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.
Thursday, January 26, 2012
Wednesday, January 25, 2012
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.
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.
Sunday, January 22, 2012
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.
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.
Tuesday, January 10, 2012
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.
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.
Sunday, January 8, 2012
Nancy Baraza should apologize
Nancy Baraza is stuck into a filthy and embarrassing quagmire. She badly slipped on New Year’s eve and has now become a subject of ridicule and contempt. But she is still Nancy Baraza, the lady who topped the list of scores of highly qualified Judges, lawyers and academics to be chosen the country’s first Deputy Chief Justice under the new Constitution. There are very few people of Nancy Baraza’s competence.
Those who know Nancy Baraza well will tell you for nothing that she is a woman of no nonsense. You step on her toes at your own peril. Her capacity to hit back is as quick as lightening and just as lethal. It is without a doubt that Rebecca Kerubo, the security guard at the Village Market, had none of these facts when she insisted on frisking the Deputy Chief Justice on New Year ’s Eve before the number two boss of justice in the country entered the mall for shopping. The rest is now history; but a number of vital questions ought to be discussed by the entire society on what is now commonly known as the Nancy Baraza Gun saga at the Village Market.
The first question is simple but may be would help us know the true nature of our society. It simply is: Who between Nancy and Rebecca is more important before the law and who among them should be protected more by that same law than the other? Asked in colonial times, the answer would obviously have been Nancy. In those days no small woman of Rebecca’s status, working as a female askari, a position which in fact never existed, would have dreamt of coming anywhere close to a judge, leave alone the number two of the judges in Kenya.
If Rebecca would have been lucky enough to get a job as a doorkeeper through which judges walked, her duty would have been to solute to all the white judges, because that is what they all were, and maybe she would also have been obliged to kowtow so deeply in order to show her respect, fear and awe to the powers of the crown in the colony.
Under Jomo Kenyatta’s regime she would have ended up in jail for disrespecting authority by trying to bodily search a judge. Under Daniel arap Moi’s rule of terror Rebecca would probably simply have disappeared or get all sorts of charges framed up against her before she ended up in jail for disrespecting lawful authority.
Today Rebecca is a lucky lady. She is protected by the Bill of Rights found in Chapter Four of the Constitution which says in Article 19(2) that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. The fact that Rebecca’s rights are protected by the Constitution is also known to Nancy who admits there was an “unfortunate” incident at the Village Market on the last day of last year.
The incident has also made the CJ, Willy Mutunga, to summon the JSC to examine the Nancy Baraza episode. As the high powered team meets to look into the whole sad issue the second question comes to mind: Would Nancy Baraza have been humiliated by succumbing to a bodily search by Rebecca on that fateful day? Even as the number two judge in the country is she really the people’s boss or servant?
Article 159. (1) of the Constitution says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. That to me makes the people to be Nancy Baraza’s bosses and when she goes around demanding to be given special treatment like Colonial, Kenyatta’s or Moi’s judges, as Rebecca seems to suggest, the whole episode becomes an extremely sad affair which should make us all wonder whether the DCJ knows that she is indeed a mere servant of the people.
Even when she is on the Bench exercising her powers Baraza is not allowed to forget that fact for Article 199 (2) also clearly say that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status; without being delayed. Be that as it may Baraza is not an ordinary person. She topped the list of scores of applicants who wanted her job because she was, without any doubt the most qualified of the lot.
The qualifications needed for her job were not ordinary. The Judicial Service Commission, which will be reviewing her case, wanted someone who would be deputising for the CJ and be the Vice President of the Supreme Court. Apart from being responsible to the Chief Justice Nancy Baraza wears many other hats but basically the JSC wanted a person of high moral character, integrity and impartiality.
In addition the JSC wanted a person who had demonstrated a high degree of professional competence , communication skills , fairness, good temperament, making good judgement in both legal and life experience and commitment to public and community service. The allegations made by Rebecca against Nancy put Baraza’s real qualifications for the job she is holding in a very tricky and questionable situation .Since she admits the incident at the Village Market was an “unfortunate” one, she probably needs to explain to the JSC about the manner in which she was able to, or probably not quite able to, control her temper on New Year’s eve.
Rebecca has told journalists that Nancy has sent a lady to try and reconcile the two . If it is true it is a commendable gesture which shows the soft side, which is the humane side, of Nancy Baraza. After all she is also a human being and the approaches she is making are indeed supported by the Constitution which says in Article 159 (2)(c) that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause (3) which says traditional dispute resolution mechanisms shall not be used in a way that— contravenes the Bill of Rights; is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law.
Nancy Baraza will now have an uphill task of proving that she did not in any way violate Rebecca’s fundamental rights as they are enshrined in the Bill of Rights in Article 27(1) which says every person is equal before the law and has the right to equal protection and equal benefit of the law.The Constitution says clearly that equality includes the full and equal enjoyment of all rights and fundamental freedoms.
