THE STATE OF THE NATION ADDRESS: WHEN REALITY CONTRADICTS NUMBERS

The third item, the Jubilee Administration, is an activity driven government, unlike the Kibaki regime that mainstreamed vision in its approach. The consequence is that Jubilee has a lot of numbers to throw around, but not actual impact on the people, and I think the greatest show of failure, is if you have to shout that this is what I am doing for people to see it.
 
The President yesterday in Parliament gave his third state of the Nation address. He outlined the various steps and strides, which in his opinion, the country was making under his leadership.
 
Unlike his second address that was inspirational, even offering hope that the President was willing to face history and the ills of corruption, the third address was a flat repetition of the everyday rhetoric that people so easily associate with the government.
 
The President dedicated the first pulse of his address to speak to the unwritten contract between the Kenyan communities. The spirit that was cultivated at Lancaster. To my surprise, he suggested that the opposition has disagreed with and was undermining this spirit.

It was a surprise, for other than Dr. David Ndii, who does not fall within the formal ranks of either CORD, AMANI or Eagle coalitions, I have not heard any opposition leader, not Raila Odinga, Kalonzo Musyoka, Musalia Mudavadi, Peter Kenneth or Martha Karua front anti-nationalistic sentiments.
 
Still, the President went on, to refer to nationalism 25 different times within his address, reminding us that our irreducible minimum was a one to all’ and ‘all to one. He suggested that by opening up roads in all parts of the country, doubling the constitutionally minimum, by way of monetary remittance to the counties, his administration had demonstrated undying commitment to devolution and the nationalist covenant.
 
I agree with the President, that indeed the unwritten one to all’ and ‘all to one contract is the very basic unit of the fiber Kenya, but I disagree that his administration in the last three years, or his own beliefs has supported this value. The government still stands acutely accused of exclusion by through token inclusion, and at maximum, the relationship between the national government and county government, can only be a betrayal of what in his own words was the re-imagination of our nationalist covenant.
 
It is impossible to reconcile the idea of a regime that supports devolution, yet that same regime has resisted re-aligning the provincial administration structure to accord with the true intents of Devolution. The one to all’ and ‘all to one remained unwritten because it was founded on trust. Having a Marwa in Mombasa to pounce on elected leaders because of divergent opinion does not exemplify trust. Avoiding including counties in security systems, does not exemplify that trust.
 
I think this nationalist lecture emanates from a sense of vulnerability. An understanding by the President, that a case can be made against his government.
 
The President seems is fully persuaded, that certain rights, such as freedom of expression, our pursuit for security, the threat of terrorism, must necessarily qualify how Kenyans enjoy their rights. This philosophy saw his government essentially suggest legalizing detention because of terrorism. Thank God, the High Court quashed the provision.
 
The President seems to suggest that under his administration, the media can now freely function, and that article 34 has come to absolute being. The reality is different, formerly free media houses are now prisoners of the state, journalists dismissed for writing articles critical of the government. Dennis Galava, Godfrey Mwampembwa popularly Gaddo, being but examples. The President himself is on record reducing the press to meat wrappers. An about turn seems hypocritical.
 
The country was denied an opportunity for honest grief, because today, no one knows the number of Kenyan soldiers we lost in Somali recently.
 
I must however take extreme exception to Hon. Bosire for not giving our men in uniform the honor of standing. This is a new low in partisanship.
 
The President gave reference to the Grand coalition government, noting that his government has prioritized finishing the projects dreamt by the regime. Here he referred to the roads and the standard gauge Railway.
 
We must applaud his government for a speedy implementation of the SGR. Still, the project has ballooned our public debt to China disproportionately.
 
While still at this reference to the Grand Coalition; let us point out three things. The Grand Coalition government was a good example of true inclusion in government, and that is why it recorded historic successes. Secondly, even with the squabbles, they still recorded extensive results in economic growth, helped realize a new constitution and corruption perception was low than today.
 
The third item, the Jubilee Administration, is an activity driven government, unlike the Kibaki regime that mainstreamed vision in its approach. The consequence is that Jubilee has a lot of numbers to throw around, but not actual impact on the people, and I think the greatest show of failure, is if you have to shout that this is what I am doing for people to see it.
 
The Uhuru Kenyatta government has for instance chosen to scale down the ambitions of Kibaki, announcing this week the terminating the upgrade of the Green Field Terminal at Jomo Kenyatta International Airport. In this financial year, the project did not receive funding within the budgetary allocations.
 
The President instead chose to commission two new terminals — 1A and 1E — by May 2016. He stated that the new terminals would increase passenger-handling capacity by 5.1 million new passengers, total capacity to JKIA to 7.5 million passengers a year. GTF was supposed to increase that capacity to 18.5 Million, making JKIA number one Airport in Africa.
 
Rwanda Air is consolidating her hold on air transport within East Africa, and performing better than Kenya Airways. Ethiopia Airlines is a show of African excellence elbowing us out. President Magufuli is keen on starting a national airline for Tanzania. To claim our position as a true hub of air travel, we do not need little upgrades, but truly ambitious commitments that communicate to the future we aspire.
The President and his deputy are now deflecting blame to the Judiciary. They seem to suggest that the non-dispensation of these corruption cases some-how has an impact on the levels of corruption. That is partly true. The other truth however is that the law guides the Judiciary and the law is enacted by parliament.
 
I would suggest to the President, to take the step that Lee Kuan Yew took, and reversed the discharged of the burden of proof in corruption cases. All the government needed to do, was establish a prima facie case, that you could reasonably be suspected to have obtained wealth through corruption, and it was the accused’s prerogative to discharge the burden, within set timelines.
 
