ICC: Kenyans want justice

There is something very hypocritical about the leadership of Uhuru Kenyatta and William Ruto. They have been going round the Rift Valley and Central provinces urging people to “pray” for them before they left for the Hague to face criminal charges for the 2007/8 PEV. Yet they very cleverly failed to tell the people the causes of the violence that saw the death of well over 1,300 Kenyans and made well over 500,000 wananchi homeless.

Throughout the so-called prayer meetings not a word was mentioned about the fate of thousands of Kenyans still living in tents. There are Kenyans who have been unfortunate enough to be born in these camps. Uhuru and Ruto were quite happy to spend millions of shillings organizing fake prayer meetings to mobilize Kikuyus and Kalenjins against other Kenyans, when innocent Kikuyu and Kalenjin babies, born in the refugee camps, have no proper homes. And this because of the 2007/8 PEV caused by people who either wanted to grab political power or retain it. Luis Moreno-Ocampo thinks Uhuru and Ruto were among those people and that is why he has forced them to appear before the ICC.

Yet evidence shows that Uhuru and Ruto are not repentant at all. Given another chance they would still mobilize their Kikuyu and Kalenjin followers to cause havoc in this country, if they can’t get away with the alleged crimes they committed the last time Kenya went through a general election. Indeed they are now threatening to join hands and form a tribally inspired political party to win next year’s election under the KKK/PNU banner disguised as a political party they intend to form.

Fortunately the majority of Kenyans, including some very nationalistic Kalenjins and Kikuyus, can see through the new political ploy to mislead them. Kenyans know tribal political parties can only lead to yet another tribal confrontation. The wananchi today are so politically mature that they attended the Ruto-Uhuru “prayer” meetings in large numbers as they overwhelmingly supported Moreno-Ocampo’s charges against the two suspects.

The proof of this fact is the result of the latest opinion poll conducted by the respected Synovate research company whose objective was to establish Kenya’s level of awareness of the six post election violence suspects summoned to The Hague. The company explained that its other objective was to determine Kenyans’ preferred justice options for them as well as for other possible post-election violence suspects; to ascertain Kenyans’ views towards the recent ‘shuttle diplomacy’ efforts and to compare the positions of the followers of the main political ‘groupings’ currently in the country with regard to several of the above findings.

Realising that the Ruto-Uhuru camp will be the first to dispute the findings of the survey the company made special efforts to explain its methodology which it said had the the target population of all Kenyan adults aged 18 and above (voting age). The methodology included a sample size of 2,000 respondents which was drawn using a 32:68 urban to rural ratio. According to the company the margin of error attributed to sampling and other random effects of this latest poll’s sample size was +/- 2.2 % margin at 95% confidence level. This sample size, the company said, is large enough to make reliable estimates on the target population opinion. The fieldwork for this survey was conducted between 27th March-1st April, 2011.

To achieve this sample, Synovate explained, a randomized multi-stage stratified design using probability proportional to size (PPS) was used. This, it explained, ensures that districts with a higher population size had a proportionately higher sample size allocation. This survey was conducted in 56 administrative and geographical districts in Kenya. It also explained that the interviews were done at household level. Household interviews were preferred because they allowed for pure random sampling ensuring full representation of the various demographics and also for quality control.

In very plain words Synovate explained that these face-to-face in-home interviews were also preferred because they allowed for further probing as respondents had more time to respond to questions as compared to street interviews. It elaborates that the households were selected using the systematic random sampling procedure. In this case a random starting point was selected within a cluster of households. Synovate explained that from that point the interviewers mainly skipped 4 households until the sample size for that cluster in the district was achieved.

Making sure that the methodology was indeed transparent the company made it clear that one eligible respondent was then selected from each qualifying household through a household member randomization technique known as the Kish Grid. This, according to the company, was done to ensure that there was no bias related to household member selection. In cases where the eligible respondent was not available for interviewing, the field interviewers made at least 3 callbacks. If after the third callback the required respondent was still not available for the interview, the field interviewer substituted that household for another.

Synovate says the data collection involved the use of a semi-structured questionnaire having both open and closed ended questions. It says the poll questions were structured in a very open manner, with all possible options provided, including no opinion. This, according to the company, ensures that there is no bias at all with the way the questions are asked. In explaining the methodology Synovate concludes that strict quality control measures for data collection were applied. It verifies that the fieldwork supervisors made a minimum of 15% on-site back checks and accompanied a minimum of 10% of all interviewers’ calls, while the field managers made 2% back-checks.

These back-checks were made within the same day of interviewing.
With that very concrete explanation of the methodology Synovate then authoritatively says 61 per cent of Kenya would prefer trial in The Hague by the ICC if the ICC rules that they go forward. Only 24 per cent of the Kenyans prefer trial by a to- be- established special tribunal with international participation , even if this takes one full year to prepare. The company found that a pathetic 8 per cent of wananchi preferred the trials to be conducted by our regular court system. Those who thought there should be no trials and instead have amnesty and forgiveness were only 3 per cent.

That kind of finding clearly indicates that Kenyans are determined to have justice done and be done through a court that has international recognition which is truly independent. The huge attendance at the so called prayer meetings were an exercise in curiosity to find out what tricks the so called Kenyans leaders were up to this time. It also means when Uhuru and Ruto come back from The Hague and try to establish a tribal political party, it will hopelessly be rejected by the people.

As usual the one internationally respected leader who understands the feelings of the people of Kenya is the former UN secretary General Kofi Annan who very wisely advised all Kenyans, particularly leaders, to be wise in their use of language at this critical moment when the process regarding the case of six Kenyans before the International Criminal Court is running its course. In a statement issued on the 5th of April the Ghanaian leader said the procedural phase which begins this week was not a one-off event, but the start of a long process.

He said in any contentious judicial proceeding, tense moments will arise, which will test the patience of the parties but on the eve of the departure of the individuals summoned by the ICC to The Hague, “there is palpable tension in the air in Kenya, with the flames of hate language and ethnic incitement being fanned from various quarters.”

Annan wisely said words could soothe, as well as inflame and urged all Kenyans, particularly leaders, to be wise in their use of language at this critical moment. The respected leader who helped establish peace in Kenya when we were cutting each other’s throats urged wananchi to recall how Kenya pulled itself from the brink in early 2008 and embarked on a comprehensive process of reform, national healing and reconciliation. He said Kenyans were resolved to hold accountable the perpetrators of the post-election violence, just as they were determined to see genuine and far-reaching reforms instituted, as evidenced in the promulgation of the new Constitution on 27 August 2010.

According to Annan these are unprecedented achievements for Kenya and they should not be squandered. He also emphasized that neither Africa, nor Kenya, nor any ethnic group was on trial at the ICC. When he was in Kenya in December 2010, for the meeting to review progress in the implementation of the Kenya National Dialogue and Reconciliation agreements, he had stressed that bringing to justice those responsible for the post-election violence was essential to help Kenya heal its wounds, and prevent such crimes from being committed again.

He said: “In doing so, we must understand that no single community or group is being targeted. It is about bringing individuals to account for crimes they may have committed and ensuring that the victims receive justice.” After all, justice was an essential component of the process of healing. The former UN boss said at this critical juncture, Kenyans, their leaders and the political elite must renew their commitment to the achievement of these goals, and abandon the language of hate and incitement and allow the ICC process to run its course.

Throughout the reform process, he said, the media and media owners had played a responsible role and he encouraged them to continue to do so. According to him a Kenya free of hate and fighting impunity will be a united and secure Kenya – a country that will prosper and ensure the welfare of all its people. With those very moving words, Annan was speaking for all Kenyans of goodwill.

ODM’s referral best option

There is no hope in hell for the Ocampo Six to escape the ruling of the judges of the ICC’s pre trial chamber II. Even with Judge Hans-Peter Kaul claiming the six’s alleged offences do not meet the ICC requirement for crime against humanity, the chances are that in the final analysis they will have to answer some charges before either an ICC court or a locally established one.

In other words there are remote chances of the six being acquitted before some form of trial takes place. Since the deferral attempts have been thrown out of the window at the Security Council’s informal meeting, the only way for the accused Kenyans to be given a fair trial is through the guidance of both the Rome Statute and the International Crimes Act of 2008. There is no way Judge Hans-Peter Kaul’s dissenting view can get the Kenyans off the hook.

Making his position known before concluding that no crimes against humanity were committed in Kenya, Judge Kaul confessed that he had taken that position with a heavy heart. He said he was profoundly aware of the crimes and atrocities described in the application for summonses to appear for the three suspects William Ruto, Henry Kosgey and Joshua Sang , pursuant to article 58(7) of the Statute through which Moreno–Ocampo requested that the Pre-Trial Chamber issues summonses for the six suspects.

Though Kaul opposed the move, the summonses were eventually issued and that is why the Kenyans are preparing to go to The Hague. While clarifying his position, Kaul said he understood and sympathized with the hopes and expectations of the victims of the crimes committed in different locations, including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas and Yamumbi), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts. He said he was aware of the victims' expectation that those responsible for these crimes should be brought to justice.

Kaul said: “I am also painfully aware that there are currently many citizens in the Republic of Kenya who hope for and support the intervention of the Court in this country because they do not have confidence in their own criminal justice system.”He said in these circumstances, he would like to reiterate his request to all those in the Republic of Kenya who yearn for justice and support the intervention of the ICC with regard to the crimes alleged in Moreno-Ocampo's application to understand and accept that there were, in law and in the existing systems of criminal justice in this world, essentially two different categories of crimes which were crucial in the present case.

