OPINION: Plot to undermine the Kenyan Judiciary?

There is ongoing debate about the role of the Judiciary in a number of national issues, including adjudicating cases on devolution. This has brought it into a conflict with the Executive, Senate and National Assembly. The debate may rage for a long time to come and with varied responses. Some people have argued that there is an attempt to undermine the judiciary.

The opinion below, from Ndung’u Wainaina, the EXECUTIVE DIRECTOR, International Center for Policy and Conflict looks at the issue.

-------

There has been an unrelenting direct affront on the independence of judiciary and judges by the political arms of the state. 

An independent judiciary is essential to a strong, predictable democracy. It is worrying when there are sustained attacks on the independence of the judiciary in doing its work. It is a matter of concern concer when politicians of any party decide to challenge the independent underpinnings of the judiciary.

The Judiciary has certain constitutional mandates, including promoting, defending and upholding the purpose and principles of the Constitution of Kenya 2010.  The Constitution is not static. Constitution-making did not stop at referendum. The Judiciary has the  responsibility to breathe life and fresh to the Constitution through developing deep progressive legal jurisprudence.

We must never forget that an  independent judiciary is last the frontier of protecting individual rights and liberties. The tide of unwarranted political criticism of sitting judges and their decisions must stop. The People of Kenya through the Constitution of Kenya 2010 extinguished days of submissive and pliant judiciary.

Court judgments are sometimes controversial.  Courts and judges are not immune from criticism.  Judgments on important issues should be vigorously debated in a society that values the freedom of expression.  However, it is important that any such debate should be objective and rational. 

History has proved that in the past decades, the Kenyan judiciary has on crucial occasions failed to protect its own independence. Had the judiciary used its inherent powers and constitutionally resisted these attacks, judicial independence and the entire nation would not have suffered.

In the very vocation of being a judge is the duty to be courageous, even at the expense of great personal sacrifice at crucial moments when the integrity of the Constitution and one’s position is challenged. The judiciary is facing one such crucial situation at the moment. 

Perhaps this is a time in history that is so important, that if it is lost, the very independence of the judiciary and constitutional values and principles will suffer a setback so devastating, from which it would be difficult to recover.

Unless the administration of justice is in the hands of impartial judges, who are part of an independent judiciary, legal rights and guarantees would be worthless.  People must have the confidence of knowing that their disputes will be dealt with, on their merits, by independent and impartial judges free from outside influence or pressure.

History will question whether the judges rose to the occasion and faced it with courage in defending the very foundation of their own profession and their independence. If the judiciary is not willing to shoulder this responsibility, that too will be on record and generations to come will suffer the loss of their liberty as a consequence of this failure.

 It is important that judges should never be threatened because of their rulings. While judges should not be above criticism, guiding principle remains that judges can only be subjected to removal or other disciplinary actions for criminal conduct and not judicial acts. The constitutional judicial independence is one of the crown jewels of new governance system of the country bestowed by the Constitution. We must respect, promote and uphold it.

On its part Judiciary is constitutionally obliged to serve all Kenyans without due regard of status and technicalities, and ensure the purpose and principles of the Constitution are promoted and protected.

Kenya has made great strides in rebuilding judiciary. It must fight hard and defend the independence of the judiciary and keep it out of politics. 

People of Kenya must never succumb to political intimidation or threats. Politicians must be thoroughly subjected to rigors of law, transparency and accountability while executing their constitutional duty of representation, legislation and oversight to abide by four corners of the Constitution.

Whenever the courts come under unwarranted attack, it is the constitutional responsibility of the Government, that is the executive authorities, to explain and defend the fundamental principle of judicial independence, whether or not the decision in question is in its favour. If respect for the courts and for their judicial process is gone or steadily weakened, no law can save us as a society.

All Kenyans are called upon to  share collective confidence in the ability, integrity, impartiality and independence of Judiciary.

