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Kenya Courts Must Curb Abuse of Freedom of Speech On Internet and Everywhere

When Safina leader Paul Muite and others announced about a week or so ago that they may be suing PNU activist and spokesman Moses Kuria over defamatory statements they allege Moses made on his Facebook, I said the following:

In the first case to test the boundaries of freedom of speech in these fora, Safina leader Paul Muite and several others are reported to be off to the courts to pounce on PNU spokesman Moses Kuria over something he posted on Facebook Muite and others consider defamatory.

According to the story, the offending post Kuria is alleged to have posted, says, “I have said Ocampo has no case. All he has are fake witnesses coached by Hassan Omar, Wambugu Ngunjiri, Paul Muite, Ndung’u Wainaina, Njonjo Mue and Maina Kiai.”

Muite and his co-complainants apparently asked Kuria to withdraw the statement but he has refused and dared them to take him to court.

I then said, here is my take on this:

First, unless Kuria has evidence to back-up his claims that (1) there are fake witnesses (2) Ocampo is relying on (3) to make his case (4) that have been coached (5) Muite and his co-plaintiffs, then it would be wise he withdraws or modifies his statement.

Second, even if Kuria has some evidence or reason to believe the foregoing, it’ll still be wise to withdraw or modify this assertion for several obvious reasons, not the least is, a case against PNU running parallel with the Ocampo Six can only help solidify the image of PNU or whatever is left of it as the party of impunity and status quo.

Third, strictly as an ODM supporter, I would urge Kuria to remain defiant and defend the threatened suit, if he believes he has the evidence to back-up his claim.

Fourth, as Kenyan, I am for Kuria to withdraw or modify his assertion for I don’t see any good that would come out of taking a case like this to court but see all the bad the would, such as a rekindling of existing wounds and flaring up of animosity.

Fifth, regardless of what comes of this incident, let all netters and bloggers know that they must be cognizant the fact that freedom of speech does not carte blance to write and say anything and whatever one wishes. In time, and that time is coming sooner than later, there will be good cases to establish this fact, and that is, we must have clear demarcations of what is or is not actionable akin to the time, place and manner restrictions that have held freedom of speech in check here in the US, while allowing for the widest possible expression of speech unlike anywhere in the world.

The case has now been filed according to the news story that has just been posted on the Daily Nation Online.

I restate what I said in my earlier blog above and am working on a blog, or an amicus curiae brief to be filed in the matter in which I’ll make the case I have been making all along about freedom of speech and that is, freedom of speech cannot and should not be abused in these fora or anywhere and that the courts must provide clear guidelines as to what is or is not within acceptable limits of free speech in the context of our newly reaffirmed rights under the new Constitution.

Those of us who have lived in countries such as the US with maximum and enviable protections of free speech and press know fully well this is not a standard suitable for a young democracy such as Kenya therefore a somewhat more stricter scheme of rules must be adapted and applied in Kenya, especially with respect to our leaders at the top.

This is critical in nourishing both these freedoms as well as maintaining the integrity and respect of our institutions whose leaders must be accorded the same respect and dignity.

I’ll expound on this in my blog and/or brief.

Peace, Love and Unity

Omwenga

And now the Daily Nation Online  story:

Safina Party leader Paul Muite and four others have sued a Party of National Unity (PNU) official over comments on the social networking site Facebook Friday.

Mr Muite, Kenya National Human Rights official Hassan Omar, Maina Kiai, Ndungu Wainaina, and Wambugu Ngunjiri have sued PNU activist Moses Kuria for defaming them in a comment he posted on Facebook.

In what could be a precedent-making case in Kenya, the five complainants say that Mr Kuria defamed them by posting on his Facebook wall on or about September 29 a comment which read: “I have said Ocampo has no case. All he has are fake witnesses coached by Hassan Omar, Wambugu Ngunjiri, Paul Muite, Ndungu Wainaina, Njonjo Mue and Maina Kiai.”

They are seeking a permanent court injunction restraining Mr Kuria, whether by himself, or his agents from further publishing, or causing to be published the said words or any words defamatory of the plaintiffs.

The five also want to be paid general and aggravated damages as a result of the defamatory statementsand that Mr Kuria be ordered to pay the costs of the suit together with all interests accrued.

In their petition, the five say that the words complained of were understood to mean that they interfered with due administration of justice by manufacturing and coaching false witnesses.