According to him these were, on the one side, international crimes of concern to the
international community as a whole, in particular genocide, crimes against humanity, and war crimes and on the other side there were, common crimes, albeit of a serious nature, prosecuted by national criminal justice systems, such as that of the Republic of Kenya. The judge believed a demarcation line must be drawn between international crimes and human rights infractions; between international crimes and ordinary crimes; between those crimes subject to international jurisdiction and those punishable under domestic penal legislation.

Consequently Kaul had no doubt that the crimes alleged by Moreno-Ocampo against William Ruto, Henry Kosgey and Joshua Sang fell within the competence of the criminal justice authorities of the Republic of Kenya as a matter to be investigated and prosecuted under Kenyan criminal law. That is not the same thing as acquitting Ruto, Kosgey and Sang. As a matter of fact the judge says he is satisfied that William Ruto made available guns, grenades and gas cylinders to selected perpetrators.

He says the evidence tends to show that William Ruto promised perpetrators monetary reward in exchange for the destruction of Kikuyu buildings and every Kikuyu person killed. The judge also says he is satisfied that William Ruto was part of the coordinating efforts prior to the outbreak of the violence in Uasin Gishu and Nandi Districts between 30 December 2007 to the end of January 2008. According to him the evidence also tends to demonstrate that Henry Kosgey promised the perpetrators immunity for the crimes. He noted that the Moreno-Ocampo made no allegation of Joshua Sang's involvement in the Military Branch.

But the dissenting Judge believes that Kass FM was used as a communication channel by the Kalenjin audience to express inflammatory remarks and discriminatory views against non-Kalenjin communities. He said information was also available that messages were broadcasted on Kass FM for the erection of roadblocks. These being the views of dissenting judge at the pre-trial Chamber II, he cannot be of much use to the Ocampo Six except for the fact that he believes the whole allegations against the suspects are not serious enough to fall under the jurisdiction of the ICC.

So far the Government of Kenya has never claimed that the Ocampo Six were really innocent people. What the Kibaki faction of the Government wants is to be given an opportunity to try the suspects locally. Since the deferral attempts have failed then what remains on the table is ODM’s suggestion of a referral. According to the Rome Statutes issues of referrals are to be found in Article 14 which says that a State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

It also says as far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.And as far as Section Four of the International Crimes Act of 2008 is concerned the provisions of the Rome Statute shall have the force of law in Kenya in relation to the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests; the conduct of an investigation by the Prosecutor or the ICC; the bringing and determination of proceedings before the ICC; the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters. According to the Kenyan law the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests shall be guided by the Rome Statute.

This being the case it seems Kenya can do very little to disentangle itself from the ICC whether the trials take place in The Hague or in this country. Rather than politicizing the expected trials and connecting them to the next Presidential elections , Kenyan politicians would prove to all the voters in this country, and indeed to the international community , that they mean business in bringing about true justice for all if they simply obeyed the law. Any attempt to take illegal shortcuts and protect the suspected Ocampo Six will only be seen by the majority of Kenyans, backed by the international community, as the extension of crimes committed against innocent Kenyans after the 2007 elections.

PNU admissibility challenge hopeless

PNU/KKK determination to avoid Luis Moreno-Ocampo’s charges at the ICC in The Hague appears to be facing a flop. To begin with the coalition Government still does not see eye to eye on the deferral issue. Whereas the PNU/KKK group is talking of the deferral, ODM still prefers referral. The terms are both found in the Rome Statute and they don’t men the same thing.

Article 16 which deals with the deferral of investigation or prosecution says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that request may be renewed by the Council under the same conditions. After meeting informally the Security Council rejected the PNU/KKK request for the deferral of the Kenyan case at ICC.

The only hope for the KKK/PNU to save the six suspects from the charges is by the use of admissibility challenges. The issue of admissibility is to be found in Article 17of the Rome Statute which basically says though the ICC is expected to be complementary to national criminal jurisdictions, it is nevertheless a permanent institution that has the power to exercise its jurisdiction over persons for the most serious crimes of international concern while the jurisdiction and functioning of the Court shall be governed by the provisions of the Rome Statute.

It also says a case is inadmissible where it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. The fact of the matter is that PNU/KKK faction of the coalition Government has indeed been very unwilling to have the six suspects investigated let alone to have them prosecuted.

Among the suspects are Kenya’s most powerful people in the Government such as the Head of the Civil Service, Francis Muthaura, and the Deputy Prime Minister, Uhuru Kenyatta. These two people can be said to be mainly responsible for Kibaki’s total unwillingness to cooperate with Luis Moreno-Ocampo in seeing justice being done to hundreds of thousands of IDPs still living in torn tents while depending on donations from the Red Cross.

Though the Government is now trying to create a picture of establishing credible institutions that will conduct investigations, such investigations can never be conducted before the police force has been reformed. Reforming the police force in Kenya is almost an impossible task because it is being protected by the most powerful individuals within the PNU/KKK factions of the Government.

According to the Rome Statute a case is also inadmissible where it has been investigated by the State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. In the Kenyan situation no investigation what so ever has been done on the six suspects so the issue of not prosecuting them as a result of such an investigation does not arise. It is common knowledge that the PNU/KKK faction of the coalition Government is adamantly, and may be even arrogantly, refusing to accept the fact that the Ocampo Six are suspects at all.

As far as the local prosecution of the six is concerned the PNU/KKK faction of the Government is not only unwilling to conduct the investigations and prosecute the suspects, it is in fact absolutely incapable of doing so as neither the police force has been reformed nor has the local independent tribunal of international standards been established. The Kenyan case would also have been inadmissible if the six had already been tried for conduct which is in the subject of the complaint.

In that case the trial by the ICC would not have been permitted because the Rome Statute clearly says no person who has been tried by another court for crimes against humanity shall be tried by the ICC with respect to the same crimes unless the proceedings in the other court were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

This clearly means even if the PNU/KKK faction of the coalition Government succeeds in getting a deferral, the suspects would still be subjected to proper prosecution and trial that is of internationally accepted standards. ICC also determines a case to be inadmissible if the case is not of sufficient gravity to justify further action by the Court. This is where PNU/KKK’s hope lies. It will mainly depend on the dissenting opinion by Judge Hans-Peter Kaul to Pre-Trial Chamber II. In his ruling the Judge believed the case against the Kenyan accused was not strong enough. What is to be noted about that opinion, however, is the fact that he did not think the six were innocent. All he differed about was the strength of the case against the six.

According to the Rome Statute in order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the proceedings, for example, were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court. Again this will make stage managed trials almost impossible to take place in Kenya.

The court also looks at the issue of whether there has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice. It also looks at whether the proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.

The Statute says that in order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. The present judicial system in Kenya is not, when all is said and done, very different from that. Which means PNU/KKK admissibility challenges are likely to be very weak indeed.

Muthaura is a threat to stability

The longer Francis Muthaura remains in office the greater the danger of instability becomes in the country. Nothing exposes this sad reality more than the February 28, 2011, secret letter to the ICC President, Christian Wenaweser, by Kenya’s Permanent Representative to the United Nations, Ambassador Macharia Kamau. Either unwittingly or through sheer stubbornness, the letter claims that without Muthaura in office there can be no Government worth talking about in Kenya. It also clearly suggests that Muthaura is the one man who stands out as the most dependable pillar of Kenya’s stability.

To begin with the chances of a comparatively junior diplomat of Macharia’s status writing authoritatively about the shape and structure of the Government of Kenya without the knowledge of the Head of the Civil Service are extremely remote. It is therefore very likely that the real author of such a threatening letter to the ICC was in fact none other than Francis Muthaura himself. His aim was to spell out the dangers of charging him with criminal offences when he was in a position to destabilize not only the Government of Kenya but to create havoc to the stability of the entire region.

No sooner was Macharia’s letter received at the ICC than Moreno-Ocampo revealed his plan to write to President Mwai Kibaki asking him to relieve Muthaura of his job before the PEV cases begin in The Hague. Obviously the prosecutor’s concerns are based on the threats in Macharia’s letter which ,among other things, say the civil servants accused by the ICC are in office and “charged with the responsibility for peace and security”.

The fact of the matter is that there are only two civil servants charged with criminal offences by Moreno-Ocampo: Hussein Ali, who is the Post Master General and today has nothing to do with any security matter; and Francis Muthaura, who chairs the National Security Advisory Committee and knows everything about security matters in Kenya. The innuendo in Macharia’s letter is that with Muthaura behind bars security in the country would be put in jeopardy.

Indeed there is no need to bother scrutinizing that hidden interpretation of Macharia’s letter because he openly says: “The pending ICC indictments pose a real and present danger to the exercise of government and the management of peace and security in the country.” That is a very bold statement to come from a simple ambassador like Macharia. Where did he get the impudence to state openly that the exercise of Government would be jeopardized by the prosecution of Francis Muthaura? When did Muthaura become the same thing as the Government of Kenya? Is this the thinking of Macharia or of Muthaura himself?

Without mentioning their names, Macharia refers to Ruto and Kenyatta as the “front runners” in the next presidential elections which exposes the writer’s ignorance about the real picture of political situation in the country. According to him if the ICC trials go on as planned there is sure to be more bloodshed and instability in Kenya. If Macharia is expressing Muthaura’s points of view concerning the pending cases and the next presidential elections then an extremely sinister scheme to cause problems in this country has been exposed by the threatening letter.

