Defenders of the constitution or graft?

By WILLIAM JOHN ACHIA | Wednesday, Dec 11th 2019 at 13:09
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The recent arrest of flamboyant Nairobi Governor Mike Mbuvi Sonko has captivated the nation’s attention as Kenyans ponder what the outcomes of such a high-profile case will be. Going off of recent history of high profile arrests of Kenyan politicians, it would almost be safe to say that this case will be added to an ever-increasing list of cases involving highly visible politicians who are arrested, arraigned in court, released on bond, and the case shelved. That is the general trend of things, and there’s no reason to believe that this case may be any different.

In analyzing this and other cases, a common trend is for those arrested to retain legal representation from well known, well-established lawyers. This practice is expected and is the right of the accused to assemble his legal team to fight these charges of graft and misuse of public funds. Governor Sonko assembled a legal team that includes, among others, Makueni Senator Mutula Kilonzo Jr., Elgeyo Marakwet Senator Kipchumba Murkomen, and Makueni MP, Dan Maanzo. All well-known legislators, to plead his case.

The presence raises a serious question of conflict of interest. While our current laws allow a sitting legislator to take up private cases such as this one, two questions arise. First, since Governor Sonko is accused of misuse of public funds, should a legislator who has sworn to uphold the constitution of Kenya and actively makes laws related to the use of public funds during the regular course of duty, be allowed to defend a suspected perpetrator of the laws of Kenya related to the misappropriation of public funds?

A second concern this situation raises relates to time and compensation. Kenyan legislators consistently rank amongst the world’s best-paid, a fact overshadowed by their lower productivity than counterparts in more developed regions of the world. Given that such pay assumes the legislator’s time will be spent engaging in activities promoting the best interests of their constituents, shouldn’t they be asked to return a portion of their pay for engaging in extra-parliamentary activities? Who truly pays for the time these legislators spend defending such cases? Wouldn’t taking on additional side jobs defending politicians detract from the greater task of leading the nation?

As I stated previously, the law doesn’t prevent lawmakers from engaging in private practice while also legislating, but what if, imagine with me for a moment, that the President of Kenya was also a lawyer and wanted to defend a politician in the courts of law. Would this be acceptable? The chances are that the vast majority would respond with a resounding NO. In like manner, a sitting MP, Senator, governor, or other elected politician should not be allowed to use the taxpayer-paid time to engage in other activities that could potentially take weeks, months, or even years to resolve. The laws of the land change as we face new realities. This should be one that is actively debated. We cannot have split loyalties where the defenders of our constitution are the same ones tasked with defending those who [potentially] have violated our constitution.

Prof Bill Achia Charlotte, North Carolina, USA

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