Paul Kihara: A patrician’s speckled odyssey

The Attorney General Paul Kihara Kariuki (right), pays the Director of Public Prosecution Noordin Haji a courtesy call in his office.

It is exceedingly appropriate that this account of one of the latest entrants into President Uhuru Kenyatta’s Cabinet, Paul Kihara Kariuki, begins with a focus on the seldom-remarked fact that he is a thespian of note. Throughout his schooling days, from the Duke of Gloucester, now Nairobi School, to the University of Nairobi, and even afterwards as a young lawyer in private practice, Kihara was a respected stage actor credited with powerful performances in mainly classical productions.

To this performative background, Kihara owed a number of his distinctive traits. The first is an impressive public speaking voice complemented by the second – impeccable elocution. Thirdly, Kihara carries himself with a confidence and authority that is quiet and understated whilst also being distinguished and earnest.
However, the purpose of commencing a distinguished jurist’s profile with his theatrical exploits have to do with Jaques’ famous monologue in Shakespeare’s As You like It:

“All the world’s a stage,

And all the men and women merely players;

They have their exits and their entrances,

And one man in his time plays many parts…”

In keeping with this adage, Kihara’s seasons have found him in diverse turns. After graduating with his Bachelor of Laws, he joined the large and prestigious firm, Hamilton, Harrison and Matthews, where he rose from legal assistant to the position of partner, which he held until 1986.

Thereafter, he left to found another highly regarded indigenous law firm, Ndung’u Njoroge and Kwach, where he served as partner for 15 years.

In 2000, Kihara was appointed director of the Kenya School of Law and Secretary to the Council for Legal Education, the training school for advocates in the Republic of Kenya. He served in this position for three years after which President Mwai Kibaki appointed him a judge of the High Court of Kenya in the new judiciary following an anti-corruption purge of judicial officers found to be irredeemably tainted by turpitude in the so-called “radical surgery”.
Justice Kihara Kariuki replaced Justice Isaac Lenaola as the High Court duty judge as the latter assumed responsibilities in a judicial tribunal handling the appeals of the judges affected by the “radical surgery”. After two years as duty judge, the Chief Justice appointed Kariuki to head the Judiciary’s Integrity Review Panel. Three years afterwards, in 2009, he was picked to head the newly established Judicial Training Institute, where he worked for three years before he was elevated to the Court of Appeal, of which he soon became president.

A remarkable facet of Kihara’s career is his long tenure as the chancellor of the Anglican Church of Kenya, from 1980 until the time he took up his judicial appointment in 2001. This segment of his biography is revealing for its subtle confluence of potent attributes, and how they unmistakably exerted their stamp on the public profile of this intriguing personage.

As already demonstrated, Kihara was a capable student who graduated to become a brilliant lawyer, placing him at the right threshold to serve the church in this illustrious position. More advantageously for him was the fact that he grew up in the official residence of the Archbishop of the Church of the Province of Kenya, now the Anglican Church, Obadiah Jesse Kariuki, who was his father. From this vantage, he must have become acquainted with a vast retinue of clerics who would later remember him favourably when it did turn out that he was also an accomplished advocate eager to work for the church.

By 2012, when he joined the appellate bench, Kihara had made many entrances and taken many exits on the legal stage in the course of performing his life’s play: an advocate, a chancellor, an educationist, and a judge. It is almost certain that Kihara had no means of anticipating the next act in this drama, but as a dynamic performer, he was ready to deliver his most captivating lines extempore, as soon as the curtain rose on the first scene.

After eight years as Attorney General under two presidents whose dispositions could not have been more starkly opposed, Prof Githu Muigai was ready to bow out. His last lines were, therefore, delivered by the President, who accepted his resignation with tremendous gratitude for his service and simultaneously announced the nomination of Justice Paul Kihara Kariuki to be appointed, subject to parliamentary approval, as the new Attorney General.

Kihara assumed office after a blistering furore over President Kenyatta’s efforts to come to grips with insecurity, regional conflict, and terrorism through numerous legislative changes pursued by way of the Security (Amendment) Act that convulsed Parliament in high-octane political confrontation.

Kihara’s odyssey was going to be no less dramatic, and certainly equally taxing. He joined the government as Kenyatta consolidated his administration for his final “legacy” not only by pivoting away from previous executive priorities and configurations, but also by fashioning a mechanism to expedite the implementation of those projects and the attainment of those targets that he intended to define his tenure in office.

Kihara was appointed on February 13, 2018, three months into the inauguration of Kenyatta’s second presidential term, which he had won in an election bitterly contested by Raila Odinga, a former prime minister. Odinga’s supporters were still in the streets all over the country, vigorously expressing their dismay at his defeat and disapproval of Kenyatta’s victory. A radical splinter had emerged from the National Super Alliance (Nasa), which had sponsored Odinga, and styled itself as the National Resistance Movement (NRM).

