Tuesday, 4 July 2017

OF CHICKENGATE, AMBULANCES AND THE EMPEROR'S NEW SUIT...

So, here's the thing. In 2015, a British court successfully prosecuted Smith & Ouzman Ltd. and two of its directors for bribing our election officials to obtain contracts for printing of election materials. The two directors were jailed and the company was fined.
Ahead of the sentencing in Britain we, Kenyans for Peace with Truth and Justice (KPTJ), wrote to the Serious Fraud Office providing some context with regard to the serious damage done to any young democracy when its electoral institutions are undermined through this kind of corruption. We also argued that any fines levied on the company should be sent to Kenya as the Kenyan people were the ultimate victims of this crime.
Ahead of the confiscation hearing at which the company's fine was to be assessed, we wrote to the AG asking him to apply to be enjoined in the proceedings to canvass Kenya's public interest and to specifically make the case for the money to be sent back home to Kenya. He ignored our letter. We also wrote to the IEBC seeking to know what steps it was taking to recover the money that had been stolen from it through inflated prices for the election materials printed by Smith & Ouzman, but again we did not get a response.
A few days before the confiscation hearing, we travelled to London and met with the SFO to further argue our case for restitution. In all our letters and meetings, we insisted that the money should be given to a cause that would benefit the Kenyan people and not merely returned to IEBC where it might be stolen again.
In the meantime, the Kenyan government would not prosecute the officials implicated in the Chickengate scandal, notably the then IEBC Chair Issack Hassan and the then Energy Secretary Davis Chirchir. Instead, it maintained a studious silence even as the UK justice system did its work with speed and alacrity. Only rather belatedly was former IEBC CEO Oswago charged.
Fast-forward to yesterday and the President is reported and pictured heartily launching ambulances bought with the proceeds of the Chickengate scandal without any sense of irony. This is especially telling given that the alleged masterminds of the Chickengate scandal continue to walk free and billions of shillings have since been reported stolen from the health budget with members of the President's own family having been adversely mentioned.
But the media reports of the President launching the ambulances dare not point out that our emperor has no clothes.

Friday, 23 June 2017

NJONJO MUE'S REMARKS AT MEMORIAL MASS MARKING ONE YEAR SINCE THE MURDER OF WILLY KIMANI, JOSEPHAT MWENDA AND JOSEPH MURURI

Father Daniel, The families of Willie Kimani, Josephat Mwenda and Joseph Muiruri, friends, colleagues, ladies and gentlemen.

I am honoured to stand before you and make these brief remarks as we mark one year since the tragic murder of Willy, Josephat and Joseph. I do so in three different capacities.

First, I speak to you on behalf of the Kenyan Section of the International Commission of Jurists (ICJ-K) whose Council I am privileged to chair. Last December, during the International Human Rights Day, the 600 members of ICJ-K elected Willy Kimani posthumously as the Jurist of the Year for his immense contribution to justice, human rights and the rule of law. Today I come here on behalf of the members, Council and Secretariat of ICJ-K to join friends and family in honouring the memory and celebrating the legacy of Willy, Josephat and Joseph, three soldiers for justice who chose bravery over safety, who marched in front when comfort was in the midst of ranks, who defied the logic of power that pretends that might makes right, and who stood up for justice and paid the ultimate price.

Second, I speak to you as an ordinary Kenyan addressing other ordinary Kenyans and friends of Kenya. The brutal murder of Willy, Josephat and Joseph, while tragic, was not unique. It is a just the tip of a very big iceberg. Its importance lay in calling national and international attention to the daily reality that confronts young men in the slums and informal settlements who are shot in cold blood and with impunity in a reign of terror declared by the police. Over the last five years, thousands of young men have been shot dead by the police without the benefit of due process by simply being declared to be criminals. But their biggest crime appears to be that they are all poor.

I am here to join in the chorus of rising voices that are rising all over our country to condemn the systematic murder by the police of our fellow citizens. We are all here to demonstrate that we care about these young people and the families that they leave behind.

The 16th Century English poet and clergyman John Donne once wrote in a poem, “Any man’s death diminishes me because I am involved in mankind. So, never send to know for whom the death tolls. It tolls for thee.” In like manner, any Kenyan’s death diminishes you and me. There have been many bells tolling to announce the funerals of the young men murdered by the police in cold blood. But we shall no longer send to know for whom the bell tolls in Mathare, Korogocho and Dandora, for we know that it tolls for us in Kilimani, Kileleshwa and Karen. 

