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Monthly Archives: September 2013

The ICC Cases Against Uhuru and Ruto Must Be Terminated Or Brought Back Home for Resolution

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In my Star column this weekend Bring ICC Cases Back Home I make the case why the ICC cases against our president, deputy president and radio host Joshua Sang should either be terminated or brought back home for resolution consistent with our own values and sense of justice.

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Posted by on September 28, 2013 in Uncategorized

 

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Does One Laugh Or Cry; The State of Our Judiciary

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Mutunga Team Plot Downfall of Judiciary Administration

The Standard, Nairobi, 26 September 2013

A power struggle at the top of the Judiciary has spawned a 31-point ‘war strategy’ aimed at achieving the absolute authority of Chief Justice Willy Mutunga, and revealing chilling inner workings within the institution, aimed at ousting reformer Chief Registrar Gladys Shollei.

In a detailed, six-page document titled “War Strategy: The 31-Point Plan”, Mr Mutunga is advised to kick out Mrs Shollei in order to reassert his allegedly diminished role in the running of the Judiciary.

The Standard has obtained a trove of email correspondence to this effect between Mr Mutunga and the four person team he has created as his hand-picked personal staff.

Mutunga’s inner cabinet drafted the plan at the Norfolk Hotel in a marathon overnight session last Friday, September 20.

According to the documents, the initiative is the brainchild of Mr Duncan Okello, Prof Joel Ngugi, Mr Dennis Kabaara and Mr Kwamchetsi Makokha. Mr Kabaara and Mr Makokha are not formally employed by the Judiciary.

Mr Okello is the Chief of Staff in Mr Mutunga’s office while Prof Ngugi is the head of the Judiciary Transformation Secretariat and the director of the Judiciary Training Institute.

Mr Kabaara is a financial analyst in the same office, while Mr Makokha, a columnist in one of the local newspapers, is currently engaged as a communications consultant in the Office of the Chief Justice.

The War Strategy Plan states: “By the conclusion of these activities and implementation of these strategies, the single most important driver of resistance to Judiciary Transformation (“Darth Vader” or DV) shall have been removed.”

“Darth Vader” is a monstrous character in the children’s movie Star Wars and has been adopted by Mutunga’s kitchen cabinet as their nickname for Mrs Shollei who they claim has totally eclipsed Chief Justice Mutunga.

In the documents seen by The Standard, the four describe themselves as the “War Council” and the Chief Justice as its “commander-in-chief”.

The documents show that after initial prevarication, Mutunga signed off on the plan via an email to the four members on September 20 at 9:02 pm.

“As your commander in chief I say my generals, let us start the initial battles in this war. Let word go round those who we want to mobilize that the principle of the war has been accepted by the general,” reads his email.

The previous day, on September 19, he had indicated his readiness to accept the plan advanced by the four in an email he sent to Prof Ngugi at 7:32 pm.

“Thank you for this war plan. I like its tone, angry, loyal, frustrated, but eyes on the prize, the transformation of the Judiciary. It is a great blueprint for battles ahead and I love it,” he said.

The strategy, the email exchanges suggest, has been weeks, if not months, in planning and seems to have crystallised during an evening meeting by the five on September 20 at Norfolk Hotel.

The seeds of this conflict seem to have been sowed in the head of the CJ by Makokha, Ngugi and Okello just a month or so before Mrs Shollei’s suspension.

“I am frankly quite frustrated by your oft-repeated line that you are trying to protect the OCRJ (Office of the Chief Registrar of the Judiciary). Does the OCRJ ever protect you? Is your middle name “Fait Accompli”? You must wake up and smell the coffee,” wrote Prof Ngugi on July 28.

power vacuum

Mrs Shollei said she was not aware of the e-mails, but said she was “shocked, dismayed and heartbroken” by them.

After taking the call, she promised to call back, but later turned her phone off and could not be reached.

In the e-mails, Mr Makokha argued there was a perceived power vacuum in the Judiciary and that it was necessary for the CJ to take control of the institution.

“Equivocation and niceness has damaged the institution greatly in the past few weeks. You need to rein in the JSC (Judicial Service Commission) by demonstrating that you care about the concerns they are raising and not playing politics,” he wrote.

When contacted by phone and read out some of the e-mails, Mr Makokha said he was not in a position to determine whether he had written them, or not, until he sees them physically.

