Kenyan Government versus International Criminal Court

In the recent days questions have arisen over the government's committment to cooperate withthe International Criminal Court (ICC). Victims of Human Rights Violations that occured after the 2007 general elections are keenly waiting for justice.

However it is not clear, at least for me, Kenya's policy as the ICC continues with investigations. Do we seek restorative, retrubutive or deterence justice? Do we seek a combination of the three aims of the criminal justice system.

Parliament enacted the International Crimes Act, 2008 (domesticating the Rome Statute on the ICC). Section 3 states that the act is binding on the government. Section 4(1) states the provisions of the Rome Statute specified in subsection (2) shall have the force of law in Kenya in relation to the following matters -

1.  the making of requests by the ICC to Kenya for assistance and the method of dealing with those requests;
2.  the conduct of an investigation by the Prosecutor or the ICC;
3. the bringing and determination of proceedings before the ICC;
4.  the enforcement in Kenya of sentences of imprisonment or other measures imposed by the ICC, and any related matters;
5. the making of requests by Kenya to the ICC for assistance and the method of dealing with those requests.

It is clear that as a people we delegated the exercise of our sovereign power to Parliament. Parliament then enacted legislation binding the government to cooperate with the ICC. It is therefore not a matter of guarding our sovereignty, we have already given it up. That is why i emphasize that African states must be carefull never to sign international instruments as a means of appealing to other interests. Before signing international conventions we must consult the people, africans will increasingly be frustrated with their own elected representatives.

The government failed to establish a special tribunal to try post-election related crimes. The Cionstitution of Kenya (Ammendment Bill) 2008, the Constitution of Kenya (Ammendment Bill) 2009 and the Special Tribunal for Kenya Statute, 2009 were defeated at the floor of the house.

Since the victims deserve justice the ICC process must continue albeit with challenges.

The tide of By-Elections: Voters did not spare the rod.

It is now official that Margret Wanjiru, William Kabogo and Gidion Mbuvi are the Members of Parliament elect in Starehe, Juja and Makadara constituencies. The Interim Independent Electoral Commission conducted free and fair elections. I witnessed this as i cast my vote at Juja Road Primary School at 9:30 am.

This should send a warning to all politicians eying the Presidential, Parliamentary and County positions (Senator, Governor and women representatives) that without results Kenyans will shun you.

Our democracy is gradually rising above partisan politics, political might does not count any more. Kenyans now what matters and will vote for candidates who will deliver. The electorate want justice, accountability, security and sustainable development.

Hail voters in Starehe, Juja and Makadara. More to follow in 2012.

Sovereignty: We the people of Kenya.

Our Constitution is a strong declaration of how as Kenyans we desire to conduct our affairs. It has occurred to me that we do not take our sovereignty seriously or simply we do not know its real meaning. The constitution is a sacred agreement and it distinguishes us from all other countries. The government in all affairs must strictly safeguard our sovereignty.

Article 1 begins by vesting all sovereign power on the people of Kenya. The people may exercise their sovereignty directly or through their democratically elected leaders. Since not all people can govern, the sovereign power is delegated to institutions i.e Parliament (National Assembly, Senate and County Legislative Assemblies).

However i believe we are keen on protecting our interests in certain matters on the basis of sovereignty. For instance the row with International Criminal Court (ICC) on Kenya's failure to arrest Sudan President Omar Al- Bashir and in a host of other foreign affairs dealings.

Many Kenyans have in the recent weeks been arrested in Kenya and charged with terrorism charges in Uganda. Are they not Kenyans, whether Muslims or Christians they deserve a fair hearing here in Kenya. If convicted then our courts will pass sentence. It is like a neighbour reporting to you that your child is alleges to have stolen sugar in his house. Instead of investigating the matter, you simply release your child to the neighbour for interrogation and punishment. If my son has stolen i will discipline him, i will use my rod.

An alternative perspective is on the Millennium Development Goals. It is now known that developing countries may never achieve the millennium targets. Part of the reason advanced is that donor funding to achieve these goals has not been forthcoming. I then ask whose goals are they? It is similar to a person setting a goal for you and committing to assist you attain the goal. Only for the goal-setter to fail in the commitment.

