Thomas Jefferson once said that, "the only security of all is in a free press.” He further opined that “the force of public opinion cannot be resisted when permitted freely to be expressed. The agitation it produces must be submitted to. It is necessary, to keep the waters pure." The import of this avowal cannot be gainsaid.
We are all witnesses to what is transpiring in the Arab world, where two political regimes have already been disposed of by popular uprisings fuelled by the powerful mass media. Many other political regimes in the region are standing on political quick sand. It is only a matter of time before they are relegated to political Siberia thanks to the catalytic nature of the liberal media. African dictators are having their worst nightmare on how to contain this roguish foe. Many of them will elect not to encourage the freedom of the mass media for fear of the resultant political agitation. They will thus use every trick in the book to gag the liberal media. This may not be done overtly due to fear of international condemnations.
In order to accomplish this objective without causing a furore, many heads of states and their ideological heirs will ensure that media outlets are highly concentrated and dominated by a clique of politicians and conglomerates whose ideological leanings are not a threat to the political establishments of the day. The intent will be to ensure that the listenership, viewership and readership of these outlets is widely dispersed and, in the words of T.S. Elliot, “like foxes that have an interest in prolonging the lives of poultry”, they will ensure that only opinions favorable to their political cause will be churned out to the unsuspecting public while all other opinions will be repressed.
This view may look farfetched; however, the reality is that it is happening in Kenya. Mergers and acquisitions of media outlets by politicians either directly or through proxy is on the rise. The effect of these mergers and acquisitions has been that these newly acquired or merging media outlets have become captives to political interests.
Scribes on the payroll of these media outlets are crying foul that viewpoint discrimination through discreet outlawing of opinion that is not in the best interest of the media owners is on the increase. They lament that most of their opinions do not see the light of the day or are edited beyond recognition especially if such scribes have unearthed potentially damaging information concerning certain politicians who are either friends of media owners or part owners of the media house(s) that these scribes work for. Moreover, editorial values are rarely subject to detailed exegesis in the Editorial Guidelines.
From the foregoing, it can only be concluded that monopolistic control of the media market by wily individuals is likely to lead to the shrinking of the democratic space in the country. This is of course sweet music to the ears of despotic heads of states. Such leaders will not hesitate to facilitate an increase in concentration of media outlets in the hands of a few wily individuals and subsequently reduce the overall quality and diversity of information communicated through major media channels.
Ultimately, this gives rise to a poorly-informed public, which is restricted to an array of biased media. Such media will be out to offer information that does not jeopardize the political interests of the incumbent and his or her ideological heirs. In his book titled “Human Liberty and Freedom of Speech” Edwin Baker opines that “media freedom must be that which is geared towards the creation and maintenance of a healthy democracy in which all citizens would flourish.” Media concentration that is an antithesis to media freedom is therefore sociologically detrimental and dangerous to any civilized society.
Sunday, February 20, 2011
Saturday, February 19, 2011
THE SANCTITY OF THE NEW CONSTITUTION HAS NOTHING IN COMMON WITH POPULARITY CONTESTS.
I must confess that I was disappointed by honorable Uhuru Kenyatta`s reaction when the House Speaker ruled that president Kibaki`s nominations were unconstitutional. Uhuru was far from the vibrant, colorful and respectable gentleman that I have known and respected for so many years. In fact, I tried hard to convince myself that the man before the cameras was but his caricature.
Staring into the cameras in so threatening a manner, he threw his hands in the air, waxing lyrical about the speaker and the PM berating the president. His speech was punctuated with heavy heaving that was in itself an indication that he felt more than half-disposed to revenge. The scene was akin to that of contending professional boxers who consumed by anger, they wish to immediately beat senseless their opponents during the weigh-in and press briefing session prior to the bout. It is no wonder that my four year old daughter cringed every time Uhuru clenched his fist and hit the table so hard.
It is incomprehensible that a man who grew up in the most decent and sophisticated places in the world, tutored by the best instructors on public discourses and anger management could so shamelessly allow himself to be consumed with anger to the extent of becoming incoherent. This is why he does not see the difference between the sanctity of the new constitution and popularity contests. I dare say that it is incomprehensible for Uhuru who even in the face of the most trying moments of his life has always managed to get his act together to allow himself to be so ruffled by the speaker`s ruling.
But then, what exactly did Uhuru mean when he mumbled something about the new constitution giving the president a carte blanche to nominate those he deems fit? If what he alluded meant the president, thinking within the box rather than outside the box then I must confess that Uhuru got the intent and objectives of the new constitution wrong.
This is because thinking within the box is less challenging and is expedient to one's own short-term interest or political survival, but Uhuru ought to know that this is the very culture that Kenyans have decried. It is this culture that took this nation to the dogs. Unfortunately, Uhuru and many of his ilk were tutored in the same culture. This is why it is unsurprising that they still have the perception that even with the new constitution political leaders can always play the Russian roulette with the lives of Kenyans. To such politicians nothing will change for the better in our country, except for the lives of the few wily politicians, more so, those born with silver spoons in their mouths and those who are always privileged enough to enjoy the trappings of power. These are politicians who have the tendency of thinking that they own the country.
Fortunately, none other than president Kibaki himself went to the streets to fight against this culture during the second liberation of this country. I therefore have no doubt whatsoever that the president took the speaker`s ruling with a stride.
