We need to get ‘Sports’ right…

Opinion Blog

Letter to the Kenyan Sports CS:

Dear Mr. Rashid Mohamed Echesa,

Allow me to congratulate you for your Nomination and Appointment as Kenya’s Cabinet Secretary for Sports and Heritage. This is indeed a great honor and privilege to be recognized as the men to head this docket with the responsibility of giving the President counsel as required by law and custom.  It is no doubt that you are competent enough, humble, self-driven with the ability to show accountability and transparency. Taken from President Kenyatta’s mouth, “to whom much is given, much is expected”. These are the expectations of a president- who is seeking to leave a legacy-, Kenyans who play and love sports and ultimately all Kenyans whom through the President have bestowed on to you in trust, the duty to lead them in the area of sports and heritage.

I must remind you that you are taking over this ministry at a time when it has witnessed massive failure and disproval from all corners. You must take note that a major private sector sponsor- Sportpesa, who have been massively funding sports in the country have reduced their funding due to disagreements with the National Government. This withdrawal of financial support has a trickle-down effect on all sports activities-football, boxing, rugby, etc. To illuminate the point properly, Gor Mahia and AFC Leopards-Kenyan clubs who are both in continental championships may not have funds to prepare and honor fixtures let alone do well. Keeping with the beautiful game, you must remember that Kenya lost the bid to host the CHAN championships due to an apparent lack of infrastructure and unpreparedness. This is despite the Jubilee Government’s promise of world class stadia. You are getting into a ministry that is traditionally marred with corruption, misappropriation and mismanagement of funds, scandals, wrangles and politics in the various sports federations and disillusionment.

I am therefore writing to you to tell you why we need to get sports right as a country. Why you need to do things differently and why sports may be one of the solutions for Kenya.

The Nature of the Sports docket

The first thing to get right is to understand the nature of the Sports Ministry. The “false start” we always have is the thought that sports is a “small” ministry. There is therefore a tendency by the leadership to allocate relatively less money to the ministry and to treat is as a token docket. This is the ministry where things like regional balance and gender equality may be looked at. I do not blame the political class but understand that this attitude is cultural and is carried on from a society that believes in white collar jobs as opposed to sports. This is a challenge that you need to take seriously. If you assert yourself properly, understand your working environment, instill discipline; you may just help in making a difference

The Ministry requires a delicate balance between international, regional and municipal interests. It requires a comprehensive knowledge on the working of federations, negotiation skills and a grasp of the law. By nature, sports is dovetailed by different sectors which require knowledge in sports management and governance. It is very hard for the Government to convince people that they care about the youth when they perform horribly in sports and before I conclude this part, take note that if properly managed and actualized, it may be the gold that Government needs. This is because success in sports translates to success in other areas.

Economic Success

Sports have huge economic benefits if you think of it as a business. It means selling sports and merchandise through contractual obligations. The ministry should therefore step up in terms of sponsorship deals and endorsements. I urge you to have the capacity to negotiate and grow sponsorship for our sports. Sports create job opportunities and lastly, hosting tournaments such as CHAN have huge economic benefits that have been taken for granted. Development of roads and infrastructure also leads to economic growth. If you want to know the extent to which Kenya is losing just take a look at countries that take sports seriously, you will notice the kind of money that changes hands and what it does to the economy. Sports is also connected to areas such as trade, foreign affairs and tourism which indirectly help to spur economic growth. All I am saying is; Kenya needs to stop the myopic thinking that we’re currently stuck with regarding issues sports.

Social-cultural dimension         

Kenyans are traditionally and culturally known for long distance running. The country is also earning the status of a world power house in Sevens Rugby. Through these, our beautiful culture and way of life gets out in the world.  More importantly however, is the role that sports plays in shaping our society. It is an effective medium of advocating for good in the society and eradicating what’s bad.

Scientific research has proven that participation in sports is a very effective way of keeping young boys and girls from drugs and substance abuse. It is also used for mentorship and gaining a better perspective in life. All these are affected when Sportpesa quits sponsorship and the Government is unable to allocate funds to sports activities. You may also recognize the role that sports plays in keeping people healthy and as they say…health is wealth.

Politics & Sports

I am sure we all have noticed that sports is one of the things that always takes “tribe” and negative ethnicity from Kenyans. It is at the moment when the Shujaa are running towards the try-box that Kenyans always feel most patriotic. Sports is one medium to national cohesion and unity. It has always been used to fight discrimination and negative politics as it is used to advocate for good politics. Sports bring people together. So, I know you will agree with me that getting sports right is in fact part of the Jubilee government’s Big Four Agenda.

