Post by Onyango Oloo on Oct 5, 2005 8:37:44 GMT 3
Dated this 4 October 2005
By MIGUNA MIGUNA -The writer is a Kenyan practicing law in Toronto, Canada
I have been challenged to write this case for the Orange/ No vote on November 21st by none other than Mwai Kibaki and his team of handlers such as Kiraitu, Nyachae, Karume, Michuki, Kombo and Awori.
This is the team that boasts that it has what it takes to create storms and earthquakes in all corners of our beautiful country. I am not sure why they are praying for a Katrina in view of the aftermath in New Orleans. But that is not my calling today. For me, I am praying for peace and tranquility in our banana-tormented land. I am also praying for God to allow more juices of orange to quench my thirst.
I took the President’s persistent command for wapumbavu Kenyans to read the Wako draft before making their decisions on whether to say “Yes” or “No” on November 21st. So diligent was I on closely and faithfully following on our president’s directive that I ended up going beyond his assignment to poor Kenyans. I implore our dear reigning president to forgive my untamed anxiety and over-enthusiasm that motivated me to carefully examine and study the draft before analyzing the process that brought the document into being. Wapumbavu Kenyans are used to giving one thousand per cent effort in matters of national interest, regardless of remuneration. I have discovered, to my utter dismay, that the president’s scolding is well deserved. You see, as one of the wealthiest Kenyans today, president Kibaki has not fully comprehended why there are so many of us poor Kenyans living our pathetic lives in Mathare, Korogocho, Kwangware, Kibera, and other slums, when his friends like Nyachae, Michuki and himself were able to accumulate tidy sums of money and thousand hectares of productive land in a few years while earning meager civil service and other public service incomes. Our president cannot understand how we, fellow Kenyans, can claim to have any brains, while at the same time allowing so few of them to basically control both the political and economic destiny of our country. But I digress, fellow Kenyans. I need to tell you, pronto, why I have resolved to say “NO” to the Wako draft that the president has thrust into our collective faces.
Before I passed my final verdict on this much talked about draft, I also did Kibaki’s henchmen a favour– I answered their challenge over the quality of the draft as compared to the current constitution and the Bomas Draft. In the process, I hope that both Kibaki and his team will finally accept my decision to say “Orange/No” to this amalgam, what Raila has recently correctly termed a mongrel draft. I will illustrate my case using anecdotes, as I did yesterday to my friend, the political strategist. For the first time, I won over a Banana Republican. Let me try again. I might be lucky today as well.
A lawyer follows his or her client’s instructions
Assuming that Wako, as a lawyer, was acting in his professional capacity on behalf of his clients, the Kenyan people [as he and some of the Banana proponents have argued], one would have expected him to have firstly sought and obtained proper and coherent instructions, and secondly, for him to have dutifully and completely followed those instructions. It matters not whether he considered his clients illiterate, poor, ignorant or wapumbavu. Once a lawyer has accepted a retainer, it is his or her clients that direct him, so long as the direction is legal and ethical. But even if the direction is unethical or of questionable legality, the only recourse open to a lawyer is to ask to be removed from the record, claiming communication break-down or irreconcilable differences on important matters affecting his or her retainer. Other than outright illegalities, which may require a prompt report to the police, a lawyer cannot act against his or her clients’ interests.
Consequently, the first question that arises here is whether or not Wako obtained instructions from the Kenyan people. When, where or by what means were these instructions obtained?
Having examined the only record president Kibaki has given us as a reference/guide [the Wako Draft], I can report, fellow Kenyans that Wako neither sought nor obtained our instructions. He has not even claimed that he did. Had he sought our instructions, we would have clearly spelled out, in the retainer agreement, the limits of his role, duties, responsibilities and remuneration. This retainer document would then have been duly executed and sealed for future reference. No such retainer document exists. As such, Wako acted unlawfully, irregularly, unethically, in a manner incompatible with and unbecoming of an advocate of the High Court of Kenya. As citizens of this country, we have suffered serious pecuniary damages arising directly from Wako’s conduct. Wako’s conduct in this regard has caused injuries that were reasonably foreseeable and that could have been avoided had be acted as a diligent, competent, conscientious and ethical advocate. The citizens of Kenya have been deprived of billions of shillings – during the drafting, printing, distribution, so-called civic education, campaigns and the actual implementation of the referendum itself. As citizens, we have had no other recourse or mitigation. We have been forced to participate in this referendum farce because of Wako’s and Kibaki’s complete disregard to our rights. Any lawyer who acts in this way in a properly governed society would be subject to professional discipline, censure or civil liabilities.