The unfortunate culture aside, I am still left wondering why Uhuru was behaving like the proverbial mourner who sheds more tears than the bereaved. Given that it is not his nominees that were rejected, I am still looking for a clue on why he seemed so rattled by the speaker`s ruling that he became incapable of conducting himself with decorum. May be I am stretching my imagination a bit far, but bear with me for entertaining the thought that perhaps Uhuru had a hand in picking those who successfully made it to the disgraced list of nominees.
Perhaps, this had everything to do with a pre-determined ruling in favour of the Ocampo six were the UN Security Council to grant us the plea for a deferral and later a referral based on the understanding that Kenya had established a “credible Judicial mechanism.”
Staring into the cameras in so threatening a manner, he threw his hands in the air, waxing lyrical about the speaker and the PM berating the president. His speech was punctuated with heavy heaving that was in itself an indication that he felt more than half-disposed to revenge. The scene was akin to that of contending professional boxers who consumed by anger, they wish to immediately beat senseless their opponents during the weigh-in and press briefing session prior to the bout. It is no wonder that my four year old daughter cringed every time Uhuru clenched his fist and hit the table so hard.
It is incomprehensible that a man who grew up in the most decent and sophisticated places in the world, tutored by the best instructors on public discourses and anger management could so shamelessly allow himself to be consumed with anger to the extent of becoming incoherent. This is why he does not see the difference between the sanctity of the new constitution and popularity contests. I dare say that it is incomprehensible for Uhuru who even in the face of the most trying moments of his life has always managed to get his act together to allow himself to be so ruffled by the speaker`s ruling.
But then, what exactly did Uhuru mean when he mumbled something about the new constitution giving the president a carte blanche to nominate those he deems fit? If what he alluded meant the president, thinking within the box rather than outside the box then I must confess that Uhuru got the intent and objectives of the new constitution wrong.
This is because thinking within the box is less challenging and is expedient to one's own short-term interest or political survival, but Uhuru ought to know that this is the very culture that Kenyans have decried. It is this culture that took this nation to the dogs. Unfortunately, Uhuru and many of his ilk were tutored in the same culture. This is why it is unsurprising that they still have the perception that even with the new constitution political leaders can always play the Russian roulette with the lives of Kenyans. To such politicians nothing will change for the better in our country, except for the lives of the few wily politicians, more so, those born with silver spoons in their mouths and those who are always privileged enough to enjoy the trappings of power. These are politicians who have the tendency of thinking that they own the country.
Fortunately, none other than president Kibaki himself went to the streets to fight against this culture during the second liberation of this country. I therefore have no doubt whatsoever that the president took the speaker`s ruling with a stride.
The unfortunate culture aside, I am still left wondering why Uhuru was behaving like the proverbial mourner who sheds more tears than the bereaved. Given that it is not his nominees that were rejected, I am still looking for a clue on why he seemed so rattled by the speaker`s ruling that he became incapable of conducting himself with decorum. May be I am stretching my imagination a bit far, but bear with me for entertaining the thought that perhaps Uhuru had a hand in picking those who successfully made it to the disgraced list of nominees.
Perhaps, this had everything to do with a pre-determined ruling in favour of the Ocampo six were the UN Security Council to grant us the plea for a deferral and later a referral based on the understanding that Kenya had established a “credible Judicial mechanism.”
Thursday, February 17, 2011
CULTURE OF IMPUNITY MAKES RECURRENCE OF PEV A REALITY.
A section of legislators have been fast and furious in accusing Prime Minister Raila Odinga of incitement over remarks he recently made that the country may experience a worse round of electioneering related violence if the perpetrators of the 2007-2008 PEV are not prosecuted. These legislators have demonstrated a penchant for quoting the PM out of context in order to paint to the public and the International Community an unfavorable picture of him. It would be a great disservice to the nation if these extremes of flippancy were to go unchallenged.
In order to appreciate the circumstances under which the PM made these remarks, I wish to draw the attention of these legislators` to findings of a research titled “Reaping the whirlwinds? The Socio-Economic implications of the 2008 post Election Violence” carried out in August 2010 by The Kenya for Peace with Truth and Justice (KPTJ). Therein are research findings that show that three quarters of Kenyans in the Rift Valley consider recurrence of ethnically motivated PEV as likely. It opines that about 40 percent of the respondents plan to relocate temporarily while fifteen percent plan to migrate permanently. All the respondents agree that bad politics and the Government`s inability to deliver justice to the victims of PEV is likely to fuel another round of ethnically motivated PEV. Studies undertaken by other bodies such as Kenya National Commission on Human Rights (KNCHR), the Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project, leading researchers such Synovate and Infotrak as well as a host of other civil society organizations have made similar observations within the same period.
Of much significance is the fact that these findings dovetail with findings of the Independent Review Committee (IREC) and the Commission of Inquiry into PEV (CIPEV). IREC recommended institutional reforms while CIPEV recommended that in order to tackle the culture of impunity and to prevent future recurrence of PEV there must be investigations and prosecutions of the perpetrators of the 2007 PEV.
