Msemakweli

Constitution to dominate elections

2012-02-13T07:33:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Democracy in ODM admirable

2012-02-13T01:35:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

Uhuru must resign as DPM

2012-01-26T21:20:00.000-08:00

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

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

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

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

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

It is also true that the law also says the person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of the political party that has the largest number of members in the National Assembly; or a coalition of political parties in the event that the leader of the political party that has the largest number of members in the National Assembly does not command the majority in the National Assembly. That kind of description meant that only Raila Odinga could be appointed to be the Prime Minister. He was and still is the leader of ODM which has and still does have the largest number of MPs.

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

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

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

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

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

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

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

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

Kibaki is against ICC ruling

2012-01-25T06:31:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Election date judgement was patriotic

2012-01-22T04:31:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

Koome should replace Baraza

2012-01-10T01:01:00.000-08:00

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.

Nancy Baraza should apologize

2012-01-08T08:31:00.000-08:00

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.

Nyachae – Muigai fight is healthy

2012-01-02T03:25:00.000-08:00

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.

ICC: Kenyans want justice

2011-04-06T04:20:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ODM’s referral best option

2011-03-27T08:13:00.001-07:00

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

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

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

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

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

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

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

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

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

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

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

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

PNU admissibility challenge hopeless

2011-03-25T08:53:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

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

Muthaura is a threat to stability

2011-03-21T08:01:00.000-07:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ruto, Sang and Kosgey culpable

2011-03-10T04:35:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Uhuru, Muthaura and Ali must go

2011-03-09T05:52:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kenyan coalition rocky but active

2011-03-02T00:59:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kibaki’s withdrawal betrays KKK

2011-02-25T04:42:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Marende spoils KKK plan

2011-02-18T02:33:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nominations: Principals agree to disagree

2011-02-08T04:37:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ousting Raila illegally is unwise

2011-02-07T06:09:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Musinga upholds Kenya’s constitutionalism.

2011-02-03T11:18:00.000-08:00

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kibaki’s shocking KKK appointments

2011-01-31T11:21:00.000-08:00

President Mwai Kibaki’s nominations of four highly qualified Kenyan personalities for the positions of the Chief Justice, the Attorney General, the Director of Public Prosecution and Controller of Budget are extremely controversial. He has made them without consulting the Prime Minister as it is required by the new Constitution.

No one can claim that the nomination of Alnashir Visram for the post of the country’s next Chief Justice was a mistake because the appellate Judge is not only respected among his peers but he also happens to be highly qualified. The President can also not be accused of selecting a misfit for the position of the Attorney General since Professor Githu Muigai is an extremely respected lawyer both in legal and academic circles.

In terms of qualifications and experience the President made the right choice when he nominated Kioko Kilukumi for the position of the Director of Public Prosecutions because the nominee has very impressive credentials. No one can quarrel with the President’s choice of William Kirwa as the country’s Controller of Budget because Kirwa is also a highly qualified person.

Good as Kibaki’s choices are, however, they fall short of following the constitutional requirements which demand that he consults with the Prime Minister before he makes such appointments. As far as the appointment of the Chief Justice is concerned he has not only to consult with the Prime Minister but he has also got to involve the Judicial Service Commission. According to Article 166 (1) of the new Constitution the President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly.

When the country was wondering whether the Justice Alnashir Visram was recommended to the President by the Judicial Service Commission or whether he still had to be vetted by the Commission before taking over the top job after his clearance by Parliament, the JSC dropped a bombshell by rejecting Kibaki’s nominations. That rejection may make it extremely difficult for Speaker Kenneth Marende to allow the debate on Kibaki’s nominations to be tabled in Parliament before it is absolutely clear that the two principals see eye to eye on that matter.

The move by the JSC is particularly harmful to the President because the current Chief Justice, Evan Gicheru, chaired the meeting that nullified the nominations. At the meeting was the current Attorney General, Amos Wako. This makes the rejection of the President’s nominations even more credible. No sooner did JSC reject Kibaki’s nomination than the Chairman of Parliament’s Justice and Legal Affairs Committee, Ababu Namwamba, vowed never to table the nominations in Parliament for MPs to approve or disapprove unless the constitutional procedure was strictly followed by the President.

To make matters worse the Committee on Implementation of the Constitution (CIC) took a similar firm stand against the President, making the nominations illegal. If Kibaki decides to go to court to demand his nominations to be recognized by the law, the chances are that his demands would be rejected. Not even his own Attorney General supports him on this matter.

If, in an unlikely event, the Speaker allows the vetting of the nominees by the MPs to go ahead despite the controversy surrounding the whole exercise, Parliament is likely to approve the nominations since the KKK in National Assembly are now the majority in the House. As Parliament examines President’s nominees, eyebrows will inevitably be considerably raised by the sheer coincidence of the selected personalities’ ethnic origin.

Ether coincidentally or deliberately Kibaki nominated Muigai, a Kikuyu, Kilukumi, a Kamba and Kirwa, a Kalenjin for the top Constitutional positions. Whether the respected nominated personalities sympathize with, or have any respect for, the KKK leadership Kenyans are likely to perceive the nominations as Kibaki’s deliberate maneuvering tactic to get the KKK support in Parliament for his nomination. Kibaki is certain to get that support from the majority of Parliamentarians because of his selection’s ethnic background rather than for the fact that they are highly qualified people.

If Marende allows the nomination debate to take place the KKK’s power in Parliament will be put to test with a likelihood of bloc voting to prove the tribal group is a power to reckon with. Kibaki’s selection is sure to go through. If that happens, Muigai and Kirwa may have no choice as judicial officers but to step down as their nominations have been rejected by the JSC. As for Alnashir Visram whose appointment as the country’s next Chief Justice depends on the recommendation of the JSC, he has no option but to reject Kibaki’s offer. This means, whether Kibaki likes it or not, he will have to consult Raila Odinga once more on the appointment of the Chief Justice.

Without the new Chief Justice in office there can be no hope of ever deferring the Kenyan case now pending in The Hague. It is a shame that the country can be bogged down on semantics of consultation. KKK claims the mere mentioning of the subject of nominations of top Constitutional positions by the President to the Prime Minister amounts to consulting him. This is regardless of the PM’s acceptance or rejection of the President’s choices which may even be made in a casual manner.

As the Prime Minister argues with the stubborn KKK over the legal meaning of the term “consultation” the country knows that both Raila and Kibaki cannot be right. One of them must be wrong. Whereas the now powerful KKK in Parliament supports the President’s interpretation, the law and the people of Kenya support the Prime Minister.

On the issue of new appointments the new Constitution is very clear. It says in Section 29 (2) of Transitional and Consequential Provisions of the Sixth Schedule that the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.

If there is any law that puts the whole argument about the meaning of the word “consultation” as it is used in the new Constitution to rest, that law is the National Accord and Reconciliation Act of 2008, which unambiguously says that the coalition must be a partnership with commitment on both sides to govern together and push through the reform agenda for the benefit of all Kenya. Yet there is absolutely nothing that threatens the reform agenda, and indeed also threatens the implementation of the new Constitution, as the KKK.

According to Prime Minister Raila Odinga and Justice Minister Mutula Kilonzo KKK’s main objective is to work against the new Constitution by making sure it will never be implemented in its present form. The two are just confirming the suspicion of many pundits who predicted that the opponents of the new Constitution would try to use Parliament to frustrate its implementation efforts.

Among the most authoritative sources of that prediction was the Kenya National Dialogue and Reconciliation (KNDR) Review Report of October last year which warned that anti-reformers could sabotage the implementation process. The report said the anti reformers had regrouped and formed political and bureaucratic alliances to frustrate the reform process. It said in the run up to the referendum, the anti-reformers had buttressed the numbers of the undecided (colloquially referred to as ‘water melons’ to denote people who were green for Yes, and red for No).

Because of the passion with which such groups protect self-interests, said the report ,it is possible that they will use the bureaucracy and their political influence to develop legislation of a low standard or ensure that proposed legislation protects the status quo. The KNDR then called for vigilance because the anti-reform forces including the ‘water melons’ could take over the implementation of the Constitution. If they do, KNDR warned, the old order will prevail, and the country will revert from a reform mode to ‘business as usual’.

Kibaki’s strange relation with KKK

2011-01-23T03:16:00.000-08:00

The so called reconciliation rally attended by President Mwai Kibaki as the guest of honour in Eldoret on 21st January 2011 was an eye opener to most Kenyans. It exposed the Head of State as a clandestine supporter of the KKK. Apart from that it also showed him as a very gullible victim of tribal nationalism which makes him harbour very unusual relationship with the KKK. Either way the rally told Kenyans that efforts to make the next general election a tribal affair have now taken a new dimension with the support of a very powerful section of the coalition Government.

If ever Kenyans fall into the KKK trap and organize themselves along tribal lines for the next year’s general elections then the danger of ending up with yet another tribal confrontation, with the consequences of real bloodbath which will probably be worse than what the country saw in 2007-08, are very real. Fortunately the Eldoret rally was seen by most Kenyans as a futile attempt to balkanize the country tribally to benefit the political class that has dominated Kenya for almost half a century.

What is more, the Eldoret rally had absolutely nothing to do with reconciliation between the Kikuyus and Kalenjins. It was a deceitful game of building castles in the air through creating an imaginary political smokescreen of Kenya being led by Uhuru Kenyatta as the new President and William Ruto as his Deputy or vice versa.

Everyone present knew the game was simply a fictitious ploy to hoodwink the people of Kenya and especially the Kikuyus and Kalenjins to make them not face some fundamental problems confronting them. To being with the wounds caused by the post election violence between the two tribes are still fresh and far from showing any signs of healing. The animosity runs extremely deep with hundreds of thousands of Kikuyu IDPs languishing in ramshackle tents made of torn canvas and plastic waste.

These are people who, before the post election clashes, lived very comfortably in their well developed farms now being occupied by Kalenjins who took the land from the Kikuyus through the most barbaric methods which included mass murders, rape and arson. Kikuyus, on the other hand, organized themselves through the Mungiki gangster militia that hit back at the Kalenjins in more or less the same barbaric method. That is why Ruto and Uhuru are today wanted by Luis Moreno-Ocampo in The Hague.

When politicians meet in public rallies such as the one in Eldoret and talk about Kalenjin –Kikuyu reconciliation they know very well that a lot more needs to be done apart from Kenyatta and Ruto holding hands on a political platform in front of the Head of State. Unless the Kikuyus are given back their farms they will never forgive the Kalenjins. Yet the Kalenjins believe the land they took from the Kikuyus was and still is their own ancestral property.

The problem between the Kalenjins and Kikuyus could only be solved through a properly functioning TJRC which would lay all the cards on the table before suggesting a solution. Unfortunately the TJRC is itself almost dead because it started on a wrong footing with an unacceptable Bethwel Kiplagat as its chairman. Without a proper TJRC, animosity between communities can only be solved through pretentious games of dramatic tragicomedies such as the one witnessed in Eldoret last Friday.

At the Eldoret rally Ruto and all his Kalenjin MPs knew very well that they would never welcome back the Kikuyus in the farms now occupied by their people, despite the fact that Kibaki’s main goal of going to the rally was to get his Kikuyu people back to their farms. On the other hand, Kibaki also knew very well that he would never accept William Ruto back into his Cabinet when he is a wanted criminal both locally and internationally. Yet Kalenjins’ conditionality of having the Kikuyus back to their farms was to have Ruto back in the Cabinet. The mutual arm-twisting between the Kalenjins and the President complicated the deceitful game at the Eldoret rally.

Apart from the ridiculous game of public pretense to solidify the unity in KKK, that tribal organization is facing an extremely serious legal problem. It is, in fact, for all practical purposes, a prohibited illegal organization. The Constitution does not allow the existence of such a dogmatically intolerant entity to survive camouflaged as a political group. That is why its leaders are in a terrible panic. They are hurriedly trying to establish an acceptable political body to replace it.

As seasoned politicians the leaders of the intolerable KKK, Uhuru Kenyatta, Kalonzo Musyoka and William Ruto, have read the writing on the wall and realized that their tribal institution is facing a massive rejection by the people. The move to get a new political party established before next year’s presidential election is itself faced with a subterranean divisive threat. Whose political party will be acceptable to all the three leaders?

Ruto is planning to move to the little known United Democratic Movement (UDM) while Uhuru has just announced a move to register the so called PNU Alliance, which brings together the same people who are in the almost dead old PNU, which includes Kalonzo Musyoka’s ODM-K. The possible unity between UDM, ODM-K and PNU Alliance will probably be the new face of the KKK, which is bound to face the same misfortune of total rejection by the people of Kenya because it will not have changed anything in the tribal aspirations of the rejected KKK.

Whatever the three musketeers of the KKK do they have a major problem of establishing an acceptable political vehicle with which to confront Raila’s Odinga’s formidable ODM. Long before that vehicle has been established a number of major hurdles appear to be confronting the three tribal kingpins of the KKK. First they have to obey the law; and the law is now governed by the new Constitution which has very strict requirements to be followed by those who want to establish credible national political parties in this country.

According to Article 38 of the new Constitution every citizen is free to make political choices, which includes the right to form, or participate in forming, a political party; to participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause. If that was all that the new constitution said about political parties, in the Bill of Rights, then the KKK leaders would have had a field day in continuing to confuse Kenyans by forming all sorts of political parties just before elections in order to attract people along tribal lines.

Indeed that is how both PNU and ODM-K were formed. Whereas the former is a party of the Kikuyus, Embus and Merus of the Mount Kenya region, the later is certainly a party of the Kamba people. The drafters of the new Constitution led by Nzamba Kitonga knew very well that the right to form political parties had to be included in the Bill of Rights. But they also knew that that right could be abused by the political class in Kenya that has all the time survived through ownership of such tribal political parties.

To solve that serious problem that indeed went against the very spirit of proper Bills of right, the drafters of the new constitution came up with very wonderful protection of the people’s rights in Chapter Seven on Representation of the people. Nzamba Kitonga and his team saved the people of Kenya through Article 91 of the new Constitution which demands every political party in the new Kenya to have a national character as prescribed by an Act of Parliament.

The new Constitution demands political parties to have a democratically elected governing body; promote and uphold national unity; abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; respect the right of all persons to participate in the political process, including minorities and marginalized groups. All these are qualities which lacked in almost all political parties in Kenya except the ODM, which has also got an uphill task of shedding off the stigma that it personally belongs to Raila Odinga.

The new Constitution demands all political parties to respect and promote human rights and fundamental freedoms, and gender equality and equity; promote the rule of law; and subscribe to and observe the code of conduct for political parties. The new Constitution categorically prohibits political parties that are founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis. According to the new Constitution, therefore, the KKK itself would be a prohibited organization.

That is obviously one of the reasons for the rush to form political parties that appear to be national when in reality they will be well known tribal associations no different from the KKK. Apart from everything else Article 77(2) of the new Constitution states any appointed State officer shall not hold office in a political party. If KKK wins the next general lection and Uhuru Kenyatta and William Ruto become the country’s new President and Deputy President they will not be allowed to hold office in a political party. Even if, in the unlikely event, Uhuru and Ruto end up to be the President and Vice President of Kenya the tribal parties that will put them in power will be in fact without any nationally recognized leaders. A very terrible eventuality to imagine!

Raila’s chances to remain at the top

2011-01-17T07:07:00.000-08:00

As the most popular politician in Kenya who stands the greatest chances to succeed Mwai Kibaki as the country’s next President, Raila Odinga, has very serious choices to make to remain at the top. First he has to prove to the people that he genuinely opposes corruption, which has been a major stumbling bloc to the country’s social, political and economic progress. Then he has also got to prove that he has nothing to do with tribalism, the one quality of leadership that has created more problems for Kenya than it has solved. And lastly he has to prove to the people that he truly believes in justice for all Kenyans and not just for the privileged class.

For Raila to prove that he sincerely opposes all forms of corruption he must stop all the junior ranking members of his political party, ODM, from attacking Dr. P.L.O Lumumba’s commendable efforts to fight corruption. The threat from ODM’s junior MPs to disband the KACC if it doesn’t expose the corrupt PNU leaders the way it has exposed the ODM ones is seen as originating from Raila himself who obviously would not like his party to be seen as the only corrupt one in the country.

But if Raila wants to continue getting the support of the common mwananchi, he must be seen to fight corruption in all its forms, even if it exits in his own party. Raila’s popularity will shoot up to the ceiling if he is seen to support Lumumba’s efforts by publicly warning all ODM top leaders to step down from all public offices , even the offices held in the party, the moment they are suspected by Lumumba to be corrupt.

If he takes such a stern measure against corrupt leaders in his own party and the Ministries administered by ODM politicians, then he will have the moral obligation to loudly ask the suspected PNU corrupt leaders to follow the ODM example. Right now he should be among the first Kenyan leaders to ask Charity Ngilu to step aside while Lumumba is subjecting her to his investigation.

Rather than appearing to oppose Lumumba’s efforts through uncalled for threats, he should be addressing the country both as the ODM leader and the Prime Minister by solemnly undertaking to never tolerate corruption in all its ways, shapes or forms now and in future. That way he will be telling Kenya the kind of President he will be when he takes over from Mwai Kibaki.

Rather than appearing to orchestrate the unnecessary shadow boxing against Lumumba’s good work the Prime Minister should be making sure all the people working under his leadership, whether in the ODM or the Government, exercise their duties in the spirit of the new Constitution’s Chapter Six on leadership and integrity. He should be calling up on all leaders in all political parties and indeed all public offices to demonstrate respect for the people and bring honour to the nation and dignity to the offices they hold just as the new Constitution calls for.

To remain on top of the ladder of popularity Raila has also got to emphatically condemn tribalism in the country, which is threatening to balkanize the nation into hostile ethnic cocoons seeking political powers through tribal unity rather than through ideological conviction. Kenyans know very well that whenever tribal nationalism triumphs, bloodshed follows along the pattern of ethnic clashes that followed the messed up 2007 elections. Whenever Kenyans agree to be manipulated by tribal chauvinists, they end up picking up pangas, bows and arrows in defence of people who have no interest of this country at heart.

The blood Kenyans poured for the sake of the same tribal chauvinists during the post election violence of 2008 has hardly dried up, yet calls are now being made to Kenyans all over again to unite in defence of more or less the same leaders who made people fight only a few years ago. The so called leaders have no shame what so ever when they openly talk of the KKK alliance that is expected to bring the Kikuyus , Kambas and Kalenjin people together to help the same chauvinistic leaders remain in power without going through a proper democratically organized free and fair election.

Kalonzo Musyoka of ODM-Kenya , William Ruto of ODM and Uhuru Kenyatta of Kanu are hoodwinking the Kikuyu, Kamba and Kalenjin people that they want to unite them to form the next Government whose main purpose is to fight against Prime Minister Raila Odinga. They don’t tell the people of Kenya what political platform will bring them and their followers together.

Kalonzo has made the Kamba people believe ODM-K is their political party, Uhuru Kenyatta leads Kanu without Kikuyu followers who belong to all sorts of political parties under the umbrella of PNU and Ruto is the Deputy Leader of ODM where he feels like a square peg in a round whole and from where he wants to pull out all the Kalenjins. Though he has not publicly announced his next political move, it is believed he intends to take all the Kalenjins into an amorphous organization called United Democratic Movement (UDM) which he dreams will be his political ladder into the future leadership of this country.

Kenyans know very little of UDM. They have not seen any election manifesto from it. They don’t know its policy on education, employment or land. All they know is that it will be the main party for the Kalenjin people whose leaders are united to promote two important themes: strong opposition of Raila Odinga’s leadership and the rejection of the new Constitution of Kenya.

Modern day Kenya is crying for a political party based on an ideology that clearly and unambiguously supports the constitution that has just been promulgated. The dream of Kenyans’ future leadership is based on principles found in their new constitution which they have just overwhelmingly endorsed. Raila Odinga’s chances of taking over the leadership of Kenya after that of Mwai Kibaki depend entirely on how strongly he opposes tribalism and supports the democratic principles enshrined in the new constitution.

It so happens that Raila has just announced his party ODM intends to hold countrywide grassroots elections. His continued popularity and the people’s continued acceptance of his party will depend entirely on how free and fair those grass-root elections will be. If his party seeks the assistance of the IIEC to organize truly free and fair elections, totally based on ideology and party manifesto whereby leaders are chosen on the basis of their ability to interpret these principles, rather than on the basis of which tribe or clan they belong to, the popularity of the party among all Kenyans is guaranteed. That single move by the Prime Minister is bound to prove to the wananchi that he indeed is the statesman they have always suspected him to be.

Last but not least Raila’s position as the future President of Kenya will be guaranteed by his unwavering stand for justice for all Kenyans. This he can do by unequivocally supporting Luis Moreno-Ocampo’s move to prosecute people he suspects of having masterminded the post election violence of 2007-08. Indeed, like most democrats, Raila is expected to champion the principle of everyone being innocent until proven guilty.

All the same, as the leader of ODM and the Prime Minister of Kenya, he should be among the first to demand that anyone who has been mentioned by Moreno-Ocampo should resign from all the party or public offices they hold. The individuals named by Moreno-Ocampo are going to be prosecuted in The Hague in their individual capacity and not as holders of either public or party offices.

If it is true, like Moreno-Ocampo would have us believe, they actually masterminded the bloodbath that followed the 2007 elections, then they acted against the well known principles of ODM and the Government. Parties and Governments do not plan mass murders, individuals do. And when they do so, they go against the well known party or Government principles. When a policeman is trigger happy and shoots to kill, he is committing a crime as an individual. If he is doing so as a result of obeying orders given to him by a superior officer then that superior officer is equally guilty individually.

As a political party ODM has no known principle of solving its problems through mass murders and arson. If there is an individual within the party who planned such criminal activities then he, as an individual, should answer charges against him at the ICC. Kenyans know that very serious crimes were committed in this country following the 2007 disputed presidential elections. Whether those crimes amount to crimes against humanity Moreno-Ocampo should be the one to prove before the ICC. He is convinced he has enough evidence and he is also backed by the majority of Kenyans and Raila Odinga should be one of those Kenyans if he really wants to be the next President of this great nation.

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ICC exposes Kenyan MPs’ hypocrisy

2010-12-18T08:36:00.000-08:00

The majority of Kenyan MPs are hypocrites. They have now come out in their true colours in defence of people suspected of committing very serious crimes against the people of Kenya. The manner in which Kenyan MPs reacted to the ICC’s exposure of the six suspected criminals, who are about to be accused of leading this country to the orgy of murder, rape and bloodbath, proves that most of them are hypocritical pretenders who specialize in cheating the voters of this country.

When talking to the voters of Kenya, the MPs openly cheat by claiming that all they want is to make sure justice will be done to hundreds of thousands of innocent wananchi whose homes were burnt down by organized hooligans in the payroll of shadowy evil political schemers who were out to spread ethnic hatred among the people. While addressing voters at public rallies the MPs swear to leave no stone unturned until the blood of 1,300 Kenyans who perished after the post 2007 election violence is paid for through true justice at The Hague.

They call for justice at The Hague because they have lost confidence in the Judiciary in Kenya. That is why they have twice rejected moves to establish an independent local tribunal to try PEV perpetrators. While doing so they shouted loudly “Don’t be vague, just support the Hague option”.