This threat alone, whether it comes from Muthaura or from Macharia, should be enough reason for President Kibaki to suspend or even sack Muthaura while the case against him is still pending in The Hague. The taste and tone of the letter is meant to tell the ICC to drop the case against Muthaura or push the country in a dangerous situation of civil war. Macharia is asking the ICC a question that clearly exposes his intention. He says: “Is the rush to undertake a pre trial process in the political climate of Presidential campaign worth the risk of destabilizing the country and a return to violence and loss of life in Kenya?”

Reading between the lines in that question clearly indicates that Muthaura and Macharia know something the rest of us don’t. That question however explains the reasons why Ruto and Uhuru have started their presidential campaigns so early. It also explains the reasons why their language has been both rough and provocative in the said campaigns.

Macharia’s letter also threatens the entire process of the implementation of the new Constitution. By suggesting that what President Obama described as “significant step forward for Kenya’s democracy” is being subverted by the ICC action right now, Macharia and Muthaura are letting the cat out of the bag that if the case against Muthaura is not stopped the entire process of implementing the new Constitution may be subverted. The simple question to ask after that threat is: Who will subvert that process? From now on Kenyans should be extra vigilant and lookout for MPs who will be deliberately subverting the efforts to implement the new Constitution.

Already the country is witnessing the renewal of Mungiki criminal activities. In Embakasi constituency, for example, they are said to have the blessings of their local MP, Ferdinand Waititu, to continue harassing matatu owners. Are these heightened Mungiki crimes related to the Muthaura/ Macharia threats to the ICC? Why are the police forces not doing anything to protect the wananchi from Mungiki harassment? Is this sin of omission by the Police part of the Muthaura/Macharia threats?

Macharia’s letter to the ICC is also threatening peace and stability in the entire region of East Africa. He admits that at this late stage the country could not get a referral from the ICC by the use of article 19 of the Rome Statutes. That part of the Statutes is on challenges to the jurisdiction of the court or the admissibility a case. It deals with referral issues in situations in which a State can prove that it has adequate local mechanisms to try cases of crimes against humanity at an acceptable international level. Macharia admits Kenya does not have such judicial facilities and blames Attorney General Amos Wako for that weakness.

For this reason Macharia was seeking a 12 month reprieve from the United Nations Security Council in accordance with Article 16 of the Rome Statutes which says no investigation or prosecution may be commenced or proceeded with under the Statute for a period of 12 months after the Security Council has requested the Court to that effect. It also says that that request may be renewed by the Council under the same conditions. May be it was because of the taste and tone of the letter that the Security Council refused to accept Macharia’s request.

The major reason for Macharia’s request, according to his letter, was to help facilitate the implementation of the new Constitution, the transformation of governance structure as well as the judicial and police systems, while helping “avert potential violence and chaos in Kenya and the East African region at large.” That was the most shocking threat to peace and stability that has ever been made by someone holding a top job in the Government.

The letter did not say what Kibaki’s faction of the Government was doing to stop the potential violence. Indeed Macharia and Muthaura were in fact warning that if the case against the Kenyan suspects, particularly Muthaura, is not stopped, there would be a breakout of chaos in the country and the entire region. In other words, Muthaura is now a threat to peace and stability.

Ruto, Sang and Kosgey culpable

There is a very strong case against William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang at The Hague. Count One of murder constituting a crime against humanity alleges that from 30 December 2007 to the end of January 2008, the three, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of murder in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.

Article 7(1) of the Rome Statute is about Crimes against humanity and says for the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender , or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; Enforced disappearance of persons; The crime of apartheid; and Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Count two of Deportation or forcible transfer of population constituting a crime against humanity alleges that the three from 30 December 2007 to the end of January 2008, as co-perpetrators, or in the alternative, as part of a group of persons acting with a common purpose, committed or contributed to the commission of crimes against humanity in the form of deportation or forcible transfer of population in locations including Turbo town, the greater Eldoret area (Huruma, Kiambaa, Kimumu, Langas, and Yamumbi ), Kapsabet town and Nandi Hills town in the Uasin Gishu and Nandi Districts, Republic of Kenya in violation of Articles 7( l ) (d) and 25(3)(a) or (d) of the Rome Statute.

Article 25 of the Rome Statutes is on individual criminal responsibility and says the Court shall have jurisdiction over natural persons pursuant to this Statute. It says a person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute. It adds that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.

According to the Status such contribution shall be intentional and shall either be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or be made in the knowledge of the intention of the group to commit the crime; in respect of the crime of genocide, directly and publicly incites others to commit genocide.

The Rome Statutes also says attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

Count three is on Torture constituting a crime against humanity and claims that from 30 December 2007 to the end of January 2008, the three as -perpetrators, or in the alternative as part of a group of persons acting with a common purpose , committed or contributed to the commission of crime against humanity in the form of torture by inflicting severe physical and metal pain or suffering upon civilians , in locations including Turbo town , the greater Eldoret area ( Huruma, Kiambaa and Langas) Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts , Republic of Kenya in violation of Articles 7(l)(f) and 25(3)(a) or (d) of the Rome Statute.

Count four is on Persecution as a crime against humanity which alleges that the three as co-perpetrators, or in the alternative as part of a group of persons acting with a common purpose , committed or attributed to commission of crime against humanity in the form of persecution . when co-perpetrators and/or persons belonging to their group intentionally and in a discriminatory manner targeted civilians based on their political affiliation, committing murder, torture, and deportation or forcible transfer of population in locations including Turbo town , the greater Eldoret area (Huruma , Kiambaa, Kimumu, Langas and Yamumbi), Kapsabet town and Nandi Hills town in Uasin Gishu and Nandi Districts , Republic of Kenya in violation of Articles 7(l)(h) and 25(3)(a) or (d) of the Rome Statute.

According to the ICC press release the Chamber found that there were reasonable grounds to believe that, immediately after the announcement of the results of the presidential election and specifically from 30 December 2007 until the end of January 2008, an attack was carried out in locations including Turbo town, the greater Eldoret area (encompassing Huruma, Kiambaa, Kimumu, Langas, and Yamumbi), Kapsabet town and Nandi Hills town, in the Uasin Gishu and Nandi Districts, Republic of Kenya.

The Chamber further found that there were reasonable grounds to believe that the attack targeted the civilian population namely, the Kikuyu, Kamba and Kisii ethnic groups, which were perceived as PNU supporters. There were also reasonable grounds to believe that the attack against the civilian population was widespread, as evidenced by the number of victims subjected to the attack and those who had been displaced or had taken refuge as a result of such attack, in the different locations targeted, as well as the amount of burning and destruction of properties.

The release said there were reasonable grounds to believe that the violence in the Uasin Gishu District (encompassing Turbo town and the Eldoret area) resulted in burning and destruction of 1475 houses, death of approximately 230 and 505 injured persons and the displacement of 7,800 persons. In the Nandi District (encompassing Kapsabet town and Nandi Hills town), the attack ended in the death of 7 persons and the injury of more than 500. A number of houses and business premises were also looted and burned. The perpetrators left three people dead on 8 January 2008 .

It said the Chamber was of the view that there were reasonable grounds to believe that the network had the capability to perform acts which infringed on basic human values. According to the material presented by Luis Moreno-Ocampo there were reasonable grounds to believe that the network was under responsible command and had an established hierarchy, with Ruto as leader, Kosgey as deputy leader and treasurer and Sang as responsible for communicative purposes.

The Chamber’s arguments in favour of charges against the three are based on very solid evidence based on eyewitness accounts of the victims. It will therefore be extremely difficult for the Attorney General Amos Wako and Justice and Constitutional Affairs Minister Mutula Kilonzo to argue against the admissibility of the case at The Hague. The fact that there are already two judges, Ekaterina Trendafilova and Cuno Tarfusser, who believe Moreno-Ocampo’s case against the Kenyans is strong enough to summon the suspects to The Hague to face criminal charges, proves that the evidence against Ruto, Sang and Kosgey is strong enough to prove them culpable of crimes against humanity.

It is absolutely ridiculous that the PNU/KKK alliance is campaigning in different parts of the world seeking international support for the deferral of the cases against the Ocampo Six when at the same time the PNU part of the Government is planning to challenge the admissibility of the cases at The Hague. The Kibaki faction of the Government cannot challenge the legal status or the powers of the ICC which is very well defined in Article Four of the Rome Statute.

That part of the Rome Statute clearly says the Court shall have international legal personality. It says it shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. The Rome Statute says the Court may exercise its functions and powers on the territory of any State Party and, by special agreement, on the territory of any other State. Which means the ICC could conduct the trials right here in Kenya if it so wished.

The other part of the Rome Statute that Mutula and Wako are threatening to challenge concerns admissibility of the two cases. This issue is to be found in Article Five of the Rome Statute which says the jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. It says the Court has jurisdiction in accordance with the Statute with respect to the crime of genocide; crimes against humanity; war crimes; and the crime of aggression.

The arguments presented before the Chamber by Moreno-Ocampo prove beyond any reasonable doubt that crimes against humanity were committed in Kenya during the PEV. Indeed thousands of Kenyans are still living in IDP camps when the Government is spending so much money in useless shuttle diplomacy by Vice President Kalonzo Musyoka. The so-called shuttle diplomacy is bound to bear no fruits as the State Department has publicly declared it will never back it because it is so obviously fictitious and only intended to support impunity in Kenya.

