The entry of Mobicom to the Orange family has caused waves in the mobile phone firm. Mobicom reportedly placed an order for Sh70 million worth of airtime recently catching the Orange operators off-guard as they did not have the airtime immediately available. A flurry of top level meetings by the Orange management saw them get together the airtime requested to satisfy their customer.
***
An insignificant visit by Joe Nyagah to President Kibaki's Othaya backyard on Monday has set tongues wagging. Reason? People believe there is more to the visit by Nyagah than a mere inspection of development projects in the constituency. They say the visit by the Cooperatives Development minister is significant as it comes soon after talk of a possible alliance between Prime Minister Raila Odinga and Deputy Prime Minister Uhuru Kenyatta.
***
Some top lawyers are not hiding the fact that they are interested in taking up the many new jobs available as the country sets about implementing the new constitution. Some of them want to be in the team that will vet judges, others are angling to be appointed to the Bench while many others are lobbying to be appointed to the nearly ten commissions and authorities that will be established. The competition is getting so intense that some of the lawyers have sought the services of politicians to try and lobby for the appointments.
***
Stephen Okoth Mwanga cut a flamboyant figure with his Hummer and other outward signs of a successful budding politician during the 2007 campaigns. Mwanga made his political debut after leaving the huge Harambee Sacco on November 22, 2007 where he had been working as a clerk in the Sacco's FOSA Nairobi office.
***
President Moi once told Kenyans that the then ruling party Kanu had its owners. Former Juja MP Stephen Ndichu believes that it is not just Kanu but PNU also. Ndichu, who is eyeing the Juja seat in the September 20 by-election, has been complaining that PNU shortchanged him and handed direct nomination to immediate former MP George Thuo. For Ndichu, the direct nomination confirms what he has always suspected, that PNU too has its owners.
***
The wife of a top Cabinet minister from Nyanza was awarded the tender for printing T-shirts for the Yes camp during the referendum campaigns. The Sh20 million spent on printing and supplying the T-shirts is now a subject of discussion by the Yes secretariat staff who allege only a handful of the T-shirts were printed. They claim the orders were then recycled to justify the millions spent.
***
A politician has fallen out with his personal assistant whom he accuses of being his wife's spy. The big man who is keen on the 2012 presidential race has now gone ahead and assigned one of his security men to spy on his PA. The security man is also supposed to keep track of all discussions the PA holds with the big man's wife. As a precautionary measure, the politician has opted to keep the PA out of all important trips.
***
An ODM MP from Rift Valley never uses his car while travelling to his constituency in South Rift because he says the roads are so bad, they may damage the vehicle. Instead, the MP has been relying on a PSV shuttle from Nairobi to Eldoret town whenever he wishes to travel home. From Eldoret, he hires a taxi to his rural home which is more than 70 kilometres away. He uses the taxi to make sure he does not meet with his constituents who might recognise him and ask for handouts.
***
The senate will be the most hotly contested election in 2012 instead of Parliament. Already, a number of sitting and former MPs are strategising on how they will become senators. In Nyeri, Mathira MP Ephraim Maina is leading the team of four key politicians who want to take the senator seat. Former Internal Security minister Chris Murungaru who represented Kieni constituency is eyeing the same seat as is former minister for Information Mutahi Kagwe. Kieni MP Nemesius Warugongo is also weighing on whether to go for the senate seat or defend his seat in Parliament. The toss-up is on which of the two— Parliament or Senate— is going to be more powerful.
***
We are informed that a commissioner with Committee of Experts has been eyeing the job of Director of Public Prosecutions after President Kibaki promulgates the new constitution on August 27. Our mole informs us that the commissioner has been spending time in offices of senior politicians in government hoping to impress them and land the plum job currently held by Keriako Tobiko. There are transitional clauses in the new constitution that state that the office will be taken over by the Attorney General Amos Wako until the new director is appointed. We are told that it is this loophole that has sparked intense lobbying for the job.
***
Our mole informs us that Makadara former MP Reuben Ndolo was handed a poisoned chalice through an ODM direct nomination. We are told that Ndolo would have to cut a deal with Nairobi City Deputy Mayor George Aladwa for the party to reclaim the seat it lost in the 2007 General Election. Supporters of Aladwa, the councillor for Kaloleni Makongeni ward, have now vowed to vote for either PNU candidate Dick Wathika or Narc Kenya's Mike Mbuvi aka Sonko in protest. This could hand the seat back to PNU, which has its votes in one basket.
***
Is a new onslaught against the ICC investigation of post-election violence through the Africa Union in the offing? We hear that some senior politicians in the Kenya government are pushing the AU to intervene at the Hague, claiming there is no more cause for Ocampo's intervention in Kenya with the new constitution in place. They intend to convince the AU to impress on the court that the new laws would bring forth major changes to the Judiciary and the police, enough to handle the business the ICC would have handled.
***
What happened to the inquiry against a senior police officer accused of pocketing some money from one of the G4S heists in Nairobi? We are now told that the investigation was closed soon after orders by senior officers to have it opened. We are informed the officer being investigated and the investigator were spotted together in Mombasa. Speculation is rife the two may have cut a deal to shelve the matter.
***
A prospective presidential candidate for 2012 who is not quite certain about his chances recently visited a seer to tell him what was in his future. The man's aides have now noticed that their boss has developed a peculiar habit of turning to face the direction he was coming from when he reaches the door, pretending that he is issuing instructions to those outside. It seems he was advised the by the well known "seer" to do this so that he changes his fortunes.
***
An MP has gone through a successful civil marriage with a white woman in North America without the knowledge of his first wife. Some of his many Kenyan friends living in that region have got wind of the event and rumours are flying that the man might eventually find himself in trouble once his new wife finds out she is not the only one. The nuptials are likely to add fuel to speculations about the man's citizenship.
***
A group of elders from Busia have another plan for the outgoing Attorney General Amos Wako. They want the smiling AG to consider running for governor under the new dispensation. According to the wazee Wako's 19 years in the civil service and his experience internationally give him an added edge and is proof that he can become a governor. They are now waiting for an opportune time to inform the AG of their decision.
***
Will Mandera Central MP Abdikadir Mohamed accept the offer of becoming the next Attorney General or not? Some Cabinet ministers and MPs from the PNU side have hinted that they will prevail on the President to appoint Mohammed as the next Attorney General. They believe that Mohammed's appointment would be a trade off with their coalition partners who are likely to present their own nominee for the Chief Justice's job. The formula they are working on is simple: support Mohammed for AG and we support your man for CJ.
***
Elders from Bureti constituency now want Roads minister Franklin Bett to reconcile with his Higher Education counterpart William Ruto as quickly as possible. The leaders feel that the parallel political paths the two leaders are taking is not good for the Kipsigis community. They want Bett to focus his energies on taking control of the South Rift where the elders think there is a leadership vacuum.
***
Three MPs on a KQ inaugural flight to Luanda, Angola decided to stay on for another day to take in the sights and sounds of that city because they were having a very good time. By the time the rest of the party on the KQ freebie departed, it was not clear whether KQ would cough up an extra $1,000 (Sh80,000) per day for the MPs.
***
An MP from the Rift Valley, whose love for beer is well known, is causing concern for his security detail for habitually sneaking out of Parliament to go to a bar frequented by youth on Accra Road, Nairobi. The MP's driver and bodyguards are worried that they will be blamed if any harm comes to him at the bar.
***
A powerful PS who was reportedly the man behind the demotion of Hassan Noor Hassan as a provincial commissioner is back on his track. The same PS has reportedly now gone to the Head of the Public Service Francis Muthaura to complain that the workaholic administrator should be removed as chairman of the Mau Secretariat. The PS's concerns are that Hassan might soon be promoted to a higher position in government.
***
A commissioner with the soon to be defunct Committee of Experts has reportedly been lobbying senior politicians for a key job at Sheria House. The COE's term of office comes to an end on August 27. The know-it-all source says the man is angling himself to take up the Attorney General's job as the current holder Amos Wako is expected to quit immediately after the new constitution comes into effect.
***
A senior assistant commissioner of police, who is suspected of hiding part of money recovered from one of the G4S heists in Nairobi is in trouble again. His seniors have raised questions about how he handled a drug trafficking case after it came to light that he has been collecting protection money from some of the city's drug lords.
***
A top ODM Cabinet minister is in the crosshairs of some officials at the party secretariat who suspect him of pocketing millions of shillings which had been set aside for the printing of campaign T-shirts for use by the Green team during the referendum campaigns.
This blog is simply about Kenya politics, devolution, governance and economy.
25 August, 2010
Pheroze Nowrojee - Father John Kaiser stood firm against injustice (Part 1) - The Star
On the Naiyasha-Nakuru road, there stands a cross rising tall on the verge of the road. On it is written "Rev. Fr. John A. Kaiser, Died here on 24.8.2000." The cross commemorates the life and memory of Father John Kaiser.
During this month of a glorious restoration for Kenya, we will also be celebrating the life of one who during the dark times gave his all so that we could win this glorious day for Kenya. Ten years ago, during those dark times, on August 24, 2000, Father John Kaiser was murdered by persons whom the Moi era's (otherwise omniscient) security forces said they could not identify or trace.
Father John Kaiser was born in the US in 1932. After military service in the US Army, he became a missionary priest as a member of the Mill Hill Mission (the St Joseph Missionary Society), and came to Kenya in 1964.
He was a priest who did not shut his eyes to wrong-doing nor lose his voice in the face of injustice. Fr Kaiser had the "remarkable ability to recognise evil for what it was". As early as 1968, he became convinced, by what he saw around him of the conduct of Kenya's rulers, that "if I, as a priest, were to live according to my conscience, I would have to be much more involved in the ordinary
He did not shut his eyes to wrongdoing nor lose his voice in the face of injustice. Kenyan citizens' struggle for injustice." He never deviated from that call of conscience. He unerringly and unceasingly identified that evil for the remaining 32 years of his life. It did not make him hesitate for an instant that the evil came successively from the most powerful in the land, or from shadowy squads around them, or from the provincial maladministration or greedy prominent families and their local beneficiaries.
As the 1992 ethnic attacks pushed whole communities into camps for displaced persons, he was to see despoilment, displacement, dispossession,- killing, the destruction of dignity. He spoke out against each. He tended to his parishioners in these camps, particularly at Maela, where thousands sheltered uncared for.
He entered these areas, illegally and in defiance of the barricades of the Moi government. He did this with other brave persons of caring: Catholic nuns like Sister Nuala Brangan and others from the Consolata Sisters and the Loreto Order, and Fr Francis Mwangi of the Catholic Justice and Peace Commission, all min¬isters whose names too will never be forgotten.
Fr Kaiser was beaten by the Provincial Administration into a semi-conscious state, handcuffed, thrown on to the floor of a Land Rover and physically moved out of the area. Earlier, he had already been identified by the Moi regime as a threat. He now became a target. He was brought under surveillance. He had become a danger to its ability to stifle dissent and exposure. This did not deter him in any way. He continued to attend to those who needed him and to speak out against those he saw as the perpetrators of the wrongs around him. His courage was inexhaustible, and he continued confronting injustice in its face.
Archbishop (as he then was) John Njue wrote, "Moved by compassion for his parishioners who were evicted, traumatised, hungry, suffering, reduced to dressing in rags and housed in plastic makeshift shelters under the burning sun, this simple parish priest challenged individuals, governments and nations at whose door he laid the blame. Neither did he fail to point a finger at himself or his church for failing to do more."
We call people like Fr Kaiser, 'simple'. This is not the appropriate word. For such persons, by their example, call us to the complex and difficult task of living by what we believe is right.
The ethnic attacks continued in the years that followed — away from the limelight, in remote areas, and for the personal benefit of the powerful. Fr Kaiser's parish was one such remote area.
He saw it all. His refusal to join the conspiracy of silence only increased the danger to him, already perceived as an enemy by the Moi regime lords in his area, like Julius ole Sunkuli, the local MP and powerful Secretary-General of Kanu, later to be mentioned in the Akiwumi Commission Report.
As the 1997 elections approached, the ethnic clashes again surfaced to national news. Fr Kaiser spoke out even more. He named persons in Moi's Government as the instigators of violence in Trans Mara. He spelt out the violations that the State-instigated ethnic attacks constituted.
The writer is a lawyer.
During this month of a glorious restoration for Kenya, we will also be celebrating the life of one who during the dark times gave his all so that we could win this glorious day for Kenya. Ten years ago, during those dark times, on August 24, 2000, Father John Kaiser was murdered by persons whom the Moi era's (otherwise omniscient) security forces said they could not identify or trace.
Father John Kaiser was born in the US in 1932. After military service in the US Army, he became a missionary priest as a member of the Mill Hill Mission (the St Joseph Missionary Society), and came to Kenya in 1964.
He was a priest who did not shut his eyes to wrong-doing nor lose his voice in the face of injustice. Fr Kaiser had the "remarkable ability to recognise evil for what it was". As early as 1968, he became convinced, by what he saw around him of the conduct of Kenya's rulers, that "if I, as a priest, were to live according to my conscience, I would have to be much more involved in the ordinary
He did not shut his eyes to wrongdoing nor lose his voice in the face of injustice. Kenyan citizens' struggle for injustice." He never deviated from that call of conscience. He unerringly and unceasingly identified that evil for the remaining 32 years of his life. It did not make him hesitate for an instant that the evil came successively from the most powerful in the land, or from shadowy squads around them, or from the provincial maladministration or greedy prominent families and their local beneficiaries.
As the 1992 ethnic attacks pushed whole communities into camps for displaced persons, he was to see despoilment, displacement, dispossession,- killing, the destruction of dignity. He spoke out against each. He tended to his parishioners in these camps, particularly at Maela, where thousands sheltered uncared for.
He entered these areas, illegally and in defiance of the barricades of the Moi government. He did this with other brave persons of caring: Catholic nuns like Sister Nuala Brangan and others from the Consolata Sisters and the Loreto Order, and Fr Francis Mwangi of the Catholic Justice and Peace Commission, all min¬isters whose names too will never be forgotten.
Fr Kaiser was beaten by the Provincial Administration into a semi-conscious state, handcuffed, thrown on to the floor of a Land Rover and physically moved out of the area. Earlier, he had already been identified by the Moi regime as a threat. He now became a target. He was brought under surveillance. He had become a danger to its ability to stifle dissent and exposure. This did not deter him in any way. He continued to attend to those who needed him and to speak out against those he saw as the perpetrators of the wrongs around him. His courage was inexhaustible, and he continued confronting injustice in its face.
Archbishop (as he then was) John Njue wrote, "Moved by compassion for his parishioners who were evicted, traumatised, hungry, suffering, reduced to dressing in rags and housed in plastic makeshift shelters under the burning sun, this simple parish priest challenged individuals, governments and nations at whose door he laid the blame. Neither did he fail to point a finger at himself or his church for failing to do more."
We call people like Fr Kaiser, 'simple'. This is not the appropriate word. For such persons, by their example, call us to the complex and difficult task of living by what we believe is right.
The ethnic attacks continued in the years that followed — away from the limelight, in remote areas, and for the personal benefit of the powerful. Fr Kaiser's parish was one such remote area.
He saw it all. His refusal to join the conspiracy of silence only increased the danger to him, already perceived as an enemy by the Moi regime lords in his area, like Julius ole Sunkuli, the local MP and powerful Secretary-General of Kanu, later to be mentioned in the Akiwumi Commission Report.
As the 1997 elections approached, the ethnic clashes again surfaced to national news. Fr Kaiser spoke out even more. He named persons in Moi's Government as the instigators of violence in Trans Mara. He spelt out the violations that the State-instigated ethnic attacks constituted.
The writer is a lawyer.
Yash Pal Ghai and Jill Cornell - New constitution is already in place
Some people have assumed that, like any other law, the new constitution needs to be signed by the President, and that this is what "promulgation" means.
But the designers of the constitution-making process that is just drawing to an end were very cautious. They learned from the debacle of Bomas, and decided to make this a process in which it was actually true that the people of Kenya were giving themselves the constitution -which is what the Preamble says.
The design required neither Parliament nor the President to assent to the document. Parliament had a chance to propose changes by a two-thirds majority - which they signally failed to do in April this year, being unable even to muster a quorum for the vote in most instances. No positive endorsement of the document was required by the current Constitution's special Article for enacting a new constitution - as we have argued previously. This lack of control clearly did not appeal to Parliament, which insisted on approving the document.
