President Mwai Kibaki’s nominations of four highly qualified Kenyan personalities for the positions of the Chief Justice, the Attorney General, the Director of Public Prosecution and Controller of Budget are extremely controversial. He has made them without consulting the Prime Minister as it is required by the new Constitution.
No one can claim that the nomination of Alnashir Visram for the post of the country’s next Chief Justice was a mistake because the appellate Judge is not only respected among his peers but he also happens to be highly qualified. The President can also not be accused of selecting a misfit for the position of the Attorney General since Professor Githu Muigai is an extremely respected lawyer both in legal and academic circles.
In terms of qualifications and experience the President made the right choice when he nominated Kioko Kilukumi for the position of the Director of Public Prosecutions because the nominee has very impressive credentials. No one can quarrel with the President’s choice of William Kirwa as the country’s Controller of Budget because Kirwa is also a highly qualified person.
Good as Kibaki’s choices are, however, they fall short of following the constitutional requirements which demand that he consults with the Prime Minister before he makes such appointments. As far as the appointment of the Chief Justice is concerned he has not only to consult with the Prime Minister but he has also got to involve the Judicial Service Commission. According to Article 166 (1) of the new Constitution the President shall appoint the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly.
When the country was wondering whether the Justice Alnashir Visram was recommended to the President by the Judicial Service Commission or whether he still had to be vetted by the Commission before taking over the top job after his clearance by Parliament, the JSC dropped a bombshell by rejecting Kibaki’s nominations. That rejection may make it extremely difficult for Speaker Kenneth Marende to allow the debate on Kibaki’s nominations to be tabled in Parliament before it is absolutely clear that the two principals see eye to eye on that matter.
The move by the JSC is particularly harmful to the President because the current Chief Justice, Evan Gicheru, chaired the meeting that nullified the nominations. At the meeting was the current Attorney General, Amos Wako. This makes the rejection of the President’s nominations even more credible. No sooner did JSC reject Kibaki’s nomination than the Chairman of Parliament’s Justice and Legal Affairs Committee, Ababu Namwamba, vowed never to table the nominations in Parliament for MPs to approve or disapprove unless the constitutional procedure was strictly followed by the President.
To make matters worse the Committee on Implementation of the Constitution (CIC) took a similar firm stand against the President, making the nominations illegal. If Kibaki decides to go to court to demand his nominations to be recognized by the law, the chances are that his demands would be rejected. Not even his own Attorney General supports him on this matter.
If, in an unlikely event, the Speaker allows the vetting of the nominees by the MPs to go ahead despite the controversy surrounding the whole exercise, Parliament is likely to approve the nominations since the KKK in National Assembly are now the majority in the House. As Parliament examines President’s nominees, eyebrows will inevitably be considerably raised by the sheer coincidence of the selected personalities’ ethnic origin.
Ether coincidentally or deliberately Kibaki nominated Muigai, a Kikuyu, Kilukumi, a Kamba and Kirwa, a Kalenjin for the top Constitutional positions. Whether the respected nominated personalities sympathize with, or have any respect for, the KKK leadership Kenyans are likely to perceive the nominations as Kibaki’s deliberate maneuvering tactic to get the KKK support in Parliament for his nomination. Kibaki is certain to get that support from the majority of Parliamentarians because of his selection’s ethnic background rather than for the fact that they are highly qualified people.
If Marende allows the nomination debate to take place the KKK’s power in Parliament will be put to test with a likelihood of bloc voting to prove the tribal group is a power to reckon with. Kibaki’s selection is sure to go through. If that happens, Muigai and Kirwa may have no choice as judicial officers but to step down as their nominations have been rejected by the JSC. As for Alnashir Visram whose appointment as the country’s next Chief Justice depends on the recommendation of the JSC, he has no option but to reject Kibaki’s offer. This means, whether Kibaki likes it or not, he will have to consult Raila Odinga once more on the appointment of the Chief Justice.
Without the new Chief Justice in office there can be no hope of ever deferring the Kenyan case now pending in The Hague. It is a shame that the country can be bogged down on semantics of consultation. KKK claims the mere mentioning of the subject of nominations of top Constitutional positions by the President to the Prime Minister amounts to consulting him. This is regardless of the PM’s acceptance or rejection of the President’s choices which may even be made in a casual manner.
As the Prime Minister argues with the stubborn KKK over the legal meaning of the term “consultation” the country knows that both Raila and Kibaki cannot be right. One of them must be wrong. Whereas the now powerful KKK in Parliament supports the President’s interpretation, the law and the people of Kenya support the Prime Minister.
On the issue of new appointments the new Constitution is very clear. It says in Section 29 (2) of Transitional and Consequential Provisions of the Sixth Schedule that the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.
If there is any law that puts the whole argument about the meaning of the word “consultation” as it is used in the new Constitution to rest, that law is the National Accord and Reconciliation Act of 2008, which unambiguously says that the coalition must be a partnership with commitment on both sides to govern together and push through the reform agenda for the benefit of all Kenya. Yet there is absolutely nothing that threatens the reform agenda, and indeed also threatens the implementation of the new Constitution, as the KKK.
According to Prime Minister Raila Odinga and Justice Minister Mutula Kilonzo KKK’s main objective is to work against the new Constitution by making sure it will never be implemented in its present form. The two are just confirming the suspicion of many pundits who predicted that the opponents of the new Constitution would try to use Parliament to frustrate its implementation efforts.
Among the most authoritative sources of that prediction was the Kenya National Dialogue and Reconciliation (KNDR) Review Report of October last year which warned that anti-reformers could sabotage the implementation process. The report said the anti reformers had regrouped and formed political and bureaucratic alliances to frustrate the reform process. It said in the run up to the referendum, the anti-reformers had buttressed the numbers of the undecided (colloquially referred to as ‘water melons’ to denote people who were green for Yes, and red for No).
Because of the passion with which such groups protect self-interests, said the report ,it is possible that they will use the bureaucracy and their political influence to develop legislation of a low standard or ensure that proposed legislation protects the status quo. The KNDR then called for vigilance because the anti-reform forces including the ‘water melons’ could take over the implementation of the Constitution. If they do, KNDR warned, the old order will prevail, and the country will revert from a reform mode to ‘business as usual’.
Monday, January 31, 2011
Sunday, January 23, 2011
Kibaki’s strange relation with KKK
The so called reconciliation rally attended by President Mwai Kibaki as the guest of honour in Eldoret on 21st January 2011 was an eye opener to most Kenyans. It exposed the Head of State as a clandestine supporter of the KKK. Apart from that it also showed him as a very gullible victim of tribal nationalism which makes him harbour very unusual relationship with the KKK. Either way the rally told Kenyans that efforts to make the next general election a tribal affair have now taken a new dimension with the support of a very powerful section of the coalition Government.
If ever Kenyans fall into the KKK trap and organize themselves along tribal lines for the next year’s general elections then the danger of ending up with yet another tribal confrontation, with the consequences of real bloodbath which will probably be worse than what the country saw in 2007-08, are very real. Fortunately the Eldoret rally was seen by most Kenyans as a futile attempt to balkanize the country tribally to benefit the political class that has dominated Kenya for almost half a century.
What is more, the Eldoret rally had absolutely nothing to do with reconciliation between the Kikuyus and Kalenjins. It was a deceitful game of building castles in the air through creating an imaginary political smokescreen of Kenya being led by Uhuru Kenyatta as the new President and William Ruto as his Deputy or vice versa.
Everyone present knew the game was simply a fictitious ploy to hoodwink the people of Kenya and especially the Kikuyus and Kalenjins to make them not face some fundamental problems confronting them. To being with the wounds caused by the post election violence between the two tribes are still fresh and far from showing any signs of healing. The animosity runs extremely deep with hundreds of thousands of Kikuyu IDPs languishing in ramshackle tents made of torn canvas and plastic waste.
These are people who, before the post election clashes, lived very comfortably in their well developed farms now being occupied by Kalenjins who took the land from the Kikuyus through the most barbaric methods which included mass murders, rape and arson. Kikuyus, on the other hand, organized themselves through the Mungiki gangster militia that hit back at the Kalenjins in more or less the same barbaric method. That is why Ruto and Uhuru are today wanted by Luis Moreno-Ocampo in The Hague.
When politicians meet in public rallies such as the one in Eldoret and talk about Kalenjin –Kikuyu reconciliation they know very well that a lot more needs to be done apart from Kenyatta and Ruto holding hands on a political platform in front of the Head of State. Unless the Kikuyus are given back their farms they will never forgive the Kalenjins. Yet the Kalenjins believe the land they took from the Kikuyus was and still is their own ancestral property.
The problem between the Kalenjins and Kikuyus could only be solved through a properly functioning TJRC which would lay all the cards on the table before suggesting a solution. Unfortunately the TJRC is itself almost dead because it started on a wrong footing with an unacceptable Bethwel Kiplagat as its chairman. Without a proper TJRC, animosity between communities can only be solved through pretentious games of dramatic tragicomedies such as the one witnessed in Eldoret last Friday.
At the Eldoret rally Ruto and all his Kalenjin MPs knew very well that they would never welcome back the Kikuyus in the farms now occupied by their people, despite the fact that Kibaki’s main goal of going to the rally was to get his Kikuyu people back to their farms. On the other hand, Kibaki also knew very well that he would never accept William Ruto back into his Cabinet when he is a wanted criminal both locally and internationally. Yet Kalenjins’ conditionality of having the Kikuyus back to their farms was to have Ruto back in the Cabinet. The mutual arm-twisting between the Kalenjins and the President complicated the deceitful game at the Eldoret rally.
Apart from the ridiculous game of public pretense to solidify the unity in KKK, that tribal organization is facing an extremely serious legal problem. It is, in fact, for all practical purposes, a prohibited illegal organization. The Constitution does not allow the existence of such a dogmatically intolerant entity to survive camouflaged as a political group. That is why its leaders are in a terrible panic. They are hurriedly trying to establish an acceptable political body to replace it.
As seasoned politicians the leaders of the intolerable KKK, Uhuru Kenyatta, Kalonzo Musyoka and William Ruto, have read the writing on the wall and realized that their tribal institution is facing a massive rejection by the people. The move to get a new political party established before next year’s presidential election is itself faced with a subterranean divisive threat. Whose political party will be acceptable to all the three leaders?