End//

East Africa Region set for a major infrastructure facelift

East African leaders have endorsed plans for a major infrastructure project that will link all the East African countries including South  Sudan, which has applied to join the East African Community. 

The project, which will consist of the Central and Northern infrastructural Corridors will cover all the member states of the East African Community and will help minimize delays in the movement of goods and people across the region. 

President Paul Kagame (left)with Kenyan governors recently.

The leaders made this important decision at a regional summit in Uganda’s capital Kampala on Thursday February 13, which brought together Kenya’s President Uhuru Kenyatta, Uganda’s Yoweri Museveni, Rwanda’s Paul Kagame and officials from Tanzania, Burundi and South Sudan. 

Tanzania and Burundi which had since last year complained that the other three countries were edging them out of active participation appear to have softened their stand and sent representation although their presidents did not attend. 

Kenya, Uganda and Rwanda last year June launched a tripartite consultative summit focusing on improvement of infrastructure, initially leaving out Tanzania and Burundi in what was dubbed the “Coalition of the willing”, sparking off loud protests from Tazania’s President Jakaya Kikwete. 

However, leaders from the three countries in charge of the initiative have since assured the two countries that their tripartite consultations still promoted the goals of EAC integration.  

Speaking at the summit, President Kenyatta emphasized the urgency to fast-track the infrastructure project to help ease the movement of goods and facilitate trade in the region.

“The new central corridor will link waterways and power initiatives in the region,” The President told the summit.  

“I am certain that with concerted efforts of all of us, we can transform the region to an economic powerhouse in the continent and the world,” he added.

The President noted that major steps had been made towards the removal of in removal of non-tariff barriers to facilitate the free movement of people and goods since the 1st Tripartite Infrastructural conference last year. 

A special single tourist visa which will allow tourists to visit any of the three countries was launched during the summit. Kenya and Tanzania have also separately moved to ease tourist visits to either country including an arrangement where Kenyan tour firms will drop off tourists at designated towns in Tanzania.

As a mark of seriousness about easing travel by the people of the region, President Kenyatta and his Rwandan counterpart Paul Kagame used their national identity cards as travel documents instead of their passports to enter Uganda. 

The three countries –Kenya, Uganda and Rwanda have agreed on the use of each country’s identity cards, students’ cards and voters’ cards as valid travel documents in the three countries.

Improved road network is critical to the region's growth.

Presidents and Museveni also underscored the importance of accelerating the implementation of various components of the Northern Corridor joint Infrastructural projects spearheaded by their countries.

Under the joint tripartite agreement, Uganda will lead the railway development and political federation sector while Rwanda is handle customs, single tourist visa and East African Community identity card. Kenya will lead the implementation of the oil pipeline and electricity generation.

Land-locked South Sudan, reeling from hostility from its northern neighbor, Sudan from which it seceded after 21 years of war, has applied to join the East Africa Community and has entered into agreements with Kenya to jointly fund the improvement of infrastructure from the Port of Lamu along Kenya’s Indian Ocean Coast. 

The new infrastructure initiative between the Kenya, Rwanda and Uganda is expected to be an additional improvement on South Sudan’s infrastructural needs as part of the Road Corridor will extend to Juba, the new nation’s capital.

Sudan depends to a large extent on Kenya and Uganda as its largest trading partners, importing most of its needs from or through the two countries. This explains the intense interest the two countries have hard in South Sudan’s recent outbreak of political and ethnic conflict.

Kenya, as the current chair of the regional Intergovernmental Authority on Development (IGAD) is leading the peace process while Uganda has sent in soldiers to bolster the Juba regime against rebels led by former Vice President Riek Machar.

OPINION: WHY NGOs ARE NOT CELEBRATING DESPITE DEFEAT OF CHANGES TO LAW

By Suba Churchill

January 14, 2004 was exactly one year since the Public Benefit Organizations (PBO) Act, 2013 was passed into law. But the day’s passage was rather unremarkable. Neither the civil society nor the National Governmental Organizations Coordination Bureau charged with coordinating the sector observed the day. 

