SINAI TRAGEDY: SOMEONE OUGHT TO TAKE RESPONSIBILITY

In April this year Hank Krakowski, The head of USA air traffic Control Agency resigned from his job for unimaginable reason. In the course of duty, there had been incidences where Air traffic control officers fell asleep. The pilot with over one hundred and fifty passengers on board was forced to make a landing without the traffic controller.

This essentially was a way of taking responsibility for an event that placed lives of people in relative danger. No event had ensued, no scratch was sustained by any passenger, his contribution to the mishap was rather remote, a worker napping; yet Hank resigned.

Later in July, Rand Vickers who headed Computer Emergency Readiness Team tasked to respond to cyber attacks resigned after several high profile attacks on the American Intelligence and public websites. Rand was taking responsibility for being unable to lead a team into safeguarding sensitive data.

Hank’s case is a classic example of vicarious liability. That indeed, even if not directly involved in the control trade, he headed the unit, and the very notion that a life could be endangered under his watch necessitated his oust. In as much as there lacked a legal reason for his exit, morally he was obliged to.

A sharp contrast of the two scenarios would be in the Kenyan context. The country is still reeling under the Sinai shock. Well, the word would mean an altogether converse of its Biblical compatriot in the Kenyan minds.

Whereas in the Bible it would mean the start of the Israeli liberation, in the Kenyan context it is a rude reminder of a nation at war with itself. What is even worrying is that it brings to surface the still stiff mentality of the leading elite as to the concept of responsibility.

As bodies were still being whisked from the smouldering remains of the slum, the CEO Kenya Pipeline was interviewed by a National TV. Kilinda expressed the institution’s regret at the tragedy but was quick to assure the victims that compensation would not be an option since reasonably the company had done what would be termed as due care.

SELESTA KILINDA MD KPC

Honestly, when I heard that he would be on TV, I had a default presumption that he would resign as CEO. The turn of events was rather surprising. Days later I would see a press statement on a local daily correcting the ’misrepresentations against’ KPC by the media.

Well, KPC could be true in asserting reasonable care, but as such, within the normal course of events 79 people are not incinerated casually like that. The KPC pipelines could be well serviced, but it is not always that gasoline would be found in a slum river always. However remote, there was a contribution on the part of the Institution and the country deserved better than  legal position as to why compensation would not coming.

I admired Titus Naikuni during the Doula tragedy. The man was there, on every press conference and with the mouners. Whereas KQ’,S issue is miles apart from the negligent KPC, it is surprising to note the extent Institutions in Kenya value human life. Kilinde’s resignation may not be necessitated by law, but it is a moral obligation.

When on 27th October 2009 a train crushed in Egypt killing 29 people, the transport minister stepped aside to allow a new leadership. To relieve the victim’s of the burden of seeing he who was on watch as people died.

Earlier on in 2004, Zhang Rengui then a mayor of Haining city resigned when a worship house fire caused death. The two men had no contribution in the accidents, in fact, the two incidents were accidents, but still they bowed to prudence in care for public feelings to vacate office.

KPC’S could amount to criminal negligence. As a state entity, it is bound to offer utmost care to those it places in danger: the basic linkage s that KPC is what is mandated to ship petroleum and the contents that burnt Kenyans in its custody. We would naturally expect that due care would mean incident less delivery to the destined terminus.

Kiraitu Murungi- Minister Energy

The minister for Energy owes the country an exit equally. His inability to manage the docket has seen a Triton scandal, extensive upsurge of oil prices, continued dominance of oil cartels and numerous fires caused by Oil spillage.

What educational measures have been initiated to sensitize the public? We leave hideous images of burnt cadavers to have a lasting deterrent impression in the minds of others who would wish to siphon oil from spillages.

Without addressing the cause, public assertions in mass burials will not deter hungry Kenyans from seeking a relief in a risk. It could be a risk taken with knowledge, but what difference is there when the difference between today and tomorrow is a chance of being able to breathe. In itself, if a challenge that could eventuate in death offers a possibility of a different tomorrow, a human being, created to expand, is perfectly justified in undertaking the risk.

The New dispensation was hoped that it could occasion a paradigm shift in the tenets of leadership, in as much as I could excuse political bigotry within political circles; I am unable to comprehend why a body that ought to be guided by a social conscience like KPC could be brutally inconsiderate.