Sports as a Human Right

As a lawyer I need to also inform you of sports as a human right. This mostly applies to children but it extends into building sports academies, parks and areas where children can play and nurture talent. The Sports Act provides for the creation and development of Sports Academies for development of talent. These require coordination, management and proper governance.

In conclusion, these are very important reasons why we need to fix Kenya sports and get it right. We need to develop our institutions and invest in our talent.

Wish you the very best, Waziri!

Yours Sincerely,

Ouma Kizito Ajuong’   

Advocate of the High Court of Kenya    

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More problems than solutions in proposed Linturi Amendments

downloadThe dust has barely settled on the collapse of the cases against Deputy President William Ruto and journalist Joshua Arap Sang at the ICC but the strong forces of impunity are at work again, this time through the Constitutional Amendment Bill of No. 35 of 2016.

This bill championed by Igembe South MP Mithika Linturi proposes constitutional amendments to article 143 of the Constitution thereby extending immunities enjoyed by the President against civil and criminal proceedings, to the Deputy President. Further, the amendments extend the immunities for both the President and Deputy President to crimes for which they may be prosecuted under any international treaty to which Kenya is a signatory and which prohibits such immunity.

This article details the negative consequences of these proposed amendments and how Kenya risks sliding back to anarchy due to such retrogressive legislation.

Legal Consequences

The ‘Principal Objective’ of the Bill is to give effect to Article 2 (5) of the Constitution which states that ‘The general rules of international law shall form part of the law of Kenya’. The expectation therefore is that the proposals contained in the Bill should not only be directly linked to this particular Article but it should also put into practice or make operative that particular Article.

The amendment of Article 143 proposes the insertion Deputy President immediately after the word President so that immunities of the President extend to the Deputy. This proposal in our view is not controversial and does not warrant the splitting of hairs. Under international law, the doctrine of head of state immunity proposes that serving heads of state enjoy immunity ratione personae (otherwise known as absolute personal immunity) for each and every act undertaken while in office, regardless of whether they are done in a private capacity. This immunity is not limited to the heads of state, but attaches to all high-ranking state officials by virtue of the office they hold.

The controversy therefore does not lie in the addition of Deputy President in the various Articles, rather in the obliteration of criminal and civil responsibility of the Presidency to international law instruments and institutions.

The proposal seeks to exonerate both the President and the Deputy from instruments of international law. This contradicts Article 2(5). Therefore, on the face of it the Memo of the Bill as read together with the proposed amendments actually do not give effect to Article 2(5) as suggested. These amendments are at the very least misleading. The drafters of the Constitution understood that, to fully realise the potential of this Constitution then various legislations would have to be formulated. In the absence of these legislations then general rules of international law would fill the gaps unaddressed by national law.

Not so immune

Worthy to note is that even if these amendments were to be effected, the immunity as proposed is not absolute. Heads of state may still be subjects of international law institutions irrespective of this immunity if the United Nations Security Council (UNSC) deems the circumstances necessary. As is the case in Sudan and Libya where the UNSC referred the situations in Sudan and Libya to the ICC.

In addition, the ICC on its own motion, may also issue a direction to the Registrar of the court to circulate a warrant of arrest against a head of state just like it happened to Muammar Gaddafi. This was despite the fact that Libya was and still is not a signatory to the Rome Statute. The ICC also possesses the capacity to abrogate head of state’s immunity, because it presides over an international jurisdiction and that head of state immunity cannot apply before international courts.

In removal of customary immunities from Al-Bashir, the ICC considered that one of its core goals  is to end impunity for the perpetrators of the most serious crimes of concern to the international community, that the Rome Statute is applicable to all persons irrespective of status, that other sources of law (such as the customary law of head of state immunity) can only be resorted to when there is an irresolvable lacuna in the application of the rules of the ICC and that when referring the situation to the ICC , the UNSC accepted that investigations and prosecutions will take place in accordance with the Rome Statute.

Therefore a  defense or a preliminary objection to the exercise of the ICC’s jurisdiction on the ground that an accused person enjoys immunity under any law, whether international or domestic is not only vexatious but will be dismissed. In addition where there is a conflict between rules of International Law and Municipal/Local Law before an international tribunal (ICC), it has been proven that by precedent that International Law is supreme.