Civil Society activists demonstrate in the streets of Nairobi last year

A visit to the Bureau offices on the material day confirmed my fears that the office may not have been aware of what ought to have been an auspicious occasion. Most of the Bureau’s staff members were reportedly out of the office, burning the midnight oil to meet some performance contracting deadlines. 

To the PBOs, the unremarkable passage of the day did not come by surprise. The sector had spent the second half of 2013 battling proposed amendments to the law. The mischievous amendments, tucked among 47 other odd pieces of legislation in the infamous Statute Law Miscellaneous (Amendments) Bill of 2013 had proposed draconian changes which would have adversely affected the environment within which the non-state actors operate. 

All these were happening despite what has been celebrated as the hallmark of a liberal democratic system that the Constitution of Kenya 2010 has supposedly heralded. In such a system, pressure groups and other forms of citizen formations should be able to influence government decisions without undue government control. This assumes that there is substantial amount of independence and freedom from government control of the mass media – radio, television and newspapers.

But some of the laws that have been enacted under the watch of the jubilee government ever since the ruling coalition came into power raise more concerns that fulfillment of the text and spirit of the Constitution. 

Article 34 (2) is explicit on freedom of the media with regard to State control, providing that  (a) “the State shall not exercise control over or interfere with any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium”. In paragraph (b), the supreme law is even more explicit that “the State shall not penalize any person for any opinion or view or content of any broadcast, publication or dissemination”.

But the two laws that parliament has passed on the media have provisions that offend both the text and spirit of the Constitution by providing for hefty fines against individual journalists and the media houses they work for. There is also excessive government presence in the Media Council which, by its nature ought to be a self-regulating mechanism run and managed by the media practitioners.

It is such happenings, and the fact that the government does not seem to be keen to operationalize the Public Benefit Organizations Act one year since the law was enacted that keep the civil society on the edge.

During the debate that ensued as government pushed on with the proposed amendments, it emerged that a significant section of the public does not seem to appreciate what constitutes the civil society. For starters, the civil society is the arena outside of the family, the State and the market. In other words, any citizen formation that can not be called family, corporate business or government is what is broadly called the civil society. 

Civil society is thus created by individuals for the purpose of advancing collective actions as organizations and institutions. Broadly, they can be divided into developmental or pressure groups. While developmental or interest groups are preoccupied with the welfare of its members or a larger community or society overall. 

Pressure or lobby groups on the other hand aim to influence the political decision making process – from laws to policies and programmes that impact on society. This influencing of public policy is a legitimate mandate but which the proposed amendments sought to criminalize.

The Sixth Schedule of the PBO Act is an elaborate description of areas an organization may be registered as a PBO. It lists such noble causes as provision of legal aid, promotion of agriculture, rights of children, culture, disability, energy, gender, governance and information as some of the core areas of focus for which a group can form and register a PBO. 

Yet, by seeking to limit foreign funding to fifteen per cent of annual budget for PBOs without providing alternative local sources, the government was stealthily seeking to fundamentally alter the enabling environment for the PBOs by denying them the resources they need to effectively influence policy on these issues. 

The amendments would have effectively rendered many PBOs incapable of delivering on their mandate. Civicus - the World Alliance for Citizen Participation defines enabling environment as a set of conditions, whether individually or in an organized fashion to participate and engage in the civil society arena. 

That environment is determined by the legal and regulatory framework that includes the registration process that should be quick, easy and predictable. Such laws and policies should also make it easy for civil society groups to form, operate free from interference, express their views, and seek resources without undue hindrances.

Suba Churchill is a member of CSO Reference Group and Coordinator of the National Civil Society Congress. Suba_churchill@yahoo.com

FOI Network holds meeting on Access to Information Bill 2013

Members of the Kenya Freedom of Information Network (FOI) have held a two day strategy meeting in Nakuru to plan for a more aggressive advocacy towards realizing the passage of the Access to Information Bill 2013.