Ruto is planning to move to the little known United Democratic Movement (UDM) while Uhuru has just announced a move to register the so called PNU Alliance, which brings together the same people who are in the almost dead old PNU, which includes Kalonzo Musyoka’s ODM-K. The possible unity between UDM, ODM-K and PNU Alliance will probably be the new face of the KKK, which is bound to face the same misfortune of total rejection by the people of Kenya because it will not have changed anything in the tribal aspirations of the rejected KKK.
Whatever the three musketeers of the KKK do they have a major problem of establishing an acceptable political vehicle with which to confront Raila’s Odinga’s formidable ODM. Long before that vehicle has been established a number of major hurdles appear to be confronting the three tribal kingpins of the KKK. First they have to obey the law; and the law is now governed by the new Constitution which has very strict requirements to be followed by those who want to establish credible national political parties in this country.
According to Article 38 of the new Constitution every citizen is free to make political choices, which includes the right to form, or participate in forming, a political party; to participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause. If that was all that the new constitution said about political parties, in the Bill of Rights, then the KKK leaders would have had a field day in continuing to confuse Kenyans by forming all sorts of political parties just before elections in order to attract people along tribal lines.
Indeed that is how both PNU and ODM-K were formed. Whereas the former is a party of the Kikuyus, Embus and Merus of the Mount Kenya region, the later is certainly a party of the Kamba people. The drafters of the new Constitution led by Nzamba Kitonga knew very well that the right to form political parties had to be included in the Bill of Rights. But they also knew that that right could be abused by the political class in Kenya that has all the time survived through ownership of such tribal political parties.
To solve that serious problem that indeed went against the very spirit of proper Bills of right, the drafters of the new constitution came up with very wonderful protection of the people’s rights in Chapter Seven on Representation of the people. Nzamba Kitonga and his team saved the people of Kenya through Article 91 of the new Constitution which demands every political party in the new Kenya to have a national character as prescribed by an Act of Parliament.
The new Constitution demands political parties to have a democratically elected governing body; promote and uphold national unity; abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; respect the right of all persons to participate in the political process, including minorities and marginalized groups. All these are qualities which lacked in almost all political parties in Kenya except the ODM, which has also got an uphill task of shedding off the stigma that it personally belongs to Raila Odinga.
The new Constitution demands all political parties to respect and promote human rights and fundamental freedoms, and gender equality and equity; promote the rule of law; and subscribe to and observe the code of conduct for political parties. The new Constitution categorically prohibits political parties that are founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis. According to the new Constitution, therefore, the KKK itself would be a prohibited organization.
That is obviously one of the reasons for the rush to form political parties that appear to be national when in reality they will be well known tribal associations no different from the KKK. Apart from everything else Article 77(2) of the new Constitution states any appointed State officer shall not hold office in a political party. If KKK wins the next general lection and Uhuru Kenyatta and William Ruto become the country’s new President and Deputy President they will not be allowed to hold office in a political party. Even if, in the unlikely event, Uhuru and Ruto end up to be the President and Vice President of Kenya the tribal parties that will put them in power will be in fact without any nationally recognized leaders. A very terrible eventuality to imagine!
If ever Kenyans fall into the KKK trap and organize themselves along tribal lines for the next year’s general elections then the danger of ending up with yet another tribal confrontation, with the consequences of real bloodbath which will probably be worse than what the country saw in 2007-08, are very real. Fortunately the Eldoret rally was seen by most Kenyans as a futile attempt to balkanize the country tribally to benefit the political class that has dominated Kenya for almost half a century.
What is more, the Eldoret rally had absolutely nothing to do with reconciliation between the Kikuyus and Kalenjins. It was a deceitful game of building castles in the air through creating an imaginary political smokescreen of Kenya being led by Uhuru Kenyatta as the new President and William Ruto as his Deputy or vice versa.
Everyone present knew the game was simply a fictitious ploy to hoodwink the people of Kenya and especially the Kikuyus and Kalenjins to make them not face some fundamental problems confronting them. To being with the wounds caused by the post election violence between the two tribes are still fresh and far from showing any signs of healing. The animosity runs extremely deep with hundreds of thousands of Kikuyu IDPs languishing in ramshackle tents made of torn canvas and plastic waste.
These are people who, before the post election clashes, lived very comfortably in their well developed farms now being occupied by Kalenjins who took the land from the Kikuyus through the most barbaric methods which included mass murders, rape and arson. Kikuyus, on the other hand, organized themselves through the Mungiki gangster militia that hit back at the Kalenjins in more or less the same barbaric method. That is why Ruto and Uhuru are today wanted by Luis Moreno-Ocampo in The Hague.
When politicians meet in public rallies such as the one in Eldoret and talk about Kalenjin –Kikuyu reconciliation they know very well that a lot more needs to be done apart from Kenyatta and Ruto holding hands on a political platform in front of the Head of State. Unless the Kikuyus are given back their farms they will never forgive the Kalenjins. Yet the Kalenjins believe the land they took from the Kikuyus was and still is their own ancestral property.
The problem between the Kalenjins and Kikuyus could only be solved through a properly functioning TJRC which would lay all the cards on the table before suggesting a solution. Unfortunately the TJRC is itself almost dead because it started on a wrong footing with an unacceptable Bethwel Kiplagat as its chairman. Without a proper TJRC, animosity between communities can only be solved through pretentious games of dramatic tragicomedies such as the one witnessed in Eldoret last Friday.
At the Eldoret rally Ruto and all his Kalenjin MPs knew very well that they would never welcome back the Kikuyus in the farms now occupied by their people, despite the fact that Kibaki’s main goal of going to the rally was to get his Kikuyu people back to their farms. On the other hand, Kibaki also knew very well that he would never accept William Ruto back into his Cabinet when he is a wanted criminal both locally and internationally. Yet Kalenjins’ conditionality of having the Kikuyus back to their farms was to have Ruto back in the Cabinet. The mutual arm-twisting between the Kalenjins and the President complicated the deceitful game at the Eldoret rally.
Apart from the ridiculous game of public pretense to solidify the unity in KKK, that tribal organization is facing an extremely serious legal problem. It is, in fact, for all practical purposes, a prohibited illegal organization. The Constitution does not allow the existence of such a dogmatically intolerant entity to survive camouflaged as a political group. That is why its leaders are in a terrible panic. They are hurriedly trying to establish an acceptable political body to replace it.
As seasoned politicians the leaders of the intolerable KKK, Uhuru Kenyatta, Kalonzo Musyoka and William Ruto, have read the writing on the wall and realized that their tribal institution is facing a massive rejection by the people. The move to get a new political party established before next year’s presidential election is itself faced with a subterranean divisive threat. Whose political party will be acceptable to all the three leaders?
Ruto is planning to move to the little known United Democratic Movement (UDM) while Uhuru has just announced a move to register the so called PNU Alliance, which brings together the same people who are in the almost dead old PNU, which includes Kalonzo Musyoka’s ODM-K. The possible unity between UDM, ODM-K and PNU Alliance will probably be the new face of the KKK, which is bound to face the same misfortune of total rejection by the people of Kenya because it will not have changed anything in the tribal aspirations of the rejected KKK.
Whatever the three musketeers of the KKK do they have a major problem of establishing an acceptable political vehicle with which to confront Raila’s Odinga’s formidable ODM. Long before that vehicle has been established a number of major hurdles appear to be confronting the three tribal kingpins of the KKK. First they have to obey the law; and the law is now governed by the new Constitution which has very strict requirements to be followed by those who want to establish credible national political parties in this country.
According to Article 38 of the new Constitution every citizen is free to make political choices, which includes the right to form, or participate in forming, a political party; to participate in the activities of, or recruit members for, a political party; or to campaign for a political party or cause. If that was all that the new constitution said about political parties, in the Bill of Rights, then the KKK leaders would have had a field day in continuing to confuse Kenyans by forming all sorts of political parties just before elections in order to attract people along tribal lines.
Indeed that is how both PNU and ODM-K were formed. Whereas the former is a party of the Kikuyus, Embus and Merus of the Mount Kenya region, the later is certainly a party of the Kamba people. The drafters of the new Constitution led by Nzamba Kitonga knew very well that the right to form political parties had to be included in the Bill of Rights. But they also knew that that right could be abused by the political class in Kenya that has all the time survived through ownership of such tribal political parties.
To solve that serious problem that indeed went against the very spirit of proper Bills of right, the drafters of the new constitution came up with very wonderful protection of the people’s rights in Chapter Seven on Representation of the people. Nzamba Kitonga and his team saved the people of Kenya through Article 91 of the new Constitution which demands every political party in the new Kenya to have a national character as prescribed by an Act of Parliament.
The new Constitution demands political parties to have a democratically elected governing body; promote and uphold national unity; abide by the democratic principles of good governance, promote and practise democracy through regular, fair and free elections within the party; respect the right of all persons to participate in the political process, including minorities and marginalized groups. All these are qualities which lacked in almost all political parties in Kenya except the ODM, which has also got an uphill task of shedding off the stigma that it personally belongs to Raila Odinga.
The new Constitution demands all political parties to respect and promote human rights and fundamental freedoms, and gender equality and equity; promote the rule of law; and subscribe to and observe the code of conduct for political parties. The new Constitution categorically prohibits political parties that are founded on a religious, linguistic, racial, ethnic, gender or regional basis or seek to engage in advocacy of hatred on any such basis. According to the new Constitution, therefore, the KKK itself would be a prohibited organization.
That is obviously one of the reasons for the rush to form political parties that appear to be national when in reality they will be well known tribal associations no different from the KKK. Apart from everything else Article 77(2) of the new Constitution states any appointed State officer shall not hold office in a political party. If KKK wins the next general lection and Uhuru Kenyatta and William Ruto become the country’s new President and Deputy President they will not be allowed to hold office in a political party. Even if, in the unlikely event, Uhuru and Ruto end up to be the President and Vice President of Kenya the tribal parties that will put them in power will be in fact without any nationally recognized leaders. A very terrible eventuality to imagine!
Monday, January 17, 2011
Raila’s chances to remain at the top
As the most popular politician in Kenya who stands the greatest chances to succeed Mwai Kibaki as the country’s next President, Raila Odinga, has very serious choices to make to remain at the top. First he has to prove to the people that he genuinely opposes corruption, which has been a major stumbling bloc to the country’s social, political and economic progress. Then he has also got to prove that he has nothing to do with tribalism, the one quality of leadership that has created more problems for Kenya than it has solved. And lastly he has to prove to the people that he truly believes in justice for all Kenyans and not just for the privileged class.
