EDITORIAL

Kenya and the International Criminal Court

By THE EDITORIAL BOARD

Published: November 9, 2013

• FACEBOOK
• TWITTER
• GOOGLE+
• SAVE
• E-MAIL
• SHARE
• PRINT
• REPRINTS
• 

Two Kenyan leaders charged with crimes against humanity have retaliated with an all-out attack on the International Criminal Court. Although Kenya is a court member, and President Uhuru Kenyatta and Deputy President William Ruto have agreed to cooperate, they are doing everything they can to discredit the institution by accusing it of racial bias and of being a Western tool.

Today's Editorials

• Editorial: Reality Sets In(November 10, 2013)

• Editorial: Still Dangerous(November 10, 2013)

• Editorial | Sunday Observer: The Other Paris, Beyond the Boulevards(November 10, 2013)

Let’s be clear: The court has the case because Kenyans refused to initiate their own process to ensure accountability for the victims of the violence that followed the 2007 election, when mobs went on a rampage, killing, raping and setting fire to homes and businesses. More than 1,100 people died in the ethnic clashes. They are the real victims here, and they deserve justice.

An African Union panel, led by Kofi Annan, the former United Nations secretary general, mediated an end to the crisis, and a Kenyan inquiry commission concluded that at least some violence was organized with the aid of businessmen and politicians. The commission called for a special tribunal to bring those responsible to account. If that didn’t happen, it said, the case should be turned over to the International Criminal Court. After the Kenyan Parliament twice rejected proposals to create a tribunal, the case went to the I.C.C. prosecutor, who charged six people with crimes against humanity — among them Mr. Kenyatta and Mr. Ruto, who were leaders of rival political parties in 2007-8 and have since joined forces.

The charge of racism against the I.C.C., while specious, has a certain appeal: Of the eight cases brought by the court, all involve African states. There are indeed real questions about why charges of war crimes and crimes against humanity have not been pressed elsewhere — in Afghanistan, Iraq and Syria. Still, serious abuses occurred in each of the African cases now before the court, and they need to be adjudicated.

While the court may be flawed, it is the last resort to deliver justice for victims of conflict in countries that lack the capacity or will to do so themselves. Last May, the African Union passed a resolution accusing the court of targeting Africans. What it really should have focused on, and applauded, is that the court is also defending Africans, including the 1,100 Kenyans slaughtered in 2007-8.

MY LIFE TOO IS IN DANGER, MR. MUTHAMA

By Fidel Wangai	1:53 PM (3 hours ago)
to letters, me

That was my reaction when I saw the Senator for Mayakos, Johnstone Muthama claim that his rich life is in danger. What is the big deal with his life? Our lives are all in danger.

The difference between his danger and mine is that whereas his is as a result of his "POLITICAL STAND", mine is due to my POVERTY KNEELING. Yes I am living on my knees hoping I will die on my feet someday.

See, unlike Johnstone Muthama and his rich boyfriends, I am not entitled to 24hr ARMED PROTECTION from personal bodyguards. Unlike him, my rural home is not assigned an armed AP round the clock. Unlike him, I cannot afford to erect a perimeter wall with razor wire, electric fencing, alarms, motion detectors and private guards. We get raped, robbed and murdered daily budah.

Unlike Muthama, I ride in public transport. I jump into the available matatu and have no rights to demand to see the driver's qualifications, something Muthama does when recruiting his personal driver. Most likely he will drive me straight into another vehicle or decide to park the bus across the railway line.

Unlike Muthama whose state-of-the-art vehicles are serviced at the Dealer, our masekete matatus are sodomised at Grogon by a guy who learnt the trade simply by looking at someone who also learnt by looking at someone who also...

Unlike yours Muthama which never gets stopped, our overloaded matatu or probox will be stopped by a traffic cop who will trade our lives for as little as 50 bloody shillings.

Unlike you Muthama, should you get sick, you will be flown to foreign hospitals for treatment. Meanwhile, Zack had attempted to wheelchair himself all the way to South Africa to raise funds for the construction of a spinal cord injuries centre because the Gov't cared less.

We saw the two former Ministers for Health (and currently your fellow senators) going to America for cancer treatment, didn't we? I am in danger of understaffed and ill-equipped public hospitals because I cannot afford private ones.

