Letter to the Prime Minister:

MIGUNA MIGUNA, BA, LLB, LLM
Barrister . Solicitor . Advocate . ADR Consultant
P.O. Box 1522-00621
NAIROBI, KENYA

31 December 2011

The Rt. Hon. Raila Amolo Odinga, EGH, MP
Prime Minister of the Republic of Kenya
Prime Minister’s Building
P.O. Box 74434-00200
NAIROBI “WITHOUT PREJUDICE”

Dear Sir,

RE: REINSTATEMENT

Further to our three-hour meeting at the Serena Hotel, in Nairobi, on Tuesday, December 27th, 2011, regarding the subject of reference, at the conclusion of which you and I arrived at a mutual, unanimous and good faith agreement that you would issue both a statement and letter containing four items, viz :

1. That the suspension of Mr. Miguna Miguna, the Prime Minister’s Advisor on Coalition Affairs, be rescinded, unconditionally, with immediate effect, since it was determined that all the allegations against him were unfounded;

2. That Mr. Miguna is hereby ordered reinstated, forthwith;

3. That all arrears, emoluments and accrued interests owed to Mr. Miguna, be paid to him, forthwith; and

4. Upon resumption of duty, Mr. Miguna would be reporting DIRECTLY to the Prime Minister.

Sir, as you recall, we agreed that because you were departing for a ten-day trip to India, you would give instructions for both the letter and a Press Release containing four items agreed on, above, to be issued the same day. In fact, we prepared an agreed draft statement, a copy of which you were to provide to your staff so as to ensure that the subsequent statement and letter would accurately reflect, in letter and spirit, the said good faith agreement, which was duly witnessed by our mutual friend.

Mr. Omondi subsequently issued a Press Statement the following day, Wednesday December 28th, 2011, in which he only partially captured the terms of the agreement, and curiously, inserted a condition pertaining to the withdrawal of pending court cases, which was never a subject of our discussion, was not agreement on, and was not to be included in any statement.

At about 5:30 p.m. on December 28th, 2011, I received a letter dated December 27th, 2011, signed by Abdul Mwasera, for “Permanent Secretary.” Regrettably, the letter did not contain any of the four items we had agreed on. Not only was Mwasera’s letter totally at variance with the terms of our agreement; it also dramatically contradicted, and was inconsistent with, Caroli’s statement to the press.

In point of fact, the letter negated each and every item of our agreement. After careful review and analysis of both Caroli’s statement to the press and Mr. Mwasera’s letter, I have concluded that the letter, though titled “reinstatement,” is actually not a reinstatement letter, but a “warning” and a “disciplinary” letter.

Besides, Mr. Mwasera’s letter makes reference to alleged findings of “investigations,” yet no report pertaining to any investigations was enclosed therein. In addition, Mr. Mwasera’s letter asserts: “Please note that before resumption of duty, you are required to withdraw any pending court case(s) as regards the matter.”

Sir, the Constitution gives everyone, including state and public officers – even judges – inherent rights to seek judicial intervention in the event of a dispute, whether such dispute is with respect to labour, employment, contractual, or any other legal issues between parties. If such cases were to be resolved, negotiations would occur within the context of the principles of law, and counsel representing parties would be involved. That was not the case concerning our informal meeting on December 27th.

Further, the letter states that upon my reinstatement, I would be required to “sign Local Agreement form G.P. 106 (Revised) before resumption of duty.” Again, Sir, this was not discussed or agreed on. I have been working for the Government of Kenya since March 6, 2009 without having signed the “local agreement”, due to reasons well known to you. As well, there is a matter pending before the Industrial Court, regarding this issue. Once more, there are well established mechanisms of settling ongoing cases, which would have to be adhered to. I am not prepared to, and will not, waive my legal and constitutional rights regarding this, or any other matters. In any event, we never discussed the issue of signing any “local agreement” forms, and no such issue was to form part of the reinstatement exercise.

Upon receipt of Mr. Mwasera’s letter, I sent an email to Caroli Omondi, pointing out the above noted infractions and indicated that I needed Mr. Mwasera’s letter formally withdrawn and replaced with a fresh one containing all the itemized terms we had agreed on, by latest December 30th, 2011. Mr. Omondi also received a short text message concerning the matter. I subsequently sent you a short text message, and copied it to Mr. Omondi, on the same. To date, I have not had the courtesy of any response, either to my letter or to the short text messages.

Evidently, Mr. Mwasera’s letter does not conform – in tone, form or content – with both the spirit and letter of the mutual agreement you and I entered into on Tuesday, December 27th, 2011. Indeed, it is a deliberate and clear misrepresentation of our good faith agreement, which was evidenced in writing, and witnessed by the mutual friend. We had agreed, further, that in your absence, I was to only deal with Caroli on this matter.

As we both acknowledged during our Tuesday meeting, no investigations have been conducted over the unfounded allegations against me. I have not been advised of any investigations, nor was an independent investigator or investigators appointed to deal with the matter; neither have I been invited to present my full and complete answer to the allegations, as required by law and the principle of natural justice. As well, we both acknowledged that there has been no process – credible or not credible - established to determine the validity of the allegations, and I have never been invited to attend before any such process, as required by law.

Sir, I take great exception to the casual, inappropriate and unprofessional manner your office has handled this important matter. As I indicated to you during our meeting, I believe that the continued refusal to release my personal effects to me and to pay the emoluments that I am at law entitled to, constitutes malice aforethought. May I have all my personal effects, arrears and emoluments delivered to me immediately?

Accordingly, I regret to inform you that, in view of the serious and arbitrary departures from the terms of our good faith agreement, I cannot accept the terms of reinstatement as contained in Mr. Mwasera’s letter.


Yours very truly,



MIGUNA MIGUNA

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