Leta Siasa

Kenya Youth Movement: Who We Are

2005-10-26T18:10:00.000-04:00

KENYA YOUTH MOVEMENT PROFILE

Background Information

(Profile provided to the Kenyan Democracy Project by Mwania Walter, Secretary General of the Kenya Youth Movement.)

The Kenya Youth Movement is a national initiative seeking to unite together all the Kenyan youth under one umbrella body for the sake of their political, economic and social prosperity. The youth constitute a large percentage of our population and over 60% of Kenya’s workforce. But even as such; they have been pushed to the periphery when it comes to matters of political and social, economic decision making. The movement has been in operation since 2003.

Rationale of a youth movement

The ideals behind the Kenya Youth Movement are build on the basis of equity of people in their pursuance of social basic needs and livelihoods, the necessary concern for the other. The youth lack any substantial representation in all social-economic and political spheres in Kenya and as such their interests have been disregarded for quite a long time. Decisions have been made from the local to the national levels which have grave impacts on the youth livelihoods. Besides, there is poor checks and balances on the functioning of the Members of Parliament. The Movement thus seeks to have civic, parliamentary district, regional and national representatives checking the utilization of every tax payers penny, influencing and formulating policy reforms that take into consideration their interests and those of the nation. The CDF, LATF, Bursary funds, Roads funds, HIV/AIDS funds are among the public resources where the Movement shall ensure that they are used for the benefit of the people.

Besides checking the functioning and operations of policy makers, the Movement strongly feels that to have a meaningful change in Kenya, there is a need for a generational change in the Kenyan leadership. This change must be ideologically driven and sphere headed by focused and visionary young leaders. In this regard, we seek to mainstream the young men and women of Kenya into active socio-economic and leadership affairs of this country. This shall be realized through building the capacity of the youth to stand for elective posts in the civic, parliamentary and presidential elections. Other sectors like the sports and Kenya Football Federation, The sugar boards, the City Councils, the councils, and all sectors touching directly on the livelihood of the youth then have to be governed and led by the youth for they suffer most when these sectors are performing below par. The youth are leaders for now and never the future for the future never comes since leaders never want let go power.

Moreover, the youth shall be involved in active processes of transforming the societies from participating in environmental conservation and protection, agricultural production, sports and talents development to mention a few.

Youth problems we seek to address

The movement seeks to address diverse problems affecting the youth including: -

Unfocused, and lack of visionary leadership
Political Oblivion
Unemployment
Poor sports management
No/minimal efforts to develop Sports and Talents
Exploitation by the employers
Drug – Abuse and HIV/AIDS prevalence
Lack of start up capital and or securities to begin businesses
Police harassment
Ignorance and illiteracy
Tribalism
Electoral Malpractices
Insecurity
Hunger
Teenage pregnancies
Environmental degradation
Corruption in the public service among others

Vision Statement

To provide a nationalistic and visionary alternative leadership.

Mission statement

To champion the process of general change in Kenyan Leadership and foster youth prosperity by uniting them nationally and promoting their participation in sustainable development through capacity building in social, economic and political affairs.

Goal

To give Kenya and Africa as a whole, an alternative approach to Social, Economic and Political development and independence by integrating the citizenry in the national development process.

Objectives

The Kenya Youth Movement aims to:

1. Be the central body to provide a framework on how to address youth issues and co-ordinate youth programs throughout the country.

2. Give the youth a chance to elect their national leaders who best represent their interests.

3. Provide a national forum for the deliberations of youth affairs.

4. Integrate and promote youth participation in national development process.

5. Participate in national environmental conservations by mobilizing members to plant trees and participate in community clean up exercises.

6. Initiate comprehensive Civic Education enabling people shape public policy and advocate for national policy reform in all sectors at all levels.

7. Enhance agricultural development in efforts to empower people economically, eradicate national food insecurity and hence alleviate poverty.

8. Intensify the war on HIV/AIDS, Drug Abuse, Child Abuse and promoting both the rights of the girl and boy child.

9. Initiate Economic Empowerment ventures for the Youth and establish information Resource Centers.

Programs

· Governance and Leadership

Kenya Youth Movement seeks to promote the ideals of good governance among the youth and enhance their leadership capacities. This shall enable the youth to have the capacity to make informed decisions while electing their leaders as well as presenting themselves for elective posts in civic, parliamentary and presidential positions come general elections. Workshops and consultative forums across the country shall be organized to this effect.

· Youth Economic Empowerment

Lack of financial support for youth projects is a big deterrent in their quest for their economic prosperity. Banks are not easily accessible for loans to boost micro-financial ventures. Most of the youth are unemployed and prospecting entrepreneurs have no access to start up capital.

The KYM seeks to empower the youth economically by providing them with information on available and possible means and sources of funds to support their projects. The movement will also initiate self-employment projects for youth across the country.

· Sports & Talent Development

Sports are an aspect of life which affects the youth’s livelihoods and is currently a major means of employment. Poor sports management in the country is a cause for concern. Local young artistes in the music industry have worked extremely hard to improve the industry, and which has now turned to be one of the major employers in the country. We seek to push for policy reforms in all sporting activities in Kenya to suit the interests of the youth and enable them excel. We shall also seek to have youth managing sports in Kenya and especially in the KFF.

The movement shall undertake sporting activities across the country to identify talents nurture and develop them. The movement shall link talented youth to clubs both locally and internationally in line with promoting their social and economic well being.

· Community Development & Environmental Conservation

This program seeks to preserve and conserve the environment such that it may be able to support massive agricultural production to arrest the problems of food insecurity, hunger and poverty. The utilization of hybrid seeds and modern methods of farming shall be enhanced. This’ a multi sector programme addressing food insecurity, water and sanitary problems, community security problems, and environmental challenges. Workshops and practical lessons shall be undertaken.

· Health, HIV/AIDS & Drug abuse

HIV-Aids has been declared a global disaster and a threat to humanity. Much effort has been put in the fight against this scourge, but not without some shortcomings. Drug addiction and alcohol consumption among the youth are on the rise hence the high rate of crime and school dropouts. We seek to advocate for policy reforms on health sector to address youth reproductive issues and take the fight against HIV/AIDS and Drug Abuse to the rural areas with an active participation of the youth.

· Human Rights Agenda

Though the current and previous Kenyan governments pledged to hold the rule of law and justice, the country’s human rights record is still questionable. Cases of police brutality, cold blood murder of crime suspects, delayed court cases, disruption of opposition political rallies, detention and torture of terrorism suspects, assault on journalist among others, are still rampant in Kenya. Human rights violations are in most cases meted out on the youth who are directly or indirectly linked to crimes.

Achievements

KYM held a consultative forum at the Coast in September 2004 from the 23^rd to the 25^th at the Mombasa Polytechnic. The forum drew participants from Mombasa, Malindi, kilifi, Kwale and Taita Taveta districts and was attended by among other guests the Provincial Director of Social Services, coast.
We also have held consultative forums in Kenyan colleges and in the slums and the response if overwhelming.

Current Activities

· The Kenya Youth Movement is organizing numerous activities countrywide including the 27 & 28 th October 2005 on the proposed constitution and its impact and implications on the livelihoods of the youth.

Organizational Structure:

	Composition
Board of Trustees	Three elder members of the society The chairman The Secretary General The treasurer
National Secretariat	Chairman Secretary General Treasurer Organizing Secretary Director of elections And Their deputies
National Executive Committee	The national secretariat The regional coordinators
National Delegates Council	The national secretariat The regional coordinators The constituency coordinators
District Councils	The constituency coordinators
Constituency Councils	The constituency coordinators The ward coordinators
Ward councils	The ward coordinators

Membership

The Movement draws members from the youth and elder members of the society who subscribe to her ideals. We currently have a membership of 200 youth drawn from across the country.

Appeal for support

The movement seeks to address issues affecting the nation and the youth with quite a different approach. We haven’t yet reached a level of self-sustainability since we haven’t yet recruited members across the country who shall be paying fees to the movement. Before recruiting many more youth, we seek to enhance the capacity of the secretariat to coordinate participation of the members in various activities across Kenya.

The movement needs both structural and financial support. Your support will go a long way towards helping us set up an efficient secretariat and realizing our objectives. We believe change must emanate from focused and visionary leaders who are bringing paradigm shift in addressing the society’s problems and challenges.

Contacts

THE KENYA YOUTH MOVEMENT

“MUUNGANO WA KITAIFA WA VIJANA”

Afya Centre, Mezzanine Floor 1,

Tel: 020-310245; Fax 020247842

Cell: 0723 514596; 0721 720841

E-mail: vijanakenya@yahoo.com

Miguna Demands Justice for Dr.Odhiambo Mbai

2005-10-26T17:54:00.000-04:00

DEMANDING JUSTICE FOR DR. CRISPIN ODHIAMBO MBAI
(OR AN ODE FOR A BEAUTIFUL FRIEND)
By MIGUNA MIGUNA* - 25 October 2005

With a brilliant smile that permanently exposed bright cotton white teeth between dimpled cheeks, Dr. Crispin Odhiambo Mbai was a beautiful man, with an exceptionally sharp mind and a tender heart.

I am using the word beauty in all its colourful connotations. But even this does not really capture the full nature and essence of this wonderful man whose life was cut short by an assassin’s bullets.

Dr. Mbai was more than a beautiful man, husband and father. The kind of beauty Odhiambo wuod Mbai possessed, and that I would like to write about today was more profound than the physical one; it was intellectual, spiritual and humane.

Odhiambo Mbai was what I have come to term as a full and complete human being – gingerly crafted by God, with an agile mind, a sense of fairness, originality, objectivity and vivacious commitment of purpose, especially on important matters affecting his fellow human beings. Why would anybody have wanted to kill such a person?

Someone senselessly killed Odhiambo Mbai that bright Sunday September morning. A fellow Kenya brutalized his body and thought that by so doing, Dr. Mbai’s intellectual contributions to humanity would be permanently undermined. The killers attempted to destroy his legacy and the fruits of his labour.

Sadly, those who killed Odhiambo Mbai

are still free, roaming our streets, cities and villages.

Those people may have killed other innocent Kenyans before and after that fateful Sunday, September 14th, 2003. Those cold-blooded murderers may be planning, if not already executing, another cowardly assassination. Why hasn’t the Kenyan government apprehended the perpetrators of this cowardly and grisly crime?

Dr. Crispin Odhiambo Mbai was a friend of mine. We met more than fifteen years ago at the University of Toronto. He was completing his PhD in Political Science, while I was completing my BA in Political Science, a degree program that I had started but had not finished because some busy bodies at Nyayo House had other ideas about me. He gave me hope and inspiration when nearly everyone was resigning to the ravages of dictatorship and the madness of the Big Man syndrome in Kenya. Why did they rob us of Dr. Odhiambo Mbai?

I have written and spoken with all kinds of people, including serving Cabinet Ministers in this Kibaki Government – asking, beseeching and coaxing them to assist us unravel what has now turned into a mystery murder case. First, I was reassured by a prominent Cabinet Minister that the Kibaki Government was diligently working on all the leads and that sooner or later the culprits would be brought to book. That has not happened.

On other occasions, my pestering emails and promptings have been met by either dead silence or blank but otherwise sympathetic empty expressions. Why has it taken this long to bring the murderers to book?

There was a time when a Cabinet Minister in this Kibaki Government said to me, nonchalantly, that “maybe we should hire you to handle this case.” At first, I thought the man was simply expressing exasperation at my unrelenting quiet campaign to see every available stone turned in order to resolve this case. Then it suddenly dawned on me that perhaps the minister saw me as naïve and wanted to sound sarcastic; demonstrating how ignorant I might have been about the weighty matters of state secrets that he must have been dealing with. I was, of course, never hired to pursue Dr. Mbai’s killers.

Since Dr. Mbai’s murder, my mind has never resigned. It has kept asking: why has this government that came to power on our collective backs, promising justice for the wrongs of the past, been lukewarm on pursuing the trails of the suspected murderers, some of whom were cited in Tanzania by a diligent investigative journalist from the East African Standard newspaper?

Dr. Crispin Odhiambo Mbai was the architect of devolution. He made the most significant single contribution in explaining this concept to politicians, intellectuals and ordinary citizens alike. His success in having devolution entrenched in the Bomas Draft lay in his soft spoken ability to cajole and explain fundamental concepts without sounding arrogant. With his dimpled smiles and warm voice, Odhiambo Mbai was capable, almost single-handedly, in ensuring that the overwhelming majority of Bomas delegates fully understood and appreciated how significant devolution would be for their future collective success and development as a united people. Who felt threatened by Dr. Mbai’s contributions?

In the Short Version of The Report of the Constitution of Kenya Review Commission released on Wednesday the 18th day of September 2002, by the Constitution of Kenya Review Commission (CKRC) in Mombasa, the Commission explained the process that Dr. Mbai was murdered defending as follows:

We have always considered that the review is more than merely agreeing on the terms of the new constitution. It is about self-discovery and identity. It is to give voice to the people and to affirm their sovereignty. It is to give them an opportunity for reflection on our national and constitutional history. It is also an audit on our state and government, the first truly popular assessment of the record of present and past administrations. It is a process to discover how the ordinary person defines what is to be Kenyan, and to articulate their singular and multiple identities. It is to reaffirm our commitment to a united Kenya and to resolve to find a framework for the co-existence of communities. It is to agree on, and strengthen, national values and goals. It is to find, together, the devices to realize our collective vision of caring, humane and just society…The function of constitution is not merely to provide a framework for society but to bring into being or consolidate society itself...

The foregoing were the ideals, aspirations and dreams for which Odhiambo Mbai dedicated his life and that he eventually died for. Odhiambo Mbai believed that Kenyans deserve the space, peace and environment within which they can collectively work to rediscovery their true identities and national goals as a united and indivisible people.

If we cherish the ideals for which Dr. Mbai paid the ultimate price, then we, as patriotic Kenyans, must conduct the ongoing referendum campaign in a tolerant, understanding and peaceful manner. Our collective attention should be directed at expressing our sovereignty as a people while at the same time auditing the government’s record since taking power, particularly its role in advancing or sabotaging our dreams of bringing into life our collective vision of a caring, humane and just society. If our audit determines that either the referendum process or the Wako Draft fails to fulfill these dreams, then, we, as conscious people, must hold this government to account by voting NO on November 21st.

Dr. Mbai believed in true and fundamental devolution of government; not chimeras. In all his contributions at Bomas, he asserted the need for Kenyans to determine how much they were taxed, how their taxes were utilized and where. In essence, Dr. Mbai stood and died for the empowerment of all Kenyans, irrespective of their differences. Could this have been the real threat he posed?

As our politicians criss-cross our beautiful country looking for votes, oranges and bananas, Dr. Mbai would have demanded that our political leaders explain to the people how the Wako Draft would ensure that all future presidents relinquish excess powers, act fairly in addressing our national problems, demonstrate intelligence, integrity and sensitivity in handling all public affairs.

Dr. Mbai scarified his life so that Kenyans can live free of all excesses, including the perennial corrupt practices. Can our leaders please explain why justice has not been done in this case?

______________________________________________________________________

*The writer is a Kenyan practicing law in Toronto, Canada

Miguna's Bombshell: Tuju Headed for PM's Job

2005-09-27T02:37:00.000-04:00

IS TUJU HEADED FOR THE PM JOB?

By MIGUNA MIGUNA*

A close friend of mine and a tested political strategist has recently whispered into my ear, careful not to be overheard [I profusely apologize for betraying his confidence], that our mutual buddy, that

ever smiling congenial gentleman from Aram market in Rarieda constituency in Nyanza province, the undisputed territory of

Raila Amolo Tinga; the one Kibaki refers to as “Ralph my son”, yes, that newly minted party leader of what some have referred to as

“Pata Potea Party”, is a major ace in Kibaki’s yet-to-be-played political cards, those that are still hidden safely under the table, away from the Orange team, or what other Banana Republicans love to refer to as “the Orangemen”.

According to my friend-cum-political strategist, Tuju will assume the role

Musalia played in Moi’s petty political schemes immediately after Raila stormed out of KANU with more than half its political heavyweights. His theory goes something like this:

Whether the Banana Republicans Win or Lose, TUJU will be VP

Sometime after November 21st, 2005,

Kibaki will announce a reshuffle [shattering and shaking all corners of our lovely republic], appointing Tuju to the VP’s position and either firing or demoting Awori.

Raila, Kalonzo and the other Orange team members will also be fired, giving space for Syongo, Sammy Weya, Opon Nyamunga and other closeted regime friendly MPs from Luo Nyanza, who will either be elevated or appointed to full cabinet positions, possibly even directly replacing the Orange ministers.

Following this reshuffle, major appointments in the District administration, judiciary, the police, military, intelligence and parastatals will follow. But the latter appointments will undoubtedly be restricted to Ralph’s friends, supporters and party affiliates or those who have “good” reasons to hate Raila [please count me out].

My friend swears by the spirits of his dead grandmother that Kibaki will inevitably boost Ralph’s political profile, stature and prestige in Luo Nyanza and start a process of creating a national figure.

With unlimited state largesse, KBC, Citizen and Nation Media propaganda machines demonizing Raila and proclaiming how heroic, development conscious and peaceful Ralph is, it is calculated [by non other than the professor of mathematics,

Saitoti] that both Luo Nyanza, in particular, and the greater Kenyan nation, in general, will begin warming up to our new leader.

And with his disarming smile, handsome face, gift of the garb and sure gait, Tuju will rise to the level of TJ Mboya, minus the latter’s organizational and oratorical acumens. What Ralph lacks in TJ’s charisma he will make up in his polish, poise and properly tailored Armani suits. My friend quickly points out that while TJ might have dazzled Kenyans with his reported coziness to such American titans like the Kennedys, Ralph will call upon

the Italians and other wazungu friends he has made in his foreign sojourns, first in the UK and then in the US.

So, just like TJ made life very difficult for Raila’s father Ajuma wuod Alogo, so will Ralph make life impossible for Raila and other Orange team members.

Eventually, so I hear, Ralph will create a political nightmare for the newly announced ODM and clear the path for Kibaki’s return in 2007 and beyond.

Those Orangemen who dared question Ralph’s political influence will face the wrath of the NARC power men such as Murungaru, Michuki, Karume, Kiraitu, Kivutha, Mirugi et al, thus what Raila’s father, Oneko, Kaggia, Obok and others experienced in 1966 and after will be replyated with precision after November 2005. According to this insider, Orange team members’ loans and mortgages will be recalled, credit facilities cut, jobs lost and life made miserable each day and night.

My friend points out that what will follow November 21st, 2005 has been clearly mapped out by Kiraitu, Michuki, Mirugi, Murungaru, Karua and others in the recent days. He gives me examples of statements made by the NARC high command during the banana campaigns such as:

Mungatana telling his constituents at St. Martin Primary School in Bahari Constituency, Kilifi District, on Sunday, September 25th, 2005, that “you elected me and I am commanding you to vote for the draft…”;

Kiraitu’s command to the civil servants that they must campaign and vote for the banana fruit as well as his declaration that their team is using state resources because the referendum is a government project;

Michuki directing the Provincial Administration to ensure that everyone under them votes for the Wako draft;

Karua telling those who are opposed to the enactment of the draft to go to hell; Kibaki calling every Kenyan who disagrees with his government liars and wapumbavu; and

Mirugi threatening Kivuitu with termination.

These, my friend points out, are just examples of things to come after the referendum.

Instead of Kenyatta’s refrain “Kaggia, what have you done for yourself?” the Orange team will be asked:

“How many oranges have you eaten?”

And with that question, it is conceivable that

Nyayo House will be reopened and the museum artifacts there transformed, once more, into truncheons of torture.

My friend’s second theory – Whether Banana loses or not, Tuju will be PM

My friend’s second theory looks more plausible than the first. He relays that he has heard it from impeccable sources within the corridors of power that Kibaki will fire the entire Orange team, hire the few turncoats from Luo Nyanza, and try another trick on Agwambo. This version has it that Kibaki will retain Awori but still appoint Ralph to the PM’s position, minus the executive powers. The reason for keeping Awori will be to retain a large chunk of the Luhyia votes, but only if the referendum results redeem him; that is, if he manages to deliver a sizeable number of votes for the Banana Republicans in November. If not, my friend posits, the VP’s job will be Kituyi’s; not Kombo’s. I hear that the MKM are adamant that the VP’s slot must be kept in the Luhyia country in order to lock Agwambo and his Orange brigade out of Western province. My friend doesn’t seem to think that Kombo stands a chance in the post referendum power equation.

However, even without executive powers, Ralph will be allowed to run a tidy outfit from Harambee House, with streams of eloquent, flashy and degreed Luos. That way, so the whisper goes, Luos will begin to view Kibaki as their ally, a true friend in development, and abandon Agwambo. The Odinga Political Empire, my friend reminds me, may be history post-referendum.

Then come 2007, with the Orange team’s influence reduced and their ability to organize seriously curtailed, the NARC brigade will have a good run for another term while ODM will be relegated to the dustbins of political experiments.

I have pointed out to my friend that the Banana Republicans may be planning to be more creative than he has analyzed. I have also warned him to be careful in analyzing Luos; that my people are tricky when it comes to politics. And that the community has a long history of felling those perceived to be sleeping with their enemies. However, my friend insists that the little birds chirping at his ears are as accurate as lightning.

And I say, good luck Ralph, give it a good run.

______________________________________________________________________

*The writer is a Kenyan practicing law in Toronto, Canada

Miguna Miguna Asks: IS KIBAKI’S TEAM FOR ORANGE?

2005-09-24T15:37:00.000-04:00

By MIGUNA MIGUNA*

There are a few statements that have been attributed to both Kibaki and his ever decreasing number of core sycophants that can only be seen as either a sign of political desperation or some ingenious political calculation aimed at propelling the Orange campaign to the referendum victory.

Personally, I do not mind seeing the Orange team victorious on November 21^st – I am actually spending my own hard earned money and time to see it succeed. However, I would have preferred if that victory was accompanied by the enactment of the Bomas draft as Kenya’s new constitution. We now know that this will not happen, at least as far as this Kibaki government is concerned.

We also do not know when or if the Bomas draft will ever be our supreme law; it is too early to judge what might happen after November 21^st. And it is almost impossible to tell what 2007 will bring. An Orange success without a concomitant new constitutional and political dispensation would, in my view, be another unfortunate disappointment to the Kenyan people.

When (as it is now almost certain) the Orange team wins, Kibaki will remain president, not unless the Orange campaign gains a momentum hitherto unknown in our country and sweeps all that is under it, or Kibaki resigns or calls an election following his loss.

I doubt that Kibaki will dare call an election when he loses. Yet a banana win, of course, will be both a constitutional and political disaster for Kenya. If the Banana Republicans win, which is very unlikely, Kenya will remain in or revert to the era of the Big Man authoritarian rule [no matter which way we look at it]. Those in doubt should actually do what President Kibaki has asked Kenyans to do – read what is now popularly known as the Wako Draft. It is available from all the Kenyan Dailies’ websites.

But I am a bit ahead of myself here. I will take each issue in turn.

Brilliant geniuses win first

As it was said by an ancient Chinese philosopher, “[S]eeing what others do not see is called brilliance, knowing what others do not know is called genius. Brilliant geniuses win first, meaning that they defend in such a way as to be unassailable and attack in such a way as to be irresistible.”

Whereas I do not consider Kibaki and his supporters brilliant geniuses, a closer examination of their statements would reveal that the apparent misstatements are well calculated political utterances whose intention is to prepare the way for subsequent mischief. And because reasonable Kenyans have tended to portray these statements as misguided, stupid or careless, we have not been able to clearly discern their full import.

Immediately following NARC’s electoral victory against KANU in 2002, Michuki, who had quickly emerged as one of the central figures in the Kibaki kitchen cabinet, faced the media and LDP onslaught on the abrogation of the MOU and declared the often repeated refrain: “When we [read: DP and the Mount Kenya Mafia] were in the opposition and said that we wanted a new constitution with the powers of the president significantly reduced and a separate centre of power around an Executive Prime Minister, we did so as a strategy to get one of our own [read: Kibaki] into power. However, now that we have managed to get that power, there is no need for the dispersal of the majestic and imperial presidential powers; no need for two centres of power; and since Kibaki is not a dictator, no need for a new constitution.”