Now that Luis Moreno-Ocampo has named six suspects whom he is planning to prosecute for planning and financing the PEV, the MPs have changed their minds and now they are determined to save the people named and accuse Moreno-Ocampo of politicizing the entire ICC legal system. They shamelessly accuse Moreno-Ocampo of being in Prime Minister Raila Odinga’s pocket and removing from the Kenyan political contest possible opponents who are likely to oppose the Prime Minister in the 2012 presidential elections

Fortunately the people of Kenya can see through this myopic propaganda which is only meant to defeat all international efforts to make sure that justice is not only done for the poor people of Kenya , but it is actually seen to be done at the world’s most respected International Criminal Court. The people Moreno-Ocampo has named are political giants who will always be the most protected sacred cows of Kenyan politics. As far as the Kenyan laws are concerned the named people can do no wrong and that is why they are now calling for the establishment of a local tribunal to try them.

The accusations that the ICC chief prosecutor has politicized the legal system at The Hague is itself a political plot to protect people who are about to be charged with very serious crimes. Moreno-Ocampo did not just announce the names of the people he suspects to have planned and financed the PEV; he actually elaborated in details the nature of those crimes.

According to the ICC Press Release on the Kenyan case the post election period of 2007-2008 was one of the most violent periods of the nation’s history. The release said the post election attacks left more than 1, 100 people dead, 3,500 injured and up to 600, 000 forcibly displaced. It says during 60 days of violence, there were hundreds of rapes, possibly more, and over 100, 000 properties were destroyed in six of Kenya’s eight provinces.

“These were not just crimes against innocent Kenyans”, said Prosecutor Moreno-Ocampo. “They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice. And Kenyans can pave the way to peaceful elections in 2012.”

The release says the judges of Pre-Trial Chamber II will now review the evidence. If they determine that there are reasonable grounds to believe that the six persons named committed the alleged crimes, they will decide on the most appropriate way to ensure their appearance in Court. The Prosecution has requested Summonses to Appear.

According to the majority of the people of Kenya these are the right steps to be taken to make sure that justice is seen to be done. In a public opinion research conducted by the respected Ifrotrak Research and Consulting, which is a member of Harris Interactive Global Network, slightly more than half of Kenyans reported their satisfaction with the ICC list. The results of the polls showed that 55 % of the people in the rural areas, which are the majority of Kenyans, are satisfied with the Moreno-Ocampo list. Whereas 47% of those in urban areas were satisfied with the list, only 39 % of those in urban areas were not satisfied with the list.

Kenyans know that Moreno-Ocampo has no political axe to grind in this country. According to the respected prosecutor William Samoei Ruto and Henry Kiprono Kosgey who are prominent leaders of the ODM began as early as December 2006, preparing a criminal plan to attack those identified as supporters of the Party of National Unity (“PNU”). He says Joshua arap Sang, whom he describes as a prominent ODM supporter, was a crucial part of the plan, using his radio program to collect supporters and provide signals to members of the plan on when and where to attack.

Moreno-Ocampo says to reach their goal, Ruto, Kosgey and Sang coordinated a series of actors and institutions to establish a network, using it to implement an organizational policy to commit crimes. Their two goals were: to gain power in the Rift Valley Province, Kenya (“Rift Valley”), and ultimately in the Republic of Kenya, and to punish and expel from the Rift Valley those perceived to support the PNU (collectively referred to as “PNU supporters”).

He explains that Kenyans voted in the presidential election on 27 December 2007. On 30th December 2007, the Electoral Commission of Kenya declared that Mwai Kibaki, presidential candidate for the PNU, had won the election. The announcement triggered one of the most violent periods in Kenya’s history. Moreno-Ocampo says the Prosecution will present some of the incidents, identifying those who were most responsible.

He says thousands of members of the network (“perpetrators”) cultivated by Ruto,
Kosgey and Sang began to execute their plan by attacking PNU supporters immediately after the announcement of the presidential election results on 30 December 2007. On December 30 and 31, 2007, they began attacks in target locations including Turbo town, the greater Eldoret area (Huruma, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town. They approached each location from all directions, burning down PNU supporters’ homes and businesses, killing civilians, and systematically driving them from their homes. On January 1, 2008, the church located on the Kiambaa farm cooperative was attacked and burned with more than one hundred people inside. At least 17 people died. The brunt of the attacks continued into the first week of January 2008.

According to the MPs who are opposing Moreno-Ocampo’s prosecution all this is political propaganda to make sure Raila Odinga becomes the next President without being opposed by William Ruto and Uhuru Kenyatta. The MPs forget that the people of Kenya know the story too well. What they didn’t know was who planned the shocking atrocities. Moreno-Ocampo says he knows and he is doing something about it. That is why he has the support of the majority of Kenyans.

About Uhuru Kenyatta, Francis Muthaura and General Hussein Ali, Moreno-Ocampo also makes a number of accusations. He says in response to Ruto, Kosgey and Sang’s planned attacks on PNU supporters, as well as to deal with protests organized by the ODM, prominent PNU and the three developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power.

Moreno-Ocampo says under the authority of the National Security Advisory Committee, of which Muthaura and Ali were Chairman and a member, respectively, the Kenya
Police, in joint operations with the Administration Police (“Kenyan Police Forces”), were deployed into ODM strongholds where they used excessive force against civilian protesters in Kisumu (Kisumu District, Nyanza Province) and in Kibera
(Kibera Division, Nairobi Province).

As a consequence, according to Moreno-Ocampo, between the end of December
2007 and the middle of January 2008, the Kenyan Police Forces indiscriminately shot at and killed more than a hundred ODM supporters in Kisumu and Kibera. He says the three also developed a different tactic to retaliate against the attacks on PNU supporters. On or about 3 January 2008, Kenyatta, as the focal point between the PNU and the Mungiki criminal organization, facilitated a meeting with Muthaura , a senior Government of Kenya official, and Mungiki leaders to organize retaliatory attacks against civilian supporters of the ODM.

Thereafter, according to Moreno-Ocampo, Muthaura, in his capacity as Chairman of the National Security Advisory Committee, telephoned Ali, his subordinate as head of the Kenya Police, and instructed Ali not to interfere with the Mungiki. Kenyatta additionally instructed the Mungiki leaders to attend a second meeting on the same day to finalize logistical and financial arrangements for the retaliatory attacks.

All these are very serious accusations against the six suspects. The only way they can convince Kenyans they did not do what Moreno-Ocampo is accusing them of is to go to The Hague and defend themselves. No amount of noise made by Kenyan MPs will make the wananchi change their minds about the strong belief they have that justice on these crucial matters concerning their country can only come from the Hague.

Constitution: Implementation challenges

2010-12-05T05:09:00.000-08:00

The implementation of the new Constitution is facing very many serious challenges. These are mostly based on the selfishness of Kenyan leaders who are all expecting to reap all sorts of political benefits from the new Constitution. The majority of them in the ODM have refused to endorse the list of experts to serve in the Commission for the Implementation of the Constitution (CIC) without which the whole implementation process cannot be operationalised.

The reason given by the ODM for this obvious sabotage of the implementation process are not convincing enough. They claim they cannot endorse the list of experts before the Ligale recommendation of 80 new parliamentary constituencies has been published. Yet the Ligale recommendation cannot be published as a court injunction by PNU MPs has stopped that process claiming unfairness on the part of Ligale in the manner in which he distributed the new constituencies.

Realizing that whoever becomes the next President after the 2012 elections will desperately depend on what support he or she gets from Parliament to govern the country, a lot of arm twisting tactics are now being used by the two major political parties to ensure they gain the upper hand in the Legislature even if it is through gerrymandering. Ligale did his gerrymandering on behalf of ODM. PNU want to do theirs through court injunctions. Meanwhile the country is bogged down in what may very well end up in a constitutional crisis.

But as ODM and PNU continue to engage in a lot of shadow boxing to control the next Parliament the process of implementing the new Constitution is suffering a very heavy blow which is turning the political achievements brought about by the new Constitution into a nightmare benefiting the very people who opposed the new Constitution.

When Parliament is dillydallying with the implementation of the new Constitution it is in fact playing with fire .According to Article 261 (5) to be found in Chapter Eighteen on Transitional and Consequential Provisions, the new Constitution says if Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.

It says the High Court in determining a petition may make a declaratory order on the matter; and transmit an order directing Parliament and the Attorney- General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.

If, according to the Constitution, Parliament fails to enact legislation in accordance with that order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. That process to dissolve Parliament has indeed started as the matter is already in court.

It so happens that there are some sinister characters in our society who would like to see the country go through another period of disturbance in order to stop the trend of implementing the new Constitution. These could be the same people who ridicule Luis Moreno-Ocampo when he threatens to name the masterminds of the PEV and prosecute them. The characters would rather the whole country suffered once more than their so called leaders going to jail alone.

According to the latest Kenyan National Dialogue and Reconciliation (KNDR) report published last October, there are serious challenges facing the implementation of the new constitution. These include what the report calls cohesion challenges during the implementation process and operational challenges.

On cohesion challenges the reports says there are still divisions in the Coalition Government which have contributed to creating problems in the implementation process. Though the new Constitution provides for the establishment of the Commission for the Implementation of the Constitution (CIC) and the Constitutional Implementation Oversight Committee (CIOC) of the Parliament as the organs to steer the transition, for instance, lack of cohesion within the Coalition appeared to constrain establishment of these important organs.

In the case of CIOC, for example, the country witnessed such a tug-of-war between the ODM and PNU that almost delayed the formation of the committee. While the two parties struggled to get their own man to chair the committee it was obvious that they cared very little about the deadline to be met. This was despite the fact that a joint Parliamentary Group meeting had earlier on agreed to back PNU’s Mohamed Abdikadir for the job because of his proven record of successfully chairing the parliamentary select committee that midwifed the new Constitution. The agreement at a joint Parliamentary Group meeting notwithstanding, ODM, completely out of the blue, suggested that Ababu Namwamba was the best suited person for the job.

The two political parties had to engage in a considerable amount of horse trading through which Namwamba had to be given the chairmanship of Parliamentary Committee on Legal and Justice Affairs before ODM agreed to back Abdikadir. The Public Service Commission (PSC) did a commendable job of short listing the names they sent to the President and the Prime Minister who appointed members of the CIC for Parliament to approve. Unfortunately Parliament has refused to do so ostensibly for lacking regional balance.

Given the fact that the country has now 47 regions known as counties it is absolutely impossible to have a CIC that represents every region since the total number of its members are only nine. The excuse given by MPs to reject the list is both unreasonable and myopic as it may very well throw them out of Parliament. The power behind the rejection of the CIC list is the ODM which is wrongly connecting the process with the Ligale proposal as a very unfair blackmail of the whole country.

Though the names of people who were short listed by the PSC belong to some of Kenya’s most respected legal brains, they are people who can easily be identifies with either ODM or PNU. A few of them, like Koki Muli, were neutral and could probably have provided the services similar to those of Nzamba Kitonga as the chairman of CoE. Whatever the case may be the final list will be approved by Parliament which Kenyans hope will be more concerned with the future of this country rather than party triumphalism which so far has blinded their wisdom.

The tug-of-war games played by ODM and PNU have actually been criticized by the KNDR as an attempt to hijack the implementation process, a view reinforced by claims that wider consultations are lacking before drafting and publishing of Bills which are needed before operationalising the new Constitution. According to the report maintaining the bipartisan spirit, national consensus and momentum created by the referendum to ensure effective implementation of the New Constitution is currently the challenge facing Kenya’s political leaders, especially the two main political parties.

Constitution: Ruto’s rights also protected

2010-10-22T06:55:00.000-07:00

William Ruto has made every effort to politicize the criminal case against him. But it looks like all his efforts will miserably fail as that story is only accepted among his Kalenjin followers. He is therefore an extremely angry man. He suspects there is someone, probably Raila Odinga, who wants to do him in. The rivalry between the two has now turned into a bitter enmity with no-holds-barred tactics being used by both sides.

As the undisputed leader of the ODM, Raila would obviously like to show he has powers to discipline his ostensible number two man in the party. But rebellious Ruto is still out to prove that he can be an extremely damaging thorn in Raila’s skin, with powers not only to deny him the massive Kalenjin support, but also to completely destroy him from within his own party.

As the battle between the two becomes more public with each passing day, Ruto has been seriously wounded and is showing signs of running away. Though he assures his supporters to have the wherewithal to fight another day, he is at the moment the underdog with criminal charges of fraud over his head. He is accused of defrauding the Kenya Pipeline Company (KPC) of 96 million shillings by purporting to sell KPC land belonging to the Ministry of Environment and Natural Resources nine years ago.

When the crime was allegedly committed Ruto was a sacred cow. No law enforcing agent would have dared touch him with a barge pole. Doing so would not only have been politically incorrect; but would also have amounted to committing political suicide that could only lead to being shown the door. Ruto, and many like him, continued becoming mysteriously richer all the time as public land, including forests, were being openly grabbed and sold at exorbitant amounts to government institutions and companies like the KPC.

But as soon as Kibaki came into power things began to change. Ruto was first charged for the alleged offence in 2005. But the old Constitution was still in force. He therefore wasted no time in trying to use it to get the case swept under the carpet. He in fact almost succeeded because for such a long time the case was almost forgotten. The matter must have been revived by the new Constitution which made Martha Karua challenge the Prime Minister in Parliament to tell the country what William Ruto was doing in the Cabinet when there was a criminal case pending in court against him.

The Prime Minister had to pretend to defend Ruto when he said the Minister for Higher Education had challenged the criminal case in the high court. Until the ruling of the High Court which would determine whether or not Ruto had a case to answer, the Minister for Higher Education was sort of protected. It so happened that soon after the Prime Ministers’ statement the High Court made a ruling declaring that Ruto had a criminal case to answer. Weather the abruptly expeditious ruling of the High Court was caused by the Prime Minister’s intervention or the new Constitution is neither here nor there.

In 2005 when Ruto was first charged with the offence he claimed the charges against him violated his Constitutional rights. Paradoxically it is the new Constitution which is making him now face the music as it has come with very strict demands and requirements for people who want to be leaders of this country.

Rather than defend himself in the magistrate’s court where he was first charged, Ruto took the matter to the High Court, which he expected to stop the case for the flimsy reasons of fictitious violation of his “constitutional rights”. But sitting at the High Court this time were three Judges who are about to be vetted, as recommended by the new Constitution , on whether or not they have the ability to deliver justice in a jurisprudentially upright manner . The three judges – Jeanne Gacheche, Roselyn Wendoh and Leonard Njagi had no option but to strictly follow the law in throwing out Ruto’s request.

While doing so they clearly said: “There is no proof that the applicant’s rights have been violated or breached in any way. For that reason we are unable to grant any prayers sought and send back the case to the trial court for hearing and determination.” The claims made by Ruto that the case was politically motivated were also rejected by the High Court, though the suspended Minister came out of court singing the same song.

Soon after Ruto lost his plea to have the case thrown out of court there was a public outcry urging both the President and the Prime Minister to suspend the Minister for Higher education until his case was heard and he was proved not guilty. The loudest noise against Ruto came from Martha Karua and Mutula Kilonzo who are both very highly respected lawyers.

Whatever the case may be Ruto is for the time being an extremely powerful politician in Kenya. Not only is he controlling the five million plus Kalenjin votes, but he is also an important member of the KKK alliance which hopes to form the next Government of Kikuyus, Kalenjins and Kambas. For these two reasons alone Raila has every excuse to push Ruto over the cliff so as to pave his almost undisputed success in his expected 2012 race for the presidency.

Kibaki, on the other hand, may not care much about the KKK and its success after his administration. But what he cares most about is the success of the new Constitution which has very strict demands on both the rule of law and the fight against corruption. Kibaki would therefore not risk the possibility of weakening the importance of the new Constitution for the sake of pleasing Ruto, however powerful he may be among the Kalenjins. Besides that, Kibaki has no more political ambition and does not really care who takes over from him when he retires as the man who gave Kenya a new and most democratic Constitution. That reputation alone is bound to guarantee him perpetual respect long after he departs from both the political scene and indeed from this world.

So in obeying the Anti-Corruption and Economic Crimes Act which demands public officers who are charged with corruption or economic crime to be suspended at half pay, with effect from the date of the charge, Kibaki and Raila had no option but to suspend Ruto, albeit for completely different reasons. Because the law also says the public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted, Ruto therefore still stands a chance of getting his job back in the Cabinet, but first he has the uphill task of fighting the criminal charges against him.

Unfortunately the line of defence he has taken of politicizing the entire case will only put him in more trouble because the three judges have already ruled on that matter. Indeed it will be extremely difficult for the accused politician to continue claiming that the entire case against him is political because under the new Constitution the independence of the Judiciary is very well defined and defended.

William Ruto is about to discover that the days when the Executive manipulated the Judiciary in order to win political favours and punish those opposed to the dictatorial regimes of the past are gone and gone forever. Today the courts are playing a completely different role as defined by Article 159(1) of the Constitution which clearly 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.

It further says that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status. It says justice shall not be delayed though alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. Since Ruto’s case is obviously criminal the last options are out of the question.

Today Ruto has appealed against the ruling of the three judges who see no merit for him to continue claiming his “constitutional rights” are being violated. The old style of using that argument as tactful procedural technicalities in order to defeat justice is taken care of very well by the new Constitution which clearly says in Article 159(2) (d) justice shall be administered without undue regard to procedural technicalities.

When Ruto continues to claim that his criminal case is a political one he is in fact challenging the independence of the Judiciary which is defended in the new Constitution’s Article 160(1) which says the Judiciary shall not be subject to the control or direction of any person or authority. When Ruto, however, says he has to carry his own cross he is absolutely right and he stands a very good chance of bouncing back into political popularity outside his own Kalenjin chiefdom when he legally succeeds in defending himself against all the criminal charges against him. After all the new Constitution also defends his right to a fair trial.

Constitution: Judicial Service Bill meticulous

2010-10-09T05:29:00.000-07:00

Just as the MP for Kamukunji, Simon Mbugua, moves to Court to try and stop Parliament from passing the Bill on vetting judges, Mutula Kilonzo has published yet another Bill to establish the Judicial Service Commission (JSC) which will hire, fire and discipline judges as well establish the National Council of the Administration of Justice. The latest legislation is the Judicial Service Bill, 2010. Despite all the noise that is being made to stop the process of implementation of the new Constitution without first creating the CIC, Mutula seems to be moving with the speed of lightening to change the Judiciary according to the new Constitution.

There are many who will doubt his motives. Indeed it is the same Mutula Kilonzo who had expressed the wish that the ICC should now hand the post election violence cases to the local Judiciary. Questions will obviously be asked whether Mutula is moving so fast as to defeat the aims and aspirations of the ICC in Kenya. The answer to that question will probably have to come from Parliament which must debate the new Bills on the Judiciary. As Parliament debates the two Bills on the Judiciary it must also examine whether the motive of legislating them expeditiously is to keep the ICC away.

Mutula is on record claiming the moment judges have been vetted and the police reformed then there will be no need for the ICC. The trouble is that the ICC has gone very far in nearing the actual prosecution of the people it will soon indict in connection with the post election violence. Whereas vetting judges will certainly be very good for the country in removing corruption from the Judiciary, stopping the ICC from prosecuting the few people it has identified from Kofi Annan’s envelop will only have the opposite effect of promoting impunity.

According to the Bill its object and purpose is to ensure that the JSC and the Judiciary shall be the organs of management of judicial services and shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law. The new law will make sure that the JSC shall facilitate the conduct of a judicial process designed to render justice to all and be accountable to the people of Kenya.

The Bill says the JSC shall facilitate a judicial process that is committed to the expeditious determination of disputes; facilitate a judicial process that is committed to the just resolution of disputes; support and sustain a judicial process that is committed to the protection of the people and of their human rights; promote and sustain fair procedures in its functioning and in the operations of the judicial process, and in particular shall be guided in all cases in which it has the responsibility of taking a decision affecting a judicial officer of any rank or its own employee, by the rules of natural justice.

The JSC shall be the administrative manifestation of the Judiciary's autonomy and inherent power to protect and regulate its own process, achieving these objects through application of principles set out in the Constitution, and other laws. The Bill says it shall be guided in their internal affairs and in the discharge of their mandates by considerations of social and gender equity and the need to remove any historical factors of discrimination; and apply modern technology in their operations.

On standard of service the Bill proposes that in the exercise of the powers or the performance of the functions conferred by this Act, the Commission and the Judiciary shall among others have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled; adopt quality service as a core principle and, to uphold this principle, the Commission and the Judiciary shall formulate a modern and constantly updated scheme of judicial and other training for all categories of Judges, judicial officers and for the Commission's and staff.

It says the JSC and the Judiciary shall be guided in their activities by the relevant
provisions of the Constitution; uphold the judicial service code of conduct and
ethics as may by regulations be prescribed; be non-partisan and non-political in orientation and operations; promote and uphold honesty and integrity in its
operations, and shall give fulfillment to all values essential for the discharge of judicial functions; and apply and promote such other positive values as the Commission may by regulations prescribe.

The Bill also describes in details the functions of the new Chief Justice which shall include providing the linkage between the Judiciary and the other arms of Government. It says the CJ shall also be the Head of the Judiciary and the President of the Supreme Court . The Bill suggests that the CJ shall assign duties to the Deputy Chief Justice,president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary.

It also says the CJ shall give an annual report to the nation on the state of
the Judiciary and the administration of justice; and exercise general direction and control over the Judiciary. The Deputy Chief Justice shall be the Deputy Head of the Judiciary and the vice-president of the Supreme Court and shall be responsible to the Chief Justice in the exercise of the functions and duties of the office.

The Bill suggests that the president of the Court of Appeal and the Principal Judge of the High Court shall each serve for a non-renewable term of three (3) years. It also suggest that the president of the Court of Appeal and the Principal Judge of the High Court shall in consultation with the Chief Registrar of the Judiciary be responsible to the Chief Justice for the administration of the Court of Appeal and High Court respectively. A Resident Judge and High Court Division Head shall in consultation with the Chief Registrar be responsible to the Principal Judge of the High Court for the administration of their station or division.

According to the Bill the establishment and functions of the Commission and appointment of members shall be in accordance with the Constitution. .The Commission shall consist of members appointed in accordance with the Constitution and the provisions of this Act. Members are to be nominated by the President under Article 171 (2) (h) of the Constitution. The President shall within seven days of the commencement of this Act submit the names of the nominees to the National Assembly. the National Assembly shall, within seven days after it first meets after receiving the names of the nominees consider the nominees and either approve or reject; and notify the President as to its approval or rejection.

If the National Assembly approves the nominees nominated, the President shall, within three days after receiving the notification of the National Assembly, appoint the nominees as members of the Commission. If the National Assembly rejects a nominee submitted by the President, the President shall within three days after receiving the notification of the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of the Act shall apply with necessary modifications with respect to the new nominee.

According to Article 171(2) of the Constitution the Commission shall consist of the Chief Justice, who shall be the chairperson of the Commission; one Supreme Court judge elected by the judges of the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates.

One person shall be nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Chief Registrar of the Judiciary shall be the Secretary to the Commission. Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.

The Bill also describes the transparent manner in which judges and other judicial officers will in future be appointed, removed or disciplined. It also describes how the National Council on Administration of Justice will be established and who will be its members.According to Mutula Kilonzo the principal object of this Bill is to improve the provision of judicial services and administration of justice.

In its memorandum of objects and reasons the Minister says it achieves this by reconstituting and incorporating the Judicial Service Commission, modernizing and expanding its functions including clearly articulating the procedure for appointment and removal of judges, and discipline of other judicial officers and staff. Mutula says the Bill also enhances the Commission’s as well as the Judiciary’s operational and financial autonomy. And to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, the Bill establishes the National Council on Administration of Justice.