Any Kenyan’s death at the hands of the police not only diminishes each one of us, it also implicates you and me, for it is carried out in our name and using weapons paid for by our taxes. And so we are here to join the chorus of rising voices to take a stand and declare “Not in our name! Not any more!” We are here to demand that the police do their work according to the law without abusing human rights in our name.

Third, I speak to you as a Christian, a member of the Church of Christ in Kenya. And in that capacity, I stand here to repent to God and to the families of the victims of these police killings for the Church’s inaction in the face of this moral crisis of our time.

Martin Luther King Jr. once proclaimed that our lives begin to end the day we become silent about things that matter.

What could matter more than the plight of a widow, already victimised by the violence of poverty and life in the slums, losing her only son in a hail of police bullets?

What could matter more that the tragic story of a young father being cruelly taken away from his little children and young widow thereby condemning them to a life of destitution?

What could matter more than the story of a deaf teenager caught rummaging for something to sell at the Dandora dumpsite on 20th April 2017? He could not here when the police called out to him and they shot him in cold blood and declared him a criminal.

What could matter more that the story of Ibrahim Mohammed and his cousin Lemin Abdalla, both 14 year old teenagers, who left their homes to play football and never returned to their mothers?

What could matter more that the fact that a young man caught with a gun in Karen is accorded the benefit of a full trial, while a young man found eating chips in Mathare is shot in cold blood by the police in unclear circumstances.

And what could matter more that the fact that the citizenry and church members have become so desensitized that they have become cheerleaders to this trigger-happy police force that has appointed itself the judge, jury and executioner, killing our young people merely because “they deserve to die.”

Over the last three weeks, NGO’s have supported these communities in holding community dialogues to give the mothers, brothers and sisters of these young men a platform to express their agony and have stood in solidarity with them because they recognise that our lives begin to end the day we become silent about things that matter.

And yet, the Church has largely remained eloquent in its silence, conspicuous in its absence and even distinguished in its indifference.

Jesus paid the ultimate price for our salvation and our salvation was complete at the cross of Calvary when he declared with his dying breath that it was finished. But he left us, his Church, behind to do the work of justice. To go to the places where the fabric of shalom has been raptured and there to be his agents in the ministry of healing. We therefore cannot afford to remain silent and look the other way when God’s children are being exterminated like cockroaches.

The Church must not only weep with those who weep and bury the victims in private, it must take a stand and speak out in public against this injustice of extra-judicial killings. It must also develop and teach an empowering theology of humane policing that requires our police service to secure our country without abusing our rights.

As individual Christians, in addition to raising our voices in condemnation of this injustice, we must find the moral courage to join the sweat of our brow to the tears of the bereaved and the blood of the slain in the hope that they will together become the seeds of a new Kenya where justice will truly be our shield and defender. Only then can we assure ourselves and future generations that Willy Kimani, Josephat Mwenda and Joseph Muiruri did not die in vain.


I thank you.

Consolata Shrine, Nairobi.
23 June 2017. 

Monday, 15 May 2017

Motion without movement: Kenya's armchair cooperation with the International Criminal Court

