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Monthly Archives: November 2013

President Uhuru Kenyatta’s Trial Can Now Go On

ICC-Hague2

In my column this weekend President Uhuru Kenyatta’s Trial Can Now Begin I note how despite having not achieved what the President wanted, namely, deferring, altogether terminating the cases or referring them back home for a local solution, the outcome reached at the conclusion of these efforts have made it possible for the president to avail himself for trial as this can now be done via video conference as opposed to having him hauled to the Hague and be physically present for the trial, which doesn’t sit well with many, including this writer, given presidents are not ordinarily hauled to courts and we certainly don’t want ours to be the first one.

Excerpts:

After mounting a spirited campaign to defer the ICC cases for the second time that did not yield the outcome sought, it now appears President Uhuru Kenyatta would have to settle for being tried via video link, if the ICC so approves as it should and likely will, instead of him being physically present at trial in The Hague.

This is welcome relief for all sides mainly because it allows the trial to take place without subjecting the president to the humiliation and awkwardness of being the first sitting president to be physically hauled into an ICC courtroom to face criminal charges that many believe don’t belong there to begin with.

Uhuru would have no doubt peferred that the cases be deferred or terminated altogether but, everything considered, going forward with a trial under these terms is desirable for several other reasons.

There are those who are saying that Uhuru should nonetheless reject this compromise but that will be a huge mistake because in both local and international politics, overplaying one’s hand is always politically costly with a dear price to pay.

The compromise is good and for this, all the efforts in the second round of deferral diplomacy have, in the end, yielded not exactly the outcome the president wanted, but one everyone, including himself can live and work with knowing in all cases where give and take is necessary, nobody gets everything they want.

Most importantly, we have likely avoided a bullet headed our direction had the president not been accommodated as now has so let’s hope the trials now quietly conclude and we close this dark chapter of our history even as we open a new one full of promise, peace and prosperity.

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Posted by on November 30, 2013 in Politics

 

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President Jacob Zuma of SA Has No Shame

zuma-house-main

South Africa President Jacob Zuma, not unlike other pathetic examples of African leaders, is spending nearly Ksh 1.8 billion (more than USD20 million) of tax payer money to renovate his private residence and if this was not sin enough, the president through his cabinet ordered the media not to publish a photo of this home or do so at the risk of going to jail. 

To their credit, and they really must be commended for this, the Standard reports that the media defied the order and published the on their front pages pictures of Zuma’s lavishly-refurbished home which comes with a swimming pool, helipad, tuckshop and even a football pitch.

Can you imagine what USD 20 million can do for the lives of millions of South Africans living in abject poverty? Or in making education available or affordable for the millions of kids in South Africa who have no education because they can’t afford or are learning in poorly funded institutions where they’re really not learning at all or to their potential?

How inept and gluttonous can these so-called leaders be?

One hopes the ailing greater leader of the country Nelson Mandela does not become aware of this pathetic and shameless exploitation and looting of the country’s till by Zuma, which goes against everything Mandela stood for and paid so dear a price in so doing only to have this Zuma act as if that meant nothing.

But even as Zuma must be condemned for these shameless act, it must not be forgotten that Zuma is president of South Africa thanks to the see no evil, hear no evil of the vast majority of his Africa National Congress, which propelled him to power, even as he  faced significant legal challenges.

He was charged with rape in 2005, but was acquitted under circumstances which were predictable, namely, trashing the victim as a loose whore who deserved it or could otherwise not be “raped” within the meaning of the law.

With tens of thousands of angry ANC youth baying for the victim’s blood—and violence were Zuma to be convicted, it was no surprise that he was acquitted.

In addition to the rape charge, Zuma faced a long legal battle over allegations of racketeering and corruption resulting from his financial advisor’s conviction for corruption and fraud but used his own version of tyranny of numbers to oust Mbeki from the presidency and occupied the office himself promptly having all charges against him dropped, the prosecutor oddly citing political interference.

As if the corruption before assuming office as president wasn’t enough—the man is alleged to have raked in hundreds of millions of dollars in lucrative deals involving military procurement alone, he’s now having tax payers pay for the extravagant renovation of his private residence—this after another of his private residence was equally renovated as a kickback for one of the alleged corrupt contract deals.

Again, the question is, have these people no shame?

What is it going to take to reign them in?

It obviously can’t be the ballot because they have a sycophantic and fanatic following who couldn’t care less about their exploits and corruption for reasons that simply defy logic.

Not now anyway but a concerted effort must be undertaken by the Civil Society to educate and enlighten these masses out of their ignorance and stupidity that’s causing them more harm than good.

