Archive for May 2010

Mutahi Ngunyi: Why my vote in the referendum is a big ‘No’

My name is Mutahi Ngunyi, citizen number 4855678. I am previously from the Gema Nation, before becoming a Kenyan. And my vote is a big fat No.

I am not ambiguous; I am not thinking about it. It is a No. If I can be allowed, I want to vote tomorrow. No point waiting for August 4. I want to reject the draft and move on. The lawyers have interpreted it until they are hoarse.

Now they are exchanging ignorance on television over the “letter” of the law. People in the streets have read it.

In fact, my grandmother will tell me something like this: You must read Section 105(1)(a) with Section 99(1)(c)(ii) in mind. In sum, this is the most read constitution in the history of African politics.

Yet, in reading it, we miss the point. Our focus is on the “letter” of the law; not the “spirit” of the law. Its letter is intact, even logical.

But its spirit is dangerous and deceitful. No. It is mischievous, recklessly playful and grossly naive! I will explain.

A constitution is not a legal document. It never was. It is an instrument of politics. It defines “... who gets what, when and how”. In other words, it is about getting. It is a shopping list. Everything else is detail.

And those telling us to pass it for the love of Kenya are lying. Kenya is me, my woman and my children. Period.

The question for me, therefore, is this: Of what use to my children is this constitution? Does it make them richer or poorer? Does it guarantee them peace or is it a blueprint for the coming war?

Come August 20 who will be the winners if it passes and who will be the losers? Does it replace one group of “mafuta mingi” with another?

The “letter” of the law gives us a rosy picture. But the “spirit” of the draft scares the wits out of me. Consider why?

Those voting Yes are doing so to buy peace. At least this is true of the poor. But they are deluded by the “letter” of this law.

For starters, we fought because of the dominance of the Gema Nation. This is a fact; an historical truth. But was it addressed by this draft? Zero.

In fact the draft favours the dominant over the dominated. Academically, anybody can marshal 50-plus-one per cent to become president. In reality, this is political nonsense. The presidency will be the preserve of the dominant “nations”.

The dominated “others” will have to scavenge and nibble around the counties. But why do I say so? The Rift Valley vote is 2.9 million; the Kikuyu vote is 2.7 million. In fact, the Luhya and Luo vote combined does not equal the Rift Valley vote.

If this is true, the presidency will be determined by two communities only. This is our tribal reality; our untidy path to future problems if we pass the draft. And to Gema and Kamatusa dominance, I say No.

But there is another point regarding peace. The “spirit” of this draft is grossly naive. It antagonises all with a childish naivety. Let me explain.

It is antagonistic to the Armed Forces, the Provincial Administration, the Judiciary, the Attorney-General and the land barons.

But why is this naive in a childish way? To pass, this draft will need the goodwill of these institutions. And, in the absence of dialogue, these players have gone underground. This is why there is a thread that runs through the sabotage to the review.

The illegal insertion in the constitution was deliberate. It was blamed on the Attorney-General and no arrests have been made. But there is no difference between this “insertion” and the ruling on the Kadhis’ courts. In fact, the judges are currently on “revolt”.

If I made an application to stop the referendum today, I believe I can win. They have fired MPs and thrown the review into disarray.

And all this is because they are aggrieved and no one is listening. This is why we must ask a question over the Attorney-General’s appeal on the Kadhis’ courts.

He wants a determination before August 4 from the Court of Appeal. If this court declares the Kadhis’ courts illegal, they will be buried forever.

And if the Attorney-General is aggrieved and the judges are aggrieved, chances are that the Court of Appeal will declare the Kadhis’ courts illegal. If this happens, the matter will be sealed in toto. No appeal; no recourse, no reverse. Is this the intention?

What about the provincial administration? Any election in this country depends on them. Is it possible to trust them to carry out a referendum that will disband them?

This is naive to the extreme. Besides, the IIEC is a “greenhorn” commission. No experience, no history, nothing.

If the provincial administration could fix the age-old Kivuitu Commission, what will an aggrieved administration do to a “greenhorn” commission like the IIEC? I am worried.

If you combine this with an angry Armed Forces over unionisation, we are courting disaster. I will not expose my woman and my children to this. It is clumsy, thoughtless and reckless. I will not experiment.

My last submission is personal. My No vote is a protest vote. The owners of this constitution have blood in their hands.

The principals have told us that this is a “government project”. But I do not remember them washing the blood of the 1,300 innocent Kenyans who died in 2008 from their hands.

Is it possible for “bloody” hands to write and support a constitution for our children?

We cannot pretend that you can oversee the shedding of blood one day and the writing of a constitution the next day. No way.

