Is Kibaki blundering yet again?

Mwai Kibaki is at the centre of another controversy. It concerns his habitual unilateral appointments of officials to public offices. Last time he did so he had to eat a humble pie and withdraw his appointments of the Chief Justice, Attorney General and Director of Public Prosecutions. This time he has appointed 47 County Commissioners without consulting the Prime Minister and totally ignoring Parliament’s approval.

As was to be expected the new appointments have been challenged by both Prime Minister Raila Odinga and the Constitution Implementation Commission Chairman Charles Nyachae. The matter seems to be heading for the courts where the correct interpretation of the Constitution will be made.

But before that happens it is fair to examine what both the supreme law says and also what the County Government Bill, which is waiting for the Presidential assent, says about the importance of devolution. Section 17 of the Sixth Schedule of the Constitution says: “Within five years after the effective date, the National Government shall restructure the system of administration commonly known as the Provincial Administration to accord with and respect the system of devolved government established under this Constitution.”

Whereas this is the part of the Constitution quoted by the statement from State House justifying the President’s unilateral action , it is also, paradoxically, the same part of the Constitution quoted by Nyachae claiming the President used powers he did not constitutionally possess. Nyachae argues that the part that emphasizes the respect for the system of devolved Government wasn’t quite observed by the President. 

Nyachae’s concern was that Kibaki totally ignored the provisions of the County Governments Bill 2012, which is still waiting for his assent. The Bill says in Section Six on Powers of county Governments that each one of them will be an entity exercising constitutional authority. It says each county government shall have all the powers necessary for the discharge of its functions. So far Kibaki has not approved this Bill and it is still not very clear whether he is unhappy with county Governments getting too much powers.

Whatever Kibaki decides the Constitution is very clear about the divisions of responsibilities between county and central governments. Chapter 11 which is on the Objects and Principles of Devolved Government says in Article 174 that the objects of the devolution of government are to promote democratic and accountable exercise of power. The other important object of the devolved Government is to foster national unity by recognising diversity and give powers of self-governance to the people and also enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them.

By unilaterally appointing County Commissioners, Kibaki has violated the Constitution for not promoting democratic and accountable exercise of power. One of the main objectives of establishing County Governments is, according to the Constitution, to recognise the right of communities to manage their own affairs and to further their development as well as to protect and promote the interests and rights of minorities and marginalised communities.

May be the best way of making sure communities managed their own affairs as far as the appointment of County Commissioners is concerned would have been for Kibaki to consult with the Prime Minister first and whatever list the two agreed on to be placed before Parliament for the Legislature’s approval. That way the people’s representatives in Parliament would have made their contribution on the issue. As things stand now someone is using, or to be more specific, is misusing the President to create jobs for his or her own cronies. With the promulgation of the new Constitution Kenya has passed that stage; but someone is very eagerly planning to take the country back to the dark days of nepotism.

As a matter of fact Prof. George Saitoti told Parliament the President used powers given to him by the old Constitution to make his appointments. He simply called the new administrative engagements “redeployment”, yet the country has never had positions of County Commissioners in the civil service before. The Court is likely to consider Kibaki’s appointments unconstitutional and nullify them and if it doesn’t the new appointees are likely to face a considerable amount of hostility from local politicians who will see them as anti-devolution agents.

While announcing Kibaki’s appointments of the County Commissioners State House said it was doing so in accordance with the Fourth Schedule of the Constitution which clearly outlines the distinct functions of the National Government and those of the county governments. State House therefore announced that in this regard, President Mwai Kibaki had appointed County Commissioners to undertake coordination of National Government functions in the 47 counties.

Other functions of the appointed County Commissioners, as they were listed  by State House, include mobilizing  National Government agencies for national events, and programmes; collaborating  with the Kenya Citizens and Foreign Nationals Management Service in the identification of persons for registration; promoting  and enhancing  national cohesion and integration to foster unity of the nation; and to coordinate the dissemination and implementation of National Government policies and programmes.

Despite the controversy surrounding Kibaki’s appointments, it is very important that the politicians who will be controlling counties are not given the responsibility to determine who is and who is not a Kenyan. Some counties will be neighbouring countries with people who are always making every attempt to be accepted as Kenyans. The counties that will be bordering Somalia, for example, should not be given the responsibility of registering aliens or determining who Kenyan nationals are. A lot of politicians from those counties believe the border between Kenya and Somalia should not exist and when they control the said counties they are simply likely to allow all Somalis to come into Kenya unhindered.

Kibaki’s appointees would also manage and maintain administrative boundaries, security roads and airstrips; provide liaison, collaboration and partnership between the National Government and the County Government; coordinate disaster management and emergency response; facilitate participation of the people in National Government policy formulation and articulation; facilitate alternative dispute resolution initiatives; and perform any other lawful function assigned by the National Government and any other legislation.

The Commissioners will also be expected to register assets to be under the County Governments and to be handed over to the Governors soon after the General Elections.  The Commissioners, according to State House, will facilitate the Transitional Authority in the identification, location and differentiation of the offices of the County Government and offices of the Central Government from the existing portfolio, without prejudice.