Writing a country’s constitution is not like writing a letter for an illiterate relative. For us to have retained Wako to do this job, one assumes that we would have freely and voluntarily chosen him as our advocate, having regard to the availability of other competent counsel practicing in constitutional law within the same jurisdiction; our financial ability to instruct counsel; and being informed properly of the cons and pros of the work we are embarking on. In essence, without having informed and voluntary consented, we could not have hired Wako - and we did not.
Although Kibaki and his Banana Republicans have argued that Wako did a marvelous job, he has not paid attention to the question: On whose behalf did Wako perform the miracles that we hear he performed? Without adequately answering this question, one would always have the lingering suspicion that Wako only wrote the draft for his clients, who happen to be members of Kibaki’s inner circle. If this is the case, then I have no quarrel with Kibaki’s praise for the end product – the client would simply be expressing a legitimate satisfaction with his lawyer’s services.
However, if Kibaki’s other argument is that Wako was working for me or on my behalf, and that it is Kibaki, as our president, who hired this marvelous lawyer for me, I would like him to answer a few questions that my little brain has managed to think of. The first is, when and by what means did I cede my inalienable power and right to make laws and constitutions for myself to him or them? How did he [Kibaki] know of my interests and desires in so far as this new draft constitution is concerned, without having consulted me on the same? What were the specific terms of Wako’s retainer? Under which law, Act or constitutional power did he act in instructing Wako on our behalf? And how much did it cost Kenyans for this document to be produced?
The only legitimate process through which Kenyan views on a new constitution were first collected and collated was shepherded by the Ghai team. Later, Kenyans attended the Bomas of Kenya and discussed and debated the contents of their new constitution. It was the Ghai Team that we Kenyans retained to collect and collate our views before preparing a draft that we overwhelmingly ratified at the plenary of the Bomas Constitutional of Kenya. That draft became the only legitimate Constitutional Draft that ought to have been presented to Parliament for approval or rejection. Thereafter, if Parliament said “Yes” to the draft, it could then either be enacted as the new Kenyan constitution, replacing the old one [assuming that section 47 had been duly amended to allow such enactment]. Similarly, the draft could also be taken for a referendum following its approval. However, if Parliament had rejected it, either a new mechanism had to be found to institute another constitutional conference or it would have died a natural death.
The issue of the Wako Draft being better than the old constitution or being an improvement on the Bomas Draft does not arise. In fact, I have found these arguments troubling, especially when advanced by otherwise intelligent contributors. To begin with, if all Kenyans wanted was a draft that was better than our old and tired constitution, they could have easily borrowed other countries’ constitutions, some of which have been properly tested, say, the Canadian one. As well, if all we wanted was an improvement on the current constitution or the Bomas Draft, we could have sought volunteers or hired guns from the most reputable universities of the world, to efficiently transform either our old instrument of oppression or the Bomas Draft into incredible pieces of art. We could have similarly hired geniuses from all over the world, including Nobel laureates, to assist with this task. That is, if all we wanted was textual beauty and logical presentation.
The good news is that constitution making is not about the good, the bad or the ugly. Constitution making is about legitimacy, accountability, transparency and fairness. It is also about popular support and the public ownership of both the process and the product. If, at the end of the day, all we had was a poorly crafted but popular document that had the support of the overwhelming majority of Kenyans, where that support is genuine, tested and not contrived, we could declare openly that democracy won. On the other hand, if we produced an excellent piece of writing but without any legitimacy or popular support, democracy would have lost. A democratic and free people would never allow themselves to be governed by good but unpopular laws.
Whereas others have argued that there is an Act of Parliament that authorized Wako to prepare the final constitutional draft to be presented to the Kenyan people on a referendum, I have not myself seen any credible evidence to that argument. And even if that argument were taken to be true, what gave Wako permission to take with him, to a private resort at the Coast, a few selected people [including foreigners] and purport that his retainer included the hiring of all and any counsel [whether known or approved by his clients or not] and purport to write a constitution for the entire country?
As such, if or when Wako felt that he could no longer follow his clients’ instructions, either because there were real or potential conflicts between him and his clients that would undermine his loyalty and responsibility to them, he should have removed himself as counsel; that is, if his clients are Kenyans. Hence, the first problem with this Wako ogre is the manner that it has been brought into being.