For Raila to prove that he sincerely opposes all forms of corruption he must stop all the junior ranking members of his political party, ODM, from attacking Dr. P.L.O Lumumba’s commendable efforts to fight corruption. The threat from ODM’s junior MPs to disband the KACC if it doesn’t expose the corrupt PNU leaders the way it has exposed the ODM ones is seen as originating from Raila himself who obviously would not like his party to be seen as the only corrupt one in the country.
But if Raila wants to continue getting the support of the common mwananchi, he must be seen to fight corruption in all its forms, even if it exits in his own party. Raila’s popularity will shoot up to the ceiling if he is seen to support Lumumba’s efforts by publicly warning all ODM top leaders to step down from all public offices , even the offices held in the party, the moment they are suspected by Lumumba to be corrupt.
If he takes such a stern measure against corrupt leaders in his own party and the Ministries administered by ODM politicians, then he will have the moral obligation to loudly ask the suspected PNU corrupt leaders to follow the ODM example. Right now he should be among the first Kenyan leaders to ask Charity Ngilu to step aside while Lumumba is subjecting her to his investigation.
Rather than appearing to oppose Lumumba’s efforts through uncalled for threats, he should be addressing the country both as the ODM leader and the Prime Minister by solemnly undertaking to never tolerate corruption in all its ways, shapes or forms now and in future. That way he will be telling Kenya the kind of President he will be when he takes over from Mwai Kibaki.
Rather than appearing to orchestrate the unnecessary shadow boxing against Lumumba’s good work the Prime Minister should be making sure all the people working under his leadership, whether in the ODM or the Government, exercise their duties in the spirit of the new Constitution’s Chapter Six on leadership and integrity. He should be calling up on all leaders in all political parties and indeed all public offices to demonstrate respect for the people and bring honour to the nation and dignity to the offices they hold just as the new Constitution calls for.
To remain on top of the ladder of popularity Raila has also got to emphatically condemn tribalism in the country, which is threatening to balkanize the nation into hostile ethnic cocoons seeking political powers through tribal unity rather than through ideological conviction. Kenyans know very well that whenever tribal nationalism triumphs, bloodshed follows along the pattern of ethnic clashes that followed the messed up 2007 elections. Whenever Kenyans agree to be manipulated by tribal chauvinists, they end up picking up pangas, bows and arrows in defence of people who have no interest of this country at heart.
The blood Kenyans poured for the sake of the same tribal chauvinists during the post election violence of 2008 has hardly dried up, yet calls are now being made to Kenyans all over again to unite in defence of more or less the same leaders who made people fight only a few years ago. The so called leaders have no shame what so ever when they openly talk of the KKK alliance that is expected to bring the Kikuyus , Kambas and Kalenjin people together to help the same chauvinistic leaders remain in power without going through a proper democratically organized free and fair election.
Kalonzo Musyoka of ODM-Kenya , William Ruto of ODM and Uhuru Kenyatta of Kanu are hoodwinking the Kikuyu, Kamba and Kalenjin people that they want to unite them to form the next Government whose main purpose is to fight against Prime Minister Raila Odinga. They don’t tell the people of Kenya what political platform will bring them and their followers together.
Kalonzo has made the Kamba people believe ODM-K is their political party, Uhuru Kenyatta leads Kanu without Kikuyu followers who belong to all sorts of political parties under the umbrella of PNU and Ruto is the Deputy Leader of ODM where he feels like a square peg in a round whole and from where he wants to pull out all the Kalenjins. Though he has not publicly announced his next political move, it is believed he intends to take all the Kalenjins into an amorphous organization called United Democratic Movement (UDM) which he dreams will be his political ladder into the future leadership of this country.
Kenyans know very little of UDM. They have not seen any election manifesto from it. They don’t know its policy on education, employment or land. All they know is that it will be the main party for the Kalenjin people whose leaders are united to promote two important themes: strong opposition of Raila Odinga’s leadership and the rejection of the new Constitution of Kenya.
Modern day Kenya is crying for a political party based on an ideology that clearly and unambiguously supports the constitution that has just been promulgated. The dream of Kenyans’ future leadership is based on principles found in their new constitution which they have just overwhelmingly endorsed. Raila Odinga’s chances of taking over the leadership of Kenya after that of Mwai Kibaki depend entirely on how strongly he opposes tribalism and supports the democratic principles enshrined in the new constitution.
It so happens that Raila has just announced his party ODM intends to hold countrywide grassroots elections. His continued popularity and the people’s continued acceptance of his party will depend entirely on how free and fair those grass-root elections will be. If his party seeks the assistance of the IIEC to organize truly free and fair elections, totally based on ideology and party manifesto whereby leaders are chosen on the basis of their ability to interpret these principles, rather than on the basis of which tribe or clan they belong to, the popularity of the party among all Kenyans is guaranteed. That single move by the Prime Minister is bound to prove to the wananchi that he indeed is the statesman they have always suspected him to be.
Last but not least Raila’s position as the future President of Kenya will be guaranteed by his unwavering stand for justice for all Kenyans. This he can do by unequivocally supporting Luis Moreno-Ocampo’s move to prosecute people he suspects of having masterminded the post election violence of 2007-08. Indeed, like most democrats, Raila is expected to champion the principle of everyone being innocent until proven guilty.
All the same, as the leader of ODM and the Prime Minister of Kenya, he should be among the first to demand that anyone who has been mentioned by Moreno-Ocampo should resign from all the party or public offices they hold. The individuals named by Moreno-Ocampo are going to be prosecuted in The Hague in their individual capacity and not as holders of either public or party offices.
If it is true, like Moreno-Ocampo would have us believe, they actually masterminded the bloodbath that followed the 2007 elections, then they acted against the well known principles of ODM and the Government. Parties and Governments do not plan mass murders, individuals do. And when they do so, they go against the well known party or Government principles. When a policeman is trigger happy and shoots to kill, he is committing a crime as an individual. If he is doing so as a result of obeying orders given to him by a superior officer then that superior officer is equally guilty individually.
As a political party ODM has no known principle of solving its problems through mass murders and arson. If there is an individual within the party who planned such criminal activities then he, as an individual, should answer charges against him at the ICC. Kenyans know that very serious crimes were committed in this country following the 2007 disputed presidential elections. Whether those crimes amount to crimes against humanity Moreno-Ocampo should be the one to prove before the ICC. He is convinced he has enough evidence and he is also backed by the majority of Kenyans and Raila Odinga should be one of those Kenyans if he really wants to be the next President of this great nation.
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For Raila to prove that he sincerely opposes all forms of corruption he must stop all the junior ranking members of his political party, ODM, from attacking Dr. P.L.O Lumumba’s commendable efforts to fight corruption. The threat from ODM’s junior MPs to disband the KACC if it doesn’t expose the corrupt PNU leaders the way it has exposed the ODM ones is seen as originating from Raila himself who obviously would not like his party to be seen as the only corrupt one in the country.
But if Raila wants to continue getting the support of the common mwananchi, he must be seen to fight corruption in all its forms, even if it exits in his own party. Raila’s popularity will shoot up to the ceiling if he is seen to support Lumumba’s efforts by publicly warning all ODM top leaders to step down from all public offices , even the offices held in the party, the moment they are suspected by Lumumba to be corrupt.
If he takes such a stern measure against corrupt leaders in his own party and the Ministries administered by ODM politicians, then he will have the moral obligation to loudly ask the suspected PNU corrupt leaders to follow the ODM example. Right now he should be among the first Kenyan leaders to ask Charity Ngilu to step aside while Lumumba is subjecting her to his investigation.
Rather than appearing to oppose Lumumba’s efforts through uncalled for threats, he should be addressing the country both as the ODM leader and the Prime Minister by solemnly undertaking to never tolerate corruption in all its ways, shapes or forms now and in future. That way he will be telling Kenya the kind of President he will be when he takes over from Mwai Kibaki.
Rather than appearing to orchestrate the unnecessary shadow boxing against Lumumba’s good work the Prime Minister should be making sure all the people working under his leadership, whether in the ODM or the Government, exercise their duties in the spirit of the new Constitution’s Chapter Six on leadership and integrity. He should be calling up on all leaders in all political parties and indeed all public offices to demonstrate respect for the people and bring honour to the nation and dignity to the offices they hold just as the new Constitution calls for.
To remain on top of the ladder of popularity Raila has also got to emphatically condemn tribalism in the country, which is threatening to balkanize the nation into hostile ethnic cocoons seeking political powers through tribal unity rather than through ideological conviction. Kenyans know very well that whenever tribal nationalism triumphs, bloodshed follows along the pattern of ethnic clashes that followed the messed up 2007 elections. Whenever Kenyans agree to be manipulated by tribal chauvinists, they end up picking up pangas, bows and arrows in defence of people who have no interest of this country at heart.
The blood Kenyans poured for the sake of the same tribal chauvinists during the post election violence of 2008 has hardly dried up, yet calls are now being made to Kenyans all over again to unite in defence of more or less the same leaders who made people fight only a few years ago. The so called leaders have no shame what so ever when they openly talk of the KKK alliance that is expected to bring the Kikuyus , Kambas and Kalenjin people together to help the same chauvinistic leaders remain in power without going through a proper democratically organized free and fair election.
Kalonzo Musyoka of ODM-Kenya , William Ruto of ODM and Uhuru Kenyatta of Kanu are hoodwinking the Kikuyu, Kamba and Kalenjin people that they want to unite them to form the next Government whose main purpose is to fight against Prime Minister Raila Odinga. They don’t tell the people of Kenya what political platform will bring them and their followers together.
Kalonzo has made the Kamba people believe ODM-K is their political party, Uhuru Kenyatta leads Kanu without Kikuyu followers who belong to all sorts of political parties under the umbrella of PNU and Ruto is the Deputy Leader of ODM where he feels like a square peg in a round whole and from where he wants to pull out all the Kalenjins. Though he has not publicly announced his next political move, it is believed he intends to take all the Kalenjins into an amorphous organization called United Democratic Movement (UDM) which he dreams will be his political ladder into the future leadership of this country.
Kenyans know very little of UDM. They have not seen any election manifesto from it. They don’t know its policy on education, employment or land. All they know is that it will be the main party for the Kalenjin people whose leaders are united to promote two important themes: strong opposition of Raila Odinga’s leadership and the rejection of the new Constitution of Kenya.
