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Parliamentary Vetting of the DPP

Posted by on 10th June 2011

Categories: Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

Of all the vetting performed by parliament on Tuesday, the most interesting was the vetting of the Public Service Commission nominee for Director of Public Prosecutions Keriako Tobiko. Why? The Judicial Service Commission’s process of choosing, vetting and nominating of candidates for Chief Justice and Deputy Chief Justice was a pretty open process and all the interviews were publicly televised.  The process through which Public Service Commission chose and nominated Mr. Keriako Tobiko was not, for the public who were shut out of this seemed like the an initial first vetting of candidate. The almost three hour interview was intense, while most of the parliamentary vetting panel seemed to acknowledge Mr. Tobiko as being highly qualified for the post both academically and in terms of intellect, they raised serious questions about the record of failed prosecutions carried out by the department of public prosecutions under his watch as well as questions that went to the heart of the nominees character and integrity.

MP Ababu Namwamba raised issue with the process through which Mr. Tobiko was nominated as well as sections public’s perception of the nominee as a ‘systems man’ and ‘master of inertia’ particularly when it came to prosecuting large scale corruption against cases against Kenya’s political elite. Several members of the panel brought up the recent acquittal of Eldoret North MP William Ruto in which the prosecution failed to call a pertinent witness as an example. MP John Mbadi asked targeted questions about the number of prominent persons that the Mr. Tobiko had successfully prosecuted over corruption allegations. He also queried the nominee’s appropriateness for the job considering that the National Assembly had adopted a report that had mentioned the nominee adversely in connection with the Anglo-leasing case.   Other issues that came up were the nominees conduct during his tenure at Constitution of Kenya Review Commission (CKRC), the allegation by suspended Local Government MP Sammy Kirui that Mr. Tobiko attempted to solicit from him a bribe of Kshs. 5million. MP Millie Odhiambo raised issues of conflict of interest and abuse of office.

While the DPP nominee admitted the sub-par success rate with regards to prosecutions, he valiantly defended him against allegations that went to his character. However given the extremely powerful position of the DDP as envisioned by Article 157 of the new constitution do you think issues that came up during the parliamentary vetting of Mr. Tobiko raised serious questions about his suitability for the job?

On the Kenya govt ICC case

Posted by on 7th June 2011

Categories: ICC Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

On Monday the pre-trial chamber ruled unanimously that the government had not embarked on any investigations and dismissed the Kenyan Government’s case. Earlier in the year after the expensive failure of shuttle diplomacy, the government made application challenging admissibility of the two Kenya cases at the International Criminal Court. The grounds of challenge were that Kenya is on the path of constitutional and judicial reform and can therefore investigate and prosecute those most culpable for the post election violence.

In evidence of this the government’s application had as annexures:

  • A letter from the Attorney General to the Police Commissioner asking him to investigate and determine the identities of those who masterminded the violence.
  • A list of concluded cases which related to crimes during the post election violence,
  • The promulgation of the new Constitution,
  • The number of Bills that had been enacted by Parliament to reform the judiciary, the police and the Department of Prosecutions.

In my opinion these 4 elements were probably the strongest part of the governments case but also most the problematic. As well as revealing of weakness not only in the claim of ongoing reforms but also to the claim that Kenya is as a result of the reforms ready willing and able to investigate the six ICC suspects.

The letter from the Attorney General to the Police Commissioner ordering him to investigate the crimes was written the day after and the government filed its case. Which makes me wonder about the political will to investigate the masterminds of the election violence considering the crimes took place more than three years. Regarding the list of concluded cases relating to post election violence it would be interesting to see where these have been reported? The Pre-trial Chamber stated that the government ‘failed to provide the Chamber with any information as to the conduct, crimes or incidents for which the suspects are being investigated or questioned’

We did promulgate a new constitution however the implementation has been slow at best and fraught with inter-party wrangles, missed deadlines, and confusion over interpretation. So though the constitution was promulgated given the pace of implementation and the seeming roadblocks and confusion at every stage it will be a while before reforms realised. As far as the number of the Bills of enacted, its amazing that this was a submission to support the fact that Kenya can try the ICC cases considering when only two constitutional bill had been passed at the time of the application.

Of course the AG has already stated Kenya’s intention to appeal the decision, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence, though on the points on which the appeal will hinge are unclear. Either way, the government has five days to launch the appeal.