A starting point would be to audit the legal framework and make it clear and devoid of technicalities. Ours is a common law system, the judge but an arbiter, not a prefect of the process. The true Achilles heel in this process lies with the Directorate of Public Prosecution and Investigative Agencies.
 
The presidents’ move to order the Communications Authority and the National Construction Authority to review their prohibitive levies is extremely welcome, and while Kenya has improved on the ease of doing business, a commendable work, we need to do more.
On one thing, I agree one hundred percent with the President, his acknowledgement that as a government, his work, is to walk with each individual in the path of personal transformation by ensuring that the country is transforming with you; and that as we transform one individual at a time, we will fulfil the Nationalist Promise.
 
Nations grow more sustain-ably when each individual is inspired to work for their own transformation. This can only happen in an environment, where everyone feels they have a chance at opportunity, this is where he must put his focus on. Investing further symbolically and really in pursuit of equity and equality for all.
 
I am hesitant to share in his conclusion that the state of our nation is strong, but I willingly agree, that our nation holds a promise for everyone.
 
Lone Felix

TO DIALOGUE OR NOT

These Folks seem to talk sometimes

These Folks seem to talk sometimes

To the President- Your Usalama Advert may have intended to reassure me- But Mpeketoni Happened sir. May be after all, these thugs do not run to hide, they do not fear the promise of Camera’s. May be we need to do more. So I just don’t know what I will think of you when I see that ad today evening.

On July 24th last year, I wrote a piece noting that Uhuru’s presidency would be secure and admired if he chose either of two paths; Bipartisanship or wholehearted support for Devolution.

In my view then, this was an easy way of ensuring that the script of ethnic exclusion does not come to be a factor in Kenyan politics. I noted then, that by reaching out to opposition, Uhuru would not be in anyway undermining his presidency; he would be providing the much needed leadership.

Well, none of the paths were considered. And here we are, a year later, that script that I feared has become a novel, with each paragraph spelling doom to an Uhuru Presidency. In my opinion though, there is a bigger fear we have to embrace as a Country- This is just but another dot in the continuing series of missed opportunities to create a Nation Kenya.

At the centre of this quest for National Dialogue, is the fact that increasingly it’s being seen that public appointments are shared between two political outfits or even two communities. Of course ethnicity is a deep factor in Kenya, and we can only deny that if we are being hypocritical. Even the opposition itself cannot claim to be clean when this matter will be placed on the table, if it ever.

I had a conversation with a Jubilee MP over the weekend, and he contends, and perhaps rightly so, that this is but a story being created by CORD. That TNA and URP are national parties and therefore appointments by those entities do not necessarily mean they are entirely Kikuyu and Kalenjin.

This may be true, but is it important, certainly not.

In the very first place, where in law or who legitimized government positions to be properties of the political parties that form a government? I thought the Kenyan Constitution envisions a Public Service that is apolitical, committed to serving every Kenyan, and capable of employing any Kenyan irrespective of my political affiliation.

So well, URP may nominate a Luo, what about a competent Luo who subscribes to no political party.

The failure of this government to delink public service from our deeply ethnicized politics will continue to be a fodder for negative ethnicity. If there is a valid agenda that needs to be pursued if we ever get to Dialogue, or even in our monologues, is this.

The talk of 50-50 between URP and TNA needs to extend to positions of leadership within the political structure; restricted to Speakers of National Assemblies and Leaders of Majorities and whips ejusdem generis.

This could appear naïve. Maybe it’s a given fact that the President of the day has to control key appointments, but the foundations of our public service as visualized in the constitution are keen delinking politics from it.

States are founded on the realities they face, ours is one which is deeply conscious about ethnicity and that we draw our political support from our ethnic bases. As long as this linkage of ethnicity to politics continues, the only way out of avoiding perceptions of exclusion is delinking the public service from this 50-50 notion.

I am persuaded to actually believe that if political parties extend their negotiations of power sharing to public service jobs, that are illegal, a usurpation of the constitution and an outright illegality.
Either way, we cannot now run away from the reality that perception of ethnic exclusion is here and that it is a perfect ingredient in the opposition agenda.

First and foremost, we cannot demonize CORD for talking about negative ethnicity, unless it’s their creation and a distortion of the facts. The reality seems to suggest otherwise, and as such, we may as a country need to sift through the noises and establish whether a section of Kenyans have a reason to be discontent.

Can this sifting be undertaken in parliament, certainly not. Our National assembly is an embodiment of partisan politics; a house of partisan interests at the expense of sense in most cases. Even very genuine discussions, as long as they will hurt their master’s interests, cannot be objectively discussed. Taking this discussion to Parliament is imagining that only politicians need to take part in it, or only political parties with representation in parliament have a say.

On this front, I believe in CORD’s call for a joint committee that will establish the agenda.

I do not understand why Jubilee would oppose this. If the only reasons are ego issues, that it’s a directive coming from the opposition and they are the government, they have lost it. Whether, CORD shouts a proposal or sends it as pdf to the Presidents’ personal email, it does not change the fact that Uhuru Kenyatta is the President.

In any case, what is more important, declining the proposal just because one is president, or being humble enough and creating a country?

In fact, if there something deeply worrying already, is the fact of having too many centres of power in this government; a President cannot tell the nation, we can talk to each other, and then be arm twisted by his lieutenants to rescind it a day later. That is what a President should not do.

