Saturday, 19 May 2012
MADARAKA DAY –THE DAY KENYANS MISSED THE BUS! By ndolo asasa Esq
With a booming voice, the First Prime Minister of the new Kenya State, The Hon. Johnstone Kamau a.k.a. Jomo Kenyatta announced to the jubilant Kenyans and an attentive world that Kenya would use its “Madaraka” to fight poverty, ignorance and disease to a thundering applause!
And with this statement we missed the bus, almost totally! Or at least for close to 50 years we missed the bus.
LAND.
What had instigated the Africans and Kenyans for that matter to fight the colonialist for numerous decades was to regain their cardinal right to own, access and use land in whatever manners that was beneficial to them. The colonialists had become a stumbling block nay, a barrier to the said Kenyans using their land for fellow Kenyans wellbeing. Most well remembered is that Kenyans were not allowed to rear some kinds of livestock, grow cash crops and even own land in prime agricultural, tourist and urban areas.
This is why the MAU MAU, our celebrated freedom fighters, were alleged to have been so agitated that when anyone of them fell to the colonialist’s and homeguards’ bullets they clutched soil in their hands as a last act of defiance and a signal to continue fighting for the land, our land.
The utility and identity value of land is what makes us fondly call our country, OUR LAND! But is it really our land? During this famous speech, 49 years ago Jomo Kenyatta interestingly and curiously FORGOT to include reclaiming OUR LAND , access to it and utility as a key focus of our Madaraka, the main result of the Mau Mau resistance!
It MUST be remembered here that MADARAKA means power, authority and sovereignty! Is it not surprising that one of the key reasons why Kenyans fought for Madaraka, lost their lives, careers and opportunities was not a priority focus for the ‘independence regime’? THE QUESTION THEN IS, IF NOT LAND WHAT WERE KENYANS AND MAU MAU (The catalysts of our independence) IN PARTICULAR FIGHTING FOR ALL THIS TIME?
As if to assert that the exclusion from focus was not a mistake, 49 years after the said attainment of MADARAKA we do not have a national policy on land. Is it thus surprising that since independence the most intense wars that have been fought in Kenya either between persons, between communities or with the state has been over land! Be it the Shifta War! The Tindinyo Wars! Or be it the infamous land and tribal clashes stretching from Mt. Elgon, through Burnt Forest, Kuresoi, Sotik, Trans Mara, Wajir to Likoni? Or more recently the post election violence of 2007/8?
So at independence we missed the purpose for which we sought MADARAKA for with all we had including our lives! Do you agree with me? That what we fought for is not what we “won”?
LEADERSHIP
But this is not all. The other reason we fought so hard was so that we are able to lead ourselves and determine our own destiny. That we were slighted by the colonialist imposing leaders on us using the church, their side kick collaborators and homeguard services. That we were subjected to forceful authority sometimes perpetrated by our own brothers (I do not have records of any women!)
Our forefather revolted against imposed, oppressive and insensitive leadership and non consideration and input from the native Kenyans in the same. So when we got MADARAKA the foremost thing that should have come to the surface was the raw meaning the word MADARAKA being power, authority and sovereignty. That by getting MADARAKA we should have got the Power and Authority with all the ingredients that we missed under colonization! These were to include now intentionally identifying and nurturing our own acceptable leadership that rules us with our consent for our well being.
It thus follows that good leadership; inferring good use of our Madaraka (power and authority) should have been a national priority to drive our self determination. Is it any wonder that bad and or suspect leadership has generously punctuated the nearly 50 years of the independent country Kenya? That most of the problems of this country can easily be traced to leadership of the day; be it violence, scandals, assassinations, corruption or base crime.
Seemingly leadership was not supposed to be a major concern for the independent Kenya as disease, ignorance and poverty would sort them out!
I hold that had the matters of land and leadership been in this speech and by focus thus a priority for our independent motherland, Kenya would be a truly a great country and definitely a far better place to live in than where we are. What do you say?
Sunday, 13 May 2012
NO FACTORS HELD CONSTANT- THE NEXT GENERAL ELECTIONS by ndolo asasa Esq.
The first General election may either be in December 2012, or most likely in March 2012. However today I want to dwell more on who might be our next President come next General Elections.
In 1992 Mama Ngina Kenyatta stuck with Democratic Party (DP) of Mwai KIbaki even though her favourite son sought the presidency of this country in 2002 on a KANU ticket. It is alleged that she financially assisted the fledging DP. It is important to note that Mwai KIbaki is the baptismal godfather to Mr.Uhuru Kenyatta. This should greatly explain the support Uhuru gave to Kibaki in the crucial 2007 General Elections consequently abdicating his duties, responsibility and expectations as the Leader of of Official Opposition. Considering that a good turn deserves another, it would be out of this world not to expect Kibaki to return the favour Mama Ngina Kenyatta did in 1992 and Uhuru Kenyatta emphasized in 2007 come next General Election – Unless Kibaki is so ungrateful!
By this din, I predict that Uhuru will contest the next General Election for presidency with all benefits of being backed by an incumbent (for the second time in ten years!) and thus he is destined to finish in the top two bracket. Meaning that, those who are expecting Uhuru supporter to back Wycliffe Musalia Mudavadi are horribly mistaken! Actually I do not think Mudavadi has a realistic chance of being in the top 5 come next General Elections!