The ICC? No way, no how

It is important to note that the President and Deputy President were not acquitted by the ICC. There exists the possibility of future prosecution should new or fresh evidence be adduced before the Court by the prosecution. Therefore, the immediate intention of the government is to prevent this from happening through the Amendment of Article 143 (4). Both the President and Deputy President will not be under any Constitutional obligation to attend any potential future ICC hearings or proceedings. Politically, the 2 leaders must remain in power to use their positions to undermine the possibility of any fresh cases being brought against them either nationally or internationally.  The proposed Linturi amendments attempt to panel beat the constitution to protect and safeguard the political interests of the current leadership. The proposed amendments should also be viewed against the ongoing campaign by the African Union to insulate sitting Heads of State from prosecution by the ICC and cutting links with the ICC altogether. The AU has been urging its members to speak with one voice against criminal proceedings targeting “sitting presidents” and was particularly disappointed that a request to the UNSC to defer the trials of Kenyan leaders had not yielded positive results. Therefore, these amendments should be viewed as part of the local chain of events that will legislatively contribute to the wider agenda of Kenya pulling out of the ICC in furtherance of the stated AU position.

 Watering down of national values and integrity

The inclusion of National Values in the Constitution was informed by what seemed to be, in Yash Pal Ghai’s words a total breakdown of moral values and standards typified by great degree of corruption, the use of coercion by the state, and the suppression of human and community rights. In addition, Chapter 6 of the Constitution is a critical component in trying to realize ethical leadership in Kenya and requires strengthening. However, the proposed amendments represent a step backwards in this regard because it is an attempt by Parliament to shield Kenyan leadership from accountability to international law, treaty and conventions despite the latter three forming part of Kenyan law as per Article 2 (5) (6) of the Constitution.

This amendment can also create a dangerous precedence of turning Kenya into a future pariah state. This will happen in a situation where future Kenyan leaders are accused of complicity in commission of international crimes but are shielded from national prosecution by the Kenyan Constitution, necessitating a situation similar to Sudan’s where international warrant of arrests are issued thus effectively handicapping the said leaders from representing the country internationally and sabotaging the country’s foreign policy mandate and obligations.   The integrity of the state will be put to test through these amendments.

Healing and Reconciliation

Part of healing and reconciliation includes guarantees of non-repetition of the violence that took place. This includes amongst many other things the prosecution of suspects who committed crimes and justice for the victims. The proposed amendment will not add value to the search for meaningful healing and reconciliation in Kenya because it seeks to obstruct the application of international law by granting immunity to the President and Deputy President for international crimes or human rights violations committed by them or under their watch. In addition, it creates ground and provides opportunity for recurrence of political violence and gross human rights violations because perpetrators and especially those “bearing the highest responsibility” will feel sufficiently protected from prosecution by national law and insulated from international law by the Constitution.

By 

Aimee Ongeso, Marcelino Waithaka, Ashioya Biko and Wangari Karige.

Kituo Cha Sheria.

Kenya can, must and should deliver justice for 2007/2008 PEV victims

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End of the road?

On April 5, 2016, ICC judges vacated crimes against humanity charges against Deputy President William Ruto and a former broadcaster, Joshua Arap Sang, ending the last ICC prosecution directly related to the violence. Expectedly, this dealt a huge blow to victims who had hoped for justice from the ICC. At national level, there has been little to no effort to hold to account the perpetrators or address the ever deteriorating socio-economic and medical needs of victims. As such, all eyes were on the ICC to deliver that which the Kenya government has neglected and failed to deliver; justice.

Amidst the heavy clouds of disappointment it must not be lost that the ICC is a court of last resort and intervenes only when a state is unwilling or unable to offer redress. These interventions are but complementary to national systems. Victims of the 2007/2008 post-election violence deserve justice, reparations and assistance.  This is not and should not be pegged on the outcome of the ICC cases but that there was post-election violence in Kenya and resultant victims. The post-election violence resulted in at least 1133 deaths, 900 cases of sexual and gender based violence, 663,921 internally displaced persons and numerous victims of grievous harm and destruction of property.

Kenya’s obligations    

Kenya has legal provisions and mechanism necessary to offer justice, reparations and assistance to victims of post-election violence – whether such victims are within cases that have been before the international criminal court or not. They include but are not limited to the Constitution of Kenya, International Crimes Act, the Truth Justice and Reconciliation Act, and the Prevention Protection and Assistance to Internally Displaced Persons Act.

The Constitution

The freedom and security of the person and the protection of the right to property are constitutional provisions under Articles 29 and 40 of the constitution of Kenya, respectively. By Article 19 (3) (a), these rights and fundamental freedoms belong to each individual and are not granted by the state. A reflection on how victims of post-election violence were affected revolves around the rights to freedom and security of the person and on protection of the right to property.