The Presidency is a symbol of national unity. It has to exceed being Jubilee or CORD, it always has to struggle to provide the ultimate direction and avoid appearing that second thoughts are but its nature. This suggests indecisiveness.

I was surprised to learn that the government decided not to go on with a National Dialogue Conference because it has been politicized. Why would they not use that chance to secure the participation of the opposition and any other interested parties.

Uhuru’s handlers must know they are handling a President of 40 Million Kenyans. Some voted for him, some voted for the other candidates. They cannot continue to with miniature struggles of who is the boss, Uhuru is the boss, he has a nation to build now. And in this quest, he must listen to every story. They have to know that leading any political institution like a state needs a mix of humility and firmness in equal measure.

I must tell CORD and any other willing Kenyan to continue pushing for the Nation to come together and ask itself the hard questions.

But as we do this, we must always put in my mind that no single politician can speak for the whole country. It would be best and in everyone’s interest to get into this process without bruising ourselves. After all, if CORD’s quest is to salvage the country, then they have to always be aware that they cannot destroy that country in the first place.
Saba Saba needs not to happen. We all agree we need to talk, I hope all of us can be prudent enough to avoid excessive polarization, because we can avoid it.

And well, is Uhuru Raila’s President. I feel that the obligation to avoid polarization more lies with the Presidency than the opposition.

And for anyone who has been in Kenyan politics, they should know that demonizing Raila never works; or even shouting back when he speaks.

****************************************************************************************************************************
To the President- Your Usalama Advert may have intended to reassure me- But Mpeketoni Happened sir. May be after all, these thugs do not run to hide, they do not fear the promise of Camera’s. May be we need to do more. So I just don’t know what I will think of you when I see that ad today evening.

INTERNATIONAL LAW SHOULD NOT ENTERTAIN IMMUNITY FOR SITTING HEADS OF STATE

ICCbuilding Recognizing that Uhuru Kenyatta is President, is not varying the notion that all are equal before the law, it is simply an understanding that a whole country has vested its trust in this person and that the quest for justice can only be irrelevant if it jeopardizes the interest of a nation.

Parties to the Rome statute will assemble in The Hague to discuss how effective or otherwise the ICC has been as a court since its establishment. Naturally, such a period of audit will invite reviews of the court’s performance and adjustments to the legal regime under which the court functions.

Kenya and the African union will be sponsoring several proposals. These range from the review of cases already handled by the court, review of certain cases currently before the court and amendments to the Rome statute.
One amendment that clearly should be supported is the proposal that an accused can attend a sitting via a video link. In my opinion, the accused-s’ physical presence in a court room serves no material significance to trial. In fact, unless the accused is expected to respond to certain questions, their presence only serves to show respect to the gravity of the situation without any real contribution to the fairness or otherwise of the trial process.

A true interpretation of the doctrine of presumption of innocence would require that the accused be given the liberty to choose whether they need to be physically present during their trial or whether they are comfortable being represented. Condemning an accused to present at the sometimes derogating trail process leans more to assuming they are guilty before such is objectively determined.

The proposal for a trial via video link resonates with the requirement of time. It will show that the accused is respectful to the process, as they will sit throughout the trial. The obsession with physical presence in court at this time reeks of an adolescent-like attitude of “gotchya”, you-are-where-I-want you-to-be, which cannot be the business of a legal system.

Further, if the trial by a video link, will afford relative convenience to the accused, allowing them to undertake their duties while attending to the trial, an opposition to such can only be sinister. In fact, in peculiar circumstances like the Kenyan case, the system of the court should attempt to realize justice conscious of the peculiarity of the circumstances.

Recognizing that Uhuru Kenyatta is President, is not varying the notion that all are equal before the law, it is simply an understanding that a whole country has vested its trust in this person and that the quest for justice can only be irrelevant if it jeopardizes the interest of a nation.

The second proposal however, that aims to secure immunity for sitting heads of state defeats the primary essence of the entire Rome statute.

Protecting a head of state from civil suits and miniature criminal suits during the subsistence of their tenure is justified as the institution of presidency cannot be dragged to every court. But where there is egregious violation of human rights, perpetuated by a sitting head of state, then that immunity has to be waived.

The peculiarity of Kenya notwithstanding, we have to remain strictly aware that the notion of leadership and good are inseparable. As such, the populace will always endeavor to elect ‘good’ people and in the natural state of event, good people do not face prosecution.

The ICC was created to deter impunity by facilitating prosecution where municipal systems were either unable or unwilling. It becomes then a natural conclusion that the prosecution of a country’s top political leadership is one of the most likely scenarios that the ICC may involve itself in. This is since; a country’s political class will likely have connections capable of crippling systems where a country’s institutions are not very strong.

In this entire debate, as we try as country to protect our president and his deputy by securing immunity, we are losing sight of one very important detail. The easiest way of securing our future as a country and a continent is not by securing immunity for our leaders, but strengthening our institutions.

The ICC, as clearly stated in the preamble to the statute, is complementary to the national justice systems; the easiest way to ensure that future presidents or even citizens of Kenya are not hauled to international courts, is to have our efforts go to remedying the deficiencies in our municipal systems.

In fact, I can almost suddenly predict, that the stature of international law cannot accord blanket immunity to anyone, and worse where human rights violation is involved. In fact, even in our own constitution, we have partially waived that immunity by saying that where a president is suspected to have done a crime under international and national law, then impeachment could be undertaken.

Essentially, what we anticipate as a country is to have a presidency without criminal allegations. And just that we find ourselves in a position as unfortunate as this, it does not mean we need to renegade on that pledge that we gave ourselves.

