ICC Confirmation Cases: Rumours and Perceptions but Little Evidence

I followed the two Kenya ICC confirmation cases at The Hague closely, and as the curtains drew at the close of the hearings and without the benefit of the confidential sessions of the Court, my final characterization of the prosecution case is Rumours and Perceptions but Little Evidence. This may sound harsh to the prosecution case and victims but bear with me as I demonstrate my reasoning.


Perhaps one aspect which was not clearly exposed by the defence in both cases is that Kenya is a rumour mongering and perceptions’ society. The society thrives on rumours and perceptions about rivals and opponents be they political, economic or ethnic. The problem manifests itself prominently on the political sphere. Having experienced brutal and violent colonial rule followed with dictatorship after independence, Kenyans are highly suspicious about government and official explanation of facts. Even without evidence, the public is inclined to believe unsubstantiated contrary allegations. The situation becomes dangerously contagious when institutions such as opposition parties, media, civil society and religious bodies uncritically repeat and reinforce the allegations. At the same time, personal and mass communication technologies aid the swift diffusion of the rumours. The rumours and perceptions created take a life of their own and become the unofficial truth.

The picture becomes complex because the avenues to access public information freely without being confronted by the "infamous" Secrecy Act are limited. The persons who try to explain the official position are the same people the public does not trust: public officers, police, and politicians. For example, few seem to believe what the spokesperson of the government Dr Alfred Mutua says. However, when an opposition political leader, civil society organisations, media, or other non-government institutions make unsubstantiated claims, people tend to believe them and not Mutua. 

During the pre- and post election many rumours and perceptions were manufactured, traded and spread without caring about their veracity. The most potent were that elections were to be rigged, the incumbent cannot win the election without rigging, it is 1 tribe against 41, the electoral commission was doctoring the presidential results, Ugandan soldiers were shooting and killing Kenyans in the Western province and Nyanza alongside Kenya police officers, the administration police force was being used to rig the elections in favour of Kibaki, the State House was used by Mungiki for meeting to plan retaliation, the police was partial and allowed mungiki to kill and displace ODM supporters in Naivasha and Nakuru, the judiciary cannot be trusted to be an impartial umpire in an election dispute, Mungiki were supplied with police uniform, guns and transported in military trucks to Naivasha and Nakuru, etc, etc.

Unfortunately all these strains of rumours and allegations found their way into the ICC in form of prosecution evidence . The prosecution did not attempt to verify trueness of these rumours and perceptions. For instance no statement was solicited from the suspects and no exculpatory evidence was collected and presented by the prosecution even where would be readily available. It was quite easy for the defence to punch holes in the prosecution evidence by carrying out independent investigations and presenting the exculpatory evidence to the court. This was the most embarrassing aspect of the prosecution case because they hardly countered defence assertion of lack of verification.

With the scarcity of evidence from the prosecution, the Court has no choice but to critically look at the evidence presented by the defence vis a vis the allegations by the prosecution. Fortunately, the government of Kenya, more so in the second case involving Muthaura, Kenyatta and Ali has pealed the veil of secrecy and tried to offer an insight of how the government operates as opposed to the theories offered by the prosecution.

The confirmation judges will choose either to believe the prosecution claims that they have better evidence than what they have not disclosed at this stage or be persuaded by the submissions of the defence teams that the prosecution have no substantial evidence as they did not carry out independent investigation in the matter apart from relying on rumours and perceptions as narrated by anonymous witnesses and gathered from secondary sources. It might be rather difficult this time round for the Judges to acquiescence to the prosecution evidence as presented in order to confirm the charges.

Whatever decision the Court arrives at, the suspects and victims and the Kenya society have had their day in court. Impunity has been exposed and the failure of the government to investigate and prosecute clearly manifested. But the worst would be the exposition of lack of due diligence in the prosecution investigations, if the charges are not confirmed.

Kenya Celebrates Second Mashujaa Day!

