Ex-CJ Mutunga’s Miguna gambit

Allow me to state the bottom line upfront. I’ve long held the view that Toronto-based lawyer Miguna Miguna is a disgusting and despicable human being. More on this later. By the same token, he’s a native-born Kenyan whose citizenship is irrevocable by the state. Thus – as the courts have ruled and repeatedly affirmed – Mr Miguna has iron-clad legal and constitutional rights to enter and leave Kenya at will. Nothing, and no one, including the state, should stand in his way at any port of entry.

That’s why I wholeheartedly support ex-Chief Justice Willy Mutunga’s gambit to travel to Toronto and hand-deliver Mr Miguna to Jomo Kenyatta International Airport in Nairobi on November 16, Anno Domini 2021. My advice: get your popcorn.

I will not rehash the legal “whys” and “wherefores” for Mr Miguna’s tribulations. That matter is black and white. As pitch black as the darkest night and as bright as the most brilliant Kitui sky. That’s why I will not belabour the point. Suffice it to note no one connected to the swearing-in of ODM’s Raila Odinga as the “People’s President” on January 30, 2018 – including the principal himself – has been subjected to such hellish calumny. Mr Miguna has been singled out for “special treatment” by the state. It is time for that unjustifiable and inexplicable vendetta to end – now. Let the son of the soil return to Nyando and enjoy the hills and valleys of his youth.

Some people prefer a SOB – English “euphemism” for “nice guy” – inside the tent pissing out than outside the tent pissing in. Mr Miguna is now on the outside pissing in. I have a feeling that as a matter of realpolitik, he’d be harmless – and lose all his teeth in quick succession – were he on the inside pissing out, or in. In Kenya, Mr Miguna would become just another village heckler.

Kenya’s town wag

Instead, the state has built him up into a figure, albeit a caricature, by preventing him from coming home. The impression is that the state is deathly afraid of Mr Miguna. That’s an unforced error. You keep your friends close, and your enemies even closer. Let the man be.

It’s true that someone should wash Mr Miguna’s mouth with soap. But that should be left to his loved ones, not the state. Mr Miguna is Kenya’s town wag. Let him come home to keep us entertained. And let those who will be aggrieved sue him civilly for defamation.

Personally, I would never waste a penny suing him because the poor man can’t pay. The Constitution guarantees political speech to the very edge of defamation and sedition. Those are the only guardrails we should watch. Not whether his speech has odium, is offensive, cringeworthy, or embarrassing. What loud people say about others says more about them than their targets. 

The state’s impunity

Mr Miguna presents as a person who is troubled. If you doubt me, just visit his Twitter and Facebook pages and you will emerge with a giant migraine. He says unspeakable things. He shouts all the time. He’s angry 24/7. He’s the most “righteous” person on Planet Earth. He knows everything. He’s omniscient. He’s a messiah and God’s gift to us earthlings. In other words, he’s an egotist and narcissist par excellence. I don’t know what would help him, but I leave that to the experts. However, I have no doubt that being in Kenya would defang and largely neuter him.

Dr Mutunga’s gambit to hand-carry Mr Miguna back to Kenya appears to be driven by his fidelity to the rule of law and human rights. He figures that his moral standing and the prestige of his service to Kenya and the world will bend the state to his will and allow Mr Miguna back. He could be right, or woefully wrong. Will the airlines that have been subject of Mr Miguna’s “red alerts” carry him to JKIA? I don’t know, but I doubt it. Dr Mutunga should be prepared to come back empty-handed. But the attempt in itself will speak louder than words and bring more attention to the state’s flagrant disregard for the law and judicial orders.

I’ve seen some commentary suggesting that Dr Mutunga’s sojourn on Mr Miguna’s behalf is a political stunt meant to burnish his legacy by blotting out the infamous 2013 ruling upholding the presidential election. That’s too cynical and frankly mean-spirited. I know the former Chief Justice more than most. I can speak without equivocation that he’s driven here by his loathing for the state’s impunity. That has been his life’s work.

So, let’s honour his determination to bring our fellow citizen home. To paraphrase, if not him, who? If not now, when? Freedom survives – and endures – because we protect those we loathe the most, not because we coddle those we love.

Makau Mutua is SUNY Distinguished Professor and Margaret W. Wong Professor at Buffalo Law School. He’s chair of KHRC. @makaumutua