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Monday, January 31, 2011

Raila Makongeni


Prime Minister, Raila Odinga appeared to climb down from the tough stance he had earlier taken over President Kibaki's nomination of candidates to critical judicial offices. Speaking at a public rally in Makadara , Raila appeared to blame the president's handlers for the controversial nominations. The Prime Minister however maintained that unless there were proper consultations, the president's list of nominees would not stand. The Prime Minister on Saturday dismissed the list as null and void and declared a constitutional crisis. And as Willis Raburu reports, the prime minister and his allies say they will use all means necessary to fight the nominations.

Nominations Reactions Rage On


The list of nominees for the posts of the attorney general, chief justice and director of public prosecution announced by President Mwai Kibaki on Friday evening have attracted outrage and support in equal measure. A section of members of parliament have rallied behind the president's decision, dismissing Prime Minister, Raila Odinga's claims that he was not consulted as misleading. However, critics who include former chair of the Constitution of Kenya Review Commission, Professor Yash Pal Ghai and Gichugu Member of Parliament, Martha Karua have dismissed the nominations terming them unconstitutional. Sheila Sendeyo with that report.

Nominations: Const. Implementation


President Mwai Kibaki's decision to name four new top judicial officers including a new chief justice and a new attorney general has elicited strong reactions from different quarters and kicked up a storm in the grand coalition government. Prime Minister Raila Odinga has claimed that the required level of consultation between him and Kibaki never took place and insisted the president's move has inevitably triggered a constitutional crisis. However, legal experts hold varying opinions on the matter but most agree that the stalemate will best be addressed through parliament. Abdi Osman with the details.

Kibaki AU Summit


We go to Ethiopia now where...Kenya's push for the deferral of the post election violence cases being handled by the international criminal court (ICC) got a major boost after the heads of state from member countries of the Inter-Governmental Authority on Development (IGAD) unanimously endorsed the position. In his plea to his colleagues, President Kibaki said immediate trials of the 6 suspects named by the ICC prosecutor would prejudice peace and reconciliation efforts in Kenya. And as Francis Gachuri reports from Addis Ababa Ethiopia, the assembly of all African Heads of State is expected to endorse a resolution on deferral of Kenyan cases, as ratified by the Council of Ministers last Friday.

Deadly Waters Kiambere


On Sunday 23rd of January 2011, Jane Kariuki lost her life after being attacked by a crocodile at Kiambere dam. Her death brought to the fore the plight of residents of Mbeere area, where the dam is located. The residents say the dam is infested with six crocodiles and to make matters worse, it is their only source of water. Our reporter Willis Raburu visited the area and brings us this story, on the first part of our series, 'deadly waters'.

PM maintains appointments were wrong

The Kibaki maths and political advantage

MPs defend Kibaki over appointments

IDP families benefit from Barclays housing

Raila on appointments

MPs reaction on appointments

Hydrocephalaus in Malindi

County Briefs 30.01.11

County Briefs 30.01.11

Feature of the day - The L.Bogoria story "Myth or Fiction" pt.2

Kisii Murders

"Coping with Hydrocephalaus" - Angel's story

Kibaki’s rally in Eldoret was smart politics


 
By MAKAU MUTUAPosted Saturday, January 29 2011 at 17:16
In Summary
  • No one can tell for sure -- in Orange Democratic Movement or PNU -- exactly why Kibaki went to Kalenjin country

No one in Kenya’s politics can wear a poker face better than President Mwai Kibaki. Mr Kibaki is either the smartest politician, or the most cunning. Either way, he is a master of his craft. This is why.
No one can tell for sure – in ODM and PNU alike – exactly why Mr Kibaki went to Kalenjin country last week. Some people think they know but, believe me, they don’t.
I have three hypotheses why Mr Kibaki went to 64 Stadium in Eldoret and publicly “embraced” Eldoret North MP William Ruto, a man wanted by ICC Prosecutor Luis Moreno-Ocampo for alleged crimes against humanity. My view is that President Kibaki killed three birds with one stone.
My first hypothesis is that Mr Kibaki was acting like the “father” of the nation. Sometimes it’s the right decision to spare the rod when children quarrel in a family. This is especially true when one of the children – the “bully” and “emotional extortionist” – threatens Armageddon if “daddy” doesn’t grant his wish.
I don’t know what the spy agencies have been telling “papa” but he must have known that a dangerous “siege” mentality is taking root among the Kalenjin. It doesn’t matter whether such a mentality is legitimate or justified. It only matters that it’s real. It’s a priority of the President to keep the peace. Hence the so-called “peace rally”.
But the rally was not about peace, but the appearance of peace. Rather than use presidential “sticks,” Mr Kibaki offered presidential “carrots” to the Kalenjin. This was a political “pacifier” that only “papa” could give his “children”.
Among the Kalenjin, none of Mr Kibaki’s children are more petulant than Mr Ruto. “Pacify” him and you appease the whole community. That’s what Mr Ruto and the Kalenjin elite would have “baba” believe.
Is it true? I hope not but, quite honestly, I don’t know. Mr Kibaki seemed to be saying to the Kalenjin he will protect “their sons” – Mr Ruto, Tinderet MP Henry Kosgey, and KASS FM’s Joshua arap Sang – from Mr Moreno-Ocampo’s guillotine.
My second hypothesis is that Mr Kibaki went to Eldoret to give the impression that he was endorsing the KKK alliance. However, no one knows whether he actually endorsed the KKK or not.
But he appeared to bring together the Kikuyu and the Kalenjin – the two communities that viciously fought in 2008.
The presence and utterances of Finance minister Uhuru Kenyatta – one of the Ocampo Six – give this hypothesis credence. Only VP Kalonzo Musyoka – one of the KKK trio – was absent. He was off to foreign African capitals to save his KKK brethren from Mr Moreno-Ocampo.
Fool’s gold
But does the KKK know that Mr Kibaki’s presence could have been fool’s gold? Why risk his legacy for the Ocampo Six? Mr Kibaki said at 64 Stadium that he would “do all that Mr Ruto” had talked about.
To me that means nothing. It’s a placebo, an empty palliative thrown to the crowd and to Mr Ruto and the KKK. It was classic Kibaki – he was as opaque as he could be while giving the impression of a substantive promise.
That’s why PM Raila Odinga should not panic and react impulsively to the “peace” rally. In my view, President Kibaki’s “embrace” of Mr Ruto was a false bait meant to buy tranquillity. Its flip side may have been to “tame” Mr Odinga who, in Mr Kibaki’s eyes, may be growing “too big for his britches”.
My third and final hypothesis is that President Kibaki was preparing the ground for the handing over of the Ocampo Six – and Mr Ruto in particular – to The Hague if indictments come down. It’s not lost on anyone – least of all the spy agencies – that hauling the Ocampo Six, especially Mr Ruto and Mr Kenyatta, to The Hague could pose a major security threat.
But by appearing to “shower love” on Mr Ruto and the Ocampo Six could take the sting out of their arrest and “rendition” to The Hague. That’s why Mr Kibaki was “cozily” sandwiched between Mr Ruto and Mr Kenyatta at the rally. He could “legitimately” cite that image as evidence of his “unequivocal support” for Mr Ruto. This would “absolve him from blame” when he obeys the law and hands over Mr Ruto to the ICC.
Don’t forget that the “peace” rally came only a few months before the Pre-Trial Chamber of the ICC is set to rule on indictments. While VP Musyoka is lobbying the AU and the UN to defer the cases of the Ocampo Six, Mr Kibaki may simultaneously be preparing for the worst case scenario – indictments.
Indictments
President Kibaki appears to be covering all bases. Ironically, Mr Kibaki could be Mr Moreno-Ocampo’s “secret ally” if this is true. I am sure Mr Moreno-Ocampo would endorse Mr Kibaki’s “peace” rally if he knew the latter’s machinations.

Whether Mr Kibaki was lulling Mr Ruto to sleep before handing him over for “slaughter” at The Hague remains to be seen.
But I wouldn’t bet against it. President Kibaki may be a master illusionist. His “see-nothing, say-nothing, be-opaque” approach to politics has served him well. He seems to be recalling those gifts at the twilight of his political career.
What matters most to him now is his legacy. He is caught between the devil and the deep blue sea. He knows he must deliver justice for the victims of post-election violence or tarnish his legacy forever. But he can only do so if he surrenders the Ocampo Six to the ICC. That’s why the “peace” rally was smart politics.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the KHRC.

