Friday, February 13, 2009

Open letter to Mr. Paul Muite and Mr. Pheroze Nowrojee

Dear Human Rights Defenders and Lawyers, Mr. Paul Muite and Mr. Pheroze Nowrojee,

I have been feeling rather confused and stupid in the past 24 hours despite the reassurance from a friend that I was in safe company as there are 40 million (minus the government of course!) other stupid and confused Kenyans. Nevertheless as lawyers, particularly ones of such high stature and globally respected for being defenders of Human Rights, I am certain that you will give even a fool a fair hearing so bear with me as one of 40 million stupid Kenyans:

Yesterday, I was thrilled to hear the good news that the National Campaign Against Wasteful Government and Political Impunity ("Operation Fagia" - I love this name - sweep the trash out!!) had its first hearing in court against the Parliamentary Service Commission (for my fellow fools - those 3 big words translate to one small one: thieves). I was even more thrilled to hear your names associated with this case! Wow! Finally the Kenyan Court of Justice was hearing a case against the hefty salaries paid to MPs and all sorts of nasty things they have done to us. And two of Kenya most renowned Human Rights Lawyers and Activists were right at the centre of this!! How exciting!! I quickly googled your names to remind myself of all the amazing things people like you and the Open Society and KHRC and KNHRC (ahh, this list of of human rights activists is endless so forgive me if I have left anyone out) have done for Peace, Truth and Justice. Yes, so I googled your names and just a few excerpts to tell our readers a bit more about you:
  • "Pheroze Nowrojee is one of Kenya's and Africa's most well known human rights lawyers. He has been a mainstay of the Kenyan national democratic movement for many years and like many other so called "dissidents" and "disgruntled elements" (to revive the curious lingo of the KANU yesteryears) got into several brushes with the one party dictatorship." (As a tribalist, I was even more proud given that we are sort of from the same tribe - well close enough. You know they call all of us brown ones, "choots")
  • Paul Muite was much harder to find a good paragraph about but I was really pleased when I found a video feed of him commenting about the disgraceful behaviour of the government arresting people for wearing tshirts (You know those silly tshirts that demand Kenyan MPs pay tax!!).
As a stupid Kenyan, of course I did not read the press statement properly but in my bid to fight my inherent stupidity, I read the press statement again...and then again...and again. Why? Because of this:

The PSC has procured senior lawyers Mr. Pheroze Nowrojee and Hon. Paul Muite, the Attorney General represented by State Counsel Mr. Omondi and the 40 million Kenyans are represented by lawyer Mr. Kibe Mungai.

Surely this is a mistake!! And I know better than to trust everything I read online being a blogger who spews only propaganda and half-truths myself! But then today morning, I rushed to the petrol station at the crack of dawn to purchase a newspaper (because the newspapers never lie and since they have their freedom barely hanging on a shoestring - they definitly don't take any chances printing garbage like us bloggers) and look!!!

(Click on article to read full story)

Mr. Muite and Mr. Nowrojee, I am very confused. Do I understand from the above that you will indeed defend the Parliamentary Service Commission against the people of Kenya who think that Kenyan MPs get paid far too much tax free cash? I thought we all agreed that this was the case except the MPs of course? I thought the pair of you have been actively condemning those chaps in parliament for all sorts of important things like the trillions lost in corruption, the Waki Report, the hundreds of thousands of Kenyans facing starvation?

I know!! How stupid of me!! You are actually on our side but pretending to be on their side and then they will pay you lots of money to defend them and you will donate it to dying Kenyans! And then make sure you lose the case and they will all go to jail and Kenya will be a country of Peace, Truth and Justice once again!



Thanks for this Dipesh. I think that it is great that you have also written to these two lawyers. I am surprised by Pheroze but not by Muite. I hope that this case gets support from others and that lawyers from ICJ and others are enjoined as Maina Kiai suggested on KPTJ.


