mzalendo :: Eye On Kenyan Parliament

• Infographic: Who Does What Under New Constitution

  Posted: February 28, 2011, 1:51 am by admin

  
  
  

  Trying to figure out who is supposed to do what as far as government functions under the new Constitution?

  This nice infographic might help.

• On Censure Motions

  Posted: February 27, 2011, 12:28 am by admin

  
  
  

  By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

  Budalang’i MP and chairperson of Parliament’s Justice & Legal Affairs
  Committees, Ababu Nwambamba, seems to be the latest in number of
  government officials facing threats of removal from office or censure motions.

  8 MPs have signed a petition giving three days notice for the removal of MP
  Ababu Nwambamba as chair of the justice & legal affairs committee under
  Standing Order 175, which permits a vote of no confidence against the
  leadership of a committee by a majority of its members. The calls for removal of
  office came after the Justice and Legal Affairs committee submitted reports on
  the validity of judicial nominations.

  I say latest because recently there has been an alarming number threat of
  censure motions or calls for removal office – 4 in the last month alone.

  This week some MPs called for the early removal of the Attorney General Amos
  Wako from office, his term ends 27th August 2011. The call for his removal came
  after his statement in court that the nominations for AG, DDP, CJ, and Budget
  Controller were improper.

  The MPs calling for the AG’s removal feel that his statement over the impropriety
  of judicial nominations undermined both the president and the ‘governments’
  position on the nominations. They have also accused him of failing to properly
  defend the government in a case brought by women’s organisations on the
  constitutionality of the nominations.

  Last week the Speaker of the of National Assembly, Kenneth Marende also faced
  threats of censure when the Vice President and Head of Government business
  and a section of MPs threatened move a motion censuring the Speaker following
  his ruling that nominations were unconstitutional.

  And earlier this month 14 legislators threatened to lead a censure a motion
  against the Prime Minister, following the row with the President over the
  nominations. ‘If he continues like this we are going to move a motion of no
  confidence against him’ stated Kaloeni MP Kambi Kazumgu.

  The basis of all these motions seem to be having a dissenting opinion, rather
  than an actual inability to perform ones duty, or acts of gross conduct. Furthermore,
  these motions and calls for removal from office seem surprising given that no
  such or calls motions have been brought to censure parliamentarians that are
  being investigated for drug trafficking, or ones that have been mentioned in
  connection with crimes against humanity in the international criminal court case,
  or ones who have ongoing cases criminal cases and whose personal interests
  may actually be conflict national interests.

  When did disagreement become a reason for removal from office and what is the
  impact of such vexation censure motions on independent thought?

• Where is the money for public education going?

  Posted: February 24, 2011, 2:18 pm by admin

  
  
  

  By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

  The topic of education has been receiving a lot of play in media recently.  Whether or not to reform the 8.4.4 system?  The introduction quota system for entry into national secondary schools, whether or not to scrap the parallel course at public universities, are all part of the debate.  Today’s Standard newspaper has an interesting story on Jua Kali National Schools.  The story is about the Ministry of Education’s plan to upgrade about 100 provincial secondary schools to national schools to ensure that more students graduating for primary school have access to a national school education. As the article rightly points out, a change in the status of a school from provincial to national adds little value if nothing is done to improve the schools infrastructure and/or the quality of the education given in the schools, and is unlikely to equip the children going to these newly ‘nationalised’ schools with the knowledge and skills to advance themselves.

  The low quality of public education is surprising given the amount of money that goes into the system. The National Taxpayers Association revealed just how much taxpayers money goes into the education sector, about Kshs 6.6 billion annually. Frankly for that amount I would think the public education system would be in better shape both quality and infrastructure-wise particularly in the rural areas. Did you know every year, Kshs. 30 million is set aside for each constituency to construct a centre of excellence? And that each constituency is expected to equip two primary schools with water harvesting facilities costing Sh. 1.47 million? And that in addition to CDF, the government allocates millions of shillings to every constituency for education through the Economic Stimulus Project. I live in Nairobi, but when I look at the school in my “shagz”, Karachounyo Constituency, I’m hard pressed to believe that the constituency receives even Kshs. 1 million let alone Kshs. 30 million every year for education. Further neither the primary nor the secondary school could be termed centres of excellence.

  So my question is where is the money going?

• Task Force on Devolved Government

  Posted: February 24, 2011, 4:23 am by admin

  
  
  

  Have an opinion on how counties should be run?  The Task Force on Devolved Government has commenced sittings and you can find their details here.

  You can also submit your views over email: devolvedgovt-at-gmail.com, OR
  devolvedgovt-at-localgovernment.go.ke

• Public Notice on Kiplagat Tribunal

  Posted: February 22, 2011, 5:24 pm by admin

  
  
  

  Please see this document for details.

• Checks and Balances in Nominations and Appointments

  Posted: February 11, 2011, 7:17 pm by admin

  
  
  

  By Moreen Majiwa (@mmajiwa)

  It has been a little over two weeks since the announcement of the nominees for Attorney General, Director of Public Prosecutions, Chief Justice and Budget Controller. Since then a lot of ‘he said this, he said that, I didn’t say, I didn’t say’ has ensued been between the camps of the two principles. However despite the noise crucial progress has been made, progress that will hopefully chart the path forward for future nominations and appointments.

