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When lawmakers use guile to further impunity

Sunday August 18 2019


Kiambu Governor Ferdinand Waititu is arraigned at Milimani Law Courts in Nairobi on July 29, 2019 over abuse of office. Based on the Justice Mumbi Ngugi ruling on governors facing criminal charges, he stands barred from accessing his office. PHOTO | FILE | NATION MEDIA GROUP 

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Today being Sunday, let me start with a story from the Holy Bible.

When Jesus Christ walked in this world, there lived a curious specimen of human beings called the Pharisees. A close breed to that in today’s world are a people called lawyers.

In their own circles they refer to the other as “my learned friend”, as if to suggest other professionals didn’t last long in the classroom.

Now, one Sabbath day, a disabled man pleaded with Jesus to cure his limbs and it was done. The Pharisees were so offended that Jesus could break the Law of Moses by healing a person on a Sabbath day.

But Jesus sought to correct them by saying: “Sabbath was made for man, not man for the Sabbath.” He added: “For which is lawful on a Sabbath: to do good or to do evil? To save life or to kill?”

In other words, Jesus was saying that no argument of law should be used to defend what isn’t right, what isn’t for common good, what is scandalous.



This is how it was in the case of Richard Nixon – what came to be infamously known as the Watergate Scandal.

In the wee hours of June 17, 1972, five men were caught breaking into the headquarters of the US Democratic Party housed at the Watergate building in Washington.

It easily would have passed as a case of ordinary burglary but for several smoking guns that pointed to a big high-level conspiracy.

First, it happened to be an election year where the Republican incumbent Nixon was pitted against Democratic candidate Senator George McGovern.

Then out of the blues in the heat of the campaigns, five “burglars” were caught breaking into offices of the Democrats.

When searched, two of the “burglars” had address books with scribbles “W. House” and “W.H”.

The gang was also found to be carrying bugging equipment and miniature cameras obviously intended for secret installation.


Suspicions were raised al over that this couldn’t have been just another break in by petty thieves.

Secondly, it looked obvious that the mission was politically motivated, and that the five weren’t acting alone. Fingers were pointed in the direction of the White House.

The media had a field day as tips and leakages kept coming. Two youthful Washington Post reporters, Bob Woodward and Carl Bernstein, particularly stood out as they penned an exposé after another on the scandal.

Feeling cornered, President Nixon went on the rampage to save his presidency. He assembled a team of lawyers to work with his co-conspirators inside White House.

Their simple instructions were to do anything possible – including breaking the law – to shield Nixon from inevitable impeachment and prosecution.

The first strategy was to isolate the five “burglars” and make argument that the intended bugging of the Democrats offices was to obtain information for personal use on extortion purposes, and not at the request of the White House.


The strategy temporarily worked and Nixon was easily re-elected for a second term with near landslide.

But six months into his second term, the Watergate ghost returned to haunt him with renewed fury.

Thanks to leakages of highly classified information by then-deputy director of the FBI, one Mark Felt, to the Washington Post duo, Woodward and Bernstein, the noose began to tighten on Nixon.

It came out that the break in at Watergate building had been arranged inside White House by two members of the Committee to Re-elect the President (the CRP code-named “Creep”).

The two happened to be ex-CIA and ex-FBI agents who had since been employed by the President to do his dirty jobs.

Instead of advising their man to own at that point, Nixon lawyers went on overdrive in attempt to obstruct justice.

They stone-walled; they lied; bribed and intimidated, but nothing doing.

Finally on August 8, 1974, with impeachment and prosecution knocking at his door, President Nixon resigned and went home a forlorn, shamed man.


His successor, Vice President Gerald Ford, issued an executive pardon to save his former boss from a long term in jail.

But Nixon's partners in crime, led by his chief counsel, found a new home in prison where they remained for donkey years.

In the Kenyan matter, lawyers have shown their bad and ugly, arguing which officer, state or public, should step aside once arraigned on charges under the Anti-Corruption and Economic Crimes Act.

The trigger for the debate is two ongoing cases under the act, involving governors Moses Lenolkulal of Samburu and Kiambu’s Ferdinand Waititu.

Since aspects of the two cases are still in the courts, we won’t discuss them here.

However, we can freely discuss views expressed on the subject by lawyers other than those involved in the two cases.

The entire debate arises from provisions of the Chapter Six of the Constitution, which states at Article (73) (1) that, "Authority assigned to a State officer is a public trust to be exercised in a manner that demonstrates respect for the people, brings honour to the nation and dignity to the office, and promotes public confidence in the integrity of the office.

In Article 260 that defines a “State officer”, item (h) lists “a member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government”.


Under the Anti-Corruption and Economic Crimes Act, a state officer charged in court must step down from office pending conclusion of their trial, the period of which such officer will be on half salary.

However, parliamentarians in conspiracy with lawyers, when crafting the act, contradicted the above requirement in Section 62(6) where they introduced another category of state officers they called “constitutional office holders” – governors among them – who supposedly shouldn’t step aside when arraigned in court under the same act because they are “public”, not state officers.

Talk of splitting hairs? What is the difference between a “state” and a “public” officer as long as both hold office in public trust?

Better still, who is lesser or better thief among them once they have stolen public money?

By the way, have you noted that when it comes to protecting public money, many lawyers and lawmakers have a lot in common with alley cats?

And, ever wondered why Parliament is also called August House, the name of the coldest month.

Is it because as far as the Kenyan Parliament is concerned freezing and fleecing mean the same?


In making a determination in the Criminal Revision Case No. 25 of 2019, Justice Mumbi Ngugi said of the Section 62(6) that was sneaked in by crafty lawyers and Parliament: “Could the people of Kenya have wished to have their legislative authority, which they have delegated under Article 1 to the Legislature, be exercised in such a way as to pass legislative provisions such as Section 62 (6) that allow state officers whose removal is provided for in the Constitution to remain in the same offices they are alleged to have abused and used them to their personal enrichment, to the detriment of the public they are supposed to serve?”

“Should they continue to enjoy the trappings of the office as they face corruption charges alleged to have been committed in the office and (yet) remain in the same offices?”

The gracious lady judge went on to say: “It seems to me that the provisions of Section 62 (6), apart from obfuscating, indeed helping to obliterate the political hygiene to the constitutional requirements of integrity, are against the national values, and the principles of leadership in Chapter 6 of the Constitution.

"In so doing, they entrench corruption and impunity in the land.” Who can’t agree with the gracious lady? – maybe only Richard Nixon were he alive!


But what has been most hilarious, if not comical in the debate, is the argument by lawyers – some very senior – that there is a difference between “office” and “the office”, and that all is required by the Anti-Corruption and Economic Crimes Act is that one does not go to the physical office where they worked once charged, but continue exercising same authority and performing functions of the office from wherever they wish – even in their bedrooms I suppose! Whoever said law is an ass – anything goes!


I guess lawyers will dismiss me by saying I stand misguided, while their brethren in the Fleecing – oops, Freezing House, will say I am out of order.

It reminds me of a story I heard somewhere. Once upon a time, Angel Gabriel and Lucifer agreed to build a bridge between heaven and hell so that those who repented in hell could climb up to heaven.

Long after Angel Gabriel had completed the bridge halfway from his side, no work had begun yet from the Lucifer side. Why? Because he gave the job to lawyers and lawmakers!