This year’s Mashujaa Day Celebrations started with the unveiling of a statue commemorating and honoring Tom Mboya. It took 42 years for Kenya to honor and celebrate their slain son as a hero. Mboya was felled by an assassin’s bullet in the streets of Nairobi as he came out of a chemist shop in 1969. He was killed when his star was rapidly rising in the political arena. He was tipped to be the likely successor to the first President Jomo Kenyatta.

Mboya's becomes the second of Kenyan Heros Statues, to immortalize the streets of Nairobi. The first was that of the Mau Mau hero Dedan Kimathi. As Kenyans celebrate this day today, they will remember tens of heroes and heroines whose heroic deeds have not been immortalized yet. Quite fresh in memory will be Professor Wangari Maathai who passed on last month.

This day, however, is not only dedicated to the known heroes and heroines. It is also a day to honor the many ordinary and unsung heroes and heroines of our country who dedicate their lives to the service for their fellow Kenyans. One such heroine is Ms Ann Mwangi, featured in today's Daily Nation, who rescued a baby girl that had been abandoned in a dumpsite and has given her a new lease of life and motherly love. Mwangi runs her own Children’s home that now cares for 17 children.

Also today, we should especially remember the men and women of our military who are engaged in the service of protecting our borders against terrorist acts by the al Shabaab. The success of their mission depends on our unequivocal support at this critical moment. Before sending the military to fight the al Shabaab terrorist group, Kenyan borders and sovereignty was violated time and again by insurgent groups from neighboring countries. This action, regrettable as it is, should be a reminder to our neighbors that peace demands dual respect of territorial integrity of your neighboring countries. This is not a war against the Somalia people who cherishes peace and have been supported by Kenyans for many years as they fled their country but it is against the evil groups that have made their country ungovernable.

Wangari Maathai - Your Legacy Lives On!

Conglatulating Wangari during award of Sophie Price Oslo Norway

Professor Wangari Maathai though gone she lived a life full of achievements and controversy and will be remember for decades to come. She dominated the Kenyan political arena like no other woman has ever done. She also scored many firsts in her life: The first woman to attain a Doctorate degree in Kenya if not East Africa; The first Woman with the title Professor in Kenya; The first woman to be awarded the Nobel Peace Price in Africa; only to mention the most prominent achievements.

In controversy she was as elegant as in her achievements. She shook the political scene when she opposed the building of the tallest building in Nairobi Uhuru Park by the KANU government of Former President Moi. No amount of insults and harassment by the government could deter her. Through her campaigns, she drew massive support locally and internationally that finally compelled the government to relent and abandon the project.

Celebrating Sophie Price Award Oslo Noway

Wangari Maathai did not shy from controversy especially when she believed in the goodness of the cause. In 1992, she joined and supported the Mothers of political prisoners who had camped in the Uhuru Park Freedom Corner when other prominent women in Kenya could not dare. For this and her numerous political, social and economic struggles makes her the Heroine of the Second Liberation in Kenya.

Wangari Maathai, however, will be remembered most for her love and struggle for the environment. Her Green Belt Movement and tree planting campaign will live forever.

The greatest tribute we can bestow Wangari Maathai is whenever you see a tree, remember Wangari. At the same time, whenever we  plant a tree in her honor we will perpetuate her legacy.

ICC: Sober, Humane, Stern and Professional

The epitome of the ICC Kenya Pre-Trial cases at The Hague is the presiding Judge Ekaterina Trendafilova or simply “Madam President”. She cut a simple, smiling and polite demeanor which was supplemented with an incisive and strict manner in conduct of business in the Court. Everybody in the court was acknowledged and made to feel comfortable but readily made aware of the serious business before them. From day one of the confirmation of charges hearing in Case No. 1, involving William Ruto, Henry Kosegy and Joshua Sang, the Prosecutor, Defence Counsels and Representative of Victims were reminded time was of essence. Madam President instilled in them that sense in confining their submissions to the issues of the case and being precise in order to save time. Hence, a case that was allocated 15 days was over within 8 days.

