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Category Archives: Law

Exposing Lies By Right Wing Media About Hillary

HillaryComey

The right wing media, even some ignorant mainstream media reporters and talking heads continue to perpetuate this lie that FBI Director James Comey statement proves that Hillary has been lying about her use of a private server to conduct official business.

Fox is clearly lying and anyone who tell you the same thing is also either lying or is simply parroting the lie.

What’s amazing is I have seen even lawyers, including some you would think should know better peddling the same lies displaying their ignorance or willingness to peddle lies for the same of advancing their partisan views.

Fox News, for example, is currently running a video clip juxtaposition showing Hillary saying one thing and Comey saying something different on the same point therefore contributing to this false narrative that Hillary has been lying.

Fact is, Hillary has not lied and both what she says and what Comey said are consistent and do not contradict each other.

First, Hillary says nothing she received or sent was “MARKED” classified; Comey says “7 email chains” were classified at the time they were sent but he DID NOT SAY THEY WERE SO MARKED!

Second, Hillary said she thought she could have one devise for both her personal and official email; Comey says Hillary used “several different servers” and used “numerous, multiple devises” to access email in her personal server. The issue here is one of timing; Hillary is talking in this clip what she had in mind AT THE TIME SHE SET-UP the server, Comey is talking about the entirety of her 4-year tenure!

Third, Hillary said the system she used was set-up by her husband, former president Bill Clinton, it had numerous safeguards and there were no security breaches; Comey says actually agrees with her on there being no security breach (this part is omitted in the clip Fox is running) but goes on to say “it’s possible hostile actors gained access” to the private server. Comey here veered into an area he should not have.

Once Comey said there was no evidence of hacking, he should have stopped there instead of speculating on what was possible that’s not what we asked him to do so on that basis dismiss that assertion as uncalled for an unfair to Hillary by creating a negative inference she cannot disprove.

Fourth, Hillary has consistently said she deleted emails that she deemed personal; Comey confirms the same thing noting that these emails were deleted in such a way as to make it impossible to retrieve them. However, what’s not in the clip above is his also saying investigators could not find any wrong-doing in the deletion of the emails.

The level of ignorance in right wing media and quite frankly all media is sometimes astounding as in this case where clearly Hillary did not lie about what she has been saying regarding her use of a private server.

In fact, Comey reached the same conclusion in deciding not to recommend indictment because they found no evidence Hillary tried to hide anything and she was otherwise open and transparent about her use of the private server once this became an issue.

Yet, the right wing media led by Fox News is spending endless hours peddling the lie that Hillary lied about her use of emails and even more horrifying, the mainstream media which is supposed to be the purveyor of truth and honest reporting is equally joining in the dissemination of these lies albeit out of sheer laziness or simply taking pleasure in piling on Hillary for ratings.

Indeed, one can take apart the entire Comey statement to make the case excoriating as it were, what Comey said as actually not as bad as the entire media, left or right wing would want you to believe.

But that won’t be good for their ratings so let’s stay with the imaginary house on fire tales being told good thing is, like many bad stories from a campaign perspective, the Comey bombshell excoriating of Hillary will soon be forgotten by many but everyone will know he did not recommend indicting her and that’s all that matters in the end, especially given the clueless bigoted clown she’s running against

Now you know the truth.

 
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Posted by on July 6, 2016 in Law, Politics

 

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Joe Scarborough and Mika Brezezinski Are Morons

Joe and Mika

Joe Scarborough and his reported love interest Mika Brzeziski have proven their ignorance far too many times to enumerate but, when it comes to Hillary Clinton, it’s always a toss-up whether it’s ignorance we’re talking about or simply being blinded by their hatred of her and, in the case of Mika, indisputable hatred based on woman to woman jealousy.

Today is a good example where both are acting with righteous indignation over FBI Director Comey’s decision to not recommend indictment of Hillary or anyone at the conclusion of his review of her use of a private server to conduct official business.

What’s pathetic–and annoyingly so, is this Joe who’s a lawyer makes a compelling case that, yes, there are dumb lawyers or at least those totally incapable of comprehending basic legal principles.