BY the massive Agikuyu votes, I expect Uhuru to easily garner well over 4 million votes drawn from Central province, Nairobi area and Rift Valley. He will closely contest the top two positions with Raila Amollo Odinga who will garner similar amount of vote if not more from Nyanza, Western, Rift Valley, Nairobi and Coast regions. I predict that Raila will beat Uhuru to the pole position but will not garner the requisite 50% plus 1 votes to outrightly become the President! In therun-off, Raila will beat Uhuru . He will greatly be aided by the feeling of “No, not another Kikuyu again!!!” especially among the Kalenjins, Kambas and Coastals.
My very strong speculation thus is that our next President will be Raila Amolo Odinga, after a guerelling run-off!
Where does thus the other Presidential aspirant get placed?
William is a flowe girl is as much as the Presidency is concerned and nobody including himself expects to win the presidency, buthe looks forward to being a spoiler for Raila and Uhuru! He might actually “lose in a democratic free and fair election” to Cyrus Jirongo or Eugine Wamalwa during the URP nominations- Please tell me am joking!
Kalonzo Musyoka has outside chances only,and only if G7 back him during the elections. Unfortunately nobody seems to trust himin the G7! Kibaki is his friend and is grateful to him for giving legitimacy to his Presidency, but he might as well read the words former President Moi told Siatoti in Lugari in 2007 when he introduced Uhuru Kenyatta in his presence as the preferred Presidential Candidate for him and KANU! BUT, and avery BIG but, should Kalonzo secure the backing of G7 he will then secure a re-run against Raila Odinga and my prediction is that he would the beat Raila hands down! He will easily get absolute majority votes from Central, Coast, Eastern and Rift Valley regions against Raila.
I struggle to see any other serious contender outside the 3 above, i.e.Raila kalonzo and Uhuru for the Presidency but Ibeg to explain away a few of the overrated pretanders!
1. Wycliffe Musalia Mudavadi
He has no message, purpose or strategy apart from hoping that the Raila-Haters will pick on him as a compromise candidate. Unfortunately for him, the Raila haters ate not looking for a compromise candidate, they are looking for a Raila-beater and they do not believe he has what it takes to beat Raila. Whats more he does not have an organic relationship with the Raila haters,he is not trust-worthy. To make matters worse he is mean,a poor orator and a Maragoli apologist! I western he will easily lose to Cyrus Jirongo who is eloquent, a free giver and hails from his own county members but who are complaining of neo-colonialism from Maragolis. In Vihiga County the Tirikis and Banyores (about 60% of the county voters) have a complaint against Maragolis in general and Musalia in particular.Even among the Maragolis, the Vihiga residents are not happy with Musalia and may just rebel in solidarity! During his tenure at DPM and Minister for Local Government only Maragolis from Sabatia have been seen to benefit while their brethren have himbly taken the flak on their behalf. E.g. It is only during Musalia tenure that Maragolis from Vihiga have not held the Mayor’s position as it was hoarded by their Sabatia brothers under the close watch of Musalia.
All major Luhya, nay Maragoli appointments in government during Musalia’a tenure have been to his Sabatia Maragolis at the expense of Vihiga Maragolis! Sample this; Mable Imbuga- Deputy Vice Chancellor JKUAT hails from Maragoli(Sabatia); Prof. Florida Karani Chancellor Maseno University hails from Maragoli (Sabatia); Kisia the immediate former Town Clerk Nairobi City Council is a Maragoli (from Sabatia); His Worship the Mayor of Nairobi, George Aladwa is Maragoli (from Sabatia); a Chief Accountant of Nairobi City Council- who was interdicted due to the cemetery saga is a Maragoli (from Sabatia); The Secretary General of Maendeleo ya Wanawake Ms.Alice Kirambi is Maragoli (from Sabatia); The Vice Chair of the IDP Resettleme Committee in the Office of the President is Hon.Moses Akaranga, a Maragoli (from Sabatia).
Musalia sa so far not held or defined an agenda for the Kakamega, Busai and Bungoma.Neither does he have foot soldiers or an argument to support his effort so far, UNLESS he links them to Raila!
Will these biases play out to determine anything? I leave it to you to predict.
What am sure of is that, Hon. Musalia will neither have a full command of his Vihiga County nor the vote-rich Western Kenya.
2. Martha Karua
In her effort to stand out as being different and independent, Martha Karua is neither the women’s candidate nor a Kikuyu candidate!
She comes across as a person very keen on procedure and a faithful supporter but also as too independent for the power movers and abit anti-Kikuyu, her home turf. While the potential is there and all accept that she has what it takes to lead this country, she still has not yet clicked on the WOW! Factor that would turn her evidently latent potential into real votes. Actually she is the most anti-Kikuyu elite Presidential aspirant so far!
She does not seem to have the capacity or idea on how to turn her elaborate and impressive party machinery into an equally massive campaign bulldozer to her favour!
She will lose it out to Uhuru and or his machinations!
3. Prof. George Saitoti
Apart from suspicion that he has accumulated sufficient goodwill, wealth, machinery and experience to stage a formidable Presidential Campaign, there is no evidence that Saitoti will actually have a strong impression anywhere apart from his Kajiadoenvirons.
Kindly allow me not to waste your time and my ink as the rest are nowhere near being serious contenders to lead this country through the ballot in so far as 2012/13 is concerned. Do you have a contention? Bring it on!
Conclusion:
1. There will be a run off .
2. Raila will be in the runoff!
3. Raila will be the next President if Uhuru is his main opponent in the run off
4. Kalonzo will be the next president if Raila is his main opponent in the run off.
May we have a peaceful election, am not sure about the said election being free and fair considering the obstacles infront of IEBC, Parliamentary fiat and the lack of reforms in the Police- an important section of the election machinery!
Talk to me!
Sunday, 1 April 2012
WAMALWA STARTED ON A BAD NOTE!