Modern day Kenya is crying for a political party based on an ideology that clearly and unambiguously supports the constitution that has just been promulgated. The dream of Kenyans’ future leadership is based on principles found in their new constitution which they have just overwhelmingly endorsed. Raila Odinga’s chances of taking over the leadership of Kenya after that of Mwai Kibaki depend entirely on how strongly he opposes tribalism and supports the democratic principles enshrined in the new constitution.
It so happens that Raila has just announced his party ODM intends to hold countrywide grassroots elections. His continued popularity and the people’s continued acceptance of his party will depend entirely on how free and fair those grass-root elections will be. If his party seeks the assistance of the IIEC to organize truly free and fair elections, totally based on ideology and party manifesto whereby leaders are chosen on the basis of their ability to interpret these principles, rather than on the basis of which tribe or clan they belong to, the popularity of the party among all Kenyans is guaranteed. That single move by the Prime Minister is bound to prove to the wananchi that he indeed is the statesman they have always suspected him to be.
Last but not least Raila’s position as the future President of Kenya will be guaranteed by his unwavering stand for justice for all Kenyans. This he can do by unequivocally supporting Luis Moreno-Ocampo’s move to prosecute people he suspects of having masterminded the post election violence of 2007-08. Indeed, like most democrats, Raila is expected to champion the principle of everyone being innocent until proven guilty.
All the same, as the leader of ODM and the Prime Minister of Kenya, he should be among the first to demand that anyone who has been mentioned by Moreno-Ocampo should resign from all the party or public offices they hold. The individuals named by Moreno-Ocampo are going to be prosecuted in The Hague in their individual capacity and not as holders of either public or party offices.
If it is true, like Moreno-Ocampo would have us believe, they actually masterminded the bloodbath that followed the 2007 elections, then they acted against the well known principles of ODM and the Government. Parties and Governments do not plan mass murders, individuals do. And when they do so, they go against the well known party or Government principles. When a policeman is trigger happy and shoots to kill, he is committing a crime as an individual. If he is doing so as a result of obeying orders given to him by a superior officer then that superior officer is equally guilty individually.
As a political party ODM has no known principle of solving its problems through mass murders and arson. If there is an individual within the party who planned such criminal activities then he, as an individual, should answer charges against him at the ICC. Kenyans know that very serious crimes were committed in this country following the 2007 disputed presidential elections. Whether those crimes amount to crimes against humanity Moreno-Ocampo should be the one to prove before the ICC. He is convinced he has enough evidence and he is also backed by the majority of Kenyans and Raila Odinga should be one of those Kenyans if he really wants to be the next President of this great nation.
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Saturday, December 18, 2010
ICC exposes Kenyan MPs’ hypocrisy
The majority of Kenyan MPs are hypocrites. They have now come out in their true colours in defence of people suspected of committing very serious crimes against the people of Kenya. The manner in which Kenyan MPs reacted to the ICC’s exposure of the six suspected criminals, who are about to be accused of leading this country to the orgy of murder, rape and bloodbath, proves that most of them are hypocritical pretenders who specialize in cheating the voters of this country.
When talking to the voters of Kenya, the MPs openly cheat by claiming that all they want is to make sure justice will be done to hundreds of thousands of innocent wananchi whose homes were burnt down by organized hooligans in the payroll of shadowy evil political schemers who were out to spread ethnic hatred among the people. While addressing voters at public rallies the MPs swear to leave no stone unturned until the blood of 1,300 Kenyans who perished after the post 2007 election violence is paid for through true justice at The Hague.
They call for justice at The Hague because they have lost confidence in the Judiciary in Kenya. That is why they have twice rejected moves to establish an independent local tribunal to try PEV perpetrators. While doing so they shouted loudly “Don’t be vague, just support the Hague option”.
Now that Luis Moreno-Ocampo has named six suspects whom he is planning to prosecute for planning and financing the PEV, the MPs have changed their minds and now they are determined to save the people named and accuse Moreno-Ocampo of politicizing the entire ICC legal system. They shamelessly accuse Moreno-Ocampo of being in Prime Minister Raila Odinga’s pocket and removing from the Kenyan political contest possible opponents who are likely to oppose the Prime Minister in the 2012 presidential elections
Fortunately the people of Kenya can see through this myopic propaganda which is only meant to defeat all international efforts to make sure that justice is not only done for the poor people of Kenya , but it is actually seen to be done at the world’s most respected International Criminal Court. The people Moreno-Ocampo has named are political giants who will always be the most protected sacred cows of Kenyan politics. As far as the Kenyan laws are concerned the named people can do no wrong and that is why they are now calling for the establishment of a local tribunal to try them.
The accusations that the ICC chief prosecutor has politicized the legal system at The Hague is itself a political plot to protect people who are about to be charged with very serious crimes. Moreno-Ocampo did not just announce the names of the people he suspects to have planned and financed the PEV; he actually elaborated in details the nature of those crimes.
According to the ICC Press Release on the Kenyan case the post election period of 2007-2008 was one of the most violent periods of the nation’s history. The release said the post election attacks left more than 1, 100 people dead, 3,500 injured and up to 600, 000 forcibly displaced. It says during 60 days of violence, there were hundreds of rapes, possibly more, and over 100, 000 properties were destroyed in six of Kenya’s eight provinces.
“These were not just crimes against innocent Kenyans”, said Prosecutor Moreno-Ocampo. “They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice. And Kenyans can pave the way to peaceful elections in 2012.”
The release says the judges of Pre-Trial Chamber II will now review the evidence. If they determine that there are reasonable grounds to believe that the six persons named committed the alleged crimes, they will decide on the most appropriate way to ensure their appearance in Court. The Prosecution has requested Summonses to Appear.
According to the majority of the people of Kenya these are the right steps to be taken to make sure that justice is seen to be done. In a public opinion research conducted by the respected Ifrotrak Research and Consulting, which is a member of Harris Interactive Global Network, slightly more than half of Kenyans reported their satisfaction with the ICC list. The results of the polls showed that 55 % of the people in the rural areas, which are the majority of Kenyans, are satisfied with the Moreno-Ocampo list. Whereas 47% of those in urban areas were satisfied with the list, only 39 % of those in urban areas were not satisfied with the list.
Kenyans know that Moreno-Ocampo has no political axe to grind in this country. According to the respected prosecutor William Samoei Ruto and Henry Kiprono Kosgey who are prominent leaders of the ODM began as early as December 2006, preparing a criminal plan to attack those identified as supporters of the Party of National Unity (“PNU”). He says Joshua arap Sang, whom he describes as a prominent ODM supporter, was a crucial part of the plan, using his radio program to collect supporters and provide signals to members of the plan on when and where to attack.
Moreno-Ocampo says to reach their goal, Ruto, Kosgey and Sang coordinated a series of actors and institutions to establish a network, using it to implement an organizational policy to commit crimes. Their two goals were: to gain power in the Rift Valley Province, Kenya (“Rift Valley”), and ultimately in the Republic of Kenya, and to punish and expel from the Rift Valley those perceived to support the PNU (collectively referred to as “PNU supporters”).
He explains that Kenyans voted in the presidential election on 27 December 2007. On 30th December 2007, the Electoral Commission of Kenya declared that Mwai Kibaki, presidential candidate for the PNU, had won the election. The announcement triggered one of the most violent periods in Kenya’s history. Moreno-Ocampo says the Prosecution will present some of the incidents, identifying those who were most responsible.
He says thousands of members of the network (“perpetrators”) cultivated by Ruto,
Kosgey and Sang began to execute their plan by attacking PNU supporters immediately after the announcement of the presidential election results on 30 December 2007. On December 30 and 31, 2007, they began attacks in target locations including Turbo town, the greater Eldoret area (Huruma, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town. They approached each location from all directions, burning down PNU supporters’ homes and businesses, killing civilians, and systematically driving them from their homes. On January 1, 2008, the church located on the Kiambaa farm cooperative was attacked and burned with more than one hundred people inside. At least 17 people died. The brunt of the attacks continued into the first week of January 2008.
According to the MPs who are opposing Moreno-Ocampo’s prosecution all this is political propaganda to make sure Raila Odinga becomes the next President without being opposed by William Ruto and Uhuru Kenyatta. The MPs forget that the people of Kenya know the story too well. What they didn’t know was who planned the shocking atrocities. Moreno-Ocampo says he knows and he is doing something about it. That is why he has the support of the majority of Kenyans.
About Uhuru Kenyatta, Francis Muthaura and General Hussein Ali, Moreno-Ocampo also makes a number of accusations. He says in response to Ruto, Kosgey and Sang’s planned attacks on PNU supporters, as well as to deal with protests organized by the ODM, prominent PNU and the three developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power.
Moreno-Ocampo says under the authority of the National Security Advisory Committee, of which Muthaura and Ali were Chairman and a member, respectively, the Kenya
Police, in joint operations with the Administration Police (“Kenyan Police Forces”), were deployed into ODM strongholds where they used excessive force against civilian protesters in Kisumu (Kisumu District, Nyanza Province) and in Kibera
(Kibera Division, Nairobi Province).
As a consequence, according to Moreno-Ocampo, between the end of December
2007 and the middle of January 2008, the Kenyan Police Forces indiscriminately shot at and killed more than a hundred ODM supporters in Kisumu and Kibera. He says the three also developed a different tactic to retaliate against the attacks on PNU supporters. On or about 3 January 2008, Kenyatta, as the focal point between the PNU and the Mungiki criminal organization, facilitated a meeting with Muthaura , a senior Government of Kenya official, and Mungiki leaders to organize retaliatory attacks against civilian supporters of the ODM.
Thereafter, according to Moreno-Ocampo, Muthaura, in his capacity as Chairman of the National Security Advisory Committee, telephoned Ali, his subordinate as head of the Kenya Police, and instructed Ali not to interfere with the Mungiki. Kenyatta additionally instructed the Mungiki leaders to attend a second meeting on the same day to finalize logistical and financial arrangements for the retaliatory attacks.
All these are very serious accusations against the six suspects. The only way they can convince Kenyans they did not do what Moreno-Ocampo is accusing them of is to go to The Hague and defend themselves. No amount of noise made by Kenyan MPs will make the wananchi change their minds about the strong belief they have that justice on these crucial matters concerning their country can only come from the Hague.
When talking to the voters of Kenya, the MPs openly cheat by claiming that all they want is to make sure justice will be done to hundreds of thousands of innocent wananchi whose homes were burnt down by organized hooligans in the payroll of shadowy evil political schemers who were out to spread ethnic hatred among the people. While addressing voters at public rallies the MPs swear to leave no stone unturned until the blood of 1,300 Kenyans who perished after the post 2007 election violence is paid for through true justice at The Hague.
