Lawyering

Half of lawyering is reading and comprehension. Now...

Article 157 (12) of the Constitution says that Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions. It is quite different in tone and import from clause 9 which say that the powers of the DPP may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

Article 157 (9) and section 22 (1) of the Office of the Director of Public Prosecutions Act, 2013 say almost the same thing, the difference being one of emphasis rather than constitutional and statutory intent. Section 22 (1) says that the DPP may, subject to such conditions as he or she may impose in writing, delegate any power and assign any duty conferred on him or her in terms of this Act or any other written law to a subordinate officer. Section 13 (1) describes the DPP's subordinates: Deputy Directors; Secretary of Prosecution Services; Prosecution Counsel; technical staff; and such other members of staff of the Office as may be appointed from time to time.

In my considered (and jaundiced view), the DPP's "subordinate officers" do not include the Commissioner-General of the Kenya Revenue Authority, the Commissioners responsible for administering the various taxes, of the other officers and staff of KRA. But I have been wrong in the past, so don't take this as cast-iron-solid legal advice.

So what do we do with section 107 of the Tax procedures Act, 2015? It says that despite any other written law, an authorised officer may appear in any court on behalf of the Commissioner in proceedings in which the Commissioner is a party and, subject to the direction of the Director of Public Prosecutions, that officer may prosecute a person accused of committing an offence under a tax law.

The words subject to the direction of the Director of Public Prosecutions, when seen in a certain light, would imply that the Commissioner or an authorised officer falls within the ambit of Article 157 (9) and section 22 (1) of the Office of the Director of Public prosecutions Act. That is, they are "subordinate officers" of the DPP.

That is manifestly wrong.

The Commissioner is appointed by the Board of Directors of KRA. Authorised officers are appointed by the Commissioner-General. No stretch of imagination makes them the DPP's subordinates; they are the Commissioner-General's subordinates. Consequently, the DPP cannot delegate powers to them at all. Not under Article 157 (9) or section 107 (1) of the Tax Procedures Act, 2015. In my considered view, Parliament was wrong. Parliament can rectify its error by deleting the words "subject to the direction of the Director of Public Prosecutions" from section 107 (1). This would bring section 107 (1) into conformity with Article 157 (12).

There's a principle that is enshrined in our common law: where a law is ambiguous, the benefit of that ambiguity is given to the accused person and not the State. Section 107 (1) is capable of being interpreted in two ways: that the DPP can direct KRA officials in their prosecution of tax cases or that the provisions of section 107 are ultra vires the constitution. That ambiguity is sufficient to benefit an accused person who challenges a prosecution by KRA on the basis that the prosecutorial power was wrongly (unconstitutionally) granted.

The other half of lawyering is admitting when one is wrong.

Don't hanker for the good old days

The law is a weapon. No one should be in doubt that even when the law is affirming the existence of a right or fundamental freedom - or prescribing the penalties for violating that right or fundamental freedom - the law is a weapon. Sometimes it's a cudgel. Sometimes it's a scalpel. But make no mistake, when the law is deployed, it is deployed as a weapon. In the form it takes regarding taxes, the law is a very formidable and deadly weapon and it takes a person of great personal will, determination and wealth to stop the law in its tracks.

For the law to function well as a weapon, those who deploy it must understand it, use it dispassionately and not allow the immense power they wield to get away from them in reckless and unwise adventures. Mr. Humphrey Kariuki, a billionaire businessman, fought the law and for once, the law did not win. It may yet do so on appeal, but no one is confident that the other superior courts will grant Mr. Kariuki's accusers the kind of power they were seeking to begin with.

It is not clear what Mr. Kariuki did to attract the attentions of the taxman or why the taxman, the police and the public prosecutor were so keen to skirt the finer points of the constitution when they brought overwhelming force to bear on Mr. Kariuki. The seemingly tailor-made legal framework that permitted the taxman and the police to investigate Mr. Kariuki for various tax offences and to prosecute him as well has come a cropper thanks to the High Court. Mr. Mrima, J, disagrees with the manner in which the DPP's powers were delegated to KRA and the National Police Service, declaring the legal framework ultra vires the constitution. I'm not sure the other superior courts will agree; after all, Article 157 (12) says that parliament may enact legislation conferring powers of prosecution on authorities other than the DPP and, to my mind, other authorities rightfully include investigative authorities like KRA, the Police, EACC and the like.

