WORSHIPING TRIVIA: THE IRONY OF CUSTODIANS OF KENYA’S LEGAL CONSCIENCE

Article 259 (11) of the constitution of Kenya is significantly prominent in the constitution in a way. The article reads: if a function or power conferred on a person under this constitution is exercisable by the person only on the advice of or recommendation, with the approval or consent of, or on consultation with, another person, that advice, recommendation, with the approval r consent, or after consultation, except to the extent that this constitution provides otherwise.

Read without much consideration, it would pass just like any other legal provision in the constitution. However, probably it is one article that captures one of the real reasons for the clamor of the new constitution. It strikes a blow to imperialism and emphasizes that if there is such a provision as requiring any another opinion, it is not just for the sake of it, it is constitutional.

The article gained prominence, when President Kibaki usurped the law and purported to nominate persons to the offices of the Attorney, DPP and chief justice by passing the judicial service commission and the Prime minister.

Rekindling the debate would serve no purpose as the law was later duly followed. However, it would be remembered that at the height of the debate, a respected legal mind saw it fit to justify the president’s action on a relatively unimaginable premise. To them, on a national TV, the saw that it was not mandatory for the president to consult the prime minister as the article read …. The function MAY be performed or the power exercised only on… to him, the use of MAY, rather than MUST, absolved the president of any obligation to be tried to any tedious consultations, advices or no forthcoming consents.

Such an opinion amounted to a legitimization of imperialism, the very ghost that the republic was trying to run away from with the new dispensation. Worse still, since the contention was in regard of consultation, necessitated by the National accord, the assertion amounted to reducing the murderous spree and rapes that rocked the republic during the 2008 post poll mayhem into a linguistic battle between MAY and MUST.

This is a single instance where custodians of legality discard the collective aspirations of the nation to succor narrow sectarian views.

A most recent development is the fracas around article 27 (8) read in part… state shall take legislative and other measures, to implement the principle that not more than two thirds of the members elective or appointive bodies shall be of the same gender.

This has seen the halting of the Supreme Court swearing in by a section of the civil society, sadly, FIDA inclusive. They accuse the Judicial Service Commission of usurping the constitution by deviating from the constitutional threshold of at least a third of either gender in all institutions.

I truly believe that this could be misplaced enthusiasm. Basing on the reality before us, the deviation could be absolved as a sensible compromise for the sake of progress.

Apart from the constitution guiding that such is an aspiration of the country; in the moment we lack any legislative piece that could guide such a phenomenal shift. Clearly the article (27) does not appear in the fifth schedule Article 261 (1) and this cannot be accidental.

The unspecific timing in the aspired legislation allows the country to utmost 5 years for its enactment or without unreasonable delay.

To realize this aspiration, the constitution recognizes the need for both legislation and OTHER MEASURES to support legislation. Gender parity in Kenya is not a legal creation; it is a socio-cultural phenomenon. And it is imperative that we deal with the cultural biases that lead to it rather than advocating for cosmetic and impulsive solutions.

As such, the Supreme Court is just but the higher organ of the institution judiciary that is established by the chapter ten of the Constitution. The merit of this case would lie, in if, after the complete restructure, the entire judiciary does not meet the criterion, or say, in all the courts termed as superior by the constitution.

Halting the being of the Supreme Court is holding at ransom the entire nation for the sake of an ideology that is right but not justifiable by reality. The halting is impeding the dispensation in a host of ways. There are crucial bills that would require constitutional referencing on the constitutionality of key issues. One such is the land bill that the minister is seeking the Supreme Courts guidance on key provisions. Well, one could argue that the high court has a constitutional mandate, but with the backlog that the judiciary is reeling under, it would be prudence of perception to realize that the expansion is an exigency.

Secondly, the entire argument would either create or sustain an illegality in a way. If one male person has to be dropped, then that would amount to a contravention of Article 27 (4) that outlaws discrimination on the basis of sex. On the other hand it sustains an illegality in that we continue having a situation where all appellate judges are male. I guess it is a tale of choosing between the lesser evil. If the high courts terms a nullity the entire exercise, remotely, there is a taste of gender based discrimination and inordinate expense in matter of resource and time.

The other glaring truth is that as a nation we have a phlegmatic list of priorities. On this list, we have gender mainstreaming being as critical as all other priorities but clearly not a matter of life and death. The very fact that the deputy president of the Kenya’s Supreme Court will be female is an indication that the spirit of the new dispensation was central to the procedure. It is a laudable deviation from the chauvinistic appellate courts we have all along been accustomed to.

There is an urgent need that the Supreme Court as proposed by the JSC be endorsed as a repeat could see the influence of the status quo as it unfortunately with the appointment of the DPP. The custodians of legality in this country risk establishing themselves as impediments to the dispensation if they continue to idolize technicalities. To nurture this delicate dispensation, we have no option but to incorporate sensible compromise for collective progress. This is not complacency, vigilance is an obligation, but outrunning ourselves has no significance either.