However three years down the line, these reports seem to have found their way into the shredder. Implementation of these reports has been so much politicized. Currently there are many personal, political and even ethnic considerations surrounding the debate on the establishment of a credible local judicial mechanism to prosecute the suspects bearing the greatest responsibility over the 2007 PEV.
The country is increasingly being treated to ethnic political dynamics that are clearly aimed at subverting justice. Already some legislators are unreasonably and callously trying to push the country out of the Rome Statute as a way of expressing solidarity with those indicted. This is impunity par excellence.
The amended Set of Principles for the Protection and Promotion of Human Rights through Action to combat Impunity submitted to the United Nations Commission on Human Rights on 8 February 2005 defines impunity as: “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”
Moreover, the First Principle of the same document opines that “Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.”
Going by the above, suffice to say that impunity has taken a permanent abode in Kenya. Given the altercations surrounding the president`s nominations particularly into the judicial service commission, there is little doubt that Kenya has failed to put in place credible judicial mechanisms to oversee the delivery of justice. In spite of this, forces within Government are active in seeking referral, which has now been replaced with deferral of cases against the Ocampo six. Besides there has been a deliberate attempt by a section of the Government to incite other African countries (vide shuttle diplomacy) to pull en masse out of ICC.
Given that there those in government who can be so bold in rallying other countries to support our culture of impunity it can only be that there are individuals who are prepared to go to extreme ends to defeat justice even if it means reverting to chaos. These are the circumstances that forced the PM to speak out his fears over attempts by some individuals to forestall justice.
It is therefore an act of hypocrisy for a section of legislators to demand that the PM cites intelligence reports to back claims of recurrence of PEV in 2012. Curiously the same legislators have been quick to point out (without any iota of evidence) that the prosecution of those bearing greatest responsibility in the 2007-2008 PEV will be a serious threat to national peace and security.
It can only be that those castigating the PM over his remarks are predictably malicious as is attested by their fantastic misrepresentation of facts. Hidden behind their flippant remarks is a formidable façade to pamper impunity.
In order to appreciate the circumstances under which the PM made these remarks, I wish to draw the attention of these legislators` to findings of a research titled “Reaping the whirlwinds? The Socio-Economic implications of the 2008 post Election Violence” carried out in August 2010 by The Kenya for Peace with Truth and Justice (KPTJ). Therein are research findings that show that three quarters of Kenyans in the Rift Valley consider recurrence of ethnically motivated PEV as likely. It opines that about 40 percent of the respondents plan to relocate temporarily while fifteen percent plan to migrate permanently. All the respondents agree that bad politics and the Government`s inability to deliver justice to the victims of PEV is likely to fuel another round of ethnically motivated PEV. Studies undertaken by other bodies such as Kenya National Commission on Human Rights (KNCHR), the Kenya National Dialogue and Reconciliation (KNDR) Monitoring Project, leading researchers such Synovate and Infotrak as well as a host of other civil society organizations have made similar observations within the same period.
Of much significance is the fact that these findings dovetail with findings of the Independent Review Committee (IREC) and the Commission of Inquiry into PEV (CIPEV). IREC recommended institutional reforms while CIPEV recommended that in order to tackle the culture of impunity and to prevent future recurrence of PEV there must be investigations and prosecutions of the perpetrators of the 2007 PEV.
However three years down the line, these reports seem to have found their way into the shredder. Implementation of these reports has been so much politicized. Currently there are many personal, political and even ethnic considerations surrounding the debate on the establishment of a credible local judicial mechanism to prosecute the suspects bearing the greatest responsibility over the 2007 PEV.
The country is increasingly being treated to ethnic political dynamics that are clearly aimed at subverting justice. Already some legislators are unreasonably and callously trying to push the country out of the Rome Statute as a way of expressing solidarity with those indicted. This is impunity par excellence.
The amended Set of Principles for the Protection and Promotion of Human Rights through Action to combat Impunity submitted to the United Nations Commission on Human Rights on 8 February 2005 defines impunity as: “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”
Moreover, the First Principle of the same document opines that “Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.”
Going by the above, suffice to say that impunity has taken a permanent abode in Kenya. Given the altercations surrounding the president`s nominations particularly into the judicial service commission, there is little doubt that Kenya has failed to put in place credible judicial mechanisms to oversee the delivery of justice. In spite of this, forces within Government are active in seeking referral, which has now been replaced with deferral of cases against the Ocampo six. Besides there has been a deliberate attempt by a section of the Government to incite other African countries (vide shuttle diplomacy) to pull en masse out of ICC.
Given that there those in government who can be so bold in rallying other countries to support our culture of impunity it can only be that there are individuals who are prepared to go to extreme ends to defeat justice even if it means reverting to chaos. These are the circumstances that forced the PM to speak out his fears over attempts by some individuals to forestall justice.
It is therefore an act of hypocrisy for a section of legislators to demand that the PM cites intelligence reports to back claims of recurrence of PEV in 2012. Curiously the same legislators have been quick to point out (without any iota of evidence) that the prosecution of those bearing greatest responsibility in the 2007-2008 PEV will be a serious threat to national peace and security.
It can only be that those castigating the PM over his remarks are predictably malicious as is attested by their fantastic misrepresentation of facts. Hidden behind their flippant remarks is a formidable façade to pamper impunity.
