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Monthly Archives: January 2012

AG Githu Muigai Has Earned Worst Attorney General In Kenya Title In Record Time

In an unprecedented manner, Attorney General Githu Muigai has broken a record in earning the Worst Attorney General in Kenya title.

That does not mean he holds the position to the exclusion of all others.

Others before him took years to finesse their skills in serving their master, namely, the individual holding the position of President aka Kenyatta and Moi, in their respective times before earning that title but Githu has surpassed them all with the speed he has earned the title, given he has been in office for only a few months.

One may be quick to dismiss this as being said in jest but, seriously, can anyone identify one thing Muigai has done Wako, for example, could not have done equally as bad, but certainly not worse, given the latter toward the end of his “career” as AG rediscovered the fact being an an Attorney General was more than serving the narrow interests of the person occupying State House as president?

Well, at least to the extent he defied his previous self and Kibaki by correctly lining himself with the PM and others who stood the ground and made it known Kibaki was in violation of the constitution in his attempt to illegally stuff key constitutional offices with his handpicked candidates rather than going though the clearly established constitutional manner of appointing such officers.

Ironically, one of those handpicked candidates was none other than Muigai himself Kibaki still insisted and had him nominated and appointed AG against wiser counsel and yes, the PM could have once again stood his ground and had the position filled with at least not another Kikuyu but, as yours truly blogged at the time in The Meaning of President Kibaki’s Appointment of Prof. Githu Muigai As Attorney General,

The PM was successful in thwarting Kibaki’s efforts the last time he attempted to illegally nominate and appoint Muigai and the other allies to the various constitutional offices because Kibaki was clearly acting in violation of the constitution and the public was not going to stand for that flagrant abuse of power, unlike the past.

In this case, however, we are told the president consulted the PM before re-nominating Muigai.

The constitutional consultation requirement has therefore been satisfied, unlike the last time when Kibaki attempted to install Muigai without consulting the PM.

The requisite consultations having occurred, the PM either had to agree with the nomination, or object to it.

Having not objected, one can only conclude the PM did not object because he could only do so based on sound legal ground and one which Kibaki could ignore only at his own peril.

I see none this time around.

Githu is for all I know superbly qualified to be appointed AG.

None of what I say here is legal basis to oppose his appointment, let alone succeed in blocking it.

What I say here, however, is a moral basis to oppose his appointment which would be counterproductive for the PM himself to mount, given the fragile coalition we have and coming to a natural end, as it is.

Besides, if the PM doesn’t really care about the appointment, he can show Muigai the door, once he is elected president, if Kenyans give him the nod as expected, given the AG does not have security of tenure.

In other words, Raila comes out of this the statesman he is; why pick on fights that don’t improve the situation but make it worse?

As Kenney Rogers sings in the Gambler, “you got to know when to hold em, know when to fold em.”

There are some battles not worth fighting.

Knowing how some of my readers misread what I say, let me reiterate what I say is merely an expression of an opinion and neither does what I say have anything to do with PM’s thinking or reasoning in all of this for I never know and don’t know what that could be.

Mine is simply an analysis, based on publicly available information.

Ens quote.

In just the last several days, Githu has managed to earn the Worst Attorney General In Kenya in a record time because of three reasons:

First, he has done nothing to show that he is any different from his predecessors in as far as he has taken Kibaki–forget about Raila, as his client, not the government which draws its legitimacy and power from the people such the people are the AG’s client as well.

Second, to confirm the preceding Reason No. 1, Muigai allowed the most embarrassing words that can fall off a lawyer’s lips other than Kivuitu declaring Kibaki as president despite the glaring irregularities of the poll results, and that is, in Kenya, one accused of crimes against humanity such as murder and rape can nonetheless hold public office because such crimes are alleged to have been committed in their “personal” capacity, or off-duty that is.

Third, besides the preceding Reasons No.1 & 2 the AG has now picked a fight with the Solicitor General apparently involving transfer of lawyers from the AG’s office to the covetous Foreign Affairs office.

If this was a routine intra-agency or even inter-agency turf war between Muigai and some other bureaucrat, one would ignore and make nothing of it.

That’s what some of us did when it was reported that the AG and CIC Chairman Charles Nyachae were locking heads over who is serving Kibaki’s interests better.

The two had a meeting and apparently whatever that was, was smoothed out but it should be remembered the two are supposed to serve the interests of the people, not any particular person.

According to the Standard Online story, however, there may be more there there here than merely another turf-war in this latest power grab or attempt of it by the AG. Muigai is apparently miffed that his seconding of three Principal State Counsels–Jeannette Mwangi, Patrick Okoth, James Waweru and Senior State Counsel, Robert Kungu to Foreign Affairs “upon request by the ministry.”