My prayer is that Kenya’s leadership is cleared of these allegations expeditiously and that as a country we can move on without the ICC

TO PRESIDENT KENYATTA: EMBRACE BIPARTISANSHIP OR SUPPORT DEVOLUTION

Kenyatta

 

“On a lighter note, if uniting the country is extremely hard, Uhuru can send all of us to Uganda, except teachers. I admire the unity of the tutors; they listen to the voice of their commander, irrespective of where they come from. Perhaps after all, we need to be Sossionalized!”

 

 

Since his swearing in as President, Uhuru Kenyatta does not conclude any major speech without calling for national reconciliation and forgiveness. Indeed, one of the Key jubilee pillars was Umoja, but my bet was that uniting Kenya would be a long shot, no matter who won the election. Matters were complicated with the acrimonious contestation of the Presidential tally. And the opposition seems to be very keen on entrenching the impression that Uhuru’s 4000 or so votes that handed him the presidency was procured illegally.

I think Uhuru deserves the benefit of doubt, even from the staunchest of his critics, that as president, it is his constitutional obligation to be a uniting figure of a nation that seems to love and loath him in equal measures. The very fact, that the man speaks of reconciliation, and he seems to be genuine at it, should be taken in good faith.

One thing though, whether by coincidence or default, the President’s word and his regime’s actions seem not to march. His picks, for all the appointive slots continue to accord to the old model of my people, and he, or his agents, seem keen on relieving those who may not support him politically off their duties.

I am sure, that the president is aware, that perhaps calls from his person will serve little to realize national reconciliation and neither would it have been so, had his nemesis Raila Odinga won the election. Kenya is politically sensitive solution, and the only genuine mode of realizing national unity is embracing political honesty.  This may require sacrifices, perhaps alienation of a few of hardliners around his camp, but if he wanted a priceless legacy, that would be perhaps the way to go.

In my opinion, there are only two possible ways of creating national unity, one a government that adopts bipartisanship. The continued feeling that the Kenyatta government is flexing its proverbial, tyranny of number to reach its goals serves very little to support the President’s intentions. His lieutenants in parliament seem to be keen on serving the executive rather than finding their own roles, and this gives him a chance to take a leading role in forging jointly created solution to matters of concern.

Naturally, my proposition will attract the known; this is not a coalition government. We are a nation of extensively short memory. Even with its dragging in decision making, the Coalition government under Kibaki and Raila achieved what no single government did. It achieved a constitution in 3 years, what had been a dream for 20 years. There was moving towards genuine and balanced development across the country, and Kenyans have the coalition government to thank for the peace that prevailed during the elections.

The other way, is to forge partisan agenda, Jubilee certainly rules both houses and his agenda will sail through, but he will only realize to alienate the already disenfranchised half population.

Uhuru Kenyatta is the President of the republic and his reaching out to the opposition can only be leadership, not cowardice. His supporters may have their egos dented when those who should ideally be outsiders to the national agenda are brought forth, especially if their ideas are accommodated, but this is what a president should do, be president even to the opposition.

The second viable option in my opinion is to support greater devolution. I can safely deduce, that Uhuru Kenyatta is not an enthusiast of devolution, but well, it is in the constitution he swore to uphold and I bet the big man has little, in a cautious sense he can do about it.

Devolution is a possible way of fostering a stronger united nation, united in purpose, our differences notwithstanding. The only voices of reason since the end of elections have come from institutions tasked with taking care of devolution.

The senate has jointly lodged a petition at the Supreme Court, totally transcending political divides. The Council of governors seems to speak from a united front, irrespective of the political affiliations. It is telling that the council as constituted has 24 CORD affiliated governors and 23 Jubilee affiliated governors, yet the chairperson is from Jubilee. Kenyans are not even aware how Isaack Ruto became the chair, and when the parliament was awash with fights over committees, the governors never treated the country to the same brinkmanship.

Supporting county governments gives the president a way of directly engaging the people. I doubt, any governor, elected on whatever party, will decline hosting the president if he knew the president was genuine about supporting his county.

I came across a joke recently that the president has visited many countries, than he has counties, perhaps showing that he may not be aptly aware of this opportunity. Indeed, his choosing to sideline the senate’s consideration during discussions and subsequent passage of the revenue allocation bill and deciding to place a constitution office, the Transition Authority, under the clips of a minister does not serve to foster strengthen devolution.

Supporting devolution would mean, that the President decided wholeheartedly to relinquish certain trappings he enjoys for the sake of unity. It would be desirous to hear Uhuru Kenyatta say that though a certain function was left to the ambit of the national government, he feels it can be best exercised by the county governments. Is he willing to take the risk, I hope so.

Decentralizing attention will create 47 reducing how Kenyans look at the presidency. The 47 counties will criticize the government in unison, or praise it together, giving Kenyans one thing, they can share without looking at each other as CORD or jubilee.

On a lighter note, if uniting the country is extremely hard, Uhuru can send all of us to Uganda, except teachers. I admire the unity of the tutors; they listen to the voice of their commander, irrespective of where they come from. Perhaps after all, we need to be Sossionalized!