Case in point, this Joe Scarborough was screaming at a guest demanding to know why Comey said he couldn’t find precedent to recommend indictment in the Hillary email review when in this moron’s view there’s a case involving a Navy reservist who was indicted under similar facts.

Without going into the weeds with this, let’s just say lawyers make a living distinguishing cases and that’s how most cases are won or lost.

The case this sometimes Trump sycophant cited in efforts to smear Comey as having ignored the case is distinguishable from Hillary’s situation in several ways not the least of which is, in the Navy reservist case, the defendant there admitted he knew he was removing classified material from a secure system to an insecure system.

In Hillary’s case, not only has she made no such admissions, she maintains to the contrary she did not knowingly transmit classified material through the private server.

It’s, of course, irrelevant that some of the material was deemed classified after the fact, namely, after the investigation began.

It’s also irrelevant that some of the emails have been found to have been marked classified at the time they were sent or received contrary to what Hillary has been saying that that was not the case for reasons I need not get into other than to say mistake is a defense in criminal law where mens rea is required as in this case.

Yet, despite all of this and more, Joe and his girlfriend Mika have been pontificating all morning in their show how Director Comey was wrong in not citing this obviously irrelevant case in reaching the conclusion he did, which most objective lawyers agree was the right decision.

These morons and others also cite other irrelevant cases that anyone who’s not even a lawyer can easily distinguish the differences between those and Hillary’s case.

No need to because, Director Comey, a former US Attorney himself, made those distinctions and reached the conclusion there’s no precedent here to recommend indicting Hillary and he added no prosecutor can reasonably seek an indictment under the facts of this Hillary situation.

I will take the word of this civil servant with an impeccable record of honor and integrity over any partisan hack or Trump sycophant–lawyer or otherwise and definitely over these two morons.

All that being said, my point is this Joe and Mika are an embarrassment to have as TV show hosts spreading their ignorance but we do have an option not to watch problem is there are those who uncritically watch and can easily be misled with the ignorance spread.

 

 
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Posted by on July 6, 2016 in Law, Politics

 

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Why Hillary Clinton Will Not Be Indicted

Hillary2

There’s no doubt the US presidential election of 2016 is thus far the most fascinating and equally baffling election anyone alive has seen, judging from what the dinosaurs in political punditry are saying certainly nothing those of us headed there have seen.

The hijacking of the Republican Party by a reality television star and sometimes successful real estate developer known as Donald Trump is in by itself the very definition of strange politics where nothing makes sense, especially when the clown seems to essentially defy the laws of gravity.

On the Democratic side, the strange phenomena is a Socialist Bernie Sanders giving Hillary Clinton a run for her money, at least in the only 3 states where his socialism finds home among Democrats who support him.

The odds on favorite to win the Democratic Party nomination, however, is still Hillary who is also likely to win come November against anyone who emerges as the wounded Republican nominee, especially if the wounded nominee is either Donald Trump or Ted Cruz neither of whom have a chance against Hillary unless Trump flips and gives the middle finger to those who nominated him and abandons all the crazy and impossible promises he has and continues to make thus far in which case he might avoid losing in a landslide and minimizes losses down the ticket when Hillary emerges as the victor.

But Republicans’ first major obstacle to regaining the White House is Hillary that’s why their strategy has been and continues to be finding a way of derailing or stopping her from being nominated because they know they just can’t stop her once she’s nominated.

The irony is, they must also find a way to stop either Trump or Ted Cruz to stand a chance of winning the presidency, let alone other offices down the line.

When 4 Americans were killed in Libya back in 2012 including the US Ambassador there and it later emerged that the Obama administration had mischaracterized the nature of the attack and in particular, who was behind it, Republican operatives got on their knees, put their hands together and looking to heaven thanked God for the tragedy.

This was an opportunity, in their view, to get rid of Hillary or at least damage her enough to derail her match to the White House as president.

This is because Hillary having been Secretary of State at the time the attacks occurred and having essentially been the architect of the US policy that led to the toppling of Libya’s leader Muamar Gaddafi which in turn led to creating the environment under which the attacks took place, Republicans were determined to wrap the failed policy around Hillary and use the four tragic deaths as the noose to strangle and kill her politically.