That is what this Kibaki government said and it is what they stand for now. Any other explanation, justification or excuse proffered by this government must be seen in exactly the same light as the Michuki statement. If this Kibaki government leaves a legacy of profligate lies, rampant corruption and tribalism, it will also leave this Michuki statement as a clear testament of what it stood for. This will not and cannot change. It is the only time this government came clean with Kenyans on important matters of state.

Michuki made the foregoing statement in the face of LDP’s persistent demands for the ratification of the MOU that it signed with NAK. It was also supposed to provide an explanation for the government’s refusal to embrace the popular clamour for a new people driven constitution that Moi and KANU had undermined for years. It was intended to indicate why the Kibaki government was opposed to having a new people-driven constitution introduced within one hundred days after NARC took power.

When the Bomas constitutional process finally managed to reach a stage where it was obvious that a new constitutional dispensation for Kenyans was within reach, the Kibaki government made a dramatic walk-out and abandoned the process. This action was not taken because of the reported division, laziness, ignorance or corruption of most Bomas delegates. The walkout was intended to undermine the process and render it useless so that Kenyans would not have a new constitution within 100 days of NARC taking power. Unfortunately for this administration, Prof. Ghai and his team plowed along and managed to produce a draft that closely resembled what Kenyans have been demanding all along. Once this occurred, the Kibaki government had to design new strategies of sabotage, and they found easy and compliant students in the name of Timothy Njoya and Ringera, who dutifully compromised the enactment of the Bomas Draft through judicial mischief.

But with the embarrassing revelation of grand corruption within government and the ever flickering popular demands by Kenyans for a new people-driven constitution, the Kibaki team, like impatient but incompetent army generals, had to devise new methods of appeasing the people. They wanted to project a false image that they were for a new constitution; that they were only opposed to the Bomas Draft. So, they went to Naivasha, then Parliament and Kilifi, sprinkled a few shillings here and there, and came back with some crude cocktail, which they now offered as the people-driven constitution. The idea here is to now transform the whole exercise into a government project and be the driving force behind it. If we say no, then the government can turn around and say that it is us, Kenyans, who do not want a new constitution. And if we say yes, then we can never again complain about the Big Man syndrome. The die, as they say, had been cast. We have reached a point of no return. As Raila recently said, the plane has taken off and there is no way of engaging a reverse gear without a crash. So, we have to hold our breaths and tolerate the ride, no matter where it is taking us.

Who then are the brilliant geniuses who have won the referendum? And how did they win before November 21^st?

The superior militarist foils enemies’ plots

Standing recently on several podiums in both Central and Eastern Provinces, Ministers Kiraitu Murungi, Martha Karua, Murungaru, Mirugi Kariuki and Kivutha Kibwana announced to the whole world that the “government” (read: Kibaki sycophants) are using, and will continue using, state resources to ensure that the Banana Republicans emerge winners on 21 November 2005. According to Kiraitu, the referendum is a government project just like the construction of roads.

Shoulder to shoulder with Kiraitu on this platform were Karua, Michuki and Murungaru. These three political amateurs went further and warned those who do not like the use of state resources to advance the banana campaign to “go to hell.” Projecting his usual mischievous smile, Kiraitu sweetened the whole thing up by asserting that MPs supporting the Banana campaign will receive 500,000 Kenya Shillings each for incidental expenses. Assuming that the MPs who are aligned to the banana campaign are about one hundred, this would bring the money [mark you, not the entire banana campaign budget] drawn directly from our taxes and given as pocket money to government friendly MPs, at 50 million Kenya Shillings. Should we then be wondering why Karua, Michuki and company so enraged the public that they were literally chased away from Garissa and booed in Mukuruweni?

When Kibaki took one of his now familiar foreign trips to New York, two interesting things happened. The first one was his reported entourage of 94 advisors, friends and family members. According to newspaper reports, Kibaki’s entourage was the largest among all the United Nations’ member states, including even the G8 countries. Not only was the delegation too large and unwieldy, the only criteria of its selection was personal relationships and closeness to the centre of power. Even more outrageous was the fact that the delegation stayed at one of the most expensive hotels in the entire world. For this delegation’s air fares, accommodation, food and “pocket money”, Kenyans were thus fleeced of more than $987,000 (US), which would be more than 75 million Kenya Shillings for a two week trip of a section of Kibaki’s inner circle. We are only here talking of the most conservative estimates based on known newspaper reports that have not been credibly challenged by any government functionary. And we have not yet even examined how many briefcases were stuffed with cash, gifts and other ornaments to or from abroad by this group – thanks to the Kenyan tax payers. If Kenyans do not consider this a case of magnificent theft, and determine to vote in large numbers against the Wako Draft, then I honestly do not know what it is.

However, the mere fact that the Kibaki administration would not even bother to present a coherent and persuasive case for this obvious misuse of public funds indicate that, firstly, the government does not care about what we think about what it is doing, secondly that it no longer cares whether the people will use this as the reason for voting against the Wako draft, and that it actually wants the people to vote against the Wako draft so that Kibaki can continue ruling using the current constitution. Whichever way we look at it, Kibaki comes up on top. Just like he did in December 2002. And as Michuki added recently, “our people should sleep soundly because we are protecting the Kibaki government, which in turn shall protect the Kikuyu and their property.” So, you can see what this is all about when everything is boiled to the bottom of the pot. What remains is nothing but that old tribal sentiment. No wonder they recently formed GEMA and branded it MEGA, which is really GEMA reversed.

Several weeks before making the announcements in Mukuruweni, Kiraitu, in his usual eloquent lisp of wisdom proclaimed how the Banana Republicans will shake all corners of Kenya with a dizzying array of state resources that had never been seen before. Mirugi and Murungaru had then threatened Kalonzo Musyoka with severe penal consequences for an apparent “criminal” indiscretion some sixteen years before. Kalonzo’s indiscretion was later revealed to have been his alleged failure to comply with a dead judge’s civil court order; an order that had apparently been successfully appealed. To cap it off, Kiraitu declared that on Tuesday, September 20^th, 2005, Kenyans would see Cabinet Ministers, MPs and several leaders being arraigned in court for their failure to file their wealth declarations as required by law.

Shortly thereafter, Kiraitu, Michuki and company directed all civil servants to campaign for this new government project. The police were also seen shipping people armed with crude objects and deadly weapons to Orange rallies and unleashing them on peaceful civilians. In the ensuing confrontations in Garissa and Thika, the attackers are protected and escorted by the police to safety as their Orange counterparts are arraigned in court with tramped up charges. Consequently, the Orange team is gaining momentum while the Banana team is increasingly becoming loathed, hated and despised, as their leaders designed.

However, as with his other announcements on the Goldenberg, Anglo Leasing and other Kenyan scandals, Kiaritu’s latest threat has turned out to be just another flute being played to the gallery. Maybe Kiraitu thought that he was simply foiling his enemies’ plots, trying to ruin their alliances before actually attacking them in Thika, then Garissa. Kiraitu, as you can see, has been reading Sun Tzu’s The Art of War upside down.

A general that is not popular is not a help to the nation

On arrival from his most recent overseas trips, President Kibaki declared that the referendum on the Wako draft will proceed as planned. In his new assumed dismissive trait, he stated that those opposed to the Wako draft are losers; that they lost at Bomas and Parliament, and that they will lose again on November 21^st. He also announced that Kenyans abroad support the Wako draft because it provides for dual citizenship. Maybe the president knows something that we do not (yet) know. However, from all reliable sources, it is Kibaki and his team that lost at Bomas and will likely lose on November 21^st; not unless these loses were actually designed to be so by State House, which is what I suspect, hence his bold proclamations.

An ancient Chinese philosopher called Zhuge once stated that “a general that is not popular is not a help to the nation, not a leader of the army.” Kenyans will no doubt decide what kind of a general Kibaki has been.

As for the Kibaki Banana Republicans, their statement appear geared as a campaign for the rejection of the Wako draft. The more statements they make about how they will misuse state resources to campaign for the Wako draft, that the draft reduces presidential powers, that civil servants must campaign and vote for the Wako draft and their direction to the police to intimidate and harass Orange supporters, are all designed to make the Banana team thoroughly unpopular and despised. Whether this is a brilliant strategy like what they did in 2002 is for time to tell. But I suspect that it is. The general is leading an onslaught on his own people.

______________________________________________________________________

*The writer is a Kenyan practicing law in Toronto, Canada

The Daily Nation's Odhiambo Defamed Us- CLARION's Odhiambo Writes

2005-09-22T09:54:00.000-04:00

OUR REF: P/454/01/05

DATE: 22^ND SEPTEMBER 2005

Mr Bernard Nderitu

The Managing Editor

Daily Nation

Nairobi

Dear Sir,

RE: “POLITICAL LINK IN CIVICS GROUPS” STORY [DN SEPTEMBER 22: 4]

The Centre for Law and Research International (CLARION) wishes to draw your attention to the story referred to above, which appeared on page 4 of the Daily Nation today. I decided to put this in writing after my attempts to talk to you on phone early today failed.

Your writer, Mr Odhiambo Orlale, whom we respect for his excellent reporting as consumers of news, called CLARION and talked to me on Wednesday, 20^th September, a day before the said story appeared. However, from the beginning of our interview it seemed as if Mr Orlale had made up his mind about the angle his story was going to take, that is, advancing the view that CLARION cannot be an impartial civic educator because of purported links with Professor Kivutha Kibwana, the former Executive Director of CLARION, and now an Assistant Minister.

Again in our conversation, Mr Orlale appeared hell bound to make a connection between the selection of CLARION to conduct civic education in Makueni, Kaiti and Kilome constituencies and the fact of Professor Kibwana being a former director of the organisation. I laboured to explain that CLARION had in fact applied to conduct civic education in 10 districts and that we were dismayed to be assigned only three constituencies, and further, that we did not know the criteria used by CKRC to shortlist organisations. I went further to explain that we would take up the issue with CKRC since our capacity is far beyond working in three constituencies. To further emphasise the point, I pointed out to Mr Orlale that CLARION would consider boycotting the exercise since we feel we cannot create proper impact working in only three constituencies. This point was again ignored.

Just to set the record straight Professor Kibwana, whom CLARION respects as a Professor of Law of international repute, left CLARION in October 2002 when he decided to vie for the Makueni Paliamentary seat in Makueni district. This is in accordance with the organisation’s rules and regulations, which stipulate that an officer vying for parliamentary elective position has to first resign from the organisation. This was explained to Mr Orlale but he chose to ignore it. Instead, he went ahead to report that Kibwana left CLARION two years ago. What this means is that as a politician he was still running CLARION up to 2003.

In all due respect, it is not clear to myself as a reader what Mr Orlale’s story was meant to achieve. By portraying all the groups mentioned as groups that are linked to politicians the writer is clearly saying there can be no impartial civic education on the referendum around the country. To stretch the argument to its [il]logical end, it means Kenyans would be better off without civic education. We, as a human rights organisation, respect Orlale’s view even if it does not make sense to us at all.

However, we would like to point out that Orlale’s opinion puts CLARION in a quandary over its civic education programme. It is likely that civic educators associated with CLARION will face hostility since we have been portrayed as partisan. This is regrettable given the hostile political environment within the country caused by the on going Yes/No campaigns. CLARION, in fact, has to now rethink its engagement with the civic education programme because of this very real threat.

I would like to state clearly that CLARION is an institution with functioning organs including a General Assembly, a Board of Directors, a Management Committee and a Secretariat and does not rely on the goodwill of individuals to carry out its mandate. Like any other organisation anywhere in the world, CLARION was formed by individuals who had a certain vision of the society that they sought to pursue. Those individuals have since left the organisation. The professional staff members employed by CLARION have gone on with implementation of the programmes of CLARION and have contributed to the reputation being enjoyed by the organisation nationally and internationally as a leading research NGO.

We shall therefore be very glad if the impression created by your writer will be corrected.

Yours Sincerely,

Morris Odhiambo

Deputy Executive Director

Miguna: AN OPEN LETTER TO PRESIDENT KIBAKI

2005-09-21T16:21:00.000-04:00

By MIGUNA MIGUNA*

Dear Mr. President:

I am writing to you at this momentous time when our beautiful country is at the centre of a political storm. The storm has been gathering force and momentum each passing day. The political waves that have been lapping at the banks of our country’s landscape have pushed the people to the edge of a historical cliff where they can either fall over into a precipice or back into the eye of the storm. Should either of these occur, Mr. President, we would face a catastrophe whose effect may last for generations. Kenya may not fully recover from such inevitable calamity, unless we address the root causes of the problem and either divert the approaching political typhoon or seek safety elsewhere. If the storm facing us ends up tearing, uprooting and destroying our country, you will, Mr. President, bear a lot of responsibility, and would be required to answer questions, as to why you failed to protect the people of Kenya from the howling winds or what, if anything, you did to prevent the havoc from engulfing us Let me try to explain.

As the president of the Republic of Kenya, history has bestowed upon you a unique responsibility of ensuring that you truly, honestly and fully uphold the constitution of the Republic of Kenya. When you were sworn into office in December 2002, you took an oath to protect and uphold the current constitution, to conduct yourself strictly within the constitution and to govern (not rule) Kenya in accordance with the Rule of Law.

One of the central requirements of any constitution is for the chief executive, however defined, to protect all citizens from harm, oppression and injustice. You are constitutionally required to treat all citizens equally regardless of religion, colour, creed, ethnicity or political opinion or affiliation. To be faithful to the current constitution, you must not take sides between or amongst Kenyans, unless it is for the general public good. In all your executive choices Mr. President, the constitution requires you to always act within the law and parameters set by the constitution itself. You cannot and must not permit your choices to be dictated by parochial selfish interests, ethnic considerations or political survival.

Section 1A of the current constitution states that Kenya shall be a multi party democratic state. The cardinal words here are “shall”, “multi party” and “democratic state.” The use of the word shall in describing the type of country Kenyans should live in was deliberately designed by the drafters of the current constitution to direct everyone, including you, on what our country must be. Constitutionally, you have a positive duty to make sure that for the entire period of your tenure, this section is upheld without equivocation, qualification, abrogation or mischief by anyone, including yourself. It means that anyone who undermines, directly or indirectly, the multi-party and democratic aspirations or components of this country, would be acting in violation of the current constitution. Any such violators, Mr. President, are subject to the imposition of penalties as prescribed by law. Again, there are no equivocations, exceptions or qualifications. The constitution remains the supreme law of the land.

Section 47 (1) of the current constitution states that “[S]ubject to this section, Parliament may alter this Constitution.” According to all reputable English language and law dictionaries I have consulted over the definition of the word “alter”, Mr. President, I have inevitably found that it means: modify, adjust , amend or to make different. There is no dictionary published in English that would ascribe to the word “alter” any other additional meaning, especially one that would legitimize a complete “overhaul,” “replacement” or “repeal” of the entire current constitution. To do that one needs to amend this section to include “repeal”, “overhaul”, or “replacement” as one of those things that Parliament, or any other mechanism required for such to occur.

When the constitutional change process first started in early 1980s, Kenyans rightly demanded the complete overhaul of the entire current constitution. At that time, section 2A that made Kenya a de jure one party state was still in place. Even following the repeal of section 2A and the enactment of section 1A that made Kenya a multi party democracy, the overwhelming majority of Kenyans still demanded, and continue to demand, the complete replacement of the current constitution with one in which the powers of the presidency would be dramatically and significantly reduced, dispersed, devolved, counter-checked and counter-balanced. The central argument by Kenyans have consistently been that the imperial presidential powers that you currently enjoy have been the root cause of the grand corruption in the country, the misallocation and pillage of public resources, particularly land, and the repression that we have lived with since 1963. With the enactment of a new constitution, Kenyans wanted to say “never again” with respect to the kind of repressive rule they endured under Kenyatta and Moi. Similarly, Kenyans have consistently asked for a devolved and accountable government; not the retention of a monolithic all powerful central government. These two have been the pillars driving the constitutional change and reform movements.

At the end of the Bomas process, Kenyans felt that they had at long last produced a constitution for themselves. At the Bomas of Kenya, the people of Kenya debated, reasoned and argued amongst themselves, in their collective brilliance and ignorance and produced what they felt would protect them and their resources from the ravages of future despots and rapacious thieves. Notwithstanding the incoherent grumblings from a section of your Cabinet and political supporters, the Bomas Constitutional Draft is the only document that was produced through a popular democratic process. Judging by the Orange euphoria and popular uprising by most Kenyans in recent weeks, the Bomas Draft has the support of the majority of our people. No matter how right you and your advisors believe that you have been and the rest of us are misguided, the fact of the matter is that as the majority, democracy demands that you listen to us and subject your idiosyncratic feelings to democratic norms. We, the majority, have spoken and there is no going back.

Mr. President, it was a betrayal of the wishes, aspirations and feelings of Kenyans when your government orchestrated a coup de tat against the Bomas Draft at a posh Kilifi Tourist Resort and has now forced them into voting over a document that they had absolutely no input in preparing. Not only was the process fundamentally flawed and undemocratic, the product of that illegitimate process also resulted into a monster that is dramatically different from what the people had produced or wanted. Your monster has now generated all kinds of forces that threaten to engulf us in unprecedented storm. The hand-picked elites that prepared your illegitimate draft will either be hiding in their mansions or feeing abroad when the storm strikes. But what will happen to the rest of us Mr. President? Will you leave us for the forces of nature and man to ravage us until we are no more or will you stand up and lead?

Mr. President, the way out of this storm is not to ride it to the ocean like your advisors have said. If you do this, you will drown, like others before you have. Neither is the choice to sit it out and see as you are wont to do. If you continue doing this, it is likely that you will howl with the wind to the four corners of the earth. It is also not to introduce diversionary tactics like my friend Ralph, that loving son of yours, has tried to do. Diversionary tactics do not work at this late hour; the storm will scatter those trying this strategy to the deep sea. The only way out is to go to higher ground. In our case, this requires that you swallow your pride Mr. President, apologize to Kenyans for your stubbornness, ask for their forgiveness and allow them to say “yes” or “no” to the Bomas Draft. You would have retreated with us to a higher moral ground. We would live to tell the tale another day. That is our only salvation. And it is your only reprieve.

Mr. President, this is my only unsolicited advice. However, should you continue to ignore the approaching typhoon, we would call upon all Kenyans, those whose survival instincts are still agile, to abandon the cliff and join the howling wind, saying NOOOOOOOOOOOO to your government’s suicidal madness. Mr. President, we shall not fall over the cliff into the canyon.

20 September 2005, Toronto, Ontario

_____________________________________________

*The writer is a Kenyan practicing law in Toronto, Canada

Njeri Kabeberi-Kanene on Negative Ethnicity

2005-09-12T09:15:00.000-04:00

Know the truth, it will free you
--------------------------------------------------------------------------------
Opinion piece originally published in the East African Standard

By Njeri Kabeberi-Kanene

I thank God that I grew up in Nairobi’s Eastlands because although born a Kikuyu, I am tribe-less.

I still get shocked when I realise how ethnically divided the country is as we continue to allow politicians to use our ethnicity for their selfish interests.

Talking to my mother’s age-mates the other day, I realised that although most of their children were brought up in that beautiful tribe-less corner of the city of Nairobi, they themselves are still caught up in the ethnic manipulation of our politicians.

At the time, we were discussing the constitution, the referendum symbols and the vote.

In the end, the debate was reduced to a Kikuyu verses Luo vote. I asked: What about the other ethnic groups?

Don’t they matter?

Where do they feature in your version of how the vote should be?

Current statistics show that of the ethnic groups in Kenya Kikuyus are 17 per cent, Luyhas 12 per cent, Luos 11 per cent, Kalenjins 10 per cent, Kambas 10 per cent, Kisiis six per cent, Meru five per cent, Mijikenda five per cent, Masaai two per cent, Turkana one per cent, others 21 per cent.

The age breakdown indicates that 50 per cent of our population is made up of 0-14-year-olds, those between 15-59 make up 46 per cent, 60 years and above make up four per cent.

The above statistics, show that 72 per cent of Kenyans are neither Kikuyus nor Luos and that the largest population from all ethnic groups is made up of the youth. I would like to think that the youth, like me, are tribe-less or would love to be if it was not for political manipulation.

Although they belong to different ethnic groups (and ought to be proud of it) the youth should be tribe-less in their thinking and actions because the values of a nation can be destroyed if we continue to fan ethnic arrogance.

We have seen within our own country, and within the Eastern and Central Africa region just how negative ethnic animosities can be.

When disaster strikes — like when there was a terrorist attack in Nairobi — all Kenyans become victims; if Hurricane Katrina or a real tsunami were to hit Kenya (God forbid!) they would not select those to affect on the basis of ethnicity.

Why do we then seek for votes on governance issues on the basis of ethnicity?

I feel that as Kenyans we are forced to make choices on the basis of fear instead of facts.

Fear rules most aspects of our lives, yet fear is selfish, because it forces us to go into our narrow cocoons and disregard everyone and everything else.

Fear tells us that leaders of other ethnic groups will mess up the lives of those not in leadership; fear makes us look only at the one thing we imagine will benefit the individual, even when the individual is not really benefiting.

Kenya at the age of 42 should be tightening windows of prejudice instead of opening floodgates of disaster.

I have not come across any ordinary Kikuyu known to me who has directly benefited from Kenyatta’s nor Kibaki’s rule!

So what’s this business of voting on ethnic lines?

Aren’t we all hustling on bad roads, with poor services and in crime-infested cities?

The Constitution belongs to everyone, with the youth standing to lose or benefit the most.

Yet the rights of the four per cent who are over 60 years should not be ignored, nor should those of the 21 per cent of other ethnic groups.

I vote for freedom from fear and that is why we should be re-opening discussion and negotiations on the Constitution to free all of us from the negative prejudices being forced down our minds.

We are looking for a constitution that provides confidence for Kenyans as it ascertains the necessary safeguards for all, including the 250-300 El Molo Gurapau on the South East shores of Lake Turkana.

Njeri Kabeberi-Kanene is a board member of the Kenya Human Rights Commission and consultant for the Netherlands-Institute for Multi-Party Democracy.

Mukoma wa Ngugi: New Orleans and the Third World

2005-09-10T08:55:00.000-04:00

New Orleans and the Third World

by Mukoma wa Ngugi

September 08, 2005

From ZNET

Introduction

The devastation of New Orleans by Hurricane Katrina is being compared to disasters in the “Third World” but with no specific countries or disasters named. And if not compared to this black hole or repository of disaster that is the “Third World,” a comparison to Africa is as specific as it gets. “New Orleans is a scene from the Third World”, “like the Third World”, “US Handles the crisis like a third world country”, “bodies floating on water reminiscent of Africa” etc. This has been a constant with news commentators, analysts, members of the senate and congress and other sections of America commenting on New Orleans. The accompanying statements to this have been “I cannot believe this is America” or “This is not supposed to happen in America”. It is supposed to and can only happen somewhere else. Attending a food festival event in Madison, Wisconsin I overheard a joke – “Where is New Orleans again?” New Orleans is next to Somalia”.

What role is the “Third World” playing in how Americans are dealing with the disaster? Where does the “Third World” fit in the imagination of the American? What does it mean to say that this is not supposed to happen in the United States? To me, it is almost as if by displacing disasters and human suffering to the “Third World,” the New Orleans disaster is not really happening in the United States. New Orleans is “out there” and everyone else is ! safe and American – the crisis in New Orleans is happening in a “Third World” outpost and the United States remains rich, strong and invulnerable.

The American citizen has been stewing in nationalism, manifest destiny and the myth of the democratic society that errors but never oppresses or marginalizes for so long that even a natural disaster cannot be seen and understood outside this lens. And the fact that most of the victims are predominantly poor and African American is not being understood as a creation of very specific domestic policies and conservative ideologies; it has to be filtered through the “Third World”. As if a disaster from that “part of the world” somehow managed to sneak through the porous Mexican borders.

Bush’s Remarks

It is interesting therefore to look at President Bush’s remarks after touring New Orleans on September 2nd after four days of inaction. His first sentence was “ I've just completed a tour of some devastated country”. A detached statement but it gets worse – a little later he says “I know the people of this part of the world are suffering…” and he goes on to talk about how progress is being made. Then he says “ The people in this part of the world have got to understand…” Shortly after this, he says “You know, I'm going to fly out of here in a minute, but I want you to know that I'm not going to forget what I've seen” and again refers to his constituents as “good folks of this part of the world”. It is almost as if he is in a different country consoling its citizenry. He himself is so detached about what is happening in the very country he leads that he refers to it as “this part of the world”. As far as I know, no one in the mainstream media picked this up, they too are reporting on that “part of the world”.