The final act necessary to enact the Constitution has taken place -ratification by the people in the referendum. If nothing else happens, the new constitution comes into force 14 days after the "final" referendum results are published.
However, out of courtesy to the President, perhaps, an act of promulgation was decided upon.
Promulgation usually refers to making the law public. A leading law dictionary gives the following possibly relevant meanings: to put into force or effect; the official publication of a new law, by which it is put into effect; to make a law publicly known after its enactment; to declare or announce publicly.
Various methods have been used historically to promulgate laws. In England in the 14th Century, laws were physically taken throughout the country, and the Constitution of Indiana in the US still says a law does not take effect until it has been "published and circulated in the several counties of the State".
The Queen's small dependency, the Isle of Man, still carries out a public, open-air ceremony of proclaiming laws. It is now restricted to a brief abstract of each law that has received the Royal Assent during the year, read in English and the local language.
In Kenya, the normal rule is that an Act of Parliament comes into legal effect the day it is published in the official Gazette.
The Constitution says: "The President shall, not later than fourteen days from the date of the publication of the final result of the referendum, promulgate and publish the text of the new Constitution in the Kenya Gazette."
The Constitution of Kenya Review Act 2008 says he must "by notice in the Gazette, promulgate the new Constitution ".This suggests promulgation is something separate from publication -which must also occur. But it clearly does not require that the President sign the Constitution - which is right, as we suggested. Indeed, the heading to the section is "Proclamation of New Constitution". It is unrealistic to expect the President (or anyone) to read out the text of the whole constitution.
It would be nice if he would read a summary of it, in the Isle of Man style. Perhaps the Prime Minister could read the same summary in Kiswahili. Then the President could sign, let us call it, an Instrument of Promulgation - to be published as a gazette notice.
The underlying idea of promulgation was that people should not be bound by laws they knew nothing about. Arguably, the people of Kenya know more than most peoples about their new constitution. But they have also been grievously misled about it. It is very fitting that various bodies are planning "people's promulgations" of the document around the country. But it is important that the people continue to learn about the constitution.
Perhaps the government, like South Africa, could publish a pocket-size version of the constitution (if the Kenyan schedules are mostly omitted, the two documents would be roughly the same size). But unlike the South Africans who have not done well in continuing the constitutional education of their people, Kenya should treat the introduction of the constitution into school teaching as an aspect of implementation.
And while we are on the subject, we consider that the date of promulgation is legally correct. The "final result" mentioned in the old constitution is the result after the expiry of the time for complaints about rigging in the referendum or the resolution of complaints if filed, reading the Review Act and the Constitution together.
This is a common-sense reading, which should satisfy everyone - no thanks to the drafters who could have made sure there was no tension between the old constitution and the Act.
Jill is a law researcher and teacher while Yash Ghat is the former chairman of the Constitution of Kenya Review Commission.
But the designers of the constitution-making process that is just drawing to an end were very cautious. They learned from the debacle of Bomas, and decided to make this a process in which it was actually true that the people of Kenya were giving themselves the constitution -which is what the Preamble says.
The design required neither Parliament nor the President to assent to the document. Parliament had a chance to propose changes by a two-thirds majority - which they signally failed to do in April this year, being unable even to muster a quorum for the vote in most instances. No positive endorsement of the document was required by the current Constitution's special Article for enacting a new constitution - as we have argued previously. This lack of control clearly did not appeal to Parliament, which insisted on approving the document.
The final act necessary to enact the Constitution has taken place -ratification by the people in the referendum. If nothing else happens, the new constitution comes into force 14 days after the "final" referendum results are published.
However, out of courtesy to the President, perhaps, an act of promulgation was decided upon.
Promulgation usually refers to making the law public. A leading law dictionary gives the following possibly relevant meanings: to put into force or effect; the official publication of a new law, by which it is put into effect; to make a law publicly known after its enactment; to declare or announce publicly.
Various methods have been used historically to promulgate laws. In England in the 14th Century, laws were physically taken throughout the country, and the Constitution of Indiana in the US still says a law does not take effect until it has been "published and circulated in the several counties of the State".
The Queen's small dependency, the Isle of Man, still carries out a public, open-air ceremony of proclaiming laws. It is now restricted to a brief abstract of each law that has received the Royal Assent during the year, read in English and the local language.
In Kenya, the normal rule is that an Act of Parliament comes into legal effect the day it is published in the official Gazette.
The Constitution says: "The President shall, not later than fourteen days from the date of the publication of the final result of the referendum, promulgate and publish the text of the new Constitution in the Kenya Gazette."
The Constitution of Kenya Review Act 2008 says he must "by notice in the Gazette, promulgate the new Constitution ".This suggests promulgation is something separate from publication -which must also occur. But it clearly does not require that the President sign the Constitution - which is right, as we suggested. Indeed, the heading to the section is "Proclamation of New Constitution". It is unrealistic to expect the President (or anyone) to read out the text of the whole constitution.
It would be nice if he would read a summary of it, in the Isle of Man style. Perhaps the Prime Minister could read the same summary in Kiswahili. Then the President could sign, let us call it, an Instrument of Promulgation - to be published as a gazette notice.
The underlying idea of promulgation was that people should not be bound by laws they knew nothing about. Arguably, the people of Kenya know more than most peoples about their new constitution. But they have also been grievously misled about it. It is very fitting that various bodies are planning "people's promulgations" of the document around the country. But it is important that the people continue to learn about the constitution.
Perhaps the government, like South Africa, could publish a pocket-size version of the constitution (if the Kenyan schedules are mostly omitted, the two documents would be roughly the same size). But unlike the South Africans who have not done well in continuing the constitutional education of their people, Kenya should treat the introduction of the constitution into school teaching as an aspect of implementation.
And while we are on the subject, we consider that the date of promulgation is legally correct. The "final result" mentioned in the old constitution is the result after the expiry of the time for complaints about rigging in the referendum or the resolution of complaints if filed, reading the Review Act and the Constitution together.
This is a common-sense reading, which should satisfy everyone - no thanks to the drafters who could have made sure there was no tension between the old constitution and the Act.
Jill is a law researcher and teacher while Yash Ghat is the former chairman of the Constitution of Kenya Review Commission.
Prof Amukowa Anangwe - Socialist state will protect the poor - The Star
The referendum was not an ordinary event but a silent revolution. There have been great revolutions like the American revolution (1775-89), French revolution (1789-1815), Russian revolution (1917) and the Chinese revolution (1949) that were bloody and dramatic.
The Kenyan one has been creeping in over the last two decades in a peaceful manner, except for the post-election violence in early 2008.
A critical examination of the document reveals monumental and epoch-making changes that are in the offing.
There are changes anticipated in the social, political and economic spheres, but the socialist content of the new constitution needs to be highlighted to reorient the Kenyan polity towards a socialist system.
The new constitution has a high dose of socialism, and this should be perceived positively since Kenya is long overdue for socialist transformation given the disappointment with the current economic system that has impoverished and marginalised many, and nurtured ethnicity and individualism.
Modern-day socialism is no longer about the dictatorship of the proletariat, nationalisation of the means of production, or centrality of state ownership and accumulation.
The contemporary Chinese experience has shown socialism can coexist conveniently with moderated capitalism. Nonetheless, socialism is still about the enhancement of human dignity, equity, social justice, inclusiveness, human rights, and protection of the poor in the society,.
Equity signifies equal treatment for all, equality of opportunity and the full realisation of potential by the citizenry without hindrance on account of poverty, poor education, parental background and other environmental constraints.
Equity is not about equality, and the latter is not even desirable for the good of society that seeks to prosper, and generate wealth. However, there are degrees of inequality in society which threaten its legitimacy and stability and result in widespread alienation, strife, and misery for many.
An optimum, desirable and just state is one of moderate inequality where nobody is allowed to fall into destitution, even though others are free to get rich.
On the other hand, social justice acquires relevance in a society that is highly unjust and it is a term used to justify extensive income redistribution and creation of an egalitarian society. As a principle, social justice is geared to ensure that all persons access basic human needs, regardless of differences on account of economic disparity, gender, race, ethnicity, citizenship, religion, age, and disability.
A related provision in the new constitution under Chapter Four, Article 43, is on economic and social rights which are patently socialist. It is stipulated that all Kenyans have a right:
It is only a socialist state that has so far proved to be effective and willing to bring about a free, just and egalitarian society.
A capitalist state is inherently incapable of ensuring equity and social justice because, as Karl Marx pointed out, it is an instrument of a select few whose preoccupation is to exploit the majority in their quest to accumulate wealth.
If Kenyans want equity and social justice for all, they need to rethink on the current economic system and embrace socialism.
If Kenya were to embrace socialism, the policy agenda would have to change fundamentally with a focus on ensuring free education at all levels, free health services, gender equity and economic empowerment of women, poverty alleviation programmes and redistribution of land.
Realisation of such a policy agenda in Kenya would require ideological shift towards socialism that would have to be informed by the experience of the welfare state in Western Europe and former communist regimes in Eastern Europe where the role of the state in economic and social spheres expanded as a necessity.
Prof Amukowa Anangwe teaches political science at the University of Dodoma, Tanzania
The Kenyan one has been creeping in over the last two decades in a peaceful manner, except for the post-election violence in early 2008.
A critical examination of the document reveals monumental and epoch-making changes that are in the offing.
There are changes anticipated in the social, political and economic spheres, but the socialist content of the new constitution needs to be highlighted to reorient the Kenyan polity towards a socialist system.
The new constitution has a high dose of socialism, and this should be perceived positively since Kenya is long overdue for socialist transformation given the disappointment with the current economic system that has impoverished and marginalised many, and nurtured ethnicity and individualism.
Modern-day socialism is no longer about the dictatorship of the proletariat, nationalisation of the means of production, or centrality of state ownership and accumulation.
The contemporary Chinese experience has shown socialism can coexist conveniently with moderated capitalism. Nonetheless, socialism is still about the enhancement of human dignity, equity, social justice, inclusiveness, human rights, and protection of the poor in the society,.
Equity signifies equal treatment for all, equality of opportunity and the full realisation of potential by the citizenry without hindrance on account of poverty, poor education, parental background and other environmental constraints.
Equity is not about equality, and the latter is not even desirable for the good of society that seeks to prosper, and generate wealth. However, there are degrees of inequality in society which threaten its legitimacy and stability and result in widespread alienation, strife, and misery for many.
An optimum, desirable and just state is one of moderate inequality where nobody is allowed to fall into destitution, even though others are free to get rich.
On the other hand, social justice acquires relevance in a society that is highly unjust and it is a term used to justify extensive income redistribution and creation of an egalitarian society. As a principle, social justice is geared to ensure that all persons access basic human needs, regardless of differences on account of economic disparity, gender, race, ethnicity, citizenship, religion, age, and disability.
A related provision in the new constitution under Chapter Four, Article 43, is on economic and social rights which are patently socialist. It is stipulated that all Kenyans have a right:
- To highest attainable standard of health, which includes the right to health care services.
- To accessible and adequate housing, and to reason¬able standards of sanitation.
- To be free from hunger.
- To education;
- To clean and safe water in adequate quantities; and
- To social security to be provided by the state to Kenyans who are unable to support themselves.
It is only a socialist state that has so far proved to be effective and willing to bring about a free, just and egalitarian society.
A capitalist state is inherently incapable of ensuring equity and social justice because, as Karl Marx pointed out, it is an instrument of a select few whose preoccupation is to exploit the majority in their quest to accumulate wealth.
If Kenyans want equity and social justice for all, they need to rethink on the current economic system and embrace socialism.
If Kenya were to embrace socialism, the policy agenda would have to change fundamentally with a focus on ensuring free education at all levels, free health services, gender equity and economic empowerment of women, poverty alleviation programmes and redistribution of land.
Realisation of such a policy agenda in Kenya would require ideological shift towards socialism that would have to be informed by the experience of the welfare state in Western Europe and former communist regimes in Eastern Europe where the role of the state in economic and social spheres expanded as a necessity.
Prof Amukowa Anangwe teaches political science at the University of Dodoma, Tanzania
David Makali - Political careers bound to suffer - The Star
I have been wondering what sometimes drives people into politics? Whether it is the craving for social status and prestige or the opportunity to make a quick buck through political connections and shady deals. Or may be it is the hefty pay that MPs are wont to award themselves. But still there are those who claim that they are responding to a leadership call "due to popular demand".
Whatever it is that drives them, it is obvious that holders of elective public office, almost always never seem to achieve their mission regardless of how long they stay on, making politics the most addictive social habit. The longer one stays in office the more ambitious and greedier you become. And that addiction comes with a heavy price; soon, five years are gone and many are knocked out. The result is almost always uniform. I am yet to meet a prosperous former MP one year after losing an election.
Yet, that has not deterred legions of others from chasing after the wind. Since the passage of the new constitution, literally everyone who is anyone I know has been wagging their tongues and salivating at the myriad positions to be contested, oblivious of the humbling lessons from the past.
For starters, as soon as the new constitution is promulgated this Friday, the MPs in the current Parliament will lose four months of their term because elections will have to be held in August and not December 2012.
But that is small matter in the heartthrob of a politician. The fatal attraction to tense, racy competition, the risk of heart attacks and the threat of financial strain is nothing to a politician's stumbling egos. It is what separates wily politicians from us nondescript humans.
And as the referendum paves the way for the election, the ecstasy is trebling too, setting the stage for the most complicated and exciting period in Kenya political history. You are spoilt for choice in the devolved new structure of government: you are eligible for countless positions from county representative, Speaker of the country government, mayor of your town, County Governor, Senator, MP, Vice President and President.
But therein lies the catch again — many careers are about to meet their end. Devolution has effectively rendered the hitherto glorified position of MP hollow and lowly setting off a scramble out among incumbent. The fact that Cabinet will be appointed from outside parliament has relegated MPs to the current status of councillors. It is more glamorous to be a Senator or Governor, both of which now pack more prestige.
Now, some MPs are gasping for anything that will raise their egos and feasibility at the local and national level from the forest of positions.
My sympathies go to some outspoken MPs who will not find vacancies at the national level either as presidential candidates or running mates, which they have long coveted. In the new era where political coalitions will no longer hold because a President must be elected by a clear majority, some careers pegged on ethnic and regional leverage are destined to the political dustbin.
There can be no telling whether a political pact or alliance formed will be honoured because the President may not be able to reward even his most trusted lieutenants with Cabinet appointments or foist them on the parastatals. They will be vetted by Parliament, which may rubbish them.
So the Big Boys Club that has always banked its hopes on coalitions has to go back to the drawing board. A stab at the presidency is now a do-or-die affair; if you lose, chances are high you will be vanguished from politics forever without the previous soft landing. Political debts will need to be written off and some targets will have to be lowered. Senator or Governor positions may still be too low for some political honchos, but that is about the best that is available.
Last week, sympathisers of a well-known regional kingpin were consulting how their man will be compelled to vie for Governor or Senator of a tiny county even though his clout is much bigger.
Well, the unhappy situation is that he will be no more powerful than other governors in the same region with similar ethnic composition so it will not be futile to purport to be more powerful than others in the new dispensation.
Which is just as well. The new constitution will eliminate jokers who attend our ballot papers every election year as contestants for the presidency. It will reduce the race to a three-horse affair with the prospect that it will gradually lessen ethnicity and fire up the stakes in our country's national leader.
If the new constitution can achieve that, it will have served Kenyans well.
Makali is the director- of The Media Institute. Email dmakali@yahoo.com
Whatever it is that drives them, it is obvious that holders of elective public office, almost always never seem to achieve their mission regardless of how long they stay on, making politics the most addictive social habit. The longer one stays in office the more ambitious and greedier you become. And that addiction comes with a heavy price; soon, five years are gone and many are knocked out. The result is almost always uniform. I am yet to meet a prosperous former MP one year after losing an election.
Yet, that has not deterred legions of others from chasing after the wind. Since the passage of the new constitution, literally everyone who is anyone I know has been wagging their tongues and salivating at the myriad positions to be contested, oblivious of the humbling lessons from the past.
For starters, as soon as the new constitution is promulgated this Friday, the MPs in the current Parliament will lose four months of their term because elections will have to be held in August and not December 2012.
But that is small matter in the heartthrob of a politician. The fatal attraction to tense, racy competition, the risk of heart attacks and the threat of financial strain is nothing to a politician's stumbling egos. It is what separates wily politicians from us nondescript humans.
