Decoding Kiraitu's 36 Questions...

[Onyango Oloo]

A Dissection from Onyango Oloo in Nairobi

0.0. Intro:

Folks:

I urge all of you to please avoid my recurring ghastly mistake that I never seem to learn from. Every once in a while, I log on to the internet and tell myself that I am just going to jot down a small piece, maybe a paragraph or four and then log out. Well, on several occasions, Murphy's Law is in full effect- I lose the chunk of writing and feel a sense of OUCH! Almost as if someone has hived off my index finger patiently with a hack saw. Which is to say that the first part of the following essay is being reconstructed from painful memory and I am doing it the "proper" way- first offline on a word processor before being uploaded online…

1.0. Full Disclosure from Onyango Oloo:

I must admit that I have a very schizophrenic attitude towards Kiraitu Murungi- the besieged and embattled Energy and former Justice and Constitutional Affairs minister currently under a sledgehammer of public demands that he quits the Kibaki cabinet.

You see, Kiraitu is the lawyer who sprung me from prison in 1987.

A year previously he had showed up at the Kamiti Luxury First Class Hotel to formally take my instructions to begin the civil suit that I brought against the Kenya government because of its refusal to grant me and other political prisoners a one third remission of sentence- as was the was the norm with other prisoners.

Mine was an individual case, but part of what in hindsight I could consider as test case litigation. Those of us who were in Kamiti at the time- Maina wa Kinyatti, Mwandawiro Mghanga, Oginga Ogego, Muga K’Olale, Wahinya Boore and others had discussed the idea of taking the Kenyan government to court over this very issue. Our relatives, comrades and well-wishers outside had approached Amnesty International who had agreed to pay the cost of hiring human rights lawyers to take on the case. We even managed to rope in the former Air Force Commander Major- General Peter Kariuki and in fact, he was supposed to go first in terms of suing the Moi regime over the remission issue. He actually started the process and he was being represented by none other than Paul Muite. On the eve of his first court appearance to hear the civil suit, he chickened out after representatives of the state had come to Kamiti and hoodwinked him that if he withdraws his suit, the government would release him forthwith. He struck the deal with the KANU devils and guess what, they just laughed in his face when they reneged on their deal- an arrangement that Muite had opposed right through.

Anyways, to cut a very long story to medium size, I was now the next person who we agreed should challenge this arbitrary administrative edict to deny prisoners remission.

On Monday, May 11th 1987 I walked out of Kamiti after the Court of Appeal panel- the same one that had decided the SM Otieno case- ruled in my favour and ordered my immediate release and awarded me KShs. 100,000.

Walking out of Kamiti I did not even think about the money, assuming that the Kenya government was very unlikely to honour the court order.

But it is the very same Kiraitu Murungi who placed a long distance telephone call from Boston to my apartment in Toronto in the summer of 1990 (remember this was the time of Muoroto; Kamau Kuria had just been detained and his partner Kiraitu was attending a conference in Ethiopia) to inform me of two things: he had decided to complete his post-graduate studies at Harvard during his stint in exile and very casually he informed me that the Kenya Government, believe it or not had actually written out a check to me in my full names- conveniently just after I crossed the border to neighbouring Tanzania to begin my own stint in exile.

What he told me next was even more bizarre: he, Kiraitu Murungi had somehow managed to cash and POCKET the KShs. 100,000.

I immediately asked him how come he did not hand over the muthendi to my younger sister who had been the family contact with his office throughout my civil suit. He told me the money helped to recoup some of the expenses associated with my case- informing me that on most of the political cases, he had acted almost pro-bono.

Out of curiosity, I asked him HOW he had managed to cash a cheque obviously not written out to him. He casually informed me that due to some of the work that his law firm of Kamau Kuria, Kiraitu and Kathurima M’Inoti (a previous partner Aaron Ringera later became Moi’s Solicitor General) did with the Kenyan state, they managed to find ways of converting that piece of paper with my name all over it to cold hard cash that was promptly deposited in Kiraitu’s pockets.

Astounded and confused, I decided to consult with one of my good political friends and a former law teacher of the same said Kiraitu- Dr. Willy Mutunga who was just putting the finishing touches on his doctorate at the Osgoode Law School based at York University in the northern reaches of the Toronto megapolis. Willy was mighty pissed off, I clearly remember.

First of all, he told me, Amnesty International had paid Kiraitu in FULL. Secondly, Kiraitu was entitled to 10% of the monetary award and not a single ndururu more. He urged me to confront Kiraitu and demand a full refund, and that if he refused I should go ahead and sue him.

I must sheepishly admit that I never followed through with Willy’s advice.

I just couldn’t do it.

All I remembered was that Kiraitu was one of the few Kenyan lawyers in the 1980s who were brave enough to even TOUCH a case involving a political prisoner. He acted for Kamoji Wachiira, Edward Oyugi, George Anyona, Raila Odinga, Onyango Oloo and many other detainees and political prisoners.

Compared to our eventual freedom from the hell house that was maximum penitentiary, 100,000 shillings sounded like small change.

When I did eventually reconnect with Kiraitu Murungi at the Centre for Governance and Democracy in early August 1994 (on coming back to Kenya for the first time)he was already an opposition FORD-Kenya MP.