One need not know what the underlying reasons or validity of those reasons are for the Solicitor General to have apparently opposed the AG’s effort to transfer these lawyers to Foreign Affairs.

The AG earns the title Worst AG in Kenya simply by seconding four lawyers to Foreign Affairs where 2 of those are Kikuyus.

It’s an offense for which he should also be sacked.

Have these men have no shame at all?

When would this flagrant, in your face vitendo end?

I have previously blogged that a law should be passed to make it a criminal, not just a civil offense for flagrant nepotism and tribalism.

While favoritism along tribal, personal and other bases will never end and it’s unreasonable to expect it to end, stuffing people in virtually all vacancies in certain departments by people from one community is evil and should be condemned by all of us, including those whose community benefits as such for surely, we have to have some sense of balance, proportionality and fairness to all.

Peace, Unity and Worst of AGs In Kenya

Omwenga

 
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Posted by on January 31, 2012 in Law, Politics

 

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Mama Ida Clarifies Her Position on ICC Trials

According to impeccable sources, the story about Mama Ida reported in the news is correct but it’s not the whole story. As is often the case in media reporting, Mama Ida gave a lengthy interview but only bits of it were cut and pasted in the story first appearing in Daily Nation.

The story, for example, did not emphasize the fact that even though publicly aired, Mama Ida’s message was primarily intended for Members of Parliament because she believes the August House failed Kenyans in not passing the law intended to try all PEV suspects in Kenya.

Mrs. Odinga, however, believes Parliament should still pass this law that may or may not include those cases currently pending at the Hague with her concern being perpetrators of PEV who are not at the Hague should also face justice at home.

The source says Mrs. Odinga also believes Parliament has many willing to do the right thing but only those who were compromised before derailed the process to establish a local tribunal for reasons they now regret.

Mrs. Odinga believes Parliament can act in a non-partisan spirit to pass the law for local tribunal which, in her view, is the only way closure can be had on PEV.

Regarding her shared sympathy as a mother, Mrs. Odinga made it clear that was with all mothers and wives of the ICC suspects and not necessarily the suspects themselves she says the law should be allowed to run its course.

The PM’s wife is emphatic that she made it clear during the interview that she needless to say feels the pain and anguish of the PEV victims and reminds people that she was the very first person to visit PEV victims in the aftermath of the violence to console them when there were no politicians doing so at the time.

 
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Posted by on January 30, 2012 in Law, Politics

 

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Uhuru and Ruto Should Stop Acting As If Confirmation of Charges Against Them Is Without Meaning or Consequence

It is this kind of arrogance that has seen the likes of Qaddafi hounded out of office.

Rather than calling rallies to laugh at PEV victims for ICC charges being confirmed against them and rather than thumbing their nose at the very people they purport to seek office to represent as president, Uhuru and Ruto are better served to humble themselves to the fact they face very serious criminal charges and try and figure a way to defend against those charges.

If they think holding rallies advances their cause in that respect, they are sadly mistaken.

ICC will remain unimpressed with how many rallies or how large a following these two have in Kenya.

In fact, one can even venture to speculate if the ICC were inclined not to convict these two for the reasons previously discussed elsewhere on this blog, including in Open Letter To President, Pre-Trial Division, International Criminal Court, both will be convicted just to show them who rules between men with large egos they think can trump justice and the rule of law.

They may laugh now and high-five each other but the PEV victims and the people of Kenya may laugh last.

Were they to humble themselves and pursue a less in your face tactics to sway public opinion along tribal lines, they may in some way find their prospects looking brighter than the grim reality they face at the Hague.

The world is changing fast as to how much impunity can be tolerated and Kenya is no exception.

Nobody is saying these suspects are guilty as charged, certainly not this blogger but there is a line we must all draw as a country and these two individuals seem to have already crossed to the line where they are now basically taunting Kenyans to dare remove them from office.

They should be removed from office on that daring alone as it is in contravention of Chapter 6 of the constitution, and that is in addition to the Chapter being violated already by Uhuru Kenyatta’s continued serving as DPM.

 
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Posted by on January 29, 2012 in Law, Politics

 

NTV Spins ICC

In this NTV news clip, a well known Raila critic–and that is to put it mildly, David Ochwangi, and a couple of other individuals are interviewed on their views regarding the recent ICC court decision to confirm charges against DPM Uhuru Kenyatta, William Samoei Ruto, Francis Muthaura and Joseph Sang (the Ocampo-4).

Several observations can be made about this piece.

First, even though not speaking as a lawyer, Ochwangi misstated the law.