On the Budget – What should happen under the new constitution

Posted by on 27th May 2011

Categories: Budget Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

The Ministry of Finance and Treasury have been getting a lot of press recently a majority of it
negative.  The latest debacle is the uncertainty over when the budget will be presented before
parliament and the process that it should go through before this happens.

In the same week that Finance Minister Uhuru Kenyatta stated with precision the time and date
of the reading of budget speech for the fiscal year 2011/2012 i.e. 3.00 p.m. 8th of June 2011. The
Parliamentary Budget Committee announced that in making the statement the Minister is not only
acting under the old constitution but is attempting to subvert the new one.

While the old constitution gave the Executive near sole discretion over budget preparation and
expenditure management the new constitution changes the system and structures through which
the budget presented. Under the old constitution the budget was prepared by the Treasury in an opaque
process and then read to public on a designated day.  The new constitution requires that the
Cabinet Secretary submit estimates of the revenue and expenditure of the national government
for the coming financial year to parliament at least two months before the end of each
financial year 221 (1).  The National Assembly then considers the estimates of revenue and
expenditure, a committee of the Assembly then discusses and reviews the estimates and makes
recommendations to parliament, with input from the public 221(4).  The Committee then tables its
report before parliament, which then debates the report and recommendations and decides either
to adopt or reject it.

In effect Article 221 reduces the power of the Treasury and increases the power of parliament
to decide how to spend government funds. However, the constitution also leaves a lot of the
detail to be worked out through implementing legislation and requires the establishment of new
structures for discussion and approval of the budget. So while the new constitution is clear on the form and process of the presentation of the budget in the new dispensation,  it is silent on how and when this new system is to be made operational and
hence the confusion that now exists.

At this point an argument can be made that much of the implementing legislation and structures
required to transition to the new budgetary process are yet to be made. Further the constitution
refers a ‘Cabinet Secretary’ as opposed to a minister this would imply the Article 221 of constitution
would be effected after the first election under the new constitution when Cabinet Secretaries will
be in place.  Over the next 2 weeks it will be interesting how this tension is resolved and what form the
budgetary process will take.  Since the Supreme Court that is supposed to resolve constitutional
issues is yet to be set up, may be the Constitution Implementation  Commission should step in.

Resistance to the JSC nominees

Posted by on 17th May 2011

Categories: Kenya Constitution

Given the low public confidence in the judiciary, a situation that has been on going for a while now, one would imagine a break with the past is not only necessary for reform but also welcome.  The Judicial Service Commission’s nominees for the positions of Chief Justice, Dr. Willy Mutunga, and Deputy Chief Justice, Nancy Baraza, provide just that. Neither has sat on the bench, and their qualifications and record as reformers is exemplary.

Though initially celebrated in the few days since the announcement of the nominations, resistance to the nominees seems to have built and gained momentum at an alarming rate among the some sections of the clergy and political establishment.

The clergy stated its reservations as to the suitability of the nominees on the basis of their values and beliefs. Lawyer Harrison Kinyanjui has moved to court to seeking an order to stop deliberation, debate, confirmation, appointment or recognition of the JSC nominees arguing that the nominations contravene the constitution in process and number of names submitted.

However nowhere in the constitution or the Judicial Service Act 2011 is there the requirement that a specific number of names be forwarded to the principles for consideration. Nor does either preclude the submission of just one nominee for each of the positions.

The constitution simply states that the President shall appoint the Chief Justice in accordance with the recommendation of the Judicial Service Commission, and subject to the approval of the National Assembly, Article 166 (1) (a), no mention of numbers.

Section 166 (3) of the constitution does state that the Chief Justice shall be appointed from among persons who that have the requisite qualifications. Article 172 (1) (a) of the constitution states that one of the functions of the JSC is to recommend to the President persons for appointment. Though both provisions speak in the plural when they refer persons recommended by the JSC for appointment neither of sections rule out the recommendation of just one nominee for each of the positions, or require that the JSC forward a certain number of names.

With regards to the process and the allegation of lack transparency on the process of the selection of nominees Section 14 of the First Schedule of the Judicial Service Act 2011 outlines the procedure and criteria used by the JSC in choosing the nominees.