“It also implied that we interfered with due administration of justice by coaching false witnesses in respect of the most heinous crimes under International Law, that is, crimes against humanity,” reads the petition.

It further claims that the words meant they have indulged and participated in the perversion of justice, procured false witnesses to mislead the International Criminal Court (ICC) and falsely implicates fellow citizens and that they are corrupt persons and are guilty of being dishonest.

The complainants stated that the words were calculated to disparage them in their respective professions and standings as politicians, human rights activists and respectable members of society.

“By reason of the publication of the said words the complainants have been severely injured in their credit, character and reputation, and have all been brought into public scandal, odium and contempt,” reads the petition.

They submitted that even after receiving a letter demanding that he apologise and withdraw the comments within 7 days, Mr Kuria refused and instead went ahead to issue another defamatory “press release” on his Facebook page.

They submitted that Mr Kuria reiterated that he would not offer any apology or retract the statements, arguing that it was inconceivable for one to try to curtail the freedom of expression in the social media.

Mr Kuria said in his post that he has significant information on the activities and role the five have been undertaking regarding the ICC cases and that their hands have been caught right inside the sugar jar.

They submitted that Mr Kuria’s reply implied that they have conspired with other unnamed third parties to pervert the cause of justice and interfere with due administration of law.

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Posted by on October 21, 2011 in Law, Politics

 

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Who Is Martha Karua Part II

Honorable Martha Karua (HMK) is a Member of Parliament for Gichugu Constituency, an electoral in constituency in Kenya. Gichugu is one of four constituencies in Kirinyaga District, Central Province. The constituency was established in 1963 and was recently renamed as Kirinyaga East Constituency. For purposes of this series, I’ll refer to the constituency in its old name.

Gichugu constituency has over 80,000 registered voters and 58 Polling stations. Gichugu is a rich agricultural area with tea and coffee as the main cash crops and horticulture farming.  The constituency has been represented by Ms Martha Karua for the last 15 years since the introduction of multiparty democracy in 1992.

According to the most recent CCDF Report Card found at http://www.nta.or.ke/reports/crc/Nyeri/Gichugu_January_2011.pdf and information furnished by the Constituency Development Fund (CDF), the Gichugu area has seen a number of  development projects through CDF ranging from health, water and education.

Since the introduction of CDF in 2003, there are over 130 complete and ongoing projects in the constituency. There are 3 complete health centers in Riakithiga, Gaciongo and Joshua Mbai; four complete water projects in Kianyaga, Nyaru, Mukia and Ngumara; and seven bridges in Kathata, Konyu, Muratiri, Kanjangiri, Njambo, Gatuki and Karoki.

There has also been ongoing construction of Day secondary schools in the constituency with 10 schools complete thus far under a new policy where the government is encouraging construction of secondary schools in unutilized land owned by primary schools.

The complete secondary schools under this arrangement include Rukenya, Gatunguru, Kianguenyi, Kiandai, Gacatha, Kiaumbui, Kathunguri, Karumandi, Kavote and Thumaita. HMK has also assisted several primary schools in electrification and building of new classes for example at Kiathi, Rwambiti, Gikumbo and Kathunguri. Under her patronage, CDF has also aided in the construction of a laboratory at Ngiriambu primary and a youth polytechnic at Kianyaga.

Ms Martha Karua has also funded planting of trees in all sub locations in the constituency at a total cost of Ksh 400,000. She has also set aside Ksh 2.2 million from CDF to assist poor former students to obtain their secondary school certificates.

Other major CDF projects are revival of the old Kutus Market at a cost of over Ksh 2 million, funding of Gichugu Horticulture exporters association at a cost of Ksh 3 million and funding of Gichugu diary at a cost of Ksh 1 million. She is also responsible for the construction of Kianyaga sub district hospital through the African Development Bank and the tarmarcking of the Rukenya-Kimunye road.

As a member of parliament, HMK therefore appears to be delivering for her constituency and this may in part explain why she has been re-elected successfully since first vying for the seat. I say in part because sometimes a member’s election or re-election to parliament has nothing to do with what that particular member has done on not done for the constituency. Having nothing to go by to the contrary, I’ll give HMK the benefit of doubt that she has and continues to deliver for her constituency.

Were HMK content on being a Gichugu MP and occasionally a minister as she has been, then one could say the Gichugu seat is for her to keep as long as she wishes, given this record. HMK has, however, declared her intention to run for president, which means she will give up the seat at least during this election circle.