We went over to his modest maisonette in Nairobi South "C”" where we had lunch together and to my eyes he was still the same modest, soft spoken, amiable human rights activist I had first encountered in 1986. In fact it was Kiraitu, together with Willy and the late George Anyona and George Kapten who ensured that I finally secured a Kenyan passport (I had traveled back to Kenya for the first time since I went to exile on a one way travel document that I had to give up on arrival at JKIA ).

Believe it or not, I was actually HAPPY when I heard that Kiraitu Murungi had secured the Justice and Constitutional Affairs docket in January 2003. I remember sending him the following document as my contribution to the discussion about setting up a Truth and Justice Commission:


www.mashada.com/forums/index/show_topic/22/16290/index.php

You can imagine my escalating disappointment and indignation when Kiraitu Murungi quickly emerged as one of the leading linchpins of the NAK andu aitu tribal cabal.

Who was this guy at Sheria House, I wondered, still thinking of the amiable Kiraitu, the modest Murungi, the indomitable human rights lawyer that I had met in the mid-1980s.

Up to a few months ago I had blocked from my mind the notion of Kiraitu Murungi being at the centre of a grand corruption scandal, the little matter of my stolen KShs. 100,000 notwithstanding.

OK, I told myself, the guy can be arrogant; he now subscribes to overt ethnic agendas, is sexist and so on- but he is no Saitoti or Biwott, I told myself.

One of my friends who is on the list of former Kiraitu clients above recently figuratively poured a bucket of cold water in my face- reassuring me that there has always been only one Kiraitu- the devious, flip-flopping, tribal minded scheming Kiraitu and that what I saw was just a deft camouflage…

Upon reflection, I must admit that it is I who has been in deep denial.

Enough of the self-flagellation.

Let us now segue to the main point of this essay...

[Onyango Oloo]

2.0. Decoding Kiraitu Murungi’s 36 Questions to John Githongo

To summarize:

In my opinion, Kiraitu Murungi’s questions are comprehensible only if they are contextualized as an internal row among members of the same family- in this case President Kibaki’s inner circle. That is how I read the questions linked to Joe Wanjui, a leading light of the other rival faction in NAK. Secondly, references to KANU and the LDP are for public consumption to a targeted audience- the Mount Kenya communities who were fed with fear mongering lies about the so called nyamu cia rugiri in the November Referendum. By linking Githongo to those pesky uncircumcised Luos and those allegedly murderous Kalenjins, Kiraitu is sending a subliminal message to his social base that Githongo, like Uhuru before him, is a traitor to the Nyoomba because he is essentially trying to bring the Kibaki government down. Thirdly, his pointed questions about Sir Edward Clay, the British Secret Service, the Kenya Police Reserve is to hint to Githongo that Kiraitu and his counterparts may also have their own pile of mud that they can fling back at the Oxford based former anti-graft czar.


On to the questions:



1. When did John Githongo join TI (Transparency International)?

2. Is it true that he inherited his position in TI from his father?
3. Was his chairman at TI Mr. Joe Wanjui?
4. Can he deny that he was appointed PS in the Office of the President on recommendation of Mr. Joe Wanjui?


Questions 1-4 are basically there to underscore to Githongo that he was part of the rival Wanjui faction in the NAK wing of NARC and therefore may have malicious motives in fighting the Hurlingham faction fronted by Kiraitu, Murungaru and others.

5. Mr. Githongo's job was to advise the President on Governance issues. When did he turn out to be an anti-corruption investigator?
6. What was the function of Anti-corruption Police Unit and Kenya Anti-corruption Authority during Mr. Githongo's tenure?
7. Did any Minister obstruct Mr. Githongo in preparing or handing over his reports to the President?

Questions 5 to 7 are pathetic, defensive red herrings from Kiraitu. It is not a secret that Githongo became PS precisely because of his anti-corruption portfolio. In fact at one time Kiraitu used the appointment of Githongo as one of the indicators of NARC’s commitment to fight grand graft.


8. Why did Mr. Githongo record his conversations with his colleagues in Government? Was he a spy at the heart of President Kibaki's Government?
9. Apart from the Ministers referred to in the report, who else did he tape record?
10. Mr. Githongo held meetings with Prof Anyang' Nyong'o and Raila Odinga. Did he tape those conversations? What are the contents of those conversations? Why are they not included in his report?
11. Can he produce an unedited transcript of all his recordings, including where he himself is talking?
12. How can we ensure that the records have not been "doctored" to serve certain interests? Can he make the tapes available for expert analysis?
13. Did Mr. Githongo record his conversations with Sir Edward Clay at that time?
14. Can he produce a record of those conversations?

Questions 8 to 14 are meant to cast aspersions on Githongo’s personal moral probity, credibility and integrity and also to suggest that he was already working with alleged internal and external enemies of the Kibaki administration. Githongo will be hard pressed to explain the secret taping part. As a journalist he should know that this is a big NO-NO. As a civil servant he risked his life because had he been frisked by a suspicious person with authority over him his goose would have been cooked quite early. Personally, I am curious to know when and why Githongo first made a decision to surreptiously record private conversations. Were these limited to the Anglo-Leasing suspects or was this a habit, dating perhaps to the time he joined the Police Reserves? Is there an archive of secret tapes out there? To whose benefit? Primary sources for a future best seller perhaps? Or something more sinister commissioned by a Western intelligence agency?