Rather than challenge the admissibility of the two cases at The Hague the Kibaki faction of the Government would do much better by pleading with the two judges to give Kenya more time to establish a local tribunal to try the suspects. To do so successfully the Government has to accept the fact that Ruto, Sang, Kosgey, Muthaura, Uhuru and Ali are indeed suspected criminals in the crimes against humanity that were committed in Kenya soon after the 2007 elections.

That is the only way they can convince the ICC to have a deferral of the cases. But first Kibaki must fire Muthaura , Uhuru and Ali.

Uhuru, Muthaura and Ali must go

Now that the International Criminal Court has issued summonses for the Ocampo Six to appear before it and answer criminal charges concerning the post 2007 election violence, there is no point in Uhuru Kenyatta, Francis Muthaura and Hussein Ali continuing to hold public offices. It is about time they had the decency to resign or be shown the door by President Mwai Kibaki.

According to the Press Release by the ICC the Pre-Trial Chamber II, where Luis Moreno-Ocampo’s plea to have the six charged were made, found reasonable grounds to believe that Ruto and Kosgey are criminally responsible as indirect co-perpetrators (i.e., committing crimes through another person(s) in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer and persecution committed in some locations in the Republic of Kenya and during the time-frame specified in the Prosecutor’s application.

The Chamber, however, found that there were no reasonable grounds to believe that Sang was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential. Instead, the Chamber was satisfied that there were reasonable grounds to believe that Sang otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. As to the count of torture, the Chamber did not find reasonable grounds to believe that acts of torture were committed.

According to the release the Chamber found reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators in accordance with article 25(3)(a) of the Rome Statute for the crimes against humanity of murder, forcible transfer, rape, persecution and other inhumane acts. The Chamber, however, found that there were no reasonable grounds to believe that Ali was an indirect co-perpetrator, because his contribution to the commission of the crimes was not essential.

Instead, the Chamber was satisfied that there were reasonable grounds to believe that Ali otherwise contributed to the commission of the crimes in accordance with article 25(3) (d) of the Rome Statute. Finally, the Chamber found no reasonable grounds to believe that, in relation to Kisumu and Kibera, the alleged perpetrators committed the said crimes.

When Moreno-Ocampo first accused Muthaura, Ali and Uhuru, Mwai Kibaki claimed that the three could not be asked to step down from the positions they held since the allegation by Moreno-Ocampo were just that- allegations. But today they are a little bit more than allegations. They have been examined by Pre-Trial Chamber II, which had the powers to either reject Moreno-Ocampo’s claims or accept them, and found to have enough grounds on which to place charges against the accused.

It so happens that two judges out of three agreed that there were enough grounds to summon the suspects before the ICC and place charges against them. The two are Judge Ekaterina Trendafilova and Judge Cuno Tarfusser. According to the release the third judge, Hans-Peter Kaul, disagreed with the other two in both cases on the question of whether the crimes alleged amounted to crimes against humanity under the jurisdictional ambit of the Court.

The release said he held that Moreno-Ocampo had failed in both cases to establish reasonable grounds to believe that the crimes were committed pursuant to or in furtherance of the policy of an organization within the meaning of article 7(2)(a) of the Rome Statute which describes crimes against humanity.It said Hans-Peter Kaul believed that the Court lacked subject-matter jurisdiction in the situation in the Republic of Kenya, including both cases. It also said the dissenting opinions would be issued in due course.

It is absolutely ridiculous that Uhuru, Muthaura and Ali continue to hold public offices as Deputy Prime Minister and Minister for Finance,the Head of Civil Service and Post Master General, when the Pre-Trial Chamber II at The Hague believes that from on or about 27 December 2007 to 29 February 2008, they committed or contributed to the commission of crimes against humanity, namely the murder of civilian supporters of the Orange Democratic Movement political party in or around locations including Kisumu town (Kisumu District, Nyanza Province), Kibera (Kibera Division, Nairobi Province), Nakuru town (Nakuru District, Rift Valley Province) and Naivasha town (Naivasha District, Rift Valley Province), Republic of Kenya, in violation of Articles 7(l)(a) and 25(3)(a) or (d) of the Rome Statute.

The Chamber also found that there were reasonable grounds to believe that from on or about 24 January 2008 until 31 January 2008, the Mungiki criminal organization carried out an attack against the non-Kikuyu population perceived as supporting the ODM (mostly belonging to Luo, Luhya and Kalenjin ethnic groups) in Nakuru and Naivasha. According to the material presented, the events in Nakuru resulted in at least 112 deaths, 39 reported cases of rape, at least five cases of forcible circumcision and the displacement of thousands of people. The Chamber found close ties between Uhuru and Mungiki.

What is shocking about the PNU/KKK reaction to all these serious allegations is the fact that they still want to send Kalonzo Musyoka and a team of Cabinet Minister to the United Nations to plea for the deferral of the cases against the six instead of making that plea at the Pre-Trial Chamber II. No one in the PNU/KKK camp is denying that the crimes were committed. All they are saying is that the trial for those offences should take place in Kenya even though the same group is frustrating every effort of establishing a credible local tribunal to try the cases.

The Chamber concluded that it was satisfied that there were reasonable grounds to believe that Muthaura and Kenyatta were criminally responsible as indirect co-perpetrators under article 25(3)(a) of the Statute and that Ali was criminally responsible as having contributed to crimes committed by a group of persons within the meaning of article 25(3)(d) of the Statute for a number of acts which constituted crimes against humanity committed from on or about 24 January 2008 until 31 January 2008.

These acts included murder committed in Nakuru and Naivasha within the meaning of article 7(1) (a) of the Statute. Forcible transfer of population committed in Nakuru and Naivasha within the meaning of article 7(l) (d) of the Statute. Rape committed in Nakuru within the meaning of article 7(1 )(g) of the Statute . Other inhumane acts committed in Nakuru and Naivasha within the meaning of article 7(l) (k) of the Statute. Persecution committed in Nakuru and Naivasha within the meaning of article 7(l) (h) of the Statute.

According to the release the Chamber decides to issue summonses to appear, pursuant to article 58(7) of the Statute, for the three persons, being satisfied that this measure was sufficient to ensure their appearance before the Court. Though the Government has indicated it intends to challenge the admissibility of these allegations the fact remains that Muthaura, Uhuru and Ali are facing criminal charges at The Hague. They can therefore not hold public offices while those charges are pending.

Kenyan coalition rocky but active

It is three years since Mwai Kibaki and Raila Odinga agreed to establish a coalition government to save the country from a downward trend towards a civil war. Today the examination of the success or failure of that Government can be done through a SWOT analysis that would indicate the strength, weakness, opportunities and threats challenging the fragile government.

Among the most significant achievements of the Kibaki-Raila Government is getting Kenyans to agree on a new Constitution with one of the best Bill of Rights in the world. The achievement of that goal, which was one of the most important objectives of Agenda Four, marks the establishment of the most noteworthy pillars of the coalition, without which there could have been no Government worth talking about in this country.

Yet the achievement of that goal was not an easy undertaking. Around both the President in PNU and the Prime Minister in ODM were political giants determined to wreck the new Constitution when it was still in its embryonic stages. Around Kibaki were Uhuru Kenyatta, John Michuki, Kalonzo Musyoka and the most powerful people who constitute the Clergy in this country. Around Raila were William Ruto and the most powerful land owners in the fertile Rift Valley.

All these people joined hands to form a formidable force opposed to the new Constitution mainly because of its Bill of Rights and Chapter Five on land. Those parts of the new Constitution threaten to take away the power concentrated in very few hands since independence and distribute it to the people on Kenya.

Long after the promulgation of the Constitution the tycoons of Kenya are still determined to torpedo it at every stage of its implementation. Yet Kibaki is still harbouring them in his kitchen cabinet. If there is any major challenge to the continued existence of the coalition Government in Kenya it is the continued presence of people determined to wreck the constitution in very important positions of the Government.

One of the strengths of the Kibaki-Raila coalition is the existence of Agenda Four as the yardstick to measure its achievements. Described as the long standing issues that have continued to pose serious social, economic and political problems in Kenya, Agenda Four suggests elaborate solutions to those problems. The regular monitoring by the international community of how Agenda Four is being implemented has given the coalition Government a collection of assignments to be achieved before its time elapses.

Every time Agenda four is reexamined the success or failure of the Kibaki Government can clearly be scrutinized. Among the most important items of Agenda Four include constitutional, legal and institutional reforms which have by and large been achieved though a lot has yet to be fulfilled. Other Agenda Four goals include tackling poverty and inequality, and combating regional development imbalances which are far from being achieved.

Tackling unemployment especially among the youth is yet another Agenda Four item that has yet to be achieved. Consolidation of national cohesion and unity can be said to have been implemented because the National Cohesion and Integration Act is in full force. The same, however, cannot be said about transparency, accountability and impunity which are still the nation’s most problematic headaches.

Another major strength of the Kibaki-Raila regime is based on the existence of a fairly educated population which is both hardworking and politically awake to its fundamental first and second generation human rights. Kenya’s integrated urban population can be said to be politically miles ahead of its leaders who are still bogged down on petty tribal rivalry. Indeed it is due to Kenyan population’s political maturity that the new Constitution was overwhelmingly supported by almost everyone across the country.