A couple cannot accept a mongrel as a child
To give another tenuous illustration, assume with me, my fellow Kenyans, that a couple is expecting their second child, the first having been born a cripple, and that subsequent surgeries have mainly made the couple’s first child physically debilitated, like our current constitution has been. They have done everything couples do to prepare for the arrival of their newborn. They have attended all kinds of sessions with mid-wives, elderly women in the village, obstetricians and gynecologists, nurses – you name them. They have spent valuable time and money shopping for a decent crib, blankets, bed-sheets, towels and other basic necessities. Both expecting parents have cleaned their house and when labour strikes, they dutifully attend at a local hospital for delivery. However, after pushing, pulling, deep-breathing and eventual normal delivery of a seven pound baby, a nurse leaves with the child to the nursery, but upon her return, brings, not a healthy, bouncing baby, but a double-faced mongrel. Would the parents accept the mongrel when they know they just had a beautiful and healthy baby?
The content deviates from our retainer
The second major problem I have seen from the Wako draft is its content. Although this draft’s apologists have asked us repeatedly to point out what is wrong with it, there are so many things wrong with this mongrel that to spend time pointing them out might actually be a waste of time. I will, however, try in order to avoid being accused of being a mpumbavu. The most glaring one is the enhancement of the already suffocating presidential powers. According to this draft, all executive powers and authority of the Republic of Kenya vests in the president. Essentially, by an executive fiat or decree, the president is permitted to disregard all organs and institutions of state and rule by decree. Neither parliament nor the judiciary would be able to counter, balance or check this run-away presidency. In the Bomas Draft, Kenyans clearly demanded that the massive presidential powers must be curtailed and dispersed. Kenyans demanded that there be, in the new constitution, effective and functioning checks and balances. Rather than rely on the hoped-for modesty of a president to render good governance to the people, Kenyans institutionalized good governance through the creation of the office of the Prime Minster, the strengthening of Parliament, the independence of the judiciary and the decentralization of power and administration from the centre to local governments. No longer was revenue collection and allocation (including that of land) going to be the sole and exclusive prerogative of the president.
The most disturbing thing about the Wako draft is that he rendered all these important aspects of the Bomas Draft useless. Rather than abide by the uniform call of the people, Wako pandered and kowtowed to the powers that be. And for that I say a resounding “ORANGE/NO” to his mongrel.
If Wako was only retained by the Banana Republicans
However, if Wako’s clients are the Banana pipers, we, Kenyans would have no quarrel with his retainer. The only rider we would add is that he must account for all funds he and this illegitimate process have received or consumed from our coffers. To have misappropriated our funds without our consent constitutes professional misconduct Mr. Wako.
Author’s Note: Anecdotes herein are given for illustrations only.
______________________________________________________________________
By MIGUNA MIGUNA -The writer is a Kenyan practicing law in Toronto, Canada
I have been challenged to write this case for the Orange/ No vote on November 21st by none other than Mwai Kibaki and his team of handlers such as Kiraitu, Nyachae, Karume, Michuki, Kombo and Awori.
This is the team that boasts that it has what it takes to create storms and earthquakes in all corners of our beautiful country. I am not sure why they are praying for a Katrina in view of the aftermath in New Orleans. But that is not my calling today. For me, I am praying for peace and tranquility in our banana-tormented land. I am also praying for God to allow more juices of orange to quench my thirst.
I took the President’s persistent command for wapumbavu Kenyans to read the Wako draft before making their decisions on whether to say “Yes” or “No” on November 21st. So diligent was I on closely and faithfully following on our president’s directive that I ended up going beyond his assignment to poor Kenyans. I implore our dear reigning president to forgive my untamed anxiety and over-enthusiasm that motivated me to carefully examine and study the draft before analyzing the process that brought the document into being. Wapumbavu Kenyans are used to giving one thousand per cent effort in matters of national interest, regardless of remuneration. I have discovered, to my utter dismay, that the president’s scolding is well deserved. You see, as one of the wealthiest Kenyans today, president Kibaki has not fully comprehended why there are so many of us poor Kenyans living our pathetic lives in Mathare, Korogocho, Kwangware, Kibera, and other slums, when his friends like Nyachae, Michuki and himself were able to accumulate tidy sums of money and thousand hectares of productive land in a few years while earning meager civil service and other public service incomes. Our president cannot understand how we, fellow Kenyans, can claim to have any brains, while at the same time allowing so few of them to basically control both the political and economic destiny of our country. But I digress, fellow Kenyans. I need to tell you, pronto, why I have resolved to say “NO” to the Wako draft that the president has thrust into our collective faces.
Before I passed my final verdict on this much talked about draft, I also did Kibaki’s henchmen a favour– I answered their challenge over the quality of the draft as compared to the current constitution and the Bomas Draft. In the process, I hope that both Kibaki and his team will finally accept my decision to say “Orange/No” to this amalgam, what Raila has recently correctly termed a mongrel draft. I will illustrate my case using anecdotes, as I did yesterday to my friend, the political strategist. For the first time, I won over a Banana Republican. Let me try again. I might be lucky today as well.