The process is that the commission deliberates and nominates that most qualified applicants taking into account gender, regional, ethnic diversity, 14 (1). Each member votes according to his/her personal assessment of each of the applicants’ qualifications 14 (2). Voting is complete after all the applicants have been considered and all members of the selection panel have voted, 14 (3). In order to be nominated an applicant shall be required to receive three or more affirmative votes 14 (5). It is plausible that this process could have yielded just one nominee for each of the positions.

The opposition and reservation towards the nominees seems to be based on peripheral tenuous arguments and not on the requirements of the law or merit, competence, qualifications or the ability of the nominees to reform the judiciary.

It is worth also noting, as the names have already been submitted to the principals that Section 16 of the First Schedule of the Judicial Service Act 2011, which deals with requests for additional names or reconsideration of nominees, is very specific in stating that the commission shall not reconsider its nominees after the names are submitted to the President except in cases of death incapacity or withdrawal of nominee (s).

Thoughts on the Chief Justice Interviews

Posted by on 11th May 2011

Categories: Kenya Constitution

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

8 out of the 10 applicants for Chief Justice, most of whom are sitting judges of the Court
of Appeal have been interviewed; Alnashir Visram, Lee Mutonga, Samuel Bosire, Riaga
Omollo, John Nyamu, Kiplana Rawal, Paul Kihara and Dr. Willy Mutunga,

The ongoing public interviewing of candidates for the position of Chief Justice represents
several firsts for the country in terms of competitive applications for the position as well as
the public scrutiny in the selection of a Chief Justice.

Under the old constitution the president selected and appointed the Chief Justice
in a closed door process with the public having little or no information on the selection
procedure.  In this new dispensation the interviews for the next Chief Justice are being televised
live, giving any Kenyan with a television a metaphorical front row seat at each of the
candidates’ interviews.

Its been interesting to see candidates responses to questions on temperament, former
judgements, contact with litigants particularly powerful ones, past actions, wealth,
academic and professional records.

So far the interviews elicit two varying views. Some have described the interviews as
intimidating, humiliating and unfair to the candidates, while others have hailed the public
interview process as one that was way overdue.

The process has been rigorous and rightfully so. The Chief Justice, the highest ranking
member of judiciary and its head, will be in charge of reforming an institution in which
many Kenyans lost faith. No mean feat in country where most feel justice is not expedient
or is only for the powerful or rich.  A judiciary with little popular legitimacy is spells trouble not only in terms of delivery
of justice day to day, but also in times of national crises; After the disputed presidential
elections in 2007 neither side had enough faith in the judiciary to seek judicial
intervention to decide the issue and currently less than half of the population trust the
judiciary to try the post election violence suspects.

Changing the public perception of the judiciary’s ability to deliver justice will require
a person who not only has the necessary technical expertise, but one who has expert
leadership and administrative skills as well as the highest levels of integrity. In a system
where there has been very little scrutiny of judges and where their conduct or decisions
are rarely questioned for fear of reprisal. Finding such a person can only be achieved
through a thorough and painstaking process in which there are bound to be difficult and
sometimes embarrassing questions about past actions, and judgements etc.

In my opinion the public interview process is good for accountability, transparency and
encouraging public participation in the search for the next Chief Justice and will certainly
go some way in restoring the publics confidence in the judiciary. In fact more holders of
high-ranking public offices should go through a similar process.

Are you following the interviews? What do you think?

Cabinet Reshuffle?

Posted by on 7th May 2011

Categories: 2012 Elections Kenya Constitution

The issue of the size of the country’s cabinet is a not a new one, and has drawn
protest from taxpayers since Grand coalition government established the 42
member cabinet in 2008. Kenya’s cabinet of the 40 ministers (less 3, the minister
for higher education, minister for industrialisation and minister for foreign affairs
are currently under suspension) is rivalled only by the cabinets of Pakistan that
has 55 ministers and Sri Lanka, which has 53.

Rumours about an impending cabinet shuffle have been rife many have hinted
that this could be a chance for the President and the Prime Ministers to cut down
Kenya’s bloated cabinet. However the Prime Minister’s public reluctance to cut
down the size of cabinet was evident in his speech in parliament in which he
stated that a smaller cabinet would not necessarily reduce the costs, tax paying
citizens may argue differently.