Kibaki’s intentions for making the nominations may be good for the Fourth Schedule of the Constitution lists no less than 35 very important responsibilities which will continue to be done by the national government. These include foreign affairs, foreign policy and international trade; the use of international waters and water resources; immigration and citizenship as well as the relationship between religion and state.

Whether one agree with Kibaki or not the reasons he has given for appointing County Commissioners are legitimate. What can be contested is whether he followed the Constitution in making those appointments. On the issue of consultation and affecting gender balance as is required by the Constitution the President seem to have learnt no lesson from past experiences. His appointments must therefore be revised by following the law.

Elections and tribalism in Kenya

Tribalism has always been a factor in Kenyan elections. Ever since the independence elections in 1963, Kenyans have tended to group themselves in cluster of likeminded tribes to win elections in order to implement certain philosophies. Just before independence the two major political parties were in fact based of differences in beliefs in governance and distribution of national wealth. The Kenya African National Union, the party of Jomo Kenyatta, Oginga Odinga, Tom Mboya and James Gichuru, believed in unitary government with a powerful president who would govern in an independent republic.

The party was overwhelmingly supported by Kikuyus, Embus and Merus including almost all the radical freedom fighters backed by virtually all the Luos. Basically it was a party of Kikuyus and Luos whose leaders openly campaigned for getting the land back from white settlers and giving it to the wananchi who were then living in villages and settlement schemes known as reserves for Africans. Even in urban areas there were specific locations and estates reserved for Africans. In Nairobi, for instance, Africans were all living in Eastland in estates which are still there today such as Majengo, Kariokor, Shauri Moyo, Bahati and Kaloleni.

White settlers were terrified by Kanu leadership particularly that of Raila’s father Jaramogi Oginga Odinga who had close ties with communist China and the Soviet Union. The settlers believed their land would automatically be nationalised by the ex-Mau Mau leaders and “communists” of Kanu. Backed by the colonial government the settler community mobilized African political leaders outside the Kikuyu and Luo ethnic groups and made them form a national political party that would not only protect the settlers and their land but would also guarantee that Kenya would never be a communist dictatorship like that in Ghana under Kwame Nkrumah.

 With such absurd beliefs the settlers made the so called small tribes unite to form the Kenya African Democratic Union. In the party were communities from the Kalenjin, Miji Kenda, Luhya and the Masai ethnic groups among other smaller communities. It is therefore quite fair to say that the first elections in independent Kenya in 1963 were, for all practical purposes, a contest between Kikuyus and Luos on one hand and the rest of Kenyans on the other. The Kambas under Paul Ngei had formed their own party known as the African People’s Union, which Tom Mboya referred to jocularly as the Akamba People’s Union. Be that as it may, the tribalism in the 1963 elections was, paradoxically, also based on very fundamental policy differences.

Kadu was for a federal system of Government, a two chamber legislature that would include the Senate, a House of Representative and powerful regional Governments that controlled important policy issues concerning land and administration including the police. All these provisions were in fact contained in the first majimbo constitution which was accepted by Kanu in order to attain independence from the British as quickly as possible. Only three years after independence the country was faced with new elections in 1966 which were known as “The Little General Elections”.

The elections were necessitated by Jaramogi Odinga’s formation of his own party, the Kenya People’s Union. The new party was formed on April 14, 1966 when Jaramogi openly disagreed with Kenyatta’s policies that had started creating a class of rich Africans whose sole aim was to grab property and wealth. Jaramogi was joined by 28 members of Parliament and the Senate –a move that made Kenyatta, backed by Kanu’s Secretary General Tom Mboya and the Attorney General Charles Njonjo, come up with a constitutional amendment that discouraged MPs and Senators from joining Jaramogi’s party.

The amendment was among the first few that changed the country from a federal state of majimboism into a strong unitary Government of a Republic that virtually made Jomo Kenyatta a legally constituted despot. The constitutional amendment that led to The Little General Election was passed in 1966 and required any MP who resigned from the political party that sponsored him in a winning election to also resign from his parliamentary seat and seek fresh mandate from the voters. All the 28 MPs and Senators who backed Jaramogi’s KPU had to vacate their seats in the Legislature and face the electorate. It so happens that all the Luo MPs from Nyanza resigned to seek new mandate from voters.

The significance of The Little General Elections was that they facilitated the first opportunity to form a tribal group to win an election. All the Luo MPs, united under Jaramogi, were forced by circumstances created by the Government, to gang up behind Raila’s father. It was also the second time when Luos as a group joined hands to win an election. By allowing Parliament to be used as a rubberstamp Kenya had passed four draconian laws when in 1969 the next elections took place.

Though legally the country allowed the existence of a multiparty democracy the elections were probably the first in which only Kanu was the party that really mattered in the country. Kenyatta was a fully-fledged dictator after Parliament had passed the Preservation of Public Security Act of 1966, which provided for the declaration of state of emergency and for detention without trial. The second draconian law that had been passed was in fact a constitution amendment which legalised detention without trial in 1966; the third law which strengthened Kenyatta’s hand as a dictator was also a constitution amendment which required parliamentary candidates to be nominated by a registered political party in 1968.