The question I am sure she has asked herself and answered is, does she have what it takes to be elected president? I am equally sure she has answered this question in the affirmative otherwise she would not so declare, unless she is simply trying the waters but when push comes to shove, she does not throw her hat in the ring, opting to stay put as Gichugu MP until perhaps another time.

Either way, I think this is an interesting question to ask and answer, namely, does HMK have what it takes to be elected president? Because HMK is a woman and an outspoken and feisty woman for that matter, a lazy answer may just be no, not in a male dominated culture such as ours. However, my hunch is this may be too simplistic and thus my intention to provide an objective and complete analysis to answer the question in this series.

Before answering this question, however, it’s important to first analyze what it would take to launch and conclude a successful presidential run in Kenya, and what it takes to be elected as president in Kenya, which are two different issues, especially in light of our new Constitution. I will then use that analysis as a benchmark against which to measure each candidate starting with HMK.

In Who Is Martha Karua Part III, I will continue to analyze HMK’s quest for the presidency in Kenya.  

 
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Posted by on April 19, 2011 in Siasa

 

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Who Is William Ruto? Part I

Who Is William Ruto?

Part I

Ruto appeared in the national political scene as Organising Secretary and later Treasurer of Youth for Kanu ’92 (YK92), a group that was specifically formed to drum up support for then President Daniel arap Moi in the 1992 election. From essentially an unemployed and penniless UON graduate who was at times allegedly seen loitering near the Hilton with other unemployed youth, Ruto made it big financially and quick simply by his close association with Moi. Ruto’s rapid accumulation of wealth at a relatively young age is attributed by many to graft and he has only passively denied this.

The attribution of Ruto’s wealth to graft is supported by a number of reasons. For example, in 2006, Ruto was charged with defrauding the Kenya Pipeline Company of huge amounts of money through dubious land deals and not surprisingly, that case still remains pending.  Ruto, however, goes about his business and political affairs as if the case does not exist and not even his court appearance betrays any sense of concern he might have about this case which could land him in jail.

That the Constitutional Court ruled in late 2010 that Ruto should face the charges, which cleared the way for the case to finally go forward and having Ruto suspended as Minister of Agriculture is more so the reason he should be concerned but clearly he is not.

Ruto has been implicated in other scandals as well, including the Maize Scandal. In early 2009 following a parliamentary inquiry, Ruto was accused by the Public Accounts Committee of Kenya’s Parliament of illegally selling maize from the Kenya National Cereals and Produce Board over which he had ministerial and administrative control. Mr Ruto on his part attributed the maize scandal allegations and claims of his involvement in corruption to the work of his “political enemies,” which was about the only thing he could say, given there were official documents linking him to the scandal.

When Ruto has not been busy amassing questionable wealth, he has been a seasoned political schemer. He opposed the constitutional reform all Kenyans were clamoring for during Moi’s term as president simply because he though this will interfere with Moi rule for “100 years” that ostensibly would assure him and others similarly situated of a lifetime of access to power and other things. Ruto also opposed a “yes” vote on the the referendum on Kenya’s new Constitution, which overwhelmingly passed and giving birth to the much longed for new law of the land.

During the waning years of the Moi presidency, Ruto displayed an unmatchable height of close-mindedness and obtuseness as he defended Moi and his pet project otherwise known as the Uhuru Project, which was Moi’s poorly conceived and executed plan to succeed him—unless he knew something nobody else knew. Be as it were, the public breathed a sigh of relief when Moi and his project were resoundingly defeated in 2002 with Kibaki sailing into State House courtesy of Raila with his “Kibaki tosha” declaration which essentially put the last nail in the Uhuru Project coffin and ensured Kibaki victory at the polls.

The good opportunist and schemer he is, Ruto beat this mindless Moi follower path until early 2006 when he abandoned Moi and declared his intention to run for president in 2007 on the KANU ticket notwithstanding the great odds stacked against him to getting nominated, let alone winning the presidency.  Having no chance of getting nominated by KANU, Ruto sought the nomination of the Orange Democratic Movement (ODM) as its presidential candidate, but in the party’s vote on September 1, 2007, Ruto placed a distant third with 368 votes, behind the winner, Raila Odinga (with 2,656 votes) and Musalia Mudavadi (with 391).

