Distinguished 40-year career blotted by past Kanu links and queries over JM’s estate

Two things stand out from a review of lawyer Lee Muthoga’s voluminous and fairly impressive CV: His passion for children’s rights and his decades’ long advocacy for lawyers and, by extension, the public through the Law Society of Kenya.

Mr Muthoga is one of the elite lawyers conferred with the title Senior Counsel in 2003.

His journey to the upper echelons of the bar was accidental. According to an account in Paul Mwangi’s book Black Bar on the Kenyan Judiciary, the young Muthoga resolved he would be a lawyer after one confrontation too many with colonialists who governed the country by the agency of brute force.

His father had been arrested in 1952, when he was only seven years old.

“He had been walking with his mother from the market towards (home) when a land rover stopped beside them. His father put out his head from the back and informed his mother that he had been detained and was en route to a detention camp. Three days later, a white administrator, accompanied by several African askaris, arrived at their home and began interrogating his mother. He couldn’t hear what was being said as he stood some distance away.

Lost control

“Then, all of a sudden, the white administrator began whacking his mother with the official cane he carried. As the third stroke landed, Lee felt the blood rush to the head and he lost control. He rushed to where the company stood and grabbed the cane from the white man, throwing his small body against him. Almost thrown to his feet, the administrator grabbed back the cane and gained control of himself moments before he hit the boy. An uncomfortable moment followed. The askaris had already cocked their guns and they held them pointed at the boy. Lee stepped back, still staring defiantly, and slowly walked back to where he stood. No more whacking followed.”

The young Muthoga, the book says, resolved he would one day be a judge to punish injustice. But an incident when he was a student of law at the University of East Africa in Dar es Salaam nearly derailed his journey to the roll of advocates.

Outraged by the decision by President Kenyatta’s guards to shoot live rounds of ammunition into a crowd in Kisumu supportive of Jaramogi Odinga in 1969, Muthoga mobilised students to write a letter to Kenyatta indicating their unhappiness with the repressive bent of his regime.

It was an extraordinary step considering the fact the autocratic president was almost considered above criticism.

The issue caused a diplomatic row between Kenya and Tanzania. The Kenyan authorities demanded that the students be deported. The university was initially inclined to obey the order because the students had breached a rule requiring students to clear any letters to ministers, assistant ministers and civil servants with the principal.

The students wiggled out of the crisis on a technicality, as would be expected of bright young lawyers. They told the principal, Dr Wilbert Chagula, that they had not breached the rules because the regulations did not specify President as one of the officials to whom an unauthorised letter should not be sent.

The solution to the standoff was a legal fudge. The rules of the university were suitably amended and on its part the Kenyatta government dispatched 20 intelligence officers masquerading as students to the university.

That background serves to explain the trajectory of Mr Muthoga’s career once he returned to the country.

He was admitted to the roll of advocates in 1971 and soon displayed his appetite for advocacy by becoming a member of the council of the Law Society of Kenya in 1976. Three years later he was elected LSK vice-chairman and in the same year he became chair of the Legal Aid Committee of the society. In 1981, he was elected chairman of the LSK.

The defining issue of those early years was Mr Muthoga’s battles with Attorney General Charles Njonjo.

Mr Muthoga and other colleagues in the LSK demanded that the bench should be Africanised and there should be more black African judges running the Judiciary.

This campaign was vigorously resisted by Mr Njonjo, a confessed Anglophile. The standoff led to strained relations between Mr Njonjo and Mr Muthoga.

That hostile relationship came into public view during the commission of inquiry into the conduct of Mr Njonjo appointed by President Moi following claims that Mr Njonjo had been plotting to overthrow him.

In a typically shrewd move, Mr Moi appointed Mr Njonjo’s old enemy, Lee Muthoga, as the lead counsel of the commission. Some critics have said that the commission was a charade because the political decision to end Mr Njonjo’s career had already been taken and the commission could hardly have found the former AG innocent.

That is not something that can be held against Mr Muthoga since he was commissioned to do a lawyer’s job and, by all accounts, his performance was impressive.

Much harder to justify is Mr Muthoga’s role in the infamous Saitoti committee appointed in 1991.

Reeling under pressure from domestic critics and Western powers demanding democratic change, Mr Moi appointed a committee headed by Prof George Saitoti to advise on whether Kenya was “ready” for multi-party politics.

It was, like many such committees and commissions in the Moi years, a charade. The committee went around the country collecting views on whether the country was ready for multi-party politics and whether the democratic space should be expanded.

The answer, on the face of it, was obvious. The wind of democratic change was sweeping across Sub-Saharan Africa and Eastern Europe and it was clear that democracy – not personal rule – was the mode of governance most of the world was embracing.

But the Saitoti committee said that Kenya was not ready for multi-party politics, a verdict which can only be viewed as geared to satisfy the desires of President Moi.

The committee concluded that they saw no need for any changes to the way the president was elected, saying that the presidency was a symbol of national unity and that leadership was “God Given”.

But shortly after the committee completed its work, Mr Moi announced that he would allow multi-party politics and there would be a contested presidential election in 1992. Mr Moi, cunning as ever, came across as a man of the people willing to bow to the popular will.

A less controversial subject on which Mr Muthoga has worked on for decades is the field of children’s rights. His work in the field sets him apart as one of the pre-eminent legal actors in the continent on the field of children’s rights advocacy.

Since 1989, he has been chairman of the African Network for Prevention Against Child Abuse and Neglect, a pan African network that promotes child rights and child protection in Africa.

One of his first tasks in that role was to organise the ANPPCAN National Conference on Promotion of the Ratification and Implementation of the UN Convention on the rights of the child, considered an important moment in the efforts to protect children from maltreatment such as deployment as child soldiers and their use in child labour.

