[wanabidii] Re: better-kenya Re: [PK] Okiya Omtatah wants court to declare old constitution still in force?

Okiya,

I realize it may be difficult to get used to this but I want to ask
youu a favour.

The folks on these forums are not lawyers. Write to them as if you are
writing to someone who has no legal training. You seem to write here
as if we're lawyers. Summarize your stuff and be as brief as possible.
People lose interest after 2 pages. Personally, I lose interest after
one page if I still don't see the theme.

Please heed my advice. Otherwise you are just talking to yourself and
not really communicating with anyone.

Courage,
Oduor Maurice wod Ugenya Ukwala



On 8/17/12, Okiya Omtatah Okoiti <omtatah@yahoo.com> wrote:
> Ndugu Ombok,
>
> Peace!
>
> 1. This is not for civic education, but for the courts to interpret. If the
> Public Interest Litigation (PIL) will have a civic education component, so
> be it. I will thank God for that.
>
>
> 2. The PIL is not about Kibaki, but the President in power. It just happens
> to be Kibaki. Soon we will have another person in power. It might even be a
> person you support and others oppose. So let's not personalise the debate.
>
> 3. Yes I am contradicting my earlier ignorance-inspired position on the
> issue. You, others and myself sued Kibaki over his irregular reappointment
> of Justice (rtd) Aaron Ringera to serve a second term as KACC Director.
> Those are years ago. I have been researching the twine doctrines of
> presidential immunity and impeachment, and I have discovered that we were
> WRONG to sue a serving president, and our Courts failed miserably when they
> entertained us!  I am a student of St. Thomas Aquinas, and I fully stand by
> his principle of completeness. If I come across a truth I am bound by it,
> irrespective of the consequences. Hence, I have come across this truth in
> our Constitution and I will stand by it, irrespective of whether or not it
> is popular, or it contradicts my earlier ignorance.
>
>
> 4. I am not discussing the merits of the appointment of the 47 county
> commissioners. I am only saying the only institution empowered by the
> Constitution to put a serving president on trial is Parliament. I am not
> saying Kibaki is above the law; all I am saying is that let us obey the law
> we have given ourselves. If Kibaki has violated the Constitution or broken
> any law, let's
>
>
> 5. Though your campaign for peaceful elections is most noble and we must all
> join in, I decline to join any campaign in this particular a matter.
> Campaigns for or against will only muddy the waters. Instead, I demand that
> we debate the issues because it is only by knowing the truth that we shall
> be set free.
>
> 6. I am protecting the Constitution.  I am not reminding Kibaki of
> privileges that he should not be having to begin with. If we did not wish
> for the President to have immunity, then we should have removed the immunity
> when we changed the Constitution. Well, we cannot eat our cake and have it.
> We must respect the law as it is, not the law as we would wish it to be. And
> i hope in your civic education you teach the whole law as it is, and you do
> not cherry pick only that which you are comfortable with.
>
> 7. I am off to Kibera Law Courts for one of the very many Republic Vs.
> Omtatah criminal cases. Jioni si ununue uji pale pale so we can continue the
> discussion?
>
> Kindest regards,
>
> OOO
> The Spearmaster
>
>
>
>
> ________________________________
> From: otieno ombok <ombokcyu@yahoo.com>
> To: wanakenya@googlegroups.com
> Cc: "progressive-kenyans@googlegroups.com"
> <progressive-kenyans@googlegroups.com>; NVK- M MAGEUZI
> <NVK-Mageuzi@yahoogroups.com>; africa- oped <africa-oped@yahoogroups.com>;
> New Vision List <newvisionkenya@yahoogroups.com>; KENYA ONLINE
> <kenyaonline@yahoogroups.com>; Kenya - Alternatives Googlegroups
> <kenya-alternatives@googlegroups.com>; Wanabidii Googlegroups
> <wanabidii@googlegroups.com>; Young professionals-ke
> <youngprofessionals_ke@googlegroups.com>
> Sent: Thursday, August 16, 2012 5:11 PM
> Subject: better-kenya Re: [PK] Okiya Omtatah wants court to declare old
> constitution still in force?