How President outflanked the Cabinet


 
By KWENDO OPANGAPosted Saturday, January 29 2011 at 17:16
In Summary
  • Without consulting Raila or the Cabinet, President sent Vice-President to rally support of select African countries

Last week’s spat between Prime Minister Raila Odinga and Vice-President Kalonzo Musyoka over the sextet fingered by the International Criminal Court (ICC) as masterminds of the 2007 election violence, revealed how President Kibaki out-manoeuvres the Cabinet to get things done his way.
Ministers of government, a coalition of the coerced or forced marriage, rarely see eye to eye on most issues. The President, one who sees more than he lets on at meetings, may have resorted to out-flanking a quarrelsome Cabinet to push through his ICC agenda.
Musyoka is clear: The President sent him to African capitals to solicit support for Kenya’s decision to seek deferral of the cases pending against the six who could be tried by the ICC at The Hague ahead of the African Union (AU) meeting in Addis Ababa.
Raila is categorical: Musyoka’s so-called shuttle diplomacy was not sanctioned by the Cabinet. And, when the Cabinet did discuss the matter of the sextet suspected of masterminding the madness, mayhem and murders of late 2007 and early 2008, it was referral it sought and not deferral.
The point is made: The President decided, without involving or consulting the Prime Minister and the Cabinet, that he would seek the support of heavyweight African countries in Nairobi’s bid to pressure the UN Security Council into deferring the Kenyan cases at the ICC.
Again, without consulting Raila or the Cabinet, he decided to dispatch the Vice-President, his principal assistant, to selected African capitals to get their backing. As Musyoka explained, he could not question the President’s decision to seek deferral or outflank Raila and Cabinet or to send him out as his envoy.
Enter Justice Minister Mutula Kilonzo: He says Kenya cannot ask for the deferral of a case which has not even started. And, he explains, by asking for deferral the impression is created that international crimes were indeed committed in Kenya or that the six should be indicted!
Hear him: “We have created a national panic over a situation that does not exist. Or are they saying the Ocampo Six should now be indicted?”
What Mutula is saying is that President and V-P have put the cart before the horse. In other words, had President and V-P asked him, his counsel would have been different.
Should there be disagreement over referral and deferral? In lay terms referral is about transfer and deferral about delay. So if the Cabinet discussed the transfer of the case of the sextet then, again, the President could have changed his mind and settled for asking for a delay (deferral) in prosecution rather than change (transfer) of venue.
But that doesn’t quite come together. The way things stand, and as Raila told Parliament on December 16, Kenya has four options in dealing with the suspects.
One is to establish a credible local process for investigations and prosecution of the six and invite the ICC to review it and, if convinced, allow the local process to take over the cases.
This sounds like transfer and like what Parliament desperately wants.
The second option is for Kenya to seek a resolution of the UN Security Council deferring prosecution for six to 12 months. I believe this period can be used to establish the credible process mentioned above.
Three is to withdraw from the ICC. Withdrawal would be effected a year after receipt of the notification of the withdrawal. Withdrawal, however, would not affect co-operation with ICC in criminal investigations and proceedings in relation to which Kenya has a duty to co-operate.
Four is to let the process which the ICC has set in motion run its course. When asked by Garsen MP Danson Mungatana to tell Parliament which of the four options government had settled for, Raila explained that Cabinet opted for a local judicial process.
The problem then would appear to be how to go about transferring the cases from The Hague to Nairobi.
The President may have opted for drumming up support among African leaders before making his case to the UN Security Council. Raila, however, holds that Kenya should deal directly with ICC, a position favoured by Mutula and who would feel that explaining The Hague process is his docket.
Now, lastly since the indictment of Sudan President Omar al-Bashir in 2009, AU has been hostile to ICC. Thirty-three of the 114 ICC-member states are African.
If they collectively withdrew or cast aspersions on it, ICC’s credibility would be greatly undermined. Might subverting ICC be the reason for Musyoka’s shuttle diplomacy? I am suspicious.

The writer is a media consultant diplospeak@yahoo.com

Raila's protests "unwarranted"


President Mwai Kibaki accompanied by Internal Security Minister who is also the acting Foreign Minister Prof George Saitoti during the opening of the African Union summit in Addis Ababa in Ethiopia on January 30, 2011. PHOTO / PPS
President Mwai Kibaki accompanied by Internal Security Minister who is also the acting Foreign Minister Prof George Saitoti during the opening of the African Union summit in Addis Ababa in Ethiopia on January 30, 2011. PHOTO / PPS 
By EMMANUEL ONYANGO, PPSPosted Sunday, January 30 2011 at 14:56

President Kibaki on Sunday gave a robust defence to the nominations he made to the positions of Chief Justice, Attorney General and Director of Public Prosecution and repulsed assertions by Prime Minister Raila Odinga that consultations were not made prior to the Friday announcement.
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A statement dispatched by the Presidential Press Service from Addis Ababa termed as “unwarranted” Prime Minister Odinga’s stand that President Kibaki did not consult him in announcing nominees for the three top jobs.
The statement, signed by Internal Security Minister who is also the acting Foreign Minister Prof George Saitoti and his Defence counterpart Yusuf Haji, said Raila's protestations "are divisive" and will "generate unnecessary anxiety" in the country.
Both ministers have accompanied the President to the African Union Summit in the Ethiopian capital.
"We have confirmed with H.E the President that indeed there were exhaustive consultations before these nominations were made as required by the Constitution. We, therefore, find the claim that the nominations were done without consultations and without adherence to the Constitution disturbing and unwarranted. It should be made crystal clear that consultations were undertaken."
"He (Kibaki) was also aware that the names of those nominated will have to be approved by parliament as required by the constitution. Parliament is the body that will decide, on behalf of the people of Kenya , whether the nominees should be appointed.
"We caution against divisive utterances by leaders that will generate unnecessary anxiety. Specifically, remarks to the effect that the President’s decision has “thrown the country into a major constitution crisis” are exaggerated and uncalled-for," the two ministers said.
The names of the nominees are set to be forwarded to Parliament in the coming days where they will be vetted by the Committee on Justice before they are laid before the House for a vote.
The balance of strength in parliament has tilted in favour of President Kibaki following the fallout in ODM. This is the support base the president is banking on to approve his nominees.
The statement from the Presidential Press Service was dispatched as President Kibaki attended the official opening of the 16th Ordinary Session of the Assembly of Heads of State and Government.
Issues relating to peace, democracy, governance and food security in the continent dominated the speeches during the opening of the two-day summit whose theme is “Towards Greater Unity and Integration through Shared Values” discussed issues relating to peace, democracy, governance and food security in the continent.
Addressing the summit at United Nations Economic Commission for Africa (UNECA) Conference Centre in Addis Ababa, outgoing Chairman of the African Union President Bingu wa Mutharika of Malawi said African countries should embrace the African Food Basket Programme which would enable the continent to produce enough food for its people.

Judge with a flair for landmark rulings


File |  NATION Justice Alnashir Visram contributes to discussion at an East African Magistrates and Judges Association conference last year as Justice Benjamin Kubo looks on. Justice Visram has been nominated for the position of Chief Justice.
File | NATION Justice Alnashir Visram contributes to discussion at an East African Magistrates and Judges Association conference last year as Justice Benjamin Kubo looks on. Justice Visram has been nominated for the position of Chief Justice. 
By JILLO KADIDA jkadida@ke.nationmedia.comPosted Saturday, January 29 2011 at 21:00
In Summary
  • He has presided over several high profile cases and is well remembered for awarding Nicholas Biwott a record Sh30 million in a defamation suit

The naming of Appeal Judge Alnashir Visram as a potential Chief Justice came as a surprise to many. Justice Visram’s name did not feature in the mainstream media as one of those lobbying for the job.
Related Stories
However, his name appeared in the Nairobi Law Monthly magazine as a likely candidate to replace Chief Justice Evan Gicheru.
The soft-spoken judge is described on the Judiciary website as “a creative judge with a flair for innovative approaches to judicial resolution”.
Come to Kenya
He was born in Kisii, his grandfather having come to Kenya from India at the end of the 19th century aged 15.
Justice Visram went to Kisumu Boys’ High School, where he completed his ‘A’ levels before joining the University of Nairobi. He was part of the first graduating class of the newly established Faculty of Law of the University of Nairobi in 1972, and was admitted to the Bar in 1973.
In 1978 he graduated with a second degree in law from the University of British Columbia, Canada. In 2006, he graduated with a Master’s degree in international law from the University of Nairobi.
When he began to practise, he specialised in commercial, corporate and civil law, during which time he represented several insurance companies, banks and multi-nationals.
In June 1999, President Moi appointed Justice Visram Commissioner of Assize; in March 2001, he was sworn in as a Judge of the High Court of Kenya; and in April 2009 as an Appeal Court Judge.
During his tenure, he has presided over several landmark cases.
In the case of 400m hurdler Eric Keter who had been excluded from participating in the 2000 Olympic Games for coming in fourth during trials, Justice Visram agreed the exclusion was unfair and ordered the now defunct Kenya Amateur Athletic Association to include Mr Keter in the team.
Soon after, he ordered Kenya Power and Lighting Company (KPLC) to restore electric power to a business consumer arguing that, as a monopoly company, it could not cut off power to its consumers on whim.
Leadership positions
Presently, he is a member of the Judiciary’s Training Committee, the Curriculum Development Committee and is the vice-chairman of the Strategic Planning Committee. Justice Visram has also held various leadership positions within the Ismaili Community and the Aga Khan Foundation.
Among the prominent cases Justice Visram has handled is the 2008 petition filed by Mr Stanley Livondo challenging the election of Prime Minister Raila Odinga as Langata MP.
At one point Mr Livondo sought to have the Prime Minister summoned to court but this was dismissed by the judge. Justice Visram had said the plea by Mr Livondo, who contested against Mr Odinga in Langata, was an afterthought and an attempt to go on a fishing expedition over issues not relevant to the determination of the election petition.
He noted that Mr Livondo failed to outline to the court what specific questions he wished to ask Mr Odinga. Justice Visram in the end dismissed the petition due to lack of proper serving of the court papers.
Other election petitions handled by Justice Visram include one challenging Githunguri MP Peter Njoroge Baiya’s election and one against Dujis MP Duale Aden Bare. The two petitions were also dismissed due to failure to serve the MPs with suit papers in accordance with the law.
Justice Visram is also remembered as one of the judges who gave a huge libel award against the media.
He awarded former minister Nicholas Biwott Sh30 million against Clay Ltd and Dr Ian West for defamation in the book Dr Ian West’s Casebook.

