• As we celebrated the birth of Christ, we also celebrated the well-led life of Charles.
• His great courage and sacrifice and those of the late Kenneth Matiba, and other heroes of the Second Liberation for the restoration of multiparty democracy were informed by a vision of a happy, democratic and prosperous Kenya.
Let the truth be told today following the death of Charles Wanyoike Rubia. In this tribute, I will refer to him affectionately as Charles.
The death of Charles on December 23 made this year’s Christmas celebrations unique in our country’s constitutional history because of five reasons.
First, as we celebrated the birth of Christ, we also celebrated the well-led life of Charles.
His great courage and sacrifice and those of the late Kenneth Matiba, and other heroes of the Second Liberation for the restoration of multiparty democracy were informed by a vision of a happy, democratic and prosperous Kenya.
This is now written in the 2010 Constitution. The preamble sets that vision out in full. That the Constitution is our foundation for a strong and just republic.
This is the very constitutional architecture the BBI is proposing be tampered with.
It is proposing that it be reviewed on the basis of nine years of non-implementation and implementation of the same.
It proposes the country returns to the parliamentary system, which we started our nationhood in 1963 but abandoned in 1964.
BBI TAMPERING WITH THE CONSTITUTION
The second reason is that his death comes when Kenyans are studying the BBI’s proposals to tamper with a constitution that has rightly been described as one of the world’s best and modern, only nine years after 67 per cent of voters ratified it.
This was on August 4, 2010. This is too short a period of implementing a constitution that was designed to be eternal or live forever as our nation was designed.
The year 1990 was very bust and most eventful for both Charles and Matiba. It changed his life forever.
In December 1989, the one-party rule of Eastern Europe that was associated with communism collapsed.
It similarly collapsed in many African countries, including Kenya. The detention without trial on July 4, 1990, of Charles and Matiba destroyed their health fundamentally.
Gitobu Imanyara and Judge Mohamed Ibrahim of the Supreme Court, too, were detained that year but their health did not suffer as much as that of Charles and Matiba. Thereafter — and for Charles until his death — they led lives of pain so that all Kenyans may live in liberty, under the rule of law and plenty.
We, Kenyans, did not treat them well. We gave them no commendations when they lived with us.
Neither Charles nor Matiba witnessed State recognition of their respective sacrifices. Those heroes set the bar of patriotism admirably high.
A Kenya in which citizens make such sacrifices would ensure all are protected. It is not surprising that our economy is in shambles. We do not make sacrifices anymore.
The third reason is that Charles's death forces us to ask ourselves why we do not appear, after 2010, to make sacrifices so that we all may live in plenty.
The fourth, this death forces us Kenyans and other people in the world to ask why democracy, which has served mankind so well is being contested, and also what we in Kenya should do in the years to come to protect it.
The administration of President Donald Trump has been characterized in the US and everywhere else with the contestation of the idea of democracy and its institutions.
As Congressman and Congresswoman, one after another pointed out during the impeachment debate last week President Trump claims he is above the law like English Kings did before 1688. He has been told that he is not and shown the door by the Lower House!
Charles was arrested on July 4, 1990, after he and Matiba attended the American celebration of the 1776 Declaration of Independence, at the residence of then US Ambassador Smith Hempstone. He was appointed by the late President George Bush. I attended it too.
For the greater part of the first half of that year, Khaminwa, Muite, Rev Timothy Njoya and I had been consulting with Charles, Matiba, Oginga Odinga and Raila Odinga on how to restore liberal democracy in Kenya constitutionally. Our project succeeded.
That night, of July 4, 1990, Muite, Khaminwa, Japheth Shamalla and I met at the latter’s house on Riara Ridge, Nairobi, to work out a legal strategy of securing the release of Charles and Matiba the following day.
They were held in custody at the Nairobi Area Traffic Headquarters police station. Khaminwa wrongly judged that his face would cause the least offence to the police and would not be arrested and detained as it happened. He was that selfless. He did not want those who would cause a greater offence to risk losing liberty!
When he, as an advocate, went to assist citizens in police custody to secure liberty, his own liberty was taken away.
He was detained a second time for acting for unpopular clients. He was first detained in 1981 when he was acting for the late George Anyona, a valiant fighter for democracy and Stephen Mwangi Muriithi, a former deputy director of Intelligence.
Other advocates of the High Court, including the late Mirugi Kariuki, Willy Mutunga, the former Chief Justice, Imanyara, judge Ibrahim and I were detained in the 1980s and 1990s for acting for unpopular clients also.
Khaminwa was arrested on July 5, 1990 at Nairobi Area Traffic Headquarters police station where he went to ask why Charles and Matiba had been arrested the day before and whether they could be released on cash police bail or bond. That was not to be and the rest is history.
STRUGGLE FOR DEMOCRACY
According to constitutional history, the struggle for democracy is a global project everywhere. Lafayette, a French man, greatly supported the American struggle for independence.
Our democratic struggle between the 1980s and 2010 was supported by many democracies.
Our fight for independence in the 1950s was also supported by many foreigners, including Dennis Pritt after whom the road near State House is named after today. He led the defence lawyers who represented seven nationalists at the infamous Kapenguria. President Uhuru Kenyatta’s father was among them.
The impeachment last week of Trump by the Democratic Party-controlled House of Representatives has set the bar high for democracies everywhere. The world should support that heroic act of the Democrats.
One hopes the Republicans in the Senate will vote for democracy, show President Trump the door and stop the ongoing undermining of it by one of their own.
But whatever the vote in the Senate will be, the House of Representatives' decision to impeach Trump will in history of the world be found to have been eminently right.
If Republicans support one of their own, they will be voting for a mean world like that sought to be created by Hitler in the 1930s and 1940s. The allied forces destroyed that bad vision of the world.
In Kenya, the BBI should consider celebrating the life of Charles by abandoning its proposals to tamper with the constitutional architecture of our democracy for which he paid heavily.
Christ, of course, paid a higher price.
The writer is a senior counsel