Believing that humor is the best medicine, in the same speech he also makes a rather tasteless joke: “I believe the town where I used to come [to] from Houston, Texas, to enjoy myself, occasionally too much, will be that very same town, that it will be a better place to come to”. Now, this is a President who up to this point has not visited New Orleans, a disaster area that is being acknowledged as probably the worst in recent U.S. history, yet, speaking to an evacuated, wounded and dying constituency, he refers to their drowned city that was their whole life as his old party ground. All in all President Bush gives the kind of speech a visiting leader would make during a hurriedly prepared press conference after being caught unawares by a natural disaster. It captures his inability to empathize, to really be one with the victims.

The Myth and the “Third World”

An American dying in a natural disaster will look like a human being dying in any natural disaster and not necessarily like an African. A homeless American looks like any homeless human being and not always like an African. And a natural disaster should not be seen as somebody else’s natural disaster but as one that afflicts all humanity. We are of a common humanity. It is the myth that only other nations torture that led to Abu Ghraib. It is the myth that only other countries have political prisoners that keeps political activists like Mumia Abu Jamal and Leonard Peltier in American jails for fighting American marginalization. It is the belief t! hat only other countries exile those that oppose their policies that has led to the bounty on Assata Shakur – exiled in Cuba for fighting for African American rights – being raised to one million dollars. And it is the myth that only other countries ignore and exploit their poor that led to the disaster in New Orleans.

But there are ways in which America is like the “Third World”. Privatization, which in “Third World” Countries becomes structural adjustment programs, has been happening in the United States since the Reagan years of small government, through the Clinton years that saw a full assault on Welfare and affirmative action originally designed to buoy the marginalized, and through the Bush years that have been rewarding the rich while taking away from the poor through Federal and Supreme Court nominations that support big business and reduce the power of labor unions, among other things. These have been the years of ‘blaming the victim’ while preying on them. They are poor because they are lazy – ! enter the “welfare queen”. While the mainstream United States was busy trying to convince itself that poverty and racism were things of the past or happened only to other nations, the marginalized were becoming even more vulnerable. Most of the victims in New Orleans are black and poor – race and class - an inversion of Frantz Fanon’s one is rich because he/she is white and one is white because he/she is rich to read one is poor because he/she is black and one is black because he/she is poor. Just like in the “Third World” in times of natural disasters and wars, it is the most victimized in New Orleans that are doing most of the dying.

Contradictions

The reasons why the poor couldn’t leave the city are quite easy to understand. They couldn’t afford it. They simply did not have cars or money for transportation, are jobless, or live pay-check to pay-check and couldn’t have had any money saved up for relocation. Where poor people owned houses to which they had mortgaged their lives, where their homes had become the marker of their humanity and achievement, staying put and essentially fighting for their lives was the only option.

Like the genocide in Rwanda in 1994, or the ongoing genocide in Darfur, this particular disaster had been telegraphed – we all knew it was going to happen, and more political and economic will, including a more comprehensive effort to evacuate the city of New Orleans, could have minimized human suffering. What makes it even worse is that the millions being pledged now by private citizens and corporations and the 10.5 billion initially pledged by the government could have saved New Orleans ten times over through improvement of infrastructure. Because of the federal government’s push for privatization which translates into public services being slas! hed or sold to private companies, perhaps the government simply no longer has structures in place to handle disasters. This could explain why Bush ended his speech with “If you want to help, if you're listening to this broadcast, contribute cash to the Salvation Army and the Red Cross”. Each death in New Orleans was preventable. But money is not made in prevention but in reconstruction. Soon, like in Iraq, the big contracts for reconstruction will be on their way – some corporations will make a killing. Let the bidding begin.

Also, it is with a sense of irony that one reads of corporations like Wal-Mart contributing millions of dollars to the relief efforts. Yet were their employees in New Orleans working in better conditions and with better pay, some of those who couldn’t afford to evacuate would have been able to do so. These corporations are responsible for the loss of jobs through outside contracting to sweatshops in “Third World” countries where in turn occasional fires break out leading to hundreds of deaths. In “Third World” countries, they no longer pay government taxes in the tax free trade zones, leading to further des! truction of already fragile and poor economies. Where these corporations have remained in the United States as retailers and manufacturers, they have seen to wages being cut. They are rabidly against unions and essentially use the community the same way colonial companies used colonized communities – for cheap labor, extraction of raw materials and of course as buyers of products whose production is finished elsewhere.

Thus coupled with a government that has engineered its own version of structural adjustment to maximize profit, and corporations that economically and politically colonize a community, the vulnerability – which in real terms is the result of victimization – seen in New Orleans is not a surprise. Rather, it is the culmination of well planned and orchestrated policies that consolidate wealth in the hands of a few at the expense of the poor. Globalization is not resulting in a world that becomes better as it gets smaller, but rather in a world where poverty becomes more prevalent and more apparent. This globalization of poverty makes New Orleans a village ! in everybody’s backyard. Instead of outsourcing disaster to an unnamed “Third World” it seems to me that citizens of the United States should be placing the responsibility for the preventable deaths and suffering in New Orleans on their government and corporate board rooms.

Mukoma wa Ngugi is the author of Conversing with Africa: Politics of Change and the forthcoming, Looking at America: Politics of Change.

WAHU KAARA: Wake Up to Poverty!

2005-09-08T16:23:00.000-04:00

WAKE UP TO POVERTY – NO EXCUSE 2015

By WAHU KAARA

Keynote Address

58th Annual DPI/NGO CONFERENCE, UNITED NATIONS, NEW YORK

SEPTEMBER 7, 2005

In our pursuit for Global Justice and creating a better world that will uphold our heritage, we have come a long way. I stand before you today as an African woman. Somebody who experiences on a daily basis the pain and indignity of hunger, disease and illiteracy. For one who works at the grassroots level, it is a rare honour for me to be even given such an opportunity and I thank the organizers and all of you for this.

2005 has been a monumental year. We have seen bold and broad manouevres and engagement to address the critical issue of global poverty and inequality. An inequality whose responses and backlash has been and continues to be visited on us daily. With varying dimensions and tempo in its manifestation.

Of course, inequality is not just between countries but also within countries. As we Africans express our deepest solidarity and condolence to the people in this country affected by Hurricane Katrina, this reality has become loud and clear.

In the words of Gordon Brown, the British Finance Minister, "In 2005 we have a once-in-a-generation opportunity to deliver a modern Marshall Plan for the developing world."

From the launch of the Global Call to Action against Poverty at the World Social Forum in January this year, through the G8 summit in July, to today; a vibrant voice that is interrogating the dominant discourse is gaining ground across borders.

I hope you are all familiar with the Global Call to Action Against Poverty which has in a matter of 8 months become the largest global movement against poverty with campaigns in over 100 countries, with millions of people taking action at the national and international levels. The Call includes social movements, trade unions, Churches, NGOs, womens, youth and human rights groups and ordinary citizens, many of them living in poverty. I hope all of you are wearing the symbol of the campaign – the White Band, my White Band has been made by the Maasai people of Kenya. And I hope you are all joining the many Wake Up to Poverty events planned by us that are happening this month. Please do visit www.whiteband.org or www.millenniumcampaign.org if you want to know more about this.

When I see Live 8 and Make Poverty History talking about 30,000 people dying a day, for me this is not a statistic. The images that go through my mind when I see these numbers are the faces and names of real people, my family, my neighbours, my friends, my community.

But today I want to bring to you the other Africa, the one that does not appear much on our TV screens. The Africa that is waging a determined struggle against poverty. As nations and as a continent. The Africa Union and the new African Parliament, led by a woman, is a symbol of this new Africa.

However the real transformation that is taking place is at the level of individual citizens in Africa. The people of Africa are increasingly refusing to accept a life of bondage, poverty and injustice. And our message to our governments in Africa is loud and clear- no more excuses, no more poverty. Meeting the Millennium Development Goals, which virtually every African Government signed onto five years ago, has to be top priority. We will not tolerate corruption and inefficiency from our leaders anymore.

Campaigns for achieving the Millennium Development Goals and poverty eradication are already active in over 20 African countries. The Global Call to Action against Poverty with the support of the United Nations Millennium Campaign is now a powerful voice of the people inside Africa holding African Governments to account.

But on the other hand, as much as the dominant discourse on poverty is developing world centric and Sub-Saharan Africa specific, the so-called developed world too has its stake. A big stake for that matter. Please listen to millions of your own citizens who are asking you to take action against poverty. Don't tell us you don't have enough money to meet your aid commitments and cancel debts of all poor countries. You found a lot more money overnight for the war on Iraq and cancelling Iraq's debts.

Looking at the task ahead of us; Our challenge: Voices for Peace, Partnerships and Renewal, it is obvious that we as a civilization are at critical juncture that calls upon us to rethink our destiny. This is not a small task and will not be accomplished overnight. But its mere admission calls for us to dialogue. And it is this dialogue that will usher us into a new paradigm.

Premised on the fact that the world is a shared heritage, we are saying that time has come when we have to free ourselves.

In the context of our Larger Freedom: Towards Development, Security and Human Rights for all, we are reaffirming that we want freedom from want, freedom from fear and freedom from indignity.

At the intersection of developed and developing countries, what we call globalization today and its concomitant subjugation of whole societies and civilizations to the control and domination of others the very fibre of our commonality: Freedom is under challenge. I know the word freedom has been hijacked in recent times, but people from Africa who are in bondage know the true meaning of the word.

Let us join and listen to the voices of the world. The people who make the world. Those who toil. Those who nurture. Those who have continued to breathe life irrespective of the dispossession conditions they live in.

It is very ironical of the clear intentions and designs we continually put in place; each time history demands fundamental changes for human progress. It is my utmost hope that this premier dialogue is the first step towards breaking the rigid walls of the dominant enclosures.

This is the time to audit ourselves for the long march we have taken in convincing ourselves that we are making any changes but we aren't. No wonder we are caught in between a cyclic debate of poverty reduction or poverty eradication.

The problem is the adoption of the whole poverty agenda.

Poverty cannot be eradicated without a comprehensive development programme. Therefore, we need to go back to a development agenda for the New Millennium. And this necessarily has to be sustainable economic and social development.

This is what has to be discussed. This is what the other-globalist movement should be involved in. Of course the debt of poor countries has to be written off. Of course financial markets have to be controlled. Of course we need international taxes and an international distribution of incomes. And of course poor countries need policy autonomy in order to define their own development agenda. These are important criteria if we want to build another world.

We will need to talk about how to stop the depletion and squandering of natural resources. We will have to talk about food sovereignty. We will have to ask ourselves how to distribute production, trade and consumption. We cannot allow poor countries to produce for export and import everything they need. We will have to talk about some kind of world governance in order to plan, regulate and redistribute. Therefore, we will need democratic institutions. But the most important rationale is to break with the dominant worldview that only and only the markets will bring development.

No single country, no single man or woman can 'be developed'. Development is only possible if it emerges from the society, if people can decide themselves which kind of modernity they want. That is why policy autonomy and democracy are so crucial.

It is impossible to be against poverty eradication - there is a consensus on this. But that does not mean that we should not look critically at the harmful discourse of some international organizations in order to deconstruct and oppose it. That is what the other-globalist movement has to do. Poverty eradication never can be a progressive agenda if there is no economic justice at the global level and inequality between and within countries is not tackled at the same time.

Five years ago, world leaders met in this building at the Millennium Summit and committed themselves to go a long way in overcoming hunger, poverty and illiteracy by 2015. Since then the world has focused not on the MDGs but on the so-called war on terror. And even these most minimal goals, the MDGs, are not likely to be achieved by most poor countries and for most poor people, particularly in Africa.

In a week's time over 150 world leaders will be gathering in this very same room to take stock of how far we have progressed on the Millennium Development Goals, within the broader context of the Millennium Declaration. Citizens across the world are shocked that some governments are, at this late stage, asking for MDG commitments to be removed from the Summit outcome. As far as we from Africa, particularly the women are concerned, this is simply outrageous and destructive. We understand that UN Reform is important but millions of people's lives are at stake if the MDGs cannot be sacrificed at the altar of some governments pushing their own self-interest.

We would have said all this to world leaders directly but sadly civil society has no access to the Summit! We hope this is the last such occasion where leaders of peoples movements have no access.

Therefore, when world leaders are here next week, our call to them from the other side of the barricades, as Africans and as a vital part of the Global Call to Action Against Poverty is clear:

1. We don't want warm words, we want action to meet and exceed the MDGs by 2015. This means specific commitments. Time-bound country-specific implementation schedules. These measures have to be a part of the national development strategies, PRSPs and budgets;
2. These commitments should be monitored by Governments and reported to the public by all Governments including Goal 8 reports in the case of rich countries;
3. We want the MDGs to become legally enforceable human rights at all levels;
4. Rich countries should commit to 0.7% of GNI to ODA by 2010 at the latest;
5. All aid should be immediately untied and clear aid effectiveness targets adopted. Donors should stop harmful conditionalities forthwith and poor countries should have the policy space they need to be accountable to their own citizens and Parliaments;
6. Debt cancellation has to include 100% of official debt of all low-income countries;
7. Trade justice should be given the highest priority - agricultural subsidies under all guises that are killing poor formers in poor countries should be dismantled now;
8. Barriers to goods and people from poor countries from having access to rich country markets should be torn down now and the double talk of free markets for the poor and back-handed protectionism for the rich should end now! And not just for LDCs but all poor countries. Our honesty and sincerity now is to rise up as history demands and acknowledge we have created poverty. Because poverty is created scarcity. And this 21st Century we have a choice to shift from this paradigm and create plenty for all!

This is why when we from Africa stand up to declare that, "we shall no longer die, but live for Africa," let the echo of this clarion call resonate at all corners of the world. And thus we will have secured the larger freedoms for us all. For ourselves and our children. It is our heritage at stake!!!!

--WAHU KAARA is Ecumenical Coordinator for the Millennium Development Goals, All Africa Conference of Churches & Global Call to Action Against Poverty.

Kenyans in Scandanivia Urge a NO Vote

2005-09-08T10:18:00.000-04:00

September 7th 2005
email: mapambanokenya@gawab.com

STATEMENT OF KENYANS IN

SCANDINAVIA ON THE NOVEMBER REFERENDUM ON THE CONSTITUTION:

VOTE A STRONG "NO" AND SHOW PRESIDENT KIBAKI THE DOOR

November 21st has been set by the Kenyan ruling class as the date for a national referendum for a new Constitution. As the count down began, rotten politicians allied to the corrupt NARC government began prattling on the necessity of Kenyans to vote "Yes" to a distorted and mutilated Constitution. We take the view that the Kibaki Constitution is in opposition to the National aspirations of the Kenyan people who have been waging struggle for a new Constitution for more than 4 decades.

The alternative that Kenyans vote "Yes or No" to "The Kibaki constitution" contradicts the reasons why Kenyans voted out the undemocratic dictatorship of former President Daniel arap Moi in December 2002.

When Moi refused to address the inadequacies in the KANU Constitution, thousands of lives were lost, people were sent to prison, activists forced into exile while hundreds of other Kenyans were maimed or crippled in the process of struggle for a new and democratic Constitution.

By fidgeting with the Constitutional writing process, does Kibaki and his cohorts understand the history behind the real struggle for a new Constitution in Kenya?

After more than Ksh 4 billion was spent by the government to draft a new Constitution that truly represented the wishes of Kenyans (The Bomas draft), the document was fraudulently referred to Parliament, not to improve it but to water it down in favor of the wishes of Mount Kenyan Mafia currently responsible for the looting and plunder of Kenya's resources.

During 24 years of ruthless dictatorship of former President Moi, the most notable maladies of the colonial KANU Constitution were to be found in sections that accorded the President God like powers. In the Kibaki Constitution, there is no fundamental difference because the President is left with powers that effectively places his office above the law.
Kibaki wants the same powers as his former boss Mr. Daniel arap Moi. The document Kibaki has presented to the referendum cannot be ratified by any right thinking people anywhere and Kenyans are no exception.

The butchered Bomas draft that President Mwai Kibaki is urging Kenyans to vote for leaves the President with powers to hire and fire vital officers of the State, just like the days of Moi. The powers of the Prime Minister proposed in the Bomas draft have also been reduced to an extent that will make any Prime Minister an effective puppet or errand boy
of the President.

As Kenyans resident in Scandinavia, we have already studied the mutilated Kenyan Constitution in detail and our position is that Kenyans should reject it by voting "No". A Constitution that was written by Kenyans themselves in the name of the "Bomas draft" exists. It is this Constitution that should have been brought before Kenyans for a referendum, not the altered version in Kibaki's mangled brief case.

Political rags who have been mobilized to campaign for a "Yes" vote are well known for both their carpet-crossing and turn-coating at the slightest invitation to a "retreat" where they are routinely bribed to vote yes to even the most obscene bills that have come before Parliament. These political elites are in business, not to sell any products but to play with the future of Kenya.

Other traitors like Professor George Saitoti, the Minister of Education, should be in jail after stealing billions of Tax payer's money during the Moi dictatorship. The new Constitution should have contained clauses that make bandits who commit economic crimes like Saitoti to be charged with treason. The gang of fraudsters surrounding President Kibaki like Dr. Chris Murungaru, Mirugi Kariuki, Kiraitu Murungi, Simeon Nyachae, Moody Awori, Amos Wako et al have no credibility to sit in government, leave alone campaign for a "Yes" vote. Is it an exaggeration to ask Kenyans to show these hooligans the door?

Kibaki is leading a regime of tainted land grabbers who have been responding to past crimes by setting up bogus money guzzling Commissions which have ended up protecting the rich. Kibaki, who is leading the "Yes" vote, has himself sold the country to imperialism. Foreign soldiers are walking away with crime while grand children of former colonial masters are walking away with cold blooded murder in our country. What is more?

We still remember how Kibaki tried to convert Kenya into a one party state after taking power by suggesting that political parties should be dissolved. He failed when Kenyans rose strongly and told him to dissolve his own DP Party. That is after he lied on the Memorandum of Understanding and cheated Kenyans that he would create half a million jobs per year. The ailing President is on a new experiment with his half-backed Constitution and we believe he is going to fail again!

Minority tribes like the Masaai continue to be marginalized while other Kenyans continue to be collectively expelled from their land without alternatives. National resources like Tiomin have been handed over to foreigners to exploit while the national economy is firmly on the hands of imperialist institutions - many thanks to Kibaki!

Kibaki's campaign for a "Yes" vote is against a backdrop of landlessness that he has failed to address since he took over power. He is now telling Kenyans to accept a Constitution that will lease land to foreigners for 99 years. This is the same arrangement that has been protecting settler land grabbers in Kenya since the days of the colonial revolution. From our vantage point, we view the Kibaki Constitution as a document weaved to appease donors and to block the sharing of the national cake among all Kenyans!

Through the Privatization program, vital wealth producing institutions are being sold to multinational companies whose agenda is to deepen poverty in Kenya. The current Constitution is crafted to protect the rich property owners who form less than 10% of the Kenyan population. It is not intended to transform the lives of millions of Kenyans languishing in poverty.

Since Kibaki took power, political assassinations, human rights violations, torture in police cells, violent attacks on demonstrators, attacks on striking workers and numerous other undemocratic practices that were seen during the Moi dictatorship are back in Kenya. The bogus Constitution nursed by Kibaki's pimps and which Kenyans are being asked to accept is designed to maintain the status quo, entrench capitalist class rule and continue with the capitalist tendency of sidelining workers and millions of youth from the running of society. We say, oppose this Constitution!

The Kibaki Constitution is silent on the question of a minimum living wage for workers who are living on starvation wages. This Constitution must be opposed by a strong "NO" so that President Kibaki can go into quiet retirement. As Kenyans in Scandinavia, we are united with all Kenyans at home and abroad mobilizing for a "No" vote.

At this critical time of national crisis manufactured by President Kibaki and his kitchen Cabinet, we wish to condemn the Church for opting to remain neutral in the situation. By sitting on the fence at this point, the Church is eroding its well documented history of struggle when Moi was murdering people. The Church's current weak position is a betrayal of congregations they represent in Kenya because it amounts to telling their flock not to vote "No" in the referendum. This situation will only help Kibaki and it is for this reason that we also wish to urge the church to stop doing business with the devil that Kibaki has become. We urge the faithful in Kenya to defy their compromised Benz-riding figure-heads and vote "No". This will help the nation!

The government has said that it will use "every means available" to get it's way in the November referendum. We are confident that President Kibaki and thieves in his government are going to lose this game. We urge all Kenyans to take to the streets in case the President employs dirty Moi-like tactics and rigs the vote in his favor.

Kibaki was elected democratically. But this is the same case with Adolf Hitler in Germany whom, after his election, engineered one of the bloodiest genocides in the history of humankind. The Kibaki Kenyans elected is not the same person currently running against the wind, trying to get Kenyans to pass a counterfeit Constitution. We urge Kenyans to stop this old man in his tracks!

We, Kenyans in Scandinavia, expected any democratic Constitution to end the culture of Saidia naskini and to stop the tendency where only the rich have access to justice. The Kibaki Constitution is sending very worrying signals because it looks more like a project to protect the interest of the rich. We believe that there is nowhere in the world where a democratic Constitution can be written by traitors, reactionaries, opportunists, wealth grabbers, boot-lickers, political prostitutes and former red-eyed home guards. Let it not happen in Kenya!

Former dictator Moi was defeated through mass mobilization and there is no reason why Kibaki should not have a taste of the same medicine. The Yes campaign is doomed.

Fagilia Kibaki and his sycophants with a strong NO!!

Martin Ngatia: Kenya Peoples Democratic Movement (KEPEDEMO Mapinduzi)
Okoth Osewe: Kenya Socialist Democratic Alliance (KSDA)
Desmond Nyamu: Kenya Social Forum in Norway (KSF - Norway)
Betty Shangazi: Muungano Ya Akina Mama Scandinavia
Omariba Kadikiye: Organization of Kenyans in Denmark (OKD)
Christopher Omondi: Association of Kenyan Students in Finland (AKSIF)

Minority Rights Group International: It's a Betrayal"

2005-09-06T23:33:00.000-04:00

Kenya Delivers Constitutional Betrayal of Minority and Indigenous Peoples

Minority Rights Group International (London)
PRESS RELEASE
September 6, 2005
Posted to the web September 6, 2005

The Kenyan government has reneged on previous promises and removed all references to marginalized groups, minorities, pastoralists and hunter-gatherers from the proposed new Kenyan constitution document. Important gains for Kenya's poorest and most vulnerable peoples achieved during a three year constitutional review process have now been stripped from the document leaving them furious and betrayed.

Representatives of minority and marginalized groups called for the reinstatement of important provisions and warned that they would refuse to be governed by the present constitution if enacted. They have threatened to vote 'NO' in a referendum planned for November and have asked how their communities can recognize or be bound by the outcome of a 'fraudulent' process. Unrest flared in Nairobi in July when Parliament amended the draft document to ensure that extensive executive powers remained in the hands of president Mwai Kibaki. Kenyan rights groups see this as undermining the pursuit of equality, social justice and participatory democracy.

References to minority and indigenous groups have been removed from provisions that had previously satisfied their demands for recognition of their identity and rights in chapters on values and principles of nationhood, a bill of rights, representation of the people, and devolution of power. The Centre for Minority Rights and Development (CEMIRIDE) had previously welcomed provisions that, if implemented, would have promoted their rights, including through affirmative action programmes. Land rights protection and clear anti-discrimination provisions allowing full participation in public, economic and social affairs have all been removed despite previous guarantees.

A joint statement signed by representatives of Kenya's minorities and marginalized groups stated: "While a good constitution should be a bastion for the marginalized, vulnerable and the weak, this proposed new constitution ensures that the lot of the poor remains unrecognized and further exposed to the whims and machinations of the mighty".

A 2005 report by Minority Rights Group International (MRG) and CEMIRIDE, Kenya: Minorities, Indigenous Peoples and Ethnic Diversity demonstrates the growing inequalities between communities and the intolerable situation faced by some communities including the Turkana, the Endorois and the Ogiek. They are often unable to gain access to resources and opportunities, cannot own land and are the frequent victims of development policies. Minority Rights Group International supports the call of Kenyan human and minority rights groups and communities for the Kenyan government to halt the planned November referendum process, establish a national platform to urgently review amendments and resolve potential conflicts, and to reinstate all provisions relating to the protection of minorities and marginalized groups.