He also awarded former Appeal Court Judge Richard Kwach Sh5.5 million as compensation in a libel case against the Standard Group.

According to the Law Society of Kenya chair Kenneth Akide, this libel award given by Justice Visram cannot be faulted legally.
In court, the judge is slow to anger. He once sat through a hearing even after he was referred to as “a gatekeeper for the Kenya Anti-Corruption Commission” by a lawyer. However, he censured the lawyer in his final ruling for making abusive comments.
And on Sarturday, Mr Akide applauded the decision to nominate Justice Visram to the position of Chief Justice.
“In a society that is fairly tribal, whoever appointed Judge Visram was trying to neutralise the tribal factor,” he said.
Disagrees
However, the Kenyan chapter of the International Commission of Jurists disagrees with this, claiming Justice Visram “hates freedom of expression which he has, in the past, punished with the highest damages ever awarded in the country’’.
In a statement sent to newsrooms, the ICJ-K adds: “He cannot lead a free people in implementing their new and libertarian Constitution, enacted in response to injustices that he has been part of.”
However, the process of appointing the CJ is not yet over. A vetting committee will have to assess his suitability. Once the candidate passes this stage, the name is forwarded to Parliament for approval after which the President can officially appoint the judge and swear him in as the Chief Justice.
Under the old constitution, the process of appointing a Chief Justice was not as elaborate. The President simply appointed an individual and the nominee would be sworn in without extensive vetting.

Kibaki’s role in succession battle exposes fault lines in coalition


President Kibaki and Prime Minister Raila Odinga during the signing of the National Accord that established the coalition government between PNU and ODM. PHOTO/ CORRESPONDENT
President Kibaki and Prime Minister Raila Odinga during the signing of the National Accord that established the coalition government between PNU and ODM. PHOTO/ CORRESPONDENT 
By MURITHI MUTIGA mmutiga@ke.nationmedia.comPosted Saturday, January 29 2011 at 21:00
In Summary
  • Unilateral appointment of Judiciary nominees raises the question of whether President and PM will work together

In December 2010 opinion polls indicated President Kibaki enjoyed his highest approval rating since the early months of 2003.
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A Synovate survey found that 79 per cent of those polled were happy with the President’s performance, putting him two percentage points above the 77 per cent who were happy with PM Raila Odinga.
The President at the time was riding a crest of popularity following the endorsement of the new Constitution. Most Kenyans were happy that relations between him and the PM had improved following the rocky first two years of the coalition.
That situation has changed dramatically over the last month due to the resumption of wrangles within the coalition. President Kibaki has been sucked into the 2012 succession battle, which is linked to the legal process unfolding at The Hague where some of the key players, William Ruto and Uhuru Kenyatta, may face trial.
“Nobody can dispute the fact that President Kibaki has done very well on the economic front,” says Joseph Munyao, founding secretary-general of the Democratic Party and a long-time Kibaki ally. “The fact that the Constitution was endorsed under his watch is a big plus. But the Constitution is linked to the issue of respecting international treaties, and the Rome Statute is part of that.
Behaves contrary
“President Kibaki will be judged harshly if he opposes the statute or behaves contrary to its spirit. The way the government is behaving now, wasting finances to send ambassadors all over the continent is embarrassing. Kibaki must know this is against the wishes of Kenyans.”
The polling data supports the contention that a majority of Kenyans support an international judicial process to try those suspected of being behind the violence.
According to Synovate, 60 per cent of those polled in its last survey indicated a preference for trials at The Hague.
Only 18 per cent said they wanted local trials, an option favoured by President Kibaki and the PNU wing of the governing coalition.
Another 14 per cent of those interviewed said they did not want any action taken against the suspects, while 9 per cent wanted those responsible for bungling the elections to be tried.
Why President Kibaki has cast his lot with those opposed to the ICC process divides opinion. But a close ally, speaking on condition of anonymity, said the inclusion of Public Service head Francis Muthaura in the Ocampo Six was the tipping point.
He said the possibility that Finance minister Uhuru Kenyatta would feature among the suspects had been well known for nearly a year, yet the government had largely cooperated with investigators.
But after chief prosecutor Luis Moreno-Ocampo revealed in a briefing at Harambee House that Mr Muthaura was on his list, State House turned against the ICC option.
The decision to warm up to MPs allied to Mr Ruto as Mr Kibaki and Mr Kenyatta sought to build an anti-ICC alliance appears to have arisen from State House opposition to the process at The Hague.
But by becoming an active player and openly throwing his lot in the succession battle with the group around the axis of politicians including Mr Kenyatta, Mr Ruto and Kalonzo Musyoka, there is a danger Mr Kibaki might taint his legacy.
Political analyst Tom Wolf says this will not be the issue uppermost on Mr Kibaki’s mind as he decides in which direction to steer the government in the next two years.
“Until they are in their coffin, most politicians are preoccupied with issues of the moment rather than their legacy. Certainly it would be nice to know when you breathe your last that people liked you, but when he takes the oath of office, the most taxing responsibility the politician has is to fulfil their obligations and not worry what biographers will write about them 100 years after they are dead.”
Yet insiders in State House say the President had hoped the post-referendum period would turn out differently. He had hoped to build on his national popularity after the endorsement of the Constitution to burnish his reputation which had been sullied by the post-election violence.
There was talk of a book deal and establishment of a presidential library, and a team was constituted to work on the transition and try and influence the way the President’s time in office would be viewed.


Those plans have now taken a back seat to the political realignments triggered by the December 15 release of the ICC list of suspects.

The apparently unilateral appointment of nominees to the Judiciary last Friday was seen as evidence of the extent of discord that exists in the coalition, and this has raised the thorny question of whether the President and PM will work together to implement the Constitution.

Law Society of Kenya says it has no problem with Githu Muigai


Prof Muigai, who has been nominated for the post of Attorney-General, is highly regarded by his colleagues.
Prof Muigai, who has been nominated for the post of Attorney-General, is highly regarded by his colleagues. 
By MUGUMO MUNENE mmunene@ke.nationmedia.comPosted Saturday, January 29 2011 at 21:00
In Summary
  • He holds LLB and Ph.D degrees from University of Nairobi and a Masters in Law from Columbia University

Law professor Githu Muigai attracts respect from his professional colleagues.
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And the managing partner of Mohammed Muigai Advocates is one of the candidates for the three top legal jobs in the country who has attracted the unequivocal support of the LSK.
“He is one of the members of LSK who has been very supportive of the LSK in terms of continuing legal education. He has been readily available to share knowledge with his colleagues. Second, he has been a long-serving representative to the council of legal education representing the LSK at the Law School,” said the society’s secretary Apollo Mboya.
Contributed immensely
“He has also contributed immensely as the chairman of the disciplinary committee of the LSK. The Law Society does not have an issue with Prof Muigai. He’s a leading light in the LSK.
“He is also the chairman of the committee that is reviewing the LSK Act to ensure that LSK reforms and that the Act is in conformity with the new Constitution,” Mr Mboya said.
Prof Muigai’s name has been mentioned in legal circles and the corridors of power since the search for new leadership in the Judiciary and the State Law Office began last year.
He is one of those who had been considered for the position of CJ alongside Judge Kihara Kariuki of the High Court.
Should Prof Muigai’s candidature sail through, he will be inheriting an influential and important political office, but one that is a far cry from what Amos Wako enjoyed during his 20 years as AG.
Mr Wako enjoyed sweeping powers, including playing the role of the chief legal adviser to the government. He attends Parliament as an Ex-Officio Member and holds the power to prosecute suspects.
Under the former Constitution Mr Wako had the power to stop a criminal prosecution at any stage before judgment was delivered without recourse to any other authority and without offering reasons for such a decision.
Should Prof Githu land the job, he will hold office at the pleasure of the President; after next year’s elections, the new president will decide whether to keep him or appoint a new AG.
In the current circumstances where the government has pulled out all stops to defer the Kenyan case from the ICC, it would be Prof Muigai who would present that case before the judges at The Hague and would be charged with convincing them that the courts in place are capable of handling the cases.
Prof Muigai, who enjoys court appearances -- often delivering his arguments with elan and in polished English -- is currently the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.
The renowned lawyer has been the managing partner at Mohammed Muigai Advocates for 16 years.
He holds LLB and Ph.D degrees from the University of Nairobi and a Masters in Law from Columbia University School of Law in New York.
He is also a Fellow of the Chartered Institute of Arbitrators (UK) and a member of the American Association of Trial Lawyers. He was called to the Bar in 1985.
Associate professor
In addition to the practice of law, he is an associate professor of public law in the School of Law at the University of Nairobi but has been on leave of absence.
Prof Muigai specialises in public law and trans-national legal practice. He is a recognised authority on business regulatory matters and in international commercial arbitration.