In my opinion, it is the seemingly motivated nature of Mr. Kariuki's prosecution that may have persuaded the High Court to declare that investigative bodies cannot both investigate and prosecute. I tend to agree. Many seem to have forgotten the unhealthy outcomes of police prosecutions from the 1970s and 1980s that transformed relatively straightforward criminal prosecutions into life-damaging convictions. What may have resulted in a fine or a short custodial sentence, ended up being years of to-ing and fro-ing in court, huge legal bills and years behind bars. No one should hanker for the good old prosecutorial days. Maybe the Court of Appeal will agree with Mr. Mrima, J. Hope, after all, springs eternal.

Kenya is taking incremental steps towards greater individual freedoms. In prosecution, though the risk of empire building is great, investigative bodies should not be granted prosecutorial powers. Knowing what we know about how the law is often used for selfish, personal or political ends, allowing the investigator to make the decision on whether or not to prosecute is a recipe for grand corruption and abuse of office. We can empower Mr. Haji and his successors while enhancing oversight of the exercise of their prosecutorial powers. But it does not make sense for Hilary Mutyambai and the rest of the National Police Service to take time investigating crimes to engage in the complex legal work of criminal prosecutions. In this case, each should stick to his lane and be happy doing so.

The worst

Merely because William Ruto was President Kenyatta's running mate three times over and held the office of Deputy President twice over does not give him an automatic right to the presidency, never mind his incessant reminder that they had a deal. And merely because rails Odinga has sacrificed so much for Kenya does not automatically mean that he is entitled to be elected the fifth president of the Republic - or, for that matter, he would make the best candidate.

We are being manipulated by politicians and their mouthpieces - Makau Mutua and Eric Ng'eno spring to mind - to cast our ballots for their preferred candidates. Part of the manipulation is the heavily motivated negative statements about the rival candidates. In none of the campaigns so far have we been given a compelling reason to cast our ballots in August.

In 2002, the sky was rend by chants of "Yote Yawezekana Bila MOI!" In 2013, CORD made a compelling case against TNA. In 2022, the impression one gets is that we are being fed a steady diet of cat puke and told that it is the best risotto ever. Not even the announcements of Martha Karua and Rigathi Gachagua have inspired us to think of the 2022 general election as a do-or-die affair. Many see it as a cynical ploy to lock down the votes of "the Mountain" as if the mountain is the only factor to affect the outcome of the general election.

Not even the spirited also-rans inspire a groundswell of support. There is a misguided pair that believes Kenya is ripe for legalise marijuana revolution. These kinds of stupidities inspire nothing but despair. It is like the pro-bhang campaign has refused to acknowledge that despite the fact that thousands upon thousands of Kenyans partake of the herb, they do so in the knowledge that it is wrong, that it should not be legalised, that it causes real harm. Kenya is not ready for a conversation on the decriminalisation of narcotic drugs and psychotropic substances.

The way that Kithure Kindiki and Tim Wanyonyi have been shafted by their coalition principals is a testament to the backroom backstabbing going on in 2022. The desire to secure ultimate political power has blinded the campaigns to the unseemly betrayals they are engaging in, the dodgy compromises they are making, the hypocrisy of their pronouncements and announcements. All this is supercharged by the naked anti-national sentiments expressed by their mouthpieces, designed, however inadvertently, to undermine our faith in political institutions, and promote the cults of personality they pretend to eschew.

No, 2022 is not the inspired general election we need. It is not even the best of a bad deal. It is the worst of a very bad deal. Maybe a dark horse will come out of the wilderness and inspire the dispirited masses. And no, it won't be Kilonzo Musyoka. His ambition is as naked as the dye colouring his thinning hair.

