What you need to know:
- He says lawyers read for a living but is cagey when asked which book he would recommend for the president and his deputy
- Former DPP says Martha Karua should have known Kenyans before declaring interest in the presidency
He was sacked from the powerful office of Director of Public Prosecutions after two years for what he believes was the drama surrounding the Sh6.4 billion cocaine seized by police in December 2004. Mr Philip Murgor still strongly holds that the haul belonged to powerful people in government.
But there are those who claim he was fired because he was not a team player.
Despite the sacking, the suave, fast talking lawyer says he has no regrets. A man who was once a fervent supporter of the Nyayo regime and friend of the Mois, he was the unlikely candidate for the position of DPP in the Narc Administration which had committed to correct Kanu-era errors.
It is believed he was appointed by the Mt Kenya power clique revolving around former Cabinet ministers Kiraitu Murungi and Martha Karua to prosecute Nyayo-era crimes, having been an insider. Yet today, there seems to be no love lost between him and Mr Murungi. The husband of Appeal Court judge, justice Agnes Murgor (daughter of former chief justice Mathew Guy Mulli) and father of three explains why.
Q: Gideon Moi described you as a jua kali mercenary for hire when you were DPP.
A: In the past, members of the Moi family and I have exchanged very harsh words. He was responding in anger following instructions that his father records a statement over some investigation. As DPP, one can be called all manner of names. Whatever differences we had, we have understood it within the context of the time.
Q: You were an overzealous Moi defender and initially clashed with Second Liberation crusaders such as Kiraitu Murungi and Martha Karua who would later appoint you DPP. How did you warm your way into the heart of the Narc government?
A: Just like in politics, there are no permanent clients in Law. By the time Narc was coming to power, I had long fallen out of Moi’s bosom. I was too independent, practising quietly. But even then, I really never wanted the job nor needed it. I had been given a pitiful salary, but (former Attorney General Amos) Wako promised to negotiate and he succeeded after five months.
He got me Sh400,000 which was way below the Sh2.5 million which Kiraitu secured for his Meru homeboy Aaron Ringera yet his job was a mere vestige to mine.
Q: Why were you sacked?
A: It is because of the Sh6.4 billion cocaine which had been discovered in December 2004. It was obviously connected to very powerful people in the country. The CID director and the Commissioner of police completely defied the AG’s directives while the Solicitor general took over the case from me.
On the day I was fired, I had a lunch meeting with Assistant Minister Mirugi Kariuki and had requested him to go and brief President Kibaki about interference in the case. Later, he told me when he reached State House, the president was ill and he met a powerful State House operative who became furious.
It was then that a plot to sack me was hatched. A senior official said: Let us sack him and explain later. We will tell the President we acted in your best interest. The same generals who took pride in my battle with crime were now vilifying me and advocating for my removal on the grounds that I was not a team player. I was dissillusioned.
Q: Whose haul was it?
A: It belonged to people in Colombia and Russia. But some people in Kenya had been paid heavily to provide safe custody and passage. Despite the stuff being here for weeks, it took the Dutch police to point to the Kenyan government where the cocaine was.
But the drug traffickers in Malindi were tipped off in September and instead of fleeing to Somalia as one would have expected, they flew to Jomo Kenyatta Airport and spent the December 11 night near the CID headquarters. They boarded a plane at JKIA without any hindrance.
Q: If you met Senator Kiraitu Murungi and former presidential adviser Stanley Murage for a cup of tea, what kind of conversation will you have?
A: They sacked me, but I don’t hold grudges. I have met them and we’ve acknowledged each other. Kiraitu has in fact, more or less, apologised. I saw him last week in this column dispensing all manner of advice to President Kenyatta, yet he was the biggest stumbling block to the reform agenda in the Narc administration.
Q: Is this why you quit as a assisting counsel in the Kiraitu mid-wifed radical surgery of the Judiciary?
A: The process was fraught with problems. It was not well-thought out. In several cases, the judges were targeted for removal before evidence was available. This forced me to resign at the earliest opportunity.
Q: But there are those who say you pursued Goldenberg architect Kamlesh Pattni with similar vengeance, almost vendetta.
A: The so-called vengeance against Pattni is a creation of the media who morphed from demanding his prosecution to complaining that he was being vilified. By the time he was being acquitted, the entire media was on his side.