They call for justice at The Hague because they have lost confidence in the Judiciary in Kenya. That is why they have twice rejected moves to establish an independent local tribunal to try PEV perpetrators. While doing so they shouted loudly “Don’t be vague, just support the Hague option”.
Now that Luis Moreno-Ocampo has named six suspects whom he is planning to prosecute for planning and financing the PEV, the MPs have changed their minds and now they are determined to save the people named and accuse Moreno-Ocampo of politicizing the entire ICC legal system. They shamelessly accuse Moreno-Ocampo of being in Prime Minister Raila Odinga’s pocket and removing from the Kenyan political contest possible opponents who are likely to oppose the Prime Minister in the 2012 presidential elections
Fortunately the people of Kenya can see through this myopic propaganda which is only meant to defeat all international efforts to make sure that justice is not only done for the poor people of Kenya , but it is actually seen to be done at the world’s most respected International Criminal Court. The people Moreno-Ocampo has named are political giants who will always be the most protected sacred cows of Kenyan politics. As far as the Kenyan laws are concerned the named people can do no wrong and that is why they are now calling for the establishment of a local tribunal to try them.
The accusations that the ICC chief prosecutor has politicized the legal system at The Hague is itself a political plot to protect people who are about to be charged with very serious crimes. Moreno-Ocampo did not just announce the names of the people he suspects to have planned and financed the PEV; he actually elaborated in details the nature of those crimes.
According to the ICC Press Release on the Kenyan case the post election period of 2007-2008 was one of the most violent periods of the nation’s history. The release said the post election attacks left more than 1, 100 people dead, 3,500 injured and up to 600, 000 forcibly displaced. It says during 60 days of violence, there were hundreds of rapes, possibly more, and over 100, 000 properties were destroyed in six of Kenya’s eight provinces.
“These were not just crimes against innocent Kenyans”, said Prosecutor Moreno-Ocampo. “They were crimes against humanity as a whole. By breaking the cycle of impunity for massive crimes, victims and their families can have justice. And Kenyans can pave the way to peaceful elections in 2012.”
The release says the judges of Pre-Trial Chamber II will now review the evidence. If they determine that there are reasonable grounds to believe that the six persons named committed the alleged crimes, they will decide on the most appropriate way to ensure their appearance in Court. The Prosecution has requested Summonses to Appear.
According to the majority of the people of Kenya these are the right steps to be taken to make sure that justice is seen to be done. In a public opinion research conducted by the respected Ifrotrak Research and Consulting, which is a member of Harris Interactive Global Network, slightly more than half of Kenyans reported their satisfaction with the ICC list. The results of the polls showed that 55 % of the people in the rural areas, which are the majority of Kenyans, are satisfied with the Moreno-Ocampo list. Whereas 47% of those in urban areas were satisfied with the list, only 39 % of those in urban areas were not satisfied with the list.
Kenyans know that Moreno-Ocampo has no political axe to grind in this country. According to the respected prosecutor William Samoei Ruto and Henry Kiprono Kosgey who are prominent leaders of the ODM began as early as December 2006, preparing a criminal plan to attack those identified as supporters of the Party of National Unity (“PNU”). He says Joshua arap Sang, whom he describes as a prominent ODM supporter, was a crucial part of the plan, using his radio program to collect supporters and provide signals to members of the plan on when and where to attack.
Moreno-Ocampo says to reach their goal, Ruto, Kosgey and Sang coordinated a series of actors and institutions to establish a network, using it to implement an organizational policy to commit crimes. Their two goals were: to gain power in the Rift Valley Province, Kenya (“Rift Valley”), and ultimately in the Republic of Kenya, and to punish and expel from the Rift Valley those perceived to support the PNU (collectively referred to as “PNU supporters”).
He explains that Kenyans voted in the presidential election on 27 December 2007. On 30th December 2007, the Electoral Commission of Kenya declared that Mwai Kibaki, presidential candidate for the PNU, had won the election. The announcement triggered one of the most violent periods in Kenya’s history. Moreno-Ocampo says the Prosecution will present some of the incidents, identifying those who were most responsible.
He says thousands of members of the network (“perpetrators”) cultivated by Ruto,
Kosgey and Sang began to execute their plan by attacking PNU supporters immediately after the announcement of the presidential election results on 30 December 2007. On December 30 and 31, 2007, they began attacks in target locations including Turbo town, the greater Eldoret area (Huruma, Kimumu, Langas, and Yamumbi), Kapsabet town, and Nandi Hills town. They approached each location from all directions, burning down PNU supporters’ homes and businesses, killing civilians, and systematically driving them from their homes. On January 1, 2008, the church located on the Kiambaa farm cooperative was attacked and burned with more than one hundred people inside. At least 17 people died. The brunt of the attacks continued into the first week of January 2008.
According to the MPs who are opposing Moreno-Ocampo’s prosecution all this is political propaganda to make sure Raila Odinga becomes the next President without being opposed by William Ruto and Uhuru Kenyatta. The MPs forget that the people of Kenya know the story too well. What they didn’t know was who planned the shocking atrocities. Moreno-Ocampo says he knows and he is doing something about it. That is why he has the support of the majority of Kenyans.
About Uhuru Kenyatta, Francis Muthaura and General Hussein Ali, Moreno-Ocampo also makes a number of accusations. He says in response to Ruto, Kosgey and Sang’s planned attacks on PNU supporters, as well as to deal with protests organized by the ODM, prominent PNU and the three developed and executed a plan to attack perceived ODM supporters in order to keep the PNU in power.
Moreno-Ocampo says under the authority of the National Security Advisory Committee, of which Muthaura and Ali were Chairman and a member, respectively, the Kenya
Police, in joint operations with the Administration Police (“Kenyan Police Forces”), were deployed into ODM strongholds where they used excessive force against civilian protesters in Kisumu (Kisumu District, Nyanza Province) and in Kibera
(Kibera Division, Nairobi Province).
As a consequence, according to Moreno-Ocampo, between the end of December
2007 and the middle of January 2008, the Kenyan Police Forces indiscriminately shot at and killed more than a hundred ODM supporters in Kisumu and Kibera. He says the three also developed a different tactic to retaliate against the attacks on PNU supporters. On or about 3 January 2008, Kenyatta, as the focal point between the PNU and the Mungiki criminal organization, facilitated a meeting with Muthaura , a senior Government of Kenya official, and Mungiki leaders to organize retaliatory attacks against civilian supporters of the ODM.
Thereafter, according to Moreno-Ocampo, Muthaura, in his capacity as Chairman of the National Security Advisory Committee, telephoned Ali, his subordinate as head of the Kenya Police, and instructed Ali not to interfere with the Mungiki. Kenyatta additionally instructed the Mungiki leaders to attend a second meeting on the same day to finalize logistical and financial arrangements for the retaliatory attacks.
All these are very serious accusations against the six suspects. The only way they can convince Kenyans they did not do what Moreno-Ocampo is accusing them of is to go to The Hague and defend themselves. No amount of noise made by Kenyan MPs will make the wananchi change their minds about the strong belief they have that justice on these crucial matters concerning their country can only come from the Hague.
Sunday, December 5, 2010
Constitution: Implementation challenges
The implementation of the new Constitution is facing very many serious challenges. These are mostly based on the selfishness of Kenyan leaders who are all expecting to reap all sorts of political benefits from the new Constitution. The majority of them in the ODM have refused to endorse the list of experts to serve in the Commission for the Implementation of the Constitution (CIC) without which the whole implementation process cannot be operationalised.
The reason given by the ODM for this obvious sabotage of the implementation process are not convincing enough. They claim they cannot endorse the list of experts before the Ligale recommendation of 80 new parliamentary constituencies has been published. Yet the Ligale recommendation cannot be published as a court injunction by PNU MPs has stopped that process claiming unfairness on the part of Ligale in the manner in which he distributed the new constituencies.
Realizing that whoever becomes the next President after the 2012 elections will desperately depend on what support he or she gets from Parliament to govern the country, a lot of arm twisting tactics are now being used by the two major political parties to ensure they gain the upper hand in the Legislature even if it is through gerrymandering. Ligale did his gerrymandering on behalf of ODM. PNU want to do theirs through court injunctions. Meanwhile the country is bogged down in what may very well end up in a constitutional crisis.
But as ODM and PNU continue to engage in a lot of shadow boxing to control the next Parliament the process of implementing the new Constitution is suffering a very heavy blow which is turning the political achievements brought about by the new Constitution into a nightmare benefiting the very people who opposed the new Constitution.
When Parliament is dillydallying with the implementation of the new Constitution it is in fact playing with fire .According to Article 261 (5) to be found in Chapter Eighteen on Transitional and Consequential Provisions, the new Constitution says if Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.
It says the High Court in determining a petition may make a declaratory order on the matter; and transmit an order directing Parliament and the Attorney- General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.
If, according to the Constitution, Parliament fails to enact legislation in accordance with that order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. That process to dissolve Parliament has indeed started as the matter is already in court.
It so happens that there are some sinister characters in our society who would like to see the country go through another period of disturbance in order to stop the trend of implementing the new Constitution. These could be the same people who ridicule Luis Moreno-Ocampo when he threatens to name the masterminds of the PEV and prosecute them. The characters would rather the whole country suffered once more than their so called leaders going to jail alone.
According to the latest Kenyan National Dialogue and Reconciliation (KNDR) report published last October, there are serious challenges facing the implementation of the new constitution. These include what the report calls cohesion challenges during the implementation process and operational challenges.
On cohesion challenges the reports says there are still divisions in the Coalition Government which have contributed to creating problems in the implementation process. Though the new Constitution provides for the establishment of the Commission for the Implementation of the Constitution (CIC) and the Constitutional Implementation Oversight Committee (CIOC) of the Parliament as the organs to steer the transition, for instance, lack of cohesion within the Coalition appeared to constrain establishment of these important organs.
In the case of CIOC, for example, the country witnessed such a tug-of-war between the ODM and PNU that almost delayed the formation of the committee. While the two parties struggled to get their own man to chair the committee it was obvious that they cared very little about the deadline to be met. This was despite the fact that a joint Parliamentary Group meeting had earlier on agreed to back PNU’s Mohamed Abdikadir for the job because of his proven record of successfully chairing the parliamentary select committee that midwifed the new Constitution. The agreement at a joint Parliamentary Group meeting notwithstanding, ODM, completely out of the blue, suggested that Ababu Namwamba was the best suited person for the job.
