Thursday, January 15, 2015

Ghururi Ya Mutula Verdict: It’s ok NOT to mourn him - Pt 2

Continues from part I

But if-by-Mutula you mean ‘the consummate Wanjikus' Katiba (Kenya’s constitution) and rights advocate and defender of recent years,’ a man whose mantra can be equated to “thou shalt not kill nor sit in the council of conspirators planning the death of another man;” if-by-Mutula you mean the defender of the justice system so rigorous he believed that ‘our duty is not to do justice; the fundamental duty of a criminal defense lawyer is to zealously represent his client within the bounds of the law, and to defend the justice system which is hinged on the principle that no man shall be found guilty of a criminal offense unless the prosecutor proves his case beyond any reasonable doubt;’ the man who believed that ‘to do otherwise would be to invite anarchy in the justice system,’ because ‘many innocent people may be condemned to death or imprisonment if the standard of proof was to be lowered below "any reasonable doubt," and would advice that ‘in contrast, the duty of a prosecutor is not to simply prosecute, but to do justice.’ 

 If-by-Mutula you mean the ‘vintage’ legal mind ‘under whose able tutelage’ his daughter, Kethi Kilonzo, ‘many years later had the audacity to stand in court and pursue what her father opposed in 1992 and 1997: the petitioners' case to have the results of a presidential election annulled on the basis of "glaring electoral malpractices";’ one in whom the law coursed his veins so much that ‘as a defense lawyer in a criminal case he would, as required, discredit the witnesses, facts, assertions, evidence, or whatever the prosecutor presents against his client, "within the bounds of the law", even though he may know or believe it to be truthful or accurate,’ and dutifully ‘present any viable defense, no matter his personal feelings about its true merit;’ if-by-Mutula you mean the defense lawyer who would we never knowingly present false testimony, but would use true testimony to whatever benefit he could for his client, no matter how horrific the crime or evil the defendant,’ because ‘factual guilt plays no role whatsoever in the duty of a defense lawyer to zealously defend his client, and there should never be a moral dilemma once a lawyer assumes the duty to defend.’ 

If-by-Mutula you talk of the defense lawyer whose ‘brief was to use whatever tools were available under the law to obtain an acquittal, dismissal or the best possible outcome, whether based upon fact or law, whether capitalizing on a tactical error by the prosecution or advantage offered to the defense,’ and whose ‘function as such was not to judge, or impose his sensibilities or morality, but to defend his client,’ because ‘that is as it should always be if the justice system is to have any credibility,’ then by all means, like this separation of law from moral dilemma quoted extensively from Wanjiku Revolution Kenya’s post, I too ‘hope that as we prepare to inter the bones of Snr. Counsel Mutula Kilonzo, we will understand his roles during the KANU days and in the recent years. That he was simply a good lawyer, who did his duty according to his education and training. And so may the Lord rest his soul in eternal peace!’

Yet like @WanjikuRevolt goes on to ask, ‘how can we reconcile ourselves with Mutula the tax evader who earned over 1 billion from a single case representing a Wanjiku tax-/pensions-funded institution?’ 

And right here is where the entire fallacy falls apart. In the past 15 months, Kenya has seen 4 high-profile politicians perish, among them John Michuki, Njenga Karume, former Vice President (VP) George Saitoti, and now Mutula Kilonzo. The first two died naturally, a cardiac arrest and cancer respectively cancelling them out rather quietly. The last two, however, died rather mysteriously, with the former VP – then Internal Security Minister – and his then assistant minister Orwa Ojode, crashing and burning in a contentious helicopter ‘accident.’

Now a lot has been said about these four men, and particularly about how they acquired their vast wealth; I will not delve into that. Even more has been said about their double-edged political personalities, pro-status quo before the end of Moi’s era, yet somewhat effective and ineffectual in almost equal measure during Master Kibaki’s reign. I will avoid getting sucked into that easy wormhole just as well. What is more interesting to me is the plight of the Internally Displaced Persons (IDPs) and their equally very dead compatriots; that these 4 ‘Good, Bad & Ugly’ men have been more equal in mourning than the 1000+ who died in the 2007/08 Post Election Violence (PEV); that they deserved multi page-spreading obituaries and state-funded ads reminding us that they have died.  Never mind the little ignominious detail that the families which survived them have more money to better lick their wounds with than the 600k+ who survived PEV, but died as citizens to be reborn as refugees in their own land (IDPs). 

A sickening development I noticed on my Social Media timelines was the prevalence of universal condolence messages to Mutula’s bereaved from Kambas and Luos, while Kikuyus and their consorts seemed universally cynical. I feel the need to remind you of your lanes, people. You belong in that lower echelon of many that died during the PEV and went by unnoticed. Not in the upper stratum of creamed crops whose death becomes a national event and tragedy.

One death is a tragedy; the death of a million is a statistic
                             –       Joseph Stalin 

The Kikuyu and the Kamba have, in my mind, coexisted rather well in the past, and it was only in the run-in to the elections that there emerged differences. How reconcilable is yet to be seen, but it was rather telling that old Kikuyu people I know, for the first time in my life, shared the little-known ‘fact’ that the Kamba were the most ruthless Home Guards during the colonial Emergency period. That may well be so, and the fact that the Kamba collaborated with the British is hardly a secret. Neither is the fact that some of the most rewarded collaborators were from the Kikuyu community. That it was used as a deriding fact to demonstrate the general population of our Kamba people’s affinity to “collaborate with the oppressors,” or cross over to the dark side, if you like, was rather telling of my people’s contentment to subsist upon a microcosm of the crutches of the very same dirty tribal linen that so paralyses them.

When the news, quickly captured in images distributed transversally on Social Media, that Kalonzo Musyoka had broken down as he relayed the news of Mutula Kilonzo’s death to the people gathered at the funeral he was attending when he received the news, the first responders disparaging his act as a campaign maneuver were from my tribe. Now I’m not one to rush into the defense of ANY politician’s intentions, and certainly not one as convoluted by double standards as the former Vice President. I am equally not one, however, to let tribal bigotry – however nuanced – simply slide.

Mutula Kilonzo admittedly separated ethics and emotion from his practice of law in life; in death, we should not be expected to be ethical or emotional in our analysis of his passing either. But we should be logical. No one man is all good or all bad: he defended the despotic Moi and made a trailer-load of money while at it, but was instrumental in the constitutional reforms, and depending on who you choose to believe, was a humanitarian – a Rotarian – with the reform agenda etched deeper in his heart than any of our remaining crop of August House(s) bosses. 

Not only is it ok, however, NOT to mourn him. It is also in one fell swoop ethical, legal and hardly a moral dilemma NOT to. It's a choice, like everything else.

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