His practice areas include commercial litigation and arbitration, constitutional and administrative law, information and communications technology law, insurance and banking law, investments law, mergers and acquisitions law, public and private international law and public procurement law

Prof Muigai has been extensively involved in the drafting of the Tourism Bill, 2007, The Marriage Laws Bill, The Kenya Communications Regulations 2007 and the Penal Laws Amendment Act, 2003.

Raila urges calm as PNU plots offensive


Prime Minister Raila Odinga addreses an ODM rally in Makongeni, Nairobi on January 30, 2011. PHOTO/STEPHEN MUDIARI
Prime Minister Raila Odinga addreses an ODM rally in Makongeni, Nairobi on January 30, 2011. PHOTO/STEPHEN MUDIARI  
By DAVE OPIYO dopiyo@ke.nationmedia.com AND BERNARD NAMUNANE bnamunane@ke.nationmedia.comPosted Sunday, January 30 2011 at 22:00

Prime Minister Raila Odinga on Sunday moved to calm the waters as the row over President Kibaki’s nomination of top judicial officers provoked serious rifts in the government.
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Mr Odinga offered to meet the President in an effort to resolve the disagreement away from public exchanges; but even as he spoke, the PNU wing of the coalition government was calling a meeting to map out strategies of taking the fight to Parliament.
President was misled
The PM told a rally in Nairobi that the President was misled into nominating Justice Alnashir Visram as Chief Justice, Prof Githu Muigai as Attorney-General, Mr Kioko Kilukumi as Director of Public Prosecutions and Mr William Kirwa as Director of Budget.
The PM, who has publicly rejected President Kibaki’s nominations and promised to block them said he said he did not wish to engage in a public spat but was willing to resolve the matter amicably. (Read: Why I reject new Chief Justice)
Said the PM at a rally in Nairobi’s Makongeni estate; “Mimi sitaki kupigana na yeye hadharani...yale mimi ninasema ni tufanye mambo yetu kiungwana. Kuna watu wengine ambao wanamskuma... hao ndio watu ambao wahaharibu (I do not want to fight with him in public. What I am saying is that want to resolve this issue in a gentlemanly way. There are people who are pushing him to take certain decisions. They are the spoilers.)”.
He expressed hope that the matter can be resolved. “I am sure we shall arrive at a solution to this matter...where there’s a will, there’s a way.”
Mr Odinga arrived back in the country on Saturday from the African Union Summit in Addis Ababa and denounced the nominations on grounds that he had not been consulted. He vowed to use constitutional means to reverse them.
However, government spokesman Alfred Mutua insisted that President Kibaki and Mr Odinga held several ‘intense’ consultations over names of the nominees with the first one being before Christmas and the last two days ago.
“Consultations do not mean one hundred percent agreement or one hundred percent consensus. Otherwise, the country would never move forward,” he said.
On Sunday, Prof Saitoti (Internal Security) and Mr Haji (Defence) who are part of the President’s delegation at the AU meeting described Mr Odinga denial of consultations as “disturbing and unwarranted”.
“We have confirmed there were exhaustive consultations before these nominations were made as required by the Constitution,” they said.
The nominations have sparked a divisive debate among politicians on both sides of the Grand Coalition, threatening to derail the reform process.
On Sunday, Mr Odinga wondered why there was a rush to replace outgoing AG Mr Amos Wako yet his contract had not run out.
The new Constitution requires Mr Wako to vacate office 12 months from August 27, last year – the date of promulgation of the new laws. (Read: Judiciary expects big changes)
He hinted at the possibility of the jobs being advertised by saying all Kenyans should be given an opportunity to apply for the jobs.
“Let those who excel in the interviews be given the jobs. Women should also be given a chance to apply for these positions,” said the PM amid cheers from his supporters.
The PM was accompanied by Lands minister James Orengo, his Immigration counterpart Otieno Kajwang’, Assistant minister Elizabeth Ongoro, MPs Rachael Shebesh and Martin Ogindo.
Mr Kajwang and Orengo said it was clear that the President flouted the constitution in making the nominations. “The new law is clear that the Prime Minister has to be consulted. Consultations means that there must be an agreement,” said Mr Kajwang.
Mr Orengo on his part termed the nominations ‘unlawful, unconstitutional and ill advised’. “I therefore ask Kenyans to stand firm and ensure that the nominations are reversed,” he said. (Read: Kibaki appoints new CJ as ODM protests)

As they spoke, it emerged that Vice President Kalonzo Musyoka who is expected back today from Nigeria has called for PNU parliamentary group to discuss their strategy in Parliament over the nominations.

Acting PNU chief whip Johnstone Muthama confirmed the meeting. “There will be a PG meeting of PNU affiliate parties and friendly MPs to discuss issues which have cropped up. We have to find a way of dealing with issues that are raising temperatures,” he said.

Prepare for battle, warns PNU


PNU members from left: Ferdinand Waititu, Johnstone Muthama, Beth Mugo, Jamlek Kamau and Ephraim Maina during a press conference in Nairobi on January 30, 2011. PHOTO/STEPHEN MUDIARI
PNU members from left: Ferdinand Waititu, Johnstone Muthama, Beth Mugo, Jamlek Kamau and Ephraim Maina during a press conference in Nairobi on January 30, 2011. PHOTO/STEPHEN MUDIARI  
By WALTER MENYA wmenya@ke.nationmedia.comPosted Sunday, January 30 2011 at 22:23

The rift within the coalition government over President Kibaki’s choice of top Judiciary officials is set to move to Parliament.
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This is after a section of PNU allied legislators vowed to use their numerical strength in the House to push through the nominees.
As the 16 MPs were gearing for the battle in Parliament, their ODM counterparts urged National Assembly Speaker Kenneth Marende to reject the list of nominees unless Prime Minister Raila Odinga was consulted.
The PNU legislators, who claimed to have 160 MPs on their side, even warned of moving a censure motion against Mr Odinga if he continued to “block reforms”.
They are banking on the political camaraderie among PNU MPs allied to Eldoret North MP William Ruto and those from ODM Kenya.
Those who attended Sunday’s press conference at Panafric Hotel in Nairobi included Public Health Minister Beth Mugo, MPs Julius Kones, Benjamin Langat and acting PNU chief whip Johnstone Muthama.
“The statement by the PM and some of his supporters alleging that the President did not consult him in the appointment of the CJ, AG, DPP and the Controller of Budget are totally misleading,” Mathira MP Ephraim Maina said in a statement.
Mrs Mugo said it was the President who had the mandate from the people and MPs would use the floor of the House to support his nominees.
Medical Services assistant minister Kazungu Kambi hinted they were considering moving a motion of no confidence in the PM.
The current storm was triggered by Friday’s decision by President Kibaki to nominate Appellate Judge Alnashir Visram as Chief Justice, lawyer Githui Muigai as Attorney-General, lawyer Kioko Kilukumi as Director of Public Prosecutions and Mr William Kirwa as Controller of Budget. (Read: Kibaki’s judiciary nominees spark new round of coalition clashes)
However, Mr Odinga was supported in his stance by Deputy PM Musalia Mudavadi, MPs Martha Karua, Gitobu Imanyara, John Mbadi and John Pesa, who described the nominations as unconstitutional.
Mr Imanyara said he would vote against the motion. “By law, the motion cannot even come to the House. As long as the Prime Minister informs the Speaker formally that there was no compliance with the Constitution, numbers won’t matter,” he said.
Additional reports by Benson Amadala, Ashley Lime and Maurice Kaluoch

Principals ‘held talks on Judiciary’


In a statement dispatched to media houses from Ethiopia by the PPS, Prof Saitoti (above) and Mr Haji described Mr Odinga denial of consultations as “disturbing and unwarranted”. Photo/FILE
In a statement dispatched to media houses from Ethiopia by the PPS, Prof Saitoti (above) and Mr Haji described Mr Odinga denial of consultations as “disturbing and unwarranted”. Photo/FILE 
By NATION REPORTER and CORRESPONDENTPosted Sunday, January 30 2011 at 20:46

President Kibaki and Prime Minister Raila Odinga held “exhaustive” talks over top Judiciary nominations before State House made the announcement, two Cabinet ministers said on Sunday.
Related Stories
Cabinet minister George Saitoti and Yusuf Haji on Sunday said the President confirmed to them he held lengthy talks with the PM.
In a statement dispatched to media houses from Ethiopia by the PPS, Prof Saitoti (Internal Security) and Mr Haji (Defence) described Mr Odinga denial of consultations as “disturbing and unwarranted”.
“We have confirmed there were exhaustive consultations before these nominations were made as required by the Constitution,” they said.
The ministers are part of the President’s delegation to the AU Heads of State Summit taking place in Addis Ababa.
They were referring to Mr Odinga’s statement at the weekend which denounced the nominations on the grounds that he had not been consulted. Read: Raila says judiciary appointments 'unconstitutional')
The PM vowed to use constitutional means to block the nominations.