15. Mr. John Githongo conducted inquiries of other matters such as Invesco in City Hall, the Goldenberg scandal and Pending Bills. Why doesn't his report include conversations on these matters?
16. Mr. Githongo collected documents from Treasury showing that Anglo Leasing and Finance Co. had first entered into contracts with the Kanu Government in 2001. Why did he not ask the former Kanu Ministers who the Anglo-Leasing was? Who is he covering up?
17. Why has Mr. Githongo deliberately omitted to connect the Kanu government with Anglo-Leasing in his report? Why is he pretending that it is purely a Narc affair? Were the 18 Security contracts highlighted by Mr. Githongo not subject of a Government Special Audit?
18. Out of the 18 security contracts, only four were concluded under the Narc Government. The rest were all under the former Kanu regime. Why is Mr. Githongo deliberately playing this down? Are these contracts not the same as those in Clay's dossier? Why did Mr. Githongo pass the report on these projects to Mr. Clay instead of the President.
19. Mr. Githongo and Uhuru Kenyatta have been holding secret meetings in London, the latest being last weekend. Can he release the tapes of these meetings? What was discussed at those meetings? Is he involved in a plot by the opposition to bring down Kibaki's Government?

Questions 15 to 19 are geared to paint Githongo as someone who is soft on, perhaps sympathetic to the KANU regime and the LDP. The fact that Githongo first sprung to the limelight as a crusading journalist against corruption DURING the Moi period make these charges ring quite hollow. And the fact that Githongo states in his letter to Kibaki that he deliberately delayed unleashing his dossier until after the referendum speaks of his political alliances- certainly NAK tilting and anti-ODM.

20. Who is paying Mr. Githongo's bill for his luxurious apartment in London?
21. Why is he so heavily protected by the British Secret Service? What kind of visa is he on? Who is he working for?
22. Mr. Githongo has severally talked about billions of shillings that COULD HAVE BEEN LOST through Anglo Leasing projects. How much money has actually been lost by the Government in the two Anglo Leasing projects i.e. the Security, Passports project and the Police Forensic laboratory?
23. Can Mr. Githongo tell the Committee how much money Kiraitu or Mwiraria received from Anglo-Leasing projects?
*Since all the monies paid under Anglo Leasing projects was returned to the Treasury and Mr. Githongo assisted in following those involved in the alleged conspiracy both in Kenya and abroad, why did he not give all the information he is giving now to KACC in 2004? Who obstructed Mr. Githongo during his investigations out of Kenya? What did his investigations abroad reveal?
*Why did he not mention Kiraitu's name during those investigations?

Questions 20 to 23 are a desperate attempt by Kiraitu to continue with cover-up of the Anglo Leasing scandal.

24. In what circumstances did Mr. Githongo's father - Joe Githongo - obtain a loan of Sh30 million from Mr. Pereira through his lawyer Mr. Malik?
25. What was the consideration for this loan?

26. Can Mr. Githongo play to PAC the whole tape recording of the entire meeting where the loan was discussed? What did Mr. Githongo tell Mr. Kiraitu? Can Mr. Githongo deny he is on a revenge mission against Mr. Pereira for "fixing" his father and ruining his health?

Questions 24, 25 and 26 are personalized attacks on Githongo and his father.

27. During the compilation of the Ndung'u report, Mr. Githongo was aware that the molasses plant and land valued at over Sh 3 billion was given to Mr. Raila Odinga by the former regime at the throwaway price of Sh125 million during the political marriage between Kanu and NDP. Why does Mr. Githongo not say anything at all about Raila?
28. Is it true that Mr. Raila Odinga introduced Mr. Githongo to Kroll and Associates? Mr. Githongo spent Sh90 million with Kroll & Associates to trace "billions" stolen from Kenya and hidden abroad. How much money was traced and where? How much has been recovered? What happened to Kroll when Mr. Githongo resigned?

Questions 27 and 28 are a pathetic attempt to drag in the Raila Factor in the Githongo Expose.

29. Mr. Githongo in his report says Mr. Mwiraria told him on 17th May, 2004 that he would be killed by [name deleted for legal reasons]. Who did he report to? Why did he have to wait until after six months to flee the country from the date of threat, if indeed he feared for his life?
30. In his report he says that a senior politician had told him on 24th May 2004 that [name deleted for legal reasons] would kill him. Who is the unnamed senior politician? Is he afraid of naming him? Did he report this serious matter to the police: Why did he wait for six months before fleeing the country if he was in real danger?
31. The covering letter forwarding the report to the President states that the report is being forwarded as a result of information received by Mr. Stanley Murage. Where did he meet Mr. Murage? Did he record his conversation with Murage? Can we have the tapes?
32. The report was sent on November 22, 2005. If the intention was to assist the President to fight corruption, as it says, why did he wait a whole nine months before releasing it after he left the country? Could he have sent it in anticipation of a regime change after the referendum?

Questions 29 to 32 are legalistic horse manure.

33. Is it true that Githongo would first give all his report to Sir Edward Clay before briefing the President?
34. Is it true that Githongo was a member of the Kenya Police Reserve?
35. Does Mr. Githongo's conscience ever trouble him regarding the clandestine taping of conversations with friends and Government Ministers with whom he was serving the same Government and President?
36. Can Mr. Githongo deny that all the way through, he was a spy for the British against his own country?

Questions 33 to 36 are there to cast doubts as to the patriotism, loyalties and motivations of John Githongo by accusing the former graft czar of being a pawn of imperialist powers. Personally I do not think that Kiraitu is that off-base.

That Ladies and Gentlemen, is Onyango Oloo’s take on Kiraitu Murungi’s 36 Questions.

