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When Inflammatory Statements are Made…

Posted by on 1st April 2011

Categories: 2007 Elections Members of Parliament News

By Mzalendo Contributor – Moreen Majiwa


After I saw this http://youtu.be/G0WfPq8okno clip of the statements made by the Deputy Prime Minister and Minister for Finance Uhuru Kenyatta at a rally in Murang’a.

I frantically looked for the translation, the tag line on the tweet asked “has Mzalendo Kibunja seen this?” so I knew that it may possibly fall within the ambit of hate speech. I found the translation as well as denouncement of the remarks here.

The denouncement, is full correct in calling the statements made by the Deputy Prime Minster/Minister of Finance irresponsible, inflammatory, inter-ethnically and intra-ethnically divisive, dangerous and detrimental to the cohesion that Kenyans have been working towards since 2007.

Yet, despite the inflammatory nature of the Deputy Prime Minister’s remarks the National Cohesion and Integration Commission is yet to react, and the politicians that were present at the rally are yet to say anything about his statements.  All in all there has been has been very little action.

The lack of action reminds me of a column in the Sunday Nation where the writer argued, ‘The leaders of the bigger ethnic communities simply will not seriously fight tribalism because it is through the voting power of the ethnic mass – not through ideology – that an elite individuals hopes to enter Parliament and State House.”

A politician is he who always inflates his tribe’s ego while, at the same time, keeping that tribe profoundly ignorant of its real needs. It is thus the for the purpose of the vote – not of ethnic development – that he manages to rally the ‘tribe’ behind him.

So the leader and elite of one big community see the leader and elite of another big ‘tribe’ as the enemy. Hence the necessity for the ethnic leader to encourage his deification by the ethnic mass if he is to ensure the ethnic vote. Thus the Kenyan liberator must first liberate every ethnic mass from the bewitching demagoguery of its elite’

Thankfully the voting public has the power through their vote to show disapproval for statements made let us it.

But we still ask shouldn’t Mzalendo Kibunja be responding to this rather than chasing his tail on social media sites?

Deferral, referral, challenge to admissibility are we confused yet!?

Posted by on 24th March 2011

Categories: 2007 Elections 2012 Elections ICC

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Yesterday the Attorney General Amos Wako plainly stated that the ‘shuttle diplomacy’
had been a failure after a several permanent members of the United Nations Security
Council (UNSC) said that the Kenya case did not meet the threshold for a UNSC
resolution for a one-year deferral of the its ICC case against the six suspects.

So what now? The government has appointed a Queen’s Council and Barrister-at-law to
challenge the admissibility of the Kenya case at the International Criminal Court (side
note: are there no qualified Kenyan lawyers that could challenge admissibility at the ICC,
first the hiring of the foreign firm manage social media and now lawyers to defend the
ICC case?).

According to the Rome Statute a challenge to admissibility can be made under Article
19 by either by an accused person for whom a warrant of arrest or a summons to appear
has been issued under article 58, or by ‘a State which has jurisdiction over a case, on the
grounds that it is investigating or prosecuting the case or has investigated or prosecuted’
or by ‘a State from which acceptance of jurisdiction is required under article 12’.

The third option is not open to Kenya since the country is a signatory to and has
domesticated the Rome Statute. So the only grounds left on which the state/government
can challenge admissibility of the case is on the grounds that it is investigating or
prosecuting the case or has investigated or prosecuted the case. But this raises a few
questions.

Considering a considerable amount of tax-payers money has already been wasted on
shuttle diplomacy and there has been no consultation with the people of Kenya as
to whether they want to use even more of their tax shillings to hire foreign counsel to
challenge admissibility – why can’t the six suspects for whom summons to appear has
been issued challenge admissibility in their individual capacity under Article 19 (2)? Why
should state resources be spent to challenge admissibility of case?

Another issue with the challenge of admissibility is requirement for the government to
show that it is investigating or prosecuting the case or has investigated or prosecuted.
Notice the tense requires that the investigations or prosecutions be underway or already
completed at the time when admissibility is being challenged. Now I may be wrong
but to my knowledge there is currently there no evidence to indicate that the state is
investigating or prosecuting any of the six suspects.