Following this trouncing at the hands of Raila for the ODM nomination, Ruto quickly recalculated, resigned from his post as KANU Secretary and declared his support for Raila on his quest for the presidency. Although Ruto enthusiastically joined ODM and was strategically made one of the five “Pentagon” members, many including this writer believed Ruto had one foot in the ODM bandwagon and the other outside ready to jump the moment he noticed the wagon was not heading where he needed to be. This was true even though it was at the time fully expected by all that ODM will sweep the country with Raila emerging at the top, which he did but never saw the inside of State House as President for reasons well known.

For anyone who is not aware, the sum of it is, the presidential election of December 2007 in Kenya ended in the electoral commission declaring Kibaki the winner while exit polls had clearly placed Raila Odinga ahead by far. Despite this corrupted declaration of Kibaki as the winner, Raila and ODM claimed victory but their declaration was in vein as Mwai Kibaki was hurriedly sworn in as president, an act which caused mayhem and bloodbath that no one could have predicted or foresaw coming other than perhaps the accused planners of the violence.

The post-election violence of 2007 abated only after Kibaki and Raila entered into serious negotiations and ultimately agreed to form a coalition government in February 2008. In the grand coalition Cabinet named on April 13, 2008 and sworn on April 17 2008, Ruto was appointed as Minister for Agriculture. Almost from the day he was appointed, Ruto started complaining against Raila for, among other things, not getting a “fair” share of ministerial appointments for Ruto’s tribesmen from Rift Valley when Raila had in fact done just that, given his half of the cake he had, so to speak.  If it is true as Ruto later told the Wako Commission that the Kalenjins voted en mass against Kibaki for oppressing them more than because they liked Raila, why was Ruto then demanding that the Kalenjins get more seats in the cabinet ostensibly as payback for his “delivering” them to Raila? The answer is Ruto is just a good opportunistic schemer: he will say or do anything to meet the political needs of the moment and deal with the consequences later if there is a conflict, often with some level of success.

From this point on, the relationship between Raila and Ruto deteriorated to the point Ruto was openly defying Raila and opposing him and the party at every turn on anything and everything, including major issues such as the Mau forest debate, passage of a new Constitution and more recently nomination of constitutional office holders. Ruto has, however, thus far not been successful in any of his battles with Raila on these major issues but many believe as mismatched the two are man to man, the bigger battle lies ahead in next presidential elections to succeed Kibaki in which all indications are Raila will be on one side and Ruto the other albeit the former as presidential candidate and the latter as Vice-Presidential candidate. The winner in that battle will have the last laugh. The loser will surely come to know the true meaning of that word

Before the big battles ahead on the  Kibaki succession, however, Ruto has a major battle to contend with and that is, his being named one of the ICC suspects for his role in the post-election violence of 2007.

(Part Two Will Examine the ICC Case Against Ruto)

 
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Posted by on March 17, 2011 in Siasa

 

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My comments and analysis of recent news and headline stories from Kenya

My comments and analysis of news and headline stories as from Kenya as published in the source for the news and stories:

February 16, 2011
Headline: Kibaki, Muthaura, security chiefs meet envoys over ICC deferral bidAny one of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC prosecution of the named suspects. Two of the members, US and UK, have stated they will oppose therefore defeat the efforts to defer. What then is Kibaki dispatching Kenya’s envoys to do? Clearly it must be something apparent only to him and his team but whatever that is, it cannot be good.

February 17, 2011
Headline: [Speaker Marende’s] Ruling stuns PNU but excites ODM

Speaker Marende’s ruling today on the constitutionality of the list of nominees sent to parliament by Kibaki is the correct and right one as a matter of law and no one can disagree if they were serious. The ruling is not only the correct and right one, it is historic and a testament of a country’s conciousness as to the meaning of our new Constitution. Speaker Marende must be praised and prayed for in his stewardship of Parliament and its role in the new Kenya.

February 18, 2011
Headline: Uhuru dares PM to popularity contest [in Parliament]

The function of parliament is to pass laws after reasonable debate by presumably reasonable and well thought out representatives, even though sometimes both remain wanting. It is certainly not a place for popularity contest for the sake of popularity contest as Uhuru seems to believe. Relegating parliament to that level demeans it and one would hope we have matured as a country beyond such antics.

