Entries from December 24th, 2010

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

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.

ICC Case Files

Posted by on 16th December 2010

Categories: Breaking News

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”.

Kenya and the ICC Setting the Record Straight

Posted by on 10th December 2010

Categories: 2007 Elections 2012 Elections

By Mzalendo Contributor Moreen Majiwa (@mmajiwa on Twitter).

It’s a bit more than year since Luis Moreno Ocampo, the Chief Prosecutor of the International Criminal Court, sought permission from a pre-trial chamber of three ICC judges to open an investigation into the country’s 2007-2008 post-election violence.

On March 31, 2010 a majority of the pre-trial chamber of International Criminal Court judges approved the Prosecutor’s request. This made Kenya the International Criminal Court’s fifth investigation, and the first investigation begun by the prosecutor acting on his own initiative.

Last week the Prosecutor announced that he has completed his investigations. In short he has identified the most serious incidents falling under the ICC’s jurisdiction as well as the persons most culpable for these incidents.  The incidents he’s finished investigating?

In his “Request for authorization for investigation” the Prosecutor stated that there was a reasonable basis to believe that crimes against humanity were committed during the post-election violence of 2007/2008, in particular crimes of murder, rape and sexual violence, deportation and forcible transfer of population and other inhumane acts.

Now that the investigations are done the Prosecutor has announced that he is ready to take the next step and will be requesting the International Court to issue summons against 6 high level officials on December 15th 2010. Since the announcement the government seems to be doing a U-turn on its promise to cooperate with the Court.

The AG has stated that the Prosecutor has no cause of action against Kenya as the crimes committed do not qualify as crimes against humanity. MPs plan to table a motion to revoke Kenya’s assent to the Rome Statute and to deny the Court jurisdiction over Kenya. MP for Chepalungu Isaac Rutto, will be presenting the motion to Parliament on Wednesday next week. MP William Ruto who initially supported the ICC investigation in lieu of a local tribunal, has filed an urgent application to block the prosecutor from making an application to issue summons against the 6 Kenyans.

However all this is moot, because during the first stage a majority of the ICC judges already ruled that a cause of action against Kenya exists as the information supplied by the prosecutor provided a reasonable basis to believe that crimes against humanity had been committed in Kenya and that all criteria for the exercise of the Court’s jurisdiction was satisfied.

Further by ratifying the Rome Statute in 2005 the government effectively agreed that after this date the ICC could investigate, try and prosecute individuals accused of crimes under its jurisdiction committed in Kenya. Even more important Article 2 (6) of the new constitution makes the Rome Statute a part of Kenya’s law and amending this constitutional provision to create an exception would require a referendum, see article 255 and 256 of the Constitution.

So legally speaking the die has been cast and the case must go on, unless the court finds that there is insufficient evidence to link the 6 persons to the crimes.

What do people think about the new Alcohol Bill?

Posted by on 8th December 2010

Categories: Citizen Engagement

By Mzalendo contributor Moreen Majiwa (on Twitter – @mmajiwa)

Kenya’s urban landscape is littered with bars. There are bars to cater for all demographics, palates, and wallets. From famed locals like ‘Njunguna’s’, ‘Mimunas’ and ‘Kathingati’s’, cobbled from little more than mabati and wood to sophisticated lounges, beer gardens and sports bars, the range is endless.

One can buy alcohol for as a little as Kshs.10. It comes in bottles, sachets, cans and some establishments require that you bring your own glass. Depending on your cash flow you can buy, brand name alcohol or elicit brews so potent that it has causes loss of sight and in extreme cases death. Last call is typically when the last client leaves.

Last month the government enacted the Alcoholic Drinks Control Act 2010, an Act that is set to dramatically impact how and when Kenyans drink. The Act prohibits the sale of alcohol before 5pm on weekdays and before 2pm weekends.  The Act is aimed at addressing the increase in alcohol outlets in urban residential areas and near schools, the increase in the drinking among people under 18, the aggressive marketing of alcohol to the youth, and the increase of injuries and death from consumption unadulterated alcoholic drinks.