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New Constitution:Truth be told

The essence of a constitution-making process is to amend the clauses existing in the current constitution; add what Kenyans want included or even removing what they have all along lived with not because they really liked it but because they did not have a chance to express their opinion on the issue.

In constitution making, all citizens are expected to give their views. Every person has a right to give his/her own input thus making it a people-driven process. In Kenya, unfortunately, this process has always been hijacked by the government, foreign diplomats and agencies, our politicians and even media; who have taken full advantage to dictate the pace, content and even direction that the process takes. No wonder, the US President Barrack Obama commented on the drafts goodness even before it left CoE to parliament, which may further explain the reasons why it was hard to amend a single clause in parliament.

Media has also been equally guilty from the 2005 process. During this period the then NARC government was not in good terms with the media thus could not get the media backing. I bet we all know the reason why? “You cannot ‘rattle a snake’ and not expect to be bitten”, so it was said. The period prevailing the 2005 referendum there was a raid at the KTN/Standard stations. It was believed that a government-hired ‘hit-men’ perpetuated the act. The media therefore, went full throttle to campaign against the then draft presumably to make a point to the government. This time round it has joined the government to campaign for the draft even before the official campaign period has started. I wonder what its (the media’s) stand would be if the ‘oppressive clauses’; government’s control and regulation on media, would have been entrenched in the current draft constitution. Thank God there will be no such a thing.

The government of Kenya has always taken a position on the constitution-making process. Obviously, it has always been a ‘YES’ stand. This, in my belief, should not be the case. It should always take a neutral stand and let its people decide on the content of the constitution democratically to avoid dividing its citizens along any line. By their direct support or opposition to the draft makes it a government-driven process.

By the way why is it that every time the government takes a stand on the constitution it will also impose it on its citizens in the same direction? Is there anything peculiar about the drafts? Are there untold stories behind the drafts? Why should they always chest-thump claiming it to be a government project? Isn’t this to justify its expenditure on campaigning for the draft?

Indeed, on campaigns the government should either not fund the drafts campaign or it should fund both sides of the campaign.

Referendum is a process by which the citizens express their satisfaction or dissatisfaction with their document or issues. It is not an alternative to a disagreement, as we are made to believe by the Prime Minister Hon Raila Ondinga. He was, in the last few weeks, quoted by the media saying that ‘if there was absolute agreement on all the issues in the draft then there was no need for a referendum’. This is a misconception as I believe that referendum is a process by which citizens own and stamp their authority on the constitution, if the document ever passed. The PM has been vocal on urging Kenyans to be told the truth. Truth telling should start with the key government spokespersons on the proposed constitution.

The truth we want told first is whether abortion is not killing. My understanding of the word killing is depriving ones life. This same life protected under clause 35(1) of the proposed draft. However, the use of the word ‘unless’ brings in partiality in its protection. Abortion, still, to my understanding, also deprives the life of the unborn. Therefore, from my basic understanding abortion and killing are inseparable. That is to say abortion is a polite word for killing the unborn. Bear in mind that the word ‘unless’ in the constitution suggests that the illegality of abortion is not absolute and that it will at one point be allowed. The circumstance does not exonerate conducting abortion. The bible is clear on killing; “Do not kill”, in the 10 Commandments. The Bible does not give exemptions on circumstances of killing. In fact there is no life more important than the other. Life is life may it be that of the born or unborn. By the way how many people die or get life threatening complications after procuring an abortion?

Secondly, on what basis are the Kadhis’ Courts entrenched in the constitution, and if its inclusion is not treating one religion or culture supreme to others? Of course I do not expect the obvious statement he has been riding on for its inclusion that it has been there. Such statement would negate one of the principles of constitution-making; removal of the clauses we want discontinued. Indeed, the proposed draft clause 10 sub-section 3 clearly read that “The State shall treat all religions equally”. Where does the equality start and end? Does entrenching one religion in the constitution while leaving all the others out amount to equal treatment of the religions? If “The State and religion shall be separate” and “There shall be no State religion” (Subsections 1 and 2 respectively of clause 10) then why should the Kadhis’ Courts which is a court for any two professing Islamic faith be in the proposed draft? What separation is there between State and religion? Isn’t Islam a religion and may be being turned into a State religion by being entrenched in the constitution? In my opinion, there should be recognition of any religion in the draft.