  The first is the progressive ruling by High Court Justice Daniel Musinga made last week. The High Court judge ruled that it would be unconstitutional for the State to carry on with the process of approving and eventually appointing the nominees for Chief Justice, Attorney General, Director of Public Prosecutions and Budget Controller based on nominations of the individuals made by the President on 28
  January 2011.

  The Judge found that the nominations were unconstitutional because  all four nominees were male and  no reasonable explanation had been given as to why there were no women among the four nominees.

  He therefore found the nominations in violation of Article 27 (4) & (5) of the constitution which prohibits discrimination of grounds of sex, Article 27 (3) which guarantees equal treatment to both men and women, and Article 129 which requires executive powers be exercised in accordance with the constitution.

  The ruling will hopefully ensure that consideration of gender equality is an integral part of future nominations and appointments to all levels of public office.

  A further point of progress is the ongoing interrogation of the use of executive powers and the manner in which the powers are exercised in nomination and appointment processes.

  Where as previously executive decisions, particularly those made by the President, were expected to be accepted without question. Since the controversial nominations a precedent is emerging were relevant parliamentary committees inquire into the process of decision making by the executive.

  The on-going interrogation of the nomination process by the parliamentary committees allows the public to scrutinize the interests and motives that drove nomination process, and examine the accountability of the executive and constitutionality of its decisions.

  Hopefully this will result in a situation where knowing that the exercise of the executive powers will and can be interrogated, and are subject to the checks of parliament will cause the executive to abide by the rule of law in the exercise of its powers.

  And a reminder more than the ever, that a key part of entrenching the new constitution is constitution building.

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

  Posted: February 9, 2011, 3:59 pm by admin

  
  
  

  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?

• He Said, He Said…Who is Right on the Judicial Nominations?

  Posted: February 2, 2011, 8:40 pm by admin

  
  
  

  By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)
  

  Yesterday the impasse between the President and the Prime Minister on nominations for Attorney General, Chief Justice, and Director of Public Prosecution, came to ahead in Parliament and on TV for all to see.

  The issue – whether there had been consultations between the two Principals over the proposed nominees. While it’s not the only controversial issue surrounding the nominations, whether or not consultations took place is crucial to the determination of the constitutionality of the nominations made for the positions Chief Justice, Director of Public Prosecutions and the Attorney General.

  Section 24 (2) and 29 (2) of the Sixth Schedule are both clear on the topic of consultation.

  Section 24  (2) ‘a new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.’

  Section 29 (2) ‘Unless this Schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, ‘the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister’

  Until yesterday the Prime Minister had maintained that no consultations were had between the President and himself. So it was surprising when the Vice President and Head of Government Business stood up and proceeded to read out minutes of what seemed to be a lengthy consultation between the President and Prime Minister on the issue of the judicial nominees.

  While the Prime Minister conceded that the meeting between took place between President and himself. The Prime Minister stuck to the position that what took place between the President and himself did not constitute a consultation on nominees. He insisted that  it was not the main purpose of the meeting and no conclusion was reached as to whom the nominees should be. Furthermore,  he suggested that further consultations be held before the names of the nominees were forwarded to government.

  Mzalendo has obtained the full minutes read by the Vice President before Parliament do they constitute a full consultation? You decide…the minutes of the consultation can be downloaded here (543 KB PDF)

• Public Campaign in Support of ICC

  Posted: February 2, 2011, 1:56 pm by admin

  
  
  

  There are a number of events scheduled in the next few days to display Kenyans’ disgust with the impunity of our politicians.  See below for details:

  1. A Peaceful Procession from Freedom Corner to Parliament WHEN: Thursday February 3, 2011 from 12:00 pm WHO:  Kenyans from all occupations are called upon to participate MEETING POINT: Freedom Corner.  This is to protest the continued and blatant acts of impunity by our leaders. This has been clearly demonstrated by the ongoing political actions to scuttle the ICC process through a motion passed in parliament to withdraw from the Rome Statute; misuse of public funds in lobbying African states to support the postponement of the ICC process and undertaking to pay legal fees for the Hague suspects; disregard to the rule of law and the Constitution.

  2. MOMBASA KATIBA YETU, MAISHA YETU PUBLIC FORUM ON SATURDAY, FEB 5th Muhuri, CJPC Mombasa and Haki Yetu have planned a Katiba Yetu, Maisha Yetu public forum to be held on Saturday February 5 in Mombasa. Prof Ghai, Catholic Archbishop Boniface Lele, ACK Bishop KALU, Father Dolan, members of the Council of IMAMs and CICC & other coastal clerics will be signing up for the YES to ICC Now, No Deferral’ campaign on the day. They will also follow up with region-wide door to door visits, as they work towards their target of at least 50,000 signatures.