And as the referendum paves the way for the election, the ecstasy is trebling too, setting the stage for the most complicated and exciting period in Kenya political history. You are spoilt for choice in the devolved new structure of government: you are eligible for countless positions from county representative, Speaker of the country government, mayor of your town, County Governor, Senator, MP, Vice President and President.
But therein lies the catch again — many careers are about to meet their end. Devolution has effectively rendered the hitherto glorified position of MP hollow and lowly setting off a scramble out among incumbent. The fact that Cabinet will be appointed from outside parliament has relegated MPs to the current status of councillors. It is more glamorous to be a Senator or Governor, both of which now pack more prestige.
Now, some MPs are gasping for anything that will raise their egos and feasibility at the local and national level from the forest of positions.
My sympathies go to some outspoken MPs who will not find vacancies at the national level either as presidential candidates or running mates, which they have long coveted. In the new era where political coalitions will no longer hold because a President must be elected by a clear majority, some careers pegged on ethnic and regional leverage are destined to the political dustbin.
There can be no telling whether a political pact or alliance formed will be honoured because the President may not be able to reward even his most trusted lieutenants with Cabinet appointments or foist them on the parastatals. They will be vetted by Parliament, which may rubbish them.
So the Big Boys Club that has always banked its hopes on coalitions has to go back to the drawing board. A stab at the presidency is now a do-or-die affair; if you lose, chances are high you will be vanguished from politics forever without the previous soft landing. Political debts will need to be written off and some targets will have to be lowered. Senator or Governor positions may still be too low for some political honchos, but that is about the best that is available.
Last week, sympathisers of a well-known regional kingpin were consulting how their man will be compelled to vie for Governor or Senator of a tiny county even though his clout is much bigger.
Well, the unhappy situation is that he will be no more powerful than other governors in the same region with similar ethnic composition so it will not be futile to purport to be more powerful than others in the new dispensation.
Which is just as well. The new constitution will eliminate jokers who attend our ballot papers every election year as contestants for the presidency. It will reduce the race to a three-horse affair with the prospect that it will gradually lessen ethnicity and fire up the stakes in our country's national leader.
If the new constitution can achieve that, it will have served Kenyans well.
Makali is the director- of The Media Institute. Email dmakali@yahoo.com
Libel awards need to be consistent - The Star
Erratic libel awards are leading to self-censorship by fearful media. Those falsely defamed by the media deserve compensation, but the awards should be consistent
Last week a claimant was awarded Sh3 million in a case against Radio Africa (See below).
A caller had telephoned Kiss FM and complained that a lawyer fought with him in a bar. The presenter quickly took the caller off air. Radio Africa tried to settle with the plaintiff but he was not interested. The caller testified in court that the lawyer had indeed fought with him but the judge said she did not believe him.
The award of Sh3 million appears excessive. The Kiss presenter did not indulge the caller. It was the caller's word against the lawyer. It was a fleeting radio broadcast, unlike a permanent print publication. And an attempt to settle normally mitigates damages.
Moreover the benchmark award is Sh6 million given to Chief Justice Evan Gicheru for a more grievous libel. This case was not half as bad as Gicheru's.
The Judiciary should lay down clear rules for calculating libel awards, based on the reach of the media outlet, the extent of the libel, and the social standing of the claimant.
Kiss FM to pay lawyer Sh3m for defamation - By Pamela Chepkemei
KISS 100 FM has been ordered to pay a city lawyer Sh3 million damages for defamation.
Lawyer Nicholas Sumba had sued the station for defamation.
But judge Abida Ali Aroni ordered that the damages will be jointly paid by a caller, Thomas Okal, and the radio station.
Okal is said to have called the radio station to complain about his lawyer Sumba seven years ago in a programme called People's Parliament.
In the conversation aired live, Okal accused the lawyer of assaulting him after terminating his services.
He told the then presenter Jimmy Gathu that Sumba had been assisting him in demanding payment from his former employer.
He also accused the lawyer of colluding with officers at the Central police station. Sumba denied the allegations, saying he did not assault his former client.
Justice Abida Ali Aroni said Okal did not prove the assault.
She said there were no medical records showing that Okal was assaulted.
The lawyer accused Okal of portraying him as corrupt and violent.
He had asked the court to award him Sh5 million in damages.
Last week a claimant was awarded Sh3 million in a case against Radio Africa (See below).
A caller had telephoned Kiss FM and complained that a lawyer fought with him in a bar. The presenter quickly took the caller off air. Radio Africa tried to settle with the plaintiff but he was not interested. The caller testified in court that the lawyer had indeed fought with him but the judge said she did not believe him.
The award of Sh3 million appears excessive. The Kiss presenter did not indulge the caller. It was the caller's word against the lawyer. It was a fleeting radio broadcast, unlike a permanent print publication. And an attempt to settle normally mitigates damages.
Moreover the benchmark award is Sh6 million given to Chief Justice Evan Gicheru for a more grievous libel. This case was not half as bad as Gicheru's.
The Judiciary should lay down clear rules for calculating libel awards, based on the reach of the media outlet, the extent of the libel, and the social standing of the claimant.
Kiss FM to pay lawyer Sh3m for defamation - By Pamela Chepkemei
KISS 100 FM has been ordered to pay a city lawyer Sh3 million damages for defamation.
Lawyer Nicholas Sumba had sued the station for defamation.
But judge Abida Ali Aroni ordered that the damages will be jointly paid by a caller, Thomas Okal, and the radio station.
Okal is said to have called the radio station to complain about his lawyer Sumba seven years ago in a programme called People's Parliament.
In the conversation aired live, Okal accused the lawyer of assaulting him after terminating his services.
He told the then presenter Jimmy Gathu that Sumba had been assisting him in demanding payment from his former employer.
He also accused the lawyer of colluding with officers at the Central police station. Sumba denied the allegations, saying he did not assault his former client.
Justice Abida Ali Aroni said Okal did not prove the assault.
She said there were no medical records showing that Okal was assaulted.
The lawyer accused Okal of portraying him as corrupt and violent.
He had asked the court to award him Sh5 million in damages.
Jerry Okungu - Tech did the trick during referendum - The Star
Mark Twain once said, "Do the right thing. It will gratify some and astonish the rest." I remembered this quote when I started reflecting on what transpired in Kenya during the referendum. I'm sure many Kenyans and our friends abroad have equally had time to reflect on the unprecedented transformation that seemed to have taken place in the way we conduct our elections.
Yet, as I wrote this article, I found it difficult to come to terms with the thought that just two years ago, we conducted our national elections using tired old men whose idea of new technology stopped at the landline and the fax machine. How did we so swiftly move from Stone Age election Management System to the 21st Century electronic device? Were these facilities available two years ago? How could we have made such a leap of faith in such a short time?
Ahmed Issack Hassan, his commissioners and the secretariat made this leap for two reasons.
The leadership of the IIEC was young and exposed. But more importantly, they were not afraid to take the leap of faith into the world of new technology.
Apart from being adventurous, they seemed to have bought into the idea that being in the Knowledge Age, they were aware that knowledge is no longer the power source to be hoarded.
In the present world, knowledge is like fresh milk that must be used on time or it goes sour. For this reason, they realised that it was better to share the referendum results with all Kenyans and indeed the rest of the world in real time. And in so doing, they would kill two birds with one stone; increase transparency and accountability as they restored public confidence in Kenya's electoral process.
When Issack and his team decided to equip every polling station with an electronic gadget, link it to the constituency tallying centre then to the National Tallying Centre in Nairobi, they inadvertently networked the whole country. And with this little device, two thirds of votes cast were all in Nairobi and known to Kenyans and the rest of the world in two hours after the poll stations closed down.
At the beginning I was very concerned about the way the three main media stations were relaying the results. At some point, Citizen TV was showing that Greens had 41,420 Votes as Reds trailed with 17,111. At that moment, KTN was showing 49,506 for Greens as the Reds trailed behind with 12,532. Mean-while on NTV screen, Greens had 38,315 votes counted as the Reds trailed with 17,759 votes cast.
It was only after the IIEC reigned in on these networks and ordered that they could only relay what the IIEC screen was showing that order returned to the relief of many viewers. And it was better that IIEC took that decision because at that moment they were miles ahead with their tallying already clocking 1.7 million votes for the Greens against close to 1 million votes for the Reds. But more importantly, these distorted figures could have sent viewers thinking that someone was up to some mischief with the results.
Although the three main TV networks fumbled at the beginning with numbers and graphics that were hardly visible, they eventually put their act together and conducted a superb vote monitoring.
Yet with all this elaborate technological and logistical preparation, it was difficult to understand why 24 hours after the poll stations closed, the IIEC could still not receive official results from returning officers in three constituencies. Even more intriguing was the fiasco at Embakasi Dooholm polling station where close to 1,000 voters went away because their names were not on the voters' register. And even when they were finally allowed to vote, it took forever to finish voting in that centre.
Indeed when late in the night the Reds complained of electronic transmission of votes from the polling stations, Issack stood his ground and reminded them that "politicians don't conduct elections; they contest them. It is the work of the IIEC to conduct elections."
There was one peculiar thing that happened with this referendum. Much as the international media descended on Nairobi and other so-called hot spots hoping for another round of mayhem as happened in 2007, they folded their cameras and took off when they realised that Kenyans had decided to vote peacefully.
By midday the next day, there was hardly any news on the referendum in international networks. Just goes to show that only violence sell for Western media.
Yet to a discerning news hunter, there were many peculiar aspects of this referendum they could have reported on. The death of a returning officer, an IIEC hired boat near capsizing across River Tana, election vehicles getting stuck in impassable roads and the use of donkeys to transport voting materials in Northern Kenya could still have intrigued the civilised world.
The writer is a media consultant.
Yet, as I wrote this article, I found it difficult to come to terms with the thought that just two years ago, we conducted our national elections using tired old men whose idea of new technology stopped at the landline and the fax machine. How did we so swiftly move from Stone Age election Management System to the 21st Century electronic device? Were these facilities available two years ago? How could we have made such a leap of faith in such a short time?
Ahmed Issack Hassan, his commissioners and the secretariat made this leap for two reasons.
The leadership of the IIEC was young and exposed. But more importantly, they were not afraid to take the leap of faith into the world of new technology.
Apart from being adventurous, they seemed to have bought into the idea that being in the Knowledge Age, they were aware that knowledge is no longer the power source to be hoarded.
In the present world, knowledge is like fresh milk that must be used on time or it goes sour. For this reason, they realised that it was better to share the referendum results with all Kenyans and indeed the rest of the world in real time. And in so doing, they would kill two birds with one stone; increase transparency and accountability as they restored public confidence in Kenya's electoral process.
When Issack and his team decided to equip every polling station with an electronic gadget, link it to the constituency tallying centre then to the National Tallying Centre in Nairobi, they inadvertently networked the whole country. And with this little device, two thirds of votes cast were all in Nairobi and known to Kenyans and the rest of the world in two hours after the poll stations closed down.
At the beginning I was very concerned about the way the three main media stations were relaying the results. At some point, Citizen TV was showing that Greens had 41,420 Votes as Reds trailed with 17,111. At that moment, KTN was showing 49,506 for Greens as the Reds trailed behind with 12,532. Mean-while on NTV screen, Greens had 38,315 votes counted as the Reds trailed with 17,759 votes cast.
It was only after the IIEC reigned in on these networks and ordered that they could only relay what the IIEC screen was showing that order returned to the relief of many viewers. And it was better that IIEC took that decision because at that moment they were miles ahead with their tallying already clocking 1.7 million votes for the Greens against close to 1 million votes for the Reds. But more importantly, these distorted figures could have sent viewers thinking that someone was up to some mischief with the results.
Although the three main TV networks fumbled at the beginning with numbers and graphics that were hardly visible, they eventually put their act together and conducted a superb vote monitoring.
Yet with all this elaborate technological and logistical preparation, it was difficult to understand why 24 hours after the poll stations closed, the IIEC could still not receive official results from returning officers in three constituencies. Even more intriguing was the fiasco at Embakasi Dooholm polling station where close to 1,000 voters went away because their names were not on the voters' register. And even when they were finally allowed to vote, it took forever to finish voting in that centre.
Indeed when late in the night the Reds complained of electronic transmission of votes from the polling stations, Issack stood his ground and reminded them that "politicians don't conduct elections; they contest them. It is the work of the IIEC to conduct elections."
There was one peculiar thing that happened with this referendum. Much as the international media descended on Nairobi and other so-called hot spots hoping for another round of mayhem as happened in 2007, they folded their cameras and took off when they realised that Kenyans had decided to vote peacefully.
By midday the next day, there was hardly any news on the referendum in international networks. Just goes to show that only violence sell for Western media.
Yet to a discerning news hunter, there were many peculiar aspects of this referendum they could have reported on. The death of a returning officer, an IIEC hired boat near capsizing across River Tana, election vehicles getting stuck in impassable roads and the use of donkeys to transport voting materials in Northern Kenya could still have intrigued the civilised world.
The writer is a media consultant.
Ndung'u Wainaina - Time we all stood up for IDPs' justice - The Star
My heart continues to bleed for the thousands of IDPs being tortured and exploited in camps and transition camps. Further my call for attention to hundreds of victims who are suffering from grave harm inflicted on them including some with bullets in their bodies following the post-election violence.
Two and half years on it is tragic that politicians, for whom these people suffered, shared spoils and abandoned them. The needs of these victims are being forgotten because their voices are consistently ignored.
To uphold the rule of law and have justice for these victims, I hope you will speak up for justice at every opportunity. Domestic and international law is supposed to guarantee that those who committed such heinous crimes face justice.
We must have a special tribunal working in complementarity with International Criminal Court to prosecute those who committed these crimes. It is also important to deny a visa to those suspected of serious crimes.
As individuals and as groups, we must break the silence and speak up about justice for these terrible crimes. I am confident that we can achieve justice. Unless government of Kenya is willing to bring prosecutions for these worst human rights abuses, it will have a hard time achieving political stability and sustainable development even under the new constitution. Impunity leads to conflict, corruption, and lives stunted by fear and intimidation.
Victims don't stop being victims and criminal acts are not simply absolved just because Kenya is promulgating a new constitution. The victims and the public deserve to know the truth about the post-election violence.
New constitutional order calls for a return to human rights and accountability, not to engage in willful amnesia.
The government must operationalise an effective and credible victim-and-witness assistance and protection mechanism, which is one of the basic preconditions for ensuring accountability for human rights violations.
If Kenya wants to show . that it is willing and able to conduct serious crimes trials, it must effectively protect victims and witnesses from intimidation and harassment. Torturers, financiers of violations and those who violate human rights should be brought to account. We should not forget the victims who have gone through trauma and disruption of everyday life and their future.
The right to a remedy and reparation is a basic human right. It is enshrined in numerous international human rights instruments.
Reparation is the last step in the achievement of full human rights protection. Firstly, violations of human rights should be prevented. Secondly, if a violation does take place, it must be investigated by the State authorities, promptly, thoroughly and impartially. Thirdly, victims should have access to justice. And finally, victims have the right to receive adequate reparation.
The fact that reparation is the last step in the achievement of human rights protection might be one reason why so little focus has been put on this issue so far. It should be addressed more consistently and thoroughly by the government, not as a privilege to the victims but as an obligation by international law.
Financial compensation is the most widespread form of reparation. Some damage can be easily estimated in monetary terms. But there are the physical, mental or moral damages. Financial compensation is not the only remedy which victims seek. Other forms of reparation include: restitution of the situation before the violation took place; rehabilitation; satisfaction; revelation of the truth and accountability; and guarantees of non-repetition.
By taking a victim-oriented approach, we affirm our human solidarity with victims of gross violations of human rights. We seek to compensate them for risks which the state could not prevent from turning into damage and harm.
However, reparation can never fully undo the damage that has been done. Gross violations of human rights are irreparable. But this must not impede us from fighting to achieve justice.
The starting point for redress is addressing questions of criminal responsibility. It is necessary to make a real break with abusive policies and practices of the past. If Kenya wants to have a successful transition from an era of impunity to respect for the rule of law, it needs to embrace truth, justice and reparation for human rights violations.
Wainaina is the executive director, International Centre for Policy and Conflict.
Two and half years on it is tragic that politicians, for whom these people suffered, shared spoils and abandoned them. The needs of these victims are being forgotten because their voices are consistently ignored.