Ahmednassir should indeed be kicked out of Judicial Service Commission

“The good Doctor, who taught me professional ethics in my law school barely a year ago, said one integral component of intellectual honesty is to declare what may lead to biases in your opinion. I am a law student, who is a loyal reader of the daily Nation, and who, on reading an Interview on Daily Nation, I discovered that in Ahamednassir’s estimation the training I am undergoing is at best “pathetic”. No one likes to be pathetic. I also happen to be a peer of Moi University Law students, who, in the estimation of the learned lawyer, cannot answer a one plus one of law”

Ahamednassir

Ahamednassir

Article 171 of the Constitution of Kenya establishes the Judicial Service Commission. Its functions thereafter are outlined in Article 172. The Judicial service commission’s primary responsibility is to ensure the independence and accountability of the judiciary.

The Constitution, vests in the commission, authority to recommend to the President, persons for appointment as judges among other duties.

Section 3 of the Judicial Service Commission Act, 2011 sets out the objectives of the commission; while there is no allusion as to the order of importance, it cannot be lost that the first objective is to ensure that the Judiciary and the Commission are organs of management of judicial services and, in that behalf, shall uphold, sustain and facilitate a Judiciary that is independent, impartial and subject only to the provisions of the Constitution and the law

Section 3 (b) however requires the commission to facilitate a judicial process designed to render justice to all. As an officer of the commission, I can safely presume that that duty attaches to him, and that his conduct and speech, within his term of service should live strictly to those expectations.

The good Doctor, who taught me professional ethics in my law school barely a year ago, said one integral component of intellectual honesty is to declare what may lead to biases in your opinion. I am a law student, who is a loyal reader of the daily Nation, and who, on reading an Interview on Daily Nation, I discovered that in Ahamednassir’s estimation the training I am undergoing is at best “pathetic”. No one likes to be pathetic. I also happen to be a peer of Moi University Law students, who, in the estimation of the learned lawyer, cannot answer a one plus one of law.

That notwithstanding, I will attempt to be very objective in my discussion. It is my view that Ahamednassir’s conduct warrants his stepping down from the JSC. However, since he has declared his interest to still contest for the position, the Law Society of Kenya, has an obligation to kick him out of that position.

In the recent past, a local daily published a disturbing expose that brings into sharp disrepute the personal integrity of the lawyer. In particular, an allegation that the lawyer ‘forged’ a pupilage letter undermines what he has distinguished himself as, an advocate of truth.

Give it to him, the lawyer is among the very few Kenyan’s who stood up against the tyranny of Moi; and convinced many that he indeed was a person of exemplary standing and opinion. But as it would be, a little authority has exposed, in my opinion, who Ahmednassir really is, a brilliantly ambitious Kenyan who just knows what song to best sing- when.

Ahmednassir has undermined the very judiciary that he is supposed to ensure it is operating accountably and impartially.

As a member of the JSC, his opinion on certain matters certainly carries weight that could have profound implications. And, prudence would demand that we moderate our opinion, where our obligations impose on us a burden of facilitating a greater good.

The Constitution guarantees freedom of opinion and conscience, and Ahmednassir is justified to hold an opinion that the ICC is a foreign tool to perpetuate neocolonial schemes.

I would however imagine that the Lawyer also understood that the ICC is not a foreign court in the context of The International Crimes Act of 2008 which domesticated the Rome statute. I would also imagine that by that virtue the great lawyer understood that when he questioned the impartiality of the ICC, he was questioning the impartiality of Kenya’s legal system. This is perfectly in order. It could even pass as his role.

But wouldn’t his position require slightly more backing that the profound political harping of ‘western interests’. Wouldn’t the commissioner, perhaps need to expound, beyond stern talk, what the exact interests were?

Further, while the commissioner was questioning the ICC, which is certainly within his rights, was he aware of his obligation to facilitate a judicial process that gives justice to all people.

I beg to conclude that perhaps, his role of a publisher, which requires some sensation a times, got the better of his judgment.

This however is not an accident. Ahmednassir has shown that he can actually change and conform, with such an admirable ease.

No one for example, no one I remember, has ever written a glowing tribute of the former AG, Amos Wako as Ahmednassir; from a fierce critique to a near loyal defender. Just like a week to the General election, he highlighted with ease the shortcomings of the IEBC just to excuse those very shortcomings barely a month later in the Supreme Court.

I would like however to turn my attention to my confessed discomfort with Ahmednassir, the training of Advocates.

As a student, I have had instances when my training is inadequate, but what is sickening is that a person charged with developing the training of judicial officers sees fit to call students, ‘pathetic’ without offering any tangible solution.

And yes, the judicial service Commission has a constitutional mandate, in article 172 (1) d to prepare and implement programs for the continuing education and training of judges and judicial officers. While it is the responsibility of the Council of Legal Education to regulate legal training, some the Chief Justice, a colleague member at the JSC is the statutory head of the Council and Nassir would be better off advising him on how best to improve training in our law schools.

While this may be unsavory, as we read this interview on Daily Nation with a few peers, something cropped up. That a while ago, the Supreme Court gave a not so smart decision on the CORD petition, not the outcome of the petition. But a few of the smartest things in that ruling was a determination that the Supreme Courts involvement in Political litigation has to be faithful to the Constitutional threshold. That was a direct rejection of his persuasion to the bench.

AFRICAN LEADERSHIP WRONG ON GEOPOLITICS

The African Union celebrated its 50th Anniversary in Addis Ababa with salvos being fired at ‘western’ forces that were keen on meddling with our internal affairs. Within the same breath, Rwandan President Paul Kagame told off those who thought aid was extremely critical to Africa that after all, Rwandese could go back to their hills and cultivate their potatoes.

The African leadership is certainly correct to say, Africans have to be in charge of their own destiny. But it is certainly wrong to impute that that necessarily means ridding ourselves of associations with certain parts of the globe, especially the west.

