Tuesday, 16 August 2011
BY MIGUNA NUGUNA
Mohamed Isahakia has been sued because he issued the so-called suspension letter and
leaked it to the press (electronic, radio and TV) more than 20 hours before it was delivered to me. The Attorney General has been sued because he is the competent government authority that is legally liable for or on behalf of the Government of Kenya. If the head of public service, the PM or the President do anything unlawful or illegal, the person to sue is the AG.
1. My counterpart, Prof. Kivutha Kibwana and Raphael Tuju were hired on contract as advisors at job group “V”, which is the same job group as the head of public service, Francis Muthaura.
2. My contract was to last until the end of the coalition government. In other words, I am employed on a fixed-term contract until the coalition government is dissolved. If the coalition government is dissolved in August or December 2012, my contract lapses automatically.
3. However, if – for whatever reasons – my contract is terminated (I cannot be dismissed because this is a contractual relationship; termination of a contract must be for material breach, etc), the employer is obligated to pay ALL my dues up to the end of the contract.
4. So far, the employer has breached the employment contract in two material ways: first, the employer has refused to pay me the same as Kibwana; and two, the employer has purported to suspend me without pay.
5. There is no suspension for the alleged infractions in law in Kenya. I could only be suspended if I was convicted or being tried for SERIOUS criminal offenses. Neither has happened.
6. There is no indefinite suspension in Kenyan law. The letter I was issued with does not provide the duration of the suspension. It is blanket.
7. Due process was not followed. I was not given a “show cause” letter with detailed particulars and asked to respond within a specific amount of time.
8. I was not requested to return from vacation and a proper “show cause” letter issued to me in a humane and dignified manner.
9. The withdrawal of my salary, allowances and benefits was both illegal and actuated by malice.
10. The withdrawal of my security and government issued vehicle was both illegal and actuated by malice.
11. The summary termination of employment of all my staff was both illegal and actuated by malice.
12. The leakage of the “suspension letter” to the media before it was served on me was unlawful and actuated by malice.
13. The discussion of my so-called suspension with third parties unrelated to my employment such as James Orengo, Jakoyo Midiwo, Oburu Odinga, Francis Muthaura, Francis Kimemia, Alfred Mutua, Caroli Omondi, Hassan Isaack and Mohammed Isahakia was both unlawful and actuated by malice.
14. The failure by the PM to contact me for more than one week (up to now) proves malicious intent.
15. The IIEC has disclosed to the PM that I was not involved in the alleged “interference” with the commission.
16. I was not an employee of the ODM party. I was not answerable to ODM or to Jakoyo Midiwo, etc.
17. In any event, I was instructed to write my article on the IIEC chairman and the position he had taken with respect to the party’s decision to kick out rebellious MPs and Councillors.
18. It was the PM who instructed me to write a column on topical social, political, governance, legal and constitutional issues. Indeed, the PM has on a number of occasions not only given me specific assignments; he has consistently approved of and praised (many times in the presence of others) my articles and defended me when PNU have demanded that I be either stopped from writing or be fired for the same.
19. Lastly, the manner of “suspension” does not accord with the principles in the constitution, the law and good governance.
20. Under the circumstances, I am fully entitled to fight for my rights and to insist that those in positions of power abide by, uphold and respect both the constitution and the rule of law.
21. My “suspension” has absolutely nothing to do with the “reasons” that were given in Isahakia’s letter, nor those attributed to Jakoyo Midiwo. Truth, honesty and integrity must prevail.
I have reluctantly taken this action after waiting in vain for the Prime Minister to contact me and apologize for this transgression so that the artificially created dispute could be amicably resolved. Unfortunately, he has failed or refused to do so after one whole week. This is neither honourable nor humane. A man who cannot apologize and correct his mistakes has no business pretending to be the symbol of positive change for this country. I would like to underline the fact that I am NOT doing this lightly.
I have sacrificed my professional career, my life – even my family – for Raila Odinga. For him to throw me under the train in such callous, inhumane and clearly barbaric manner astounds me. I have loved Raila Odinga. I have fully trusted Raila Odinga. I have committed all my life and energy to defending and promoting the interests of Raila Odinga and that of the citizens of Kenya and the country at large. I have done so voluntarily because of my commitment to democracy, good governance, justice, equality, equity, the ruler of law and constitutionalism.
Unlike many people in and around the office of the Prime Minister, I have never been involved in corruption. I have never acted in pursuit of personal self interests. On the contrary, I have consistently and courageously opposed corruption at the OPM in particular and in Kenya, generally. I have also opposed â€“ and will continue to fight â€“ mediocrity, tribalism, nepotism and cronyism. My record speaks for itself on these matters.