At its current size (salaries of 40 ministers, 80 assistant ministers + benefits,
allowances not to forgetting salaries and benefits of the President, the Vice
President and the Attorney General) the Cabinet costs the taxpayers upwards of
2 billion shilling per year.

Political analysts have linked the impending shuffle to 2012 politics and the
creation of new alliances and the maintenance of old ones, rather than a desire
to reduce the size of cabinet or the burden of cost of such a large cabinet to
Kenyans.  If there a change in cabinet in the offing it would be worth while for the two
principals to keep the spirit of constitution which limits the Cabinet to a minimum
of 14 and a maximum of 22.

Technically the new style cabinet as envisioned by the constitution (i.e. a lean
cabinet, in which positions are no longer used to attract political support or
reward cronyism, as cabinet secretaries (ministers) are no longer drawn from
members of parliament and members will be required to relinquish their seats if
appointed to cabinet positions and in which appointment is no longer exclusively
done by the president) does not actually start till after the next election in 2012 its
never too early to start implementation especially with regard to numbers.

Salaries and Remuneration Bill

Posted by on 18th April 2011

Categories: Kenya Constitution Members of Parliament

By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

There’s a joke that goes that goes the only time Parliament is ever full is when the
members are voting on their salaries. Whether or not the joke has any basis in truth it may
soon lose its relevance.

Section 230(1) of the constitution creates a Salaries and Remuneration Commission.
Section 25 of the transitional and consequential clauses in 6th Schedule of Constitution
requires that the Commission be constituted within nine months of the constitution’s
promulgation i.e. May 27th 2011.

So far the Salaries and Remuneration Bill, that establishes the Commission has been
drafted and is ready for debate by the National Assembly if the Bill sails through
parliament in the next one and half months, the Salaries and Remuneration Commission
may be the first constitutional commission established with the mandated deadline.

The Commission will be responsible for determining the salaries of the President,
Cabinet Ministers, members of parliament, members of county assemblies, county
governors, members of commissions and principal secretaries. The commission will
also establish the salaries of judges and magistrates, which will prevent executive
or Parliament from undermining judges by threatening to reduce their salaries. The
Commission will also give guidance on the remuneration of other public officials and
employees in all government departments.

Part of the Commission’s functions will be to inquire into and determine the salaries and
remuneration to be paid out of public funds to State officers and other public officers as
well as keep under review all matters relating to the salaries and remuneration of public
officers. The Commission will also be required to gives periodical reports of its activities
as well as statistical information relevant to its functions.  Hopefully this will be the
beginning of increased transparency and accountability in with regards to salaries and
remuneration paid out of taxpayers’ money.

Though the Bill has not been yet enacted, nor the Commission constituted both represent
answers to the public’s demand for an independent institution that is responsible for
determining salaries of State officers; particularly for MPs who have
previously been in charge determining their own salaries and increments.

NCIC report on ethnicity in the Civil Service

Posted by on 9th April 2011

Categories: Kenya Constitution News

By Mzalendo Contributor  Moreen Majiwa (@mmajiwa)


The statistics in the latest report by the National Cohesion and Integration Commission on ethnicity in the civil services are alarming.  According to the newspaper reports on the survey:

‘The Kikuyu, Kalenjin, Luhya, Kamba and Luo account for 70% of all service jobs. Of all government workers 22.3% are Kikuyu, 16.7% are Kalenjin, 11.3% are Luyha, 9.7% are Kamba, 9.0% are Luo and 5.8% are Kisii, 20 tribes have less than 1% representation in the civil service.”  The report further breaks down the ethnic composition across government ministries and departments.

I wonder what a survey of the private sector would like? Tribalism is so pervasive that it may warrant specific legislation and statutes dedicated to it. The National Cohesion and Integration Act is one such legislation but to be quite honest despite reports from the National Cohesion and Integration Commission, there has been little implementation or enforcement of its provisions.

Though the Commission’s report on ethnicity in the civil service is already drawing criticism, the report is useful as it findings raise questions about, equal opportunities, openness and transparency in recruitment practices, competency, affirmative action policies for marginalised communities, the need for merit based appointments and recruitments.  After all the constitution does require fair competition and merit as the basis of appointments and promotions in the civil service (Article 232 (1) (g). It also requires representation of Kenya’s diverse communities (Article 232 (1) (h), and provision of equal opportunities for appointment, training and advancement, at all levels of the public service, of men and women, members of all ethnic groups and persons with disabilities.