When there is a violation of these rights, it’s again the state’s systems that should offer redress. Article 21 of the constitution provides, as a fundamental duty, for the state and every state organ to observe, respect, protect, promote and fulfil these rights.

Truth Justice and Reconciliation Commission’s Report (TJRC Report)

The TJRC report provides for a comprehensive reparations framework for victims of violations of human rights – including of post-election violence. It also comprehensively explores the root causes of conflicts and violations of human rights that if addressed would prevent future atrocities. However the report is yet to be adopted by the National Assembly and implemented by the relevant institutions.

Alternative Justice Systems (AJS) and Reconciliation

At the centre of AJS is the real and intended action of bringing together conflicting parties and restoring peace and harmony in communities. The Constitution provides for promotion of legitimate and valid adjudicative powers to other forms of dispute resolution. If AJS is promoted within contexts of communities applicable, they present home-grown mechanisms, would be culturally appropriate, would use minimal resources, would be accessible and acceptable to communities they would serve. The design of alternative justice systems for post-election violence cases should be complimentary to existing judicial mechanism. They should not be interpreted as replacing formal judicial systems.

The Prevention Protection and Assistance to Internally Displaced Persons and Affected Communities Act (IDP Act)

The IDP Act has provisions for mitigation measures and for having in place durable and sustainable solutions on internal displacement. This calls for an engagement within counties and affected persons in a participatory manner.Implementation requires action from both national and county governments and adequate resources (funds and personnel), primarily through budgetary allocation by the National Assembly.

Establishment of the International Organized and Crimes Division of the High Court (IOCD)

In cases of gross human rights violations like the 2007/2008 PEV, huge numbers of people are often implicated. It is impossible for the ICC to try all these individuals neither can the normal domestic courts handle all these cases in addition to the other matters brought before the court. This means that a huge “impunity gap” prevails at the community level where victims survivors and perpetrators are forced to co-exist in fear and mistrust. The establishment of the IOCD fills this gap and is critical in assisting Kenya meet its international and national obligations.

It goes without saying that for the IOCD to meet international standards it has to be well resourced and there has to be uncompromised political support from the Kenyan government. The Kenyan Government is expected to fund the IOCD adequately in addition to donor funding.

Seize the opportunity

Kenya must therefore rise to the occasion and renew efforts to deliver justice for victims exploring all available options. This requires serious commitment from the State.

By Aimee Ongeso and Jodom Mwebi;

Advocacy, Governance and Community Partnership

Kituo cha Sheria

Langata Women Prison Justice Center Launch

LANG123Majority of inmates at the Lang’ata Women Prison are fairly very young women who are ignorant of their rights or the law and who have in extension wasted their lives in crime without realizing the consequences.

One of the goals of Kituo’s prison paralegal trainings is to decongest correctional facilities by empowering the prisoners and remandees on self-representation in court, how to adduce evidence if any, how to cross examine witnesses, how to write their submissions, how to make mitigation statements, how to make interim applications such as those for bond, bail, and making applications for Community Service Order.

Based on the above needs, a paralegal training was conducted on Criminal law and procedures from the 14th to 22nd of March 2016 at the Lang’ata Women Prison to empower the inmates on their fundamental legal rights and self-representation in court by boosting their self esteem to represent themselves.

Education is the most powerful weapon used to bring about change and training inmates as paralegals helps them share this legal knowledge acquired with their fellow inmates which helps them to solve legal problems they might encounter.

A total of 40 participants were trained, 35 of whom were inmates and 5 prison constables. The inmates comprised of those on long sentences, pre-trial detainees charged with capital offences as well as the condemned.

The following topics were covered;

  • Basics of Paralegalism.
  • Introduction to Human Rights
  • Bill of Rights (Chapter 4 of Constitution).
  • Criminal Procedure Code Chapter 75 Laws of Kenya:
  • Powers of Court
  • Provisions relating to all Criminal investigations
  • Mode of taking and recording Evidence in Trials
  • Procedures in Trials before a Subordinate Court and High Court
  • Sentences and Executions
  • Appeals
  • Self representation (Criminal Approach).
  • Power of Mercy Act
  • The Prisons Act
  • Community Service Order.

The training was conducted by Kituo Advocates and Kituo Volunteer Advocates within Nairobi.

The training on Community Service Order was important was an important session as the inmates were taken through the process of applying for a community service as it presents some inmates with the option of serving from outside hence decongesting the prison. The newly acquired knowledge on the Bail and Bond Guidelines was equally important in the process of decongestation.