Probe fails to link Kenyan MPs to drugs


Top from left: Mr Harun Mwau, Mr Ali Hassan Joho and Mr Gideon Mbuvi. Bottom from left: Mr William Kabogo, Mr Simon Mbugua and Mr Eugene Wamalwa. Photos/FILE
Top from left: Mr Harun Mwau, Mr Ali Hassan Joho and Mr Gideon Mbuvi. Bottom from left: Mr William Kabogo, Mr Simon Mbugua and Mr Eugene Wamalwa. Photos/FILE 
By DOMINIC WABALA dwabala@ke.nationmedia.comPosted Sunday, January 30 2011 at 22:30

Police have failed to link five people named in Parliament over drug trafficking to the vice.
Related Stories
A preliminary report cites lack of sufficient evidence to prosecute the suspects — four MPs and a businessman.
However, it says drug trafficking is rampant in the country and recommends police be given more time and resources to arrest drug barons.
Internal Security Minister George Saitoti named former assistant minister and Kilome MP Harun Mwau, Kisauni MP Hassan Joho, Makadara MP Gidion Mbuvi, Juja MP William Kabogo and prominent businessman Ali Punjani as those under investigation. (Read: Mwau resigns under cloud of drugs charges)
The inquiry was led by deputy officer in charge of police operations Kambona Ombaba, Coast PPO Aggrey Adoli, his CID counterpart, and Mombasa Urban, Kisauni, Kilindini, and Malindi OCPDs.
Malindi, Likoni and Kisauni DCs and a former drug user also participated in the investigation. The team obtained court orders to scrutinise bank accounts and search warrants to some premises.
The revelation is contained in a 300-page report that was handed over to Police Commissioner Mathew Iteere on Friday.
The report says despite “efforts to conduct investigations, it proved elusive to secure substantive evidence with which to implicate, let alone prosecute any of the mentioned suspects”.
“It is not easy to get evidence to incriminate them, let alone that which may withstand the rigorous test in a court of law against the drug dealers,” the preliminary report says.
The detectives say informers were unwilling to record statements. This is because drug barons use their riches to protect themselves and no witness was willing to give evidence against them for fear of being killed, the report says. (Read: How drug dealers evade police and customs dragnet)
Vanga, Shimoni, Mombasa, Kilifi, Malindi and Lamu are noted as major entry points due to convenient sea routes while Kijipwa, Ukunda, Lunga Lunga and Voi airstrips were found to be the favoured routes for drug smuggling because of minimal police presence.
“The aircraft, their passengers and luggage are hardly checked to verify any suspect cargo,” the report says.
The detectives established that drugs mainly enter the country through the Kilindini harbour in containers disguised as rice, sugar, second-hand clothes and used motor vehicles. They are then repackaged and exported as tea or fish.
It was established that privately owned Container Freights Stations were also being conveniently used by drug traffickers to smuggle in and offload narcotics.
The team recommends private asset investigation in some cases.
“Drug dealers are believed to convert their proceeds into other forms of property to conceal the same. Investigation of personal assets of suspected dealers therefore becomes relevant to expose the illicit trade,” the report says.

Kibaki answers Raila

By Martin Mutua
President Kibaki answered Prime Minister Railla Odinga over his rejection of list of nominees he has picked for four constitutional offices — but through his Cabinet proxies.
They spoke out as MPs supporting Kibaki, mainly from Central Kenya, declared they were ready to face Raila’s allies in Parliament when the time comes for the House to vet the appointees picked by President. Overall, going by reactions by both sides, the battle between Kibaki and Raila appeared headed for Parliament where MPs often vote along party and ethnic lines rather than the twin issues of constitutionalism and fairness to both sides of the ruling coalition.
Raila (left), says he will meet President Kibaki (right) and pursue diplomatic action to resolve controversy over list of nominees Kibaki has picked for four constitutional offices.

Curiously, it is two members of the President’s Party of National unity in the Grand Coalition Cabinet who both hold Security-related dockets, who picked up Raila’s gauntlet on behalf of the President.
Further sign the ministers — Prof George Saitoti (Internal Security) and Mr Yusuf Haji (Defence) — were communicating the President’s response to Raila was discernible in the fact their statement was released by the Presidential Press Service, which is solely at the disposal of the President. Saitoti is the PNU Chairman while Haji belongs to Kanu, which is an affiliate of the larger PNU alliance.
"We have confirmed with H.E. the President that indeed there were exhaustive consultations before these nominations were made as required by the Constitution," said Saitoti and Haji.
The ministers responded to Raila’s rejection of Kibaki’s nominations on the premise he was not consulted, even though State House insisted the discussions actually took place, as the PM appeared to change tact and push for a diplomatic solution to the row between him at the President.
Raila told a city rally he was optimistic the controversial nominations of four individuals to the office of Chief Justice, Attorney General, Director of Public Prosecutions and Director of Budget, would be solved amicably. He, however, insisted the President might have been misled into making the nominations unilaterally.
In an apparent twist of tact, the PM announced he would not engage President Kibaki over the matter in public but would meet him and solve the matter diplomatically. "Mimi sitaki kupigana na Kibaki hadharani, nataka kusuluhisha haya maneno kiungwana," (It is not my wish to attack Kibaki in public. We will meet and solve this issue diplomatically) said the PM.
It also emerged the PM’s side is planning to stall tabling of the names in Parliament by writing to Speaker Kenneth Marende requesting him to make a ruling on whether the names should be accepted in the absence of consultation. "We hear they will try to force the Speaker to make a ruling, but Section 63 specifically gives the High Court the power to interpret the Constitution and that is the route those opposed to the appointments should take," argued an MP.
Harambee house
Imenti Central MP Gitobu Imanyara claimed he had a list the President gave the PM when the issue first cropped up. According to him, the list the PM was shown at Harambee House shortly before he left for Ethiopia for an AU meeting had Justice Kariuki Kihara as CJ, lawyer Fred Ojiambo for AG and Kilukumi for DPP.
"There was no agreement reached then and the PM requested the matter be left pending until he comes back only to be informed that the President was set to announce the names which had been substituted," said Imanyara.
He said he was confident Speaker would not clear the names for debate in Parliament. Justice minister Mutula Kilonzo lamented the two principals having ignored his advice to advertise the positions must "now face the music in Parliament and risk damaging the Judicial renewal even before it begins."
Saitoti and Haji spoke as the President, who is busy with African Union and Igad meetings in Addis Ababa stuck to his traditional silence when a political storm is raging around him. Their statement that there was no constitutional crisis and there was adequate consultation between the President and the PM echoed sentiments raised by Government Spokesman Alfred Mutua on Saturday.
Dr Mutua usually communicates the stand of the President, communicated through Head of Civil Service Mr Francis Muthaura, when Kibaki and Raila, or their parties, are at odds on serious political issues at which they are expected to work together.
Given their dockets in Cabinet, which Raila’s side could have noted, Saitoti and Haji warned politicians against making inflammatory statements that could cause anxiety. "We caution against divisive utterances by leaders that will generate unnecessary anxiety. Specifically, remarks to the effect that the President’s decision has "thrown the country into a major constitutional crisis" are exaggerated and uncalled-for," they said.
House to decide
The two ministers also said Parliament would decide whether the nominees should be given the jobs for which Kibaki has nominated them.
Saitoti and Haji directly hit out at Raila, who is their senior in Government, saying they found the claim that the nominations were done without consultation and without adherence to the constitution "disturbing and unwarranted".
But addressing crowds at Makongeni Grounds in Nairobi, Raila said he does not want a fight with Kibaki over the nominations of Justice Alnashir Visram to be the next CJ, Prof Githu Muigai to take over from Mr Amos Wako as AG, Kioko Kilukumi to be DPP, and Agricultural Development Corporation Managing Director Mr William Kirwa to be Controller of Budget.
Barring the possibility of intervention through a court injunction, the names of the nominees would be presented for approval or rejection to Parliament.
A preview of what could transpire in Parliament played out yesterday. A group led by spokesmen for MPs from different regional blocs met and announced they would vote for the nominees.
Leaders of the group of 16 MPs were Rift Valley Parliamentary Group spokesman Julius Kones, his Central Kenya counterpart Ephraim Maina and PNU Chief Whip Johnstone Muthama (Eastern). Three of the nominees have their roots in the blocs for which the senior MPs spoke for. Mutitu MP Kiema Kilonzo was among those who attended their news conference.
On Saturday, Kiema hosted Deputy Prime Minister Uhuru Kenyatta and Eldoret North MP William Ruto in his constituency where they defended the appointments.
Saboti MP Eugene Wamalwa argued Raila should go to court if it was true he was not consulted or leave it to MPs to decide. Cabinet Minister William ole Ntimama, who is Raila’s ally, said: "We will put up a spirited fight in Parliament. They have the money but we will bank on like-minded MPs,’’ vowed Ntimama.

Cartoon 31.01.11




 

Kibaki faulted as Imanyara claims list not original

Cabinet Minister Mutula Kilonzo and Imenti Central MP Gitobu Imanyara have termed President Kibaki’s move to ‘unilaterally’ nominate Judiciary chiefs as unconstitutional.