It was noteworthy, that there was no room for drama and waste of time in the court, the Kenyan style. The usual ‘defence – prosecution’ drama was missing and when it attempted to creep in, the judges were fast to put a halt to it. Perhaps, this was the biggest lesson for the Kenyan public, judges and legal fraternity glued in front of their TV sets for the duration of the trial. Trial is not a drama and circus that should devour time without end. It is a business that should be finished in the shortest time possible without compromising the integrity of the trial and justice. After all, justice delayed is justice denied.

The other lesson is that you can be strict and humane without the need for threats. The presiding judge was the hallmark of professionalism. Where it was necessary to straighten up a matter, like when some of the suspects and their counsels were amused by witness testimony, she was polite but stern. Witnesses were treated by the court with a lot of understanding and respect. At the same time, the court did not hesitate to remind them why they were there especially when they tried to introduce extraneous matters in their testimony.

Whatever the outcome of this case and the next one, Kenyans have had a taste of international justice process and it is quite different from the national one. The court can be humane and professional at the same time. In addition, impunity cannot enjoy protection any more. In future, the 'lords of impunity' will pause to think before engaging in acts that might result into international crimes. As we noted in an earlier post, whether the charges are confirmed or not, the victims and the people of Kenya are the winners.

Burden of Compensating Retired Public Officials: Can the Country Afford?

The list of retired or redundant public officials claiming compensation from the public purse grows by the day.  The high profile of these officials led by the former President Daniel arap Moi, Vice President Moody Awour includes judges who opted to retired with full pension after the 2003 judicial radical surgery, former Members of Parliament, and former Kenya Anti-corruption Commission Aroan Ringera and other commissioners. Within the new constitutional dispensation, many judges will be retired, the current KACC director and commissioners have been shown the door, many MPs will lose their seats in the coming election, not to mention the President will retire, and who knows the Prime Minister and the Vice President may too retire or might not be elected back to public office. Then there are judicial officials and judges due to be retired according to the current constitution vetting requirement. The list goes on especially when we include lower profile officials like permanent secretaries. Can the country really afford to foot the monetary compensation bills for all these officers?

If the current trend continues, the country will drown under the bills of compensation. It is, therefore, important to rethink and restate the essence of public service. Does public service entitle the holder of an office unmitigated pecuniary advantage? Can the public afford to pay exaggerated compensation to these officers as the private sector does? Sometimes the money is being paid for services not rendered as in the case of compensating one for the remaining term of contract. Should officers who leave office and subsequently find new employment or are self-employed continue to draw benefits associated with their former employment? Isn't it a case of double payment to compensate such officers? I raise these issues because it is important to have debate on the matter. Just think about the current issue of compensating the MPs so that they can pay taxes due according to the law. Can the country afford this waste of public resources?

In Norway, the practice is that officers who leave their office because of retirement, change of law or government, do not get unmitigated compensation. Those who retire are entitled to retirement benefits just like any other worker during their retirement. The retirement benefits are calculated not according to your office but the number of years you served and the points you accumulated during that period. You do not get anything beyond what you have not earned for your retirement. If you retire and then get a new job elsewhere, you cannot continue to draw your retirement benefits at the same time as you get a salary from your new job.

Where public officials leave office due to change of law or government, such as cabinet ministers or MPs due to new election, they do not get exorbitant compensation. The practice is that they continue to draw their salaries for a limited time period or until they find new employment whichever comes first.