To uphold the rule of law and have justice for these victims, I hope you will speak up for justice at every opportunity. Domestic and international law is supposed to guarantee that those who committed such heinous crimes face justice.
We must have a special tribunal working in complementarity with International Criminal Court to prosecute those who committed these crimes. It is also important to deny a visa to those suspected of serious crimes.
As individuals and as groups, we must break the silence and speak up about justice for these terrible crimes. I am confident that we can achieve justice. Unless government of Kenya is willing to bring prosecutions for these worst human rights abuses, it will have a hard time achieving political stability and sustainable development even under the new constitution. Impunity leads to conflict, corruption, and lives stunted by fear and intimidation.
Victims don't stop being victims and criminal acts are not simply absolved just because Kenya is promulgating a new constitution. The victims and the public deserve to know the truth about the post-election violence.
New constitutional order calls for a return to human rights and accountability, not to engage in willful amnesia.
The government must operationalise an effective and credible victim-and-witness assistance and protection mechanism, which is one of the basic preconditions for ensuring accountability for human rights violations.
If Kenya wants to show . that it is willing and able to conduct serious crimes trials, it must effectively protect victims and witnesses from intimidation and harassment. Torturers, financiers of violations and those who violate human rights should be brought to account. We should not forget the victims who have gone through trauma and disruption of everyday life and their future.
The right to a remedy and reparation is a basic human right. It is enshrined in numerous international human rights instruments.
Reparation is the last step in the achievement of full human rights protection. Firstly, violations of human rights should be prevented. Secondly, if a violation does take place, it must be investigated by the State authorities, promptly, thoroughly and impartially. Thirdly, victims should have access to justice. And finally, victims have the right to receive adequate reparation.
The fact that reparation is the last step in the achievement of human rights protection might be one reason why so little focus has been put on this issue so far. It should be addressed more consistently and thoroughly by the government, not as a privilege to the victims but as an obligation by international law.
Financial compensation is the most widespread form of reparation. Some damage can be easily estimated in monetary terms. But there are the physical, mental or moral damages. Financial compensation is not the only remedy which victims seek. Other forms of reparation include: restitution of the situation before the violation took place; rehabilitation; satisfaction; revelation of the truth and accountability; and guarantees of non-repetition.
By taking a victim-oriented approach, we affirm our human solidarity with victims of gross violations of human rights. We seek to compensate them for risks which the state could not prevent from turning into damage and harm.
However, reparation can never fully undo the damage that has been done. Gross violations of human rights are irreparable. But this must not impede us from fighting to achieve justice.
The starting point for redress is addressing questions of criminal responsibility. It is necessary to make a real break with abusive policies and practices of the past. If Kenya wants to have a successful transition from an era of impunity to respect for the rule of law, it needs to embrace truth, justice and reparation for human rights violations.
Wainaina is the executive director, International Centre for Policy and Conflict.
19 August, 2010
The Star Corridors of Power Political Gossip
Vice President Kalonzo Musyoka may have delivered 53 per cent of the Yes vote in Ukambani but his future looks bleak, some of the MPs allied to him were overheard saying. They expressed concern that the nascent alliance between Prime Minister Raila Odinga and his deputy Uhuru Kenyatta spelt doom for their man and that Kalonzo may have to switch camps if the alliance takes shape.
***
An MP from Nyanza is breathing a sigh of relief after police arrested a contractor who has been extorting money from him. The MP gave the contractor seed money to start his business only for the man to refuse to pay back. Instead, the contractor conspired with a Migori-based lawyer to forge court papers, which claimed the MP had been sued for a number of offences. The lawyer then opted to negotiate an "out of court settlement" on condition that the MP made a down payment of Sh100,000, which the MP did. But even before the "negotiations" started, the lawyer and the contractor demanded another payment of Sh50,000 which the MP paid on the understanding that the matter will end after the negotiations are completed. Only after he had parted with the money did the MP bother to check the authenticity of the court papers. He discovered that the papers had been forged and there was no such case against him in a Kisii court as claimed by the lawyer.
***
A Makadara parliamentary aspirant ran into trouble with Prime Minister Raila Odinga's security guards when he attempted to pay the PM an unannounced visit in the early hours of the morning. Raila's security blocked the man from entering the PM's Karen home. They told the mheshimiwa wannabe that their boss was asleep and it would be rude to wake him up. We have been told the man wanted to report an ODM Cabinet minister whom he claims has conned him out of millions of shillings in the last few months.
***
Former Nyakach MP Peter Odoyo has been hoping and waiting for an appointment as a diplomat. Those close to him say the former MP was promised a diplomatic posting, which has yet to materialise. They now suspect that someone in the government is deliberately placing hurdles in the way.
***
An MP from South Nyanza lost his cool on Monday night because he was not named to the Cabinet during the mini-reshuffle. The MP had reportedly invested quite a bit of his fortune and hope in another MP who was supposed to "broker" the appointment for him. Apart from monetary persuasion, the MP had also bought the 'broker' several expensive suits from Dubai, to urge him on!
***
A group of Rift Valley MPs who campaigned for the proposed constitution against the wishes of their constituents are hoping to switch sides. The group is looking for an opportunity when they can ditch Prime Minister Raila Odinga and reinvent themselves by throwing their support behind Higher Education minister and Raila's estranged deputy ODM party leader William Ruto's team.
***
A first time MP in Ukambani keen on boosting his profile has been attending funds drives where he donates money claiming he has been sent by big time politicians. The ruse might work for the hoi polloi but some of his political rivals are considering exposing him. The latest such announcement, which has raised suspicion from his rivals, is his recent donation of Sh50,000, which he claimed was from Deputy Prime Minister Uhuru Kenyatta.
***
A Cabinet minister has installed a CCTV camera in both his private and government offices to capture on tape some members of a parliamentary committee who are fond of blackmailing ministers to part with cash to stop the committee from 'probing' them. One of the MPs who is a member of the committee has reportedly been getting huge amounts from ministers, Somali and Indian businessmen by claiming he has a dossier on their activities, which they do not want exposed.
***
The increasing closeness between Prime Minister Raila Odinga's wife Ida and former Starehe MP and assistant minister Bishop Dr Margaret Wanjiru is causing concerns among some in the ODM hierarchy. They feel that the Jesus is Alive Ministries' bishop had shown party disloyalty by ganging up with the No team and therefore should be sidelined. They feel the party would not be able to 'bully her out' if she continued building up on her links with Ida.
***
Speculation that suspended managing director David Waweru might be reinstated caused a panic in some quarters at the Kenya Broadcasting Corporation yesterday after the Corridors of Power tidbit. But some of those who claim to be in the know say the speculation was a test balloon to see how his reinstatement would be received. "A rumour is sometimes just a rumour but sometimes it's spread for a reason," one of them told Corridors.
***
Love of speed is not confined to rally freaks with souped up cars. Deputy Prime Minister Musalia Mudavadi's four-car convoy yesterday whizzed at nearly 180 kph from Nakuru to Nairobi. Motorists, including those travelling at a comfortable 140 kph on the smooth highway were left behind as the convoy zigzagged out of sight within a minute. Mudavadi had just left a Local Government meeting in Nakuru at 11 am and was headed to Nairobi to attend the joint ODM/PNU parliamentary group meeting. His escorts who were in one of the cars leading the convoy intimidated and harassed slow driving motorists to move to the side and let the convoy pass. They terrified drivers by pointing fingers at those who hesitated to give way. Maximum speed on Kenyan roads for private cars is 110kph.
***
A senior Cabinet Minister keen on contesting the Presidency in 2012 has now ordered two choppers for his campaigns. The two ex-Russian choppers are expected in the country mid next year just in time for the man to hit to the skies as he starts his campaigns. The minister has intimated that his plan B is to go for the deputy president's position.
***
A powerful Cabinet minister from the Rift Valley has made matatu owners look up. He has bought 18 brand new mini-buses, painted them the regulation white colour and registered them to operate the Kitengela and Ongata Rongai routes. Traffic policemen operating along these two routes have been discreetly warned to lay off and not to interfere with the new fleet of matatus.
***
Professor George Saitoti who is not known to speak in vernacular — either Maa or Kikuyu — surprised many when he opted to greet a Yes campaign rally at Kirigiti Stadium in Kikuyu. Saitoti had accompanied President Kibaki. The 'lapse' was not a mistake. Saitoti, who is considered one of the possible presidential candidates in 2012, spoke in Kikuyu because he wanted the people to realise that he is one of them. Saitoti later explained that his mother was a Kikuyu and his father a Maasai. But the lapse' did not go down well with some of the PNU people who wondered why Saitoti always uses the services of a translator when speaking to his Maa constituents.
***
Speculation is rife that suspended KBC managing director David Waweru might soon return to his old job. Waweru was suspended last month over a World Cup broadcasting deal that went bad. The board is yet to decide if they will reinstate Waweru to his job but even before the board's decision is known, the rumours have started flying.
***
Francis Kimemia, the quietly efficient Permanent Secretary in the Ministry of Internal Security, might decide to dive into the stormy political waters. Some of his close associates have intimated that Kimemia might try his luck at one of the 'big seats' in the 2012 elections. The man has however not disclosed his intentions in public and is reportedly waiting for the right time.
***
Former Baringo Central MP Gideon Moi is eyeing the seat of senator during the next elections. He will once again be following in the footsteps of his father who served as a member of the Legislative Council representing the Rift Valley in pre-independent Kenya. It seems the younger Moi might have a better chance of becoming a county senator than president — at least for now.
***
The much-awaited autobiography of Prime Minister Raila Odinga is soon to be completed and will be launched mid next year. The PM decided to take on the job himself after he fired an assistant he had got to put the memoirs together. The forced rest imposed on him by his doctors gave him time to put down his thoughts, reminiscences and views before they are handed over to professional editors.
***
An MP from Nyanza is breathing a sigh of relief after police arrested a contractor who has been extorting money from him. The MP gave the contractor seed money to start his business only for the man to refuse to pay back. Instead, the contractor conspired with a Migori-based lawyer to forge court papers, which claimed the MP had been sued for a number of offences. The lawyer then opted to negotiate an "out of court settlement" on condition that the MP made a down payment of Sh100,000, which the MP did. But even before the "negotiations" started, the lawyer and the contractor demanded another payment of Sh50,000 which the MP paid on the understanding that the matter will end after the negotiations are completed. Only after he had parted with the money did the MP bother to check the authenticity of the court papers. He discovered that the papers had been forged and there was no such case against him in a Kisii court as claimed by the lawyer.
***
A Makadara parliamentary aspirant ran into trouble with Prime Minister Raila Odinga's security guards when he attempted to pay the PM an unannounced visit in the early hours of the morning. Raila's security blocked the man from entering the PM's Karen home. They told the mheshimiwa wannabe that their boss was asleep and it would be rude to wake him up. We have been told the man wanted to report an ODM Cabinet minister whom he claims has conned him out of millions of shillings in the last few months.
***
Former Nyakach MP Peter Odoyo has been hoping and waiting for an appointment as a diplomat. Those close to him say the former MP was promised a diplomatic posting, which has yet to materialise. They now suspect that someone in the government is deliberately placing hurdles in the way.
***
An MP from South Nyanza lost his cool on Monday night because he was not named to the Cabinet during the mini-reshuffle. The MP had reportedly invested quite a bit of his fortune and hope in another MP who was supposed to "broker" the appointment for him. Apart from monetary persuasion, the MP had also bought the 'broker' several expensive suits from Dubai, to urge him on!
***
A group of Rift Valley MPs who campaigned for the proposed constitution against the wishes of their constituents are hoping to switch sides. The group is looking for an opportunity when they can ditch Prime Minister Raila Odinga and reinvent themselves by throwing their support behind Higher Education minister and Raila's estranged deputy ODM party leader William Ruto's team.
***
A first time MP in Ukambani keen on boosting his profile has been attending funds drives where he donates money claiming he has been sent by big time politicians. The ruse might work for the hoi polloi but some of his political rivals are considering exposing him. The latest such announcement, which has raised suspicion from his rivals, is his recent donation of Sh50,000, which he claimed was from Deputy Prime Minister Uhuru Kenyatta.
***
A Cabinet minister has installed a CCTV camera in both his private and government offices to capture on tape some members of a parliamentary committee who are fond of blackmailing ministers to part with cash to stop the committee from 'probing' them. One of the MPs who is a member of the committee has reportedly been getting huge amounts from ministers, Somali and Indian businessmen by claiming he has a dossier on their activities, which they do not want exposed.
***
The increasing closeness between Prime Minister Raila Odinga's wife Ida and former Starehe MP and assistant minister Bishop Dr Margaret Wanjiru is causing concerns among some in the ODM hierarchy. They feel that the Jesus is Alive Ministries' bishop had shown party disloyalty by ganging up with the No team and therefore should be sidelined. They feel the party would not be able to 'bully her out' if she continued building up on her links with Ida.
***
Speculation that suspended managing director David Waweru might be reinstated caused a panic in some quarters at the Kenya Broadcasting Corporation yesterday after the Corridors of Power tidbit. But some of those who claim to be in the know say the speculation was a test balloon to see how his reinstatement would be received. "A rumour is sometimes just a rumour but sometimes it's spread for a reason," one of them told Corridors.
***
Love of speed is not confined to rally freaks with souped up cars. Deputy Prime Minister Musalia Mudavadi's four-car convoy yesterday whizzed at nearly 180 kph from Nakuru to Nairobi. Motorists, including those travelling at a comfortable 140 kph on the smooth highway were left behind as the convoy zigzagged out of sight within a minute. Mudavadi had just left a Local Government meeting in Nakuru at 11 am and was headed to Nairobi to attend the joint ODM/PNU parliamentary group meeting. His escorts who were in one of the cars leading the convoy intimidated and harassed slow driving motorists to move to the side and let the convoy pass. They terrified drivers by pointing fingers at those who hesitated to give way. Maximum speed on Kenyan roads for private cars is 110kph.
***
A senior Cabinet Minister keen on contesting the Presidency in 2012 has now ordered two choppers for his campaigns. The two ex-Russian choppers are expected in the country mid next year just in time for the man to hit to the skies as he starts his campaigns. The minister has intimated that his plan B is to go for the deputy president's position.
***
A powerful Cabinet minister from the Rift Valley has made matatu owners look up. He has bought 18 brand new mini-buses, painted them the regulation white colour and registered them to operate the Kitengela and Ongata Rongai routes. Traffic policemen operating along these two routes have been discreetly warned to lay off and not to interfere with the new fleet of matatus.
***
Professor George Saitoti who is not known to speak in vernacular — either Maa or Kikuyu — surprised many when he opted to greet a Yes campaign rally at Kirigiti Stadium in Kikuyu. Saitoti had accompanied President Kibaki. The 'lapse' was not a mistake. Saitoti, who is considered one of the possible presidential candidates in 2012, spoke in Kikuyu because he wanted the people to realise that he is one of them. Saitoti later explained that his mother was a Kikuyu and his father a Maasai. But the lapse' did not go down well with some of the PNU people who wondered why Saitoti always uses the services of a translator when speaking to his Maa constituents.
***
Speculation is rife that suspended KBC managing director David Waweru might soon return to his old job. Waweru was suspended last month over a World Cup broadcasting deal that went bad. The board is yet to decide if they will reinstate Waweru to his job but even before the board's decision is known, the rumours have started flying.
***
Francis Kimemia, the quietly efficient Permanent Secretary in the Ministry of Internal Security, might decide to dive into the stormy political waters. Some of his close associates have intimated that Kimemia might try his luck at one of the 'big seats' in the 2012 elections. The man has however not disclosed his intentions in public and is reportedly waiting for the right time.
***
Former Baringo Central MP Gideon Moi is eyeing the seat of senator during the next elections. He will once again be following in the footsteps of his father who served as a member of the Legislative Council representing the Rift Valley in pre-independent Kenya. It seems the younger Moi might have a better chance of becoming a county senator than president — at least for now.
***
The much-awaited autobiography of Prime Minister Raila Odinga is soon to be completed and will be launched mid next year. The PM decided to take on the job himself after he fired an assistant he had got to put the memoirs together. The forced rest imposed on him by his doctors gave him time to put down his thoughts, reminiscences and views before they are handed over to professional editors.
Wycliffe Muga - Ruto now plays n the big league - The Star
As concerns the recent referendum on the proposed new constitution, I would say that there was no greater winner, at the purely political level, than Higher Education Minister William Ruto.