If our projects are to be sustainable, we must gradually turn away from wholesome dependence on donor funding. We must utilise the resources we have as a nation to make gradual progress which will be sustainable. The laws for the implementation of the constitution must be drafted by our legislative drafters. The Constitution should teach us to harness and have faith in what we have.

This is the motivation behind Maneno Human Rights, i pray that not a single day will Maneno receive foreign grants.The same should apply to all national projects.

Enjoy your day.

Implementing our Constitution.

Recent developments on the process of implementing the constitution is interesting to analyse.

All of a sudden, politicians are unveiling county governments, the fate of the provincial administration hangs in the balance, we are not sure if Kenya has competent legislative drafters and so on.....

I still reiterate that the implementation process is our core duty as we seek to enjoy living in a democratic state. We must frown against those who violate fundamental rights and freedoms and oppose those who disobey the constitution. In addition our eternal vigilance to safeguard the process must be founded on respecting the rights of others.

When a people decide to be free nothing can stop them.

Is TJRC a sinking ship?

Well i hate to say this but my mother taught me the freedom we get by telling the truth.

Concerning the Kenya's Truth Justice and Reconciliation Commission (TJRC) i doubt whether it will serve its purpose. When the curtains fall on the TJRC will Kenyans say that, it was  a worthwhile investment on building a better nation?

The lack of political will, controversy at the commission's leadership and hiring of victims as staff is the latest indication that the process is headed the wrong way.

I have also read about the conduct of truth commissions in Argentina, Chile, El-Salvador and South Africa and believe me we are far off. One distinctive feature of these commissions is the fact that all controversies surrounding their work were resolved. Concerns raised by the Civil Society organisations were addressed, so as to build confidence in the process. The commissions were impartial and respected by all. The process was all inclusive, victims and alleged perpetrators given an equal opportunity to participate.

We need responsible leadership at the commission. Mere 'looking busy' will not benefit this country. This applies to all public and private institutions. At the end of the day we must seek to contribute to the well being of all KENYANS and AFRICANS in general.

Should victims work for the Truth Justice and Reconciliation Commission?

The Truth Justice and Reconciliation Commission (TJRC) has hired 300 statement takers. 100 of them are victims of past human rights abuses. The reason behind it according to the TJRC is that this is a victim-driven process. Let us discuss whether victims should take such a primary role in the Truth Justice and Reconciliation process.

Recall that the Chairperson is victim number one, since he has indicated in public that he looks forward to have his case heard (remember he is so wealthy he has filed another suit in court- to clear his name). In my view this is the foundation of disaster. Justice requires that all victims are treated equally. There are no classes of victims nor should victims be treated on a priority basis.

One of the core functions of the TJRC under section 6 of the TJRC Act, 2008 (No. 6 of 2008) is- investigate gross violations and abuses of human rights including abductions, disappearances, detentions, torture, sexual violations, murder, extrajudicial killings, ill-treatment and expropriation of property.

Statement taking is the most important stage of the Truth Justice and Reconciliation process. If a victim's statement is not taken, then that violation may never find a place in the hearings or even the final report. In other words this is the entry point for all cases. It therefore means that the Kenyan TJRC has opened up alternative entry points, that of being a Chairperson or a statement taker. Remember that all victims whether rich or poor, young or old, literate or illiterate desire to be heard and hopefully secure redress. However due to resource constraints, not all cases will be heard at the TJRC hearings. Indeed some will get redress, others will appear in the final report and some dismissed for lack of merit.  Statement takers should therefore be professionals, well trained for the work.

Justice must be done and seen manifestly to be done. The question is whether the victims who do not work as statement takers will perceive justice to be done in the present circumstances? I wonder if the case involving the chairperson will be heard first? Won't there be the temptation for 'victim statement takers' to prefer their cases or even add more details just to make sure their cases are heard? Although statement takers will only take statements, is the process open and impartial? Can all Kenyans identify with the process? Is it a process for a few, or for the entire republic? Is the process honest?

These are critical questions that come to my mind. What is your view.

Link to ICC and the Kenya National Commission on Human Rights

International Criminal Court (ICC)

http://www.icc-cpi.int/Menus/ICC?lan=en-GB


Kenya National Commission on Human Rights (KNCHR)

http://www.knchr.org/

What is in our constitution?