“I would have to look at them first. My work is a bit privileged and it will be difficult to talk about what you are saying over the phone,” he said yesterday evening.

According to the documents, the “war plan” is to be executed within 21 days starting from September 22, climaxing on October 1 when Mr Mutunga will call a full JSC meeting.

Dubbed the “Day of the Transformational Blood-Bath”, as point number 16 of the plot, the CJ will impress upon the JSC to have Mrs Shollei dismissed or suspended.

It states: “JSC to inform CRJ that her responses are expected by 5pm on September 31. Refuse the request for extension of time to respond to charges. CRJ’s responses to be hand-delivered to all commissioners before they go to bed on September 30.”

On September 10, the JSC gave Mrs Shollei 21 days to respond to various allegations that they had compiled.

On the “Day of the Transformational Blood-Bath”, others senior Judiciary staff are also to be targeted.

They include the director of finance and the director of ICT, who are to be interdicted, while the director of procurement and the director of human resource are to be given “notices to show cause.”

The document further states that all individuals who stood behind Mrs Shollei when the JSC delivered its decision to suspend her would also be targeted in the anticipated purge.

Officials specifically named in the document to be issues with notice to show cause include the Registrar of the Supreme Court Esther Nyaiyaki, the Assistant Registrar of the Supreme Court, Ann Asuga, the Chief Administrator Anne Nyokabi, the Director of Public Administration and Communication, Mr Naim Bilal and a legal counsel in Mrs Shollei’s office, Nick Okemwa.

morally bullY

Point 9 of the plan, scheduled to be executed today, aims to “intellectually terrify, morally bully and strategically distract” mid-level Judiciary officials and directors into supporting the effort to have Mrs Shollei kicked out of the Judiciary.

The revelation that the CJ has given his backing for the plot against Mrs Shollei will strike many as ironic, given the fact that he was perceived to be her greatest defender and supporter.

Chief Justice Mutunga was one of the four members of the Judicial Service Commission who voted against a motion to have her investigated on claims of impropriety.

In light of the new revelations, it remains a matter of conjecture whether or not the idea of instituting disciplinary proceedings against Mrs Shollei was Mr Mutunga’s in the first place.

Initially, Mrs Shollei went to court to block her suspension and accused Commissioners Ahmednassir Abdullahi, Mohammed Warsame and Mary Ominde of pursuing a personal vendetta and demanded their removal from the JSC.

However, the matter seemed to have been temporarily solved when the JSC and Mrs Shollei opted to settle the matter out of court.

However, the JSC continued its investigations against her.

the “patriots”

Prof Ngugi suggests in his e-mail that another, seemingly larger group, calling itself the “patriots”, had conceived the wider plan, way before the JSC sent Mrs Shollei on compulsory leave on August 19.
The goings-on seem to point to a wider scheme to have the Chief Justice reassert his authority over the Judiciary and appear to have little to do with impropriety of the Chief Registrar as alleged.

The decision by the JSC to level allegations against Mrs Shollei apparently appears to fit into a wider plan that points to a power struggle in the Judiciary.

So far, the 31-Point War Strategy seems to be rolling out as planned. Number 8 of the plan says that the Chief Justice would meet the Court of Appeal Judges on September 26. The Standard has established that this meeting took place yesterday as planned but we could not establish what was discussed.

In the meeting, according to the “War Council,” the CJ was to “acknowledge that there was a problem with the acquisition of Elgon Court for the Court of Appeal.”

The CJ was expected to “plead with judges to move to Elgon Court as a civic duty to mitigate financial wastage,” and “vindicate the judges’ concerns.”

A section of the Court of Appeal judges have refused to move to the new premises on the grounds that telecommunication masts situated near the building posed a radiation danger.

Some of the allegations from the JSC that Mrs Shollei is expected to respond to include the leasing of Elgon Place, Rahimtulla Plaza and Libra House. The rent for these buildings for a period of five years is estimated to be Sh1.2 billion.

The other charge is insubordination and alleged irregular hiring of staff. The insubordination charge is in relation to a letter she wrote to the CJ seeking clarification about who had the final authority on matters of finance at the Judiciary.

Apparently, the “War Council” interpreted the letter as a slight on the CJ and concluded that it amounted to insubordination. “Well, I never thought I was a Headless Head of Judiciary! This is some declaration of war,” reads the email sent by the CJ to the team.