That strategy was in full throttle and making significant progress as Hillary’s honesty and trustworthy numbers steadily got worse until God smiled on her as Representative Kevin MacCarthy shocked everyone by publicly admitting what Democrats knew but could not prove and that’s, the Benghazi Committee—one of several Republicans had convened since the attack—was put together simply to hurt Hillary politically.

While this admission cost MaCarthy ascendancy to the Speakership and possibly earned him a spot in the annals of US history albeit for the wrong reasons, the admission uncurled the noose around Hillary’s neck breathing a new life to her political life from which she continues to benefit as she resumes her position as the presumptive nominee for Democrats and ultimately capturing the big trophy and that’s keys to the White House.

Hillary, however, is not in the clear as she must first get to the nomination and actually get nominated and every Republican and foe of hers who prays, prays and hopes that doesn’t happen which can only be the case if she’s indicted over the use of her private server to conduct official business when she was Secretary of State.

Those who have never prayed, are praying for the first time that she’s indicted but in the minds of her enemies, she’s already indicted, convicted and sent to jail even though none of that will happen in reality.

Most objective lawyers who have analyzed Hillary’s use of a private server, however, have come to the conclusion that Hillary cannot be indicted, based on what’s known about the facts and it’s unlikely any facts will emerge to change the outcome.

Providing a detailed analysis of the legal issues leading to this conclusion is beyond this article’s scope but if interested, No, Hillary Clinton Did Not Commit A Crime is a good analysis as to why.

Which brings me to this conclusion for reasons separate and apart from the analysis Dan Abrams provides in the article linked above that yours truly and most objective legal analysts agree with and that is, Hillary can also not be indicted for political reasons.

Let’s assume for the sake of argument that the FBI director recommends that Hillary should be indicted. Under US law, the Attorney General (AG) has the final say whether or not to bring charges of this kind against anyone.

On the other hand, even though technically under the AG, the FBI Director is an independent office so its director can conceivably make decisions that are antithetical to his boss (the AG) or even opposed by the President, who is their boss—and nothing will happen to him.

In short, the AG can’t be fired for simply taking some action that’s inconsistent with the president’s wishes or interests because the protection against arbitrary firing is in his appointment and confirmation his termination can only be for cause and recommending the prosecution of Hillary is not cause.

The question then becomes, what would happen were the FBI Director to recommend that Hillary be indicted?

There are three options: One, the AG shelves the recommendation where it collects dust for several months going into the first months of Hillary’s administration in which case what to do with it would be obvious (hint: nothing). Two, the AG can empanel a jury and have Hillary indicted. Three, she can receive the recommendation and declare to the world “after carefully reviewing the recommendation, I have concluded there’s no sufficient legal basis to seek an indictment.”

In the informed opinion of this writer, even though the first option is extremely attractive and less problematic for the AG or president for that matter, the third option would be the case even if there’s evidence gathered to indict a hapless and average Joe or Jane Doe.

This is because in American jurisprudence, one has traditionally been deemed to be innocent until proven guilty but this notion is increasingly being turned on its head to the point it’s now the case one is guilty until proven innocent, especially in politically charged cases.

Thus, in the event Hillary is indicted, that would be the equivalent of having her declared she’s guilty as charged long before even a trial takes place to put the government to task in proving the case beyond a reasonable doubt, which no one serious who knows anything about criminal law other than hapless partisans thinks they can.

Indicting Hillary will therefore be grossly unfair and irreparably so, especially given the fact as noted above, it’s more likely than not that she will ultimately be acquitted of all charges were she to be charged and therefore in hindsight be a victim of an overambitious prosecution that serves nobody any good other than those baying for her political blood and throwing the Democratic Party into a spin that could only be worse and fatalistic than the mess Republicans find themselves.

That’s a prospect no president would want for his or her party as a legacy and the AG knows that so she would do the right thing without the President even as suggesting that she does so and follow either of the two options above and certainly not having Hillary indicted.