The old mentality, where people are greater than institutions, where leadership is a personal making and not a public trust continues to hijack the anticipation of a new dawn.

A culture of respect for grief should at least guide us. Someone owes the memories of the dead responsibility.

Kenyans donate blood for Victims

WHO IS REALY MISINFORMED: A RESPONSE TO MOSES KURIA’S ARTICLE

Reading the Daily nation on 23rd August 2011,Moses Kuria the PNU Spokesperson attempted to interpret the Kenyan constitution as not expressly barring persons under a criminal trial from vying for a political office. He alluded to a legal cliché that one is innocent until proven guilty, and Kenyans facing trial in the ICC should be treated as such, even in regard to their political ambitions. Indeed, read with a sectarian intent, the Kenyan constitution does not have any provision barring someone under a trial from seeking office. The provision on article 99 (3) which provides that A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted, would equally appear as a lifeline to the political aspirations of any accused persons. The assumption however, that this would not invalidate the candidacy of any of the six is false and legally wrong. Confirming the charges wound render the persons unable to vie, and to Kuria’s surprise, even their continued hold onto public offices is an upset of the constitution. To appreciate this, it is worth revisiting the sub structural cardinal as to why restriction is placed on the possibility of persons with Criminal inclinations seeking elections. Basically, leadership and the concept of a “good citizen” are inseparable. Good in our sense is a legal vindication that the character of the person seeking the office is worth. The question of leadership is an issue of public interest, which should at all instances be differentiated from public opinion. One is admissible as a reason for a judicial decision and the other is just that, an opinion. The Constitution of Kenya confirms this when it asserts: That Authority assigned to a state office – (a) is a public trust to be exercised in a manner that- (i) Is consistent with the purposes and objects of this constitution. There are instances, indeed one in this very case where public interest overrides personal rights which right in this case is the doctrine of being innocent until proven guilty. In regard to privileges and rights, indeed the accused remains innocent, but in regard to the sanctity of public office, they become unfit A Decision in Republic v Kenya National Commission on Humans Rights Ex-Parte Uhuru Muigai Kenyatta [2010], partly reads, “…This court has the onerous task of maintaining the delicate balance between an individual right and those of the public. Sometimes private rights have to bow to public interest…’’ This would only serve to show that in a matter where the public interest is involved, the raw law and legal maxims notwithstanding, the court would be more than ready to apply a prudential interpretation rather than textual as suggested in Kuria’s article. Nemo aliquam partem recte intelligere potest antequam totum perlegit is a Latin maxim that suggests that no one can understand a part, unless he has read the whole. To know the true position of the law, one would have to go beyond articles of convenience and regard the Constitution in entirety. The Kenya Constitution,2010 outlines in clear words the chief principles that would guide its construction. Article 259, suggests among other things that the constitution must be interpreted in a manner that promotes its purposes, values and principles and contributes to good governance. Such a proposition is again found in Article 10. Clearly, a dual appearance of the same principle in the Kenyan Constitution is not a coincidence. It is an emphasis and any interpretation must objectively satisfy this criterion or else it would be a breach of the law. One of the arch purposes of this constitution, is to establish a leadership that is not tainted. As such, it establishes several scenarios when it is unfit for a public officer to continue holding office. In Regard to the presidency, such would be found in Article 145 (1) which suggests that a president could be impeached where there are serious reasons for believing that a president has committed a crime under national or international law. The constitution equally provides mechanisms for impeachment, but shelving the procedure, the basic fact is that where there is reason to believe that a crime has been committed by a public office holder, the holder falls short of the glory of a public office. The Purpose of this clause is to emphasize that no one is above the law, and that a “criminal or a suspected criminal is unfit to hold the presidency” note the constitution uses the phrase “serious reasons for believing that a president has committed a crime” It does refer to a conviction. Therefore a person accused for crimes against humanity, which accusation has been confirmed and forwarded to a trial chamber would be unfit to hold the presidency. Unless someone has a conscience that could dispute that to that extent, where a prosecutor of the International Criminal Court has done preliminary investigations and convinced judges that the person could have done a crime does not reach the threshold “serious” as intended by the constitution. Can this be viewed as a contradiction of the article 50. (2) a. which assures presumption of innocence until the contrary is proven. Constitutional inconsistencies are apparent, in reality all provisions in the constitution serve the greater intention. Just as there is need to ensure sanctity in leadership, there is an equal need to protect