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.

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