Is the implementation of the Constitution a political process?

Well i have been thinking, should politics be the principle guiding factor in the implementation of the Constitution. Politics has the potential to hold the process hostage.

International Human Rights Day, December 10, 2010.

The world commemorates the International Human Rights Day on 10.12.2010. This year's theme is 'Speak up Stop Discrimination'. The various streams include: Discrimination against indigenous people, migrants, minorities, people with disability, women and religious and racial discrimination.

In Kenya the Constitution now expressly prohibits discrimination.  Human dignity, inclusiveness, equality, non-discrimination and protection of the marginalised are part of our national values under Article 10 (2) b).  Article 27 provides for the right to equal treatment and freedom from discrimination.

I believe that our greatest challenge is to apply and enforce the safeguards in the constitution, to ensure that discrimination is eradicated. We live at a time when discrimination by the state and individual citizens is rampant. It is our role to work for a society where people are treated as people, as God sees them. I am reminded that God does not love me more than my neighbour, he paid the same price for all. I believe that this is the culture we should cultivate. It may take time but we will get there if we work together.

Follow what various intentional, national and regional organisations are doing to mark this day.
http://www.ohchr.org/EN/NewsEvents/Pages/HRDay2010.aspx

Violence or Diplomacy: What should Kenyans embrace

Yesterday i indicated that the tide in Human Rights advocacy. In the past the Moi regime could only respond to demonstrations. But not with an offer to negotiate rather brutal force. My father was a victim during the Sabasaba (July 7)  day in 1992.

However if diplomacy is embraces citizens will also result to the rule of law. Today all that people know is to shout 'haki yetu' (our rights). Well it is positive since citizens are now keen to enforce their rights. But the disadvantage is that people have learnt the road to violence as the only sure way to enforce rights. Case in point is the ongoing killings in Kisii.

Therefore if human rights actors strongly embrace dialogue especially with the state, people will follow suit. People in Kisii will for example talk to suspected witch doctors and then if there is reasonable proof take the suspect to the police. At least i know that even God does tell us 'come let us reason together'.

Let us reason together as we fight for justice and good governance.

A new strategy to Human Rights advocacy

The struggle for a free society has in the past witnessed mass demonstrations that often turned bloody. Successive regimes were quick to result to violence. Over time citizens used force as the only sure way to express displeasure with the state. These were the days of torture chambers and riot police. I believe the climax of this sad history was the post-election violence of 2007/2008. The constitution now recognises the right to demonstrate and petition the state, and this is a progressive move. This approach was resulted to due to the state's attitude of using brutal force. Case in point is the hunger strike by Prof Wangari Maathai and other women on Uhuru Park.

However it is important to recognise that the tide in human rights advocacy is changing. Diplomacy is slowly taking centre stage. If we are to succeed in protecting the constitutional rights, we have to talk to one another. Non-violent action has to be our last result.

No room to extend parliament's term beyond August 2010

Does the Constitution allow the current national assembly to extend its term? This can only be answered through the sixth schedule. Clause 2 suspends certain provisions in Chapter 6 and 7. However the clause does state that the next elections must be held under the Constitution. Elections under the Constitution must be held in August 2010. The president, prime minister and members of parliament must vacate office in August to retire or seek re-election.

About the TJRC during Peace time and imputy of Old Kenya.

On 25th January 2010, i attended a briefing session with the Truth Justice and Reconciliation Commission (TJRC). The Commission is headed by Amb. Bethwell Kiplagat. I particularly remember the challenge posed by Betty Murungi (who latter resigned as Vice Chairperson of the Commission). She stated that the TJRC, unlike other truth Commissions in the world, was working when the country was experiencing relative peace. She continued to note that this is a unique case and it will be interesting to see whether it fulfils its mandate.

Kenyans know what the TJRC has turned to. The parliamentary committee on legal affairs has given the Commission 72 hours to resolve all manner of controversy surrounding it. This means that the Commission has up to Monday 1st November 2010 to clean its house or risk dissolution by parliament.

Again we all know that this is in connection to the Chairman's suspected involvement (directly or indirectly) in the Wagalla Massacre. I have in previous posts argued that unless Amb. Kiplagat vacates office of Chairperson, TJRC will never work to fulfill its core mandate. I have condemned the hiring of victims as statement takers as an attempt to cover up the chairman, victim No. 1.

Back to the comment by Betty during our meeting. The reason why Commissions work with relative ease immediately after a period of war or unrest, is due to the willingness by all citizens to resolve past injustices. I believe that Kenyans quickly forgot the 2007/2008 post-election violence. If we still recall this tragic moment, it does not evoke the same sense of urgency as it did then. IDPs are a forgotten people. We even read reports that IDP resettlement funds were misappropriated. IDPs still ranguish in camps. Mr. Ocampo is yet to charge any Kenyan at the International Criminal Court, although investigations are proceeding well.Truth, Justice and Reconciliation -to resolve all historical human rights violations- is no longer a priority. I bet that the next time Kenyans will be treated to the language of Peace! Peace! Peace! is in 2012, before the elections.

Amb Kiplagat was among the first Kenyans to call for peace in 2007/2008. Today the Ambassador does waver in his quest to hold on to the position of chairman even if TJRC should collapse. This is high level impunity.