It is naïve to imagine that geopolitical interests are nonexistent or they do not influence municipal politics, indeed they are and history suggests that sometimes they lead to extensive arm twisting. However, 50 years on; Africa’s woes cannot be entirely blamed on the west.

Are geopolitics interests necessarily bad? No. The international arena is becoming heavily intertwined that it is an issue of prudent caution for nations to extensively audit their potential partners. This audit may from time to time lead to preferences but as long as the interference is not material, there is absolutely no illegality even if a country expressed its direct support for candidate A, or even sponsored candidate B.

African Presidents are acting hypocritical yet some of them have their campaigns bank rolled by foreign donors.

Africa cannot afford to continue believing that sovereignty means having the domestics entirely left to the locals, that Palmas notion has certainly been modified by globalization. It is time to know that as ultimate human civilization is neared, humanity becomes one and so will the caution about who sits on the international table increase.

The concept of sovereignty in my opinion does not exclude scrutiny.  In fact Africa should rise up to the international calling of shaping opinion even in other jurisdictions if it wants its interests best served. It is absolute naivety for the African leadership to demand that the west retreats and leaves African politics to Africans. That cannot happen, and it should not happen. As a member of the International Community, Africa must endure scrutiny as this is inevitable.

It is not in the interest of anyone, not nationals of African states or international allies to have persons who may jeopardize foreign relations at the helm of states. And expressing opinion about municipal politics by international allies is a sign of honest engagement which should not be demonized.

As the African leadership seeks to run away from scrutiny, it has visibly started shifting east. This is desirable in my opinion, as overreliance on one partner may make us beholden to them.

However, if this is motivated by assumptions that Eastern Allies do not question our propensities, time is certainly bound to erode that assumption.

China’s economic growth for instance firmed up when it opened itself to the rest of the world. And as it accomplishes the modifications to its own systems, reality is beginning to dawn that to protect its interests, allies have to be determined with caution.

The inevitability of globalization calls for Africa to endeavor to assert her influence instead of calling for other to withdraw their influence.

THE ICC: THE AFRICAN UNION IS MUZZLING KENYA’S SOVEREIGNTY

AU

AU

Sovereignty as a principle of international law denotes the right to exercise, to the exclusion of any other state, the functions of a sovereign, as explained in Island of Palmas Arbitration case. A sovereign here meaning the modified Austinian notion of he whose pronouncements are habitually respected. In modern times, this would refer to the institutions of law which exercise state authority on behalf of the people. 

In Kenya, our collective social contract is codified in a constitution, passed overwhelmingly by the Kenyan people in 2010. In the Kenyan Constitution, the sovereign authority is delegated to, the Parliament and legislative assemblies in the counties, the national executive and executive structures in the county and the judiciary and independent tribunals, per Article 1 (3) of the Constitution of Kenya 2010

Sovereignty is a sub-structural cardinal at the centre of international relations that every state, so legally recognized, should be respected and should not have its internal affairs and decisions interfered with by external interests. It would be naïve of anyone to say such a basic rule should be waived under any circumstances whatsoever. 

Here, we must note that our Kenyan municipal institutions and we as a people have made decisions unique to our contexts and which could actually be inconceivable in other jurisdictions. Kenya’s constitution for instance, allows criminal proceedings to be started or continued against a sitting President in instances where immunity against such a crime is prohibited by a treaty to which Kenya is part of. 

This is the constitutional basis that obligates President Uhuru Kenyatta and his Deputy William Ruto to continue cooperating with the ICC on the cases against them before the court. 

The African Union, meeting in the Addis Ababa to celebrate its jubilee, I must really wonder what they were celebrating, passed a resolution urging either termination of the ICC cases or that it be referred to either the Kenyan “reformed” judiciary or the African Court of Justice

The discussion was emotive, with the ICC standing accused of being a neocolonial tool to “humiliate African leaders.” My good friend Elliston Macharia quipped thereafter, he almost got convinced, but will when ICC goes for Jakaya Kikwete or Joyce Banda.” Perhaps the few discernible faces of the African aspirations. 

The African Union is justified to debate any issue affecting Kenya. We are a continent with a shared common destiny, a similar history and problems. But one indubitable thing is that the rate of social and economic progress in African countries is extremely at differing paces that it seems the continent’s leadership is incapable of having any shared progressive position. They find root, common purpose and passion in retrogression, excusing their inability to deal with the rot and impunity in their countries by blaming external geopolitical interests. 

Immunity against prosecution given to a sitting president has traditional been justified on the basis that it will bring disrepute to the institution of Presidency, who in all fairness is a states, first citizen.

 

Kenya’s progressive view, espoused in our constitution, allows suspicion that a president has done a crime under national or international to be a basis of their impeachment, Article 145 (b) of our Constitution. This notion is inconceivable to some countries where Presidents are deities. In particular the sponsor of the debate, Uganda is incapable of ever imagining such a law in its instruments. 

In all fairness, a man who will close down a media house because it is about to expose an alleged scheme to install his son as president is incapable of understanding why a Kenyan President would go to the ICC. 

Daily Monitor Paper Under Siege

Daily Monitor Paper Under Siege

It is however important to question the hypocrisy of Museveni as person when it comes to the ICC. On 12th July 2013, Moreno Ocampo visited Uganda and after a meeting the Ugandan government through its then minister of International Affairs Henry Okello issued a statement that Uganda was to arrest Sudanese President Omar El Bashir should he set foot in Uganda. 