Kivuiti tells Government Not to Say Yes...or NO...

2005-09-06T19:38:00.000-04:00

From the Daily Nation....

Wednesday, September 07, 2005

South Africa's Business Day Calls it Charter for Disunity and Confusion

2005-09-06T17:21:00.000-04:00

From South Africa's Business Day

A Charter for Confusion, Disunity

Posted to the web on: 06 September 2005

Mike Asquith, , Nairobi correspondent

A MONTH after the end of parliamentary discussions on the substance of a new constitution for Kenya, a revised text — drafted by attorney-general Amos Wako — was released last month. The proposed constitution is, in the opinion of Constitutional Affairs Minister Kiraitu Murungi, “very progressive, indeed one of the best in the world”.

Perhaps, but in view of the rioting that attended parliamentary discussion of the text it is not surprising that important sections of Kenyan society dispute that assessment. Indeed, the extent of opposition raises doubts about whether the draft will even be presented to the electorate for approval before the expiry of the 90-day deadline in mid-November.

The challenge facing Kenyan President Mwai Kibaki and fellow proponents of the bill is considerable. Attempts to convince Kenyans of the merits of the latest draft are severely undermined by the opposition of the Liberal Democratic Party (LDP), a key component of the Kibaki government.

That the administration finds itself so divided is predictable. The coalition between Kibaki’s National Alliance of Kenya and the LDP before elections in 2002 was founded on the understanding that presidential powers would be reduced within 100 days. Thereafter LDP leader Raila Odinga was to assume a newly created prime ministerial post, vested with executive powers.

Kibaki’s subsequent endorsement of a constitutional draft that leaves executive authority in the hands of the president has brought five LDP ministers into open opposition to the leader’s stance, and forged an alliance between the LDP and the main opposition Kenya African National Union (Kanu), led by Uhuru Kenyatta, to campaign against the Wako draft.

So far, Kibaki’s response has been to accommodate dissenting views within his cabinet. However, reports in the local press indicate that dissident ministers have been told that they face dismissal if they continue their opposition to the government line.

Still, while pressure on the LDP ministers to switch allegiance is certainly increasing, it is equally clear that Kibaki will be reluctant to use the threatened sanction.

On the one hand, doing so risks the disintegration of his coalition. On the other, he will be mindful that, having refused to dismiss Transport Minister Chris Murungaru earlier this year following accusations of corruption, sacking opponents of the draft will invite unpleasant assessments of his priorities as leader.

Opposition to the bill is not restricted to concerns over the location of executive power within government. Troublingly, from Kibaki’s perspective, certain provisions of the text have incited the opposition of powerful factions, in particular the religious community.

Church leaders were swift to condemn a provision that potentially opens the way to the legalisation of abortion. Of even greater concern is an innovation that appears only in the latest draft of the document, which provides for the establishment of Christian and Hindu courts to decide on certain family law disputes. Quite what this provision means in practice is unclear, particularly in terms of the body of rules that such courts would apply. However, as a means of securing backing of Christian groups for a constitution that also recognises (existing) Islamic courts, it appears to have backfired. Besides denouncing the inclusion of Islamic courts in the text, church leaders have criticised the creation of Christian courts both on theological grounds and on the basis of mundane fears about the costs associated with a proliferation of jurisdictions.

Whether Christian groups can be convinced that the draft is, on balance, to their advantage, remains to be seen. However, one key obstacle to attaining this objective is the level of confusion among the public on the actual terms of the text. Sadly, some interventions by parliamentarians have served to perpetuate voters’ bewilderment. Kibaki was swift to reject claims by LDP cabinet minister Najib Balala that two versions of the constitutional text were in circulation, one of which had been doctored to remove controversial elements.

But despite urging Kenyans to scrutinise the document before passing judgment, Kibaki himself appeared to feed the confusion when he recently affirmed that certain provincial and district administrators would not lose their jobs after the enactment of the new constitution. On a very narrow interpretation, this is correct. But he did not go on to say, as attorney-general Wako did subsequently, that the draft provides expressly for the elimination of the provincial administration after the lapse of a six-month period during which alternative structures will be established.

The extent of popular confusion over the constitution only increases uncertainty as to the outcome of a referendum on the constitution. Kibaki may be hoping that Kenyans will be willing to assent to a document that they regard as partially flawed, if only to bring to an end a painfully drawn-out process of constitutional review. Yet the possibility remains that the referendum itself will be postponed and further thought given to the substance of the text.

Besides abundant precedent for delays to the process, Kibaki will be deeply reluctant to expose his government to defeat, particularly when the leaders of the campaign against the current draft are the men most likely to challenge him for the presidency in 2007.

IPS Story by Joyce Mulama: Controversial Law to Sail Through?

2005-09-06T17:12:00.000-04:00

KENYA:
Give Rights Precedence Over Realpolitik - NGOs
Joyce Mulama

NAIROBI, Sep 6 (IPS) - Human rights groups in Kenya have expressed fears that a controversial piece of anti-terrorism legislation may be pushed through, in the wake of complaints by the United States and Britain that the country's efforts to clamp down on terrorism are unsatisfactory.

The draft 'Suppression of Terrorism Bill', first put forward in 2003, was withdrawn last year following widespread criticism.

Amnesty International says it is concerned by the law's "vague and broad definition" of terrorism and terrorist acts, and the wide-ranging powers it gives authorities to search and detain persons in connection with terrorist activities. Under the proposed legislation, police would have the power to arrest people and conduct searches without a warrant.

Amnesty has also condemned the bill's "denial of the right to legal representation during interrogation", and other aspects of the proposed law. The bill makes provision for suspects to be held incommunicado for some time after their arrest.

Reports indicate that Kenyan authorities now wish to re-introduce the legislation. This follows U.S. and Israeli criticism of a Kenyan court's decision to release seven persons implicated in a November 2002 attack on a hotel near the coastal resort of Mombasa -- which claimed 16 lives. (The ruling was handed down in June.)

The suicide bombing of the Israeli-owned hotel coincided with an attempted missile attack on an Israeli aircraft taking off from Mombasa's airport. Three other persons detained in connection with the matter were acquitted earlier this year after the state failed to provide sufficient evidence against them.

Kenya was previously the victim of a terrorist attack in August 1998, when the American embassy in the capital, Nairobi, was bombed -- resulting in over 250 deaths. Almost simulataneously, the U.S. embassy in the Tanzanian capital of Dar es Salaam came under attack. The 1998 and 2002 incidents have been linked to al-Qaeda, the global terrorist network.

British officials have also spoken out concerning Kenya's approach to terrorism.

"I think Kenya acknowledges that the current legislation is less than adequate," Deputy High Commissioner to Kenya Ray Kyles told IPS. "We will support any measures which will strengthen Kenyan legislation to fight terrorism. We have had discussions on this with this government since it came to power (in December 2002)."

Two attacks were launched on the public transport system of the British capital, London, in July. The first, on Jul. 7, resulted in the death of about 50 people.

The second, unsuccessful attack took place Jul. 21. Two of the men arrested in connection with this incident have links with East Africa: 24-year-old Yassin Hassan Omar emigrated to Britain from Somalia at the age of 11, while Ibrahim Muktar Said -- 27 -- came from Eritrea in 1992, when he was 14.

Rights groups are apprehensive that Kenya's response to criticism of its record on terrorism might translate into a quick passage for the Suppression of Terrorism Bill as it currently stands.

"We are wary of the possibility of the government responding to the utterances of Britain and the U.S. without taking into consideration the human rights violations in the bill," said Ekitela Lokaale, programme officer at the Research and Advocacy Unit of the Kenya Human Rights Commission, a non-governmental organisation (NGO).

Noted Mbugua Kaba of the Nairobi-based NGO People Against Torture, "We forwarded our recommendations for consideration by the government and we are now waiting for the redrafted version."

"We will scrutinise it and see if it is satisfactory. If not, we will shout again."

Kenya, Tanzania and Uganda are presently conducting a joint exercise in counter-terrorism, in Nairobi. The operation, named 'Trend Marker', is being held under the auspices of the East African Community (EAC) -- a regional organisation that groups the three countries.

Reports indicate that the drill is intended to help develop what the EAC secretariat describes as "standard operating procedures" for combating terrorism. Plans are also afoot to set up a joint information and intelligence network which will monitor terrorist activities in the region.

More than 150 people are said to be taking part in the exercise, which is drawing in officials from a range of government departments who may come in contact with terrorist suspects.

While Kenya and Tanzania have been the target of attacks, concerns are frequently expressed about the extent to which Somalia (another of Kenya's neighbouring states) could serve as a base for international terrorists.

The country collapsed into lawlessness in 1991 after dictator Mohamed Siad Barre was toppled by tribal militias, who later divided the country into rival fiefdoms. Hundreds of thousands of Somalis have lost their lives in the ongoing conflict that has plagued their country -- and the famine which this violence helped create.

A new Somali government was formed last year in Kenya. However, the administration has been unable to establish control of Somalia's capital -- Mogadishu -- which is still in the hands of faction leaders. It is feared that terrorists could take advantage of the disarray to use the country as a base of operations. (END/2005)

Mike Mills: 'It's End of the Road for Kenya's "New" Constitution

2005-09-06T13:58:00.000-04:00

It's End of the road for Kenya's "New" Constitution:

By Mike Mills, KARA Founding CEO, Scotland, United Kingdom

Every edition of the KARA Newsletter is read and digested thus forming part of my appreciation of what is going on in Kenya. There were some statistics that I was once shown by Mr. Harvey Croze on countries achieving independence over the last 250 or so years. From memory, the bottom line was that they went downhill for the first 40 years before bottoming out and turning around - but it took at least another 30-40 years for them to claw back to where they were economically and socially when they achieved their independence. They then do a little better for a while as the line levels off.

We've done the 40 years so now we must bottom out and start the return journey - the bottoming out is the rocky part that we are going through now.

Responsibility

One of the important things that we need to recognize, as a country, is that we must take responsibility for ourselves. At some time in every country's history all (or some) of the people have been subjugated. I don't hear the Americans blaming Britain for their woes (they were a colony before their independence!) and I don't hear the British blaming the Romans ... , etc.! Lovely as it is to shirk our responsibility, at 42 years old we (Kenya) are now adults and should be behaving as such.

This is one of the axes I have to grind with the World Bank/IMF social globe - too many hand outs and too little accountability. The gain, naturally, is that these global organizations continue to subjugate the vulnerable countries of the world and maintain their colonizing influence. Ultimately, the only way forward is to take responsibility for ourselves and emulate the American evolvement, Japanese evolvement, German evolvement, Chinese evolvement etc. Until we change our culture to one of independence we will never move forward.

The past is just that. Over the years we have accumulated a vast amount of baggage. Our journey ahead only involves the future and we can make the decision to move forward at any instant in time and that instant will be the start of our new future. What is important, as we take this leap into the future, is that we carefully review our baggage and only choose to travel with the luggage that will be useful in our journey ahead. We can not yet afford to travel 1st class so our luggage should be little more than we can comfortably hand-carry ourselves.

End of Road

I am no longer in close enough touch to speak knowledgeably on the proposed constitution. My general thoughts on the whole process have been previously documented and published. We are now at the end of the road with, hopefully, only one further major expense ahead of us - the referendum.

I would like an assurance that, whatever constitution we end up with, it will be subject to unfettered input from the public and the 3 arms of government and that the judiciary will be free (security of tenure) to interpret the constitution into a "living document". This will ensure that our new(?) and imperfect constitution progressively represents the evolving society within which we all live.

With the two above, the subsequent practical development of such interpretation, we can look forward to a bright future. Should either element be found wanting then we will again be consigned to the depths of despair.

Tom Kagwe on the Good, Bad & The Ugly of the Wako Draft

2005-09-06T13:39:00.000-04:00

THE CONSTITUTIONAL DEBATE: THE GOOD, BAD & THE UGLY OF NEW BILL

By Tom Kagwe, Research Consultant, Nairobi (from the KARA newsletter)

The following principles could summarize what Kenyans wanted in the new constitution and be used to critically assess the Draft Constitution of Kenya (2005). That the new constitution should:

(a)Recognize the sovereignty of the people;
(b) Ensure separation of powers and maximum checks and balances;
(c) Enhance supremacy of the constitution and safeguarding of constitutionalism;
(d) Promote people participation in governance through devolution;
e) Enshrine an expanded and enforceable bill of rights;
(f) Deconcentrate powers of president;
(g) Enhance fair and equitable distribution of national resources and opportunities;
(h)Enhance equality, equity and mainstreaming of gender;
(i) Ensure affirmative action for people with disability, minorities and the marginalized; and,
(j) Ensure a comprehensive, genuine and fundamental change from the current Constitution.

The Good:

The powers bestowed in the presidency in the current constitution have been reduced to an extent; separation of powers have been maintained to an extent where the president cannot hire and fire all public officers at will and the legislature and judiciary are fairly independent; people's sovereign authority has been recognized but this is subject to debate given that devolution of powers begins at the district, and not at location as recommended by Bomas Draft. Generally, the Wako Draft is better than the current constitution it seeks to replace but not to the extent of being a radical departure from the current.

The Bad:

While the directive principles of State policy enshrined in Chapter 3 were obligatory to the state in the Bomas Draft, Wako Draft removes that obligation. Further, while the three generations of human rights exist in both Drafts, the Wako Draft has stated that the enjoyment of these rights depends on resources and those who feel that such rights have been violated, go and complain to the Commission on Human Rights and Administrative Justice. Thus, the onus of proving that the state had resources and refused to meet the 2^nd and 3^rd generation rights lies with the individual. Further, scrapping the Senate and having a forum instead does not augur well with the rights of district governments to participate in national debate and legislation. In terms of women gains in the Bomas Draft, scrapping of the Senate has reduced such gains.

The Ugly:

Generally, the Wako Draft has some ugly provisions, which betray the spirit, principles, and objectives of the review. For example, Wako by equipping the presidency with powers to hire and fire ministers at will, and determining the size of cabinet and the leeway to bring at most 20 percent of members of cabinet from outside at will, this is indeed ugly. Further, the presidency has been given the powers to create and abolish public offices, and appoint (through parliament) but fire at will holders of such offices! Another example would be that Wako Draft has expunged the reference and the rights of the marginalized and minorities. This has been done through and through the Wako draft. This is contrary to the principle ensuring affirmative action for people with disability, minorities and the marginalized. Further removing safeguards against abuse of nolle prosequi in unpalatable having seen how these powers have been abused in the recent past - powers that have now given to the future Director of Public Prosecutions.

NCEC Unleashes Report on Naivasha Job Seekers' Demo

2005-09-06T11:44:00.000-04:00

From: "NCEC"
To: LIST DELETED
Subject: Naivasha Demonstration Report
Date: Tue, 6 Sep 2005 13:19:37 +0300

Dear All,

The attached documents i.e. the report, list of job seekers and demonstration photos are in connection with the demonstrations held at Naivasha on August 22, 2005. The demonstrations were organized by people who have been assembling outside the Naivasha Labour Office for the last six months seeking to be recruited as workers in the ongoing European Union-Kenya Government jointly funded Mai Mahiu- Naivasha- Lanet road construction project. The demonstrations were broken by police and some human rights activists arrested and charged in Naivasha law courts. The report provides more information. The issue is not yet resolved.

Ndung’u Wainaina.

Programme Manager,

National Convention Executive Council.

P.O. Box 11996-00400

Nairobi, Kenya.

Tel: 254-20-4446313/5974

Fax: 254-20-4445973

E-mail: ncec@ncamovement.org

wainainagn@yahoo.co.uk or wainainagn@ncamovement.org

THE IMPUNITY CULTURE AND QUESTION OF SOCIAL, ECONOMIC AND CULTURAL RIGHTS VIOLATIONS: MAI MAHIU- LANET ROAD CONSTRUCTION

Background

The National Alliance Rainbow Coalition (NARC) administration pledged to rehabilitate Kenya's dilapidated road network and construct new roads network in order to accelerate the transport, distribution of goods and jump start Kenya's economic growth.

The project is anchored on the framework that was established by Kenya Roads Board in 2001 with the mandate to develop and manage the road infrastructure in the country. The project did not take off as planned then due to combination of various factors. Some problems that dogged this noble project included lack of adequate funding, diversion of funds meant for road maintenance, and corruption.

In order to chart the way forward the NARC government, the Kenya Roads Board and bilateral donors/development partners have started on the path of reforms that seek to enhance the availability of adequate resources to support road infrastructure construction, maintenance and management.

The European Union, one such development, has committed ˆ55 million for the reconstruction of the 96 km Mai Mahiu – Naivasha – Lanet section of the Northern Corridor -Mombassa to Eastern Democratic Republic of Congo. A works contract between a French construction company called Sogea Satom Construction firm and the Government of Kenya (Ministry of Roads) was signed on 17 December 2004 and the work on the project started in February 2005.

PROTEST

The Sogea, main contractor, sub-contracted the H. Young Construction Company. In the beginning Sogea indicated that it would recruit 230 employees- 70 of them technical and 130 casual laborers and drivers while the rest were not defined. By August only 57 employees had been employed though their job description was not disclosed. The recruitment procedures and rules are left to be set and executed by the recruiting company and or agent. On the other hand, in the same time H. Young required 500 workers- 250 skilled and 250 unskilled. Within the period, January to August 2005, the company had recruited 150 workers whose category is unknown. The common feature in the recruitment process in the both companies is that jobs are not advertised; people just went to seek for jobs once the tender was awarded.

People started camping at Naivasha Labour office. The labour officer was expected to be in charge of recruitment since the labour office was approached by Sogea to assist in the recruitment process.

An agency called Naivasha Environmental Initiative which is led by Naivasha Constituency Development Fund Chairman a Mr. Danson Macharia won uncompetitive recruitment consultancy (there was no tender bidding) and given the responsibility to recruit on behalf of Sogea. The agency assumed the labour officer’s office from where it conducted the recruitment process for three months.

The Initiative introduced some forms for job seekers to fill (application forms) and the seekers were required to get Certificate of Good Conduct from Police station (CID offices). Over 6,000 applicants applied.

Complaints started immediately the agency started the three months consultancy on allegations of discriminations of local people and corruption. After three months the agency closed leaving the applicants in the hands of labour office without even providing information on status (outcome) of the recruitment process (short listing). When people demanded to get the results, the labour office dumped the application forms outside the offices for applicants to sort out their papers. The ones that were not taken were burnt.

Meanwhile people were still being employed through unprocedural ways – not in open competition. The job seekers started coalescing into an organized group. When they started protesting over discrimination and corruption their leaders were picked and offered jobs by the Sogea and H. Young officials. While most of those interviewed and qualified were not given information on when to start working. In summary their grievances were that:-

a.Denial of information on employment procedures and posting stations.
b.Local people were being discriminated against
c.Corruption
d.Sexual harassment/exploitation for those seeking jobs and those already employed.
e.Physically challenged are discriminated

Memorial

During Fr. Kaiser’s Memorial organized on 20/8/05 by FIDA-Kenya, KHRC, CRECO, KNCHR, FEMNET, Men for Gender Equality, Association of Sisterhoods of Kenya, CJPC and among other organizations (human rights NGOs and religious organizations), a legal clinic and public forum was conducted where job seekers among other participants came and stated their problems. They said that they were organizing a demonstration which they had given police three days notice as required by the law.

On Saturday 21/8/05, Councilor. Rahab Wairuri, a human rights activist for many years, was summoned by District Criminal Investigation Officer (DCIO) on allegations that she was organizing demonstration/protests. She denied the allegations and told the DCIO that during the legal clinic people openly said that they had notified the police on the protest and in the afternoon during the open public forum the issue emerged. Therefore it was not a secret. Councilor Rahab was forced to record a statement and the Naivasha OCS Richard Kutto declared the August 22, 2005 demonstration illegal.

On 22/8/2005 people assembled at the Naivasha Catholic Church grounds and insisted to proceed with the demonstration even if the OCS had declared it illegal. People went around the town with no violent incidences but when they got to Sogea offices they were confronted by police led by the OCS. The OCS accompanied by junior Sogea officials ordered people to disperse.

People refused to disperse and instead asked the OCS to bring the top officials of Sogea as the public believed that they were being misled by junior officers and the personnel on the ground. The OCS agreed and requested that he be given 20 minutes to bring those officials. But when he returned he turned violent and ordered the police to disperse the crowd.

Cllr. Rahab and another human rights activist Njoroge Waithera refused to disperse demanding that the OCS provide the information he was asked to go and get. Both were arrested and taken to Naivasha Police Station. They were charged under section 83 of Penal Code – rioting after a proclamation had been issued contrary to Section 83 of the Penal Code. They were taken to court the following day 23/8/05 and released on cash bail of Ksh. 8,000 or Ksh. 20,000 surety (US$1 = Ksh. 76).

On 24/8/05 Cllr. Rahab got a call from the area Chief. Mr. Hassan and told her that she was needed at the District Officer’s office- the name of Naivasha DO is Mr.Kaunda Maikara. She went accompanied by Mr. Kamanda Mucheke of Kenya National Commission Human Rights, Mr. Gitau Wanguthi of Release Political Prisoners Pressure Group, Njoroge Waithera and lawyer Mbugua Mureithi.

In the meeting, Mr. Kamanda said that it was a government policy that local people benefit from projects that are being undertaken in the local areas. The DO agreed on this principle and invited those present for a stakeholders’ meeting in the afternoon at his office.

Those present at the Stakeholders’ meeting were:

2 representatives of Sogea
1 representative from H. Young
H. Young Security officer
12 Councilors (10 from Naivasha Municipality and 2 from NakuruCounty Council)
Mr. Danson Macharia (Naivasha Environmental Initiative )
Naivasha Labour officer
National Security Intelligence Service officer
OCS Naivasha PS

The DO and Sogea officials demanded to know from Councillor Rahab the role of human rights groups and their interest in the whole recruitment process. In response Cllr. Rahab told the meting that the groups advocate for social justice and equality but the DO said it only happens to those employed but not unemployed people.

In order to reduce tension (generated by the demonstration) and after Sogea officials indicated the work force the company needed, it was decided that each councilor produce two people to be employed(induced to keep silent) while the rest be brought by area chiefs and other leaders. This is even after the NSIS official and Cllr. Rahab pointed out that the protestors originated from within Naivasha region and they had been in that site for over six months and therefore be given first priority. The job register had 536 applicants (326 manual labour, 60 drivers and 150 0ther departments).

The DO ordered that the rule of the majority prevail. While still there, Sogea officials claimed that threats had been issued to them and in response the OCS assured them of maximum protection. OCS declared that everybody should know that he will never give permit for people to hold demonstrations against private companies and or private residents. The OCS also declared that those assembled outside labour offices were doing so illegally (considering people had camped there for 8 months without any threat) and would henceforth be arrested. When the OCS was asked where people will be getting information, he retorted that the company will be contacting them wherever they are. These 536 applicants are seeking assistance to restore their rights.

Deductions

1.0. Impunity

The core mandate of any system seeking to redress impunity is that the perpetrators of serious violations of human rights should be required to shoulder their responsibilities. The violations of economic, social and cultural rights can be committed by State, national or international private organizations, individuals or groups of individuals. However, when a State allows individuals to commit acts on its territory which constitute violations of economic, social and cultural rights it bears responsibility for them and must ensure that the acts do not go unpunished.

Combating impunity means in practice combating the failure to apportion blame or the inadequacy of the penalty which is or should be imposed, both in terms of punishment and in terms of redress.

The obligation to promote and protect all fundamental rights goes hand in hand with the obligation to punish the perpetrators of violations of those rights and to make amends for the wrong committed and the damage caused.
Therefore the State and Sogea Company should be held accountable in Naivasha case and the appropriate measures taken to ensure a remedy is obtained.

2.0. Corruption

The word "corruption" means the abuse of public trust for private purposes. Corruption may exist independently of any financial benefit; it is universal and multiform. Admittedly, there are several definitions of corruption in existence but it can be said simply that corruption means the abuse of an office for personal ends. The office here may be public or private. An individual abuses the public confidence placed in him/her to serve his own interests or those of the group. Corruption takes many forms and involves such actors as civil servants, businessmen, private individuals or companies. The external factor intervening in the decision-making process influences the unwarranted benefit to the decision maker or executive in the form of a gratuity or the promise of a gratuity.

