to the High Court’s arrest warrant for Mr Al-Bashir, the state’s bid to stop the confirmation hearings, VP Kalonzo Musyoka’s “shuttle diplomacy” to kill The Hague trials, AG Githu Muigai’s curious legal advice on whether Mr Kenyatta and Muthaura should resign, and the state’s vow to support the defence of the Ocampo Four.
These aren’t signs of a government that wants justice for victims. Are you with me?
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC
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