Ditch the fence

It is a truism of my now-ignoble profession that among the basic skills a lawyer should posses, is the ability to read, understand and interpret contracts - and this skill extends to parsing the meaning of oral contracts. The key elements of a contract are known to us: an offer is made; an offer is accepted; consideration is paid. Everything else (grounds for breach, dispute resolution, jurisdiction, etc.) is the meat and potatoes of lawyering, but the triumvirate of offer, acceptance and consideration are the foundation of all contracts. The longer one practices as a lawyer, the more ingrained the finer aspects of contracts law become. And by the time the President of the Republic confers you with the rank of "senior counsel", you are a walking, talking compendium of contract law.

Or so one might think.

A former Vice-President of Kenya has been conferred with the rank of senior counsel. He's held that rank for almost two years. He is the leader of a political party that is part of a coalition political party. The coalition agreement was signed in his presence by the secretary-general of his political party after interminable negotiations at which the terms of the agreement were agreed to by the principals of the coalition's members. The coalition agreement is, for all intents and purposes, a contract.

However...

Some of the things we were no taught in law school are still pretty obvious. You always keep a copy of a contract that you have signed. You receive or make a copy at the moment the contract is signed. You don't ask the other party to send you a signed copy later (though many of us seem to do so with insurance contracts). The higher the stakes in the contract, the more urgent the need to keep a copy once ink hits paper.

But Kenyans do things different.

We have been witness to the wooing that went on to get our senior counsel into the coalition. He played hard to get, dangling his affections in front of the two main political agglomerations. He even declared at one point that he would be the most foolish man if he backed the presidential ambitions of the senior-most presidential candidate of the day for a third time. But as in all waltzes, he eventually chose a side, and put pen to paper. And then tried to negotiate more favourable terms. In Kenya, child, we do things different.

From the moment he - well, his secretary-general - signed the coalition agreement, our senior counsel has bitched about everything. It is clear that he thinks he is special. His inflated ego cannot countenance that there is anyone else who holds greater political weight. And because of his special nature, he wants to take the No. 2 slot on the ballot, and a lion's share of political positions (and the power the positions imply) in the bargain. And he is not amused that his coalition partners do not recognise the legitimacy of his demands. The suggestion that someone else might make a better fit (another senior counsel with a hard-eyed approach to political combat has been suggested as a better running mate) has driven him and his allies to issue threats, both veiled and unveiled. "Unconstitutional" has been bandied about with wild abandon.

It worries me that senior lawyers, senior counsel no less, have forgotten the basic rules of lawyering when it comes to contracts. I can excuse lapses by people who hold PhDs in communication sciences when it comes to contracts - but only barely. They rely on lawyers to parse the written and unwritten rules of contract law. But how a senior counsel comes to allege that (a) he didn't read the contract and (b) he didn't get a copy of the contract and (c) the contract he signed is unconstitutional baffles the devil out of me. Now it might be that all three are true (undue influence and coercion can be the basis for all three scenarios), but only a child will believe that what we are witnessing is anything but the political equivalent  of buyer's remorse. Our wakili didn't want to sign the contract; he didn't know what to negotiate for; he was afraid to ask for a copy of the contract; and now he wishes he had gone with the other suitor who seems to have a bottomless pit of cash.

He should just burn this bridge.

Unfair snickering accompanies mention of fences and watermelons when this man's name is mentioned. Unfair but eerily dead right. He would do his tattered reputation the power of good if he simply burnt his last bridges with his coalition partners, especially the senior-most coalition partner. He should take a stand and kama mbaya, mbaya! He and his acolytes should stop grovelling. They should go it alone, if that is what their hearts desire. It is the only way they can redeem a measure of self-respect. If not, they should wait their turn outside the principal's office like everyone else.

Gaslighting won't work

When doubts are raised about the Chosen One at this year's general election, the doubts are not always motivated by animus. There are those among us who do not appreciate the hectoring tone adopted by Lil J, as some Twitter wag has taken to calling Junet Mohamed. Nor are we amused by the constant stream of twitter diatribe from the one Miguna Miguna calls the Fat Toad of Buffalo. As we have demonstrated on countless occasions, Kenyans are not morons. We have not been bamboozled in the political choices we have made since the halcyon days of "Yote Yawezekana Bila Moi". So the leadership of the Azimio la Umoja One Kenya Tours and Safaris should stop with the lectures and subliminal intimidation tactics.