Here are some of the highlights of my presentation later today at the Abidjan conference on international criminal justice and the fight against impunity in Africa. The paper is titled: 'Motion without movement: the theory and practice of Kenya's armchair cooperation with the ICC and lessons for Cote D'Ivoire'.
1. Kenya ratified the Rome Statute on 15th March 2005 and became a Member State on 1st June 2005.
2. Kenya domesticated the RS through the International Crimes Act on 1st January 2009. The ICA is defined as 'an Act of Parliament for the punishment of certain international crimes, namely genocide, crimes against humanity and war crimes, and to enable Kenya to cooperate with the ICC in the performance of its functions'.
3. Kenya's obligations under the RS are further solidified by Article 2(6) of the Constitution which provides that all treaties and conventions ratified by Kenya shall form part of the laws of Kenya.
4. The obligation to cooperate with the ICC, therefore, has three sources: The Rome Statute, the Constitution, and the ICA.
5. The ICA is a comprehensive regime providing for the cooperation of the Kenyan state with the ICC. Its key provisions include a definition of international crimes and offences against the administration of justice; provisions relating to requests for assistance; arrest and surrender of persons to the ICC; domestic provisions for other types of cooperation; enforcement of penalties; and investigations or sittings of the ICC in Kenya.
This is the theory; what is the reality?
Despite all of the above...
1. In August 2010, President Bashir of Sudan, wanted by the ICC on charges of crimes against humanity and genocide, visited Kenya for the inauguration of the new Constitution and was not arrested despite Kenya being under an obligation to arrest and transfer him to the ICC. Later that year, however, he was scheduled to return to Kenya for an IGAD meeting, but the International Commission of Jurists-Kenya, whose board I chair, went to court and successfully obtained a provisional warrant of arrest which directed the minister for the interior to arrest Bashir should he ever set foot in Kenya. The meeting was as a result moved to Addis and Bashir has never visited Kenya again as the warrant remains in force. This is one of the few cases where Kenya's cooperation obligations have been upheld.
 2. In 2010, the then ICC Prosecutor Moreno Ocampo tried to obtain the testimony of Senior police chiefs who had served in PEV hotspots but they went to court and stopped the process in its tracks. The AG dragged his feet in appealing the ruling and the entire process stalled.
3. The Uhuru Kenyatta case was withdrawn in December 2014 with the prosecutor citing interference with witnesses and Kenya's failure to cooperate in the investigation. OTP had requested Uhuru's land, company, telephone and financial records, but the Kenya government's response was equivalent to armchair cooperation where there was much motion without movement.
4. In November 2013, the OTP petitioned the Trial Chamber to make a finding of non-compliance against Kenya for failing to cooperate with the investigation.
5. In December 2014, the Trial Chamber held Kenya to be non-compliant but failed to refer Kenya to the Assembly of State Parties as is expected under the Rome Statute stating that the Chamber had a discretion whether to refer a state or not and that after weighing all consideration, had decided not to refer. The prosecutor appealed the decision.
6. In August 2015, the Appeal Chamber ruled that the Trial Chamber had misdirected itself as to the exercise of its discretion and referred the matter back to the TC for a fresh consideration.
7. In September 2016, the TC issued its final ruling finding that Kenya was non-compliant and referring it to the Assembly of State Parties. The ASP is expected to consider the matter at its annual sitting in New York in November 2017.
8. In the meantime, the ICC has indicted three Kenyans offences related to bribing of witnesses with a view to defeating the course of justice under Article 70 of the Rome Statute. Despite three outstanding arrest warrants against them, they remain at large in Kenya as their cases against transfer to the ICC drag through the courts.
9. The President has gone on record as stating that "no other Kenyan will ever be prosecuted by a foreign court."
10. Throughout the Kenyan cases, the Attorney General has acted more like a defence counsel for the accused persons rather than the defender of the public interest.
11. As opposed to cooperating in good faith with the Court persuant to its obligations under the Rome Statute and its Constitution, Kenya mounted a massive diplomatic and political campaign against the ICC aimed at forcing the withdrawal of the cases against Uhuru Kenyatta and William Ruto.
12. Parliament has passed two motions calling for Kenya's withdrawal from the RS and a bill has been tabled for the repeal of the International Crimes Act.
Key lessons:
1. Like the Rome Statute, Kenya's cooperation regime under the ICA is perfect as long as those who are being prosecuted do not wield political power. When they capture power, as they did in Kenya, then no law, however well written, can overcome the obstacles they place in the path of justice.
2. Kenya has consistently claimed to have "fully cooperated with the Court". There is need to define what full cooperation entails. It has to go beyond ticking boxes to ensure that it is judged based on the results it produces in the genuine fight against impunity.
3. The Prosecutor's conduct in the Kenyatta case was inconsistent. She sought an adjournment until such time as Kenya cooperated fully claiming, rightly, that the suspect should not benefit from the failure of the state which he heads to cooperate with the investigation. And yet, when her request for the adjournment was denied, she chose to withdraw the charges while at the same time contesting Kenya's lack of cooperation. The curious outcome was that when the Trial Chamber eventually ruled that Kenya was non-compliant and must be referred to the ASP, the outcome was a merely academic one as it would not affect the substantive case which had since been withdrawn.
4. The Court's (judges') conduct was also wanting. It took almost three years from the time the OTP filed its petition for non-compliance to final decision. Some would argue that it is not clear why the Trial Chamber would find Kenya non-compliant and yet refuse to refer it to the ASP, nor is it clear why, once the Appeal Chamber found that the Trial Chamber had erred, it did not just refer the matter directly to the ASP, nor is it clear why, once the matter was referred back to the TC, it took over one year for a final determination of the case.
5. It is ironical that the final stage of appeal for determination on cooperation issues lies with the Assembly of State Parties, which is a political body at which, often, political trade-offs, rather than the law, play a decisive role. It remains to see how the ASP will handle the referral of Kenya when it meets later this year.

Saturday, 1 April 2017

WITHOUT WORDS...

WITHOUT WORDS...
By Njonjo Mue

The feeling is there t'is true
He's so attracted to you.
But he tries so hard
Not to put it in words
For words are terrible things,
Always being misunderstood.