Onyango Oloo
Nairobi, Kenya

[aeichener]

Everybody knows that the questions were not meant as interrogation, it's so obvious. They are insult and implied slander. Nothing else was to be expected from the swine KM.

A.

[aeichener]

PS:
There are more lawyers than KM who transgress against their clients, you know. And not only as far as money is concerned. Here and there, home and abroad.

They even mask as "fighters for freedom and democracy".
Humans are frail.

Alexander

[Onyango Oloo]

Decoding Kiraitu's 36 Questions...
Posted 1139648936 by Onyango Oloo ([e-mail])

jukwaa.proboards58.com/index.cgi?board=general&action=display&thread=1139647687



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RE: surgically done with impartiality
Posted 1139651009 by Garibaldi Wa Muragoli (-)

your historical association with Kiraitu lends credibility to your analysis. If Githongi is working closely with foreign elements to topple a decadent regime then, SO BE IT !

-------------------------------------------------------------------------------

RE: Decoding Kiraitu's 36 Questions...
Posted 1139652018 by Kuka (as usual)


My greatest disappointment in all this was for Kiraitu Murungi to take Oloo's 100,000/= into personal use, particularly when Oloo needed it most. Wonder how much much money it is today. And even worse convert settlement payable to O.O. into his firm.

These guys frightens me when it comes to pass that they all worked together in both regimes. Justice Gicheru, Muthaura. Aaron Ringera Paul Muite Amos Wako etc.

Amazing that Kiraitu is not addressing Anglo but tearing into the credibility of Githongo.

Whether Githongo was a spy or not does not erase the corruption issue. Recorded tapes have lent credibility to Githongo's allegations, that is all.

And it appears that Murungaru & Kiraitu knew about these recordings as in his press conference shortly before Githongo BBC.

[maina]

Habari Oloo?

You always raise some comely but arresting arguments. I have always been an ebullient reader of your writings. You actually improve my mind when you wade me through your mind in your encyclopedic yet panoptic carefulness.

However, you have honourably continued to create an age of discord between us (that is you and me) in that you [sometimes] tend to underestimate some factors that are both exigent and heavy, if not ponderous, in your reasoning.

First off, you capture Kiraitu’s marrow painstakingly, totally and impeccably. You see it is promptly becoming powerfully clear that there is something intrinsically obscene, villainous and wrathful with the Democratic Party of Kenya (DP). If you truthfully doubt me, I will directly and objectively challenge you to name just one thing from it (DP) that is cheerful and you can righteously distinguish as hunky-dory.

………..thought so!

There is no known DP item that does not perceptibly and wickedly display split personalities, or even dissociative identities! Trust me on this one – I can boastfully and splendidly attest to this fact because I have heard the chance to meet and exclusively know the DP’s page-oners.

Therefore, my protestation to you is based purely on these parameters. Oloo, you have my deepest tenderness and thoughtfulness with regards to Kiraitu defrauding you. What I do not understand is why the pirate (Kiraitu) is still an issue! To be honest with you, the thought of it is competently molesting and tormenting me. Why are you still discussing Kiraitu? Why do you have to dedicate a whole 117 kilobytes of data respecting him? Just imagine the asininity and tomfoolery in those 36 questions! Why discuss him as though he is sooooooo important?

I am an anti-DP extremist. Anything about them is particularly nettlesome to me, and plainly and naturally creates ill-disposedness! Please kindly (and I mean this compassionately) let’s centralize our vehemence and forcefulness on the “KIBAKI MUST GO” attentiveness. The other pizzazz will no doubt be benign and serviceable when due process and reasonableness are established or whenever the DP desperados such as Kiraitu et al., are on trial!


Maina.

-unedited-

[Onyango Oloo]

i thought i had "cornered the market" on 500 shilling words and phrases. i had to seek a translator, intepreter and new dictionary to follow your writing!

more seriously, i am struggling to decipher and decode your posting above.

if i understand you correctly:

1. the DP of Kenya is useless, evil and lost;
2. you wonder why i am wasting time on kiraitu.

let me respond briefly:

perhaps it may be prudent to have a broader vision of kenyan political realities that transcends the vilification of a political party in kenya.

i will write more articles on kiraitu.

you reserve the right to throw up every time i do that.

by the way, if i were you, i would vary my style.

i recognize you from an earlier cyberlife.

Onyango Oloo
Nairobi

[maina]

Oloo,
.............oftentimes, I would listen to your radio programme in Toronto and you were always consistent and undeviating. Why does that seem to have recently changed?

You know I heard someone complain recently that whoever wrote the Ten Commandments made 'em short..............they may not always be kept but they can be understood. So if it is really enlightening for you to discuss the DP and its elements for so much as seems the case, that be sawa sawa with me..............ain’t nothing I can do ‘bout that!

I just think we as Kenyans have better things to do - that’s my opinion. I’m actually glad that we disagree on this one! Besides, the whole microcosm today is threateningly all about the execution and enactment of civil liberties.

Maina.



P.S.
What exactly do you mean by the following:

by the way, if i were you, i would vary my style

Hear you again,

i recognize you from an earlier cyberlife.
quote

Jukwaa be my first and only cyberlife!

