So Vice President Kalonzo Musyoka has said that come 2012, he will be in state house. Of course, not as comptroller or those other jobs whose occupiers have to constantly contend with the slaps, insults and tantrums from the most powerful woman found therein. No. He will be there as the Commander in Chief of the Armed Forces of Kenya. This is to say that he will be the fourth President of the Republic of Kenya.
When he missed the presidency in 2007 by a wide margin, he embarked on a journey to endear himself to President Kibaki with a view to scoring crucial points in the ensuing succession politics. Noting Kalonzo`s loyalty, President Kibaki never hesitated to appoint him his chief errand boy. And true to his calling, Kalonzo has unquestioningly and faithfully run errands for President Kibaki sometimes at the risk of even Kalonzo`s own political supporters interpreting his behavior as consistently and dangerously taking a sycophantic slant.
Kalonzo has remained unbothered by such criticism. This is because he has always seen himself as sufficiently philanthropic as is demonstrated in his tireless work in aid of the Ocampo six. At the international level, he has undoubtedly cut a niche for himself as a master of shuttle diplomacy. Even though his efforts are yet to bear any fruits, we cannot begrudge him. Of course, we all know how Uncle Sam and the rest of the big boys dislike those who want to flaunt their diplomatic prowess in their faces. Nevertheless, suffice it to say that Kalonzo`s has demonstrated beyond any reasonable doubt that he can die for his “brother” and in politics such gestures rarely go unrewarded.
Given that those who have been summoned by the ICC will not be in position to have their names on the 2012 presidential ballot, it is incumbent upon the orphaned political turfs to look around for an heir apparent. I imagine that the VPs soothing dirges will neither be unfamiliar nor unacceptable to them. Surely, he will not be accused of shedding more tears than the bereaved. It is only ingrates and those with short memory spans who cannot reciprocate such a kind gesture. Kenyans are nowhere near such a description. This is why the VP is wagging hopeful that he will bag all the votes in these orphaned turfs. That is understandable. After all, in Africa don`t we say that “If death were not there, how else would the inheritor get his riches”?
But philanthropy is not the only quality that the VP has. The VPs religiosity stands unrivalled. It is no secret that the VP communicates with the gods in mediums completely out of the range of the ordinary minds. Given that Kenyans are notoriously religious he is sure to get votes from a huge chunk of the electorate. I guess you recall when he prophetically said in 2007 that he will pass in their midst and none will see him? The strange thing is that the prophecy never came to be. But none of us had the guts to question the gods` mouthpiece. May be the gods had some beef with the VP and that is why the prophecy was temporarily frozen. Who knows, may be the ice has since thawed and the VP will soon be matching to state house unseen as earlier prophesied. Perhaps this explains why the VP is re-energized and has even found time amid a tight shuttle diplomacy schedule to dust and adorn his prophetic regalia and traverse parts of the country prophesying that “his 2012 miraculous match to state house is unstoppable.”
But perhaps like me, when time is ripe you may find solace in the words of George Elliot (1819-1890) who said that “among all forms of mistakes, prophecy is the most gratuitous.” You see, with prophecy it is never important whether the prophet has none of the gentleman`s instincts when strutting about its fulfillment.
Thursday, March 10, 2011
Sunday, March 6, 2011
THE ART OF WRESTLING A PIG IN A MUDDY POOL.
Over the last couple of weeks, the public, herein referred to as the audience, has been treated to a never ending contest titled “The art of wrestling a pig in a muddy pool.” For one to be eligible to participate in this contest one needs to sign a consent form indicating that he is an adult of sound mind and that he has entered the contest on his own volition.
The theatre of this absurdity is the expansive fields of the country called “Nyake” which is littered with countless barnyards. Note that some of the barnyards have a striking semblance with Kenyan political parties. These barnyards have hostile and squeaky pigs lurking therein. They are the kind of pigs that would make a mockery of the pigs in George Orwell`s “Animal Farm.”
The common denominator among these pigs is that they have a penchant for muddy streams and piggy political adventure. The squeaking gets even louder as these pigs break the perimeter fence and stray into neighboring barnyards where they mingle with those that have similar orientations. They can be seen darting across the expansive fields in search of muddy pools where they taunt humans for a muddy contest.
The rules of this contest are fairly simple. Rule number one is that the prospective human participant must be willing to enjoy the muddy fight at least as much as the pig would. The longer the muddy contest the merrier it is for the pigs.