Baraza can therefore not use State powers, some of which she arguably enjoys, to deny other people their rights because the Constitution says the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion,conscience, belief, culture, dress, language or birth.
To Nancy Baraza,Rebecca Kerubo is a very small person. But before the law they are both equal and Nancy, as the second most powerful person in the Judiciary should have been the first person , or is this the second, to know that. The very least she can do now is to publicly apologize to Rebecca and pay her a handsome amount which will make her forget the sad incident. And then she should continue to be the DCJ this country needs.
Those who know Nancy Baraza well will tell you for nothing that she is a woman of no nonsense. You step on her toes at your own peril. Her capacity to hit back is as quick as lightening and just as lethal. It is without a doubt that Rebecca Kerubo, the security guard at the Village Market, had none of these facts when she insisted on frisking the Deputy Chief Justice on New Year ’s Eve before the number two boss of justice in the country entered the mall for shopping. The rest is now history; but a number of vital questions ought to be discussed by the entire society on what is now commonly known as the Nancy Baraza Gun saga at the Village Market.
The first question is simple but may be would help us know the true nature of our society. It simply is: Who between Nancy and Rebecca is more important before the law and who among them should be protected more by that same law than the other? Asked in colonial times, the answer would obviously have been Nancy. In those days no small woman of Rebecca’s status, working as a female askari, a position which in fact never existed, would have dreamt of coming anywhere close to a judge, leave alone the number two of the judges in Kenya.
If Rebecca would have been lucky enough to get a job as a doorkeeper through which judges walked, her duty would have been to solute to all the white judges, because that is what they all were, and maybe she would also have been obliged to kowtow so deeply in order to show her respect, fear and awe to the powers of the crown in the colony.
Under Jomo Kenyatta’s regime she would have ended up in jail for disrespecting authority by trying to bodily search a judge. Under Daniel arap Moi’s rule of terror Rebecca would probably simply have disappeared or get all sorts of charges framed up against her before she ended up in jail for disrespecting lawful authority.
Today Rebecca is a lucky lady. She is protected by the Bill of Rights found in Chapter Four of the Constitution which says in Article 19(2) that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. The fact that Rebecca’s rights are protected by the Constitution is also known to Nancy who admits there was an “unfortunate” incident at the Village Market on the last day of last year.
The incident has also made the CJ, Willy Mutunga, to summon the JSC to examine the Nancy Baraza episode. As the high powered team meets to look into the whole sad issue the second question comes to mind: Would Nancy Baraza have been humiliated by succumbing to a bodily search by Rebecca on that fateful day? Even as the number two judge in the country is she really the people’s boss or servant?
Article 159. (1) of the Constitution says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution. That to me makes the people to be Nancy Baraza’s bosses and when she goes around demanding to be given special treatment like Colonial, Kenyatta’s or Moi’s judges, as Rebecca seems to suggest, the whole episode becomes an extremely sad affair which should make us all wonder whether the DCJ knows that she is indeed a mere servant of the people.
Even when she is on the Bench exercising her powers Baraza is not allowed to forget that fact for Article 199 (2) also clearly say that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status; without being delayed. Be that as it may Baraza is not an ordinary person. She topped the list of scores of applicants who wanted her job because she was, without any doubt the most qualified of the lot.
The qualifications needed for her job were not ordinary. The Judicial Service Commission, which will be reviewing her case, wanted someone who would be deputising for the CJ and be the Vice President of the Supreme Court. Apart from being responsible to the Chief Justice Nancy Baraza wears many other hats but basically the JSC wanted a person of high moral character, integrity and impartiality.
In addition the JSC wanted a person who had demonstrated a high degree of professional competence , communication skills , fairness, good temperament, making good judgement in both legal and life experience and commitment to public and community service. The allegations made by Rebecca against Nancy put Baraza’s real qualifications for the job she is holding in a very tricky and questionable situation .Since she admits the incident at the Village Market was an “unfortunate” one, she probably needs to explain to the JSC about the manner in which she was able to, or probably not quite able to, control her temper on New Year’s eve.
Rebecca has told journalists that Nancy has sent a lady to try and reconcile the two . If it is true it is a commendable gesture which shows the soft side, which is the humane side, of Nancy Baraza. After all she is also a human being and the approaches she is making are indeed supported by the Constitution which says in Article 159 (2)(c) that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause (3) which says traditional dispute resolution mechanisms shall not be used in a way that— contravenes the Bill of Rights; is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or is inconsistent with this Constitution or any written law.
Nancy Baraza will now have an uphill task of proving that she did not in any way violate Rebecca’s fundamental rights as they are enshrined in the Bill of Rights in Article 27(1) which says every person is equal before the law and has the right to equal protection and equal benefit of the law.The Constitution says clearly that equality includes the full and equal enjoyment of all rights and fundamental freedoms.