[Onyango Oloo]

your name is NOT "maina" and you know it.

you also know exactly what i am talking about.

jukwaa is a very different forum from the others where people get away with multiple identities.

please note that.

otherwise let us all get back to regular programming.

oo
nbi

[miguna]

Oloo,

Let me help you out. Maina Gichohi is actually real. With Maina's permission, I could conclusively confirm to you that he is "real." You may have known another one, but Maina Gichohi is well known to me. He lived in Toronto before moving where he now operates from. Akina Waikwa, Morara, Ali, et al know him too. You can check it out if you want. The 2 of you should be disagreeing on more important things than "identity."

-Miguna-

[Onyango Oloo]

for the 411 on maina.

oo
nbi

[roughrider]

admin said:

Githongo will be hard pressed to explain the secret taping part. As a journalist he should know that this is a big NO-NO. As a civil servant he risked his life because had he been frisked by a suspicious person with authority over him his goose would have been cooked quite early. Personally, I am curious to know when and why Githongo first made a decision to surreptiously record private conversations. Were these limited to the Anglo-Leasing suspects or was this a habit, dating perhaps to the time he joined the Police Reserves? Is there an archive of secret tapes out there? To whose benefit? Primary sources for a future best seller perhaps? Or something more sinister commissioned by a Western intelligence agency?

Onyango Oloo
Nairobi, Kenya

This is the only comment I find out of turn in an otherwise excellent essay.... thanks Oloo.

In Githongo’s letter to the president he quite clearly says: “As you remember from our meeting of the third of February 2004 that took place in the evening in your room at State House I adopted the practice of regularly keeping a record of key meetings I was involved in"

This suggest executive permission.

But – by way of explaining to the eternally suspicious - perhaps Mutula Kilonzo puts it better than I can so let him speak:

“You record such conversations when you realise that the characters you are dealing with behave strangely and could turn around and blame you; that the words being spoken could be used against you. It is an investigative mechanism used all over the world," he added.

Kilonzo said the White House staff who had recorded the tapes that incriminated Nixon (in the Watergate Scandal) realised that the President had asked them to do things they knew could be used against them later.
"Like Githongo, Nixon’s officials were uncomfortable with what they were seeing. They had the option of joining him or preparing to defend themselves. That is why they recorded his telephone conversations."

I hope we now begin to see the persuasions behind Githongo’s tapings.

[Onyango Oloo]

roughrider:

thanks for your critical feedback.

here is an alternative rendition of the watergate tapes story:

On July 13, Watergate Committee Deputy Minority Counsel Donald G. Sanders asked Alexander Butterfield, deputy assistant to the President, if there were any type of recording system in the White House. Butterfield answered that though he was reluctant to say so, there was a system in the White House that automatically recorded everything in the Oval Office. The shocking revelation radically transformed the Watergate investigation. The tapes were soon subpoenaed by both first special prosecutor Archibald Cox and the Senate, as they might prove whether Nixon or Dean was telling the truth about key meetings.

Nixon refused, citing the principle of executive privilege, and ordered Cox, via Attorney General Richardson, to drop his subpoena. Cox's refusal led to the "Saturday night massacre" on October 20, 1973, when Nixon compelled the resignations of Richardson and then his deputy William Ruckelshaus in a search for someone in the Justice Department willing to fire Cox. This search ended with Solicitor General Robert Bork, and the new acting department head dismissed the special prosecutor. Allegations of wrongdoing caused Nixon to famously state, "I am not a crook," in front of 400 Associated Press managing editors at Walt Disney World in Florida on November 17.

Nixon was forced, however, to allow the appointment of a new special prosecutor, Leon Jaworski, who continued the investigation. While Nixon continued to refuse to turn over actual tapes, he did agree to release edited transcripts of a large number of them. These largely confirmed Dean's account, and caused further embarrassment when a crucial, 18½ minute portion of one tape, which had never been out of White House custody, was found to have been erased. The White House blamed this on Nixon's secretary, Rose Mary Woods, who said she had accidentally erased the tape by pushing the wrong foot pedal on her tape player while answering the phone. However, as photos splashed all over the press showed, for Woods to answer the phone and keep her foot on the pedal required a stretch that would have challenged many a gymnast. She was then said to have held this position for the full 18½ minutes. Later forensic analysis determined that the gap had been erased several — perhaps as many as nine — times over, refuting the "accidental erasure" explanation.

This issue of access to the tapes went all the way to the Supreme Court. On July 24, 1974, in United States v. Nixon, the Court (which did not include the recused Justice Rehnquist) ruled unanimously that Nixon's claims of executive privilege over the tapes were void and they further ordered him to surrender them to Jaworski. On July 30 he complied with the order and released the subpoenaed tapes....

From Wikipedia


Now check out the ethical backlash against Linda Tripp the Mother of All Secret Recorders:

Despite an age difference of 24 years, Tripp became a close confidante of another former White House employee, Monica Lewinsky, when they both worked in the Pentagon's public affairs office. After Lewinsky revealed to Tripp that she had had a physical relationship with President Clinton, Tripp, acting on the advice of her friend Lucianne Goldberg, began to secretly record her phone conversations with Lewinsky while encouraging Lewinsky to document details of the relationship.

Tripp gave the surreptitiously recorded tapes to then-Independent Counsel Kenneth Starr in exchange for immunity from prosecution for violating Maryland's law. Based on Tripp's tapes, Starr launched an investigation into the Clinton-Lewinsky relationship, looking for potential incidents of perjury in Clinton's testimony in the lawsuit Paula Jones had brought against Clinton.

While Tripp maintains she acted out of "patriotic duty," many Americans believe that she betrayed Lewinsky in the hopes of using her knowledge of the relationship to obtain a possible book or movie deal, neither of which has occurred as of 2005.