Have you been reading the Constitution or did you heap it the garbage after celebrating its promulgation last Friday. The real test particularly for lawyers lies in the way we interprete the constitution in court, chambers and to the general public. This will influence the gains our beloved country will reap from the constitution.

Section 19 of the Sixth Schedule provides that the rules on the enforcement of fundamental rights and freedoms under Section 84 (6) of the former constitution, shall apply under Article 22. The rules shall be applied with the necessary alterations, adaptations, qualifications and exceptions so that they conform with the objective of Article 22.

I t will therefore be intriguing to see whether individuals will utilise the opportunity given by Article 22(1) giving every Kenyan the right to institute court proceedings to claim that a right has been denied, violated or infringed. Lawyers should be at  the fore front of guiding our people.

Post for thought.

Our Young men are slowly sliding to oblivion

Two weeks ago i travelled upcountry and noticed small sheds erected along the Nairobi Nyeri highway. A closer look revealed that they are khat/ 'miraa' dens. They are occupied by numerous young men who do nothing but sell and chew miraa as they chat through out the day.

The same scenario i witnessed in other parts of the country including Nairobi. It is the high time this menace is addressed before we lose our young, talented yet wasted men.

Cultivate Respect for the rule of law

One of the major highlights of the New Constitution is that all Kenyans are equal before the law. Calls by a section of Kenyans to amend the constitution are therefore ridiculous. The roots of this suggestion is the 'promise' made by the President and Prime minister that 'contentious' clauses would be amended.

Well gone are the days of executive orders, the President can only fulfill his promise pursuant to the law. Amendments can not be effected by a stroke of the pen. Since this will negate the Sovereignty of the Kenyan people who ratified the Constitution on 4th August 2010. The 'promise' was only made in the context of a political contest.

All methods of amending the constitution are provided under Chapter 16 of the New Constitution, Article 256 and 257 provide for amendment through Parliamentary initiative or Popular Initiative. Let someone advice the Cardinal and all those who share his views.

Lastly i agree, civic education is crucial to the implementation process. I recall recently listening to Prof Wangari Maathai after watching her documentary Taking Root The Vision of Wangari Maathai.

Prof emphasized that our main problem is our lack of interest in reading and seeking knowledge and understanding so that when things go wrong then we can question.

Read a book before watching a movie and respect the rule of law.

At last a New Constitution for Kenya

It a new dawn in Kenya as we embark on implementing the Proposed New Constitution, ratified by Kenyans in the referendum.

This is the beginning of a long journey towards national transformation.

I salute those who have fought long and hard for liberation. I salute Kenyans for voting peacefully. I salute those who voted against the draft but accepted the results gladly. I salute those who remained faithful to the course of justice, equality and democracy.

It will not happen overnight, but we dare celebrate this initial step knowing well that we will realise a new Kenya.

Justice be our shield and defender, may we dwell in unity,peace and liberty.

God bless Kenya

If you have a dream move on

This week i watched the documentary "Taking Root the Vision of Wangari Maathai". It is the incredible story of Prof Wangari Maathai fight for justice, human rights and good governance.

Then i remembered my dream of impacting the Human Rights-Responsibility movement. I started through this blog, so far i have had one comment from Wanjiru. Yet i dare not give up. With the help of God i dare expand my vision and dream.

With time i know the world will be scrambling to post comments on Maneno and all its manifestations. Soon i shall announce changes to the course of this emerging movement, since there is no limit to what God can do.

Move on.

Vote for a better future with Kenya in mind

Well we all go to the polls next week, August 4th 2010. This will be a defining moment for Kenya's present and future generations. I have read the draft and followed the debate on the Proposed constitution. I have to admit that unfortunately many have ill interests as they contribute to the debate.

One thing we must realise as Kenyans is that we have the responsibility to make the right choice. As you vote think not what your superiors will say but rather what your juniors stand to benefit. The proposed constitution will not bring food on the table, we have to work and toil. However it will create the right institutional and structural framework to safeguard that which we work for. It will give ordinary Kenyans a chance to contribute to the welfare of the nation. No longer will few individuals manipulate the destiny of our nation.

About perfection, lets be honest when will we ever agree as a nation. The diverse interests informing the debate should tell you how diverse we are. So lets all work towards a better country and vote yes for the proposed constitution. The flaws in the draft, which are few, must be addressed within the new constitutional framework. The inadequacies in the draft are not a good enough reason to reject the draft. That is my solemn belief.