Sunday, February 13, 2011
JUDICIARY MUST "LIFT THE CORPORATE VEIL" TO RECOVER STOLEN PUBLIC FUNDS AND PROPERTY.
In legal law and jurisprudence there exist three theories of legal personality: the realist, fiction and objective theories. But, it is the fiction personality theory that is quite controversial. Here, non-human or artificial bodies’ (such as companies) maybe legal entities through the fiction that human beings provide the mind and soul (corpus and animus). It therefore follows that companies have a legal identity as well as the right to own property. Companies can also sue as well as be sued in a court of law.
However, such legal entities cannot be physically present in a court of law for offences committed. Besides, such entities cannot be accused of perjury. Furthermore, unless it is through liquidation or winding up, they cannot be punished by death nor can they be subject to corporate punishment.
Given the above limitations Kenya has witnessed a worrying trend where wily individuals use companies as their alter ego. Here, a company is deliberately used to provide a legal shield for the wily individuals operating the company for their selfish intents. Such companies (some of which seem to enjoy protection from the political establishments of the day) have often gone under just before or soon after the respective political regimes come to an end. These conniving individuals hide behind “the limited liability” (which is metaphorically referred to as the “corporate veil”) whenever they are called upon to account for their mischief.
However, this protection may be pierced and personal liability imposed by the courts of law when a wily shareholder operates the company as an “alter ego” for wrongful purposes. It must be underscored that this veil is not in itself an absolute shield.
According to Wikipedia “piercing the corporate veil” is a legal decision to treat the rights or duties of a company as the rights or liabilities of its shareholders or directors. Usually a company is treated as a separate legal person, which is solely responsible for the debts it incurs and the sole beneficiary of the credit it is owed. Common law countries usually uphold this principle of separate personhood, but in exceptional situations courts of law may "pierce" or "lift" the corporate veil.
This doctrine is used by the courts to ignore the corporate status of a group of stockholders, officers, and directors of a corporation in reference to their limited liability so that they may be held personally liable for their actions when they have acted fraudulently or unjustly.
In order to have a better understanding of what “piercing the veil of a company” entails, let us take the example of a business man who leaves his job upon signing a contract forbidding him from competing with the company he has just left for a period of time. If he goes ahead to set up a company which competes with his former company, technically it would be the company and not the person competing. However, it is likely that a court of law would say that the new company was just a "sham", a "fraud" and would therefore allow the old company to sue the man for breach of contract.
A court of law would thus look beyond the legal fiction to the reality of the situation. Several courts have determined that the alter ego doctrine can be applied to Limited Liability Companies. In the US for instance, in Kaycee Land & Livestock versus Flahive, (2002), the Wyoming Supreme Court held that the equitable doctrine of piercing the veil was an available remedy under the Wyoming Limited Liability Company Act. In the UK, the corporate veil was lifted in the case between Gencor versus Dalby, because the company was the "alter ego" of the defendant.
From the foregoing, despite the terminology used that makes it appear as though a shareholder's limited liability emanates from the view that a company is a separate legal entity, the reality is that the entity status of companies has almost nothing to do with shareholder limited liability.
“Piercing the corporate veil” is therefore the only means of breaking down a wily individual`s protection. This is mostly done when such a company is the wily shareholder`s “alter ego” and is a sham or façade used to evade creditors or to defraud the public.
Given the soaring corruption cases in Kenya revolving around limited liability companies, it is the public`s expectation that the Kenyan courts would rise to the occasion by “lifting the corporate veil” to expose the real fraudsters. It would make a lot of social and economic sense if a company is barred from being the alter ego of the principal corporate.
However, such legal entities cannot be physically present in a court of law for offences committed. Besides, such entities cannot be accused of perjury. Furthermore, unless it is through liquidation or winding up, they cannot be punished by death nor can they be subject to corporate punishment.
Given the above limitations Kenya has witnessed a worrying trend where wily individuals use companies as their alter ego. Here, a company is deliberately used to provide a legal shield for the wily individuals operating the company for their selfish intents. Such companies (some of which seem to enjoy protection from the political establishments of the day) have often gone under just before or soon after the respective political regimes come to an end. These conniving individuals hide behind “the limited liability” (which is metaphorically referred to as the “corporate veil”) whenever they are called upon to account for their mischief.
However, this protection may be pierced and personal liability imposed by the courts of law when a wily shareholder operates the company as an “alter ego” for wrongful purposes. It must be underscored that this veil is not in itself an absolute shield.
According to Wikipedia “piercing the corporate veil” is a legal decision to treat the rights or duties of a company as the rights or liabilities of its shareholders or directors. Usually a company is treated as a separate legal person, which is solely responsible for the debts it incurs and the sole beneficiary of the credit it is owed. Common law countries usually uphold this principle of separate personhood, but in exceptional situations courts of law may "pierce" or "lift" the corporate veil.
This doctrine is used by the courts to ignore the corporate status of a group of stockholders, officers, and directors of a corporation in reference to their limited liability so that they may be held personally liable for their actions when they have acted fraudulently or unjustly.
In order to have a better understanding of what “piercing the veil of a company” entails, let us take the example of a business man who leaves his job upon signing a contract forbidding him from competing with the company he has just left for a period of time. If he goes ahead to set up a company which competes with his former company, technically it would be the company and not the person competing. However, it is likely that a court of law would say that the new company was just a "sham", a "fraud" and would therefore allow the old company to sue the man for breach of contract.