Confirmation of ICC charges requires substantial evidence that crimes against humanity have been committed, not a preponderance of evidence as Ochwangi claimed; the former is a higher standard than the latter, which Ochwangi either intentionally misstated or ignorantly or inadvertently did so.

Someone should advise NTV to correct the statement, otherwise it’s a misleading one–not that it matters greatly but for accuracy sake.

Second, Ochwangi could not help himself but try to basically question why Raila is not at the Hague but could not bring himself to say that overtly as he knows it’s a bogus question so he instead opted to raise the irrelevant question as to why other people he claims are on “a list of 14 people” are not the Hague.

The fact is, the ICC Chief Prosecutor has made it clear there is no evidence linking Raila to the crimes the Ocampo-4 stand charged as having committed and that issue is closed no matter how many times Ochwangi and other anti-Railaists rail and rave about it.

We all know what the ICC court said about Kibaki and meetings at State House and, the fair and objective thing to do, is to let that court get to the bottom of all of that, which there is great confidence it will.

In other words, it would be a complete waste of time for Kenyans other than those directly involved in the litigation of these cases or those who have sufficiently studied these cases as a matter of law to try and try these cases in these fora or elsewhere.

Third, Ochwangi says “the government should now take over these cases”–not so fast!

I am all for the cases to be returned back home for trial but only provided proper foundation and mechanisms are put in place to ensure the cases can be tried there in a fair and just manner consistent with the rule of law and this includes significantly effecting judicial reforms more than we currently have underway.

The bringing of these cases back home cannot be–as Kibaki and the suspects wish–merely to derail the wheels of justice at the Hague,

Finally, but not least, we must demand a re-filming of this broadcast consistent with our constitution.

How come its only men who were interviewed and of the three, two are Kisiis?

Does NTV not know about the demands of our constitution regarding gender and regional balance?

Or did our friend Ochwangi set-up the whole thing up with the help of his PNU buddies?

Anyway, no harm.

90% of the viewers would have no clue what Ochwangi was really trying to convey as his main message and that is, Raila should be at the Hague!

Those who would, are likely the ones who have heard Ochwangi and others say the same thing 10,000 times on the Internets (Bush’s word) and have long since dismissed it as merely ranting and raving about Raila this, Raila that to the point of hoarseness.

If they have heard and still think there is something there there, then it makes no difference whether what is said on this NTV clip–those are the voters any politician seeking office must discount and put on the “Gone” column.

The viewers will, however, get the overall message of the piece and that is, ICC is not to be trusted because it’s “compromised by local [Kenya] politics” as one of the other Kenyans interviewed for the piece claims.

In What Outcome Kenyans Should Expect Out of ICC, I noted that the Court must look beyond the law and take into consideration idiosyncrasies peculiar to Kenya but in so doing, I was not and I am not suggesting that the cases be compromised in any way; rather, a balancing of these interests must be made in the end outcome.

Thus, there is a clear difference between what I posited and what this NTV piece is trying to convey; what I posited is in the national interest, what NTV is conveying is in the narrow interest of the now Ocampo 4.

The secondary message in the piece–and a perfunctory one at that, is that ICC “wheels of justice should be given a chance to spin.”

What is spinning for sure, is NTV in its spin on this story.

Peace, Unity and No Media Spin By Media.

Omwenga

 
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Posted by on January 28, 2012 in Law, Politics

 

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Mudavadi Has No Good Reason To Challenge Raila For ODM Party Nomination

In Why Raila Cannot Drop Mudavadi As VP Running Mate, I laid out reasons why I believe Raila cannot drop Mudavadi or conditions under which he could to be it a politically viable option.

Excerpts:

In a comment to this [Standard] story in the comment section, I said, “Raila will make a fetal mistake which will ensure nothing but defeat at the polls, if he drops Mudavadi as his running mate. Those urging him to do just that are either non-supporters who would love nothing but such an outcome, or supporters who are either disingenuous or are shortchanged in their understanding Kenya politics. Fortunately, Raila understands all of this given what we know about him and therefore my expectation is, Raila will not drop Mudavadi as his running mate.”

I say this because this is an issue I have been looking into for some time and shared my analysis of it in my blog, My Take on Prof. Makau Mutua’s Suggestion Raila Should Replace Mudavadi As His Running Mate in which I disagreed with the good professor and instead concluded for the reasons I provided therein that Raila should not drop Mudavadi and these are in a nutshell:

First, and almost without saying, Raila cannot drop Mudavadi as his running mate against the latter’s will for doing so, as I have noted above, will create fatalistic obstacles and traps for Raila which he may not successfully maneuver around to reach victory.