For the fact that he was able to unite behind him virtually all the voters from the Kalenjin community leaves no doubt that his leadership has been massively endorsed at the grassroots level within that community.
And so he now joins the handful of political leaders in our country's history who have been able to personify the political aspirations of a major ethnic community.
But what does this all mean?
Well, first let me outline the limits of Ruto's newly affirmed political clout. And on this I would quote the English political philosopher, Francis Bacon. His most famous saying is "Knowledge is Power". But he also pointed out, more specifically, that "The rising unto place is laborious; and by pains men come to greater pains;.... All rising to great place is by a winding stair."
This translated from Bacon's 15th century vocabulary into modern English, roughly means, "Getting ahead in politics is not that easy, and is definitely not a simple and straightforward process. Just when you think you have made some major progress, you generally find that all you have really done is to move into a different league, where everything will be even more
difficult."
So in Ruto's case, the undeniable fact is that he has at last moved from the "second division" of political players in Kenya, to the "first division". In the race for political influence, the kind of influence which is based on the total voting power that a candidate can command, he has overtaken not only Vice President Kalonzo Musyoka but also both Deputy Prime Ministers Uhuru Kenyatta and Musalia Mudavadi.
For where Kalonzo, Uhuru and Musalia can all still be humiliated by a visceral political enemy getting elected in their own backyard, that is not the case with Ruto: even the most "senior" cabinet ministers, who opposed him in the referendum, found that they could not gather any meaningful support within their own constituencies.
But none of this means that he can now relax and enjoy his newfound status: rather he now has his work cut out for him, in trying to apply his political clout to some effective purpose. And I should point out that getting any Kenyan ethnic community to focus on the idea that they have been despised, or taken for granted, or in some way been "used and dumped" by other groups, is one of the easier ways to gain their political support.
In Coast Province, the Gender, Children and Social Development minister Naomi Shaban used this tactic in 2007 to unite the indigenous Taveta community in opposition to what was seen as the inappropriate political ambitions of the "guest communities" in Taveta constituency (the Kamba, Luo and Kikuyu) who had all fielded candidates in past elections.
Then more recently Trade minister Ali Mwakwere, who had barely survived the "ODM wave" in 2007, gained a resounding victory in the Matuga constituency by-election just a few months ago, by igniting simmering resentments among his Digo ethnic group, that they have often been stereotyped as "lazy, cowardly and poor" by their fellow-Muslims, the more prosperous Swahili and Arab communities of Mombasa.
But then, we further note that it took just two years for Shaban to lose the support of the electorate in Taveta: despite her most vigorous efforts to see the new constitution rejected, they solidly supported it. To the extent that she is now seen to be so completely "finished" politically, that her rivals are falling over each other to try and replace her, and can barely wait for 2012 to complete the process of consigning her to political obscurity.
Much the same applies to Mwakwere: he cannot hope to win in a General Election, merely by stigmatising other coastal Muslim communities who are alleged to have a contemptuous attitude towards the Digo.
What had made him vulnerable in 2007 was that he was considered to have a "poor development record" as we say here in Kenya. And unless he can change that perception among the ordinary voters of Matuga, they will most likely end his political career in 2012.
This brings us back to Ruto. For now, he has succeeded in taking away from PM Raila Odinga some of his most devout supporters of the 2007 General Election. But it was the PM's own blunders which made this possible in the first place. And if Ruto should end up backing the losing horse in the General Election of 2012 or fail badly in an attempt to be elected President himself that would change everything.
The writer comments on topical issues.
For the fact that he was able to unite behind him virtually all the voters from the Kalenjin community leaves no doubt that his leadership has been massively endorsed at the grassroots level within that community.
And so he now joins the handful of political leaders in our country's history who have been able to personify the political aspirations of a major ethnic community.
But what does this all mean?
Well, first let me outline the limits of Ruto's newly affirmed political clout. And on this I would quote the English political philosopher, Francis Bacon. His most famous saying is "Knowledge is Power". But he also pointed out, more specifically, that "The rising unto place is laborious; and by pains men come to greater pains;.... All rising to great place is by a winding stair."
This translated from Bacon's 15th century vocabulary into modern English, roughly means, "Getting ahead in politics is not that easy, and is definitely not a simple and straightforward process. Just when you think you have made some major progress, you generally find that all you have really done is to move into a different league, where everything will be even more
difficult."
So in Ruto's case, the undeniable fact is that he has at last moved from the "second division" of political players in Kenya, to the "first division". In the race for political influence, the kind of influence which is based on the total voting power that a candidate can command, he has overtaken not only Vice President Kalonzo Musyoka but also both Deputy Prime Ministers Uhuru Kenyatta and Musalia Mudavadi.
For where Kalonzo, Uhuru and Musalia can all still be humiliated by a visceral political enemy getting elected in their own backyard, that is not the case with Ruto: even the most "senior" cabinet ministers, who opposed him in the referendum, found that they could not gather any meaningful support within their own constituencies.
But none of this means that he can now relax and enjoy his newfound status: rather he now has his work cut out for him, in trying to apply his political clout to some effective purpose. And I should point out that getting any Kenyan ethnic community to focus on the idea that they have been despised, or taken for granted, or in some way been "used and dumped" by other groups, is one of the easier ways to gain their political support.
In Coast Province, the Gender, Children and Social Development minister Naomi Shaban used this tactic in 2007 to unite the indigenous Taveta community in opposition to what was seen as the inappropriate political ambitions of the "guest communities" in Taveta constituency (the Kamba, Luo and Kikuyu) who had all fielded candidates in past elections.
Then more recently Trade minister Ali Mwakwere, who had barely survived the "ODM wave" in 2007, gained a resounding victory in the Matuga constituency by-election just a few months ago, by igniting simmering resentments among his Digo ethnic group, that they have often been stereotyped as "lazy, cowardly and poor" by their fellow-Muslims, the more prosperous Swahili and Arab communities of Mombasa.
But then, we further note that it took just two years for Shaban to lose the support of the electorate in Taveta: despite her most vigorous efforts to see the new constitution rejected, they solidly supported it. To the extent that she is now seen to be so completely "finished" politically, that her rivals are falling over each other to try and replace her, and can barely wait for 2012 to complete the process of consigning her to political obscurity.
Much the same applies to Mwakwere: he cannot hope to win in a General Election, merely by stigmatising other coastal Muslim communities who are alleged to have a contemptuous attitude towards the Digo.
What had made him vulnerable in 2007 was that he was considered to have a "poor development record" as we say here in Kenya. And unless he can change that perception among the ordinary voters of Matuga, they will most likely end his political career in 2012.
This brings us back to Ruto. For now, he has succeeded in taking away from PM Raila Odinga some of his most devout supporters of the 2007 General Election. But it was the PM's own blunders which made this possible in the first place. And if Ruto should end up backing the losing horse in the General Election of 2012 or fail badly in an attempt to be elected President himself that would change everything.
The writer comments on topical issues.
Pheroze Nowrojee - Churches living in self-delusion - The Star
“We knew we would lose, but we were performing our 'prophetic' role," say the Church leaders.
The Churches must not flatter themselves. The Church's prophetic role is to interpret the will of God. What they were doing was not that. They were interpreting the will of men. Specifically, that of one, a legal draftsman. They were interpreting a constitutional draft. Lawyers call that statutory interpretation.
Lawyers do not interpret the Bible by the rules of statutory interpretation. They would get it wrong. Churchmen, similarly, should not have interpreted statute by the rules of Biblical interpretation. They did get it wrong. Those words, for example, do not mean that same-sex marriages are permitted.
Nor can they claim that they only acted as they did after great soul-searching and long and earnest prayer, through which God showed them the direction. This alibi failed long ago.
During the Indian freedom struggle against the British, Gandhi on being told that the Viceroy, Lord Irwin, always prayed to God before taking any major decision, once remarked, "What a pity God gives him such bad advice."
If the Churchmen thought bad judges would interpret the new provisions badly, then the best protection was to support the new Constitution because it provided for a way to vet out 'bad judges'.
If inert words of the new constitution on paper, "will," as the Churches say, "foster moral decadence and dehumanise Kenyan society", it is an admission by them, the custodians of Kenya's morals, that their ministry over the last hundred years has not been successful; and that they are helpless to prevent this decadent decline in the future.
The sad truth is the Churches came out to play politics on the constitutional field. They used every political trick they thought politicians use: they cosied up to dubious churchmen, they cosied up to dubious politicians, they cosied up to dubious money, they cosied up to dubious versions of the 'truth'. They bought hugely expensive prime time television advertisements, they went back on their word, they were unrestrained in their language, they encouraged fronts like 'Religious Professionals' to lie on their behalf, they committed many, many fouls. Yet, they lost the game. Badly : 6-3.
No wonder they are angry at the referee, the people of Kenya. And are shouting at them. (See The Standard, 9 August 2010.) Exactly, like the World Cup players who shouted at the referee after the match that exited them. The result of the Referendum on August 5 was for Kenya even better than the World Cup result was for Spain. Spain and Kenya have not stopped celebrating since their respective results.
The Churches also claimed that the Committee of Experts was wrong and had not reflected the will of the people of Kenya. Intellectual honesty requires that the Church leaders now acknowledge publicly that it is the Committee of Experts that reflected the will of the people correctly, and that they, the Church leaders, got it wrong.
There were only two reasons that the Churches irresponsible actions did not cause more harm to Kenya. The first is that many worshippers saw through them. The flock politely disregarded the Churchmen's threats. It made its own political decisions. It voted with quiet, but emphatic, confidence.
The second reason is that others in the faiths world, and in politics, acted extremely responsibly, so much more responsibly than these Church leaders. No wonder a poll a few days ago showed that Kenyans now trust politicians more than they trust the Church. One cannot get any lower than that. The Churches ought to be concerned.
Come to think of it, many World Cup teams sacked their managers after their loss. Maybe, the Kenyan church also needs a change of managers ?
Or maybe, the Church and its losing politician team mates are planning to ask FIFA to move amendments to the results. They may want FIFA to take into account all the goals all the losing sides scored, which are of course more than Spain scored in total, and give half of Spain's trophy to the 35 losers?
After all, they tell us we cannot ignore those who lost if they are so numerous. But we remember that when Moi won his presidential elections with only 38 per cent in 1992, and only 40 per cent in 1997, (minority presidencies, if ever), Gideon Moi, Nick Salat, Joseph Kimkung, William Ruto and the Kalenjin Elders all failed to ask Moi to share the government with the numerous 60 per cent who had lost.
The writer is a lawyer.
The Churches must not flatter themselves. The Church's prophetic role is to interpret the will of God. What they were doing was not that. They were interpreting the will of men. Specifically, that of one, a legal draftsman. They were interpreting a constitutional draft. Lawyers call that statutory interpretation.
Lawyers do not interpret the Bible by the rules of statutory interpretation. They would get it wrong. Churchmen, similarly, should not have interpreted statute by the rules of Biblical interpretation. They did get it wrong. Those words, for example, do not mean that same-sex marriages are permitted.
Nor can they claim that they only acted as they did after great soul-searching and long and earnest prayer, through which God showed them the direction. This alibi failed long ago.
During the Indian freedom struggle against the British, Gandhi on being told that the Viceroy, Lord Irwin, always prayed to God before taking any major decision, once remarked, "What a pity God gives him such bad advice."
If the Churchmen thought bad judges would interpret the new provisions badly, then the best protection was to support the new Constitution because it provided for a way to vet out 'bad judges'.
If inert words of the new constitution on paper, "will," as the Churches say, "foster moral decadence and dehumanise Kenyan society", it is an admission by them, the custodians of Kenya's morals, that their ministry over the last hundred years has not been successful; and that they are helpless to prevent this decadent decline in the future.
The sad truth is the Churches came out to play politics on the constitutional field. They used every political trick they thought politicians use: they cosied up to dubious churchmen, they cosied up to dubious politicians, they cosied up to dubious money, they cosied up to dubious versions of the 'truth'. They bought hugely expensive prime time television advertisements, they went back on their word, they were unrestrained in their language, they encouraged fronts like 'Religious Professionals' to lie on their behalf, they committed many, many fouls. Yet, they lost the game. Badly : 6-3.
No wonder they are angry at the referee, the people of Kenya. And are shouting at them. (See The Standard, 9 August 2010.) Exactly, like the World Cup players who shouted at the referee after the match that exited them. The result of the Referendum on August 5 was for Kenya even better than the World Cup result was for Spain. Spain and Kenya have not stopped celebrating since their respective results.
The Churches also claimed that the Committee of Experts was wrong and had not reflected the will of the people of Kenya. Intellectual honesty requires that the Church leaders now acknowledge publicly that it is the Committee of Experts that reflected the will of the people correctly, and that they, the Church leaders, got it wrong.
There were only two reasons that the Churches irresponsible actions did not cause more harm to Kenya. The first is that many worshippers saw through them. The flock politely disregarded the Churchmen's threats. It made its own political decisions. It voted with quiet, but emphatic, confidence.
The second reason is that others in the faiths world, and in politics, acted extremely responsibly, so much more responsibly than these Church leaders. No wonder a poll a few days ago showed that Kenyans now trust politicians more than they trust the Church. One cannot get any lower than that. The Churches ought to be concerned.
Come to think of it, many World Cup teams sacked their managers after their loss. Maybe, the Kenyan church also needs a change of managers ?
Or maybe, the Church and its losing politician team mates are planning to ask FIFA to move amendments to the results. They may want FIFA to take into account all the goals all the losing sides scored, which are of course more than Spain scored in total, and give half of Spain's trophy to the 35 losers?
After all, they tell us we cannot ignore those who lost if they are so numerous. But we remember that when Moi won his presidential elections with only 38 per cent in 1992, and only 40 per cent in 1997, (minority presidencies, if ever), Gideon Moi, Nick Salat, Joseph Kimkung, William Ruto and the Kalenjin Elders all failed to ask Moi to share the government with the numerous 60 per cent who had lost.
The writer is a lawyer.
09 August, 2010
The Star Corridors of Power Political Gossip
They all come from the same constituency and have in a few short months managed to make their mark on the national stage. First it was Billow Kerrow, who made a name for himself by questioning issues on the budget. His successor in Mandera Central, Hussein Abdikadir, has become an effective chair of the powerful Parliamentary Select Committee on the Constitution. Coincidentally, Issack Hassan, the chairman of the Interim Independent Electoral Commission is also from the same constituency. Deputy PM Musalia Mudavadi is now planning an extensive tour to Mandera Central constituency to thank the people for producing "nationalists".
***
With the success of the referendum, some MPs have proposed that the entire IIEC team be retained for another five years. They say replacing them when their term expires in December will be a big mistake as they have already earned the respect and trust of the people.
***
A politician interested in the Juja parliamentary seat has reportedly amassed a huge war chest in readiness for the race, which is expected to be hotly contested. The by-elections are scheduled for September 20 and his strategy is to unleash the money two weeks before the poll date to 'persuade' the electorate to vote for him.
***
There are reports of an extortionist ring involving some policemen from Parklands that is targeting the business community. The latest victim of the gang is Adopt-A-Light founder Esther Passaris, who was allegedly forced to part with some money to stop the extortionists from taking some of her property.
***
We are informed the Kamukunji Constituency Development Fund is in turmoil. Our mole tells us that Kenya Anti-Corruption Commission officers intercepted Sh29 million that had been channeled to an individual's account from the kitty. Now the account of the fund has been frozen. Managers of the account switched off their cellphone lines when they were informed of the development. Now KACC is seeking out prominent officials of the kitty for interrogation.
***
Corridors is wondering what a leading member of the No campaign team in the just-concluded referendum was doing at the Yes victory party at Kenyatta International Conference Centre. Those present told Corridors that they were puzzled by the presence of the member, who joined them at the steps of the conference centre. We are told the stunt of loyalty was aimed at President Kibaki and Prime Minister Raila Odinga to ensure that ministers who opposed the proposed constitution are not sacked.
***
The sinking fortunes of the family of the late Kamba leader Mulu Mutisya recently touched former President Moi so much that he understandably admonished a senior politician in the Ukambani region who owes his political fortunes to the fallen leader. Moi who was on the campaign trail in the area was so shocked to hear of the neglect of the family of his trusted pointman in the area that he bitterly but quietly lashed at the sitting politician asking what kind of man he has become.