Do exercise your democratic right and vote as you please.

Rights without duties and responsibility, a total mess.

I have argued in the past that one of the major handicaps we face as a nation and region is emphasis on rights without responsibilities. I like the wording of Section 7 of the Penal Code which provides that ignorance of the Law is not a defence is a good example of our duty. This means that a person cannot claim that he/she did not know about the existence of a law as a way of escaping punishment. The law expects that you read it. If you do not, and still go ahead to break the same law, you will be liable.

But instead of focusing on the problem i have a solution, CIVIC EDUCATION.That is why we all need to invest more in reading the law and teaching on the contents of the law.

Pleasant evening

Lead by Reading the Proposed Constitution

I do not mean to disrespect our leaders, but i wish the President, Prime Minister and all leaders who are seemingly passionate about the constitution would read the draft constitution during every public gathering.
This will keep the nation's attention on having a candid conversation on the proposals.

Again its just a wish and we all know the nature of 'constitutional' rallies. In the mean time let keep reading.

Maneno Human Rights says Lead by Reading.

Financing County Governments in the Proposed Constitution.

The question whether the proposed constitution devolves sufficient funds to the county to ensure its sustainability is a critical question in the ongoing civic debate on the constitution. It has been proposed that under the proposed structure only 15% of the National Revenue is allocated to counties. However the Article 203 (2) provides that not less than 15% of the revenue collected by the national government shall be allocated to county governments. This means that this is a basic minimum, giving room for more allocation.

The proposed  constitution advances the principle of equity as opposed to equality in the sharing of resources between the national and county government, and between county governments. Article 203 (1) provides for equitable principles which are need-oriented as opposed a system that is hostile to adjustments. For instance 203 (1) (f) and (g) include the principles of the development needs of the counties and the economic disparities within and among counties and the need to remedy such disparity. Such provisions target counties in marginalised areas like Wajir and Mandera.

Further more there are additional modes of financing the counties which include the Revenue Fund under Article 207. This arises from the power of counties governments to tax and charges under Article 209. The counties may also borrow if the national government guarantees the loan and the county assembly approves according to Article 212.

The various financing options once exploited are far from the lies politicians are spreading on the county governments.

Maneno wishes an informed day.

Great Potential lies in Marginalised Nothern Kenya

My visit to Garissa and Wajir confirmed my fears and concern about the foundation of our beloved country, marginalisation of  North Eastern province.  The most affected areas being Infrastructure, Education, Health, Communication, Gross violation of Human Rights and Access to justice.

Although the subject of my adventure was access to justice it is inevitable to ignore other spheres of development. As recognised by the United Nations, access to justice is a necessary ingredient to alleviate poverty. However looking at citizens of North Eastern i must congratulate them for their 'never give up' spirit. A good example is the road from Garissa to Wajir which is terrible, and from the residents it is often impassable during the rainy season. Conversations with residents revealed that the road to Mandera is worse.

Why have successive governments ignored the vast potential that lies in improving infrastructure in Northern Kenya? The vast unutilised land could be used for irrigation schemes, that will attract investments and growth. However the best interests of pastoral communities living in Northern Kenya must be the primary consideration.

This is a question that the Proposed Constitution of Kenya aimed to address in proposing the inclusion of the Garissa, Wajir, Mandera and Marsabit counties. The counties will go a long way in ensuring that the people of North Eastern take charge of their development priorities.

Africa has potential but...

Yesterday i took time to watch my first worldcup full-match at 9:30pm, Nigeria v Korea Republic, hoping that this time i would not doze off. I am a fan of 'classic' footbal no matter the team playing. However footbal analysists had informed me that Nigeria had a very good chance of progressing to the next stage. The oga brothers started well, Korea looked week. Infact Nigeria scored but i enjoyed the resilience of the Koreans, they were very consistent.

During the second half, the teams were level at 2-2, Nigeria had to win. The Koreans would proceed with a draw but were still attacking. My oga brothers were doing well, creating the so called 'chances'. Then Yakubu missed a goal that he was surely ashamed off, that was not all Obafemi Martins missed another. It was very frustrating.

I am not a footbal comentator but the game revealed the true nature of the African continent. Wasted opportunities, misplaced priorities, untapped potential unitilized resources the list is endless. I have no doubt that Africa is no different from western countries, but we have to get our act together.