The fourth one was also a constitution amendment which also required presidential candidates to be nominated by a registered political party in 1968. Though the animosity between Luos and Kikuyus was strong in the 1969 elections, the polls cannot quite be said to have been influenced by tribal loyalties as the ruling party Kanu had consolidated its powers all over the country. Except for the campaign in Nyanza, candidates in the rest of the country were competing to show how loyal they were to Jomo Kenyatta. By the time the country was ready for the next elections in 1974 corruption and nepotism were rampant in the country.

There was no doubt that Kenya’s Government was controlled by powerful Kikuyu technocrats and indeed politician. The only tribal organisation in the country that was so powerful was Gema which determined who was cleared to stand for election. No one was allowed to contest in those elections if he was not a life member of Kanu. Tribalism in politics was personified by Gema. The next elections took place in 1979 after Jomo Kenyatta’s death on August 22, 1978. President Daniel arap Moi’s main preoccupation was to step into Kenyatta’s shoes. He therefore declared he would follow in the departed old man’s shoes by announcing his Nyayo philosophy.

The elections were mainly characterized by internal Kanu struggles to win Moi’s closeness and favours. With Kanu as the only party in the country there was little tribal animosity in these elections. With his position as the country’s President firmly secure, Moi had banned the entire tribal organisation when the next elections in 1983 took place. Needless to say his main target was Gema but when it disappeared other tribal organisations which were not so political also had to go. These included the Abaluhya East Africa, Luo East Africa and the New Akamba Union.

 Though Moi took a deliberate effort to abolish tribal organisation he very carefully selected some well-respected tribal leaders in their own communities to become his sycophants. These include Sharif Nassir from the Coast, Kariuki Chotara from the Kikuyu community, Mulu Mutisya from the Kamba people, and Moses Mudavadi from the Abaluhya, William ole Ntimama from the Masai and Ezekiel Bargatuny from the Kalenjins. What was noteworthy about the 1983 elections was the fact that the country was by law a one party state. The intra tribal rivalries were only based on who would be closer and more loyal to the dictatorial leader of the ruling party.

The next elections in 1988 found Moi in full dictatorial control of the country. He abolished secret ballots in election and introduced the infamous mlolongo polls. These were followed by the first multi-party elections in 1992 in which tribal clashes became rampant in the Rift Valley. President Moi who contested as the Kanu candidates is accused of organising tribal clashes in the Rift Valley in which Kikuyus, Luos and Luhyas were attacked by the Kalenjins and faulted of being “aliens”. Because of a very big number of tribally organised political parties Moi won the 1997 election too.

When Kenyans forgot tribal affiliation in the 2002 elections, Kanu’s Uhuru Kenyatta was defeated by Mwai Kibaki’s National Rainbow coalition. Many will argue that the 2007 elections became violent because Kenyans had once again organised themselves along tribal line. That mistake is about to be repeated again either this year or next year when the next elections take place.

Mudavadi’s gamble may backfire

Musalia Mudavadi is in a very delicate political situation. His people the Abaluhya, or to be more specific, the Maragoli, expect him to run for the Presidency in Kenya’s next general election. The feeling among the people of Western Kenya is that it is now their time “to eat”, which is the euphemism for corruptly occupying important positions in the Government for the sole purpose of milking the country dry.Like most Kenyan Africans, the Abaluhya believe, with some very justifiable proof, that when Jomo Kenyatta was the President of Kenya, Kikuyus who were very close to him were given every opportunity to grab public land and corruptly accumulate wealth by the abuse of public offices they acquired through nepotism.

Like the rest of Kenyans the Abaluhya also believe President Daniel arap Moi perfected all the Kenyatta’s crooked ways of making money by the misuse of public office. Under him the Kalenjins who were close to him accumulated so much wealth through graft that they almost made the country broke. Well known corrupt activities such as the Goldenberg scandal created a class of Kenyans who were so rich that they were able to corrupt all the three arms of the government in the Executive, the Legislature and the Judiciary.

To the disappointment of many Kenyans Mwai Kibaki is, to all intents and purposes, also paddling in the same canoe as his two predecessors. Under him the country has seen the shocking syphoning of public funds by his closest friends through such heinous scandals as Anglo Leasing disgraces which have made a handful in powerful positions become multi billionaires in the short time Kibaki has been in power. Mudavadi’s community, like many others in the country, see the purpose of Government as the road to wealth through corruption, dishonesty and exploitation of the poor.

The formation of tribal political parties is therefore the only excuse by corrupt leaders to maintain the status quo which will obliterate all efforts to bridge the gap between the rich and the poor. Deep inside his heart Mudavadi knows this is very wrong for the country but to survive politically as a tribal leader he has to find a means of contesting the next general election as a presidential candidate if he is to expect any support from his tribe. Musalia also knows that the only genuine political parties that are seriously concerned with the welfare of the people are the ODM and Martha Karua’s Narc Kenya.

The rest are a collection of tribal organisations that hope to form the next government by cooperating among themselves for the same purpose of illegally “eating” from the public funds. The tribal parties are therefore the safest stepping stones to political power and they do not even bother to hide that fact. First there was the infamous KKK organisation uniting the Kikuyus, Kambas and Kalenjins. Now there is Gema and Kamatusa which are presumably going to be joined by the so called Wiper Democratic Movement of Kalonzo Musyoka.