It’s exactly what a Republican president would want done under identical circumstances.
In other words, it’s as old-fashioned politics as it can be that’s not to say it would be the case were the circumstances different, say, an open and shut case of criminal conduct.

That’s not the case here therefore expect Hillary to continue marching to White House this time and the next and first female person to hold that powerful office.

 
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Posted by on February 11, 2016 in Law, Politics

 

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Termination of ICC Case Against H.E. President Uhuru Kenyatta Good For Our Beloved Country

Uhuru_NPB

Termination of the ICC case against H.E. President Uhuru Kenyatta is good for the country for a number of reasons that I have previously articulated as documented below in a series of articles published by the Star.

Now that this chapter of our history is closed, we can focus on the next one and that’s all of us pulling together to make sure there’s continued peace and progress in the country.

I recall just the other day having a conversation on an EK flight from Dubai to Nairobi with someone I met in Business Class who happens to know me very well and I know of him very well even though we had not previously met in person.[An earlier version of this blog stated this happened on a KQ flight from Entebbe to Nairobi but that’s an entirely different conversation with someone else to be the subject of another blog for another day but I have corrected this one for historical accuracy].

What impressed me most is he and his friends who were traveling together and I had a very engaging conversation but none of us cared to know what our tribe or political affiliation was even though by our physical outlook you can eliminate one belonging to this or that tribe (read: not African but Kenyan) but it’s how the conversation occurred and the new friendship that matters.

This can be replicated regardless of tribe or ethnicity or circumstances for that matter and that’s what we all as Kenyans should strive for and that’s being open minded and willing to accept and engage those we don’t readily know for it may turn out it’s someone like this friend had we proceeded without engaging each other, we would never have known we were on the same flight and literally neighbors across the aisle.

Interestingly, this gentleman who I met on the Emirates flight knows very well and is known very well by one of my most vicious haters on these Internets (GW Bush word, not mine)–something we didn’t even waste a second to discuss because it’s not worth it as serious businessmen like this gentleman and adults for that matter know only morons and otherwise not fully mentally grown adults would engage in that kind of vile hatred and attacks of others for no reason–not even political motivation should ever have one stoop that low in expression of the level of vicious hatred and name calling yours truly has been subjected to but nonetheless forgives the tormentors.

Now, if only we can all forgive and move our country forward that would be the greatest gift we can give our beloved country for the benefit of one and all, including those who will be there after we’re all long gone.

And now, a reminder of the reasons why dropping of the ICC cases against our president is good for the country follow the links or if unable google same:

Bring ICC Cases Back Home

The Truth About ICC Cases

Why Uhuru Should Skip ICC Trials

Pursuing ICC Cases Is Counter-Productive

ICC Not Solution To Poll Violence

Raila and Cord Should Support ICC Deferral

Justice For Poll Violence Lies In Kenya

Options Beyond Denial of ICC Deferral

ICC Termination Not Impunity

Why Kenya Is Determined To Stop ICC Cases

President Uhuru Kenyatta’s Case ICC Trial Can Now Begin

Why President Uhuru Kenyatta’s Case Won’t Stand

Termination is not vindication of those of us who have been maintaining this position from the very beginning of this [fill the blank what suits you], it’s an affirmation sometimes the right thing is hidden from others until it’s very transparent and no longer opaque.

Peace, Unity and Truth

Omwenga

 
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Posted by on March 13, 2015 in Law, Politics

 

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Chief Justice Willy Mutunga Should Resign

Mutunga.Mess

In my column this weekend Chief Justice Mutunga Should Resign I start making the case why the CJ should resign or be replaced for the good of the judiciary and country.

Excerpts:

Many people must be scratching their heads wondering why on earth Chief Justice Willy Mutunga is in a hot seat especially with Jubilee barely a few months after he led the Supreme Court in making a decision in the ruling coalition’s favor.

Some of the woes Chief Justice Mutunga is facing existed even before he took over at the Supreme Court but many are largely his own making.

The irony of this is that CJ Mutunga was supposed to lead a new, reformed judiciary or at least one on the path to greater reform.

