From Jomo to Uhuru, Rao’s nine lives

Were a book to be written on Sharad Rao — the man who will chair the Justice Philip Tunoi Tribunal — it would be one of the best treatises on judicial systems and politics in Kenya.

Mr Rao has stuck like a barnacle within the system and, like an antique or wine, his value seems to get better with age. His magic? Nobody knows.

Of all the lawyers who straddled the judicial system in the early 1980s, Mr Rao is one of the few survivors. His peers, Charles Njonjo, H.P Makhecha, Byron Georgiadis, C.B Madan, James Karugu, Cecil Miller, Kihara Muttu and many others are either dead or retired.

Like them, Mr Rao has been through the labyrinth; thrown under the political bus several times, and written off. In all these, like the proverbial cat with nine lives, he emerges with yet another title.

As the controversy was emerging this past week over his appointment as chairman of the Tunoi Tribunal, Mr Rao, 81, kept his cool. Some pundits even thought he wouldn’t take the position.

Even on the day he was sworn in to chair the tribunal that will investigate the veracity of bribery claims against Justice Tunoi — the Supreme Court judge said to have received Sh200 million from Nairobi Governor Evans Kidero to influence an election petition — the soft-spoken Rao did not disappoint before the cameras.

One of the spins that had emerged before the swearing-in ceremony was that he was set to be replaced with another veteran, Justice Jonathan Havelock.

Those who know Mr Rao attest to his independence of mind — and sticking to his guns.

Sometime in 1981, he was hauled into State House and taken before President Moi by then Attorney General James Karugu. He was ordered to go and draft treason charges against James Mungai Muthemba, who had claimed to be doing “personal investigations” into alleged arm smuggling within the armed forces.

To gather evidence, Mr Muthemba, a Nairobi tycoon, had decided to order ammunition — bombs, grenades and armament — from military stores.

PRELIMINARY CASE OPENED

“As far as I am concerned,” Mr Muthemba would tell then Chief Magistrate Fidahussein Abdullah, as the preliminary case opened, “I was performing my duty. I was not doing it for my own ends.”

Mr Muthemba told the magistrate that he was also investigating illegal acquisition of citizenship, work permits, illegal foreign exchange transactions, and smuggling of arms and ammunition with the “knowledge” of Mr Charles Njonjo, then powerful minister for Constitutional Affairs.

Mr Njonjo would later deny ever asking Mr Muthemba, who was his cousin, to carry out the private investigation. But in his “investigations”, it is now known, Mr Muthemba had spoken to the wrong person, an informer in the military, Captain Ricky Gitucha. He was caught. And that is where Mr Rao came in.

One of the few Kenyans of Asian origin who had remained in Civil Service after the 1960s-70s purge, Mr Rao was not convinced that a treason charge would survive and he told his boss, Mr Karugu, as much. That is how they were both summoned to State House.

“On our way back from State House,” he would later recall, “I told Mr Karugu that in view of that advice (nay, order from President Moi), we ought to very seriously reconsider the position (of proceeding with the treason charge)... I told him that he ought to take over the prosecution and I would assist him.”

Although his work was to populate the prisons with criminals by winning as many cases as possible, Mr Rao’s lowest point was being forced to carry on with the Muthemba case against his will.

Was he trying to shield Mr Njonjo’s cousin? That was the question that would later haunt him at the 1984 Judicial Commission that was set up by President Moi to investigate Mr Njonjo’s dalliance with foreign powers, and which would be used to purge the political system of Kenyatta-era power brokers.

President Moi had earlier used the abortive August 1982 coup as an excuse to rid his government of people thought to be too powerful, or suspected to be allied to Mr Njonjo.

Mr Rao, who was expected to fall with the Njonjo hysteria, today surprises his foes over the many hurdles he has evaded.

When he was asked to vet judges and magistrates and help revive the Judiciary, Mr Rao thought he would achieve what Justice Aaron Ringera had tried and failed. Justice Ringera had shortly after the 2002 General Election tried to weed the Judiciary of judges deemed to be corrupt, unfit or incompetent after the Kibaki-Narc victory. The promised judicial overhaul, the so-called “radical surgery”, turned out to be a fraud.

It is Mr Rao’s tenure within the abrasive Kenyatta and Nyayo regimes that moulded his career. For years, he was number three in the State Law office where he was deputising Mr Karugu, then Deputy Public Prosecutor.

On June 30, 1980, he took over from Mr Karugu, who had succeeded Mr Njonjo as attorney general, and this is when Mr Rao became an easier target for those who would not dare attack Mr Njonjo directly. Many thought he was a Njonjo man.

One of them was Bungoma South MP Lawrence Sifuna, who first accused Mr Rao in Parliament of interfering with investigations into the Bank of Baroda industrial unrest, together with another Njonjo ally, Joginder Singh Sokhi — then an assistant commissioner of police.

The matter had started in September 1981 when the bank fired some employees allegedly for leaking information on its contravention of the Foreign Exchange Control Act.

ENJOYING OVERDRAFT FACILITIES

Mr Sifuna told the House that Mr Sokhi and Mr Rao were enjoying overdraft facilities of Sh1 million at the bank and that they had a keen interest in its affairs. While Mr Rao sued the Daily Nation for carrying the story, it was not lost on observers that this was an effort to clip his wings.