Unlike Muthama who can afford anything he wants, I am denied opportunities, frustrated and oppressed by the regime of tyranny and petty politics. My life is in danger of poverty, underemployment, stress, everything.

We heard you wanted to stop Governor Mutua from initiating development programs in Mayakos. Many would have lost a livelihood because of your "political stand". It is only fair to say that their livelihood was in danger. Of YOU Muthama.

Muthama if you bitch around that your life is in danger, what will the residents of Baragoi say? If you feel unsafe up there, what will we say down here? You might as well thama Kenya.

I am sure that up there you have not heard the 'little' news that an Assistant Chief of the Kenyan Gov't had been kidnapped and was only released after paying a ransom. The reason why you have not heard is because the Boss herself created such a drama that all media attention, female lawyers and legislators went her way and the Chief was left to her gods.

I am writing this, a frustrated Kenyan knowing that my little voice might be ignored. I know that the media will rush to your house if you fart but ignore the cry of the downtrodden. If this reaches you Muthama, I suggest you just shut up.

We have our own bigger problems. Why should we listen to yours?

Call the Inspector General Kimaiyo on 0722444110 and report your problems. Not the media.

The fandamendo issue here is: You are infact a danger to yourself.

AFRICAN NATIONALISTS ARE NOT FULLY APPRECIATED

P. Anyang' Nyong'o

An average American child knows who Abraham Lincoln is. She or he also knows who George Washington is. There is the Lincoln Memorial in Washington DC. And the capital city, Washington DC, also reminds Americans all the time that this guy Washington was their founding father. But what is more important is that the school system has basic books which children read early in their lives on American civilization.

An average African child today is likely not to know who Kwame Nkrumah is. Nelson Mandela is today well known because he is frequently in the news. Very soon this news coverage will begin to disappear and children born after that will be in jeopardy of forgetting Mandela altogether.

When I lived in Mexico I was impressed by the folk tales about Emiliano Zapata, the peasant revolutionary. A museum had been erected in his home village where his story was told, with tourists coming from all over Mexico to see where Zapata was born, what his house looked like and to read the whole pictorial history of his accomplishments on the wall.

If indeed, like Nyarere said, "binadamu wote ni sawa na Afrika ni moja" then we must bring all African nationalists home to be known by the African people. Nkrumah, Nassar, Sekou Toure, Lumumba, Kaunda, Ben Bella, Obote, Nyerere, Seretse Khama, Banda, Kenyatta Samora Machel, Amilcar Cabral, Mandela: these are names which every child should grow singing like songs so as to know where we have come from. They must be part of our nursery rhymes.

Apart from the mausoleum where he is buried in front of the Intercontinental Hotel, and where only a few in the family and government  go to pay respect for him every year, where else does an ordinary Kenyan go to remember Jomo? Last year I went to Gatundu Hospital as Minister for Medical Services to see some work the Ministry was doing there and I was shown a house Kenyatta lived in which should be preserved as a national monument. Why that has not been done beats me.

But let me go back to my concern: giving our nationalists the place they deserve in our history and our appreciation of the foundations of our nations. Yes, Hillary Ng'weno has done a very good job documenting the history and contributions of various Kenyan personalities for posterity. I now plead for a similar project for African nationalists in general because I believe in the "oneness" of Africa and our shared destiny.

This time I do not want the histories and records only to be available in CDs in malls, supermarkets and book shops: I want them taught in kindergartens, schools and to be sang in songs. And I want these songs to be signature tunes in African radio stations across the continent like "Harambee Harambee" used to be in the Voice of Kenya. This is really what is called patriotism: making people know and be proud of our heroes.

Come to think of it, despite the political assassinations, the detentions without trials and the canonizing of the one party state and its attendant authoritarian consequences, the sixties were great years for Africa. The advances we made in economic development we are not making today: our rates of growth are much lower today than what we achieved in the sixties. The data that we have show that the nations that were  great achievers in health care in the sixties are now the low achievers in the twenty first century. Our ability to venture into the unknown was remarkable then: today we squabble for years on end before we agree on anything in national interest. And when we propose certain things in the so called national interest personal agenda creep in to completely spoil the broth.

Think about it. When Kenneth Kaunda left office in 1991 what did he actually own? Virtually nothing. I was there during the elections and a year later we visited Kaunda in a small house the government had given him in Lusaka. All that the old man could do was to play for us his guitar singing love songs he remembered from his youth. Kaunda had sacrificed himself for Zambia.