The two political parties had to engage in a considerable amount of horse trading through which Namwamba had to be given the chairmanship of Parliamentary Committee on Legal and Justice Affairs before ODM agreed to back Abdikadir. The Public Service Commission (PSC) did a commendable job of short listing the names they sent to the President and the Prime Minister who appointed members of the CIC for Parliament to approve. Unfortunately Parliament has refused to do so ostensibly for lacking regional balance.
Given the fact that the country has now 47 regions known as counties it is absolutely impossible to have a CIC that represents every region since the total number of its members are only nine. The excuse given by MPs to reject the list is both unreasonable and myopic as it may very well throw them out of Parliament. The power behind the rejection of the CIC list is the ODM which is wrongly connecting the process with the Ligale proposal as a very unfair blackmail of the whole country.
Though the names of people who were short listed by the PSC belong to some of Kenya’s most respected legal brains, they are people who can easily be identifies with either ODM or PNU. A few of them, like Koki Muli, were neutral and could probably have provided the services similar to those of Nzamba Kitonga as the chairman of CoE. Whatever the case may be the final list will be approved by Parliament which Kenyans hope will be more concerned with the future of this country rather than party triumphalism which so far has blinded their wisdom.
The tug-of-war games played by ODM and PNU have actually been criticized by the KNDR as an attempt to hijack the implementation process, a view reinforced by claims that wider consultations are lacking before drafting and publishing of Bills which are needed before operationalising the new Constitution. According to the report maintaining the bipartisan spirit, national consensus and momentum created by the referendum to ensure effective implementation of the New Constitution is currently the challenge facing Kenya’s political leaders, especially the two main political parties.
The reason given by the ODM for this obvious sabotage of the implementation process are not convincing enough. They claim they cannot endorse the list of experts before the Ligale recommendation of 80 new parliamentary constituencies has been published. Yet the Ligale recommendation cannot be published as a court injunction by PNU MPs has stopped that process claiming unfairness on the part of Ligale in the manner in which he distributed the new constituencies.
Realizing that whoever becomes the next President after the 2012 elections will desperately depend on what support he or she gets from Parliament to govern the country, a lot of arm twisting tactics are now being used by the two major political parties to ensure they gain the upper hand in the Legislature even if it is through gerrymandering. Ligale did his gerrymandering on behalf of ODM. PNU want to do theirs through court injunctions. Meanwhile the country is bogged down in what may very well end up in a constitutional crisis.
But as ODM and PNU continue to engage in a lot of shadow boxing to control the next Parliament the process of implementing the new Constitution is suffering a very heavy blow which is turning the political achievements brought about by the new Constitution into a nightmare benefiting the very people who opposed the new Constitution.
When Parliament is dillydallying with the implementation of the new Constitution it is in fact playing with fire .According to Article 261 (5) to be found in Chapter Eighteen on Transitional and Consequential Provisions, the new Constitution says if Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter.
It says the High Court in determining a petition may make a declaratory order on the matter; and transmit an order directing Parliament and the Attorney- General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice.
If, according to the Constitution, Parliament fails to enact legislation in accordance with that order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament. That process to dissolve Parliament has indeed started as the matter is already in court.
It so happens that there are some sinister characters in our society who would like to see the country go through another period of disturbance in order to stop the trend of implementing the new Constitution. These could be the same people who ridicule Luis Moreno-Ocampo when he threatens to name the masterminds of the PEV and prosecute them. The characters would rather the whole country suffered once more than their so called leaders going to jail alone.
According to the latest Kenyan National Dialogue and Reconciliation (KNDR) report published last October, there are serious challenges facing the implementation of the new constitution. These include what the report calls cohesion challenges during the implementation process and operational challenges.
On cohesion challenges the reports says there are still divisions in the Coalition Government which have contributed to creating problems in the implementation process. Though the new Constitution provides for the establishment of the Commission for the Implementation of the Constitution (CIC) and the Constitutional Implementation Oversight Committee (CIOC) of the Parliament as the organs to steer the transition, for instance, lack of cohesion within the Coalition appeared to constrain establishment of these important organs.
In the case of CIOC, for example, the country witnessed such a tug-of-war between the ODM and PNU that almost delayed the formation of the committee. While the two parties struggled to get their own man to chair the committee it was obvious that they cared very little about the deadline to be met. This was despite the fact that a joint Parliamentary Group meeting had earlier on agreed to back PNU’s Mohamed Abdikadir for the job because of his proven record of successfully chairing the parliamentary select committee that midwifed the new Constitution. The agreement at a joint Parliamentary Group meeting notwithstanding, ODM, completely out of the blue, suggested that Ababu Namwamba was the best suited person for the job.
The two political parties had to engage in a considerable amount of horse trading through which Namwamba had to be given the chairmanship of Parliamentary Committee on Legal and Justice Affairs before ODM agreed to back Abdikadir. The Public Service Commission (PSC) did a commendable job of short listing the names they sent to the President and the Prime Minister who appointed members of the CIC for Parliament to approve. Unfortunately Parliament has refused to do so ostensibly for lacking regional balance.
Given the fact that the country has now 47 regions known as counties it is absolutely impossible to have a CIC that represents every region since the total number of its members are only nine. The excuse given by MPs to reject the list is both unreasonable and myopic as it may very well throw them out of Parliament. The power behind the rejection of the CIC list is the ODM which is wrongly connecting the process with the Ligale proposal as a very unfair blackmail of the whole country.
Though the names of people who were short listed by the PSC belong to some of Kenya’s most respected legal brains, they are people who can easily be identifies with either ODM or PNU. A few of them, like Koki Muli, were neutral and could probably have provided the services similar to those of Nzamba Kitonga as the chairman of CoE. Whatever the case may be the final list will be approved by Parliament which Kenyans hope will be more concerned with the future of this country rather than party triumphalism which so far has blinded their wisdom.
The tug-of-war games played by ODM and PNU have actually been criticized by the KNDR as an attempt to hijack the implementation process, a view reinforced by claims that wider consultations are lacking before drafting and publishing of Bills which are needed before operationalising the new Constitution. According to the report maintaining the bipartisan spirit, national consensus and momentum created by the referendum to ensure effective implementation of the New Constitution is currently the challenge facing Kenya’s political leaders, especially the two main political parties.
Friday, October 22, 2010
Constitution: Ruto’s rights also protected
William Ruto has made every effort to politicize the criminal case against him. But it looks like all his efforts will miserably fail as that story is only accepted among his Kalenjin followers. He is therefore an extremely angry man. He suspects there is someone, probably Raila Odinga, who wants to do him in. The rivalry between the two has now turned into a bitter enmity with no-holds-barred tactics being used by both sides.
As the undisputed leader of the ODM, Raila would obviously like to show he has powers to discipline his ostensible number two man in the party. But rebellious Ruto is still out to prove that he can be an extremely damaging thorn in Raila’s skin, with powers not only to deny him the massive Kalenjin support, but also to completely destroy him from within his own party.
As the battle between the two becomes more public with each passing day, Ruto has been seriously wounded and is showing signs of running away. Though he assures his supporters to have the wherewithal to fight another day, he is at the moment the underdog with criminal charges of fraud over his head. He is accused of defrauding the Kenya Pipeline Company (KPC) of 96 million shillings by purporting to sell KPC land belonging to the Ministry of Environment and Natural Resources nine years ago.
When the crime was allegedly committed Ruto was a sacred cow. No law enforcing agent would have dared touch him with a barge pole. Doing so would not only have been politically incorrect; but would also have amounted to committing political suicide that could only lead to being shown the door. Ruto, and many like him, continued becoming mysteriously richer all the time as public land, including forests, were being openly grabbed and sold at exorbitant amounts to government institutions and companies like the KPC.
But as soon as Kibaki came into power things began to change. Ruto was first charged for the alleged offence in 2005. But the old Constitution was still in force. He therefore wasted no time in trying to use it to get the case swept under the carpet. He in fact almost succeeded because for such a long time the case was almost forgotten. The matter must have been revived by the new Constitution which made Martha Karua challenge the Prime Minister in Parliament to tell the country what William Ruto was doing in the Cabinet when there was a criminal case pending in court against him.
The Prime Minister had to pretend to defend Ruto when he said the Minister for Higher Education had challenged the criminal case in the high court. Until the ruling of the High Court which would determine whether or not Ruto had a case to answer, the Minister for Higher Education was sort of protected. It so happened that soon after the Prime Ministers’ statement the High Court made a ruling declaring that Ruto had a criminal case to answer. Weather the abruptly expeditious ruling of the High Court was caused by the Prime Minister’s intervention or the new Constitution is neither here nor there.
In 2005 when Ruto was first charged with the offence he claimed the charges against him violated his Constitutional rights. Paradoxically it is the new Constitution which is making him now face the music as it has come with very strict demands and requirements for people who want to be leaders of this country.
Rather than defend himself in the magistrate’s court where he was first charged, Ruto took the matter to the High Court, which he expected to stop the case for the flimsy reasons of fictitious violation of his “constitutional rights”. But sitting at the High Court this time were three Judges who are about to be vetted, as recommended by the new Constitution , on whether or not they have the ability to deliver justice in a jurisprudentially upright manner . The three judges – Jeanne Gacheche, Roselyn Wendoh and Leonard Njagi had no option but to strictly follow the law in throwing out Ruto’s request.
While doing so they clearly said: “There is no proof that the applicant’s rights have been violated or breached in any way. For that reason we are unable to grant any prayers sought and send back the case to the trial court for hearing and determination.” The claims made by Ruto that the case was politically motivated were also rejected by the High Court, though the suspended Minister came out of court singing the same song.
Soon after Ruto lost his plea to have the case thrown out of court there was a public outcry urging both the President and the Prime Minister to suspend the Minister for Higher education until his case was heard and he was proved not guilty. The loudest noise against Ruto came from Martha Karua and Mutula Kilonzo who are both very highly respected lawyers.
Whatever the case may be Ruto is for the time being an extremely powerful politician in Kenya. Not only is he controlling the five million plus Kalenjin votes, but he is also an important member of the KKK alliance which hopes to form the next Government of Kikuyus, Kalenjins and Kambas. For these two reasons alone Raila has every excuse to push Ruto over the cliff so as to pave his almost undisputed success in his expected 2012 race for the presidency.