You got it right.these guys are identifying themselves wrongly.i personally believe they have spent a lot of time in their lives creating a good image of their respective identities.i hope they are not about to let the efforts go down the drain.This is more specific to the senior counsel Nowrejee.For Muite his reputation is always unpredictable.Ihope Pheroze Will reconsider this.

Sukuma Kenya said...

I am sorry to say this but the whole civil society movement is
increasingly looking like a little circus full of animals beaten so much that they take their orders from just the raising of a whip. Whether we like it or not, or whether it is true or not, what Nowrojee has done by accepting this case has and will taint the credibility of any organised and institutionally based civil society movement.

Mwalimu said...

DIPESH: At the end of this comment is my response to what follows below purportedly from Paul Muite Senior Counsel and now circulating on the KPTJ newgroup:

Open Reply to the Open Letter by Dipesh Pabari to Muite and Nowrojee.

Mr Pabari and the 40 million Kenyans he says he speaks for are the prefects of parliamentarians NOT the Judiciary.This is the simple but fundamental constitutional principle in issue in this case.In seeking to get the judiciary to do for them what it is their responsibility to do,Mr Pabari and those members of the civil society behind this ill advised litigation are being cowardly.

None of the 222 M.Ps was parachuted from Mars.They were elected by the Kenyan people.If the people are sufficiently unhappy with them,they need not wait for the remaining 4 years.They can get rid of them through mass action and this is the hard work which Mr Pabari and his collegues must take onto their shoulders

Judicial shortcuts are not constitutionally available.Mr Nowrojee and Mr Muite are not defending the salaries of M.Ps and their refusal to pay taxes.On this,the Kenyan people have spoken-they want the salaries redused and they want M.Ps to pay salaries like every one else.We
cannot however allow the destruction of the little that remains of our constitutional order by subjugating the Institution of Parliament to the Judiciary simply because we feel betrayed by the 10th and 9th Parliaments.That would be to invite chaos.

The ball therefore is with Mr Pabari,his colluegs in the civil society and indeed the Kenyan people.

Those who sponsored this litigation must surely have expected Parliament to instruct lawyers to argue its case.Parliament's case is that the judiciary has no jurisdiction in our constitutional order to prefect and supervise
Parliament.That is the responsibility of the voters.M.Ps arte elected.Judges are not.

P.K Muite.S.C.

Here is my personal opinion

1. the case is about whether or not the PSC is a constitutional body and whether therefore its consequent actions since it appeared on the scene
are legal - among these the setting and increasing of MPs salaries, allowances and the budget of the National Assembly itself

2. the psc has a right to representation before our courts and litigants and the public cannot choose advocates for it - it is left to the professional ethics of the advocates (set out in the Advocates Act) to choose their clients and the rules of conflict of interest

3. Mr. Muite is wrong to suggest that the litigation is misplaced (he says "ill-advised") and that mass action is the public's only recourse - if this were so then there would be no reason for courts of law - so hongera Okoiti and colleagues for bringing this important suit - let us hope you have a speedy trial of the issues on the merits - let us not have a circus of technical preemptory applications

4. we should take Muite's advice and agitate for a fresh election in view of the failure of the National Accord government to give Kenyans anything in the way of progress towards Agendas 1,2 and 4 of the National Accord - for presiding over a situation whereby the GOK can do nothing but beg to
feed 10 million starving Kenyans or to stop and punish rampant corruption (a la the days of Moi) within its ranks and for repressing the civil and human rights of Kenyans who are unhappy and want to peacefully protest. Finally for running broke and leaving the poorest of the poor to the mercy of the Gods a la Zimbabwe.

5. litigation, to my mind does not cause chaos, it is official and elite blindness to the obvious and impunity which does that. Litigation is a frustratingly civilised way of discovering public policy.

6. all acts of parliament (including constitutional amendments) are subject to judicial interpretation for amongst other things constitutionality - this is the body of law known as judicial review - if this were not so we would have a dictatorship of Parliament and who apart from MPs past and present really want that.

I could be way off mark - but these are my thoughts - from Mars.