ILLUSTRATION/J NYAGA Mr Kenyatta and Mr Muthaura’s decision to step aside after his declaration has left Prof Muigai with egg on his face and opened a window for the most livid criticism and interrogation of his record at the State Law Office.
By EMEKA-MAYAKA GEKARA gmayaka@ke.nationmedia.com
Posted Saturday, January 28 2012 at 22:30
Posted Saturday, January 28 2012 at 22:30
Granted, pinching somebody’s nose has never been a career- threatening matter in Kenya.
Yet, for the “simple” allegation that Deputy Chief Justice Nancy Baraza pinched a security guard’s nose at a shopping mall, she has been suspended from office, awaiting an investigation into her conduct.
Last Thursday Ms Baraza’s lawyer Dr John Khaminwa had a most hilarious characterisation of the altercation between Ms Baraza and Rebecca Kerubo.
He wondered how a “simple misunderstanding between two women at a marketplace” can lead to suspension of a person, no less a judge of the Supreme Court.
Times have changed. A simple misunderstanding between two women at a marketplace is no laughing matter.
If in doubt, Dr Khaminwa should ask Chief Justice Willy Mutunga and Attorney-General Prof Githu Muigai.
The two eminent law scholars are members of the commission that recommended Ms Baraza’s suspension. (READ: Kibaki suspends Baraza)
Criminal trial
Even then, Dr Mutunga was keen to clarify that the Judicial Service Commission’s decision was not a criminal trial.
What is mind-boggling, however, is Prof Muigai’s position in response to calls for suspension from office of the two of the four Ocampo suspects.
Unlike Ms Baraza, who has not been subjected to any criminal proceedings, Deputy Prime Minister Uhuru Kenyatta and former Head of Public Service Francis Muthaura have been indicted by the International Criminal Court.
The ICC has committed them to trial for charges of crimes against humanity, including murder, rape, persecution and forcible transfer of population.
In what was has been criticised as a case of double standards, Prof Muigai relied on a different set of laws and stressed that the two would stay in office until they exhausted their right of appeal.
“As you all know, cases against the four were confirmed, and they have indicated they will be lodging appeals; at this stage the government cannot take any action until those appeals are exhausted,” he said.
He insisted there was nothing contradictory in the decision, saying the law presumed the two men innocent until proved guilty.
He then set up a panel of “eminent” lawyers to advise the government on the ICC matter. (READ: Uhuru, Muthaura to stay in office, says AG)
Senior lawyers, including Justice minister Mutula Kilonzo and his Lands counterpart James Orengo and members of the Law Society of Kenya and the civil society went for the jugular.
Mr Orengo dismissed the Mugai panel, saying it was not a decision of the coalition government.
The minister made it clear that the ODM wing of the coalition would not accept the team’s recommendations, a position that might render it ineffectual.
Civil society has also described the chief government legal adviser as a failure, noting that his position on the ICC cases makes his predecessor Amos Wako “look like a reformer.”
Prof Muigai’s judgement, said the Civil Society Congress, raises concern about the quality of legal advice at the disposal of the President and government’s commitment to the ICC process.
“I am totally convinced that Chapter Six and Article 75 of the Constitution demands that someone who is accused of such offences step aside pending determination of the case. Their stay demeans the integrity of their offices,” argued Mr Mutula Kilonzo.
Mr Orengo said no “stretch of imagination” could allow the two accused to remain in office.
“Surely, drafters of the Constitution would have not intended removal from office of those charged with theft, and spare those facing crimes against humanity, including rape and murder,” wrote our sister paper, the Daily Nation, in a Thursday editorial calling on the two to resign.LSK chairman Kenneth Akide said the criminal charges preferred against them are probably the “most serious known to law”.
Well, Mr Kenyatta and Mr Muthaura’s decision to step aside after his declaration has left Prof Muigai with egg on his face and opened a window for the most livid criticism and interrogation of his record at the State Law Office.
There are those who argue that less than a year into his post, Prof Muigai’s tenure has been defined by missteps and a perception that he leans towards President Kibaki’s Party of National Unity.
Questions are being raised about his declaration of the possibility of a setting up a section of the High Court to try the Ocampo Four.
Mr Orengo dismissed the suggestion saying that once the ICC has taken jurisdiction of cases, a state party cannot take them back. Secondly, the decision to set up the court can only be made by Parliament with the cooperation of the Judiciary.
The two are independent arms of government. Opposition is also emerging over the extent of the AG’s involvement in The Hague proceedings.
While Prof Muigai defends the state’s involvement in the matter through his office, Mr Kilonzo says the AG has no business in a court case in which the state is not a party.
Prof Muigai argues that the Kenyan government, as state party, must continue to be actively involved in the case because it has a right and obligations under the Rome Statute and must act in the best interest of its sovereignty and its people.
Prof Muigai and Director of Public Prosecutions Keriako Tobiko flew to The Hague during the confirmation of charges hearings for the Kenyatta case, saying their mission was ensure the rights of the suspects and Kenya’s sovereignty were protected.
But Mr Kilonzo is dismissive of Prof Githu’s judgement. He cites Article 156(4) of the Constitution which says:
“The Attorney-General shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings.”
Mr Kilonzo’s argument is two-fold: that the events at the ICC are criminal proceedings, and Kenya is not on trial; individuals are.
Instead, the minister, who is a senior counsel, advised that the matter be addressed by the DPP, who has established a team to review about 5,000 files on post-election violence, some touching on the accused.
Instead, the minister, who is a senior counsel, advised that the matter be addressed by the DPP, who has established a team to review about 5,000 files on post-election violence, some touching on the accused.
“I am aware that some of the files touch on Mr Sang and Mr Ruto, who had recorded statements with the police as part of post-election violence investigations,” Mr Tobiko told the Sunday Nation.
A section of civil society now accuses Prof Muigai of being part of a government effort to frustrate the ICC proceedings.
And it does not help that last year, a furious Uhuru Kenyatta and Eldoret North MP William Ruto – also indicted by the ICC – threatened to censure House Speaker Francis Marende over his ruling rejecting President Kibaki’s nominees for top posts in government, who included Prof Muigai.“The agenda of the AG and his paymasters is to scuttle the ICC process. The two lawyers in the panel had previously worked for the government to defer the cases,” said Mr Morris Odhiambo, the chairperson of the National Council of NGOs.
Well, this is not the first time the AG has found himself in the eye of a storm. He was recently caught up in ugly spat with Mr Charles Nyachae, the chairman of the team spearheading implementation of the Constitution.
In the altercation which saw the intervention of a parliamentary committee, Mr Nyachae accused Prof Muigai of living in the “old order” and being an impediment to implementation of the supreme law.
“Whereas the Attorney-General may be handpicked by the President, his or her ultimate client is the people of Kenya,” said the Nyachae team.
“It is a horrible irony that the Attorney-General should be the face of resistance to the clear provisions of the Constitution; that the purveyors of impunity from yesteryear should find comfort and energy in an Attorney-General appointed under the Constitution of Kenya, 2010.”
Prof Githu shot back, saying the AG was an independent office and Mr Nyachae was not his supervisor.
The two have since buried the hatchet, but it appears there are interesting times ahead for the professor at the State Law Office.
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