The newly appointed Minister of Justice, Hon Eugine Wamalwa started off his duties by gracing a ‘Prayer Rally’ for a section of the PEV ICC suspects at Litein in Kericho on Saturday last week. In this rally he emphatically declared that “I don’t care what anyone has to say..!” in reference to his continued attendance of the said prayer meetings.
The Ministry of Justice, National Cohesion and Constitutional Affairs which he heads is supposed to spearhead cohesion including integrating the victims, perpetrators of law breakage and law abiding citizens. Pray, just how does Mr.Wamalwa intend to do this with the PEV victims and the only known PEV suspects when he declares that he will listen to NO ONE while attending the suspects’ political chest thumbing rallies!
That’s not all, his ministry is the lead agency in the appropriately named K-NICE (Kenya National Integrated Civic Education) Programme that among others will enhance citizens knowledge of the constitution, promote people participation in the constitutional implementation and help mid-wife a truly new Kenya! Just how will this happen when the titular head, the Minister himself has unequivocally declared that he will not listen to anyone? Why should others listen to him or worse listen to each other.
I expected that Hon. Wamalwa would take time to first articulate his vision and programme for the ministry during his term. This would have served as a pre-view to his Presidency and a chance to be taken seriously from the word go!
Mr. Wamalwa must give priority to the Judges and Magistrates Amendment Act, The County Government Bill, the Land Bills, the Leadership and Integrity Bill all due in Parliament before August this year. He should have used his honeymoon period- for lack of a better word, to court all sections of the Kenyan society to develop and nurture goodwill than be sectoral and confrontational.
The naivety of Hon Wamalwa is going to be the most costly mistake Kenya will incur in so far as reforms are concerned in this country only second to the Post Election Violence of 2007/8 unless the civil society, religious community, the private sector and the general population stamp their authority not to surrender the fate of this country to possible embryonic experimentation by an overzealous marionette.
The Ministry of Justice, National Cohesion and Constitutional Affairs which he heads is supposed to spearhead cohesion including integrating the victims, perpetrators of law breakage and law abiding citizens. Pray, just how does Mr.Wamalwa intend to do this with the PEV victims and the only known PEV suspects when he declares that he will listen to NO ONE while attending the suspects’ political chest thumbing rallies!
That’s not all, his ministry is the lead agency in the appropriately named K-NICE (Kenya National Integrated Civic Education) Programme that among others will enhance citizens knowledge of the constitution, promote people participation in the constitutional implementation and help mid-wife a truly new Kenya! Just how will this happen when the titular head, the Minister himself has unequivocally declared that he will not listen to anyone? Why should others listen to him or worse listen to each other.
I expected that Hon. Wamalwa would take time to first articulate his vision and programme for the ministry during his term. This would have served as a pre-view to his Presidency and a chance to be taken seriously from the word go!
Mr. Wamalwa must give priority to the Judges and Magistrates Amendment Act, The County Government Bill, the Land Bills, the Leadership and Integrity Bill all due in Parliament before August this year. He should have used his honeymoon period- for lack of a better word, to court all sections of the Kenyan society to develop and nurture goodwill than be sectoral and confrontational.
The naivety of Hon Wamalwa is going to be the most costly mistake Kenya will incur in so far as reforms are concerned in this country only second to the Post Election Violence of 2007/8 unless the civil society, religious community, the private sector and the general population stamp their authority not to surrender the fate of this country to possible embryonic experimentation by an overzealous marionette.
Saturday, 5 March 2011
Witness Protection Programe Status Review.
By ndolo asasa Esq.
Introduction:
The Witness Protection Act was introduced and passed in parliament in 2006 and came into effect on 1st September 2008 upon being accenting to by the President and publication in the Kenya Gazette.
This Act inter-alia establishes the Witness Protection Agency, Witness Protection Programme, Witness Protection Advisory Board and Witness Protection Tribunal
The Purpose:
The Witness Protection Agency is established (Article 3B-1 of the Act) to provide the framework and procedures for giving special protection, to persons in possession of important information and who are facing potential risk or intimidation due to their cooperation with prosecution and other law enforcement agencies.
The Agency’s mandate(Article 3C-1 of the Act) thus include;
(a) establish and maintain a witness protection programme;
(b) determine the criteria for admission to and removal from the witness protection programme;
(c) determine the type of protection measures to be applied;
(d) advise any Government Ministry, department, agency or any other person on the adoption of strategies and measures on witness protection; and
To execute its mandate, the Agency has, among others, the following powers (Article 3D-1 of the Act);
1) control and supervise its staff in a manner and for such purposes as may be necessary for the promotion of the purpose and the object for which the Agency is established;
(b) administer the funds and assets of the Agency;
(c) receive any grants, gifts, donations or endowments and make legitimate disbursement therefrom;
(d) enter into association with such other persons, bodies, or organizations within or outside Kenya as it may consider desirable or appropriate in furtherance of its object and purpose;
(e) enter into confidential agreements with relevant foreign authorities, international criminal courts or tribunals and other regional or international entities relating to the relocation of protected persons and other witness protection measures;
(e) open bank accounts for the funds of the Agency;
(f) collect, analyze, store and disseminate information related to witness protection;
(g) give such instructions to a protected person as the Agency may consider necessary;
(h) search the protected person and their property and seize items regarded by the Agency to be a threat to the protected person or another person or the integrity of the programme;
(i) summon a public officer or other person to appear before it or to produce a document or thing or information which may be considered relevant to the functions of the Agency within a specified period of time and in such manner as it may specify;
(j) invest the funds of the Agency not currently required for its purposes.