Several examples on how corruption can be deduced will assist dealing with Naivasha Case. A businessman, working within the law, who slips an inducement across the table, is generally pursuing an end corresponding to the interests of his company. The act - though reprehensible - thus comes within the framework of the normal operation of the enterprise. This is also the case of the politician who, in his own interest or in that of his party, tries to cover up a financial scandal but cannot do so without the help of other persons whose action or inaction he purchases. Another area very propitious to corruption is nepotism. This is a phenomenon extremely difficult to pin down but, since the criterion of competence has been replaced by that of favouritism, it creates between the decision maker and the beneficiary of the decision a link of dependency which may well influence future decisions.

In all these cases, corrupted and the corrupter are not accomplices but each is the perpetrator of a distinct offence, subject to its own procedures and punishments.. Both the corrupter and the corrupted can be civil servants, State agents, private individuals or elected officials. Corruption thus creates a dual responsibility: the corrupted is just as responsible as the corrupter. This dual responsibility gives rise to the fact that both parties are liable to punishment. Corruption can also engage the responsibility of the State if the latter is organizing it through the operation of its organs or when, by a permissive attitude, it accepts the fact that private entities or private individuals are practising it.

In Naivasha case, the state apparatus, Sogea officials and the local councilors’ actions may be interpreted as forms of corruption when one examines the report on what have been the issues in the recruitment process.

3.0. Violations of the Right to Work

The unemployment situation in Kenya is rather pathetic due to injustice and imbalance engendered by the country’s economic system. Unbalanced wealth distributed has created a situation where unemployment is a daily concern for the individual as well as for society and the search for work therefore a priority. Unemployed and their families who are affected by job instability or insecurity are extremely vulnerable to exploitation.

The working groups equally face serious violation of the worker's rights. Violations of the right to work take several forms; substantial falls in wage levels, increased levels of unemployment; reductions in worker protection in terms of occupational health and safety standard, limitations on the right to strike, weakened bargaining power and violent social conflicts.

In conclusion, the arrest and subsequent arraigning in Naivasha law court of Councilor Rahab and human rights activist Njoroge Waithera charged with an offence whose sentence is life imprisonment is an infringement on the fundamental rights and freedoms of the two. Secondly, the people have an inalienable right to expression, assemble and fair treatment. Thirdly, people have right to work and livelihood. And finally, the human rights movement needs to develop a strong working relation within itself and confront any form of impunity collectively.

Report complied by
Ndung’u Wainaina

MUUNGANO WA KAZI NA RIZIKI

P.O. BOX 94 NAIVASHA

LABOURERS

DAVID MUNIGURU FORM NUMBER 625
DOMINIC NYAGA (Crusher Plant Attendant) 4850
PAUL NDURU KIMANI 1437
PETER KARANJA 163
NAPHTARY ODHIAMBO 2279
GATOGA NJUGUNA 271
PETER MUTURI MWANGI 444
NELSON GICHEHA NDITHIA 302
TOM CEMACO 324
PETER MUIGAI
BAARIU PETER 272
JAMES NDUNGU 1797
JOHN NGANGA WAWERU 1486
DANIEL KINYUA DIRITU 1413
MOSES KARANJA NGUGI 1280
EPHANTUS KARIUKI MUKERI 1120
GEOFREY NGANGA NJUGUNA 825
DAVID PARSEEN KITAIKA 602
KAMAU NGANGA 383
CYRUS WALUBENGO MASAFU
MIRIAM WAIRIMU
JOHN KIARIE KURIA 722
ROBERT MWANGI 482
MOSES WACHIRA KANYI 2468
PETER MUIGAI NJOROGE 1426
STEPHEN MUCHEMI MURIITHI 856
STEPHEN MWANGI NDIRITU 483
ISAAC GAKURU MAINA 626
HERY MBACANYA AMUHISA 2054
SIMON NGANGA KIMANI 1690
JAMES KINYANJUI NDONO 1645
JOSEPH CHANGE NDUNGU
JOHN KANYI MAINA 2456
PETER WAINAINA MUNGAI 990
NAHASHON MUIRURI WAWERU 2316
GEORGE WAIRANGE MURA 767
PANUEL KAMAU MAINA 414
SAMUEL MAINA KARANJA 2173
HENRY OLWAYI ALEMBI 1748
BENDICTO MUKUNGAI ANJALA 966
WYCLIFF MUNYONGA 2094
THOMAS BARASA MUKHANU 190
SAMUEL WANGAI WAINAINA 2458
GEORGE KIMANI WAWERU 73
HAZRON KAMAU WANJA 2258
NAPHTIAT ODHIAMBO OKOTH 2279
KENNEDY MURIITHI NYAGA
JAMES ODHIAMBO TANGA 2269
HENRY OTIENO ONYANGO
FRANCIS KIMANI NJOROGE
MARTIN MWICHIGI NJIHIA 439
CHARLES GATERE WANYEKI 200
JESII KARANJA WANJA 1415
KAMAU
JOSEPH KARUGIA NJUGUNA 1409
NDEGWA JUMA
GABRIEL MWATHI KARIUKI 1351
PHILIP KAMAU NYAKIBIA
ISAAC KARANJA NDUNGU
GEORGE KURIA MWAURA 1654
MOSES WAMALWA 1638
PATRICK ABERI
ROSE WANJIRU MWANGI 44
CATHERINE MAGIRI KAMAU 45
CATHERINE MUTHONI MURIITHI 268
REMI ORIYANA CHANDEE
JOHN MWANGI 3630
SIMON KIMANI
STEPHEN MWAURA GICHARU
JOSEPH BMWAURA 103
PETER MWANGI 100
MUNGA THIRU 99
DORCAS WANJIKU 237
JOHN MUTHAMA
SIMON NGARUIYA 878
MONICAH NJERI MWANGI
DAVID MWANGI WAITHAKA 146
KIMANI GITHINJI MUBIA 450
EZEKIEL GACANJA THIONG’O 1354
JULIUS MUTAHI KABIRU 421
BENSON MWAURA 2463
LUCY WAITHIRA MWANGI
SIMON MUIRURI NJOROGE
PETER MUGI MWANGI 1427
RUTH WAITHIRA KAMAU 1345
DAMARIS WANGECHI KIMUNYU 1602
MOFIA KIMANI
PAUL KIOGORA
KIHARA KIMANI
JONES ONDIMU NYABWARI 3958
PETER MUCHIRI NJOROGE 849
ROBERT KIPENGENO CHERUIYOT 1919
ZAKARIA MUGERA 179
PETER MUORIA 1352
SAMUEL NJATHI
SIMON GITAU
EDWIN KARIUKI NYAGA
MARTIN KHAMALA WANGILA 1721
STEPHEN NDABA NJONGE
CLAUD MSAFIRI 130
JOHN KAMAU NJOROGE 92
DAVID MUNYORU GACHIRA 1316
FANUEL AMUGUNE SHICHUMA 1283
JULIUS KARIUKI WAINAINA
JAMES WAHOME MUTHONI 30
RAPHAEL KIMANI KOIGI
STEPHEN KIMANI KAMAU
PETER NDUNGU NGIGI 4806
ANNE WANGUI GACHIRA 4011
PETER MAINA
NAOMI WAIRIMU
JOSEPH MWANGI GAITHO THOME
ELIZABETH WANJIKU
HUDSON LISERO
PETER MUKORA MBURU
HARON GITAU MBURU
SAMUEL MUIGAI WAMBUGU
PETER KINYUA
PETER MUKERA MUIRU
EVANS KITUI 1779
ISAAC KAMAU DAVID 573
BETH KARANJA 1900
SAMUEL KIPKENUI KOSKA 67
MESHAK THUO 738
PETER KAHIDI
SIMON NDEGWA
NDUNGU MBURU
FRUY GITAU
JOHN MAINA MURIGI 4415
JOEL WAINAINA 4848
DAVID MWANGI
PAUL WANJOHI 617
STANLEY KARANJA
DANIEL GITAU
PAUL NJUGUNA KINYUA
RICHARD MUTAHI
ANTONY MUNGAI KAMUYU
STEPHEN THUKU MUHIA
SIMON WAWERU MWANGI 806
PETER MUORIA TERESIA 1352
ZACHARIA OKINYI MUGERA 179
STEPHEN NDABA 77
JAMES KIMUNYA 15
JOHN MACHARIA KIMANI 213
ELIJAH WABOGU MALIUHA 293
HARISON MAINA GACHERU
KAMATA
FRANCIS KIMANI MUNGAI
BONIFACE MURIMI 1301
EDWIN MBARAZA
JAMES MWANGI 186
DANIEL WACHIRA 185
PETER GITUNDU 1556
CHARLES THIRU 4875
JOSEPH NGUYO WAITHAKA
JOE SHAGUYA CENTRA
ISAAC NYANDIKA 67
JOSEPH I. MWANGI 221
JOSEPH MURENGA NBIBA 1264
MOSES KANDENYE KIMANI 1520
EDWARD G. KARANJA 774
JAMES GICHIMU GICHUHI 634
JAMES KABIRI KIHARA
MOSES WACHIRA KANYI 2468
JOHN O. MATHEW 2585
PETER GATHUKA MUTURI 1311
KAMAU MUNGAI
SIMON NJOROGE WACHIURI
ALEX GIKONYO MBATIA
JOHN KOIGI KIMANI
KIMANI MAINA
JOSEPH OMURABI CLECKER
CHARLES NDUMIA
JULIUS OKOYO
JOHN ONDIMO ONYOTE
STEPHEN KAHWITHU
MOSES MWANIKI NASHON
MUCHUGI MUIRURI
NGANGA ITUTIRE
SULEIMAN KIMANI MACHARIA 3001
JOB OWARA
JOHN MAINA MWIRIGI
KARIUKI PETER MUCHIRI
JOSEPH KIARIE
JOHN MWANGI
JOSHIA NDUATI
WAINAINA
PAUL DAFA GACHINA
DOMINIC MOCI
JOHN GACIE MWEMA
NAPHTARY O. OKOTH 2279
CHARLES MWANGI
WANYOIKE MWANGI
JOHN MAURA MACHARIA
BENSON MBUGUA
ISAAC LUTERE
GIDEON WARUI
JACKSON WACHIRA
JAMES MWAURA
PAUL MAINA
DAVID KIGORI
NAFTARY KOMBIA
PATRICK KARANJA
JOASH ANASA AMBANI
STEPHEN LASAIO KARUSWE
TOFIL BARASA
DICKSON OCHIENG WISWA
ASTON MKANZI
WAINAINA NDUATI
ALICE WANJA
JOSEPH KAMAU MBURU
NDUNGU IKOROI
GACHAGUA KIHUGA

DEAF PERSONS

DANIEL OGEMBO OTIENDE (Store-keeper)
JOSEPH NGECHI (Building Construction)
LOISE WANGECHI (General work)
MARY WANJIRU (General work)
JOSEPH WANYOIKE (General work)

DRIVERS

CHRISTOPHER MUIRURI KIARIE
GEOFFREY MATHENGE
JOHN CHEGE MWANGI 1156
CHARLES NJUGUNA 2006
ZAKAYO KINYANJUI 4578
DAVID NGUGI 4322
SAMSON NJUGUNA 11741
DAVID IRUNGU 1197
DAVID MBURU 3942
MAINA KINYANJUI 3920
PETER NDIRANGU 2930
PETER NJENGA 3763
FRANCIS WAWERU 4745
SAMUEL GICHINA 2509 2509
KELVIN OLUOCH 1930
PAUL KAHENYA
AKOLI EPETET
GODFREY MUKOMA KARANJA 212
JOHN NJUGUNA KAMAU 841
JOHN NDUNGU MUKORA 840
PETER MUIGAI 3672
PAUL .W. MWANGI 457
PETER K. GICHEHA
RUBEN GITHENDU 1236
DAVID MUGO 4721
JOSEPH M. KIOMO 374
PETER KAMAU WAMBUI
PAUL GATAMA NDEGE
SALOME KABEBE
JAMES M. NJOROGE 4317
JAMES MAIGWA
MICHAEL N. MWANGI 4318
JOSEPH N. MWANGI 4728
PAUL KIHARA
JOSEPH MARETE
STEPHEN MBURU ITOTIA
MWANIKI GACHIGUA
JOHN MAINA MUTHUA 80
SIMON K. MAINA
JOHN KIARIE KURIA 722
ISAIYA WAINAINA KIMANI
NJENGA CHEGE
MUTHOKIA NDUATI
JOSEPH K. NJUGUNA
SIMON NGIRAU MUTURI
SHADRACK LOROT
BOBY MACHARIA
GEORGE MWANGI NGUGI
JOHN WAWERU MUNGAI 1459
DAVID MBURU MWAURA
JORAM KARANJA KANYUA 2584
JOHN KARIUKI NJUGUNA 2583
JOHN MWANGI KARANJA 678
RUKENYA NGARE
ALLAN MWANGI 680
LABAN MUGUKU 516
HARON NGUYO MUITA 18
JOHN KIMEMIA KAMAU 454
SIMON KAHIGA
SIMON KAMAU
FREDRICK MWANGI NJOROGE 510
BENJAMIN MAINA KIMANI 1033
JAMES KIMANI 2674
KUNGU NJOROGE 3954
JOSEPH NJOROGE GIKONYO 37
ISAAC KAMAU DAVID 573
JOHN MWANGI NJOROGE
JOHN GITAHI KAMUNYA
NICHOLAS KIOKO MUTINDA 870
PHILIP MACHARIA NJOGU
MICHAEL NJUGUNA
NJAU THUKU
PETER NG’ANG’A MUNIU
JUMA KARURI 1106
SIAKA OLE SENO
JOHN THUO KINUTHIA
DAVID THUO KARANJA
JOHN NJOROGE MUIGAI
JULIUS KIMANI KARIUKI
FRANCIS MUTHEE MUKIRI

COMMISSION COMMITTEE

WALLACE K. NJENGA - CHAIRMAN
HENLY OTIENO OKOTH - VICE-CHAIRMAN
DOMINIC NYAGA - SECRETARY
MOGAKA (NDUTHI) - MEMBER
MARGARET WANGUI - MEMBER
JULIUS OKOYO - MEMBER
PAUL WANYANGE - MEMBER

COMMITTEE

LENARD K. WARUIRU - CHAIRMAN
JOHN MIINGI - SECRETARY
PAUL GATAMA - VICE-CHAIRMAN
DAVID MANGURU - VICE-SECRETARY
ZAKAYO KINYANJUI - MEMBER
CATHERINE MAGIRI K. - VICE-SECRETARY
ROBERT MWANGI - MEMBER
ROSE WANJIRU - MEMBER

OPERATORS

STEPHEN KIRAGU GITAU 2955
JAMES GITHUI
DAVID NJENGA NJUGUNA 381
DAVID KARIUKI GITERE 717
PETER KARIUKI MBUGUA 447
WAWERU MWANGI
JULIAS NGUGI
JOHN GITHUI
PETER KARIUKI KABERA 1697
JOSEPH NJOROGE NJOGU
STEPHEN W. WACHIRA 2117
SAMWEL NGUGI WAGATHIRU 4162
PATRICK MBURU GATHONI 1508
PAUL MWANGI NJOROGE 1848
PETER KARUGA NDUGU 1786
JOHN KIMEMIA KAMAU 454
SAMWEL MAINA KAMAU 2173
JOHN NJOROGE MINGI 14
DANIEL KABERI
JOSEPH NGETHE 1004
PAUL NGOTHO MUGO 1382
PATRICK MBURU KARANJA
SABASTIAN KAMAU 4811
SIMON BURUGU
GEORGE MWANGI NGUA
CHARLES GAIKIA ICHATHA
KAMIRI
ELIUD MATHU
ALAN MBUGUA MATHERI 35/ 38
JOHN M. KANYI 2456
JAMES K. KARIUKI
GIDLAF GIKONYO GITERE
JOHN KIMEMIA KAMAU 454
KARANJA GACHIE
KAGUNDA MBUGUA
JOHN GACHUGI
SARAH MUTHONI
RABERT MWANGI MBUGUA 3531
SAMWEL MAINA JUUGUNA 2173
CYRUS MAINA KIAMA
CHARLES WANGOMBE KIVEVE
EDWARD NG’ANG’A NGUGI
JOSEPH NYACHIO
SAMUEL NGUGI
CHARLES THIRU

SECURITY

ROBERT MWANGI 482
CHARLES MWENDWA KWASA 991
EMEKWI EBUIYA 590
JOHN KANGETHE NJOKA 4819
STEPHEN MWANGI NOIRITU 483
MOHAMED BORAI ABDI 58
TOM REMORE 324
JANE WANGUI 114
MICHAEL NKIPONYE 963
YUNIS HUSSEIN HASSAN 3048
WILLIAM EKIRU ELPA 2577
SAMWEL KARANJA 2173
FANUEL AMUGUNE SHICHUMA 1283
ABDUUAHI MOHAMMED USRU
SAMUEL MWANIKI SALAJA
GIRBERT WAJALA
MILTON SITUNA 105
DOMINIC MUSYOKA MULI 4783
RICHARD MUTAI
SIAKA OLE SENO
PAUL LANGAT
ALFRED WEKESA 1572
SAMSON OTIENO ODUORI 1366
MATHEW KIMANI 1623
JORAM NJAGI
ISAAAC RISA LEKUTIT 350
JULIUS OKOYO 965
TABITHA WAMBUI (laundry)
ELIAS MWANGI (L)

SURVEY SECTION

KENNETH MURIITHI 2099
AMES KARANJA 290
GACHARA GICHUKI
CHRISTOPHER KIMANI
JULIUS CHERUIYOT YEGON
FRANCIS WAITHANJI
DOMINIC GICHUKI

FOREMEN

WALLACE K. NJENGA (General Foreman) R19
LEONARD K. WARUIRU
ALEX K. KARIUKI
DANIEL NJOROGE MWATHI
HEZRON W. MACHARIA
DAVID CHEGE
STEPHEN NJENGA KIMANI
JOHN NJOROGE MIINGI
PETER J. MBUTHIA
GACHARA GICHURI
JAMES N. NJUGUNA

Shermit Lamba: Three Important Criticisms to the Wako Draft

2005-08-26T06:36:00.000-04:00

Three Important Criticisms to the Amos Wako Draft Constitution

Prepared by

S. Lamba

B.A,B.Sc, LL.M.Dist.

(Jurist)

Doctor of Laws [Candidate], Osgoode Hall Law School, Canada.

Graduate Diploma in Democratic Administration [Candidate], Department of Political Science, York University, Canada.

My six page criticism touches on the following:

The Composition of the Judicial Service Commission – and how the AG has radically altered it; thus disenfranchising the civil society and magistrates from judicial governance. Bomas originally had 18 commission seats allocated to the Judicial Service Commission; Wako proposes only 8 seats – having rid the JSC of any civics, and magistrates, except two seats for advocates from the LSK. There were FIVE seats allocated for women under Bomas. All are gone.

The Right to Housing has been altered. A clause in Bomas that was meant to specifically end the era where house demolitions and evictions proceeded without the authority of a court order – has vaporized. If anything, it points out how that era is most definitely not over. The text present in two clauses seems to have disappeared completely.

A direct order to the Chief Justice, that would have him reorganize the rules governing court procedure (in the interests of the poor, illiterate, and those who travel long distances to court) have now vanished from the constitution. This order that was marked as ‘very particular’ and important, would have ordered the CJ implement major changes within 12 months of the constitution coming into force. It too can now officially be considered suspiciously as AWOL. But why should this be so? Such changes only serve to make the office of Attorney General seem cold and shadowy, and surely pave the way for a future legality of a cruel nature. The people of Kenya have a right to know about this before they vote in a referendum.

26^th August 2005

Shermit Lamba

c/o Mazingira Institute

PO Box 14550, Nairobi, Kenya.

Email: shermit_lamba@hotmail.com

Dear Friends,

1. The Composition of the Judicial Service Commission (JSC) has been Radically Altered

The Judicial Service Commission is the organ which supervises the Judiciary, and is ultimately charged with maintaining the health of the Judiciary. In the Bomas Draft the (JSC) was given a specific shape and form meant to revitalize the Commission. The Wako draft constitution seriously threatens great gains that had been made by the civil society in promoting the independence of the judiciary via the (JSC). This change will have drastic repercussions in the administration of justice.

Under Bomas, the (JSC) would have had a full-time Chair. This person would need all the qualifications to be a Judge in the Supreme Court, but they didn’t have to be sitting on the bench. All that was required is that the new Chair be appointed by the President; and garner the approval of Parliament.

In the Wako draft, the (JSC) will now be chaired by the Chief Justice, who will share this responsibility with his other numerous laborious duties. Further, it is apparent that the number of seats on the Judicial Service Commission has been slashed from (18) to (8); effectively eliminating all civil-society seats.

The remainder of the (JSC) as constituted under Bomas, would have looked something like this:

JUDICIAL SERVICE COMMISSION – BOMAS DRAFT (Section 204)

The Attorney General	1 Supreme Court Judge	1 Court of Appeal Judge
1 High Court Judge	The Chief Kadhi	2 Magistrates (1 Woman)
2 LSK Advocates (1 Woman)	2 Law Teachers (1 Woman)	1 Council of Legal Education
1 Chair - Public Service Commission	3 NGO seats (1 Woman)	1 Muslim Woman

The composition of the remainder of the (JSC) as contained in the Wako draft looks like this:

JUDICIAL SERVICE COMMISSION – WAKO DRAFT (Section 196)

The Attorney General	1 Supreme Court Judge	1 Court of Appeal Judge
1 High Court Judge	2 LSK Advocates	1 Nomination by the Public Service Commission

Sincerely,

Shermit Lamba (Jurist)

B.A,B.Sc, LL.M.Dist.

26^th August 2005

Shermit Lamba

c/o Mazingira Institute

PO Box 14550, Nairobi, Kenya.

Email: shermit_lamba@hotmail.com

Dear Friends,

2. The Right to Not be Evicted; or Have Your House Demolished (Without A Court Order), Goes Missing in the Wako Draft.

I write to you having discovered that the Bomas draft has been altered in a manner that is worthy of public comment prior to the referendum. The matter in question centers on the Bill of Rights as presented in the Wako draft, and in particular Section 63 on Housing. It has come to my attention that two paragraphs (that would have prevented arbitrary house demolitions and evictions) have inextricably gone missing.

The missing text is highlighted below:

BOMAS DRAFT

THE BILL OF RIGHTS (Ch.5)

Housing – Section 59

59. (1) Every person has the right to have access to adequate housing.

No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.

(3) Parliament may not enact any law that permits or authorizes arbitrary eviction.

I have attached to this letter, a transcription of relevant text as it appears in the Wako-draft, and have labeled it Appendix [A]. Please refer to it as needed.

Sincerely,

Shermit Lamba

(Jurist)

B.A,B.Sc, LL.M.Dist.

25^th August 2005

Shermit Lamba

c/o Mazingira Institute

PO Box 14550, Nairobi, Kenya.

Email: shermit_lamba@hotmail.com

Dear Friends,

3. A Law Which Will Be Instrumental in Determining the Future of Many Human Rights Legal Challenges in Kenya, Goes Missing in the Wako Constitution Draft.

A clause that would have been integral to any future human rights legal battles in Kenya has gone missing in the Wako draft constitution. This clause was noted in the Bomas Draft to be ‘particular’ in its importance because it specifically ordered the Chief Justice to redefine the rules governing court proceedings in a specific way – not a small task. Further, the Bomas constitution demanded that the contents of that clause be met within 12 months, or the CJ could risk violating his constitutional directives. Such a directive was present in the Bomas draft in the following form, but is missing in the Wako draft:

[The highlighted text is missing in the Wako draft which retains much of the remainder of this section. The text would have ordered the Chief Justice to re-define the rules that govern court proceedings in a subtle yet profound way as regards applications seeking the enforcement of fundamental human rights.]

BOMAS DRAFT

THE BILL OF RIGHTS (Ch.5)

Right to ask the Commission on Human Rights and Administrative Justice or Court to uphold the Bill of Rights.