A lawyer follows his or her client’s instructions
Assuming that Wako, as a lawyer, was acting in his professional capacity on behalf of his clients, the Kenyan people [as he and some of the Banana proponents have argued], one would have expected him to have firstly sought and obtained proper and coherent instructions, and secondly, for him to have dutifully and completely followed those instructions. It matters not whether he considered his clients illiterate, poor, ignorant or wapumbavu. Once a lawyer has accepted a retainer, it is his or her clients that direct him, so long as the direction is legal and ethical. But even if the direction is unethical or of questionable legality, the only recourse open to a lawyer is to ask to be removed from the record, claiming communication break-down or irreconcilable differences on important matters affecting his or her retainer. Other than outright illegalities, which may require a prompt report to the police, a lawyer cannot act against his or her clients’ interests.
Consequently, the first question that arises here is whether or not Wako obtained instructions from the Kenyan people. When, where or by what means were these instructions obtained?
Having examined the only record president Kibaki has given us as a reference/guide [the Wako Draft], I can report, fellow Kenyans that Wako neither sought nor obtained our instructions. He has not even claimed that he did. Had he sought our instructions, we would have clearly spelled out, in the retainer agreement, the limits of his role, duties, responsibilities and remuneration. This retainer document would then have been duly executed and sealed for future reference. No such retainer document exists. As such, Wako acted unlawfully, irregularly, unethically, in a manner incompatible with and unbecoming of an advocate of the High Court of Kenya. As citizens of this country, we have suffered serious pecuniary damages arising directly from Wako’s conduct. Wako’s conduct in this regard has caused injuries that were reasonably foreseeable and that could have been avoided had be acted as a diligent, competent, conscientious and ethical advocate. The citizens of Kenya have been deprived of billions of shillings – during the drafting, printing, distribution, so-called civic education, campaigns and the actual implementation of the referendum itself. As citizens, we have had no other recourse or mitigation. We have been forced to participate in this referendum farce because of Wako’s and Kibaki’s complete disregard to our rights. Any lawyer who acts in this way in a properly governed society would be subject to professional discipline, censure or civil liabilities.
Writing a country’s constitution is not like writing a letter for an illiterate relative. For us to have retained Wako to do this job, one assumes that we would have freely and voluntarily chosen him as our advocate, having regard to the availability of other competent counsel practicing in constitutional law within the same jurisdiction; our financial ability to instruct counsel; and being informed properly of the cons and pros of the work we are embarking on. In essence, without having informed and voluntary consented, we could not have hired Wako - and we did not.
Although Kibaki and his Banana Republicans have argued that Wako did a marvelous job, he has not paid attention to the question: On whose behalf did Wako perform the miracles that we hear he performed? Without adequately answering this question, one would always have the lingering suspicion that Wako only wrote the draft for his clients, who happen to be members of Kibaki’s inner circle. If this is the case, then I have no quarrel with Kibaki’s praise for the end product – the client would simply be expressing a legitimate satisfaction with his lawyer’s services.
However, if Kibaki’s other argument is that Wako was working for me or on my behalf, and that it is Kibaki, as our president, who hired this marvelous lawyer for me, I would like him to answer a few questions that my little brain has managed to think of. The first is, when and by what means did I cede my inalienable power and right to make laws and constitutions for myself to him or them? How did he [Kibaki] know of my interests and desires in so far as this new draft constitution is concerned, without having consulted me on the same? What were the specific terms of Wako’s retainer? Under which law, Act or constitutional power did he act in instructing Wako on our behalf? And how much did it cost Kenyans for this document to be produced?
The only legitimate process through which Kenyan views on a new constitution were first collected and collated was shepherded by the Ghai team. Later, Kenyans attended the Bomas of Kenya and discussed and debated the contents of their new constitution. It was the Ghai Team that we Kenyans retained to collect and collate our views before preparing a draft that we overwhelmingly ratified at the plenary of the Bomas Constitutional of Kenya. That draft became the only legitimate Constitutional Draft that ought to have been presented to Parliament for approval or rejection. Thereafter, if Parliament said “Yes” to the draft, it could then either be enacted as the new Kenyan constitution, replacing the old one [assuming that section 47 had been duly amended to allow such enactment]. Similarly, the draft could also be taken for a referendum following its approval. However, if Parliament had rejected it, either a new mechanism had to be found to institute another constitutional conference or it would have died a natural death.