 
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Posted by on November 24, 2013 in Politics

 

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Why Kenya Is Determined To Stop ICC Cases

Uhuru-Amina1

In my column this week Why Kenya Is Determined To Stop ICC Cases, I offer my theory as to why the president and his team wants the case against him deferred, referred or altogether terminated.

Excerpt:

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post-election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation.

Meanwhile, the UK is pushing for a compromise to have the ICC amend its rules and make it possible for the President to appear via video. While allowing this is a win for the President, it may not be enough.

Put another way, even though this will be good for the President, it will not array the President’s concerns that appear to be at the core of this dogged determination to terminate or refer the cases back home for a local solution, and that’s a penchant for some to have the President nailed at the ICC simply for being Uhuru Kenyatta and for no other reason.

This is not an unfounded fear or concern for the former OTP himself, Luis Moreno Ocampo is on record as having said he wanted these Kenyan cases to be an example of how the ICC can bite, having failed to do so in the last 10 years of existence save for one or two major cases.

No one would want to be a guinea pig for a prosecutor bent on inflicting pain simply as an example for others. One can therefore understand why the President would go to all lengths to make sure that doesn’t happen.

In other words, ICC is no longer about finding justice for the victims as many wrongly assume and believe; rather the process is now about whether an ICC faced with prosecuting cases that don’t belong there to begin with can do so and render a verdict that can be deemed all around fair and just, everything considered.

It cannot and thus the reason it’s preferable to terminate or refer the cases back home for a local solution where at least some justice can be achieved for the victims as opposed to none at all at the ICC.

By abstaining, the US and other seven members of the Security Council who are also signatories of the Rome Statute, sent a clear message: We hear you Kenya; we sympathize with you but in balancing the needs of the post election violence victims, we have to see you doing more before we can throw our weight behind your request, not necessarily for a deferral, but other ways to bring these cases to an end to everyone’s satisfaction in the name of national peace and reconciliation. – See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

– See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

Former President Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred. These efforts were led by former Vice-President Kalonzo Musyoka, who failed to deliver as tasked.

Round two got underway a few months ago, this time flagged off by President Uhuru Kenyatta and headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat.

With her background, and in particular having worked at the UN Security Council as legal advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately – or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have failed albeit on a very interesting UNSC vote: seven members voted in the affirmative, while eight, including the US, abstained.

– See more at: http://www.the-star.co.ke/news/article-144763/why-kenya-determined-stop-icc-cases#sthash.XX9j8FHf.dpuf

 
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Posted by on November 23, 2013 in Law, Politics

 

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Hunting Should Be Banned In Africa

pathetic_woman

I was infuriated reading a news story in the Standard about how TV presenter Melissa Bachman raised ire when she posted on Twitter and Facebook, a photo of her and a mature male lion she allegedly shot and killed.

What would make a sane person get up in the morning even without taking a shower or bath or brushing their teeth as some of these types often appear, and tell themselves, “today, I am going to kill me some animal” and they set out and do just that?

I can understand men as most are instinctively inclined to violence, but a woman?

I don’t get that at all!

What this particular woman, who doesn’t look as unkempt as some of the animal killers you see in the US, for example, is nonetheless despicable.

An equally disgusted wildlife supporter put it best in a post in this animal killer’s Facebook: ‘You didn’t kill a lion, you stood behind a machine and pulled a little trigger, you pathetic, sad excuse of a human.’

I couldn’t agree more or put it any better.

I know I have heard some argument from these animal killers that killing animals is necessary for their preservation but we know as the Standard properly reports that the African lion is considered a vulnerable species as their numbers are rapidly declining due to loss of habitat and conflict with humans.

How, then, can this animal killer be allowed to kill a lion with impunity like this?

Is lion killing legal in South Africa where this occurred and if so, why?

If it were up-to me, I would ban all animal killing in Africa.

And if killing of some of them is necessary as some argue for their preservation, which I doubt as God the maker us all including the animals has a better conservation plan, then let this be done in a controlled manner by special animal police away from the camera and let these animal killers be recruited to be such special police.

The carcases should be orderly disposed and those fit for human consumption should be processed and distributed to the hungry.

 
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Posted by on November 17, 2013 in Uncategorized

 

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Termination or Deferral of ICC Cases Is Not Impunity

ICC-Hague

In my Star column this week ICC Termination Is Not Impunity, I make the case why this is so.

Excerpts:

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Impunity is generally defined as an exemption from punishment or freedom from the injurious consequences of an action. Very few Kenyans knew or had heard about this word prior to the passage and promulgation of our new constitution.