A court of law would thus look beyond the legal fiction to the reality of the situation. Several courts have determined that the alter ego doctrine can be applied to Limited Liability Companies. In the US for instance, in Kaycee Land & Livestock versus Flahive, (2002), the Wyoming Supreme Court held that the equitable doctrine of piercing the veil was an available remedy under the Wyoming Limited Liability Company Act. In the UK, the corporate veil was lifted in the case between Gencor versus Dalby, because the company was the "alter ego" of the defendant.
From the foregoing, despite the terminology used that makes it appear as though a shareholder's limited liability emanates from the view that a company is a separate legal entity, the reality is that the entity status of companies has almost nothing to do with shareholder limited liability.
“Piercing the corporate veil” is therefore the only means of breaking down a wily individual`s protection. This is mostly done when such a company is the wily shareholder`s “alter ego” and is a sham or façade used to evade creditors or to defraud the public.
Given the soaring corruption cases in Kenya revolving around limited liability companies, it is the public`s expectation that the Kenyan courts would rise to the occasion by “lifting the corporate veil” to expose the real fraudsters. It would make a lot of social and economic sense if a company is barred from being the alter ego of the principal corporate.
Sunday, February 6, 2011
VOTE OF NO CONFIDENCE AGAINST PM PREMISED ON WRONG REASONS.
The political marriage of convenience between certain legislators and their hitherto political nemeses has undeniably given them the numerical strength in the tenth Parliament. However, it is the manner in which these legislators intend to use their new found pact that is very much disconcerting.
First they threatened to impeach the House Speaker should his ruling regarding the constitutionality of the president`s controversial nominations go against their grains. Later own they threatened to pull out of the coalition government that they rightly accused of working at cross-purposes. On Friday last week, some legislators threatened to move a vote of no confidence against the PM for allegedly challenging the President`s “unfettered powers.”
While I acknowledge that moving a vote of no confidence against a leader of the PMs stature is the standard practice in many democracies around the world, I am also acutely aware of the fact that responsible Parliaments use this arsenal only with a view to checking on executive misconduct, or its effect, especially if the official`s unbecoming behavior subverts the structure of government or undermines the integrity of the office or the Constitution itself. In other words a vote of no confidence is only used if there is sufficient proof that a government official is behaving in a manner grossly incompatible with the proper function and purpose of the office. Secondly, it can also come in handy if such an official employs the power of his or her office for an improper purpose or for personal gain.
In Kenya such a threshold is seemingly non-existent. It may well be that a section of the political divide may invoke this power simply because they do not like one`s nose. This lacuna may seriously undermine the integrity of the office of the PM. Article 4(b) of the National Accord and Reconciliation Act, 2008, states that “the office of the Prime Minister shall become vacant if the National Assembly passes a resolution which is supported by a majority of all the members of the National Assembly, excluding the ex-officio members, and of which not less than seven days notice has been given, declaring that the National Assembly has no confidence in the Prime Minister.”
From the foregoing it is apparent that the grounds for the vote of no confidence are conspicuously missing hence leaving this crude weapon to become a matter of political expediency. Unfortunately, I can only compare the above scenario to that of monkey holding a loaded gun. In my view, the Prime Minister is simply supervising the implementation of the new constitution as per its letter and spirit. It is his constitutional duty to reject any underhand deals that may jeopardize cohesiveness in our diverse ethnic society. I thought that it would have been the failure on his part not to jealously guard the new constitution against desecration that would have engendered a vote of no confidence against him and not the other way round. Moving a vote of no confidence against the PM based on seeming realities constructed on pure lies will most certainly prove counter-productive.
In any case, those bent on exploiting this provision must know that the Judiciary, the Constitution Implementation Commission (CIC), the LSK, civil society and the public at large have all declared the nomination exercise unconstitutional. Thus, if parliament wanted to badly move a censure motion it is the President and not the PM who should be the victim of such a censure.
At this juncture, it is important to remind those legislators deluding themselves that in the event of a vote of no confidence against the PM, the president can then move forth to form a Government of National Unity and continue to govern as though nothing happened. Such a move would be tantamount to formation of a government through a serious fraud since we have not forgotten the fact that there was no clear winner in the 2007 presidential elections. Furthermore such an illegality is likely to further heighten the tensions in the country.
Lastly our legislators must know that the reason why the country at large is protesting these unilateral nominations is because they do not pass the credibility test to warrant the Kenya Government to convince the UN Security Council for either a referral or deferral of the ICC cases against the six Kenyans. I therefore implore legislators to allow reason to prevail.
First they threatened to impeach the House Speaker should his ruling regarding the constitutionality of the president`s controversial nominations go against their grains. Later own they threatened to pull out of the coalition government that they rightly accused of working at cross-purposes. On Friday last week, some legislators threatened to move a vote of no confidence against the PM for allegedly challenging the President`s “unfettered powers.”