In 2010, the National Authority for Investigation and Prosecution of Economic and Environmental Crime (Økomrim) prosecuted two former MPs, Conservative (H) MP Anders Talleraas and ex Centre Party (Sp) MP Magnus Stangeland for illegally drawing a total of over three million kroner in pensions, because they had well-paid jobs at the same time. It also claimed the two failed to give Parliament’s Pensions Board (Pensjonsstyret) proper information about their incomes, which would have meant losing their right to receive a so-called self-awarded “golden pension”. Gro Harlem Brundtland, a former Prime Minister, was herself part of a group of six who received a higher pension than they were entitled to at the time, however, she paid back what she had received voluntarily several years before the case exploded in the media in 2008. She later testified in the case involving the two. They were found guilty and received custodial sentences of 6 months and 60 days, respectively.

The former Prime Minister was also involved in another controversy after receiving an operation for cancer in 2002 at Ullevål University Hospital. In 2008, it became known that during 2007 she had received two treatments at Ullevål, paid for by Norwegian public expenditures. She had previously notified the Norwegian authorities that she had changed residence to France, and as such she was no longer entitled to benefits of Norwegian social security. Following intense media attention surrounding the matter, Brundtland decided to change residence once more, back to Norway, and she also announced that she would be paying for the treatments herself.

Isn’t it a high time that the public were informed the true figures involved in these compensation schemes? The Treasury through the Minister of Finance should give an official statement to parliament on the matter. The media should too carry out its own investigative research on the matter for public information.

See related view:

Compensation: Since when didpublic office become property of incumbents?

Kenyans for Kenya: Recapturing the Spirit of Harambee!

The initiative “Kenyans for Kenya” is an effort by ordinary Kenyans and business corporations to aid Kenyans suffering from hunger and malnutrition in Turkana and North Eastern parts of the country.  It is based on a simple concept: “For as little as Ksh 10 you can save a hungry child from death. Together, we can save many lives. Take action today.” It urges Kenyans to - Pick up your phone and send your donation to M-PESA PayBill 111111 or KCB account No. 1133333338.

Already, the initiative has received over Ksh 650 million in cash, kind and pledges. The target,which originally was Ksh 500 million was extended to Ksh 1 billion. The initiative has been hailed as the most successful Kenyan humanitarian movement by Kenyans for helping fellow Kenyans in need. And, indeed it is. Since independence Kenyans have never shown so much generosity. Nevertheless, the spirit of giving and being my brother’s keeper is not new to Kenyans. The free “Harambee Spirit” emerged immediately after independence and was based on the same simple concept of communities joining hands to solve their local individual and common problems: such as providing a shelter for a needy neighbor, education for needy neighbor’s child, to providing education and health to communities through Harambee schools and Harambee dispensaries and health care centres. The spirit extended to other aspects of daily lives of the people through Harambee projects addressing different problems such as food, water, roads, land purchases and infrastructure.

From its inception, Harambee was free and voluntary. Such was the beauty of the Harambee Spirit before it was high jacked and made compulsory by the political class in the 80s and 90s. The political class, which was now competing against each other, measured ones generosity by how much you coughed out during Harambee fund raising rallies. This completely alienated common Kenyans from the Harambee as they felt intimidated by the volumes of cash contributed by the politicians.  To involve the public, the administrative authorities – chiefs, district officers (Dos), district commissioners (DCs), provincial officers (PCs), heads of departments and even Permanent Secretaries – compulsorily collected money from government employees and members of public who sort services from these officers. The free and voluntary spirit of Harambee was hence dangerously violated.

In my opinion, the novelty of the initiative “Kenyans for Kenya” is the recapturing of the Free and Voluntary Spirit of Harambee and restoring it back to its owners – the public. The technological solution of Mpesa is Godsend as it has enabled Kenyans to contribute freely and voluntarily the amount they have and wish to give. Indigenous corporations such as Safaricom, KCB, Kenya Airways, Equity bank, media houses, etc and humanitarian organizations such as Red Cross need our support as they are true partners for our social and economic development. I don’t mean by this to discriminate against foreign corporations that too play an important role in our social and economic development but I am only re-emphasizing the saying that “charity begins at home”. By taking charge of our affairs, foreigners can only join us to help us achieve our goals at our own terms and they will not set the agenda for us.