Giving inmates the tools to represent themselves in legal matters will increase access to justice and also empowers inmates to challenge situations of injustice and abuse of certain rights inside the prison.

Bringing prison constables on board was also important in creating awareness on inmate’s rights and their obligations to ensure the rights of the inmates are protected as well as offer oversight in ensuring that prison paralegals work with the officers and raise awareness about the activities of the paralegals in prison.

Finally Langata women prison Justice Center was successfully established on March, 23, 2016 with a colourful ceremony which was preceded by the graduation of 35 inmates and 5 prison constables who vowed to offer free legal aid to other inmates and use the acquired skills to ensure principles of justice are adhered to always.

The eventful ceremony was presided over by the Executive Director-Kituo Cha Sheria, Ms Gertrude Angote, Langata women Prison officer in charge Ms Olivia L.A.Obel and other dignitaries.

Nasibo Abagaro

AGCP-Kituo Cha Sheria.

 

The African Union has let Burundi Down

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“When the power of love overcomes the love of power, the world will know peace” Jimi Hendrix

It is everyone’s dream to live in a peaceful country and enjoy the protection of its government and enjoy the rights and privileges that there are. Citizenship is a source of great pride for it gives someone a sense of belonging. While holding on to that dream, we got to ask this rather obvious question, WHAT IS PEACE? The question may sound rhetorical or rather simplistic but its answer may not be that obvious or simplistic. Why you may ask, because Burundi is still searching for an answer to peace.

In my search for the meaning of peace I came across two definitions, but I’ll pick one. Peace is freedom from or the cessation of war or violence.” They say, peace is the greatest asset to humanity and lack of it is the worst weapon and may be a recipe for mass destruction to irreparable proportions. Lack of peace breeds war, hatred, contempt, discrimination, suspicion and evil generally.

For those of you reading this, chances are you have not experienced a situation where you have been forced to flee out of your country due to war/violence. Probably the only thing that has made you step out of your country boarders is going for a vacation to a fancy destination or searching for greener pastures. Chances are you do not know the price for war and violence. You don’t know how it feels to walk into a strange country in search for asylum. You do not know how tormenting it is when you meet your persecutors who were after your life even after crossing borders. The point I am making is that the definition for peace in my opinion may be relative depending on an individual and circumstances.

In the recent times we have witnessed violence, wanton killings and political impunity in Burundi. 2015 especially saw Burundi descend into chaos, forcing mass displacement of people to neighbouring countries in thousands. The consequences of war and violence have been profoundly brutal. Ethnicity has been mobilised for political and military purposes, pitting communities against each other and tearing apart the social fabric of Burundi. The causalities have steadily risen while Africa is sitting and watching as one of its babies is bleeding. The atrocities have not elicited any genuine response from the African leaders. Yet we dare say Africa has solutions for its own problems. Innocent children, women and men are being slaughtered. The Black-Eyed Peas in their song ‘Where is the Love?’ sang “People killing, people dying. Children hurt and you hear them crying. Can you practice what you preach? Or would you turn the other cheek… whatever happened to the values of humanity. Whatever happened to the fairness and equality? Instead of spreading love we’re spreading animosity. Lack of understanding, leading us away from unity….. If love and peace are so strong why are there pieces of love that don’t belong?’’

Innocent Burundians who have been robbed the protection of their country, have fled into neighbouring countries in search for asylum owing to well-founded fear of being persecuted for reasons of belonging to a particular social group or by virtue of holding a different political opinion from the ruling party/government. It is reported in the news that the government has deployed armed youths affiliated to the ruling party, National Council for the Defence of Democracy (CNDD-FDD) (Imbonerakure youth wing) to hunt down and kill anti-Nkurunziza protestors opposed to the president and his bid for a third term. Out of despair those fleeing are unwilling to avail themselves to the protection of their country or return to their boarders because the imminent fear of persecution.

In my line of duty, I have interacted with persons of concern fleeing from Burundi into Kenya to seek asylum. Their stories can only be described as a nightmare bordering scenes of a horror movie. They are running away from an authoritarian leader who has hang on to power and has refused to let go. A leader who once vowed to lead a revolution of peace and change but has instead presided over mass ethnic killings without a care in the world.

In Burundi I see a country colonised by a dictatorial regime with insatiable appetite for power. A regime that does not give a damn about democracy. A regime that does not care about its people. A regime that has no listening ear to those who dare give a piece of advice. We are in an era rogue regimes have taken it upon themselves to decide how countries are governed and run. They are the players and referees in their own game. You either play along or you are out.