What about Julius Nyerere: what did he really have? A small house built for him by the government in his home town Butiama. And Obote? Virtually nothing. When be died a few years ago Oburu Oginga and I went to his funeral in Akokoro not too far from Lira and found the old man had lived humbly like a common peasant. But his contribution to the founding of the Ugandan nation, the liberation struggles in Southern Africa and the founding of the East African Community cannot be forgotten.

A people who do not appreciate their past will hardly know where they are going. Appreciating our past does not mean we agree lock, stock and barrel with everything our founding fathers did. That would be sheer lunacy. But we must critically appreciate this history and understand it as our foundation. Selective memory of the past can also be very destructive to our history.

For example, why don't we have a major street or building named after Joe Murumbi and Oginga Odinga in Nairobi? This issue has always bothered me. These were our very memorable Vice Presidents at a very critical time in our history. They did a lot for Kenya. But we have over named some people and completely swept aside others. This is what I call a selective reading of our history: very juvenile if you ask me.

The name of Masinde Muliro should not only appear in institutions in Western Kenya: Muliro was a Kenyan hero not simply a politician from Kitale. And why are we silent about J.M. Kariuki? I do not think it is enough to remember J.M. only by the hospital Raila Odinga opened in his memory in Nyandarua last year. J.M. deserves more than that. A memorial library in the name of J.M. in one of our universities would be befitting. J.M. had a lot of time for the youth. As the President of the Makerere Students Guild I got to know J.M. very well. Nothing would make him more proud to know that a library, where students get enlightened, is named after him.

THE LATEST KENYA MEDIA BILL CONTROVERSY

By Jerry Okungu

Nairobi, Kenya

November 6, 2013

President Uhuru says he won’t sign the controversial Media Bill until all the contentious issues are resolved.

Deputy President William Ruto has also voiced his opposition to the Media Bill.

Not left behind are the senators that want the bill returned to the House so that they can scrutinize it.

However, voices from the National Assembly are at variance with these suggestions. The chairman of the Committee that drafted the bill is adamant that the bill is just and democratic and that there is nothing draconian about it and that the president should sign it into law.

In this stand he seems to get the backing of the Speaker of the National Assembly who says that the horse has left the stable and the bill is already in the conveyor belt headed to the president. He seemed to be shutting the door to any further consultations with aggrieved stake holders.

The media fraternity is up in arms for the following reasons:

It would appear that the format earlier jointly endorsed by all parties has either been ignored or tampered with on the floor of parliament.

The bill in its present form has rendered the current Media Council impotent and irrelevant.

The new body to be known as the Media and Communications Authority will set up a tribunal to regulate the media. Under this set up, any journalist that violates the operational rules will be subject to a fine of not more than Ksh. 1million shillings while the media house that transgresses the new regulations will attract a fine Ksh 20 million.

The Authority has also put a caveat on the amount of foreign content to be aired on local stations. They have sealed it at 55% while 45% of content including advertising must be locally produced.

Technically the bill takes away self regulation that the media has enjoyed for some time.

The draconian Media Bill has its origin in the running battles that the media has had with the National Assembly over the salary remuneration of MPs. Whereas the media rightly vilified the political class’ greed in the midst of abject poverty, the MPs finally had their way with the Chairman of The Salaries Review Commission and got their Ksh 1 million per month package.

This controversy made enraged lawmakers to promise the media punitive legislation in the future; a process that would eventually replace self regulation with media control by the government.

As it is, membership of both the Media and Communications Authority and the Tribunal will be appointees of various arms of government. The media fraternity will have no direct influence on the matter.

Having said that, it is important to put the relation between media and political

Class in perspective. This relationship can be compared to the friendship between the chicken and the fox. The chicken never really knows when the fox will turn around and snap its neck.

For decades the media has played very dirty roles in exchange for cash. Politicians have used them to finish their rivals from time to time.

During elections, the media has behaved very badly. The same journalists have rushed to pack media campaign offices all in the name of wind falls from politicians. Different political parties hire their services to further their political agenda. They have failed to remain nonpartisan.

For the last two decades when the media was liberalized, we have had a mushrooming of broadcast media especially radio stations. We have all sorts of media houses broadcasting in English, Kiswahili and leading local languages.

This has generated stiff competition resulting in a lot of unprofessionalism.