The evils of corruption, tribalism, nepotism, ignorance, poor governance, violation of human rights, civil wars and illeteracy are our undoing. As a continent we need to take responsibility and deal with them.

We can do just about anything the developed world has achieved, and better. However to progress to the next stage unlike in the Nigeria v Korea match, we must seize the opportunities and make a difference. In doing so the principles of Human dignity, rule of law, democracy and upholding human rights must be the foundation

Go Africa!

Fundamental Rights and Freedoms: Article 26 – 57 of the Proposed Constitution
The current debate on the proposed constitution has put the Bill of Rights in sharp focus by well-intentioned and ill-intentioned individuals. Let us take time to analyse its provision with a clarion call for proper reading of the draft.

Right to life; Right to human dignity; Right to privacy; Right to access information; Right to assemble, demonstrate, picket and petition; Political rights; Right to property; Labour rights; Right to a clean and healthy environment; Right to use the language and cultural life of one’s choice; Family and marriage rights; Consumer rights; Right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action; Right to access Justice; Rights of arrested persons; Right to a fair hearing; Rights of persons detained, held in custody or imprisoned.

Social and Economic Rights
Right to highest attainable standard of health; Right to accessible and adequate housing and reasonable standard of sanitation; Right to be free from hunger and adequate food; Right to clean and safe water; Right to social security; Right to education

Equality and freedom from discrimination; Freedom and security of the person; Freedom from slavery, servitude and forced labour; Freedom of conscience, religion, belief and opinion; Freedom of expression; Freedom of the media; Freedom of movement and residence;

Rights of special groups
Rights of Children; Rights of persons with disabilities; Rights of the Youth; Rights of Minority and Marginalized groups and Rights of older members of society. Read together with Interpretation clause - Article 260

Source: The Proposed Constitution of Kenya (Published by the A.G on 6th May 2010 in accordance with section 34 of the Constitution of Kenya Review Act [No. 9 of 2008])

This analysis should provoke you as a responsible Kenyan to read the draft constitution to know the exact content of the rights and freedoms.

Enforcement of Fundamental Rights and Freedoms in the Proposed Constitution
One area of reform that legal practitioners have proposed is in regard to Judicial Enforcement of Fundamental rights and Freedoms. They have generated reforms after interacting with the current constitution premised on Section 84 of the Constitution. The major handicaps revolve around four thematic areas

• Question of standing – who can bring a case in court to enforce fundamental rights and freedoms

• Question of jurisdiction of the High Court to enforce Fundamental Rights and Freedoms and the administrative Constitutional Division of the High Court.

• Question of enforcement when then the Chief Justice has not published Rules on enforcement.

• Enforcement of remedies after successful cases.

The Proposed Constitution has adequately addressed these historical concerns. The foundation (in my reading of the draft) nothing should stand in the way of Kenyans who seek to enforce their constitutional rights. Recall that rights are inherent and are not granted by the state, we are born equal, and wonderfully in the image of God I dare add. Rights are to be enjoyed at all times without restriction or discrimination. The enforcement mechanism is straight forward and will lead to greater enjoyment of rights.

Let us now examine how the draft proposes to address the above concerns.

Who can enforce rights and freedoms?
In other words who can go to court and complain, thus seek assistance (remedies), that a right or freedom has been or is under threat of violation? Every person whose right has been denied, violated or infringed, or is threatened can go to court, Article 22(1). In addition, Article 22 (2) sets out other persons or association that can institute proceedings.

In which court do you enforce the rights and freedoms?
The High Court – Articles 23(1) and 165(3) (c). Article 23(2) provides that parliament shall enact law to give subordinate (lower) courts original power to hear such cases. This will reduce the back log of cases at the High Court and ensure cases are heard within a short period.

Absence of rules to enforce fundamental rights and freedoms
The Chief Justice shall make rules under Article 22(3) of the proposed Constitution. The criteria for the rules is set out which includes the requirement that no fees is charged for taking such a case to court. Article 22(4) states that the lack of rules does not limit anyone from going to court. This is because in the past the Chief Justice had refused to make the rules with the intention of denying Kenyans the right to go to court.

Remedies
Article 23 (3) sets out the remedies that the court may give.

Be informed.