While I acknowledge that moving a vote of no confidence against a leader of the PMs stature is the standard practice in many democracies around the world, I am also acutely aware of the fact that responsible Parliaments use this arsenal only with a view to checking on executive misconduct, or its effect, especially if the official`s unbecoming behavior subverts the structure of government or undermines the integrity of the office or the Constitution itself. In other words a vote of no confidence is only used if there is sufficient proof that a government official is behaving in a manner grossly incompatible with the proper function and purpose of the office. Secondly, it can also come in handy if such an official employs the power of his or her office for an improper purpose or for personal gain.
In Kenya such a threshold is seemingly non-existent. It may well be that a section of the political divide may invoke this power simply because they do not like one`s nose. This lacuna may seriously undermine the integrity of the office of the PM. Article 4(b) of the National Accord and Reconciliation Act, 2008, states that “the office of the Prime Minister shall become vacant if the National Assembly passes a resolution which is supported by a majority of all the members of the National Assembly, excluding the ex-officio members, and of which not less than seven days notice has been given, declaring that the National Assembly has no confidence in the Prime Minister.”
From the foregoing it is apparent that the grounds for the vote of no confidence are conspicuously missing hence leaving this crude weapon to become a matter of political expediency. Unfortunately, I can only compare the above scenario to that of monkey holding a loaded gun. In my view, the Prime Minister is simply supervising the implementation of the new constitution as per its letter and spirit. It is his constitutional duty to reject any underhand deals that may jeopardize cohesiveness in our diverse ethnic society. I thought that it would have been the failure on his part not to jealously guard the new constitution against desecration that would have engendered a vote of no confidence against him and not the other way round. Moving a vote of no confidence against the PM based on seeming realities constructed on pure lies will most certainly prove counter-productive.
In any case, those bent on exploiting this provision must know that the Judiciary, the Constitution Implementation Commission (CIC), the LSK, civil society and the public at large have all declared the nomination exercise unconstitutional. Thus, if parliament wanted to badly move a censure motion it is the President and not the PM who should be the victim of such a censure.
At this juncture, it is important to remind those legislators deluding themselves that in the event of a vote of no confidence against the PM, the president can then move forth to form a Government of National Unity and continue to govern as though nothing happened. Such a move would be tantamount to formation of a government through a serious fraud since we have not forgotten the fact that there was no clear winner in the 2007 presidential elections. Furthermore such an illegality is likely to further heighten the tensions in the country.
Lastly our legislators must know that the reason why the country at large is protesting these unilateral nominations is because they do not pass the credibility test to warrant the Kenya Government to convince the UN Security Council for either a referral or deferral of the ICC cases against the six Kenyans. I therefore implore legislators to allow reason to prevail.
Thursday, February 3, 2011
SPEAKER GIVES KIBAKI OPPORTUNITY TO UNDO THE "EMILIOGATE" SCANDAL
With the High court having declared the President`s act unconstitutional, all eyes turned on the House speaker to see whether his ruling could leave another egg on the President`s face. He stopped short of doing that but not without chiding the President for the manner in which he is determined to ride roughshod over the constitutional rights of the public regarding equity, fairness and justice for all. Thanks to the speaker the president has a window of opportunity to reflect and perhaps unmake the Emiliogate Scandal.
The Emiliogate Scandal as it has come to be popularly known was born out of the dizzying shuttle diplomacy that culminated in the suspect nominations into the constitutional offices. Kibaki`s adamant and intransigent stance to stick with his scandalized nominations lend credence to the theory that he is not only hell bent on riding roughshod over the country`s democratic ethos but that he has no intention whatsoever of pursuing justice for the 2008 PEV victims. The reason why he is hiding behind the obscure term “consultation” is such that his vile intentions cannot be ferreted out.
Kibaki`s move was not unexpected as his actions show that he has consistently pursued personal agenda at the expense of the Kenyan people. However, this time round Kibaki bit more than he could chew. His presidency has fallen into the worst faux pas since his being sworn into office in the ungodly hours of the day.
The Emiliogate Scandal has broken the people`s silence. It has given rise to flashfloods of people's resentment and protests. These protests are growing bigger by the day; the whirlwinds of anger are getting fiercer by the hour. These whirlwinds will sweep away all the litter and dirt along their vigorous paths as it increasingly becomes crystal clear to everyone that the Kibaki presidency has become unresponsive to their quest for justice, fairness and equity.
Apparently, his is a presidency that is increasingly serving the selfish interests of his protégés. By his logic Kibaki would rather condemn the Kenyan people to more years of illegitimate, fraudulent, unfeeling and corrupt governance, rather than heed the people's call for justice, fairness and equity! People are bound to break their silence and speak against his actions.
In the classic song "The Sound of Silence," Simon and Garfunkel remind us that "silence is like a cancer that grows." Taken to mean from a sociological viewpoint, that the "silent majority" may be silent for some time but not for long. Yes, rage can be silent, but as the saying goes, "Silent waters run deep." Silent waters can transform into raging waters. We have seen it in the Maghreb states. The signs are ominous in Kenya too.
In the wisdom of Kenneth Marende, it is not yet too late, the President can remedy the situation. And I want to agree with Marende that Kibaki truly has a choice. At the very least, he can nullify the nominations. This is so because no amount of cosmetics can mask the ugly countenance of his actions. If he heeds the Marende`s advice I am sure that the Kenyan people will respect him. His legacy will remain intact. After all, a good name (in history) is priceless. I only hope that Kibaki understands the great value of the opportunity that now lies before him.
