Is Kibaki blundering yet again?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Elections and tribalism in Kenya

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mudavadi’s gamble may backfire

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

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

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

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

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

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

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

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

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

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

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

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

Kamatusa and Gema outdated

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IEBC’s election date is reasonable

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anti-ICC forgeries expose malicious scheme

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

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

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

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

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

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

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

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

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

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

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

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

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

Kalonzo ejection exposes G7 hegemony

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

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

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

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

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

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

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

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

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

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

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

Constitution to dominate elections

The next elections will entirely be based on the new Constitution. Not only will it be mandatory to follow it to the letter; but the voters will also be looking for candidates are genuinely concerned with its accurate implementation. So far we have seen very many attempts to change the constitution through the publication of laws that go against its letter and spirit.

The new Land Bill is a case in point. Chapter Five of the Constitution is extremely clear on matters of land ownership. Article 68 (c) says, among other things, Parliament shall enact legislation to prescribe minimum and maximum land holding acreages in respect of private land. Section 189 (1) of the proposed Bill says that within one year of the coming into force of the Land Act, the Cabinet Secretary shall commission a scientific study to determine the economic viability of minimum and maximum acreages in respect of private land for various land zones in the country.

The purpose of prescribing minimum and maximum land holding by the Constitution was obviously to try and bridge the gap between the huge land owners in Kenya and the landless. It so happens that soon after independence those who found themselves in political leadership automatically became land grabbers. They used very fraudulent methods to acquire very huge tracts of land. With that in mind many people expected the new draft Bill to suggest minimum land acreages an individual could own. But instead the Bill is suggesting the establishment of a scientific study to determine what is economically viable for minimum and maximum acreages.

In essence this means the scientific study may suggest that the huge plantations owned by land grabbers should not be subdivided to benefit the people because doing so would not be economically viable. According to the new Bill the hope of ever thinking of dividing the huge tracts of illegally acquired land to benefit the people will not even take place until after a whole year has passed subsequent to the land law coming into force.

Section 189(2) of the draft Bill says the findings of the study shall be available for the public to make observations and should be modified based on valid representations in accordance with principles of participation of the people, good governance, transparency and accountability. During the electioneering in the forthcoming contest political leaders must tell the people how their parties intend to do that. The proposal of how to make millions of landless Kenyans own some land must come out openly during this election.

After all Article 61 (1) of the Constitution says all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals and it further emphasises that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the principles of equitable access to land. The Constitution also protects security of land rights; sustainable and productive management of its resources; its transparent and cost effective administration; and sound conservation and protection of ecologically sensitive areas.

The Constitution suggests the elimination of gender discrimination in law, customs and practices related to land and property in land; and encourages communities to settle land disputes through recognised local community initiatives consistent with the new law. These are issues which voters must demand to be discussed in a more detailed manner during these elections. Political parties must show the people how their manifestos intend to implement controversial land issues suggested by the new Constitution.

The Constitution says these principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation. During the campaign the voters must be told by the candidates what land policies they want to introduce in Kenya. The candidates, and indeed all political parties, must tell the people how they intend to reduce the number of landless people by making them get something from the large landowners who are at the moment not even utilizing productively the land they have.

Section 189(3) of the proposed Bill says within three months after the publication of the final report of the scientific study commissioned under the law the Cabinet Secretary shall table the report to Parliament for debate and adoption. At that time the Cabinet Secretary shall prescribe the rules and regulations on the minimum and maximum acreages in respect of private land solely based on the recommendations in the report. This does not however preclude political parties from telling the voters what their policies about maximum and minimum acreages of land ownership should be.

Today this country has thousands of people living as IDP whereas they were landowners before the last general election. It was due the erroneous promises made by politicians about land ownership that thugs invaded the IDP’s former land and acquired it illegitimately. Promises made during election time to the voters about land ownership are important and this time they should be examined to find out whether they are lawful promises and whether they fall within what the Constitution says about land.

Voters should demand from all political parties to be told how they indent to implement Article 43 of the Constitution which says every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education.