Third, I agree we really need land issues addressed in the constitution. My only concern on this is, why should legislation on minimum and maximum acreage be in the constitution whilst we boast of being a capitalistic nation? This brings retrogression or rather negates the capitalistic principles. One should acquire as much properties as possible based on his ability. Why limit land only whereas the number of cars one owns, the number of houses or even the amount of liquid cash that one can have under his name or account are not limited? They are also properties, or aren’t they? In deed, should we then also advocate for the limitation of even education that one can acquire? Isn’t it also intellectual ‘property’? The fact people will be enticed by the clause the lease period on land for foreigner where they cannot lease land for more than 999 years is absurd since upon becoming a citizens, which is very easy if the constitution passes, will not change the 999 years lease. This is because they will no longer be foreigners.

In the ‘Bill of Right’ chapter, every person has a right to demonstrate or go on strike. If demonstration is what I have always experienced it to be, including downing ones tools, then I foresee some national security dangers. I can imagine what would happen in the Kenyan streets if the Kenya Police was to go on strike for just a day. We would chop off each others heads, rob, rape etc in broad day light with impunity. In other words the streets would be in total chaos. Imagine what would be the case if the military or by coincident, the entire security detail in Kenya was to take part in demonstration(s) one particular day.

In fact to tell the truth, there is a risk of restarting the entire process, however minimal the chance may seem. There is a chance, especially after those not aware of the contents of the draft reads it. Once wheat has been separated from wharf and issues of truth and facts separated from those of lies and misrepresentation of facts, once knowledge is separated from ignorance; a chance exists of not getting a constitution. But will this end the constitution-making process? I am sure not it will be the end.

Those castigating the church today of being involved politically condemned the same church of not being involved in guiding their flock during the 2005 referendum or during the 2007 general elections. Whether acting on the previous condemnation or not the truth is that the church is the “pillar of the nation” and can no longer stand aside to be fed whatever perceived ‘filth’ that may be brought their way just because their involvement would be interpreted as being political. For the truth, church is not an institution but the hearts of the convicted by the principles of their Savior. For the truth, everybody has a moral obligation not only to the nation but more so to God; “Every knee shall bow…” By the way where is there no condemnation on those church leaders participating in the ‘YES’ campaign?

In my view the Christians in question, just like any individuals, are first Kenyans and have therefore all the right to participate in all national issues including those of the constitution. In fact they derive their rights directly from the Bible where they are commanded to participate in choosing their leaders through voting and also not to stand and watch evil in the society without condemning it. In the Old Testament, God chose the leadership of the nation through His chosen prophets. His chosen nation was ruled through His commandments, again given through the prophets, among other issues that I may not exhaust in this column.

Secondly, as the believers of Christ, the Bible expressly describes them as the pillars of the nation; the pillars through which the iniquities of the nation are forgiven.

I therefore challenge those advocating for the truth to be told, to tell Kenyans the truth first by not twisting any facts, unless the truth has changed to be lies.

By: Peter Ng’ang’a, Nairobi

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To Whose Tune are Kenya's Media Dancing?

Pardon me if I sound dismayed. You bet I am. I am dismayed at the manner in which some sections of our Kenyan news media treat us as consumers of their products. I sometimes feel that I am being treated like a dimwit who couldn’t make up his mind. A clichéd and over-used statement is that the media play an important role in a society. They inform, educate, and entertain. At least they used to anyway, before the Internet came along and gave us the power to seek all of the above by ourselves. But reading some of our newspapers, you may want to add: embellishment, partisanship, innuendo, half-truths, fooling us, and basically overt political lobbying and advocacy. For one, you would be excused if you mistook some of them for political propaganda newsletters. They are experts in “exposing” “scandals”, which turn out to be nothing but proxy wars.

Granted that Kenya, being a country that’s perpetually in a political campaign mode, there is no shortage of political stories and scandals of all types. But instead of the media reporting objectively and letting us make up our own minds, they take up a story, turn it upside down, add spurious “facts” and present it in a completely partisan format, leaving no doubt as to what their agenda is. All of them do this. The Daily Nation, for example, recently was obsessed with an attempt to dethrone the Truth, Justice and Reconciliation Commission Chairman, Bethuel Kiplagat, in a way to suggest it had been hired by someone in the civil society. His only crime? He, like virtually the entire current political class, served in the Moi government. Some of them, in fact, served in extremely powerful positions. But they are now sitting pretty in public-trust positions – and yet not a finger has been raised for their removal. If this does not elevate double standards, I don’t know what does. But to hear the drumbeats against Kiplagat, you’d think the guy committed genocide of the Interahamwe scale. Again, while they all do this, some media houses are one step ahead in mediocrity. Surely, if you want to fool me, at least do it intelligently.

First off, let me state that I have several friends in the media, many of whom are diligent world class journalists, whom I admire greatly, and whose works I read avidly every day. My ire is more toward the houses themselves, since policy is set by the management. This is not to say, however, that some journalists do not leave a lot to be desired. But that’s my peeve for another day.