In November 2003, Nelson Mandela while addressing the people of Burundi said, “Do not fail us, do not fail the world. But above all, do not fail yourself and your people. Your country has bled enough. It and its people now deserve enduring peace.” Tragically, 13 years down the line Burundi is still unsettled. Things are just the same, old ways have not changed. The dark clouds are still hanging and the promise of a new dawn is still a fairy-tale. It is a crying shame!

While every country and people must work out and find the solutions appropriate to their circumstances, as a continent, Africa has a role to play in ensuring a lasting solution and everlasting peace returns to Burundi.

Ironically, Africa has chosen to politicise every situation and blame everybody for their problems without a care in the world.  The people of Burundi have been left on their own while Africa has concentrated its energies plotting an exit out of the ICC. Instead of addressing the urgent situation in Burundi the African Union has turned a blind eye and chosen the essay way, to play the victim and swim along to the politics surrounding the ICC to adopt a proposal by President Uhuru Kenyatta for the AU to develop a road map for the withdrawal of African nations from the Rome Statute.

President Kenyatta in his wisdom or lack of it (the later applies) is busy rallying African States signatory to the Rome Statute to make a ‘statement’ as it were that reflects Africa’s refusal to be carried along in a system that has no regard for the sovereignty of nations and tramples on the security as well as the dignity of Africans.

The proposal to withdrawal from the ICC comes at a wrong time when some African states are is facing human rights atrocities. The question I dare ask, is Africa committed to protect and promote human rights and reject impunity?

African governments played a vital role in setting up the ICC and their commitment has ensured that millions of victims of human rights abuses across Africa and around the world have access to justice. A proposal to withdrawal from the ICC will therefore send a wrong signal because it directly contradicts the values of protecting and promoting human rights which is central to the African Union itself.  For a moment these values will be washed down the drain by a few countries solely interested in protecting their own leaders, Kenya being one of them.

While the politics surrounding the purported withdrawal from the ICC takes center stage innocent Burundians are still hopeless and their only hope perhaps is divine intervention. But I dare say, all is not lost. It is not all doom and gloom. If Nkurunziza thinks working with the opposition is impossible, they need only consider the recent history of South Africa, where former bitter enemies, Mandela and de Klerk established a government of national unity and jointly laid apartheid to waste. If it was possible in South Africa, it is possible in Burundi. If it was possible for Mandela and de Klerk – and the soldiers under their command – it is possible for Nkurunziza.

Burundi will not get peace if Africa sits and watches. South Africa did not achieve its peaceful transition on its own. Sustained political, moral and economic pressure by the international community contributed enormously to getting the negotiations going.

It is about time that Africa rose joined hands in averting the growing humanitarian crisis in Burundi. Africa cannot sit and watch as an abusive regime dictates the terms of holding itself to power.  Africa can rise to protect one of its own. Africa shall rise against war. African can find solutions to its own problems. Nobel Peace Laureate, Desmond Tutu once said “God is weeping because people were made for inter-dependence and love. Hatred is not a natural condition; it is manufactured and propagated by people. It is a condition that can be turned on its head by good leaders.” It is about time that Africa put its act together!

By Victor Ondieki.

Forced Migration Programme.

Eclipsed in Corruption: Who will Rescue Kenya?

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Is it not everywhere?  Yes, we are talking of corruption, bribery or simply stealing from the forbidden cookie jar. Haven’t we heard cases of graft even in church? In our morgues? Our borders? State of affairs that is normal for the police force. A system that has characterised our politics and leaders. A culture that has darkened our ministries and government institution. A reality that has disparaged our value system and moral fabric. Turned our youths into disillusioned dream chasers. An ugly picture that turns back the gains we have made in this country. Corruption stinks!

We hereby pause a question; do we need a third liberation? And who will rescue Kenya? In this article we are going to highlight the level of corruption in different arms of government as we invite you to ponder with us as we seek a solution.

Justice Philip Tonoi’s bribery claim jolts judiciary’ Is the headlines you see plastered on the face of the newspapers. It is the current wave that has rocked our defenders of justice and what does it mean? What are the consequences? Perhaps to many it is just another scandal, a confirmation of what goes on in the dark brought out to light, but think about it for a minute. The Judiciary as provided for in the Constitution 2010 is not just an ordinary arm of the government; it is the link between the Executive and Parliament. It is the defender of justice and so by any standard it should not just be clean but seen to be clean. The people of Kenya ought to have faith in the judiciary but with such headlines can you blame them? A ride down memory lane educates us that when people lose faith in the court system the results are usually bloody. Moreover, Philosophy tells us that the S.I Unit of measuring the integrity of a judge is that of creaser’s wife, can we ascertain this of the good judge  and what about the other six, what does the allegations of over 200 million bribe say about them?