Baraza can therefore not use State powers, some of which she arguably enjoys, to deny other people their rights because the Constitution says the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion,conscience, belief, culture, dress, language or birth.
To Nancy Baraza,Rebecca Kerubo is a very small person. But before the law they are both equal and Nancy, as the second most powerful person in the Judiciary should have been the first person , or is this the second, to know that. The very least she can do now is to publicly apologize to Rebecca and pay her a handsome amount which will make her forget the sad incident. And then she should continue to be the DCJ this country needs.
Monday, January 2, 2012
Nyachae – Muigai fight is healthy
It is wonderful that there is an open disagreement between Attorney General Githu Muigai and the Commission for the Implementation of the Constitution (CIC) boss Charles Nyachae. That disagreement has opened the peoples’ eyes as to who is seriously concerned with the noble task of implementing the Constitution. Simultaneously it has also exposed those working against it.
To begin with, it must be understood by all that the greatest impediment to the democratisation of our society has always been the despotic constitution we have just thrown into the dustbin of history. That constitution gave both Jomo Kenyatta and Daniel arap Moi powers to detain people without trial; it legitimized the creation of an extremely wide gap between the haves and the have-nots. At one time it even made Kenya legally a one party state.
Today there are a number of people who nostalgically wish the old constitution never died. These are the super-rich members of our communities who have since independence occupied the top positions in the Executive, the Judiciary and the Legislature. Their almost criminal domination of all the three arms of Government is now being seriously challenged by the new constitution whose implementation was predicted to be a big threat to the powers that be.
This prediction made the drafters of the new Constitution come up with a well thought-out mechanism that would make it almost impossible to stop the sweeping tsunami of the Constitution from introducing social, economic and political changes needed in the country. That is how the Constitution Implementation Commission came into existence in 2010 through the Commission for the Implementation of the Constitution Act.
According to Section Four of the Act the functions of the Commission shall be to—(a) monitor, facilitate, and oversee the development of legislation and administrative procedures required to implement the Constitution; (b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; (c) work with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected; (d) report at least once every three months to the Parliamentary Select Committee on— (i) the progress in the implementation of the Constitution; and (ii) any impediments to the implementation of the constitution; (e) exercise such other functions as are provided for by the constitution or any other written law.
No matter how hard the AG tries he cannot succeed in trivialising the functions of the CIC. Nyachae has every right to complain when he feels the constitution is not being implemented according to the spirit and the letter of the new supreme law of the land. Chapter Eight of the new Constitution which deals with transitional and consequential provisions says in Article 261(4) that the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
Muigai cannot introduce Bills to implement the new Constitution without consulting Nyachae and he cannot pretend to have the powers to reject what Nyachae proposes. Yet Nyachae is far from being happy with Muigai as far as the implementation of the new Constitution is concerned. The allegations he is making against Muigai are very serious. He says most of the bills developed have not been based on policies and the laws passed have not been reinforced by administrative procedures. According to Nyachae this makes delivery of service to the people of Kenya hard and may not promote constitutionalism.
These are extremely serious allegations made by Nyachae. Rather than dismissing CIC as a temporary institution that may not last more than two years Muigai would do well to point out openly and publicly what suggestions made by Nyachae are unconstitutional. After all Nyachae has done exactly that – pointing out specific areas of the passed laws that go against the spirit and the letter of the new Constitution.
If the Kibaki regime is having second thoughts about some pertinent issues of the constitution which are intended to bring about change in this country, then the matter must be debated in public in the manner suggested by Nyachae. Kenyans are aware of some very dirty tricks being used by those who opposed the new Constitution but unfortunately are now mandated with the task of implementing it. If the new Constitution is implemented fully then a good number of corrupt top civil servants will have to be shown the door. These are the people now trying to torpedo the implementation of the new Constitution.
Nyachae, for example, says some provisions in the enacted legislation either violate the letter of the constitution or are in conflict with the reformist spirit of the Constitution. He maintains that in order to initiate amendments to certain pieces of legislation, CIC audited all legislation enacted in 2011 and submitted its views to the Attorney General in September 2011. Nyachae says this legislative audit was also shared with the President, the Prime Minister and the National Assembly. According to him CIC hopes that the AG will take steps to ensure amendments to bring these statutes in line with the constitution are effected as soon as possible. Unfortunately he reveals that in the meantime, it is a matter of concern and regret for CIC that it has yet to receive response or feedback to the said legislative audit.
As Kenyans of great nationalistic commitments, Nzamba Kitonga and his team of drafters could predict that efforts would be made to water down the revolutionary suggestions of the new Constitution. They therefore came up with a special chapter that enables ordinary people to challenge whoever tries to play dirty games with the new Constitution in court. Article 258 (1) says every person has the right to institute court proceedings, claiming that the new Constitution has been contravened, or is threatened with contravention.