The coalition weaknesses include tribalism which still exists in the minds of parochial leaders who have always survived because of the existence of tribal animosity among various peoples of Kenya. Because of tribalism, alliances like the KKK have been established by William Ruto, Uhuru Kenyatta and Kalonzo Musyoka. The future of such alliances however appears to be very threatened due to political influence from the urban areas.

The most challenging weakness of the Kibaki-Raila regime will always be corruption, poverty, unemployment among the youth and greed among the so-called leaders. Though PLO Lumumba took over his anti-corruption job with a lot of vigour and dynamism that initial heartiness seems to be dwindling mainly because he started by stepping on too sensitive toes of political giants who must have hit back at him in a clandestine manner. Otherwise there is no plausible explanation for his abrupt silence which signifies unhealthy inactivity.

Among the opportunities confronting the coalition government is the fact that Kenya is the economic hub of the region. Whenever there is political stability in the country the economy improves to the advantage of many other countries in East Africa. These include Tanzania, Uganda, Burundi, Rwanda and now South Sudan. The importance of Kenya to this part of Africa makes the international community determined to maintain the political stability of the country.

With the international goodwill for Kenya extending to both the countries of the East and the West the economic stability of this country guarantees future prosperity of the entire region. Political insecurity in the Arab world, however, threatens the rise of oil prices that could endanger the economies of Kenya and of the countries around it. But if the Middle East countries become politically stable with the expected rapidity of the departure of despotism, Kenya and indeed the entire eastern Africa region, stands to gain from boosting of traditional trade between the Middle East and East Africa.

The threats facing the Rail –Kibaki regime include lack of truly well organized political parties that would see the country move from the current transition into the future in a smooth manner. Realizing the political metamorphosis the country is going through could push them into the disappearance from the political scene, the current political leadership is desperately trying to perpetuate the status quo by creating artificial wars between tribes. The existence of KKK alliance is a desperate attempt to unite the Kikuyus, Kambas and Kalenjins between now and the next general elections.

The KKK unity, however, cannot last long because within it are leaders who all expect to be Kibaki’s successors at the State House. Political parties that don’t have meaningful manifestos that would attract a large number of educated Kenyans will have no place in future politics of this country. The Kibaki-Raila regime will most certainly last until the next general election mainly because all the leaders in the current Government love their lucrative jobs so much that they would do anything to protect them. When the time for the coalition government officially comes to an end, the political confrontation that will take place in the country will be fierce and ferociously brutal. Only the fittest will survive and it will be the fittest that will get the support of the people.

Kibaki’s withdrawal betrays KKK

Kibaki’s withdrawal of the four names he had nominated for top constitutional offices can be viewed in at least four different ways. First it could be a futile attempt to save face after he inadvertently angered many local and international personalities and legal institutions; secondly it could be a genuine attempt to correct a terrible mistake following a horrible advice; thirdly it could be a tactful measure to buy more time to perfect plans to empower the President to unilaterally nominate candidates for important constitutional positions without the needed consultation with the Prime Minister. Fourthly the names could have been withdrawn after a clever plan to dupe the Prime Minister to accept the names of well known stooges of PNU, who would have helped to stage-manage local trials of the Ocampo Six, failed to materialize.

Of all the above possible reasons for Kibaki’s withdrawal of his nominations it is the last one which hits the KKK hardest. Their scheme to get a team of yes-men in important judicial positions before establishing a local tribunal to ostensibly try the Ocampo Six appear to have miserably flopped. By and large Kibaki’s withdrawal of the four names seems to betray the KKK alliance.

If Kibaki withdrew the names to genuinely correct a mistake he made following bad advice given to him then a major reshuffle should be expected soon among the President’s men. All those who misled the President will probably be shown the door in a quiet reshuffle that the public will be told nothing about.
That, however, is not likely to happen if the President made his withdrawal in the Dunkirk style.

If Kibaki made the about turn act simply to save face then he has stepped on very sensitive toes of very close friends who wanted to use him to achieve their lifelong ambition to both succeed him at State House and get away with the crime of mass murders they committed after the 2007 bloody elections. They will consider Kibaki’s withdrawal of judicial names as an act of betrayal for which they will probably never forgive him.

But the chances are that the withdrawal of the said names was part of a very well planned alternative route to follow when the first option failed. Needless to say the first option was to get a team of yes-men in important judicial positions before establishing a local tribunal to ostensibly try the Ocampo Six. Since that plan has aborted miserably then plan B must have been to tactfully withdraw the nominations.

The nominations of Appeal Judge Alnashir Visram as the next Chief Justice; Professor Githu Muigai as the next Attorney General; Kioko Kilukumi as the next Director of Public Prosecutions and William Kirwa as the candidate for country’s first Controller of Budget was probably a very well calculated exercise to test the waters and see whether or not Kibaki would get away with the unilateral recommendations.

It so happens that the Prime Minister was alert to the scheme and did not fall into the trap. With the hindsight of the debates and confrontations that surrounded the nominations there can be no doubt that Raila was indeed casually consulted before the final announcements were made when he was out of the country. The final list of the nominees had names of some people he had never heard of before. If he had kept quiet and accepted Kibaki’s nominations the trend would have continued. More appointments would have been made behind his back.

The new Constitution establishes ten commissions and two important independent offices. The commissions are the Kenya National Human Rights and Equality Commission; the National Land Commission; the Independent Electoral and Boundaries Commission; the Parliamentary Service Commission; the Judicial Service Commission; the Commission on Revenue Allocation; the Public Service Commission; the Salaries and Remuneration Commission; the Teachers Service Commission; and the National Police Service Commission. The independent offices are those of the Auditor-General; and the Controller of Budget.

That list contains a number of important jobs that still needs to be filled by the President after consulting the Prime Minister. If his experiment worked Kibaki would have filled all the important commissions and offices by casually consulting the Prime Minister. It is strange, for example, that he wants the offices of the Controller of Budget and that of the Director of Public Prosecutions to be filled through advertisements when that of the Attorney General, according to him, should be filled by consultations with the Prime Minister. The President is so annoyed with Amos Wako that he wants the AG out of office as soon as possible. The tough stand taken by the PM to have all jobs advertised has the backing of the people who now believe in transparency and accountability.

In more that one way Mwai Kibaki’s change of mind betrays the wishes of the KKK to have a local tribunal established as soon as possible to avoid going to The Hague. Though extremely bitter because of the President’s about turn act the KKK know the law is against them. Deep inside their hearts they are bitterly opposed to the new Constitution which is destroying their despotic powers faster than they imagined. It must now be extremely shocking to discover that the unilateral use of Executive powers as manipulated by the likes of Muthaura to implement unpopular policies is a thing of the past.

Now the only way they can stage a coup against the raising political star of the Prime Minister is through the use of their parliamentary numerical superiority through attempts to dominate in the important Parliamentary Select Committees. Their attempt to get rid of Ababu Namwamba as the Chairman of the Justice and Legal Affairs Committee quickly backfired when the ODM wrote to Speaker Marende seeking to replace Isaac Ruto and Sophia Abdi from the same committee. Because of the important roles the select committees in Parliament will be playing in interviewing nominees to important state positions, membership to these committees will be very crucial. Already there are signs of bitter party confrontations about the membership to these committees.

From the point of view of KKK’s growing influence in Parliament based of the large bloc they control, they can still do a lot of damage in rejecting people they don’t want in public offices. Technically, however, the ODM is officially the majority party in Parliament and it could still make sure that those who sit in the most important committees are only the loyal members of the party.

From now on a lot of arguments between political parties will be based on not only what is in the new Constitution but also what is in the Standing Orders of the National Assembly. Right now Standing Order number 159 which deals with the nomination of members of select committees will be constantly quoted in the current debate between ODM and PNU/KKK.

That Standing Order says unless otherwise provided by any written law or these Standing Orders, the House Business Committee shall, in consultation with parliamentary parties, nominate, for approval by the House, Members who shall serve on any select committee. Which means political parties will play a very important role in determining who will serve in these select committees.

All the same the political parties will also have to follow certain criteria in nominating the members to the select committees. According to Standing Order number 160 the nominations must reflect quite a number of things including the ethnic diversity. The Standing Order says in nominating Members to serve on any select committee, the House Business Committee shall ensure that the membership of each committee reflects the relative majorities of the seats held by each of the parliamentary parties in the National Assembly and Kenya’s ethnic, geographical, cultural, political, social and economic diversity; and shall give consideration to the need for gender balance.

Because the KKK lost face when Kibaki withdrew his nominations they now seem to have changed their tactics and taken the war against the Prime Minister to the select committees. The selection of membership to the select committees will from now on be based on party loyalty. The KKK will want to dominate the committees by joining hands with the rebel ODM members. As a party, the ODM itself will probably only select known loyal members to serve in the committees.

The struggle to dominate parliamentary committees means the war between ODM and PNU/KKK is far from over. Very soon the country will be taken through yet another drama of brinkmanship and grandstanding which will be done both in Parliament and in public political meetings. The scenario is not likely to change until the next general elections.

Marende spoils KKK plan

Speaker Kenneth Marende’s decision to reject President Kibaki’s four nominations to top constitutional positions has hit the KKK alliance where it hurts most. Their plan to set up a local tribunal to try the Ocampo Six locally and avoid The Hague has been completely obliterated. And they are now likely to turn all their anger over their wrecked scheme towards Marende.

