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Willy Mutunga: If Uhuru has any cash out there, he should bring it back

By Andrew Kipkemboi | November 30th 2021
Former Chief Justice Willy Mutunga. [File, Standard]

If the President has discovered that he has money out there, he should bring it back.” This is former Chief Justice Willy Mutunga’s response when I ask him about the recently leaked Pandora Papers’ leak.

He quickly adds: “In the same way those people who don’t pay taxes should be made to pay taxes.”

He says the Pandora Papers’ leak did not surprise him, though he won’t comment whether they were authentic or not. That is unexpected from a man who coined the term “bandit economy.”

He says illegal outflows by society’s elite was common in the past because of coups, especially in Africa, where big men were consistently looking over their shoulders to ward off such. From William Tolbert in Liberia to Sani Abacha in Nigeria to Mobutu Sese Seko in Zaire, all of them stashed loads of cash in overseas banks “just in case something happened.”

Dr Mutunga however condemns the West for screaming so loud about illicit outflows and inflows of money yet they are the ones who provide safe havens for these funds, almost always stolen.

“The UK and America are the biggest money launderers in the world,” Mutunga says.

His point is that you cannot handle so much money (it is estimated that illicit cash totals $4 trillion) outside the formal banking system.

He wonders how the British “who stole our land and used it for 68 years and then sold it back to us” are now the ones teaching us morals.

Mutunga says by confiscating or freezing assets money from locals, the West is being deceitful. “I would ask for that money to be brought and deduct taxes due.”

His conclusion is that the West play with the minds of Africans because when a new regime takes over, they are quick to “leak info about those that just left power.”

“They disclose it to create agitation,” he adds.

Mutunga believes this is a manifestation of our “politics of uncertainty and a leadership that is enslaved by foreign interests… when you are in power they exploit it; when you are out of power, they hand you over to the devil.”

“We ought to realise that even if we hate these people, the money belongs to us.”

I hang on to the bandit economy question.

“There is a lot of money laundering in this town… if you look at the buildings that are being built… KRA should be asking for the sources of that money.”

“Where do people get all the money to put up all these houses… why not put that money in factories that can create jobs,” he wonders, and like many of the questions he has asked, answers it: “They are just thieves, bandits who build and just say I am a respectable landlord.”

“What economy is that that your farmers are languishing in poverty because they can’t sell their maize or where the monopoly in the dairy sector has impoverished farmers?”

He recalls a meeting in Eldoret between farmers and the Senate, where the former pressed the latter to tell them why their maize and milk had not been bought.

Undermine growth

Mutunga says the “bandit economy” model will continue to undermine growth and subject more Kenyans to poverty.

But why use the metaphor of cowboys?

“In cowboy movies,” he says “the guy who is first shot is the one hired by those in power to keep peace because he is the most destructive.

It is the “economy of building apartments and offices when you don’t know who is going to use them, while people in slums need houses and they can pay rent.”

The cartels in the economy “keep their eyes on the dollar” and care less about the people… “That kind of an economy is problematic,” he says.

Nothing gets into the skin of the former CJ like the disobedience of court orders. He uses the case of Miguna Miguna to drive his point home.

“Many people don’t like Miguna, but this can happen to anyone… so it is not about Miguna,” he clarifies, perhaps reading my mind.

“I feel very bad as the former head of Judiciary that judicial orders are just being violated.”

His remedy? To start a movement to protest “the disobedience of court orders”.

Mutunga says he will invite Justice David Maraga, who succeeded him, to highlight “the danger of disobeying court orders”.

To him, the responsibility ultimately is on the Judiciary to stand up to the bullying of the Executive.

“The Judiciary does not have an army to enforce these orders, but if they stand together they will make a difference… they lack the courage to do what Justice Isaac Lenaola and a few others have done.”