So, let’s take the main header of the online Standard of Saturday May 15, 2010. It screams: “How Group Schemed Against Raila”

The story by Gakuu Mathenge, with additional reporting by Oscar Obonyo, went on to reveal that there had been a plot to “snatch the constitution review momentum from Raila and ODM, derail, stall or kill the whole process,". And the recent discovery of altered copies apparently, is part of the grand scheme.

Now, while it's entirely true that there are evil busybodies - most probably the same ones who engineered the 2007 fiasco - who are bent on trampling on the civil liberties of Kenyans, the story was wholly inadequate in illuminating the truth about the perpetrators behind this sabotage against the people of Kenya. Instead, it was long on innuendo, hearsay, half-truths and circumstantial evidence – all in an attempt to “prove” that Raila IS the injured party. Even then, there is nothing in it to factually prove that this whole scheme was all about snatching the constitution review momentum from Raila and ODM. Which in itself begs the question: Were Raila and ODM alone, the drivers of the constitution reform process? That’s certainly something few of us were aware of. You would think that the Standard’s outrage should have been directed at a scheme to deny Kenyans a chance to decide their destiny, rather than a politician’s. That’s an outrage!

The story did not tell us exactly who, what, how, where and why this scheme was carried out, but instead, hiding behind anonymous sources, the story strings together information that’s already in the public domain, drops names and events, but in the end, I am left in as much darkness as when I started. The illegal alteration of the constitution is a grave crime committed against the people of Kenya. I would have thought that the Standard should have spent adequate resources to un-earth the whole truth, in order to drive this important point home. Instead, it’s crying foul about how Raila and ODM are being schemed against. This is a manifestation of a compromised news media whose current agenda is at cross-purposes with its traditional objectives. It just makes me wonder whose tune the Standard is dancing to. More importantly, especially during this period when political temperatures are beginning to rise, whose interests do Kenya’s media serve?

James K. Sang
E-mail is:

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Mutahi Ngunyi: Referendum could become war of people vs principals

The man who inserted ‘‘things’’ in our draft constitution was inspired. Call him a criminal; call him a saint. The man is a patriot. Seriously!

Because we refused to negotiate, we invited madness. And madness happens when “... the relationship between a nation and the truth is disturbed”.

In my view, therefore, the ‘‘mad patriot’’ knows something we do not know. He knows a truth; a disturbing truth. But he is powerless.

However, he is a dare devil, a frustrated one at that. What is more: He is not acting alone. He speaks for an enterprise. A dark enterprise that preaches “Yes” at Uhuru Park, and “No” in the dark. I have a hypothesis regarding its owners.

In posing this hypothesis, I plead ignorance. What I want is a public interpretation of three things. One, we have a government. And this government has two principals.

Is it possible for a constitution to be changed without their knowledge? Or maybe they were asleep. And when they came to brief them on this impossible scheme, they were dozing. Absolutely not.

My hypothesis is this: the government is behind this insertion. This might sound cantankerous, but hear me out. Is it possible for NSIS or the Attorney-General to change the draft without consulting higher authorities? Zero. What about the ministers and permanent secretaries mentioned in the media? Did they do it without reference to their superiors? Zero.

Logically, we must conclude the following: Highly placed people are involved in this sabotage. Hypothetically, they must be “No!” And this insertion was the best way to deliver the “No” vote.

However, I could be wrong. Our leaders could be genuine grandfather-type. Trusting, sleepy and woolly. And while they slept, others went behind their backs and changed the constitution.

If this is true, I am dead worried. While they slept, we do not know what else was changed. Similarly, if they are not alert, who is in charge? Some ‘‘mad patriot’’, the Nairobi City Council or who? Can they take us through the referendum competently?

If the authorities could not stop an obvious insertion, how will they deal with the referendum ‘‘dark forces’’?

In my view, they are either incompetent or an evil genius. I am more inclined to believe the ‘‘genius’’ part. And that this is being done with succession in mind.

And now the second thing that needs your interpretation. For the first time in our politics, the security forces are part of public discourse. In the past, they were a ‘‘sacred cow’’ regulated by “disciplinary law”.

Now we have inserted them in our constitution at Article 24(5). During the parliamentary debate on this article, Mr Mutula Kilonzo told Parliament (something to the effect that) the military chiefs were uncomfortable with the article.

This is also the article that was fiddled with by an invisible hand this week at 24(1). And the problem with it is that every Kenyan is given the right to join a union and go on strike.

However, this right is taken away from the Defence Forces and the police. But the process of taking it away is not guaranteed.