Together we can change the face of Kenya from one of poverty to one of prosperity. Take Action Now and donate to  M-PESA PayBill 111111 or KCB account No. 1133333338.

Scenes of Hunger, Scenes of Plenty! - What Solution?

Extreme Hunger in Turkana

What a contrast? While some parts of Kenya, particularly Turkana and Northern Eastern province, people are dying of hunger, in some areas in the country farmers do not know what to do with bumper harvest that is rotting in the farms and fed to livestock. Why should a Kenyan die of hunger while food is in plenty in other parts of the country? Well, the weather cannot be blamed this time round. Distribution logistics seems to be the culprit. The current hunger problem could easily be solved with the movement of food from areas with plenty to those that are in need. However, the big question is how to achieve that? In a normal situation, the market should be able to facilitate the movement of food to areas with high demand. However, from two perspectives - the Market and Humanitarian perspectives - this is not happening seen.

Rotting Cabbages and Potatoes in Central Kenya

The market operates on demand and supply principles. In the areas with high supply, the demand is low. That is why the food is left to rot or is given to overfed livestock. On the other hand, in the areas with high demand, the supply is lacking. That is why people are dying every day. From an economic and market perspective this is not a problem because the food should be able to flow from the areas of high supply to the areas of high demand. So what is the missing link?

In my opinion, the missing link is what I call lack of "distribution stimuli". A stimulus is something that rouses or accelerates action, feeling, or thought. It’s also something that provokes response. For the market to respond, hunger and death is not enough. The market is roused by the opportunity for monetary and economic gains. This is absent in a situation where the people dying of hunger lack purchasing power. Hence, from an economic and market perspective the problem of distribution is basically the lack of purchasing power. Of course, other factors such as insecurity and lack of infrastructure may play a role in hindering distribution but these are secondary and not primary. The purchasing power of the people living in the regions afflicted by hunger should be boosted in order to stimulate distribution. If there was money to make, merchants would quickly find a way to take food into these areas.

Lack of purchasing power condemns the people of Turkana and North Eastern of Kenya to the vagaries of humanitarian aid. It is a character of humanitarian aid not to move into an area before a catastrophe has happened. Before pictures of malnutrition and dying children and women flash around in the media, humanitarian aid will not mobilize. At the same time, the government will deny any presence of a crisis and the scale of humanitarian organizations’ response remains low. When humanitarian aid moves in, at last, the situation is usually out of hand. This is what is happening in country today. Humanitarian mobilization is in high gear but for many it comes too late.

When a crisis occurs, immediate humanitarian action is necessary to avert a serious catastrophe in the short-term. However, a long-term solution should be economic empowering for those affected so as to increase their purchasing power and stimulate distribution.

Sovereign State and Independence At Last

We salute and congratulate the people of South Sudan for becoming the newest state in the World and Africa. Welcome to the World Community of States. As we say in Kenya, independence was not given on silver platter. It has been a Long Road to Freedom. As you welcome and celebrate independence today, the very idea of your own sovereign state, national anthem and flag will fill your hearts with euphoria. At the same time your hearts will be filled with awe and admiration for those who shed their blood and suffered so much that you should be independent, not least the founding Father of the Nation, Dr John Garang.

All we can wish you is that your suffering as a nation may not be in vain. Although mountains of challenge lie ahead, your country is endowed with enormous natural resources and a determined people. Learn from the rest of Africa and do not repeat the same mistakes that our founding fathers and political leaders made. Cultivate unity and nationhood. Despise and avoid sectarianism, ethnic and regional favoritism, divisive ideologies and personal rivalry. Work as one nation for a prosperous South Sudan.

Can Kenyans Trust their Money to Non-Tax Paying MPs?

