How ‘Kibiri’ video won the case for Kawira

He was part of the Ferdinand Waititu defence team in the Senate’s impeachment case and, at that time, I was the Chief Whip. After making various animated legal arguments before the full Senate plenary, Charles came to my office during a break for a chit-chat.

I told him how his legal presentation was awesome and cogent but he should consider “cutting-the-chase “and making the moral point that underpins his case”. He asked why.

Some of your long-winded legal arguments on technical issues will make some of us go to sleep. They appeal to no one, truthfully, speaking. I told him. Well, lawyers have different case strategies depending on their different persuasions.

And there is nothing wrong with going technical when arguing a case before the Senate. Even if the Senate might not be moved by legal issues, raising them can be a good hedge for some future challenge of Senate proceedings before a court of law in the event one loses his client’s case in Senate.

But the point was, lawyers appear before various entities to argue cases. That includes courts, which are handled by judges and magistrates fully trained in law; tribunals that have both lawyers and laymen and women; Parliament that has lawyers and non-lawyers.

A good lawyer should have the deft to distinguish and identify the unique thinking processes of all those forums. A judge or a magistrate will definitely be moved by technical legal arguments and often downplay manifest “common sense justice”.

By technical legal arguments, I mean explicit breach of laws. For example, stating so and so breached Section 1 or 2 of this and that law. But a layman who has never attended law school might not understand the import of a legal breach. But the layman has an acute sense of justice and can spot injustice everywhere.

I’ll give an example of a case that I experienced in Nyeri High Court when I was a young lawyer under pupillage. My pupil master was a very elderly lawyer called Gacheru and a reputed criminal law expert. He rarely lost cases. He once came to our chamber and told me he thought strongly he would lose a murder case he was handling.

It was a case of mob justice and witnesses were very cogent testifying they saw the accused burn the deceased to death clearly and were unmoved on cross-examination.

However, one day a technical point arose. Under the then evidence law, death certificates could only be produced in court by the maker (the doctor who filled it). Indeed, a death certificate was present in court and everyone could see it but it had not been officially produced in court. It had been “marked for identification”.

So the doctor who had signed it off delayed in attending court and the defence lawyer pushed the prosecution to close its case after several adjournments. The court delivered a verdict that whereas there was evidence of murder, there was no proof of death on account the death certificate was not officially produced and hence the accused was set free.

Probably Kenya needs to introduce a jury system to humanise practice of law, otherwise, there is definitely some unfairness in setting murderers free on an account of a mere technicality.

The aforementioned case left such a bitter sense of injustice in my psychology that once I became an MP, I successfully pushed an amendment to the Victim Protection Act to grant lawyers for victims of crimes the right to make submissions in criminal cases. Of course, some judges have such an acute sense of justice that they will go at great lengths to interpret strict wording of law to deliver that common sense of justice.

I saw that in Chief Justice Martha Koome in 2011 or thereabouts, then a High Court judge in Milimani. A retired teacher and a widow called Zipporah Wambui Mathara from my rural village in Kahuhia, Murang’a, took a shylock loan. She duly signed the agreement. She was unable to pay after the amount skyrocketed by a factor of 20.

The shylock put her in civil jail. All cases intended to free her failed because courts rightfully argued that she had willingly and freely signed the loan agreement (the legal doctrine of sanctity of contracts) that had provided for the impugned and unfair interest rates.

When I took up the matter, I had just left employment at the State Law Office’s Treaties and Agreement Department where I had seen the interaction between Kenyan law and foreign treaties. I made an application to free Zipporah and we appeared before Justice Koome.

Knowing her civil society credentials and taking into account the new Constitution had just passed, we raised an innocuous and novel argument that civil jail was unconstitutional by dint of Article 2(6) of the new Constitution that provided all ratified treaties were now part of Kenyan law.

We illustrated Kenya had ratified in the 1970s some international treaty that had a clause stating civil jail for debts was illegal. The judge dramatically agreed with that argument, causing not only Zipporah to go free, but many others that had been jailed on account of mere debts. I understand some other judges re-clarified that position later but a novel progressive point had been established, most likely because of the civil society credentials of the presiding judge.

And hence the point – lawyers need to enter into the psyche of the presiding entity, craft a case strategy that suits that bench and not to treat all forums equally. At the end of the day, lawyers will not deliver the verdict but those on the other side.

All what the lawyer wants is a win for his or her client’s case. It’s not about them but rather the judge. What really matters in the Senate impeachment, from where I sit and I might be wrong, is the moral point (common sense justice) rather than technical legal arguments. And that moral point might be a single overarching issue that weaves every argument together.

It tilts the balance in whichever direction. I may be wrong in my assessment but I think in the Waititu case, the killer punch was the allegation of land grabbing of a widow’s property in Thika. In the case of the late Nderitu Gachagua, the question was if it was moral to impeach an ailing leader. The first impeachment of Meru Governor Kawira Mwangaza was the point on fairness of impeaching someone who has not settled into office.

In the second, haughty presentation of the accusers’ case weighed against the “Kibiri” video and what that says to our women in leadership, turned the Senate’s tide. It might have helped if the lawyers handling that impeachment worried more about the moral point of their case than legal breaches however important they are strictly speaking.

It was strategic for Kawira’s lawyers to unleash that video because the Senate has men and women who have a moral sense of fairness and humanity, like every fair thinking person in Kenya.

- Gov Dr Irungu Kangata, PhD in law; [email protected]