The Constitution clearly says a person shall not be denied emergency medical treatment and that the State shall provide appropriate social security to persons who are unable to support themselves and their dependants. In every election politicians have made promises about these things in the most reckless manner. In the past however these things were not promised by the supreme law of the land. Now it is incumbent upon all candidates, particularly Presidential candidates to tell the people how they plan to implement the Bill of Rights in the new Constitution in order to achieve the second generation human rights.

Failure to do so in a convincing manner would be a disqualification wananchi should ruthlessly use to throw out candidates who want to be elected on tribal rather than policy tickets. May be the best way of finding out who is most suited to be the future President of this country would be to share platform and debate on how to, most effectively, implement the Constitution.

It is about time the Independent Electoral and Boundaries Commission (IEBC) came out with a mandatory rule to be obeyed by all candidates about public sharing of political platform in which journalists ask hard question based on the new Constitution. To avoid heckling in those meeting they should be confined to televised debates which should be aired by all stations in the country.

This is the only way of avoiding the hype and hoopla which dominated previous elections in this country. It is about time Kenyans took the substance of elections, in which party manifestos are thoroughly securitised, more seriously.

Democracy in ODM admirable

The Raila-Mudavadi rivalry within the ODM party is admirable. It is what cannot, and will probably never, take place in other political parties in Kenya. All political parties in this country belong to individuals who use them as ladders to high political offices. When Musalia Mudavadi, the Deputy Leader of the formidable ODM, announced his intention to seek the party ticket in the forthcoming Presidential election, Raila’s enemies thought they had acquired a new comrade in arms.

But Mudavadi has made it very clear that he does not intend to leave ODM even if Raila defeats him at the nomination stage. The spirited countrywide campaigns by Raila and Musalia, seeking support from party members in their fight for the party’s presidential ticket, show the kind of internal democracy needed in all political parties in the country. Unfortunately it only exits in the ODM and that is why it is the most powerful political institution in the country.

Raila and Mudavadi should take their campaigns a stage farther than individual tours of different parts of the country. They should make the tours jointly and address ODM groups together as they answer questions from members from joint platforms. Unless candidates share platforms in contestant debates during party primaries, internal democracy in political parties will not be complete.

Right now the G7 group is indeed travelling together as a group to many parts of the country where their various political parties are popular. They have confined themselves to the Rift Valley, the former Central Province and Machakos where indeed they have shared platforms and addressed public rallies jointly. But they have not done so as rivals competing for joint party nomination. In fact there is nothing like political unity in the so-called G7 group.

Each of the G7 top three leaders has his own political party based on tribal support. William Ruto has the United Republican Party which is a Kalenjin party; Kalonzo Musyoka has his own Wiper Democratic Party which is a Kamba party and Uhuru Kenyatta has his own KANU which is a party in serious leadership problem. Uhuru, however, is assured of the backing of the majority of the Kikuyu people whichever political party he joins as the top leader. That support is not automatic if he joins a party to support another leader.

The problem with the G7 group is that it has no ideology that unites them. They are only together to make sure that Raila Odinga does not become Kenya’s next President. The group does not even seem to agree on why they oppose Raila Odinga. They are not able to pinpoint any ideological stand by Raila Odinga which makes them oppose him. Yet it is common knowledge among all the people of Kenya that Raila is probably the most sincere supporter of the new Constitution and what it stands for.

By inference it stands to reason that what brings G7 together is its continued opposition to the demands of the new Constitution. Among them is William Ruto who spent a lot of money and energy to oppose the Constitution. The manner in which Uhuru Kenyatta and Kalonzo Musyoka supported the supreme law was so half-heartedly lackadaisical that they were branded watermelons.

Today both Ruto and Kenyatta are not sure whether they will meet the required standards of leadership that is stipulated in the new Constitution. With criminal cases hovering over their heads at the ICC in The Hague, it is not even clear whether the Kenyan courts will allow them to seek leadership positions under the new Constitution. Deep inside their hearts, therefore, they must be bitterly opposed to the new Constitution which they obviously must see as a major impediment to their insatiable desire to lead this country.