His role has been recognised in many countries and between September and October 1993, he undertook a United Nations Children’s Fund (Unicef) consultancy to review Zambian laws relating to the child.

One of the advantages Mr Muthoga might be able to call upon to support his candidacy is his experience as a judge in the International Criminal Court for Rwanda in Arusha, a position to which he was elected in 2003.

As a judge of the ICTR, he was a member of the bench that convicted Jean Baptiste Gatete, a former mayor accused of genocide and extermination during the 1994 genocide.

The judges ruled that there was sufficient proof that Gatete issued orders that ethnic Tutsi refugees be killed in co-ordinated attacks at various church parishes, resulting in killing of thousands of Tutsis. The decision has been lauded as progressive and a positive step towards the fight against impunity.

Considering that one of the biggest judicial challenges the nation faces is the subject of how best to manage the imperative of transitional justice in the wake of the violent aftermath of the last elections, this experience will be viewed as an asset.

However, if he is endorsed for the job, Mr Muthoga will have to contend during confirmation hearings with the one controversy that has been linked to his legal work and which has lurked beneath the surface for many years.

Mr Muthoga, founding partner of Muthoga, Gaturu & Company Advocates was the lawyer of the fiery populist politician JM Kariuki who was murdered in 1975. The assassination was widely held to have been sanctioned by the state.

Following his death, some members of JM’s family claimed that Mr Muthoga was less than cooperative in their efforts to establish whether the late politician left a will and what the size of the estate was.

In an interview with the Nairobi Law Monthly published in February 1992, one of JM’s widows Doris Nyabura Kariuki aired several complaints about Mr Muthoga and spoke of the financial hardships the family endured after JM’s death.

“During the funeral which took place in our Gilgil shamba which Kariuki had pointed out when he was alive, many of his friends including Mwai Kibaki, GG Kariuki, Mark Mwithaga and others pledged to help the family to be able to educate the children and pay off debts. After the funeral, however, none of these people ever kept their promises. Even my husband’s lawyer and personal assistant Lee Muthoga did not assist us. Kariuki had repeatedly stated that all his dealings were handled by Muthoga. We therefore got surprised when, instead of Muthoga coming to read Kariuki’s will, he asked me to produce a certain file that had been given to me by my husband for safekeeping. I did not know what the file contained. Muthoga informed us that the file contained ‘dangerous information’ that could bring adverse consequences to ourselves and he proposed that we burn it. He burnt the file. He later told us that it was an income tax file. I later doubted the correctness of this wondering why Kariuki would have kept the file for so long; he would have burnt it at the earliest opportunity – the moment he received it.”

Ms Nyambura Kariuki complained that the family had been left in dire financial circumstances despite the wealth of the fallen millionaire politician.

They later wrote to Mr Muthoga complaining about the issue. Mr Muthoga handed over the estate to the public trustee.

The Kariuki family’s account, repeated during the 25th anniversary of JM’s death, provides an issue that can be expected to feature in any confirmation proceedings.

In the edition of the Nairobi Law Monthly where the original accusations were aired, Mr Muthoga vigorously denied the claims.

He said JM died at a time when he was deep in debt and said the politician did not leave a will. “There was no will and there is no doubt about it. And let me tell you that none of them has ever told me they suspect there was a will.”

One of the more prominent lawyers of his generation, Mr Muthoga has had the honour of serving in numerous committees within and outside Kenya.

In 2003, he was appointed to head the commission of inquiry into the air crash in Busia that was possibly the first major crisis in the early years of the Kibaki administration. Mr Muthoga was also appointed to head the constitutional tribunal formed to hear the cases of judges that had been removed from the bench during the radical surgery into corruption in the judiciary. The way he conducted the trials drew one of the main complaints that some lawyers lay at his door – that he has a conservative streak.

In an opinion article, constitutional lawyer Wachira Maina described Mr Muthoga’s decision not to hold public hearings retrogressive.

“Mr Muthoga’s decision to shut the public out of the hearings of the Constitutional Tribunals investigating the suspended judges is a giant step backwards. He now risks perpetuating the very culture of secrecy that sustained judicial corruption and delinquency.  As a matter of prudence, then, this is a terrible rule. But it is not just a question of choice and taste…First, the decision serves no purpose and merely erodes the little confidence the public still has in Judiciary.

‘There are already disgruntled murmurs that the in camera rule merely sustains the institutional incest in the legal profession. It is thought that, once the tribunals begin hearing, some judges will, almost certainly, name the lawyers with whom they consorted in the past. On this view, Mr Muthoga’s in camera rule is highly suspect.

‘Second, justice, as has been said, is not a cloistered virtue. It is best vindicated in the open. Hence the rule that ‘justice must not only be done, it must manifestly be seen to be done.’ That last bit – ‘be seen to be done’ – means ‘be seen by the public’. A charge of corruption against a judge is a serious charge, indeed. The judges now about to be investigated have been publicly named.

‘They have been openly accused of corruption and of dishonouring their oath of office.  Given this, the in camera rule is the worst of all possible worlds. It short-changes the innocent and unduly protects the guilty. Both results hurt the public interest. The public is as keen to see the innocent openly vindicated as it is to see the guilty publicly shamed.” 

No jurist – especially one that has had as long a career as Mr Muthoga’s and been appointed to many positions that are accompanied by public scrutiny – can reasonably be expected to end that career without a brush with controversy.

With his international experience, his record of advocacy and his intimate knowledge of the Judiciary, Mr Muthoga is eminently qualified for the position of Chief Justice.

The question the JSC will have to grapple with is whether the 65-year-old lawyer is the best bet to drive judicial reforms.

Reported by Dennis Mosotah and Murithi Mutiga