The TJRC was enacted through one of the a comprehensive legal mechanism - The Truth Justice and Reconciliation Act No 6 of 2008 (at www.kenyalaw.org). Therefore all factors remaining constant the Commission should be effective. However the chairman must resign if he truly respects Kenyans and all victims of human rights violations. Section 17 of the Act has very clear provisions on how the chairman may be removed from office.

I repeat Kiplagat must resign or the Commission disbanded. If the latter option prevails Kiplagat will never be remembered in Kenya for all his works good/bad.

Heko Mashujaa

Maneno Law salutes all past and present Mashujaa. Particularly those who withstood human rights violations to liberate our land. We celebrate all Kenyans who have championed the course of justice and equality. We celebrate Prof Wangari Maathai for her zeal, passion and sacrifice for justice and environmental conservation. We celebrate all victims of Nyayo torture chambers for their sacrifice. We salute all victims of the 2007/2008 post-election violence for their hope amidst despair. We celebrate Justice Philip Waki for his demonstrating that a commission of inquiry can be effective.

We celebrate Prof Yash P. Ghai a wonderful constitutional expert. We celebrate Rev. Timothy Njoya a true cleric and fighter. We celebrate Paul Tergat. We salute Hon John Michuki, a great public officer. We celebrate Mzee Maruge whose sunset years taught Kenyans the value of education (and reading the bible). We salute all police officers who enforce the law fairly without favouritsm or bribes.

We salute all Kenyans who respect the rights of their brothers and sisters, uphold the Constitution and work hard to pay taxes. We salute all young and energetic Kenyans who remain true to the dream of our forefathers.

I celebrate Reuben Kigame.
I salute my grand father Mzee Wandeto.

Maneno joins Bloggers Unite

Hi friends, this is to inform you that Maneno Human Right has joined the larger family of bloggers - BLOGGERS UNITE.

I have joined as a participant of the International Human Rights Day, celebrated on December 10th, sponsored by Amnesty International. My main goal is to ensure that people appreciate the need for public education on the Constitution we enacted recently.

You may follow my comments on the blog as we work hard to ensure that Kenyans are enlightened to demand and respect human rights.

BLOGGERS UNITE http://www.bloggersunite.org/
User Name :              Wandeto

Good day.

Structure of government under the Constitution of Kenya.

Maneno H.R has deliberately chosen to focus on the Constitution adopted by Kenyans on 04.08.2010. I have talked to many people who have confessed that they have not laid a finger on the Constitution after the referendum. A friend was brutally honest and told me " this constitution is for you lawyers". It is our duty to invest in civic education so that people understand the constitution that governs them. Today lets examine the structure of government. Note however that county governments will start operating from 2012 after the general elections.

The power exercised by state officers in parliament, executive and judiciary is delegated to them by the people, Article 1 of the Constitution.

NATIONAL GOVERNMENT

• Executive (Chapter 9) The executive is made up of the Cabinet. The cabinet is composed of the President, Deputy-president, Attorney - General and Cabinet Secretaries.

• Parliament (Chapter 7). Parliament is composed of the National Assembly and Senate.The national assembly shall consist of 290 elected MPs, 47 elected women representatives, 12 nominated MPs and the speaker who is an ex-officio member. The senate is composed on 47 elected senators, 16 women nominated by political parties, one man and one woman representing the youth, one man and one woman representing persons with disabilities and the speaker who is an ex-officio member.

• Judiciary (Chapter 9). The structure of courts is as follows

          Supreme court - Court of Appeal - High court, Employment Tribunal, Environmental Tribunal and 
          other tribunals - Subordinate Courts (Magistrate court, Kadhi court and Court Martial)

COUNTY GOVERNMENTS

• County Executive Committee (Article 179). It is composed of Governor, Deputy Governor and 1 - 10 members appointed by the governor with approval of the County Assembly (Equivalent to Cabinet Secretaries at the National Executive).

• County Assembly (Article 177). The assembly is composed of one member elected from every ward in the county, special seats to ensure that the a third gender rule is obeyed, members representing marginalised communities and persons with disabilities and the speaker.

Clause 17 of the Sixth Schedule provides that within 5 years the national government shall restructure the provincial administration to accord with and respect the system of devolved government. This does not mean that the provincial administration will be posted in the County governments. I simply means that officers in the provincial administration shall be given other jobs within the public service.

Have a governed day.

Elections 2012 know how many leaders Kenyans will elect.

After the contest, that was the referendum, it is important that we all invest in educating our people on the contents of our constitution. Public education will be key to the successful implementation of the Constitution since citizens will make informed demands.

Today i examine elections 2012. Specifically the total number of leaders Kenyans will elect in 2012.

The National Executive and County Executive Committee.

1. At the National level, we shall elect the President who heads the national executive- Article 136 to 138.
2. At the County level, a Governor is elected in every county - Article 180.

Note that before the elections, the President and Governor will nominate a candidate as Deputy President {Article 148 (1) - (3) } and Deputy Governor {Article 180 (5) and (6) }. The candidates nominated will not be elected. Instead, candidates for president and governor win the elections, the Independent Electoral and Boundaries Commission shall declare them as elected after the elections.

Parliament - National Assembly and Senate

1. A member of parliament from every constituency - Article 97.
2. Woman representative from every County - Article 97.
3. Senator (who represents the County in the senate) - Article 98 (1) (a).

County Assembly

1. A member of the assembly from every ward - Article 177 (1) (a).

Therefore in total Kenyans shall elect six leaders. This will undoubtedly an uphill task for the Independent Electoral and Boundaries Commission.

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.