The KKK’s wish to mobilize Parliament to accept Kibaki’s nomination fast was based on the hope that a local tribunal, formulated under the leadership of Justice Alnashir Visram as the Chief Justice and Kioko Kilukumi as the Director of Public Prosecutions, would be a mere puppet of the Executive. All the top KKK leaders were at one time loyal Nyayo disciples with very little respect for the independence of the Judiciary. All of them had top Cabinet posts when instructions from State House had to be followed by almost everyone on the Bench.

With those nostalgic beliefs in mind, the alliance was sure that the acceptance of Kibaki’s nominations would lead to a quick establishment of a kangaroo local court to try the Ocampo Six. A quick establishment of such a tribunal would silence both Luis Moreno-Ocampo and Western leaders, particularly President Barrack Obama, who is keen on seeing justice being done to hundred of thousands suffering PEV refugees in various IDP camps.

KKK’s bitter fight to have the nominations accepted was to make sure, if and when a local tribunal to try the Ocampo Six was established, it would not be managed by radical minded judicial officials short listed by the JSC. Judicial officials recommended by the JSC would not be easily manipulated by the Executive. Now Marende has wrecked the entire plan to have the local tribunal managed by people with proven records of friendship towards the KKK and for this he may never be forgiven.

Marende’s reasons for his tough action are sound and logical. Implementation of the new Constitution cannot be done by breaking it. The manner in which Kibaki nominated Justice Alnashir Visram for the position of the Chief Justice was unconstitutional. So was the way in which he nominated Prof. Githu Muigai to be the next Attorney General and Kioko Kilukumi to be the Director of Public Prosecutions. William Kirwa’s nomination to be the first Controller of Budget was faced with yet another controversy of a different kind.

Though a Kalenjin, William Kirwa did not have the support of the KKK because at one time he challenged William Ruto’s leadership by contesting the Eldoret North parliamentary seat against the Rift Valley tribal chief. Now they claim he is not qualified to be the Controller of Budget. ODM did not care much for Kirwa’s nomination so the party did not defend him when he was viciously attacked by the KKK MPs. That being the case Kirwa had to be shown the door long before Marende’s final ruling. Even if Marende had accepted the list Kirwa would never have had the top job Kibaki wanted to give him. The power of KKK’s numerical superiority in Parliament had already crushed him.

The KKK gang could constitute the majority in Parliament, but that strength of numbers in the Legislature should not be allowed to be used as an instrument to bend or break the supreme law. To the KKK parliamentary mob Marende has become a bitter enemy; but to the people of Kenya he has become the most respected political hero since Kibaki was first elected the President of Kenya under the euphoric banner of the rainbow alliance. The trouble in future will probably be that the KKK parliamentary squad may decide to use other sinister methods to get at the Speaker.

Realizing that the people of Kenya, the truth and the law are all on his side, Marende has nurtured an admirable courage and resilience that Kenyans have now learnt to depend on at any time of constitutional crisis. Like all Kenyans the Speaker knows that whatever happens to him, as a result of creepy skullduggery, he will eventually be triumphant. His position as the Speaker of the National Assembly will always be guaranteed by his own bravery, knowledge of the law and the ability to interpret it with the strength of Samson and the Wisdom of Solomon.

Now that the nominations problem is with the two principals, the country has learnt one useful lesson: We disobey the new Constitution at our own peril. Probably no one has learnt that lesson more than President Mwai Kibaki who now obviously knows that following the advice of sycophants with axes to grind can embarrassingly end up to be a self inflicted injury.

While repeating the exercise of filling the constitutional positions the principals would do well to seek the advice of both the Judicial Service Commission and the Constitution Implementation Commission. The two respected institutions have made their stand on the issue of nominations abundantly clear for all to see.

Besides that they would do themselves a great favour of simply perusing the new Constitution’s various Articles beginning with Articles 166(1) and 156 (2). The first one says the President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly. The second one says the Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.

Other parts of the new Constitution which will be at the centre of the new process to nominate the Directors of the Public Prosecution and the Controller of Budget will be Articles 157(2) and 228(1). The first one says the Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President. The second one says there shall be a Controller of Budget who shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.

If these were the only parts of the Constitution the Principals had to examine, the problem of nominations to constitutional offices would have been as good as solved. The major dilemma of the nominations is based on what the new Constitution says in its Sixth Schedule on transitional and consequential provisions whose Section 24(1) says the Chief Justice in office immediately before the effective date shall, within six months after the effective date, vacate office and may choose either to retire from the judiciary; or , subject to the process of vetting under Section 23, to continue to serve on the Court of Appeal. This means Gicheru must go with a given time yet his successor is not available as of now.

Section 24(2) says a new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly. This is the part of the new Constitution which made it extremely difficult for Marende to accept Kibaki’s nomination of Justice Alnashir Visram as the Chief Justice.

Without mincing words Marende said: “I find and rule that the constitutional requirements of section 24 (2) and 29 (2) of the Sixth Schedule to the Constitution requiring consultation subject to the National Accord and Reconciliation Act are not met if the National Assembly receives a list of nominees to constitutional offices, on which there is open and express disagreement between His Excellency, the President and the Prime Minister.”

According to the Speaker, Kibaki’s nominations were unconstitutional and the unconstitutionality could not be cured by any act of the House or of its committees. With those few words Marende delivered a knockout blow to the KKK plan to use their numerical superiority to endorse the Kibaki nominations through a motion which they were sure would have gone through.

In a no nonsense language Marende said: “No motion on such a nomination…. is admissible and I therefore hereby so order.” If that was no clear to the KKK member sitting in the House and pensively listening to Marende, he elaborated that the effect of that ruling was that the House “shall not proceed with any process of approval in respect of the nominations that the National Assembly received from the Office of His Excellency, the President, by the letter dated 31st January, 2011.”

Pushing the dagger deeper inside the KKK belly Marende said: “Additionally, the work of the Departmental Committees of Justice and Legal Affairs and Finance, Planning and Trade and their respective Reports, on this matter shall lapse forthwith in their entirety. The House shall await nominations for the respective offices to be forwarded in the manner provided for by the Constitution read in totality and ensuring full compliance therewith.

Needless to say, this development is not a commentary on the suitability of any individual for nomination or appointment to the offices to which they had been nominated or to any other.” With those words Marende added a chapter in the history book that will be written about this country. His name will appear in that chapter written in golden letters.

Nominations: Principals agree to disagree

The decision by President Mwai Kibaki and Prime Minister Raila Odinga to let Parliament determine the fate of the four nominees to top constitutional offices means the matter will finally have to be determined by the Speaker of the National Assembly, Kenneth Marende. There is no way the Finance, Trade and Planning Committee chaired by ODM’s Chris Okemo can unanimously confirm Kibaki’s nomination of William Kirwa to be the country’s first Controller of Budget.

There is also no possibility of Ababu Namwamba’s Justice and Legal Affairs Committee unanimously accepting the President’s nominations of Professor Githu Muigai as the next Attorney General; Court of Appeal Judge Alnashir Visram as the next Chief Justice and Kioko Kilukumi as the next Director of Public Prosecutions. Members of the two committees are too committed to the stand taken by their respective parties to take a joint stand on either to accept or reject the nominations.

The reports that the two committees will table before the House will reflect a split along party lines with ODM rejecting the nominations and PNU accepting them through furious exchange of bitter words. The whole scenario may end up with a division of the House that will probably see Kibaki’s nominations going through. Even if that happens and may be long before the division, an MP, may be Gitobu Imanyara , may ask the Speaker to determine the constitutionality of the nominations before the House either accepts or rejects them .

That is what is likely to happen to Kenya next Thursday when a mini crisis will emerge from the National Assembly’s inability to implement a vital part of the new Constitution. As usual, the whole problem will end up on Marende’s lap, forcing him to make an interpretation of the Constitution on behalf of the nation. That he will probably do after allowing another lively session of bitter war of words between the two major parties with the PNU getting a strong backing of ODM rebel MPs which will once again reveal the existence of a KKK alliance in Parliament.

This time Marende may be forced to make a more decisive ruling which will most probably throw the whole problem of the four nominations to the two Principals who may have to repeat the whole exercise all over again. In the second round of nominations a more transparent method involving the Judicial Service Commission and the Commission for the Implementation of the Constitution may be used. But all that will depend on whether this time Marende will reject Kibaki’s nominations.

Examining Marende’s February 3rd’s ruling on this matter leads one to believe this time he may take a very firm stand about Kibaki’s unconstitutional nominations. To begin with Marende has already blocked any possibility of anyone challenging his second ruling on this matter on the basis of the Speaker’s competence to make a pronouncement on interpreting the Constitution.

On February 3rd Marende said there could be ten different issues that may need to be thoroughly examined before Kibaki’s nominations could either be accepted or rejected by Parliament. The first one was whether or not the Speaker was competent to make a pronouncement or determination on the matter of the constitutionality of the nominations and their propriety for transmission to and disposal by the House or whether, conversely, this would be a matter for other constitutional organs and in particular, the Judiciary.

On this issue the Speaker ruled that he, as the leader of the House and the manifestation of the authority of the House, was mandated and obligated to safeguard and jealously protect its sovereignty within the Government to determine what it should or should not do and when and in what manner it should do those things without interference from any other person or authority. Marende explained that this position was recognized in parliamentary practice and traditions and in both the former and the present Constitutions.