The same goes for the putative saviours of the Republic in the Kenya Kwanza Wheelbarrow CBO. Just because Rigathi claims that he and his compadres have been he victims of tyranny does not erase the fact that Rigathi was a District Officer and that his preferred candidate was an energetic promoter of Youth for Kanu '92 (Y92) and that by the time they were done with the first multiparty elections, inflation was out of hand, at least one opposition presidential candidate was dead, land clashes had displaced tens of thousands of Kenyans, and Nchi Ya Kitu Kidogo had become a painful reality.

The point of my screed is that the rival political campaigns must take heed that Kenyans will decide; it is not boardroom mechanisms that will bring forth the Fifth President of the Republic. No amount of maneuvering and manipulating and intimidating will make Kenyans forget the stakes of the general election. If Baba is the choice of the majority, so be it. If Wheelbarrownomics is the winning formula, the ballots cast will be proof of concept. But enough with the gaslighting.

Snatching defeat from the jaws of victory?

Knowing what we know, and seeing what we see, I am baffled by the lengths that senior members of the Azimio-One Kenya Tours and Safaris will go to set their house on fire three months before the general elections, and thereby jeopardising Mr Odinga's chances of becoming The Fifth. First it was the ham-fisted wooing of Mr Musyoka, SC, away from the Kenya Kwanza wheelbarrow. You got the impression that Mr Musyoka, SC, had been mugged on his way to City Market to buy fish for the weekend. There was little in the way of finesse as he finally joined the Azimio agglomeration. And it got worse from there.

There were unpleasant accusations that none of the signatories had read the coalition agreement. There were hilarious snafus as premature whinging over Deputy President slots were mouthed in disparate barazas before lacklustre crowds. The impression that the mugging had morphed into a hostage crisis has only gained credence in recent days with the appointment of a panel to choose Mr. Odinga's running mate. The Azimio mouthpiece, a USA-based law professor, and an excitable Migori MP have done much to undermine confidence in Mr Musyoka's camp that he is, indeed, the chosen one, demanding that he shall face the same panel as other worthy candidates.

A Kitui MP, and his Ukambani cheering squad, have lambasted the panel-beating taking place in the search for a running mate. They are reinforced in their intransigence by an impeached ex-jailbird seeking gubernatorial glory in County 001. What they have done, in a weird sort of way, is to affirm how low one of Mwai Kibaki's Vice-Presidents has sunk in the political premier league. He can only trade on his glory days. He has little to show for that glory. If he isn't careful, the unfair tag of "has been" will wrap itself around his neck, albatross-like, and strangle his political career like a boa strangling a wee lamb.

I spent a few days with my very aged grandmother in Sawagongo. We ate fish and kuon. We drank copious amounts of clay-pot-chilled water (goodness, the humidity of Gem is something else). And we flirted with the heresy that the Wheelbarrow Acquisition and Distribution CBO may offer a better future because, despite it all, it has a less foot-in-the-mouth approach to things (sexist and misogynist rants of its Cosmo Chois notwithstanding) than Azimio-One Kenya Tours and Safaris.

I can understand the desperation of the Senior Counsel to be on the ballot one more time. He has. nothing to fall back on if he is left out in the cold. I can understand why his acolytes are threatening mass walkouts out of the coalition. They are only relevant if their fantasy of political supremacy is affirmed by the choice of the Senior Counsel as running mate. But politics based on desperation has little chance of persuading the voters to cast their ballots for them. It is, frankly, a little off-putting if not downright creepy. Sadly, though, the one Miguna Miguna calls the Toad of Buffalo cannot see his nose for the world. He will continue to pen increasingly ill-advised screeds. He will continue to tweet like a teenager. He is a harbinger of the drubbing that the Azimio Tours and Safaris is inviting.