  3. NAKURU, NAIROBI AND NYERI DISCUSSION FORUMS

  Stakeholder discussion forums will be held in Nakuru (February 8 – 9), Nairobi (February11 – 12) and Nyeri (February 18). Candid conversations will be held on the effects of ICC, as well as the importance of this campaign. Signatures will be collected, and signature collection booklets handed out to volunteers to collect additional signatures around where they are. Another 4-6 forums are being arranged for other locations, and we will keep you updated

  4. Diaspora:  BONIFACE MWANGI (PICHA MTAANI) ‘NEVER AGAIN’ PHOTOGRAPHIC EXHIBITION IN USA

  • Boniface Mwangi will be taking the ‘Never Again’ collection of his work to Rutgers University (New Brunswick, New Jersey) at the Center for African Studies (CAS) from February 14-28, 2011. ‘Never Again’ has already been exhibited in eight towns in Kenya, and been viewed by over 500,000 people in the country. The collection of photographs captures tragic moments of the PEV.
  • He will also be engaging with scholars, students and the American public about the subject of the exhibition, as well as have to speakers on the topic of ‘violence & healing’. (I.e Ngugi Wa Thiongo & Gabrielle Swab-Chancellor of Comparative Literature at University of California).
  • He will be collecting signatures for the ‘YES to ICC Now, No Deferral’ campaign. His exhibition is geared at educating Kenyans in the diaspora about what the PEV was like, as well as sensitizing them to be vigilant/concerned about how every dollar they contribute towards political causes in Kenya, is used.
  • The exhibition might move on to New York, DC & Chicago after Rutgers, but he will keep us updated.

  5. COLLECTION STRUCTURE: Starting Monday  February 7,  2011 Nobel Laurette Wangari Mathai’s Green Belt Movement will set up a Peace Tent at Kencom Bus Stop in Nairobi’s CBD, where people can sign up in support of the campaign, and also collect material on the ICC. This tent will over the next 3 weeks move between Kencom and Railway Bus-stop, and maybe even all the way to Machakos Bus-stop. GBM will also have additional tents moving into various estates in Nairobi. GBM also has 36 EOs who work for the across the country, and they will distribute bound signature collection booklets to them in batches of 2,000. They also have a presence in one way or another in 174 constituencies, and they will mobilize this network as well, to sign up on this campaign

  
  

• Judiciary Nominations

  Posted: February 1, 2011, 5:38 pm by admin

  
  
  

  By Mzalendo Contributor – Moreen Majiwa (@mmajiwa)

  The announcement of nominations of the Chief Justice, the Attorney General, and the Director of Public Prosecutions (DPP) took people by surprise.

  Since the nominations there have been mixed messages about the constitutionality of the nominations one faction of leaders say that the nominations were in order and the other that the nominations are unconstitutional.

  The constitution is quite clear with regard to nomination of the Attorney General (AG). Article 132 (2) (b) and Article 156 (2) state the AG shall be nominated by the President and with the approval of the National Assembly, appointed by the President. So the nomination so far would appear constitutional, were it not for the transitional and consequential clauses in Schedule 6.

  With regard to the nomination of the Director of Public Prosecutions the constitution states the DPP shall be nominated and with the approval of the National Assembly, appointed by the President, Article 157 (2). The clause is vague as to who does the nominations so that validity of nomination is up for debate. From the construction of the clause one can assume the President is the one to nominate. However if this was intention why isn’t clearly stated as with the same manner with the process for nomination of AG?

  The most contentious nomination of the three is that of the Chief Justice (CJ). Article 166 (1) (a) clearly states that the President shall appoint the CJ in accordance with the recommendation of the Judicial Service Commission and subject to approval of the National Assembly. The Judicial Service Commission did not make the recommendation as required by the constitution and they have clearly stated so. Therefore the nomination of the CJ is unconstitutional.

  In addition for appointment of the Chief Justice consultation between the two Principals is specifically provided for. Section 24  (2) Schedule 6 states ‘a new Chief Justice shall be appointed by the President, subject to the National Accord and Reconciliation Act, and after consultation with the Prime Minister and with the approval of the National Assembly.’  Meaningful consultation can only take place at the stage of nomination. The president cannot nominate without consulting, wait for the vetting to take place and then consult just before the appointment.

  Similarly the nominations for AG and DPP require that there be consultation between the President and the Prime Minister. Section 29 (2) of the Sixth Schedule states that when the President is making an appointment that requires approval of the National Assembly ‘the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister’ (until the after the first elections under the constitution).  The reasonable sequence would appear to be that the President and the Prime Minister consult on suitable persons agree and forward the name National Assembly for approval, and only after approval can the President appoint the person.

  Another pressing issue  is that out of the four nominations, including the Budget Controller, none is a woman. This flies in the face of gender equality and equity and is tantamount to discrimination against women that contravenes Article 27 (4) of the constitution that prohibits discrimination on the grounds of sex.

  As the drama around the nominations play out in the press, it does appear that the nominations, at minimum, are in breach national values and principles of governance outlined in Article 10 of the constitution i.e. the rule of law, participation of people, equality and non-discrimination, good governance, transparency and accountability.

Blah blah blah

Fish cakes

Alas a fish cake.

Yet more fish cakes

Guess what ... yeah ... fish cakes.

The end of the fish cakes