The article says that the rights ‘‘may’’ be taken away through an Act of Parliament. It does not say that the rights ‘‘shall’’ be taken away.

Similarly, it does not say when.

Come August, our soldiers will have a constitutional right to demonstrate. This right will continue until Parliament takes it away, whenever that is.

And this anomaly is what the illegal insertion was trying to stop. The ‘‘mad patriot’’ was arresting a probable military unrest. The message here was therefore this: If you cannot fix the constitutional problems politically, they will be fixed through other means. Crime is one way.

The other is the politicisation of the military. To do so is to invite them into politics. Imagine a ‘‘union of generals’’ walking on the streets shouting ‘‘haki yetu!’’ Not clever.

My hypothesis therefore is this. The Defence Forces are uneasy about this development. By inserting the illegal phrases in the draft, someone could have been warning us of an impending danger.

And if I am wrong, why was the discussion on this issue expunged from the Hansard after the amendment was debated in Parliament? Why the sensitivity around Defence Forces? I have no idea. Kindly interpret.

The third thing regards the Peace Accord. The Sixth Schedule of the draft has a mischievous suggestion. If the coalition is dissolved, it suggests that an election is probable if not necessary. This was rejected when the Accord was signed.

But why re-introduce it in the draft? Should we anticipate a snap election in December following an ODM pullout?

When you think about it, this is not improbable. With a new constitution, a voter’s register and six heavy-weights taken away by Moreno-Ocampo, a snap election would benefit Mr Odinga.

This would be a clever ‘‘civilian coup’’ against the President. And if the President is scheming against Mr Odinga, the latter is ahead.

If the constitution passes, he will owe the President nothing. In fact, he will walk out of government and force the election. But I could also be wrong.

And now a final thought. This is not about the constitution; it is political games. If we vote “Yes”, it will be a vote of ‘‘joy’’. A statement of happiness in the two principals. If we vote “No”, it will be a ‘‘vote-of-no-confidence in the two’’.

Then we can move on. Which one will it be?

Mutahi Ngunyi is a political scientist with The Consulting House, a policy and security think-tank for East, West and Southern Africa.

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Mutahi Ngunyi: Lead us not in to the new frontiers of war

Sometimes I think we ended the post-election violence too soon. Maybe we should have allowed the country to reach ground zero.

And, from the ashes, a new order would have emerged. But we aborted it. Now the country is pregnant again. We do not know who the father is, but I suspect some foreigner from ‘‘Kumasi’’. A retired mzee from the UN. The date of birth is August 6, the day of the referendum.

On August 22, at the latest, the new- born will come home. This is when the new constitution will become law if it passes. Incidentally, this is also the date when former president Jomo Kenyatta died.

His death ended an era. And, on this date, the ‘‘Nyayo’’ era was born. Similarly, former vice-president Kijana Wamalwa died around this time.

Because he died, Kenya changed. After his death, the Mount Kenya “sharks” colonised the presidency. Then they took us to war. By chance or by design, we have a destiny with August 22 this year.

But we have an advantage. Unlike in the past when things changed because someone died, we have been forewarned. Whichever way we vote, change is coming.

The question from the “gods” is this: If we had been forewarned about the 2008 violence, what would we have done differently? And the answer is simple: Nothing. Positions were hardened; the country had regimented.

At zero option, we were headed south. But now we have a second chance. It is as though we have been taken back to October 2007, three months before the disaster election. We are re-living the crucial months before we fought.

And the question from the “gods” is this: Will we do it differently this time? But more fundamentally: What has changed? I have three thoughts.

One, this referendum is not about the constitution. It is about politics. And remember “politics is perception”. Forget the facts and the fancy arguments.

The bottom-line is simple: How do we see the facts in the constitution? Do we see them as they are, or do we see them as we are?

The law of nature is clear on this. We do not see things as they are. We see them as we are. It is possible that this is a good constitution. But because of who we are, we reject it.

Similarly, it could be a dangerous constitution; a recipe for instability and bloodshed. But because of who we are, we embrace it. My point?

We are not voting for a constitution. We are voting for or against personalities. It is politics. And what is sad, it is no different from the 2007 disaster election. This election was about two people. We fought for the two. Now Moreno-Ocampo is in town to roast some people.

Unfortunately, the two are not in his list. They are leading us to new frontiers of war. Like in 2007, we are following them blindly. We have not changed.

Two, if the constitution is about politics, we must bank this fact: Politics is deceit. The question to ask, therefore, is this: Who is cheating who? Look at the vice-president. What I know is that I have experienced the same instability as him.

I have experienced moments of ‘‘Yes’’. This constitution has some extremely brilliant things, and some extremely dangerous things.

