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Lied Under Oath: Makau Mutua Should Not Be Kenya’s Chief Justice Because Of This

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Below are excerpts of an article from an independent university publication UB Spectrum, and the quality of reporting is incomparable to the mediocrity that useless Kenyan journos serve on us everyday.

Our constant exposure to quality journalism without our borders should be a rallying call for reflection, because Kenyan mainstream journalists must be the most mediocre and pathetic in the world. I mean, if a university publication can write better articles than Kenya’s top paper, then why should we continue worshipping and glorifying mediocrity?

We are glad that the market is responding and slowly discarding the uptake of mediocre content from mainstream media, seeing as media houses are posting losses and retrenching staff. When you build your media house on a foundation of mediocrity and not merit, what do you honestly expect? We also note that advertisers have now shifted online, using non-Kenyan platforms as they have better results than advertising on mainstream media.

Professor Makau Mutua resigned as Law school Dean of University of Buffalo in 2014 following some damning allegations casting aspersions on his character and integrity. The resignation came amid allegations that he lied in federal court and in a state administrative proceeding.

The alleged lying under oath stems from a 2011 case filed by Jeffrey Malkan who says the dean wrongfully terminated his contract as a clinical professor. Malkan had signed a contract in November 2006 that stated he could only be fired for cause in accordance to the law school accreditation standard. Two months after becoming dean, Mutua terminated the contract.

The suit also alleged that Malkan was denied due process under the 14th Amendment.

Mutua, who had been dean for seven years prior to his resignation, stepped down officially on Dec. 19 2014, but continued teaching at UB as a SUNY Distinguished Professor and Floyd H. and Hilda L. Hurst Faculty Scholar.

The resignation was sent by Provost Charles Zukoski announcing the resignation. He did not mention the lawsuit in the email, but focused on Mutua’s accomplishments as dean, which include recruiting 22 new faculty members, offering more experiential learning opportunities for students and fundraising $23 million.

“I decided to step down because it was the right time: A seven-year tenure is twice as long as the typical tenure for a law dean, and I’ve accomplished what I set out to do,” Mutua said in a written statement to The Spectrum back then.

Faculty and students interviewed by The Spectrum offered tepid to scathing critiques of Mutua’s tenure and many students insist they have never seen Mutua on campus nor had they interacted with him. In October 2010, the law school faculty attempted to hold a vote of no confidence in Mutua, but the attempt was dismissed by then President John B. Simpson and then Provost Satish Tripathi, according to email correspondence obtained by The Spectrum in 2013.

The Malkan case began in 2011 and names both Mutua and law professor Charles Ewing, who served as head of the law school grievance committee that heard Malkan’s complaint. The federal case, in U.S. district court, is now at the stage of considering summary judgment, which involves whether the case can go forward to trial. The newest development in the case came in August when Ewing filed a motion to have his case separated from Mutua’s. In the motion, Ewing’s lawyers argue Ewing was an “innocent bystander,” who got caught in the disagreements between Malkan and Mutua.

Therefore, Ewing has asked the court to separate his case from Mutua’s “to avoid foreseeable ‘spill-over effect’ and indelible prejudice,” against him in light of the false testimony allegations against Mutua.

“I’ve been so frustrated for the last couple of years,” Malkan said. “I couldn’t believe Mutua was still in the dean’s office with these allegations over his head. There’s no way a dean can function until his name is cleared.”

The motion to separate the trials highlights the significance of the perjury allegations, which stem from testimony Mutua gave regarding a faculty vote on Malkan’s promotion to clinical professor at a Committee on Clinical Promotion and Renewal (CCPR) meeting. Seven faculty members testified that the vote took place. Mutua said under oath the vote did not take place, rather that it was a vote to retain Malkan as a director of the Research and Writing program.

Mutua also testified former UB President William Greiner, who was a member of the law school faculty, spoke at the meeting. UB law faculty members testified Greiner was not at the meeting.

Malkan said that at the time of the 2006 CCPR meeting, Greiner was sick and not regularly attending faculty meetings. Greiner died in 2009.

When Mutua was asked to produce Malkan’s promotion dossier – an official document a person up for promotion needs to prepare – for the court, the dean said it had disappeared. He said he didn’t know what happened to it and it was missing when he took over the dean’s office.

Malkan said Tuesday it was an “obstruction of evidence.”

“It’s unthinkable that a dean of a law school would commit perjury and subvert the process and actually produce a miscarriage of justice,” Malkan said.

The Spectrum reached out to numerous law professors and students, most of whom declined to go on the record about the atmosphere of the law school and the allegations against Mutua.

However, The Spectrum pieced together a paper trail that indicates discontent, which includes the October 2010 attempt by three tenured faculty members to hold a meeting to request a vote of no confidence in Mutua.

Former President John B. Simpson and then Provost Satish Tripathi asked the faculty to attend the meeting that would be held on Oct. 22, according to emails obtained by The Spectrum in 2013. Mutua declined the meeting despite receiving a request signed by three members of the faculty in accordance with faculty bylaws.

On Oct. 25, following a faculty meeting on Oct. 22, Simpson and Tripathi sent an email to the faculty addressing the meeting regarding Mutua.

Law faculty said they never took a no confidence vote in Mutua, but voted to put the matter on the agenda again. It triggered a meeting with Tripathi and Simpson, who told the faculty the administration was not interested in their concerns about the law school leadership, according to professors in the law school.

UB policy states that deans should be reviewed every five years. Mutua was dean for six and a half years before a review was initiated, according to emails obtained by The Spectrum.

In February 2014, UB and SUNY Distinguished Professor of Chemistry Frank Bright, who headed Mutua’s review committee, sent an email to the law school faculty saying a “five year review” of Mutua was beginning.

Mutua began as interim dean in late 2007 after Nils Olsen stepped down. A press release announced his appointment as dean in May 2008. Some law school professors question the process that led to Mutua’s appointment because he didn’t go through a full and regular search process, according to law school faculty. Tripathi appointed him after a failed national search. But UB Spokesman John Della Contrada said, “there was nothing out of the ordinary about the search.”

The results of Mutua’s decanal review, which was completed around May 2014, are confidential, according to Bright.

However, Provost Zukoski sent out an email to those who participated in Mutua’s review on July 1. The letter outlines the law school’s accomplishments under Mutua, including improving the number of law graduates who pass the bar, improving infrastructure and increasing fundraising efforts.

The letter states that Zukoski discussed the review results with Mutua and alludes to concerns of faculty members.

“Through the decanal review process, Law School faculty and staff have raised issues of concern to me as provost,” Zukoski wrote. “These issues have strained relationships within the school and created tension around leadership and unit cohesion.”

The letter does not indicate if the decanal review process had an effect on Mutua’s position as dean. Della Contrada said “input by faculty, staff, students and members of the community is a vital part” of the decanal review process.

Malkan was suing for $1.3 million in damages and said he has essentially been blacklisted in his profession because Mutua not only fired him, but also would not write him a letter of recommendation.

Malkan said he viewed Mutua’s resignation as a relief, and said he was surprised Mutua was allowed to remain dean with lying under oath allegations lingering.
Sam Benatovich, a second-year law student who never met the dean in person, said the allegations Mutua is facing were troubling. He said the law school’s program focuses on integrity and students have to take a class on ethics in the legal profession.

If the allegations are true, Benatovich said, “the dean of a law school can’t flagrantly disregard the foundation of our legal system. It sends mixed messages as an educator. It’s not just wrong, but downright repugnant to create the next generation of lawyers while flaunting your lack of respect for the legal standards.”


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