I wish to remind the President as well as the legislators who are palsy walsy about his decision that true democracy demands consistency of struggle, not the cheap expediency of tactical alliances. Wheeling-dealing is not for true democrats.
Finally, I pray that God saves this country and its citizenry from reckless lawmakers who do not care about the harmful effects of their grandstanding on our people who are the hapless victims of their verbal tussles.
The Emiliogate Scandal as it has come to be popularly known was born out of the dizzying shuttle diplomacy that culminated in the suspect nominations into the constitutional offices. Kibaki`s adamant and intransigent stance to stick with his scandalized nominations lend credence to the theory that he is not only hell bent on riding roughshod over the country`s democratic ethos but that he has no intention whatsoever of pursuing justice for the 2008 PEV victims. The reason why he is hiding behind the obscure term “consultation” is such that his vile intentions cannot be ferreted out.
Kibaki`s move was not unexpected as his actions show that he has consistently pursued personal agenda at the expense of the Kenyan people. However, this time round Kibaki bit more than he could chew. His presidency has fallen into the worst faux pas since his being sworn into office in the ungodly hours of the day.
The Emiliogate Scandal has broken the people`s silence. It has given rise to flashfloods of people's resentment and protests. These protests are growing bigger by the day; the whirlwinds of anger are getting fiercer by the hour. These whirlwinds will sweep away all the litter and dirt along their vigorous paths as it increasingly becomes crystal clear to everyone that the Kibaki presidency has become unresponsive to their quest for justice, fairness and equity.
Apparently, his is a presidency that is increasingly serving the selfish interests of his protégés. By his logic Kibaki would rather condemn the Kenyan people to more years of illegitimate, fraudulent, unfeeling and corrupt governance, rather than heed the people's call for justice, fairness and equity! People are bound to break their silence and speak against his actions.
In the classic song "The Sound of Silence," Simon and Garfunkel remind us that "silence is like a cancer that grows." Taken to mean from a sociological viewpoint, that the "silent majority" may be silent for some time but not for long. Yes, rage can be silent, but as the saying goes, "Silent waters run deep." Silent waters can transform into raging waters. We have seen it in the Maghreb states. The signs are ominous in Kenya too.
In the wisdom of Kenneth Marende, it is not yet too late, the President can remedy the situation. And I want to agree with Marende that Kibaki truly has a choice. At the very least, he can nullify the nominations. This is so because no amount of cosmetics can mask the ugly countenance of his actions. If he heeds the Marende`s advice I am sure that the Kenyan people will respect him. His legacy will remain intact. After all, a good name (in history) is priceless. I only hope that Kibaki understands the great value of the opportunity that now lies before him.
I wish to remind the President as well as the legislators who are palsy walsy about his decision that true democracy demands consistency of struggle, not the cheap expediency of tactical alliances. Wheeling-dealing is not for true democrats.
Finally, I pray that God saves this country and its citizenry from reckless lawmakers who do not care about the harmful effects of their grandstanding on our people who are the hapless victims of their verbal tussles.
Tuesday, February 1, 2011
AFRICAN HEADS OF STATES MUST STOP UNDERMINING ICC.
So the African Heads of States under the auspices of the African Union (AU) have unanimously endorsed President Kibaki`s request to have Kenya`s case at the Hague be deferred by the United Nations Security Council. They have alleged that the Hague based trials would be ignoring Kenya`s raison d'être as well as undermining Kenya`s sovereignty and the dignity of the African continent at large. Their protégés too have been lithe and active in leading the ICCs demonization.
Besides the African Heads of States have also unanimously agreed to go slow over their Comrade in Chief in Ivory Coast who has blatantly refused to hand over power to the real winner of the country`s general election.
It must also not be forgotten that only last year at Munyonyo Commonwealth Resort in Kampala the African Heads of States unflinchingly reiterated that subjecting a “sovereign head of state” to a warrant of arrest is undermining African solidarity and African peace and security.”
Sadly, the AUs decision points at African Heads of States who are increasingly determined to shield themselves and their protégés from prosecution for crimes against humanity or genocide. In the pretext of local mechanisms coupled with cosmetic peace and reconciliation initiatives, they want to be given carte blanche to perpetuate impunity. It will be suicidal to grant them such a wish given the fact that they have often demonstrated a genius for working at cross-purposes with the objectives of the ICC. This will definitely lead to increased human rights violations in the continent by the same leaders with justice being the very least of their concerns.
Any keen observer would not fail noticing that beneath the African Heads of States veneer of pursuing peace, justice, stability and reconciliation is an attempt at warding off any incursion at their comfort zones that are characterized by a common denominator-impunity. It must be crystal clear to these leaders that no amount of immunity for a sitting president can justify the perpetration of impunity against his own citizens. The world will never let go unpunished such tragic bloodletting.
The public and the International community must be warned to be wary of those who
are desperately trying to accuse ICC of ignoring this region`s political realities. Such arguments are as misleading as they are false. With respect to Kenya`s case, suffice it to say that nobody is against Kenya`s bid to have a local judicial mechanism but the only problem is that we have not demonstrated honesty in the establishment of a credible local judicial mechanism. The process is fraught with all sorts of schemes including suspect nominations aimed at defenestrating justice. It is with a lot of consternation to thus hear that the AU is in full support of such a mockery of justice in the country. The AU and IGAD were never intended to be the washing powder for the merchants of doom. Simply put, their pronouncements are huge diplomatic gaffes.