Constitution: Judges under vetting microscope

2010-09-22T01:19:00.000-07:00

What the Vetting of Judges and Magistrates Bill 2010 demands from magistrates and judges amounts to applying for their jobs all over again and being interviewed by a team of very highly respected professional people. On integrity the Bill demands that the magistrates and judges should demonstrate consistent history of honesty and high moral character in professional and personal life; respect for professional duties arising under the codes of professional and judicial conduct; and ability to understand the need to maintain propriety and the appearance of Propriety .

This means the manner in which magistrates and judges have been working by reporting on duty as and when they pleased will now be a thing of the past. The Bill gives the Vetting of Judges and Magistrates Board very strict methods to use in order to find out whether the judges and magistrates they are vetting will be fair in exercising their duties. It says magistrates and judges being vetted will be expected to demonstrate to have the ability to be impartial to all persons and commitment to equal justice under the law.

It also says open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views will be an important attributes for judges and magistrates to have. The Board will also be expected to look at the judges and magistrates’ temperament which shall include but not limited to demonstrable possession of compassion and humility; history of courtesy and civility in dealing with others; ability to maintain composure under stress; and ability to control anger and maintain calmness and order.

They will also be expected to have very high standard of judgment which will include common sense, elements of which shall include but not limited to a sound balance between abstract knowledge and practical reality and in particular, demonstrable ability to make prompt decisions that resolve difficult problems in a way that makes practical sense within the constraints of any applicable rules or governing principles.

On legal and life experience the Bill demands the Board to look at the amount and breadth of legal experience and the suitability of that experience for the position, including trial and other courtroom experience and administrative skills; broader qualities reflected in life experiences, such as the diversity of personal and educational history, exposure to persons of different ethnic and cultural backgrounds, and demonstrable interests in areas outside the legal field.

The Bill expects the Board to find out whether the judges and magistrates have demonstrable commitment to public and community service: elements of which shall include but not limited to the extent to which a judge or magistrate has demonstrated a commitment to the community generally and to improving access to the justice system in particular.

The Bill demands the Board to consider information gathered in the course of personal interviews with the affected judges and magistrates as well as their records to be confidential. It says every judge or magistrate to be vetted shall be given sufficient notice which shall include a summary of complaints, if any, against the judge or magistrate. For this reason the hearing by the Board may not be conducted in public, unless the concerned judge or magistrate requests a public hearing. It also says the rules of natural justice shall apply with reference to the Board’s proceedings.

The Bill says that a judge or magistrate who submits to vetting shall be entitled at their own cost, to legal representation. According to the Bill the first judges and magistrates to be vetted shall be the Court of Appeal Judges, followed by Judges of the High Court, the Registrar of the High Court, the Chief Court Administrator, Chief Magistrates and others in that order. Upon finding on the face of record that a serving judge or magistrate should be removed, they shall be required to immediately proceed on leave.

According to the Bill the Board shall inform the concerned judge or magistrate in writing of the final determination including reasons for the determination. Once informed of the decision the judge or magistrate shall be deemed removed. The decision to remove a judge or magistrate from service shall be made public. According to the Bill a judge or magistrate, who has undergone the vetting process and is dissatisfied with the determination of the Board, may request for review by the same panel within seven days of the determination.

The Bill says the Board shall not grant a request for review unless the request is based on the discovery of a new and important matter which was not within the knowledge of or could not be produced by the judge or magistrate at the time the determination or finding sought to be reviewed was made provided that such lack of knowledge on the part of the judge or magistrate was not due to lack of due diligence; or on some mistake or error apparent on the face of the record. The Bill also says the decision by the panel under this section shall not be subject to further review or question in, or review by, any court.

The Bill explains that the vetting process once commenced shall not exceed a period of one year. The vetting of Court of Appeal judges and judges of the High Court shall be finalized within three months; the vetting of magistrates shall be finalized within six months; and all the requests for reviews granted shall be considered after the vetting of all judges and magistrates shall be finalized within one month. It also explains that the Board shall stand dissolved within thirty days of the execution of its mandate upon which this Act shall lapse.

The Bill is not just on the fault finding mission. In fact it offers very generous terms to the judges and magistrates it will show the door after the entire exercise. It says a serving judge or magistrate shall elect within three months of the commencement of the Act whether to be subjected to the vetting process; or to leave judicial service voluntarily. A judge or magistrate who elects to leave judicial service voluntarily or is found unsuitable after vetting shall be entitled to terminal benefits for early retirement calculated on the basis of the number of years served. It generously says that a judge or magistrate who voluntarily leaves service or is found unsuitable after vetting shall be deemed qualified for early retirement.

Constitution: Judges’ vetting Bill promising

2010-09-22T01:10:00.000-07:00

The days of corrupt judges and magistrates are about to disappear. A bill to sanitize the Judiciary has been published. Known as The Vetting of Judges and Magistrates Bill 2010, it aims at vetting of judges and magistrate to determine their suitability in order for them to continue serving in the Judiciary. This follows the constitutional directive as provided under Clause 23 of the Sixth Schedule of the Constitution which commands Parliament to enact legislation to establish a mechanism and procedures for vetting the people who serve on the Bench.

According to Article 159 (1) of the new Constitution Judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the new Constitution. The Constitution also says in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status; and making sure that justice shall not be delayed. The new Constitution also promotes the alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.

In the past corruption in the Judiciary was promoted by undue regard to
procedural technicalities that saw so many corrupt individual avoiding justice by claiming protection from the Constitution we have just thrown into the dustbin.
The vetting Bill establishes an independent Board to be known as the Vetting of Judges and Magistrates Board which shall be made up of very highly respected personalities of proven ability.

Though the nine members of the Vetting Board shall be nominated by the President in consultation with the Prime Minister, Parliament will have to endorse those nominations before the two top leaders in Kenya make the appointments. Six of the appointees will be Kenyans .This makes the appointment of members of the Vetting Board to be so transparent that the people of Kenya will be able to follow the whole procedure in a very open manner.

The Bill does not allow the President to lock himself up in a room with the Prime Minister to appoint members of the Vetting Board. It actually sets up a very elaborate procedure of getting the right people for the tough job. It all starts with the President in consultation with the Prime Minister declaring the vacancies in the Board through a notice in the Gazette. Applications will be forwarded to the Public Service Commission and may be made by any qualified person; or organizations or group of persons proposing the nomination of any qualified person.

The names of all applicants shall then be published in the Gazette before the Public Service Commission convenes a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and
Appointment of Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members.

For the positions of the chairperson and deputy chairperson the team will consider people with at least twenty (20) years or an aggregate of twenty (20) years experience as judge of superior court, distinguished academic, judicial officer or other relevant legal practice in the public or private sector in Kenya. The Bill says a person is qualified for appointment as a member if such person has a degree from a recognized university; has at least fifteen (15) years distinguished post qualification experience in their field of study; and satisfies the requirements of Chapter Six of the Constitution which deals with leadership and integrity.

After short-listing the names of the people with the right qualifications the Public Service Commission shall forward the names President and the Prime Minister for nomination. That is when the President, in consultation with the Prime Minister, shall nominate a chairperson and eight other persons for appointment as members of the Board and forward the names to the National Assembly.

The National Assembly shall then consider all the nominations received and approve or reject any nomination. Where the National Assembly approves the nominees, the Speaker shall within three days of the approval forward the names of the approved persons to the President for appointment. If the MPs reject any nomination, the Speaker shall within three days of the rejection communicate the decision to the President, who in consultation with the Prime Minister shall submit fresh nomination from amongst the persons short-listed and forwarded by the Public Service Commission.

If the National Assembly rejects all or any subsequent nominee submitted by the President for approval then the whole process has to be repeated all over again. But if the MPs approve the President and Prime Minister’s nominations then the President shall, within seven days, by notice in the Gazette, appoint the chairperson and members approved by the National Assembly. The Bill requires the President and the Prime Minister to ensure that the Board reflects the regional and ethnic diversity of the people of Kenya and not more than two-thirds of the members are of the same gender. The President shall also, in consultation with the Prime Minister nominate three distinguished non-citizen serving or retired judges each of whom has served as a Chief Justice or judge of the superior court to be members of the Board.

In the tough task of vetting Judges and magistrates the Board shall consider whether a serving judge or magistrate would have met the constitutional suitability thresholds for appointment as a judge of the superior courts or as a magistrate. It shall also consider the track record of the concerned judge or magistrate including prior judicial pronouncements, competence and diligence. Judges and magistrates who have made pronounced unfair judgments as a result of corruption will easily be exposed through this tight procedure.

The Board will also examine any pending or concluded criminal cases before a court of law against the concerned judge or magistrate; and also look at any recommendations for prosecution by the Attorney-General or Ethics and Anti-Corruption Commission. Likewise the Board will examine pending complaints from any person or body including but not limited to Law Society of Kenya, Ethics and Anti-Corruption Commission, Disciplinary Committee, Advocates Complaints Commission, the Attorney General, Public Complaints Standing Committee, Kenya National Commission on Human Rights, National Security Intelligence Service, the Police and the Judicial Service Commission. This means the entire Kenyan community as represented in various institutions will be involved in vetting of Judges and Magistrates.

According to the Bill the suitability thresholds referred to shall, among others, capture professional competence: elements of which shall include, but not limited to, intellectual capacity, legal judgment, diligence, substantive and procedural knowledge of the law, organizational and administrative skills, and the ability to work well with a variety of people. The judges and magistrates to be vetted will have to prove to have written and oral communication skills: the elements of which shall include, but not limited to, ability to communicate in writing and speaking; ability to discuss factual and legal issues in clear, logical, and accurate legal writing; and effectiveness in communicating orally in a way that will readily be understood and respected by people from all walks of life.

Constitution: Implementation Bill is excellent

2010-09-17T13:40:00.000-07:00

The Commission for the Implementation of the Constitution Bill, 2010 has been published. It reveals a commendable attempt by Mutula Kilonzo to create a very transparent mechanism to appoint competent Kenyans who will play a major role in facilitating and overseeing the development of legislation and administrative procedures required to implement the new Constitution.

In its Memorandum of Objects and Reasons, Mutula explains that the main object of the Bill is to provide for the qualifications and appointment procedure of chairperson and members of the Constitution Implementation Commission established under the Sixth Schedule of the Constitution. He says the Commission is established primarily to oversee the implementation of the new Constitution of Kenya promulgated on the 27th August 2010.

According to the Minister the Constitution establishes a presidential system of Government and in such models, appointment to key offices originates from the Executive. He explains that under Article 250 the role of Parliament is to approve the person nominated by the Executive.

According to the Bill, the Commission for the Implementation of the Constitution (CIC) will have quite a heavy responsibility which will include monitoring, facilitating, and overseeing the development of legislation and administrative procedures required to implement the Constitution; coordinating with the Attorney-General and the Kenya
Law Reform Commission in preparing for tabling in Parliament, the legislation required to implement the Constitution; working with each constitutional Commission to ensure that the letter and the spirit of the Constitution is respected.

The responsibility will also include reporting regularly to the Constitutional Implementation Oversight Committee, which will soon have to be formed by Parliament, on the progress in the implementation of the Constitution; and any impediments to the implementation of the constitution. The duties will also include exercising such other functions as are provided for by the constitution or any other written law.

The Bill sets very high standards for people who will want to serve in the (CIC). Only qualified people can hope to be appointed to serve it. No one can hope to be appointed to the Commission unless he or she is a citizen of Kenya; possess a degree from a recognized university; has knowledge and experience of at least ten years in matters relating to either law, public administration, economics, gender, human rights, or government.

Apart from the above qualifications no one can hope to be appointed to the Commission unless he or she meets the requirements of Chapter Six of the Constitution. Which means whoever is appointed must demonstrates respect for the people; brings honour to the nation and dignity to the office; and promote public confidence in the integrityof the office according to the new Constitution. He or she will be expected to take the responsibility to serve the people, rather than the power to rule them.

According to the Bill the people who will serve in the CIC will have to have had a distinguished career in their respective fields. The chairperson of the Commission shall be a person who is qualified to hold the office of judge of the Supreme Court under the Constitution. The Bill categorically says no person shall be qualified for appointment as a member if such a person is a Member of Parliament; is a member of a local authority; or is bankrupt. Those who served in the Committee of Experts which was appointed under the Constitution of Kenya Review Act, 2008 are also not allowed to serve in the ICC.

No sooner was the Bill to create the CIC published than the country’s three most respected legal institutions – LSK, Fida and ICJ drew up a list of lawyers they thought should not be considered “for the position of Chief Justice when it falls vacant in February”. Though the list of the people the three law institution is supposed to make sure none of them becomes the CJ after Evans Gicheru, the innuendo is clear. Those on the list should also not be considered to serve in the CIC. On the list of the lawyers LSK, Fida and ICJ don’t want to be considered for the post of the Chief Justice are all the current Judges and magistrates “because they have not been vetted”

According to Article 73(2) in Chapter Six of the Constitution the guiding principles of leadership and integrity include selection on the basis of personal integrity, competence and suitability. The people who will serve in the CIC must be those with objectivity and impartiality in decision making, and in ensuring that the decisions they make are not influenced by nepotism, favouritism, other improper motives or corrupt practices.

They must be people who will be expected to provide selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties. According to the Constitution they must also make declaration of any personal interest that may conflict with public duties. They must be people who are prepared to be accountable to the public for their decisions and actions while they remain disciplined and committed in serving the people.

When MPs meet soon to debate on The Commission for the Implementation of the Constitution Bill, 2010 they will find a very comprehensive draft legislation they may not be able to alter. The people will particularly see which members of parliament will want to alter the procedure laid down by Mutula Kilonzo to be followed before hiring members of the CIC. According to the Bill the procedure begins when the President in consultation with the Prime Minister when they declare vacancies in the Commission.

The President and the Prime Minister will request for applications to be forwarded to the Public Service Commission within fourteen days of the notice and be made by any qualified person; or through an organization or group of persons proposing the nomination of any qualified person. According to the Bill the names of all applicants shall be published in the Gazette. Then the Public Service Commission will convene a Committee comprising of one representative from the Cabinet Office; Office of the Prime Minister; Ministry of Justice, National Cohesion and Constitutional Affairs; State Law Office; Ministry of State for Public Service; and Public Service Commission; for the purposes of considering the applications, interviewing and short listing at least three persons qualified for appointment as chairperson and eighteen persons who qualify for appointment as members of the CIC.

This is probably one of the most transparent ways of appointing public officials. After making the short listing the Public Service Commission shall within seven days forward the names of Chairperson and members of the Commission to the President and the Prime Minister for nomination. The President, in consultation with the Prime Minister, shall then nominate within seven days a chairperson and eight other persons for appointment as chairperson and members of the Commission respectively and forward the same to the National Assembly.

After that the National Assembly shall, within fourteen days, consider all nominations received and approve or reject any nomination. The Bill says upon consideration and approval by the National Assembly, the Speaker shall within seven days forward the names of approved persons to the President for appointment. But if the National Assembly rejects any nomination, the Speaker shall within three days communicate its decision to the President and the Prime Minister to submit fresh nominations.

The Bill explains that if a nominee is rejected by Parliament, the President in consultation with the Prime Minister shall within seven days, submit to the National
Assembly a fresh nomination from amongst the persons short listed and forwarded by the Public Service Commission. The Bill also recommends that in short listing, nominating or appointing persons as Chairperson and members of the Commission, the short listing Committee, Parliament and the President shall ensure that not more than two-thirds of the members are of the same gender. The Bill is certainly drafted in the spirit of the new Constitution.

Even after being appointed to become the boss of the CIC chairperson or a member may be removed from office for misbehavior or misconduct incompatible with the
functions of the Commission. The Bill also makes provisions for the position of a Secretary of the Commission who may be removed by the Commission only for inability to perform the functions of his office arising out of physical or mental incapacity; misbehavior or misconduct; or incompetence.

Among the most important duties of the Commission will be to prepare a progress report every six months and submit the report to the Parliamentary Select Committee and the President. According to the Bill the progress report shall state the progress in the implementation of the constitution; identify any impediments to the implementation of the constitution; recommend any legal and administrative measures to address specific concerns identified by the Commission; and state any other information relating to its function that the Commission considers necessary.

The Bill stipulates that the Commission shall publish the report in the Gazette and in such other manner as the Commission may determine. Apart from that the Commission shall cause an annual report to be prepared for each financial year. It shall submit the annual report to the President and Parliament within three months after the end of the year to which it relates. According to he Bill the annual report shall contain, in respect of the year to which it relates the financial statements of the Commission; a description of the activities of the Commission; such other statistical information as the Commission considers appropriate relating to the implementation of the Constitution; any other information relating to its functions that the Commission considers necessary.

Finally the Bill describes how the Commission shall stand dissolved five years after it is established or at the full implementation the Constitution as determined by Parliament, whichever is sooner, but the National Assembly may, by resolution, extend its life. The Bill says upon dissolution of the Commission under the Constitution the Commission for the Implementation of the Constitution Act, 2010, shall lapse.

Whichever way one looks at the Bill it reflects an excellent job done by Mutula Kilonzo. The country will now very keenly look at Parliament to see which member will try to sabotage the Bill, in which case he or she will have committed political suicide.

Constitution: Integrity remains a challenge

2010-09-03T09:31:00.000-07:00

Long after the promulgation of the new Constitution in Kenya, the implementation of Chapter Six on leadership and integrity will remain a challenge that will test the seriousness of those charged with the operationalization of the new supreme law. This challenge was accepted by all the leaders as they were celebrating the inauguration of the new Constitution.

At the big celebration on August 27, President Mwai Kibaki was the first to accept that the new Constitution’s leadership code and values made it clear that the people who will present themselves for public or State offices would have to be individuals of integrity, willing to be held accountable by the people and the institutions and laws of our country. That call by the President, was an early warning to all those who, in the past, fought to get leadership positions only for lucrative reasons.

The new Constitution creates very many attractive leadership positions. Among the people who have shown interest in the new positions are well known corrupt politicians. Kenyan MPs who would not serve the country without milking the taxpayers dry are among the first to declare their interests to become future senators and county governors. This time it is not going to be business as usual for them. Before the current crop of leaders occupy the new public offices they will have to prove that they are men and women of high integrity.

The most challenging positions will be those of the 47 Governors who will control huge budgets that must be used to bring about development in all parts of the country. As counties will have the responsibility to give contracts to many service providers, the temptation to engage in corrupt activities will obviously be there. There will be little wonder, therefore, when the positions of governors attract the country’s wealthiest politicians who will only look at the new offices as the geese that lay a lot of golden eggs.

Whereas senatorial positions will be extremely prestigious, they will not be as lucratively attractive as positions of governorships. To get to the Senate, candidates sponsored by the most popular political parties in the counties will stand a better chance of winning than the local tycoons. But very few poor people will win any governorship which will attract people who are already heavyweights financially. The only trouble will be to find any rich individual who has honestly acquired his or her wealth through hard work.

When Mwai Kibaki, therefore, says the new Constitution will ensure current and future leaders entrench integrity and fairness in the just system that will build a world-class public service and promote politics of issue and ideas, only a handful of people who aspire to become senators and governors agree with him. Many of the corrupt leaders wish the President’s words will never come true. The greedy and corrupt politicians will most certainly try to continue occupying leadership positions with the sole purpose of making more money by continuing to milk the poor people.

For the leaders to guarantee that the new Bill of Rights is enforced; and for them to also make sure that a framework is established that makes both the national and county governments work harmoniously, as Mwai Kibaki suggested, the current crop of leadership must undergo a complete metamorphosis. This is as difficult as, to paraphrase Jesus of Nazareth, to expect an elephant to walk through an eye of a needle. It is therefore going to be a real uphill task to hope Kenyan leaders, as Mwai Kibaki expects, will facilitate the success of the Kenyan businesses and industries as well as put in place land ownership and use systems that promote equity and productivity.

Yet Mwai Kibaki was not the only one who sounded these hard hitting warnings during the promulgation of the new Constitution. The Prime Minister did pretty much the same when he urged Kenyans to be vigilant and stop corruption from stealing our future and negative ethnicity from weakening our nationhood. Very much like Mwai Kibaki, Raila asked those in charge of public affairs to make sure that public service becomes what it is supposed to be i.e. public service, but not self service.

According to the Prime Minister this new beginning must mark the end of shallow political partnership and herald the start of mature competition among political parties. What the Prime Minister did not tell the people is the fact that future political parties must themselves undergo yet another metamorphosis.

According to Article 91 of the new Constitution which deals with the basic requirements for political parties, every political party shall have a national character as prescribed by an Act of Parliament which will ensure that all political parties shall have a democratically elected governing body; and shall also promote and uphold national unity while abiding by the democratic principles of good governance which will promote and practise democracy through regular, fair and free elections within the party.

This means the Prime Minister was telling the people that the days of political parties that belonged to corrupt leaders who closed all party doors to their political enemies and opened them only for their sycophants are gone forever. Corruption promoted by tribal political parties will also have to disappear because the new Constitution demands that all political parties must respect the right of all persons to participate in the political process, including minorities and marginalized groups.

The new Constitution demands all political parties to respect and promote human rights, fundamental freedoms, and gender equality and equity while subscribing to and observing the code of conduct for political parties. All these requirements by the new Constitution mean only one thing— that there will be very little room in future party leadership for people who are either corrupt or intend to get into leadership positions through corruption in order to enrich themselves.

President Kibaki and Prime Minister Raila Odinga are not the only leaders who called for the promotion of integrity while operationalising the new Constitution. Vice President Kalonzo Musyoka said more or less the same thing when he told Kenyans at Uhuru Park that under the new Constitutional order, we will be able to reclaim our dignity as a people. He said justice would be guaranteed for all and leaders would be accountable to the people.

As Mwai Kibaki , Raila Odinga and Kalonzo Musyoka were talking about the need to follow the new Constitution’s demands on leadership and integrity , Parliament was challenged to put the Kenyan leaders’ words into practice by refusing to swear in MPs who had pending cases on corruption in court . The suggestion came in a form a question to the Speaker of the National Assembly from the MP for Ikolomani, Dr. Bonny Khaluale.

The Speaker of the National Assembly, Kenneth Marende, answered Khaluale through a Communication from the Chair when he told MPs that Chapter Six of the new Constitution which addresses matters of leadership and integrity was in fact operational after the promulgation of the new Constitution. He explained that, the importance of Chapter Six could not be overemphasized. According to the Speaker this chapter was a key pillar to the new constitutional order seeking to uproot the culture of impunity and bad governance.

Marende said the Chapter sought to ensure that only persons of integrity assented to or remained in certain public offices. It, therefore, was very much in keeping with the letter and spirit of the Constitution that questions should be raised on the application of the provisions of Chapter Six. In respect of concerns about the eligibility to be sworn in of Members who have cases pending in court, Mr. Marende ruled that there was no provision in the Constitution barring a state officer from being sworn in on the grounds that the State officer had a pending court case.

The Speaker then went ahead and swore in all MPs including those with pending corruption cases in court. Be that as it may that was not the end of matter. The issue of leadership and integrity will be a subject of many hot debates in future. When the right judges have taken up their positions in a clean Bench many of our leader’s right to lead will rightfully be challenged according to the new Constitution.

Constitution: Kalenjins in leadership crisis

2010-08-25T03:31:00.000-07:00

There is a serious leadership crisis among the most powerful ethnic group in the Rift Valley. The Kalenjins are now divided into smaller ethnic subgroups because their leaders took different stands in the just concluded referendum. As the country welcomes the new Constitution in happiness and unity, the Kalenjins are torn apart and not quite sure whether to be joyful or sad about the latest development in the country.