Since promulgation, however, the word has become a household word and a weapon of choice for progressives. One’s position as to any issue and whether it’s accepted as progressive enough is couched in terms of whether in so doing one supports impunity or is against it.

That’s all well and good but as in many cases in life, it’s not always the case that the choice as to whether one’s position is for or against impunity cannot be that stark or clear.

Accordingly, it’s a big deal to have a president of any country hauled before the ICC other than in circumstances where a majority of the world would see it as justified.

There’s no justification for hauling Uhuru Kenyatta, a sitting president to stand trial for charges he is likely not to be convicted on. And even if he were, every indication is such a conviction could not survive an appeal therefore rendering the whole process a waste of time while at the same time belittling our sovereignty.

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

– See more at: http://www.the-star.co.ke/news/article-143872/icc-termination-not-impunity#sthash.Cw3TOOkJ.dpuf

Put another way, had the situation been, hypothetically speaking, that Bensouda was handed an envelope containing Uhuru and Ruto’s names as suspects for having committed crimes against humanity after they were sworn in office, a prosecutor balancing the need to seek justice for the victims and the desire not to make things worse would have politely declined to prosecute the cases.

This is precisely what one can rightly assume would have happened had former president Mwai Kibaki’s name been in the envelope handed to Kofi Annan.

This balancing takes place all the time in countries that observe and respect the rule of law. But one can’t call it impunity because it’s a practice actually sanctioned under the law therefore it can’t be impunity.

On the other hand, a prosecutor doing the same balancing but merely wishes to make one an example as the OTP declared in this case would have proceeded to prosecute and try the cases knowing fully well there won’t be any convictions but plenty of an appearance of having fought a good fight for justice.

 The latter happened and we can say the OTP can be given an “A” for effort but it’s now not worth risking plunging the country into further uncertainty and even turmoil to make a point that has already been made.

 We can now take care of our own from here knowing the rest of the world is watching unlike before PEV.

 
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Posted by on November 16, 2013 in Law, Politics

 

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Why Is Kenya Doggedly Pursuing ICC Deferral?

Uhuru-Amina1

Former president Mwai Kibaki flagged off the first shuttle diplomacy in early 2011 intended to have the Kenyan ICC cases deferred.

These efforts were led by now former vice president Kalonzo Musyoka and as we know, the efforts failed.

That was Round I.

Round II got underway a few months ago this time flagged off by President Uhuru Kenyatta but headed by Cabinet Secretary for Foreign Affairs Amina Mohamed, an accomplished career diplomat before assuming the portfolio unlike Kalonzo who mostly learned the intricacies of the trade on the job as minister for foreign affairs, save for a stint as a participant in the Sudan peace process.

With her background, and in particular Amina having worked at the UN Security Council as Legal Advisor, it was expected that a different outcome would yield to this second effort to obtain a deferral.

Unfortunately–or fortunately, depending on who’s talking, Amina’s efforts to secure a deferral, too, have not been successful on a very interesting UNSC vote: 7 members voted in the affirmative, 8, including the US, abstained.

I mention the US by name because if Kenya or any country seeking a deferral were to succeed, they must have the US on their side.

France and Britain will always follow the US lead and vote accordingly; Russia and China, the other two permanent members of the council with veto power will usually go along unless it’s something that directly or indirectly threatens their strategic and business interests.

The rest of the 15 member states of the UNSC will usually follow whichever country they have closer strategic ties with among the permanent members.

One needs the support of 9 members of the 15 UNSC members to have a resolution passed but only if no member with veto power votes no.

With the US having always taken a very hostile stance against anything favoring the Ocampo Six and and now Bensouda 3, it was inevitable even our fine and accomplished Amina could not pull this one to the win column but the potential was and still remains there; well some aspect of it as I noted in my Star column this week.

Why then, even against these odds, does Kenya continue to pursue the deferral and/or termination of these cases?

I have my theories and think I know to near certainty but let me keep those to myself for now as I hear what others have to say.

I will say by way of hinting it can’t be for naught neither is it an exercise in futility nor one being naively pursued.

In my column this weekend, I’ll address part of this question and provide a complete analysis in a future column.

 
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Posted by on November 15, 2013 in Law, Politics

 

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Options Beyond Denial of ICC Deferral

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In my Star column this weekend Options Beyond Denial of ICC Deferral, I postulate on what other options Kenya has if she were to spare having her president paraded and tried at the Hague and becoming the first ever sitting president and likely the last ever tried for charges it’s clear they’ll never be convicted.

 
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Posted by on November 9, 2013 in Politics

 

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