***
An MP from North Eastern Province who has married an 18-year-old girl as a second wife is applying cost-cutting measures, perhaps to be able to support his two families financially. We are told the Member sacked his driver and cut off handouts he used to give elders in his constituency. The issue so incensed his constituents that they pelted him with stones while he was campaigning for the new constitution.
***
With the success of the referendum, some MPs have proposed that the entire IIEC team be retained for another five years. They say replacing them when their term expires in December will be a big mistake as they have already earned the respect and trust of the people.
***
A politician interested in the Juja parliamentary seat has reportedly amassed a huge war chest in readiness for the race, which is expected to be hotly contested. The by-elections are scheduled for September 20 and his strategy is to unleash the money two weeks before the poll date to 'persuade' the electorate to vote for him.
***
There are reports of an extortionist ring involving some policemen from Parklands that is targeting the business community. The latest victim of the gang is Adopt-A-Light founder Esther Passaris, who was allegedly forced to part with some money to stop the extortionists from taking some of her property.
***
We are informed the Kamukunji Constituency Development Fund is in turmoil. Our mole tells us that Kenya Anti-Corruption Commission officers intercepted Sh29 million that had been channeled to an individual's account from the kitty. Now the account of the fund has been frozen. Managers of the account switched off their cellphone lines when they were informed of the development. Now KACC is seeking out prominent officials of the kitty for interrogation.
***
Corridors is wondering what a leading member of the No campaign team in the just-concluded referendum was doing at the Yes victory party at Kenyatta International Conference Centre. Those present told Corridors that they were puzzled by the presence of the member, who joined them at the steps of the conference centre. We are told the stunt of loyalty was aimed at President Kibaki and Prime Minister Raila Odinga to ensure that ministers who opposed the proposed constitution are not sacked.
***
The sinking fortunes of the family of the late Kamba leader Mulu Mutisya recently touched former President Moi so much that he understandably admonished a senior politician in the Ukambani region who owes his political fortunes to the fallen leader. Moi who was on the campaign trail in the area was so shocked to hear of the neglect of the family of his trusted pointman in the area that he bitterly but quietly lashed at the sitting politician asking what kind of man he has become.
***
An MP from North Eastern Province who has married an 18-year-old girl as a second wife is applying cost-cutting measures, perhaps to be able to support his two families financially. We are told the Member sacked his driver and cut off handouts he used to give elders in his constituency. The issue so incensed his constituents that they pelted him with stones while he was campaigning for the new constitution.
08 August, 2010
Kenya New Constitution - Taxation - All State officials will have to pay taxes
New clients for KRA: Starting August 20 this year, the Kenya Revenue Authority will have new clients who will be roped into the taxation bracket, from where they have previously been missing.
This is because the proposed constitution does not exempt any state officer from paying tax.
The section on imposition of tax in 210 (3) is categorical that there no that law may exclude or
authorise the exclusion of a State officer from payment of tax by reason of the office held by
that State officer or the nature of the work of the State officer.
And in the interpretation of 260, a “State officer” has been defined as a person holding a State
office while a State office” means any government office including that of the President, Deputy President, Cabinet of Parliament, Judges and Magistrates and members of a commission to mention but a few.
Former LSK chairman Okong’o O’Mogeni said that by September all state officers are supposed to comply as there is no discretion of the President to suspend that provision. Parliament might, however, protect MPs from taxation for some time.
-- Saturday Nation
This is because the proposed constitution does not exempt any state officer from paying tax.
The section on imposition of tax in 210 (3) is categorical that there no that law may exclude or
authorise the exclusion of a State officer from payment of tax by reason of the office held by
that State officer or the nature of the work of the State officer.
And in the interpretation of 260, a “State officer” has been defined as a person holding a State
office while a State office” means any government office including that of the President, Deputy President, Cabinet of Parliament, Judges and Magistrates and members of a commission to mention but a few.
Former LSK chairman Okong’o O’Mogeni said that by September all state officers are supposed to comply as there is no discretion of the President to suspend that provision. Parliament might, however, protect MPs from taxation for some time.
-- Saturday Nation
Kenya New Constitution - The rights of suspects - Suspect to be informed of reason for arrest
Legal fees: Justice minister Mutula Kilonzo said it is worth celebrating the fact that Kenyans will have to file cases without the legal fees charges.
Besides, Kenyans will have a right to petition court to seek clean environment without having to demonstrate the kind of injury they are likely to suffer. Suspects also enjoy a right to be informed of the reason for arrest.
There is also the right to fair hearing (Article 50 (2) (e)) which says that every person charged with an offence has the right for the trial to begin and conclude without unreasonable delay. And they too have a right to challenge a Conviction if new evidence becomes available (Article 50(6)
which could open floodgates for people to try and challenge previous convictions on this basis and clog the courts.
-- Saturday Nation
Besides, Kenyans will have a right to petition court to seek clean environment without having to demonstrate the kind of injury they are likely to suffer. Suspects also enjoy a right to be informed of the reason for arrest.
There is also the right to fair hearing (Article 50 (2) (e)) which says that every person charged with an offence has the right for the trial to begin and conclude without unreasonable delay. And they too have a right to challenge a Conviction if new evidence becomes available (Article 50(6)
which could open floodgates for people to try and challenge previous convictions on this basis and clog the courts.
-- Saturday Nation
Kenya New Constitution - Dual citizenship - Parliament has to seal security loopholes
Caution: Foreign Affairs minister Moses Wetang’ula says foreigners will be carefully vetted before being granted dual citizenship.
The minister hailed the new Constitution for allowing dual citizenship, saying it was a boon for Kenyans living in the Diaspora.
However, he said, Parliament will have to pass legislations to seal security loopholes created by the dual citizenship clause.
“This clause is good news for Kenyans living in the Diaspora, but it cuts both ways; foreign criminals, for example, might want to seek Kenyan citizenship. We will be taking care of that in Parliament ,” the minister said.
-- Saturday Nation
The minister hailed the new Constitution for allowing dual citizenship, saying it was a boon for Kenyans living in the Diaspora.
However, he said, Parliament will have to pass legislations to seal security loopholes created by the dual citizenship clause.
“This clause is good news for Kenyans living in the Diaspora, but it cuts both ways; foreign criminals, for example, might want to seek Kenyan citizenship. We will be taking care of that in Parliament ,” the minister said.
-- Saturday Nation
Kenya New Constitution - Representation in court - State obliged to provide attorneys
Immediate rights: The other immediate right that Kenyans will start enjoying is the right to representation in court irrespective of the offence.
Mr Okong’o O’Mogeni says that once the new constitution is promulgated by the President, it becomes a State obligation to provide an attorney to every accused person.
“Initially it was for capital offenders. The new angle is that the accused only need to show the court that substantial injustice will result during trial. The State will pay for these advocates,” said Mr O’Mogeni.
This having not been budgeted for, could take a toll on the government, which will have to comply with the new directive. Under Article 50 2(h) that deals with fair hearing, the new constitution states that every accused person has the right to a fair trial, which Includes the right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.
-- Saturday Nation
Mr Okong’o O’Mogeni says that once the new constitution is promulgated by the President, it becomes a State obligation to provide an attorney to every accused person.
“Initially it was for capital offenders. The new angle is that the accused only need to show the court that substantial injustice will result during trial. The State will pay for these advocates,” said Mr O’Mogeni.
This having not been budgeted for, could take a toll on the government, which will have to comply with the new directive. Under Article 50 2(h) that deals with fair hearing, the new constitution states that every accused person has the right to a fair trial, which Includes the right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.
-- Saturday Nation
Kenya New Constitution - Gender balance - A very big gain for Kenyan women
Composition: In the composition, appointment and terms of office, the new constitution says that the chairperson and vice-chairperson of a commission shall not be of the same gender.
In addition clause (8) says that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
Fida-Kenya’s executive director Grace Maingi welcomed the new constitution and described it as a “very big gain” for women and the first step towards affirmative action. “Finally, Kenyan women will be allowed to effectively participate in the decision-making of this country’s affairs,” she said.
Nominated MP Millie Odhiambo was also upbeat about the new constitution, pointing out that having no more than two-thirds of the same gender in all appointive and elective bodies will introduce women’s perspective.
-- Saturday Nation
In addition clause (8) says that the State shall take legislative and other measures to implement the principle that not more than two-thirds of the members of elective or appointive bodies shall be of the same gender.
Fida-Kenya’s executive director Grace Maingi welcomed the new constitution and described it as a “very big gain” for women and the first step towards affirmative action. “Finally, Kenyan women will be allowed to effectively participate in the decision-making of this country’s affairs,” she said.
Nominated MP Millie Odhiambo was also upbeat about the new constitution, pointing out that having no more than two-thirds of the same gender in all appointive and elective bodies will introduce women’s perspective.
-- Saturday Nation
Kenya New Constitution - Right to emergency medical treatment
Money issues: Under the new laws, patients are entitled to emergency treatment in any medical facility in the country, including private ones. But one of the private health providers, Dr Amit Thakker of Avenue Health Care, says the new law only demands that private medical facilities administer first aid to all emergency cases. He fell short of saying that private hospitals will not admit you if you do not have the money, no matter what the constitution says.
“If the patient or his relatives are unable to raise some deposit, then we will transfer them to government facilities,” said Dr Thakker. This, he says, has been the norm, even without the
new constitution. Under the economic and social rights article — 43 (2) — a person shall not be denied emergency medical treatment.
-- Saturday Nation
“If the patient or his relatives are unable to raise some deposit, then we will transfer them to government facilities,” said Dr Thakker. This, he says, has been the norm, even without the
new constitution. Under the economic and social rights article — 43 (2) — a person shall not be denied emergency medical treatment.
-- Saturday Nation
Kenya New Constitution - 999-year land lease down to 99 years
Foreign ownership: During the campaigns for and against the proposed constitution, provisions in land emerged as a contentious issue. All foreigners with land leases of 999 years automatically convert to 99 year leases.
The new constitution indicates under the existing land holdings and agreements relating to natural resources that on the effective date, any freehold interest in land in Kenya held by a person who is not a citizen shall revert to the Republic of Kenya to be held on behalf of the people of Kenya, and the State shall grant to the person a ninety-nine year lease at a peppercorn rent.
The constitution further states that any other interest in land in Kenya greater than a 99 year lease held by a person who is not a citizen shall be converted to a ninety-nine year lease.
-- Saturday Nation
The new constitution indicates under the existing land holdings and agreements relating to natural resources that on the effective date, any freehold interest in land in Kenya held by a person who is not a citizen shall revert to the Republic of Kenya to be held on behalf of the people of Kenya, and the State shall grant to the person a ninety-nine year lease at a peppercorn rent.
The constitution further states that any other interest in land in Kenya greater than a 99 year lease held by a person who is not a citizen shall be converted to a ninety-nine year lease.
-- Saturday Nation
Kenya New Constitution - Spouses enjoy equal rights - Questions still linger on clause
Ambiguity: The provision on equality in marriage leaves no doubt that the Kenyan woman has a lot to celebrate. However, even as women exhale a sigh of relief at this significant victory, the clause on Chapter 45, which states that a married couple will be entitled to “equal rights” and at its dissolution, is ambiguous.
According to family lawyer Judy Thongori, until the Court gives an interpretation of this clause, it is impossible to get a clear picture of what exactly the clause entails. “The clause definitely refers to property and indicates that there will no longer be discrimination in regard to ownership and
allocation, but it needs further interpretation to spell out its actual meaning,” she said.
-- Saturday Nation
According to family lawyer Judy Thongori, until the Court gives an interpretation of this clause, it is impossible to get a clear picture of what exactly the clause entails. “The clause definitely refers to property and indicates that there will no longer be discrimination in regard to ownership and
allocation, but it needs further interpretation to spell out its actual meaning,” she said.
-- Saturday Nation
Kenya New Constitution - Access to information - Government has to disclose information
Right to know: Former law society of Kenya chairman Okong’o O’Mogeni says immediately the new constitution is promulgated, Kenyans will have the right of access to information as
provided for in Article 35. It states that every Citizen has the right to access to information
held by the state and that provision according to him, gives Kenyans a right to demand from government disclosure of any information held by the State.
That makes the pending Freedom of Information Bill superfluous because nobody needs legislation to access government information.
And being a blanket right, it needs no legislation on how it is applied and there is no qualification on the type of information that can be accessed.
This means that all the reports that have been done by several commissions of inquiry can now be demanded by any Kenyans interested to establish what such reports contain. The provision is likely to counter the common mentality in the public service that there is information that is usually classified
-- Saturday Nation
provided for in Article 35. It states that every Citizen has the right to access to information
held by the state and that provision according to him, gives Kenyans a right to demand from government disclosure of any information held by the State.
That makes the pending Freedom of Information Bill superfluous because nobody needs legislation to access government information.
And being a blanket right, it needs no legislation on how it is applied and there is no qualification on the type of information that can be accessed.
This means that all the reports that have been done by several commissions of inquiry can now be demanded by any Kenyans interested to establish what such reports contain. The provision is likely to counter the common mentality in the public service that there is information that is usually classified
-- Saturday Nation
Kenya New Constitution - No more lengthy stay in police cells for minor offences
Arrested persons: Minor offenders no longer should be remanded as the new constitution
outlaws that. The chapter dealing with the Right of Arrested persons and Remand — Article 49(2) — says that a person shall not be remanded in custody for an offence punishable by a fine only or whose punishment is not more than six months.
This, according to Mr Okong’o O’Mogeni, means that all those people held in custody when the new constitution is promulgated and their possible maximum punishment is six months or less should be released immediately.
That article 49 states that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
“Anybody in prison being held for failure to raise cash bail, they are supposed to be released by free bond,” Mr O’Mogeni says. This means that most traffic offenders as well as those that break city by-laws should be bonded immediately as opposed to the current practice where they are remanded pending court appearance.
Justice minister Mutula Kilonzo says the fact that Kenyans will now not have to sleep in cells
for bailable offences is a plus for this nation, adding this will go a long way to decongest police cells.
-- Saturday Nation
outlaws that. The chapter dealing with the Right of Arrested persons and Remand — Article 49(2) — says that a person shall not be remanded in custody for an offence punishable by a fine only or whose punishment is not more than six months.
This, according to Mr Okong’o O’Mogeni, means that all those people held in custody when the new constitution is promulgated and their possible maximum punishment is six months or less should be released immediately.
That article 49 states that a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not more than six months.
“Anybody in prison being held for failure to raise cash bail, they are supposed to be released by free bond,” Mr O’Mogeni says. This means that most traffic offenders as well as those that break city by-laws should be bonded immediately as opposed to the current practice where they are remanded pending court appearance.
Justice minister Mutula Kilonzo says the fact that Kenyans will now not have to sleep in cells
for bailable offences is a plus for this nation, adding this will go a long way to decongest police cells.
-- Saturday Nation
06 August, 2010
Jerry Okungu - It's a clean break from old order - The Star
At last, Kenyans have decided that the old order must be history. The era of the imperial presidency and parliamentary dictatorship must be put behind us now. It is a feeling one gets after having had a good but gruelling fight.
With seven out of eight provinces voting for the new constitution, no sensible individual can fault Kenyans for demanding the necessary reforms in the new constitution.
After the votes were tallied, the Greens had a clear win by garnering more than 3 million votes above the Reds. At 70 per cent vote win, the Reds cannot claim unfairness.
And with international observers everywhere monitoring every step from the polling stations to the electronic relay centres and finally to the National Tallying Centre at the Bomas, this win is as convincing as any democratic process can be. As at 2.15pm, the Yes votes had reached 5,482, 698 and still counting against the Green side's 2,418,153 votes.
As a campaigner and a voter for the new constitution, I feel good because we decided to change our fortunes drastically. We learnt a bitter lesson in the 2007-2008 post-election violence when, due the recklessness of our leaders and poll referees, we subjected our people to unnecessary pain and conflict. And if there is one thing that this new constitution will be able to do, it will deal a deadly blow to the culture of impunity that has brought our country to its knees in the eyes of the international community.
As Kenyans, we can stand tall again and claim our place of pride among the community of nations. We have proved that we can reclaim our lost glory as a proud and democratic country capable of making our own decisions. This pride should be shared with all our member states of the East African Community and the rest of Africa at large.
The fact that nine million Kenyans woke up at dawn to line up and vote in the chilly weather and did so peacefully is a testimony that we have learnt something from our ugly recent past.
The 2007 elections were largely messed up by the political power elite that thought it unthinkable to have a peaceful regime change.