A very large number of them, in fact well over one million people, were mobilized by their leaders to reject the Proposed Constitution. Now the very same leaders are making a lot of noise to be included in the Constitution Implementation Oversight Committee (CIOC); and to have some Kalenjins in the Commission on the Implementation of the Constitution (CIC). The Commission will be made up of experts who will really be doing the donkey’s work in drafting the new legislation to be enacted by Parliament to enable a smooth operationalization of the new constitution.

The decision to have some Kalenjins included in CIC will be that of the President and the Prime Minister following the advice of the strong team of technocrats who have so far given the two principals very wise counsel that has tended to unite, rather than divide, the country. If there will be any Kalenjin in the CIC it will depend entirely on the credentials of the individual concerned. The community has many distinguished lawyers who obviously qualify to be members of the CIC. What Kibaki and Raila will be looking for are experts that will expedite the process of drafting the required legislation instead of rocking the boat to please certain political leaders.

Whether or not there will be a Kalenjin in the CIOC will depend on the powerful political parties in Parliament – the ODM and PNU. So far there is a threat to exclude the Kalenjins who opposed the Proposed Constitution, which means the Kalenjins who will sit in the CIOC will come from the group that supported the Proposed Constitution which includes Sally Kosgei, Helen Sambili and Franklin Bett.

These are the three leaders who tried to unite the Kalenjins to back the Proposed Constitution like the rest of the country. They are also likely to end up holding top leadership positions either as Senators or Governors of the new counties that have been formed in the Rift Valley. The political tug-of-war in the former Rift Valley will now change with time, giving the supporters of the new Constitution prominent positions in the new set up.

It should not be hard for the million Kalenjins to determine who among their leaders is telling them the truth this time. It so happens that since independence they have been grouped together and made to take joint political decisions based entirely on the pronouncement of individuals with their own political ambition and greed in mind. First they were made to join the Kenya African Democratic Union by Daniel Toroitich arap Moi log before independence. When independence was achieved they had a powerful Rift Valley region which they had to dismantle when Moi decided to join the Kenya African National Union under Jomo Kenyatta.

Moi, as the undisputed leader of the Kalenjins since 1957 when he first represented them in the Legislative Council which was commonly known as Legco , has made his people follow him blindly even when he was making wrong political decisions. In 2002 when he stepped down as the Head of State he led his entire community to back Uhuru Kenyatta, who was his handpicked contestant, as the presidential candidate for the Kenya African National Union. Though Uhuru managed to get well over 1.8 million votes, Mwai Kibaki of the National Rainbow Coalition was elected President with more than 3.6 million votes. Kalenjins were on the wrong side of history because of Moi.

Be that as it may, there is probably no single Kalenjin leader who has done more for his people than Daniel arap Moi who built many schools and roads in the Kalenjin Rift Valley as opposed to the Pokot, Masai, Samburu or Turkana Rift Valley. Using his powers as the President of Kenya, Moi made sure at least three national Universities – Moi University, Egerton University and Kabarak University-- were established in the Kalenjin Rift Valley. This elevated his people to a level where they can today scholastically challenge other ethnic groups such as the Kikuyus and Luos who have been exposed to education for a longer period.

Despite such a big contribution by Daniel arap Moi to the welfare of the Kalenjin community, they decided to ignore him in 2007 elections when he advised them to vote for Mwai Kibaki of PNU instead of Raila Odinga of Orange Democratic Party (ODM). At that time the Kalenjins followed the leadership of a young vibrant politician, William Ruto, who literally pulled the whole community away from Moi into the ODM where he strongly backed Raila Odinga. Unfortunately the Raila- Ruto relationship did not last long and the Kalenjin community was massively pulled out of ODM’s stand to support “YES” group in the just ended referendum into the “NO” team led by William Ruto.

When the “NO” team was badly defeated the Kalenjins found themselves in the wrong side of history yet again. This time they have very serious problem to overcome. To begin with Daniel arap Moi had made the Kalenjin erroneously believe the entire Rift Valley belonged to them. This belief was unfortunately enforced by the stand taken by William Ruto as the new leader of the Kalenjins during the referendum campaign.

The implementation of the new Constitution has opened the Kalenjin’s eyes to the truth which reveals that the Rift Valley belongs to other communities as much as it belongs to them. The new Constitution divides the massive Rift Valley into 14 counties, out of which only seven could be considered to belong to the Kalenjins.

Besides that, the dominant Kalenjin sub tribes of Nandi and Kipsigis find themselves in two different counties while other Kalenjin sub tribes of Elgeyos and the Marakwets are now in yet another county. Pokots, who were normally grouped together with the Kalenjins, are now in their own county. In other words the new Constitution has divided the Kalenjins in smaller counties in which the sub tribes will have to determine their own destinies in a new set up.

Obviously the new arrangement annoys Daniel arap Moi who sees the fruits of his entire political career going down the drain. The new setup will also see the Kalenjins seeking new leaders from their own sub tribes who will end up either in the Senate or as Governors of the seven major Kalenjin counties. In the County of Trans Nzoia, for example, there is likely to be a very tough fight between the only Kalenjin leader of the area, Joshua Kituny, and the two local Luhya leaders Eugene Wamalwa and Noah Wekesa. Between these three one may remain as a member of the less prestigious National Assembly while the other two occupy the Senate and governorship positions respectively.

Eugene Wamalwa, who has declared some interest in the presidency of the country, may change is mind after discovering the race is for bigger giants and end up seeking a seat in the Senate. Between Wekesa and Kituny the fight for governorship would see the Kalenjin losing to the majority Luhyas of the county which overwhelmingly supported the Proposed Constitution.

In Uasin Gishu where William Ruto is most popular the fight for governorship will probably be between the MP for Eldoret South, Peris Chepchumba and the MP for Eldoret East, Margaret Kamar. Ruto, who will be fighting for the Presidency may sponsor a younger candidates for the Senate seat. In the Elgeyo-Marakwet County the fight for the Senate seat will be between several giants.

These will probably be the MP for Marakwet West, Boaz Kaino, the MP for Marakwet East, Linah Jebi Kilimo, the MP for Keiyo South, Jackson Kiptanui and the MP for Keiyo North, Lucas Chepkitony. In that race may be the revitalized Nicholas Biwott is likely to show up again and try his luck in the new contest. The seat for the Governorship of the Uasin Gishu county will be contested between the many professionals from the area who are likely to leave Nairobi to go back home in the rich rural area to seek new leadership positions .

May be the hottest contest for the Senate will be fought in Nandi County where the MP for Emgwen, Elijah Langat is likely to be challenged by the MP for Aldai, Sally Kosgei , who is likely to be joined in the race by the MP for Mosop, David Koech and the MP for Tinderet, Henry Kosgey. The county’s Governorship is likely to see a bitter struggle between the candidates named above who may decide to leave the hotly contested Senate seat. But the new top job of the County is also likely to attract new faces of top Nandi businessmen, academicians, civil servants and professionals who are sure to join the bitter struggle.

In Baringo the Senate seat, like that of the new Governor is bound to attract the MP for Baringo Central, Sammy Mwaita, the MP for Baringo North, William Kipkiror , the MP for Baringo East , Asman Kamama, MP for Mogotio, Helen Sambili and the MP for Eldama Ravine , Mosses Lesonet. This scenario is likely to be repeated in the Kericho County where the MP for Kipkalion, Kiprono Magerer, the MP for Ainamoi, Benjamin Langat, MP for Buret, Franklin Bett and the MP for Belgut, Charles Keter, will battle it out for the two seats.

In the Bomet County the scenario is likely to be repeated when the MP for Chepalungu, Isaac Ruto is likely to fight the MP for Bomet, Beatrice Kones, MP for Konoin, Julius Kones and MP for Sotik Joyce Laboso for the same two seats.

Given the fact that the above developments are inevitable, the Kalenjins are about to start bitter confrontations for Senate representation and for the governorships of the seven counties. A healthy competition of developing the new counties is likely to come up with new leaderships associated with economic development rather than political ambitions of individual politicians. Whatever the case may be the Kalenjin today are about to undergo a major leadership change to join the rest of the country in accepting the new Constitution for Kenya.

Constitution: Catholics fighting losing battle

2010-08-20T06:30:00.000-07:00

The Catholic Church in Kenya is fighting a losing battle. It has taken the most uncompromising stand of continuing to oppose the new Constitution of Kenya even when millions of Kenyans have ratified it. The Church hopes that something can still be done to amend the Constitution before its promulgation on the August 27. But the Church knows very well it is building castles in the air.

In a statement by 25 Bishops issued on July 28 at the peak of the campaign for and against the Proposed Constitution the Catholic Church clearly said: “We cannot place our hopes on the fact that the document can be amended after the referendum. Looking at the proposed draft however, amending this document will be an enormous task.”

To try and convince as many Catholics as possible to vote “NO” the Bishops explained to the believers about popular amendment which, they acknowledged, would require one million signatures of registered voters. They explained in their own press statement that amendment bill must be approved by the majority of 47 counties. The Bishop’s statement continued to explain to the believers that after the approval by the majority of 47 counties the amendment would then be tabled in the two houses of parliament before being submitted to the people for another referendum.

After this explanation the Bishops then concluded: “This process cannot take place before counties are in existence, and they will only exist in this country after the 2012 general elections.” So when the Bishops make so much noise now and continue to demand amendments well after the ratification of the Proposed Constitution they know very well that all that they can achieve is cheap publicity which will not change the will of the people.

Yet the Catholic Church in Kenya is extremely powerful. It has millions of converts who are scattered all over the country. The Church’s contribution to the country’s educational and heath matters has earned it respect everywhere even among non Catholics. Catholic universities, schools, like their hospitals in many parts of the country, are full of students and patients of the Muslim and other religious faiths. The official word from the Catholic Church carries a lot of weight in Government circles and many other institutions. It is therefore most amazing that the command from Kenya Episcopal Conference to everyone who could hear them to reject the Proposed Constitution was overwhelmingly rejected itself. Among those who rejected it are millions of Catholic believers.

Because of the continued complaints by the country’s most powerful religious institution a lot of Kenyans will probably look at the nature of the demands by the Catholic Church to see if they merit any consideration. In the statement of July 28 the Bishop said: “Brothers and Sisters, we have raised our concerns about Article 26(4) which by other written laws opens the gates to abortion on demand. The life of a person begins at conception, and unborn babies are therefore human beings, and have a right to life and this document declares that in essence, legislators and “health professionals” should have a free hand in ending the lives of these human beings.”

The Bishops must be very eager to know why their passionate appeal to their own followers was rejected with such a forceful disgust. The rejection by the Catholic flock of the demand from their own Bishops to throw the Proposed Constitution into the dustbin of history has revealed for the first time that Kenyans cannot be led blindly by the use of ecclesiastic powers. Whereas the respect for the Catholic Church is unquestionable everywhere in the country, its attempt to mislead the people, for whatever reasons, is greeted with hostility if the people suspect the Church is misleading them.

In this particular case the use of the words “open gates to abortion on demand” by the Bishops did go down very well with the people who must have read Article 26 (4) for themselves. That specific Article in the new Constitution says: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by
any other written law.” After evaluating the truth in their Bishops’ statement and comparing it with what is actually provided for in the Constitution, Catholic voters decided to back the Constitution.

Rather than taking a confrontational and adversarial stand against the Government and demanding an immediate amendment to the new Constitution , the Catholic Bishops would do very well to try and convince their own flock, which seems to be against the firm stand the religious leaders are taking, to see their point of view. After all it is the ordinary people within the Catholic Church who are faced with the problem of life threatening pregnancies which require urgent medical attention. They still need a lot of persuasion to put what their religious leaders say into practice.

The other aspect of the new Constitution which disturbs the Catholic Bishops concerns the Kadhi courts. The Bishops say: “We have also raised other areas of concern that this constitution fails to safeguard. These include the EQUALITY of all persons and creeds under the law, which the entrenching of Kadhi’s courts in the constitution denies. We have no problem with our Muslim brothers and sisters exercising their religious freedom. All we wish is that it be done in equity, by pursuing what has been done the world over, through an act of parliament, and for this we made specific proposals to the Committee of Experts.”

The Catholic Church must have seriously disturbed its flock when it said the new Constitution did not safeguard “equality of all persons and creeds under the law”. To find out whether their Bishops were indeed telling the truth the Catholic believers and voters must have looked at Article 27 which deals with Equality and freedom from discrimination. To their amazement the Catholic voters must have been shocked when they discovered the new Constitution says that every person is equal before the law and has the right to equal protection and equal benefit of the law.

The Catholics voters must have been even more shocked when they found out the new Constitution says that equality includes the full and equal enjoyment of all rights and fundamental freedoms giving women and men the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. This realization must have been a major contributing factor to their rejection of the call from their Bishops and instead strengthened their determination to ratify the proposed Constitution which is now sure to be the supreme law of the land.

When the Catholic Church tells its flock that the inclusion of Kadhi courts in the Constitution discriminates against Christians the believers must be wondering who is telling the truth because the new Constitution clearly 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.

As a major institution that runs universities, schools and hospitals throughout the country the Catholic Church must really be aware of the fact that Muslims in Kenya have been marginalized for a very long time. People with Islamic names have been ejected in many Christian schools.

Recognizing the Kadhi courts through an act of Parliament, as the Church suggests, is a sure way of repealing that law at the first available opportunity, given the fact the very word Muslim creates a stigmatized situation that makes some true Kenyans with Muslim names being segregated from various aspects of society. The only way to protect the Kadhi court is to make them part of the Judiciary in the Constitution. They are, after all, very subordinate courts that deal only with personal matters of marriage, divorce and inheritance.

Refusing the Muslims the right to have their own Kadhi courts would be discriminating against them. The new Constitution says a person shall not discriminate directly or indirectly against another person on any of the grounds specified above. The Catholic Church must be very worried about the plans of the new Constitution to take legislative and other measures, including affirmative action programmes and policies designed to redress any disadvantage suffered by individuals or groups because of past discrimination.

This means Catholic schools and universities cannot deny Muslims and other Christians any opportunity to study or teach. During the campaign a story was published in one of the local dailies exposing the dismissal of a lecturer at the Catholic University for threatening to vote “YES” for the proposed Constitution. Such behaviour will never be tolerated by the new Constitution.

Catholic voters must have wondered whether their Church was telling the truth when it claimed the inclusion of the Kadhi courts in the Constitution amounted to “elevation of one religious over another”. This allegation was not supported by the new Constitution which clearly says in Article 32 on Freedom of Conscience, Religion, beliefs and Opinion that every person has the right to freedom of conscience, religion, thought, belief and opinion. It also says that every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.

When the Catholic voters realized that the new Constitution says a person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion they realized that their religion, like all others, was protected by the new Constitution which also says a person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion. One of the reasons the Proposed Constitution was accepted by such a big number of voters is the fact that millions of Catholic voters supported it. Catholic Bishops still opposing the new Constitution are fighting a losing battle.

Constitution: Amendment almost impossible

2010-08-19T04:41:00.000-07:00

A lot of noise is being made by the people who rejected the Proposed Constitution about the need to amend the new Constitution before it is implemented. Doing so will be illegal and unconstitutional. The wise among the proponents of amendments have called for amendments to be made constitutionally. But that, according to Nzamba Kitonga, the chairman of the CoE, will take at least ten years.

For the Constitution to be amended according to its own stipulated procedure its Articles 255,256 and 257 must be followed. These are very cumbersome procedures that are deliberately designed to take a long time so as to give everyone ample opportunity to weigh the pros and cons of amending the new Constitution. When William Ruto and the NCCK leaders talk of following the stipulated methods of amending the new Constitution, they appear to be reasonable. Unfortunately the Catholic Church seems to be impatient and wants the amendment done immediately. Whatever steps the Government takes the law must be followed in the manner six million Kenyans chose.

Article 255(1) says amendment to the new Constitution shall be enacted according to Parliamentary initiative or by popular initiative and approved by referendum if the amendment relates to the supremacy of the new Constitution ; the territory of Kenya; the sovereignty of the people; the national values and principles of governance which include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; good governance, integrity, transparency and accountability; and sustainable development.

Amendment must also be approved by referendum if they relate to the Bill of Rights;
the term of office of the President; the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions of the Chapter on amendment.

According to Article 255(2) a proposed amendment shall be approved by a referendum under clause (1) if at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum; and the amendment is supported by a simple majority of the citizens voting in the referendum.

An amendment to the New Constitution that does not relate to a matters specified above shall be enacted either by Parliament, in accordance with Article 256, which deals with amendment through Parliamentary initiative; or by the people and Parliament, in accordance with Article 257 which deals with amendment by popular initiative.

Article 256 (5) says if a Bill to amend this Constitution proposes an amendment relating to a matter specified in Article 255 (1) the President shall, before assenting to the Bill, request the Independent Electoral and Boundaries Commission to conduct, within ninety days, a national referendum for approval of the Bill; and within thirty days after the chairperson of the Independent Electoral and Boundaries Commission has certified to the President that the Bill has been approved in accordance with Article 255 (2), the President shall assent to the Bill and cause it to be published.

The new Constitution can also be amended by popular initiative by collecting a million signatures from registered voters and then make a general suggestion about the amendment or draft a bill. The new Constitution says if a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill and then deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters.

It also says if the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of Article 257, which deals with amendment through popular initiative, the Commission shall then submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.

The Constitution adds that if a county assembly approves the draft Bill within three
months after the date it was submitted by the Commission, the Speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it. If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay; and then a Bill under Article 257 is passed by Parliament if supported by a majority of the members of each House. The new Constitution then explains if Parliament passes the Bill, it shall be submitted to the President for assent in accordance with Articles 256 (4) and (5).

But the new Constitution explains if either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in 255 (1), the proposed amendment shall be submitted to the people in a referendum.

All these parts of the new Constitution prove that Nzamba Kitonga is right that it may take well over ten years before it is amended. One important aspect about the amendment of the new Constitution is it involves the new set up of Parliament with two new chambers which have yet to be established. William Ruto and his church friends know very well that some parts of the new Constitution they want amended are among those that require the approval of national referendum.

Since the new Constitution will be with us for a very long time to come, it is prudent for all Kenyans to learn to live with it. This is why even though there is a very good reason to bar William Ruto and his friends from participating in the implementation process, way must be found of involving the “NO” group in the task ahead. Weather they like it or not all Kenyans have to accept the new Constitution as it is or else wait until all institutions needed to amend it have been established and then start the grueling job of fowling the right procedure to amend it.

There is little doubt that the people who said “NO” to the Proposed Constitution don’t like the developments in the country at the moment. Some of them are well known mischief makers. It is therefore very important to keep a very close watch on what their next step will be like. Some of them may engage in activities that will make implementation of the new Constitution extremely difficult.

The special cabinet team that will be looking at the implementation process has closed the door to the Ministers who said “NO” to the Proposed Constitution. The temptation by Parliamentary Select Committee to be known as the Constitution Implementation Oversight Committee (CIOC) to do the same will be high, but MPs would be advised to look at the spirit of the new Constitution and what it says about inclusiveness. The Commission on the Implementation of the Constitution (CIC) however will demand the services of experts who genuinely want to help this country frame the various legislations of the new Constitution without any hidden motive.

Following the well known Lyndon Johnson tactic of keeping close to one’s enemies, Prime Minister Raila Odinga and President Mwai Kibaki must have concluded it is safer to have William Ruto in the Cabinet, where they can exercise some form of control over him, rather than fire him and let him cause serious damage when he is plotting against the Government and the new Constitution from the outside. Using that tactic Lyndon Johnson refused to fire the dread FBI boss Edgar Hoover and when he was asked why the American President said it is “better to have him inside the tent pissing out, than outside the tent pissing in.”

MPs should think of that clever tactic before locking William Ruto completely out of CIOC.

Constitution: Amendment seekers torn apart

2010-08-19T02:55:00.000-07:00

The “NO” team is now torn apart. The unity they had that brought together Kalenjins, Kurias, Mberees, Kambas, and various church groups has now totally disintegrated. William Ruto’s thanksgiving luncheon organized at the Arboretum on Saturday 14th August spilled the beans that exposed the fact that the fragile unity that made them share platforms in various parts of the country condemning the Proposed Constitution has finally evaporated. Not a single church leader attended the celebrations which indicated a rift has now erupted between the churches and William Ruto.

The “NO” team was in fact composed of people who rejected the Proposed Constitution for very different reasons. The rich in it, which included Daniel arap Moi and William Ruto, were only opposed to the Propose Constitution because of its land chapter which will introduce justice to land matters to the benefit of all Kenyans. The Catholics were more disturbed by the Article in the Bill of Rights concerning the right to life, which, unfortunately they chose to misinterpret. The mainstream protestant churches were not happy with the provisions on the Kadhi courts, which they also misinterpreted.

The evangelical churches were opposed to the Kadhi courts because they were told to do so by American conservative rightist churches that wanted to fight President Barack Obama in his father’s land. The American churches have confessed that they paid a lot of money to the Kenyan evangelical churches to reject the Proposed Constitution. The Americans misinterpreted the Proposed Constitution by suggesting that Kadhi courts would open doors to Muslim fundamentalism in Kenya. Because they wanted to monetarily benefit from the Americans , the Kenyan evangelical church leaders never correct the situation.

The Mberees and Kurias opposed the Proposed Constitution because it did not create counties for them in the same manner as in the Harmonized Draft of 17th November 2009. The Kambas opposed the Proposed Constitution because they believed doing so would create a more conducive political atmosphere for the Vice President Kalonzo Musyoka. With the benefit of the hindsight of recent events it appears the Kamba strategy worked wonders and earned Kalonzo the leadership of Government Business in Parliament which comes with the chairmanship of the powerful House Business Committee. (HBC)

Now that the result of the referendum are known the groups in the “NO” camp have gone back to their various institutions and tribal groupings to licking their wounds separately. The disintegration became clear on August 5th when the Minister for Higher Education, William Ruto, was among the first, without consulting the churches, to concede defeat and appealed for urgent steps to amend the new Constitution. The move by Ruto must have angered the churches who boycotted his thanksgiving luncheon.

In a statement issued on the 11th of August after deliberations at the Jumuia Conference and Country Home in Limuru the NCCK said that it trusted that the Government leadership would fulfill the promises they made during the referendum campaigns that the contentious issues were acknowledged and would be resolved after the referendum. But the NCCK was quick to add: “We at the NCCK undertake to contribute fully to all the efforts made to resolve these issues using the mechanisms provided for in the new Constitution.”

Though the NCCK believes that “the amendment of the contentious issues will and should be part of the implementation process”, they realize that that will not be possible in the near future and may in fact take as long as ten years which the chairman of the CoE, Nzamba Kitonga revealed was the shortest period possible before any amendment of the new Constitution can be contemplated.

Apart from that the NCCK usage of term “Contentious Issues” is erroneous as it does not agree with the interpretation of the CoE’s meaning of the term in the context of the Proposed Constitution. According to the experts the contentious issues of the Proposed Constitution only concerned the Executive and Legislature; the devolution of powers and bringing the new Constitution into effect as it is described in the transitional clauses. At no time during the long period that Kenyans have devoted to the debate on the need for a new constitution were Kadhi courts, land issues or abortion officially considered to be contentious issues.

The Nzamba Kitonga team did not exclude the Kadhi courts, land and abortion issues from the list of the three officially accepted contentious issues out of malice. The team went through a very thorough legal scrutiny of various proposed constitutions to determine what was universally accepted as contentious issues. Apart from that, the Constitution of Kenya Review Act of 2008 mandated the CoE to identify the contentious issues, making the NCCK definition of contentious issues illegal.

Having been mandated by the law to identify the contentious issues the CoE took a lot of trouble to examine a very wide rage of Kenyans’ views before listing the three official contentious issues in the Proposed Constitution. They started by scrutinizing various draft constitutions that have come in existence as Kenyans debated on constitution. These included the Constitution of Kenya Review Commission Draft of 2002; the Draft Constitution of Kenya of 2004 which was popularly known as the Bomas Draft; and the Proposed Constitution of 2005.

Before identifying the real contentious issues the Nzamba Kitonga team also studied the views expressed by Kenyans as collected and collated by the Constitution of Kenya Review Commission of Prof. Yash Pal Ghai and then examined documents reflecting political agreement on critical constitutional questions such as the Naivasha Accord. The Nzamba Kitonga team looked at both the Kriegler and Waki reports and then examined thoroughly the various memoranda on the same subject submitted to the CoE. After a rigorous debate among themselves the CoE unanimously agreed on the three contentious issues named above.

The contentious issues named by the churches and the rich land owners are therefore fake ones. They should not be taken seriously by those who will have the responsibility of implementing the new Constitution. If however Kenyans in future, which is after at least ten years from today, want to amend the new Constitution the procedure to follow is very well documented in the new Constitution.

What Kenyans cannot stomach is the continued demand to have the new Constitution amended before it is promulgated, which is a legal impossibility. When the people demanding the amendment of the new Constitution claim they want to do so through the stipulated method in it, they are not being honest. If they were all honestly concerned about the implementation of the new Constitution in an inclusive manner then they would keep quiet for the time being, wait until the new Constitution is promulgated and see how it is actually operationalised. Then they would have good reasons to call for amendments, if those reasons will still be valid ten years from today.

Today they are only engaging is a face saving exercise to save the institutions they head. Unfortunately for them, the referendum has taught Kenyans a great lesson: That they are the real bosses in Kenya and what they want becomes the law. As far as the Constitution they want is concerned, they have already spoken. Very loudly indeed.

Constitution: Ruto’s lies haunt him

2010-08-13T07:43:00.000-07:00

William Ruto is in a lot of trouble. He went round the country castigating the Proposed Constitution by the use of blatant lies and against the wishes of his party ODM. Now the party is not only threatening to discipline him, but is also recommending his dismissal from the Cabinet where he serves as the Minister for Higher Education. Whether Prime Minister Raila Odinga and President Mwai Kibaki will be influenced by ODM and show Ruto the door remains to be seen.

Whatever happens he cannot deny that he told the people of Kenya the Proposed Constitution will allow homosexuals to marry partners of the same sex. Yet the Proposed Constitution says in Article 45(2) that every person has the right to marry a person of the opposite sex based on the free consent of the parties. The question Raila Odinga and Mwai Kibaki should ask themselves before forgiving Ruto is how many people, particularly the Kalenjins who take every word spoken by Ruto as gospel truth, voted against the Proposed Constitution based on the lies on gay marriages?

Can a person who publicly lied against the Proposed Constitution to suit his own personal gains be trusted to work in a major parliamentary committee charged with the responsibility of implementing the New Constitution? If William Ruto truly believed every word he publicly said about the Proposed Constitution, he should be the last one to offer his services in the implementation committee.

Apart from the lies he told his own people about same sex marriages, Ruto told an even more serious lie to the Kalenjins, which must have made them reject the Proposed Constitution en masse. He publicly told his tribesmen and women that all the land they own would be confiscated by the Government if they accepted the Proposed Constitution.

Many Kalenjins voted “NO” believing the New Constitution would not respect the private land they individually own. Yet the New Constitution clearly describes private land in Article 64 (a) which say private land consist of registered land held by any person under any free hold tenure or land held by any person under leasehold tenure or any other land declared private land under and Act of Parliament.

The over a million Kalenjins who rejected the Proposed Constitution did so believing Kibaki and Raila’s Government was about to confiscate their private land and yet the truth of the matter the very opposite was the real situation because the New Constitution protects all the Kalenjin land owned individually or collectively as a community. The lies that Ruto told to the Kalenjins and made them reject the Proposed Constitution have angered his ODM party which has now closed all doors leading to implementation committees for William Ruto.

Ruto went round the country telling everyone to reject the Proposed Constitution because it would facilitate abortion on demand for pregnant mothers yet Article 26 (4) of the New Constitution also very clearly says abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

During the campaigns for and against the Proposed Constitution William Ruto deliberately misled the people of Kenya and managed to get well over two million people on his side. That was a very serious damage he made to the efforts of getting this nation a new constitution. Should he be rewarded for his efforts by being included into the Parliamentary committee that will oversee the implementation of the New Constitution?

ODM as a party to which William Ruto belongs says no. Yet there are others who believe he should be included in that vital committee for the sake of national unity during this time. But the big question is: Has William Ruto changed or is he still working against the New Constitution?

During the campaign for and against the Proposed Constitution William Ruto went to the Coast and up at North Eastern Province where there are a lot of Muslims and told them if they backed the Proposed Constitution there would be serious confrontation between Muslims and Christians. Fortunately the Muslims at the Coast and at the North Eastern provinces did not take Ruto seriously and that is why they overwhelmingly supported the Proposed Constitution backed by millions of Christians.

They knew William Ruto’s efforts to drive a wedge between Muslims and Christians was an extremely serious crime which would have led this country into a bloodbath that would have made the post 2007 election conflict look like a Christmas party. Should such a person be cajoled by being offered a lucrative position in an important committee meant to bring about love and peace through the implementation of the New Constitution?

Millions of Christians ignored William Ruto when he told them to reject the Proposed Constitution because of the inclusion of the Kadhi courts in it. His argument was that the Kadhi courts in the Constitution would make Islam superior to Christianity and would lead to the spread of Islam and Muslim fundamentalism throughout the country.

Ruto knew he was lying when he was spreading his anti Islam propaganda because, as an educated person, he knew the New Constitution has established Kadhi courts for purposes of only personal laws for Muslims and that as part of the Judiciary they are only subordinate courts that cannot be used for evangelistic purposes to spread either Islam or Muslim fundamentalism. Yet Ruto made many reject the Proposed Constitution through this misconception of the Kadhi courts.

When going round the country castigating the Proposed Constitution William Ruto, Cyrus Jirongo and Daniel arap Moi never told the people the truth about the real reasons for their vehement opposition to the Proposed Constitution. Now that it has been ratified by Kenyans some of the real reasons are beginning to come out in bits and pieces. Pushed against the wall, Moi, for instance, says he still hopes there will be an early effort to amend the New Constitution’s chapters dealing with land and counties. The question is why is Moi, strongly backed by Ruto, so concerned about these chapters to the extent of telling lies about a document which they know would do a lot of good to the people of Kenya?

The answer to that question lies in the ownership of huge tracts of land and how it was acquired. When Moi was the President he used to dish out land to his cronies and family members right left and centre. Among the beneficiaries were Ruto and Jirongo. The manner in which Moi distributed land was quite unjust to the ordinary people of Kenya. The New Constitution promises to correct that anomaly. Moi is also quite agitated by the new creation counties in the Rift Valley which he believes should remain as one unit belonging to the Kalenjins.

Now there are new counties there which will be in the hands of people other than Kalenjins including, for example, Kajiado and Narok which will be controlled by the Masai people, which does not disturb Mio so much; but Nakuru and Laikipia, which may end up in Kikuyu hands and disturbs the former President quite a lot. Deep inside, Moi is a Kalenjin nationalist who believes the Rift Valley belongs to the Kalenjins – an error which the New Constitution corrects with the consent of over six million Kenyans.

Constitution: Kalonzo’s new responsibility

2010-08-12T10:58:00.000-07:00

Kalonzo Musyoka will go down in history as a man who played two important roles when the country needed him. The first role was when he became the Vice President of the Republic of Kenya in 2008 when the country was in turmoil. Kenya had just gone through the most controversial general election with no clear winner. President Kibaki became the most unpopular person for swearing himself secretly to serve a second term against the will of Raila Odinga’s supporters who believed they had won the election. Kibaki desperately needed a number two to serve the country as the Vice President. That person, as fate had it, was Kalonzo Musyoka.

The second time when Kalonzo Musyoka finds himself in a hot, but extremely important national seat, at an extremely crucial time in Kenya’s history, is now. He has just been appointed by both President Mwai Kibaki and Prime Minister Raila Odinga, to serve as the Leader of Government Business in the Legislature where there are scores of laws to be passed in support of the new Constitution. Kalonzo will also be the boss of the House Business Committee, which will be the engine of the entire legislative process.

In any language, this is an extremely heavy responsibility for a man who was swaying between “YES” and “NO” camps to such an extent that he almost made half of his Kamba people reject the Proposed Constitution. But then Kalonzo is popularly known by his people as Wiper, that part of a car on a windscreen that moves left and right in any rainy day.

Kalonzo’s Wiper signifies the left and right movements of a sea of arms of huge crowds that cheer him up whenever he appears before them. Paradoxically, whenever William Ruto, the de facto leader of the opponents of the Proposed Constitution, went to Ukambani to seek support for the rejection of the Proposed Constitution, he took “greetings”, some would say instructions, from “Wiper” to the people. Those “greetings” may have been the main reason for the large number of Kamba people’s rejection of the Proposed Constitution.

Kalonzo’s Wiper doctrine has been the politics of indecision in the Kibaki-Raila tug of war. During the 2007 election campaigns he used to tell his supporters that he would let Raila fight Kibaki and Kibaki fight Raila, but in the end he would just pass in the middle of the two fighting top leaders of Kenya and walk straight into real leadership. In a way that is what happened in 2008 when he was appointed the Vice President of Kenya to the great disappointment of Raila Odinga, who categorically refused to occupy the third position after Kibaki and Kalonzo. Raila’s anger was so strong that in the end the Constitution of Kenya had to be amended to create the position of a Prime Minister who shared powers with the President on equal basis.

Today there is no doubt that Raila is Kalonzo’s boss and the latter’s appointment to become the Leader of Government Business in the Legislature had to be done with the approval of the former. All the same Kalonzo’s Wiper politics, which make him move his policies like a pendulum, have paid some dividend this time. During the campaign for and against the Proposed Constitution he used to go to churches and tell the clergy not to weaken their position of rejecting the Proposed Constitution, and then join President Kibaki and Prime Minister Raila Odinga to tell the wananchi to support the Proposed Constitution – a very wiper-like political movement indeed!

The Kalonzo wiper political philosophy is beginning to pay some other dividends also. His pendulum movements to and from the “YES” and “NO” camps makes him singularly the most qualified person to bring together the two warring teams at a time when the country desperately needs to be united as the new Constitution is being implemented. The outcome of the whole exercise is bound to secure the name of Kalonzo Musyoka a very significant position in the history books as it boosts his image as national hero in preparation for the 2012 general election.

His Presidential candidature is sure to get the backing of the Churches, the Kamba people and the Kalenjins, if William Ruto will be his running mate. The only trouble is the unity between Raila Odinga and Mwai Kibaki is become dangerously close to the detriment of any other Presidential candidate apart from Agwambo himself. It will, therefore, not be surprised at all if Kibaki repays the Prime Minister by declaring “Raila Tosho” just before the next general elections.

The just ended referendum for the new Constitution has changed the political scenario and the game on the chessboard quite considerably. From now on the whole game will be played differently as the two major political parties – ODM and PNU – are getting closer and closer every single day. The importance of the Prime Minister and the President appointing Kalonzo Musyoka the Leader of Government Business at this time is to bring the ODM-K in that gigantic union. The question may be asked: If Kibaki endorses Raila as the next President of Kenya, what happens to other contenders such as Martha Karua, George Saitoti and Moses Wetangula who have all shown interest in Kenya’s topmost job?

The answer to that question is that Kenyan politicians get into politics simply to make money. The manner they almost sabotaged the referendum by refusing to adjourn the House unless their salaries were increased attests to that notion. In future they will simply join a political party that may appoint them to the lucrative positions of Secretaries who will head ministries instead of Ministers.

It is not beyond Kenyan politicians to establish political alliances that will simply create jobs for themselves. The rebirth of the first Kenya African National Union , KANU ,which was formed by Tom Mboya , James Gichuru, Jaramogi Oginga Odinga and Joseph Otiende, and united mainly Kikuyu and Luos, to liberate Kenya from colonialism , is about to take place as Luos and Kikuyus are about to once again unite . The difference is that this time the unity will be necessitated by the sole purpose of trading horses to secure top jobs in the new Government to be formed under the new Constitution.

This new unity may see the merger of ODM and PNU and if Kalonzo thinks there is anything for him and for the Kamba people to gain, it may even include ODM-K. The endorsement of Raila Odinga as the next President may come with a firm undertaking that he will appoint certain people to key cabinet positions which will automatically be ratified by a Parliament made up of a strong political party that may be formed through the unity of ODM, ODM-K and PNU. If these three parties unite they can easily control both the Legislature and the Executive.

If, on the other hand, Kalonzo Musyoka joins hands with William Ruto to revive the almost dead KKK with the hope that Uhuru Kenyatta will join them later, then Raila Odinga will face a formidable opposition in the 2012 Presidential elections. That scenario is unlikely to take place because between them, William Ruto, Uhuru Kenyatta and Kalonzo Musyoka will never agree on who to elevate to be the Presidential candidate and who would be the running mate. May be the most difficult agreement between the three to reach is who will be willing to step down as the third person who will neither be the next President nor the next Deputy President. None of the three is that magnanimous.

If the ODM, PNU and ODM-K unity Raila Odinga and Mwai Kibaki are trying to establish succeeds, then the implementation of the new Constitution will take place quite smoothly with or without the support of William Ruto, who is already in trouble with the ODM leadership, which is threatening to discipline him for opposing the Proposed Constitution against the wishes of the party. As the politicians scheme to get jobs in the new political setup in Kenya, the noises made by church leaders backed by the retired President Daniel arap Moi, calling for the amendment of the new Constitution before its implementation, will simply not be taken seriously by anyone.

After all the procedure to amend the new Constitution is quite cumbersome and as Nzamba Kitonga, the outgoing chairman of the CoE says, it may take ten years before the move to amend the new Constitution succeeds. At that time Kenyans will be so used to their new Constitution that they will probably see no need to amend it at all.

Constitution: No room for dialogue

2010-08-09T05:05:00.000-07:00

The ratification of the Proposed Constitution by the more than six million Kenyans makes it the property of the people. It cannot be changed through any dialogue by a group of clergymen and politicians. The noise being made by Vice President Kalonzo Musyoka and William Ruto backed by a group of church leaders headed by Cardinal John Njue of the Catholic Church is, therefore, just that: Noise!

But that noise can change into very serious threat to the unity of this country if it is sustained between now and the date of promulgation of the new Constitution which should be known as the Constitution Day and probably be a public holiday from now on in the place of Kenyatta Day, which should be named the Mashunjaa Day and be scrapped as a public holiday. Cardinal Njue, William Ruto, Daniel arap Moi and Kalonzo Musyoka know very well that the time to go back to the negotiating table over the content of the ratified Constitution of Kenya, passed on August 4th when the people made a final decision on that matter.That time is gone for good.

Though both Prime Minister Raila Odinga and President Mwai Kibaki now sound very reconciliatory when they talk of the need for peace and unity while the ratified Constitution is being implemented, none has suggested any possibility of reopening negotiations for amendments of any part of the new document. The closest to what is likely to happen was in fact revealed by Mwai Kibaki when he addressed a large crowd outside the Kenyatta International Conference Centre on August 5th when he assured the people he described as “brothers and sisters who voted against the Proposed Constitution” that their voices “have been heard.”

That is a very clever way of putting it. Kibaki was talking of the voices of the opponents of the Proposed Constitution having been heard. He was not talking of the future. He did not say the voices of the opponents of the Proposed Constitution will continue to be heard. As a matter of fact if anyone had any doubt about what Kibaki meant he repeated it in the same written speech when he said: “We shall continue with dialogue as we implement the new constitution. Those who have expressed different views about some of the issues in the new Constitution will continue to be listened to within the vibrant democratic institutions established under the new Constitution.”

To Mwai Kibaki “dialogue” means following the provision of the ratified Constitution to the letter because , as he said in the same speech :“ After all, democracy is about accepting the verdict of the majority while at the same time giving room for accommodation of the minority.” The President did not need to elaborate that the only way to accommodate the Rutos, Njues, Kalonzos and Mois was going to follow the provisions of the ratified Constitution.

As the President and the Prime Minister were celebrating the “YES” victory in Nairobi, the Minister for Tourism, Najib Balala, was doing the same in Mombasa where he also addressed a large crowd of jubilant Kenyans. The Minister’s words were more blunt and forthright – there was going to be no more negotiations on constitutional matters. The only concern of the Government, said the Minister, would be the implementation of the new Constitution.

The implementation of the new Constitution will, however, not be an easy matter. First there will be the whole issue of appointing two important teams that will play a major role in the implementation process. The first will be the establishment of the Parliamentary Select Committee to be known as the Constitution Implementation Oversight Committee (CIOC); and the second team will be the Commission on the Implementation of the ratified Constitution (CIC).

Both the CIOC and CIC will play very important roles in making sure that the will of the people of Kenya is obeyed and implemented legally without any malice or dirty tricks. It is therefore extremely important that the members of the two teams are people of impeccable uprightness in genuinely seeking reforms in Kenya. The CIOC will be made up of politicians and the CIC will be made up of technocrats of proven ability. While selecting members of the CIOC, MPs must be careful not to choose people who have been working against the new Constitution.

In Parliament there are a number of people who are still very bitter because their plan to wreck the entire process of getting Kenyans a new Constitution has been rejected by the wananchi. Their only hope is now to infiltrate the CIOC with a view of slowing down its deliberations, which will include overseeing the implementation of the ratified Constitution including receiving regular reports from CIC concerning preparation of legislation required by the ratified Constitution and any challenges in that regard.

Parliament is full of competent members who championed the reforms course while they were campaigning for the new Constitution. People like Martha Karua and Gitobu Imanyara are two of a handful of lawyers in the Legislature whose services in CIOC could be of great importance to the country.

Other important duties of the CIOC will be coordinating with the Attorney-General, the CIC and relevant parliamentary committees to ensure the timely introduction and passage of the legislation required by the ratified Constitution; and to take appropriate action on the reports including addressing any problems in the implementation of the ratified Constitution. This is not the kind of job that should be left in the hands of people who opposed the Proposed Constitution no matter how qualified they may be.

Parliament will have yet another important duty of approving the appointment by the President of members of the Commission on the Implementation of the ratified Constitution (CIC). The law prohibits Nzamba Kitonga and his team from being considered in this new lot otherwise he would have been the ideal person to serve in this very important commission whose duties include monitoring, facilitating and overseeing the development of legislation and administrative procedures required to implement the ratified Constitution.

The Commission will also be required to coordinate with the AG and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required to implement the ratified Constitution. CIC will report regularly to the CIOC on progress in the implementation of the ratified Constitution; and any impediments to its implementation; and work with each constitutional commission to ensure that the letter and spirit of the ratified Constitution is respected.

There is very little doubt that the President, working with the Prime Minister, will appoint men and women of impeccable record as far as championing the course for the Proposed Constitution is concerned. Lawyers who did everything to frustrate the people’s efforts to get a new Constitution should be avoided by the President and the Prime Minister who should not touch them with barge pole.

Lawyers who backed the Proposed Constitution and worked hard to get it ratified by the people should be considered to become members of this important Commission. If the President and the Prime Minister make a mistake of appoint people who will work against the desires of the wananchi’s determination to get the ratified Constitution promulgated without any changes, then Parliament should correct such a mistake and reject the names of suspected people who would cause impediments to the burning desire of the people to constitutionally correct the injustices done to them.

All these are important legal steps that must be taken to makes sure the new Constitution is truly implemented in Kenya as soon as possible. It will be impossible to concentrate on this vital task if the country now starts talking about new dialogue. This therefore is not the time for dialogue. It is the time to fulfill the wishes of more than six million people who, as the majority, must have their way. When Kenya has a new Constitution, the minority, will continue to have their say about what needs to be amended.

New Constitution: The task ahead

2010-08-05T03:43:00.000-07:00

Kenyans have a brand new Constitution now. But that means more work and less talk. The time for bickering should end today as true leaders of Kenya mobilize the people to forge a new unity and a meaningful reconciliation. Among the most important jobs to be done to make sure the new Constitution bears fruitful results will be the passing of a number of legislations promised by the Proposed Constitution.

All of a sudden Kenyans will now be looking at their MPs more closely to see who is and who is not working for the Constitution they have endorsed. If there will be a list of MPs who will be shown the door in the forthcoming elections of 2012, then those who opposed the Proposed Constitution in areas where the people endorsed it will top that list. These include people like Chris Okemo and Margaret Wambui. The stand they took to reject the Proposed Constitution will be used against them in 2012. A lot of them will try to become either Senators of Governors of their counties; but the record they have left behind during the just ended campaigns for and against the Constitution will simply work against them.

Just as I predicted long ago the new Constitution will strengthen the political status of Prime Minister Raila Odinga who is likely to be even more popular throughout the country before the 2012 elections. This is likely to make ODM the most powerful political organization in the entire country. It will not be surprising at all if more political giants join the ODM with the hope of becoming Raila’s running mate in the next general election.

Musalia Mudavadi is therefore likely to get new political enemies who will challenge his number two position to and as an automatic running mate of Raila Odinga. The role played by President Mwai Kibaki in preparing the ground for his departure will also be most interesting as he may surprise people by backing a Raila – Uhuru team. Right now it may not be surprising if Raila is officially appointed the Leader of Government Business in the Legislature where a lot of work will have to be done to operationalise the new Constitution.

According to Kibaki that position belongs to the Vice President; but Kalonzo Musyoka has badly let down the President by being a “watermelon” during the campaign for the Proposed Constitution. Kibaki may not trust Kalonzo Musyoka to lead Government business in Parliament which has a lot of work now that the new Constitution has been endorsed by the people on Kenya.

Even with the new Constitution accepted by the majority of the people in Kenya there is still a lot of work to be done. A number of laws must be passed to operationalise various recommendations made by the new supreme law. These include legislation in respect of culture which is found in Article 11(3) which says that Parliament shall pass legislation to ensure that communities receive compensation or royalties for the use of their culture and cultural heritage; Parliament shall also enact legislation to recognize and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by communities in Kenya.

Though the time frame for the passage of these legislations is five years, their advantages are so important to the people of Kenya whose culture has been exploited by foreigners for a very long time. The best examples of these are kangas , kikoys and kiondos which are indigenously Kenyan items which are now sold all over the world with little benefit to the people of Kenya . The second part of the legislation will protect plants such as miraa which are to be found in Meru but are sold in various parts of the world by people other than Merus. Paradoxically among the people who spoke most loudly against the Proposed Constitution are people who told the Merus that if they passed the Proposed Constitution they would lose all their miraa to the Somali people. The people of Igembe , therefore , rejected the Proposed Constitution when the rest of Gema communities overwhelmingly accepted it.

Another important law that must be passed to back the new Constitution concerns Article 18 on citizenship which says Parliament shall enact legislation—(a) prescribing procedures by which a person may become a citizen;(b) governing entry into and residence in Kenya; (c) providing for the status of permanent residents;(d) providing for voluntary renunciation of citizenship; (e) prescribing procedures for revocation of citizenship; (f) prescribing the duties and rights of citizens; and(g) generally giving effect to the provisions of the Chapter on citizenship. Though the time frame for this legislation is one year its importance is very clear. The uncontrolled manner in which foreigners obtained citizenship in Kenya was open to a lot of abuse and corruption which now must now be put to an end.

Other important legislations on the pipeline concern many suggestions made in the Bill of Rights beginning with Article 34 on freedom of the media which says freedom and independence of electronic, print and all other types of media is guaranteed, but does not extend to any expression specified in Article 33 (2) which says the right to freedom of expression does not extend to—(a) propaganda for war;(b) incitement to violence;(c) hate speech; or (d) advocacy of hatred that—(i) constitutes ethnic incitement, vilification of
others or incitement to cause harm; or(ii) is based on any ground of discrimination
specified or contemplated in Article 27 (4) which 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. The time frame for the implementation of this part of the Constitution is three years but there is no reason for media houses not operationalising it right now.

Section 34 (2) of the Constitution says the State shall not—(a) exercise control over or interfere with any person engaged in broadcasting, the production or circulation
of any publication or the dissemination of information by any medium; or (b) penalize any person for any opinion or view or the content of any broadcast, publication or dissemination. Obviously this part does not need to wait for three years to be implemented.

Article 34 (3) of the Constitution says broadcasting and other electronic media have freedom of establishment, subject only to licensing procedures that— (a) are necessary to regulate the airwaves and other forms of signal distribution; and (b) are independent of control by government, political interests or commercial interests. Article 34 (4) says all State-owned media shall—(a) be free to determine independently the editorial content
of their broadcasts or other communications;(b) be impartial; and(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.

Kenyans will remember how the national radio and television stations were used by Kenyatta and Moi as instruments of suppression which totally denied the people the right to air their views freely. According Article 34 (5) Parliament shall within a period of three years enact legislation that provides for the establishment of a body, which shall—(a) be independent of control by government, political interests or commercial interests;(b) reflect the interests of all sections of the society; and (c) set media standards and regulate and monitor compliance with those standards.

Despite the negative aspect of the opponents of the Proposed Constitution during the emotional campaign period family life of Kenyans will considerably be improved within five years when Parliament enacts legislation that recognizes—(a) marriages concluded under any tradition, or system of religious, personal or family law; and (b) any system of personal and family law under any tradition, or adhered to by persons professing a particular religion, to the extent that any such marriages or systems of law are consistent with this Constitution. That means family injustices that have been taking place in the previous constitution will now be a thing of the past.

These are jut a few examples of legislations which need to be passed by Parliament to make sure the new Constitution takes roots in the country. The best place to campaign for the next election will be in Parliament. Those who will continue to oppose the new Constitution will only blame themselves when they are rejected by the progressive wananchi of Kenya in 2012.

Referendum Results: It’s a revolution!

2010-08-05T02:40:00.000-07:00

Kenyans have staged a bloodless coup and toppled despotism. By overwhelmingly supporting the Proposed Constitution with almost 70% approval vote they have forever silenced the voice of oppression that has for decades subjugated them both politically and economically. From today Kenyans can walk tall in any part of the world and pride themselves as a people with one of the world's best Bill of Rights in their constitution.

The rigorous campaign for the rejection of the Proposed Constitution by the retired President Daniel arap Moi did more damage than good to his camp. It simply reminded the people of Kenya how Moi totally silenced the voice of reason when he ruled Kenya with an iron fist for 24 years. Every time he opened his mouth outside the Kalenjin territory during the campaign he brought back memories of when he filled his Government with people from his own ethnic group regardless of their qualification.

The way he tried, but miserably failed, to ridicule President Kibaki’s record as a reformer made people remember how he changed the legislature in Kenya into a rubberstamp parliament whose duty was to endorse his will. The very presence of Moi in the campaign trail reminded the people how he used to promote and demote top civil servants and politicians when he was addressing roadside meetings as the President of Kenya.

His attack on the content of the Proposed Constitution took people back to the time when he simply threw whoever opposed him into jail without trial. Looking at Moi losing his temper while asking the people to reject the Proposed Constitution reminded people how little respect he had for justice when he was the country’s overall boss. Those who had been unfairly jailed by Moi could remember how he changed the judicial system in Kenya to suit his own political convenience by reducing judges and magistrates as administrators of Kangaroo courts where justice was hardly seen to be done if the accused person had Moi’s Government as his or her opponent.

The manner in which Daniel Toroitich arap Moi misruled Kenya by creating a class of extremely rich people who cared little about the downtrodden have-nots made many Kenyans see the importance of the Bill of Rights in the Proposed Constitution. Now they have a constitution which takes very serious steps to bridge the gap between the rich and the poor.

As Article 19(1), for example, says Bill of Rights is the integral part of Kenya’s democratic state and is the framework for social, economic and cultural policies. When campaigning against the Proposed Constitution , former President Daniel arap Moi , backed by his most loyal disciples, William Ruto and Cyrus Jirongo who were joined by Samuel Poghisio , Chris Okemo and Margaret Wanjiru, knew they were fighting a losing battle. Working against them was the fact that very many Kenyans are today able to read and write and could easily tell when they were given wrong information about the Proposed Constitution in public meetings.

The deliberate misinformation by the politicians who opposed the Proposed Constitution did not even need organized rebuttal campaigns to give the people the correct information. When William Ruto told many crowds he addressed that the Proposed Constitution was against the Christian church as it favoured Islam no one needed to correct that information to the people who knew very well that the subordinate Kadhi courts could not in any way, shape or form make Islam the favoured religion in Kenya. Ruto’s misguided views were further exposed when he went to the North Eastern Province and told the majority Muslim voters to reject the Proposed Constitution as it favoured American anti-terrorism laws which discriminated against Muslims. The double faced Ruto made it extremely easy for the “YES” camp to win votes among the Muslim Somalis.

It so happens that throughout the 24 years he was in power, retired President Daniel arap Moi had very little respect for the dignity of individual Kenyans. Political jails were full of innocent Kenyans; journalists were scared stiff to call a spade a spade and many of them were used as propaganda tools. From now on children in Kenya will be taught about the importance of human dignity as it is found in Article 19(2) of their constitution which says the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realization of potential of all human beings.

Any newcomer to this country is hit hard by the shocking disparity between the rich and the poor. The country has more four wheel expensive cars on its roads than many developed nations. Yet anyone driving along the bad roads in the capital city cannot help seeing expansive slums scattered in many parts of the so-called city in the sun. The misrule of Kenya by the privileged class has helped the creation and growth of the largest slums in the entire continent where people live in the most poverty stricken lifestyle imaginable. These are the people who get the maximum benefit from the new Bill of Rights that is not only concerned with the first generation human rights; but, even more important for them, the second generation human rights.

The passage of the Proposed Constitution means very bad news to few Kenyans especially those in the Kalenjin community in the Rift Valley. The good news is the fact that it will take a very short time for them to realize that their leaders, headed by William Ruto were in fact telling them no more and no less than a cock and bull story about the Proposed Constitution. Now is the time to mobilize all the Government resources to persuade the Kalenjin to know the truth about their Constitution. No effort must be spared to make them realize that they are as good Kenyans as any other as far the new supreme law of the land is concerned.

The other group that is bound to feel dejected by the new Constitution is the Clergy that allowed itself to be emotionally moved by a stand they knew was going to lose. A number of them saw the light before it was too late and jumped ship to join the winning side. The rest have now lost face before their various congregations, which they will now have to persuade to accept the new Constitution which many will have no option but to pray for. All the lies they told about the Proposed Constitution will have to be corrected by the same people who have voices on pulpits. The sad truth is that a lot of them are bound to lose respect from their own flock.

Another group of Kenyans that is likely to be unhappy with the new Constitution include people who expected to have their own counties but at the moment feel they have been swallowed up by larger ethnic group with which hey have been dumped together. A lot of politicians who have been behaving like kings and queens in their own little tribes will neither be able to be governors of the counties they belong to nor represent their people in the Senate. In this group are people like Naomi Shaban who is the undisputed leader of the Taveta people.

But now she belongs to Taita-Taveta County which will obviously elect a Taita to the Senate and have another Taita as the new governor.Unfortunately for Shaban, her own people of Taveta overwhelmingly voted "YES" for the Proposed Constitution sending her a clear message that in 2012 she may may find it difficult to go back to Parliament as they may chose someone who will cooperate with the Government in implementing the new Constitution. If ever there will be a Cabinet reshuffle after the referendum, Naomi Shaban seems to be the most threatened Minister.

Among the misguided people of Kenya are the Kambas who have, for all practical purposes , rejected the Proposed Constitution. This is likely to embarrass the Vice President and a number of top civil servants from the community who will now have an uphill task to convince their colleagues in the Government that they mean business in implementing the demands of the new Constitution in general and Agenda Four of the national accord in particular . The error of judgement was made by Kalonzo Musyoka who wanted to save the KKK unity that would have sponsored him as the 2015 presidential candidate.

Unfortunately that plan has boomeranged badly on Kalonzo Musyoka,who was booed by a large crowd that turned up at the Kenyatta International Conference Centre to celebrate the "YES" victory. Obviously the people see Kalonzo as an insincere partner in the Raila-Kibaki coalition Government. Besides that the people’s endorsement of the Proposed Constitution means the death of KKK. Uhuru Kenyatta now belongs to a winning political camp and nothing will convince him to go back to the rejected camp as the Kalonzo-Ruto political group can hardly get more than 30% support of the people of Kenya .

Referendum: Clergy’s reconciliation role

2010-07-31T03:52:00.001-07:00

The Clergy in Kenya has been at war with its flock. By the look of things the Clergy has miserably lost. According to the latest Strategic Research polls Kenyans will accept the Proposed Constitution with a big majority. No less than 66 % of registered voters will support the Proposed Constitution.Most of the voters are Christians who are telling the Clergy to keep off politics. Tempers are now high and instead of the religious leaders preaching peace, they have joined the YES-NO war of words; and unfortunately they have joined the losing side. Naturally they will lose face and a lot of respect.

The little support that is to be found in the “NO” camp is mainly made up of people who are unable to reconcile themselves going against the word of their church leaders. Yet some church leaders have forgotten a very major role they should be playing in the whole battle for “YES” or “NO” votes – that of reconciliation. It is not late for them to start preaching reconciliation according to the Bible which says:
"Let all bitterness, and wrath, and anger, and clamour,and evil speaking, be put away from you, with all malice"
--Ephesians 4:31
Throughout the referendum campaign period Kenyans were shocked to see religious leaders engage in words of bitterness openly through anger full of malice. The people who know the teachings of the Good Book looked at the leaders dressed in red gowns and realized they were not following the teaching of God. That is why the majority of them have decided to abandon their pastors and join hands to bring about the much needed change in this country. Kenyans know that among the leaders taking the “YES” stand are some very good Christians including 300 church leaders. Day in and day out the red-robbed church leaders have shown Kenyans that they can be very angry people; yet the Bible says:
"In your anger do not sin”: Do not let the sun go down while you are still angry,"
--Ephesians 4:26
The sun in Kenya goes down every day with many angry church leaders setting very bad example to their flock. Because of the anger created by church leaders the country is torn apart. Without church leaders in the “NO” camp the people opposing the Proposed Constitution would have been just a handful led by William Ruto, Cyrus Jirongo, Daniel arap Moi, Naomi Shaban and Samuel Poghisio. The rest of Kenyans would have been in the “YES” camp as they did when they were giving their views to the Committee of Experts which wrote the Proposed Constitution according to the wishes of the people. Even if the religious leaders think the “YES” team is made up of sinners, they still seem to have forgotten what the Bible says about forgiveness:
"…and forgive us our sins, as we have forgiven those who sin against us"
-- Matthew 6:12

Throughout the campaign church leaders in the “NO” camp showed very little willingness to forgive the people they thought were wrong. The stand taken by the Church leaders in the “NO” camp was so confrontational that people were moved with emotions with very little room for forgiveness. Even after the “YES” team is declared the winners on Thursday, Church leaders must come out as leaders of peace and preach forgiveness. The manner in which they have been behaving, as they moved in different groups to many parts of the country, they seemed to have very little room for forgiveness. Paradoxically, when the country overwhelmingly endorses the Proposed Constitution, it will be the Church leader who will need to be forgiven. The good Christians of Kenya must not be tired of forgiving each other for the Bible says:
"Then Peter came up to Him and said, Lord, how many times may my brother sin against me and I forgive him and let it go? [As many as] up to seven times? Jesus answered him, “I tell you, not up to seven times, but seventy times seven!"
-- Matthew 18:21-22

It is not too late to forgive. Even now when there are only three days left before the people of Kenya go to the ballot boxes to prove the Clergy wrong, religious leaders have an opportunity to bring the country together by asking both the “YES” camp and the “NO” camp to forgive one another. The new Constitution will drastically change the manner in which this country is governed but basically the country will remain the same. The people of Kenya will still be brothers and sisters. So the Clergy must seize the opportunity to preach forgiveness, for the Bible says:
"Make allowance for each other’s faults, and forgive anyone who offends you. Remember, the Lord forgave you, so you must forgive others."
-- Colossians 3:13

There are many stories that have been told about the real reason the Clergy in Kenya seems to have forgotten the word of God and started preaching hatred. American fundamentalist Rightist churches that want to use the referendum in Kenya to fight Barack Obama have openly said that they have given a lot of money to the Clergy in the “NO” camp. Despite all that, church leaders must now embark on the noble duty to make peace for the Bible says:
Blessed are the peacemakers: for they shall be called the children of God."
-- Matthew 5:9

Long after the country endorses the new Constitution the Kenya will need peace. Though the people have been taught bitter lessons during the post 2007 election clashes, there are still some leaders who have been threatening peace during the referendum campaigns. William Ruto and the retired President Daniel arap Moi have time and again warned that the endorsement of the Proposed Constitution would lead to chaos in the Rift Valley. So far the people of Rift Valley have behaved very admirably by refusing to be led to unnecessary confrontation with people they disagree with politically. Kenyans must always remember that peace is so important for us for the Good Book says:
The LORD blesses his people with peace.
--Psalm 29:11
Religious leaders should have been in the forefront to prepare the people of Kenya to vote peacefully on Wednesday; but listening to some of them leading prayers throughout the campaign period for the referendum was like listening to generals preparing soldiers to go to war. They were totally uncompromising.The future of this country will depend on peace. All the good things that are proposed by the Draft Constitution will not be able to be implemented in a situation that has no peace. Knowing the religious leaders well, Kenyans realize that they will be among the first to blame all sorts of people and institutions when the results are declared and they discover that they have been backing the wrong horse all this time. They must remember that with the New Constitution and peace the future is very bright for the Bible says:
Consider the blameless, observe the upright; there is a future for the man of peace.
-- Psalm 37:37
Even with peace the country will need unity to forget the animosity that has been preached by religious leaders. Even though the country will have a new Constitution in three days we are a divided people and the divisions have been brought about by what some religious leaders have been preaching. Despite all the animosity the religious leaders have been preaching, they still have time to obey God’s commandment which is found in the Bible:
"A new commandment I give unto you, That ye love one another; as I have loved you, that ye also love one another. By this shall all men know that ye are my disciples, if ye have love one to another."
--John 13:34-35
When all is said and done Kenya will remain one country with a new Constitution from Wednesday. The country must remain united and forgive the religious leaders because the Bible says:
"Behold, how good and how pleasant it is for brethren to dwell together in unity!"
-- Psalm 133:1

Referendum: Why Kibaki criticizes Moi

2010-07-29T05:44:00.000-07:00

Nothing fascinates Kenyans today more than the Moi-Kibaki fight on the Proposed Constitution. The two have off and on been political associates and antagonists at different times in their long lives. But when they fight they are so careful not to spill the beans concerning the many skeletons they both hide in their cupboards. On constitutional issues they have fought many wars both as friends and foes.

The first Kibaki-Moi confrontation on a major constitutional issue was in 1963 when the two took opposite stands as they belonged to the then most powerful political parties that bitterly opposed one another on the kind of constitution independent Kenya needed. Whereas Mwai Kibaki belonged to the Kenya African National Union, which stood for a unitary system of Government, Daniel Toroitich arap Moi belonged to the Kenya African Democratic Union, which stood for a federal type of Government known as the majimbo system.

When the final constitutional conference took place at Britain’s Lancaster House in 1963, Moi belonged to the camp led by Ronald Ngala backed by Masinde Muliro and Justus ole Tipis which was strongly supported by the Colonial Government whereas Mwai Kibaki belonged to the camp that was led by Jomo Kenyatta, Tom Mboya, James Gichuru and Jaramogi Oginga Odinga. At the end of the Lancaster House conference Kibaki’s team lost to the Moi team when the majimbo constitution was adapted as the supreme law in Kenya’s internal self government with Jomo Kenyatta as its first Prime Minister.

In the first Government formed by Kanu under the leadership of Jomo Kenyatta in 1963 neither Moi nor Kibaki sat in the first cabinet. In that Kanu Government Kenyatta was the Prime Minister, Oginga Odinga was the Minister for Home Affairs, Tom Mboya was the Minister for Justice and Constitutional Affairs , James Gichuru was the Minister for Finance and Economic Planning , Joseph Murumbi was the Minister of State in the Prime Minister’s Office in charge of foreign affairs, Mbiyu Koinange was the Minister of State for Pan African Affairs, Dr. Njoroge Mungai was the Minister for Health and Housing, James Otiende was the Minister for Education, Bruce McKenzie was the only white face in the first Kenyatta Government and was the Minister for Agriculture , Samuel Ayodo was the Minister for Local Government, Dr. Julius Kiano was the Minister for Commerce and Industry, Dawson Mwanyumba was the Minister for Works , Communications and Power, Eluid Mwendwa was the Minister for Labour and Social Services, Laurence Sagini was the Minister for Natural Resources , Achieng Onkeno was the Minister for Information , Broadcasting and Tourism and Jackson Angaine was the Minister for Lands and Settlement.

Though that was a very powerful Kanu team in the Government, Kenyatta and his Kanu party were not satisfied. Power was not really in the hands of the old man. With majimbo fully operational power was scattered all over the country because the constitution said so. Kenyatta’s first duty was to fight a quiet war applying the stick and carrot tactic to influence Kadu to join his Government in order to concentrate all the powers in his hands. But that could not be done without constitutional changes.

That is when Kibaki and Moi joined hands in one of the first constitutional conspiracies in this country that betrayed the people of Kenya by concentrating all the powers in the hands of Jomo Kenyatta who was beginning to build the foundation stone for making himself a despot. This was done through the Constitution of Kenya (Amendment) Act Number 28 of 1964 which brought Moi and his other colleagues in Kenyatta’s first republican government after the dissolution of Kadu as the Opposition party – a move that is today seen by many as the first step towards the creation of despotism in Kenya.

The second time when Kibaki and Moi joined hands in another constitutional conspiracy against the people of Kenya was when they jointly, together with their two parties Kanu and Kadu, passed another Constitution of Kenya (Amendment) Act Number 38 of 1964 which denied regions powers to raise their own funds, making them totally dependant on the central Government in yet another move that made Kenyatta a powerful despot. This was the amendment that also gave the President powers to appoint judges without consulting anyone.

In yet another effort to make the President of Kenya really powerful Moi and Kibaki joined hands yet again to pass the Constitution of Kenya (Amendment) Act number 16 of 1966 which demanded Members of Parliament to lose their seats if they were jailed for more than six months. This made MPs so timid and scared of the President who was becoming too powerful and could make any one of them lose his or her after going to jail for petty offenses. That same amendment to the Constitution made MPs lose their seats if they missed eight consecutive sittings in Parliament.

When it was obvious that Jomo Kenyatta was becoming an uncontrollable dictator the Vice President Jaramogi Oginga Odinga resigned from Government on April 14, 1966. He also resigned from Kanu with a strong team of 28 Members of Parliament after forming what was threatening to be a very popular party known as the Kenya People’s Union (KPU). To fight Jaramogi, Kibaki and Moi joined Tom Mboya and Kenyatta in yet another constitutional conspiracy through the Constitution of Kenya (Amendment) Act Number 17 of 1966 which required MPs to seek new mandate from the people through by election when they resign from the political party that got them elected to Parliament.

This is what led Jaramogi and his team seek new mandate through what was then called the Little General Election. When President Kibaki and Daniel arap Moi engage in public war of words on constitutional issues they both know that in 1966 they betrayed the people of Kenya when they joined hands with other Kenyatta sycophants to pass yet another Constitutional (Amendment) Act Number 18 of 1966 which made the President have powers to detain anyone without any trial. These are the skeletons the two leaders are careful not to expose in their cupboards as they publicly exchange bitter words.

Kibaki and Moi joined hands yet again in another constitutional conspiracy in 1966 when they passed the Constitution of Kenya (Amendment) Number 40 of 1966 which abolished the Senate which the Proposed Constitution is rightfully trying to reestablish. The two leaders betrayed Kenyans yet again in another Constitutional Amendment Number 2 of 1968 which prohibited politicians from seeking election as independent candidates. Today Kibaki is repentant and wants the people of Kenya to enjoy the freedom to seek election without any political party as it is in the Proposed Constitution, but Moi is not and wants the despotic tendencies of denying wananchi that right to continue.

Kibaki and Moi joined hands in yet another constitutional conspiracy when they passed the Constitution of Kenya (Amendment) Act Number 45 of 1968 which demanded presidential candidates to be nominated by a political party. In yet another constitutional conspiracy Kibaki and Moi joined hands and passed the Constitution of Kenya (Amendment) Act Number 5 of 1969 which required all members of the Electoral Commission of Kenya to be appointed by the President. This amendment is what gave Kibaki powers to appoint Samuel Kivuitu whose terrible mess in mishandling the 2007 election is still fresh in people’s minds.

In constitutional matters Kibaki and Moi have been very close friends. When it was clear that Mzee Kenyatta was getting too old a team of Gema leaders tried to change the constitution to make sure Moi, who was then the Vice President, did not take over. That political plot was called Change-the-Constitution-scheme. Mwai Kibaki was one of the most outspoken politicians against the scheme. When Daniel arap Moi took over the leadership of Kenya he rewarded Kibaki’s loyalty by appointing him the country's Vice President.

When Moi became the country’s number one boss his joint constitutional conspiracy with Kibaki against the people of Kenya did not stop. Mwai Kibaki joined him in changing the Constitution yet again to make Moi even more despotic than Kenyatta. That was through the Constitution of Kenya (Amendment) Act Number 7 of 1982 which made Kanu the only legal political party in the country. At that time Kibaki and Moi made the entire country sing songs in praise of the so-called ruling party as mama na baba of all Kenyans.

To be fair to President Kibaki he has done quite an about turn act since he took over the leadership of the country and tried to give Kenyans a truly democratic Constitution. But that was not before he tried to copy the dictatorship exemplified by Daniel arap Moi. In the 2007 elections Kibaki did what Moi had done many times in stealing the election. Moi’s worst record was in 1988 when he deprived the people of Kenya the right to elect their parliamentarians democratically. That is when he introduced the notorious mlolongo electoral system .

By giving the people of Kenya the opportunity to approve the Proposed Constitution, Kibaki knows Kenyans will forgive him for the constitutional sins he committed with Daniel arap Moi against the people of this country. When Daniel Toroitich arap Moi goes round the country condemning the Proposed Constitution he must be seriously irritating Mwai Kibaki and reminding him of things he would rather were swept under the carpet. He therefore has very good reasons to criticize Moi.

Referendum: Polls point to the truth

2010-07-23T04:43:00.000-07:00

Two more opinion polls show that the “YES” camp will win on August 4th. Yet church leaders are still adamantly determined to tear this country apart by insisting on telling their flock to vote “NO”. History will be extremely unkind to them unless they come to their senses now and mobilize the country to unite for the sake of peace and stability. It is not too late for the Clergy to insist on a MoU with the Government to ensure that their desire to amend the Proposed Constitution's contentious issues will be given the first priority after the adaptation of the Draft law.

The Prediction by Synovate that the “YES” team ill win by 58% and by Infotrak Harris that it will win by 65% give the average figure of a win by 61% as the most likely indicator of a true picture on the ground. The remaining period of slightly more than a week can make that figure go even higher. This simply means the Clergy in this nation is about to lose face among its flock. Kenyans have decided that they only take their religious leaders seriously on spiritual matters of prayers and divinity. But on temporal and particularly political issues they know the expert knowledge is not to be found with the noisy church leaders.

The interdenominational prayer for next Friday, therefore, should be devoted to seeking remedies to the ailment of disunity in the country. So far all the church leaders have realized that their adamant stand against the Proposed Constitution has been rejected by their own flock and instead of waiting to lose face on August 4, they should now do something not only to save face but also to engage in a noble duty of damage control that the entire nation desperately needs. Swahilis have a wonderful saying: Asiyekubali kushindwa sio mshindani. This means the same thing as the English one which says: He who fights and runs away may live to fight another day.

The Clergy should now start running away from the chaos they have created in the country and embark on preparing for an even more honourable fight for peace and stability in this nation. This is the time for them to answer to their true calling of men and women of God who seek peace, unity and justice rather than being the instruments of promoting injustice and disunity that will only bring about animosity and bloodshed in the country. The Clergy should be the first to know that the Proposed Constitution aims at ending injustices that have always favoured the rich against the poor.

The Clergy should also know that their adamant “NO” stand has made it extremely difficult for some people to make the right decision on the Proposed Constitution. Among the majority of the undecided voters are people who know the Proposed Constitution is good for their country; but fear to go against the word of church leaders who symbolize the God they worship. Little do these people know that the Clergy is only backing the “NO” camp for monetary gains from the American conservative rightist churches of fundamentalist persuasion fighting President Barack Obama on his own fatherland.

The latest opinion polls show that the number of people supporting the Proposed Constitution is steadily increasing after dropping very fast following a rejuvenated campaign by church leaders using the Christian gospel and crusades as their disguised platform for the “NO” campaign. But that trend is changing and changing very fast. The only plausible reason can either be the fact that people have learnt to see through the camouflaged image of deceitful church leaders, or that there is a new force that has helped them see the light in the Proposed Constitution . That new force can only be the introduction of senior civil servants as a new brigade for the “YES” campaigners.

The decision by President Mwai Kibaki and Prime Minister Raila Odinga to unleash the Civil Servants to join the “YES” camp of the campaign is the most controversial administrative order to be made by the two since they took over the joint leadership of this nation. Condemnation against that decision has come from many quarters including the IIEC which is mandated to ensure that the referendum is carried out in a free and fair manner.

The IIEC is also backed by the Cap 183 of the Laws of Kenya which is also known as the Public Officer Ethics Act whose Section 16 (1) says clearly that a public officer shall not , in or in connection with the performance of his duty as such (a) act as an agent for , or so as to further interest of, a political party, or act as an agent for, or so as to further the interest of, a political party; or (b) indicate support for or opposition to any political party or a candidate in an election .Section 16 (2) of the Act says a public officer shall not engage in political activity that may compromise the political neutrality of his office .

The big question that must be answered by the Head of the Civil Service, Francis Kirimi Muthaura, is whether participating in the campaigns for the “YES” camp is engaging in political activities. There are many political pundits who believe the entire exercise of selling the Proposed Constitution to the people is a Government project that must be propagated by everyone in the Government whether civil servants or politicians. Supporters of this point of view argue that the implementation of Agenda Four would be impossible without the Proposed Constitution and the people in the forefront for that implementation are the civil servants. Hence the importance of involving them in the “YES” campaigns.

Fearing that the political limelight in their constituencies is about to be stolen by the top civil servants in the campaign trail, members of Parliament have belatedly decided to adjourn Parliamentary sittings to take part in the campaign for or against the Proposed Constitution. The majority of them are backing the “YES” camp. But many of them are doing so for very selfish reasons knowing very well voters will probably be absolutely ruthless with any political leader opposed to the Proposed Constitution. The willingness of MPs to adjourn the National Assembly, instead of using the august House as a campaign platform for higher pay, means they have read the writing on the wall which shows the mood of the people is totally opposed to their greed.

The return of MPs to their constituencies to participate in the referendum campaigns will also means the “YES” teams will now have the top civil servants backed by MPs plus a number of clerics and pastors who are likely to change from “NO” to “YES” camps due to their opportunistic tendencies. This is extremely bad news for the opponents of the Proposed Constitution who must be closely observed by everyone lest they decide to change their anger into violence.

As the country approaches the voting day security in some areas traditionally associated with election violence has been beefed up. This is the correct way of dealing with the situation. If ever there will be any danger to the security of the country, it is most likely to occur in areas dominated by “NO” supporters. These are the people who will be disappointed and as was the case after the 2007 election, the disappointed people may resort to illegal demonstrations and destruction of property. Security forces in these areas have correctly been beefed up. But when it comes to security matters it is the ordinary people who must be the eyes and ears of the Government. Anyone plotting against the outcome of the referendum must be exposed right now before the first vote is cast.

Referendum: Media wars get fierce

2010-07-20T04:36:00.000-07:00

There have been some fantastic television commercials for and against the Proposed Constitution. A number of them seem to have very little regard for the Code of Conduct and Practice of Journalism in Kenya. Top on that list is an advertisement by the “NO” team showing an unborn baby in the womb with the heart still beating indicating the fetus was alive. Then the camera moves to some living children responding to a symposium interview: one says the unborn child must not be killed because it has blood; the other says it must not be killed as it was indeed a living being. Then the camera moves to a written text saying: Protect life, vote “NO”.

Technically that is an ingenious advertisement. It emotionally moves people and probably has won the “NO” camp many votes. But ethically it is unprofessional. It gives the erroneous message that voting “YES” is supporting abortion when factually the Proposed Constitution says in Article 26 (1) every person has a right to life; and in Article 26 (2) says that the life of a person begins at conception; and in Article 26 (3) says a person shall not be deprived of life intentionally, except to the extent authorized by this Constitution or other written law.

Despite all that the Proposed Constitution clearly says in Article 26 (4) abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. Publishing a horrifying picture of a fetus which ostensibly is about to be killed and then interviewing children pleading for sparing the life of the unborn child is contextually erroneous and therefore unethical. If it is unethical, it is, needless to say, also unprofessional and should not have been accepted by the media houses at whatever cost.

Probably the most controversial TV commercial about the referendum is the one showing the Minister for Higher Education, William Ruto, openly supporting the Draft Constitution. It depicts him saying it is a good document that can do a lot of good for the country. Soon after that the camera shows Ruto condemning the Proposed Constitution and then the camera moves to yet another William Ruto who is castigating hypocritical Members of Parliament who say one thing in the National Assembly and the complete opposite when they are outside the chamber.

From a propaganda point of view that is a fantastic commercial which makes Ruto appear to be the most hypocritical leader who says one thing at one time and the complete opposite at another. Whereas both the footages of William Ruto are basically correct, they are not professionally upright as they are not contextually correct and therefore they are factually wrong. The commercial does not say that the first footage showed William Ruto praising the Draft Constitution after it was thoroughly chopped and reshaped by Parliamentary Select Committee which included himself. The commercial is also professionally wrong because it fails to point out that what Ruto was praising and condemning were two different drafts of the Proposed Constitution at their two different stages of development.

The “NO” camp has correctly complained about the manipulation of films which show William Ruto doing things out of context. What was shown to the public was neither accurate nor fair to William Ruto and it goes against the very first professional ethical principle of accuracy and fairness which says that the fundamental objective of a journalist is to write a fair, accurate and an unbiased story on matters of public interest. The principle demands all sides of the story to be reported, wherever possible. It also says comments should be obtained from anyone who is mentioned in an unfavourable context.

The same part of the ethical principle says whenever it is recognized that an inaccurate, misleading or distorted story has been published or broadcast, it should be corrected promptly. It adds that corrections should present the correct information and should not restate the error except when clarity demands. Obviously the media houses that ran the Ruto commercial had totally disregarded this part of the Code of Conduct and Practice of Journalism in Kenya and the “NO” camp had every right to complain.

Apart from that, the Code prohibits the irresponsible manipulation of pictures which happened with the Ruto footage. The Code says as a general rule, the media should apply caution in the use of pictures and names and should avoid publication when there is a possibility of harming the persons concerned. Manipulation of pictures in a manner that distorts reality, says the Code, should be avoided.

Another captivating TV commercial for the “YES” camp shows the sad picture of Kenya during the post 2007 election clashes. Pictures of burning tires with the rowdy crowds of people carrying sticks and pangas have the immediate effect of terrifying the viewers who are immediately told to avoid similar situation by voting “YES”. Whereas there is an element of truth in the commercial that suggests voting “YES” actually closes all avenues leading to similar disturbances in future, the innuendo of the commercial is that those in the “NO” camp do not want peace. Determining whether or not to accept such an advertisement is an extremely hard professional nut to crack.

Supporters of the “YES” camp could argue that all the facts of the commercial are correct. Indeed the country went through a traumatic period of upsetting disturbances. They could further argue that all that the commercial does is to remind the voters of the dangers of rejecting the Proposed Constitution. Apart from the libelous innuendo of the commercial there are no strong professional reasons for rejecting it. With the defence of justification on their side media houses that run that ad could take a calculated risk of publishing it. It is a powerful commercial with an extremely scaring message.

Among the most imaginative commercials are to be found in the “YES” camp where there are creative heavyweights led by Salim Lone who is one of Kenya’s most ingenious media professionals . Under him yet another “YES” commercial starts with playing the national anthem when Kenya became independent. It shows the founding father, Jomo Kenyatta, participating in the first Uhuru celebration when Kenya’s flag was hoisted for the first time. The commercial then says that independence was short lived as Moi’s dictatorial regime took over. A sad picture of one of the freedom fighters, Mbuyu Koinange, kneeling before the all powerful Moi could make any nationalistic Kenyan shed tears.

The sad picture of Mbiyu’s kowtowing gesture is followed by the courageous verbal protest of the Rev. Timothy Njoya. The viewer can’t help admiring the bravery of the pastor who stood against Moi’s dictatorship. The picture however quickly changes as the announcer says Njoya’s courage was short lived. Then the most shocking episode of torture and cruelty is shown as the Rev. Timothy Njoya is repeatedly clobbered several time as he shouts for a none existent assistance. The heartbreaking disaster of the respected church leader’s misfortune comes to an abrupt end with a solemn declaration: Never again….Vote “YES”! An extremely powerful message that can hardly be professionally criticized as it is both competently proficient as it is ethically upright.

May be the most horrifying advertisement against the Proposed Constitution was published in the Sunday Standard of July 18 on page 13. The full page ad by the Kenya Land Owners and Land Users Association (KELA) proved beyond any reasonable doubt that foreigners have an axe to grind on matters concerning land in Kenya. Before the people of Kenya wanted to have a new constitution that would introduce true democracy and justice in this country very little was known about KELA. That KELA is an organization of foreign land owners with a token insignificant membership of natives was exposed on July 3, 2010 by Gitau Warigi in his Sunday Nation opinion column.

Kenyans must have been shocked by Warigi when he exposed KELA as an organization of foreigners who own huge tracts of land where the indigenous people have no rights what so ever. Kela’s ad in the Sunday Standard tried unsuccessfully to defend the ridiculous leasehold of 999 years against the wishes and well being of the true sons and daughters of Kenya. But the ad showed the war is on and the battlefield is in the media. Those who control the media have both moral and professional obligation to make sure the game is played on a level field. Only a thorough knowledge of the Code of Conduct and Practice of Journalism in Kenya can make that possible.

Referendum: Michuki’s “watermelon” betrayal

2010-07-16T05:43:00.000-07:00

The Defection of John Michuki to the “YES” camp is a serious blow to the “NO” group. William Ruto depended entirely on the support of the so-called “watermelons” to win support of the Eastern and Central provinces. The most important man in the Central Province “watermelon” group was Michuki who can easily be regarded as the most powerful politician in the entire Muranga District.

Michuki’s departure from the “NO” camp means big money is moving to the “YES” group which was beginning to feel the shortage of funds to conduct its campaigns. Following the decision to stop using Government funds in the campaigns, the “RED” camp with so much money from American extremist churches has appeared to have “more money than God” to spend in their campaigns. The chances of Kikuyu tycoons contributing to the “YES” camp’s funds,however, are still very remote because among them are some people who feel threatened by the prospects of a new constitution challenging the sources of their wealth.

John Michuki and his friends are, in that case, backing the President in the “YES” camp to protect their wealth rather than to make sure the “NO” camp is defeated. As prominent business people they stand to gain while they remain in the President’s good books instead of antagonizing him. The bottom line of the entire exercise means the “watermelons” will be more subterranean than before; but as they will now be forced to operate like a clandestine organization, they are bound to be considerably weakened as they can no longer try to recruit supporters openly.

The close relationship between the President and the Prime Minister has also been a major threat to the Mount Kenya Mafia surrounding Mwai Kibaki. The group, which has always been a major threat to the coalition Government, has been operating under the leadership of the Head of the Civil Service Francis Muthaura who now has to take orders from Raila Odinga as the chief campaigner of the “YES” camp. The decision to have the Permanent Secretaries in the Government campaign for the “YES” camp has only strengthened Raila Odinga’s position in the coalition Government, which is perceived as a major blow to the Mount Kenya Mafia.

Raila Odinga’s undisputed stewardship of the “YES” camp, which has the total backing of the President, has made the Mount Kenya Mafia feel completely outmaneuvered by the Prime Minister at a time a Cabinet reshuffle is just around the corner soon after the referendum. If Muthaura and Michuki are to have any influence at all in that Cabinet reshuffle which will involve promotions and demotions of many top civil servants as well as Ministers and Assistant Ministers, then the time to start influencing Mwai Kibaki towards winning that goal is now. There could be no better way of doing so than to prove to the President to be absolutely loyal to the Head of State by remaining in or coming back to the “YES” camp.

One of the major reasons for John Michuki coming back to the “YES” camp is the fact that every dirty movement to make the “NO” camp triumph has been reported to the President and the Prime Minister by the National Security Intelligence Service (NSIS). Having been the boss of this institution as the former Minister for Internal Security, John Michuki knows the operations of the NSIS. Engaging in any anti Kibaki clandestine organization in whatever form would only end up jeopardizing his status as a top businessman in the country. It did not take long for Michuki to realize that he was in the “NO” camp at his own peril.

With John Michuki, Francis Muthaura, Uhuru Kenyatta, Njenga Karume, Maina Njenga, Martha Karua, Kiraitu Murungi, Gitobu Imanyara and Wangari Maathai backing the “YES” camp more than 70 per cent of the Kikuyu, Embu and Meru voters in the forthcoming referendum are likely to support the Proposed Constitution. Yet the relationship between Mwai Kibaki and Raila Odinga, which disturbs the Mount Kenya Mafia so much, is not likely to breakup soon as the two leaders have just realized what a formidable force, both within and outside the Government, their cooperation amounts to.

The newly found political alliance between Kibaki and Raila has given each one of them an excellent opportunity to get rid of their enemies in their two political parties PNU and ODM. The incompetent Ministers from these two parties, who could not be fired because of the important positions they held in the pre-coalition Government days, can now be shown the door without any fear of unpleasant political upheavals. These include Naomi Shaban, William Ruto and Samuel Poghisio.

A major outcome of a new Constitution after the referendum is the fact that the Coalition Government will be more powerful and united with very few Ministries occupied by competent politicians and technocrats. Given the fact that Kenyans have an insatiable desire for top public jobs, a new trend of exhibiting total loyalties to Mwai Kibaki and Raila Odinga as well as to the PNU and ODM will gain momentum in the last two weeks of the referendum campaigns swelling the numbers of the “YES” camp to the amazement of the Clergy and William Ruto. Kalonzo Musyoka is also likely to take advantage of the situation and strengthen his ODM-K by firing out of the party the rebels he has always wanted to get rid of.

Very soon the “NO” camp will start crying foul as the full force of top civil servant’s campaign for the “YES” begin to bare fruits. Already an extremely powerful advertisement which shows the atrocities of bloodbath following the post 2007 election violence and reminding the viewers that such blood bath could be avoided by voting “YES” , have changed thousands of the undecided voters to support the Proposed Constitution for the sake of peace. The advertisement is likely to make the “NO” camp complain that it paints them as people who want no peace in the country.

The complaint they have made against the American President Barrack Obama supporting the “YES” camp has had an opposite reaction as Obama is an extremely popular leader in Kenya. Kenyans accept him as a fellow countryman who is entitled to openly say which side of the Proposed Constitution he backs. Many political observers have also wondered why the “NO” camp is complaining of American intervention at this stage when top leaders from that powerful nation were openly welcome to the country soon after the 2007 clashes to help us solve our problem at that time.

Long before the 2007 elections Americans seemed to have been involved in Kenyan politics. At that time they supported the ODM and William Ruto thought it was OK. Then they supported the peace process after we started slaughtering one another, and the Clergy thought it was OK. Now the Americans are supporting both the “YES” camp and the “NO” group. Obama may be backing the Raila-Kibaki side but the American Christian fundamentalists are also supporting the “NO” camp financially and they have publicly accepted that. William Ruto has no problem with the American funds for the “NO” camp.

The contest between the “YES” and “NO” camp has reached a Darwinian stage of survival of the fittest in the struggle for existence. As all is fair in love and war, the fight is going to be even rougher. Fortunately with Michuki firmly in the “YES” camp some of the most dangerous tycoons who could have financed dirty tricks will now work for the peaceful conclusion of the referendum. The struggle for political power within the ODM and PNU new structure under the leadership of united Raila-Kibaki cooperation will take a new turn which may be beneficial to the country. We are in for some very dramatic change in the whole campaign which will see the Proposed Constitution being accepted by well over 70 per cent of Kenyan voters.

Referendum: The Kakamega Ruto heckling

2010-07-12T07:06:00.000-07:00

The heckling of William Ruto’s “NO” team at Kakamega marks the beginning of a new trend by the people. They seem to have enough knowledge of the content of the Proposed Constitution to know when politicians try to distort it. The Kakamega incident also means the efforts by the “NO” camp to magnify two issues of the Proposed Constitution – the Kadhi courts and abortion – and totally ignore all the good aspects of it , will no longer be accepted by the people.

While time is running out for the campaigners of both camps, the winning side seems to be that which interprets the Proposed Constitution correctly. There are more people who have read the document than the “NO” camp realizes. Claims that the Proposed Constitution will open doors to homosexuality in Kenya and that poor people will not be allowed to own small pieces of land now are boomeranging as the people attending the rallies demand to be told the truth.

The move by Mwai Kibaki and Raila Odinga to stick to the truth about the Proposed Constitution is beginning to pay dividends whose real outcome will be realized on August 4th. Kibaki , who has calmly urged the people to read the Proposed Constitution before making up their minds on whether to or not support it, changed his tactic over the weekend when he attacked people “who have been paid by foreigners to preach against the Proposed Constitution.” Because the President has insisted that the campaigners stick to the truth, it is obvious his allegations are based on facts in his possession.

It is only a fortnight ago when the alternative media in Nairobi came up with an expose on police investigations concerning funds donated by American churches to the “NO” camp. The investigations must have revealed shocking information about how the Clergy in Kenya is making so much money from Americans for attacking the Proposed Constitution. It will not be surprising at all if the beneficiaries of the American funds are exposed in future “YES” campaigns.

According to the latest South Consulting report to the KNDR, Kenyans believe the manner the President and the Prime Minister interpret the Proposed Constitution is closer to the truth than the way William Ruto and Cyrus Jirongo interpret it. The report says that the people believe the media much more than the politicians when it comes to matters pertaining to the Proposed Constitution. Just as the people are now in a position to tell which leaders are interpreting the Proposed Constitution correctly or incorrectly, so are they able to differentiate between upright media houses and those that have a tendency to distort facts.

The manner in which the Kakamega heckling of William Ruto was reported by various papers clearly indicated the sides various newspapers were taking on the Proposed Constitution. According to The Star of July 12, the Kakamega heckling warranted not only a front page position but the splash itself. The Standard ran the story as its page eight lead with most of the details correctly presented. But the Daily Nation used five paragraphs of the story and married it to pro “NO” stories though the story was used as the paper’s page four lead. According to the Kenya Broadcasting Corporation no heckling at Kakamega took place at all as the story was given total blackout by the national station.

Of all the media houses, The Star is taking the lead in exposing the inside story of how some politicians cajole journalists to present their stories in a distorted manner. On the Kakamega heckling the paper’s July 12 edition reveals what really happens when it said: “On realizing that the crowds were walking away, Ruto quickly called TV cameramen onto the dais and asked the small crowd that had been given the Red cards to flash them so they could capture the footage.” This publish-and-be-damned approach to journalism separates the horses from the mules and shows the courage needed in the Fourth Estate to save this nation from deceit that could cost Kenya unnecessary turmoil caused by unhealthy division among the people.

Members of Parliament who are now supposed to be in their various constituencies campaigning for the Proposed Constitution are adamantly remaining in Nairobi fighting for their ridiculous pay increments. Some of them have come out openly claiming they would not support the Proposed Constitution without more money from the taxpayers in their pockets. This arrogant decision by Parliamentarians threatening to shoot down the Proposed Constitution unless they were paid more money has been a blessing in disguise in the country. It has helped the people realize that MPs’ greed can only be stopped by the Proposed Constitution, which will remove the powers to increase MPs’ salaries from Parliament.

President Mwai Kibaki and Prime Minister Raila Odinga were depending on Parliamentarians to popularize the Proposed Constitution during the recess which MPs have refused to take. Paradoxically their refusal to back the Proposed Constitution has made it even more popular among the people. The MPs’ most unwise demand has inadvertently been the best thing that has happened to the “YES” camp. Their refusal to go back to their constituencies without pay hikes has turned out to be the best campaign ever for the Proposed Constitution.

The referendum will probably be the last exercise in which Kenyans will participate as blocs of ethnic groupings. When the Proposed Constitution is accepted as the supreme law of the land a lot of work must be done in what will probably end up to be a widespread post-referendum civic education to make Kenyans implement what will then be in their new constitution. When the constitution is operationalised all doors to parochial ethnic nationalism will be closed as power moves to the people. Whatever way one looks at these radical changes a peaceful, very positive revolution will take place in the country as the first steps are taken to bridge the gap between the haves and the have-nots.

May be the most positive aspect of Kakamega heckling of the “NO” camp is the fact that the people of Kenya have refused to be divided along religious lines. Nothing is more dangerous to this country than whipping up religious animosity among the people. Whenever there has been religious confrontation people have suffered because it has always ended up in bloodshed. There are so many examples for Kenyans to learn from – India, Nigeria, Ireland and Iraq, to name just a few. The Kakamega heckling and walking away from leaders preaching hatred and lies will probably become the order of the day between now and August 4 when the people will most likely accept the Proposed Constitution to be their supreme law for a long time to come.

Raila-Kibaki peace plan after referendum

2010-07-11T04:49:00.000-07:00

There is hope that Kenya will be a peaceful country after the referendum. The amount of work that needs to be done to fulfill the aspirations of the Proposed Constitution will inevitably solidify the Raila-Kibaki unity brought about by the two leaders’ congruent beliefs in reforms. But that rosy picture will only come to fruition if the country votes “YES” on August 4th when the destiny of this nation will be determined by ordinary people whose future will depend entirely on the decision they make on that crucial day.

The campaign for the “YES” solution to the constitutional problem in Kenya by President Mwai Kibaki and Prime Minister Raila Odinga, has given the country the opportunity to see for the first time since the formation of the coalition Government, soon after the bloody 2007 elections, that the two leaders can indeed work together for a common goal. Many are the sad times when the coalition government faced the danger of breaking up due to internal squabbles. But the referendum seems to have solved that problem which has made the ODM and PNU leaders realize that the country prefers them united rather than parochially separated.

Whenever Kibaki and Raila clash the entire government comes to a standstill. The disagreements between the two have seen Cabinet meetings postponed and important decisions swept under the carpet to the detriment of progress and stability in the entire country. Whenever the squabbles take place there has always been a secret hand manipulating the antagonistic rivalries for very selfish reasons. It so happens that those who have benefited from the Kibaki- Raila wrangles are now all in the “NO” camp campaigning for the rejection of the Proposed Constitution.

The rich tycoons who have always surrounded the President and made him make the most unpopular decisions against the people of Kenya such as the invasion of the Standard newspaper group in 2006, are all in the “NO” camp. One such person is John Michuki who was the first to defend the State terrorist action against the media by claiming that rattling a snake would always lead to a bite. William Ruto is yet another person in the “NO” camp who always took an uncompromising stand against Kikuyus in general and Mwai Kibaki in particular.

Whatever the outcome of the referendum, the Kibaki-Raila unity during the current campaign is bound to bring about far-reaching political change in the relationship between PNU and ODM. Indeed it is the thought of these changes that make some in the PNU feel so scared of Raila Odinga that they have become “watermelons” while supporting the Proposed Constitution. The realization of the fact that the majority of Kenyans are determined to have a new constitution after the referendum has considerably weakened the “watermelon” strength to the detriment of the “NO” camp.

The latest Raila-Kibaki political cooperation is likely to bring about an inevitable Cabinet reshuffle whatever the outcome of the referendum. It is with this reshuffle in mind that Uhuru Kenyatta is now mobilizing the Gema community in favour of the “YES” camp following what was tagged the "Limuru Declaration" which was soon to be followed by the so-called "Machakos Declaration". The Limuru Declaration was born when the Central Province MPs joined hands with the GEMA leaders including the Mungiki leadership and vowed to bring five million votes in support of the “YES” camp. The purpose of the declaration was to boost the image of Deputy Prime Minister Uhuru Kenyatta as the leading light of the campaign for the “YES” vote in Central Province, rather than the Prime Minister Raila Odinga.

On the other had the Machakos Declaration was also born when the Kamba MPs joined hands with the community’s top civil servant to deliver the “YES” vote in the Kambaland. At the meeting the Minister for Water, Charity Ngiu, openly told her tribesmen that backing the “NO" camp was the surest way of losing the Vice Presidency now held by a fellow Mkamba Kalonzo Musyoka. The two declarations prove that the Kikuyus and Kambas realize that the Raila-Kibaki unity is bound to bring about the desired peace in the country which will call for loyalty in the new structure of the Government after the referendum.

Whatever happens after the referendum Mwai Kibaki will remain the President of the Republic of Kenya and Raila Odinga will remain the Prime Minister of the Government of Kenya. The task before them will be either to try and get a new constitution in Kenya if the Proposed Constitution is rejected, or to implement a number of plans suggested by the new constitution, if it is accepted by the people. Either way some heads must roll to create room for a new loyal team the Prime Minister and the President can work with. Among the first group of people to be shown the door will be the so called watermelons who by that time will be trusted by no one. The “NO” camp will have made enough use of them and the “YES” camp will have realized they are only a bunch of traitors.

According to the latest polls conducted by the South Consulting on behalf of the Kenya National Dialogue and Reconciliation (KNDR) half of the registered voters have already decided to vote “Yes” for the Proposed Constitution and a quarter have already decided to vote “NO”. This group is mostly made up of churchgoing Christians who are obviously influenced by the Clergy. The quarter that is still undecided will determine which side will carry the day. It is a group that is most likely to be influenced by the side that is likely to create a more stable and peaceful Kenya. With Raila and Kibaki united, Kenya is likely to be more stable and peaceful. The Kibaki- Raila unity therefore is likely to attract more people from the group that has not made up its mind yet.

The undecided group is likely to be influenced by the truth-telling “YES” camp that can easily substantiate all the claims made by their leaders in the campaign trails. Untruthful allegations made against the Proposed Constitution by the “NO” camps are so easily rebutted by the CoE and the civil society backing the Proposed Constitution , that more and more people are joining the “YES” camp everyday. Though hampered by the lack of money, civic education has helped many Kenyans make up their minds about the Proposed Constitution.

The role played by the Fourth Estate in making the people understand the contents of the Proposed Constitution is very crucial. Media Houses that seem to be unprofessional in the coverage of the referendum are likely to be exposed before the referendum day. Addressing journalists at a workshop recently, the Permanent Secretary in the Ministry of Information and Communication, Dr. Bitange Ndemo challenged the Media Council to work with the National Cohesion and Integration Commission (NCIC) to expose journalists who engage in hate speech. Whether the Media Council takes the challenge seriously it seems the Government will not allow the media to be used by anyone to disturb the peace of the country this time.

Whatever the case may be the people of Kenya have realized the importance of peace and stability in their country. If that peace will come about as a result of Raila-Kibaki cooperation then that cooperation, which is the core of the “YES” camp, is likely to attract more people in the "YES" camp. It is also likely to lay the foundation stone for a new slogan of peace and unity that will be the clarion call for all Kenyans after the referendum.

Referendum: “YES” vote guarantees peace

2010-07-08T10:23:00.000-07:00

When there are bitter struggles between the “YES” and “NO” camps to win supporters in the forthcoming referendum, it is easy to forget why Kenyans are going through the referendum in the first place. Had there not been international intervention following the post 2007 elections violence , Kenyan today would have been reduced to a hopelessly war torn country where respect for human life would have been subordinated to a level of brutal primitivism.

Before the intervention of the international community under the auspices of the African Union’s Panel of Eminent African Personalities headed by the former United Nations Secretary General Kofi Annan, Kenya was divided between the supporters of the Party of National Unity (PNU), which constituted the then illegitimate Government of Mwai Kibaki; and the Orange Democratic Movement, which, under the leadership of Raila Odinga, many believe had won the 2007 elections.

It is because these two groups – the PNU and the ODM – agreed to end the post 2007 election hostilities that the country returned to some form of acceptable peace which was symbolized by the establishment of the Kibaki-Raila coalition Government we know today. It is in the effort of avoiding the repetition of the 2007- 08 clashes that the joint leadership of ODM and PNU agreed to have a new Constitution that would get rid of historical injustices that made the people of Kenya slaughter one another after the 2007 elections.

That ODM-PNU peace agreement, therefore, would not have been possible without the formation of the Kenya National Dialogue and Reconciliation (KNDR) team from both the PNU and the ODM. It is this team that looked at the way to solve Kenya’s socioeconomic and political problems through Agendas they named One to Four. One could say, without any fear of contradiction, that it is this KNDR team that saved the country from what was about to develop into a civil war caused by tycoons who paid private militia groups to cause trouble so as to either remain in political power or gain it.

Before Kofi Annan came into the picture , not a single church leader or any of the tycoons now opposed to the Proposed Constitution was concerned with any effort to bring about peace in Kenya, which was about to explode into a conflagration of tribal turmoil. They all left the field to the KNDR which was the only hope this country had to establish a nation of democratic diversity within unity. Now that the KNDR has laid the foundation for a long lasting peaceful country where justice is about to be done through the Proposed Constitution, attempts are being made to derail the whole process by wrecking the forthcoming referendum.

Nothing is of greater importance to the KNDR agreement than the referendum the country is about to go through. It is through this referendum that Kenyans can have a bloodless revolution that will reverse the trend of the haves having it all and the have-nots having nothing at all. The miracle of the latest development is the fact that both the PNU and ODM now agree that it is only through the Proposed Constitution that the country can have a long lasting peace.

One is always tempted to ask if the ODM and PNU agree to support the Proposed Constitution, why then is there still a latent secret power operating against the Proposed Constitution? The answer to that complicated question reveals the fact that the ODM of 2007 is not the same as the ODM of today. Neither is the PNU of 2007 the same as the PNU of today. The pre 2007 elections ODM was a united force that was determined to remove Mwai Kibaki form political power through the ballot.

Within it was a Kalenjin group that had plan “B” to embark on in the Rift Valley if the ODM failed to gain power constitutionally. Many believe that that plan “B” is what started the bloodbath that followed the election results that claimed Kibaki had “won” the elections. It is through this plan “B” that some crimes against humanity were committed in the Rift Valley. The result of the crimes is now water under the bridge as Luis Moreno Ocampo is already mobilizing his forces against certain individuals within the ODM.

Many believe it is because of Moreno-Ocampo’s determination to prosecute some individuals within the ODM that the party has disintegrated with Kalenjins leaders becoming rebellious to the extent of voting against the ODM backed Proposed Constitution. There is a school of thought that believes that William Ruto is only opposing to the Proposed Constitution because it is backed by Raila Odinga. William Ruto’s bitterness against Raila Odinga is believed to be based on the fact that Ruto does not feel Raila has used ODM’s formidable powers enough to protect him form Moreno-Ocampo’s possible prosecution.

The reasons for the disunity in the ODM are similar to the reasons for the disharmony within the PNU where Uhuru Kenyatta believes enough is not being done to protect him from the Moreno-Ocampo possible prosecution for alleged masterminding post election violence against Kalenjin aggression in the Rift Valley. This, some believe, is among the reasons he supports the Proposed Constitution in a lukewarm manner. So lukewarm that he is suspected to be the leader of the so called “watermelons” in the Central Province though he has vehemently denied the accusations.

The unity that existed within the PNU during the 2007 elections has also been diluted by the fact that within the PNU are some of the richest people in the country whose wealth is definitely being threatened by the referendum. If the “YES” group succeeds, all the corrupt methods of gaining illegal wealth will cease to exist. So will the impunity that protects the rich corrupt people from being prosecuted.

Both the Moreno-Ocampo’s intended prosecution and the referendum to give Kenyans an opportunity to stage a bloodless coup are meant to make sure that the country will never again be threatened by internal political strife caused by historical injustices. The “YES” vote therefore is a vote for peace in Kenya as the Proposed Constitution removes all the causes of political disharmony and economic injustices. It is a vote that gives the power to the people in the real sense of the word.

In the referendum the greatest enemy of the “YES” vote is the Clergy which is repeating the same mistakes it made just before the 2007 elections. At that time it took part in the fragmentation of the country along ethnic groupings which rekindled the fires of tribal hatred that led to the post election violence. Today the Clergy has joined forces with the rich against the poor for lucrative reasons only. It is said the Clergy is being bankrolled by the US fundamental churches that thinks the introduction of Kadhi courts in Kenya will lay the foundation stone for Sheria laws in the country.

Though that belief is based on pure ignorance the local clergy would not like to correct the situation as doing so would kill the goose that lays golden eggs for them. The Clergy in Kenya is not interest in peace just as it never was interest in peace in the pre 2007 election period. Saying “NO” for the Clergy is very good business which is swelling many individuals’ bank accounts. Greed has made many power hungry political leaders and gluttonous Clergy totally forget the real reason Kenyans need a new constitution. That reason is to establish a long lasting peace in the country, which can only come about through the “YES” vote.

Proposed Constitution may tame MPs' greed

2010-07-01T05:02:00.001-07:00

Kenyan MPs have now come out openly as the greediest people in the country. Putting up their salaries to well over a million shillings each every month, when there are millions who don’t know where their next meal will come from and thousands still living in ramshackle tents as IDPs, has made them lose the little respect they had among the people. The ruthless step they took to feather their own nests is a very cunning move to put something by for the rainy day which they know will come soon when the Proposed Constitution is accepted by the people of Kenya and becomes the country’s supreme law.

The acquisitive step taken by the MPs has also proved that the majority of them are what has proverbially come to be known as political watermelons which are green on the outside and very red in the inside. The 130 of them claimed to be very green at the joint PNU-ODM Parliamentary Group meeting chaired by Raila Odinga and Mwai Kibaki. But the cat almost came out of the bag when they demanded to be paid five million shillings each in order to popularize the Proposed Constitution in their constituencies.

MPs have also realized that green or red they will have very little influence in the forthcoming referendum on which people have already made up their minds. The passing of the Proposed Constitution is what Raila Odinga would describe as a tsunami or a tidal wave which will sweep across the whole country into a new dawn of democratic and transparent governance in Kenya. The question now is not whether or not Kenyans will accept the Proposed Constitution, but it is with what majority.

Paradoxically, the insatiable gluttony exhibited by Kenya’s most dishonorable legislators has only strengthened the people’s determination to turnout in large numbers and pass the Proposed Constitution , which they know is their only saviour in this bloodless war between the haves and the have-nots. Unlike the referendum of 2005 when people almost blindly followed the guidance of their political leaders, this referendum is by and large based on considerably more knowledge of the content of the document which, when all is said and done, originates from the people’s own contribution.

The Proposed Constitution really scares the current breed of Parliamentarians who invest in their parliamentary seats to milk the country dry through corruption, tribalism and nepotism. The document that is about to become the supreme law in Kenya closes all doors to what attracts politicians to Parliament. In future getting elected to the legislature will not mean an automatic acquisition of stolen wealth cornucopia. The door to that wealth normally leads to cabinet positions which in future will only be occupied by competent technocrats of proven clean record.

MPs are also scared stiff of the reorganization of political parties recommended by the Proposed Constitution. In future political parties will be national and not tribal. They will be required to exercise internal democracies and not be used by the rich as stepping stones to political power. The dirty plans of using political parties to deny young competent and popular leaders nomination tickets will soon be a thing of the past, for the Proposed Constitution will allow independent candidates to contest all political offices.

The very description of a leader in the Proposed Constitution would frighten the current Kenyan MPs. It requires high standards of integrity and respect for the people which the Parliamentarians seem to have none. According to Article 73(1) (a) (iii) of the Proposed Constitution on responsibility of leadership, those who will be holding important public offices in future will be expected to bring honour to the nation and dignity to the office.

MPs in Kenya have been responsible for bringing a lot of dishonour to the nation by constantly being absent from the legislature despite the high salaries they get for their jobs. The act they took of putting up their salaries in the most unreasonable manner has only helped to highlight the indignity of the entire House.

The one part of the Proposed Constitution which makes MPs spend sleepless nights and hide behind watermelons is Article 104 which gives the people the powers to recall their Member of Parliament they are dissatisfied with. If that Article was operationalised today all the MPs would have been recalled by the wananchi for being absolutely reckless in demanding such high salaries from the taxpayers that Kenya today is a laughing stalk in many parts of the world.

The irony of the whole episode is that no sooner will our MPs open up fat banking accounts obtained from the people’s sweat, than they will be making regular trips to the Western world to beg for some money to keep the Government from collapsing. Meanwhile there is no money in the country to pay school teachers whose contribution to this nation is of greater importance than that of the MPs.

One other aspect of the Proposed Constitution that makes MPs shake in their boots is the establishment of Counties which will be the governments very close to the people. Developments of many areas where the MPs come from are currently done through the Constituency Development Funds, which have turned the MPs into demigods in their home areas. CDFs have also been a cause of a lot of corruption.

With the establishment of offices of Governors, MPs’ status in the rural areas may be pushed to the peripheral level with limelight shining more on Governors. This predicament has been responsible for the increasing number of watermelons in the legislature. Fortunately the sin they have just committed will make the people not take them seriously when they call for “YES” or “NO” votes in their constituencies.

Between now and 4th of August the most important people as far as the referendum is concerned will be members of the CoE who will be conducting civic education. Other members of the civil society doing the same are likely to be taken more seriously by the people than the politicians from both the Red and the Green camps.

Wherever they go MPs will not be able to talk about their salaries yet the people will be thinking about nothing else but the manner in which the politicians have been milking them all the time. Without knowing it, the politicians have boosted the popularity of the Proposed Constitution and made certain that the “YES” team wins with a landslide victory. The people know that that is the only way to put a stop to the MPs’ shameless gluttony.

Media bias in referendum coverage

2010-06-29T05:54:00.000-07:00

All eyes are on the Kenyan media at this crucial time in the country’s history. Not only do readers, viewers and listeners want to be told the truth about the referendum campaigns, but they are equally eager to detect any bias among journalists who have so far been held in very high esteem. Unfortunately that respect is about to go down the drain, not because of lack of professionalism among the practitioners, but because of proprietorial interference in editorial decision making process.

Long before David Makali, the Media Institute Director, sounded an alarm bell in his column in The Star of June 28, observers were getting extremely disturbed about several conspicuous attempts to mislead the public about William Ruto’s popularity among Kenyans. According to Makali there is pressure being exerted “on editorial staff in some media houses to side with political affiliation of some shareholders.” Makali did not need to say that that pressure is probably being felt in The Standard, where Daniel arap Moi, a staunch opponent of the Proposed Constitution, is a powerful shareholder.

Newspaper readers did not need Makali to notice that The Standard of June 16 had a screaming headline accusing the government of “Double Standards” when prosecuting hate speech perpetrators. The splash story claimed “Government searchlight shone on leading opponents of the Proposed Constitution, among them Higher Education Minister William Ruto, an Assistant Minister and two MPs over claims of making hate speeches.” The tendentious Standard story was almost suggesting that the National Cohesion and Integration Commission was selectively picking up politicians from the “NO” camp and letting those in the “YES” camp get away with hate speech.

Readers must have seen the same story’s strap line claiming that “ ‘NO’ charges State biased as Ruto quizzed while Kapondi, Machage and Kutuny locked up over claims of hate speech”. To The Standard, these politicians were arrested, interrogated for framed up charges of hate speech. That is why they call them “claims of” hate speech, the publication of the same hate speeches in their own newspaper notwithstanding. As a matter of fact the hate speech by Machage was repeated by The Standard in the same story accusing the Government of double standard in charging hate speech perpetrators.

The Standard’s conspicuous support for the “NO” camp came out in the open on the June 27 issue when the paper’s Sunday edition purported to publish an analytical story it called “ Surprise as ‘Yes’, ‘NO’ step up campaign” . That gave the paper the excuse to publish a front page picture of William Ruto addressing a huge crowd next to a close-up picture of Raila Odinga accompanied by Musalia Mudavadi and Fred Gumo looking gloomy while walking towards a rally in Western Province. The Standard deliberately turned down the usage of a picture of one of the largest crowds at the Muliro Gardens in Kakamega addressed by the “YES” camp on Saturday 26th June. This was the case despite its timeliness news value.

If anyone had any doubt about The Standard’s stand on the referendum issue, then those doubts must have been put to rest on June 28, when it splashed a story it called “ ‘Yes’ back to the drawing board”. Superficially the story looked very innocent but when one turned to where it led the reader on page six then the paper’s intentions became clear. Pages six and seven were dominated by the pro “NO” stories and pages eight and nine were full of well displayed pictures of the Nakuru “NO” rally. That is a total of four full pages supporting the “NO” camp. No wonder when the “YES” team met yesterday at the Kenyatta Conference Centre they had to admit that the “NO” team had what they called “growing visibility”. This is a visibility that has been created by The Standard newspaper and KTN television station.

To make the matter worse, and to be fair to the Standard Group, this visibility was not made possible by The Standard alone. In some instances there were clear indications of the Daily Nation playing the same game. On the June 27, for example, the paper devoted two pages to the Constitution Debate. On one page was the picture of William Ruto addressing a well attended rally at Kibwezi and on the other page was a picture of Raila Odinga addressing exactly 20 people at what the paper describes in the caption as the “YES” rally at the Muliro Gardens in Kakamega.

When covering the referendum journalists at The Standard and the Daily Nation seem to have forgotten a number of ethical principles. Whether they are pressurized by proprietors or influenced by other factors they should know when their stories or treatment of pictures are less than accurate readers, viewers and listeners are so schooled and experienced as to discover the hidden intention . They are also able to deduce the possible reasons for the deliberate misguidance of the people. Readers know that a picture showing Raila addressing 20 people at a Kakamega “rally” is a mischievous and a deliberate attempt to deceive the people through contemptible hoodwinking method of picture cropping.

Whereas a picture tells a better story than a thousand words, it poses a number of questions in the readers’ minds when it is cropped in such unprofessional manner as to go against fundamental ethical principles of the Code of Conduct for Practice of Journalism on use of pictures and names which clearly says as a general rule, the media should apply caution in the use of pictures and names and should avoid publication when there is a possibility of harming the persons concerned.

The code further says manipulation of pictures in a manner that distorts reality should be avoided. The picture of Raila addressing 20 people at a “rally” in Kakamega was obviously intended to harm his popularity. Since it is a well known fact that the crowd at the Kakamega rally was among the biggest to be seen in that town recently, then the cropping of that picture was manipulating it in a manner that distorted the reality and was therefore professionally unethical.

The coverage of the referendum campaigns by the two papers, particularly The Standard, has been wanting in the ethical principles of Accuracy and Fairness. When, in 1922, ASNE first thought of Accuracy as an ethical principle, it was mainly thinking of getting the facts rights in all stories. Journalism scholars agree that the best way of getting the facts of any story right is getting all the five Ws and one H right. Even in investigative journalism the manipulation of the five Ws and one H plays a fundamental part in unearthing many more Ws from each W and as many Hs as possible from the obvious single one . For it is a fact that within any W there are many other Ws and within every H there are many more Hs.

In a desperate attempt of popularizing William Ruto Daily Nation journalists forget that principle which is so vital in interpretative journalism. When The Nation was reporting the “YES” camp’s plan to strategize its future campaigns in its 29th June edition, for example, the paper correctly balanced the “YES” views with the views of William Ruto who was quoted saying “They (Greens) have missed the point. The choice on August 4 will be voting ‘Yes’ for a divisive document with controversial clauses on religion, counties and devolution and ambiguous clauses. On the other hand voting ‘No’ will be to enable us give ourselves an opportunity to correct the clauses and enact the constitution that will Unite Kenyans.”

All that is good reporting. But it is reportorial, conveyor belt reporting. It is the obsolete type of reporting. Interpretative reporting, which is the most advanced type of reporting, demands that reporters should explain all the hidden meanings of a story. That is why it is called interpretative reporting. Given that fact, the reporter who injected William Ruto’s opinion in the story about the “YES” camp’s strategy would have been more professional by explaining to the readers what William Ruto’s suggestion entailed. This, the reporter should have done even without consulting William Ruto.

The interpretation would have demystified Ruto’s ambitious suggestion of correcting the Proposed Constitution and enacting it anew. The reporter was also professionally obliged to explain to the readers how that ambitious suggestion could be accomplished both financially and legally. After voting “NO” how much money would the country need to organize another referendum which William Ruto wants? What does the law say about the whole process? Can one just amend the Proposed Constitution and give it back to the people without going back to Parliament? What are the chances of Parliament passing the Ruto amendments? What does the Constitution of Kenya Review Act of 2008 say about the whole issue? That way the ethical principle of Accuracy would have been achieved more professionally.