So he tries to say it to you
By the way he looks at you
The way he smiles and speaks
Sometimes with flowers and gifts

But each new day he stops and prays
That the wind will blow his way
And carrying on will bring in tow
His message of love to you.

Saturday, 21 January 2017

THE SECOND TUESDAY IN AUGUST...

THE SECOND TUESDAY IN AUGUST....

Date check: Nairobi, 2.46 a.m., Thursday, 10th August 2017

"Tonight, or what's left of it, you can all go to bed and sleep soundly, secure in the knowledge that the future of our great country, Kenya, is in safe hands."

This simple declaration of hope and confidence brought to an end the short but triumphant victory speech of the leader of the One Kenya Alliance delivered to a crowd of delirious supporters at the Radisson Blu Hotel in Upper Hill. He had just been declared the president-elect by the IEBC Chair Wafula Chebukati following a closely fought election that had been held, in accordance with the 2010 Constitution, on the Second Tuesday in August to decide who would become the fifth president of Kenya. But the celebrations of the news of his Alliance's victory would not be complete without the new President-elect sounding what had become his signature rallying call and his party slogan during the just ended campaigns:

"The ANSA is...." he shouted into the microphone as he punched the air in a victory salute. "OK!" thundered back the crowd of supporters.

The slogan had been coined from the full name of the nascent political vehicle that had now proved that it was fit to propel him to State House and his political alliance to government as he had convinced his partners that it would. As a response to the political angst that had engulfed the nation in the months leading up to the election, the youthful party leader of the Kenya Action Party had deftly brought together what he called an Alliance of Values rather than a Coalition of Tribes. After some consultations with his newfound political partners, they had announced that it would be called the Alliance for National Salvation (The Ansa) and that as opposed to the old coalitions which merely sought to cobble together winning formulas based on tribal allegiances, this was an alliance that brought together the whole country and that their slogan would, therefore, be simply "One Kenya (or OK!).

Once against, the youthful president-elect shouted into the night sky, "The Ansa is...." And the crowd shouted back in hopeful unison, "OK!"

With those words, holding hands with his wife and life partner and their three young children, he descended the podium for another round of warm handshakes 'high-fives' and bear hugs from the crowd of well-wishers who had gathered at the hotel to celebrate their hard-won victory.

The excited crowd, most of them young and sporting the ANSA colours milled enthusiastically about in the room toasting with their glasses and bottles of soft drinks - as a rule no alcohol was served in any ANSA event, not even the victory party. And none was needed, for this crowd was clearly high on life and hope and enthusiasm. They danced and clapped, took selfies with the President-elect and his family, and generally had a great time. If they were tired, they did not show it, though it was already way past midnight when word of their candidate's victory over the rival Kenya Freedom for Development Alliance (KEFDA) had been delivered by Mr. Chebukati on Live TV from the Bomas of Kenya. Now, no one wanted this night to end.

Though he did not show it, the President-elect's own feelings were somewhat ambivalent. He shared the euphoria, but he was also aware that many challenges lay ahead. There was also no denying that the many nights of last-minute strategy sessions and seemingly endless days on the campaign stump around the country had taken their toll and he was fighting back sleep. However was also elated and energised by the fact he and his Alliance had pulled off a near-impossible feat in beating the KEFDA to the finishing line after the most grueling campaign. Thankfully, there would be no petition to the Supreme Court as this had been an election that everyone, including the KEFDA leader in conceding defeat, declared to have been the most free, fair and professionally managed in Kenya's history. The President-elect was also keenly aware that he would not be standing here tonight had a convergence of factors not fortuitously led to the implosion of the Jubilee Alliance and the collapse of the CORD Coalition in the months leading up to the election.

To the left of the President-elect, his running mate, now Deputy President-elect Martha Karua would not let fatigue conceal her excitement. In the realignments that had led up to the election, she had abandoned her initial plans to run for Governor of Kirinyaga and renounced her initial support for Uhuru Kenyatta's re-election. She had been the first to take her NARC Kenya political party into The ANSA. She had clearly taken a gamble in being one of the national leaders to throw her weight behind the hitherto inexperienced and relatively unknown leader of the Kenya Action Party and it had paid off. Secretly, she celebrated the thought that she was one step closer to realising her own dream of one day becoming Kenya's first woman president. But that was a long way off. Tonight was the President-elect's night and she knew she would try her best in the coming days and years to support him until the time came for her to inherit his mantle and safeguard their legacy long into the future.