To swing like a pendulum from one end to the other is natural. This is why we have 90 days to decide. If this is what Kalonzo is doing, he is real. He is just like one of us. My worry is with the sneaky people in Cabinet.

For starters, where is Mr John Michuki? Is he “No”, or is he “Yes”? We know him to shoot straight. Why is he brooding in the dark? What about Mr Uhuru Kenyatta?

Dr Naomi Shaaban is in the “No” camp. Is she holding brief for him or has she broken ranks? Allow me to make my point now.

The Gema Nation is politically sneaky. From its Mau Mau days, it learnt to conceal its intentions. That is why its position on this referendum is not bankable. In fact, its leaders are either silent or vague. If they vote “Yes”, they will abandon Mr Odinga after the referendum.

In my view, they are either setting him up or using him. What would happen, for instance, if they abandoned him before the referendum?

Would you call this deceit? If politics is deceit, I would call this politics. And although the President is “asleep”, I would credit him with the scheme. In sum, he has not changed.

Three, we have not changed. Or Have we? This is what the clergy is inviting us to examine. Have we changed, or have we just become “clever”? I will give my thought in the form of a story I have used before.

A Nigerian wise man moved from village to village answering complex questions. But one day, he met his match: a clever Yoruba boy. The boy had a butterfly in his hand and was out to prove him wrong. He was going to ask the wise man if the butterfly was dead or alive.

If he said it was dead, he would release it; if he said it was alive, he would squeeze it to death. Either way, the wise man would lose. And so the boy cut through the crowds and confronted the wise man with a question:

“... Dead or Alive?” The wise man was puzzled. He examined the boy wisely and after a few minutes, he told him: “... it all depends on you!”

Like this Yoruba boy, we think we are clever. But these politicians are way ahead. By the way, they did not fail to amend the draft in parliament.

They chose not to. Their message was simple: it all “depends on you”. The question therefore is this: Will they twist our “cleverness” to get what they want, or will we outwit them? I have no idea!

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New Kenya Constitution Debate - Citizenship of children 8 years and below

What is the impact of this statement?

(4) A child found in Kenya who is, or appears to be, less than eight years of age, and whose nationality and parents are not known, is presumed to be a citizen by birth.

Does this include children found in refugee camps?

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Is the Committee of Experts (COE) the custodians of new constitutional truth

The Committee of Experts (COE) is gearing up for civic education once the draft constitution is published by the Attorney General this Thursday. They have been quoted in various quarters that their main focus will be to deal with the "falsehoods", "misinformation" and "lies" that has dominated the country in the last month.

The COE is definitely advocating for a Yes vote in the coming referendum. Their main battle will be to counter the NO campaign that is led by church leaders and Ruto.

The COE is taking up the role of the judiciary in constitutional interpretation whereas we all know that once the draft is enacted, the COE mandate ends and it will be upon the judiciary and the legal fraternity to seesaw interpretations of various clauses in the constitution. The COE will not be called upon to say what they meant when they put up some words or phrases. The best they could have done is to include a definition of terms appendix as part of the constitution which they never did.

The COE should not dismiss any Kenyan's interpretation of the draft, however layman it is, as a lie, falsehood or misinformation. The only binding interpretation will be that of the judiciary once the draft is enacted. As much as they collated the views and harmonized the draft constitutions, they do not have a final say what the chapters, sections, clauses and words they chose mean. It is now beyond them and have no power to amend or have no responsibility to tell us what they meant if such words and phrases are not crystal clear and are subject to wild and weird interpretations by Kenyans.

The COE should restrict themselves to distributing the draft constitution as it is and should not add any materials purporting to interpret the draft, or hold talks, rallies or meetings to misinform Kenyans of any interpretation thereof. Any public forum by the COE should be to read the draft as is to the public. In any case such materials would not be admissible in a constitutional court once interpretations of the constitution are referred to the courts.

Once they make sure every Kenyan has a copy of the draft, let Kenyans read the draft and interpret for themselves how what they read applies to their situation and make decisions on how to vote thereof.


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Kadhi Courts and the Clamor for a New Constitution

The anchoring of the Kadhi Courts in the constitution is an issue which has dominated the current debate on whether to adopt the proposed constitutional changes or reject them.

Christian leaders and some politicians are also reported to oppose any move towards the retention of the Kadhi Courts in the constitution and have declared that such a move would “lead to the nullification of other religions”. They further suggest that such a move would make it look as if Islam was the official state religion in Kenya.

This demand for the protection of Muslims rights through ways such as the anchoring the Kadhi Courts to the constitution is not new and dates as way back as to the time of the British colonialism. Many of us have failed to recognize that the Kadhi Courts have been part of our Constitution and were included in the constitution at the time of Independence.