Article 3G(1) of the Act envisions independence for the Agency and underscores non-interference from ANY authority.
Advisory Board.
The following are designated as Witness Protection Advisory Board Members (Article 3P -1&2)
(a) the Minister (thematically in charge of the programme) as chairman;
(b) the Minister responsible for matters relating to Justice;
(c) the Minister responsible for matters relating to Finance;
(d) the Director-General, National Security Intelligence Service;
(e) the Commissioner of Police;
(f) the Commissioner of Prisons;
(g) the Director of Public Prosecutions; and
(h) the Chairperson on the Kenya National Commission on Human Rights.
The said Board shall (Article 3Q-1):
i. Advise on the formulation of witness protection policies in accordance with the current law and international best practices;
ii. Have general oversight on the administration of the Agency;
iii. Approve the budgetary estimates of the Agency.
Protection Regulations:
Witness Protection Regulations were gazetted (Gazette Notice No.10/2009) on 29th January 2009 by the Attorney General as provided for under Article 36 of the Act.
These Regulations focus on;
• Ensuring measures are in place to protect the witnesses
• Assisting witnesses to testify
• Maintain confidentiality
• Act impartially when working with other parties
The Constitution:
Chapter 8 Article 118(1) guarantees public participation and involvement in the legislative and other business of Parliament and its committees.
In addition, Article 119 (1) in the same chapter secures the right of every person to petition parliament to consider any matter within its authority.
The constitution further empowers the judiciary to speedily dispense of justice {Chapter 10 Article 159(2)} as guided by the national principle and values of governance stipulated in Chapter 2, Article 10 of the constitution
Parliamentary Standing Orders
The constitution through Chapter 10 {Article 109(1) and Article 124} empowers parliament to pursue its mandate by its own procedures (read Standing Orders).
The Standing Orders of Parliament (2008), Section 196 provides for the establishment of a Parliamentary Committee on Implementation whose mandate among others include;
• Scrutinise the resolutions of the House (including adopted committeereports), petitions and the undertakings given by the Government on the floor of the House.
• Examine whether or not such decisions and undertakings have been implemented and where implemented, the extent to which they have been implemented;
• Ensure such implementation has taken place within the minimum time necessary;
• Establish whether or not legislation passed by the House has been operationalised and where operationalised, the extent to which such operationalisation has taken place within the minimum time necessary.
• The Committee may propose sanctions to the House on any Minister who fails to implement resolutions of the House.
The Status:
1. The Witness Protection Agency has not yet been established 5 years after being passed by parliament, almost 3 years after being gazette.
2. Parliament is not willing or able to effect the Agency’s establishment. No effort has been made to follow up, especially by the Committee on Implementation as empowered by the Standing Orders (N.196)
3. The Advisory Board if constituted with the current office bearers of constituting the Board will largely destroy credibility and confidence in the agency and its capacity to realize its mandate especially with regard to Post Election Violence and Economic Crimes. The envisioned members would thus include the Minister for Internal Security, Police Commsiioner and Mr. Uhuru Kenyatta the Minister for Finance! All these office bearers have adversely been mentioned in regard to the Post Election Violence of 2007/8 by the Waki Report, KNHRC Report and the ICC Prosecutor.
I Suggested the following redresses:
1. Seek judicial compulsion for the government and parliament to execute their mandate and ensure that the Agency is set up as envisioned and established by law
2. Compel the government, through the court and the relevant parliamentary committee, to make the necessary changes in the office bearers of composite membership of the Advisory Board to eliminate any risk of conflict of interest.
Conclusion:
If so redressed, the following will be realized;
• Institutions of government, more so parliament and the executive will be compelled to execute their mandate
• Witness protection will be secured for local and international use
• The public will be mobilized and energized to participate in the implementation of laws and the constitution.
Introduction:
The Witness Protection Act was introduced and passed in parliament in 2006 and came into effect on 1st September 2008 upon being accenting to by the President and publication in the Kenya Gazette.
This Act inter-alia establishes the Witness Protection Agency, Witness Protection Programme, Witness Protection Advisory Board and Witness Protection Tribunal
The Purpose:
The Witness Protection Agency is established (Article 3B-1 of the Act) to provide the framework and procedures for giving special protection, to persons in possession of important information and who are facing potential risk or intimidation due to their cooperation with prosecution and other law enforcement agencies.
The Agency’s mandate(Article 3C-1 of the Act) thus include;
(a) establish and maintain a witness protection programme;
(b) determine the criteria for admission to and removal from the witness protection programme;
(c) determine the type of protection measures to be applied;
(d) advise any Government Ministry, department, agency or any other person on the adoption of strategies and measures on witness protection; and
To execute its mandate, the Agency has, among others, the following powers (Article 3D-1 of the Act);
1) control and supervise its staff in a manner and for such purposes as may be necessary for the promotion of the purpose and the object for which the Agency is established;
(b) administer the funds and assets of the Agency;
(c) receive any grants, gifts, donations or endowments and make legitimate disbursement therefrom;
(d) enter into association with such other persons, bodies, or organizations within or outside Kenya as it may consider desirable or appropriate in furtherance of its object and purpose;
(e) enter into confidential agreements with relevant foreign authorities, international criminal courts or tribunals and other regional or international entities relating to the relocation of protected persons and other witness protection measures;
(e) open bank accounts for the funds of the Agency;
(f) collect, analyze, store and disseminate information related to witness protection;
(g) give such instructions to a protected person as the Agency may consider necessary;
(h) search the protected person and their property and seize items regarded by the Agency to be a threat to the protected person or another person or the integrity of the programme;
(i) summon a public officer or other person to appear before it or to produce a document or thing or information which may be considered relevant to the functions of the Agency within a specified period of time and in such manner as it may specify;
(j) invest the funds of the Agency not currently required for its purposes.