Second, even though it’s conceivable that Mudavadi may, in fact, be persuaded to step aside and be replaced by someone else, and willingly albeit reluctantly do so, everything I am looking at suggests doing so would not bring with an advantage for Raila and ODM significantly enough to warrant the risk of doing so in lieu of keeping Mudavadi as VP.

I noted in my analysis that, even though regional balancing is important as Makau correctly points out and we all pretty much agree, I disagree that “Kenya isn’t “mature enough” to accept a President and Deputy President from the same region,” as Makau argues.

Quite the contrary, I believe we have matured sufficiently enough to embrace tectonic transformational changes, including how we vote notwithstanding the relative youthfulness of our new found democracy.

Indeed, as I further noted, the new constitution provides ample foundation to bring about these changes as shall be witnessed by election of our first president with true nationwide support and backing come next year.

“And therein lies the open secret to Raila’s key to resolving the VP slot dilemma: the constitution.”

I then went on to analyze and have provided my rationale for this conclusion in that blog.

Third, it is far much easier for Raila to convince more voters from East and Central to vote for him in sufficient numbers to overcome any loses elsewhere than Raila convincing voters in Western province why he has dropped Mudavadi, regardless of the perfectly reasonable reasons behind such a move and regardless of Mudavadi’s own blessing for the move.

Fourth, the only way in my view substituting Mudavadi could pay dividends, is if the substitution is for a woman, to provide gender balance.

Gender balance, however, presents a series of its own concerns and considerations which on balance, in my view, there are more pitfalls there than those Raila has to face in tackling regional balance.

End quote.

In an article appearing on the Daily Nation, Daily Nation Online, Mudavadi’s handlers had a story written in which they say Mudavadi is poised to seriously challenge Raila for party nomination as presidential candidate.

I disagree with such move for several reasons and before I even address those reasons, let me be clear and will elaborate more in this context that a party that does not hold open and transparent elections in the nomination of its candidates is prone to fail only because how a party conducts its affairs, is a reflection of how it will once in power.

Having said that, let me hasten to add that when it comes to picking the presidential contender for any party, that spot should and must be automatically taken by the party’s current Party Leader, except where the position is vacant.

Ditto for the position of presidential running mate, which should go unchallenged to the Deputy Party Leader with the second most votes cast for party positions in the latest party elections.

This is important for two reasons:

First, it ensures party unity and loyalty, which are two inseparable characteristics of a successful party.

Second, this is the practice in most successful democracies, including here in the US where the party leader is never challenged and the last time it happened, it was back in the 80s when Ted Kennedy tried to replace then poorly performing President Jimmy Carter but as expected, he did not succeed.

To do permit a challenge would be akin to Vice President Joe Biden suddenly challenging Obama for the Democratic Party nomination for 2012, which would be laughed right out of his head.

Third, this will remain to be the case, even when the Party Leader vies and loses because, when you stop to think about it, the idea is not the individual running but a messenger for the party.

The only exception to this, would be when the incumbent Party Leader performs so poorly, be that as just Party Leader or as president, is corrupt or is otherwise damaged goods as a leading presidential contender such that allowing him to head the ticket would doom the party in the view of the party’s majority, in which case a serious challenge for the nomination can and should be mounted but then only if there is a better candidate who can erase the fatalistic problems.

Going by this analysis, I don’t see why Mudavadi should seek to challenge Raila for nomination as flag bearer of ODM.

Raila is for all practical purposes the incumbent president, having been so elected but not sworn but was instead sworn and has been effectively serving as Prime Minister.

Other than his opponents who have been conniving to stop him from being reelected simply because they want to be elected instead, Raila has no baggage that could be even remotely argued to prevent him from mounting an effective and successful campaign.

All polls conducted thus far show him as the man to beat for the next general elections and these can only get better in time as the campaigns get underway.

Mudavadi, on the other hand, has been on Raila’s side and effectively carried out his duties not just as Deputy Party Leader but also as Deputy Prime Minister.

There is no question he in his own right qualifies to run for president but that’s not the issue.

The issue is, is there any reason he should replace Raila as ODM flag-bearer in seeking the presidency and he and/or his handlers seem to suggest so in the article cited above but anyone looking at this objectively would have to conclude those reasons are either too peripheral or simply not strong enough to make any compelling case that Mudavadi is or can be the better candidate.

One of the reasons they give is that Mudavadi is the candidate who will ensure a straight win in the first round in the presidential election, thus avoiding the necessity of a run-off.