Personal law involving Muslims is handled by the Kadhi Courts and Muslims have been unanimous in their demand for the anchoring of the Kadhi to the Constitution.

The claims by some Christian groups to the effect that “Kenyans want separation of State from religion and no interference with the freedom of worship” are in contradiction with each other. Muslims, unlike Christians do not separate the secular from the sacred and so the removal of the Kadhi Courts from the Constitution would amount to interference with the freedom of Worship guaranteed to Muslims in our constitution.

The Kadhi Courts in Kenya have jurisdiction over Muslims personal law. The Kadhi (Muslim judge) has the power of adjudicating on matters related to Muslims’ personal law in accordance with the Sharia (Muslim law). The Kadhi court has jurisdiction regarding the determination of questions of Muslim law related to personal matters such marriage, divorce, and inheritance. The parties involved are required to be Muslims. The Chief Kadhi is the head of this institution. The rules of procedure applicable in the Kadhi Courts are similar to those applied in other courts.

Muslim Religious Courts were in existence along the East Coast of Africa prior to the arrival of the British Colonialists. The 1887 Order-in-Council stated that the British Colonialists recognized the application of the Sharia along the Coastal areas of Kenya. Later, the British Colonialists extended the recognition of the Sharia to the interior of Kenya. The British Colonialists treated the Sharia as the fundamental law during the initial period of colonialism but it was later supplemented by the English Statutory Law in matters of the Criminal Law and the Law of Evidence. The Kenyan Coast was for a long time under the protectorate of Zanzibar. The Zanzibar Courts Decree (Section 7) stated that the Sharia was the fundamental law in the Protectorate of Zanzibar. However, the 1917 Evidence Decree replaced the Sharia Law of Evidence in favor of English Law of Evidence. Other Decrees were made which encroached on the supremacy of the Sharia along East Coast of Africa.

Persons domiciled in the protectorate of Kenya as opposed to those living in the Colony were subject to the Sultan’s Court (which applied the Sharia) if they were Muslims. Initially, the Sultan’s Court applied the Islamic Law and Procedure in both personal and public aspects of law among Muslims. The extent of the application of the Sharia was later limited to only personal status laws. The 1923 British Subordinate Courts Order and the Zanzibar Courts Decree of the same year limited the application of the Sharia to civil and family legal matters. Before the promulgation of these decrees in 1923, the Sultan’s Court applied Islamic Criminal Law and the Law of Evidence.

In the Colony of Kenya, the Muhammedan Marriage, Divorce and Succession Ordinance empowered the Kadhi Courts to apply the Sharia among Muslim litigants. The Muslim Courts were under the authority of the Sultan of Zanzibar prior to the arrival of the British Colonialists.

The Kadhi Courts played a central role in safeguarding the interests of Muslims during the Colonial period and continues to play a very significant role in dispensing justice to Muslims in Kenya.

During the negotiations for the Constitution of Kenya in 1962, Muslims were assured that their fundamental rights would in future be protected and preserved by the successive independent Kenyan Government(s) . Muslims were guaranteed at this time freedom of worship and were assured that their rights would be preserved and protected.

In Kenya, the British Colonialists adopted the Indian code in areas such succession. The Indian code was also applied in post independent Kenya before the application of the controversial “uniform Law of Succession” in 1981. Muslims have been consistent in the opposition to the introduction of any law which would conflict with their faith. For example, they opposed the 1967 Commission on the Law of Succession because it aimed at forcing Muslims to abandon their religion through the enactment of a uniform law of Succession.

The law of succession Act which became operational in 1981 after the former President Moi gave consent was meant to have a “universal” application to all cases of intestate and testate succession among Kenyans. Muslims in Kenya waged a protracted opposition to the Law of Succession Act from the day when the Late President Jomo Kenyatta appointed the Commission on the Law of Succession (March 17th, 1967). Muslims were unanimous in stating that the Law of Succession Act threatened to undermine the base of their religious beliefs and their way of life. Muslims demanded that they get exempted from the Law of Succession Act

Islam demands that a Muslim follow Islamic Personal Law and so any move towards forcing Muslim to follow any other law would be tantamount to infringing on their freedom to worship. The Islamic Personal law is binding to all Muslims due to it’s divine origin. The Holy Qur'an guides Muslims on their daily lives and has broadly laid down principles to guide them through the Quranic injunctions as well as the teaching of Prophet Mohammed and those of his successors.

Muslims hold Islamic Personal law with very high esteem. The hold of the Sharia to the Muslims is strongest on the Family Law compared to other aspects of Islamic Law.

