Monday, April 29, 2013

The Complete Post from Wanjiku Revolution's Page - Ghururi ya Mutula

Wanjiku Revolution Kenya: "A compatriot tackles our moral dilemma in mourning Mutula Kilonzo. Do we mourn the consummate Wanjikus' Katiba & rights advocate and defender of recent years or the lawter defender of Wanjikus' resource looters and oppressors Moi and his KANU clique? Joshua, let me throw a spanner in the works, how do we reconcile ourselves with Mutula the tax evader after earning over 1 billion from a single case representing a Wanjiku tax/pensions funded institution?"

J. Nyamori

I am sure a few people wonder how Mutula Kilonzo, the bright lawyer, could sleep at night after helping his client, Daniel Arap Moi, whom he knew was guilty of rigging the 1992 and 1997 elections beat the legal system. In fact, many have used this argument to doubt Mutula's honesty as an MP and Minister in the later years, especially in defense of constitutionalism and human rights. It must have even appeared ironical to many that Kethi, many years later, definitely under the able tutelage of the vintage Mutula, 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 elections annulled on the basis of "glaring electoral malpractices".

Every time I hear or read of such arguments, I am reminded of a discussion I had with my late father, James J. Nyamori, in 1992, when I was 17 years old. As a lawyer, he was then handling one of the many Court of Appeal pauper briefs, this time seeking to overturn a High Court judgement that had condemned his client to hang for murder. For a whole week, he would pour through legal books and legal authorities. He was a disturbed man. His worry was that his client had very slim chances of surviving the nooseman's rope. He knew his client was guilty of the offense but hoped that he could get him out, at least on a technicality or weak point in the evidence.

As a young man struggling to find his grounding on the prevailing value system, I was appalled. How could my dad struggle so much to get someone who had obviously murdered out of the hook? This is the same father who had a few years ago introduced me to his value system, which included the rule that, "thou shalt not kill nor sit in the council of conspirators planning the death of another man." And I knew he was not doing it for the money, as pauper briefs paid very little from state coffers. I however decided not to confront him with the question until he was done with the case.

When the Court of Appeal, sitting in Kisumu, finally gave it's judgement, dad came home very excited. He celebrated his client's acquittal but told us how, after the court rose and the Judges of Appeal left the room, he walked to the dock and admonished his client for "a murder so foul", advising him to submit to his creator and repent. I was confused: how do you get a murderer out of the hook then you ask him to seek repentance? I told my father of my objection to his excitement and reminded him of his council to me a few years earlier that, " thou shalt not kill nor sit in the council of conspirators planning the death of another man."

I vividly remember the argument my father advanced that night as we ate fish together. Every time I hear or read others condemn Mutula, Wako, Abdulnassir etc, for their apparent tinkering positions, I seek counsel on the advice my father gave me that night. He told me that the fundamental duty of a criminal defense lawyer is to zealously represent his client within the bounds of the law. He declared " our duty is not to do justice, but 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...To do otherwise would be to invite anarchy in the justice system. Many innocent people may be condemned to death or imprisonment if the standard of proof was to be lowered below, 'any reasonable doubt'." He went further to advice that, "in contrast, the duty of a prosecutor is not to simply prosecute, but to do justice."

He explained to me that his duty as a defense lawyer in a criminal case is therefore to 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. He told me that a defense lawyer must present any viable defense, no matter his personal feelings about its true merit. He told me that while a defense lawyer should we never knowingly present false testimony, he should use true testimony to whatever benefit he can for his client.

My father went on to quote one of his lecturers at the school of law, I cannot remember the name, who he always taught him that, "Your role as a defense lawyer is to defend the justice system, and in this case your client, no matter how horrific the crime or evil the defendant. Your brief is to use whatever tools are 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 the defense." He told me that factual guilt plays no role whatsoever in the duty of a defense lawyer to zealously defend his client and that there should never be a moral dilemma once a lawyer assumes the duty to defend. "My function is not to judge, or impose my sensibilities or morality, but to defend my client, that is as it should always be if the justice system is to have any credibility", I remember him say.

I therefore hope that as we prepare to interr the bones of Snr. Counsel Mutula Kilonzo, we will understand his roles during the KANU days and in the recent years. He was simply a good lawyer. He did his duty according to his education and training.

May the Lord rest his soul in eternal peace!

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