With alcohol and nyama choma being big a part of Kenyan culture the issue of alcohol control is an emotive one and though most people I spoke to had not read the Act most had very definite opinions on it, here are some:

I haven’t read the Act, the truth of the matter is that there is a new alcohol act, but as a consumer I don’t know what I’m going to do about it if anything, because I don’t know what it says. If I knew what it said I would have a stance and I’d be thinking differently. Now I’m just scared that I’m breaking the law when I go drinking and I don’t think that’s right.

Alcohol control is essential for personal protection and for protection of the society. Having said that alcohol control is not new to Kenya, it has always been there but it was more for the manufacturers and sellers of alcohol. We were more aware of it being used against people who brew chang’aa and such. However given the rising levels of alcoholism particularly among young people there is need for more extensive alcohol control I support the Act, of course enforcement is a different issue.

I haven’t read the act but I heard something like you can only drink after 5. What if I want to have a drink at lunch-time, what if I am taking clients out for lunc,h does that mean that they cannot drink alcohol? And what about the office Christmas lunch? Is this Act really well thought out. You can’t control adults in the same way you control kids, and the government should not try to control my alcohol consumption. As long as I don’t hurt people how much and when I drink is a personal choice.

No, I have not read the Act but I’ve heard of it, I wonder why the government introduced the Act in December when people drink the most and when opposition would be strongest they should have introduced it in January by then people are tired of drinking and are focussed on work and school fees, and business of bars is slow and people might have been more receptive then, the government needs to be more strategic about these things.

The Alcohol Act is really good particularly for the village. I come from Western and this issue of arresting women who brew busaa is serious. Women are always being arrested for selling illict brews, yet this is their main source of income. I know women who have supported their families and educated their children through selling busaa, now their children are teachers and even doctors. These women often live in fear of arrest or have to pay protection money. This new Act will make them legitimate businesswomen, and they can package and sell their brews like any other brewery. They might even become the next keroche.

The Alcoholic Drinks Control Act can be found here.

What are your thoughts on the Act and its implementation?

Interesting Paper on Implications of the New Constitution on Arid Lands

Posted by on 6th December 2010

Categories: Kenya Constitution Members of Parliament

The document includes detailed discussion on the impact of the constitution on arid and marginalized areas in Kenya, and ways to take advantage of the new dispensation to address imbalances.

Also includes a great breakdown of how devolution should be handled under the new constitution.

Procrastination Nation?

Posted by on 4th December 2010

Categories: Kenya Constitution

By Mzalendo Contributor  – Moreen Majiwa (you can follow her on twitter – @mmajiwa)

Are you surprised that the constitutional deadlines for the establishment of the
Constitution Implementation Commission and the Commission on Revenue were missed?

This is part of a larger trend in our national politics:

  • The report of the Interim Independent Boundaries Review Commission was published just a few days before the end of its term, leaving little time for reasoned debate before the expiry of its term.
  • The TJRC was established just before the deadline.
  • We had 3 months from the promulgation of the new constitution to establish the Constitution Implementation Commission and the Commission on Revenue Allocation yet the nominees for the Commissions were interviewed and tabled before parliament only a few days before the deadline for their establishment, leaving no time to accommodate dissent or debate before the lapse of the constitutional deadline.

Perhaps the lack of deliberate and intentional focus with regard to meeting deadlines explains the disconnect in the effort and energy put into campaign process preceding the voting in of the new constitution and the nominal advancement made with regard specific action towards its implementation.

Much is still to be done with regards to securing the long-term transformation and gains envisioned in the new constitution, now is not the time to procrastinate. It is imperative that the parliament open renewed and reasoned political dialogue to break the current stalemate on the establishment of the Constitution Implementation Commission and the Commission on Revenue Allocation and create new deadlines in place of the ones that
have been missed.