February 18, 2011
Headline: Kibaki fights back

If history teaches us anything, it is how many times we fail to learn from it. Kibaki takes note of his contribution in the promulgation of the new Constitution yet he is acting as if it doesn’t exist, preferring to do things the old fashioned way: let’s have Gicheru and his other buddies in the judiciary swing this thing his way. The problem is, Gicheru is already on the record saying the nomination in unconstitutional; so has the AG, the Constitutional Court in its preliminary ruling, the Speaker, and all lawyers who have spoken on this, including those not on ODM camp; did the geniuses advising Kibaki not tell him this?

February 18, 2011
Nominations Impasse: let reason prevail [commentary]

One hopes every politician in Kenya, especially those hellbent on pursuing short-sited, selfish and ill-advised objectives with no regard for the public interest get to read and re-read this solemn commentary; the case for common sense, reason and nationalism made in the commentary could not be stated any better.

February 21, 2011
Headline: Wako faults Kibaki nominations

It is said even a dead clock is right once a day; well, Mr. Wako is right on his position re Kibaki’s nominees. It is quite telling that Kibaki ignored his counsel and instead hopped on a train that’s about to derail and cause havoc, if its momentum is not halted by the only trio that can do so and that is the 3 judge panel. We are all holding our collective breaths and praying for them. Amen.

February 21, 2011
Why Kibaki withdrew list of nominees

Here is how I believe the history books will record this saga: In waging war against the nation, the field generals Uhuru, Muthaura and Ruto ill-advised their Commander In Chief, leading to major defeat of the Commander and his generals who surrendered and sought forgiveness from the nation. A peace loving nation obliged. Now, let’s hope a lesson is learned and never again go down this road; this is a new Kenya indeed.

February 27, 2011
Headline: Kenya’s Grand Coalition enters its last lap

It is indeed the final lap of a 3000m 2-man steeplechase race with man eating creatures in the deep ends of the water jumps lurking for a political kill for either of them who falls in it. Never mind Kibaki had an advantage from the start, having falsely started without being disqualified; Raila has done a good job in catching up with him and if they both hang on and cross the finish line, only the man eating creatures will be disappointed.

There is of course the question what happens when the race is over. One would hope Kibaki goes into retirement with some pride of accomplishment everything considered while Raila basks in the glory of victory having finished first in this grueling race.

February 27, 2011
Headline: Uhuru: Raila name soiled with chaos

Uhuru is not a credible presidential candidate for 2012 because (1) he lost miserably in 2002 largely because he was propped up there by Moi and had nothing else (2) he has since failed to show any reason he should not be rejected again (3) his recent table-banging and uncontrolled outburst only go to confirm this. If I were Uhuru I would try to work with Raila as opposed to Ruto and company.

March 2, 2011
Headline: Kosgey trial starts with state calling 22 witnesses

Given the time he has been at the till, Kosgey gets an A for not having a collection of corruption charges but even with these few, he was not charged or otherwise made to pay. The irony of it all is the government will never prove this one case they have brought against him. The case won’t even feature in his life story but abandoning Raila for tribal reasons will and that is unfortunate indeed.

March 5, 2011
Headline: Uhuru, Ruto, Raila wars take a new twist.

ODM should expel every single one of these rebel MPs and recruit progress minded candidates to campaign against them. ODM supporters in the diaspora will certainly mobilize and offer support to defeat these renegades. This need not be the case, however; these MPs should come down from their high horses and join their party leader in working to move the country forward.

March 6, 2011
Headline:Kibaki under pressure to drop ODM advisors

Kiunjuri says Ruto’s allying himself with PNU has rejuvenated the party. If Ruto’s dogged attacks on Raila based on lies, distortions and innuendo is rejuvenating PNU, then the party is in worse shambles than I thought and this confirms that it has no agenda to move the country forward. Plotting to prevent Raila from being reelected president without more is obviously not helpful in that regard.

Kibaki and his futile efforts to defer ICC prosecution of Ruto & Company

March 4, 2011
Headline: Kibaki unleashes five ministers to lobby for deferral of Kenya ICC casesAny of the five permanent members of the UN Security Council can defeat Kibaki’s effort to defer ICC’s prosecution of Ruto and his co-defendants. Two of the permanent members, US and UK, have categorically stated they will oppose therefore defeat any efforts to defer the prosecution. What then is Kibaki and his cadre’s objective for this so called lobbying? There cannot be any good reason for these efforts as far as the country is concerned.

As one who from the very beginning never believed anyone other than those who in fact committed criminal offenses should be prosecuted for events that occurred post-election, including Ruto, I find these efforts to lobby the UN against these odds totally mindless.

