Monday, September 07, 2009
By Miguna Miguna (The writer is a Barrister & Solicitor in Canada & Advocate of the High Court of Kenya. He is also the Advisor of the Prime Minister on Coalition Affairs).
The Kenyan media have reported that the Minister for Justice, National Cohesion and Constitutional Affairs, Mr. Mutula Kilonzo, yesterday (September 3, 2009) told the American Ambassador, Michael Ranneberger, to shut up. Mutula’s language was crude and undiplomatic. It was also bereft of any logic, reason or legal foundation. Rhetorically, it was in a league of its own; pugnacious and soaring.
But it is not what any reasonable person would expect from a minister of justice. Mutula ought to have limited the excretion of his loose tongue at the borders of coarseness. Unfortunately, he veered farther and much deeper; he entered the boundaries reserved for demagogues and miscreants. Even that might have passed the twiddle test had Mutula been an ordinary Kenyan. However, Mutula is the Minister of Justice, National Cohesion and Constitutional Affairs for all Kenyans!
Reports indicate that Mutula not only told Ranneberger to shut up and refrain from commenting on Kenyan law, he also threatened unspecified “government action” against the ambassador. That is ominous. It is not a threat Kenyans can take lightly.
I hold no brief for the American ambassador. I am also not aware that Ranneberger has his fingers up Mutula’s nostrils, preventing the minister from sneezing. But it is interesting that Mutula, who is a Senior Counsel, confesses that he is not competent in interpreting both British and American laws. In turn, he claims that no foreigner can interpret Kenyan laws. The logic is warped; the language crude. Significantly, Mutula has not told us what laws Ranneberger broke by communicating a message from Washington, DC to Nairobi.
The principles of legal interpretation are universal. They are not Kenyan, British or American. It is possible that a foreigner may be as good an interpreter of Kenyan law as any local expert. Professional expertise in legal interpretation is not Mutula’s exclusive preserve. Nothing prevents Ranneberger from interpreting the Anti-Corruption and Economic Crimes Act. No law prevents Ranneberger or the US administration from examining whether President Kibaki violated the law when he purported to reappoint Aaron Ringera for another 5 years.
It is immaterial whether the Kenyan Ambassador to Washington can interpret American law. No one has accused President Barack Obama of flagrantly violating the American constitution and law. Consequently, Mutula’s deflection is both ineffective and unconvincing. Mutula should deal with the charge that President Kibaki violated the law rather than saying that a foreigner has no right to criticize the President. Ad hominem is not a substitute for debate. The President is not God.
Recently, Mutula defended a Cabinet Memo and Draft Bill on the Independent Special Tribunal on post election violence, which strenuously argued that the independence of that tribunal would be guaranteed by a significant presence of foreign jurists. If foreigners are not allowed to interpret Kenyan laws, why hasn’t Mutula opposed the involvement of foreign jurists in Kenyan legal and judicial institutions?
Mutula is desperate, so he conveniently wraps himself in patriotic garb to attempt a cover-up of Presidential illegality and impunity. But like the principle of equity, patriotism demands that you approach it with clean hands.
But the main problem with Mutula’s arguments emanates from his job description. As the minister of justice, Mutula is compelled by law to be fair, objective, professional, competent and ethical at all times in relation to all matters and persons. As the minister for national cohesion and constitutional affairs, Mutula cannot act as a hatchet man for sectarian political forces. He is constitutionally compelled to respect the rule of law. National cohesion is only possible when a minister of justice discards parochial interests and affiliations and acts for the national good.
Clearly, when the President purported to reappoint Ringera as Director of Kenya Anti-Corruption Commission (KACC), Fatuma Sichale and Smokin Wanjala as Assistant Directors of KACC for additional five years, he flagrantly violated the law.
Subsections 8(2), (4) and (5) of the Anti-Corruption Act provide that the Director and Assistant Directors of KACC shall be persons recommended by the Advisory Board and approved by Parliament before the President announces their appointment to their respective positions. The Act stipulates that the “terms and conditions of service of the Director and the Assistant Directors shall be determined by the Advisory Board.
The law is therefore crystal clear that the President can only appoint a person a Director or an Assistant Director upon the Advisory Board recommending such a person for appointment to Parliament and the latter forwarding the name of the person to be appointed to the President. The President is compelled by law to announce the name forwarded by Parliament. The President has no power or discretion to appoint whoever he wants.
Schedule 1 of the Anti-Corruption Act that the President cited is not a substantive provision. It is anchored on the primary provisions cited above.
Rather than threaten Ranneberger with unspecified “consequences”, it is Mutula who should shut up and concentrate on delivering Kenyans from injustice, corruption, impunity and Presidential excesses.