Monday, May 16, 2022

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.


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.

Friday, May 13, 2022

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.

Monday, May 09, 2022

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.