Our lunch is at the Black Gold Café at The Panari Hotel in Nairobi. We nearly changed the venue at the 11th hour. There was so much traffic on Mombasa Road due to the ongoing construction of the Nairobi Expressway. It didn’t help matters that Tanzania’s President Samia Suluhu was also in town.
He walked into the restaurant on the ground floor of the building 10 minutes after me and gracefully apologised for keeping me waiting.
Pleasantries exchanged and it was not hard to start off. He and I had exchanged correspondence before.
How are things… the politics? I asked him soon after the waitress had taken our order. “They are jumbled up,” he responded. He picked T-bone steak, “well done with a single potato if big enough or two, if small”. I went for the same, but chose French fries as an accompaniment.
“What are you… a law scholar, a politician, a human rights activist, a pro-reforms campaigner, a theologian (he has Masters in Theology)?”
After a long pause, he shoots back: “Any human being is many parts together.”
A philosophical response by all means from a 67-year-old who looks sprightly.
“Serially, man becomes many things along the way,” he adds.
He has taught law and counts top legal minds like Chief Justice nominee Martha Koome among his students.
Actually, he says anyone who attended Law School at the University of Nairobi between 1977-2002 went through his hands. In short, he counts most of the lawyers in their prime straddling boardrooms to the corridors of justice, including those who made the earth-shaking ruling on the Constitution of Kenya 2020 Bill as former students.
This interview was done before the ruling, so I took the liberty to ask him what was the likely outcome considering that he had made a petition and then he seemed to backtrack on his earlier stance.
“It would be hard not to uphold the petition,” he says, explaining that what many thought was his change of heart on the matter was because he had chosen “to let the majority — through the Members of County Assemblies — have their way after public participation” even though he held his right to dissent.
Lunch is served and as we dig in, he tells me he has an appointment in Westlands at 4pm. He is visiting a relative recuperating from a bout of coronavirus.
So what is the view like of Kenya in 2021 for a man who braved teargas and police batons agitating for the reforms before the 1997 elections and the subsequent thumping of Kanu in the watershed 2002 General Election?
“The promulgation of the 2010 Constitution happened because the ruling class had been pushed to the wall… something had to give in especially after the 2007 debacle,” he says, choosing a more general route.
But then he fears that there have been serious reversals in the last few years: “Displacement of people from their land, runaway corruption, police brutality, intolerance of divergent views have returned in ways reminiscent of the past dark days,” he says with a deep sense of foreboding.
Meanwhile, according to him, “the people are still processing these reversals.”
“Many had imagined that the country would flower after 2010… alas, that has not happened.”
A man who describes himself as ”never fitting in the natural order of things” says he had been asked to vie for the Makueni Constituency seat following the death of Prof Paul Sumbi in 1998. Before that, he took part in the agitation that gave birth to the Inter-Parties Parliamentary Group that attempted to level the political playing field.
Together with Mutava Musyimi, the former Gachoka legislator, they were the faces of the National Convention Executive Council — a pro-reform outfit that gave the Kanu regime sleepless nights.
A report by the Norwegian Institute of Human Rights put it then: “The so-called Inter-Parties Parliamentary Group (IPPG) reforms in late 1997 broke the stalemate between the intransigent government and the articulate opposition, including a vibrant civil society.”
He refused to vie for the seat because he reckoned there was some unfinished business in the reform agenda.
“The citizens wanted change and we couldn’t risk being co-opted… that’s why the National Convention Executive Council (NCEC) could not be transformed into a political party despite the pressure from the people,” says Kivutha.
He concedes that the IPPG came about after the opposition got unsettled by the limelight NCEC was receiving. In fact, he reveals that the piecemeal changes that came with the IPPG did not sit well with the youth in NCEC, who wanted root-and-branch reforms and had to be “talked over” to accept that “it was better a half bread than no bread at all”.
At Law School in the 1970s, he read law, literature, and liberation theology igniting his discomfort with the status quo. Walter Rodney and Julius Nyerere were some of those who influenced his reading and so were contemporaries like Ngugi wa Thiong’o and former Chief Justice Willy Mutunga in Dar es Salaam.
But a law scholar in “mind and spirit,” he says the practice of law “is the practice of faith… it keeps your conscience alert.”
So what has made him draw the conclusion of the parallels between 1997 and 2021, or if you like, the period after the handshake?
“We have a de facto one-party movement fuelled by succession,” he says.
“You see, it seems Raila Odinga has been promised (the presidency) and so are those on the One Kenya Alliance but before them, William Ruto (the Deputy President) had been promised as well.”