If the tribal leaders had their way they would unite to hoodwink the Kikuyus, Embus and Merus under Gema; Kalenjins, Masai, Turkanas and Samburus under Kamatusa, the Kambas under the Wiper party and now Musalia Mudavadi’s yet to be formed party that would ostensibly unite the Luhya people. The people will soon be fed with the most raw propaganda of “our time to eat” when in reality the tribal leaders will be uniting to oppose the new Constitution which is proving to be too bitter a pill for the corrupt leaders to swallow.

Musalia Mudavadi knows very well that the ODM has accepted his conditions of organising the party’s primary elections from the grassroots to nominate presidential, senatorial and gubernatorial candidates. He, more than anyone else, knows that party rules demand that that cannot be done without amending its constitution. The notice to amend the party constitution to adopt Mudavadi’s proposals has been given to the registrar of political parties and a timeline has been established to follow and implement the proposals before the next general elections.

Meanwhile the party had to get itself registered in preparation for the next elections and also in an effort to meet the required legal deadlines. Musalia knows there was no sinister plan to register the party without the necessary constitutional amendments in order to stab him in the back. But he also knows even if the elections were to be organised from the grassroots level Raila would beat him hands down. Forming his own political party could only mean the end of his political career as there is no hope in hell of him getting elected the next President of the Republic of Kenya.

Gema and Kamatusa together with the Wiper party would never support Mudavadi’s presidential candidature. Their purpose of appearing to back him at the moment is a cunning scheme to weaken both ODM and Raila. With Musalia out of the ODM all the KKK plans would be much easier to implement as the Luhya people would be seriously divided with some supporting their new tribal party and others, among the enlightened ones, remaining in the ODM.

If Musalia therefore wants to remain in politics after the next general election he has to remain in the ODM which can offer him an easy-to-win governorship or a seat in the Senate from a variety of constituencies. He must not dream of being the party’s presidential candidate or even Raila’s running mate as the team of the two would be seen as an attempt at establishing an exclusive government of western Kenya leaders.His biggest task at the moment must be to preach the gospel of the new Constitution to his Luhya people, and indeed the rest of Kenyans, to make them realise the days of tribal politics in this country disappeared with the promulgation of the current constitution.

With or without Mudavadi ODM should now start campaigning as one of the two parties that both supports and intends to implement the new Constitution. Kenyans overwhelmingly supported the new constitution so as to take part in the onerous task of bridging the gap between the rich and the poor. Kenyans want to hear from all the political parties, which are serious about development in this country, a clear elaboration of how they intend to implement chapter six on leadership and integrity and chapter five on land and environment.

None of the tribal political parties that are being revamped or given new faces now have any manifestos showing how they intend to expeditiously implement the new constitution. As a matter of fact none of the tribal leaders is talking of change in Kenya. All they want is to find ways and means of perpetuating their stay in power from where they will continue to exploit the people of Kenya.

Kamatusa and Gema outdated

What do the recent Cabinet reshuffle; the Gema threats to petition the ICC and the fake anti British dossier tabled in Parliament have in common? The answer is Uhuru Kenyatta. It is in his effort to anoint Uhuru as his successor and to protect him against threats from the ICC that Mwai Kibaki removed the hard working and straight talking Mutula Kilonzo from the Ministry of Justice, National Cohesion and Constitutional Affairs and dumped him into the Ministry of Education where he will have no say about justice at the ICC in the Hague.

But removing Mutula from the Justice Ministry will not in any way change the flow of justice at the ICC in The Hague. Neither will the collection of signatures by the Gama and Kamatusa communities, even if the signatures are presented to the United Nation’s Security Council to try and postpone the cases against Uhuru and Ruto. The unpleasant truth is the fact that silencing Mutula Kilonzo by moving him from the Ministry of Justice will not in any way, shape, or form alter the legal truth Mutula was openly telling everyone who wanted know the truth about Kenya’s case at the ICC.

Parliamentary investigations today have failed to authenticate the genuineness of the papers tabled in the legislature claiming to have originated from British diplomatic circles. It is now clear that the fake documents were a futile attempt to protect Uhuru Kenyatta against the ICC criminal cases by politicizing the entire process.

At the risk of being accused of hyping tribal nationalism, Gema leaders met in Limuru on April 23rd to tell all and sundry that Uhuru was the undisputed leader of the Kikuyu people. This plot however boomeranged when William Ruto immediately reacted by showing his brand of tribal strength by organising a Kamatusa meeting in Eldoret where he too was declared the undisputed leader of the Kalenjin and the Presidential candidate of the Masai, Turkana and Samburu communities as well.

The Kamatusa and Gema meetings were followed by an outburst of condemnation of tribal grouping throughout the country making Mwai Kibaki to join the bandwagon by castigating a growing tendency of reviving tribalism. The latest political development in the country was in fact a blessing in disguise in the sense that it exposed the organisers of the two tribal groupings as absolutely irrelevant in the modern Kenyan political development.

Ruto and Uhuru may appear to be young and representing the youth of Kenya. But their political scheming and organisation is old and antiquated. It is so obsolete that it has been overtaken by the new Constitution which prohibits political organisations based on tribal affiliation.