Born in 1935 in Nairobi, Mr Rao was educated at the Duke of Gloucester School (now Jamhuri) in Nairobi, and became a barrister-at-law at Lincoln’s Inn in London in l959. He then joined the Kenyan Civil Service and rose through the ranks after independence.

Had seniority in the AG’s chambers counted, Mr Rao would have automatically succeeded Mr Karugu, who resigned in July 1981 after a year in office. Instead, Moi picked Nairobi lawyer Kamau Kamere — a Njonjo ally who would be entangled in scandals and a court case. By then, Mr Njonjo was the minister for Constitutional Affairs.

So central was Mr Rao that when the AG was out of the country, he would be appointed the acting AG, as happened on November 20, 1982 vide Gazette Notice No 3592.

Mr Njonjo’s choreographed fall from June 30, 1983 — when he was suspended as minister and a judicial commission set up to investigate him — left Mr Rao vulnerable. Before that, his office had become a witch-hunters paradise as President Moi started a crackdown on dissidents and opponents.

This time, Mr Rao found himself handling more political cases after President Moi vowed to teach university lecturers “out to cause chaos” a lesson. But since Mr Rao’s office could not gather evidence on some of the cases, many of the accused ended up in detention. These included Prof Al-Amin Mazrui (author of Kilio Cha Haki), Dr Willy Mutunga and Dr Kamoji Wachira. Prof Maina Kinyatti was jailed on October 18, 1982, for possessing a seditious publication: Moi’s divisive politics exposed: Reject these Nyayos.

Mr Rao was also in office when all the cases relating to the August 1, 1982 coup were heard, including cases against Mr Raila Odinga and journalist Otieno Mak’Onyango. Mr Odinga’s car was allegedly used by the 1982 coup plotter, Senior Private Hezekiah Ochuka, that morning.

But when the prosecution lacked evidence to sustain the charges, Mr Odinga and Mr Mak’Onyango were thrown into detention. It later emerged that the arrest of Mr Mak’Onyango, who later became Alego Usonga MP, was a case of mistaken identity. A court recently awarded him Sh20 million for unlawful detention.

Mr Rao’s office was also instrumental in prosecuting the case of university students’ leader Titus Adungosi, who was jailed for 10 years in September 1982 for sedition. He would later die in prison.

Was Mr Rao’s handling of the political cases the reason he was given a soft landing, in 1983 — as Njonjo’s friends were scattered? Mr Rao was removed as Deputy Public Prosecutor in September 1983 and appointed chairman of the dreary Business Premises Rent Tribunal.

Five months later, he received another letter dated February 20, 1984, seconding him to The Hague as part of a team helping an international tribunal dealing with claims of the United States against Iran. With that, he was quietly removed from the drama that was Njonjo’s fall. He can thank Chief Secretary Jeremiah Kiereini, a close business ally of Mr Njonjo, for that.

Even then, Mr Rao’s hunters continued trailing him. First he faced a criminal case which twice was discussed in Parliament. Shortly after he left for The Hague, a company he was associated with was accused of  “selling drugs which were not of the nature and quality demanded by the purchaser” and “unlawfully labelling drugs in a manner that is deceptive...”

EMPLOYEES CHANGED

Elys Chemical Industries Ltd, its directors and employees were charged under the Foods, Drugs and Chemical Substances Act for supplying the alleged drugs to the Division of Disease Control. But Mr Rao was out of the country, and his name was struck off the suit.

In November 1984, Attorney-General Mathew Guy Muli faced the wrath of Parliament where he was accused by Bahati MP Fred Omido of evading a question on why Mr Rao’s criminal case was withdrawn by the State law office. Mr Muli told Parliament that Mr Rao’s summons were returned unserved since he could not be traced. Obviously, Mr Muli was not being truthful.

According to the AG, when the case came up on October 25, 1984, the magistrate in Nairobi’s Court No 8 could not hear it in the absence of one of the accused. “Hence at this stage, the prosecution had no alternative but to withdraw the charges against Mr Rao under Section 87(a) of the Criminal Procedure Code.

But Mr Rao did return to Kenya in June 1984 to testify at the Njonjo Commission of Inquiry under the chairmanship of Justice Cecil Miller, following an application by lead counsel Lee Muthoga. He was neither served with summons nor arrested.

It was Butere MP Martin Shikuku who raised the matter in November 1995, asking AG Amos Wako why Mr Rao was not arrested then. Mr Wako said he was aware that Mr Rao and four other persons were charged with selling drugs not of the nature or quality demanded by the purchasers. But he said he was not aware that the former AG had informed Parliament that Interpol and the Kenyan Police had failed to track down Mr Rao.

When he appeared before the appointing panel for the vetting board, Mr Rao said he was taken aback by the charges. “I was never served, and I never knew of the charges until 1995. In any case, I was a non-executive director and all those who had been charged alongside myself were acquitted,” he told the parliamentary committee.

Mr Rao has lived in tumultuous times — from Jomo Kenyatta to Uhuru Kenyatta, each with its fair share of drama.

Mr John Kamau is the Acting Editor, Investigations and Special Projects. [email protected] @johnkamau1