Kibaki, on the other hand, may not care much about the KKK and its success after his administration. But what he cares most about is the success of the new Constitution which has very strict demands on both the rule of law and the fight against corruption. Kibaki would therefore not risk the possibility of weakening the importance of the new Constitution for the sake of pleasing Ruto, however powerful he may be among the Kalenjins. Besides that, Kibaki has no more political ambition and does not really care who takes over from him when he retires as the man who gave Kenya a new and most democratic Constitution. That reputation alone is bound to guarantee him perpetual respect long after he departs from both the political scene and indeed from this world.
So in obeying the Anti-Corruption and Economic Crimes Act which demands public officers who are charged with corruption or economic crime to be suspended at half pay, with effect from the date of the charge, Kibaki and Raila had no option but to suspend Ruto, albeit for completely different reasons. Because the law also says the public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted, Ruto therefore still stands a chance of getting his job back in the Cabinet, but first he has the uphill task of fighting the criminal charges against him.
Unfortunately the line of defence he has taken of politicizing the entire case will only put him in more trouble because the three judges have already ruled on that matter. Indeed it will be extremely difficult for the accused politician to continue claiming that the entire case against him is political because under the new Constitution the independence of the Judiciary is very well defined and defended.
William Ruto is about to discover that the days when the Executive manipulated the Judiciary in order to win political favours and punish those opposed to the dictatorial regimes of the past are gone and gone forever. Today the courts are playing a completely different role as defined by Article 159(1) of the Constitution which clearly says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution.
It further says that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status. It says justice shall not be delayed though alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. Since Ruto’s case is obviously criminal the last options are out of the question.
Today Ruto has appealed against the ruling of the three judges who see no merit for him to continue claiming his “constitutional rights” are being violated. The old style of using that argument as tactful procedural technicalities in order to defeat justice is taken care of very well by the new Constitution which clearly says in Article 159(2) (d) justice shall be administered without undue regard to procedural technicalities.
When Ruto continues to claim that his criminal case is a political one he is in fact challenging the independence of the Judiciary which is defended in the new Constitution’s Article 160(1) which says the Judiciary shall not be subject to the control or direction of any person or authority. When Ruto, however, says he has to carry his own cross he is absolutely right and he stands a very good chance of bouncing back into political popularity outside his own Kalenjin chiefdom when he legally succeeds in defending himself against all the criminal charges against him. After all the new Constitution also defends his right to a fair trial.
As the undisputed leader of the ODM, Raila would obviously like to show he has powers to discipline his ostensible number two man in the party. But rebellious Ruto is still out to prove that he can be an extremely damaging thorn in Raila’s skin, with powers not only to deny him the massive Kalenjin support, but also to completely destroy him from within his own party.
As the battle between the two becomes more public with each passing day, Ruto has been seriously wounded and is showing signs of running away. Though he assures his supporters to have the wherewithal to fight another day, he is at the moment the underdog with criminal charges of fraud over his head. He is accused of defrauding the Kenya Pipeline Company (KPC) of 96 million shillings by purporting to sell KPC land belonging to the Ministry of Environment and Natural Resources nine years ago.
When the crime was allegedly committed Ruto was a sacred cow. No law enforcing agent would have dared touch him with a barge pole. Doing so would not only have been politically incorrect; but would also have amounted to committing political suicide that could only lead to being shown the door. Ruto, and many like him, continued becoming mysteriously richer all the time as public land, including forests, were being openly grabbed and sold at exorbitant amounts to government institutions and companies like the KPC.
But as soon as Kibaki came into power things began to change. Ruto was first charged for the alleged offence in 2005. But the old Constitution was still in force. He therefore wasted no time in trying to use it to get the case swept under the carpet. He in fact almost succeeded because for such a long time the case was almost forgotten. The matter must have been revived by the new Constitution which made Martha Karua challenge the Prime Minister in Parliament to tell the country what William Ruto was doing in the Cabinet when there was a criminal case pending in court against him.
The Prime Minister had to pretend to defend Ruto when he said the Minister for Higher Education had challenged the criminal case in the high court. Until the ruling of the High Court which would determine whether or not Ruto had a case to answer, the Minister for Higher Education was sort of protected. It so happened that soon after the Prime Ministers’ statement the High Court made a ruling declaring that Ruto had a criminal case to answer. Weather the abruptly expeditious ruling of the High Court was caused by the Prime Minister’s intervention or the new Constitution is neither here nor there.
In 2005 when Ruto was first charged with the offence he claimed the charges against him violated his Constitutional rights. Paradoxically it is the new Constitution which is making him now face the music as it has come with very strict demands and requirements for people who want to be leaders of this country.
Rather than defend himself in the magistrate’s court where he was first charged, Ruto took the matter to the High Court, which he expected to stop the case for the flimsy reasons of fictitious violation of his “constitutional rights”. But sitting at the High Court this time were three Judges who are about to be vetted, as recommended by the new Constitution , on whether or not they have the ability to deliver justice in a jurisprudentially upright manner . The three judges – Jeanne Gacheche, Roselyn Wendoh and Leonard Njagi had no option but to strictly follow the law in throwing out Ruto’s request.
While doing so they clearly said: “There is no proof that the applicant’s rights have been violated or breached in any way. For that reason we are unable to grant any prayers sought and send back the case to the trial court for hearing and determination.” The claims made by Ruto that the case was politically motivated were also rejected by the High Court, though the suspended Minister came out of court singing the same song.
Soon after Ruto lost his plea to have the case thrown out of court there was a public outcry urging both the President and the Prime Minister to suspend the Minister for Higher education until his case was heard and he was proved not guilty. The loudest noise against Ruto came from Martha Karua and Mutula Kilonzo who are both very highly respected lawyers.
Whatever the case may be Ruto is for the time being an extremely powerful politician in Kenya. Not only is he controlling the five million plus Kalenjin votes, but he is also an important member of the KKK alliance which hopes to form the next Government of Kikuyus, Kalenjins and Kambas. For these two reasons alone Raila has every excuse to push Ruto over the cliff so as to pave his almost undisputed success in his expected 2012 race for the presidency.
Kibaki, on the other hand, may not care much about the KKK and its success after his administration. But what he cares most about is the success of the new Constitution which has very strict demands on both the rule of law and the fight against corruption. Kibaki would therefore not risk the possibility of weakening the importance of the new Constitution for the sake of pleasing Ruto, however powerful he may be among the Kalenjins. Besides that, Kibaki has no more political ambition and does not really care who takes over from him when he retires as the man who gave Kenya a new and most democratic Constitution. That reputation alone is bound to guarantee him perpetual respect long after he departs from both the political scene and indeed from this world.
So in obeying the Anti-Corruption and Economic Crimes Act which demands public officers who are charged with corruption or economic crime to be suspended at half pay, with effect from the date of the charge, Kibaki and Raila had no option but to suspend Ruto, albeit for completely different reasons. Because the law also says the public officer ceases to be suspended if the proceedings against him are discontinued or if he is acquitted, Ruto therefore still stands a chance of getting his job back in the Cabinet, but first he has the uphill task of fighting the criminal charges against him.
Unfortunately the line of defence he has taken of politicizing the entire case will only put him in more trouble because the three judges have already ruled on that matter. Indeed it will be extremely difficult for the accused politician to continue claiming that the entire case against him is political because under the new Constitution the independence of the Judiciary is very well defined and defended.
William Ruto is about to discover that the days when the Executive manipulated the Judiciary in order to win political favours and punish those opposed to the dictatorial regimes of the past are gone and gone forever. Today the courts are playing a completely different role as defined by Article 159(1) of the Constitution which clearly says judicial authority is derived from the people and vests in, and shall be exercised by, the courts and tribunals established by or under the Constitution.
It further says that in exercising judicial authority, the courts and tribunals shall be guided by the principles of justice being done to all, irrespective of status. It says justice shall not be delayed though alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted. Since Ruto’s case is obviously criminal the last options are out of the question.
Today Ruto has appealed against the ruling of the three judges who see no merit for him to continue claiming his “constitutional rights” are being violated. The old style of using that argument as tactful procedural technicalities in order to defeat justice is taken care of very well by the new Constitution which clearly says in Article 159(2) (d) justice shall be administered without undue regard to procedural technicalities.
When Ruto continues to claim that his criminal case is a political one he is in fact challenging the independence of the Judiciary which is defended in the new Constitution’s Article 160(1) which says the Judiciary shall not be subject to the control or direction of any person or authority. When Ruto, however, says he has to carry his own cross he is absolutely right and he stands a very good chance of bouncing back into political popularity outside his own Kalenjin chiefdom when he legally succeeds in defending himself against all the criminal charges against him. After all the new Constitution also defends his right to a fair trial.
Saturday, October 9, 2010
Constitution: Judicial Service Bill meticulous
Just as the MP for Kamukunji, Simon Mbugua, moves to Court to try and stop Parliament from passing the Bill on vetting judges, Mutula Kilonzo has published yet another Bill to establish the Judicial Service Commission (JSC) which will hire, fire and discipline judges as well establish the National Council of the Administration of Justice. The latest legislation is the Judicial Service Bill, 2010. Despite all the noise that is being made to stop the process of implementation of the new Constitution without first creating the CIC, Mutula seems to be moving with the speed of lightening to change the Judiciary according to the new Constitution.
There are many who will doubt his motives. Indeed it is the same Mutula Kilonzo who had expressed the wish that the ICC should now hand the post election violence cases to the local Judiciary. Questions will obviously be asked whether Mutula is moving so fast as to defeat the aims and aspirations of the ICC in Kenya. The answer to that question will probably have to come from Parliament which must debate the new Bills on the Judiciary. As Parliament debates the two Bills on the Judiciary it must also examine whether the motive of legislating them expeditiously is to keep the ICC away.
Mutula is on record claiming the moment judges have been vetted and the police reformed then there will be no need for the ICC. The trouble is that the ICC has gone very far in nearing the actual prosecution of the people it will soon indict in connection with the post election violence. Whereas vetting judges will certainly be very good for the country in removing corruption from the Judiciary, stopping the ICC from prosecuting the few people it has identified from Kofi Annan’s envelop will only have the opposite effect of promoting impunity.
According to the Bill its object and purpose is to ensure that the JSC and the Judiciary shall be the organs of management of judicial services and shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law. The new law will make sure that the JSC shall facilitate the conduct of a judicial process designed to render justice to all and be accountable to the people of Kenya.