The continued effort by the G7 to tear this country apart along tribal lines is however likely to miserably fail because the people of Kenya correctly see the new Constitution as the only available vehicle to prosperity, justice and democracy. For a long time the wealth of this nation has been concentrated in the hands of a few individuals who happened to wield political power. Paradoxically they grabbed political power by successfully utilizing the old colonial adage of ‘divide and rule’. After dividing the nation into small tribal clusters through bribery and xenophobic nationalism the rich always managed to use the divided masses as stepping stones to political power.

That scenario has been drastically changed by the people when they overwhelmingly supported the new constitution. The only ideological difference which the voters of Kenya will be looking for when electing their new leaders, will be the ability to correctly interpret the new constitution. That ability will be exhibited in the manner the leaders explain to the people about their commitment and competence to correctly implement it.

It so happens that the only political party that is able to interpret the new Constitution correctly to the satisfaction of the people is the ODM. This is mainly because the party is made up of the people of Kenya who genuinely want change in this country. The people who want to bridge the gap between the haves and the have-nots, as it is suggested in the new constitution, all happen to be in the ODM. But the party must learn to conduct its primary elections in a more transparent manner through genuine interpretation of the new Constitution by telling the people how it indents to implement it.

If Raila Odinga and Musalia Mudavadi share a platform and answer questions from the people on how they intend to implement the new Constitution n, the two will be speaking the same language. Apart from publicly exhibiting internal democracy within their party, however, Raila and Mudavadi are also dancing to the tune of tribal demands of their people. The Luos would most likely not like to see Raila serving in the Mudavadi administration as the deputy President. And the Luhyas would obviously like their son to take the top position in the next ODM Government. But everything else being equal the Luhyas know very well that their son is not a match to Agwambo and in fact they would be extremely lucky to have Mudavadi as the Deputy President in the next Government.

Uhuru must resign as DPM

Most Kenyans have taken the news of the resignation of Francis Muthaura as the Head of the Civil Service with a lot of relief. At long last someone important in the Kibaki-Raila Government has realised that no one is above the law in Kenya under the new Constitution. The news of Uhuru Kenyatta resigning as the Minister for Finance and not as the Deputy Prime Minister, however, puzzled a lot of people.

What could be the hidden message in the half-hearted move by the son of Jomo? Was it to prove that, compared to Muthaura, he is slightly above the law, as he was born with a silver spoon in his mouth? Was it to prove that he cannot be stopped from contesting the presidency of Kenya which, according to him, belongs to the big house of Mumbi? Or was it to prove that Mwai Kibaki has no powers to ask him to step aside from any office, if he was not willing to do so voluntarily?

These and many other questions kept lingering in many Kenyans’ minds when they were pondering the real reasons for the Government’s change of mind about Uhuru and Muthaura’s resignation. When Attorney General, Githu Muigai, announced that the two could keep their top jobs until after their appeal, many wondered whether he had forgotten his law.

Accepting Uhuru’s decision to step aside as the Minister for Finance the President announced that Kenyatta would retain the position of Deputy Prime Minister in “accordance with the Constitution.” That is another puzzling remark from the Head of State, who is obviously misinterpreting the Constitution. There is nowhere in the Constitution where it says Uhuru shall be the Deputy Prime Minister.

It is clear that what Kibaki is preparing to use as his ammunition in defence of keeping Uhuru as one of the two Deputy Prime Ministers is the National Accord and Reconciliation Act which is part of the Constitution. It may be true that Section Three of the Act says there shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers, who shall be appointed by the President in accordance with this section.

It is also true that the law also says the person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of the political party that has the largest number of members in the National Assembly; or 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. That kind of description meant that only Raila Odinga could be appointed to be the Prime Minister. He was and still is the leader of ODM which has and still does have the largest number of MPs.