Article 91 (1) of the Constitution says every political party shall have a national character as prescribed by an Act of Parliament; have a democratically elected governing body; promote and uphold national unity; abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; respect the right of all persons to participate in the political process, including minorities and marginalised groups; respect and promote human rights and fundamental freedoms, and gender equality and equity; promote the objects and principles of the new Constitution and the rule of law; and subscribe to and observe the code of conduct for political parties.

Neither Gema nor Kamatusa have fulfilled these requirements by the supreme law. Ruto and Uhuru will of course be among the first to claim that the two organisations are welfare societies which have nothing to do with politics. If that was true then they would have had no business backing anyone for a political office. If the two organisations were not political then they should have refrained from selecting presidential candidate for the next election.

Throughout the Easter festivals Anglican and Catholic churches, which are the largest and most powerful Christian organisations in Kenya, condemned both the Kamatusa and the Gema attempts to return the country in the pre-2007 tribal politics that was the real cause of bloodbath of the PEV. To his credit the retired President Daniel arap Moi was also among the first people to condemn the revival of tribal political parties. He too, as Kenya’s oldest politician, knew that Gema and Kamatusa wre, for all practical purposes, tribal political parties.

The open involvement of Kamatusa and Gema in political affairs also exposed the fragility of political unity in the G7. Its two top leaders are both interested in the top seat at State House and none is prepared to stand down for the other. In the final analysis Ruto and Uhuru will run for the presidency of Kenya as rivals who intend to unite later during the runoff against Raila Odinga. But by the look of things Kenyans are so disgusted with tribal organisations that Raila may very well win the seat in the first round.

Kenyans love their new Constitution so much that they will not hesitate to reject anyone who plans to undermine it through tribalism. They know for example that Article 91 (2) says a political party shall not be founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis. Kenyans know very well that the new Constitution prohibits any political party from engaging in or encouraging of violence by, or intimidation of, its members, supporters, opponents or any other person. The constitution also prohibits any political party from establishing or maintaining a paramilitary force, militia or similar organisation.

Ruto and Uhuru may say that Gema and Kamatusa have no such intentions or plans. But Kenyans know they are tribal organisations made up of communities that have been involved in violence and formation of militia groups in the past elections. In fact the real reasons both Uhuru and Ruto are facing criminal charges at the ICC today is because they are suspected of organising their communities into dangerous militia in the last elections.

Besides violating the Constitution by engaging in political activities, Kamatusa and Gema are not allowed by the Political Parties Act to engage, as they do now, in political activity. Section 4 of the Act prohibits any association such as Gema and Kamatusa from engaging in political activities unless it has been registered as a political part. It actually says the registrar of political parties shall not register an association of persons or an organisation as a political party if such association or organisation does not meet the requirements set out in Article 91 of the Constitution.

Given what the Constitution and the Political Parties Acts say it is clear both Kamatusa and Gema were engaging in illegal activities when they took serious political stands concerning the next general elections. Kenyans know very well what happened to this country in 2007-8 elections when tribal nationalism was used to mobilise people for selfish gains of the few.

Politicians backing Kamatusa and Gema have talked of establishing political parties which have yet to be registered under the new law. When they finally register their political parties the rest of Kenya will easily identify those parties as tribal institutions which will find it very difficult to exist in the modern day Kenya.

IEBC’s election date is reasonable

The date selected by Issack Hassan and his team for Kenya’s next general election should be accepted with gratitude for a number of reasons. To begin with it should by now be absolutely clear to all that the two Principals have no desire to dissolve the coalition Government soon. Mwai Kibaki has expressed the wish to have elections in March next year; but Raila Odinga would prefer to have them in December this year. What would happen if Raila simply walked out of the coalition?

Top lawyers including Attorney General Githu Muigai and the Justice Minister Mutula Kilonzo seem to believe that nothing would happen when Raila pulls out of the Government. Kibaki would continue to be the President and Parliament would also continue functioning as the Legislature until its term constitutionally expires on January 15th 2013. There are other highly respected lawyers led by Martha Karua who believe Parliament would automatically dissolve when the coalition Government is disbanded. That would force the country to hold elections in December this year.

As matters stand now election will take place on March 4th 2013 unless someone challenges that decision by Issack Hassan in court. The chances of the Court of Appeal changing IEBC’s date are very slim because Hassan made his announcement by strictly adhering to the law. It was basically based on January 13th 2012 judgement by Judges Isaac Lenaola, Mumbi Ngugi and David Majanja on the issue of election date.

Before their January 13th ruling the three Judges listened to all the arguments for and against next years’ election. Of these the strongest argument was present to court by Prof. Yash Pal Ghai who insisted that the election date for the first elections under the Constitution was within 60 days from the end of the term of the National Assembly which would be in mid-January 2013.

According to the judgement, he argueds that the Constitution could not be read as providing for elections in December 2012. This date was as a result of a popular expectation that elections were generally held in December, and they were so held in 1992, 1997, 2002 and 2007 though nothing in law fixed December as the election month.

This argument by Prof. Ghai must have tremendously influenced Hassan and his team in determining the date for the next election. Soon after Hassan’s announcement politicians were up in arms accusing him of having no such powers. Among the loudest was Immigration Minister Otieno Kajwang who boastfully claimed to have read the new Constitution as a lawyer without seeing anywhere in the supreme law where Hassan got powers to announce the election date.