Section 73

(3) The Chief Justice shall within one year of the coming into operation of this Constitution, make rules providing for court proceedings contemplated in clause (1), and those rules shall satisfy the following criteria -

(a) that the rights of standing provided for in this Article are fully facilitated;

(b) that formalities for starting proceedings are kept to the minimum, in particular that the courts will, if necessary, be prepared to start proceedings on the basis of informal documentation, such as a letter or newspaper report;

(c) that the courts, while observing the rules of natural justice, shall respond to the justice of the claim and not be unreasonably restricted by technical requirements;

(d) that no fee may be charged for commencing proceedings under the Article; and

(e) that organisations or individuals with particular expertise may appear before the court as ‘amicus curiae’ (friend of the court).

This legal clause, which has been removed, would have done that which most post-colonial countries desperately need to be addressing in their legal reforms: Recognizing where strategic changes in administration can be made, so as to eliminate needless suffering caused by the strangle-hold of a legal system too-rigidly founded on the affidavit system of evidence, that has aggravated this suffering; and perhaps even become deleterious to the system of enforcement and protection of the rights of its citizenry? We must grasp that the Bomas draft had a better understanding of how the post-colonial legal system should change to genuinely address the needs of poor people, the needs of the illiterate, and the needs of those who travel vast distances (where a simple affidavit may turn out to be the biggest obstacle for some to traverse on their long path to justice). This piece of law would have changed all of that forever, and is based in the doctrine of ‘epistolary locus’ pioneered by former Chief Justice Bhagwati of the Indian Supreme Court.

This law would have ensured that to begin proceedings in court where a ‘human rights’ violation had been averred, lesser forms of evidence than that of an affidavit could now be considered sufficient to initiate legal proceedings. Under this clause, a person (or group of persons), could now seek remedy from the courts with such bare bone evidence as a letter, or scraps of newspaper that detailed a human rights violation. The Wako draft does not compel any court to do this at all. Let alone charge the CJ into swift action to redefine the rules of court procedure to suit these needs.

This law would have paved a new way forward for the Kenyan court system to address how it administrates the handling of the rights and entitlements of the citizenry, and in a truly beneficent manner too. It would be very unfortunate if such an omission was due to some clerical error.

It is true that the choice of the Wako draft when compared the current operational constitution is the hands down winner; this, however should not excuse such an omission. Especially since it was a particular, clear, and direct administrative order to the Chief Justice. Further, if this order was left out because of oversight, I only hope that news of such a shortcoming is addressed when the Attorney-General confronts the matter of any errata he may have committed during his conversion of text.

I hope that these thoughts will be party to any debate about the future of the legal system in Kenya, via its new constitution. I have attached to this letter a transcription of relevant text as it appears in the Wako-draft in regards to this matter, and I have labeled it Appendix [B]. Please refer to it as needed.

Sincerely,

Shermit Lamba

(Jurist)

B.A,B.Sc, LL.M.Dist.

APPENDIX [A]

(Housing Rights)

WAKO DRAFT

BILL OF RIGHTS (Ch6)

PART II – FUNDAMENTAL RIGHTS & FREEDOMS

Housing

63. Every person has the right to affordable and adequate housing.

[TWO MISSING CLAUSES REGARDING THE PREVENTION ARBITRARY EVICTIONS AND HOUSE DEMOLISHING SHOULD APPEAR HERE]

APPENDIX [B]

(Epistolary Locus)

WAKO DRAFT

BILL OF RIGHTS (Ch6)

Section 32

(3) For the purposes of clause (1), the Chief Justice shall make rules of procedure which shall satisfy the criteria that –

(a) the right of standing provided for in this Article is fully facilitated;

(b) formalities relating to the proceedings are kept to the minimum; [THE DISPUTED CLAUSE SHOULD APPEAR HERE].

(c) the court, while observing the rules of natural justice, shall not be unreasonably restricted by technical requirements;

(d) no fee may be payable by an indigent person for commencing proceedings under this Article; and

(e) an organisation or individual with particular expertise may, with the leave of the court, appear as a friend of the court.

***********************************************************************************

Editorial Note from Onyango Oloo, Kenya Democracy Project, Montreal, Quebec:

We truly appreciate the timely scholarly/activist intervention of Shermit Lamba who is also the author of the following publications:

Towards New Constitution of Kenya: Essentail Ideas of Justice, Principle and Process

Title: Towards New Constitution of Kenya: Essential Ideas of Justice, Principle and Process

Author: Shermit Lamba

Published By: Mazingira Institute, Nairobi, Kenya, 2000.

Type of Publication: Monograph

ISBN#: 9966-9994-4-2
Abstract: The article first summarizes the stalemate in public debate on a new constitution for Kenya at the turn of the millennium. It then discusses the fundamental ideas of justice and principle which should guide the process of constitution making. These are analyzed in the context of Kenyan realities. Four models of constitution making that have been articulated in public debate are examine: the constituent assembly, executive branch, evolutionary and parliamentary models. These are evaluated in relation to justice and principle and guides to the process are outlined. Finally, the constituent assembly and parliamentary models are compared in relation to justice, principle and the realities of power in Kenya.

Conceptualizing a Just Freedom:
In Search of Life and Virtuous Governance in Kenya

Title: Conceptualizing a Just Freedom: In Search
of Life and Virtuous Governance in Kenya

Author: Shermit Lamba

Published By: Mazingira Institute, Nairobi,
Kenya, 2000.

ISBN# 9966-9994-4-2

Abstract: The article delves into "What are the fundamental questions that we need to ask ourselves as Kenyans when searching for a new constitution?" A critique of the philosophical roots of ideas that govern choices about the future leads to the formulation of an approach to just governance. Essential principles of social justice and rights are developed, based on a critique of the dominant metanorm of globalization and neo liberalism in general. The idea of virtuous governance is proposed, and even a strategy for change towards putting it in practice.

Kenyan Courts

Title: There is a better way:An intoduction to the Development as Freedom Approach

Author: Shermit Lamba

Published By: Mazingira Institute. 2002`

Abstract:
"There shall be a fundamental right to good standing locus standii, including the fundamental right to epistolary standing (through written correspondence) to move the court for a remedy…for anyone acting in the public or common good."

This is just one of the proposed provisions of the new constitution that would mark a radical departure from the legal principles and practices in Kenya in this presentation to the Constitution of Kenya Review Commission (CKRC) by Shermit Lamba, Kenyan Jurist. It is couched in a comprehensive proposal for democratizing the judiciary, and for the administration of justice and courts in Kenya-areas that in the past have failed to foster trust between the ruled and the rulers in the context of an unequal social contract.

The proposals are, therefore made in the context of genuinely fresh constitution making-with the end of restoring trust between the people and a new people owned state.

This solidly valuable contribution covers wide ground. It addresses the concept of the role of the judiciary in the administration of the rule of law, in enforcing fundamental rights, creating trust between state and government and republic. It addresses the question of locus standii and boldly proposes opening up the courts to the people by the liberal interpretation of the right of good standing. Beyond this the contribution grapples with the political, procedural and bureaucratic aspects of liberalizing access to justice by the broad spectrum of Kenya's citizens.

It proposes the creation of three councils that will ensure a democratized judiciary. The Judicial Appointment Council will be anchored in the people, for the council will be recruited through advertisement, which will give broad sections of the society (incuding disadvantaged groups) the opportunity to apply for inclusion. The Judicial Complaints Council will listen to accusations against Judges. And the novel Judicial Marches council will be based on the Indian model, a programme that encourages judges to "take long marches through remote villages to solve people's grievances"; these judges are empowered to convert letters alleging rights violations into petitions.

The Contributions finally addresses the question of enforcing the concept of the separation of powers in rural villages, by creating empowered village and and neighborhood courts-thereby liberating the majority of Kenya's people from the unconstitutional domination of a provincial administration which plays a quasi-judicial and quasi punitive role.

After grappling with the nitty-gritty of matters like court buildings, court adornments and creating filing systems, the author of this contribution offers convincing answers to his initial questions: What does the most socially just legal system look like? How do you build it? How do you operate it?

It is constitution-making time in Kenya. All of us want to study this document.

A Post-Colonial Theory of Justice: Towards the new Constitution of Kenya.

Title:A Post-Colonial Theory of Justice: Towards the new Constitution of Kenya.

Author: Shermit Lamba

Published By: Mazingira Institute, Nairobi, 1982.

Abstract:
Kenya stands at a crossroads-desperately needing to overcome a crisis in its governance for it's very survival as a viable nation-state. The glaring symptoms of its crisis range from the spectre of bloody tribal clashes, a looming but uncertain presidential transition to the inability of millions of households to sustain livelihoods.

some people hope the planned constitutional review may go some way into resolving the crisis, and the continuing debate about the constitution has not been wholly drowned by the national despair and despair-generated apathy.

This book is the autho's concerned and well reasoned contribution to this debate. the author starts at the beginning-the imposition on the peoples of kenya of a colonial state constituted on the basis of imperial-inspired contract law and philosophy. He demonstrates that Kenya has remained shackled tothis legal tradition through the years of it's independence. The highlights of this concise book, a piece of writing packed with incisive thought per square centimetre, are the author's suggestions about how Kenya can liberate itself from this tardition.

The suggestions are encased in the author's strikingly fresh theory which marries the notions of "justice as process" and justice as substance"-as a check, as fairness-addressing the plight of the weak and the oppressed. Does the author manage a marriage of liberal and socialist jurisprudence?

His suggestions on how to constitute the offices of law in a anew dispenstion will surely excite lively debate.

A Prelminary Analysis of The Kilfi Draft

2005-08-17T12:39:00.000-04:00

(This document has been prepared by some Kenya-based Kenyans, including SOME, but not all of the Constitutional Review of Kenya Commissioners in July 2005)

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Chapter One: Sovereignty of the People and Supremacy of the Constitution

Article 1 on sovereignty of the people has been fundamentally altered to limit the exercise of the sovereignty of the people. The Draft Constitution of Kenya 2004 (The Bomas Draft) had envisaged the exercise of the sovereignty of the people at the national and devolved levels of government. References to devolved government have been removed and replaced with district government. The concept of devolution has therefore been alienated and abandoned from the word go in the PSC Recommendations/Kilifi Draft. This departs from the objects and values of the Review Act, the views and aspirations of the people and the principles and philosophy of the Draft Constitution of Kenya 2004 (The Bomas Draft). This Chapter was neither contentious nor do the issues fall in the Chapters listed by PSC as containing contentious issues. The Kilifi Draft proposals to amend the Chapter are not supported by the recommendations by the PSC or the proceedings in the National Assembly.

Chapter Two: The Republic

Article 5 of the Draft Constitution of Kenya 2004 (The Bomas Draft) on Territory, which establishes the units of devolution and entrenches them in the Constitution has been fundamentally altered by the removal of the first schedule, which defines and entrenches the regions, districts and boroughs in the Constitution. The power to establish internal boundaries and devolved units of Kenya has now been removed from the people, exercising their sovereignty through the constitution and vested in Parliament through legislation. The shift of sovereignty from the people alters the basic design of devolution as it goes to the very foundation of its definition. Indeed, the concept of devolution ceases to exist in the PSC Recommendations/Kilifi Draft. Whereas article 5 of the Draft Constitution of Kenya 2004 (The Bomas Draft) had defined the number and boundaries of districts and regions, the PSC Recommendations/Kilifi Draft have bestowed this responsibility on Parliament. The grant of this power to Parliament to define and establish another level of government creates a subordinate relationship as opposed to a coordinate relationship between the levels of government.

Article 6 of the Draft Constitution of Kenya 2004 (The Bomas Draft) has been altered by removing the locational and regional levels of government, fundamentally affecting the exercise of the sovereignty of the people. The recommended arrangement not only creates a huge distance between the national and district levels of governments, but by the removal o the locational level of government also takes the government far away from the people, alienating them from the government and governance. Accordingly, the recommended arrangement fundamentally negates the principles of devolution such as efficient and proximate services, public participation and democratic self-government. Although article 6(2) on the principles of distinct, interdependent, consultative, negotiative and cooperative government has been left intact, there are no arrangements and structures for their realisation because the idea of devolution has been abolished and institutional arrangements such as the Senate have been scrapped. The upshot of the recommendations would be to move away from the envisaged consultative and negotiative system of government in the Draft Constitution of Kenya 2004 (The Bomas Draft) to a discretionary controlled system with the national level of government calling the shots. The article remains an empty lofty declaration. These amendments are proposed on the premise that they are consequential matters on devolution. Yet fact is that these articles are principle setting provisions in the chapter on the Republic and as such the PSC had no mandate to effect changes to them as they were not identified as a contentious issue.

The Draft Constitution of Kenya (Bomas Draft) establishes Nairobi as the capital city of Kenya based on the views of the people. The determination of the capital was envisaged as a constitutive function, which should be performed by the people through the constitution and not Parliament. The conferment of the power to Parliament as in the PSC Recommendations/Kilifi Draft negates the sovereignty of the people and runs counter the views and aspirations of the people.

The Hansard record shows that this proposal was rejected by the ruling of the Speaker of the National Assembly on grounds that the PSC exceeded it mandate and that the matter was not consequential. The changes in this chapter are fundamental and not consequential to those in any other chapter. These recommendations depart from the objects and values of the Review Act, the views and aspirations of the people and the principles and philosophy of the Draft Constitution of Kenya 2004 (The Bomas Draft). The Attorney General should ignore these proposals because the Chapter was neither contentious nor was it listed by the National Assembly as contentious.

Chapter Four: Citizenship

Article 17 on citizenship and marriage has been altered by deleting the words “is entitled on application” and substituting therefor the words “is entitled to apply.” Under s. 91 of the current Constitution of Kenya

A woman who has been married to a citizen of Kenya is entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.

Kenyans felt that this provision discriminates against women and recommended that the right be expanded to include women in order to remove this discrimination. The Commission accepted this recommendation and its Report and Draft Bill (2002) provided in this regard, in article 20 (1), that:

A person who has been married to a citizen of Kenya for a period of not less than three years is entitled, on application, to be registered as a citizen of Kenya.

During deliberations at the National Constitutional Conference, objections to the expansion of this right to cover women were raised on the ground that this provision may be open to abuse. It was argued that non-citizen men would take advantage of Kenyan women [sic!] in order to gain the right to be registered as Kenyan citizens. Upon reflection and negotiations, the Conference resolved that in order to remove the potential of abuse for both men and women, the three years waiting period be extended to seven years. This provision was, therefore, never identified as a contentious issue in the Sulumeti II Report. It is notable that the formulation is entitled upon making application, was never contentious in s. 91 of the current Constitution of Kenya when the right was only enjoyed by men. Since the underlying principle of the article is to eliminate sex-based discrimination, the proposed formulation in article 17(1) by the PSC Recommendations/ Kilifi Draft is untenable and should be abandoned.

The above arguments apply to the other formulations by the PSC Recommendations/Draft in the Chapter in respect of articles 16, 18 and 20 of the PSC (Kilifi). It must also...

Chapter Five: Culture

Article 26 of the Draft Constitution (2004) (Bomas Draft) on the National Commission on Culture has deleted in its entirety. Whereas the Chapter has laid down basic principles on culture, there is no institutional infrastructure for their realisation. The Commission as envisaged by the Draft Constitution (2004) (Bomas Draft) would actualise or operationalise the provisions of the chapter. The anchoring of the Commission in the Constitution gives it the status to protect the cultural values provided in the Chapter. Besides, the implementation of property, heritage and cultural rights in the Constitution would be rendered nugatory if the Commission has no constitutional status. Additionally, the clause that enjoined Parliament to enact consequential legislation to give effect to the provisions of the chapter has also been deleted thus doing away with the implementation framework. Note that this provision on facilitative legislation would be necessary even if the Commission were to be found unnecessary. Although the National Assembly purported to delete the article, it had no mandate to do so.

Chapter Six: Bill of Rights

The PSC Recommendations have placed limitations on some specific rights, namely the right to life (article 34), freedom of the media (article 50) and access to information (article 51). These recommendations proceed from the assumption that the Draft Constitution does not provide limitations to these rights and that they are absolute. This assumption is false because all the rights in the Bill of Rights are subject to limitations as provided for by article 33 of the Bill of Rights.

Additionally, there are more limitations that have been added to specific rights such as freedom of the media (article 50). The Bill of Rights in the current Constitution has been described as a Bill of Derogations because it grants rights with one hand and takes them away with the other. Comparative constitutional studies informed the Commission that the approach to the limitation of rights is based on an outdated model used in Europe in the 18^th century. The European countries that have made and/or reviewed their constitutions since the mid 20^th century, have departed from this archaic approach and have adopted a progressive approach which provides rights in separate articles and a single general limitation clause to be observed by any person or institution seeking to limit these rights. This approach began with the German Basic Law of 1949; was picked up by the Canadian Charter of Rights and Freedoms of 1982 and recently, in Africa, by both the Interim Constitution of South Africa of 1993 and the Final Constitution of the Republic of South Africa of 1996. The main difference between the two approaches is that whereas the old approach emphasizes the limitation of rights, the new approach emphasises the enjoyment of rights and that rights are not absolute but are subject to limitations. This approach grants the power to limit rights but recognises that the power to limit rights is itself not unlimited. This approach therefore emphasizes the limitation of the power and the curtailment of arbitrariness. The burden of proof, therefore, shifts to the person or institution seeking to limit that right.

As such, to subject certain rights to specific limitations is to subject them to double limitation. Such double limitation would be in contravention of the objects of review and international human rights norms and standards.

Article 34 has been altered fundamentally by arrogating to Parliament the power to grant life and take away life. Yet the theory of human rights and the philosophy of the Bill of Rights in the Draft Constitution (2004) (Bomas Draft) posit that human rights are inherent, indivisible, inalienable and interdependent. Human rights therefore are entitlements by every human person, and are not granted by any external force or power. Parliament cannot therefore purport to have the power to grant or limit the right. By the same token, Parliament cannot purport to “permit” abortion in the circumstances it deems fit by legislation. Moreover, this takes us back to the old approach to the limitation of rights.

On article 36 on affirmative action, the PSC Recommendations bestow on Parliament the power to review affirmative action, which may include abolishing, affirmative action programmes. The theory of the Draft Constitution is that affirmative action is an all time value to be used for adjusting imbalances in society. The recommendations of the PSC are an affront to this theory.

The PSC has also fundamentally inserted a new article designed to undermine the justiciability of socio-economic rights by providing that the basic rights shall not be construed as imposing obligations on the state. In essence, the article seeks to limit the judiciary in its role of progressively interpreting the Bill of Rights, and in particular socio-economic rights. It must be appreciated that the realisation of socio-economic rights and basic rights was at the core of the views and aspirations of the people of Kenya. It must also be appreciated that this matter was not a contentious issue. See article 60 of the PSC/ Kilifi Draft.

Article 71 has also been deleted yet it cannot be understood why a person should issue or obey unlawful instructions. The right should be left the way it is.

Article 74 has introduced three new clauses one of which has made provision for Parliament to legislate on how the courts of law should exercise jurisdiction in cases of contempt. This will undermine the independence of the judiciary and the principle for separation of powers.

The proposals to delete article 75(2) of the Draft Constitution are designed to take away all the rights of persons in custody in the constitution. The removal of this article also confers on Parliament the discretion of determining what rights should be granted to persons in custody. It is to be acknowledged that the rights of a person held in custody are fundamental rights, and this was a major concern of the people during the collection of views. The deletion of the right as formulated in the Draft Constitution (2004) (Bomas Draft) has taken away the entire gamut of rights and freedoms that sought to be protected under the article.

Notably, these recommendations were not contentious issues at the National Constitutional Conference. With the exception of the right to life, the Chapter was never contentious.

Chapter Seven: Land and Property

The theory of government in the Draft Constitution of Kenya (Bomas Draft) is that the purpose of governance is the proper management and development of resources and equitable distribution thereof. As a primary resource, the management and development of land is crucial to the stability of society. It is to be recalled that the use and management of land was a primary concern of the people of Kenya during the collection of the views by the Commission. The people of Kenya considered that in order to address the current problems over the use, ownership, allocation and alienation of land, there should be constitutional provisions on the management and use of land. It was also considered that the state had failed to mange land resources effectively and fairly. It was therefore considered that the management of land should be vested in an independent institution, the National Land Commission. The deletion of the Commission from the Draft Constitution will therefore vest the management of land in Parliament and the Executive.

The Draft Constitution envisages that public land should be administered by the National Land Commission on behalf of the people. Without the National Land Commission there will be public land with no institution to manage and administer. See article 78 and 79 of the Draft Constitution of Kenya (2004). The argument that the Land Commission can be removed on the basis that it is consequential to devolution is erroneous. The National Land Commission was designed to implement the principles on the Chapter on Land. It must be noted that consequential amendments flow from the principle, and as such the ruling on the Chapter on the Environment should be followed in this Chapter. The Attorney General should therefore ignore the proposal to delete the National Land Commission.

Chapter Eight:Environment and Natural Resources

It was considered that the management of the environment should be vested in an independent institution, the National Environment Commission, anchored in the Constitution. The proposed deletion of the Commission from the Draft Constitution will therefore vest the management of the environment in Parliament and the Executive. It is important to note that the Speaker of the National Assembly ruled that this proposal exceeded the mandate of the PSC and rejected the proposal and ruled the retention of the Commission.

Chapter Nine: Leadership and Integrity

The republican theory of government demands that those who hold office do so for a limited period of time and during the pleasure of the people and during their good behaviour. During the National Constitutional Conference, it was argued that the recall mechanism earlier provided in the Draft Constitution (2002) had only targeted Members of Parliament and further that the mechanism was subject to abuse. It was agreed that public scrutiny, through the ethics and integrity infrastructure established in the Chapter on Leadership and Integrity be for all leaders. Architecturally, the Ethics and Integrity Commission would form the cornerstone for upholding ethical standards in the holders of public office.

The Draft Constitution envisages that the Ethics and Integrity Commission will ensure ethical standards in pubic office. The Commission would deal with constitutional offices, and as such it should have constitutional status. It must be emphasised that the Draft Constitution seeks to reorient leadership and governance, and part of the implementing infrastructure is the Ethics and Integrity Commission. The Commission would have several functions, including anticorruption and enforcing ethical codes. The proposed establishment of the Kenya Anti-Corruption Commission runs counter the philosophy of the Draft Constitution which sees anti-corruption as just one aspect of ethics and integrity. To ensure the independence of the Commission, it must be safeguarded in the Constitution. If left for legislation, it would be relegated to a weak institution that cannot enforce ethical standards in public office. The Attorney General should ignore these proposals because the Chapter was neither contentious nor was it listed by the National Assembly as contentious.

Chapter Ten: Representation of the People

The Chapter, which seeks to establish principles for representation of the people has been amended fundamentally by the PSC Recommendations/Draft. The Draft Constitution sought to balance political party interests and other special interests, and adopted mechanisms for ensuring that these interests are represented. Article 102 of the Draft Constitution sought to establish representation of all interests and regions through the Senate. The Draft sought to address the first-past-the-post (majoritarian) system because of its inherent unfairness by establishing National Assembly constituencies based on weighted population and a Senate with equal representation based on regions. The Senate takes into account some measure of equality regardless of population and size and its scrapping has further ramifications in the representation in Parliament. The proposals by the PSC shift representation to political parties, with no clear representation of regional and special interests e.g. workers, women. The idea of political parties as the basis of representation is also discriminatory as it does not give room for representation of independent candidates. It must also be noted that this Chapter was not listed as contentious by the National Assembly.

Chapter Eleven:The Legislature

On article 124 of the Draft Constitution (2004) (Bomas Draft) on the qualifications and disqualifications for election as a member of Parliament, the PSC recommends that persons who have been removed from office on grounds of misconduct should be eligible for election, yet the Bomas Draft had envisaged that to uphold the integrity of Parliament, such persons should not be qualified for election. On membership of the Parliament, the scrapping of the Senate has led to loss of representation of women and other groups that the Draft Constitution (2004) (Bomas Draft) had sought to secure their representation in the parliamentary process.

The PSC has also recommended the deletion of marginalized groups which the Draft Constitution had sought to enhance their protection. The upshot of this is to remove the guarantee of the participation of these groups in the parliamentary process and governance generally.