Kibaki will also be right when he says the Constitution says that each member of the coalition shall nominate one person from the elected members of the National Assembly to be appointed a Deputy Prime Minister. But that is all that the Constitution says. It does not say that Uhuru Kenyatta shall be the person to be nominated as the Deputy Prime Minister from Kibaki’s side. Indeed before Kibaki nominated Uhuru for the post of DPM, there were speculations that he would nominate Martha Karua who was then a strong supporter of Mwai Kibaki. In fact many believe Karua’s rebellious attitude toward Kibaki started when she missed the position of DPM. There is therefore absolutely no reason for Kibaki not to fire Uhuru and appoint another DPM. In fact the law expects him to do so.

According to the first schedule of the National Accord and Reconciliation Act the Prime Minister and Deputy Prime Ministers can only be removed if the National Assembly passes a motion of no confidence with a majority vote. Uhuru may be hanging in office because of this provision. If he has any respect for the new Constitution he should read the writing on the wall and resign before Parliament meets to kick him out unceremoniously.

According to Article 75 (1) of the Constitution a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids any conflict between personal interests and public or official duties. The Constitution also says that a State officer should also avoid compromising any public or official interest in favour of a personal interest; or demeaning the office the officer holds. It is a fact that nothing has demeaned the office of the Deputy Prime Minister under Uhuru Kenyatta than his being indicted by the International Criminal Court which suspects him of masterminding murder and rape.

If Mwai Kibaki is keeping Uhuru Kenyatta as his Deputy Prime Minister as a result of advice from Attorney General Githu Muigai, then the AG has misled the President because the Constitution is absolutely unambiguous on the issue of contravening Chapter Six on leadership and integrity. It says a person who contravenes the part of the Constitution quoted above shall be subject to the applicable disciplinary procedure for the relevant office; and may be dismissed or otherwise removed from office. Kibaki has no choice but to remove Uhuru from office. That is what the law says. It also says that a person who has been dismissed or otherwise removed from office for a contravention of these provisions is disqualified from holding any other State office. That means Uhuru, in fact, cannot be given any other job in the Government.

It so happens that soon after the National Accord and Reconciliation Act was entrenched in the Constitution of Kenya, Kibaki and Raila, as the two principals, made an agreement on the 16th of December 2008, which, among other things, said that the two sides shall prepare and submit to the National Assembly for enactment a Bill to be known as “The Statute for the Special Tribunal” to give effect to the establishment of the Special Tribunal to seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya. The agreement said the Bill shall provide for the matters recommended by the Waki Report in relation to the Special Tribunal for Kenya.

Kenyans’ memories cannot be so short as to forget who made it absolutely impossible to form the Special Tribunal mentioned above. Martha Karua prepared the Bill and when it went to Parliament people like William Ruto shouted the loudest saying “let us not be vague, let’s go to The Hague”. Now the matter is before the ICC in The Hague and the same people are shouting the loudest to have the Kenyan case brought back.

The Raila – Kibaki agreement also said the Parties shall initiate urgent and comprehensive reform of the Kenya Police and the Administration Police. Such reforms shall be undertaken by the panel of policing experts and will include but not limited to a review of all tactics, weapons and the use of force, establishment of an independent Police Service Commission to oversee both the Kenya Police and the Administration Police, an Independent Police Conduct Authority for both the Kenya Police and the Administration Police, creation of a modern code of conduct for the Kenya Police and the Administration Police and achieving ethnic and tribal balance in the Force. Kenyans also know that these measures are far from being completed.

The most important part of the Raila-Kibaki agreement concerned Public Officers and Offices. It said the Parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon. It also said that the parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position. This means Uhuru and Ruto may find it extremely difficult to run for the Presidency of Kenya later this year.

Kibaki is against ICC ruling

Mwai Kibaki has come out in his true colours. As a Kenyan nationalist he has strongly defended Uhuru Kenyatta and Francis Muthaura who have both been indicted by the International Criminal Court for crimes against humanity. This very mysterious anti ICC sentiment by the President seems to be engineered by a secret force in his kitchen cabinet made up of the Mount Kenya old politicians who are determined to see Uhuru Kenyatta succeed Kibaki as the country’s next President.

Sailing in the same boat with Uhuru and Muthaura are William Ruto and Joshua arap Sang who are now, by sheer luck, getting Kenya government protection against Louis Moreno-Ocampo because they happen to be charged by the ICC together with the son of the first President of Kenya Jomo Kenyatta.