>
>
> Comrade Omtata,
>
> Thank you for this PIL that for me is not so much of what a PIL is but for
> the civic education it does to the society.
>
> For a PIL, you are contradicting yourself because in the past you, I and
> others have taken Kibaki to court on a PIL, for the reappointment of Ringera
> using the old constitution.
>
> Kibaki is not immuned to break the constitution, the letter and spirit of
> the constitution is within the aspiration of Kenyans. What happened alot as
> this constitution was being done, there were political intrigues that made
> us end up with many unwanted aspects but we hope to make it better with
> time. Please spend your energy in protecting the constitution and not remind
> Kibaki of privileges that he should not be having to begin with.
>
> The constitution asks the president to consult the PM, the gender element
> and the regional
> balance are all valid reasons that without, and with the Kibaki we know
> better, the whole government by now would be fiiled by people from the same
> region without apology.
>
> I finally appeal to all of you to join my Mkenya Daima campaign for peaceful
> elections. Without which, the constitution you are bragging with will be
> thrown out in the event we go to civil war.
>
> Otieno Ombok
> National Coordinator
> My Kenya
>
> --- On Thu, 8/16/12, Okiya Omtatah Okoiti <omtatah@yahoo.com> wrote:
>
>
>>From: Okiya Omtatah Okoiti <omtatah@yahoo.com>
>>Subject: Re: [PK] Okiya Omtatah wants court to declare old constitution
>> still in force?
>>To: "wanakenya@googlegroups.com" <wanakenya@googlegroups.com>
>>Cc: "progressive-kenyans@googlegroups.com"
>> <progressive-kenyans@googlegroups.com>, "NVK- M MAGEUZI"
> <NVK-Mageuzi@yahoogroups.com>, "africa- oped"
> <africa-oped@yahoogroups.com>, "New Vision List"
> <newvisionkenya@yahoogroups.com>, "KENYA ONLINE"
> <kenyaonline@yahoogroups.com>, "Kenya - Alternatives Googlegroups"
> <kenya-alternatives@googlegroups.com>, "Wanabidii Googlegroups"
> <wanabidii@googlegroups.com>, "Young professionals-ke"
> <youngprofessionals_ke@googlegroups.com>
>>Date: Thursday, August 16, 2012, 9:52 PM
>>
>>
>>Maurice Oduor:
>>My application is trying to achieve constitutionalism.
>>
>>
>>
>>________________________________
>> From: Maurice Oduor <mauricejoduor@gmail.com>
>>To: wanakenya@googlegroups.com
>>Cc: "progressive-kenyans@googlegroups.com"
>> <progressive-kenyans@googlegroups.com>; NVK- M MAGEUZI
>> <NVK-Mageuzi@yahoogroups.com>; africa- oped <africa-oped@yahoogroups.com>;
>> New Vision List <newvisionkenya@yahoogroups.com>; KENYA ONLINE
>> <kenyaonline@yahoogroups.com>; Kenya - Alternatives Googlegroups
>> <kenya-alternatives@googlegroups.com>; Wanabidii Googlegroups
>> <wanabidii@googlegroups.com>; Young professionals-ke
>> <youngprofessionals_ke@googlegroups.com>
>>Sent: Thursday, August 16, 2012 7:42 AM
>>Subject: Re: [PK] Okiya Omtatah wants court to declare old constitution
>> still in force?
>>
>>Okiya,
>>
>>Can you boil down exactly what you application is for, for us, into 2
>>or 3 sentences? An average blogger can not sit and read all those 9
>>pages.
>>What is your application trying to achieve?