It is understood that this was a silent means of compelling Bashir to help in the arrest of the Northern Uganda warlord Joseph Kony believed to be hiding in Sudan then under the protection of Bashir. Indeed, even after ICC issued an arrest warrant against Kony, Museveni agreed in a cabinet resolution that if Kony was to agree to sign a peace accord, he would negotiate with the ICC to rescind the warrant. This is a bloated imagination of his influence, disregarding the fact that the ICC is a judicial process, perhaps operating differently from the patronized Ugandan judicial system. 

The most chorused phrase in Addis Ababa was than Africa can solve her own problems, and that the ICC was a tool to humiliate African leaders. 

First what informs universal jurisdiction on some things like Piracy and International Crimes is the knowledge that sometimes we Well let us look at the esteemed African leaders indicted by the ICC. 

Omar El Bashir is accused of financing the Darfur conflict. Since the start of the conflict, it is estimated that close to 200,000-400,000 thousand people have lost their lives. Assuming that Bashir did not even participate in the conflict, what else can be a basis of illegitimacy of a government if such en masse atrocities are committed under a President’s watch? Others indicted from Sudan include, Bahr Abu Garda, Abdallah Banda and Ali Kushayb. 

From Uganda, they include Joseph Kony, Vincent Otti and Dominic Ongwen all leaders of the Lord’s Resistance Army. These people are accused of using child soldiers, holding women as sex slaves, torture, rape and other gross violations, is their indictment a humiliation of the African leadership.

 

An argument against the ICC has been that all its indictees are from the African Continent. The Rome statute has 120 state parties, with 33 cou
ntries being from the continent of Africa. The others are Asia-pacific, Eastern Europe, Northern and Latin America and the Caribbean

 

For the period when the Kenya post election violence occurred 2007, Africa accounted for 88% of the world’s conflict related deaths, followed by Asia pacific at 6% and Middle East 4%. If a continent accounts for 88% of conflict related deaths, why would it not account for 100% of persons indicted for international crimes? 

This is absolutely possible regarding the fact that the ICC is a last resort mechanism that only becomes operational when local systems fail to take action. 

What is even more important however, is for the African Union to know that the relationship between the ICC is not foreign. The ICC is a domestic court both under the Constitution of Kenya and the International Crimes Act No. 16 of 2008. 

The Constitution passed by the Kenyan people in the direct exercise of their sovereign power to determine their own destiny. The Kenyan people, in their wisdom agreed in Article 2(5) and 2(6) of The Constitution of Kenya that all treaties ratified by Kenya will be part of our laws. 

Our constitution, passed by ourselves, and not under the compulsion of neocolonial interests waived the immunity of our president for crimes under international law. Our local traditions as a Kenyan people disallow negotiations for settlement on crimes. This we enacted to ourselves through our sovereign legislature. 

More importantly however, the African Union needs to understand the unique circumstances that led to the ICC process. 

Kenya domesticated the Rome statute by an Act of Parliament in 2008 after the post election violence had occurred. Both the current President and his deputy had substantial influence in the August house. This domestication by law obligated the government to cooperate with the ICC; it makes it mandatory for the Kenyan government to enforce sentences issued by the ICC. 

In the same 2008, the Kenyan parliament enacted a Truth Justice and Reconciliation Act to look into historical injustices and do a report which will be implemented. The TJRC Report, Volume 2A from page 511 makes damning allegations against President Kenyatta as regards the Kenya post election violence. 

The report adopts the views of the Kenya National Human Rights commission the President may be linked to activities undertaken by the outlawed Mungiki sect during the period. 

However, unlike other persons named, the report recommends that no other punitive process parallel to the ICC should be commenced against the President and the duo. This further reaffirms our sovereign commitment to the ICC process. 

The African Union has no mandate whatsoever to purport to make a declaration that extensively usurps our local commitments. If this was urged by the executive, the Kenyan Executive was then attempting to use external pressures to circumvent our laws an act which is a constitutional nullity.

 

The African Union is interfering with our sovereignty; Our Parliament refused two attempts to set up local tribunals and opted for The Hague. As a matter of unquestionable fact, the Deputy President is on record having urged the ICC process to commence. If this case is fatally weak and founded on falsehoods, there can never be a more legitimate forum to ascertain that than a court of law. 

The acts above were undertaken by a parliament in discharge of its constitutional mandate, a parliament that had balanced political preferences. Our Constitution which embodies our collective aspirations was passed by a free nation in celebration. We were aware, that we would suffer both the convenience and the inconvenience of that law. 

As a people, Kenya must remain committed to the shared destiny of the African continent, but certainly, in the eyes of our laws, that quest does not involve collective support to impunity. 

Sovereignty must remain what it is, that nations have a right to self determination, that acts of national institutions must be respected by our external allies. And that Museveni and Salva Kiir must stop believing that they can best interpret Kenya’s predicaments than our Parliament.

 

The AU does not need to worry about the shame that will befall Kenya when our President appears before the ICC. Many of us do, but we are also aware that our laws must be respected both when they further our interests and when they bring relative discomfort. Our President has undertaken to respect Kenya’s international obligations, and in his words, the ICC is a personal problem like many Kenyans have personal problems.

 

Why would a Union with Mali to deal with, Somalia to rebuild, Hunger to eradicate involve itself in the personal problems of three Kenyans?

 

But we all know what the AU’s record as to the rule of law is. One only needs to see the support it has given to its own African Court of Justice. An institution conceived decades ago which barely has a functioning secretariat talks of the union of a people committed to the rule of law.

