Okiya Omtatah: Litigious activist whose actions win both friends and foes

Human rights activist Okiya Omtatah at his home in Kwangomor, Teso South [Ignatius Odanga, Standard]

He is not a  lawyer by profession, but Okiya Omtatah Okoiti who many see as the country’s public defender number one has filed some of the biggest public interest cases that have shaped the economy and political landscape.

One would expect that Omtatah would exude at least a degree of affluence. But no. The man who has been a thorn in the flesh of the Government for years lives a modest life.

A case in point is his office, which is really more of a cubicle, at the basement of the NSSF Building that can only fit a few people at a time comfortably.

But it is from this space of about ten by 12 feet that Omtatah prepares cases that have seen big men spend sleepless nights and left many Government institutions out of conniving options but to follow the law.

It is from this office that earlier this year he prepared a suit, questioning the legality of the appointment of John Njiraini as the Commissioner General Kenya Revenue Authority as well as that of the Chairman Francis Muthaura.

In his words, he describes his operation base “my small office, whose rent I can pay for from my own pocket”.

And while Njiraini’s case was not ruled in his favour and the Commissioner got an extension of his term at the helm of the tax collection agency, Omtatah has registered major wins against many influential men and Government entities, despite their teams of experienced lawyers working with much more resources, including researchers and huge office spaces in prime buildings.

His quest for a just society has seen him get into trouble with law enforcers, persevering beatings and lockups. At one point in 2012, he lost four incisors after an attack that was blamed on goons.

During the attack, he was also left with a cut on his forehead, whose scar is still visible to date but the one-man law firm will not stop.

Powerful individuals

A number of his critics accuse him of being a hired gun and taking money to represent the interest of some powerful individuals, corporates and organisations, an accusation he laughs off when a question is put to him.

The one-man legal army, however, reckons that he carries on because of his convictions, which he breaks down to the rule of law being supreme.

A staunch Catholic who always says his Hail Mary before meals, Omtatah explains why he does all that in both religious and philosophical ways.

“It is a simple understanding of life that I have and it begins in the Garden of Eden. When God created the world, as told through the creation stories, he gave Adam power over all creatures that He created. But He never gave Adam power over other human beings, even Eve. He put a law to govern Adam,” he explained during an interview with the Financial Standard.

“One of my biggest convictions is that we must have the rule law, especially for a constitutional democracy like Kenya, there must have total fidelity to the Constitution.

That is what basically drives me as a foundation – that the rule of law is the will of God. If this country must go forward, as I want it to go forward, let us follow the law.”

“On a secular level, I believe that the rule of law is not negotiable so I try to do whatever I can to ensure that the law is observed.”

Kenya’s problems

According to Omtatah, Kenya’s problems lie in failure by its leadership, and generally Kenyans, to observe the laws that they have put in place.

“If you look at societies all over the world, where the rule of law has taken root, you will find that those societies thrive and do well. Where you have rule by executive devoid the rule of law, those societies do not thrive,” he said.

“If parliament did its works of oversight if the executive did its job, the judiciary played to its script as well as you and I did our role, we would have a very productive and progressive society. If you look at how the law is structured, there are so many checks and balances that if you obey it, nothing can go wrong.”

Other than the big shots that Omtatah has angered, Law Society of Kenya (LSK) has also challenged Omtatah’s ‘legal’ practice, noting that he is taking their lunch and without qualifications.

Allen Gachuhi LSK President in July made remarks to the effect that effect that Omtatah should be stopped as he was being given too much leniency by the courts.

Some lawyers, however, came to his defence, noting that LSK should acknowledge him as an honorary member of the society for doing work that LSK and Other institutions had failed to do.

Omtatah, however, brushes (even laughs) off the lawyers, noting that much as they are in court every day, the courts do not belong to them but rather the people who feel they have been wronged and those that they accuse of wronging them.

If anything, according to Omtatah, the lawyers are like mercenaries that are hired to fight and do not necessarily have to believe in the cause that they are fighting for.

“I do not think they (lawyers) were serious. The court belongs to the accused and the accusers. Lawyers are hired to aid either side. The court belongs to the litigants,” he said.

“Many lawyers go to court not out of any conviction but because they are paid. They may not believe in what you are saying but will fight for you because you have paid them.”

He has in the past been duped by some lawyers who he engaged but ended up being swayed by the other side and resulting in the collapsing of his cases on two instances.

In spite of the experiences he has had with lawyers, including LSK’s demand that he stops encroaching on their tuff, Omtatah notes there are some good apples and he does occasionally work with them and that they offer their services free of charge.  

“I work very well with some. Even right now, I am working with some lawyers on a few cases and they are progressing well. I work with them on a pro-bono basis… I do not have money to pay,” he said.

Not being a trained lawyer, he notes, has not been a challenge for him.

“Training has its own values but I try to overcome (lack of training in law) by working extra hard and so far so good,” he said.