Now that the issue has been flagged and made public it is crucial that the information be used in a constructive and not divisive manner.

And in other news…

Director of Public Prosecutions update: The government has received now 30 applications, for the previously unapplied for, position of Director of Public Prosecutions, 5 of the applicants are women it will interesting to watch and see if a woman get picked for any of the three judicial positions, Chief Justice, DPP, or AG.  Surprisingly or not, presidential nominee for the position of DDP Kioko Kilokumi is not among the 30 applicants.

Scorecard on Constitutional Implementation

Posted by on 7th April 2011

Categories: 2012 Elections Kenya Constitution

By Mzalendo Contributor  – Moreen Majiwa

It’s 6  months from the day that the nation voted for the new constitution i.e. August 4th 2010. It seems an apt time to review the overall progress made on the constitution’s implementation and see how we as a country are getting on with the
business of turning the constitutional provisions into a reality.

So far the National Assembly has managed to establish three constitutional commissions
required by the constitution:

  • The Constitutional Implementation Commission
  • The Judicial Service Commission and
  • The Revenue Allocation Commission

However there is a caveat, the Constitutional Implementation Commission and the Revenue Allocation were both established six months later then scheduled. The Judicial Service Commission is yet to be fully constituted seeing as the yet to be appointed Chief Justice is an integral part of the commission.

On Tuesday the cabinet approved the Independent Electoral and Boundaries Bill – the bill establishes the new electoral and boundaries body responsible for elections and for demarcating constituency and ward boundaries. Though it is worth noting that
the country has been without a boundaries commission since the interim independent boundaries commission was disbanded late last year. The Cabinet also approved the Salaries and Remuneration Commission Bill ,both bills will now be forwarded to
parliament for debate.

The deadline for filling in the position of the Chief Justice was the end of February, this year i.e. six months after the date the constitution came into force. The deadline has passed, however the process of recruiting for position is ongoing.

As far as passing bills required to operationalise the constitution, the National Assemblyhas passed 2 out of the out the 16 bills required the Judicial Service Bill and the Vetting of Magistrates Bill, which are now waiting Presidential assent.

Recently the Constitution Implementation Commission head, Charles Nyachae, expressed concern over the fact that parliament is yet to discuss a single Bill for the implementation since the President opened a special session on 22nd March 2011.

Of course implementation of the constitution is no easy task – 6 months on how would score parliament on implementation of the constitution, pass, average or fail?

Posted by on 1st April 2011

Categories: Kenya Constitution

By Moreen Majiwa – Mzalendo Contributor

21 days after the deadline for the appointment of the Chief Justice, the Judicial Service Commission is finally getting down to the task of short-listing candidates for the position.

Despite the delays, missed deadlines, and the controversy surrounding the nominations/appointments to the position of Chief Justice the moment remains historic as never in the country’s history has the position for Chief Justice or Deputy Chief Justice been filled through a competitive process.

According to the Interim Chairperson of the Judicial Service Commission Professor Christine Mango the commission has received 24 applications for the position of Chief Justice and Deputy Chief Justice. The commission will be meeting next week to review the applications and set a date for the interviews.

Apart from the constitutional and statutory qualifications of the candidates i.e. “a high moral character, integrity and impartiality,” the requisite legal qualification and 15 years experience.  As well as demonstrated high degree of professional competence, communication skills, fairness, good temperament, making good judgements in both legal and life experience and commitment to public and community service.

There are few more interesting things to look out for in the candidates, the first being financial propriety. The advertisement for the positions of Chief Justice and their deputy required that the applicants make a declaration of income and liabilities at the time of making the application and that those who are in Government in employment i.e. applicants who are already part of the judiciary, attach copies of returns of declaration of income and liabilities and for those in private practice attach income tax returns for the last three years.’

The advertisement for the position further required that the bio data submitted by candidates as part of the application process reveal any involvement in political activity including any financial contribution to any political party.

These requirements are there to ensure that the persons who get these jobs are beyond reproach and seen to be so. The requirements will ensure judicial independence.

After the selection process those shortlisted will be required to appear for an oral interview, there’s no word on whether or not the oral part of the interview will be public, we hope so?

In the meantime the government has announced that no applications have been received for the position of the Director of Public Prosecutions…one wonders why that is?