Members of the FOI network at the Nakuru Meeting

Kenya's  Constitution 2010 provides for Freedom of Information but no law has been enacted to facilitate the enjoyment of this provision. There have been ongoing efforts over the last ten years towards getting law passed but this has hit a brick wall because of resistance or reluctance from the government, which fears greater scrutiny by citizens and various stakeholders groups.

The strategy meeting identified thematic areas which will be the focus in the new year as the advocacy rolls out to the Counties to attract more stakeholders. The themes identified included: Legislative Advocacy, Human Rights and Acess to Justice, Environmental Governance, Public Finance Management and Procurement, Public Participation and Devolution.

The Rift Valley Freedom of Information Network which works together with the National FOI Network also identified key themes to work on. These included: Devolution, Public Finance Management and Procurement, Environmental Governance, Public Participation and Legislative Advocacy.

Anne Gitonga of ICJ  leads a session during the meeting

Anne Gitonga of the Kenya Section of the International Commission of Jurists (ICJ-K) said the FOI team will adopt a more aggressive approach in advocating for the realization of the Access to Information law to help citizens enjoy the right to information as provided for in the constitution.

The FOI is coordinated by ICJ-K but different organizations will convene different thematic groups to enhance more ownership and coordination of the initiative.

Right: A slide showing the status of Access to Information in Africa,during the workshop.

Westgate Attack: Businesses looted by "security men"

Traders who had various businesses at the Westgate Mall in Nairobi which was attacked by terrorists linked to the Somali militant group, Al Shabaab on September 21, were on Monday counting their losses, as it emerged that some of the security personnel deployed to deal with the attackers turned to looting.

Security personnel: Did some of them loot?

The government has admitted looting took place and conceded that some of the security personnel had looted some of the shops. At least three people have been arrested over the looting claims. A police officer has been arraigned in court over the looting.

Banks, M-Pesa shops, Forex bureaus and other businesses at the high end mall were reportedly ransacked during the four day stand -off between the security personnel and the attackers.

"Some people have reaped big from the mall tragedy, leaving us to count huge losses. People have no sympathy," lamented one of those who had an M-Pesa business in the mall.

 He said there was no time to lock the shops or keep money during the attack as there was panic when the shooting started.

The traders were shocked at what they saw when they were allowed to visit the premises to inspect their businesses. The government has remained non committal about compensation with the Cabinet Secretary in charge of East Africa Affairs, Trade and Tourism Phyllis Kandie saying the government would appoint a team of stakeholders to assess the extent of the loss.

Meanwhile it has emerged that the number of those earlier reported unaccounted for Monday reduced from 61 to 39 after the Kenya Red Cross announced that 14 people had been located in various hospitals while 7 others had been confirmed dead and in various morgues in the city.

Cabinet Secretary  Joseph Ole Lenku announced Sunday that 9 suspects were in custody and that a vehicle used in the attack had been recovered with an assortment of weapons.57 Kenyans and 10 foreigners were killed during the attack.

Prof Kofi Awonoor. He was killed in the attack.

Among the foreigners killed were the famous Ghanaian writer Prof Kofi Awonoor, the author of This Earth, My Brother who was in Kenya to speak at a literary forum. His son who was with him survived with injuries.

Kenyan security officers with the help of officers from the Interpol, Israel, the US, Canada were still pieces information together to unravel the details of the attack which caused extensive devastation to the mall.

Ends//

Death toll from Kenyan terror attack rises to 59, 175 injured

The death toll from Saturday's terror attack on a shopping mall in Nairobi, Kenya today afternoon rose to 59 while 175 were confirmed injured, according to the Government, as the attackers continued holding hostages for the second day.

Kenyans donate blood at Kencom Bus Stage in Nairobi

It was not immediately clear how many foreigners were killed but it was known several foreign nationals were caught up in the incident as the mall is a favorite of wealth local and foreign nationals including employees of international organizations in Nairobi.