The hefty legislative burden on the legislature will need a keen legal eye to suppress endorsement of laws that do not satisfy constitutional aspirations. This would pass for an ideal channel of enthusiasm. Or rather can we make the Government printer understand that we are in a new dispensation?

Central in our construing of the supreme law, there should we should have the reality of our Kenyan dream a country where democratic tenets are supreme, and the rule of law rather than rule by law exists.

TO ACHIEVE THIS, WE NEED AMBITION, VIGILANCE AND PERSISTENCE, BUT CLEARLY NOT SIDESHOWS To achieve this, we must remain realistically ambitious and true to our reality.

THE QUESTION OF TAX, THE ULTIMATE DECISION IS MINE: A VOTER

THE QUESTION OF TAX, THE ULTIMATE DECISION IS MINE: A VOTER

THE TAX MANS NOOSE HANGS LARGE

In his tenure as the house speaker, Kenneth Otiato Marende has taken some outstanding decisions in the defense of both the law and public interest. As such, it is hard to imagine how such a volatile house could have been led without his acuity and grasp of law.

However, as linen dotted by mad, Marende’s sufficiently philanthropic assertion stands out as the darkest spot when he shelved public interest for personal comfort. His children have decried with unknown venom a suggestion by the commissioner of tax to have them respect the law and fulfill a Citizens duty of paying tax.

With the Executive having apparently betrayed a silent memorandum to ensure our money conscious legislators do not pay tax, the honorable members are plotting revenge and top on the agenda is to scuttle the implementation process by voting down crucial bills.

Well, they have the constitutional mandate of legitimizing a piece into legislation in this country, but I am sufficiently sure that the sovereign power lies with the masses.

Perhaps we could ask ourselves a few questions, did they back the content of the constitution or they disguised their true wishes not to offend the principals. Well either way, good for us, we have a new constitution. Whether Mbadi genuinely believed in it, or they had some unknown desires that were massaged to gain their support, the republic is in a new dispensation. A dispensation where the law is unaware of status or secrete MOUS. Where the will of the people is supreme, and the people are the sovereign.

HON. JOHN MBADI- HAS VOWED NOT TO PAY TAX

Whether they were promised by the Head of State, or took refuge in The Attorney General’s letters, the constitution I ratified, by the sanctity of my vote requires everyone to pay tax. I intend to see that this is done.

Probably they fail to understand a few basics of instances when the people are sovereign. If they choose to scuttle implementation bills, I could petition the Chief Justice to advice the president to dissolve the parliament. I need not que at his Mlimani office, I will just post on his face book wall and home goes Mbadi.

Yet still, if that parliament is dissolved, there shall be o tax amnesty, as such, the few assets he has amassed would be attached to this sacred debt. Can someone tell the Mheshimiwa that you can run, but you cannot hide.

The constitution is a guarded asset of Kenya. We have unimaginable hopes pegged on this constitution, come on, we cannot sacrifice a Republic for Mbadi’s or Kapondi’s convenience. NEVER BWANA MKUBWA!!!

Well, worse still, they can’t vote to increase their salaries, we had seen how generous they were with themselves and this responsibility now lies with The Salaries and Remuneration Commission.

The word of Raila, or Kibaki or Wako cannot dilute the sanctity of my choice that all Kenyans ought to pay tax.

If someone wants the allowances to the spouses of the prime minister and Vice president scrapped, well, I am glad; it is an added burden to I, the faithful tax payer.

I wait with a daring smile for anyone to scuttle the constitution because of a debt the accrued. Well, Hosni a strong man could not withstand the people’s decision, I wonder whether Mbadi can.

As for those who paid, well done, but it was not a favor, it was an obligation, but still they deserve accolades since they heeded a call.

THE PRIME MINISTER- Raila Odinga paying his Dues

I should with great honor pay my respect to Peter Kenneth, he saw that the moment had passed for legislators to give themselves unnecessary privileges and has since paid his tax faithfully. Kudos Peter, you are a worth leader.

We now have the message, translating into the new dispensation is not easy for these folks who have been deities. Painfully, the lordship ambit of the parliament was substantially slashed by my supreme will and as such, this should be informed to the legislators, albeit through a civic education program.

MUTAVA MUSYIMI: THE IDEAL COMPROMISE THAT THE MOMENT NEEDS

Today, in the uniqueness of the flamingo Hub, Mutava Musyimi will be outlining the drive that gives his presidential ambition a drive. Less than two months ago, I fronted his name as a befitting compromise in the volatile Kenyan politics.
Well, the fact that he is announcing his presidential today, brings my lukewarm presupposition that he shall indeed succeed Kibaki a step closer to realization.
Well, Mutava has a chance of getting my vote before he starts fever pitch rallies simply for one reason, he can achieve across the divide acceptability which non of his competitors.
Well, the race today has two known pro democracy heroes, the Prime minister, Raila AND Mutava. A little known cleric who dared defy the dictatorial moi intentions of scraping the security of tenure of key judicial officers.

As the secretary General of the NCCK, Mutava has been the voice of reason. He is a blend of integrity, vision and worthiness. I hope someone else sees it this way.