Parliament Building

Paying tax is a legal and moral obligation. The Constitution is very candid on this. Any 'Mipango ya Kando' (side agreements) are not binding as they contravene the Constitution. These agreements can be likened to the election pledges MPs give but forgotten once in Parliament. So no theatrics from the MPs will budge Kenyans demand that the Constitution be obeyed by all, including the MPs. The time you accepted to vote in favor of the Constitution, the honey moon ended. It is not business as usual anymore. You must pay tax.

If Wanjiku is taxed on her meager income, then who are these MPs who should have preferential treatment and not pay tax? Can Kenyans trust their money on the hands of non-tax paying MPs? This is the billion shilling question. How can MPs who do not pay tax be entrusted with the allocation of tax money paid by Kenyans? Something does not add up here. It is no wonder they have been hiking their salaries in a very irresponsible manner because they do not feel the pain of being taxed. Now that they are required to pay tax, they cry as if they are entitled to a lifestyle that is beyond the dream of ordinary Wanjiku.

Parliament in Session

I am amazed to read what they keep saying to justify their stubborn position of not paying taxes. They are behaving as if Kenya is still in the older constitutional order where they could hold the country at ransom. Never ever forget that the people have a lot of power under the new constitution that if the MPs misbehave as they threaten to do, they can be send packing as the Parliament is dissolved. Just dare not pass the necessary laws to implement the Constitution and Wanjiku's wrath will rain down on you with vengeance.

In 2006 this blog termed the hefty salary increments the MPs awarded themselves as an 'Act of Corruption'.  Today we repeat that not paying Taxes is an act of Corruption and is Illegal.

New Chief Justice Sworn In Office: Signifies a Break With the Past

It did not escape the eyes of keen observers that the swearing in of Dr Willy Mutunga as the new Chief Justice was not ordinary. Mutunga did not wear the traditional red robe worn by the Chief Justice and puisne judges during the swearing in celemony. As explained by a spokesman of the Judiciary, Mutunga avoided the robe to signify a break with the past. This could also mean the end of the era of the robe as a judiciary attire. The robe is a relict tradition inherited from the British colonial administration.

Mutunga also promised to uphold the rule of law when he said he wants to build a judiciary where the high and low are equal before the law. In the same breath, he vowed to protect the independence of the judiciary while respecting the other arms of the government: the Parliament and the Excutive. 

Later President Mr Mwai Kibaki presented the new Constitution to Chief Justice Willy Mutunga during the swearing-in ceremony at State House.








 
Congratulations Dr Mutunga and may the New Dawn shine over the Judiciary.

Read below the ...

Edited version of the speech Dr Willy Mutunga gave after being sworn in at State House, Nairobi on June 20, 2011

Mr President, Mr Prime Minister, Mr Vice‐President, the Speaker of the National Assembly, this is an important day and event in the history of this country.

A Chief Justice of the Republic of Kenya assumes office not just with the endorsement of all three arms of government but perhaps more significantly, with the direct participation of the public.
It is a mandate I don’t take lightly and neither should you.

This is because the Constitution is very clear that judicial authority, just like the Executive and the Legislature, are derived from the people and should be exercised for their benefit and welfare.

The nature of my mandate gives me confidence and responsibility. Guided by the Constitution and without fear or favour, it is a responsibility I seek to discharge to my best ability and intellect. This country must uphold the rule of law without equivocation and as I assume the leadership of theJudiciary, the words of an earlier philosopher ring clearly in my mind: Be ye so high, the law is above you.

This is the Judiciary I want to create — it is the true article of faith that I want to bring to the Judiciary where the high and low are equal before the law. The success of my tenure, the Judiciary and our democracy will depend on how the three arms of government relate and operate.

I look forward to a positive and productive relationship with each one of them. It is a relationship that should be undergirded on constitutional principles and guided by constitutional provisions. A relationship framed otherwise will not only be a nullity in law but a vulgarity in politics.

In this regard I seek your support even as I offer mine. This is because justice is an assembly line and the determinants of justice numerous. To meet the ends of justice, the Judiciary will depend on the competence and integrity of other institutions.