Justice Lenaola fined Francis Atwoli (the trade unionist and Cotu Secretary General) Sh500,000 “for disobeying the court.” That is little money for Atwoli, “but at least Atwoli was put in a cell… that is very symbolic,” he says with bemused satisfaction.

“As a Kenyan citizen, Miguna is entitled to fair justice...” Mutunga returns to his point: “...but he can’t come home because of the red alerts issued to airline carriers and so nobody can carry him.”

He says: “Whoever gave the orders (allowing Miguna to return back to Kenya from where he was deported in 2018) ought to summon Interior Cabinet Secretary Fred Matiang’i and the PS Karanja Kibicho back to court to answer contempt of court charges… why haven’t they allowed him back?”

To him, the judges ought to demonstrate that they mean business.

Mutunga once tweeted that Dr Matiang’i could be subjected to citizen arrest even in church for disobeying court orders. “If you send Boniface Mwangi to arrest Matiang’i, he will do it,” he says with a chuckle.

Mutunga and Mr Mwangi are engaged in civil society activities. That is why he is vouching for alternative leadership across all the sectors; in politics, religion, academics… “anchored in Chapter 6.”

This “so that the pastors do not do what they are doing and that the political leadership negotiating investment on behalf of the country do so in good faith and focus on the country and not themselves,” he explains.

Alternative leadership is that “which will make sure that public goods – health, education, security, energy and transport, land and resources and water … and even internet is affordable to those at the bottom of the pyramid.”

“You need a political leadership that makes you and me know that if we died, our children would have good education, health and free energy... and a government that will control the price of unga and rent and other basic commodities, and push back against the IMF and the World Bank.”

Alternative leadership makes sure resources are not stolen or wasted, he adds. “Benchmarking, retreats and all that are conduits for ripping off the public.”

He admits that tackling trips and per diem is difficult. “I had to choose my battles well… that one I did not touch.”

Mutunga despairs at the lack of issues in the country’s politics, especially the presidential campaigns, and singles out Reuben Kigame as one introducing issues into the political discourse.

How far Kigame will go is a matter of conjecture.

Mutunga admits that this is a huge task and hopes that Makueni Governor Kivutha Kibwana will try and “create something” that will then peak in 2027, because it will culminate in a “generational alternative” of those aged under 35, who he says will demand for more from their leaders.

“I am not calling for a revolution… I am calling for the full implementation of the 2010 Constitution because in it lies that alternative leadership I am seeking.”

This is especially on issues to do with land, which he says have been mishandled to the detriment of the people and the economy. “The National Land Commission has let the country down… why didn’t they implement the Ndung’u Commission report?”

The alternative leadership will be grass-roots driven.

You will be lucky not to be affected by his belief in the 2010 Constitution. His obsession with it is akin to the common phrase: “It is what the doctor recommended.”

“The Constitution has values that have to be reflected by all leadership from across all fields; it is all encompassing.”

To him, unless we appreciate that it is all-encompassing, we will continue witnessing the tension of Judiciary pulling one way and the corporate pulling another. In his wisdom, it is the political leadership that takes control of things. It therefore falls on the politicians to show the vision of implementing the 2010 Constitution.

And hence his frustration with the disobedience of court orders. Because to him; A disobedience at the top then spreads down to the common man; a perfect recipe for chaos and disorder.”

“If President Uhuru Kenyatta obeys court orders, who else is going to disobey those orders… no DCI or chief will dare.”

Yet he is hopeful and paints a sunnier view of things.

He says Kenya is better in spite of everything and it stands at a better place than at any time before.

And singles out the freedom to sketch the President and top government officials by editorial cartoonists as one of the fruits of change not enjoyed anywhere in the region.

“Magufuli (former Tanzanian President) was never sketched and freedom of the media is not subverted.”

He says he realised that if one is consistent in articulating issues, it becomes hard to be attacked by those who don’t share your views.

Mutunga finally reveals that at no time was he called, reprimanded or requested to “go slow” in his criticism of the government or of the President.

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