a citizen from being ostracized by virtue of being under trial. Stretching this however, to the extent of justifying a candidacy is an ultra-liberal and unjustifiably generous construction: an attempt to use the law to serve sectarian interest I would posit. A question that follows therefore is, if one is unfit to hold the presidency as per the constitution, can he vie for the presidency? Clearly, there s no provision in the constitution exemplifying this issue, but it would border an absurdity that such a vacuum could endorse a situation that ultimately creates an illegality. If an individual’s presidency would be a constitutional breach, there is no merit whatsoever to allow its possibility. Allowing that possibility is in itself a usurpation of the law. You can not create a situation that would breach a law without being in breach of the law. It would be like the country, or the vetting commission is holding the constitution in contempt! The apparent lenience in the provisions, such as the aforementioned article 99 (3) was never intended to shield the accused from being locked out of a political race. Such is an interest that would be a non issue within legal realms. The drafters of the constitution were making a law for the country; they were never advocates of political interest. However, the drafters had to reasonably curb a possibility where legal institutions could be used to lock out competition in politics. They therefore had to assure everyone a fair chance. If a situation arises, and it is apparent that a crime was orchestrated to lock someone out of a presidency, then the courts would liberally extent this provision to salvage the situation. It is important to regard our history when we look at the constitution. We were writing a law that would further our vision but equally suppress the noxious nature of past regimes. Such included use of judicial institutions as a field for vendetta and to suppress dissenting voices. It was there a justified measure that legal processes in regard to political offices be broadened for openness. Lest we forget what was intended and twist the law to favor us.Reading the Daily nation on 23rd August 2011,Moses Kuria the PNU Spokesperson attempted to interpret the Kenyan constitution as not expressly barring persons under a criminal trial from vying for a political office. He alluded to a legal cliché that one is innocent until proven guilty, and Kenyans facing trial in the ICC should be treated as such, even in regard to their political ambitions. Indeed, read with a sectarian intent, the Kenyan constitution does not have any provision barring someone under a trial from seeking office. The prov
ision on article 99 (3) which provides that A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted, would equally appear as a lifeline to the political aspirations of any accused persons. The assumption however, that this would not invalidate the candidacy of any of the six is false and legally wrong. Confirming the charges wound render the persons unable to vie, and to Kuria’s surprise, even their continued hold onto public offices is an upset of the constitution. To appreciate this, it is worth revisiting the sub structural cardinal as to why restriction is placed on the possibility of persons with Criminal inclinations seeking elections. Basically, leadership and the concept of a “good citizen” are inseparable. Good in our sense is a legal vindication that the character of the person seeking the office is worth. The question of leadership is an issue of public interest, which should at all instances be differentiated from public opinion. One is admissible as a reason for a judicial decision and the other is just that, an opinion. The Constitution of Kenya confirms this when it asserts: That Authority assigned to a state office – (a) is a public trust to be exercised in a manner that- (i) Is consistent with the purposes and objects of this constitution. There are instances, indeed one in this very case where public interest overrides personal rights which right in this case is the doctrine of being innocent until proven guilty. In regard to privileges and rights, indeed the accused remains innocent, but in regard to the sanctity of public office, they become unfit A Decision in Republic v Kenya National Commission on Humans Rights Ex-Parte Uhuru Muigai Kenyatta [2010], partly reads, “…This court has the onerous task of maintaining the delicate balance between an individual right and those of the public. Sometimes private rights have to bow to public interest…’’ This would only serve to show that in a matter where the public interest is involved, the raw law and legal maxims notwithstanding, the court would be more than ready to apply a prudential interpretation rather than textual as suggested in Kuria’s article. Nemo aliquam partem recte intelligere potest antequam totum perlegit is a Latin maxim that suggests that no one can understand a part, unless he has read the whole. To know the true position of the law, one would have to go beyond articles of convenience and regard the Constitution in entirety. The Kenya Constitution,2010 outlines in clear words the chief principles that would guide its construction. Article 259, suggests among other things that the constitution must be interpreted in a manner that promotes its purposes, values and principles and contributes to good governance. Such a proposition is again found in Article 10. Clearly, a dual appearance of the same principle in the Kenyan Constitution is not a coincidence. It is an emphasis and any interpretation must objectively satisfy this criterion or else it would be a breach of the law. One of the arch purposes of this constitution, is