Makau Mutua knows zilch about Kitui coal

By Eric Mutua

Kenya: On January 12, 2014 Makau Mutua wrote “…the people may have been led to the Chinese economic Guillotine by their government with the connivance of local elected officials and Law Society Chair Eric Mutua…”

On January 26, 2014, he wrote an article in The Standard on Sunday and accused me of holding brief for the Chinese company after I challenged him to state whether he had read the contractual documents.

Let me put the record straight. I am the first plaintiff in Machakos High Court Civil Case Number 34 of 2012. Contrary to what he says, this case has not been withdrawn by us.

Anyone can confirm this from the court registry in Machakos. It is indeed scheduled for hearing on February 24, this year. For reasons only known to him and his masters, he has chosen to once again mislead the public.

In that suit we seek (on behalf of the community) among other prayers orders for disclosure of the contractual documents, for the local community to be involved in the negotiations of the mining agreements and a further prayer that in event the contract is executed without taking into account the interest of the community, the same to be declared null and void.

It is as a result of this case that the Benefit Sharing Agreement was for the first time made public  in November last year at a stakeholders workshop held at The School of Monetary Studies, Nairobi.

In that meeting there were journalists from The Standard and Nation newspapers who got copies of the document and subsequently published its contents. The said meeting elected a sub-committee led by Senator David Musila in which I was a member.

The committee’s terms of reference were to interrogate the agreements with a view to seeking amendments in areas where the interests of the community may have been compromised. The committee undertook its work and came up with 26 issues which needed to be addressed by way of amendment to the documents.

Those issues have been shared with all stakeholders including Ms Amina of The Standard newspaper. Vide a letter dated December 18, 2013 the Cabinet Secretary Ministry of Energy and Petroleum confirmed acceptance of the said proposed amendments.

By a letter dated December 22, 2013 the Vice-President of Fenxi Ltd agreed that those changes to the draft contract are to be addressed by way of an addendum.

As I write this rebuttal, the terms of the addenda are being discussed between the lawyers for all parties in the court case with a view to recording the terms thereof as an out of court settlement. If the terms of the addenda are not acceptable to the community the court case continues to its logical conclusion.

Contrary to what Makau thinks, I am not a signatory to the agreement nor was I present when the contract was signed, having been out of the country. Hard copies of the document (which run into 135 pages) have been distributed to the local community and all stakeholders including Kitui Professional Forum.  I do not have a soft copy capable of being posted in Facebook as he demands. I told the good professor that it is intellectual dishonesty for him to discuss contents of a document that he appears not to have read unless his motive is solely to malign my name.

I will see him in court over the contents of the defamatory words, which he has caused to be printed.

As I conclude let me assure the public that if it were not for my efforts, including filing the court case, the agreement would be a secret up to now. In both my capacity as a lawyer and chairman of the LSK, I have stood by constitutionalism, the rule of law and holding people and institutions to account.

That track record speaks for itself and hence the reason why come February 6, 2014 lawyers will renew my mandate as chairman LSK.

The writer is the Chairman of the Law Society of Kenya (LSK).