But the business of seeking justice has nothing to do with nationalism. Whether the PEV trials take place in Kenya or in The Hague all that should concern us is justice. The manner in which the Kenyan authorities have handled the PEV cases does not convince anyone that justice in Kenya is easier to obtain than at the ICC, all the changes that have taken place in the Judiciary and in the public prosecution office notwithstanding.

In his desperate effort to get the Uhuru case brought back to Kenya, in order to let the Kikuyu Presidential candidate free, Kibaki has ordered the Attorney General, Githu Muigai, to appoint a team of experts to “advise” the Government on the latest development at The Hague. The team is expected to recommend that another attempt be made to try and get the case returned to Kenya from the Netherlands.The first attempt made by Kibaki last year flopped miserably.

A lot of Kenyan taxpayers’ money will be used to pay the team composed of Sir Geoffrey Nice, Mr Rodney Dixon, Dr. Godfrey Musila , Mr Fred Ojiambo, Mr Joe Okwach, Mr Waweru Gatonye, Ms Betty Murungi, Ms Lucy Kambuni, Ms Grace Wakio and Dr Henry Mutai with a secretariat composed of Mr Ahmed Mohamed and Ms Caroline Wamaitha.
Though the team is made up of some of the best lawyers in this country, it is headed by British lawyers who will only do what their clients have ask them to, namely to see how the case can be brought back to Kenya from The Hague.

The money used to pay these lawyers should have been used to resettle the IDPs still suffering in their own country as landless people. The most shocking truth is the fact that the IDPs actually own farms which are now occupied by criminals responsible for the mayhem that this country went through after the 2007 elections.
Needless to say, in the unlikely event of the Uhuru case getting transferred back to Kenya, then Uhuru, Muthaura, Ruto and Sang will be set free despite all the noise being made about changes that have taken place in the Judiciary.

Chief Justice Willy Mutunga could have all the best intentions in the world in establishing special courts to try the four accused; but once the courts are established no one will appear before them as Keriako Tobiko will never betray the establishment by prosecuting Uhuru Kenyatta.

Besides that, Kibaki has never really been interested in justice. If he wanted justice to be seen to be done, then he would have ordered Uhuru and Muthaura to step down until the two are found innocent after the trial in the Netherlands. The team of highly respected lawyers hired by Kibaki can do very little to influence the court at the ICC. All they can do is issue a statement that will please Kibaki and his kitchen cabinet.

No matter how good lawyers are they always serve their masters and the master of the team appointed by Kibaki is Kibaki himself. He expressed his wishes the moment he opened his mouth to comment on the indictments of the four Kenyan suspects last Monday when he told the whole country that while the ICC process was underway, Kenya had enacted a new Constitution which substantially enhanced the capacity of the country’s criminal justice system and made great strides in the reform within the system in the administration of justice.

Those words clearly indicated what the President wished the team to do. Whatever recommendation it makes to the Government, it has to bear in mind that Kenya, in the words of the President, now has a “radically transformed judiciary, an independent office of the Director of Public Prosecutions, a police service that is being fundamentally reformed and a functional witness protection agency.” According to Kibaki it is now the collective responsibility of all these institutions to ensure justice for all at all times.

If the President meant every word he said he would have instructed his Deputy Prime Minister, Uhuru Kenyatta, and his Head of the Civil Service , Francis Muthaura , to step aside until the moment the ICC has found them to be no longer suspects after being proved innocent through the appeal of the ICC ruling or the full trial. William Ruto should also resign his parliamentary seat as the MP for Eldoiret North.

Their continued occupation of public offices goes against the spirit of our Constitution which says in Article 73 (1) that authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the new Constitution. It says that that authority must demonstrate respect for the people; and bring honour to the nation and dignity to the office. No one can be charged with serious crimes, which include murder and rape, before the International Criminal Court and still claim to bring dignity to the public office he or she holds. Ruto, Uhuru and Muthaura cannot claim to be promoting public confidence in the integrity of the offices they hold. The sooner they are asked to resign the better for Kenya’s integrity both locally and internationally.