Article 3G(1) of the Act envisions independence for the Agency and underscores non-interference from ANY authority.
Advisory Board.
The following are designated as Witness Protection Advisory Board Members (Article 3P -1&2)
(a) the Minister (thematically in charge of the programme) as chairman;
(b) the Minister responsible for matters relating to Justice;
(c) the Minister responsible for matters relating to Finance;
(d) the Director-General, National Security Intelligence Service;
(e) the Commissioner of Police;
(f) the Commissioner of Prisons;
(g) the Director of Public Prosecutions; and
(h) the Chairperson on the Kenya National Commission on Human Rights.
The said Board shall (Article 3Q-1):
i. Advise on the formulation of witness protection policies in accordance with the current law and international best practices;
ii. Have general oversight on the administration of the Agency;
iii. Approve the budgetary estimates of the Agency.
Protection Regulations:
Witness Protection Regulations were gazetted (Gazette Notice No.10/2009) on 29th January 2009 by the Attorney General as provided for under Article 36 of the Act.
These Regulations focus on;
• Ensuring measures are in place to protect the witnesses
• Assisting witnesses to testify
• Maintain confidentiality
• Act impartially when working with other parties
The Constitution:
Chapter 8 Article 118(1) guarantees public participation and involvement in the legislative and other business of Parliament and its committees.
In addition, Article 119 (1) in the same chapter secures the right of every person to petition parliament to consider any matter within its authority.
The constitution further empowers the judiciary to speedily dispense of justice {Chapter 10 Article 159(2)} as guided by the national principle and values of governance stipulated in Chapter 2, Article 10 of the constitution
Parliamentary Standing Orders
The constitution through Chapter 10 {Article 109(1) and Article 124} empowers parliament to pursue its mandate by its own procedures (read Standing Orders).
The Standing Orders of Parliament (2008), Section 196 provides for the establishment of a Parliamentary Committee on Implementation whose mandate among others include;
• Scrutinise the resolutions of the House (including adopted committeereports), petitions and the undertakings given by the Government on the floor of the House.
• Examine whether or not such decisions and undertakings have been implemented and where implemented, the extent to which they have been implemented;
• Ensure such implementation has taken place within the minimum time necessary;
• Establish whether or not legislation passed by the House has been operationalised and where operationalised, the extent to which such operationalisation has taken place within the minimum time necessary.
• The Committee may propose sanctions to the House on any Minister who fails to implement resolutions of the House.
The Status:
1. The Witness Protection Agency has not yet been established 5 years after being passed by parliament, almost 3 years after being gazette.
2. Parliament is not willing or able to effect the Agency’s establishment. No effort has been made to follow up, especially by the Committee on Implementation as empowered by the Standing Orders (N.196)
3. The Advisory Board if constituted with the current office bearers of constituting the Board will largely destroy credibility and confidence in the agency and its capacity to realize its mandate especially with regard to Post Election Violence and Economic Crimes. The envisioned members would thus include the Minister for Internal Security, Police Commsiioner and Mr. Uhuru Kenyatta the Minister for Finance! All these office bearers have adversely been mentioned in regard to the Post Election Violence of 2007/8 by the Waki Report, KNHRC Report and the ICC Prosecutor.
I Suggested the following redresses:
1. Seek judicial compulsion for the government and parliament to execute their mandate and ensure that the Agency is set up as envisioned and established by law
2. Compel the government, through the court and the relevant parliamentary committee, to make the necessary changes in the office bearers of composite membership of the Advisory Board to eliminate any risk of conflict of interest.
Conclusion:
If so redressed, the following will be realized;
• Institutions of government, more so parliament and the executive will be compelled to execute their mandate
• Witness protection will be secured for local and international use
• The public will be mobilized and energized to participate in the implementation of laws and the constitution.
Sunday, 27 February 2011
FROM THE COUNTY: A LEGAL AND POLICY FRAMEWORK FOR DEVOLUTION PROPOSAL by ndolo asasa Esq.
A presentation to The Task Force on Devolution
at Avugwi Hall, Sabatia – Vihiga County on 25th February 2011
My first take is that this Committee has as the expertise and experience to first have developed a draft framework for national input rather than a blanket collection of ideas. This is because
1. There are a lot of reference materials on devolution as expressed variously over time by Kenyans you would have easily accessed including The Saitoti Report of 1991, CKRC report of 2004, the Bomas Report of 2005 and the CoE report of 2010.
2. The constitution already has outlined devolution, this taskforce has the responsibility to make it mare lucid by availing a framework and collating inputs from the citizenry to gauge if it meets and satisfies the imagination and expectations they have expressed over the years and their desires so far.
3. This would then have served to facilitate civic education on the purpose, mechanism and logistics of devolution as globally espoused and stipulated in the constitution.
All the same, we are here and I have the following suggestions on implementation of the devolved government;
a) Chapter 1 Art. 6 of the constitution states that “The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.”