So is this challenge to admissibility another exercise in futility considering that there is a
slew of judicial reforms that needs to occur before the state/government can even begin to
mount a processes that will be seen as credible and legitimate?

The Summons

Posted by on 12th March 2011

Categories: 2007 Elections ICC

By Mzalendo Contributor – Moreen Majiwa
On Tuesday this week the Pre-trial Chamber of the International Criminal Court issued
summons ‘to appear’ for the six persons deemed most responsible for the post election
violence of 2007/2008.

The summons were issued in two separate cases the first against Francis Muthaura
(Cabinet Secretary), Uhuru Kenyatta (Deputy Prime Minister/Minister of Finance), and
General Hussien Ali (Post Master General).  The Chamber found reasonable grounds to
believe that Francis Muthaura and Uhuru Kenyatta could be criminally responsible as
indirect co-perpetrators (committed crimes through other persons Article 25 (3) (a) of the
Rome Statute) for crimes against humanity specifically murder, forcible transfer, rape,
persecution and other inhumane acts.   They found the no reasonable grounds to believe
that General Ali was an indirect co-perpetrator, but found that he could be responsible for
contributing to crimes under Article 25 (d) of the Rome Statute (i.e. that he contributed to
the commission or the attempted commission of crimes by a group of persons acting with
a common purpose).

In the case second case which is against Henry Kosegy (Industrialisation Minister),
William Ruto (Suspended Minister of Higher Education) and Joshua Arap Sang the
Chamber found reasonable grounds to believe that William Ruto and Henry Kosegy
could be criminally responsible as indirect co-perpetrators in accordance with Article 25
(3) of the Rome Statute for crimes against humanity i.e. murder, persecution and forcible
transfer. The chamber found that though Joshua Arap Sang contributed to the crimes in
accordance with Article 25(3) (d) but that there were no reasonable grounds to believe
that was a co-perpetrator.

The two decisions are both 24 to 25 pages long with plenty of ‘legalese’ but definitely
worth the read.  There’s a shocking quality to seeing the reasoning process that led up to
the issuing of the summons against the six named suspects starkly outlined in black and
white.

All the six suspects are now required to appear before the Pre-trial Chamber on April 7
for an initial appearance. This step is likely to be followed by a confirmation of charges
hearing, after which the court will decide whether or not the suspects should stand trial.

At this stage it is essential to remember that issuance of summons is not declaration
of guilt but rather finding that on the evidence provided by the Prosecutor there is
reasonable grounds to believe that one or more crimes presented in the Prosecutor’s
cases were committed, and further that there are reasonable grounds to believe that those
named could criminally responsible for the crimes.

Amidst the issuance of summons the standoff between ‘the government’ (the government
in quotes because the government is not unified on this issue) and the ICC continues. The
shuttle diplomacy seems to be going ahead unabated by dissent by certain members
of government, Kenyan citizens and the United States’ reiteration that it will not be
supporting the government’s deferral bid to the United Nations Security Council.

Following the Vice President’s visit to the United States, the Deputy Secretary of State
this week declared that the USA ‘does not support a UN Security Council resolution
to defer Kenya’s ICC cases.’   However not to be out done the government will now
challenge the admissibility of the two cases in the ICC, but that’s a different blog.

Deferring Kenya’s ICC case – why waste taxpayers money?

Posted by on 9th February 2011

Categories: 2007 Elections 2012 Elections ICC

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Intense lobbying by the Vice President for African Union (AU) support for deferral of Kenya’s ICC case seems to have yielded results. Last week at the AU summit, support for the deferral was resounding Kenya gained the backing of both the Executive Council (AU ministerial level) and the General Assembly (AU Heads of State Level).

However the AU’s support for the deferral of the Kenya case is unsurprising. The AU made a similar request for deferral in the Sudan case after the UN Security Council referred situation in Darfur to the Office of the Prosecutor (OTP).  Of course, the circumstances are slightly different.  In the case of Sudan the AU Peace and Security Council requested deferral after the OTP submitted its ‘application for the issuance of the arrest warrant’ against Sudan’s president, citing that the timing of the request for arrest warrants could jeopardize the ongoing Darfur peace process.

