When some tin-god in Kibaki government wanted me in jail

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By KAMAU NGOTHO
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In January 2005, Mr Mutuma Mathiu invited me to work for The Standard where he was Managing Editor.

On the first day I reported to work, Mr Mathiu – who is now the Executive Editor (Print) at Nation Media Group – asked me in his usual abrasive style (I am told old age and quitting smoking have since mellowed him): “What smashing story do you have for us?”

Of course I had a story. At my age, you don’t just go to a newsroom empty-handed. After a resounding victory over Kanu in December 2002, President Mwai Kibaki’s government was entering a third year in power but a disturbing trend had come to full blossom where deal-makers and influence peddlers of the Moi era had taken charge.

A bit of digression is warranted here. Since independence, Kenya has been in the grip of shadowy business cartels. The mafia-style crooks are usually nameless and faceless but are, in fact, the “invisible” government in control.

They are not particularly loyal to any regime. Hydra-headed, they re-package themselves to fit any administration or political formation they think can best serve their interests. Their common denominator is a hot deal and some quick, fat bucks. For that, they can go to bed with the devil himself. And they can be ruthless.

Having done background research, I asked my managing editor to give me two days to piece the story together.

I gave a detailed account of how Moi era wheeler-dealers had crawled their way from the woodwork and penetrated the Kibaki administration working in cahoots with certain cabinet ministers.

The Anglo-Leasing scandal had already leaked out, but many more underhand deals had also been taking place behind the scenes.

Meanwhile, senior people in government were busy feeding the public with the lies that Kenya was getting the best of the deals by partnering with the East and not the West as had been the tradition — not necessarily a bad thing in itself, except for the thievery and gluttony that accompanied the transition.

Mr Mathiu is good at treating a big story when he sees one. He gave my story four-page coverage with the screaming headline: Mr Moneybags.

It was a Saturday and I had not seen the newspaper until a friend working with the State intelligence woke me up with a telephone call. “Man, you have caused a major firestorm, just keep your ear to the ground, there could be some trouble coming.”

Sure enough, that evening one of the cabinet ministers, a self-styled “General”, was on television breathing fire and brimstone. He said there were journalists “playing around with the government”.

Tutawatafuta na tuwasagasaga (we will hunt them down and crush them),” he said.

The following day, the other “General”, also a cabinet minister, was also on television saying his piece as well. “Freedom of the media isn’t absolute. Those journalists crossing the line will be dealt with severely. We will make life very difficult for them!”

Women have a sixth sense. When my girlfriend heard the threats, she immediately called and asked me not to go to the office the following day.

Actually, she wanted me to take cover the same night but remembering that my grandfather was a Mau Mau fighter, I decided to stay in my house and see what would happen.

However, to heed her advice, I didn’t report to work the following day – which was just as well.

Officers from the Criminal Investigations Department had been dispatched to our offices early in the morning with instructions to whisk me away as soon as I showed up.

After staying up to late afternoon and with no sign of me showing up, the officers grabbed Associate Editor Kwamchetsi Makokha.

They took him to police headquarters where they demanded that he record a statement regarding the story.

They told him a cabinet minister was deeply angered by the story and wanted an explanation.

Mr Makokha told them he had nothing to record since he was not the writer of the story.

He told them that if the cabinet minister felt offended, he could as well sue for libel, which is the legal way to go about it, instead of arresting journalists.

After leaving him alone in an empty room to stare at the ceiling, the CID officers let him free.

The following day they were back to our offices but I was nowhere to be found. Frustrated, they went to court and secured a warrant of arrest.

By then, Mr Mathiu and Chief Executive Tom Mshindi had been working overdrive to marshal all the forces of goodwill to stand up to the two self-styled “Generals”.

When the warrant of arrest was issued, my bosses worked behind the scenes to have me sneaked before the Nairobi Chief Magistrate Aggrey Muchelule (now a High Court judge) and be bonded to avoid arrest.

They also assigned top-notch lawyers Prof Githu Muigai (now Attorney-General) and Mr David Majanja (now a High Court Judge) to defend me.

The court granted me bond and the CID officers who had flooded the court ready to pounce on me went back with tails between their legs.

The case against me by the CID was based on some archaic legislation known as “criminal libel” that was commonly applied in colonial Kenya. 

When the case came up for hearing, Prof Muigai was at his oratorical best, leaving the packed court hyptonised.

His first request was that the case be referred to the High Court for a constitutional determination since it touched on a very fundamental question of the freedom of the press.

He also wanted the High Court to rule whether police had the power to prosecute a case without consent from the office of the Attorney-General – according to the constitution at the time.

Third, he wanted the High Court to determine whether criminal libel was the right law to prosecute cases where individuals felt their reputations had been tarnished in the media.

The court agreed with Prof Muigai and we were allowed to proceed to the High Court for a constitutional determination.

But, alas, the following day, as Prof Muigai was getting ready for the battle at the High Court, we were hurriedly summoned to Chief Magistrate Muchelule’s private chambers and told the Attorney-General Amos Wako, through the deputy Director of Prosecutions Philip Murgor, had withdrawn my case.

In entering nolle prosequi (no prosecution) in the case, Mr Mugor said that any person, whatever his position in the society, “who considers he/she has been libelled should, if they so wish, pursue civil remedies in court rather than expect the machinery of the State to investigate and institute criminal proceedings on their behalf!”

It is noteworthy that in February this year, Justice John Mativo declared criminal libel unconstitutional after it was challenged by two people separately charged under the law.

Postscript: The cabinet tin-god who wanted me jailed was soon after dropped from his powerful docket to a less glamorous ministry.

He was later sacked from the cabinet altogether. Some leading Kenyan development partners also declared him an unwanted guest in their countries.

In the 2007 elections, voters in his constituency rejected him as their MP, confining him to political oblivion where he has since remained.

Two years ago, I found myself standing next to him at a bookshop in Nairobi’s Yaya Centre.

Nobody seemed to recognise him, let alone care who he ever was.

These days he spends most of his time at his rural home with his cattle for company.

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