>>
>>Courage
>>
>>
>>
>>
>>On 8/16/12, Okiya Omtatah Okoiti <omtatah@yahoo.com> wrote:
>>> Dear Comrades,
>>>
>>> Thanks all for your comments
>>> and the useful concerns you have expressed on the fact that I have a led
>>> a
>>> team of Petitioners (i.e. Michael S. Chepkwony, Simon L. Kalale, and
>>> Peter
>>> Njoroge) to demand that the Courts courts clarify their jurisdiction
>>> regarding the constitutionally enshrined immunity from legal proceedings
>>> that an incumbent President enjoys. I also wand the courts to declare
>>> what
>>> function the provisions on the impeachment of the president
> serve in our
>>>
> Constitution.
>>>
>>>
>>> My position is that we have a constitution not a blank sheet of paper.
>>> Where
>>> I stand, we have a solid Constitution, and
>>> it states very clearly that Parliament not the courts should prosecute
>>> the
>>> President whenever he violates the law.
>>>
>>>
>>> I am not saying that the
>>> President is above the law; I am just pointing out the correct forum for
>>> putting the President on trial. And by so doing I am also breathing life
>>> into
>>> Article 145 which empowers the Senate to be a court for trying the
>>> President. Hence, the need to elect Senators who can also have the
>>> capacity to be a court for holding a Kenyan President accountable
>>> whenever
>>> the need arises.
>>>
>>> The raging controversy over the exercise of the High Court's
>>> jurisdiction in relation to the President's direct exercise of his
>>> executive powers in the
> appointment of 47 county commissioners raises
>>> fundamental constitutional questions. Beyond the constitutional duty to
>>> obey court orders is the question of the separation and balance of
>>> powers as laid out in the Constitution of Kenya, 2010.
>>>
>>> In
>>> exercise of his powers under Sections 23 and 24 of the former
>>> Constitution, which are still in force by dint of Section 3(2) of the
>>> Sixth Schedule to the Constitution of Kenya, 2010, President Mwai Kibaki
>>>  personally appointed the county commissioners via Kenya Gazette Notice
>>> No. 6604, published on 11th May, 2012.
>>>
>>> On 13th May, 2012, and
>>> on 17th May, 2012, respectively, Judicial Review Application No. 207 of
>>> 2012, and Constitutional Petition No. 208 of 2012, were filed in the
>>> High Court at Nairobi seeking to quash the Presidential appointments for
>>>  being unconstitutional. On 29th
> June, 2012, after hearing the two
>>> cases, the Honourable Lady Justice Mumbi Ngugi declared the appointments
>>>  unconstitutional and purported to quash them.
>>>
>>> I posit that it
>>> is unconstitutional for anybody to challenge in court the legality of
>>> the said appointments, or of any other direct action of the President in
>>>  exercise of his executive powers, before the expiry of President
>>> Kibaki's term of office.
>>>
>>> Under Section 14 of the former
>>> Constitution, which remains in force until the elections of March 14,
>>> 2012, as stated above, the President enjoys absolute immunity from legal
>>>  proceedings while in office. Under Section 59(3), also still in force,
>>> where the President is alleged to have violated the law, the National
>>> Assembly can pass a vote of no confidence in his Government.
>>>
>>> Further, though suspended until
> the coming elections by dint of Section
>>> 2(1)(c), Article 143 of the Constitution of Kenya, 2010, also grants the
>>>  President absolute immunity from legal proceedings, during his tenure
>>> of office, in respect of anything done or not done in the exercise of
>>> his constitutional powers, except where the President may be criminally
>>> prosecuted under any treaty to which Kenya is party and which prohibits
>>> such immunity.
>>>
>>> Under Article 145 (also suspended as
>>> aforementioned), Parliament can impeach the President or indict him for a
>>>  gross violation of a provision of the Constitution or of any other law;
>>>  for committing a crime under national or international law; or for
>>> gross misconduct. If the President is impeached he shall vacate office.
>>>
>>> Consequently, under both the former and the new constitutions, during
>>> the President's tenure
> in office he can only be held accountable for any
>>>  alleged illegality by Parliament. No court has jurisdiction to sit in
>>> judgement of the President whilst in office to determine the legality or
>>>  otherwise of anything he has done or omitted to do in the exercise of
>>> his powers under the Constitution or any other law.
