Saturday, November 5, 2011

Why Moi is restless in retirement

For the 24 years he was president, Mr Moi enjoyed immunity, meaning no civil or criminal suits could be filed against him. It has not been the case in retirement. Photo/FILE

For the 24 years he was president, Mr Moi enjoyed immunity, meaning no civil or criminal suits could be filed against him. It has not been the case in retirement. Photo/FILE 

By KIPCHUMBA SOME [email protected]

At the peak of the Moi presidency in the 1990s, Mr Rashid Sajjad was an influential man in Coast business and political circles.

To crown his influence, President Moi nominated him to Parliament in 1998.

Together with fellow businessmen Mohammed Bawazir and Mohammed Zubedi, Mr Sajjad made sure that civil servants who dared resist his demands lived to regret their actions.

Their relationship with President Moi blossomed beyond politics and veered into business, including real estate.

Fast forward to 2011. Mr Sajjad and Mr Bawazir have taken the former President to court claiming he employed State resources to harass them into altering the terms of an agreement for a 0.49 piece of beach land that Mr Moi allegedly sold them for Sh7.5 million in 1993.

The case is pending in a Mombasa court. Mr Sajjad’s case is the latest in a litany of court actions that seem to be making Mr Moi’s life in retirement hardly comfortable.

Indeed when the 87-year-old former president ought to be enjoying his State-funded retirement, he is spending a considerable amount of his time and resources briefing his lawyers as he fights off a growing catalogue of cases filed mostly by former political and business associates.

It all started with a farmer suing him in 2004 for alleged loss of land soon after Mr Moi’s retirement.

Eight years down the line, the trickle seems to have developed into a steady stream and a recent verdict against him is threatening to turn into a tide of civil and criminal suits.

Presidential immunity

For the 24 years that he ruled, Mr Moi enjoyed presidential immunity, meaning no civil or criminal suits could be filed against him.

However, legal experts now contend that in the absence of this privilege and an increasingly assertive Judiciary, all those who had grievances against the former president have every reason to believe they can get justice now.

“I think more people who were aggrieved by the former president feel that things have changed since he left office and are willing to seek justice in court,” says city lawyer Paul Mwangi who has represented two clients who have sued Mr Moi over business-related disputes.

Under the old Constitution, the President enjoyed immense powers, among them the power to make appointments to key positions in the Judiciary.

The President appointed judges to the High Court and Court of Appeal.

“Ideally it was a Judiciary that owed their positions to the presidency. No matter how meritorious a case could have been, there was always suspicion that they could never be truly impartial,” said Mr Mwangi.

Aggrieved parties

Electoral related cases were the only ones brought against him by opposition leaders after they lost the 1992 and 1997 general elections.

But the aggrieved parties could not even get close to personally serving him the suit papers as required by law and hence the cases were dismissed.

But in February 2004, Mr Malcom Bell became the first person to sue Mr Moi after he left power.

A large scale farmer in Nakuru, Mr Bell accused the former president of grabbing 110 acres of land that belonged to his father, the late Walter Bell.

What made the case interesting is the fact that the two are close neighbours who share a fence in Kabarak. In November 2006, the Appeal Court threw out Mr Bell’s case.

Merits of the case aside, the case proved one vital point: that Mr Moi was indeed not above the law. Although Mr Bell’s case did not open a floodgate, more cases followed soon.

Enter former Mathioya MP Francis Njakwe Maina. The politician went to court in 2005 seeking Sh217 million from Mr Moi.

He claimed that Mr Moi had failed to settle a debt arising from the construction of three classroom blocks at Nairobi’s Moi Educational Centre. The matter was settled out of court.

Traditionally, the bane of former presidents in Africa has always been their successors.

Former presidents often find themselves on the receiving end of political and legal machinations orchestrated by their successors. Zambia offers perhaps the best example in this regard.

Nearly 30 years

Founding President Kenneth Kaunda was humiliated out of office by his successor Frederick Chiluba.

Their wars peaked when Mr Chiluba declared that Mr Kaunda was not a natural born Zambian, even after leading the country for nearly 30 years.

But Mr Chiluba soon became a victim himself after retirement. His vice-president and successor Levy Mwanawasa lifted his immunity and put him on trial for allegedly stealing from State coffers as president.

Mr Mwanawasa died in office and was succeeded by Mr Rupiah Banda who was recently defeated at the polls by opposition candidate Michael Sata.

President Sata has accused his predecessor of corruption and it seems Mr Banda may be destined for the courts.

Protect predecessors

In Kenya, the direct opposite is true. Incoming presidents seem determined to protect their predecessors.

Take the Moi-Kenyatta relationship for example. During his 15-year rule, Kenya’s founding President Jomo Kenyatta was accused of several excesses.

But, on succeeding him in 1978, President Moi pledged to follow his mentor’s footsteps (fuata nyayo), a statement that was interpreted as a reassurance to the Kenyatta family and his allies.

The same scenario has played out in the Kibaki-Moi relationship.

When the opposition routed Kanu from power in 2002, some thought Mr Moi would be prosecuted for economic, civil and political crimes he had long been accused of.

To date, President Kibaki’s government has not brought a case against his predecessor.

By and large, it is Mr Moi’s business associates who have filed most of the suits against him.

In 2006, businessman Joseph Wainaina Iraya sued Mr Moi for breaching an agreement for sale of land located in Eldoret. The court ruled in Mr Moi’s favour in January 2007.

It is instructive that most of the cases involve land. The Moi family is regarded as one of the largest land owners in the country, possibly rivalled only by the family of his predecessor Kenyatta and the Koinange family.

Overall, the cases have greatly demystified the Moi phenomenon. In 2008, residents from Baringo Central, the constituency he represented for more than 50 years, went to court in a bid to have a secondary school owned by Mr Moi revert to public ownership.

The applicants claimed Mr Moi clandestinely transferred Sacho High School into private hands yet the local people had contributed towards its construction. The more than 50 applicants lost the case in February.

“For these simple peasants to have filed a case like that one indicates that a great deal of aura that surrounded him has somewhat disappeared,” said yet another lawyer who represented Moi in previous cases but who requested not to be named.

Former detainee

In April Mr Moi was ordered by the High Court to pay nearly Sh2 billion to a former business partner and detainee.

Mr Stephen Mwangi Mureithi had sued Moi for illegally detaining him without trial with the aim of gaining commercial advantage.

He argued that Mr Moi took over property they jointly owned without his consent and sought compensation for the same.

The court found Moi liable for detaining Mr Mureithi in 1982. Mr Moi has appealed the ruling.

The ruling was significant in two ways: It marked the first time Moi had lost a major case. Secondly, the case touches directly on gross human rights violations committed during his watch.

Lawyers contend that Justice Jean Gacheche’s ruling is likely to open flood gates of suits over illegal detention.

Tens of people were illegally detained and tortured during Moi’s rule.

Already in July, former Alego Usonga MP Oloo Mak Onyango filed a similar suit against Mr Moi for illegal detention in 1982.

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