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.
Tuesday, March 20, 2012
Tuesday, March 13, 2012
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.
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.
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