According to President Kibaki, Kenya has had its share of challenging times. He said on these occasions, we have re-examined our national conscience and moved forward together. According to him we continue to do so. But how can we continue to do so when people who are obviously suspected of committing very serious crimes are being protected by the Government against the will of the people who would like to see justice done in The Hague?

It is only after the ICC ruling which indicted the four Kenyans that Kibaki started talking of re-dedicating ourselves to assist those who were displaced from their homes. For four years the Government has done nothing to make sure that the displaced people returned to their farms in the Rift Valley. Today William Ruto talks of peace and reconciliation but what has he done to tell his Kalenjin people to allow other Kenyans conduct business peacefully on their farms in the Rift Valley?

Kibaki has directed all relevant government ministries to fast track the resettlement of the remaining Internally Displaced Persons. Why should people who already own farms in Kenya be resettled elsewhere when their farms still exist? Kibaki called to all Kenyans to “search our national conscience, re-dedicate ourselves to a true sense of national reconciliation and forgiveness.” Kenyans will believe him when his Government does something to take back all the non Kalenjin to their old farms now illegally occupied by criminals.

For some very strange reasons the statement by Mwai Kibaki seems to contradict another statement which he jointly issued with the Prime Minister on November 5, 2007 when the two jointly said that they had a constructive meeting with Mr Louis Moreno- Ocampo. According to the statement they issued, the discussions were candid and frank. Mr Moreno-Ocampo had explained to Raila and Kibaki his mandate and how he intended to execute that mandate.

At that time Kibaki said the Government remained fully committed to discharge its primary responsibility in accordance with the Rome Statute to establish a local judicial mechanism to deal with the perpetrators of the post-election violence. In addition, the Government remained committed to cooperate with ICC within the framework of the Rome Statute and the International Crimes Act. For reasons well known to everyone Kenya did not succeed in establishing a relevant court to try the suspects; that is why it ended up in The Hague.

According to Section 4 (1) of International Crimes Act the provisions of the Rome Statute regarding the bringing and determination of proceedings before the ICC; and the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters shall have the force of law in Kenya. In other words, Muthaura, Uhuru, Sang and Ruto are in the same situation as if they were facing murder and rape charges in Kenya. They therefore have no business holding any public office of leadership in this country as long as the charges against them stand.

Election date judgement was patriotic

The three judges who on 13th January 2012 guided the country on the methods to use to determine the date for the next general election are patriots. They were not out to please anyone ; instead they delivered their judgement for the benefit of all Kenyans. Judges Isaac Lenaola, Mumbi Ngugi and David Majanja will go down in history as arbiters who ended petty feuds among politicians on when next to seek the people’s mandate to rule this nation.

The people in Kenya are eager to go to the polls. In a way they are fed up with the current leadership which is made up of two people brought together by a tragedy of civil war, which saw the death of well over a thousand Kenyans. Indeed as the three judges were delivering their historic ruling the country was still eager to know whether those who caused the disastrous deaths of innocent Kenyans would get away with that heinous crime or they would be punished according to the law.

The case before the judges was basically to determine who among three top lawyers in this country, leading three powerful competing groups, was constitutionally right. The first group, led by Charles Nyachae of the Constitution Implementation Commission wanted to have the elections in August this year. The second group , led by Ahmed Issack Hassan of the Independent Electoral and Boundaries Commission and backed by the Attorney General Githu Muigai wanted the elections to be held in December this year. The third group led by Prof. Yash Pal Ghai wanted to have the election take place next year.

All the three groups claimed the Constitution backed their stand and yet in every group there were very highly respected lawyers. Couldn’t they interpret the Constitution in the same manner as respected lawyers? For some very strange reasons they did not, which was a very beautiful lesson for the ordinary wananchi – lawyers don’t have to agree because they are eminent. Very strangely the more eminent they are the more independent minded they become. This has at times had very disastrous multiplicity of legal opinion on matters of great national importance such as the date for general election of a country.