According to him it was what the Constitution meant when it vested the legislative authority of the Republic in Parliament and provided that Parliament manifested the diversity of the nation, represented the will of the people and exercised their sovereignty. This was also the essence of the separation of powers that he had every so often pronounced himself upon from the Chair.

Marende very emphatically said the view that responsibility could fall to another organ whether the executive or the judiciary to determine for Parliament a matter before it was, to his mind, constitutional heresy, which he urged every person in this country and more so, in Parliament , to completely purge and disabuse themselves of. With such a strong stand taken by the Speaker of the National Assembly no one can now challenge his competence to interpret the Constriction on matters before the House. According to him there is probably no way that the House could possibly function if the Speaker could not interpret the Constitution

There may be those who would still challenge him not to make a ruling on a matter that is pending in a Court of law sighting the rule of sub judice as it is found in Standing Order Number 80. But that same Standing Order says the Speaker may allow reference to any matter before the House or a Committee, that particular Standing Order notwithstanding. This means the pending matter in Court concerning Kibaki’s nominations will not prevent Marende from making a ruling on the same matter.

The second issue which Marende is likely to touch on while making a ruling on Kibaki’s nominations concerns whether or not Parliament will this time be properly seized of the nominations. Whereas on February 3rd the Speaker was of the opinion that at that point there was neither a motion nor a proposed motion before the House on matters concerning Kibaki’s nominations, when making the second ruling on the issue the matter will indeed be properly before the House and therefore within his powers to make judgement on.

The third issue Marende will examine during his second ruling will concern the status, import and weight to be attached to the opinion of the Commission on the Implementation of the Constitution on the matter of Kibaki’s nominations. In Marende’s first ruling on the matter on February 3rd he said he had no doubt in his mind that bodies like the Law Society of Kenya, the International Commission of Jurists and the Federation of Women Lawyers (FIDA) would have had something to say about the nominations.

Indeed these bodies had come out in the public domain asserting certain positions which they contend would assist the country in arriving at a lawful and fair determination of the matters in issue. These, said the Speaker, are important matters to note, because, as Honourable Members were no doubt aware, if there was any matter relating to the conduct of public affairs in general and to the Legislature in particular, that the Constitution had comprehensively addressed, it is the matter of the centrality of the rule of law, democracy, transparency, accountability, inclusiveness and the participation of the people.

With views like that Marende is likely to rule there was neither transparency nor inclusiveness in Kibaki’s nominations. This may be one of the strong reasons for his rejection of the nominations. He almost suggested in his first ruling that on matters of implementation of the new Constitution a more collegiate and participatory process was required not only as a matter of natural justice and sound conduct of public affairs but also as a requirement of the Constitution.

The fourth issue Marende is likely to rule on concerns whether or not the provisions of the Constitution require the involvement of the Judicial Service Commission in the nomination process and going hand in hand, if the Constitution dictates that the process be participatory, competitive and transparent. The views expressed by the Speaker during his first ruling suggest that he thinks the JSC has an important role to play on the entire nomination process. In his second ruling he may throw out Kibaki’s nominations for the fact that the JSC was never consulted among other reasons.

The fifth issue Marende is likely to revisit in his possible second ruling concerns weather or not there were consultations between the President and the Prime Minister as contemplated by section 29(2) of the Sixth Schedule to the Constitution. According to the Speaker, tied to this point, are a number of other questions including what the minimum threshold of consultation should be and if consultation denotes concurrence, consensus or other measure of agreement. Additionally there is the further point of what was intended by the drafters of the Constitution in providing for consultation as they did.

On the matter of consultation and the constitutional meaning of the word, Marende is likely to disappoint the KKK by agreeing with both Raila Odinga’s argument on the matter and the argument of JSC. The sixth issue that may be contained in the Marende’s second ruling will concern the import of making the consultations subject to the National Accord and Reconciliation Act. On this one Marende is likely to agree with the views already expressed by the PM, the JSC, the LSK, FIDA and the CIC.

The seventh issue that is likely to be examined by Marende during his second ruling will concern whether or not serving member of the judiciary is constitutionally eligible to be nominated and appointed as Chief Justice. ODM and the other institutions mentioned above will be pleased to hear Marende ruling that serving judges should not be eligible to be nominated and appointed as Chief Justice before they are vetted by the JSC.

The eighth issue on which Marende is likely to comment on during his likely second ruling will concern whether or not the nominations meet the constitutional requirements of regional balance and gender parity. His likely conclusion would be they do not, which will give him yet another reason to reject them. The ninth issue Marende will examine will concern whether or not the nominations of office-holders amount to a dispute within the meaning of the Political Parties Act. Whichever way he rules on this issue the rift between ODM and PNU/KKK is likely to widen from now on.

Last but not least, Marende’s expected ruling may examine whether or not the correct approach to the questions raised on the propriety of the nominations could be resolved by a vote in the House to approve or disapprove the nominees. If he rules on the other issues in the manner I have tried to predict, then there will be no need for the House to vote on the matter which is likely to be taken back to the Principals.

Ousting Raila illegally is unwise

KKK is plotting to oust Raila Odinga from his position as the Prime Minister of the Government of Kenya. But they are trying to do so by circumventing the law. The plot was exposed by The Standard of February 7, 2011 which said there was a move to amend the National Accord and Reconciliation Act of 2008 “ by claiming Raila no longer commands a majority allegiance in ODM .”

The story did not indicate the specific part of the law the rebel MPs were planning to amend to deny the PM the right to claim the leadership of the party. But it said the rebels plan “to play the card of numbers, with the help of Kibaki’s Party of National Unity.” Whereas it is true that the Kalenjin MPs joined by their Kikuyu and Kamba friends form a very strong force in Parliament, that force is not legally strong enough to remove Raila from his job as the country’s Premiere.

Raila is the Prime Minister of Kenya today because Section 3 (1) of the National Accord and Reconciliation Act of 2008 says there shall be a Prime Minister of the Government of Kenya. Section 3(2) of the Act says the person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of (a) the political party that has the largest number of members in the National Assembly; or (b) a coalition of political parties in the event that the leader of the political party that has the largest number of members in the National Assembly does not command the majority in the National Assembly.

The argument by the KKK to deny Raila the Premiership is probably based on the assumption that either ODM is no longer the party that has the largest members in the National Assembly, which is not true, or that someone else, other than Raila Odinga, is the leader of a coalition of political parties that commands the majority in the National Assembly. KKK may very well be numerically superior to any other political group in the National Assembly; but that superiority cannot be officially recognized without a formal establishment of an anti Raila coalition of political parties in Parliament that is in keeping with requirements of the Standing Orders.

The only person who can give the interpretation of the legal establishment of such a coalition is Speaker Kenneth Marende who has made a name for himself for being very level headed in determining the right legal position of any standing order dispute. So far William Ruto has been telling his KKK friends at political rallies outside Parliament Building of his plan to topple Raila Odinga’s position as the Prime Minister. He has not done so officially in the Chamber. Officially Raila is still the leader of the party with the majority MPs in Parliament, because no one has officially quit the party.

According to The Standard story Ruto and his allies, who previously announced that they were planning to quit ODM, and would register or join another party, appear to have ditched that plan in favour of removing Raila as PM. If The Standard story is true then the legal way for the rebels to get rid of Raila as the Prime Minister would be to get rid of him as the ODM leader first. Whoever inherits Raila as the ODM leader would automatically become the Prime Minister of the coalition Government of Kenya.

But to get rid of Raila from the ODM, Ruto and his friends would have to go back to the party and call for a meeting of the highest organ of the party where they would challenge Raila’s leadership of the party. Short of that Raila would legitimately remain the leader of the ODM until after the next party national elections. And as long as he is the legitimate leader of the ODM he will remain the Prime Minister of Kenya unless the rebels officially pull out of the party and seek to be reelected through either PNU tickets or tickets of a political party that intends to form a parliamentary coalition with PNU.

So if Ruto wants to become the new Prime Minister after Raila, he must legally topple Agwambo in ODM first. He cannot become the Prime Minister of this country by illegally joining hands with his KKK colleagues in PNU. Before the rebels in ODM form a parliamentary coalition of political parties with PNU that will command the respect of Kenyans as well as that of the Speaker of the National Assembly, they should first sign an agreement on the principles of partnership of the new coalition Government.

After all, that will indeed be a new Government between PNU and rebel ODM members. Indeed even Raila himself had to sign such an agreement with Mwai Kibaki in the presence of Kofi Annan, and Jakaya Kikwete. It is the agreement on the principles of partnership that gave birth to both the National Accord and Reconciliation Act of 2008 and the Coalition Government itself. Failure to topple Raila in the ODM party first before thinking of forming a new coalition government the rebel ODM MPs must resign their Parliamentary seats before thinking of establishing a new coalition Government with the fellow KKK members in the PNU.

Ruto must know that the days of quitting one political party and joining another one on the basis of the side of the bread that is buttered are now gone and gone forever in Kenya. Before they think of forming a new coalition they must quit ODM as it is stipulated in Article 103. (1)(e) of the new Constitution which says the office of a Member of Parliament becomes vacant if, having been elected to Parliament as a member of a political party, the member resigns from that party or is deemed to have resigned from the party.