While ‘cooperation’ is sufficiently defined and explained in the constitution (Chapter 11 Art. 189), ‘consultation’ has not been so treated and thus should be explained in the framework.
b) Considering Chapter 1, Art.6, the devolution framework should ensure that even the possibility of leadership is distinct by making it clear that if one contests a for a position in the national government, he/she cannot contest a seat in the county government at the same time. I submit so because nothing in the constitution stops anyone from contesting say Presidency and MP, or for my concern President and Governor! I propose that one be allowed to contest any combination of seats so long as the seats are not straddling national and county governments. This will enhance the envisioned devolution and ‘distinctiveness’ of Chapter 1 Art. 6 of the constitution.
c) That the elaborate standards of accountability at the national level be replicated at the county level including;
i. Impeaching the Governor, just like the President
ii. Recalling the Senator and Ward Representative just as the MPs will be recalled
d) Issues touching on core makeup of the county, people’s participation and principles of devolution should be subjected to county referendum without exception
e) That the standards and principles at the national assembly shall apply at the county assembly
f) That the range of county ward numbers be pre-determined and establish as per local parameters. I suggest that the range be between 30 and 90 wards.
g) That responsibility be followed with adequate funding. I propose that, following the practice elsewhere the actual allocation to the counties be realistically pegged at 50% of total revenue and not the minimalist 15% low end benchmark of 15% as provided for by the constitution.
h) Qualifications to leadership: The counties being a devolution of power and leadership from the national level for more effectiveness, I propose that the same standards of qualifications be applied at the county level. After all we are devolving competence nationally!
i) The framework should expressly provide that the county governments will provide sufficient civic and political education for any laws and policies developed for the counties prior to application.
Thank you and be blessed.
at Avugwi Hall, Sabatia – Vihiga County on 25th February 2011
My first take is that this Committee has as the expertise and experience to first have developed a draft framework for national input rather than a blanket collection of ideas. This is because
1. There are a lot of reference materials on devolution as expressed variously over time by Kenyans you would have easily accessed including The Saitoti Report of 1991, CKRC report of 2004, the Bomas Report of 2005 and the CoE report of 2010.
2. The constitution already has outlined devolution, this taskforce has the responsibility to make it mare lucid by availing a framework and collating inputs from the citizenry to gauge if it meets and satisfies the imagination and expectations they have expressed over the years and their desires so far.
3. This would then have served to facilitate civic education on the purpose, mechanism and logistics of devolution as globally espoused and stipulated in the constitution.
All the same, we are here and I have the following suggestions on implementation of the devolved government;
a) Chapter 1 Art. 6 of the constitution states that “The governments at the national and county levels are distinct and inter-dependent and shall conduct their mutual relations on the basis of consultation and cooperation.”
While ‘cooperation’ is sufficiently defined and explained in the constitution (Chapter 11 Art. 189), ‘consultation’ has not been so treated and thus should be explained in the framework.
b) Considering Chapter 1, Art.6, the devolution framework should ensure that even the possibility of leadership is distinct by making it clear that if one contests a for a position in the national government, he/she cannot contest a seat in the county government at the same time. I submit so because nothing in the constitution stops anyone from contesting say Presidency and MP, or for my concern President and Governor! I propose that one be allowed to contest any combination of seats so long as the seats are not straddling national and county governments. This will enhance the envisioned devolution and ‘distinctiveness’ of Chapter 1 Art. 6 of the constitution.
c) That the elaborate standards of accountability at the national level be replicated at the county level including;
i. Impeaching the Governor, just like the President
ii. Recalling the Senator and Ward Representative just as the MPs will be recalled
d) Issues touching on core makeup of the county, people’s participation and principles of devolution should be subjected to county referendum without exception
e) That the standards and principles at the national assembly shall apply at the county assembly
f) That the range of county ward numbers be pre-determined and establish as per local parameters. I suggest that the range be between 30 and 90 wards.
g) That responsibility be followed with adequate funding. I propose that, following the practice elsewhere the actual allocation to the counties be realistically pegged at 50% of total revenue and not the minimalist 15% low end benchmark of 15% as provided for by the constitution.
h) Qualifications to leadership: The counties being a devolution of power and leadership from the national level for more effectiveness, I propose that the same standards of qualifications be applied at the county level. After all we are devolving competence nationally!
i) The framework should expressly provide that the county governments will provide sufficient civic and political education for any laws and policies developed for the counties prior to application.
Thank you and be blessed.
Saturday, 26 February 2011
Is the Task Force on Devolution leading us down a garden path? By ndolo asasa Esq
After attending the Vihiga County public forum of the Task Force on Devolution, presenting my views and staying on, I have concluded that it is a waste of time and funds.
It was not well thought out, participation not informed, poorly attended and militarily controlled.
My take is that it would have been better had it;
i). Developed and presented a draft devolution framework as informed by constitution, their rich experience and successful practices elsewhere for public input.
ii). Conducted prior civic education on the same before collecting the same.
iii). Intentionally and purposefully mobilised the political class, especially parliamentarians in their county areas.
I submit that the consequence of current efforts will;
a). Be rejected at parliament level.
b). Result in demand for a 'people-involvement'
c). Receive a lot more of a unconstitutional submissions than substantive devolution inputs on devolution as provided for in our constitution.
All the same, I call on you to attend and submit your views; after all our constitution calls for people participation in governance at all times and levels, doesn't it?
It was not well thought out, participation not informed, poorly attended and militarily controlled.
My take is that it would have been better had it;
i). Developed and presented a draft devolution framework as informed by constitution, their rich experience and successful practices elsewhere for public input.
ii). Conducted prior civic education on the same before collecting the same.
iii). Intentionally and purposefully mobilised the political class, especially parliamentarians in their county areas.
I submit that the consequence of current efforts will;
a). Be rejected at parliament level.
b). Result in demand for a 'people-involvement'
c). Receive a lot more of a unconstitutional submissions than substantive devolution inputs on devolution as provided for in our constitution.
All the same, I call on you to attend and submit your views; after all our constitution calls for people participation in governance at all times and levels, doesn't it?
Thursday, 10 February 2011
APPOINTMENTS OR APPORTIONMENT By ndolo asasa Esq.