The Bill says the JSC shall facilitate a judicial process that is committed to the expeditious determination of disputes; facilitate a judicial process that is committed to the just resolution of disputes; support and sustain a judicial process that is committed to the protection of the people and of their human rights; promote and sustain fair procedures in its functioning and in the operations of the judicial process, and in particular shall be guided in all cases in which it has the responsibility of taking a decision affecting a judicial officer of any rank or its own employee, by the rules of natural justice.
The JSC shall be the administrative manifestation of the Judiciary's autonomy and inherent power to protect and regulate its own process, achieving these objects through application of principles set out in the Constitution, and other laws. The Bill says it shall be guided in their internal affairs and in the discharge of their mandates by considerations of social and gender equity and the need to remove any historical factors of discrimination; and apply modern technology in their operations.
On standard of service the Bill proposes that in the exercise of the powers or the performance of the functions conferred by this Act, the Commission and the Judiciary shall among others have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled; adopt quality service as a core principle and, to uphold this principle, the Commission and the Judiciary shall formulate a modern and constantly updated scheme of judicial and other training for all categories of Judges, judicial officers and for the Commission's and staff.
It says the JSC and the Judiciary shall be guided in their activities by the relevant
provisions of the Constitution; uphold the judicial service code of conduct and
ethics as may by regulations be prescribed; be non-partisan and non-political in orientation and operations; promote and uphold honesty and integrity in its
operations, and shall give fulfillment to all values essential for the discharge of judicial functions; and apply and promote such other positive values as the Commission may by regulations prescribe.
The Bill also describes in details the functions of the new Chief Justice which shall include providing the linkage between the Judiciary and the other arms of Government. It says the CJ shall also be the Head of the Judiciary and the President of the Supreme Court . The Bill suggests that the CJ shall assign duties to the Deputy Chief Justice,president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary.
It also says the CJ shall give an annual report to the nation on the state of
the Judiciary and the administration of justice; and exercise general direction and control over the Judiciary. The Deputy Chief Justice shall be the Deputy Head of the Judiciary and the vice-president of the Supreme Court and shall be responsible to the Chief Justice in the exercise of the functions and duties of the office.
The Bill suggests that the president of the Court of Appeal and the Principal Judge of the High Court shall each serve for a non-renewable term of three (3) years. It also suggest that the president of the Court of Appeal and the Principal Judge of the High Court shall in consultation with the Chief Registrar of the Judiciary be responsible to the Chief Justice for the administration of the Court of Appeal and High Court respectively. A Resident Judge and High Court Division Head shall in consultation with the Chief Registrar be responsible to the Principal Judge of the High Court for the administration of their station or division.
According to the Bill the establishment and functions of the Commission and appointment of members shall be in accordance with the Constitution. .The Commission shall consist of members appointed in accordance with the Constitution and the provisions of this Act. Members are to be nominated by the President under Article 171 (2) (h) of the Constitution. The President shall within seven days of the commencement of this Act submit the names of the nominees to the National Assembly. the National Assembly shall, within seven days after it first meets after receiving the names of the nominees consider the nominees and either approve or reject; and notify the President as to its approval or rejection.
If the National Assembly approves the nominees nominated, the President shall, within three days after receiving the notification of the National Assembly, appoint the nominees as members of the Commission. If the National Assembly rejects a nominee submitted by the President, the President shall within three days after receiving the notification of the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of the Act shall apply with necessary modifications with respect to the new nominee.
According to Article 171(2) of the Constitution the Commission shall consist of the Chief Justice, who shall be the chairperson of the Commission; one Supreme Court judge elected by the judges of the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates.
One person shall be nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Chief Registrar of the Judiciary shall be the Secretary to the Commission. Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.
The Bill also describes the transparent manner in which judges and other judicial officers will in future be appointed, removed or disciplined. It also describes how the National Council on Administration of Justice will be established and who will be its members.According to Mutula Kilonzo the principal object of this Bill is to improve the provision of judicial services and administration of justice.
In its memorandum of objects and reasons the Minister says it achieves this by reconstituting and incorporating the Judicial Service Commission, modernizing and expanding its functions including clearly articulating the procedure for appointment and removal of judges, and discipline of other judicial officers and staff. Mutula says the Bill also enhances the Commission’s as well as the Judiciary’s operational and financial autonomy. And to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, the Bill establishes the National Council on Administration of Justice.
There are many who will doubt his motives. Indeed it is the same Mutula Kilonzo who had expressed the wish that the ICC should now hand the post election violence cases to the local Judiciary. Questions will obviously be asked whether Mutula is moving so fast as to defeat the aims and aspirations of the ICC in Kenya. The answer to that question will probably have to come from Parliament which must debate the new Bills on the Judiciary. As Parliament debates the two Bills on the Judiciary it must also examine whether the motive of legislating them expeditiously is to keep the ICC away.
Mutula is on record claiming the moment judges have been vetted and the police reformed then there will be no need for the ICC. The trouble is that the ICC has gone very far in nearing the actual prosecution of the people it will soon indict in connection with the post election violence. Whereas vetting judges will certainly be very good for the country in removing corruption from the Judiciary, stopping the ICC from prosecuting the few people it has identified from Kofi Annan’s envelop will only have the opposite effect of promoting impunity.
According to the Bill its object and purpose is to ensure that the JSC and the Judiciary shall be the organs of management of judicial services and shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law. The new law will make sure that the JSC shall facilitate the conduct of a judicial process designed to render justice to all and be accountable to the people of Kenya.
The Bill says the JSC shall facilitate a judicial process that is committed to the expeditious determination of disputes; facilitate a judicial process that is committed to the just resolution of disputes; support and sustain a judicial process that is committed to the protection of the people and of their human rights; promote and sustain fair procedures in its functioning and in the operations of the judicial process, and in particular shall be guided in all cases in which it has the responsibility of taking a decision affecting a judicial officer of any rank or its own employee, by the rules of natural justice.
The JSC shall be the administrative manifestation of the Judiciary's autonomy and inherent power to protect and regulate its own process, achieving these objects through application of principles set out in the Constitution, and other laws. The Bill says it shall be guided in their internal affairs and in the discharge of their mandates by considerations of social and gender equity and the need to remove any historical factors of discrimination; and apply modern technology in their operations.
On standard of service the Bill proposes that in the exercise of the powers or the performance of the functions conferred by this Act, the Commission and the Judiciary shall among others have the technical, infrastructural and administrative competence to ensure that the requirements of the judicial process are fulfilled; adopt quality service as a core principle and, to uphold this principle, the Commission and the Judiciary shall formulate a modern and constantly updated scheme of judicial and other training for all categories of Judges, judicial officers and for the Commission's and staff.
It says the JSC and the Judiciary shall be guided in their activities by the relevant
provisions of the Constitution; uphold the judicial service code of conduct and
ethics as may by regulations be prescribed; be non-partisan and non-political in orientation and operations; promote and uphold honesty and integrity in its
operations, and shall give fulfillment to all values essential for the discharge of judicial functions; and apply and promote such other positive values as the Commission may by regulations prescribe.
The Bill also describes in details the functions of the new Chief Justice which shall include providing the linkage between the Judiciary and the other arms of Government. It says the CJ shall also be the Head of the Judiciary and the President of the Supreme Court . The Bill suggests that the CJ shall assign duties to the Deputy Chief Justice,president of the Court of Appeal, the Principal Judge of the High Court and the Chief Registrar of the Judiciary.
It also says the CJ shall give an annual report to the nation on the state of
the Judiciary and the administration of justice; and exercise general direction and control over the Judiciary. The Deputy Chief Justice shall be the Deputy Head of the Judiciary and the vice-president of the Supreme Court and shall be responsible to the Chief Justice in the exercise of the functions and duties of the office.
The Bill suggests that the president of the Court of Appeal and the Principal Judge of the High Court shall each serve for a non-renewable term of three (3) years. It also suggest that the president of the Court of Appeal and the Principal Judge of the High Court shall in consultation with the Chief Registrar of the Judiciary be responsible to the Chief Justice for the administration of the Court of Appeal and High Court respectively. A Resident Judge and High Court Division Head shall in consultation with the Chief Registrar be responsible to the Principal Judge of the High Court for the administration of their station or division.
According to the Bill the establishment and functions of the Commission and appointment of members shall be in accordance with the Constitution. .The Commission shall consist of members appointed in accordance with the Constitution and the provisions of this Act. Members are to be nominated by the President under Article 171 (2) (h) of the Constitution. The President shall within seven days of the commencement of this Act submit the names of the nominees to the National Assembly. the National Assembly shall, within seven days after it first meets after receiving the names of the nominees consider the nominees and either approve or reject; and notify the President as to its approval or rejection.
If the National Assembly approves the nominees nominated, the President shall, within three days after receiving the notification of the National Assembly, appoint the nominees as members of the Commission. If the National Assembly rejects a nominee submitted by the President, the President shall within three days after receiving the notification of the National Assembly, submit the name of a new nominee to the National Assembly and the provisions of the Act shall apply with necessary modifications with respect to the new nominee.
According to Article 171(2) of the Constitution the Commission shall consist of the Chief Justice, who shall be the chairperson of the Commission; one Supreme Court judge elected by the judges of the Supreme Court; one Court of Appeal judge elected by the judges of the Court of Appeal; one High Court judge and one magistrate, one a woman and one a man, elected by the members of the association of judges and magistrates; the Attorney-General; two advocates, one a woman and one a man, each of whom has at least fifteen years’ experience, elected by the members of the statutory body responsible for the professional regulation of advocates.
One person shall be nominated by the Public Service Commission; and one woman and one man to represent the public, not being lawyers, appointed by the President with the approval of the National Assembly. The Chief Registrar of the Judiciary shall be the Secretary to the Commission. Members of the Commission, apart from the Chief Justice and the Attorney-General, shall hold office, provided that they remain qualified, for a term of five years and shall be eligible to be nominated for one further term of five years.
The Bill also describes the transparent manner in which judges and other judicial officers will in future be appointed, removed or disciplined. It also describes how the National Council on Administration of Justice will be established and who will be its members.According to Mutula Kilonzo the principal object of this Bill is to improve the provision of judicial services and administration of justice.
In its memorandum of objects and reasons the Minister says it achieves this by reconstituting and incorporating the Judicial Service Commission, modernizing and expanding its functions including clearly articulating the procedure for appointment and removal of judges, and discipline of other judicial officers and staff. Mutula says the Bill also enhances the Commission’s as well as the Judiciary’s operational and financial autonomy. And to ensure a coordinated, efficient, effective and consultative approach in the administration of justice and reform of the justice system, the Bill establishes the National Council on Administration of Justice.
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