Eventually both Clinton and Lewinsky had to appear before a Washington, D.C. grand jury to answer questions, although Clinton appeared via closed circuit television. After the round of interrogation, the jurors, perhaps anticipating a profound statement, offered Lewinsky the chance to offer any last words. "I hate Linda Tripp," she said.

Tripp was a resident of Columbia, Maryland at the time she made her surreptitious recordings of the conversations with Lewinsky, and she was charged by state authorities with violating Maryland's wiretap law. Prior to trial, the state court ruled that, due to the immunity agreements which the Independent Counsel's office entered into with Tripp, Lewinsky and others, a substantial amount of the evidence which the prosecution intended to use was inadmissible. As a result, all charges against Tripp were dismissed on May 26, 2000 when the prosecution decided not to proceed with the trial of the case.

Source:

Wikipedia

OPINION 18:

SECRET RECORDINGS OF CONVERSATIONS

by
Marcia A. Johnson, Director
Minnesota Office of Lawyers Professional Responsibility

Reprinted from Bench & Bar of Minnesota (Nov/Dec 1996)

On September 20, 1996, the Lawyers Professional Responsibility Board adopted Opinion 18, Secret Recordings of Conversations. The opinion, with the committee comment which is incorporated as part of the opinion, is set out herein.

OPINION NO. 18

Secret Recordings of Conversations

It is professional misconduct for a lawyer, in connection with the lawyer's professional activities, to record any conversation without the knowledge of all parties to the conversation, provided as follows:

This opinion does not prohibit a lawyer from recording a threat to engage in criminal conduct;
This opinion does not prohibit a lawyer engaged in the prosecution or defense of a criminal matter from recording a conversation without the knowledge of all parties to the conversation;
This opinion does not prohibit a government lawyer charged with civil law enforcement authority from making or directing others to make a recording of a conversation without the knowledge of all parties to the conversation;
This opinion does not prohibit a lawyer from giving legal advice about the legality of recording a conversation.
It has been the position of the Lawyers Professional Responsibility Board and the Office of Lawyers Professional Responsibility for over a decade that surreptitious recording of conversations by a lawyer constitutes unprofessional conduct. This position is consistent with that announced by the ABA Committee on Ethics and Professional Responsibility in Formal Opinion 337 (August 10, 1974). It is also the position held by the majority of state ethics authorities who have addressed the issue. The ABA and other state ethics authorities recognize that although secret recording is not illegal (provided one of the parties to the conversation consents to the recording), such conduct is inherently deceitful and violates the profession's standards prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4 (c), Rules of Professional Conduct, and DR 1-102(A)(4), Code of Professional Responsibility. The committee agrees that in most instances secret recording violates these standards.

The exceptions provided for in this opinion recognize that in certain limited circumstances, the interests served by surreptitious recordings outweigh the interests protected by prohibiting such conduct through professional standards. For example, a lawyer who is the subject of a criminal threat ought not be subject to discipline for secretly recording the threat. The "in connection with the lawyer's professional activities" language is intended to limit application of the opinion to those situations where a lawyer is representing a client or is representing him or herself in a legal matter.

Another exception is secret recording in the criminal prosecution area where such conduct has become a recognized law enforcement tool provided it is done within constitutional requirements. See e.g., ABA Formal Opinion 337 at page 3. The committee determined, however, that such an exception should also be recognized for lawyers engaged in the defense of a criminal matter. See also, Arizona Opinion No. 90­92; Tennessee Ethics Opinion 86-F-14 (a) (July 18,1986); and Kentucky Opinion E-279 (Jan. 1984). Creating an exception only for prosecutors could create an imbalance raising potential constitutional problems. See e.g., Kirk v. State, 526 So.2d 223, 227 (La. 1988) (court found disparity between permitting prosecutors to secretly record and prohibiting defense lawyers was impermissible denial of equal protection).

The exception provided to government lawyers engaged in civil law enforcement similarly recognizes that to effectively protect the public, surreptitious recording is a necessary law enforcement tool. In certain areas such as consumer fraud, false advertising, deceptive trade practices and charitable solicitation, there may be few, if any, alternatives to surreptitious recording for effective enforcement. The exception also recognizes that during the investigative stage, a government lawyer may not be able to determine with certainty whether the violations are civil, criminal or both.

Finally, because surreptitious recording with the consent of one of the parties is not illegal, the committee determined that a lawyer should not be prohibited from advising a client about the legality or admissibility of such a recording. This exception is not intended, however, to permit nonlawyer employees or agents of the lawyer to record conversations in violation of this opinion. See Rule 5.3, Minnesota Rules of Professional Conduct.

RATIONALE

The opinion provides specific notice to lawyers of the long­held enforcement position of the Board and the Office of Lawyers Professional Responsibility that surreptitious recording of conversations by lawyers constitutes unprofessional conduct in violation of Rule 8.4(c), Minnesota Rules of Professional Conduct. With Opinion 18, Minnesota joins the majority of states that have considered the issue, in finding that surreptitious recording by lawyers is unethical.