I urge both the Executive and Legislature to ensure we have investigatory, prosecutorial and penal institutions robust in their design and operation: clean and incorruptible in their leadership.

Supreme Court Nominees: A Mixture of Continuity and Transformation

Dr. Smokin Wanjala    Ms Njoki Ndungu

The Public Service Commission (PSC) pulled another master stroke when it nominated five Supreme Court Judges after a vigorous and transparent vetting process. The nominees are two judges of the High Court, Justice Jackton Boma Ojwang and Justice Mohammed Ibrahim, one Court of Appeal judge, Justice Philip Tunoi and two nominees from outside the judiciary former Member of Parliament Ms Njoki Ndungu and former Kenya Anti-Corruption deputy director and scholar Dr smokin Wanjala. They join the nominees for positions of Chief Justice Dr Willy Mutunga and Deputy Chief Justice Ms Nancy Barasa to sit in the seven-member Court.

Justice Mohammed Ibrahim

The choice of the nominees has been hailed as a mixture of expertise, gender and regional diversity. The combination of sitting judges and outsiders also represents continuity and transformation. The panel brings in different legal ideologies and philosophies. The chief Justice and the Deputy Chief Justice are hailed as liberals, Justice Ojwang and Tunoi as conservatives and Wanjala, Ndungu and Ibrahim as centralists. In addition, the judges bring in their experience from the Bench, Smokin Wanjala and Njoki Ndungu research, willy Mutunga research and activism and Nancy Barasa activism and management.

Justice Philip Tunoi

Given this line up, the public expectation of the Court is high. The Court's role as stipulated in the Constitution involves arbitrating over disputes arising out of presidential elections, determining appeals from the Court of Appeal, and to interpreting the constitutionality of issues arising from proceedings in subordinate courts. The current Court of Appeal as the final Court suffered from a reputation of conservatism and rigidity. The composition of the nominees to the Supreme Court can be seen as an invitation of the Court to expand the horizons of jurisprudence in its interpretation of the law. Whether the new breed of judges will inject the necessary activism and progressiveness in the Courts decisions is to yet to be seen.

Justice Jackton Ojwang

The significance of the Supreme Court also lies in the fact that it's the final resort of justice. Its formation offers Kenyans a new higher rank in the hierarchy of Courts where they can appeal for justice. For the first time also, the highest court will be occupied not by political appointees whose sense of justice may be skewed in favor of the appointing authority but by men and women whose integrity, credibility and competence has been tested and challenged in public and transparent vetting processes. When approved and appointed into their positions, the Judges will assume their duties knowing too well that they don't have to fear any authority or branch of government in dispensation of justice.  The future of legal justice in Kenya looks indeed very interesting.

Judiciary Nominees: Tough to be a Reformist and a Performer!

Dr Willy Mutunga

We welcome the nominations of Dr Willy Mutunga and Ms Nancy Barasa to the posts of Chief Justice and Deputy Chief Justice respectively and commend the Judicial Service Commission (JSC) for the transparent manner in which the process was conducted. However, we would like to comment in general on the vetting process of the candidates and the public expectations on the nominees. 

As regards the vetting, praise was showered on the transparency of the process but forcefully too queries have arisen on disregard of respect to dignity of the candidates. This, however, was the first public scrutiny of candidates performed in the appointment of high ranking public officials in Kenya. Without a precedent to rely on, mistakes likely were made. It is not therefore, important to dwell on such mishaps, rather let us regard them as lessons learned in future vetting. On the other hand, the guest for transparency should not outweigh the need to handle the candidates with respect and dignity. Democratic principles prompted by the candid scrutiny also incorporate need for respect of candidates’ human rights.  The Constitution, after all, guarantees every person the right to have their dignity respected and protected. Humiliating questions that overzealously probe into candidate’s personal weaknesses and past job performance failures can offend respect of one’s dignity. In future, the JSC should endeavor to complement the interests for transparency, accountability with that of the respect for candidate’s dignity.