I did all these things for higher ideals. I believed (I now realize, wrongly), that Raila Odinga was the “agent of change” for our country; the “bridge between the old and the new Kenya”.
I have worked as a slave for Raila Odinga. Raila Odinga knows that I have done nothing wrong. He has been made aware by the IIEC that I was NOT involved at all in any conspiracy to undermine the commission. I have been advised that the IIEC has informed the PM that an internal IIEC investigation has revealed that the author of the articles published in the Star newspaper under the byline “Gikonyo Boaz” â€“ and whose contents nobody has refuted – is one “Dr. Baraza” who is well known to the commission. The PM has been advised that I have no connections, links, nor do I know who Dr. Baraza is. Despite all these, the PM and others around him claimed that they were “sacrificing” me “to save Major Oswago”. I am not sure why I should be sacrificed to save anybody. As I understand it, Mjr Oswago is also innocent of the frivolous charges. Even if he was facing allegations of wrongdoing, the best thing that ought to have been done was to accord him due process. No one is or can be condemned unheard. If this were the case, the PM would have been hanged for allegations that he attempted to overthrow the Kenya Government in August 1982.
Over the years, the PM has made it a career of reminding Kenyans of the inviolability of freedom of speech, freedom of the press, freedom of expression, freedom of conscience, freedom to hold different opinions, a fair and functioning judicial system and a functioning democratic system. Indeed, he suffered greatly for championing these ideals. These are the reasons why I have supported him over the years.
Early this morning (August 12, 2011), I received information that on July 6th, 2011 when my staff went to the Prime Minister’s Building to collect my leave allowance, a junior employee at the Human Resource department at the OPM was boasting that I would not be returning to work because I had been fired. That was about two weeks before my article on the IIEC was published. My staff did not have the courage to tell me of the rumours in case they turned out to be just rumours.
I am also aware that I was not allocated office space at the PM’s Building last year due to mortal fear by the “power men” from Nyanza that I was becoming too powerful and influential. These “power men” believed that my “power” and influence” were emanating from the proximity I had to the PM. They thought that discarding me at the NHIF Building in Upper Hill, would dilute the perceived power. However, when they noticed that I continued to discharge my functions with complete commitment, diligence and distinction, the power men panicked and resorted to bestiality. But because they are both cowardly and dishonest, they could not face me with their fabrications. They waited until I was on leave to execute their nefarious plans.
So, quite clearly, the PM and those around him simply wanted to “sacrifice” me for parochial, mischievous and malicious political reasons. The PM has acted both dishonourably and disgracefully. But in doing so, they acted inhumanely, did not follow due process, and grossly breached my legal and constitutional rights. Nobody can justify these acts. I am not a dog that can be brutalized without consequences.
As the foregoing shows, my article on the IIEC was not the “reason” for the illegal suspension. Not only was the article written on instructions from my “bosses”, it appeared well after the “decision” had been made. Moreover, the head of the civil service Francis Muthaura, finance minister Uhuru Kenyatta and postmaster general Hussein Ali are facing serious charges of mass murder, mass rape, mass displacement of civilians, torture and a plethora of other gross human rights abuses, yet they have not been suspended, interdicted or fired. When there were credible claims that Caroli Omondi and Mohammed Isahakia were involved in the maize scandal, the PM called a press conference and announced that he “had accepted their request to step aside for two months for investigations to take place regarding the allegations”.
Later, the President announced the duo’[s suspensions with pay for two months. During the two months, the two continued to report to work at the OPM; their staff continued working; their security, benefits and allowances continued throughout the suspension period. The same has happened in the case of William Ruto, Henry Kosgey, Moses Wetengula, Thuita Mwangi, etc. Why should I be discriminated against by someone I have worked so hard for? I shall protect and uphold the rule of law and the Constitution. Those who fear democracy, the rule of law and refuse to uphold the Constitution have no business pretending to represent the ideals of the new dawn.
When it comes to issues of justice, truth, respect for human rights, the rule of law and constitutionalism, I have no other option but to be uncompromising. I know that the people of Kenya and God are on my side on this. The inhumane and bestial way I have been shunted has touched many people. Everybody knows the positive contributions I have made and will continue to make for the wellbeing of this country. To the people of Kenya, I want to say: I shall never bend and serve at the whims of parochial selfish interests.
Mr. Miguna used to be the PM adviser on coalition affairs. He is a Barrister & Solicitor.