Human face to justice and Business

Just back from a training on trial advocacy. Well im just tired from the study lessons and insightful interactive sessions that were intensive.

The main lesson from the training was that i need to put a human face to my work as an advocate. Our profession has been described as hostile. We cant wait to win to prove that we are the best. We are highly competitive. We treasure using legal lunguage to prove that we know it all. We intimidate both inside and outside our legal engagements. The conclusion is this, we must tell stories that people can relate to. Like telling a story to a grand mother.

On the same note business and investments is all about people. Corporations are run for and by people. Businesses exist through people and for the benefit of communities. We cannot delink our businesses from the communities we operate them from.

Have a people-oriented week.

Young Venture Capitalist on the Go..

Chaeck out the story Joshua Kushner on Forbes.com

http://www.forbes.com/sites/stevenbertoni/2012/05/02/the-26-year-old-vc-who-cashed-out-in-instagram/

Image of an ideal board of directors

 Recently there has been interesting developments in relation to corporate governance in public companies and parastatals has got me thinking. What is the ideal image of a good board of directors? How can we identify a company that is run responsibly before investing? 

Well here are some cartoon photos that provoked my thoughts. Tell me what you think about them.

Add caption

Lessons from Base Resources Ltd's Kwale Mining project

On Saturday i attended a Mind speak discussion organised by Rich Management. The guest speaker was Tim Carstens the Managing Director of Base Resources Limited. Base Resources is an Australian mining company listed on the Austlian stock exchange. Its market capitalisation is 244 Million Dollars. The company is currently engaged in Mineral Sand mining at Kwale. The company estimates that there are 1.4 billion tonnes of mineral sand deposits. Exploration will take about thirteen (13) years and it estimates that the project will earn the company about 1 billion dollars.

Most interesting to me was the process of convincing strategic investors to fund the project. Mining being a capital intensive business, the company first set out to convince local fund managers. Interestingly, local investors were not willing to invest in mining. It remained a foreign trade to them. Talk of missed opportunities. The project is therefore funded by foreign investors including banks that gave credit facilities.

The second most fascinating thing was on the project's community approach. Recalling that last week i shared my brief thoughts on Responsible Business, the company gave me new insights on, community mutual-benefit and partnership. Tim was very candid that without the support of the local community mining projects can be disastrous. The company has incorporated various community aspects to the project including having a data base for all skilled and semi-skilled workers from the neighbouring community.

Tim also shared that the by-products of the mining process especially clay can be used by entrepreneurs in income-generating ventures (better than making traditional pots). The company's investment in infrastructure will also go along way to benefit the community both during and after the project. The company's balance between business interests and community interests in commendable.

I hope to visit Kwale to experience the progress being made in the mining sector and hope to have a few investors on my train.

Panel discussion on Corporate Governance

I enjoyed this discussion on corporate governance. Have a look at it.

But i cant help think of how such information can reach young people in my home village on the slopes on Mt. Kenya. Anyway please follow the link.

http://www.youtube.com/watch?v=k1JU05YP44I&feature=relmfu

Responsible Business

I came across a lecture, that provoked my thought on responsible business.

So when can we say that a company is carrying out responsible business. Well there are two perspectives to look at it. One is that the company's activities are ethical and contribute to social well being. But we all know that all companies cannot plant trees and take care of the environment. The second is that the company has some corporate social responsibility activities, build a school, plant trees, dig a bore hole and the list is endless. But we also know that these projects may not have the long term impact required as compared to the main business of the company.

I think that the only way to be a responsible business is to balance the various competing interests. Carry out CSR but balance it with business activities that promote the well being of people, whether directly or indirectly.

Here is the link to the lecture by Lynn A. Stout on Corporate Governance- What do shareholders really value?
http://www.youtube.com/watch?v=s5Eoy988728&feature=relmfu

Protecting Minority shareholders

I believe that although the majority shareholders have their way, we should also listen to minority shareholders. The balance between the interests of the two classes of investors is key to having a healthy company. Enjoy reading a related article in today's business daily through the link below.

http://www.businessdailyafrica.com/Kenya+trails+neighbours+in+protection+of+shareholders+/-/539552/1389304/-/v3yii2z/-/index.html

Responsible exploration and development

As we explore oil, invest and develop, which i totaly support, lets also mitigate the effect of such exploration on future generations. This applies more particularly as regards to the environment. In the case of Turkana, let us develop and at the same time envision Turkana in 100 years and maintain a balance between rights and obligations.

Best strategy to resolve commercial disputes

I came across this quote that afformed my belief that we should as much as possible, avoid draging commercial disputes to coourt:

"Discourage litigation. Persuade your neighbour to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man" Abraham Lincoln (1809 - 1865)

Alternative resolution of disputes depends on the good will of the parties. Advocates should also help parties resolve the dispute. At the end of the day, it pays to resolve a dispute amicably rather than taking the judicial process. This process will be faster and more efficient. In addittion business and investments will not be adversely affected by court disputes.

So lets agree and move on with business, shall we.

The blog is back!

I last posted on this blog in September last year. I have been keenly researching within and without on the true purpose of this blog. I wanted to do something from deep within, something that i am passionate about as a person and an advocate. I wanted to contribute towards change in a different way.

Well soul searching is over folks. Today i received news about an investment i had made that affirmed my decision. I am now very keen to share information, ideas, news, views, experiences and insights on the rights of Corporations.

Briefly, if a corporation is a separate person in law, does it have rights? What about responsibilities? It is obvious that we cannot do without investments, in the very least that is how we create jobs for our skilled and unskilled workforce.

But how do the rights of corporations and the right to development and enjoyment of resources balance with the rights and responsibilities of human beings? Thats my purpose, thats my passion. Lets keep the discussion going.

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.

Discrimination must stop at the bottom and top.

The theme for this years International Human Rights Day is Speak Up....Stop Discrimination.

Well if discrimination has to stop it has to start at the bottom. In our offices, homes, villages, social clubs, village barazas, matatus, planes, the list is endless. In addition we must also address discrimination by the state. This approach is well captured by Article 27 (3) and (4) of the Constitution of Kenya 2010.

In the past more effort has been directed towards addressing discrimination by the state. The government was active in violation human rights. State machinery was used as a tool to oppress and suppress the voice of reason. Torture by the state was the order of the day. Tribalism and nepotism was allowed. Corruption gained popularity.

Article 22 of the Constitution allows individuals to take a case in court if their fundamental rights are or likely to be violated. The article also allows the court to listen to cases where informal documents are presented eg letters. This moves away from the procedural requirement of using pleadings only. It accommodates the illiterate.  Article 23 allows parliament to make a law to give subordinate (read magistrates) courts power to listen to cases on enforcement of fundamental rights. In the past this power was only given to the High Court.

The letter and spirit of the constitution is that rights should be realised at the lowest level of society. Individuals should be to speak up. If we fail to realise this, i believe human rights advocacy in Kenya will be less effective. We must tell both individuals and the state to Stop Discrimination.

Partly, i say this because i am looking for placement to further my training as an advocate. A friend warned me that i should never apply in certain offices since they are obviously biased. I casually ignored since i believe i can work any where and any time and i am the best at what i do. Latter a friend narrated how he had been frustrated by the obvious discrimination as he looked for the same opportunity.

That is why i dare say that if individuals do not stop discrimination, the state wont either. The state is not run by animals or robots, it is run by individuals. Discrimination by the state is perpetuated by individuals.

Good people stop discrimination.