There is no doubt that Muslims would not accept to have their lives to be governed by non-Islamic personal laws. Non-Islamic personal laws are likely to be incompatible with Muslims religious beliefs and practices. The Islamic Personal Law affects the core of Muslims life and religion and so any move which would infringe on their right to worship would be met with the strongest opposition possible.

An application of a non-Islamic law would run counter to the numerous Quranic injunctions. Such laws are likely to contradict the teachings of Qur'an and those of Prophet Mohammed. For example, the Uniform law of succession had recommended sharing of deceased property in a manner which would be incongruous with the teaching of the Qur'an. The Qur'an has clearly laid down injunctions outlining how the estate of a deceased person should be distributed (S4:11-14). The divine injunctions are fully binding to Muslims. Muslims are urged to ignore or oppose any law which is in conflict with their faith. It is not possible for a Muslims to be subjected to a law which contradict their faith and at the same time remain a Muslim.

Muslims freedom of worship is guaranteed under Section 22 (1) of the Constitution. The removal of the Kadhi Courts from the Constitution would amount to gross erosion of the freedom to worship. Christian groups should avoid antagonizing Muslims and taking a position which would infringe on Muslims constitutional rights. Muslims also submits that the Kadhi Courts are protected by Section 78 of the Constitution. This Section of the Constitution prohibits the National Assembly from passing laws which contradicts the guarantee(s) enshrined under Section 66 and 78 of the Constitution. Section 26 (1) of the Constitution prohibits the enactment of laws which are discriminatory either in themselves or in their effects.

Hussein Abbas (Muslim)

Mombasa .

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Peter Nduthu?

This MEMO release is written in behalf of our client, Mr Peter Nduthu. To set the record straight – although our office has received numerous media request to clarify our client’s political stand and interest in Kenya political landscape, and affiliation to the recently published book "Kenya in the eyes of a patriotic Kenyan".

We can confirm there is no truth to some items published in the news as reported.

The recently published book, yet to be launched "Kenya in the eyes of a patriotic kenyan" published by Mr Francis Karanja aka "Mkombozi" former Nakuru politician, has no political affiliation nor does it express the views of our client Mr Peter Nduthu.

There is a growing interest in young Kenyans from around the world participating in politics, some Kenyan political parties are changing and have responded positively to the growing number of Young Turks who want to affect the political system, including Mr Nduthu. Political ideologies that were once considered "fringe" beliefs are becoming mainstreamed, and more young people are associating themselves with politics.

Mr Nduthu considers himself as "3rd Generation Young Turks" he has his eyes on the political landscape in Kenya and isn’t shy about his possible interest in running for office come 2012. “That’s an option we will always hold open, where he expects the coming months to be a critical part of his Kenya History.

Mr Nduthu, 35, will be meeting and having conference calls with Kenyan veteran and former politicians in Europe, Nairobi and Nakuru seeing through aspects that will have significant political consequences being closely watched at home. Most pressing is referendum.

He advocates for “a big tent Kenya” and predicts a new, winnable political platform which will eventually emerge from the war between moderates and the conservatives movement. “What is most important for any democracy these days is to let all voices be heard”. “I think it’s a very healthy transition period, knowing full well that this isn’t the end point but this is one step in heading the right direction.”

We however ask members of the media to respect his family's privacy, any questions or clarifications should be directed to me, and I will endeavour to reply promptly. A full press statement will be released on May 10th 2010.

We hope you will give this memo your immediate consideration to avoid expensive and embarrassing reporting.


Ms V Richards

Marketing & Relations Directorate

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UAE Ministry denies arrest of three Emiratis in Kenya

Kenyan officials conveyed their apologies to the UAE government, says official

Published: 00:28 April 29, 2010

Abu Dhabi: The foreign ministry denied the arrest of three UAE citizens in Kenya.

Sultan Al Qurtasi Al Nuaimi, Director of Consular Affairs at the Foreign Ministry, denied on Wednesday the allegations that three Emiratis were arrested in Kenya as reported by some media agencies.

"The media reports claiming that a member of the UAE royal family was involved in the incident is false,” he said, noting that the incident occurred due to the misconduct of airport officials.

"The Kenyan officials have already conveyed their apologies to the UAE government," he added.

“The recent visit of Moses Wetangula, Kenyan Foreign Minister, was to discuss bilateral relations between the two countries. The visit has absolutely nothing to do with the false media reports. The two countries maintain deep-rooted relations and Kenyan visitors are always welcome in the UAE,” he clarified.

In regard to the recent visa restrictions, Al Nuaimi said these procedures were adopted by the respective authorities to regulate visa issuance, adding that the two countries are working on this issue.

Gulf News

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