It may not be clear to everyone but as far as good governance, the rule of law and integrity go, the judiciary should be the cornerstone of it all but what a shame that we here bribery claims from the highest court in the land. The people tasked with the responsibility of setting the standards, creating a judicial culture. They have indeed gone back on the work. They have spit on the reforms and the millions of tax payer’s money that have gone into cleaning of the judiciary. The Judiciary may not rescue Kenya; they may not help us secure our integrity. They may not have the answers we are seeking. We saw the governor of Nairobi County, Evans Kidero measure how bulky the alleged 202million is, speaking to the poor Kenyans who are not even sure of what they will eat after being convinced that ‘NONE’ can carry such amount. We remember vividly the utterances of the Kiambu governor William Kabogo; “…if they want to take us to court, let them do so. I am ready and I have money to defend myself…” so justice can be bought, it is attainable depending on the amount of money you have!

President Uhuru Kenyatta promised a corruption free Government. He swore to turn the tide and run a clean executive but could he be looking back at his words and cursing with frustrations? If this was not a political charade, he must be a very disappointed man. The Executive has had a lion’s share of graft cases .We have heard of the tender irregularities with the $3.5 billion- shillings standard gauge project, the Sinopec deal worth $ 15 million involving David Chirchir as a cabinet secretary Energy. We have read of irregularities inrenting of government land and taking 100 Acres for planting of potatoes by the cabinet Secretary for Agriculture. We saw inquiries involving the Cabinet Secretary of transport. In the trivial ministry of lands, the traditions continued; it was too choking until even the innocent children had to cough it out and vomit the ills vehemently. Kenyans still wait with eager whether the execution of the recommendation by the Ethics and Anti-corruption Commission (EACC) that Charity Ngilu and eight other Ministry of Lands officials should be charged with various criminal offences for allegedly benefitting from the double allocation of the 134-acre land parcel in Karen valued at Sh8 billion. Ngilu is nolonger the CS for lands and none is aware of what is happening at the cookie jar.

The labour ministry also had a case to answer, causing the president to change his lieutenants but in spite of these, the determined vice of corruption is still with us.we still have to grapple with the apparent loss of Sh791 million at the National Youth Service (NYS) and now the Sh289 billion ($2.75 billion) Eurobond Scandals that up to date none of the poor Kenyan is aware of what transpired except for the cartels who give story depending on their political allies, ooh poor Kenyans who will be responsible enough to save us from these conglomerate of confusion? Yet we should clarify that these are just the big ice bergs that rare their ugly heads. There is still so much we don’t know. For sure the executive has failed with regard to corruption, and the answers we seek have no doubt eluded them.

Parliament has also proved to have their demons when it comes to corruption. Claiming parliamentary privileges powers and institutional privileges they collectively rejected a probe by the anti -corruption agency, not to mention the names of the individual members of both the national assembly and the Senate here but the list of shame was clearly made bare. In fact, every Member of Parliament is said to have put his/her hands into the cookie jar either before or after being the Member of Parliament.

What about the county governments? The reasoning behind devolution was to promote accountability and accessibility to the people. The constitution of Kenya 2010 reiterates this stating inter alia that the objectives of devolution include accountable exercise of power, enhance economic development and promote checks and balances. Objectives which are lost the moment we open the cookie jar. How is the state of affairs in the counties?  The critics say it is devolution of corruption other than resources .Is it true? We have heard of reports stating irregularities of tenders in Nairobi County, Samuel Tunai being investigated for irregular issuance of tenders, Issac Rutto being questioned on irregular tender processes in Bomet County. There are further reports implicating Cyprian Awiti 200 million pay off of investors in the Agro city project in Homa Bay County. Amason Kingi on the other hand, is investigated for 400 million tender irregularities.  The most amazing cases however were the wheelbarrow case in Bungoma where 10 wheelbarrows were procured for a total cost of Ksh.1.09million by the county government and the Kirinyaga County Governor, Joseph Kirunyu Ndathi, who was alleged to have paid a ‘contractor’ Ksh2million to open a Face book page for his county. No need to mention many other projects in the various counties that have gone down the drain. Please also remember that a lot of tax payers money has been used to fund trips for the MCA’s that do not necessarily change the pathetic economic state of most of the counties. No wonder some senators have shown interest in governorship come 2017 general elections!