But while announcing the date Hassan clearly said the Independent Electoral and Boundaries Commission (IEBC) was constitutionally mandated to conduct elections and referenda in the country. According to the Constitution, he explained, the elections of the President, Members of Parliament and of County Assemblies were to be held on the same day. But in determining the date of the first general elections under the Constitution, the Commission was guided by the Constitution, the Elections Act, 2011 and the Constitutional Court Judgment delivered on January 13, 2012 in Constitutional Petition No. 65 and 123 of 2011.

According to the IEBC boss the Judgment, though appealed against, had neither been stayed nor overturned. He explained the judgement gave two possibilities on the date of the first general elections under the Constitution: First it examined the possibilities of an election in 2012 which would be within sixty days from the date on which the National Coalition was dissolved by written agreement between the President and the Prime Minister in accordance with Section 6(b) of the National Accord and Reconciliation Act, 2008.

The second option, explained Hassan, would be within sixty days from the expiry of the term of the National Assembly on 15th January, 2013. Hassan clearly explained that of the two options, the first one was outside the control of the Commission; because it required a joint agreement in writing by the two Principals.
Rather than attacking Hassan for attempting to exercise powers he did not have, Kajwang and those who think like him, would have been more reasonable to listen to the IEBC boss’ reasons for unilaterally taking the action he did of naming the date. The Commission, he said, had consulted widely within and without, and in particular, it had consulted the two Principals with the view to actualize the first option the Court Judgment had recommended.

He reiterated that it should be understood that his Commission had repeatedly stated that it was ready to conduct the general elections in December 2012. However, after the consultations, it had become clear to the Commission that there was no agreement between the two Principals as required by the Court Judgment under the first option. Apart from failing to reach an agreement on when to dissolve the coalition Government with President Kibaki, Prime Minister Raila is on record attacking the court judgement in a rather vulgar language.

For calling the court “bandia” or kangaroo, the PM was vehemently attacked by Chief Justice Willy Mutunga, who is the President of the Supreme Court. He said in a Statement: “Mr Odinga is the Prime Minister of the Republic of Kenya. As a creature of the law, he is a critical and fundamental arm of the Executive. He must be aware that he bears a duty to uphold and protect the independence of the Judiciary as required by the Constitution – especially in instances where he is unhappy with its decision. It is therefore, distressing that individuals who bear a special responsibility to uphold the Constitution because of their leadership role would appear to vilify the courts.”

Rather than attack courts or the IEBC, those opposed to the March 4th election date should realise that Hassan was in fact compelled by the law to proceed with the second option recommended by the Court Judgment which required the Commission to fix an election date within 60 days from the expiry of the term of the 10th Parliament on March 14, 2013. Even more important than the mere date for holding the next general election, the country expects Hassan and his team to conduct these elections in a free, fair and transparent manner that would be organised in a peaceful atmosphere.

That is obviously why he said when fixing the date that he knew that successful and credible elections were deliberate designs of painstaking planning, logistics and collaboration of all key players and stakeholders. According to Hassan the Commission considered the earliest possible date of election taking into account certain statutory electoral processes included the requirement that political parties must comply with the provisions of the Political Parties Act, 2011 by April 2012.

Despite all the noise made by politicians there were only four political parties that had complied with the law when Hassan was announcing the election date. There was also the requirement that the High Court should hear and determine applications filed in respect of the published Final Report of the Commission outlining boundaries of constituencies and wards, within three months. Whether the noise makers like it or not these legal procedures will have to be followed and they indeed take time.

The IEBC will also need some time to procure vital election material which will hopefully digitize the entire process and make it more transparent. The electoral body has yet to do the mapping of new electoral units and conduct voter education on the new electoral unit as well as prepare a fresh voter registration based on the new electoral unit. When all this has been done then the voter register will need time to be inspected. The noise makers have also got to understand that this time political parties have to submit their party rules at least six months before party nominations. This takes time too.

If there are things to be ashamed of about the last general elections, the manner in which political parties conducted their primary elections must be one of them. One of the weakness of the current laws concerning elections is the fact that they are not more stringent about the manner in which parties nominate their candidates for parliamentary, gubernatorial and senatorial positions. According to the law political party nominations should be completed at least 45 days before the election date.

According to Hassan the rules concerning nominations must be submitted to the Registrar of Political Parties at least seven and half months before elections. There is also the requirement that political parties submit their party membership lists to the Commission at least three months before submission of party nominations to the Commission. Hassan explained that the requirement for potential candidates to refrain from directly or indirectly participating in public fundraising or harambee within eight months preceding a general election was important to be observed by all as the Commission keeps a sharp eye on every politician.

The IEBC boss also explained that the requirement for public officers intending to contest in the elections to resign from office at least eight months before the elections was a process that would obviously be time consuming for the Commission to keep a keen eye on. He said the requirement for independent candidates not to be members of any political party at least three months before the elections was important to observe as it would also be time consuming.

He said the need for certainty regarding the date of the general elections was a matter of both immense public interest and legal and administrative concern. The Commission had therefore conformed to the rigid legal steps leading to the election date. The country needed to know the election date and the Commission had to remove the uncertainty, anxiety and suspense surrounding this date. With this very convincing argument Kenyans should stop arguing about the election date and instead start organising for the March 4th elections according to the law. The remaining time is in fact very short.