 

By the way, the President of South Sudan talked of a reformed Kenyan judiciary, we cannot be surprised. With South Sudan still reporting abductions, torture and unlawful detentions, a Supreme Court that delivers its verdict before National TV must be the hallmark of reforms.

 

But as a nation we still have our problems. We still have Justices being taken before the judicial Service Commission; we still have a Supreme Court that misquotes our own constitution; we still have files that disappear in our registries and many still believe we have many steps to undertake before we say we have a reformed judiciary.

 

 

 

 

 

 

 

 

 

 

THE CORD PETITION: IT’S RAILA’S STATESMANSHIP ON TRIAL

 

I recently joked with a friend, that I believed Isaack Hassan for one simple reason; the Kanzu he wore on Friday. My readers will note, that towards the election, I wrote that Kenyans were faced by a certainty of evil in the election choice, and that in my estimation, Raila was the less evil.

As I expected, CORD adherents agreed with me, jubilee pals questioned my objectivity. While it is impossible to influence how one sees my opinion, I am certain that I owe my absolute loyalty to my thoughts and discernments, not a party or a political coalition.

When election results were announced, the CORD coalition candidate Raila Odinga declared he did not recognize the results and would seek legal redress. It excited passion, many lauded him, many vilified him, and many lacked an opinion.

Those who disagree with him, see Raila as a power hungry politician, who cannot agree to any outcome that does not favor him. Those who agree with him say it is his right, entrenched in the Constitution and by all means he should exercise it.

While I initially thought it was unwise of Raila to file the case, for the simple reason that he would be at a political disadvantage, I came to realize that no one takes such an action without deeply going over the matter.

Rights can be a nuisance, but their absence is worse. And for speculation’s sake, imagine the court annulled the result; we went for either a run off or a fresh election and then Uhuru Kenyatta Won. I imagine, we would have spent 6 billion shillings, to confirm that Uhuru is president. I see sharp tongued, anger-writhing social-media moguls tearing him apart. He will perhaps be the single most Kenyan who has cost Kenya the largest amount of money to get him out of office. He will retire to Bondo or Karen perhaps with half the country saying ‘to hell with you’.

But wait a minute, is this reality not apparent to Raila. I certainly am sure it is. I went over his speech when rejecting the results, he said much stuff, and one outstanding aspect was: He knows he cannot lead if the people do not want, but he has to be sure that the people do not want, and that in his opinion, it was democracy on trial.

I have to admit, I do not know what to believe, I do not know whether it is a deep sense of wishing to see democracy entrenched or a matter of fulfilling his ego that is at play. But whatever it is, it shall have a deep bearing on how tomorrow will evaluate Raila’s place in the history of our country.

I have to admit that deep down my heart, I hope that the CORD’s allegations be found untrue; that they were perhaps founded on an honest, but untrue belief. My hopes are not influenced by the thought of this country spending six billion on a fresh election or the ‘fatigue’ people are suggesting. I hope that these allegations are untrue, because if they are, we will be a plainly forgetting nation.

For speculation’s sake, what would a finding that the election results were doctored mean? If it does not change anything else, it must change the narration of who is “hungry for power” in this country. If someone doctored the election process, it would show the regard they give Kenyan lives, that after 2007, we would ever again dare to follow the same path to influence whoever gets to power.

More than anyone else, the reality of Raila the man is what is on trial. This petition will prove whether he is plainly hungry for power, whether he is a person who did everything he did to get the big seat power or confirm that he is a democrat who could shut his ears to the shouts of half a country and follow his true persuasions.

Its Raila’s statesmanship, his ability to live what he made us believe that is on trial. This ultimately makes me agree to this petition.

If Raila exited the political scene with that defeat, he would be a character that may have been misconstrued forever. His supporters would see Raila the hero, the man who was caged for political pluralism and his opponents would see Raila the villain, for whatever reasons they have.

I think this petition places his reputation on trial, a chance every Kenyan should welcome. We have a chance to see what influences political decisions of our leaders. That petition, its substance and basis will help me to know whether to hold him in high esteem forever, or concede that his actions were a mere scheme to disguise an otherwise hungry man.

In this regard, I think all well meaning Kenyans should co-operate with the process. In particular the IEBC does not want half the country to continue cursing that their man was rigged out. The IEBC chair stated that the elections were credible, in that sense the commission, if it so believes has no reason to withhold any information from the Cord petitioners. Rather I would think, it should facilitate that access.

I was blessed to be part of a team of Kenyans who drafted the Freedom of information Bill and held two subsequent meetings with the then chairman of Parliamentary Committee on Information Hon. Rege trying to push that the bill be debated; it never was, because the government thought its proposals would make Kenyans to have rights to “sensitive” information.

I equally followed closely a case filed by Gitobu Imanyara on article 35 of the Constitution. By the determinations of the high court, CORD is within its constitutional rights to seek that disclosure, and the IEBC under an obligation to disclose the information.

I expect the High Court to order for that disclosure, and if the IEBC has nothing to hide, it should open its doors for scrutiny and facilitate the true determination and conclusion of the matter.

Looking at it from another angle, would it not give UhuRuto supporters greater pride in the duo if the process of their getting to office is audited and given a clean bill? They will have a right to say: “Just like you have been silenced, may you keep silent for the next five years”

And UhuRuto will take that oath, and serve all Kenyans, and I will know men can go to prison, reject credible results, Go to Court when they are hungry for power.

For the certainty of our future, this is worth a billion dollars.