Cabinet Secretary in charge of National Security Jospeh Ole Lenku confirmed the figures at a press conference in Nairobi, near the scene of the attack. He said the operation to rescue hostages still held in the building by the attackers estimated at between 10-15 was still going.

Kenyan leaders from different sides of the political divide came together in a rare show of unity, first visiting the injured at the Aga Khan and MP Shah Hospitals before addressing a joint press conference at State House shortly after 4 pm local time, where they called for calm and support for the  security operation to flush out the attackers.

President Kenyatta also revealed that he had also lost a nephew and a fiancee in the attack. He said Kenya would not pull out its soldiers from Somalia over the attack which has been claimed by Al Shabaab which said they were revenging Kenya's presence in Somalia.

"We have received many offers of assistance from friendly countries but this for the moment remains a Kenyan operation," he said in apparent reference to reports in Nairobi tat foreign troops including the Israelis, were helping the Kenyan security team to deal with the situation.

Former PM Odinga called on Kenyans to remain united in the face of the attack and amid claims that the attackers had before the shooting urged Muslims within the mall to move out quickly.

" We should not allow the attack to divide us along religious or any other lines as terrorist attacks are universal and have occurred elsewhere including Israel, Iraq, the US, Britain and Spain among others," said the former PM.

He urged the international community not to issue travel advisories saying this will hurt the country's economy. President Kenyatta and UDF leader Musalia Mudavadi also echoed the same sentiments during the press conference.

Messages of solidarity with Kenya were sent by the Eastern Africa regional body Inter Governmental Authority for Development (IGAD), US, Somalia,China, South Sudan, and UK, who condemned the terror attack.

The Saturday attack came 16 years after the 1998 Bomb attack in Nairobi which destroyed the US Embassy and left more than 200 people dead and hundreds others injured.

The scene of the attack remained under tight security from different units of the Kenyan security with both army and police helicopters flying overhead most of the day. Police shot in the air and lobbed tear gas at a crowd that was surging towards the area despite repeated pleas since yesterday to keep off.

Journalists were kept more than 600 meters away from where they monitored events. Other establishments including other shopping malls, churches and other public places frequented by many people were secured by the police throughout yesterday.

Hundreds of Kenyans and even non Kenyans turned out to in large numbers to donate blood at different hospitals in Nairobi and upcountry. Kencom Bus Stage in Nairobi had a big number of blood donors.

Red Cross officers manage a blood donation centre in Nairobi

Nairobi City Government also set up another centre at City Hall to provide opportunity for more Kenyans to donate blood.

A call for cash donations through the M-Pesa phone facility by Safaricom had by last evening raked in donations of about USD 95,000 and more was still coming in.

Ends//

Gunmen kill 20, injure 50 more in Shopping Mall attack in Kenya

Heavily armed gunmen today stormed into a a prestigious shopping mall in Westlands, Nairobi and shot at shoppers indiscriminately, killing some and injuring scores of others.

There were no official figures by 5.30 pm but the Red Cross and other sources indicated that the death toll had reached 20 while up to 50 others were rushed to local hospitals with serious injuries.

Police cordoned off the area from around 12 noon Kenyan time and were later joined by the army in an attempt to flash out the gunmen whose numbers were said by witnesses as between 10 and 18.

Rescuers including the security officials, the Red cross and others struggled for hours to evacuate those trapped in the building which during weekend host more than 1000 shoppers and revelers, some of them from high class neighbourhoods and employees of international organizations.

A bevy of journalists who camped at the scene for hours had restricted access to allow the security officers to carry out the rescue operation and flash out the gunmen.

By 6 pm, there was no indication that the gunmen had been subdued or that they had left the building although the police had gained access to the building and taken positions on the roof. Police and army helicopters hovered overhead to give support to the ground troops.

Little information was available on what kind of  people the gunmen were but there were reports that among them was at least one woman and that at the point of entry into the building, they appeared intent on robbing some of the business premises.

The Government was due to address a press conference by late evening to give a comprehensive picture and information of what happened.

End//