What had been mere suggestions on how to contain the Chief Registrar was quickly concretised into a full “War Plan” meant to kick her out of the Judiciary within three weeks.

According to the strategy, Mrs Shollei was to be left out of yesterday’s meeting with the Court of Appeal judges. “Serem, Registrar of the Court of Appeal to be present: Aim is to announce that the tide is shifting.” it reads. The Standard was not able to establish if Mrs Shollei attended the meeting.

“bully and terrify”

Two high profile meetings are lined up for today. The CJ is scheduled to have individual meetings with directors and registrars ostensibly to “bully and terrify” them into abandoning their support for Mrs Shollei.

“Ultimately, by the end of Friday (today), the directors should be confused, terrified and ready to share information. More importantly, they should be thoroughly distracted from supporting DV,” reads Number 9 of the plan.

According to the documents, the CJ is scheduled to have dinner with the Speaker of the National Assembly Justin Muturi later in the evening today in an effort to have him “call off his dogs of war.”

The “dogs of war” in question are members of the Parliamentary Select Committee on Constitutional and Legal Affairs that has questioned the manner in which the JSC suspended Mrs Shollei.

According to Number 11 of the plan, the CJ is scheduled to have a meeting with all High Court judges tomorrow, Saturday, in which the CJ is supposed to “just listen actively…”

The objective of the meeting is to “reset the relationship with the judges” and “talk about the plight of the judges regarding review of salaries,” according to the document.

We have since learnt that Mr Okello has indeed called all the judges for the meeting tomorrow at 9am, whose agenda is “to discuss pertinent issues affecting the Judiciary in general and judges in particular.”

Later tomorrow evening, the “War Council” will meet to review their progress, the document says.

Part of the wider strategy against Mrs Shollei is to transfer some of the staff in her office who are perceived to be too close to her and might prove a stumbling block to the outlined strategy.

Targeted for transfers this week in Number 23 of the Plan are Linnet Mwangi, who is to be moved to Nyeri Court of Appeal; Bridgit Konya to Milimani and Anne Murigi to Kisumu courts.

The document further says that should a legal opinion be requested from Attorney General Githu Muigai on the relationship between the OCJ, OCRJ and the JSC, the drafters contend that they would prevail upon the AG not to offer one.

Another strategy is to affirm the commitment of the five JSC commissioners who voted to suspend Mrs Shollei and court the others who dissented.

However, for some reason, Supreme Court judge Smokin Wanjala is to be left out of the efforts to change the hearts and minds of the pro-Shollei JSC commissioners.

power games

In his advice, Mr Makokha suggests that the current crisis in the Judiciary has little to do with impropriety on Mrs Shollei’s part but is just part of power games in the Judiciary.

“Ask the CRJ to resign (it does not matter at this point who is right and who is wrong). I think her position has become untenable and you need to tell her as much. This request will be resisted but it must be made and implemented,” reads Makokha’s suggestion.

Prof Ngugi concurred: “It has been suggested to me by friends within the Judiciary that this war cannot be won with “governance and management logic” as we are pursuing, but by treating it as a war against a “(criminal) enterprise involving more than one person.”

These developments will no doubt cast a harsh spotlight on the Judiciary, which seems to be quickly losing credibility in the eyes of the public.

After years of interference and intrusion by the political class in its work, the Judiciary was thought to have turned a new leaf and set upon a path of renewal under the new constitution.

The new constitution granted the Judiciary substantive autonomy from Parliament and the Executive. It was even granted powers to draw up its own budget, thus freeing it from controls of Treasury.

lifestyle audit

Several opinion polls since the promulgation of the new constitution consistently ranked the Judiciary as the institution that was quickly embracing reforms envisaged in the new charter.

Although there seems to be no overt political hand to the current power struggle, it appears to have everything to do with efforts to wrest more power for the Chief Justice and away from the JSC and the Office of the Chief Registrar.

The “War Council” also plans to convince the CJ to forfeit his sitting allowances at the JSC as part of the public charm offensive to win back popular support after executing the plan to oust the officers.

Another aspect of this charm offensive under consideration is to submit the Judiciary to a lifestyle audit by the Ethics and Anti-Corruption Commission.

Furthermore the group also plans to institute a forensic audit of all finances of the Judiciary as well as auditing all travel abroad made by judicial officers in July, August and September this year.