Those who pushed for his appointment as Chief Justice argued that as an outsider with a civil society background, Mutunga would bring a breath of fresh air, new ideas, resolve and no strings attached to the very rotten judiciary we had then.

Ask anyone of those who so believed what they think of the Chief Justice now. You are likely to be hit with unprintable epithets even before you finish asking the question.

To be sure, it’s not an exaggeration or in bad faith to say Chief Justice Mutunga has gravely and extremely disappointed Kenyans in the way he has handled himself as Chief Justice and President of the Supreme Court.

He has at a minimum squandered all the goodwill Kenyans accorded him to do the right thing in reforming the judiciary. Therefore, the right thing for him to do now is to simply resign and give the country an opportunity to jump start the reforms that were underway when he was appointed. The reforms appear to be stalling with the ongoing power struggles within and outside the judiciary.

Along with the Chief Justice resigning, the Judicial Service Commission should be disbanded and reconstituted or entirely scrapped.

 In fact, the latter should happen first, namely, the reconstitution or altogether the scrapping of the JSC. President Uhuru Kenyatta’s move to suspend the six commissioners was constitutional and and the court was wrong to overturn it.

 If the evidence is half as bad as it’s been reported, then all of these commissioners should be sacked and the management and staffing of the Judiciary be completely overhauled.

Meanwhile, if Chief Justice Mutunga does the right thing and resigns, Deputy Chief Justice Kalpana Rawal can temporarily take over his duties while the JSC is either reconstituted or scrapped. Its work can be delegated to the administration arm of the Judiciary or shared elsewhere, including the appropriate select committees of the Senate or Parliament as the case maybe.

That being said, it should be noted that significant reforms have taken place in the Judiciary despite the mess it’s in now with the ongoing power struggles.

A good testament of this is this very JSC mess whereby a judge has, in fact, issued an injunction preventing an order by President Uhuru Kenyatta from being given effect. Ask yourself, would this have been possible during the late President Jomo Kenyatta’s time or even during former President Daniel Arap Moi’s reign?

The point is, yes, we have made great progress to be where we are in terms of judicial and governance reforms but more must be done if we are to come close to fully enjoying the fruits of independence.

However, these reforms can only continue to advance with the right people in key positions. We have the wrong person heading the judiciary and it’s for this reason he should resign or be replaced.

 
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Posted by on December 7, 2013 in Law, 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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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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Justice for Poll Violence Lies In Kenya

uhuruto_airport

In my Star column this weekend Justice For Poll Violence Lies In Kenya, I continue to make the case why the ICC cases should be terminated and/or brought back home for a local solution

Excepts:

According to the most recently published statistics, at least 3,000 Kenyans die annually in road accidents. 1,300 Kenyans were killed on the roads in the first five months of this year.

On the other hand, not including statistics for this year, there have been more than 11,272 Kenyans murdered in the country since the 2007 post-election violence. The number of people killed in those horrible days was roughly the same as those killed in road accidents just the first five months of this year alone.

Had the government pursued and prosecuted those who committed the PEV crimes when they occurred upon completion of investigations, we would not have been talking about crimes against humanity but about ordinary crimes, including murder.

The PEV crimes became “crimes against humanity” only because the government was unable to set up a mechanism by which those responsible for commission of the crimes would have been tried and herein lies the problem with the ICC process.

To be sure, the crude manner and barbaric nature of how some of these crimes were committed deserve all the condemnation possible and those who committed them must surely be found and prosecuted. But at the same time, it’s important to step back and evaluate at what cost? It’s by now widely accepted among many legal analysts who have examined these ICC cases that it’s highly unlikely any of the Kenyan suspects will be convicted.

A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That’s because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial.

Those are not words of this writer but the words of world renowned American lawyer, jurist and prominent scholar Alan Dershowitz.

If neither Uhuru nor Ruto is going to be convicted in The Hague, it follows neither of them can be convicted anywhere else, including at home for crimes against humanity, which exist and can only be tried at the ICC.