The sensible approach to address post-election violence has to be faithfulness to, or at least the absence of efforts to frustrate implementation of the new constitution and when that is done or at least when there is an appearance it is being done, then ICC can be persuaded to allow the establishment of a local tribunal to try these suspects who should be acquitted either at the Hague or in Kenya unless they in fact committed criminal offenses.

The irony is only Raila can save this bunch from going to the Hague by joining Kibaki in the quest for deferral and having a local tribunal set up to look into this but I don’t believe he could do so unless he is satisfied the culprits are not engaged in efforts to prevent or frustrate implementation of the new constitution and that there is actual judicial reform unstoppably taking place.

Kibaki’s recent about-face from torpedoing the constitution and imposing cronies in high office is a good first step going in this direction.

Murugi and like-minded politicians in Kenya are a perennial nightmare for the country; they are ever so consumed with plotting and scheming against Raila nothing else seems to matter in their lives. However, Murugi is outdoing herself in tr…ying to sully the First Lady Ida Odinga’s name. Yes, I say First Lady and that is no disrespect for the other First Lady, Lucy Kibaki. Let me explain myself: had the elections of 07 been conducted in conformity with the law, to put it mildly, all of these would be non-issues.The elections were not conducted in conformity with law and thus the creation of the coalition government structure we have of having a president and a co-equal prime minister. Given the constitution recognizes that the two leaders are co-equal under the law, then it follows that their respective wives share equally in their state roles which are nowhere defined in the constitution. Traditionally, however, the wife of the leader of a country, is the First Lady. However, where as in this case, you have two equal leaders of the country under the law, then it follows their wives are respectively First Ladies; in other words, we have twin First Ladies.

This being the case, it follows therefore that both Shaban and Murugi come second to First Lady Ida and First Lady Lucy in all matters protocol and everything else of public interest or concern.

As to the MPs accusing the PM for “misusing” public resources to have First Lady Ida Odinga in the Kenya delegation, all one needs to know to see the hypocrisy and motivation of this bunch is that none of them would have raised the same accusation against the president had it been First Lady Lucy Kibaki who was in the delegation.

 
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Posted by on March 16, 2011 in Siasa

 

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An Open Letter To H.E. Emilio Mwai Kibaki, President of the Republic of Kenya

AN Open Letter to H.E. Emilio Mwai Kibaki, President of the Republic of Kenya

Dear President Kibaki:

Many including this writer did not believe you could have personally conjured or approved a number of things that happened prior to, and immediately following the elections of December 27, 2007 that can be said to be hardline and contrary to your sworn oath of office. This is because your laid-back style of management coupled with your history and background just does not reveal or paint the picture of that kind of hardline, take-no-hostages, shrewd even reckless politician. It simply does not and the writer has this in mind as he writes to you.

Today, the International Criminal Court (ICC), summoned the six Kenyans named as suspects in the post-election violence that brought our country to the brink of a civil war in 2007. These six are commonly referred to as the Ocampo Six because of their number and the name of the ICC prosecutor prosecuting their cases, Jose Luis Moreno Ocampo.

Two of these suspects, your excellency, Uhuru Kenyatta and Francis Muthaura, serve in your administration as your Deputy-Prime Minister and Minister for Finance and Head of Civil Service and Secretary to the Cabinet, respectfully. A third, William Ruto, is now closely allied to you and may as well be one of your closest advisers if not a special feature in your own plan for your successor. The other three have no known close association with you currently but one of them, Hussain Ali, was your Police Commissioner during the 07 elections.

Prior to the ICC issuing summons for the Ocampo Six, you stepped up efforts to lobby the UN Security Council in hopes of having prosecution of the Ocampo Six deferred, contrary to the wishes of a majority of Kenyans and your own previously agreed to commitment to cooperate with the ICC in prosecuting these cases.

A majority of Kenyans are of the view, however, that your stepping up efforts to defer the prosecutions was unnecessary and an exercise in futility, especially given the position taken by the United States and the United Kingdom, namely, that they will veto any resolution granting such deferment. Now that the ICC has issued summonses for the Ocampo Six, therefore rendering moot your efforts to defer, you will agree the taxpayers’ money spent on these efforts was a waste.

That being said, the question now is, what next? What are you going to do, given the ICC has issued these summonses? Are you going to cooperate with the ICC or not? The wise thing to do in the view of this writer and most Kenyans is you need to cooperate with the ICC, otherwise our country which is barely trying to recover from the woes of 2007 will once again plunge into chaos and turmoil or at best emerge as a pariah nation with concomitant undesirable consequences.