As the three judges said in their ruling the next elections in Kenya will be an important milestone in the implementation of the Constitution. Conducted properly they will, as the judges said, provide a chance for renewal and change. Unfortunately renewal and change are what some of our political leaders have been fighting against. Their main reason for being in Parliament is to perpetuate the status quo where the rich are getting richer as the poor continue getting poorer.

The leaders I am talking about were in the forefront in the opposition to the current Constitution. Now they seem to have undergone a complete metamorphosis and they claim to be second to none in championing the cause for the implementation of the Constitution. They will soon be asking the people of Kenya to let them lead the country in the name of the Constitution they rejected.

Among the most important sentiments expressed by the three judges concerns the opportunity the new Constitution gives to the people of Kenya . They said the first elections under the Constitution will provide Kenyans with the opportunity to test their capacity for change as they will be required to choose new leaders whom they believe conform to the values and principles of the Constitution and who are committed to ensure that the dream of a new Kenya realised on 27th August 2010 is firmly established.

These words clearly show that judges were not interested in pleasing anyone involved in the dispute about the date for the next elections. All they were concerned with was to interpret the new Constitution correctly.Without beating about the bush the judges said they were conscious that their findings may be unpopular with a section of Kenyans who have preconceived notions about the elections; but the judges hastened to remind Kenyans that their undertaking was not to write or re-write the Constitution to suit popular opinion.

Their responsibility was to interpret the Constitution in a manner that remained faithful to its letter and spirit and gave effect to its objectives.
In doing so they were cognisant of the fact that the Sixth Schedule was a compromise political package arrived at between the various factions of politicians in order to ensure passage of the Constitution. Believing that they were discharging their constitutional responsibility correctly by delivering a fair and accurate interpretation of the supreme law, they called upon all Kenyans to continue with the task of Constitution implementation and nation building.

For those words of wisdom to have any meaning they must ruthlessly be applied by the entire community during the forthcoming elections. To begin with the people must understand that in the next general elections there will be so many imposters and false prophets claiming to have almost divine powers to lead Kenya into greater prosperity and democracy. Many of the imposters will have their own tribes and clans as their political foundation to provide them with the wherewithal to power.
But the Kenya of tomorrow will have no room for such tribal leaders.

Indeed there is no place for tribal political parties in this day and age of our political development. That is why the constitution is so strict about the kind of political parties that can be accepted in this country. According to Article 91 (1) of the Constitution every political party shall have a national character and also have a democratically elected governing body. Today we are already seeing political parties belonging to individuals who hope to be tribal candidates for the presidency of Kenya.

Kenyans know the leaders who back political parties for ideological reasons and they also know leaders who create political parties as ladders to political power. The Constitution requires political parties to promote and uphold national unity; abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party. In Kenya there is probably only one political party that comes close to having those qualities.

The three judges have given the country enough time to reorganise all the political parties in keeping with the constitutional requirements. It should not really matter whether we have election in December this year or sometimes next year. What is important is to have free and fair elections that are also peaceful.

Koome should replace Baraza

Nancy Baraza’s case appears to be irredeemably hopeless. According to the Daily Nation of January 10, the police are ready to charge the Deputy Chief Justice with unlawful possession of firearm, illegal use of firearm and threatening to kill. These are extremely serious charges and if Baraza was a lady of integrity she would have offered to resign and save this nation a lot of time debating about her alleged misbehaviour. The departure of Baraza should give the reformists an opportunity to back Martha Koome as the next DCJ of Kenya.

Of all the people who were interviewed with Nancy Baraza for the job of the DCJ, Martha Koome impressed me most as a person dedicated to bringing about reforms in this country. Her impressive resume shows that she is not only an experienced lawyer and respectable judge of Court of Appeal but also a very dedicated reformist who has impressively served twice as the chairperson of FIDA and a Council Member of the LSK.

As a judge she has served in various parts of the country and knows the weaknesses of the Judiciary as an insider. Her strongest points however are the leadership qualities that are threatening to cause the downfall of Nancy Baraza. If the Deputy Chief Justice had taken the trouble to master all the leadership requirements found in Chapter Six of the new Constitution, she would today be still among the most respected personalities in our nation.