It’s a classic catch-22 situation. But instead of remaining frozen where we are, where absolutely nothing is happening in the country but ICC talk and fixation, we ought to free ourselves by reaching a consensus. There’s no further need for the ICC. We should have these cases terminated and find a solution at home that comports with doling out of fair justice and bringing about closure for the victims.

At the minimum, a local solution can be fashioned to create a tribunal to try hundreds of other cases the government says it has tons of evidence the ICC prosecutor never bothered to look at. This would include, ostensibly, those of the actual killers and others who perpetuated these PEV crimes.

Separately, we can have a truth and justice tribunal similar to the post-apartheid Truth, Justice and Reconciliation Commission of South Africa, which can assess and award fair compensation for the victims and their families while creating an environment for Kenyans to put this tragic and dark days of our history behind and move on.

According to the most recently published statistics, at least 3,000 Kenyans die annually in road accidents. 1,300 Kenyans were killed on the roads in the first five months of this year.

On the other hand, not including statistics for this year, there have been more than 11,272 Kenyans murdered in the country since the 2007 post-election violence. The number of people killed in those horrible days was roughly the same as those killed in road accidents just the first five months of this year alone.

Had the government pursued and prosecuted those who committed the PEV crimes when they occurred upon completion of investigations, we would not have been talking about crimes against humanity but about ordinary crimes, including murder.

The PEV crimes became “crimes against humanity” only because the government was unable to set up a mechanism by which those responsible for commission of the crimes would have been tried and herein lies the problem with the ICC process.

– See more at: http://www.the-star.co.ke/news/article-142017/justice-poll-violence-lies-kenya#sthash.IOFAlIpb.dpuf

According to the most recently published statistics, at least 3,000 Kenyans die annually in road accidents. 1,300 Kenyans were killed on the roads in the first five months of this year.

On the other hand, not including statistics for this year, there have been more than 11,272 Kenyans murdered in the country since the 2007 post-election violence. The number of people killed in those horrible days was roughly the same as those killed in road accidents just the first five months of this year alone.

Had the government pursued and prosecuted those who committed the PEV crimes when they occurred upon completion of investigations, we would not have been talking about crimes against humanity but about ordinary crimes, including murder.

The PEV crimes became “crimes against humanity” only because the government was unable to set up a mechanism by which those responsible for commission of the crimes would have been tried and herein lies the problem with the ICC process.

– See more at: http://www.the-star.co.ke/news/article-142017/justice-poll-violence-lies-kenya#sthash.IOFAlIpb.dpu

 
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Posted by on November 2, 2013 in Law, Politics

 

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ICC Has Postpned Uhuru’s Trial; What Next?

ICC-Hague

Uhuru Case Deferred To February 2014

Today’s decision by the International Criminal Court (ICC) to postpone President Uhuru Kenyatta’s trial to February 2014 in response to his application is good news for him but bad news for his deputy William Ruto.

Good news for Uhuru because it gives him more time to work on getting a deferral from the UN but bad news for Ruto because he could be nailed by then, even though I doubt he would be as I have always maintained.

One can never be absolutely be absolutely certain of the outcome a trial until it’s over, however.

There are many cases where there’s even unanimity among the experts that someone walks free following a trial but is nailed instead and vice versa.

As for Uhuru, this is all good news and let me posit here for the first time something that I think could happen and that’s the UN Security Council–or at least the more influential members of it on this (read the US) can use Uhuru’s application pending with the court and the basis for this postponement as a vehicle to get out of the difficult position it finds itself between going against the wishes of the entire AU or granting a deferral which could also be problematic as it would set a precedent Al Bashir could also exploit–a no-no even among those members who are sympathetic to Uhuru’s case for a deferral.

Under this scenario, the influential member could have the ICC basically directed to grant Uhuru’s application and have the case against him dismissed on that basis.

This will give Uhuru and AU what they want without opening a door for Al Bashir to get the same relief while ensuring continuing viability of the ICC, which is what the UN wants.

You can see that would leave Ruto hanging in the air–no pun intended.

Interesting days lie ahead, indeed.

 
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Posted by on October 31, 2013 in Law, Politics

 

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