Our efforts yesterday to get comments from Mr Mutunga, Prof Ngugi, Mr Kabaara and Mr Okello were unsuccessful by the time of going to press. The four did not pick calls we made to their mobile phones and did not respond to our text messages.

 
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Posted by on September 26, 2013 in Uncategorized

 

ICC Judgement Day Commeth

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In this week’s Star column ICC Judgement Day Cometh I conclude Kenyans, especially those who want either or both Uhuru and Ruto to be nailed at the ICC.

Except:

In the now more than 10 years the ICC has been in existence, there has only been one person who has been tried and convicted by the court, a former Congolese warlord Thomas Lubanga, who was found guilty of using child soldiers.

Altogether, of the 14 cases that have come before the ICC, five have lacked enough evidence to proceed to trial and of the two that have been completed thus far, one resulted in a conviction (the Lubanga case) but the other resulted in acquittal.

Given this record, Kenyans who hope and pray for the day either Uhuru or Ruto or both are nailed at the ICC may as well brace themselves for the real eventuality of both getting acquitted.

There are those saying Uhuruto are moving behind the scenes to have Kenya withdraw its ratification of the Rome Statute.

This is a politically dumb move. There is no reason for Uhuruto to seek Kenya’s withdrawal from the ICC because as noted above, the ICC has a dismal record of convicting those charged before it. There is really nothing to worry about there for Uhuruto as they will in all likelihood be acquitted.

We have already witnessed the telltale signs of the looming collapse of the cases against Uhuru and Ruto and that is the recanting or withdrawal of witnesses. Some other witnesses have passed on.

Meanwhile, even though it is not known who the remaining witnesses are, one can take it to the bank that their testimony will be ripped to pieces by Uhuruto’s legal team such that by the time it’s all said and done, we’ll have an outcome similar to one of the only two cases ICC has ever concluded that resulted in an acquittal.

That said, the trial itself could be very interesting purely from a legal stand-point because it’s inevitable that Uhuru’s defense may raise issues implicating Ruto and vice versa, unless for convenience, they both choose not to pursue the respective defenses making conviction more likely for either or both.

In the remote chance either or both Uhuru or Ruto are convicted, the only real consequence Kenyans could feel is a move to impeach either or both and that in itself would be something to behold, given the political climate in the country.

On the other hand, Uhuru and Ruto, if convicted, will in the eyes of the world be in the same status as currently because a conviction is not deemed final unless all appeals are exhausted and one can be sure whoever is convicted will appeal and that will take years to resolve.

By then Uhuruto would have completed their first term. If re-elected cleanly or with the aid of rigging, the Appeals Chamber will simply reverse their convictions convinced neither will ever step at the Hague to face charges should the conviction be upheld.

That’s our Kenya and only God knows when this “they’re finishing us” prophylactic tactic will ever cease to be.

In the now more than 10 years the ICC has been in existence, there has only been one person who has been tried and convicted by the court, a former Congolese warlord Thomas Lubanga, who was found guilty of using child soldiers.

Altogether, of the 14 cases that have come before the ICC, five have lacked enough evidence to proceed to trial and of the two that have been completed thus far, one resulted in a conviction (the Lubanga case) but the other resulted in acquittal.

Given this record, Kenyans who hope and pray for the day either Uhuru or Ruto or both are nailed at the ICC may as well brace themselves for the real eventuality of both getting acquitted.

There are those saying Uhuruto are moving behind the scenes to have Kenya withdraw its ratification of the Rome Statute.

This is a politically dumb move. There is no reason for Uhuruto to seek Kenya’s withdrawal from the ICC because as noted above, the ICC has a dismal record of convicting those charged before it. There is really nothing to worry about there for Uhuruto as they will in all likelihood be acquitted.

We have already witnessed the telltale signs of the looming collapse of the cases against Uhuru and Ruto and that is the recanting or withdrawal of witnesses. Some other witnesses have passed on.

Meanwhile, even though it is not known who the remaining witnesses are, one can take it to the bank that their testimony will be ripped to pieces by Uhuruto’s legal team such that by the time it’s all said and done, we’ll have an outcome similar to one of the only two cases ICC has ever concluded that resulted in an acquittal.

