UN expert on the human rights of internally displaced persons

Dr. Chaloka Beyani, the United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons is currently visiting Kenya till 27 September 2011.

This come in the wake of the second round of confirmation hearings at the International Criminal Court
 http://www2.ohchr.org/english/issues/idp/index.htm

The Executive cannot interprete the Constitution.

The Executive has recently proposed amendments to the Constitution, i still wait for the draft Bill. But in the meantime, i have some thoughts.The role of the executive's basic role is to enforce the law including the constitution. The executive has usurped the role of the Judiciary by interpreting the constitution and concluding that elections should be held in December 2012, instead of August 2012 as clearly stated in the constitution. By suggesting December 2012 as the elections month, the executive has gone beyond the plain letter of the constitution.

In addittion the executive has read the constitution (as we all have) and concluded that the one-third gender rule cannot possibly be implemented. Recalling that the High Court recently ruled on this principle in the case of Federation of Women Lawyers (FIDA) and Others v Attorney General and Others. The court stated that parliament ought to be afforded time to enact legislation to enforce the principle.

The executive should therefore only act after the judiciary has conclusively ruled that elections must be held in December 2012 and that it is next to impossible to implement the one-third rule in Article 27.

Constitutional amendments at this stage are therefore unlawful and are not in the best interests of this country.

Should Parliament Amend the Constitution

In my recent post, i highlighted that it is possible for parliament as presently constituted to amend the constitution. We now explore the question whether parliament should indeed do so.

Prior to this we also need to establish in whose interests such an amendment is proposed. Who is the ultimate beneficiary? Who will celebrate? Will the process elicit the same enthusiasm Kenyans had on 4 & 27 August 2010. Did the drafters of our constitution, in the very least, expect the Constitution to be amended in one year.

Needless say, any proposed amendment is not in the best interests of this country. We  have one weapon, public participation. It is the shield with which we must stop any arrows of the adversary.

Can Parliament amend the Constitution?

It is reported that Parliament has approved a Constitutional Amendment Bill. Details are still scanty, but the question we need to answer is whether Parliament has the authority to amend the Constitution at this stage. This post is less concerned with the question whether Parliament should amend the constitution.

The constitution can only be amended Parliament, that is the National Assembly and Senate. According to the transitional clauses the current National Assembly has authority to act both as the National Assembly and the Senate. The proposed amendments will address Article 27, 81, 101 and 136 of the Constitution. Article 27 (of the Bill of Rights)  is the equal protection cause and therefore protected clause. This means that an amendment must be approved through a referendum. I estimate that it will be an uphill task to amend this constitution at this stage.

Of critical importance is the requirement that the public must be involved in the process. The Commission on Implementation of the Constitution (C.I.C) must be involved since we are still in the transition period. Kenyans must remain eternally vigilant and Parliament must know that we are watching keenly. The judiciary must be ready to interpret the letter of the law as it is, once called upon to do so.

My interim thoughts.

Constitution must safeguard our values for future generations

As we implement the Constitution it must not be lost on us to jealously safeguard the values we esteem as a country. We must be guided by the fundamental question: What laws are we enacting for future generations? What values are we passing on to the next generation.

This i believe has to involve moral, social and political considerations. Overemphasizing one consideration at the expense of the others will only lead to stunted growth towards a free society. Ignoring one consideration as a nuisance will lead this nation towards the road of perpetual destruction.

Is ICC a International Political Court?

The Prosecutor of the International Criminal Court was requested by the United Nations Security Council to conduct investigations on alleged International Crimes in Libya, on or about 15 March 2011.

A few minutes ago, it was confirmed that the Prosecutor will seek arrest warrants against Muammar Gaddafi. It is surprising how the Prosecutor was able to gather evidence in such a short time. The process generally raises more questions than answers.

I do not support what Gaddafi is doing to his own country men. But as a nation that has brushed shoulders with the ICC, we must consistently analyze every action taken by the court since we are an interested party, to learn the psychology of the court.

My view is that the court is undoubtedly under the control of certain nations of the world. It is not an independent court particularly as relates to Africa. This has been a fear but it's now a conviction.

African countries must come up with an alternative mechanism of dealing with grave human rights atrocities.

I am passionate about  Africans taking charge of their own problems and opportunities, and certainly this does not include the ICC.

Without a doubt

This year one of my favourite songs is "Without a Doubt". At one point the singer sings "...without a doubt, i have had my doubts".

Without a doubt, we are undergoing the first hurdle toward implementing the constitution. The matter of appointments to the positions of Chief Justice, Attorney General, Director of Public Prosecutions and Controller of Budget has raised constitutional, political, governance and judicial issues that must be analysed critically.

Without a doubt, the question of separation of posers between the Judiciary, Parliament and Executive has been under intense discussion. The jurisdiction (extents and limits) of the High Court and the Speaker has come under scrutiny.

Without a doubt, the President started on the wrong footing and it will be interesting to see whether he will respect the Constitution this time round.

Without a doubt, as we discuss the above issues of national and regional importance, we must be guided by the principles of rule of law, good governance, openness and transparency and constitutionalism.

Without a doubt i shall continue to interrogate these issues.

New year, new challenges exciting opportunities.

African Nations can solve their challenges!

Kenya has finally enacted the critical laws to foresee the implementation of the constitution. The Commission on Implementation Commission, Revenue Commission and Judicial Service Commission are now in place. I congratulate all those who have seen Kenya through this first stage. I know that the road ahead will not be smooth but we can make it, we must make it.

Ivorycoast has post-election challenges, South Sudan is undertaking a referendum for either separation or unity with the government in the North. In DRC Congo President Joseph Kabila wants parliament to remove the requirement for a run-off in case neither party gathers the required 50 percentage, reason being, to avoid the Ivorycoast scenario.

I am of the conviction that as Africans we can manage our challenges. We do not need developed partners and the United Nations to lecture us. We know what we need and we should go for it. Although our developed partners may not treat us as equal partners, African countries must treat themselves as equal partners.

Let us work together for a better African continent.