to establish a leadership that is not tainted. As such, it establishes several scenarios when it is unfit for a public officer to continue holding office. In Regard to the presidency, such would be found in Article 145 (1) which suggests that a president could be impeached where there are serious reasons for believing that a president has committed a crime under national or international law. The constitution equally provides mechanisms for impeachment, but shelving the procedure, the basic fact is that where there is reason to believe that a crime has been committed by a public office holder, the holder falls short of the glory of a public office. The Purpose of this clause is to emphasize that no one is above the law, and that a “criminal or a suspected criminal is unfit to hold the presidency” note the constitution uses the phrase “serious reasons for believing that a president has committed a crime” It does refer to a conviction. Therefore a person accused for crimes against humanity, which accusation has been confirmed and forwarded to a trial chamber would be unfit to hold the presidency. Unless someone has a conscience that could dispute that to that extent, where a prosecutor of the International Criminal Court has done preliminary investigations and convinced judges that the person could have done a crime does not reach the threshold “serious” as intended by the constitution. Can this be viewed as a contradiction of the article 50. (2) a. which assures presumption of innocence until the contrary is proven. Constitutional inconsistencies are apparent, in reality all provisions in the constitution serve the greater intention. Just as there is need to ensure sanctity in leadership, there is an equal need to protect a citizen from being ostracized by virtue of being under trial. Stretching this however, to the extent of justifying a candidacy is an ultra-liberal and unjustifiably generous construction: an attempt to use the law to serve sectarian interest I would posit. A question that follows therefore is, if one is unfit to hold the presidency as per the constitution, can he vie for the presidency? Clearly, there s no provision in the constitution exemplifying this issue, but it would border an absurdity that such a vacuum could endorse a situation that ultimately creates an illegality. If an individual’s presidency would be a constitutional breach, there is no merit whatsoever to allow its possibility. Allowing that possibility is in itself a usurpation of the law. You can not create a situation that would breach a law without being in breach of the law. It would be like the country, or the vetting commission is holding the constitution in contempt! The apparent lenience in the provisions, such as the aforementioned article 99 (3) was never intended to shield the accused from being locked out of a political race. Such is an interest that would be a non issue within legal realms. The drafters of the constitution were making a law for the country; they were never advocates of political interest. However, the drafters had to reasonably curb a possibility where legal institutions could be used to lock ouReading the Daily nation on 23rd August 2011,Moses Kuria the PNU Spokesperson attempted to interpret the Kenyan constitution as not expressly barring persons under a criminal trial from vying for a political office. He alluded to a legal cliché that one is innocent until proven guilty, and Kenyans facing trial in the ICC should be treated as such, even in regard to their political ambitions. Indeed, read with a sectarian intent, the Kenyan constitution does not have any provision barring someone under a trial from seeking office. The provision on article 99 (3) which provides that A person is not disqualified under clause (2) unless all possibility of appeal or review of the relevant sentence or decision has been exhausted, would equally appear as a lifeline to the political aspirations of any accused persons. The assumption however, that this would not invalidate the candidacy of any of the six is false and legally wrong. Confirming the charges wound render the persons unable to vie, and to Kuria’s surprise, even their continued hold onto public offices is an upset of the constitution. To appreciate this, it is worth revisiting the sub structural cardinal as to why restriction is placed on the possibility of persons with Criminal inclinations seeking elections. Basically, leadership and the concept of a “good citizen” are inseparable. Good in our sense is a legal vindication that the character of the person seeking the office is worth. The question of leadership is an issue of public interest, which should at all instances be differentiated from public opinion. One is admissible as a reason for a judicial decision and the other is just that, an opinion. The Constitution of Kenya confirms this when it asserts: That Authority assigned to a state office – (a) is a public trust to be exercised in a manner th
