Kibaki’s respect for rule of law seen in court appearance

By ABDI HASSAN

Former President Mwai Kibaki’s appearance in the High Court at Nyeri and cross-examination in a civil suit case involving a property he co-owns with five others was a landmark event in both jurisprudential and statecraft terms.

The property, Mathingira Wholesalers, has been in business for four decades now.

Appearing in Judge Anthony Ombwayo’s court, Kibaki was closely cross-examined for more than an hour. Throughout the session and in news footage beamed nationwide by electronic media, Kibaki unselfconsciously projected the humble mien of a man who is totally comfortable in his skin in his retirement.

He is also a man who is clearly self-assured in the comfort zone of his own legacy.

As President for two consecutive five-year terms (the full spectrum prescribed by the Constitution), Kibaki was a consummate respecter of the rule of law. He did not misuse the law, even when he was above it, to punish his partners in national leadership or indeed any other category of Kenyan.

His Presidency, succession, transition and early legacy are object lessons in principle, integrity, hindsight, insight and foresight in that they gave great deference to the law. His respect for property and contracts, irrespective of who you are, where you are coming from and where you are going, is both wise and exemplary.

From where Kibaki has always sat — pre-Presidency, the years of power and now retirement — due process is honourable, always.When he was convinced that his second attempt at the Presidency in the December 1997 General Election had been thwarted through massive fraud, he promptly went to court. And when he lost the case on the most brazen and cynical of technicalities, Kibaki did not attack the Judiciary as an institution, nor seek to drag individual judges into disrepute. He bided his time and the rest, as they say, is history.

As millions of Kenyans watched news footage of the former President in court under cross-examination (including NTV’s tongue-in-cheek close-ups of this elder statesman almost nodding off as the lawyers droned on and on, arguing their arcane technicalities and looping their loopholes), two things struck them.

One, the law can indeed be made to work within our borders.

 Two, in this day and age in the early stages of Mzee Kibaki’s stupendous legacy, we don’t have to invoke our status or station in society to get justice delivered. This is indeed as it should be. After all, during his watch as President the law of the land was finally and finely overhauled. He has the privilege of  presiding  over the Promulgation of the Constitution of Kenya 2010. What’s more, he clearly respects the new dispensation in both word and deed.

Kibaki’s demeanour, openness and respect for the court process contributed a great deal to the judge’s recommendation for an out-of- court settlement. He was in Judge Ombwayo’s court as a defendant in the suit filed by Ndiritu Munuhe, Kanyi Waiganjo and Sammy Maina, who claim ownership of the property. Kibaki explained that owing to his demanding duties over the past decade, he could not attend company meetings.

“I own many companies in this country but I left them to be run by trusted individuals. I can’t know the exact activities that happened”, he said.

Kibaki tabled several documents in court as evidence that he co-owns the plot with his brother Samwel Githinji, neighbours Kimwatu Kanyungu, Kiiru Gachinga, the late Gadson Gitonga and Kibera Gatu. A flash of the old Presidential fire and no-nonsense attitude was evident in court when Kibaki tersely responded to the plaintiffs’ lawyer Lucy Mwai (no relation), who asked whether his brother Githinji had sold off a number of the firm’s shares: “I cannot speak on behalf of somebody who is alive and mature. He is here and will speak for himself”.

The former President’s appearance in court was a huge blast of fresh air. A quick search on the Internet reveals no former US president has appeared in court in their retirement. A whole lot of former heads of state and government who have appeared, and continue to appear, only do so against their will, to answer for all manner of wrongdoing committed while in office.

But perhaps the most amazing thing about Kibaki’s voluntary, dignified and exemplary appearance in court is not so much the fact of his preeminence in Kenyan society. It is that that a group of ordinary folk the world never heard of before believed it had a grudge against a VIP and resorted to the wisdom of the court process for adjudication.

 That is a fundamental part of the rule of law, as Kibaki always taught Kenyans by example.

The writer is Programme Officer, North Eastern Pastoralist Forum in Garissa.