By MAKAU MUTUA
Posted Saturday, February 4 2012 at 19:08
Posted Saturday, February 4 2012 at 19:08
Prof Githu Muigai is a distinguished scholar with a lot of “intellectual juice”.
Unbelievably, he joined Foreign minister Moses Wetang’ula to blast the High Court’s order for Kenya to arrest President Omar al-Bashir of Sudan should he set foot in Kenya. The Court of Appeal upheld the High Court’s ruling.
But AG Muigai hasn’t hit the ground running. It seems Prof Muigai is suspended in purgatory – between the new and the old order.
Purgatory, as Catholics know, is a state of purification for those who have “died in grace” before they are reunited in heaven with God.
Those who are “imperfect” are laundered, or “cleansed” of sin in purgatory through “painful temporal punishment”.
After purgatory, the merciful soul gets an automatic admission for a blissful existence in heaven.
There’s no history of one being sent to hell after purgatory.
Which begs the question – could AG Muigai be the first to be denied entry to heaven?
My analogy is that all Kenyans are “sinners” and only the new Constitution can save them.
If so, the Constitution is the proving ground for one’s “faith”.
Fidelity to the country must be proved through fealty to the Constitution.
Those who betray the Constitution betray the country and are “sinners”. To become a “new Kenyan” one must submit to the Constitution.
But – and this is important – there’s a transitional period between “defiance” and “submission”.
Those who opposed the Constitution, including “watermelons,” have a grace period to “see the light” and “hear the good news”. This grace period is their “purgatory”.
They’ll either be sent to “hell” or “heaven” depending on their actions. That’s why I am praying for the AG.
As an ardent secularist, I don’t like to use religious metaphors. But I am convinced that belief in the Constitution is akin to belief in a supreme being.
Our “kingdom on earth” must be governed by the Constitution. Or we will all go to hell.
The men and women who rule the state – including the AG – must be the first to “pray at the altar of the Constitution”.
For, if they don’t, how can they ask the “little people,” like you and me, to obey the law?
How, as the saying goes, can they preach water and drink wine? That would simply beget a nation of hypocrites and lawbreakers. Tax evaders, murderers, thieves, plunderers and rapists would roam free.
Which brings me to my central point. Is AG Muigai being faithful to the Constitution? If not, can he – should he – survive as AG?
I have heard it said that Prof Muigai is “too Mt Kenya”. That’s a bigoted statement from which I want to distance myself.
I have also heard allegations – which are unproven – that he was legal counsel to Finance minister Uhuru Kenyatta. That doesn’t bother me, either.
After all, the iconic Pheroze Nowrojee – my former professor – was legal counsel to minister George Saitoti during the Goldenberg inquiry.
Everyone deserves legal representation, and that’s what lawyers do.No reformer can hold a candle to Mr Nowrojee, and his legal work doesn’t make him an anti-reformer.
The better question is this – is there an ideological and practical convergence between a lawyer and his or her client’s views?
In other words, is “so-and-so” a “lawyer for the mafia?” The presumption is that a lawyer for the mafia is usually part of the Mafioso.
This isn’t simply a matter of guilt by association. It’s rather a question of whether “birds of a feather are flocking together”.
To wit, is AG Muigai joined at the hip with “watermelons” or those who opposed the Constitution? I have no such evidence.
To the contrary, the AG has had one foot in civil society for decades. So, what explains his apparent hostility to the Constitution?
Clear-cut instances
There are three clear-cut instances in which the AG has undermined the Constitution.
The first, in my view, is the failure to dissociate himself from President Mwai Kibaki’s aborted attempt to appoint him AG along with the CJ and the DPP without vetting and consultations with PM Raila Odinga and the legislature.
We know public outcry forced Mr Kibaki to retreat.
That’s what opened the window for Dr Willy Mutunga to apply and later become the CJ.
Prof Muigai could have shown his fealty to the Constitution by withdrawing his name in the face of the tsunami of public opposition. But he didn’t.
This wasn’t fatal in itself, but it showed a proclivity to circumvent the law.
But it’s Prof Muigai’s posture towards the International Criminal Court that has been more upsetting.
The Constitution rests on an independent judiciary. How, then, can an AG who believes in the Constitution undermine the judiciary?
Third, AG Muigai insists that the state will use public resources to support the Ocampo Four.
Fourth, he’s been fighting with CIC chair Charles Nyachae over reform laws.
Most distressingly, AG Muigai gave President Kibaki the wrong advice on whether former Finance minister and Deputy Prime Minister Uhuru Kenyatta and former Head of Civil Service Francis Muthaura should resign their offices after the ICC confirmed charges against humanity.
AG Muigai’s posture reminds me of one misstep he made as a commissioner of the defunct Constitution of the Kenya Review Commission, then chaired by Prof Yash Ghai.
Mr Muigai was reported to have gone to State House with several CKRC commissioners – including DPP Keriako Tobiko – to see President Daniel arap Moi in a plot to undermine the review process.
Was that “misstep” a youthful indiscretion, or a character flaw? Which way will the AG go from purgatory – “heaven” or “hell”?
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.
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