Anti-ICC forgeries expose malicious scheme

Something horrible is taking place in Kenya’s legislature. An attempt by a group of MPs to table forged documents in Parliament to tarnish the credibility of the International Criminal Court has exposed a sinister scheme to promote impunity even when the people of Kenya are determined to wipe it out. Done by a semi-illiterate agent of distortion, the forgeries were an attempt to hoodwink the entire nation into believing that the trials at the ICC in The Hague are part of a big plot by Western “imperialists” to keep William Ruto and Uhuru Kenyatta behind bars as Raila Odinga runs for the presidency of Kenya almost unopposed.

Unfortunately the semi-illiterate schemer could neither write good English nor spell some simple words in the language. Hence the cat was let out of the bag through the theatre of the absurd parliament was reduced to when the forgeries were table in the House. Instead of the National Assembly buying the distorted theory of Western “conspiracy” against Uhuru, and Ruto and therefore backing them when they boycott the ICC trial, they now face Luis Moreno-Ocampo in The Hague as individuals.

The saddest part about the entire ICC trials against Uhuru and Ruto is the attempt by the Kibaki side of the coalition Government to involve the entire administration into the trials. Attorney General Githu Muigai has already engaged a team of lawyers to advice the Government on the trials. Yet in reality Uhuru and Ruto are accused as individuals in The Hague and not as official representatives of the Government of Kenya.

The other miserable fact of the Uhuru-Ruto trials in The Hague is their pretended assumption that the people of Kenya don’t know the truth about the episodes that led to the trials. Almost every Kenyan knows the trials at the ICC are the direct results of the PEV of 2007-8 that saw the deaths of well over 1,300 innocent Kenyans. Kenyans remember that following the sad event of PEV the Waki report made a number of recommendations including the formation of local tribunal to try those suspected of masterminding the bloodbath.

It was only when the country failed to establish a local tribunal that Justice Waki forwarded the names of the suspects to the former UN Secretary General Kofi Annan who handed them to the ICC. The British had nothing to do with that process; neither did Prime Minister Raila Odinga whom the Uhuru-Ruto defence team is now desperately trying to involve in the PEV.

Another important truth that must be exposed at this moment is the fact that Kikuyus are not on trial in The Hague. Neither are the Kalenjins. Ruto and Uhuru are charged with crimes against humanity as individuals. Kenya is not on trial. So the attempt to involve the whole country through forged documents presented before the National Assembly must be condemned as an extension of the PEV. The two accused people don’t seem to be repentant at all. Instead they want to involve the entire country in the trials they face at the ICC.

Likewise the manner in which they have grouped themselves along tribal lines in order to win the next general election through ethnic nationalism, rather than through policy and party manifesto, also reveals that the PEV has now taken an unrepentant form of planning to rule Kenya through tribal power structure. This is in total disregard of the new constitution which the Ruto-Uhuru group has always opposed.

In all these new political developments in Kenya the role of President Mwai Kibaki is extremely mysterious. The way he has always supported Uhuru Kenyatta clearly proves he is a G7 sympathiser who probably even supports the forgeries in Parliament. The way he reacted to the indictment of Uhuru and Ruto by the ICC clearly proved he was against the trials in The Hague. But then he also knows that 60 per cent of Kenyans support the ICC trials as most people want justice to be done through the international court as Kenya has totally failed to either seek or provide justice on this matter.

Apart from the forgeries being exposed by both the British and Kenyan intelligence agencies, other efforts to destabilise the country because of the ICC trials have been exposed by Prime Minister Raila Odinga. These have been attempts to mobilise Kikuyu and Kalenjin people and make them believe they were all being persecuted by Western “imperialists”. The mobilisation is done through fictitious prayers for the ICC suspects. At these so called prayers extremely inflammatory language is used to tear the country apart.

The country’s internal security agencies have been unusually quiet about the conspicuous mobilisation of the people. The silence is reminiscent of the little action that was taken against hate speeches used during the 2007 election campaigns. It is the hate speeches that led to the PEV which saw bloodbath in the country.
As the campaigns against the ICC gain momentum not a word is spoken by anyone about the fate of the Internally Displaced People (IDPs) made homeless by the PEV. Because they will be a major issue in the next general elections, all presidential candidates are likely to come up with some formula of resettling the IDPs still living in camps. Few will however believe the promises made by the G7politicians who have been in power for almost five years and did absolutely nothing to help the displaced people.

As Kenyans wait for the next general elections the country is dangerously divided along tribal lines. The divisions are even more threatening than they were just before the 2007 elections. If another bloodbath is to be avoided in this country, more serious steps need to be taken to not only implement the Constitution, but also to follow the provisions of the Political Parties Act which prohibits the formation of political parties along tribal lines.

It is also important that Kenyans get to know the actual date when elections will take place. Though Mwai Kibaki has expressed the wish to have them next year, the Prime Minister has read the mood of most Kenyans and expressed the wish to have them take place in December this year. The issue of whether or not Uhuru and Ruto can take part in those elections is pending before court at the moment. The sooner that judgement is made the better it will be for the country.