In Kenya we’re still at the summons stage, no application has been made for the issuance of warrants, and our peace process (if it can be called that) was completed in 2008.  It is worth noting however that despite an ongoing peace process and active violence in Darfur the Security Council still rejected the AU ‘s application to have Sudan case deferred. So what are Kenya’s chances and what are the requirements for deferral of Kenya’s case?

The clause the government is relying on to make its case for deferral is Article 16 of the Rome Statute which provides for postponing investigations or prosecutions for a period of 12 months on the adoption of a Security Council Resolution taken under Chapter VII of the UN Charter. (Side Note: Why is parliament trying to use the very same statue it is planning to pull out of to defer its ICC Case?)  Chapter VII of the UN Charter would allow the UN Security Council to defer a case to ‘maintain or restore international peace and security’ if it determines the existence of any threat to the peace, breach of peace or act of aggression. Chapter VII resolutions are rare and tend to be used only in extreme circumstances.  So far in the case of Kenya, there is nothing to indicate that the continuation of the ICC proceedings would create a threat to peace and security as envisioned by Chapter VII of the UN Charter.

Furthermore,  Kenya would require the support of if 9 of the 15 members UN Security Council and the support of the all the permanent members. One veto by a permanent member (China, France, Russia, UK and US) of the Security Council would result in refusal to defer the case. Plans are currently underway to lobby the members of the UN Security Council to support the deferral with a special Cabinet team being set up to taken on the task.

One of the main reasons given by a certain section of government officials for deferral is the reform of Kenya’s judiciary and Kenya’s ability and willingness to now try the 6 ICC suspects. However Article 16 of the Rome Statute is clear as to the circumstances that warrant deferral, ‘reforming’ is not one the criteria.

As it stands deferral seems unlikely, and this begs the question what is the true motive behind spending millions of taxpayers shillings on a process that is unlikely to succeed?

Is the KKK Alliance Constitutional?

Posted by on 22nd January 2011

Categories: 2007 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)
In the last few days the Kikuyu, Kamba, Kalenjin (KKK) alliance formed by Eldoret MP Willam Ruto, Vice President Kalonzo Musyoka and Deputy Vice President Uhuru Kenyatta has dominated the headlines.
As yet it is difficult to determine what exactly the alliance is. Whether it is a party in waiting or whether it will be a coalition of three different parties representing the three different communities.
If it is the intention of the three leaders of the KKK to eventually transform the as yet undefined alliance into a political party or a coalitional of parties based on ethnicity this would be both unconstitutional and illegal.
Part 3 of Chapter 7 of the new constitution that deals with political parties clearly states in Article 91 (1) (a) that every party shall have a national character as prescribed by an Act of Parliament.  While parliament is yet to legislate on the exactly what constitutes ‘national character,’ it is safe to a assume that in a nation of 47 ethnic groups a coalition or party made of just of three of the forty seven does not met the requirement of being national in character.  Not only does the KKK not meet the basic requirement of being national in character by excluding the 44 of the 47 ethnic groups, but such an alliance is also flies in the face of the rest of Article 91 (2) that requires that political parties not be founded on regional or ethnic basis.

Furthermore, the formation of an alliance based on ethnicity also falls foul of the concept of national cohesion and integration enshrined in the National Cohesion & Integration Act of 2008 and yet the National Cohesion & Integration Commission seems to be silent.

Negative ethnicity has played and continues to play a detrimental role in Kenyan politics and most Kenyans want to break away from this past and to change this dangerous state of affairs. This desire is enshrined in the new constitution and the National Cohesion & Integration Act.   Alliances such as the KKK take us back to a bygone era and have no place in present day Kenya.

Demonstration against Impunity

Posted by on 17th January 2011

Categories: 2007 Elections Citizen Engagement

Kenyans for Peace and Justice and a coalition of partners and concerned citizens will be demonstrating against the government’s decision to withdraw from the ICC and to use taxpayers money for the legal defense of the Ocampo 6.   Time to say enough is enough – if you are interested in participating the demonstration starts on Tuesday January 18 at 1 pm, at the  Freedom Corner, Uhuru Park.

We will be reporting on the demonstration later in the day.

Kenya Citizen’s YES Campaign in Support of the ICC

Posted by on 14th January 2011

Categories: 2007 Elections Citizen Engagement

Our politicians have demonstrated that they do not have an upper limit when it comes to impunity and acts that at best can only be described as shameful.

