Wetang’ula behaving as if he is Bashir’s lawyer

Saturday December 10 2011



I am very disturbed by recent utterances by Foreign Minister Moses Masika Wetang’ula.

Kenya’s chief diplomat sounds as though he works for Sudanese President Omar al-Bashir.

Mr Wetang’ula’s pronouncements put in question his academic pedigree and political morality.

Simply put, the man has compromised Kenya’s dignity in the eyes of the world. But this is nothing new for him.

At the University of Nairobi in the 1980s – where Mr Wetang’ula was a year ahead of me – his vigorous defence of the repressive Kanu state set him apart.

The man has always been on the wrong side of history. That’s why I wasn’t shocked by his indefensible – and unconstitutional – attack on the High Court for rightly ordering Kenya to arrest President Omar al-Bashir.

Mr Wetang’ula is “Kanu” through and through. By “Kanu,” I mean that he condones impunity and has little regard for the rule of law. To his ilk, the judiciary is nothing but a handmaiden of the executive.

He thinks the Constitution is a piece of paper no more sacrosanct than toilet tissue. That’s why he carelessly attacks the judiciary.

He’s a throwback to the dark days. But his political survival -- even as Kenya struggles to free itself from the demons of yesteryear – shows how much further we have to go.

He should be a relic of a bygone era, but he isn’t. Who is Mr Wetang’ula, and why shouldn’t he be evicted from office?

You can tell a person’s moral fibre by the company they keep. In 1992, at a relatively young age – and for no apparent reason – Mr Wetang’ula was nominated to Parliament by President Daniel arap Moi.

This is significant because Mr Moi needed political lapdogs to blunt the vigour of the opposition.

The 1992 elections ushered in multiparty democracy and Kanu desperately sought attack dogs to beat back change.

Mr Moi believed that Mr Wetang’ula – a man with contempt for reformers and the democratic project – would be a perfect bully against the opposition.

Even though Mr Wetang’ula didn’t distinguish himself in Parliament, he proved to the Kanu nomenklatura to be a loyal foot soldier.

By proclivity and consistency, Mr Wetang’ula proved to Kanu and the anti-reform lobby that he was “naturally” and instinctively theirs.

They know his political DNA and have never forgotten who he is.

That’s why they will always entrust him with the most odious projects. But this means that they will also defend him when he’s in trouble.

That’s why President Mwai Kibaki short-circuited Parliament and reappointed him to Foreign Affairs even though the Tokyo Embassy scandal – of which he was a central figure – remains unresolved. That’s the definition of impunity.

A public official who’s under investigation for alleged corruption cannot be returned to office unless he’s cleared.

Mr Wetang’ula wasn’t cleared by any institution with the authority to do so.

What galls me is Mr Wetang’ula’s audacity to seek the highest office in the land.

He has stated that he will seek the presidency. That’s how low Kenya has fallen. Many of the candidates for State House have questionable pasts – and presents. Think of two of the Ocampo Six – Finance Minister Uhuru Kenyatta and Eldoret North MP William Ruto.

They insist they will run for the presidency even though they have been summoned for crimes against humanity.

I guess Mr Wetang’ula figures that if charges for crimes against humanity aren’t enough to stop a presidential candidacy, why shouldn’t he run?

In contrast, presidential hopefuls in the US – like businessman Herman Cain – drop out on allegations of extra-marital affairs.

What has been particularly shocking is Mr Wetang’ula’s unequivocal and unrepentant attack on the High Court ruling against President Bashir.

What, pray, does Mr Wetang’ula want the court to do with the Constitution?

Would he rather the judge flushes the Katiba down the toilet?

Why, then, should murderers, thieves, and other criminals be sanctioned? Why don’t we just release all criminals and let all suspects go scot free?

Obviously, Mr Wetang’ula would rather we live in a jungle where only the “fittest” survive. How in the world can a country’s chief diplomat tell the high court to, in effect, go to hell?

Most appalling, Mr Wetang’ula is a lawyer. He should be disbarred from the legal profession.

Mr Wetang’ula and the Kibaki regime have terribly miscalculated.

They have undermined the judiciary to appease the dictator of Khartoum.

But guess what? President Al-Bashir isn’t appeased. He wants Kenya to prostrate itself before his dictatorship.

I think he’s mistaking Kenya for Darfur. Get this – Mr Bashir has been indicted by the International Criminal Court on five counts of crimes against humanity, three counts of war crimes, and two counts of genocide.

It doesn’t get any worse. He’s obviously the worst of the worst according to the ICC.

How can such a monster be possibly appeased? His brethren -- Muammar Gaddafi of Libya, Hosni Mubarak of Egypt, Ben Ali of Tunisia, and Ali Saleh of Yemen -- are now history.

IGAD is full of ruffian states. The rule of law means nothing to most of its member states. Judiciaries chafe at the boot of the executive.

That’s why Mr Bashir can “order” Kenya to “vacate” the High Court ruling against him. That’s what he would do in Sudan. Except Kenya isn’t Sudan. And Mr Wetang’ula doesn’t work for Mr Bashir.

He works for the people of Kenya who last August adopted a democratic Constitution of which the judiciary is the chief guardian. That’s why Mr Wetang’ula should quit and go work for Mr Bashir.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC