The date selected by Issack Hassan and his team for Kenya’s next general election should be accepted with gratitude for a number of reasons. To begin with it should by now be absolutely clear to all that the two Principals have no desire to dissolve the coalition Government soon. Mwai Kibaki has expressed the wish to have elections in March next year; but Raila Odinga would prefer to have them in December this year. What would happen if Raila simply walked out of the coalition?
Top lawyers including Attorney General Githu Muigai and the Justice Minister Mutula Kilonzo seem to believe that nothing would happen when Raila pulls out of the Government. Kibaki would continue to be the President and Parliament would also continue functioning as the Legislature until its term constitutionally expires on January 15th 2013. There are other highly respected lawyers led by Martha Karua who believe Parliament would automatically dissolve when the coalition Government is disbanded. That would force the country to hold elections in December this year.
As matters stand now election will take place on March 4th 2013 unless someone challenges that decision by Issack Hassan in court. The chances of the Court of Appeal changing IEBC’s date are very slim because Hassan made his announcement by strictly adhering to the law. It was basically based on January 13th 2012 judgement by Judges Isaac Lenaola, Mumbi Ngugi and David Majanja on the issue of election date.
Before their January 13th ruling the three Judges listened to all the arguments for and against next years’ election. Of these the strongest argument was present to court by Prof. Yash Pal Ghai who insisted that the election date for the first elections under the Constitution was within 60 days from the end of the term of the National Assembly which would be in mid-January 2013.
According to the judgement, he argueds that the Constitution could not be read as providing for elections in December 2012. This date was as a result of a popular expectation that elections were generally held in December, and they were so held in 1992, 1997, 2002 and 2007 though nothing in law fixed December as the election month.
This argument by Prof. Ghai must have tremendously influenced Hassan and his team in determining the date for the next election. Soon after Hassan’s announcement politicians were up in arms accusing him of having no such powers. Among the loudest was Immigration Minister Otieno Kajwang who boastfully claimed to have read the new Constitution as a lawyer without seeing anywhere in the supreme law where Hassan got powers to announce the election date.
But while announcing the date Hassan clearly said the Independent Electoral and Boundaries Commission (IEBC) was constitutionally mandated to conduct elections and referenda in the country. According to the Constitution, he explained, the elections of the President, Members of Parliament and of County Assemblies were to be held on the same day. But in determining the date of the first general elections under the Constitution, the Commission was guided by the Constitution, the Elections Act, 2011 and the Constitutional Court Judgment delivered on January 13, 2012 in Constitutional Petition No. 65 and 123 of 2011.
According to the IEBC boss the Judgment, though appealed against, had neither been stayed nor overturned. He explained the judgement gave two possibilities on the date of the first general elections under the Constitution: First it examined the possibilities of an election in 2012 which would be within sixty days from the date on which the National Coalition was dissolved by written agreement between the President and the Prime Minister in accordance with Section 6(b) of the National Accord and Reconciliation Act, 2008.
The second option, explained Hassan, would be within sixty days from the expiry of the term of the National Assembly on 15th January, 2013. Hassan clearly explained that of the two options, the first one was outside the control of the Commission; because it required a joint agreement in writing by the two Principals.
Rather than attacking Hassan for attempting to exercise powers he did not have, Kajwang and those who think like him, would have been more reasonable to listen to the IEBC boss’ reasons for unilaterally taking the action he did of naming the date. The Commission, he said, had consulted widely within and without, and in particular, it had consulted the two Principals with the view to actualize the first option the Court Judgment had recommended.
He reiterated that it should be understood that his Commission had repeatedly stated that it was ready to conduct the general elections in December 2012. However, after the consultations, it had become clear to the Commission that there was no agreement between the two Principals as required by the Court Judgment under the first option. Apart from failing to reach an agreement on when to dissolve the coalition Government with President Kibaki, Prime Minister Raila is on record attacking the court judgement in a rather vulgar language.
For calling the court “bandia” or kangaroo, the PM was vehemently attacked by Chief Justice Willy Mutunga, who is the President of the Supreme Court. He said in a Statement: “Mr Odinga is the Prime Minister of the Republic of Kenya. As a creature of the law, he is a critical and fundamental arm of the Executive. He must be aware that he bears a duty to uphold and protect the independence of the Judiciary as required by the Constitution – especially in instances where he is unhappy with its decision. It is therefore, distressing that individuals who bear a special responsibility to uphold the Constitution because of their leadership role would appear to vilify the courts.”
Rather than attack courts or the IEBC, those opposed to the March 4th election date should realise that Hassan was in fact compelled by the law to proceed with the second option recommended by the Court Judgment which required the Commission to fix an election date within 60 days from the expiry of the term of the 10th Parliament on March 14, 2013. Even more important than the mere date for holding the next general election, the country expects Hassan and his team to conduct these elections in a free, fair and transparent manner that would be organised in a peaceful atmosphere.
That is obviously why he said when fixing the date that he knew that successful and credible elections were deliberate designs of painstaking planning, logistics and collaboration of all key players and stakeholders. According to Hassan the Commission considered the earliest possible date of election taking into account certain statutory electoral processes included the requirement that political parties must comply with the provisions of the Political Parties Act, 2011 by April 2012.
Despite all the noise made by politicians there were only four political parties that had complied with the law when Hassan was announcing the election date. There was also the requirement that the High Court should hear and determine applications filed in respect of the published Final Report of the Commission outlining boundaries of constituencies and wards, within three months. Whether the noise makers like it or not these legal procedures will have to be followed and they indeed take time.
The IEBC will also need some time to procure vital election material which will hopefully digitize the entire process and make it more transparent. The electoral body has yet to do the mapping of new electoral units and conduct voter education on the new electoral unit as well as prepare a fresh voter registration based on the new electoral unit. When all this has been done then the voter register will need time to be inspected. The noise makers have also got to understand that this time political parties have to submit their party rules at least six months before party nominations. This takes time too.
If there are things to be ashamed of about the last general elections, the manner in which political parties conducted their primary elections must be one of them. One of the weakness of the current laws concerning elections is the fact that they are not more stringent about the manner in which parties nominate their candidates for parliamentary, gubernatorial and senatorial positions. According to the law political party nominations should be completed at least 45 days before the election date.
According to Hassan the rules concerning nominations must be submitted to the Registrar of Political Parties at least seven and half months before elections. There is also the requirement that political parties submit their party membership lists to the Commission at least three months before submission of party nominations to the Commission. Hassan explained that the requirement for potential candidates to refrain from directly or indirectly participating in public fundraising or harambee within eight months preceding a general election was important to be observed by all as the Commission keeps a sharp eye on every politician.
The IEBC boss also explained that the requirement for public officers intending to contest in the elections to resign from office at least eight months before the elections was a process that would obviously be time consuming for the Commission to keep a keen eye on. He said the requirement for independent candidates not to be members of any political party at least three months before the elections was important to observe as it would also be time consuming.
He said the need for certainty regarding the date of the general elections was a matter of both immense public interest and legal and administrative concern. The Commission had therefore conformed to the rigid legal steps leading to the election date. The country needed to know the election date and the Commission had to remove the uncertainty, anxiety and suspense surrounding this date. With this very convincing argument Kenyans should stop arguing about the election date and instead start organising for the March 4th elections according to the law. The remaining time is in fact very short.
Tuesday, March 20, 2012
Tuesday, March 13, 2012
Anti-ICC forgeries expose malicious scheme
Something horrible is taking place in Kenya’s legislature. An attempt by a group of MPs to table forged documents in Parliament to tarnish the credibility of the International Criminal Court has exposed a sinister scheme to promote impunity even when the people of Kenya are determined to wipe it out. Done by a semi-illiterate agent of distortion, the forgeries were an attempt to hoodwink the entire nation into believing that the trials at the ICC in The Hague are part of a big plot by Western “imperialists” to keep William Ruto and Uhuru Kenyatta behind bars as Raila Odinga runs for the presidency of Kenya almost unopposed.
Unfortunately the semi-illiterate schemer could neither write good English nor spell some simple words in the language. Hence the cat was let out of the bag through the theatre of the absurd parliament was reduced to when the forgeries were table in the House. Instead of the National Assembly buying the distorted theory of Western “conspiracy” against Uhuru, and Ruto and therefore backing them when they boycott the ICC trial, they now face Luis Moreno-Ocampo in The Hague as individuals.
The saddest part about the entire ICC trials against Uhuru and Ruto is the attempt by the Kibaki side of the coalition Government to involve the entire administration into the trials. Attorney General Githu Muigai has already engaged a team of lawyers to advice the Government on the trials. Yet in reality Uhuru and Ruto are accused as individuals in The Hague and not as official representatives of the Government of Kenya.
The other miserable fact of the Uhuru-Ruto trials in The Hague is their pretended assumption that the people of Kenya don’t know the truth about the episodes that led to the trials. Almost every Kenyan knows the trials at the ICC are the direct results of the PEV of 2007-8 that saw the deaths of well over 1,300 innocent Kenyans. Kenyans remember that following the sad event of PEV the Waki report made a number of recommendations including the formation of local tribunal to try those suspected of masterminding the bloodbath.
It was only when the country failed to establish a local tribunal that Justice Waki forwarded the names of the suspects to the former UN Secretary General Kofi Annan who handed them to the ICC. The British had nothing to do with that process; neither did Prime Minister Raila Odinga whom the Uhuru-Ruto defence team is now desperately trying to involve in the PEV.
Another important truth that must be exposed at this moment is the fact that Kikuyus are not on trial in The Hague. Neither are the Kalenjins. Ruto and Uhuru are charged with crimes against humanity as individuals. Kenya is not on trial. So the attempt to involve the whole country through forged documents presented before the National Assembly must be condemned as an extension of the PEV. The two accused people don’t seem to be repentant at all. Instead they want to involve the entire country in the trials they face at the ICC.
Likewise the manner in which they have grouped themselves along tribal lines in order to win the next general election through ethnic nationalism, rather than through policy and party manifesto, also reveals that the PEV has now taken an unrepentant form of planning to rule Kenya through tribal power structure. This is in total disregard of the new constitution which the Ruto-Uhuru group has always opposed.
In all these new political developments in Kenya the role of President Mwai Kibaki is extremely mysterious. The way he has always supported Uhuru Kenyatta clearly proves he is a G7 sympathiser who probably even supports the forgeries in Parliament. The way he reacted to the indictment of Uhuru and Ruto by the ICC clearly proved he was against the trials in The Hague. But then he also knows that 60 per cent of Kenyans support the ICC trials as most people want justice to be done through the international court as Kenya has totally failed to either seek or provide justice on this matter.
Apart from the forgeries being exposed by both the British and Kenyan intelligence agencies, other efforts to destabilise the country because of the ICC trials have been exposed by Prime Minister Raila Odinga. These have been attempts to mobilise Kikuyu and Kalenjin people and make them believe they were all being persecuted by Western “imperialists”. The mobilisation is done through fictitious prayers for the ICC suspects. At these so called prayers extremely inflammatory language is used to tear the country apart.
The country’s internal security agencies have been unusually quiet about the conspicuous mobilisation of the people. The silence is reminiscent of the little action that was taken against hate speeches used during the 2007 election campaigns. It is the hate speeches that led to the PEV which saw bloodbath in the country.
As the campaigns against the ICC gain momentum not a word is spoken by anyone about the fate of the Internally Displaced People (IDPs) made homeless by the PEV. Because they will be a major issue in the next general elections, all presidential candidates are likely to come up with some formula of resettling the IDPs still living in camps. Few will however believe the promises made by the G7politicians who have been in power for almost five years and did absolutely nothing to help the displaced people.
As Kenyans wait for the next general elections the country is dangerously divided along tribal lines. The divisions are even more threatening than they were just before the 2007 elections. If another bloodbath is to be avoided in this country, more serious steps need to be taken to not only implement the Constitution, but also to follow the provisions of the Political Parties Act which prohibits the formation of political parties along tribal lines.
It is also important that Kenyans get to know the actual date when elections will take place. Though Mwai Kibaki has expressed the wish to have them next year, the Prime Minister has read the mood of most Kenyans and expressed the wish to have them take place in December this year. The issue of whether or not Uhuru and Ruto can take part in those elections is pending before court at the moment. The sooner that judgement is made the better it will be for the country.
According to Justice Minister Mutula Kilonzo no one accused of crimes against humanity should be allowed to take part in any parliamentary or presidential elections. That is also the feeling of the majority of the people of Kenya today.
Unfortunately the semi-illiterate schemer could neither write good English nor spell some simple words in the language. Hence the cat was let out of the bag through the theatre of the absurd parliament was reduced to when the forgeries were table in the House. Instead of the National Assembly buying the distorted theory of Western “conspiracy” against Uhuru, and Ruto and therefore backing them when they boycott the ICC trial, they now face Luis Moreno-Ocampo in The Hague as individuals.
The saddest part about the entire ICC trials against Uhuru and Ruto is the attempt by the Kibaki side of the coalition Government to involve the entire administration into the trials. Attorney General Githu Muigai has already engaged a team of lawyers to advice the Government on the trials. Yet in reality Uhuru and Ruto are accused as individuals in The Hague and not as official representatives of the Government of Kenya.
The other miserable fact of the Uhuru-Ruto trials in The Hague is their pretended assumption that the people of Kenya don’t know the truth about the episodes that led to the trials. Almost every Kenyan knows the trials at the ICC are the direct results of the PEV of 2007-8 that saw the deaths of well over 1,300 innocent Kenyans. Kenyans remember that following the sad event of PEV the Waki report made a number of recommendations including the formation of local tribunal to try those suspected of masterminding the bloodbath.
It was only when the country failed to establish a local tribunal that Justice Waki forwarded the names of the suspects to the former UN Secretary General Kofi Annan who handed them to the ICC. The British had nothing to do with that process; neither did Prime Minister Raila Odinga whom the Uhuru-Ruto defence team is now desperately trying to involve in the PEV.
Another important truth that must be exposed at this moment is the fact that Kikuyus are not on trial in The Hague. Neither are the Kalenjins. Ruto and Uhuru are charged with crimes against humanity as individuals. Kenya is not on trial. So the attempt to involve the whole country through forged documents presented before the National Assembly must be condemned as an extension of the PEV. The two accused people don’t seem to be repentant at all. Instead they want to involve the entire country in the trials they face at the ICC.
Likewise the manner in which they have grouped themselves along tribal lines in order to win the next general election through ethnic nationalism, rather than through policy and party manifesto, also reveals that the PEV has now taken an unrepentant form of planning to rule Kenya through tribal power structure. This is in total disregard of the new constitution which the Ruto-Uhuru group has always opposed.
In all these new political developments in Kenya the role of President Mwai Kibaki is extremely mysterious. The way he has always supported Uhuru Kenyatta clearly proves he is a G7 sympathiser who probably even supports the forgeries in Parliament. The way he reacted to the indictment of Uhuru and Ruto by the ICC clearly proved he was against the trials in The Hague. But then he also knows that 60 per cent of Kenyans support the ICC trials as most people want justice to be done through the international court as Kenya has totally failed to either seek or provide justice on this matter.
Apart from the forgeries being exposed by both the British and Kenyan intelligence agencies, other efforts to destabilise the country because of the ICC trials have been exposed by Prime Minister Raila Odinga. These have been attempts to mobilise Kikuyu and Kalenjin people and make them believe they were all being persecuted by Western “imperialists”. The mobilisation is done through fictitious prayers for the ICC suspects. At these so called prayers extremely inflammatory language is used to tear the country apart.
The country’s internal security agencies have been unusually quiet about the conspicuous mobilisation of the people. The silence is reminiscent of the little action that was taken against hate speeches used during the 2007 election campaigns. It is the hate speeches that led to the PEV which saw bloodbath in the country.
As the campaigns against the ICC gain momentum not a word is spoken by anyone about the fate of the Internally Displaced People (IDPs) made homeless by the PEV. Because they will be a major issue in the next general elections, all presidential candidates are likely to come up with some formula of resettling the IDPs still living in camps. Few will however believe the promises made by the G7politicians who have been in power for almost five years and did absolutely nothing to help the displaced people.
As Kenyans wait for the next general elections the country is dangerously divided along tribal lines. The divisions are even more threatening than they were just before the 2007 elections. If another bloodbath is to be avoided in this country, more serious steps need to be taken to not only implement the Constitution, but also to follow the provisions of the Political Parties Act which prohibits the formation of political parties along tribal lines.
It is also important that Kenyans get to know the actual date when elections will take place. Though Mwai Kibaki has expressed the wish to have them next year, the Prime Minister has read the mood of most Kenyans and expressed the wish to have them take place in December this year. The issue of whether or not Uhuru and Ruto can take part in those elections is pending before court at the moment. The sooner that judgement is made the better it will be for the country.
According to Justice Minister Mutula Kilonzo no one accused of crimes against humanity should be allowed to take part in any parliamentary or presidential elections. That is also the feeling of the majority of the people of Kenya today.
Monday, February 20, 2012
Kalonzo ejection exposes G7 hegemony
There is a dangerous hegemonic intolerance within the G7 leadership. Its ugly and real Frankenstein nature has now been exposed. The way in which Kalonzo Musyoka is being unceremoniously ejected from the amorphous G7, clearly shows that the Uhuru-Ruto stewardship is infested with extremely bigoted beliefs that only the two of them can determine for Kenyans who should take over the leadership of this country after Mwai Kibaki.
This is even when it is abundantly clear that none of them can be the country’s next President because they are, for all practical purposes, suspected criminals who don’t even qualify to contest for the top leadership of Kenya. With that in mind, they suspect Kalonzo’s pretended close relationship with them could only be based on the fulfilment of his political ambition of becoming the only acceptable alternative presidential candidate of the G7.
It may well be true that Kalonzo Musyoka is an unwelcome guest in the G7. It may also be true that Kalonzo’s presence in the group is anchored on his own hidden ambition to take over from Kibaki by “slipping through” Uhuru and Ruto. But whichever way one looks at Kalonzo’s association with the G7, his presence in the group strengthens it with millions of Kamba votes. The Kikuyu-Kalenjin power structure is a weaker entity without Kalonzo. Indeed the desired KKK strategy to take over the leadership of this country through tribal grouping remains a mere dream without the Kamba leader.
What therefore is the true reason for all the bitterness against Kalonzo? Between Uhuru and Ruto, it is the former rather than the latter, who speaks with bitterness whenever he makes references to the VP’s political ambitions. He can simply not swallow the idea of being born the undisputed prince of the House of Mumbi, and therefore the unquestionable heir to the Kikuyu throne, ending up in jail and an insignificant Kamba commoner taking over Kenya’s presidency. To him that position is his birth right.
On the other hand Ruto sees Kalonzo as a dangerous but very necessary enemy. If he ends up in jail the young Kalenjin leader doesn’t really care who takes over the leadership of Kenya as long as that person is not Raila Odinga. Indeed if Kalonzo were to succeed Kibaki the Kalenjin would still manage to get many important positions in the central Government as they would still control the majority of the counties in the Rift Valley which is, by and large, the bread basket of this country. No government can survive without feeding its people.
If, by a miraculous eventuality, Ruto and Uhuru find themselves free to contest Kenya’s presidency, then the two of them can mutually be expected to kiss their relationship goodbye as none of them is really prepared to step down for the other to become Kenya’s next president. The latent animosity between the two is clearly noticeable whenever they address public meetings in the Rift Valley and in the Central Provinces. When they are in the Rift Valley, Ruto is treated by the crowd as the undisputed G7 presidential candidate to face Raila Odinga; and whenever they are facing a Central Province crowd, Uhuru becomes the undisputed candidate. That is why they are not prepared to form one single political party that would unite them as a team.
Each one of them has his own political party and there is no possibility at all that one of them will step down for the other. The idea of them forming the next government as a team is merely building castles in the air and a crowd pulling gimmick. Now they are paddling in the same canoe because they are facing more or less the same criminal charges at the ICC and the purpose of the so called joint prayer meetings is to politicize the cases by mobilizing Kikuyus and Kalenjins by making them feel that their entire communities are facing the criminal charges in The Hague.
If and when Uhuru and Ruto are free to seek presidential ticket from their different political parties, they will all be visiting Ukambani separately to look for votes. At that time they will wish they did not mistreat Kalonzo as they are doing at the moment. But Kalonzo is not as weak as he appears to be. His strategy was indeed to use both Uhuru and Ruto as stepping stones to State House. Now that he has been discovered he must have a plan “B” that will still make him a presidential candidate.
If by that time Uhuru and Ruto will be barred from contesting, Kalonzo will still claim to be their friend who will probably promise to drop all charges against them when he becomes the President.
He will claim he was the only man who went round the world trying to get the case in The Hague transferred to Kenya. If at that time Uhuru and Ruto will have identified a puppet candidate to face both Raila Odinga and Kalonzo Musyoka the puppet’s popularity will be so insignificant because whoever they choose to be their dummy will neither command the total respect of the Kalenjins nor that of the Kikuyus.
Kalenjins want Ruto to be the next president not a puppet chosen by him; and the Kikuyus want Uhuru Kenyatta at State House but not a puppet chosen by him.
If Ruto and Uhuru don’t run in the next election because of the provisions of Chapter Six of the new Constitution, then the race to State House will indeed be between Raila Odinga and Kalonzo Musyoka. There is no way Musalia Mudavadi can get the ODM ticket and if he pulls out of the party he will have committed the final political suicide and he knows it.
When all is said and done the politics of personalities will come to a natural end the moment ODM officially nominate Raila Odinga as its candidate and he names Musalia Mudavadi as his running mate. That is when politics in this country will change as ODM insists on debating on issues during campaigns instead of personalities. The millions of unemployed young Kenyans who will determine the future leader of this land will massively back the party of policies and dump the demagogues of tribal gansterism.
This is even when it is abundantly clear that none of them can be the country’s next President because they are, for all practical purposes, suspected criminals who don’t even qualify to contest for the top leadership of Kenya. With that in mind, they suspect Kalonzo’s pretended close relationship with them could only be based on the fulfilment of his political ambition of becoming the only acceptable alternative presidential candidate of the G7.
It may well be true that Kalonzo Musyoka is an unwelcome guest in the G7. It may also be true that Kalonzo’s presence in the group is anchored on his own hidden ambition to take over from Kibaki by “slipping through” Uhuru and Ruto. But whichever way one looks at Kalonzo’s association with the G7, his presence in the group strengthens it with millions of Kamba votes. The Kikuyu-Kalenjin power structure is a weaker entity without Kalonzo. Indeed the desired KKK strategy to take over the leadership of this country through tribal grouping remains a mere dream without the Kamba leader.
What therefore is the true reason for all the bitterness against Kalonzo? Between Uhuru and Ruto, it is the former rather than the latter, who speaks with bitterness whenever he makes references to the VP’s political ambitions. He can simply not swallow the idea of being born the undisputed prince of the House of Mumbi, and therefore the unquestionable heir to the Kikuyu throne, ending up in jail and an insignificant Kamba commoner taking over Kenya’s presidency. To him that position is his birth right.
On the other hand Ruto sees Kalonzo as a dangerous but very necessary enemy. If he ends up in jail the young Kalenjin leader doesn’t really care who takes over the leadership of Kenya as long as that person is not Raila Odinga. Indeed if Kalonzo were to succeed Kibaki the Kalenjin would still manage to get many important positions in the central Government as they would still control the majority of the counties in the Rift Valley which is, by and large, the bread basket of this country. No government can survive without feeding its people.
If, by a miraculous eventuality, Ruto and Uhuru find themselves free to contest Kenya’s presidency, then the two of them can mutually be expected to kiss their relationship goodbye as none of them is really prepared to step down for the other to become Kenya’s next president. The latent animosity between the two is clearly noticeable whenever they address public meetings in the Rift Valley and in the Central Provinces. When they are in the Rift Valley, Ruto is treated by the crowd as the undisputed G7 presidential candidate to face Raila Odinga; and whenever they are facing a Central Province crowd, Uhuru becomes the undisputed candidate. That is why they are not prepared to form one single political party that would unite them as a team.
Each one of them has his own political party and there is no possibility at all that one of them will step down for the other. The idea of them forming the next government as a team is merely building castles in the air and a crowd pulling gimmick. Now they are paddling in the same canoe because they are facing more or less the same criminal charges at the ICC and the purpose of the so called joint prayer meetings is to politicize the cases by mobilizing Kikuyus and Kalenjins by making them feel that their entire communities are facing the criminal charges in The Hague.
If and when Uhuru and Ruto are free to seek presidential ticket from their different political parties, they will all be visiting Ukambani separately to look for votes. At that time they will wish they did not mistreat Kalonzo as they are doing at the moment. But Kalonzo is not as weak as he appears to be. His strategy was indeed to use both Uhuru and Ruto as stepping stones to State House. Now that he has been discovered he must have a plan “B” that will still make him a presidential candidate.
If by that time Uhuru and Ruto will be barred from contesting, Kalonzo will still claim to be their friend who will probably promise to drop all charges against them when he becomes the President.
He will claim he was the only man who went round the world trying to get the case in The Hague transferred to Kenya. If at that time Uhuru and Ruto will have identified a puppet candidate to face both Raila Odinga and Kalonzo Musyoka the puppet’s popularity will be so insignificant because whoever they choose to be their dummy will neither command the total respect of the Kalenjins nor that of the Kikuyus.
Kalenjins want Ruto to be the next president not a puppet chosen by him; and the Kikuyus want Uhuru Kenyatta at State House but not a puppet chosen by him.
If Ruto and Uhuru don’t run in the next election because of the provisions of Chapter Six of the new Constitution, then the race to State House will indeed be between Raila Odinga and Kalonzo Musyoka. There is no way Musalia Mudavadi can get the ODM ticket and if he pulls out of the party he will have committed the final political suicide and he knows it.
When all is said and done the politics of personalities will come to a natural end the moment ODM officially nominate Raila Odinga as its candidate and he names Musalia Mudavadi as his running mate. That is when politics in this country will change as ODM insists on debating on issues during campaigns instead of personalities. The millions of unemployed young Kenyans who will determine the future leader of this land will massively back the party of policies and dump the demagogues of tribal gansterism.
Monday, February 13, 2012
Constitution to dominate elections
The next elections will entirely be based on the new Constitution. Not only will it be mandatory to follow it to the letter; but the voters will also be looking for candidates are genuinely concerned with its accurate implementation. So far we have seen very many attempts to change the constitution through the publication of laws that go against its letter and spirit.
The new Land Bill is a case in point. Chapter Five of the Constitution is extremely clear on matters of land ownership. Article 68 (c) says, among other things, Parliament shall enact legislation to prescribe minimum and maximum land holding acreages in respect of private land. Section 189 (1) of the proposed Bill says that within one year of the coming into force of the Land Act, the Cabinet Secretary shall commission a scientific study to determine the economic viability of minimum and maximum acreages in respect of private land for various land zones in the country.
The purpose of prescribing minimum and maximum land holding by the Constitution was obviously to try and bridge the gap between the huge land owners in Kenya and the landless. It so happens that soon after independence those who found themselves in political leadership automatically became land grabbers. They used very fraudulent methods to acquire very huge tracts of land. With that in mind many people expected the new draft Bill to suggest minimum land acreages an individual could own. But instead the Bill is suggesting the establishment of a scientific study to determine what is economically viable for minimum and maximum acreages.
In essence this means the scientific study may suggest that the huge plantations owned by land grabbers should not be subdivided to benefit the people because doing so would not be economically viable. According to the new Bill the hope of ever thinking of dividing the huge tracts of illegally acquired land to benefit the people will not even take place until after a whole year has passed subsequent to the land law coming into force.
Section 189(2) of the draft Bill says the findings of the study shall be available for the public to make observations and should be modified based on valid representations in accordance with principles of participation of the people, good governance, transparency and accountability. During the electioneering in the forthcoming contest political leaders must tell the people how their parties intend to do that. The proposal of how to make millions of landless Kenyans own some land must come out openly during this election.
After all Article 61 (1) of the Constitution says all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals and it further emphasises that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the principles of equitable access to land. The Constitution also protects security of land rights; sustainable and productive management of its resources; its transparent and cost effective administration; and sound conservation and protection of ecologically sensitive areas.
The Constitution suggests the elimination of gender discrimination in law, customs and practices related to land and property in land; and encourages communities to settle land disputes through recognised local community initiatives consistent with the new law. These are issues which voters must demand to be discussed in a more detailed manner during these elections. Political parties must show the people how their manifestos intend to implement controversial land issues suggested by the new Constitution.
The Constitution says these principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation. During the campaign the voters must be told by the candidates what land policies they want to introduce in Kenya. The candidates, and indeed all political parties, must tell the people how they intend to reduce the number of landless people by making them get something from the large landowners who are at the moment not even utilizing productively the land they have.
Section 189(3) of the proposed Bill says within three months after the publication of the final report of the scientific study commissioned under the law the Cabinet Secretary shall table the report to Parliament for debate and adoption. At that time the Cabinet Secretary shall prescribe the rules and regulations on the minimum and maximum acreages in respect of private land solely based on the recommendations in the report. This does not however preclude political parties from telling the voters what their policies about maximum and minimum acreages of land ownership should be.
Today this country has thousands of people living as IDP whereas they were landowners before the last general election. It was due the erroneous promises made by politicians about land ownership that thugs invaded the IDP’s former land and acquired it illegitimately. Promises made during election time to the voters about land ownership are important and this time they should be examined to find out whether they are lawful promises and whether they fall within what the Constitution says about land.
Voters should demand from all political parties to be told how they indent to implement Article 43 of the Constitution which says every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education.
The Constitution clearly says a person shall not be denied emergency medical treatment and that the State shall provide appropriate social security to persons who are unable to support themselves and their dependants. In every election politicians have made promises about these things in the most reckless manner. In the past however these things were not promised by the supreme law of the land. Now it is incumbent upon all candidates, particularly Presidential candidates to tell the people how they plan to implement the Bill of Rights in the new Constitution in order to achieve the second generation human rights.
Failure to do so in a convincing manner would be a disqualification wananchi should ruthlessly use to throw out candidates who want to be elected on tribal rather than policy tickets. May be the best way of finding out who is most suited to be the future President of this country would be to share platform and debate on how to, most effectively, implement the Constitution.
It is about time the Independent Electoral and Boundaries Commission (IEBC) came out with a mandatory rule to be obeyed by all candidates about public sharing of political platform in which journalists ask hard question based on the new Constitution. To avoid heckling in those meeting they should be confined to televised debates which should be aired by all stations in the country.
This is the only way of avoiding the hype and hoopla which dominated previous elections in this country. It is about time Kenyans took the substance of elections, in which party manifestos are thoroughly securitised, more seriously.
The new Land Bill is a case in point. Chapter Five of the Constitution is extremely clear on matters of land ownership. Article 68 (c) says, among other things, Parliament shall enact legislation to prescribe minimum and maximum land holding acreages in respect of private land. Section 189 (1) of the proposed Bill says that within one year of the coming into force of the Land Act, the Cabinet Secretary shall commission a scientific study to determine the economic viability of minimum and maximum acreages in respect of private land for various land zones in the country.
The purpose of prescribing minimum and maximum land holding by the Constitution was obviously to try and bridge the gap between the huge land owners in Kenya and the landless. It so happens that soon after independence those who found themselves in political leadership automatically became land grabbers. They used very fraudulent methods to acquire very huge tracts of land. With that in mind many people expected the new draft Bill to suggest minimum land acreages an individual could own. But instead the Bill is suggesting the establishment of a scientific study to determine what is economically viable for minimum and maximum acreages.
In essence this means the scientific study may suggest that the huge plantations owned by land grabbers should not be subdivided to benefit the people because doing so would not be economically viable. According to the new Bill the hope of ever thinking of dividing the huge tracts of illegally acquired land to benefit the people will not even take place until after a whole year has passed subsequent to the land law coming into force.
Section 189(2) of the draft Bill says the findings of the study shall be available for the public to make observations and should be modified based on valid representations in accordance with principles of participation of the people, good governance, transparency and accountability. During the electioneering in the forthcoming contest political leaders must tell the people how their parties intend to do that. The proposal of how to make millions of landless Kenyans own some land must come out openly during this election.
After all Article 61 (1) of the Constitution says all land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals and it further emphasises that land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the principles of equitable access to land. The Constitution also protects security of land rights; sustainable and productive management of its resources; its transparent and cost effective administration; and sound conservation and protection of ecologically sensitive areas.
The Constitution suggests the elimination of gender discrimination in law, customs and practices related to land and property in land; and encourages communities to settle land disputes through recognised local community initiatives consistent with the new law. These are issues which voters must demand to be discussed in a more detailed manner during these elections. Political parties must show the people how their manifestos intend to implement controversial land issues suggested by the new Constitution.
The Constitution says these principles shall be implemented through a national land policy developed and reviewed regularly by the national government and through legislation. During the campaign the voters must be told by the candidates what land policies they want to introduce in Kenya. The candidates, and indeed all political parties, must tell the people how they intend to reduce the number of landless people by making them get something from the large landowners who are at the moment not even utilizing productively the land they have.
Section 189(3) of the proposed Bill says within three months after the publication of the final report of the scientific study commissioned under the law the Cabinet Secretary shall table the report to Parliament for debate and adoption. At that time the Cabinet Secretary shall prescribe the rules and regulations on the minimum and maximum acreages in respect of private land solely based on the recommendations in the report. This does not however preclude political parties from telling the voters what their policies about maximum and minimum acreages of land ownership should be.
Today this country has thousands of people living as IDP whereas they were landowners before the last general election. It was due the erroneous promises made by politicians about land ownership that thugs invaded the IDP’s former land and acquired it illegitimately. Promises made during election time to the voters about land ownership are important and this time they should be examined to find out whether they are lawful promises and whether they fall within what the Constitution says about land.
Voters should demand from all political parties to be told how they indent to implement Article 43 of the Constitution which says every person has the right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education.
The Constitution clearly says a person shall not be denied emergency medical treatment and that the State shall provide appropriate social security to persons who are unable to support themselves and their dependants. In every election politicians have made promises about these things in the most reckless manner. In the past however these things were not promised by the supreme law of the land. Now it is incumbent upon all candidates, particularly Presidential candidates to tell the people how they plan to implement the Bill of Rights in the new Constitution in order to achieve the second generation human rights.
Failure to do so in a convincing manner would be a disqualification wananchi should ruthlessly use to throw out candidates who want to be elected on tribal rather than policy tickets. May be the best way of finding out who is most suited to be the future President of this country would be to share platform and debate on how to, most effectively, implement the Constitution.
It is about time the Independent Electoral and Boundaries Commission (IEBC) came out with a mandatory rule to be obeyed by all candidates about public sharing of political platform in which journalists ask hard question based on the new Constitution. To avoid heckling in those meeting they should be confined to televised debates which should be aired by all stations in the country.
This is the only way of avoiding the hype and hoopla which dominated previous elections in this country. It is about time Kenyans took the substance of elections, in which party manifestos are thoroughly securitised, more seriously.
Democracy in ODM admirable
The Raila-Mudavadi rivalry within the ODM party is admirable. It is what cannot, and will probably never, take place in other political parties in Kenya. All political parties in this country belong to individuals who use them as ladders to high political offices. When Musalia Mudavadi, the Deputy Leader of the formidable ODM, announced his intention to seek the party ticket in the forthcoming Presidential election, Raila’s enemies thought they had acquired a new comrade in arms.
But Mudavadi has made it very clear that he does not intend to leave ODM even if Raila defeats him at the nomination stage. The spirited countrywide campaigns by Raila and Musalia, seeking support from party members in their fight for the party’s presidential ticket, show the kind of internal democracy needed in all political parties in the country. Unfortunately it only exits in the ODM and that is why it is the most powerful political institution in the country.
Raila and Mudavadi should take their campaigns a stage farther than individual tours of different parts of the country. They should make the tours jointly and address ODM groups together as they answer questions from members from joint platforms. Unless candidates share platforms in contestant debates during party primaries, internal democracy in political parties will not be complete.
Right now the G7 group is indeed travelling together as a group to many parts of the country where their various political parties are popular. They have confined themselves to the Rift Valley, the former Central Province and Machakos where indeed they have shared platforms and addressed public rallies jointly. But they have not done so as rivals competing for joint party nomination. In fact there is nothing like political unity in the so-called G7 group.
Each of the G7 top three leaders has his own political party based on tribal support. William Ruto has the United Republican Party which is a Kalenjin party; Kalonzo Musyoka has his own Wiper Democratic Party which is a Kamba party and Uhuru Kenyatta has his own KANU which is a party in serious leadership problem. Uhuru, however, is assured of the backing of the majority of the Kikuyu people whichever political party he joins as the top leader. That support is not automatic if he joins a party to support another leader.
The problem with the G7 group is that it has no ideology that unites them. They are only together to make sure that Raila Odinga does not become Kenya’s next President. The group does not even seem to agree on why they oppose Raila Odinga. They are not able to pinpoint any ideological stand by Raila Odinga which makes them oppose him. Yet it is common knowledge among all the people of Kenya that Raila is probably the most sincere supporter of the new Constitution and what it stands for.
By inference it stands to reason that what brings G7 together is its continued opposition to the demands of the new Constitution. Among them is William Ruto who spent a lot of money and energy to oppose the Constitution. The manner in which Uhuru Kenyatta and Kalonzo Musyoka supported the supreme law was so half-heartedly lackadaisical that they were branded watermelons.
Today both Ruto and Kenyatta are not sure whether they will meet the required standards of leadership that is stipulated in the new Constitution. With criminal cases hovering over their heads at the ICC in The Hague, it is not even clear whether the Kenyan courts will allow them to seek leadership positions under the new Constitution. Deep inside their hearts, therefore, they must be bitterly opposed to the new Constitution which they obviously must see as a major impediment to their insatiable desire to lead this country.
The continued effort by the G7 to tear this country apart along tribal lines is however likely to miserably fail because the people of Kenya correctly see the new Constitution as the only available vehicle to prosperity, justice and democracy. For a long time the wealth of this nation has been concentrated in the hands of a few individuals who happened to wield political power. Paradoxically they grabbed political power by successfully utilizing the old colonial adage of ‘divide and rule’. After dividing the nation into small tribal clusters through bribery and xenophobic nationalism the rich always managed to use the divided masses as stepping stones to political power.
That scenario has been drastically changed by the people when they overwhelmingly supported the new constitution. The only ideological difference which the voters of Kenya will be looking for when electing their new leaders, will be the ability to correctly interpret the new constitution. That ability will be exhibited in the manner the leaders explain to the people about their commitment and competence to correctly implement it.
It so happens that the only political party that is able to interpret the new Constitution correctly to the satisfaction of the people is the ODM. This is mainly because the party is made up of the people of Kenya who genuinely want change in this country. The people who want to bridge the gap between the haves and the have-nots, as it is suggested in the new constitution, all happen to be in the ODM. But the party must learn to conduct its primary elections in a more transparent manner through genuine interpretation of the new Constitution by telling the people how it indents to implement it.
If Raila Odinga and Musalia Mudavadi share a platform and answer questions from the people on how they intend to implement the new Constitution n, the two will be speaking the same language. Apart from publicly exhibiting internal democracy within their party, however, Raila and Mudavadi are also dancing to the tune of tribal demands of their people. The Luos would most likely not like to see Raila serving in the Mudavadi administration as the deputy President. And the Luhyas would obviously like their son to take the top position in the next ODM Government. But everything else being equal the Luhyas know very well that their son is not a match to Agwambo and in fact they would be extremely lucky to have Mudavadi as the Deputy President in the next Government.
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.
Thursday, January 26, 2012
Uhuru must resign as DPM
Most Kenyans have taken the news of the resignation of Francis Muthaura as the Head of the Civil Service with a lot of relief. At long last someone important in the Kibaki-Raila Government has realised that no one is above the law in Kenya under the new Constitution. The news of Uhuru Kenyatta resigning as the Minister for Finance and not as the Deputy Prime Minister, however, puzzled a lot of people.
What could be the hidden message in the half-hearted move by the son of Jomo? Was it to prove that, compared to Muthaura, he is slightly above the law, as he was born with a silver spoon in his mouth? Was it to prove that he cannot be stopped from contesting the presidency of Kenya which, according to him, belongs to the big house of Mumbi? Or was it to prove that Mwai Kibaki has no powers to ask him to step aside from any office, if he was not willing to do so voluntarily?
These and many other questions kept lingering in many Kenyans’ minds when they were pondering the real reasons for the Government’s change of mind about Uhuru and Muthaura’s resignation. When Attorney General, Githu Muigai, announced that the two could keep their top jobs until after their appeal, many wondered whether he had forgotten his law.
Accepting Uhuru’s decision to step aside as the Minister for Finance the President announced that Kenyatta would retain the position of Deputy Prime Minister in “accordance with the Constitution.” That is another puzzling remark from the Head of State, who is obviously misinterpreting the Constitution. There is nowhere in the Constitution where it says Uhuru shall be the Deputy Prime Minister.
It is clear that what Kibaki is preparing to use as his ammunition in defence of keeping Uhuru as one of the two Deputy Prime Ministers is the National Accord and Reconciliation Act which is part of the Constitution. It may be true that Section Three of the Act says there shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers, who shall be appointed by the President in accordance with this section.
It is also true that the law also says the person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of the political party that has the largest number of members in the National Assembly; or a coalition of political parties in the event that the leader of the political party that has the largest number of members in the National Assembly does not command the majority in the National Assembly. That kind of description meant that only Raila Odinga could be appointed to be the Prime Minister. He was and still is the leader of ODM which has and still does have the largest number of MPs.
Kibaki will also be right when he says the Constitution says that each member of the coalition shall nominate one person from the elected members of the National Assembly to be appointed a Deputy Prime Minister. But that is all that the Constitution says. It does not say that Uhuru Kenyatta shall be the person to be nominated as the Deputy Prime Minister from Kibaki’s side. Indeed before Kibaki nominated Uhuru for the post of DPM, there were speculations that he would nominate Martha Karua who was then a strong supporter of Mwai Kibaki. In fact many believe Karua’s rebellious attitude toward Kibaki started when she missed the position of DPM. There is therefore absolutely no reason for Kibaki not to fire Uhuru and appoint another DPM. In fact the law expects him to do so.
According to the first schedule of the National Accord and Reconciliation Act the Prime Minister and Deputy Prime Ministers can only be removed if the National Assembly passes a motion of no confidence with a majority vote. Uhuru may be hanging in office because of this provision. If he has any respect for the new Constitution he should read the writing on the wall and resign before Parliament meets to kick him out unceremoniously.
According to Article 75 (1) of the Constitution a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids any conflict between personal interests and public or official duties. The Constitution also says that a State officer should also avoid compromising any public or official interest in favour of a personal interest; or demeaning the office the officer holds. It is a fact that nothing has demeaned the office of the Deputy Prime Minister under Uhuru Kenyatta than his being indicted by the International Criminal Court which suspects him of masterminding murder and rape.
If Mwai Kibaki is keeping Uhuru Kenyatta as his Deputy Prime Minister as a result of advice from Attorney General Githu Muigai, then the AG has misled the President because the Constitution is absolutely unambiguous on the issue of contravening Chapter Six on leadership and integrity. It says a person who contravenes the part of the Constitution quoted above shall be subject to the applicable disciplinary procedure for the relevant office; and may be dismissed or otherwise removed from office. Kibaki has no choice but to remove Uhuru from office. That is what the law says. It also says that a person who has been dismissed or otherwise removed from office for a contravention of these provisions is disqualified from holding any other State office. That means Uhuru, in fact, cannot be given any other job in the Government.
It so happens that soon after the National Accord and Reconciliation Act was entrenched in the Constitution of Kenya, Kibaki and Raila, as the two principals, made an agreement on the 16th of December 2008, which, among other things, said that the two sides shall prepare and submit to the National Assembly for enactment a Bill to be known as “The Statute for the Special Tribunal” to give effect to the establishment of the Special Tribunal to seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya. The agreement said the Bill shall provide for the matters recommended by the Waki Report in relation to the Special Tribunal for Kenya.
Kenyans’ memories cannot be so short as to forget who made it absolutely impossible to form the Special Tribunal mentioned above. Martha Karua prepared the Bill and when it went to Parliament people like William Ruto shouted the loudest saying “let us not be vague, let’s go to The Hague”. Now the matter is before the ICC in The Hague and the same people are shouting the loudest to have the Kenyan case brought back.
The Raila – Kibaki agreement also said the Parties shall initiate urgent and comprehensive reform of the Kenya Police and the Administration Police. Such reforms shall be undertaken by the panel of policing experts and will include but not limited to a review of all tactics, weapons and the use of force, establishment of an independent Police Service Commission to oversee both the Kenya Police and the Administration Police, an Independent Police Conduct Authority for both the Kenya Police and the Administration Police, creation of a modern code of conduct for the Kenya Police and the Administration Police and achieving ethnic and tribal balance in the Force. Kenyans also know that these measures are far from being completed.
The most important part of the Raila-Kibaki agreement concerned Public Officers and Offices. It said the Parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon. It also said that the parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position. This means Uhuru and Ruto may find it extremely difficult to run for the Presidency of Kenya later this year.
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.
Wednesday, January 25, 2012
Kibaki is against ICC ruling
Mwai Kibaki has come out in his true colours. As a Kenyan nationalist he has strongly defended Uhuru Kenyatta and Francis Muthaura who have both been indicted by the International Criminal Court for crimes against humanity. This very mysterious anti ICC sentiment by the President seems to be engineered by a secret force in his kitchen cabinet made up of the Mount Kenya old politicians who are determined to see Uhuru Kenyatta succeed Kibaki as the country’s next President.
Sailing in the same boat with Uhuru and Muthaura are William Ruto and Joshua arap Sang who are now, by sheer luck, getting Kenya government protection against Louis Moreno-Ocampo because they happen to be charged by the ICC together with the son of the first President of Kenya Jomo Kenyatta.
But the business of seeking justice has nothing to do with nationalism. Whether the PEV trials take place in Kenya or in The Hague all that should concern us is justice. The manner in which the Kenyan authorities have handled the PEV cases does not convince anyone that justice in Kenya is easier to obtain than at the ICC, all the changes that have taken place in the Judiciary and in the public prosecution office notwithstanding.
In his desperate effort to get the Uhuru case brought back to Kenya, in order to let the Kikuyu Presidential candidate free, Kibaki has ordered the Attorney General, Githu Muigai, to appoint a team of experts to “advise” the Government on the latest development at The Hague. The team is expected to recommend that another attempt be made to try and get the case returned to Kenya from the Netherlands.The first attempt made by Kibaki last year flopped miserably.
A lot of Kenyan taxpayers’ money will be used to pay the team composed of Sir Geoffrey Nice, Mr Rodney Dixon, Dr. Godfrey Musila , Mr Fred Ojiambo, Mr Joe Okwach, Mr Waweru Gatonye, Ms Betty Murungi, Ms Lucy Kambuni, Ms Grace Wakio and Dr Henry Mutai with a secretariat composed of Mr Ahmed Mohamed and Ms Caroline Wamaitha.
Though the team is made up of some of the best lawyers in this country, it is headed by British lawyers who will only do what their clients have ask them to, namely to see how the case can be brought back to Kenya from The Hague.
The money used to pay these lawyers should have been used to resettle the IDPs still suffering in their own country as landless people. The most shocking truth is the fact that the IDPs actually own farms which are now occupied by criminals responsible for the mayhem that this country went through after the 2007 elections.
Needless to say, in the unlikely event of the Uhuru case getting transferred back to Kenya, then Uhuru, Muthaura, Ruto and Sang will be set free despite all the noise being made about changes that have taken place in the Judiciary.
Chief Justice Willy Mutunga could have all the best intentions in the world in establishing special courts to try the four accused; but once the courts are established no one will appear before them as Keriako Tobiko will never betray the establishment by prosecuting Uhuru Kenyatta.
Besides that, Kibaki has never really been interested in justice. If he wanted justice to be seen to be done, then he would have ordered Uhuru and Muthaura to step down until the two are found innocent after the trial in the Netherlands. The team of highly respected lawyers hired by Kibaki can do very little to influence the court at the ICC. All they can do is issue a statement that will please Kibaki and his kitchen cabinet.
No matter how good lawyers are they always serve their masters and the master of the team appointed by Kibaki is Kibaki himself. He expressed his wishes the moment he opened his mouth to comment on the indictments of the four Kenyan suspects last Monday when he told the whole country that while the ICC process was underway, Kenya had enacted a new Constitution which substantially enhanced the capacity of the country’s criminal justice system and made great strides in the reform within the system in the administration of justice.
Those words clearly indicated what the President wished the team to do. Whatever recommendation it makes to the Government, it has to bear in mind that Kenya, in the words of the President, now has a “radically transformed judiciary, an independent office of the Director of Public Prosecutions, a police service that is being fundamentally reformed and a functional witness protection agency.” According to Kibaki it is now the collective responsibility of all these institutions to ensure justice for all at all times.
If the President meant every word he said he would have instructed his Deputy Prime Minister, Uhuru Kenyatta, and his Head of the Civil Service , Francis Muthaura , to step aside until the moment the ICC has found them to be no longer suspects after being proved innocent through the appeal of the ICC ruling or the full trial. William Ruto should also resign his parliamentary seat as the MP for Eldoiret North.
Their continued occupation of public offices goes against the spirit of our Constitution which says in Article 73 (1) that authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the new Constitution. It says that that authority must demonstrate respect for the people; and bring honour to the nation and dignity to the office. No one can be charged with serious crimes, which include murder and rape, before the International Criminal Court and still claim to bring dignity to the public office he or she holds. Ruto, Uhuru and Muthaura cannot claim to be promoting public confidence in the integrity of the offices they hold. The sooner they are asked to resign the better for Kenya’s integrity both locally and internationally.
According to President Kibaki, Kenya has had its share of challenging times. He said on these occasions, we have re-examined our national conscience and moved forward together. According to him we continue to do so. But how can we continue to do so when people who are obviously suspected of committing very serious crimes are being protected by the Government against the will of the people who would like to see justice done in The Hague?
It is only after the ICC ruling which indicted the four Kenyans that Kibaki started talking of re-dedicating ourselves to assist those who were displaced from their homes. For four years the Government has done nothing to make sure that the displaced people returned to their farms in the Rift Valley. Today William Ruto talks of peace and reconciliation but what has he done to tell his Kalenjin people to allow other Kenyans conduct business peacefully on their farms in the Rift Valley?
Kibaki has directed all relevant government ministries to fast track the resettlement of the remaining Internally Displaced Persons. Why should people who already own farms in Kenya be resettled elsewhere when their farms still exist? Kibaki called to all Kenyans to “search our national conscience, re-dedicate ourselves to a true sense of national reconciliation and forgiveness.” Kenyans will believe him when his Government does something to take back all the non Kalenjin to their old farms now illegally occupied by criminals.
For some very strange reasons the statement by Mwai Kibaki seems to contradict another statement which he jointly issued with the Prime Minister on November 5, 2007 when the two jointly said that they had a constructive meeting with Mr Louis Moreno- Ocampo. According to the statement they issued, the discussions were candid and frank. Mr Moreno-Ocampo had explained to Raila and Kibaki his mandate and how he intended to execute that mandate.