The man is a trained mechanical engineer. During his training days at the then Kenya Polytechnic, he had aspirations of working on the Kenyan made, Nyayo Car, perhaps fine-tuning the design of the car to a point that the country would have an affordable and functional car that was made in Kenya.

This was however not as the Government abandoned the project.

He felt that he could not fully employ the skills that he learned as the vehicle assembly was then still young and so he opted to look for other fields that were more engaging.

 “When training as a mechanical engineer, we were targeting the Nyayo Car but when it went up in smoke, we were left with all this knowledge that we could not use. You could only go and become a mechanic… you could not do the designs and other things that we were trained on, so I felt it was not worth it,” he said.

He has also been to a seminary, where he studies philosophy and was well on his way to being a priest but health issues derailed his dreams.

After the Nyayo Car project fell through, he started putting to use his other talents to become an accomplished author and playwright.

March to Kampala

Among the plays and books that he has penned include March to Kampala, Lwanda Magere, Voice of the People, Chains of Junkdom and An Exchange for Honour.

He has however not been as active with the last play that he did being the Voice of the People in 2008 but said he plans to write a major play in 2019.

He is also in plans to complete and publish a fictional narrative on the Chinese invasion of Kenya.

“I am trying to look at the issue of the Chinese. I am writing a novel on how China is taking over this country and how the Chinese influence is taking away our sovereignty. It will be a fictional account that can nudge the population into raising more questions about the Chinese,” he said.

“Most of the debts that we are getting (from China) are odious debts – debts that have been incurred outside the law and do not benefit Kenyans.”

“I do not write purely for politics. I do entertain but within that, I package the messages. The first consideration is entertainment – will a person  enjoy the play?”

There have been questions about how he finances his activism. Litigation is usually costly and in Omtatah’s case, he goes after both the establishment and the people behind it, both with means to hire top-notch lawyers to represent them.

This would mean that the activist to has to have a team behind to beat them. He said he does not take money from well-wishers or other organised donations as he lacks structures on how he would use such money.

“I don’t spend a lot of money in court to file a suit. I also have friends who do research for me as well as lawyers that chip in and help pro-bono. I also do not take all the issues that come to me,” he said.

He added that he sustains himself from businesses as well as royalties from his literary works.

“I do other businesses like transport, buy and sell cereals here and there. Just like the other businesses do not require all my attention. I do many small odd things that add up to something,” he said.

“I also have some income from the books.”

Omtatah, however, said he plans to open what he calls the Office of the Public Defender, a Non-Governmental Organisation of sorts that will do more of what he does – telling truth to power and defending the rights of Kenyans.

A funds drive organised by Kenyans online in September, who were contributing Sh10 per person raised over Sh500 000, he said, which he plans to use as seed capital in setting up the organisation.

“I already have some 10 young layers, who do not have the capacity to set up their own practices but are equally good. People have been willing to give me money but have resisted. It does not feel right to take money without structures… when taking money from the public, one should be to account,” he said

“Our main focus will be to do proper oversight like demand the right to information… generally, enforce the bill of rights.

This is the work that some of the independent commissions should be doing but they have been captured. If they did their work, then I would not need to do what I do but they have been captured and pocketed.”

At the end of it all, Omtatah said his contributed will have been opening up or demystifying the legal system in Kenya for the common folk. It has traditionally been made to appear a mystical and out of reach for the common person.

“My biggest satisfaction is that I have been able to prove that the law is strong and can be used by any Kenyan to fight for their rights and those of others,” he said.

And the people whose rights he has fought for may not have an understanding of the man, forming their perceptions about Omtatah from what they see on TV, which mostly his fights on the court corridors or the occasional battle with the police.

“There are people who think I am arrogant and violent but when they get to know me in person, they get a different perspective,” he said.

“I relate fairly well with the public despite the stares and sometimes questions. I travel using public service vehicles. I find it important to stay in touch with the public. Some of the things that I have taken to court are issues that a person will come to me and say you such and such is happening and ask ‘can you look into it’. When I do, some of them have turned to be issues where there is a violation of the rights of people.”

Sliding back

While he says there has been a degree of growth in Kenya’s judiciary including its independence from the Government, Omtatah noted there are risks of sliding back into an era when there was a thin line between the two arms of Government.

He also feels that the economy is much worse today than it was seven years ago.

“Judicial independence is a journey and not a destination. So far there is an attempt at having a free judiciary. The constitutional court is largely good, the labour court is lacking in some areas, I have heard bad stories about the commercial court. The top courts, including the Supreme Court, are beginning to be a bit suspicious. If you look at the body language of some of the judges, it is like they are trying to please the Executive,” he said.

“The economy during the Kibaki era was good. The Jubilee era has been a disaster. I don’t get their agenda. Kibaki tried to get the economy working and kill this thing of handouts but that is what Jubilee has reinstated.”