The impetus for the Board opinion came last year. The Director's Office issued an admonition to an attorney for secretly tape recording several conversations he held with persons (potential parties) about the subject matter of a lawsuit he eventually filed against them. The lawyer appealed the admonition. The panel noted the director's enforcement position was in accord with the position held by the ABA since 1974, and with the majority of jurisdictions. Nonetheless, the panel dismissed the admonition on the following rationale:

There was no specific rule or opinion on the issue in Minnesota;
There are conflicting ethics opinions in other states on this issue;
The panel found no general understanding amongst lawyers that secret recording was unethical.
For these reasons, the panel believed that if there was to be a general prohibition as to secret taping by lawyers in Minnesota, it should be done by an explicit rule or opinion.

The issue was presented to the full board, which concurred that there was a need for specificity. The Board published for comment two draft versions of a proposed board opinion on secret taping in the March 1996 issue of MSBA in brief. The Board's opinion committee also specifically invited comment from certain law enforcement, public defense, and trial lawyer organizations. The bar responded with many diverse views and thoughtful comments.

Some comments questioned adopting any opinion that limited an attorney's right to do something otherwise legal. One described the draft opinion as "a death wish for the profession." Others recommended exceptions to the prohibition that would have swallowed, even engulfed, the rule itself. Several comments addressed the concern that prosecutors and criminal defense counsel were being treated disparately, and unfairly to defense counsel, with possible constitutional implications. Other comments noted that threats against lawyers are not uncommon and that lawyers must be able to protect themselves. Finally, comments suggested that tape recording actually furthered the administration of justice, as it preserves the most accurate evidence of what was said.

The Board considered the concerns raised. The notion, that because secretly recording a conversation is legal it is ethical, does not follow. Lawyers, because of their duty to clients and the courts, are commonly constrained from otherwise "legal" actions. Procrastination is not illegal, but accounts for a sizable percentage of all ethics complaints. Further, to the extent that an attorney's surreptitious recording amounts to "deceit or collusion," it might not be legal.

Similarly, the speculation raised that in this age of cellular phones and exploding technology, no one should assume that any conversations are private must also fail. Surely, for lawyers, technological possibility should not be the defining line for professional ethics. Orwell's 1984 now looms behind us, at least chronologically, but is Big Brother really something the legal profession is ready to embrace? The country is a generation past the Watergate scandals, but the black eye the profession received during that time is still discolored. Surely, allowing generalized secret taping by lawyers with no constraints would not elevate, but instead would cause to plummet the still flagging public confidence in the profession. In adopting Opinion 18, the Board determined that any potential evidentiary benefits to particular practitioners from permitting secret recording were simply outweighed by the generalized costs to the reputation of the profession.

Opinion 18 addresses several of the specific concerns raised in the comments by expanding those extraordinary circumstances under which a lawyer may ethically, secretly tape. The circumstances remain narrow and are limited primarily to those situations where protection of the public is paramount, where a client's liberty interests are affected, or where a threat of criminal action is conveyed against an attorney. Opinion 18 also permits a lawyer to advise a client about the legality or admissibility of secretly taping a conversation. It does not, however, permit a lawyer to advise or direct a client to tape conversations or provide a client with the necessary equipment and technical advice. From an ethical standpoint, there is a critical distinction between presenting an analysis of the legal aspects of client's secret recording and recommending such conduct or the means by which it might be accomplished. See e.g. Rule 1.2(d), MRPC, and Comment.

Other legal opinions:

www.abcny.org/Ethics/eth1989-1.htm

www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol1/texte/2002scr1_0535.txt

[Onyango Oloo]

Mambogani _ Politics _ Decoding Kiraitu's 36 Questions...
Posted by: Onyango Oloo Feb 11 2006, 09:23 AM
jukwaa.proboards58.com/index.cgi?board=general&action=display&thread=1139647687


Posted by: Observer Today, 01:00 AM

Thank you for that post, OO. You are not alone in your confusion as to who is the real Kiraitu Murungi.

My own opinion is that Mr Murungi suffers from four delusions. One, he believes he is much smarter than he really is because he went to Harvard. Two, he has been totally used but cannot work out how. Three, he has succumbed to the taste of power. Four, he believes he is innocent of any crime.

By his own admission in his autobiography In the Mud of Politics published by East African Press, Murungi went to Harvard not because of his own intellectual prowess, but because of his contacts with a Human Rights Foundation not disconnected to some influential players in the Democratic wing of US politics. Mr Murungi's thesis at Harvard is available to the academic public. If one reads it, one will read a reasoned argument that touches all the right things during the time it was written - the mid 1990s. It basically argues for Kenyan democracy, human rights, accountability, free market economics - it might as well have been written by Smith-Hempstone himself. The thing about Harvard degrees is that they actually get read by quite important people. His thesis therefore marked him in the eyes of influential Africanists in Washington as a key mover and shaker. It is my belief that this was an illusion, perhaps a deliberate one by Murungi, in that he rang all the right bells when it mattered, but in practice when he got into power, he practiced few of them.

Secondly, Mr Murungi is not guilty of corruption directly. He is guilty of perpetuating a cover up. The reason he is covering these things up, was because he is career focussed, not money focussed. The Anglo Leasing scams were designed to fund the referendum on the constitutional vote that fell under the docket of Mr Murungi himself. In that regard, Mr Murungi was also naive. He believed in the South Korea / thailand style of politics, which is that it was OK to maintain a grip on power to impose 'good' policies on the Kenyan people - good policies along the lines of his Harvard thesis - depsite the obvious fact that the means by which one maintains a grip on power directly contradict his Harvard thesis. In other words, Mr Murngi is a believer in the ends justifying the means. I genuinely believe that Mr Murungi does indeed ultimately believe in the idea of a democratic and free Kenya, its just that he is prepared to resort to undemocratic means to achieve that end. One realises this by reading all of Kiraitu's speeches to the House of Parliament in the Hansard, or in the appendix to his book if you can't get hold of the Hansard, admittedly an almost impossible task but for a contact in the Kenya National Archives. Mr Murungi believes in theory - ideology - but not practice - realism. It is this dilemma in which we now observe him twist and turn. It is also this dilemma OO, that sees his cash and pocket a compensation cheque on behalf of a defendant he has just defended.