The saddest aspect about Baraza’s predicament is the fact that a lot of Kenyans had confidence in her ability to make sure the new Constitution was implemented to the letter by the Judiciary. Paradoxically it is that same constitution which is now instrumental to very early calls for her departure.

It is very hard to believe that Nancy Baraza had not read Article 73 (1) of the Constitution of Kenya 2010, which says that authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the new constitution which demonstrates respect for the people. The most challenging accusation against Baraza is her failure to show respect to Rebecca Kerubo Morara, an ordinary Kenyan respected and defended by the Constitution that put Baraza in the high office she was so proud of.

Unfortunately Baraza is also accused of failing to bring honour to the nation and dignity to the high office of the DCJ. The Constitution demands her to promote public confidence in the integrity of the office of DCJ. More than anyone else Nancy Baraza , as the number two boss of the Judiciary, should have known that the responsibilities of leadership vested in her high office required her to serve the people, rather than to go to supermarkets to exhibit the power to rule them.

If Nancy Baraza is not in a position to follow the demands of Chapter Six of the Constitution then she should be shown the door, my earlier stand of appealing for her apology notwithstanding. In matters of implementing the new Constitution this is a very crucial moment. Among the people who will make the loudest noise against Baraza will be the so-called “Reds” and “Watermelons” who were all the time against the new Constitution anyway.

These will be the people calling for Nancy Baraza’s exit in the hope that one of their own will take over to make the implementation of the Constitution even more cumbersome. This is why it is important to make sure that if Nancy Baraza goes , and it now looks very likely that she will, then whoever takes over from her must be a lady of impeccable credentials on matters of reforms. Such a lady is Martha Koome.

Her impressive CV says that Justice Koome has a strong background of pursuing matters of social justice and protection of the rights of all individuals and this is shown in the numerous boards that she has participated in Pro Bono including Kenya Women Finance Trust, Law Society of Kenya, ANPCAN, FIDA and a cause that is close to her heart the protection of children sees her work very closely with Imani Children’s home. In gratitude to her never ending support, Justice Koome has several children named after her that she supports financially and through social visits, says the resume.

The departure of Nancy Baraza , if at all it becomes the inevitable eventuality, will also see this country torn , as usual, along tribal lines. The Luhyas are likely to gang up even in Parliament to make it almost impossible for anyone else outside the former Western Province from taking over as the DCJ. There are already talks of Central Province politicians ganging up to support the candidature of Martha Koome. This is the tragedy of leadership in Kenya. Koome should be supported by all Kenyans because of her competence and not because she comes from the former Central Province.

Indeed Article 73(2) of the new Constitution says the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability, or election in free and fair elections. Among the most important qualities of leadership recommended by the new Constitution are objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

As it is recommended by the Constitution, Martha Koome has provided selfless service based solely on the public interest, which is demonstrated by her honesty in the execution of public duties. According to All Africa.com Martha Koome wants the role of the deputy Chief Justice defined. She expressed those sentiments to the Judicial Service Commission when she was being interviewed for Nancy Baraza’s job in May last year. Koome was responding to Commissioner Ahmednassir Abdullahi's question who sought to know if she knew what she had applied for. All Africa.com quotes Koome saying that though she had the job description, there was need to develop the terms of reference for the position of deputy CJ.

According to Article 161(1) of the Constitution the Judiciary consists of the judges of the superior courts, magistrates, other judicial officers and staff. It establishes the office of Chief Justice, who is the Head of the Judiciary; and the Deputy Chief Justice, who is the Deputy Head of the Judiciary. Article 163(1) establishes the Supreme Court, which consists of the Chief Justice, who is the president of the court; the Deputy Chief Justice, who deputises for the Chief Justice; and is the vice-president of the court; and five other judges.

The Constitution says the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President and appellate jurisdiction to hear and determine appeals from the Court of Appeal; and any other court or tribunal as prescribed by national legislation. If Nancy Baraza goes there will be political as well as tribal tug-of-wars to have her replaced by someone who will be manipulated by other powers outside the Judiciary. To avoid that Koome should replace Baraza.