Besides that, Raila should probably take serious steps to discipline the rebel MPs by showing them the door though that would be risking making them come back after expensive by elections between now and next year. May be that would be a risk worth taking because it would serve the purpose of cleaning up the party and also of introducing the badly needed discipline in the party.

The Standard story said Ruto is desperately trying to become the next Prime Minister after Raila before next year because he hopes, as a Prime Minister, he will not be touched by Luis Moreno-Ocampo. Nothing could be further from the truth. Moreno-Ocampo does not care what position suspects he wants to prosecute hold. Right now he is after President Omar al Bashir of Sudan for crimes against humanity that he committed in Darfur. William Ruto becoming the Prime Minister of Kenya would not change the fact that he is a wanted suspected criminal by the ICC.

For some very strange reasons the KKK alliance believes that a local tribunal will not be able to find the Ocampo Six guilty and that is why they are sparing no efforts in trying to get the referral from the ICC. This makes it all the more important for the judicial appointments to be made in a transparent and constitutionally correct manner. If the Ocampo Six are to be tried in Kenya then they must be tried by an internationally recognized tribunal that has the respect of the ICC. Hence the importance of protecting Raila’s position as the Prime Minister of Kenya because he alone seems to be determined to fight for justice for the forgotten hundreds of thousands of suffering Kenyan IDPs.

To try and topple the Prime Minister illegally would be the most foolish thing to do because it is likely to anger the majority of Kenyans who support the ODM leader even when some of them are not even members of the party. Efforts by some PNU MPs to pull out of the coalition Government would be faced by the same predicament of forming a new coalition with the rebel ODM MPs. Without a proper legal process to establish such a coalition Raila will remain Kenya’s Prime Minister until the next general election. If Mwai Kibaki pulls out of the coalition Government , his Government will be a minority Government with no legitimacy to remain in power.

Musinga upholds Kenya’s constitutionalism.

Speaker Kenneth Marende’s ruling on Kibaki’s nominations gives the principals more time to consult constitutionally and save face against losing respect among their followers. His handing the matter over to the relevant parliamentary committees simply means Kibaki and Raila can in fact still consult and follow the proper constitutional procedures before filling the four important constitutional offices. As Marende was delivering his Communication from the Chair, however, the High Court of Kenya declared President Kibaki’s nominations a breach of the Constitution.

Justice Daniel Musinga’s ruling is a major step towards defending constitutionalism in Kenya where the respect for the supreme law has always been taken for granted by the Executive. Soon after independence Jomo Kenyatta changed the constitution to give himself all sorts of powers that threw the people’s human rights into the dustbin of despotism. President Daniel arap Moi simply perfected Kenyatta’s dictatorship by making himself, constitutionally, the most powerful despot in this part of the world.

Though the constitution we have just rejected had an imperfect Bill of Rights, its problem was not only to give too much power to the Head of State, but also to allow the President to violate both the first and second generation human rights with impunity. Luckily today the country has a Constitution that has a commendable mechanism of correcting any attempt to violate it, long before the violations have any negative impact.

It is also because of the new Constitution’s Articles 33 and 34 which protect the freedoms of expression and the media that Kenyans had a very healthy debate on Kibaki’s nominations also long before Musinga made his verdict. It is as a result of the healthy debate that Kenyans trusted that the High Court could not back any unconstitutional appointment by the Head of State.

Musinga’s defence of the Constitution elevates the country into a new level of constitutionalism which will make Kenya even more respected as a country that does not only believe in the rule of law , but also implements its supreme law without fear or favour. Having a good constitution like we do is one thing; but obeying it religiously and establishing real constitutionalism in the country is another, much more admirable thing.

The level of constitutionalism established by Musinga’s ruling is what has always bothered the so called KKK alliance, whose reasons for either directly or indirectly opposing the new Constitution can now be seen more clearly. Both the strong opponents of the Constitution and their watermelon friends know that the High Court cannot be shaken by their empty threats to anyone who opposes their anti reforms stand. Now they are threatening to pull out of the coalition Government.

Suspecting that Musinga would come up with a ruling that would back the provisions of the Constitution that demand proper consultation between the President and the Prime Minister before nominations for constitutional positions are made, three PNU MPs , Jeremiah Kioni, Nderitu Mureithi and Jamleck Kamau called for their party to pull out of the coalition Government. The three must be dreaming of the formation of a KKK government with ODM sitting in the Opposition benches.

Their myopic calculations seem to forget a number of facts. Fact number one is that KKK is not a legal political party that can form a Government without rebel Kalenjin ODM MPs from the Rift Valley seeking a new mandate from the voters to quit ODM officially. Fact number two is that the country cannot forget the real reasons we have a coalition Government in Kenya.

KKK would do themselves a great favour by having a good look at the Preamble of the First Schedule of the National Accord and Reconciliation Act. In a nutshell, that Preamble explains the real reasons this country has a coalition Government. In case the KKK has forgotten this country had a serious crisis caused by the muddled elections of the 2007, a revisit of the events that took place at that time is opportune. As a result of tribal clashes which, arguably, were started by members of the ODM who want to pull out of the party to join the KKK, more than 1,300 Kenyans lost their lives and over half a million others were displaced from their homes.

There is very little doubt that Kibaki and his KKK friends want to establish a local tribunal soon to avoid the ICC. No local tribunal can, however, be established without a Chief Justice and a DPP. Knowing that Luis Moreno-Ocampo means business in prosecuting those who masterminded the clashes, the KKK, therefore, is eager to have a local tribunal established fast to secure the needed referral from the ICC.

The emotional agitation to have Kibaki’s nominations for the new Chief Justice and the new Director of Public Prosecutions (DPP) accepted, as soon as possible, and possibly without any alterations, cannot but make a number of people wonder if there is some hidden agenda in getting the nominated personalities take over those two posts so urgently.

The history of the gentlemen earmarked for the two jobs is very well known. Justice Alnashir Visram has a record of making judgments that go against the respect for freedom of the expression and that of the media. His judgments, it can be argued, have had a tendency of supporting the high and mighty. Mr. Kioko Kilukumi, who is the nominated candidate for the post of the DPP, is a well known defender of William Ruto whom Moreno-Ocampo wants to prosecute.

It so happens that Marende sort of allowed the Parliamentary Committees to debate Kibaki’s nominations. Be that as it may the two crucial nominees for the post election violence trials will still have to be thoroughly examined before being handed the top jobs to bring justice to the forgotten IDPs. Now that the High Court has declared the nominations illegal even Marende’s ruling seems to be in jeopardy. If the two Principals consult according to the Constitution and still nominate the two names then Parliament would still have to scrutinize them thoroughly before approving them.

Musinga’s ruling clearly shows the importance of always reading the new Constitution together with the National Accord and Reconciliation Act of 2008. While implementing the new Constitutions, therefore, MPs have an obligation of never pushing this country back to the sadness of 2007 disputed Presidential elections. If anything, the MPs should be making every effort to remedy the divisions in this country that were brought to the surface by the 2007/08 clashes.

Rather than threatening to pull out of the Coalition Government, the KKK MPs would do this country a lot of good by implementing what the Preamble of the Accord says. Among other things the Accord says the Kenyan people are now looking to their leaders to ensure that their country would not be lost. The continued argument over Kibaki’s nominations is creating a very unnecessary tension in the country.

Reminding our leaders what the Accord says, therefore, is most appropriate at this time. What the Accord said when it was signed in 2008 could in fact be repeated word for word to solve the current situation. At that time it said: “Given the current situation, neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward and begin the healing and reconciliation process.”

At that time Raila Odinga, representing the ODM; and Mwai Kibaki, representing the Government of Kenya and PNU, as they were witnessed by President Jakaya Kikwete of Tanzania and Kofi Annan as the Chairman of Panel of Eminent African Personalities, agreed to step forward together, as political leaders, to overcome the then crisis and to set the country on a new path. It so happens that the country is on the verge of facing a new crisis and there is a need for the two Principals to once again commit themselves to work together in good faith and as true partners , through constant consultations and willingness to compromise.

It is obvious that the KKK will claim that Kibaki signed the Accord not only on behalf of the PNU but also on behalf of the Government of Kenya. Their claim would suggest that that just as there was a Government before signing the accord so would there be a Government when PNU pulls out of the Accord. The question to ask those with such a short sighted view is simply to remember what type of Government Kibaki led before he was joined by Raila Odinga to form the Coalition Government.

Is that the kind of Government KKK would like to establish without ODM? Kenyans would like Kibaki and Raila to work together in the spirit of the Accord, which is now part of the Constitution. Kenyans would like Raila and Kibaki to, like the Accord says, create an environment conducive to a genuine partnership that would build mutual trust and confidence.

The arguments between Kibaki and Raila clearly showed that the two of them had certain personalities they would have preferred to occupy the position of the Chief Justice. According to what came out in Parliament, Raila Odinga would have preferred Justice Riaga Omolo while Mwai Kibaki would have preffered to have Justice Paul Kihara for the top job. When the two Principals meet again for further consultations as recommended by almost all the respected law and judicial institutions they should remember the words of their own Accord which said that the agreement they made was not about creating positions that reward individuals.

The two should remember that the agreement they made was to seek to enable Kenya’s political leaders to look beyond partisan considerations with a view of promoting greater interest of the nation as a whole. They should remember that they pledged to provide the means to implement a coherent and far reaching reform agenda, to address the fundamental root causes of the conflict of 2008 and to create a better, more secure, more prosperous Kenya for all.