In order to attract audiences, some media houses have resorted to obscenity where sex becomes the staple food that adults and children are subjected to day in day out. Yet the current Media Council that is supposed to self regulate has never bothered to reign on these rogue broadcasters all in the name of freedom of expression and freedom of the press. If the Media Council had chosen to be proactive rather than wait for transgressions to be taken to them in their offices, it would not have come to this.

Now that the horse has bolted from the stable, what next for the Media?

They must pray that president Uhuru does not sign it into law and even though, Uhuru must return the bill to the same parliament with his own memo explaining why he has rejected the bill.

Under the circumstances, parliament will look at it afresh. If they concur with the president then they will amend the offending clauses. However, if MPs vote to retain the bill in its current form and garner a two thirds majority then it becomes law without the signature of the president.

As things stand, it will need a lot of lobbying by the media to have the bill amended. The starting point should be the Senate Speaker who seems sympathetic to their cause.

jerryokungu@gmail.com

ARE WOMEN IN PUBLIC SERVICE UNDER SIEGE FROM MALE RATTLE SNAKES?

By Jerry Okungu

Nairobi, Kenya

October 25, 2013

Chief Justice Mutunga is an honorable judge. So are his judges and magistrates in the judicial fraternity. It is the reason Kenyans must continue to give him the benefit of the doubt even when it is obvious that he has erred or faltered in his decisions.

In the last two years of his reign as the supreme judge, Willy Mutunga has never been without controversy. Strangely enough, the bulk of his woes have originated from his former bosom friends in the trenches of the reform agenda.

Perhaps as part of his reform agenda, Willy Mutunga should look afresh at the people surrounding him, the people he handpicked, some from the streets to be his aides. Being an activist of many years, one understands if he has kept the faith with some in the media fraternity that might have supported  him when he had no media outlet during his days at the NGO outfits.

Right now Justice Mutunga needs honest counsel that can look him in the eye and tell him the truth. He does not need sycophants and court jesters waiting for crumbs from under his table. More importantly, he does not need self proclaimed war council and fake generals who flatter him that he Mutunga is the Commander in Chief of some imaginary army. Being a Chief Justice, Mutunga is at the apex of power and does not need any fake titles.

It is true that there can be no two centers of power in the judiciary. We cannot have a judiciary where every low life feels like a boss. We have to conform to the administrative structures of other arms of government. In parliament, the Speaker is the undisputed center of power while in the Executive the President’s authority is never challenged by Cabinet or the Head of the Civil Service. Such a challenge is never anticipated without attracting  summary dismissal or resignation where there is honour and self respect.

Having said that that, there is a growing trend that seems to go against the constitution in so far as women are concerned.

Our constitution drafters were explicit in the role of women in the new dispensation. It is the reason we included 30% of either gender in public service. However, what we have seen in the last one year has been worrying. Women have been removed from the judiciary in their droves.

When Nancy Barasa was removed as Deputy CJ for pinching a guard’s nose at the Village Market , we thought it was a one off thing. It was not to be.

Since then, the following women have been removed from the judiciary:

Jean Gacheche

Joyce Khaminwa

Grace Nzioka

Rosemelle Mutoka

What is baffling is that there is very little information available to the public when a high ranking judge leaves office under mysterious circumstances. One has to go kicking like Baraza and Shollei did in order to give the public a glimpse of the goings on in the corridors of justice.

We all know that women have suffered even in other arms of government. We know of Eva Oduor of the Kenya Bureau of Standards who was sacked by an overzealous Cabinet Secretary on flimsy grounds. We also know of Rebecca Nabutola who was briefly jailed for misappropriation of public funds or misuse of office. She has since appealed and is out on bail but jobless.

However, when Gladys Boss Shollei’s case erupted, we all stood up to ask what on earth would pit the Chief Registrar of the Judiciary against her boss the Chief Justice.

Looking at all these cases I have cited, one cannot help to notice that the Judiciary leads the pack in stripping women of their positions regardless of the circumstances. Does it mean that male counterparts of these women have never committed minor offences worth disciplining?

As I write this article, there is talk in the air about the possibility of disbanding the Judicial Service Commission whose membership is riddled with serious allegations ranging from sexual predators to senior counsel who practice without valid papers.

All these things are happening in Kenya because we are a country that has perfected the art of impunity and thick skin. No amount of scandal or adverse publicity will force us to resign our public offices.