He likens the Building Bridges Initiative (BBI) fronted by President Kenyatta and Raila to IPPG which, he says, achieved the unintended result. It gave former President Daniel arap Moi legitimacy and an advantage at the 1997 General Election.
“Raila, like the Opposition in 1997, thinks that BBI will put wind in his sails, but make no mistake, BBI is Uhuru’s trump card as he reorders his succession.”
“I didn’t want to be in politics,” he explains his plunge into the treacherous world of civil activism and even the deeper murky world of politics, “but with time I realised that to effect what we were doing at the NCEC (the pro-reforms vehicle that gave the Kanu regime a run for its money in the late 1990s) we needed to be inside rather than outside driving the change we wanted.”
“Even as a scholar, I had been in the human rights and freedom crusade and I thought that the things I was teaching ought to be practiced.”
“Like religion, to simply say I am saved is not enough… your faith is dead,” he says rephrasing the Book of James… the Social Sciences including law have to be practiced to be real.”
How was it like being on the pro-reform bandwagon of the 1990s?
Other than a terrifying incident in 1990 where he was abducted outside his house, he says he enjoyed his freedom and braved the entreaties from the former President Moi’s point men in Ukambani to “go easy on the agitation for political reforms”.
“I was told Moi often asked what does this young idealist want?”
He confesses that he was asked (many times) to visit the president at State House, which he declined.
“We once spoke with Mulu Mutisya (a former Ukambani political supremo) until 3am. He wanted me to go slow.”
After which Mr Mutisya “dug into his pocket” and handed him Sh100,000 as transport home.
“I flatly declined. After all, I had used someone’s car and he had not asked me to top up fuel for him… I wasn’t going to lie.” He believed that the older man ought to have asked him first whether he needed fare back home, but quickly adds Mutisya was respectful in all this. This streak of stubbornness, he says, is traced to his mother.
His mother was involved in the Mau Mau struggle for independence that resisted British rule. “Those who knew me used to say that I took the Mau Mau oath through my mother’s breast milk.”
His insistence on not going alone to State House (wary of Moi’s famed power to break even the strongest will) saw him step into State House for the first time in 2003 when Mwai Kibaki became president.
Indeed, it is hyperbole to imagine that the diminutive frame of a man seated across me would occupy newspaper headlines in the 1990s.
He despairs at the state of affairs and looks forward to a time when “we will have a new way of doing things… politics based on ideas.”
“I believe what is needed in Kenya is simple… the rule of law, get devolution working and get the youth jobs and fight corruption and generally fight State capture.”
“State capture is killing Kenya and Africa.”
He says for the economy to thrive, we have to promote doing clean business.
That needs a strong leader.
“A successful politician needs to think for himself and trust sound advice from advisers,” he says with regret that there are many leaders who have let others think for them.
“Besides, we need more talk from the pragmatics… the civil society, academicians, the private sectors, the professionals. They need to speak and talk.”
He became governor not by design, but by accident.
He was top of the list of those shortlisted to be chairman of the defunct Commission for the Implementation of the Constitution in 2011. But Charles Nyachae was picked instead. That was a big disappointment of sorts but chose to see the sunnier side of things rather than sulk and bury himself in disappointment.
“I thought to myself, why don’t I find my way into government and change things from within?”
How has it been so far?
Operationalising a mini-government needs a “strongness” of mind, he says, recalling his stand-off with the MCAs that nearly led to the dissolution of the county government in 2016.
“Our budget is Sh5 billion… the MCAs (about 50 of them) and the nearly 40 staff wanted Sh1 billion from this. So I said wait a minute, what will the rest of the 900,000 people from the county take if this is the logic and especially because out of arrogance or ignorance, to them, the money was from Nairobi.”
So the MCAs arm-twisted him by refusing to pass the budget thereby stalling the implementation of projects.
Frustrated and angry, the people opted for the Samsonian option; they decided to bring down the whole house.
Nearly 60,000 of them signed a petition for the dissolution of the county government. He survived after the tribunal dismissed the petition.
He attributes his upbringing to moulding his worldview.
“I studied with a relative because there was no school where I was born.”
Determined to go to school, he negotiated with his parents to allow him to live with his auntie, who lived near a school.
A writer, one of his many works of writing ‘Utisia’ talks about the triumph of a young girl’s will over her family and tradition.
He has written poetry in English and Kikamba and does it quite often.
What is the way forward?
He says he is free to work with anyone.
“I have been approached by all parties, but it is too early to make commitments. However, I am a serious contender.”