The issue of the Wako Draft being better than the old constitution or being an improvement on the Bomas Draft does not arise. In fact, I have found these arguments troubling, especially when advanced by otherwise intelligent contributors. To begin with, if all Kenyans wanted was a draft that was better than our old and tired constitution, they could have easily borrowed other countries’ constitutions, some of which have been properly tested, say, the Canadian one. As well, if all we wanted was an improvement on the current constitution or the Bomas Draft, we could have sought volunteers or hired guns from the most reputable universities of the world, to efficiently transform either our old instrument of oppression or the Bomas Draft into incredible pieces of art. We could have similarly hired geniuses from all over the world, including Nobel laureates, to assist with this task. That is, if all we wanted was textual beauty and logical presentation.
The good news is that constitution making is not about the good, the bad or the ugly. Constitution making is about legitimacy, accountability, transparency and fairness. It is also about popular support and the public ownership of both the process and the product. If, at the end of the day, all we had was a poorly crafted but popular document that had the support of the overwhelming majority of Kenyans, where that support is genuine, tested and not contrived, we could declare openly that democracy won. On the other hand, if we produced an excellent piece of writing but without any legitimacy or popular support, democracy would have lost. A democratic and free people would never allow themselves to be governed by good but unpopular laws.
Whereas others have argued that there is an Act of Parliament that authorized Wako to prepare the final constitutional draft to be presented to the Kenyan people on a referendum, I have not myself seen any credible evidence to that argument. And even if that argument were taken to be true, what gave Wako permission to take with him, to a private resort at the Coast, a few selected people [including foreigners] and purport that his retainer included the hiring of all and any counsel [whether known or approved by his clients or not] and purport to write a constitution for the entire country?
As such, if or when Wako felt that he could no longer follow his clients’ instructions, either because there were real or potential conflicts between him and his clients that would undermine his loyalty and responsibility to them, he should have removed himself as counsel; that is, if his clients are Kenyans. Hence, the first problem with this Wako ogre is the manner that it has been brought into being.
A couple cannot accept a mongrel as a child
To give another tenuous illustration, assume with me, my fellow Kenyans, that a couple is expecting their second child, the first having been born a cripple, and that subsequent surgeries have mainly made the couple’s first child physically debilitated, like our current constitution has been. They have done everything couples do to prepare for the arrival of their newborn. They have attended all kinds of sessions with mid-wives, elderly women in the village, obstetricians and gynecologists, nurses – you name them. They have spent valuable time and money shopping for a decent crib, blankets, bed-sheets, towels and other basic necessities. Both expecting parents have cleaned their house and when labour strikes, they dutifully attend at a local hospital for delivery. However, after pushing, pulling, deep-breathing and eventual normal delivery of a seven pound baby, a nurse leaves with the child to the nursery, but upon her return, brings, not a healthy, bouncing baby, but a double-faced mongrel. Would the parents accept the mongrel when they know they just had a beautiful and healthy baby?
The content deviates from our retainer
The second major problem I have seen from the Wako draft is its content. Although this draft’s apologists have asked us repeatedly to point out what is wrong with it, there are so many things wrong with this mongrel that to spend time pointing them out might actually be a waste of time. I will, however, try in order to avoid being accused of being a mpumbavu. The most glaring one is the enhancement of the already suffocating presidential powers. According to this draft, all executive powers and authority of the Republic of Kenya vests in the president. Essentially, by an executive fiat or decree, the president is permitted to disregard all organs and institutions of state and rule by decree. Neither parliament nor the judiciary would be able to counter, balance or check this run-away presidency. In the Bomas Draft, Kenyans clearly demanded that the massive presidential powers must be curtailed and dispersed. Kenyans demanded that there be, in the new constitution, effective and functioning checks and balances. Rather than rely on the hoped-for modesty of a president to render good governance to the people, Kenyans institutionalized good governance through the creation of the office of the Prime Minster, the strengthening of Parliament, the independence of the judiciary and the decentralization of power and administration from the centre to local governments. No longer was revenue collection and allocation (including that of land) going to be the sole and exclusive prerogative of the president.
The most disturbing thing about the Wako draft is that he rendered all these important aspects of the Bomas Draft useless. Rather than abide by the uniform call of the people, Wako pandered and kowtowed to the powers that be. And for that I say a resounding “ORANGE/NO” to his mongrel.
If Wako was only retained by the Banana Republicans
However, if Wako’s clients are the Banana pipers, we, Kenyans would have no quarrel with his retainer. The only rider we would add is that he must account for all funds he and this illegitimate process have received or consumed from our coffers. To have misappropriated our funds without our consent constitutes professional misconduct Mr. Wako.
Author’s Note: Anecdotes herein are given for illustrations only.
______________________________________________________________________