Ms Nancy Barasa

The decision by the PSC to forward only one name for each of the positions to the appointing authority was courageous given the perennial disagreement of the Two Coalition Principals and bickering of their parties’ Members of Parliament and officials. Any questions that may arise can only promote politicization of the process. Furthermore, we believe the PSC was within its Constitutional mandate as the Constitution is silent on the matter. The Constitution by default seemingly leaves the decision on the number of names to be forwarded to the discretion of the PSC. 

The nominees’ impeccable reformist and academic record are admirable and impeachable. Furthermore, being outsiders to the maligned judiciary, they strongly have the support of the public which views the judiciary as incompetent and rottenly corrupt. When appointed in their respective positions by the President and Prime Minister with approval of the Parliament, the nominees’ jobs will be cut for them. The public expects nothing less than a complete turnaround of the judiciary from its past reputation to a respected, competent, people sensitive and justice institution. Simply, their task is to reform and make the judiciary perform. We have no doubt that the two will do all they can to achieve this result. Nonetheless, we would like to sound a word of caution and advice to the nominees.

Firstly, the public will not measure your success according to your past credentials like the PSC was inclined to do, but on your performance in the job. The public knows too well their disappointment with people who were highly regarded as reformist in the past, especially politicians, but who became perfectionists in the same vices they were expected to combat. Judicial offices, because of their independence nature and tenure of office, may be different from political offices however the failure to perform is not normally inherently in the character of the offices but the strength of character of individuals occupying the offices. In other words, be strong and live up to your reformist character.

Secondly, being a reformist and shooting criticisms and contributions from the outside is different from a reformist shooting from within and having the duty to carry out the expected reforms. In this case, your dual roles require that you compliment your reformist zeal with performance enthusiasm. Don’t let the passion of one outweigh the other, otherwise the lath of the public will soon come falling on you like a tone of stones.

We wish you a speedy confirmation in your positions and good luck in your onerous tasks.

The Second Lot of Suspects Appear in the ICC!

Uhuru Kenyatta, Francis Muthaura and Hussein Ali made their first appearance in the ICC on 08.04.2011 amid renewed warning from the Court that they observe the conditions of the summons. The Presiding Judge, Justice Ekaterina Trendafilova spoke plainly this time round cautioning the suspects against engaging in utterance that could jeopardize peace in Kenya. She said that the Court would not hesitate to replace the summons to appear with warrants of arrest. 

At the same time, the Prosecutor had applied for harsher conditions that would require the three to be appearing in person before the judges at least once every six months. He also sought an order to ensure that the suspects refrain from making any public statements that contain or can be construed as containing “an open or veiled threat to actual or prospective witnesses or victims”. In addition, they should submit complete financial information. The defence lawyers too requested the Court to order the Prosecutor to restrain from making what they termed as “extra-judicial” utterances at press briefings.  The Court promised to make its decision on the matter raised.
 

The hearing for confirming the charges against the three will be held on 21.09.2011. During yesterday's proceedings, the defence lawyers for the accused actively engaged the Court demanding that the Prosecutor provide the suspects with the evidence he presented to the Court on 15.12.2010. The Court ruled that during the planned conference on April 18, the prosecutor will give an estimate of documents he wants to use to prove the cases, number of witnesses, no of witness statements, indication whether he intends to involve victims and his many witnesses he intends to keep confidential. In addition, the defence teams will be required to indicate whether they want to call witnesses and the documents they intend to use.

With home-coming reception rally planned by the supporters of the two presidential candidates, William Ruto and Uhuru Kenyatta and their declared onslaught on their main presidential candidate rival Raila Odinga, it will be a difficult or impossible balancing act to require the two to tame their language. If Raila were to utilise this opportunity to deride his opponents, then Ruto and Uhuru could easily argue that the ICC is being used to silence them and therefore ‘working for Raila’.