This came as it emerged the names Prime Minister Raila Odinga was shown when he met the President last were soon after replaced.

The Justice minister said it was now hard for Kenyans to decide who to believe among the two principals, given that the said consultations normally take place at the exclusion of anybody else.

He said: "Who can legitimately talk of consulting when they meet as they do on their own? This is political comedy, sadly, for the rest of Kenya."

The minister said a demand for a withdrawal of the names was wrong, arguing the two principals had ignored his advice to advertise and go for transparent sourcing.

Judicial renewal

"They must now face the music in Parliament and risk damaging the judicial renewal even before it begins," Mutula said.

"Nobody should expect me to support an illegality because I must side with some people," said Mutula.

On his part, Imanyara said he was in possession of a list that the President gave the PM when the issue first cropped up. According to Imanyara, the list that the PM was shown at Harambee House shortly before he left for Ethiopia for the AU meeting was changed.

He said the initial list had Justice Kariuki Kihara as Chief Justice, Lawyer Fred Ojiambo for Attorney General and Kioko Kilukumi for the position of DPP.

"There was no agreement reached then and the PM requested the matter be left pending until he returns only to be informed the President was set to announce the names, which had been substituted," he said.

Imanyara said he was confident the House Speaker would not clear the names for debate in Parliament.

Set Parameters

"This is a weighty issue and if the PM goes ahead to notify the Speaker in writing that he was not consulted, the Speaker will not clear the Motion," cautioned Imanyara.

He said even if the names were to be presented, MPs will reject them on the basis that those nominated have issues related to their past conduct, which will not meet the set parameters of the Constitution.

Assistant Minister Langat Magerer criticised the nomination terming it an act of impunity and an attitude of bullies’ while his colleague Adan Duale welcomed the proposed names saying those with President Kibaki were enough to approve them.

MPs fault Raila criticism on Kibaki's judicial nominations

A section of MPs have defended President Kibaki’s controversial appointment to key public posts and dared critics to meet them in Parliament during vetting.

In a news conference in Nairobi yesterday, 16 MPs accused Prime Minister Raila Odinga of misleading Kenyans by claiming he was not consulted before the appointments were made.

"We are aware there have been extensive consultations between the President and the Premier over the last few weeks. For him to turn around and claim the appointments have been made to serve the interests of a few people borders on incitement of the public," said Mathira MP Ephraim Maina, who read the statement.

They said on Friday, Lands Minister and Raila ally James Orengo released the names of the four appointees before the Presidential Press Service had even issued an official press statement.

"If it is true the President had not consulted with the PM, how come Orengo knew the appointees’ details and names?" they asked.

They accused the PM of trying to "create a crisis where none exists" and turning the issue into a contest between him and the President.

‘Wait for debate in House’

"The PM has formed the habit of alleging that he has not been consulted, including the Kenyan request to the African Union members to support its request for the ICC matter to be deferred," they said.

The MPs also insisted all the appointees have the necessary qualifications and experience to carry out their mandate and urged Kenyans to ignore the critics.

"We advise those with queries to raise them when the matter comes to Parliament other than engaging in a public charade," they said.

Minister for Public Health Beth Mugo congratulated the President for appointing what she termed as people of integrity and professionalism and accused the PM of trying to hold the country hostage.

"The process has passed the nomination stage with consultation and it is now for Parliament to approve or not," she said.

Kangundo MP Johnson Muthama accused Raila of trying to win the sympathy of Kenyans by claiming he was left out of the decision-making process, terming it a political game.

Konoin MP Julius Kones claimed while the Constitution called for consultation between the two principals before making appointments, it did not provide for consensus. He urged President Kibaki to quickly submit the appointees to Parliament for approval or rejection.

Other MPs who attended the conference include Samuel Kazungu, Jamleck Kamau, Moses Lessonet, Joseph Kiuna, Maison Leshomo, Kareke Mbiuki, Ferdinand Waititu, David Njuguna and Lee Kinyanjui.

Raila: I will negotiate with Kibaki Updated 7 min(s) ago Related Stories Kibaki faulted as Imanyara claims list not original Igad States back bid to defer ICC cases by one year Kibaki answers Raila Lawyers admit consultation law is not clear Raila jets back ,the big fallout (Swahili) Pressure group sends jitters among top ODM officialsBy PETER OPIYO Prime Minister Raila Odinga is optimistic the controversial nominations of four individuals to key national positions would be solved amicably. Yesterday, Raila said he would not engage President Kibaki in public but he would seek diplomatic means since the president may have been misled. "Mimi sitaki kupigana na Kibaki hadharani nataka kusuluhisha haya maneno kiungwana (It is not my wish to attack Kibaki in public. We will meet and solve this issue diplomatically)," said the PM. President Kibaki nominated Justice Alnashir Visram to the position of Chief Justice, Prof Githu Muigai as the Attorney General, Kioko Kilukumi as Director of Public Prosecutions and Mr William Kirwa as Controller of Budget. Immediately after the announcement, the PM insisted no consultations had been made. Parliament will vet the nominees before they assume office. Raila said it was wrong to propose the name of a chief justice without going through the vetting process adding there is no hurry to replace Amos Wako. "The AG still has a job so there is no hurry to appoint another one. His tenure has not expired. The women have also been sidelined yet they are also learned. If we talk with Kibaki, we will agree. Amepotoshwa! (he has been misled). Where there is a will there is a way," he said. Poll strategy Addressing a rally in Makongeni, Nairobi, Raila said discriminatin women is unconstitutional. Immigration Minister Otieno Kajwang said ODM would "use both political and constitutional means to reverse the appointments." He said all public appointments should be made in consultation with the PM. Kajwang said if the anomaly is not rectified, Kibaki might appoint commissioners to the Independent Electoral and Boundaries Commission (IEBC) to gain advantage in 2012 elections. Lands Minister James Orengo said Kibaki should realise the new Constitution bestowed power on the people of Kenya and no one should go against the people’s wish. "The path Kibaki has taken is unlawful, unconstitutional and ill-advised," said the Ugenya MP. The same sentiments were echoed by Nairobi Metropolitan Assistant Minister, Elizabeth Ongoro, Rangwe MP Martin Ogindo and nominated MP Rachael Shebesh. Raila said it was imperative the implementation of the Constitution begins on the right footing. The PM also asked Kenyans to reject tribal politics propagated by the KKK alliance. He also dismissed generational change as championed by certain politicians.

Prime Minister Raila Odinga is optimistic the controversial nominations of four individuals to key national positions would be solved amicably.

Yesterday, Raila said he would not engage President Kibaki in public but he would seek diplomatic means since the president may have been misled.

"Mimi sitaki kupigana na Kibaki hadharani nataka kusuluhisha haya maneno kiungwana (It is not my wish to attack Kibaki in public. We will meet and solve this issue diplomatically)," said the PM.

President Kibaki nominated Justice Alnashir Visram to the position of Chief Justice, Prof Githu Muigai as the Attorney General, Kioko Kilukumi as Director of Public Prosecutions and Mr William Kirwa as Controller of Budget. Immediately after the announcement, the PM insisted no consultations had been made. Parliament will vet the nominees before they assume office.

Raila said it was wrong to propose the name of a chief justice without going through the vetting process adding there is no hurry to replace Amos Wako.

"The AG still has a job so there is no hurry to appoint another one. His tenure has not expired. The women have also been sidelined yet they are also learned. If we talk with Kibaki, we will agree. Amepotoshwa! (he has been misled). Where there is a will there is a way," he said.

Poll strategy

Addressing a rally in Makongeni, Nairobi, Raila said discriminatin women is unconstitutional.

Immigration Minister Otieno Kajwang said ODM would "use both political and constitutional means to reverse the appointments." He said all public appointments should be made in consultation with the PM.

Kajwang said if the anomaly is not rectified, Kibaki might appoint commissioners to the Independent Electoral and Boundaries Commission (IEBC) to gain advantage in 2012 elections.

Lands Minister James Orengo said Kibaki should realise the new Constitution bestowed power on the people of Kenya and no one should go against the people’s wish.

"The path Kibaki has taken is unlawful, unconstitutional and ill-advised," said the Ugenya MP. The same sentiments were echoed by Nairobi Metropolitan Assistant Minister, Elizabeth Ongoro, Rangwe MP Martin Ogindo and nominated MP Rachael Shebesh.

Raila said it was imperative the implementation of the Constitution begins on the right footing. The PM also asked Kenyans to reject tribal politics propagated by the KKK alliance. He also dismissed generational change as championed by certain politicians.

Sunday, January 30, 2011

Wamalwa, Njenga finally hold Kamukunji rally

By Athman Amran

Saboti MP Eugene Wamalwa finally held his long anticipated rally at Nairobi’s Kamukunji grounds, where he vowed his presidential ambitions are unstoppable.

Wamalwa told an electrified crowd at the historic grounds that it was time for the young generation to take-over the country’s leadership.

It was the second time Wamalwa was holding a rally at Kamukunji, his first rally having been dispersed by over 400 police officers last December.

