The first black dean of a law school in the history of New York State, Prof Makau Mutua opens up on why he won't refer to Uhuru Kenyatta as the president.
Tell us a bit about your family...
I was born in Kitui in a family of seven, I am the second born.
My sister and brother live in Kenya. I have been happily married to Prof Athena Mutua since 1986. From 2002, she has taught law at SUNY Buffalo Law School where I also teach. Athena is from Baltimore, Maryland. We have three sons; Lumumba (23), Amani (22) and Mwalimu (21) who are in college in the United States and two daughters; Mueni, who is a lawyer in Dar es Salaam and Jueria Abdul, an aspiring journalist in Mombasa. Both are married.
What is your idea of a good Saturday? A well spent Saturday.
I spend most weekends with family, although I also travel a lot internationally and domestically in the United States on business. I would watch sports on TV, probably take the family out for dinner or work around the house. I love to cook and do so often. But I hate to shop; malls give me a headache.
You have conducted most of your teaching career abroad. Do you have any specific reason why this is so?
I was exiled from Kenya by the KANU regime for being a student leader and opposing the one-party dictatorship. Tanzania under President Mwalimu Nyerere took me in. I completed my first degree at the University of Dar as Salaam as a refugee in 1983 but finished my studies in the US. I couldn't return to Kenya and so I started a career as a lawyer in New York City. But I have always been connected to Kenya and been very active after the declaration of multi-partyism in 1991 when I could come back for the first time. And have since been very deeply involved in Kenya. I am very proud of my native land.
The young legal minds that you teach and interact with abroad, and those here in the country - say at Kenya School of Law or at the University of Nairobi's Parklands campus. How do they compare?
Kenyans can compete with anyone anywhere any time. We have some of the most brilliant minds on earth. Unfortunately, Kenya's educational system has gone to the dogs. The standards are low, cheating is rampant, teachers don't really do their jobs any more, the facilities are pathetic and pay for teachers is a mockery. This is a cocktail for disaster.
The country has lost billions of shillings due to corruption over the years, if you were to come up with a radical programme for handling corruption in Kenya, what would such a radical programme entail?
No radical solution is needed to stem corruption. Just conduct effective investigations, prosecute suspects, put them away, and throw away the key. Right now corruption pays because no one is held accountable. The high and mighty are knee-deep in corruption.
Did you resign from being the university dean at Buffalo Law School after committing perjury in an American court as was reported in one of the local dailies?
I have never been charged with perjury in my life. The local daily that reported that defamatory story got it from a disgruntled employee whom I let go for incompetence. I stepped down as Dean after seven years of a most successful tenure. I will remain in the school as SUNY Distinguished Professor and the Floyd H. & Hilda Hurst Faculty Scholar.
The International criminal Court (ICC) case against Mr Uhuru Kenyatta has been withdrawn for lack of sufficient evidence. Do you feel that justice has been done?
The withdrawal of the ICC case against Mr Kenyatta is most unfortunate. It is a sad day for the victims. But we should be clear about one thing. The withdrawal of the case doesn't mean Mr Kenyatta is innocent. It simply means the Kenya Government has refused to provide the information required by the ICC. What is even more terrible is that witnesses 'have been disappeared', bribed and killed. Someone, I don't know who – has sabotaged the case. But the charges could be reinstated if additional evidence is found.
There are words and phrases that you constantly use in your writing and your TV interviews. 'Sycophant', 'praise singer' and 'subservience'. What do these words/ phrases mean to you in relation to Kenya?
Both the spoken and written words are supposed to convey ideas, emotions and intuitions. I don't hide behind the medium of the written or spoken to obfuscate or evade. By calling out sycophants, I am attacking a socio-political disease that the Kenyan political class has perfected. Sycophancy is the heart of dictatorship. Mindless and spineless praise singers clog Kenya's airwaves and press. You can't build a democracy on such vile behaviour. They don't do Mr Kenyatta any favours by treating him like an emperor.
Can you call Uhuru Kenyatta-President Uhuru Kenyatta, or will you forever stick to your normal Mr Uhuru Kenyatta?
I believe Uhuru Kenyatta's gender is male. That's why I address him as Mr Kenyatta. I don't call him Uhuru or Kenyatta, but Mr Kenyatta, which is what proper educated protocol requires. I have never disputed that the IEBC declared Mr Kenyatta President of the Republic of Kenya, a declaration that was affirmed by the Supreme Court. In that sense, Mr Kenyatta was declared by those two bodies the de jure and de facto the President of the Republic of Kenya. I publicly stated and tweeted after those declarations that "As a matter of freedom of conscience and thought, I can't accept Uhuru Kenyatta as President of Kenya. I can't and I won't." My views haven't changed, and won't change. That's because I believe the election was compromised and not free or fair.
Does that mean that you do not recognise him as your president?
The question of my recognising Mr Kenyatta as President doesn't arise. There's no constitutional predicate that requires a citizen to bow down to Mr Kenyatta just because the IEBC and the Supreme Court declared him the validly elected President. That's the opinion of those institutions, with which I disagree with all due respect to them. Citizens must obey their conscience and my conscience tells me that the election was so flawed that I would be untruthful to my self and abusive to my conscience, if I was to refer to Uhuru Kenyatta by any other salutation except Mr Kenyatta.
Do you see the Law Society of Kenya, under its current leadership as able to see through its mandate, especially with reference to the constitutional amendments being spearheaded by politicians?
I have respect for the current leader of LSK Eric Mutua in spite of our dust-up over the matter of the concessions of Kitui coal to the Chinese. I think the LSK should play a more proactive role in national conversations around the Pesa Mashinani and Okoa Kenya initiatives which have the potential to rewrite the Constitution.
And the CJ Dr Willy Mutunga...is he...
I know folks are/were disappointed by his position on the presidential petition. I was angry too, and still smarting, but I have decided that we must help him reform the Judiciary. He's an ally, not an enemy of reforms. The CJ Dr Willy Mutunga has entrenched enemies in and out of the Judiciary. That is why civil society should stop vilifying him and support him. We may never see the likes of him in a generation.
Which are two of your most memorable cases (where you represented someone)?
Most of my legal work isn't in the courtroom. I am an intellectual who teaches and writes on legal and political matters. I teach and produce lawyers, the legal brains that litigate in courts. But one of my proudest moments was when I represented former Ethic Czar John Githongo in the Anglo Leasing matters. Mr Githongo is one of my heroes and I hope one day he runs to become President of Kenya. He would be a great leader. The other matter that I was involved was a private international tribunal looking into the atrocities committed in Iran under Ayatollah Khomeini.
There are different versions of the truth: the universal truth and an individual's truth. How do you live your life-is it according to universal truths or according to your truths?
Social truths are inherently universal. All truths begin as specific claims of a glimpse of eternity. I always interrogate claims of universality because I know they can be misguided. Some of them have included racist claims or misogynistic assertions. Or even heterosexual hatred of gays presented as universal truths. I don't live by blind faith because that's a suspension of reason. To me, reason trumps all.