Second, Parliament should implement the provisions in the constitution designed to strengthen enforcement of sanctions related to the failure to meet implementation deadlines and effectively seal the vacuums that exist with regard to accountability for missing the deadlines set out in schedule 5 of the new constitution.

Finally, the government shouldt put in place administrative reforms to root out political interference with the process and ensure the appropriate environment for the constitution implementation process.

Freedom of Information and the Boundaries Report

Posted by on 2nd December 2010

Categories: 2012 Elections Constituency News

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

If you believe what you read in the papers, Kenya is in a constitutional crisis.

As of Saturday 27th November 2010, neither the Commission on Revenue Allocation nor the Commission for Implementation of the Constitution had been established, the deadline is now 3 days past due. Parliament rejected the names of the nominees on Friday. The papers report that nominees were rejected for lack of regional balance, partisan politics and vested succession interests.
Meanwhile the term of the Interim Independent Boundaries Review Commission has expired and the constitutionally mandated Independent Electoral Boundaries Commission is yet to be formed. Kenya is currently without an Electoral or Boundaries Commission.
In the papers, there have been varying claims about the determination of boundaries – some MPs have claimed that the new boundaries are unfair, others have claimed that the constitutional formula for determination of new constituency boundaries was not followed or was followed incorrectly, while others have lauded the Commission’s work. The Interim Independent Boundaries Review Commission has compiled a report that would put determination of these issues to rest however the report has not been made public.
Whilst there has been massive media coverage of the both the boundaries issue and the failure to establish to the two Commissions within the set timelines, we have no official word from the government. Consequently there is a lot we do not know.

Things we don’t know but would know if we  the Interim Independent Boundaries Review Commission’s boundaries report was public:
• The details of the boundaries of the new constituencies.
• Exactly how these new boundaries were arrived at.
• Whether the criteria used to delineate the boundaries of the new constituencies are constitutional

With regards to the selection of persons for the Commission on Revenue Allocation and the Commission for Implementation of the Constitution political horse-trading is to be expected, this goes on even in established democracies. However if the process for selection were completely transparent from beginning to end the public would know for sure that the selection process was fair, and the best candidates for the job were selected given the political realities of the country.  As it stands the information gap makes it impossible to determine  fact from fiction.
Article 35 (3) of the new constitution obligates the government to publish and publicise any important information affecting the nation. The boundaries report contains information that is affecting the nation. Whatever is going on with the establishment of the 2 Commissions affects the nation. So we ask – what is really going on?

Raila denies ordering arrest of gay Kenyans

Posted by on 1st December 2010

Categories: Members of Parliament

Prime Minister Raila Odinga has faced a barrage of local and international criticism for his recent remarks calling for the arrest of homosexuals in Kenya.

His office / PR team has now released a statement where he appears to be backpedaling from his controversial (and disturbing) threats by using the “I was misquoted’ tack. Below is the text of the statement the PM’s office released – it is disingenuous at best. It would be interesting to compare the statement below with actual video footage of the rally where he spoke.


A story that appeared early today in Capital FM’s online edition and later picked by the Daily Nation late Sunday evening to the effect that Prime Minister Raila Odinga ordered arrest of gay couples was incorrect and widely missed the core message of
the Prime Minister’s remarks earlier that day.

The Prime Minister made references to gay marriages in the context of what he called “lies, propaganda and fear-mongering” that opponents of the then draft constitution engaged in during the referendum campaigns.

The PM said one of the lies was that the draft legalized same sex marriages. The other was that it would force the government to build abortion wards in all hospitals because it legalized abortion.
The Prime Minister went ahead to explain that time has proved these were lies.

In regard to gay marriages, the PM added a rider that even if it had been legal, Kenyans were likely to continue the established trend of marrying the opposite sex. After all, he said, census data released early this year indicated there were more women than men and there would be little reason for Kenyans to turn to same sex marriages. This rider is what the media picked and twisted to imply order of arrest.

Prime Minister Odinga made no such orders and has no intentions of making any such orders.