at- (i) Is consistent with the purposes and objects of this constitution. There are instances, indeed one in this very case where public interest overrides personal rights which right in this case is the doctrine of being innocent until proven guilty. In regard to privileges and rights, indeed the accused remains innocent, but in regard to the sanctity of public office, they become unfit A Decision in Republic v Kenya National Commission on Humans Rights Ex-Parte Uhuru Muigai Kenyatta [2010], partly reads, “…This court has the onerous task of maintaining the delicate balance between an individual right and those of the public. Sometimes private rights have to bow to public interest…’’ This would only serve to show that in a matter where the public interest is involved, the raw law and legal maxims notwithstanding, the court would be more than ready to apply a prudential interpretation rather than textual as suggested in Kuria’s article. Nemo aliquam partem recte intelligere potest antequam totum perlegit is a Latin maxim that suggests that no one can understand a part, unless he has read the whole. To know the true position of the law, one would have to go beyond articles of convenience and regard the Constitution in entirety. The Kenya Constitution,2010 outlines in clear words the chief principles that would guide its construction. Article 259, suggests among other things that the constitution must be interpreted in a manner that promotes its purposes, values and principles and contributes to good governance. Such a proposition is again found in Article 10. Clearly, a dual appearance of the same principle in the Kenyan Constitution is not a coincidence. It is an emphasis and any interpretation must objectively satisfy this criterion or else it would be a breach of the law. One of the arch purposes of this constitution, is to establish a leadership that is not tainted. As such, it establishes several scenarios when it is unfit for a public officer to continue holding office. In Regard to the presidency, such would be found in Article 145 (1) which suggests that a president could be impeached where there are serious reasons for believing that a president has committed a crime under national or international law. The constitution equally provides mechanisms for impeachment, but shelving the procedure, the basic fact is that where there is reason to believe that a crime has been committed by a public office holder, the holder falls short of the glory of a public office. The Purpose of this clause is to emphasize that no one is above the law, and that a “criminal or a suspected criminal is unfit to hold the presidency” note the constitution uses the phrase “serious reasons for believing that a president has committed a crime” It does refer to a conviction. Therefore a person accused for crimes against humanity, which accusation has been confirmed and forwarded to a trial chamber would be unfit to hold the presidency. Unless someone has a conscience that could dispute that to that extent, where a prosecutor of the International Criminal Court has done preliminary investigations and convinced judges that the person could have done a crime does not reach the threshold “serious” as intended by the constitution. Can this be viewed as a contradiction of the article 50. (2) a. which assures presumption of innocence until the contrary is proven. Constitutional inconsistencies are apparent, in reality all provisions in the constitution serve the greater intention. Just as there is need to ensure sanctity in leadership, there is an equal need to protect a citizen from being ostracized by virtue of being under trial. Stretching this however, to the extent of justifying a candidacy is an ultra-liberal and unjustifiably generous construction: an attempt to use the law to serve sectarian interest I would posit. A question that follows therefore is, if one is unfit to hold the presidency as per the constitution, can he vie for the presidency? Clearly, there s no provision in the constitution exemplifying this issue, but it would border an absurdity that such a vacuum could endorse a situation that ultimately creates an illegality. If an individual’s presidency would be a constitutional breach, there is no merit whatsoever to allow its possibility. Allowing that possibility is in itself a usurpation of the law. You can not create a situation that would breach a law without being in breach of the law. It would be like the country, or the vetting commission is holding the constitution in contempt! The apparent lenience in the provisions, such as the aforementioned article 99 (3) was never intended to shield the accused from being locked out of a political race. Such is an interest that would be a non issue within legal realms. The drafters of the constitution were making a law for the country; they were never advocates of political interest. However, the drafters had to reasonably curb a possibility where legal institutions could be used to lock out competition in politics. They therefore had to assure everyone a fair chance. If a situation arises, and it is apparent that a crime was orchestrated to lock someone out of a presidency, then the courts would liberally extent this provision to salvage the situation. It is important to regard our history when we look at the constitution. We were writing a law that would further our vision but equally suppress the noxious nature of past regimes. Such included use of judicial institutions as a field for vendetta and to suppress dissenting voices. It was there a justified measure that legal processes in regard to political offices be broadened for openness. Lest we forget what was intended and twist the law to favor us.t competition in politics. They therefore had to assure everyone a fair chance. If a situation arises, and it is apparent that a crime was orchestrated to lock someone out of a presidency, then the courts would liberally extent this provision to salvage the situation. It is important to regard our history when we look at the constitution. We were writing a law that would further our vision but equally suppress the noxious nature of past regimes. Such included use of judicial institutions as a field for vendetta and to suppress dissenting voices. It was there a justified measure that legal processes in regard to political offices be broadened for openness. Lest we forget what was intended and twist the law to favor us.