That said, the trial itself could be very interesting purely from a legal stand-point because it’s inevitable that Uhuru’s defense may raise issues implicating Ruto and vice versa, unless for convenience, they both choose not to pursue the respective defenses making conviction more likely for either or both.

In the remote chance either or both Uhuru or Ruto are convicted, the only real consequence Kenyans could feel is a move to impeach either or both and that in itself would be something to behold, given the political climate in the country.

On the other hand, Uhuru and Ruto, if convicted, will in the eyes of the world be in the same status as currently because a conviction is not deemed final unless all appeals are exhausted and one can be sure whoever is convicted will appeal and that will take years to resolve.

By then Uhuruto would have completed their first term. If re-elected cleanly or with the aid of rigging, the Appeals Chamber will simply reverse their convictions convinced neither will ever step at the Hague to face charges should the conviction be upheld.

That’s our Kenya and only God knows when this “they’re finishing us” prophylactic tactic will ever cease to be.

– See more at: http://www.the-star.co.ke/news/article-135092/icc-judgment-day-cometh#sthash.Fs0Gt3lj.dpuf

 
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Posted by on September 7, 2013 in Uncategorized

 

Raila’s Dilemma After March 4 Kenya Elections

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In this week’s Star column Raila’s Dilemma After March 4, I analyze the critical balancing act Raila must perform as he tries to remain statesman while doing what’s necessary to remain the political force he is especially given his popularity across the country.

Excepts:

In democratic societies where open and transparent elections are held, a candidate who loses usually concedes and often congratulates the winner promising to put the elections behind and work with the winner for the good of the country or constituency, as the case may be.

In reality, however, the losing candidate is immediately faced with a dilemma once the winner is declared and sworn, especially at the presidential level: Should he or she help the winning candidate to be successful upon assuming office or should he not.

If the winning candidate is successful upon being elected, then the losing candidate may as well forget about being ever elected again; at least in the following general election.

If the winning candidate is not successful in governing, then the losing candidate may or may not be the beneficiary in making the case he or she can do a better job and if the country is doing bad enough, this may be the case as voters are eager to vote out someone they believe has failed to deliver.

This, is however, not an automatic outcome.

Neither option is a good one so Raila must strike a genius act to accomplish both.

On the one hand, if Raila does nothing but sit on the sidelines while the Uhuruto presidential train barrels to an-as-yet to be known destination and hope it wrecks along the way, he may actually be forgotten because people in general and Kenyans in particular have short memory.

There is no better example of this than Raila himself, for who would have thought this man who sacrificed so much in fighting for the freedoms we enjoy now would so soon be a thing of the past hardly anyone wanted to recognise in this past elections?

Yet that’s precisely what a large portion of the Kenyan electorate did in electing a duo which actually opposed the very constitution they have now sworn to “uphold.”

Whether in fact, they’re serious or even willing to uphold the constitution especially as it relates to devolution is a different question altogether outside the scope of this article but the general consensus is, they’re unwilling to do so.

This actually opens a door for Raila to do something to strike the balance. He must chose between sitting on the sideline and being forgotten and doing something to make Uhuruto presidency sweat or tow his line for everyone’s benefit.

Raila has embarked on a campaign for a referendum to amend the constitution to force Uhuruto to fully implement the constitution’s letter of law and vision for devolution.

This push will give Raila the visibility necessary to remain in the public conscience as we count the years to the next general election. And if he succeeds in rallying the public for passage of the referendum, he can ride on that success to his third presidential victory.

In democratic societies where open and transparent elections are held, a candidate who loses usually concedes and often congratulates the winner promising to put the elections behind and work with the winner for the good of the country or constituency, as the case may be.

In reality, however, the losing candidate is immediately faced with a dilemma once the winner is declared and sworn, especially at the presidential level: Should he or she help the winning candidate to be successful upon assuming office or should he not.

If the winning candidate is successful upon being elected, then the losing candidate may as well forget about being ever elected again; at least in the following general election.

If the winning candidate is not successful in governing, then the losing candidate may or may not be the beneficiary in making the case he or she can do a better job and if the country is doing bad enough, this may be the case as voters are eager to vote out someone they believe has failed to deliver.

This, is however, not an automatic outcome.

– See more at: http://www.the-star.co.ke/news/article-134198/railas-dilemma-after-march-4#sthash.00gE0qa7.dpuf

 
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Posted by on September 3, 2013 in Politics

 

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