The nature of our culture of impunity where the political leadership exploited and oppressed the masses made it impossible for a clean political contest to take place. In the end, we had organised militias in the payrolls of political warlords take over our lives. We had all our highways blocked by hired goons and millions of shillings lost in burnt homes and property. A fresh ugly face of impunity gained currency causing the deaths of 1,500 innocent Kenyans while causing thousands more homeless.
Despite spirited and acrimonious campaigns in the run up to this year's referendum, the tones of our political leaders changed drastically to that of reconciliation urging Kenyans to vote peacefully.
And the fact that Kenyans chose to heed the peace calls from President Kibaki, Prime Minister Raila, former President Moi and the Reds leader William Ruto was a clear demonstration that it is the politicians who always incite voters to go to the streets.
This time round, they called on them to remain calm despite the outcome which they obediently did.
As I wrote this article, something else happened in our election process that was not there in 2007. The Reds leader called a press conference and conceded defeat 18 hours after the polls closed. This early conceding of defeat even before the final votes were tallied indicated that politically we were coming of age.
The last time we had this kind of gesture was in 2002 when Uhuru Kenyatta conceded defeat against Kibaki.
However, in this early analysis of our referendum results, credit must go to the Interim Independent Electoral Commission led by Issack Hassan for running the polls as professionally as they could ever do.
The mere fact that the Commission went electronic in relaying provisional results right from the polling stations to the National Tallying Centre in Nairobi despite opposition from the Reds in itself speaks volumes.
The mere fact that these provisional results were also availed to all media networks was a plus in the process. This decision made Kenyans and the rest of the world to follow the proceedings in detail and this implied transparency and accountability made it impossible for anybody to even think of rigging the polls.
There is one incident that happened in Western Kenya that served as a lesson to would-be election riggers. A poll supervisor who announced the wrong results was immediately arrested by a presiding officer and instantly appeared in court yesterday morning. It is this kind of act that can clean Kenya's politics.
If this Kenyan experience cannot be a good lesson to the rest of Africa, then it is difficult to know what can be called good best practice for the rest of the continent to emulate.
The writer is a media consultant.
With seven out of eight provinces voting for the new constitution, no sensible individual can fault Kenyans for demanding the necessary reforms in the new constitution.
After the votes were tallied, the Greens had a clear win by garnering more than 3 million votes above the Reds. At 70 per cent vote win, the Reds cannot claim unfairness.
And with international observers everywhere monitoring every step from the polling stations to the electronic relay centres and finally to the National Tallying Centre at the Bomas, this win is as convincing as any democratic process can be. As at 2.15pm, the Yes votes had reached 5,482, 698 and still counting against the Green side's 2,418,153 votes.
As a campaigner and a voter for the new constitution, I feel good because we decided to change our fortunes drastically. We learnt a bitter lesson in the 2007-2008 post-election violence when, due the recklessness of our leaders and poll referees, we subjected our people to unnecessary pain and conflict. And if there is one thing that this new constitution will be able to do, it will deal a deadly blow to the culture of impunity that has brought our country to its knees in the eyes of the international community.
As Kenyans, we can stand tall again and claim our place of pride among the community of nations. We have proved that we can reclaim our lost glory as a proud and democratic country capable of making our own decisions. This pride should be shared with all our member states of the East African Community and the rest of Africa at large.
The fact that nine million Kenyans woke up at dawn to line up and vote in the chilly weather and did so peacefully is a testimony that we have learnt something from our ugly recent past.
The 2007 elections were largely messed up by the political power elite that thought it unthinkable to have a peaceful regime change.
The nature of our culture of impunity where the political leadership exploited and oppressed the masses made it impossible for a clean political contest to take place. In the end, we had organised militias in the payrolls of political warlords take over our lives. We had all our highways blocked by hired goons and millions of shillings lost in burnt homes and property. A fresh ugly face of impunity gained currency causing the deaths of 1,500 innocent Kenyans while causing thousands more homeless.
Despite spirited and acrimonious campaigns in the run up to this year's referendum, the tones of our political leaders changed drastically to that of reconciliation urging Kenyans to vote peacefully.
And the fact that Kenyans chose to heed the peace calls from President Kibaki, Prime Minister Raila, former President Moi and the Reds leader William Ruto was a clear demonstration that it is the politicians who always incite voters to go to the streets.
This time round, they called on them to remain calm despite the outcome which they obediently did.
As I wrote this article, something else happened in our election process that was not there in 2007. The Reds leader called a press conference and conceded defeat 18 hours after the polls closed. This early conceding of defeat even before the final votes were tallied indicated that politically we were coming of age.
The last time we had this kind of gesture was in 2002 when Uhuru Kenyatta conceded defeat against Kibaki.
However, in this early analysis of our referendum results, credit must go to the Interim Independent Electoral Commission led by Issack Hassan for running the polls as professionally as they could ever do.
The mere fact that the Commission went electronic in relaying provisional results right from the polling stations to the National Tallying Centre in Nairobi despite opposition from the Reds in itself speaks volumes.
The mere fact that these provisional results were also availed to all media networks was a plus in the process. This decision made Kenyans and the rest of the world to follow the proceedings in detail and this implied transparency and accountability made it impossible for anybody to even think of rigging the polls.
There is one incident that happened in Western Kenya that served as a lesson to would-be election riggers. A poll supervisor who announced the wrong results was immediately arrested by a presiding officer and instantly appeared in court yesterday morning. It is this kind of act that can clean Kenya's politics.
If this Kenyan experience cannot be a good lesson to the rest of Africa, then it is difficult to know what can be called good best practice for the rest of the continent to emulate.
The writer is a media consultant.
Corridors of Power Political Gossip - The Star
An ODM official at the Yes secretariat discriminated against workers from regions outside of Nyanza when it came to paying the staff. The official opted to pay only those people coming from Nyanza and ignored the rest. Now they are considering filing a formal complaint with the National Cohesion and Integration Commission citing discrimination on ethnic grounds!
***
The Yes team reportedly spent close to Sh1.2 billion in their referendum campaigns. Since there was not much money forthcoming from the ODM side of the secretariat, speculation is rife that the party may have had to dip into its party coffers to fund its share of the budget. An official has whispered to us that the funds could have originated from their political party's kitty.
***
Justice Minister Mutula Kilonzo's not very vigorous campaigns in his Mbooni constituency during the just ended referendum is now being remarked upon by some of his Parliamentary colleagues in Ukambani. They say they have just realised that Kilonzo did not campaign at all in his constituency and did not attend any rallies including the ones in Kisumu, Uhuru Park and Kitui which were attended by his bosses President Kibaki, Prime Minister Raila and Vice President Kalonzo Musyoka.
***
The numerous foreign observers who were crisscrossing the Rift Valley have given rise to speculation that some of them were actually spies masquerading as observers. Whatever they were, their presence in the region and especially in the Mt Elgon, Burnt Forest and Molo areas, considered hot spots, did not go unnoticed.
***
The Yes team reportedly spent close to Sh1.2 billion in their referendum campaigns. Since there was not much money forthcoming from the ODM side of the secretariat, speculation is rife that the party may have had to dip into its party coffers to fund its share of the budget. An official has whispered to us that the funds could have originated from their political party's kitty.
***
Justice Minister Mutula Kilonzo's not very vigorous campaigns in his Mbooni constituency during the just ended referendum is now being remarked upon by some of his Parliamentary colleagues in Ukambani. They say they have just realised that Kilonzo did not campaign at all in his constituency and did not attend any rallies including the ones in Kisumu, Uhuru Park and Kitui which were attended by his bosses President Kibaki, Prime Minister Raila and Vice President Kalonzo Musyoka.
***
The numerous foreign observers who were crisscrossing the Rift Valley have given rise to speculation that some of them were actually spies masquerading as observers. Whatever they were, their presence in the region and especially in the Mt Elgon, Burnt Forest and Molo areas, considered hot spots, did not go unnoticed.
Miguna Miguna - Now the hard part of reforms begins - The Star
The popular verdict is in. The overwhelming majority of Kenyans have spoken. The commanding victory margin demonstrates beyond doubt that Kenyans have rejected the old retrogressive constitution in favour of the new one. They have rejected lies and propaganda and chosen the truth. They did so with their votes, as required in a democratic exercise. The process was free, fair, transparent and democratic. It was also peaceful. The tallying of votes was conducted in a transparent manner. The results, therefore, are not in dispute.
But this victory is just the beginning of a long process of social, cultural, economic, political, legal and institutional reconstruction.
For the past fifty years, Kenyans have undergone gross human rights violations, economic and political crimes. Rules, laws and the constitution had little meaning to the majority. Political power and money were elevated to become gods and worshipped. The economy stalled. Infrastructure decayed. Life became a burden for the majority. Only a tiny minority benefited from the country's abundant resources. For fifty years, Kenyans have been a disillusioned lot.
Each time they have had legitimate expectations of prosperity, a functioning governing system and a responsive leadership; their hopes have been dashed.
The new constitution promises to turn things around. If implemented fully and promptly, the problems of the past might be discarded for ever. Are Kenyans up to the challenge?
The implementation is a daunting task, full of both promises and dangers. But the critical thing Kenyans must appreciate is that a constitution is an organic document. It must be read, understood and implemented as a whole. One cannot cherry-pick bits and pieces depending on one's personal desires. It is imperative that implementation be conducted with equal emphasis to all parts of the constitution.
In other words, the fundamental rights and freedoms enshrined in the new supreme law apply equally to a 'Green' and to a 'Red' or 'Watermelon.' Discrimination is illegal regardless of how one voted. But the main problem emerges with implementation. It is reasonable to assume that those who were opposed to the new constitution will not stop opposing merely because they have lost.
In as much as the new constitution is for all Kenyans, those responsible for its implementation must, of necessity, be people who strongly and unequivocally supported its ratification. It would be dangerous to place opponents of the constitution in charge of giving it life and meaning.
Many senior government officials - particularly cabinet ministers, assistant ministers, permanent secretaries and heads of state corporations - openly opposed and campaigned against the draft. They ought not to be responsible for any aspects of implementation. This would avoid creating opportunities for opponents of the draft to sabotage its implementation to prove that it is 'unworkable.'
Moreover, the constitution itself makes clear that certain key government posts need to be cleansed from entrenched bureaucratic forces. That is why it requires prompt replacements for the Attorney General, Chief Justice, Director General of the NSIS, head of police, administration police and prosecutorial services, Auditor General and other key positions.
The new constitution creates mechanisms for its implementation. It prescribes how new institutions will be established and staffed. For instance, it deliberately prescribes that the Constitutional Implementation Oversight Committee be formed by Parliament. But this is a new creature, distinct from the Parliamentary Select Committee which is deemed to have died a natural death on August 4.
The Constitutional Implementation Oversight Committee is like an advisory board in a company. It is supposed to advise, not run the company on a daily basis.
The core business of implementing the constitution has been vested in the Commission for the Implementation of the Constitution. Then there are other constitutional bodies like the National Land Commission; the Commission on Revenue Allocation Commission; the National Police Service Commission; the Public Service Commission; the Independent Electoral and Boundaries Commission; the Judicial Service Commission; the Public Service Commission; the Salaries and Remuneration Commission; the Kenya National Human Rights and Equity Commission; the Parliamentary Service Commission; the Teachers Service Commission; and the National Police Service Commission.
These are all independent constitutional bodies. In addition to the creation of the Supreme Court and the restructuring of the entire judiciary, the constitution provides for the roles of the executive, the National Assembly and the people. In this arrangement (except as provided for by the constitution itself), the executive chooses; the legislature vets; and the people hold those appointed to account. It is therefore important for each institution or office of state to recognise its role under the constitution to avoid unnecessary conflicts or attempts at the usurpation of power.
Kenyans must demand that implementation be done by competent ethical and skilled professionals. If implemented properly, past wrongs and misadventures will be buried forever. However, if implementation is mishandled or sabotaged, the constitution might turn out to be just another exercise in conmanship That must never happen.
The writer is the PM's adviser. The views expressed here are his own.
But this victory is just the beginning of a long process of social, cultural, economic, political, legal and institutional reconstruction.
For the past fifty years, Kenyans have undergone gross human rights violations, economic and political crimes. Rules, laws and the constitution had little meaning to the majority. Political power and money were elevated to become gods and worshipped. The economy stalled. Infrastructure decayed. Life became a burden for the majority. Only a tiny minority benefited from the country's abundant resources. For fifty years, Kenyans have been a disillusioned lot.
Each time they have had legitimate expectations of prosperity, a functioning governing system and a responsive leadership; their hopes have been dashed.
The new constitution promises to turn things around. If implemented fully and promptly, the problems of the past might be discarded for ever. Are Kenyans up to the challenge?
The implementation is a daunting task, full of both promises and dangers. But the critical thing Kenyans must appreciate is that a constitution is an organic document. It must be read, understood and implemented as a whole. One cannot cherry-pick bits and pieces depending on one's personal desires. It is imperative that implementation be conducted with equal emphasis to all parts of the constitution.
In other words, the fundamental rights and freedoms enshrined in the new supreme law apply equally to a 'Green' and to a 'Red' or 'Watermelon.' Discrimination is illegal regardless of how one voted. But the main problem emerges with implementation. It is reasonable to assume that those who were opposed to the new constitution will not stop opposing merely because they have lost.
In as much as the new constitution is for all Kenyans, those responsible for its implementation must, of necessity, be people who strongly and unequivocally supported its ratification. It would be dangerous to place opponents of the constitution in charge of giving it life and meaning.
Many senior government officials - particularly cabinet ministers, assistant ministers, permanent secretaries and heads of state corporations - openly opposed and campaigned against the draft. They ought not to be responsible for any aspects of implementation. This would avoid creating opportunities for opponents of the draft to sabotage its implementation to prove that it is 'unworkable.'
Moreover, the constitution itself makes clear that certain key government posts need to be cleansed from entrenched bureaucratic forces. That is why it requires prompt replacements for the Attorney General, Chief Justice, Director General of the NSIS, head of police, administration police and prosecutorial services, Auditor General and other key positions.
The new constitution creates mechanisms for its implementation. It prescribes how new institutions will be established and staffed. For instance, it deliberately prescribes that the Constitutional Implementation Oversight Committee be formed by Parliament. But this is a new creature, distinct from the Parliamentary Select Committee which is deemed to have died a natural death on August 4.
The Constitutional Implementation Oversight Committee is like an advisory board in a company. It is supposed to advise, not run the company on a daily basis.
The core business of implementing the constitution has been vested in the Commission for the Implementation of the Constitution. Then there are other constitutional bodies like the National Land Commission; the Commission on Revenue Allocation Commission; the National Police Service Commission; the Public Service Commission; the Independent Electoral and Boundaries Commission; the Judicial Service Commission; the Public Service Commission; the Salaries and Remuneration Commission; the Kenya National Human Rights and Equity Commission; the Parliamentary Service Commission; the Teachers Service Commission; and the National Police Service Commission.
These are all independent constitutional bodies. In addition to the creation of the Supreme Court and the restructuring of the entire judiciary, the constitution provides for the roles of the executive, the National Assembly and the people. In this arrangement (except as provided for by the constitution itself), the executive chooses; the legislature vets; and the people hold those appointed to account. It is therefore important for each institution or office of state to recognise its role under the constitution to avoid unnecessary conflicts or attempts at the usurpation of power.
Kenyans must demand that implementation be done by competent ethical and skilled professionals. If implemented properly, past wrongs and misadventures will be buried forever. However, if implementation is mishandled or sabotaged, the constitution might turn out to be just another exercise in conmanship That must never happen.
The writer is the PM's adviser. The views expressed here are his own.
The Star Corridors of Power Political Gossip
Winnie Wangui, daughter of PNU activist Mary Wambui, arrived in style at the Muthangari polling station. But it was the behaviour of her bodyguards that threw off voters on queue. They shoved people aside to allow Winnie to vote without queueing like the hoi polloi. The anger caused by the rough bodyguards was however forgotten when a wag in the crowd loudly said: "I have only one dear wife!" which sent the voters into laughter. Another wag chimed in saying, "This is the last time she will come to vote with these bodyguards!"
***
A KTN presenter allegedly attempted to cut off Prof Yash Pal Ghai when he accused former President Moi of sabotaging the 2002 Bomas draft constitution. Yash and a commissioner with the Kenya National Commission on Human Rights, Omar Hassan Omar, were being interviewed on referendum matters. The station went into a commercial break but the presenter ran into more trouble when he said the Bomas conference was elitist and not people driven, which rubbed the good professor up the wrong way. The station went into yet another commercial break.