The Draft Constitution (2004) (Bomas Draft) had envisaged that lawmaking would undergo process of consideration by the two chambers of Parliament before approval. The two-chamber parliament would provide a negotiative and consultative law making process and the scrapping of the Senate and the deletion of the provisions of article 134 on consideration of legislation by both Houses will undermine the requirement for consultative lawmaking. At the same time, the deletion of the provisions on the decisions of the Senate will undermine the principles of geo-equality and unity in diversity. The essence of this article was to ensure checks and balances on decision-making. The deletion of these provisions will therefore render the principle of unity in diversity elusive. All other articles which had provisions on shared functions between the Senate and the NA have been deleted, undermining checks on Parliament.

The design of the Draft Constitution 2004 (Bomas Draft) has provided for oversight over the governance process by the people through their representatives, namely Parliament. In checking these powers, Parliament’s oversight role has been expanded in the Draft Constitution. The Legislature’s ability to perform this role effectively depends on the design of this institution. The establishment of a bicameral Parliament enhances the ability of Parliament’s oversight by establishing two levels of checks. For instance, the vetting of executive appointments will be subjected to effective checks by requiring that the each of the two chambers is not arbitrary. It is obvious that the amount of vetting by lawmakers expected in the new Constitution cannot be practically and effectively undertaken by one chamber. The sharing of this vetting function seeks to enhance consultation and negotiation in governance, because the composition of the Senate sought to ensure regional representation. The scrapping of the Senate transferring this functions to the National Assembly will undermine the consultations envisaged and the checks intended in a bicameral Parliament. The upshot is that the National Assembly will be all-powerful; in terms of vetting, and will undermine the capacity to vet appointments such as those of the members of the cabinet.

The PSC Recommendations fortify the Public Service Commission, yet it emasculates the other constitutional commissions. Article 147 has been amended to provide that the PSC shall not be under the direction of supervision of any person or authority.

The proposed changes on chapter ten and eleven leave the electoral system intact: the first past the post system. Yet the majority of those who gave their views sought the reform of this system. It must also be indicated that the Constitution of Kenya Review Act required the people of Kenya to review the electoral system.

Chapter Twelve:The Executive

The construction of executive power is informed by constitutional theory on systems of government namely the

Presidential;
Parliamentary; and
hybrid (semi-presidential and semi parliamentary) systems.

In a presidential system, the chief executive is both the head of state and head of government, and there is a clear and distinct separation between the legislature and the executive. Under this arrangement, members of the executive are not drawn from the legislature. In a parliamentary system, the head of state and the head of government are separate, with the former playing a ceremonial role, such as the Westminster model. In this system of government, the executive is drawn from the legislature.

The hybrid system of government has two variants: the semi-presidential systems and the semi-parliamentary systems. The semi-presidential tilts executive power towards the President such as the French Constitution whereas the semi-parliamentary system tilts executive power towards the Premier as in the German Constitution. In each of these systems, there are checks and balances designed to suit it and these checks cannot be substituted for the other. The historical context in Kenya is instructional in that the Constitution was changed after independence from a parliamentary to a presidential system, without instituting checks suitable for a presidential system. The upshot is that the current Constitution has neither the parliamentary checks nor the presidential checks leading to what has been referred to as an “imperial presidency.”

In reconciling the competing views of the people of Kenya, the Draft Constitution has adopted a mixed system of government that takes into account the advantages of all the different systems of government. The PSC Recommendations depart from this approach and proposes a presidential system but does not adopt the relevant and requisite checks and balances. Although reference has been made to the Tanzanian model in regard to the recommendations by the PSC by commentators, it has not been pointed out that the Tanzanian model is a purely presidential system, with no checks and balances. Besides, the Tanzanian model, like the current Kenyan imperial presidency evolved from a dictatorial single-party system.

On the whole, the recommendations of the PSC deviate from the fundamental principles and the objects of the review. It also deviates from the sovereignty of the people, by seeking to vest sovereignty in the presidency, reinstalling a monarchy. Even though the PSC and political parties subscribed to the Naivasha Accord on the structure of the executive, the recommendations of the PSC do not conform to it.

Article 150(3) has been amended by deleting the provision that the national executive shall reflect the regional and ethnic diversity of the people of Kenya. It must be recalled that the people of Kenya had called for equity in the constitution of the national executive and the proposals in the PSC Recommendations run counter the views of the people of Kenya.

The PSC also recommends a monolithic executive, the President, in whom all executive authority resides. Whereas the Draft Constitution of Kenya (2004) (Bomas Draft) has delegated executive power to the President, Deputy President, Prime Minister and Ministers, the recommendations have concentrated executive power on one institution, the presidency. In addition, it must be noted that the Draft Constitution of Kenya (2004) (Bomas Draft) has sought to establish executive authority at different levels, at the national and devolved government. As such, under the proposed changes, the President will be the repository of ALL executive authority of the Republic, and any other institution exercising executive authority will do so as a delegate or agent of the President. It must be noted that article 1 distinguishes between the executive at the national and devolved levels. Under devolved government, it is envisaged that executive authority will repose in the devolved executive, yet this article vests all executive authority in the President. The recommendations have therefore increased the powers of the President, as the Head of Government and the Head of State, and the repository of all executive authority.

Although the recommendations of the PSC have created the office of the Prime Minister, the office is in essence superfluous as it is fundamentally different from the office of Prime Minister envisaged by article 172 of the Draft Constitution of Kenya (2004) (Bomas Draft). First, the office has not been vested with executive authority as this has been vested only in the President. Second, the office has been granted with no functions, but for the functions currently exercised by the Vice President, namely leader of government business.

The PSC recommends a presidential model with no requisite checks and balances. There is no clear and distinct separation of powers between the executive and the legislature as the Ministers will be appointed from the National Assembly, and some members from outside Parliament. Consequently, the proposed system will still exhibit a higher level of control over the Legislature by the presidency. It must be recalled that the people of Kenya had overwhelmingly supported the idea of a lean government, and had recommended that in addition to limiting the number of ministers, the new constitution should provide that cabinet ministers should be appointed from outside Parliament. The PSC Recommendations have not set the limit of the number of ministers.

On checks and balances, one of the mechanisms namely the impeachment process, has been remodelled by the PSC recommendations as a result of which the process is now an impotent one. The recommendations provide for a unilateral system of the parliamentary process for impeachment as opposed to the one envisaged by article 164 of the Draft Constitution of Kenya (2004) (Bomas Draft), which would be taken through the Senate and the National Assembly to ensure due process of law. Further, checks such as those on the appointment of the Prime Minister under article 173, the cabinet under article 177 and Principal Secretaries under article 181 of the Draft Constitution of Kenya (2004) (Bomas Draft) that envisaged consultation in the appointment (and dismissal) of the holders of these offices have also been removed by the PSC Recommendations.

Finally, the PSC Recommendations also seek to establish the offices of the Attorney General, Director of Public Prosecutions and the Public Defender under the Chapter on the Executive.

On the whole, it must be emphasised that the system proposed by the National Assembly is unlikely to assist in overcoming the culture of authoritarianism. Under the proposals, the office of the presidency would continue to be the focus of elections, the lynchpin of party organization and the fount of all power. Given Kenya’s history, an over–powerful presidency would retard the effective separation of powers as Parliament would become the rubberstamp of the executive and the judiciary would remain subservient to the executive. It would further promote fears of ‘ethnicisation’ as well as personalisation of state power.

Chapter Thirteen: The Judicial and Legal System

The removal of the vetting by Parliament will also affect the independence of the judiciary.

Chapter Fourteen:Devolution

Article 207(2), which provided for the coordination of regional programmes and projects, by the regional governments, has been deleted. At the same time, Article 207(3) which provided that the principal role of the Senate is to provide an institution through which the devolved levels of government share and participate in the formulation and enactment of national legislation and to protect the interests of the Regional, District and Locational Governments has been deleted. Although these are consequential the deletions will impact on co-operative and shared governance as an object of devolution.

One of the objects of the Draft Constitution was to insulate devolved governments from subordination and emasculation by the national or any other upper level of government, this object has been lost by the national government arrogating itself the power to dictate the nature and mechanism of its relationship with the devolved government through legislation. By this new provision the national government can stymie the people’s structures of governance at the local level.

Further, the whole concept of devolved governments being protected from adverse legislation by the national government, by requiring that national legislation has to meet certain objective criteria for it to prevail over devolved government’s legislation on own and concurrent functions, has been turned upside down by the Kilifi Draft proposal that national legislation automatically prevails over district government legislation on concurrent matters. It is also not clear on non-concurrent matters. In effect, this renders the district assemblies toothless and ineffective gatherings in areas where the national government has interests.

In addition, article 210B(2) through which the Senate provided protection to the devolved governments against arbitrary suspension by the President has been deleted and consequently the President may suspend a district government merely on the recommendation of a Commission of Inquiry appointed by him/her. The idea of the involvement of the Senate in this enterprise was to shield the devolved governments, and further provide a second check by the regions through their representatives in the Senate.

The so-called National Forum is unprecedented in devolved systems world-over and cannot be a substitute for either the Senate or the Regional Governments for the following reasons:

why would one call a national meeting of all district governments to discuss a matter between two or more districts in one corner of the country as envisaged by Article 221(2) of the Kilifi Draft;

though a provision is provided for the district governments to form forums, it is a clever manoeuvre to water down the people’s wishes for effective regional governments;

unlike in the Senate where the participation of devolved governments was guaranteed, the idea of the National Forum advising the government is a publicity stunt since the advice by the District Forum is non-binding on the National government with no mechanism requiring compliance by the National government; and

Granting one level of government (through Parliament) the power to solely legislate on matters of enabling another government without that government’s participation, as previously envisaged in the Senate, is a farce and indeed would lead to re-centralisation of governance as it happened after independence. This is real where you have a centralist^¹ President and Party in power.

Article 219(1) (c), on elections to the district legislature, has been adulterated by the sneaking in of a clause requiring that five percent (5%) of the total membership be reserved for political party nominees. The theory behind nominated members of representative bodies is to bring in the views and voices of those who could not be elected through the majoritarian electoral process e.g. the women, marginalized and minority groups, professionals e.tc. However, it is strange that political parties whose candidates will have been elected directly and form the majority of the legislature would want to muzzle other constituencies through the pretext of special party interests. What are these special party interests that those members of the party elected directly cannot represent? It is a ploy to reward party cronies and induce party worship! Furthermore, the people in their views to the Commission said elections at the local level may not be on a party basis.

The mutilation of the people’s views from the Draft Constitution through the deletion of structures of participatory government at the location level and leaving them at the mercy of Parliament and District Government is most unfortunate. The people in their submissions to the Commission and at Bomas demanded for effective governance and efficient service delivery closest to them. Indeed in some areas they felt that the location was remote to them.

Article 228A (1) that requires that at any time, not more than two-thirds of the members of any assembly, council or executive committee constituted under the chapter on Devolution are to be of the same sex has been deleted.

Article 239 (5) of the Bomas Draft that required prompt transfer of a devolved government’s share of revenue raised nationally without deduction, except when the transfer has been stopped under Article 255(2), has been modified by introduction of the following provision “deductions may be made to offset obligations due to the National Government and default in such obligations would be detrimental to the national interests”. Unlike in the Bomas Draft where the people of Kenya fixed the level of indebtedness of their country relative to the Gross Domestic Product at not more than 50%, the Kilifi Draft gives Parliament the discretion to determine the country’s level of indebtedness.

ChapterNineteen:Constitutional Commissions

The PSC Recommendations have scrapped a number of Commissions established in the Draft Constitution (2004) (Bomas Draft) and provided that they be established by legislation. The PSC approach disregards the underlying philosophy in the design of constitutional commissions and constitutional offices in the Draft Constitution (2004) (Bomas Draft). The commissions and constitutional offices created in the Draft Constitution are part of the institutional framework for the implementation of the Draft Constitution. The institutional design of the Draft Constitution (2004) (Bomas Draft) has expanded the traditional form that creates separation of powers and checks and balances between the legislature, the executive and the judiciary. Informed by the views of the people, our history and constitutional developments in the world over, the design of the Draft Constitution (2004) (Bomas Draft) expands these roles of implementation of the Constitution and management of constitutionality to include constitutional commissions and offices.

The approach is that constitutional values and principles are accompanied by constitutional institutional framework that act as infrastructure for implementation of those values. For example, the chapters on the constitutive process of the state have two main institutional frameworks for implementation, namely the National Culture Commission and the Commission on Human Rights and Administrative Justice. By the same token, the Chapter on Leadership and Integrity has the Ethics and Integrity Commission as the institutional framework for implementation. This approach of establishing constitutional commissions as infrastructure for implementation has been adopted throughout the Draft Constitution (2004) (Bomas Draft). Their entrenchment in the Constitution gives them a constitutional basis for the management of constitutionality.

It must be appreciated that the powers of the legislature, like other organs, have been limited in the Draft Constitution (2004) (Bomas Draft). The Draft Constitution makes the people the repository of sovereignty, and limits the powers of the legislature. The National Assembly proceeds from a different approach by construing parliamentary power as emanating from the supremacy of Parliament instead of the supremacy of the Constitution, and that sovereignty resides in Parliament instead of the people. As such, the proposal that some of these commissions be established by statute is untenable. The intention of the people of Kenya was to create constitutionally protected commissions as opposed to statutory commissions which can be abolished any time hence undermining the management of constitutionality.

Conclusion:

It must be emphasised that by not confining themselves to chapters and issues identified by PSC, PSC Subcommittee violated and exceeded its mandate. Further, the identification of consequential matters was also beyond the mandate of the PSC, as these are the province of the AG in drafting the proposed new Constitution.

1 (adjective) concentrating political power in few hands: the concentration of control, especially political control, in a single authority

CKRC Sends A Legal Note to Nyachae's Kilifi Draft Committee

2005-08-04T09:06:00.000-04:00

LEGAL OPINION TO THE Parliamentary Select Committee AND COMMENTARY ON THE LAST PHASE OF THE REVIEW PROCESS FROM THE Constitution of Kenya Review Commission

Parliamentary Select Committee Chairman and Co-Author of Kilifi Draft, Mr.Simeon Nyachae

July 2005

Summary of Issues

1.Develop an objective criteria for building a national consensus;
2.Develop an objective criteria for making any possible changes to the Draft Constitution of Kenya (2004);
3.Analyse the Naivasha Accord vis-a-vis the above criteria.

Preamble

The Commission underscores and recognises the need to undertake national consensus on the new Constitution. This has been necessitated by the imperative of establishing a constitutional dispensation that is acceptable to the majority of Kenyans. Towards this end, the Constitution of Kenya Review Act (Cap 3A) has been amended to provide a framework for consensus building.

PART ONE: LEGAL FRAMEWORK FOR CONSENSUS BUILDING

The Constitution of Kenya Review (Amendment) Act 2004 places a responsibility on the National Assembly and the Parliamentary Select Committee (PSC) on the Review of the Constitution to spearhead the consensus building efforts.

(i)Identification of Contentious Issues

In spearheading these consensus-building efforts and identifying contentious issues, the National Assembly will be required to undertake the following:

Receive and consider the Report of the Commission and the Draft Constitution as adopted by the National Constitutional Conference on 15th March 2004.
The PSC will identify and recommend to the National Assembly contentious issues in the Draft Constitution on which consensus is necessary.

The National Assembly, upon deliberation, will approve the list of contentious issues in the Draft Constitution.

Following the identification and approval of the list of contentious issues, subsequent consensus building efforts will be confined to the approved list of contentious issues. This shuts the door on other issues falling outside the list of approved contentious issues. This was designed to immunise the review process from perpetual limbo of contention.

(ii)Building Consensus on the Approved List of Contentious Issues

The Constitution of Kenya Review Act, as amended, provides that in considering the Report and Draft Bill, the National Assembly may undertake consultations to promote, initiate and facilitate a national consensus on the list of contentious issues as approved by the National Assembly.

Although this section uses the term may, this section read together with section 5 of the Constitution of Kenya Review Act obligates the National Assembly to undertake consultations to build a national consensus. Section 5 provides that the organs of the review shall

be accountable to the people of Kenya;
ensure that the review process accommodates the diversity of the Kenyan people;
ensure that the review process -
provides the people of Kenya with an opportunity to actively, freely and meaningfully participate in generating and debating proposals to alter the Constitution;
is conducted in an open manner; and
is guided by respect for the universal principles of human rights, gender equity and democracy; and
ensure that the final outcome of the review process faithfully reflects the wishes of the people of Kenya.

This section does not only obligate the National Assembly as one of the organs of the review to consult, but also defines the parameters, manner and quality of such consultations. This interpretation is based on the principle that the amendment could not have been intended to override the guiding principles of the review which are mandatory.

(iii)Processing the Contentious Issues

The law requires the PSC to conduct wide consultations and make recommendations on the contentious issues to the National Assembly.

The National Assembly is required to debate and adopt with or without amendment(s) the recommendations of the PSC.

(iv) Transmission of the Recommendations of the National Assembly to the AG

The National Assembly is required to transmit the Report of the Commission and the Draft Constitution and its recommendations on the contentious issues to the Attorney General.
Within thirty days, the Attorney General is required to incorporate the recommendations of the National Assembly into the Draft Constitution and publish the same as the proposed new Constitution.

(iv)Approval of the Proposed new Constitution by the People

The amended law under s. 27(3) requires the Electoral Commission to conduct a referendum to give the people of Kenya the opportunity to ratify the proposed new Constitution within 90 days after the AG publishes the proposed new Constitution.

On the whole, this legal framework together with the requirements on the holding of the referendum, raises legal concerns which were referred to in the statement of the Chairperson in our joint meeting with the PSC on Friday the 17th day of June 2005. The statement read in part that:

The Commission would like to seek an opportunity to discuss legal concerns with you so that the two bodies could brainstorm on the possible strategies for protecting the process from any challenge.

We look forward to the opportunity to raise these concerns before it is too late.

PART TWO: IMPERATIVES IN THE CONSIDERATION OF ANY CHANGES IN THE DRAFT CONSTITUTION

In considering any possible changes to the Draft Constitution, it is important to recognise and maintain a healthy relationship between the theoretical framework of values and the architectural design option chosen as infrastructure for the actualisation of those values. Often, a choice of a wrong architectural design option ends up rendering impossible the actualisation of the desired values and may end up reducing those values to mere platitudes. This may also result in a document that has internal inconsistencies and contradictions.

In particular, therefore, the consensus building efforts must respect and take cognisance of the following imperatives:

The Principles guiding the review process as enumerated in sections 3, 5, 17 and the relevant Schedules of the Constitution of Kenya Review Act;
Sections 3 and 17 in particular enumerate the governance values that must inform the new Constitution.

The Philosophy, architecture, and design of the Draft Constitution of Kenya as adopted by the National Constitutional Conference (Bomas); and
The necessity of respecting the basic structure and internal integrity of the Draft Constitution.

In our considered view, disregard of these parameters will not attain a national consensus acceptable to the majority of Kenyans and may lead to further acrimony and division of the country into factions, thus making it impossible to arrive at a legitimate outcome in the referendum, particularly taking into consideration the fact that up to the end of the National Constitutional Conference, the review process had cumulatively built a measure of consensus among the people. The Sulumeti I and II are testament to these efforts. The Sulumeti II, in particular, should be instructive in narrowing down what is in contention in the Draft Constitution. Given this background, it would be necessary to avoid reopening matters in which consensus had been attained at the National Constitutional Conference.

In an effort to build a national consensus, two significant steps have been taken since Bomas:

a)Political leaders representing parliamentary parties as represented in the Select Committee on the Review of the Constitution met in Naivasha in November 2004 and produced proposals to reach a national consensus. This has been documented in a report commonly referred to as the Naivasha Accord. The Commission was represented by five Commissioners, but only as observers.

b)The National Assembly has approved a list of Chapters in the Draft Constitution where contentious issues are to be found.

PART THREE: ANALYSIS OF THE NAIVASHA ACCORD ON THE BASIS OF THE THREE IMPERATIVES

The Naivasha Accord identified several issues as contentious and made proposals on how to resolve them as discussed below:

Chapter 4: Citizenship

a)The Naivasha Accord recommends that the provision on dual citizenship should allow for citizens of Kenya by birth. This recommendation is in agreement with the spirit of deliberations at the National Constitutional Conference.

b)The Naivasha Accord proposes under article 17(1) to delete the words “is entitled on application” and substitute therefor the words “is entitled to apply.”

Background to this provision

The current Constitution of Kenya under section 91 provides:

A woman who has been married to a citizen of Kenya is entitled, upon making application in such manner as may be prescribed by or under an Act of Parliament, to be registered as a citizen of Kenya.

Views of Kenyans

Kenyans felt that this provision discriminates against women and recommended that the right be expanded to include women in order to remove this discrimination. The Commission accepted this recommendation. The Report and Draft Bill (2002) provided in this regard, in article 20 (1), that:
A person who has been married to a citizen of Kenya for a period of not less than three years is entitled, on application, to be registered as a citizen of Kenya.

During deliberations at the National Constitutional Conference, objections to the expansion of this right to cover women were raised on the ground that this provision may be open to abuse. It was argued that non-citizen men would take advantage of Kenyan women in order to gain the right to be registered as Kenyan citizens. Upon reflection and negotiations, the Conference resolved that in order to remove the potential of abuse for both men and women, the three years waiting period be extended to seven years.

This provision was, therefore, never identified as a contentious issue in the Sulumeti II Report.

It is notable that the formulation is entitled upon making application, was never contentious in section 91 of the current Constitution of Kenya when the right was only enjoyed by men.

Recommendation: Since the underlying principle of the article is to eliminate sex based discrimination, we take the view that the proposed formulation in article 17(1) should be retained. As such the Naivasha accord proposal should be abandoned.

Chapter 6: Bill of Rights

The Naivasha Accord recommends limitations on some specific rights, namely the right to life (article 34), freedom of the media (article 50) and access to information (article 51). These recommendations proceed from the assumption that the Draft Constitution does not provide limitations to these rights and that they are absolute. This assumption is false because all the rights in the Bill of Rights are subject to limitations as provided for by article 33 of the Bill of Rights.

The Background to the limitation mechanism

The Bill of Rights in the current Constitution has been described as a Bill of Derogations because it grants rights with one hand and takes them away with the other. Comparative constitutional studies informed the Commission that the approach to the limitation of rights is based on an outdated model used in Europe in the 18th century. The European countries that have made and/or reviewed their constitutions since the mid 20th century, have departed from this archaic approach and have adopted a progressive approach which provides rights in separate articles and a single general limitation clause to be observed by any person or institution seeking to limit these rights. This approach began with the German Basic Law of 1949; was picked up by the Canadian Charter of Rights and Freedoms of 1982 and recently, in Africa, by both the Interim Constitution of South Africa of 1993 and the Final Constitution of the Republic of South Africa of 1996. The main difference between the two approaches is that whereas the old approach emphasizes the limitation of rights, the new approach emphasises the enjoyment of rights but recognises that rights are not absolute but are subject to limitations. This approach grants the power to limit rights but recognises that the power to limit rights is itself not unlimited. This approach therefore emphasizes the limitation of the power and the curtailment of arbitrariness. The burden of proof, therefore, shifts to the person or institution seeking to limit that right.

As such, to subject certain rights to specific limitations is to subject them to double limitation. Such double limitation would be in contravention of the objects of the review and the international human rights norms and standards.

Recommendation: The Naivasha Accord’s recommendations under this Chapter are not necessary and as such we propose the retention of the articles therein as formulated. Notably, these recommendations were not contentious issues in Sulumeti II.

Chapter 10: Representation of the People

The Naivasha Accord affirmed the Chapter on Representation in its entirety as not contentious.

Recommendation: We appreciate and support the recommendation of the Naivasha Accord that this Chapter should remain as it is in the Draft Constitution. Its inclusion in the new list of contentious issues by the National Assembly is therefore misplaced and erroneous.

Chapter 11: The Legislature

The Naivasha Accord recommends the scrapping of the Senate in the Draft Constitution. In place thereof, it recommends the establishment of a forum for the leaders of the Counties to meet and deliberate on issues affecting the Counties. The Accord further recommends a process of impeachment of the President by the National Assembly by a two-thirds majority of all members of the National Assembly.

These recommendations proceeded from the assumption that the only functions of the Senate would be the impeachment of the President and the provision of a forum for the leaders of the devolved governments to deliberate on the issues affecting their devolved governments.

In our considered opinion, the Senate is an indispensable and integral part of the basic structure of the Draft Constitution and its removal will undermine the internal integrity, philosophy, architecture and design of the document, thereby fundamentally altering the character and infrastructure designed to actualise the values of good governance in the new constitutional framework.