The paradox here is that if one labels accusations against the Chief Justice, chances of finding a judge to hear the case and determine it on point of law will be hard to come by. It is the reason all judges rallied behind Mutunga to deny Shollei a public hearing and hound her out of office.

Another tragedy is that former voices of reason like FIDA and other women groups including the LSK have gone mute. For how long will this silence continue? Until the last woman leaves the judiciary?

I rest my case.

jerryokungu@gmail.com

THE GODS OF THE JUDICIARY HEADED FOR BATTLE WITH THE NATIONAL ASSEMBLY

By Jerry Okungu

Nairobi, Kenya

November 3, 2013

Late this week, the Supreme Court sat to deliberate on the dispute between the Senate and the National Assembly. This was out of the bill of revenue division that the lower House passed. However, when it inadvertently went to the upper House, they increased the county allocation by over Ks 40 million. This act so incensed the lower House prompting them to delete the additional revenue. Subsequently the revised bill was signed into law by the President.

This was the tussle that finally found its way into the Supreme Court for advisory opinion.

It will be remembered that in the recent past the Supreme Court had declined to appear before any parliamentary committee probing the dealings in the judiciary. In fact some of the members of the Judicial Advisory Commission who have been the subject of such parliamentary investigations have been belligerent to the extent of lowering the dignity of the house.

Just a few days before the Supreme Court sat to settle the dispute between the Senate and the House, a lower court had passed a verdict barring the National Assembly from summoning the judiciary to answer claims of mismanagement of public resources in the corridors of justice.

We all know that there is separation powers between the three arms of government. However, what the judiciary is not appreciating is that the three arms of government must each be its brother’s keeper.

The judgement against the lower House was obviously meant to fortify the judiciary’s independence. The verdict against the lower House by the Supreme court a week later was meant to warn the belligerent lower House  that the supremacy battle between the two institutions was now on.

What one wonders is this: If the Senate could humble itself to seek justice from the supreme court in its dispute with the lower House, why can’t the Supreme  Court humble itself in seeking arbitration in parliament between it and the Registrar of the Supreme Court who had sought arbitration in parliament?

Now that Gladys Shollei is headed for the courts to seek justice for wrongful dismissal, will she find justice in the corridors of justice that have marked her as corrupt and arrogant? Is            it possible that in less than two years a well paid public servant like          Shollei can commit over 80 economic crimes and embezzles over Ks 2 billion?

In the Kenyan system, all public servants including the judiciary are subjected to vetting by a parliamentary committee before either being declared fit or unfit to hold any public office.

The same committee can recommend the sacking of individuals if found to have not adhered to code of conduct. A good example is what Cabinet Secretary Charity Ngilu is going through now. If she is to have irregularly recruited senior staff without the knowledge of the Public Service Commission, she may be asked to resign.

This process is what all arms of government must come to terms with irrespective of their independence. It is the beauty of the new constitution that has brought sanity to the society that has grown amok with impunity.

Another reality is the fact that the same lower House is the one responsible for budget allocation. Therefore if there is evidence that funds allocated to a particular institution are misappropriated, Parliament has the powers to investigate and even reduce the allocations in subsequent financial years.

The mucky waters that the judiciary now finds itself are of its own making.   It all started with the humiliating dismissal of the deputy CJ on account of a misdemeanor she committed at the Village Market on the eve of the New Year. In this case, what was interesting was the speed and enthusiasism with which the CJ got involved. In a matter of hours, he had called a press conference and set up internal investigation, forgetting that a crime committed in a public place should be investigated by the police under the direction of the Public Prosecutor.

The normal practice in cases involving staff, especially junior staff is for the head of the institution to protect her as much as possible while investigations are going on and only give up when evidence is overwhelming.

Nancy Baraza opted to go home because she had read the mood and realized that she could not get justice in the corridors of justice.

So when Shollei’s predicament burst in the open, it followed the pattern of Baraza’s with the Chief Justice taking the front line with accusations. It is the reason Gladys Shollei went to the press and parliament to disseminate the goings on in the judiciary and seek justice in the only institution that gave and the Chief Judge their jobs.

The Chief Justice must realize that he is operating under a new Kenya. Those days when judges were gods in the corridors of justice are long gone. The earlier he and his judges realize this, the better for this country.

jerryokungu@gmail.com