Does the civil society have a role? Questions linger over the strength of the civil society. It is a big shame that these institutions that played a big role are today descending voices. It is very painful that the civil society is a breeding place for people with political ambition and an eye for public office. We therefore need them to awake from slumber and not merely be seen but they need to be heard and to enforce accountability and integrity.

The other avenue we could look at is institutionalizing government. Creating independent offices that enforce the rule of law and order. Looks good however, we have also heard the office of the DPP accused of irregular tendering process.  Who is to investigate and prosecute this? Indeed we are in an eclipse, the Shepard seems has turned against the sheep. Meanwhile, we are shackled with anti-corruption commission that is only but an ideological institution operating on the whimps of politicians.

Where will the solution to corruption come from? Where will get the light to illuminate this eclipse? Should we eliminate these fiend ‘angels’ but how? Can we have a chance with a citizen’s revolution?

Power does not corrupt people, people corrupt power” Anonymous

By;

Nandia Paul, Communication, RCKM.

Ouma Kizito Ajuang’, Lawyer, LAED.

Kituo Cha Sheria

War is no longer fashionable!

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Dear President Pierre Nkurunzinza,

I am a young Kenyan lawyer still learning how to climb the ropes up the profession. I have been quietly watching the news just to monitor the state of affairs in your country. I am not a citizen of Burundi but I am an African woman. I believe in the simple values taught to us when we were young children. I believe in peace, justice and love for one another as well as for my country and my continent-Mother Africa. I will not tell you to stop the war or end the plight of Burundians, our fellow Africans. Instead your Excellency allow me to remind you the positive things about your country that people have admired before these inhuman killings started and hence resulting in thousands of people fleeing their country.

Firstly, your country prescribed to a specified two term rule for a president but somehow your excellency, the wisdom of your judiciary decided you could run for a third term. Despite the protests, you contested and won with a landslide victory. I do not admire your move but I admire Burundi’s judiciary. As a law student I relied sometimes on judicial decisions by the courts of Burundi that I believed then to be progressive. For example the decisions from your supreme court addressed some of the legal issues so well. Currently your judiciary is operating on fear of the executive yet your constitution proclaims the independence of the judiciary. Furthermore your constitution upholds the principle of independence of the constitution.

Secondly let us look at your economy. According to World Bank statistics Burundi had a thriving economy up to 2015 which was about 4.8% annually and would be grow to 5% in 2016 if peaceful circumstances would be thriving. Many Kenyans had even found job opportunities in your country. I believe the move by my fellow Kenyans and people of other nationalities to work in Burundi was a sign that your country was expanding to the levels of promoting a global community in a country. The war currently has seen many people go back to their homes leaving Burundi short of some of the services that they provided. One may argue that Burundians can take up the jobs but your Excellency it is very hard to rebuild an economy that has been destroyed twice by wars that are no longer fashionable in the 21st century.

Thirdly I admired the negotiated democracy concept in your constitution. The negotiated democracy started off by talks spearheaded by the late Julius Nyerere and taken over by the late Nelson Mandela. This saw your country pick up. You signed the Arusha declaration that bound your country but sadly your Excellency you forgot how you had led the Hutu in the rebellion to get peace, justice and democracy for Burundi. You forgot what war feels like and its draw backs and as a result forced your way back and now your country is burning down again.

Fourthly I admired the way your laws protected women and children and the most vulnerable categories of persons in Burundi for instance the Burundi constitution ensured women got 30% appointments to the assembly. Burundi did not even think about the concept progressive realization of fundamental freedoms and rights, Burundi simply found ways to adhere to the law. The children of Burundi are the future generation of your country and the laws always sought to protect them. Sadly they too are affected by the current situation in your country. Your Excellency children are the future. Being an asylum seeker is not fashionable and should not be routine. Remember to protect them always

Lastly your Excellency let me remind you of how human we are. Bottom line is no one deserves to loose life because of your political ambitions. Your country does not deserve to burn down. Your people deserve to have their human rights and opinions respected. However you are now in power and since you have rejected the peace troops I think you should call the shots as you want and restore peace. Restoration of peace does not entail using your troops to commit killings to calm down the masses. Restoration of peace can sometimes involve going back to the drawing board and asking for help from the east African community or the African union or the United Nations to help rebuild your country before it is too late. Perhaps you could be on time to rescue a little which you can build from. Remember you are not doing this for you. You will be doing this for the people of Burundi.

Your Excellency my request is simple end the war in your country and restore peace. With all due respect Your Excellency I trust you will consider all this and quickly resolve the situation in your country.

Yours sincerely,

Concerned African.