Ordinary Kenyans who for decades have been exploited legally because of a faulty constitution which was amended by crooks to give themselves more political , social and economic powers must not let Charles Nyachae fight the current battle single handed. The enlightened civil society joined by the ordinary people , if necessary in the Egyptian and Tunisian styles, should join hands and make sure the new constitution is implemented to the letter without the tampering of the new constitution by the “reds” and the watermelons.
To begin with, it must be understood by all that the greatest impediment to the democratisation of our society has always been the despotic constitution we have just thrown into the dustbin of history. That constitution gave both Jomo Kenyatta and Daniel arap Moi powers to detain people without trial; it legitimized the creation of an extremely wide gap between the haves and the have-nots. At one time it even made Kenya legally a one party state.
Today there are a number of people who nostalgically wish the old constitution never died. These are the super-rich members of our communities who have since independence occupied the top positions in the Executive, the Judiciary and the Legislature. Their almost criminal domination of all the three arms of Government is now being seriously challenged by the new constitution whose implementation was predicted to be a big threat to the powers that be.
This prediction made the drafters of the new Constitution come up with a well thought-out mechanism that would make it almost impossible to stop the sweeping tsunami of the Constitution from introducing social, economic and political changes needed in the country. That is how the Constitution Implementation Commission came into existence in 2010 through the Commission for the Implementation of the Constitution Act.
According to Section Four of the Act the functions of the Commission shall be to—(a) monitor, facilitate, and oversee the development of legislation and administrative procedures required to implement the Constitution; (b) co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; (c) work with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected; (d) report at least once every three months to the Parliamentary Select Committee on— (i) the progress in the implementation of the Constitution; and (ii) any impediments to the implementation of the constitution; (e) exercise such other functions as are provided for by the constitution or any other written law.
No matter how hard the AG tries he cannot succeed in trivialising the functions of the CIC. Nyachae has every right to complain when he feels the constitution is not being implemented according to the spirit and the letter of the new supreme law of the land. Chapter Eight of the new Constitution which deals with transitional and consequential provisions says in Article 261(4) that the Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
Muigai cannot introduce Bills to implement the new Constitution without consulting Nyachae and he cannot pretend to have the powers to reject what Nyachae proposes. Yet Nyachae is far from being happy with Muigai as far as the implementation of the new Constitution is concerned. The allegations he is making against Muigai are very serious. He says most of the bills developed have not been based on policies and the laws passed have not been reinforced by administrative procedures. According to Nyachae this makes delivery of service to the people of Kenya hard and may not promote constitutionalism.
These are extremely serious allegations made by Nyachae. Rather than dismissing CIC as a temporary institution that may not last more than two years Muigai would do well to point out openly and publicly what suggestions made by Nyachae are unconstitutional. After all Nyachae has done exactly that – pointing out specific areas of the passed laws that go against the spirit and the letter of the new Constitution.
If the Kibaki regime is having second thoughts about some pertinent issues of the constitution which are intended to bring about change in this country, then the matter must be debated in public in the manner suggested by Nyachae. Kenyans are aware of some very dirty tricks being used by those who opposed the new Constitution but unfortunately are now mandated with the task of implementing it. If the new Constitution is implemented fully then a good number of corrupt top civil servants will have to be shown the door. These are the people now trying to torpedo the implementation of the new Constitution.
Nyachae, for example, says some provisions in the enacted legislation either violate the letter of the constitution or are in conflict with the reformist spirit of the Constitution. He maintains that in order to initiate amendments to certain pieces of legislation, CIC audited all legislation enacted in 2011 and submitted its views to the Attorney General in September 2011. Nyachae says this legislative audit was also shared with the President, the Prime Minister and the National Assembly. According to him CIC hopes that the AG will take steps to ensure amendments to bring these statutes in line with the constitution are effected as soon as possible. Unfortunately he reveals that in the meantime, it is a matter of concern and regret for CIC that it has yet to receive response or feedback to the said legislative audit.
As Kenyans of great nationalistic commitments, Nzamba Kitonga and his team of drafters could predict that efforts would be made to water down the revolutionary suggestions of the new Constitution. They therefore came up with a special chapter that enables ordinary people to challenge whoever tries to play dirty games with the new Constitution in court. Article 258 (1) says every person has the right to institute court proceedings, claiming that the new Constitution has been contravened, or is threatened with contravention.
Ordinary Kenyans who for decades have been exploited legally because of a faulty constitution which was amended by crooks to give themselves more political , social and economic powers must not let Charles Nyachae fight the current battle single handed. The enlightened civil society joined by the ordinary people , if necessary in the Egyptian and Tunisian styles, should join hands and make sure the new constitution is implemented to the letter without the tampering of the new constitution by the “reds” and the watermelons.
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