"We come to this sacred ground with a deep sense of history and purpose. We come to sound the trumpet and plant the seed of generational and transformational change," said Wamalwa.

Hundreds of youth began trooping into the grounds from as early as 7am, chanting slogans in praise of Wamalwa and former Mungiki leader Maina Njenga.

By the time Wamalwa arrived in company of Njenga and former Chief of Protocol in the Prime Minister’s office Tony Gachoka at about 10.30am, Kamukunji was filled to capacity.

"When we speak of generational change, our opponents say that we have no vision or agenda and we are sending a message that age alone is a criteria for leadership and that the current political re-alignment for 2012 is squarely on this issue alone," said Wamalwa.

He said generational change is not about age alone, but is about the old order giving way to new order just like the Lancaster House Constitution has given way to the new Constitution.

"Let me say here today that Kenya has over 9.1 million young people, 75 per cent of whom are unemployed. Needless to say, unemployment and idleness caused by failures by the status quo, is the biggest setback to the progress of the young people and thus the progress of the nation today," added Wamalwa.

Njenga introduced Wamalwa as the ‘President-in-waiting’ as the Labour Party of Kenya (LPK) leader Prof Julia Ojiambo, invited the Saboti MP to join her party.

"I have come to support generational change. The Labour Party of Kenya welcomes Wamalwa into the party," Ojiambo told the rally.

Former Webuye MP Joash Wamang’oli said it was sad that no MP had attended the rally but warned that most of the MPs will not be re-elected in 2012.

Also in attendance was politician Stanley Livondo who said it was now time for Wamalwa and the youth to take over from those who had fought for Kenya’s freedom from colonialism and the "second liberation".

Njenga said Wamalwa and the Kenyan youth are in the front-line to bring generational change in the country.

"It was said that we had an illegal group, but now we have a legal group that would bring change. We used to whisper in dark corners but now we speak in the open and in public," added Njenga. 

Wamalwa, told the rally that brought together thousands of excited youth that he and the young people were now ready to lead a "third liberation" to free Kenyans from poverty, ignorance, corruption and tribalism".

"Now we have to re-claim the Kenyan dream. The third liberation is to free Kenya from poverty, corruption and tribalism," the Saboti MP said.

Minister asks Kibaki to rescind nominations

Roads Minister Franklin Bett has asked President Kibaki to rescind his nomination of new names to key constitutional offices.

Mr Bett called on the President and the Prime Minister Raila Odinga to dialogue as stipulated by the Constitution and the National Accord.

"I urge the President and the Premier to save the country the sense of frustration, fear and suspicion. They should sit down as a family and consult over the matter," he added.

Speaking to The Standard at a Kericho hotel on Sunday, the minister said the two principals should begin fresh consultations on the nominations.

Last week, the President nominated Prof Githu Muigai as the new AG, Justice Alanashir Visram (Chief Justice), Kioko Kilukumi (Director of Public Prosecutions) and William Kirwa as Controller of Budget.

"We are a country governed by the law and leaders should follow procedure for the sake of peace and harmony," said Bett.

Bett said Prime Minister’s statement that there were no consultations on the nominations should not be brushed aside.

"Already, one party is complaining it was not consulted and I do not think it can complain for nothing. There were no consultations and we want the two principals to sit together and solve the problem amicably," Bett added.

The minister said he was not opposed to the nominees "but we are not happy with the process used as it contravenes the Constitution and the National Accord."

IGAD backs Kenya bid on ICC

BY AGENCE FRANCE PRESSE

ETHIOPIA, Jan 30 - Kenya's bid for a deferral of the International Criminal Court case against the Ocampo Six got a major boost on Sunday when an IGAD summit in Addis Ababa endorsed the proposal.

The Intergovernmental Authority for Development (IGAD) leaders gave their approval to a request by President Mwai Kibaki that Kenya be given twelve months to establish a judicial mechanism to try the perpetrators of the deadly post-election violence in 2007/2008.

"We cannot allow the only country in our region that has enjoyed stability to be destabilized on the grounds of a technicality. All that the Kenyans are asking for is a 12 month period to be allowed to put in place a mechanism that will bring about justice and avoid a repeat of the post election violence," said Ethiopia's Prime Minister Meles Zenawi who chaired the IGAD meeting.

The IGAD Heads of State said they would support Kenya's efforts at building peace and national reconciliation while at the same time bringing about justice.

Speaking at the IGAD leaders meeting, President Kibaki said that Kenya was committed to the process of justice and dealing with those who were behind the violence.

"On 27th August last year, we promulgated the New Constitution of Kenya, paving way for a wide range of judicial and police reforms in order to create Kenya's local judicial mechanism with sufficient capacity, and with the ability to investigate and try all perpetrators of post-election violence in 2008. The process of creating these new institutions is quite advanced today and there will be no going back," the President told the IGAD leaders.

The President pointed out that there were provisions that allowed for a deferment.

"It is for this reason that I seek your support for a UN Security Council Deferral of the Kenya case as provided for under Article 16 of the Rome Statute so as to give Kenya twelve months within which to set up the local judicial process and embark on completion of investigations and trials of the post election violence," the President told the IGAD meeting that was held on the sidelines of the A.U. meeting.

President Kibaki said that Kenya was on the path of major reforms that needed to be institutionalised.

"Kenya is a fully functioning state and the provisions of deferral under the principle of complementarity are most appropriate for the country. It will boost our efforts of peace, justice and reconciliation as well as uphold our national dignity and sovereignty; and prevent the resumption of conflict and violence," said the President.

The President thanked the IGAD leaders for their support and expressed his utmost gratitude for the support Kenya has received so far, particularly from the region as demonstrated in the manner by which they received special envoys on this matter.

IGAD is now expected to table the resolution on the Kenyan deferment at the Heads of State African Union Summit.



Read more: http://www.capitalfm.co.ke/news/Kenyanews/IGAD-backs-Kenya-bid-on-ICC-11468.html#ixzz1CYOliSp6
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Raila still preferred Kenyan presidential candidate

Written By:Emmanuel Ntoyai

If elections were to be held in Kenya today Prime Minister Raila Odinga would be the preferred presidential candidate.

This is according to a joint poll released by Infotrak Harris Poll and Strategic Research.

The results put the premier ahead of the other frontrunners with 44.8% and 46% as per Infotrak Harris Poll and Strategic Research respectively.

Deputy Prime Minister Uhuru Kenyatta (13 %) and Vice President Kalonzo Musyoka (10%) follow in second and third places respectively.

Gichugu MP Martha Karua comes in third with 8% while Eldoret North MP William Ruto is fifth with 7%.

The same polls show that majority of Kenyans do not support the alleged KKK alliance giving varying reasons such as the fact that the alliances would result to tribalism, violence and divide Kenyans and that the alliance is formed by those on the Hague list.

According to the polls 68% of Kenyans do not support the alliance while only 29% supporting it.

But for those who support the move, Deputy Prime Minister Uhuru Kenyatta is preferred by many to lead the alliance.

According to the Strategic Research Odinga is also the preferred candidate to lead the nation come 2012 with 44.8%.

He is followed by Deputy Prime minister Uhuru Kenyatta at 17.1 %, with vice president Kalonzo Musyoka coming in third with 10.5%.

Eldoret North MP William Ruto follows with 8.7 % and Martha Karua follows with 6.3%.

Other politicians who made the list include Franklin Bett and Musalia Mudavadi both with 2.2% and Internal Security minister George Saitoti at 2.1%.

Strategic Research found that 92% of people above 18 years to have been registered as voters.

Strategic Research now says it may consider extending their polls to Kenyans in the diaspora to get their views on political issues in the country.

The Hague visit

Bunge High

Kibaki in Addis to push for ICC deferral

BY ROBIN NJOGU

ETHIOPIA, Jan 30 - President Mwai Kibaki arrived in Addis Ababa, Ethiopia on Saturday to attend the 16th Ordinary Session of the Assembly of Heads of State and Government of the African Union (AU).

The plane carrying the President and his entourage touched down at Bole International Airport shortly after 5pm.

On arrival, President Kibaki was received by senior Ethiopian Government officials and Kenyans resident in Ethiopia led by the Kenyan Ambassador to Ethiopia Amb. Dr Monica Juma, her Somalia counterpart Amb.
Major (Rtd) James Mulinge and Kenya’s Permanent Representative to the United Nations Amb. Zachary Muburi Muita.

The theme of the summit which opens on Sunday is “Towards Greater Unity and Integration through Shared Values”.

Among the issues that are expected to be discussed during the two-day Heads of State and Government summit include the report of the AU Peace and Security Council (PSC).

The PSC which Kenya is a founding member, is a standing decision-making organ for the prevention, management and resolution of conflicts Africa.

It is also a collective and early warning arrangement to facilitate timely and efficient response to conflicts and various crisis situations in Africa.

The summit will also discuss the report of the Committee of Heads of State and Government on Climate Change which Kenya is a member. Other members are Algeria , the Democratic Republic of the Congo (DRC), Ethiopia , Mauritius , Mozambique , Nigeria and Uganda .