10th February 2010.
Later today, parliament will determine upon being given submissions by 2 parliamentary committees on whether the appointments of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were done constitutionally or not. Realisation of constitutionalism only starts with the implementation of a constitution. If we get the implementation wrong, we miss constitutionalism. Meaning we tinker with dictatorship, with bad governance, with jungle rule.
Parliament may well miss the mark today if the question they will be answering is either whether the Principals consulted or not OR whether there was agreement between the Principals or not! Those will be the wrong questions to answer.
What must be determined and insisted not only by parliament but by all Kenyans is that the constitution MUST be truthfully implemented. The correct question to be determined then invariably is; were the appointments constitutionally done or not?
I submit:
1). The Implementation Schedule.
This is comprehensively provided for in the 6th Schedule of the New Constitution. True, it provides for timed suspension of immediate application of parts of the new constitution. But this parts are unequivocally specific and the duration of suspension given. These are expressly provided for in Schedule 6 Section (2) and (3) that specifies the Suspension of Provisions for the New Constitution and Extenstion of Application of Provisions of the Former Constitution respectively;
SUSPENDED:
(i) On Elections
“(a) Chapter Seven, except that the provisions of the Chapter shall apply to the first general elections under this Constitution.
(b) Chapter Eight, except that the provisions of the Chapter relating to the election of the
National Assembly and the Senate shall apply to the first general elections under this
Constitution; and
(c) Articles 129 to 155 of Chapter Nine, except that the provisions of the Chapter
relating to the election of the President shall apply to the first general elections under
this Constitution.
(ii) On Devolved Government
“The provisions of this Constitution relating to devolved government, including Article 187, are suspended until the date of the first elections for county assemblies and
governors held under this Constitution.”
(iii) Exemptions
“(a) elections for county assemblies and governors shall be held in accordance with Articles 177 and 180 of this Constitution; and
(b) the laws relating to devolved government, required by this Schedule and Chapters
Eleven and Twelve of this Constitution, shall be enacted within the period stipulated in
the Fifth Schedule.”
(iv) On Land
“Article 62 (2) and (3) is suspended until the National Land Commission is established.”
EXTENDED:
(v) On Citizenship
“Until Parliament passes the Act anticipated in Articles 15 and 18, section 93 of the former Constitution continues to apply.”
(vi) On Composition of Parliament, Voter Registration, Membership of National Assembly,
Parliamentary Service, Parliamentary Service Commission, Exercise of Parliamentary Power and legislation and Procedure in National Assembly EXCEPT prorogation of Parliament and The National Accord.
Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the
former Constitution concerning the executive, and the National Accord and
Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general
elections held under this Constitution, but the provisions of this Constitution concerning
the system of elections, eligibility for election and the electoral process shall apply to that
election.
(vii) On Police
Until the National Police Service Commission referred to in Article 246 is established, section 108(2) of the former Constitution applies to appointments, discipline and the
removal of persons from office in the National Police Service.
Chief Justice:
Section 24 (2) of the 6th Schedule expressly provides for the appointment of the New Chief Justice without exempting the process of his/her appointment to the substantive provisions on Judicial appointments of the New Constitution. Section 24(2) of the 6th Schedule provides that “A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.”
Chapter 10 Article 166(1) provides that “The President shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and
(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.”
This in no uncertain terms provides for the appointment procedure and the role of the various institutions thus. It is cognizant to note here that the powers of the President are exercised subject to the National Accord and not the National Accord replacing the full constitutionally sanctioned procedure!
Attorney General and the Director of Public Prosecutions:
This is particularly provided for in Chapter 9 Article 156(2) and 157(2) respectively that the President will appoint with approval of the National Assembly. Of course remembering that as at now the President exercises his authority as provided for in the National Accord.
Controller of Budget:
Shall be appointed by the President with the approval of the National Assembly. This is provided for on Chapter 12 Article 228(1)
The Role of the National Assembly.
It is key to note the important role the National Assembly plays in the appointments by way of approval. The approval is not blank trading cheque for the National Assembly to make deals for themselves with the executive, but it is to ensure that the Constitution is fully adhered to in spirit and letter especially in reference to basic qualifications, Chapter 6 (Leadership and Ethics) and the Bill of Rights as emphasized in Chapter 4 Article 19(1), 20(1)& (4), Article 21(1,2&3) with special emphasis Article 27 of the Bill of Rights (Chapter 4).
I, like many Kenyan, have more hope than confidence that as this matter is disposed off and course of constitutionalism determined in Kenya by parliament, LEADERSHIP and NOT DEALERSHIP shall be tipping factor.
By the way, how did the Parliament, the commissioners to boot and seemingly ‘we the people’ accept Mr. Charles Nyachae to be the Chairperson on the Constitution Implementation Commission when the Principals disregarded the laid down procedure to appoint the Chair? Did we start on a wrong footing and subsequently miss the moral high ground to demand full, truthful and faithful implementation of the New Constitution?
Chapter 1 Article 1 of the Constitution is emphatic that “All sovereign authority belongs to the people of Kenya…” and that “we the people, may exercise our sovereign authority either DIRECTLY or through our democratically elected representatives”. Kindly note that direct exercise of sovereign authority is the PRINCIPAL way to be exercised! Meaning, we the people have an unalienable role to provide LEADERSHIP should our representatives seek dealership as is substitute to leading.
Over to parliament, on this path to constitutionalism in Kenya are you going to LEAD or DEAL?