(i)The Role of the Senate in Devolution

The Draft Constitution has settled for a devolved system of government with government at the national and devolved levels. In this system of government, the legislative function at the national level is intended to be a shared function between the national level and the devolved levels of government. First and foremost, the Senate lies at the very heart of the definition of devolution. One of the main defining features of a devolved system of government is that the governments created at different levels are coordinate and not subordinate to each other. They are coordinate because each one of them derives its authority and legitimacy directly from the Constitution and not from another level of government. None is a mere agent of any of the other levels.

To maintain this constitutional theory and value of being coordinate, the architecture and design demand that the power to alter the instrument from which each derives its authority (the constitution) is shared and not arbitrarily and unilaterally exercised by a single level of government. If this power were not to be shared, the system would have been converted from being coordinate to being subordinate, and, therefore, no longer devolution. This is because the level of government that would have the unilateral power to alter the Constitution would be able through such alterations to abolish the other levels of government. Therefore, the design of a proper system of devolution requires the sharing of this power. In sharing these powers, the Constitution must provide the institutions through which the different levels of government will share these powers, hence the concept of a bicameral legislature.

In choosing a devolved system of government, Kenyans, informed by the current discretionary system of sharing resources, wanted to establish a system with minimised discretion and increased consultation and negotiation. Therefore, the devolved governments are given an opportunity to share in the passing of Money Bills, most importantly the division of revenue Bill. It is the Senate that provides the institution through which the devolved governments share this function. Without the Senate, therefore, we will revert back to the current system of political patronage in the sharing of resources by the centre.

(ii)Electoral Reform and Representation

The Commission received many proposals from the Kenyan people on how to reform the electoral and representation system. Broadly, these views may be classified into two categories: those who proposed the alteration of the first-past-the-post (majoritarian) system because of its inherent unfairness and those who made presentations on the relationship of representation and population on the one hand and representation and region/community of interest on the other. The solution for curing these competing interests was based on two philosophies: one was to balance between the competing interests of those who come from populous communities living in geographically small areas and those who come from less populous communities living in vast areas. The solution to this problem in the Bomas Draft Constitution is to have National Assembly constituencies based on weighted population and a Senate with equal representation based on regions. The Senate takes into account some measure of equality regardless of population and size. The design of the US and South African bicameral legislatures have adopted this principle of equality of States/Provinces in representation in the Senate.

(iii)Public Participation in the legislative process

The Draft Constitution has adopted a philosophy of public participation in governance. This has been done through different structures and processes. The bicameral legislature has been designed to ensure that the people participate in the legislative process directly and indirectly. The Senate would provide a second level for public participation in lawmaking. This is a fundamental right of the people to exercise their sovereignty. Indeed, this is key to the objects and principles guiding the constitutional review process, and its entrenchment would set the stage for a constitutional framework in which the people are primary to the governance process.

(iv)Expanding Representation

In presenting their views to the Commission, the people of Kenya demanded that there should be diversity of representation in the legislature. The Draft Constitution has provided for representation of different groups to this effect in the Senate. The theory of the Senate also seeks to remove the dynamics of party politics in the legislative process, by requiring that election /nomination to the Senate is non-partisan and not based on political parties. This would bring on board some members of Parliament not affiliated to any political party.

(v)Expanded Capacity of law making

It is envisaged that upon the coming into force of the new Constitution, a number of consequential legislations should be enacted to facilitate the realisation of the provisions of the Constitution. It is also envisaged that the legislative agenda under the new constitutional framework will be wider than under the current Constitution. A two chamber parliament provides for lawmaking simultaneously.

(vi) Expanded oversight responsibilities of Parliament

The design of the Draft Constitution has provided for oversight over the governance process by the people through their representatives, namely Parliament. In checking these powers, Parliament’s oversight role has been expanded in the Draft Constitution. The Legislature’s ability to perform this role effectively depends on the design of this institution. The establishment of a bicameral Parliament enhances the ability of Parliament’s oversight by establishing two levels of checks. For instance, the vetting of executive appointments will be subjected to effective checks by requiring that the each of the two chambers is not arbitrary. It is obvious that the amount of vetting by lawmakers expected in the new Constitution cannot be practically and effectively undertaken by one chamber.

(vii) The Impeachment Process

We also hold the view that it is impossible to have an impeachment process with integrity through one chamber of Parliament. The impeachment process is essentially a political and not a judicial process. Comparative constitutional studies show that there are two main reasons why it is political rather than judicial. First, its exclusion from the judicial domain immunises the judiciary from being embroiled in political fights and differences among elected leaders. It is now developed theory that the removal of a popularly elected leader must be undertaken by leaders similarly elected by popular mandate. This is based on the fact that there is real possibility of a sitting President opting to appeal to his popular mandate, which may be only countered by the Legislature which can also appeal to its electorate. The Judiciary cannot and should not step into this political arena and appeal to the electorate.

Second, in granting the impeachment power to the Legislature, the rules of natural justice must be observed. The fundamental tenets of this principle require that one cannot be a judge in his/her own cause, and that one cannot be prosecutor, jury, judge as well as executor in the same case. It is for this reason that in the USA experience, the Chief Justice sits in and chairs the impeachment proceedings in the Senate for purposes of ensuring that the rules of natural justice are observed. This has informed the approach followed in the Draft Constitution. In a presidential system of government, which by necessity, must have an impeachment process, a two-chamber legislature becomes necessary. One chamber is given the role of framing and initiating the charges, while the other chamber tries the charges.

Further, it is also important to note that a momentous political action of removing a sitting President would enjoy further legitimacy by requiring that a qualified majority be attained in two chambers. It is notable that the Naivasha Accord adopts a presidential system, with no clear separation between the Executive and the Legislature. If adopted, this arrangement would undermine the effectiveness and integrity of the impeachment process, should it be initiated, owing to the fact that members of the Executive sit in the National Assembly, and would naturally align themselves with the executive on the question of impeachment.

Additionally, the Senate would

Provide the infrastructure for the actualisation of the values and principles under the Chapters National Goals, Values and Principles, the Republic, Culture and the protection and realisation of human rights in the new constitutional dispensation.

Strengthen the legislative process and rationalise the process of lawmaking.
Enhance the gestation period of lawmaking.

Expand the range, number and quality of legislation.

Provide an avenue for the process of constitutional amendment.

Prevent the potential excesses of a unicameral Parliament.

Provide a principal arena in the devolution and exercise of power.

Enhance separation of powers of the organs of the state.

Safeguard the management of constitutionality.

Recommendation: For all these reasons, and taking into account that the Chapter on the legislature and in particular the Senate was not a contentious issue in Sulumeti I and II, we recommend that the Senate should be retained as an integral part of the basic structure. We note the arguments that have been advanced against the Senate, namely costs, and the complex procedures which may be involved. Considering the benefits of the Senate as discussed above, these arguments are without merit.

Chapter 12: The Executive

The construction of executive power is informed by constitutional theory on systems of government namely the
Presidential;
Parliamentary; and
hybrid (semi-presidential and semi parliamentary) systems.

In a presidential system, the chief executive is both the head of state and head of government, and there is a clear and distinct separation between the legislature and the executive. Under this arrangement, members of the executive are not drawn from the legislature. In a parliamentary system, the head of state and the head of government are separate, with the former playing a ceremonial role, such as the Westminster model. In this system of government, the executive is drawn from the legislature.

The hybrid system of government has two variants: the semi-presidential systems and the semi-parliamentary systems. The semi-presidential tilts executive power towards the President such as the French Constitution whereas the semi-parliamentary system tilts executive power towards the Premier as in the German Constitution. In each of these systems, there are checks and balances designed to suit it and these checks cannot be substituted for the other. The historical context in Kenya is instructional in that the Constitution was changed after independence from a parliamentary to a presidential system, without instituting checks suitable for a presidential system. The upshot wais that the current Constitution has neither the parliamentary checks nor the presidential checks leading to what has been referred to as an “imperial presidency.”

In reconciling the competing views of the people of Kenya, the Draft Constitution has adopted a mixed system of government that takes into account the advantages of all the different systems of government. The Naivasha Accord departs from this approach and proposes a presidential system but does not adopt the relevant and requisite checks and balances. Although reference has been made to the Tanzanian model in the Naivasha Accord by commentators, it has not been pointed out that the Tanzanian model is a purely presidential system, with no checks and balances. Besides, the Tanzanian model, like the current Kenyan imperial presidency evolved from a dictatorial single-party system.

Recommendation: If the Naivasha Accord presidential model is adopted, it must be accompanied by its classical and requisite checks and balances. Prominent among these checks is the requirement for a clear and distinct separation of powers between the executive and the legislature. The members of the cabinet will by necessity have to be appointed from outside Parliament.

Chapter 13: The Judicial and Legal System

The Naivasha Accord recommends that the limitation under article 33(5) be deleted. It further proposes that the words “and submit to the Court’s jurisdiction” be inserted at the end of article 199 of the Draft Constitution.

If the proposals by the Naivasha Accord were effected, Kadhis courts would not only become inoperable, but the accrued rights of Muslims in relation to personal law would have been taken away. The Kadhis courts as formulated in the Draft Constitution (2004) are a result of painstaking negotiations at the National Constitutional Conference between the Christians and Muslims. It was also agreed that the Kadhis courts as an institution are an infrastructure for the actualisation of Muslim women’s rights and part of the gains of women.

Recommendation: The articles should be retained as currently formulated in the Draft Constitution.

Chapter 14: Devolution

The Naivasha Accord proposes that ‘there should be two levels of devolution- the National and County’ and further that the ‘roles assigned to the Regions, the Districts and the Locations in the Draft Bill be brought together to be the roles of the Counties.’

It further recommends that criteria for determining the size and the number of the Counties be developed. At a subsequent meeting of 30th November 2004, it was recommended that the existing 74 districts shall be Counties; and that the Counties may be increased to no more than 100.

In asking for devolution, the Kenyan people demanded a system that would give them an opportunity for participation and self-governance and efficient and proximate delivery of services. They accepted and sought the principle of unity in diversity. In doing this, Kenyans were informed by their experience of the current centralised system of government that is very expensive but delivers no services to them. Against the background of the current system is characterised by a weak local government system with strong central controls, Kenyans demanded a complete overhaul. They demanded devolution and not delegation or deconcentration.

It must be noted that the Draft Constitution of Kenya is a compromise because it provides a “middle ground” between the proponents of unitarism and federalism. It provides for regional governments, with coordinative powers, and the district government as the principal level of devolution.

The Naivasha accord in relation to devolution is therefore a drastic enterprise. The design does not adhere to the principles and objects of devolution. It departs from the views of the people. It violates the principles of devolution such as subsidiarity, public participation and self-governance. It establishes two levels (actually one level, the county) and does not clarify whether the county is a devolved or local government. It creates between 74 and 100 units of government, which is conducive to recentralisation. Indeed, the arrangement is not in any significant way better than the present system. It must also be noted that it is atypical for countries to have such high number of principal levels of devolution. The US is the closest with such a number of levels (54 States). But the US is a vast country, with a population ten times Kenya’s population.

At the heart of the demand for devolution is the need for a system with fair sharing of resources and finances and even development of all regions of the country. The proposed system in the Naivasha Accord will fundamentally impact on the design and principles of the Draft Constitution in respect of a consultative and negotiative system of resource and finance sharing between the governments. As already noted, the architecture and design of the Draft Constitution seeks to minimise discretion and maximise consultation and negotiation in this area. It also seeks to ensure equity and equalisation in the allocation of resources. For purposes of the protection of the devolved levels of government, the design emphasizes the participation of the devolved levels of government in this process. It is for this reason that the devolved levels of government are given two constitutional forums through which to participate in this process, namely the Senate and the Commission on Revenue Allocation. The Commission on Revenue Allocation is designed in such a manner as to give the devolved levels of government higher representation than the national level of government. It has twenty-one Commissioners, out of whom sixteen represent the interests of devolved governments. Each one of the fourteen regions nominates one, and the association of district governments nominates two.

The Naivasha Accord’s proposal to scrap the regional level of government will obviously necessitate the reconstitution of this Commission. This reconstitution will destabilise the balance of interests that had been intended to be in favour of the devolved governments. If the concept of one Commissioner representing each Region is transferred to the 74 or more counties, the end result will be a mammoth Commission. On the other hand, if the route of increasing the representation of counties (since the districts are proposed to be counties) to 16 is taken, the intended balance of interests in favour of the devolved governments will be reversed.

This approach would be susceptible to divide and rule by the centre. When taken together with the Naivasha Accord proposal to scrap the Senate, this proposal is designed to defeat the purposes, object and principle of devolution, taking us back to the discretionary and arbitrary current system of resource allocation.

The proposal to scrap the regional government creates a huge distance between the county level of government and the national government. On the other hand, the scrapping of the locational government also alienates the people from the governance process, yet the people of Kenya had made proposals for governance closer to them.

Recommendation: For all these reasons, the Naivasha Accord proposals will in our considered view fundamentally alter the nature, character, principles and the very definition of devolution in the Draft Constitution. Further, the removal of devolution would alter the basic structure of the Draft Constitution.

Chapter 19: Constitutional Commissions

The Naivasha Accord proposes the scrapping of a number of Commissions in the Draft Constitution and the establishment of the following Commissions in the Constitution:
(a)Public Service Commission;
(b)Parliamentary Service Commission;
(c)Electoral and Boundaries Commission;
(d)Judicial Service Commission and
(e)Commission on Revenue Allocation.

It proposes that some of the Commissions established in the Draft Constitution should be established by or under legislation. In our considered opinion, the Naivasha approach disregards the underlying philosophy in the design of constitutional commissions and constitutional offices in the Draft Constitution. The commissions and constitutional offices created in the Draft Constitution are part of the institutional framework for the implementation of the Draft Constitution. The institutional design of the Draft has expanded the traditional form that creates separation of powers and checks and balances between the legislature, the executive and the judiciary. Informed by the views of the people, our history and constitutional developments in the world over, the design of the Draft Constitution expands these roles of implementation of the Constitution and management of constitutionality to include constitutional commissions and offices.

The approach is that constitutional values and principles are accompanied by constitutional institutional framework that act as infrastructure for implementation of those values. For example, the chapters on the constitutive process of the state have two main institutional frameworks for implementation, namely the National Culture Commission and the Commission on Human Rights and Administrative Justice. By the same token, the Chapter on Leadership and Integrity has the Ethics and Integrity Commission as the institutional framework for implementation. This approach of establishing constitutional commissions as infrastructure for implementation has been adopted throughout the Draft Constitution. Their entrenchment in the Constitution gives them a constitutional basis for the management of constitutionality.

The powers of the legislature, like other organs, have been limited in the Draft Constitution. The Draft Constitution makes the people the repository of sovereignty, and limits the powers of the legislature. The Naivasha Accord proceeds from a different approach by construing parliamentary power as emanating from the supremacy of Parliament instead of the supremacy of the Constitution, and that sovereignty resides in Parliament instead of the people. As such, the proposal that some of these commissions be established by statute is untenable. The intention of the people of Kenya was to create constitutionally protected commissions as opposed to statutory commissions which can be abolished any time hence undermining the management of constitutionality.

Recommendation: Tampering with the institutional design and architecture will strip the Draft Constitution of its effectiveness, infrastructure and ability to manage constitutionality and implement the new Constitution.

Other Matters

The Naivasha Accord alleges that the Draft Constitution is voluminous and as such should be edited, and some of its provisions reduced to legislation. It must be appreciated that the size of the Draft Constitution was neither an accident nor an oversight. It was a deliberate move on account of the needs and fears of the people. Every Constitution is written to respond to the specific felt needs and history of the people and there is no standard size of a Constitution. For instance, the American Constitution, which has been repeatedly cited as very short was written over 250 years ago when the competing interests were still rudimentary and did not include the stakes of the African-Americans, women, indigenous peoples and minorities. Further, it is to be noted that each of the American States has its own Constitution, independent of the Federal Constitution. The Indian Constitution written in 1947 had to respond to the many claims of the time and has 395 articles. Other examples include New Zealand with 284articles, Nigeria with 318 articles and Columbia with 380 articles. The Draft Constitution, having take into consideration our history and the felt needs of the people, has only 311 articles. The Draft Constitution of Zambia, has not only heavily borrowed from the Draft Constitution of Kenya, but has also responded to the needs of its people by adopting 378 articles.

Conclusion:

We have set out objective criteria, which should guide possible changes to the Draft Constitution. If these criteria are followed, the end result will remain faithful to the views of the people of Kenya. In our considered opinion, the proposals in the Naivasha Accord fall short of these criteria.

LAKE VICTORIA, GREEDY COMPANIES, AND GULLIBLE AFRICAN LEADERS

2005-01-28T19:05:00.000-05:00

An Opinion Piece by Meshack Owino, Ph.D.(Rice University), Assistant Professor of African History at

Bloomsburg University

"...The chameleon gets behind the fly, remains motionless for some time, then he advances very slowly and gently, first putting forward one leg and then another. At last, when well within reach, he darts his tongue and the fly disappears. England is the chameleon and I am that fly..."

(King Lobengula of Ndebele Kingdom).

With the entry of two more foreign companies bidding for an economic monopoly of

Lake Victoria (The Sunday Standard, January 22, 2005), what more can we, the ordinary people of Kenya, expect in terms of controlling the resources of a country we should be calling our own? The people we elected to be our "leaders" have turned into robber barons selling off our country bit by bit. Soon these people who masquerade as leaders will be selling the people off to the highest bidder. By the end of this century, it will be a miracle if any Kenyan will still be left standing by these greedy African agents of neo-colonialism, agents who, in cahoots with multinational and transnational companies, are milking and bleeding the Kenyan people dry.

After selling off every moveable and portable asset in the country, every public toilet and every public cemetery, these greedy Kenya African leaders have now turned their greedy eyes onto inalienable, natural resources of our land like Lake Victoria. We are reading exposes in newspapers such as the Standard that these leader-turned-robbers have received, and have actually started to consider, applications by foreign companies to privatize Lake Victoria, the second largest water lake in the world, the source of livelihood for millions of people who are indigenous to the region. Whoever gave these leaders the right to award exclusive rights to our Lake Victoria to foreign companies is another matter altogether, but when these leaders claim that they are only but trying to see how to carefully and judiciously award a monopolistic control of the lake to a foreign concern without jeopardizing the rights of access of the local ordinary people, you are left wondering whether they know their history.

Applications such as the ones we are reading about with respect to Lake Victoria ought to be tossed into the garbage dump the moment they land on a government desk. Instead, we are reading that the applications are actually being considered by our leaders, who, unbelievably, come from around the Lake Victoria. It is incredible! By even considering the application to privatize Lake Victoria, the leaders, especially the ones from around Lake Victoria, are betraying a disturbing ignorance of the history of the last five hundred years of foreign exploitation of the African continent, a history which tells us exactly how empty rhetoric, sugar-coated lies, and outright and blatant violence have been used to take over the resources of the people of Africa. Our leaders seem to have forgotten that the fore-fathers of the same people who have now tabled an application to own exclusive rights to Lake Victoria were once slave traders, who forcibly captured and sold Africans like livestock at market places, putting Africans to the yoke and working them on plantations and mines. They seem to have forgotten how Africans who were too sick, tired, or old to work during the era of slave trade, were unceremoniously disposed off like dogs. This is something that went on for four hundred years. More than 20 million Africans died during this infamy, and the African continent was nearly destroyed. Have these leaders not heard about the slave trade, and sugar-coated lies that were used to justify it?

No sooner had the slave trade ended than the slave traders came back under a new guise and with another scheme. Colonialism, they said, was a good scheme for the African people. It would bring Christianity, Commerce, and Civilization to the "Dark Continent." The colonization of the African continent, Rudyard Kipling argued, was a "White Man's Burden," a white man's responsibility to shoulder on behalf of the hapless African. Colonialism was imposed on the African people using nearly the same rhetoric that are being used to sugar-coat applications to colonize Lake Victoria. In 1876,

King Leopold II of Belgium formed a company with a high sounding name: "The International Association for the Exploration and Civilization of Congo." The company, just like the ones now lining up to grab Lake Victoria, was marketed in Africa, Europe, and America, as a philanthropic outfit whose main objective was to "civilize" Africans in Central Africa, promote "legitimate commerce" as an alternative to the slave trade, and generally develop Africa. But Africans rued the day King Leopold II chanced on Congo. No sooner was King Leopold II's gimmick approved by the Berlin Conference of 1884-85 [never mind who gave the conference the right to divvy up the African continent] than he turned the people of Congo into his personal slaves, and their land into his own personal fiefdom. Millions died during Leopold II's civilization missions in Congo. Men and women were brutalized if they did not go to work for Leopold's companies, and their hands were chopped off as punishment. If one's hand had been chopped off, but one continued to malinger, Leopold II's companies would chop off one's children's hands! Children as young as five years were not spared in King Leopold II's philanthropic Congo Free State. The outcry unleashed by King Leopold II's atrocities in the Congo were too much even by the standard of European brutality at the time, and Belgium was forced to step in and take over the colony in 1908, promising to rehabilitate the colony. But that promise, too, was a pack of lies. Have our leaders not heard about Leopold and the nightmare he visited on the Congo?

Throughout the African continent, Africans were facing a similar fate after signing sugar-coated agreements with Europeans. Packaged and marketed as panaceas to Africa's problems, these agreements turned out to be elaborate schemes designed to dupe Africans into selling their birth-rights. In Zimbabwe, King Lobengula of Ndebele signed an agreement with the British South African Company after the company assured him after much hesitation that the agreement was only for the exploration of minerals in Ndebeleland. But no sooner was the ink on the agreement dry than King Lobengula learned that the Europeans, as usual, had tricked him. A furious King Lobengula tried to fight back, but by then it was too late. Using the fraudulent agreement, the British South Africa Company took over Ndebeleland, declared King Lobengula a terrorist, and hunted him down till he died in the bush, but not before the king ruefully recalled how he had been tricked into selling off his land the way a chameleon tricks a fly to come near, darts out a tongue, and gobbles up the fly; the Europeans were the chameleon, and Lobengula was the fly. Have our leaders not heard about the fate that befell Lobengula?

The Italians tried to pull off the same trick in Ethiopia when they lured

Emperor Menelik into signing the Treaty of Wichalle in 1889, keeping secret the fact that while the Amharic version of the agreement simply stated that the Italians and Ethiopians had entered into an agreement of friendship, the Italian version of the very same treaty declared that Emperor Menelik had agreed to place Ethiopia under the Italian protection. Emperor Menelik only learned later that he had gullibly signed off his country's sovereignty. He was only saved when he declared war on the Italians, and scored a massive military victory over them at the Battle of Adowa in 1896. Have our leaders forgotten about the Italian betrayal of Menelik?

Foreign, especially, Western, modus operandi of exploiting Africa and the Africans has always been the same. Lies and guile, and when lies and guile fail, force is used. They mislead you into entering an agreement proclaiming it as being in your interest, that the agreement can be temporary, and that there can be room for redress should you want to change your mind in the future. Only after signing the agreement do you learn of its full implications, and traps within it. You learn that you have been had, and there is no room for arbitration. The British misled Lenana into signing off the land of his own birth, the land of his people. To this day, the Maasai are refugees in their own land, still yearning for justice. When the British tried to pull off the same trick on the Nandi and failed, they resorted to force. It is always the same thing- the exploitation of the African people through lies or force or both - whether or not one is talking about the slave trade, colonialism, or neo-colonialism. It happened to

Khedive Ismail when he tried to modernize Egypt; to

Sekou Toure when he declared Guinea independent of France; to

Kwame Nkrumah when he tried to develop his country through programs of industrialization; to

Laurent Kabila when he tried to free his country from the shackles of western exploitation; it is a story that is as old as foreign relations with Africa. The evidence of foreign exploitation of Africa under the guise of developing Africa is all over the place. The evidence of foreign mendacity and duplicity in the exploitation of our continent is all there. Why our people don't see or get it, I just don't understand!

Why are we African people so gullible? When will our leaders learn from our history? Why do we make the same mistake after mistake instead of learning from our history, which is littered with example after example of foreign ventures that were marketed to our people as being altruistic only to become millstones around our necks? Or do the leaders know about the history only that they are too greedy to care? In that case, pity the African people – for the fate of Lobengula awaits us.