It is not difficult, however, to see why making a decision to cooperate is a difficult one; after all, the accused, especially UMR (Uhuru, Muthaura, Ruto) are close to you personally and politically and three of them Muthaura, Ali and Uhuru (MAU) are accused of acting to advance your political interests but oddly Kosgey, Sang and Ruto (KSR) are the odd ones out in this context, given they are accused of acting not in your interest as they were indeed in the opposition at all relevant times.

Complicating this scenario for you, is the fact that the country is gearing-up for the next election circle when your successor is to be elected. The Constitution provides that those elections be held in December 2012 so for purposes of this letter the writer assumes that to be the date the elections will be held. Given all of this, it would appear on the surface that you are indeed in a conundrum but it need not be.

Your excellency, let this writer recommend a course of action that he believes you can undertake consistent with your obligation cooperate with the ICC and to also meet your political objectives without undermining your role as the president of our nation in light of the foregoing facts and that is, bring your partner Hon. Raila in this mix.

You attempted to seek deferment of the ICC prosecution on grounds that were flimsy at best and that’s why the United States and Britain declared your request dead on arrival. There is, however, an opportunity to successfully secure a deferral from the UN.  Article 16 of the Rome Statute under which the ICC operates provides as follows “No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.”

The primary reason why the US and UK did not agree with you on the deferral and promised a veto is because they did not believe the reasons given for the request were genuine to warrant a deferral under the ICC rules. That Raila did not join you in the request further sealed this fate much to the chagrin of his opponents.

As you recall, and this is the basis of this recommendation, both you and Raila attempted to have a law passed to set-up a local tribunal to try perpetrators of post-election violence locally but a majority in parliament opposed the move all the way resulting in ICC taking up the cases as a matter of last resort.

Your excellency, as you also know, the reason we are in this ICC quagmire now is because the forces of impunity and the absence of a judicial system to try the post-election violence cases locally absent substantial judicial reform combined to force the ICC upon us.

Now that we have since then passed a new Constitution and most recently demonstrated a parting with the old ways and a reaffirmation of our commitment to implement it, it is plausible you and Raila can now come before the UN Security Council and plead the case for deferral on grounds the necessary reforms are underway and that the issue of post-election violence will finally be addressed locally under a new judicial system immune to executive intervention or influence.

If this were to happen, the writer believes the US and Britain will lift their block and allow passage of a resolution granting the deferment under Article 16 of the Rome Statue. This outcome is desirable because it will accomplish 3 things: First, it will unify the country again; at least for now akin to the temporary truces we have seen in the coalition over time albeit this time will be far more significant in what it would avoid.

Second, it will remove Kenya from the international scene and allow us to wallow in the customary local dirty politics in a climate where temperatures are law as opposed to where are now and seem to be heading absent a decisive action by you that takes care of the interests of our nation first such as the one suggested by the writer.

Third, and most importantly, it will remove the ethnic factor in the equation. As stated above, your excellency, the writer does not and neither do most Kenyans believe you are inclined to take a hardline position regardless of what jeopardy it creates for our country.

More specifically, it is not the view of this writer and many others that you will put our country in a position of reverse, after this much we have gone through merely to protect a handful of your pals or your political objectives for that matter; there are certain things greater than an individual or pride and top among them if not the only one in this context is the dignity and respect of a nation.

Finally, your excellency, it goes without saying that thousands of lives were lost, properties destroyed and innocent Kenyans lost their homes and are in camps even to this date. Establishing a mechanism to bring closure to this tragic stain in our history as soon as possible ought to be everyone’s objective but acting in any way that does not take us back there or worse, ought to be paramount in your mind as you decide what to do next.

We obviously hope and pray that your decision will be the right one for the right reasons in the national interest.

Sincerely,

/s

Samuel N. Omwenga, Esq.

 
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Posted by on March 16, 2011 in Siasa

 

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Hello

Welcome to my blog. I hope you find it interesting and either way I encourage you to leave a comment. Please note my views are not necessarily your views but yours are definitely not mine because I don’t know what they are unless you tell me in which case I disagree with myself that your views are not necessarily mine unless, of course, you disagree which means we think alike.

 
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Posted by on March 16, 2011 in Uncategorized

 

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