Later today, parliament will determine upon being given submissions by 2 parliamentary committees on whether the appointments of the Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget were done constitutionally or not. Realisation of constitutionalism only starts with the implementation of a constitution. If we get the implementation wrong, we miss constitutionalism. Meaning we tinker with dictatorship, with bad governance, with jungle rule.
Parliament may well miss the mark today if the question they will be answering is either whether the Principals consulted or not OR whether there was agreement between the Principals or not! Those will be the wrong questions to answer.
What must be determined and insisted not only by parliament but by all Kenyans is that the constitution MUST be truthfully implemented. The correct question to be determined then invariably is; were the appointments constitutionally done or not?
I submit:
1). The Implementation Schedule.
This is comprehensively provided for in the 6th Schedule of the New Constitution. True, it provides for timed suspension of immediate application of parts of the new constitution. But this parts are unequivocally specific and the duration of suspension given. These are expressly provided for in Schedule 6 Section (2) and (3) that specifies the Suspension of Provisions for the New Constitution and Extenstion of Application of Provisions of the Former Constitution respectively;
SUSPENDED:
(i) On Elections
“(a) Chapter Seven, except that the provisions of the Chapter shall apply to the first general elections under this Constitution.
(b) Chapter Eight, except that the provisions of the Chapter relating to the election of the
National Assembly and the Senate shall apply to the first general elections under this
Constitution; and
(c) Articles 129 to 155 of Chapter Nine, except that the provisions of the Chapter
relating to the election of the President shall apply to the first general elections under
this Constitution.
(ii) On Devolved Government
“The provisions of this Constitution relating to devolved government, including Article 187, are suspended until the date of the first elections for county assemblies and
governors held under this Constitution.”
(iii) Exemptions
“(a) elections for county assemblies and governors shall be held in accordance with Articles 177 and 180 of this Constitution; and
(b) the laws relating to devolved government, required by this Schedule and Chapters
Eleven and Twelve of this Constitution, shall be enacted within the period stipulated in
the Fifth Schedule.”
(iv) On Land
“Article 62 (2) and (3) is suspended until the National Land Commission is established.”
EXTENDED:
(v) On Citizenship
“Until Parliament passes the Act anticipated in Articles 15 and 18, section 93 of the former Constitution continues to apply.”
(vi) On Composition of Parliament, Voter Registration, Membership of National Assembly,
Parliamentary Service, Parliamentary Service Commission, Exercise of Parliamentary Power and legislation and Procedure in National Assembly EXCEPT prorogation of Parliament and The National Accord.
Sections 30 to 40, 43 to 46 and 48 to 58 of the former Constitution, the provisions of the
former Constitution concerning the executive, and the National Accord and
Reconciliation Act, 2008 (No.4 of 2008) shall continue to operate until the first general
elections held under this Constitution, but the provisions of this Constitution concerning
the system of elections, eligibility for election and the electoral process shall apply to that
election.
(vii) On Police
Until the National Police Service Commission referred to in Article 246 is established, section 108(2) of the former Constitution applies to appointments, discipline and the
removal of persons from office in the National Police Service.
Chief Justice:
Section 24 (2) of the 6th Schedule expressly provides for the appointment of the New Chief Justice without exempting the process of his/her appointment to the substantive provisions on Judicial appointments of the New Constitution. Section 24(2) of the 6th Schedule provides that “A new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.”
Chapter 10 Article 166(1) provides that “The President shall appoint—
(a) the Chief Justice and the Deputy Chief Justice, in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly; and
(b) all other judges, in accordance with the recommendation of the Judicial Service Commission.”
This in no uncertain terms provides for the appointment procedure and the role of the various institutions thus. It is cognizant to note here that the powers of the President are exercised subject to the National Accord and not the National Accord replacing the full constitutionally sanctioned procedure!
Attorney General and the Director of Public Prosecutions:
This is particularly provided for in Chapter 9 Article 156(2) and 157(2) respectively that the President will appoint with approval of the National Assembly. Of course remembering that as at now the President exercises his authority as provided for in the National Accord.
Controller of Budget:
Shall be appointed by the President with the approval of the National Assembly. This is provided for on Chapter 12 Article 228(1)
The Role of the National Assembly.
It is key to note the important role the National Assembly plays in the appointments by way of approval. The approval is not blank trading cheque for the National Assembly to make deals for themselves with the executive, but it is to ensure that the Constitution is fully adhered to in spirit and letter especially in reference to basic qualifications, Chapter 6 (Leadership and Ethics) and the Bill of Rights as emphasized in Chapter 4 Article 19(1), 20(1)& (4), Article 21(1,2&3) with special emphasis Article 27 of the Bill of Rights (Chapter 4).
I, like many Kenyan, have more hope than confidence that as this matter is disposed off and course of constitutionalism determined in Kenya by parliament, LEADERSHIP and NOT DEALERSHIP shall be tipping factor.
By the way, how did the Parliament, the commissioners to boot and seemingly ‘we the people’ accept Mr. Charles Nyachae to be the Chairperson on the Constitution Implementation Commission when the Principals disregarded the laid down procedure to appoint the Chair? Did we start on a wrong footing and subsequently miss the moral high ground to demand full, truthful and faithful implementation of the New Constitution?
Chapter 1 Article 1 of the Constitution is emphatic that “All sovereign authority belongs to the people of Kenya…” and that “we the people, may exercise our sovereign authority either DIRECTLY or through our democratically elected representatives”. Kindly note that direct exercise of sovereign authority is the PRINCIPAL way to be exercised! Meaning, we the people have an unalienable role to provide LEADERSHIP should our representatives seek dealership as is substitute to leading.
Over to parliament, on this path to constitutionalism in Kenya are you going to LEAD or DEAL?
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