Also included on the agenda of the 16th AU Heads of State and Government summit is the consideration of the report of the Chairperson of NEPAD Heads of State and Government Orientation Committee. One of NEPAD’s programmes is the African Peer Review Mechanism (APRM), an African self-monitoring instrument which Kenya voluntarily acceded to in March 2003.

Other issues that will be debated by the Heads of State and Government are reports on the United Nations Reforms and the transformation of the African Union Commission into the African Union Authority.

President Kibaki was accompanied to the summit by Internal Security Minister Prof. George Saitoti who is also the acting Foreign Affairs Minister, Planning Minister Wycliff Oparanya, Defence Minister Yusuf Hajji and Public Service Minister Dalmas Otieno among other senior Government officials.

Read more: http://www.capitalfm.co.ke/news/Kenyanews/Kibaki-in-Addis-to-push-for-ICC-deferral-11464.html#ixzz1CWuTRXOQ
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MPs mull censure motion against Raila

BY EVELYN WANJIRU


NAIROBI, Kenya, Jan 30 - A section of MPs are mulling a censure motion against Prime Minister Raila Odinga following a row with President Mwai Kibaki over recent judicial nominations.

The 14 legislators claimed at a media conference in Nairobi that Mr Odinga was extensively consulted before the appointment of the three nominees by the President for the posts of Chief Justice, Attorney General and Director of Public Prosecutions.

"I have a lot of respect for him (Mr Odinga) but his 'yes' and 'no' have got the same meaning. The President consulted him widely and even called him when he was in Addis Ababa but he refused to answer. If he continues like this, we are going to move a motion of no confidence against him," warned Kaloleni MP Kambi Kazungu.

They said the appointments were of national importance and should therefore not be politicised.

His Mathira counterpart Ephraim Maina termed Mr Odinga's allegations that the appointments were made to serve the interests of a few people as bordering on the incitement of the public.

They questioned how Lands Minister James Orengo and a key ally of Mr Odinga called a press conference on Friday evening to reject the appointees before the announcement was made.

"If it is true that the President had not consulted the PM, how come Honourable Orengo knew details over the appointments? That is extremely disturbing," Mr Maina said.

While maintaining their support for the nominations, the legislators said President Kibaki, who is the appointing authority did not contravene the law which although provides for consultations does not mean that there should be concurrence.

They further said they were waiting for the names of the nominees to be tabled in Parliament.

"As parliamentarians, we want to urge the President to submit those names as soon as possible so that we can discuss them, pass them or refer some of them back for more vetting," said Konoin MP Dr Julius Kones.

It was up to Parliament to determine whether the individuals were competent and of unquestionable integrity, they added.

Meanwhile, Internal Security Minister Prof George Saitoti and his Defence counterpart Yusuf Haji have asked Mr Odinga to stop generating unnecessary anxiety in the country.

"We have confirmed with H.E the President that indeed there were exhaustive consultations before these nominations were made as required by the Constitution. We, therefore, find the claim that the nominations were done without consultations and without adherence to the Constitution disturbing and unwarranted. It should be made crystal clear that consultations were undertaken," a statement dispatched by the Presidential Press Service from Addis Ababa and signed by the two Ministers said.

"Parliament is the body that will decide, on behalf of the people of Kenya , whether the nominees should be appointed. We caution against divisive utterances by leaders that will generate unnecessary anxiety. Specifically, remarks to the effect that the President’s decision has 'thrown the country into a major constitution crisis' are exaggerated and uncalled-for," the two ministers who have accompanied the President to the African Union Summit in the Ethiopian capital emphasised.

Public Health and Sanitation Minister Beth Mugo said she feared that the ongoing 'political noise' over the nominations was likely to affect the implementation of the constitution and other reforms being undertaken.

She however urged the nominees not to pay any attention to the 'noise' but to accept their posts and await Parliament's vetting.

"I would also like to urge my colleagues to support the President to implement the new constitution because at the end of the day, the buck stops with him," Mrs Mugo argued.

President Kibaki on Friday evening nominated Court of Appeal Judge Alnashir Visram to head Kenya's judiciary. The President also named Professor Githu Muigai the next Attorney General, while lawyer Kioko Kilikumi is listed as the country's new Director of Public Prosecutions.

A statement from the Presidential Press Service said the appointments had been made after consultations with the Prime Minister and in accordance with the Constitution, but Mr Odinga insisted he was not involved.

"Hiyo ni Kiswahili, ambaye hatutaki (This is insincerity which we do not want),"said the PM. "Our nation must be led in accordance with the law and respect."

According to the new constitution, any Presidential appointments must be done in consultations with the Premier Minister. However there is no specified way of ascertaining the consultations.

"Because of the principles set out in the constitution which include fair opportunity, merit, competitiveness and transparency, no appointments can be made without inviting applications and creating a process where the candidates are interviewed and interrogated," said the PM.

Read more: http://www.capitalfm.co.ke/news/Kenyanews/MPs-mull-censure-motion-against-Raila-11467.html#ixzz1CWtcBhDq
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Why I reject new CJ, AG, DPP

By Raila Odinga

The Grand Coalition Government was formed on the foundation of the Constitution of Kenya and the National Accord and Reconciliation Act.

The provisions of the Constitution and the National Accord and Reconciliation Act have been secured by the new Constitution as promulgated on the 27th of August 2010 and therefore the GCG is a body and structure established by the Constitution.

The Constitution spells out the national values and principles of governance which must be complied with by all state organs, state officers and all persons whenever any of them makes or implements public policy decisions.

This applies to the President and the Prime Minister. The values and principles include the Rule of Law, Participation of the People, Inclusiveness, Good Governance, Transparency and Accountability.

The Constitution also spells out the principles of public service which include fair competition and merit as the basis of appointments and promotions and affording all Kenyans equal opportunities, training and advancement at all levels of public service.

The guiding principle of leadership and integrity include selection on the basis of personal integrity, competence and suitability and this should of course be done without being influenced by nepotism, favoritism and other improper motives.

These are fairly high standards which have been enumerated and elaborated by the constitution. These standards form the very basic tenets of the constitution and are constant and persistent theme in the Constitution.

The Constitution also requires that any appointment by the President in terms of Section 29 of the Transitional and Consequential Provisions (The Sixth Schedule of the Constitution) can only be made after consultations with the Prime Minister and with the approval of the National Assembly.

The National Accord and Reconciliation Act, which has a constitutional status on the principles of partnership of the coalition government states that there must be real power sharing , constant consultations, mutual trust and confidence and the spirit of and willingness to compromise.

I was therefore deeply shocked and dismayed when I was informed that the President had purportedly proceeded to appoint and Chief Justice, the Attorney General, the Director of Public Prosecutions and the Director of Budget, without adherence to the provisions and principles of the Constitution.

Without a doubt this decision has thrown the country into a major Constitutional Crisis and may be the beginning of the end in respect of the implementation of the reform agenda if not corrected and reversed.

The reform of the Judiciary and the entire law enforcement sector must be carried out carefully and with the involvement of the people of Kenya. The process cannot succeed if we begin with a serious dispute and controversy of this kind.
These appointments constitute serious contraventions and violations of the provisions and principles of the Constitution.

The contraventions and violations include the following:

1. As the Prime Minister,I was not consulted at all by the President and before I left for Addis Ababa, my office informed the Office of the President that consultations can only be held upon my return and his return from Ethiopia. This was there a unilateral and decision

2. Section 23 (1) of the Transitional and Consequential Provisions (Sixth Schedule) of the Constitution requires that all judges and magistrates who were in office on the effective date can only continue to serve as such only after they have been vetted for suitability on the basis of mechanisms and procedures established by Parliament.

It is instructive that even the Chief Justice in office immediately before the effective date can only continue to serve on the Court of Appeal after undergoing the process of vetting. This is not a personal issue or a judgment of the individuals who have been allegedly nominated. The fact is that no serving judge is qualified for appointment until they have been vetted.

3. Section 24 (2) of Sixth Schedule provides that the new Chief Justice "Shall be appointed by the President, subject to the National Accord and Reconciliation Act and after consultations with the Prime Minister and with the approval of the National Assembly." Article 166 (1) states that "The President shall appoint the Chief Justice and the Deputy Chief Justice in accordance with the recommendation of the Judicial Service Commission and subject to the approval of the National Assembly. These provisions have not been suspended or exempted in the Transitional Provisions and must therefore be complied with.

4. Because of the principles set out in the Constitution which include fair opportunity, merit, competitiveness and transparency, no appointments can be made without inviting applications and creating a process where the candidates are interviewed and interrogated. That is the only way we can create confidence by the public in the institutions we establish.

5. The appointments have been made to serve the interests of a few people, including elements within upper echelons of government who have serious credibility and integrity issues and constitute the networks of impunity.

This decision cannot stand and for reasons I have stated, among others, it is null and void.

We are taking measures to ensure that we preserve, protect and defend the Constitution of Kenya as by law established and to uphold the sovereignty, dignity and integrity of the people of Kenya.

(The writer is Prime Minister of the Republic of Kenya)

Read more: http://www.capitalfm.co.ke/news/Eblog/view/Why-I-reject-new-CJ%2C-AG%2C-DPP.html#ixzz1CWsfiWe3
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