Sunday, February 12, 2012

Mutula a prophet of both the letter and spirit of law



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By PHILIP OCHIENG
Posted  Saturday, February 11  2012 at  18:35
John Whyatt was a legalist if ever there was one.
Serving as Kenya’s Attorney-General (AG) during the Mau Mau confrontations, he frustrated Governor Evelyn Baring again and again by pointing out that what the Governor proposed to do to Dedan Kimathi’s freedom fighters was illegal. It was truly ironic.
It was a rare case in which the letter of the law promoted social good much better than the spirit of it.
For, by all accounts — except Massie-Blomfield’s — the spirit of the colonial law was Satanic.
So, by insisting only on the letter of it, Sir John was unwittingly helping the cause of liberation.
But, in the liberal system that Whitehall has since bequeathed to us, that is exactly how an AG is expected to behave. He is not a politician.
We do not expect any speeches from him. He sits in both Parliament and the Cabinet only for necessary ex-officio duty.
That’s why it is best for him to give his advice privately.
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First — like John Whyatt’s — the truth which the AG must tell his client may be bitter and hard to take.
And nothing obliges the client to swallow it. A piece of advice is not a fiat.
Privacy makes it possible for the government to reject the AG’s word without embarrassing him.
In privacy, secondly, he can give that advice without having to worry about a backlash from any political constituency, such as the ethnic community from which he comes.
Yet the truth which the AG must tell the CEO about what the law provides in every case is what is called “advice”.
It is the reason the AG is called the government’s chief law adviser.
As Robert Frost says (in poetry), “Anything more than the truth would have seemed too weak.”
Yet practically every one of Kenya’s attorneys-general since independence has made it his duty to tell the CEO only what he thinks will caress the CEO and to climb the rostrum to make political speeches designed to explain away certain manifestly illegal actions and statements by officials.
When AG Githu Muigai pours vitriol on Charles Nyachae — the able leader of Parliament’s extremely important task force on reforms — the AG is shirking his duty as the CEO’s adviser on law.
Instead, he has appointed himself as the spokesman for that section of the executive dedicated to thwarting all of the nation’s protracted efforts at reform.
This reactionary clique includes Vice-President Kalonzo Musyoka — a man who wants us to vote him into State House but is not ashamed to embarrass our moral consciousness and to insult our intellects by fighting to “wipe” out of his party one of the most committed reformers in the executive.
Mutula Kilonzo has acted as the real attorney-general ever since the last year of Amos Wako’s AG-ship.
On law, the Justice minister has been the truest and most honest law adviser — not only to the government, but also to his “Wiper” party.
With increasing courage, he tells both Wiper and State House exactly like it is in our books.
Those in Wiper who oppose the minister’s principled stand against the VP’s opportunism — those who call for Mr Kilonzo’s expulsion from the party in Mr Musyoka’s interests — merely reveal themselves as anti-reform reactionists, people who objectively do not want this country to defeat impunity and other forms of injustice.
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Mutula Kilonzo — not Githu Muigai — is the one who is telling official Kenya the whole truth about what the new Constitution provides for on, for instance, who can or cannot offer his candidacy for the highest office in the land.
And, it seems, he is not saying it because he himself has a stake in it, but only because he is a prophet of both the letter and the spirit of the law.
That is why I prefer the minister to the AG.
ochiengotani@ke.nationmedia.com

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