Q: Do you then consider the ongoing vetting of judicial officials by the board credible?
A: The idea behind the vetting board was an excellent one but I think they have been too lenient. The need for a vetting board is based on the assumption that a lot is going wrong in the judiciary. If by the end of the day, they find 99 per cent are fit to serve, then we didn’t need a vetting board at all.
Q: You recently wanted to contest for Speaker of Senate. Why did you chicken out?
A: It is true that I attended a Cord retreat, uninvited, to sell myself as candidate. It provoked a lot of excitement. My opponents argued that I was neither a member of ODM nor Wiper while my supporters said that would make me saleable across the board. Unfortunately, my supporters lost the argument.
Q: Your wife was your partner at work and at home. How did you work when you woke up from the wrong side of the blanket?
A: When Justice Murgor was in the firm- actually she founded it and I joined her later-she handled entirely different roles so the question of crossing paths did not arise.
Q: What is the most transformative book you have ever read?
Lawyers read for a living, not leisure. So when taking a vacation, most of us read as little as possible. I read authorised biographies and autobiographies. The book that made a lasting impression on me is Nelson Mandela’s Long Walk To Freedom.
The other is Barack Obama’s Dreams From My Father. Obama is unique because unlike Mandela or even Mahatma Gandhi who came from privileged backgrounds, he came from ordinary middle class and would have easily become a mere statistic if it was not for his sheer determination.
Q: So what are you reading now?
A: Arbitration, Public Order And Criminal Law. It deals with the limitations to commercial arbitration and why matters relating to public order and criminal law should not be subject of private arbitration proceedings. Many of the fraudulent transactions should have remained in the public courts open to scrutiny.
Q: And what book would you buy for Uhuru and Ruto?
I would not suggest to them any book, but the people they appoint to key positions should have read all books in their areas. It is also important they give the right jobs to the right people otherwise they will have to be continuously intervening in crises.
The two should have now realised governing Kenya is a 24-hour responsibility and that you take your eye off the ball and you will be in permanent crisis. To give credit where it is due, Moi was the president of Kenya 24-7.
Q: You are an admirer of Karua. Would you have advised her to run for president?
A: Martha has a lot of positive attributes but her presidential bid appears to have been made in complete ignorance of the fickle nature of the Kenyan public which on one day can consider you the most admirable leader only to dismiss you the following day.
Q: You advanced the idea that a practising lawyer should not be a member of the Judicial Service Commission. Do you still stand by it?
A: I argued it unsuccessfully in the High Court and the Court of Appeal. In view of the controversy this issue has created, it is up to the task to set some guidelines on who should represent it in the JSC to avoid a perception of conflict and undue advantage.
Q: Would you vote for Ahmednasir?
A: I would be interested in what he has in his manifesto.
Q: You entered a much-criticised nolle prosequi in the Chomondley case. Would you make the same decision today?
A: Even though I was only acting on behalf of the AG, I would enter a nolle again given the same circumstances. The state counsel in Nakuru defied the AG’s directions and prosecuted in a rush. To date, nothing stops the DPP from prosecuting Chomondley.
But from the evidence in the file, it was an unfortunate case of self-defence coupled with mistaken identity. These guys who were not trained went in disguised as meat traders from Eastleigh and when they were seen from a distance herding people into the slaughter house, they looked like robbers. He says the man shot him, first. Chomondley had a witness, the dead man definitely didn’t.
Q: Attorney-General Githu Muigai acted as amicus curiae at the Supreme Court hearing in which Raila Odinga was challenging the March 4 polls results. Did he operate within boundaries of amicus?
A: I have been an amicus before on behalf of the Attorney General. The role of an amicus is to remain neutral as far as the disputing protagonists are concerned. An amicus must show absolute fidelity to the law so you will submit that the law must be followed whichever side it will favour.
Professor Githu Muigai tried his best, but working on an election petition, especially in Kenya, is like walking on a political minefield. It is very easy to be mistaken for the enemy when you make certain submissions.
Q: You recently lost a case and your client was sentenced to hang. How do does a lawyer feel when such a verdict is being delivered?
A: As a former prosecutor who has urged death sentences and secured a number, I may not suffer the same agony as some defence counsel would. It is not about the sentence, but whether or not the conviction is justified.
In the case of Chepkonga, I certainly didn’t think there was enough evidence to support the conviction. I remain hopeful he will succeed on appeal.