At that time Kibaki said the Government remained fully committed to discharge its primary responsibility in accordance with the Rome Statute to establish a local judicial mechanism to deal with the perpetrators of the post-election violence. In addition, the Government remained committed to cooperate with ICC within the framework of the Rome Statute and the International Crimes Act. For reasons well known to everyone Kenya did not succeed in establishing a relevant court to try the suspects; that is why it ended up in The Hague.
According to Section 4 (1) of International Crimes Act the provisions of the Rome Statute regarding the bringing and determination of proceedings before the ICC; and the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters shall have the force of law in Kenya. In other words, Muthaura, Uhuru, Sang and Ruto are in the same situation as if they were facing murder and rape charges in Kenya. They therefore have no business holding any public office of leadership in this country as long as the charges against them stand.
Sailing in the same boat with Uhuru and Muthaura are William Ruto and Joshua arap Sang who are now, by sheer luck, getting Kenya government protection against Louis Moreno-Ocampo because they happen to be charged by the ICC together with the son of the first President of Kenya Jomo Kenyatta.
But the business of seeking justice has nothing to do with nationalism. Whether the PEV trials take place in Kenya or in The Hague all that should concern us is justice. The manner in which the Kenyan authorities have handled the PEV cases does not convince anyone that justice in Kenya is easier to obtain than at the ICC, all the changes that have taken place in the Judiciary and in the public prosecution office notwithstanding.
In his desperate effort to get the Uhuru case brought back to Kenya, in order to let the Kikuyu Presidential candidate free, Kibaki has ordered the Attorney General, Githu Muigai, to appoint a team of experts to “advise” the Government on the latest development at The Hague. The team is expected to recommend that another attempt be made to try and get the case returned to Kenya from the Netherlands.The first attempt made by Kibaki last year flopped miserably.
A lot of Kenyan taxpayers’ money will be used to pay the team composed of Sir Geoffrey Nice, Mr Rodney Dixon, Dr. Godfrey Musila , Mr Fred Ojiambo, Mr Joe Okwach, Mr Waweru Gatonye, Ms Betty Murungi, Ms Lucy Kambuni, Ms Grace Wakio and Dr Henry Mutai with a secretariat composed of Mr Ahmed Mohamed and Ms Caroline Wamaitha.
Though the team is made up of some of the best lawyers in this country, it is headed by British lawyers who will only do what their clients have ask them to, namely to see how the case can be brought back to Kenya from The Hague.
The money used to pay these lawyers should have been used to resettle the IDPs still suffering in their own country as landless people. The most shocking truth is the fact that the IDPs actually own farms which are now occupied by criminals responsible for the mayhem that this country went through after the 2007 elections.
Needless to say, in the unlikely event of the Uhuru case getting transferred back to Kenya, then Uhuru, Muthaura, Ruto and Sang will be set free despite all the noise being made about changes that have taken place in the Judiciary.
Chief Justice Willy Mutunga could have all the best intentions in the world in establishing special courts to try the four accused; but once the courts are established no one will appear before them as Keriako Tobiko will never betray the establishment by prosecuting Uhuru Kenyatta.
Besides that, Kibaki has never really been interested in justice. If he wanted justice to be seen to be done, then he would have ordered Uhuru and Muthaura to step down until the two are found innocent after the trial in the Netherlands. The team of highly respected lawyers hired by Kibaki can do very little to influence the court at the ICC. All they can do is issue a statement that will please Kibaki and his kitchen cabinet.
No matter how good lawyers are they always serve their masters and the master of the team appointed by Kibaki is Kibaki himself. He expressed his wishes the moment he opened his mouth to comment on the indictments of the four Kenyan suspects last Monday when he told the whole country that while the ICC process was underway, Kenya had enacted a new Constitution which substantially enhanced the capacity of the country’s criminal justice system and made great strides in the reform within the system in the administration of justice.
Those words clearly indicated what the President wished the team to do. Whatever recommendation it makes to the Government, it has to bear in mind that Kenya, in the words of the President, now has a “radically transformed judiciary, an independent office of the Director of Public Prosecutions, a police service that is being fundamentally reformed and a functional witness protection agency.” According to Kibaki it is now the collective responsibility of all these institutions to ensure justice for all at all times.
If the President meant every word he said he would have instructed his Deputy Prime Minister, Uhuru Kenyatta, and his Head of the Civil Service , Francis Muthaura , to step aside until the moment the ICC has found them to be no longer suspects after being proved innocent through the appeal of the ICC ruling or the full trial. William Ruto should also resign his parliamentary seat as the MP for Eldoiret North.
Their continued occupation of public offices goes against the spirit of our Constitution which says in Article 73 (1) that authority assigned to a State officer is a public trust to be exercised in a manner that is consistent with the purposes and objects of the new Constitution. It says that that authority must demonstrate respect for the people; and bring honour to the nation and dignity to the office. No one can be charged with serious crimes, which include murder and rape, before the International Criminal Court and still claim to bring dignity to the public office he or she holds. Ruto, Uhuru and Muthaura cannot claim to be promoting public confidence in the integrity of the offices they hold. The sooner they are asked to resign the better for Kenya’s integrity both locally and internationally.
According to President Kibaki, Kenya has had its share of challenging times. He said on these occasions, we have re-examined our national conscience and moved forward together. According to him we continue to do so. But how can we continue to do so when people who are obviously suspected of committing very serious crimes are being protected by the Government against the will of the people who would like to see justice done in The Hague?
It is only after the ICC ruling which indicted the four Kenyans that Kibaki started talking of re-dedicating ourselves to assist those who were displaced from their homes. For four years the Government has done nothing to make sure that the displaced people returned to their farms in the Rift Valley. Today William Ruto talks of peace and reconciliation but what has he done to tell his Kalenjin people to allow other Kenyans conduct business peacefully on their farms in the Rift Valley?
Kibaki has directed all relevant government ministries to fast track the resettlement of the remaining Internally Displaced Persons. Why should people who already own farms in Kenya be resettled elsewhere when their farms still exist? Kibaki called to all Kenyans to “search our national conscience, re-dedicate ourselves to a true sense of national reconciliation and forgiveness.” Kenyans will believe him when his Government does something to take back all the non Kalenjin to their old farms now illegally occupied by criminals.
For some very strange reasons the statement by Mwai Kibaki seems to contradict another statement which he jointly issued with the Prime Minister on November 5, 2007 when the two jointly said that they had a constructive meeting with Mr Louis Moreno- Ocampo. According to the statement they issued, the discussions were candid and frank. Mr Moreno-Ocampo had explained to Raila and Kibaki his mandate and how he intended to execute that mandate.
At that time Kibaki said the Government remained fully committed to discharge its primary responsibility in accordance with the Rome Statute to establish a local judicial mechanism to deal with the perpetrators of the post-election violence. In addition, the Government remained committed to cooperate with ICC within the framework of the Rome Statute and the International Crimes Act. For reasons well known to everyone Kenya did not succeed in establishing a relevant court to try the suspects; that is why it ended up in The Hague.
According to Section 4 (1) of International Crimes Act the provisions of the Rome Statute regarding the bringing and determination of proceedings before the ICC; and the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters shall have the force of law in Kenya. In other words, Muthaura, Uhuru, Sang and Ruto are in the same situation as if they were facing murder and rape charges in Kenya. They therefore have no business holding any public office of leadership in this country as long as the charges against them stand.
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