The dark night was relentlessly assaulted by flash bulbs as the media recorded and relayed live to the watching world this history in the making as the two triumphant presidential running mates walked about surrounded by heavy security with whom they jostled to shake the hands of their supporters.

Kenya had had eleven general elections since independence, but this had been the most closely contested, yet peaceful, one. Both candidates had run a superb, well organised and clean campaign devoid of the usual name-calling and ethnic profiling. Kenyans now hoped that their new President would be able to deliver on his campaign promises and the ANSA manifesto and that the new government would be able to capitalise on its mandate, albeit slim, to unite Kenyans and turn our beloved country, in the words of the President-elect in his victory speech, "from this republic of fear, once again into our enduring land of hope."

The triumphalism in the President-elect's acceptance speech, and the sense of euphoria among his supporters, belied the problems that lay ahead for the youthful leader as he and his alliance partners turned their attention to the task of appointing a cabinet and other senior officials who would serve in his administration. They were inheriting a country that had been brought to its knees by corruption presided over by a succession of regimes that ruled before them with the acquiescence of shady business cartels, drug lords and other local and international looters of the wealth of the Kenyan people. They were also inheriting a country that had for so long been divided along ethnic lines, that now most citizens knew that they were merely Kenyans by name. They instead had been herded by the political elites into their ethnic cocoons where they hurdled together in their artificially constructed caves of fear. How the new government handled these challenges would eventually come to define its legacy.

But tonight was a night to celebrate, and the whole country seemed to agree. For no sooner had The KEFDA leader called his ANSA rival to congratulate him on his victory an hour and a half ago, than there had been spontaneous jubilation breaking out throughout the country. Hundreds of thousands of Kenyans who had stayed awake to await the results took to the streets of various cities and towns to celebrate. Nor were they merely celebrating the ANSA's victory. They were expressing their collective sigh of relief for a transition that had gone so smoothly despite the uncertainty and tension that had engulfed the country earlier in the year. This was when the Jubilee Party of incumbent President Uhuru Kenyatta had started to implode and the CORD coalition of long-serving opposition politician Raila Odinga had began to collapse and the country's abiding mistrust of the old-guard politicians surrounding them had made it clear that a dangerous power vacuum was starting to emerge and things were beginning to unravel. But the two contenders for the throne quickly stepped into the breach and started to stake their respective claims to destiny as the harbingers of Kenya's hopeful new dawn.

END OF PART ONE

---------------

In Part 2 of 'The Second Tuesday in August', we go back and behind the scenes to witness the two main Alliances in Kenya's emerging democratic order preparing their platforms and putting together their campaign teams to prepare for what will be undoubtedly an epic battle in their hunt for votes. We also share in the tension of a country as Jubilee starts to implode and CORD begins to collapse and everywhere in the beloved country there are signs that the old is dying, but the new cannot yet be born.

------------------------

DISCLAIMER: This story is a work of FICTION. Any reference to any parties or individuals, living or dead, is purely coincidental. It does not, in whole or in part, reflect the views or convictions of any group, person or persons other than the author whose sole purpose in writing the story is to entertain while challenging his audience to imagine how a new Kenya might look like. The names of public figures in Kenya's politics may be used, but the characters represented by such names in this story are purely fictitious. The story is set in the future and chronicles a fictitious political landscape in Kenya.

Thursday, 19 January 2017

THE UNCERTAIN INAUGURATION

48 hours to go before the inauguration of President-elect Donald Trump, it is still unclear whether the inauguration will go ahead. This is because outgoing President Barack Obama has refused to step down despite his term having expired.
A mediation team made up of the President of Mexico, the former President of Guatemala and the Prime Minister of Canada have visited Washington twice in as many weeks in an effort to persuade Obama to step down, to no avail.
The regional trading block, NAFTA, has said that it will send in troops to force Obama to step down according to the US Constitution. Venezuela and Cuba on their part have offered Obama asylum and immunity from prosecution should he be so kind as to step down.
But Obama has instead challenged Trump's election in the Supreme Court which, due to an absence of judges, cannot hear the challenge until May. He has also convened Congress and successfully persuaded it to extend his term for three months, and when the Chief Justice declined to issue an injunction against Trump's inauguration, Obama simply declared a state of emergency.
Meanwhile, in the advanced African Democratic State of The Gambia, outgoing President Yahya Jameh, who was defeated in the December election by opposition candidate Adama Barrow, has graciously reiterated that he has conceded defeat and is fully respecting the Constitution and the will of the Gambian people, and will hand over power in a peaceful inauguration ceremony scheduled to take place in the Capital, Banjul, on 19th January.
Long live African democracy; long live the African Union.