According to the story, the “strategy is based on reports that presidential aspirants identified with the G7 Alliance of Kalonzo Musyoka, Uhuru Kenyatta, William Ruto, George Saitoti and Eugene Wamalwa are all likely to run for the presidency in order to lock the PM out of their political strongholds thereby denying him the requisite 50 per cent plus one majority and 25 per cent vote in 24 counties.”

This is a clever reasoning given only because it’s designed to confuse and convince the unwary.

Although Raila has been getting ready to vie for the presidency notwithstanding the happenings at ICC, only his distractors and scheming partisans have been focused on the ICC as key to Raila’s path to State House.

The truth is, in the new Kenya, we must have presidential candidates who must not only appeal to Kenyans widely, but one who must make the compelling case and successfully so that we must leave tribalism behind with the old constitution and move with the letter and spirit of the new constitution, which is high on integrity and sees no tribalism.

Raila is such a candidate and even though given political egos someone at the party believes they can make this case better than Raila, the reality is and quite objectively so, Raila is far more better positioned than the rest, including Mudavadi himself and this is also true when compared viz the overall presidential field and thus the reason he should be nominated without challenge.

Again, objectively looking at this, ODM should mount a campaign led by Mudavadi himself to inform voters that by him not challenging Raila does not mean he is a wimp or Raila’s lapdog as some uncouth characters are quietly passing rumors and innuendos basically intended to tick off Mudavadi so he can jump ship and declare war against Raila, a very ill-advised move, if he were to oblige them but Mudavadi is a seasoned and intelligent politician who should know better than follow such ill-advise.

There is only one president who serves at a time, everyone must wait their turn no matter how long that takes.

The most important consideration every party member should look at and agree on is first, what does the party stand for and second, who is best qualified to lead the party in implementing those ideals.

Once that decision is made and the person to lead is selected, then out of loyalty, consistency, unity and continuation, it should be full throttle from everyone in the party until their leader is sworn into office as president.

That’s what ODM should do and if it does, all shall be fine in the end.

Otherwise, let those in disagreement speak now or never and if that means leaving the party, it’s better now than later if they have to be left with any credibility.

Such honesty and transparency is what is needed in all parties, rather than the scheming and conniving we are all too accustomed to at the expense of true democracy.

[Unedited]

 
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Posted by on January 27, 2012 in Politics

 

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President Kibaki’s Quest For Second Round of So-Called Shuttle Diplomacy To Defer ICC Cases Is Doomed To Fail

According to  Standard Online, Kibaki is bent on starting another round of the so-called shuttle diplomacy to bring the ICC cases back home for purported trial.

Just as similar efforts were ill-advised before and miserably failed accordingly at the expense of depleted public funds, so too will this new round fail.

To be sure, the Rome Statute provides under Article 19 that the State can challenge the admissibility of any case but only once, which Kenya has done already and lost.

To mount another challenge of admissibility, the very court which confirmed the charges must give it permission to do so, which is highly unlikely, given the government has done nothing to advance the argument termination or deferral is warranted.

The reasons the president cited the other day during the post-confirmation press conference simply don’t cut it as they are general and none specifically even as suggest the government is serious about pursuing these cases locally and that’s why it’s very unlikely and, in fact, certain that the second efforts to defer will fail.

Indeed, the government’s efforts must surely fail because the government can only seek permission of court to challenge the admissibility of the case beyond the one time allowed, only under Article 17(c) of the Statute, which provides that such application be based on the fact that “The person concerned has already been tried for conduct which is the subject of the complaint” and even then, ICC may still maintain jurisdiction if the trial is found to be a sham.

Although I have been a proponent of these cases being brought back home, the time to do this has passed now that the charges have been confirmed so the ICC process must be allowed to continue full steam to its conclusion.

Any further efforts to thwart the process must be viewed as an effort to shield the suspects and perpetuation of impunity contrary to the letter and spirit of the constitution with the ultimate outcome being denying the PEV victims the justice they deserve in addition to prolonging this sad and tragic chapter of our history.

 
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Posted by on January 25, 2012 in Law, Politics

 

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Prime Minister’s Statement on ICC Decision

NAIROBI, Monday 23rd January, 2012 at 1700Hrs

The Prime Minister has taken note of the decision made by the International Criminal Court at the Hague on Monday, January 23rd 2012.

As it is now, it is important for all Kenyans to await the final outcome of the process. Indeed the Kenyan Nationals before the Court are still innocent.

The Prime Minister hopes that the final outcome will deliver justice to both the Kenyan Nationals before the ICC and the victims of post-election violence.

In the meantime, the Prime Minister appeals to all Kenyans to remain calm and peaceful.

END

 
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Posted by on January 23, 2012 in Politics

 

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