According to Justice Minister Mutula Kilonzo no one accused of crimes against humanity should be allowed to take part in any parliamentary or presidential elections. That is also the feeling of the majority of the people of Kenya today.

Kalonzo ejection exposes G7 hegemony

There is a dangerous hegemonic intolerance within the G7 leadership. Its ugly and real Frankenstein nature has now been exposed. The way in which Kalonzo Musyoka is being unceremoniously ejected from the amorphous G7, clearly shows that the Uhuru-Ruto stewardship is infested with extremely bigoted beliefs that only the two of them can determine for Kenyans who should take over the leadership of this country after Mwai Kibaki.

This is even when it is abundantly clear that none of them can be the country’s next President because they are, for all practical purposes, suspected criminals who don’t even qualify to contest for the top leadership of Kenya. With that in mind, they suspect Kalonzo’s pretended close relationship with them could only be based on the fulfilment of his political ambition of becoming the only acceptable alternative presidential candidate of the G7.

It may well be true that Kalonzo Musyoka is an unwelcome guest in the G7. It may also be true that Kalonzo’s presence in the group is anchored on his own hidden ambition to take over from Kibaki by “slipping through” Uhuru and Ruto. But whichever way one looks at Kalonzo’s association with the G7, his presence in the group strengthens it with millions of Kamba votes. The Kikuyu-Kalenjin power structure is a weaker entity without Kalonzo. Indeed the desired KKK strategy to take over the leadership of this country through tribal grouping remains a mere dream without the Kamba leader.

What therefore is the true reason for all the bitterness against Kalonzo? Between Uhuru and Ruto, it is the former rather than the latter, who speaks with bitterness whenever he makes references to the VP’s political ambitions. He can simply not swallow the idea of being born the undisputed prince of the House of Mumbi, and therefore the unquestionable heir to the Kikuyu throne, ending up in jail and an insignificant Kamba commoner taking over Kenya’s presidency. To him that position is his birth right.

On the other hand Ruto sees Kalonzo as a dangerous but very necessary enemy. If he ends up in jail the young Kalenjin leader doesn’t really care who takes over the leadership of Kenya as long as that person is not Raila Odinga. Indeed if Kalonzo were to succeed Kibaki the Kalenjin would still manage to get many important positions in the central Government as they would still control the majority of the counties in the Rift Valley which is, by and large, the bread basket of this country. No government can survive without feeding its people.

If, by a miraculous eventuality, Ruto and Uhuru find themselves free to contest Kenya’s presidency, then the two of them can mutually be expected to kiss their relationship goodbye as none of them is really prepared to step down for the other to become Kenya’s next president. The latent animosity between the two is clearly noticeable whenever they address public meetings in the Rift Valley and in the Central Provinces. When they are in the Rift Valley, Ruto is treated by the crowd as the undisputed G7 presidential candidate to face Raila Odinga; and whenever they are facing a Central Province crowd, Uhuru becomes the undisputed candidate. That is why they are not prepared to form one single political party that would unite them as a team.

Each one of them has his own political party and there is no possibility at all that one of them will step down for the other. The idea of them forming the next government as a team is merely building castles in the air and a crowd pulling gimmick. Now they are paddling in the same canoe because they are facing more or less the same criminal charges at the ICC and the purpose of the so called joint prayer meetings is to politicize the cases by mobilizing Kikuyus and Kalenjins by making them feel that their entire communities are facing the criminal charges in The Hague.

If and when Uhuru and Ruto are free to seek presidential ticket from their different political parties, they will all be visiting Ukambani separately to look for votes. At that time they will wish they did not mistreat Kalonzo as they are doing at the moment. But Kalonzo is not as weak as he appears to be. His strategy was indeed to use both Uhuru and Ruto as stepping stones to State House. Now that he has been discovered he must have a plan “B” that will still make him a presidential candidate.
If by that time Uhuru and Ruto will be barred from contesting, Kalonzo will still claim to be their friend who will probably promise to drop all charges against them when he becomes the President.

He will claim he was the only man who went round the world trying to get the case in The Hague transferred to Kenya. If at that time Uhuru and Ruto will have identified a puppet candidate to face both Raila Odinga and Kalonzo Musyoka the puppet’s popularity will be so insignificant because whoever they choose to be their dummy will neither command the total respect of the Kalenjins nor that of the Kikuyus.
Kalenjins want Ruto to be the next president not a puppet chosen by him; and the Kikuyus want Uhuru Kenyatta at State House but not a puppet chosen by him.

If Ruto and Uhuru don’t run in the next election because of the provisions of Chapter Six of the new Constitution, then the race to State House will indeed be between Raila Odinga and Kalonzo Musyoka. There is no way Musalia Mudavadi can get the ODM ticket and if he pulls out of the party he will have committed the final political suicide and he knows it.

When all is said and done the politics of personalities will come to a natural end the moment ODM officially nominate Raila Odinga as its candidate and he names Musalia Mudavadi as his running mate. That is when politics in this country will change as ODM insists on debating on issues during campaigns instead of personalities. The millions of unemployed young Kenyans who will determine the future leader of this land will massively back the party of policies and dump the demagogues of tribal gansterism.