It is now up to us to fight back and speak out against their increasingly bizarre actions, a starting point being running around the continent – ON KENYAN TAXPAYER MONEY – to lobby the rest of the continent to withdraw from the ICC.   They seem to have quickly forgotten that they brought the ICC process on by dilly-dallying around and eventually voting down the local tribunal option (which they have now suddenly rediscovered).

There are various initiatives underway to make sure that Kenyans are not happy with the turn of events and the push to use taxpayers money to subsidize legal defense costs and anti-ICC lobbying activities.  A good starting point is the campaign to collect at least 1 million signatures of Kenyan voters who are expressing their support for the ICC process.   How can you participate?:

  • Email request for hard copies:  An email address has been set-up signonemillion-at-gmail.com where people interested in getting forms can send a request. Just write to that email & someone will send you the forms and declaration as attachments so that you can print them out wherever you are & start collecting signatures.  You can also volunteer to host a physical location e.g. your shop where people coming through can sign the petition.
  • Download the petition here and the signature schedule here.

To Whose Fund Will You Be Contributing?

Posted by on 24th December 2010

Categories: 2007 Elections

By Mzalendo Contributor Moreen Majiwa – @mmajiwa

‘We shall not discriminate…we will mobilise all resources and hire the best
lawyers so that the suspects are fully represented at the Hague’ this was the
statement made by Kiraitu Murungi, Minister for Energy on Tuesday this week.

How much will it cost to ensure that each of the six suspects receives the best
possible legal representation at the International Criminal Court? According the
Energy Minister the each suspect will require at least Kshs. 150 million each
to hire a team of top-notch defence lawyers. At Kshs.150 million a piece for 6
persons that’s a total of nine hundred million shillings.

Where? How? And from whom is the money is supposed to be raised? Will
it be raised solely from MP’s contributions? No. Will the money be come
from the Treasury? No. Are the normal wananchi expected to contribute to a
special ‘Hague 6 defence fund’? Yes.  According to the minister they want to mobilise all Kenyans who feel as outraged
as they do to support the fund.

The Energy Minister went on to explain that if five million Kenyan’s contributed
Kshs. 100 each, they would reach the goal, and that Kenyans should not think
about just a few rich people contributing for the process. He continued to explain
that a bank account managed by trustees would be opened and ‘outraged’
Kenyans could deposit funds into it. He stated that the motivation behind setting up the defence fund was neither tribal nor political and that similar efforts had been made to settle IDP’s.

However, the situation of the independently wealthy ICC suspects and the thousands of homeless, penniless IDPs could not be more dissimilar. Just five days ago, 17th December 2010, the government said that it would not be
possible to resettle all the remaining IDP’s before the end of the year, in fact it is
unlike that they will be resettled before June next year, the reason – lack of funds.

The Ministry of Special Programmes estimates 7,000 households are still in IDP
camps awaiting resettlement. Kenya Human Rights Commission has found that
IDP’s are living in camps with little or no government support. The Minister for
Special Programmes Esther Murugi says that at least Kshs. 2 billion and 20,000
acres of land is needed to resettle the remaining IDP’s.

However resettlement of the 7,000 households is just a fraction of the job that
remains with regards to resettlement of IDPs. According to the Minister the
Ministry of Special Programmes still has another 350,000 displaced persons to
cater for. This number is made up of persons whose homes and belongings
were destroyed during the 2007/2008 post-election violence but who went to
live with family and friends instead of tented IDP camps. There are a further
641 Kenyans who fled to Uganda to escape the post election violence, these
Kenyans still need to be repatriated.

How any one can draw an analogy between contributing to the defence fund and
the IDP’s defies all reason. It is difficult to see why money should be raised to
support the independently wealthy six suspects while the IDPs are still resident in
camps.

Who will you be contributing to?