This group proclaimed a campaign of civil disobedience in all Nasa strongholds, which comprised over half of the country’s territory in terms of the number of counties that were presided over by Nasa-affiliated governors. The campaign entailed a boycott of the products and services of firms perceived to be owned by, associated with, or sympathetic to Kenyatta or his allies. It also called for the removal of the President’s portrait in all business premises and public spaces in these counties.

As it gained traction, the movement’s campaign commenced a series it profiled as “people’s assemblies” with a view to promulgating a constituent assembly to ratify the secession of Nasa-affiliated counties from the Republic of Kenya and the inauguration of Raila Odinga as the president of the breakaway territory. Street demonstrations became regular, widespread, disruptive, and resistant to policing. In fact, they began to get more and more riotously violent, and serious injuries increased in frequency.

This campaign had reached an alarming crescendo when the NRM assembled Odinga’s supporters at Nairobi’s Uhuru Park to swear him in as the “people’s president”. The tension in the days leading to the controversial event was devastating. Throughout the country, the air throbbed with ominous possibilities. Kenyatta’s partisans had regrouped in a defensive posture, stridently calling upon the President to use his constitutional authority to suppress what they perceived to be Odinga’s treasonous subversion.

After the Uhuru Park event, the hostility between the bitter rival factions intensified and there were fears that the country could implode, consumed by intractable political competition and seemingly irreconcilable differences among the elites.

This was far from the operating environment Kenyatta desired to expedite the execution of his signature programmes and secure his legacy. Time being of the essence, the opposition’s political onslaught, civil disobedience, mass action, and active effort to undermine Kenyatta’s legitimacy as president as well as that of his administration were extremely inconvenient. Something had to give, and the President was not going to wait on proposals and strategies that took time to configure and which, in any event, might take time to bear fruit.

It had become abundantly evident that the problem Kenyatta and his administration faced was principally political and thus impervious to all administrative, legal, and constitutional interventions. Odinga’s wily strategy was to confine his confrontation in the political domain and make it difficult for Kenyatta to effectively apply the instruments of state in his authority without causing immense discomfort. The Executive’s bandwidth was exhausted, and nothing Kihara could recommend at that point would present a silver bullet.

On March, 9, 2018, just over one month after Kihara’s appointment, Kenyatta and Odinga surprised the nation and, indeed, the world when they appeared on the steps of Harambee House, domicile of the Office of the President, and, in a display of unusual amity, hugged and shook hands before each proceeded to read a prepared statement about the need for unity, reconciliation, peace, and cohesion.

If Kihara’s inaugural nightmare was now over, the next harrowing challenges were crawling determinedly into his line of vision. The Kenyatta-Odinga Handshake led to a framework christened the Building Bridges Initiative, which was formalised into a task force mandated to proceed on a countrywide listening tour to ascertain the most pressing concerns of citizens and propose administrative, legislative, as well as constitutional changes to address them.

The task force presented its report in due course and a secretariat was subsequently assigned the work of drafting the necessary instruments to implement the report’s recommendations. A number of parliamentary bills were mooted, but of utmost priority to Kenyatta and Odinga, and deep concern to suspicious opponents, was the escalation of suggested constitutional changes into an implacable platform towards the conduct of a referendum for radical constitutional change.

Kenyatta fortified his position by reconfiguring his government through the first Executive Order of 2018, which more or less formalised the isolation of the Deputy President, considered by many analysts as the foremost casualty, if not the principal political target, of both the Handshake and the ensuing BBI.

Residual suspicion of Odinga resurfaced, and coupled with scepticism about the Handshake’s real intent, rebellion against the BBI quickly mounted to political mobilisation to oppose the expected referendum question on constitutional changes. The tranquillity Kenyatta had hoped to purchase through the Handshake had collapsed under a tidal backlash of suspicion and resistance. Parliament became the ground for testy confrontations and irascible contests. Disenchanted citizens and civil society organisations besieged the government in courts, challenging innumerable legislative actions and proposals.

Kihara, the patrician prodigy and dauntless thespian, was confronted with a cataclysmic plot twist that threatened devastating consequences for both his performance and career. He became the focus of raucous criticism and intemperate political attacks as his office was profiled as complicit in the BBI framework, which by now was a veritably polarising affair.

Kihara’s astute response to all the tumult was to insulate his office by relocating considerable portions of his performance backstage, with only glimpses of his repertory to be spotted in various court appearances by himself, or through his numberless acolytes.

The government suffered setback after setback as the courts halted, nullified, or struck down various legislative and administrative measures of the government for divers substantive and procedural infractions. Kihara remained genteel, unflappable, and profoundly inscrutable as he stoically weathered the inclement storms buffeting him on the loneliest, most scrutinised, and arguably most consequential assignment of his storied career.

Share this post

Comment on post

Your email address will not be published. Required fields are marked *