Kenya must therefore not be emboldened by the Aus pronouncement into flaunting unabated her sovereignty in defiance of the Rome Statute. She will undoubtedly become a target of unrelenting opprobrium and censure within international forums such as the United Nations. Unfortunately, this will not bode well with our struggling economy.
I wish to remind the African Heads of States of the import of Thomas Jefferson`s edict that states that “Where the people fear the government there is tyranny, where the government fears the people there is liberty.” In other words democracy is not meant to be a concentration of monopolized socio-political power in the hands a few so-called” Heads of States.” Whether these Heads of States have the backing of their deeply ethnicized parliaments is immaterial. We must remind them that any popular consensus that flies in the face of justice for all is not democracy but anarchy.
The citizens of Africa must not succumb to the dark impulses that lurk in the schemes of the African Heads of States lest the African continent falls in the worst possible crisis. So far we are encouraged by the popular uprising in the Maghreb states. Paced by economic doldrums, political friction and repression, the measure of resentment toward the African Heads of States has reached unsustainable levels. It is my prayer that this domino effect continues until the last of the remaining dictators are swept away.
The citizens of Africa expect that even in the absence of divine intervention, the fundamental principle of morality must always govern the actions of the African Heads of States. Any decision undertaken by these Heads of States must be based on the Utilitarian pragmatic ethos of the Greatest Happiness Principle which seeks a course of action that is most likely to produce the greatest good (in terms of satisfaction, pleasure, happiness) for the greatest number of people. Anything less results in tyranny, moral depreciation and social breakdown!!!
Besides the African Heads of States have also unanimously agreed to go slow over their Comrade in Chief in Ivory Coast who has blatantly refused to hand over power to the real winner of the country`s general election.
It must also not be forgotten that only last year at Munyonyo Commonwealth Resort in Kampala the African Heads of States unflinchingly reiterated that subjecting a “sovereign head of state” to a warrant of arrest is undermining African solidarity and African peace and security.”
Sadly, the AUs decision points at African Heads of States who are increasingly determined to shield themselves and their protégés from prosecution for crimes against humanity or genocide. In the pretext of local mechanisms coupled with cosmetic peace and reconciliation initiatives, they want to be given carte blanche to perpetuate impunity. It will be suicidal to grant them such a wish given the fact that they have often demonstrated a genius for working at cross-purposes with the objectives of the ICC. This will definitely lead to increased human rights violations in the continent by the same leaders with justice being the very least of their concerns.
Any keen observer would not fail noticing that beneath the African Heads of States veneer of pursuing peace, justice, stability and reconciliation is an attempt at warding off any incursion at their comfort zones that are characterized by a common denominator-impunity. It must be crystal clear to these leaders that no amount of immunity for a sitting president can justify the perpetration of impunity against his own citizens. The world will never let go unpunished such tragic bloodletting.
The public and the International community must be warned to be wary of those who
are desperately trying to accuse ICC of ignoring this region`s political realities. Such arguments are as misleading as they are false. With respect to Kenya`s case, suffice it to say that nobody is against Kenya`s bid to have a local judicial mechanism but the only problem is that we have not demonstrated honesty in the establishment of a credible local judicial mechanism. The process is fraught with all sorts of schemes including suspect nominations aimed at defenestrating justice. It is with a lot of consternation to thus hear that the AU is in full support of such a mockery of justice in the country. The AU and IGAD were never intended to be the washing powder for the merchants of doom. Simply put, their pronouncements are huge diplomatic gaffes.
Kenya must therefore not be emboldened by the Aus pronouncement into flaunting unabated her sovereignty in defiance of the Rome Statute. She will undoubtedly become a target of unrelenting opprobrium and censure within international forums such as the United Nations. Unfortunately, this will not bode well with our struggling economy.
I wish to remind the African Heads of States of the import of Thomas Jefferson`s edict that states that “Where the people fear the government there is tyranny, where the government fears the people there is liberty.” In other words democracy is not meant to be a concentration of monopolized socio-political power in the hands a few so-called” Heads of States.” Whether these Heads of States have the backing of their deeply ethnicized parliaments is immaterial. We must remind them that any popular consensus that flies in the face of justice for all is not democracy but anarchy.
The citizens of Africa must not succumb to the dark impulses that lurk in the schemes of the African Heads of States lest the African continent falls in the worst possible crisis. So far we are encouraged by the popular uprising in the Maghreb states. Paced by economic doldrums, political friction and repression, the measure of resentment toward the African Heads of States has reached unsustainable levels. It is my prayer that this domino effect continues until the last of the remaining dictators are swept away.
The citizens of Africa expect that even in the absence of divine intervention, the fundamental principle of morality must always govern the actions of the African Heads of States. Any decision undertaken by these Heads of States must be based on the Utilitarian pragmatic ethos of the Greatest Happiness Principle which seeks a course of action that is most likely to produce the greatest good (in terms of satisfaction, pleasure, happiness) for the greatest number of people. Anything less results in tyranny, moral depreciation and social breakdown!!!
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