Mzalendo Vox Pop: Opinions on the Ocampo List

Posted by on 19th December 2010

Categories: 2007 Elections Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The naming of the 6 has ended speculation of whose name could be on list.
Most people I spoke to for this piece have moved on to reacting to the revelation.
Below are some of the opinions:

Most surprising

For me its Francis Muthaura, before Ocampo named them, we speculated the
about whose name was on the list, and his name never once came up as one of
the possible people who were on Ocampo’s list. Though now that his name is on
the list its is hard to see how some of the actions taken by the police and army
during PEV could have been taken without he’s say so especially since he’s the
Chairman of National Security Advisory Committee.’

‘Joshua Sang, but mostly because I didn’t know who he was I thought the list
would be all politicians’

‘Henry Kosegy, he’s one of the people that I hear talking and I think that this
person wants to move the country forward so I’m surprised about him, but it just
goes to show with politicians you never know…it’s a doublespeak situation, they
may present one face and be completely different, I’m disappointed though.’

‘I was not surprised by anyone on the list but I think it should have been longer,
the 6 are the epitome of what is wrong with the country.’

Effect on the country

“I’m actually glad that there was a radio personality on the list the radio is the
main media for people in Kenya. Living in the city you get the impression that
most people have TV’s or can access the internet. The truth is most Kenyans
live in the rural areas and listen to radio, so radio presenters are very powerful
and influential. The naming of one of them as one of the person most responsible
reflects the power they have, and keeps the media in check given the fact that
vernacular stations are very popular.”

I think the progress with this ICC case has restored hope of people, particularly
the ones who are cynical about the ability to get justice in this country. When
you do something wrong you should be remorseful but in Kenya powerful people
have managed to get away with the most ludicrous things, so the everyday
Kenyan was in a state of learned helplessness – thinking that nothing could touch
the high & mighty most have given up, the ICC process might go some way in
getting us out of that mind set.”

I think what has happened with the ICC is good for the country, but only if it’s
successful. If it is successful it will be a starting point to ending impunity, people
will realise that even if you can manipulate internal system there are greater
processes that can take over. However if the process is not successful impunity
will increase, we will not be able to control it”

So what’s next?   The Prosecutor gave the court his documents containing the
findings of his investigation, the names of the 6, the crimes they are accused of
committing and the penalty he will be requesting.  The panel of judges will now
review the case documents presented by the Prosecutor and decide whether the
Prosecutor can proceed to file charges against the named persons.

Is the Establishment of a Local Tribunal Enough to Stop the ICC

Posted by on 15th December 2010

Categories: 2007 Elections 2012 Elections Breaking News

Today the International Criminal Court (ICC) Prosecutor, Luis Moreno Ocampo, filed two applications for summons to appear for the six persons that the Prosecutor’s Office believes are most responsible for Kenya’s 2007/2008 post election violence.

There had been progressively spirited attempts to stop the application as well as the case at the ICC.This included a last ditch attempt by the government to set up a local tribunal to try the suspects after numerous attempts had failed.

“Irrespective of what transpires at the ICC on Wednesday 15 December, 2010 and in view of the fact that ICC is only a court of last resort, the Government will establish a local judicial mechanism in accordance with the Rome Statute within the framework of the new Constitution. The only reason that the post-election violence cases are being investigated by the ICC is because there is no appropriate local judicial mechanism which could carry out investigations, prosecutions and determination of the post-election violence cases for international crimes,”

The establishment of a local tribunal is welcome. The ICC will only be dealing with the 6 deemed most responsible for the violence. For comprehensive justice a national mechanism will be needed to try perpetrators that do not fall within this category. The ICC is meant to complement a national process not replace it.

Many of the people I have spoken to are sceptical of the reason behind the sudden willingness to set up a local tribunal. Some have gone as far as to say that the establishment of a local tribunal is not only intended to halt the ICC process, but to create a local mechanism that can be manipulated to protect certain persons.

Given the timing of the decision, the failure of two previous attempts to establish a local tribunal, and a history of political manipulation of the rule law, who can blame them?

If the speculation is correct and the intention behind setting up the local tribunal is disingenuous or if the local tribunal is intended as a smoke screen to shield certain perpetrators from criminal responsibility. The plan is unlikely to work.

Section 17 of the Rome statute envisages such a situation and protects against it. So the Court will still act if the local tribunal is created “for the purpose of shielding the person (s) concerned from criminal responsibility”, or if the process is being conducted in a manner “inconsistent with an intent to bring the person concerned to justice”.