>>>
>>> The
>>> immunity from legal proceedings belongs to the President as an
>>> individual, not to him as part of the Executive. And since the Attorney
>>> General is the principal legal adviser to the Government not to the
>>> President, and he represents the national Government not the President
>>> in court, the AG can only be sued on behalf of the Government, where
>>> alleged violations are committed by institutions exercising executive
>>> powers.
>>>
>>> The AG cannot be sued on behalf of the President where
>>> the latter allegedly violates
> the law personally. Neither can cabinet
>>> ministers and other agents of the Executive be sued on his behalf. Where
>>>  the President has allegedly violated the law, he himself must
>>> personally face the music, yet the Constitution grants him absolute
>>> immunity from legal proceedings during his tenure.
>>>
>>> And if you
>>> don't sue the President, how on earth can a court grant orders against
>>> him yet he was not part of the suit? Hence, the court was wrong and
>>> acting in vain when it issued order against the AG and the PS Internal
>>> Security for an appointment the President made in his official capacity,
>>>  citing sections of the Constitution that empower him to do so.
>>>
>>> The import of these immunity and impeachment provisions is that the
>>> President is held accountable politically and not judicially. Because of
>>>  the special and political nature of
> his duties, subjecting the
>>> President's actions to review by the judicial branch might not consider
>>> the political dimensions of his decisions, and may lead to a deluge of
>>> politically–inspired lawsuits which could distract the President and
>>> compromise the efficacy of his office.
>>>
>>> In making the President
>>> accountable to Parliament during his term of office, the Constitution
>>> has intentionally preferred that the political process, rather than the
>>> judicial process, be the judge of alleged illegality of direct
>>> presidential exercise of executive power.
>>>
>>> Hence, the
>>> President's constitutional immunity from prosecution calls for great
>>> deference from the courts. The Judiciary should defer to the elected
>>> branches and exercise their power without subverting the other
>>> provisions and ideals of the Constitution.
>>>
>>> If the
> courts
>>> ignore the constitutional limits on their power regarding presidential
>>> immunity, the President will be controlled by the will of the unelected
>>> judges rather than by that of voters through their elected
>>> representatives in Parliament. The courts cannot become such political
>>> creatures and not alienate the elected branches to the point of revolt
>>> against judicial authority.
>>>
>>> SO LET PARLIAMENT DO ITS WORK AND LET THE COURTS KNOW THEIR LIMIT!
>>>
>>>
>>> Kindest regards,
>>>
>>> Okiya Omtatah Okoiti
>>> The Spearmaster
>>>
>>>
>>>
>>> ________________________________
>>>  From: "nelsonoreje@gmail.com" <nelsonoreje@gmail.com>
>>> To: progressive-kenyans@googlegroups.com
>>> Sent: Wednesday, August 15, 2012 8:26 PM
>>> Subject: Re: [PK] Okiya Omutata wants court to declare old constitution
>>> still in force?
>>>
>>>
>>> George, do you want us to accommodate world views that are not consistent
>>> with the events
>>> Sent from my BlackBerry® smartphone provided by Airtel Kenya
>>> ________________________________
>>>
>>> From:  George Nyongesa <grnyongesa@yahoo.com>
>>> Sender:  progressive-kenyans@googlegroups.com
>>> Date: Thu, 16 Aug 2012 01:24:36 -0700 (PDT)
>>> To: <progressive-kenyans@googlegroups.com>
>>> ReplyTo:  progressive-kenyans@googlegroups.com
>>> Subject: Re: [PK] Okiya Omutata wants court to declare old constitution
>>> still in force?
>>>
>>> Lee, I beg disagree with you vis a vis your remark on Omtata. I am well
>>> acquainted to Omtata and Neto. The two are friends and have worked
>>> together
>>> for a long time. In my estimation the two have mutually beneficial
>>> friendship.
> Therefore, your allegation on Omtata is wild and unnecessary
>>> attack. Seriously, we must learn to appreciate and respect the right of
>>> other people to have variant worldview to ours.