Rule number two states that for purposes of ensuring the longevity of the muddy contest, the prospective participant must not carry the detergent known as “Kibunja” into the muddy pools for the pigs know too well that “Kibunja`s” pungent smell is not good for their snorting and will thus bring the muddy contest to a premature end.
Rule number three is that the audience, will measure your success not only in terms of how fast you scoop mud to smear the muddy pigs but also how clever you are to avoid the pigs muddying you. Quite a task, huh!
Rule number four is that the participant must ensure that he has plenty of time to have a good muddy shower and a hearty laugh at himself. Perhaps the participant may just be in time to discover the fact that mud purifies the pig`s emotions. Call it some sought of a piggy catharsis. In this regard, the participant is specifically warned not to be surprised if the pigs soak him thoroughly in mud. Neither should the participant be surprised if the pigs squeal, or play dirty, or run amok or even run around in circles, small and large, tirelessly.
The good thing is that the participant will perhaps just be on right course to discover the import of the old age aphorisms that “When you fight with a pig you both get dirty and that the pig likes it” or that “you got to have a swine to show you where the truffles are.”
The trickier part is that the participant is also strongly advised to be kind and gentle. Otherwise 'the audience' will judge him and not the pigs. They already feel sorry for the pigs for wallowing in the mud, even before the contest starts. So you have to enter the muddy pool with caution - if at all.
It will also be worthwhile for the willing participant to remember that these pigs may be hurting inside, sometimes somewhere quite deep and painful...this explains why sometimes they squeak without knowing it.
After the muddying experience rule number five comes in handy. It states that when the pigs taunt you to come back for more mud wrestling contests- (as they are wont to) - make sure it is you who decides whether to 'go back for more' – and not the pigs because they (pigs) have absolutely nothing to lose.
The theatre of this absurdity is the expansive fields of the country called “Nyake” which is littered with countless barnyards. Note that some of the barnyards have a striking semblance with Kenyan political parties. These barnyards have hostile and squeaky pigs lurking therein. They are the kind of pigs that would make a mockery of the pigs in George Orwell`s “Animal Farm.”
The common denominator among these pigs is that they have a penchant for muddy streams and piggy political adventure. The squeaking gets even louder as these pigs break the perimeter fence and stray into neighboring barnyards where they mingle with those that have similar orientations. They can be seen darting across the expansive fields in search of muddy pools where they taunt humans for a muddy contest.
The rules of this contest are fairly simple. Rule number one is that the prospective human participant must be willing to enjoy the muddy fight at least as much as the pig would. The longer the muddy contest the merrier it is for the pigs.
Rule number two states that for purposes of ensuring the longevity of the muddy contest, the prospective participant must not carry the detergent known as “Kibunja” into the muddy pools for the pigs know too well that “Kibunja`s” pungent smell is not good for their snorting and will thus bring the muddy contest to a premature end.
Rule number three is that the audience, will measure your success not only in terms of how fast you scoop mud to smear the muddy pigs but also how clever you are to avoid the pigs muddying you. Quite a task, huh!
Rule number four is that the participant must ensure that he has plenty of time to have a good muddy shower and a hearty laugh at himself. Perhaps the participant may just be in time to discover the fact that mud purifies the pig`s emotions. Call it some sought of a piggy catharsis. In this regard, the participant is specifically warned not to be surprised if the pigs soak him thoroughly in mud. Neither should the participant be surprised if the pigs squeal, or play dirty, or run amok or even run around in circles, small and large, tirelessly.
The good thing is that the participant will perhaps just be on right course to discover the import of the old age aphorisms that “When you fight with a pig you both get dirty and that the pig likes it” or that “you got to have a swine to show you where the truffles are.”
The trickier part is that the participant is also strongly advised to be kind and gentle. Otherwise 'the audience' will judge him and not the pigs. They already feel sorry for the pigs for wallowing in the mud, even before the contest starts. So you have to enter the muddy pool with caution - if at all.
It will also be worthwhile for the willing participant to remember that these pigs may be hurting inside, sometimes somewhere quite deep and painful...this explains why sometimes they squeak without knowing it.
After the muddying experience rule number five comes in handy. It states that when the pigs taunt you to come back for more mud wrestling contests- (as they are wont to) - make sure it is you who decides whether to 'go back for more' – and not the pigs because they (pigs) have absolutely nothing to lose.
Sunday, February 20, 2011
CONCENTRATION OF MEDIA OUTLETS IN THE HANDS OF A FEW WILY POLITICIANS IS INIMICAL TO FREE EXPRESSION.
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.
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.
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.
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