***
Just why did the government deduct Sh100 from civil servants last month? Speculation is rife that the money which was deducted without the consent of the civil servants may have been used to fund the Yes campaigns. Majority of the civil servants, especially those in the Office of the President learnt of the 'illegal' deduction when they received their pay slips this week. With an estimated 250,000 civil servants [excluding teachers], this translates to a cool Sh25 million.
***
A senior officer at the GSU headquarters in Ruaraka tried to stop civilians in the camp from going out to vote. It is not clear why the officer was opposed to the civilians exercising their civic right. The ban order was reversed after his colleagues prevailed upon him to rethink his decision.
***
A KTN presenter allegedly attempted to cut off Prof Yash Pal Ghai when he accused former President Moi of sabotaging the 2002 Bomas draft constitution. Yash and a commissioner with the Kenya National Commission on Human Rights, Omar Hassan Omar, were being interviewed on referendum matters. The station went into a commercial break but the presenter ran into more trouble when he said the Bomas conference was elitist and not people driven, which rubbed the good professor up the wrong way. The station went into yet another commercial break.
***
Just why did the government deduct Sh100 from civil servants last month? Speculation is rife that the money which was deducted without the consent of the civil servants may have been used to fund the Yes campaigns. Majority of the civil servants, especially those in the Office of the President learnt of the 'illegal' deduction when they received their pay slips this week. With an estimated 250,000 civil servants [excluding teachers], this translates to a cool Sh25 million.
***
A senior officer at the GSU headquarters in Ruaraka tried to stop civilians in the camp from going out to vote. It is not clear why the officer was opposed to the civilians exercising their civic right. The ban order was reversed after his colleagues prevailed upon him to rethink his decision.
Wycliffe Muga - Welcome to the federal republic - The Star
Although at the time of writing this, the results of the referendum are not yet out, I think it is safe to assume that you will be learning in the course of the day that Kenyans voted to emphatically usher in a new constitutional dispensation.
This new constitution brings us very close to becoming a federal state. That is its key defining feature, which all the other major changes spring from.
In Kenya, we are accustomed to thinking of federal systems of government in terms of large nations like the US, Australia, Germany, Canada or closer to home, Nigeria. But there is Switzerland, a really small country, which has only seven million people. Yet it too is a federal state. And it has no less than 26 Cantons, which are the approximate equivalent of the counties that we will soon have under the new constitution.
So, for all intents and purposes, we now live in the Federal Republic of Kenya. But what does this really mean?
Well, for now let me focus on the good news, and say that we should be grateful that our new devolved administrative units are based on the old districts and not the provinces.
If the counties had been fewer and larger, it would have had the effect of legitimising and entrenching the "regional power brokers" or "tribal chiefs" who have perfected the art of uniting their tribesmen under the banner of resisting "marginalisation", and then proceeding to use the voting power of these regional blocks to serve their personal agenda.
This theatrical "resistance" to marginalisation would be harmless enough were it not for the fact that it usually involves the victimisation and stigmatisation of the minority "non-indigenous" communities in those areas.
So we should be glad to see an end to it.
The other good news is that there will be many more opportunities for leadership for the civic-minded 'among us.
In the past the only path to a meaningful role in national politics was through seeking a parliamentary seat, usually with the secret hope of finding your way to the Cabinet. But now there are all those governorships and deputy governorships, and county speaker, and senate speaker, and senators, and so on.
Out of all these, the one which will be most deeply coveted will be the governorships. As far as I can understand it, the new governors will be much like the Kenyatta-era provincial commissioners, only they will be popularly elected, and they will be more.
For the sake of younger readers, I should explain that our founding president borrowed heavily from the colonial governors, in deciding how to rule Kenya. And he governed most visibly through the provincial administration which had barely changed from the colonial administrative structure he inherited.
And in those days the PCs were so often in the news, and they were such dominant public figures that they were as well known as ministers and even more powerful. But the new governors will have something that even those powerful PCs of old did not have: a constitutionally-mandated allocation from the national budget. They will therefore be the immediate means of salvation for their people, and will - to a large extent - determine whether their part of the country will prosper or stagnate.
Any really influential politician would obviously choose to be a governor, rather than one of almost 300 legislators, trying to get a hearing on the floor of Parliament.
Now in those countries with existing federal structures of government, it is the norm that those who wish to rise to higher office must first prove themselves in the successful management of public affairs at the regional level.
And although the most recent US presidential election featured two senators (Obama and McCain) it is usually former governors who end up president in that country George W Bush (former Governor of Texas); Bill Clinton (Arkansas); Ronald Reagan (California) and Jimmy Carter (Georgia).
So a few years from now, we may well have a situation where we can judge what a presidential candidate can do for the country, based on a proven track record of effective governance at the county level.
And that would certainly be a step forward. In the present situation, we tend to vote for the most effective campaigner, rather than the leader with the best track record.
The writer comments on topical issues.
This new constitution brings us very close to becoming a federal state. That is its key defining feature, which all the other major changes spring from.
In Kenya, we are accustomed to thinking of federal systems of government in terms of large nations like the US, Australia, Germany, Canada or closer to home, Nigeria. But there is Switzerland, a really small country, which has only seven million people. Yet it too is a federal state. And it has no less than 26 Cantons, which are the approximate equivalent of the counties that we will soon have under the new constitution.
So, for all intents and purposes, we now live in the Federal Republic of Kenya. But what does this really mean?
Well, for now let me focus on the good news, and say that we should be grateful that our new devolved administrative units are based on the old districts and not the provinces.
If the counties had been fewer and larger, it would have had the effect of legitimising and entrenching the "regional power brokers" or "tribal chiefs" who have perfected the art of uniting their tribesmen under the banner of resisting "marginalisation", and then proceeding to use the voting power of these regional blocks to serve their personal agenda.
This theatrical "resistance" to marginalisation would be harmless enough were it not for the fact that it usually involves the victimisation and stigmatisation of the minority "non-indigenous" communities in those areas.
So we should be glad to see an end to it.
The other good news is that there will be many more opportunities for leadership for the civic-minded 'among us.
In the past the only path to a meaningful role in national politics was through seeking a parliamentary seat, usually with the secret hope of finding your way to the Cabinet. But now there are all those governorships and deputy governorships, and county speaker, and senate speaker, and senators, and so on.
Out of all these, the one which will be most deeply coveted will be the governorships. As far as I can understand it, the new governors will be much like the Kenyatta-era provincial commissioners, only they will be popularly elected, and they will be more.
For the sake of younger readers, I should explain that our founding president borrowed heavily from the colonial governors, in deciding how to rule Kenya. And he governed most visibly through the provincial administration which had barely changed from the colonial administrative structure he inherited.
And in those days the PCs were so often in the news, and they were such dominant public figures that they were as well known as ministers and even more powerful. But the new governors will have something that even those powerful PCs of old did not have: a constitutionally-mandated allocation from the national budget. They will therefore be the immediate means of salvation for their people, and will - to a large extent - determine whether their part of the country will prosper or stagnate.
Any really influential politician would obviously choose to be a governor, rather than one of almost 300 legislators, trying to get a hearing on the floor of Parliament.
Now in those countries with existing federal structures of government, it is the norm that those who wish to rise to higher office must first prove themselves in the successful management of public affairs at the regional level.
And although the most recent US presidential election featured two senators (Obama and McCain) it is usually former governors who end up president in that country George W Bush (former Governor of Texas); Bill Clinton (Arkansas); Ronald Reagan (California) and Jimmy Carter (Georgia).
So a few years from now, we may well have a situation where we can judge what a presidential candidate can do for the country, based on a proven track record of effective governance at the county level.
And that would certainly be a step forward. In the present situation, we tend to vote for the most effective campaigner, rather than the leader with the best track record.
The writer comments on topical issues.
Pheroze Nowrojee - Thank goodness the poll was held - The Star
For the past two weeks, the most important trials since the Kenyatta trial at Kapenguria in 1952-3, have been going on. Like the Kapenguria trial, the importance did not lie in the charges in the cases. In both sets of cases, these were inadequate to support the orders sought. Their importance lay in the possible serious and adverse consequences to the people of Kenya.
There were four petitions before the Interim Independent Constitutional Dispute Resolution Court sitting at the Kenyatta International Conference Centre. They were deciding on matters that had the potential to drive away the high-profile campaigns from the headlines. This because the petitions were asking the Court to postpone or cancel the Referendum to be held on August 4, 2010.
These petitions had the potential to bring to an end all the efforts of the present constitutional review process. They had the potential to dash the hopes of millions of Kenyans, and prevent constitutional review for the next twenty years.
They could condemn us to continuing with the old constitution which had proven defective to prevent the events of 2007-8. The review process emerged out of the National Accord to prevent a recurrence in 2012 of the violence and breakdown of 2007-8. Thus, the postponement or cancellation of the Referendum would not only bring down the review process, but the National Accord itself. All this was at stake in the four petitions.
Some of the petitions were brought by a combination of interests opposed to change in Kenya. They furthered partisan interests and not the national interest. They challenged the new constitution on many grounds, among them diaspora voting, abortion and kadhis' courts.
One petition wanted the Court to draft multiple-choice questions for the referendum. The most common complaint was that the petitioners' views were not incorporated in the new constitution and therefore the Committee of Experts or the Parliamentary Select Committee had acted unlawfully.
The Court delivered its judgments early this week, the judges in each case taking turns to read the two-hour long judgments.
Several petitioners had asked the Court to expunge, add, suspend, reject, or rectify various sections of the Proposed Constitution. Some petitioners wanted the words 'national security' put in as a ground to deny human rights. These, it will be remembered, were the very words that were criminally inserted at the Government Printers, exposed and rejected.
The Court held it had no power to excise or to add to the document. The Court drew an analogy with 1 Corinthians 12.12. The document had to go to the referendum as an integral product of the organs of review. The Court was not an organ of review.
The Court examined the steps taken by the Committee of Experts at every stage. It considered the joint statement published with the Reference Group, which consisted of representatives of every sector of Kenyan society, including many of the churches.
It checked on the statutory methodology which the Committee of Experts used to determine what constituted contentious issues for .the purposes of the review act. This was because the statutory meaning of those two words differed from what lay persons would expect.
It did not simply mean any strongly contested issue. It meant the issues that had not emerged from consensus on the past drafts, (such as Bomas and Wako). The Court then held that it was satisfied the experts had acted correctly and not in violation of anyone's rights.
The review act and the constitution had given discretion to the experts. The Court held that the experts had to take into account more than only the differing and hotly contested views of various groups, including the petitioners.
The experts had to take into account a large number of other factors set out in Sections 25, 4 and 6 of the review act, including most importantly, national cohesion. The Court held that the discretion had been reasonably exercised.
The petitions asked the Court to make decisions on the content of the Proposed Constitution, on what should be in and not be in the draft.
The Court held that this was not its role, but was that of the organs of review culminating in the people through the referendum. "The Court cannot have a role higher than the people in this [constitution-making] process. It would amount to a judicial coup on the people's constituent power."
The Court finally held that no basis had been established by the petitioners to order any postponement or cancellation of the Referendum.
The writer is a lawyer.
There were four petitions before the Interim Independent Constitutional Dispute Resolution Court sitting at the Kenyatta International Conference Centre. They were deciding on matters that had the potential to drive away the high-profile campaigns from the headlines. This because the petitions were asking the Court to postpone or cancel the Referendum to be held on August 4, 2010.
These petitions had the potential to bring to an end all the efforts of the present constitutional review process. They had the potential to dash the hopes of millions of Kenyans, and prevent constitutional review for the next twenty years.
They could condemn us to continuing with the old constitution which had proven defective to prevent the events of 2007-8. The review process emerged out of the National Accord to prevent a recurrence in 2012 of the violence and breakdown of 2007-8. Thus, the postponement or cancellation of the Referendum would not only bring down the review process, but the National Accord itself. All this was at stake in the four petitions.
Some of the petitions were brought by a combination of interests opposed to change in Kenya. They furthered partisan interests and not the national interest. They challenged the new constitution on many grounds, among them diaspora voting, abortion and kadhis' courts.
One petition wanted the Court to draft multiple-choice questions for the referendum. The most common complaint was that the petitioners' views were not incorporated in the new constitution and therefore the Committee of Experts or the Parliamentary Select Committee had acted unlawfully.
The Court delivered its judgments early this week, the judges in each case taking turns to read the two-hour long judgments.
Several petitioners had asked the Court to expunge, add, suspend, reject, or rectify various sections of the Proposed Constitution. Some petitioners wanted the words 'national security' put in as a ground to deny human rights. These, it will be remembered, were the very words that were criminally inserted at the Government Printers, exposed and rejected.
The Court held it had no power to excise or to add to the document. The Court drew an analogy with 1 Corinthians 12.12. The document had to go to the referendum as an integral product of the organs of review. The Court was not an organ of review.
The Court examined the steps taken by the Committee of Experts at every stage. It considered the joint statement published with the Reference Group, which consisted of representatives of every sector of Kenyan society, including many of the churches.
It checked on the statutory methodology which the Committee of Experts used to determine what constituted contentious issues for .the purposes of the review act. This was because the statutory meaning of those two words differed from what lay persons would expect.
It did not simply mean any strongly contested issue. It meant the issues that had not emerged from consensus on the past drafts, (such as Bomas and Wako). The Court then held that it was satisfied the experts had acted correctly and not in violation of anyone's rights.
The review act and the constitution had given discretion to the experts. The Court held that the experts had to take into account more than only the differing and hotly contested views of various groups, including the petitioners.
The experts had to take into account a large number of other factors set out in Sections 25, 4 and 6 of the review act, including most importantly, national cohesion. The Court held that the discretion had been reasonably exercised.
The petitions asked the Court to make decisions on the content of the Proposed Constitution, on what should be in and not be in the draft.
The Court held that this was not its role, but was that of the organs of review culminating in the people through the referendum. "The Court cannot have a role higher than the people in this [constitution-making] process. It would amount to a judicial coup on the people's constituent power."
The Court finally held that no basis had been established by the petitioners to order any postponement or cancellation of the Referendum.
The writer is a lawyer.
04 August, 2010
Kenya Contitution Referendum: Voting Day Peaceful
Kenyans enjoyed a peaceful referendum day with no major incidents reported. The IIEC has done a good job so far. Wednesday 4th August was declared a public holiday to enable Kenyans to vote for or against the Kenya constitution. 27689 polling stations opened up at 6pm and closed at 5pm. There are no incidences of violence reported so far.
Vote counting is underway with live and real time results being streamed live at the IIEC tallying centre at the Bomas of Kenya. Security has been beefed up by the GSU around Bomas.
As at 3 pm this afternoon, most stations had reported 50% turnout.
Nairobi - 60
Coast - Malindi Region - 30%
Coast - Mombasa - 60%
Rift Valley - Central/South Rift - 50%
Rift Valley - North Rift - 60%
Rift Valley - Baringo Constituency - 30%
Rift Valley - Kacheliba 10%
Central Province - above 50%
Central Province - Nyeri/Thika regions reported over 70%
North Eastern - Over 45%
Eastern Province - over 50%
Eastern Province - Lowe Eastern - over 70%
Western Province - Bungoma Region - 40%
Western Province - Kakamega Region - over 50%
Nyanza Province - Kisumu Region - 85%
Nyanza Province - Kisii Region - 80%
Vote counting is underway with live and real time results being streamed live at the IIEC tallying centre at the Bomas of Kenya. Security has been beefed up by the GSU around Bomas.
As at 3 pm this afternoon, most stations had reported 50% turnout.
Nairobi - 60
Coast - Malindi Region - 30%
Coast - Mombasa - 60%
Rift Valley - Central/South Rift - 50%
Rift Valley - North Rift - 60%
Rift Valley - Baringo Constituency - 30%
Rift Valley - Kacheliba 10%
Central Province - above 50%
Central Province - Nyeri/Thika regions reported over 70%
North Eastern - Over 45%
Eastern Province - over 50%
Eastern Province - Lowe Eastern - over 70%
Western Province - Bungoma Region - 40%
Western Province - Kakamega Region - over 50%
Nyanza Province - Kisumu Region - 85%
Nyanza Province - Kisii Region - 80%