Thirdly, he has succumbed to the taste of power. In his dilemma between ideology and reality, he foun himself in a position to directly influence reality, and in this he pursued his own interests. These interests were not monetary but presige/career related. He wanted to deliver a new constitution, regardless of what that constitution said. He wanted to be the architect of Kenyan democracy regardless of the route by which that was achieved. He wanted to protect Kenyan power from those he viewed as ideologically unsound, despite the fact that he tolerated and covered up ideologically unsound practices to protect his power. He is like a moth flying towards a hot roasting by flames to which it is instinctively attractive. m, he is caught

Fourthly, he believes he is innocent. This is because he has not likely personally benefitted from Anglo Leasing. The money was raised to fund election and referendum campaigns. This gave it 'legitimacy'. Undoubtedly some facilitators of this funding took a commission, but I believe the evidence will show that Mr Murungi diod not make a cent. Because he is not money focussed, indeed he is quite humble in that regard, he believes he is innocent. On his side of the ledger in his own mind is the fact that he did make great personal sacrifices in the name of democracy and freedom for Kenyans. That he pocketed your cheque does raise an eyebrow as to his selflessness for the purposes of the cause. Not that I am suggesting he pursued these cases for the money, he obviously did not. You're right about the principle though - perhaps if he had asked you to cover his expenses, you might have considered it, but he did not.

The problem here can be summarised thus: Mr Murungi believes the ends justify the means. He believes that principle can be sacrificed as long as the 'greater good' is kept in mind, and that he did not personally accept corrupt money. It is for this reason that he will not resign.

Nevertheless the reality he will soon have to face is that his career is over, the ends do not justify the means if the means directly rely on a principle that is the end itself. In both the Banana campaign and in the Anglo Leasing saga, mthis has turned out to be true.

Kiraitu Murungi is about to learn what George Bush is about to find out in Iraq:

One cannot introduce democracy and accountability by undemocratic and unaccountable means.

[Onyango Oloo]

Posted by: Toryboy83 Today, 12:35 PM

Observer:

This is an interesting appraisal of a curious figure in Kenyan politics. Murungi possess many of the typical traits evident in most politicians getting dangerously close to illegal dealings. Firstly, his recent conduct betrays the rhetoric he espoused years ago. Secondly, he achieved status by having it handed to him and not through he own endeavours. Thirdly, he feels a divine right that equates to what he believes should happen and will actually be best for Kenya. Fourthly, he clearly enjoys the rich trappings of the offices he has inhabited.

However, much of what you have explained below appears to me as 'post hoc ergo proctor hoc'. I have encountered a similar tendency in your analysis when we discussed Moi and other notable figures and events previously. Unfortunately, it begs many more questions than it provides answers to. Suppose Murungi went to Harvard knowing that if he said all the right things and ticked all the appropriate boxes, he would one day be touted as a future leader of his country. This must surely have been a possibility given the numbers of Kenyans at Ivy League institutions back then? Once our boy Murungi received the bit of paper my friend has just got saying 'congratulations, we would like to offer you a place to study at Harvard University', it is not inconceivable that young Murungi took this as a green light for his destiny, the foundations of which we was to cross the Atlantic and start digging.

Secondly, I don't like the limited way in which you apply the term 'corruption'. Murungi, whilst not actively seeking to channel public funds into a bank account named 'Murungi', is surely liable by omission. You will know doubt accept this distinction between misfeasance and nonfeasance? Further, why can we not make a causative link between Murungi seeking to profit personally and benefit from the passing of the constitution – funds for which he had secured as a consequence of his actions. I submit that causation exists and it is not too remote to make this supposition. Murungi could surely have known it too otherwise why would he have been so keen to succeed in the first case? Your suggestion therefore that Murungi believes in a democratic Kenya is wholly irrelevant. What matters is his belief in enhancing and benefiting himself, which I notice you accept.

This also serves to answer your third point. By now I am now struggling to establish a sufficient defence to rebut the charge that this man is a criminal. And your forth point nicely drops our Harvard grad flat on his fanny. If he is looking for a defence I suggest he does it himself or are you actually arguing his overwhelming guilt in an ironic way after all? But even if he was your son, promising faithfully that he DID NOT DO IT FOR THE MONEY, would you seriously believe him? He did it to advance himself by exploiting the circumstances he had available to him at every opening. That is how just about every politician has succeeded, and that is why I, if you haven't noticed by now, am inherently wary of them. You will no doubt appreciate that I am more wary still when that politician has recorded evidence against him showing how he attempted to stymie the investigations of an anti-corruption campaigner!

So please don't explain away this man's conduct simply as an unwitting desire to make a failing country better. Your knowledge of him is almost as astonishing as your shameless assumptions. But you do know how to instigate a good debate I’ll give you that. No, Murungi is as guilty domestically as George Bush is internationally and if I had the power they would be sentenced together.

For the record, I dislike contentious law with a passion.