>>> George Nyongesa
>>>
>>>
> --- On Thu, 8/16/12, Lee Makwiny <amosogal@gmail.com> wrote:
>>>
>>>
>>>>From: Lee Makwiny <amosogal@gmail.com>
>>>>Subject: Re: [PK] Okiya Omutata wants court to declare old constitution
>>>> still in force?
>>>>To: progressive-kenyans@googlegroups.com
>>>>Date: Thursday, August 16, 2012, 11:02 AM
>>>>
>>>>
>>>>If you are a politician and you want to fail, follow omtatah. His
>>>> association with Neto almost messed Neto.
>>>>
>>>>
>>>>On Thu, Aug 16, 2012 at 10:56 AM, <tomoreje@gmail.com> wrote:
>>>>
>>>>Nziu,
>>>>>
>>>>>Omtata is here, let him clarify.
>>>>>
>>>>>Cheers.
>>>>>-----Original Message-----
>>>>>From: MBEMBA NZIU <kingasste@gmail.com>
>>>>>Sender: progressive-kenyans@googlegroups.com
>>>>>Date: Thu, 16 Aug 2012 08:47:17
>>>>>To: progressive-kenyans<progressive-kenyans@googlegroups.com>
>>>>>Reply-To: progressive-kenyans@googlegroups.com
>>>>>Subject: [PK] Okiya Omutata wants court to
> declare old constitution still
>>>>> in force?
>>>>>
>>>>>Folks,
>>>>>
>>>>>I just cant understand this!
>>>>>
>>>>>Mbemba.
>>>>>
>>>>>
>>>>>HomeNewsPolitics
>>>>>
>>>>>Politics
>>>>>Bid seeks to cushion Kibaki from courts
>>>>>  Share Bookmark Print Email
>>>>>Email this article to a friend
>>>>>
>>>>>Friend's Email Address
>>>>>Your Email
>>>>>Message
>>>>>Submit Cancel
>>>>>Rating
>>>>>By NATION REPORTER
>>>>>Posted  Wednesday, August 15  2012 at  21:20
>>>>>
>>>>>In Summary
>>>>>
>>>>>    * Four activists are asking the court to declare that the old
>>>>>Constitution is still in force, and that President Kibaki was right
> in
>>>>>appointing 47 county commissioners.
>>>>>    * The petitioners want the case heard by three
>>>  judges to be
>>>>>appointed by Chief Justice Willy Mutunga.
>>>>>    * Attorney-General Githu Muigai and the Commission for the
>>>>>Implementation of the Constitution have been named as respondents.
>>>>>
>>>>>A group of activists is seeking to cushion President Kibaki from
>>>>>judicial decisions questioning some of his official actions.
>>>>>
>>>>>Mr Okiya Omtatah, Mr Michael Chepkwony, Mr Simon Kalale and Mr Peter
>>>>>Njoroge on Wednesday filed a petition at the High Court in Nairobi
>>>>>seeking orders stopping any interference in exercising executive
>>>>>powers by the President.
>>>>>
>>>>>"A declaration be issued to declare that during the President's
> tenure
>>>>>of office, the doctrine of separation of powers absolutely bars the
>>>>>High Court or any other court from adjudicating over legal proceedings
>>>>>in relation to the exercise of presidential powers," they argue in the
>>>>>petition.
>>>>>
>>>>>The four are asking the court to declare that the old
>>>  Constitution is
>>>>>still in force, and that President Kibaki was right in appointing 47
>>>>>county commissioners. (READ: Kibaki 'misled' on county chiefs case)
>>>>>
>>>>>The court, they say, should also rule that it was wrong for the case
>>>>>to be filed and entertained by the High Court.
>>>>>
>>>>>They argue that the court should determine the controversy surrounding
>>>>>the appointment of county commissioners by interpreting the various
>>>>>provisions to ensure that the
> law is clear in future.
>>>>>
>>>>>The petitioners want the case heard by three judges to be appointed by
>>>>>Chief Justice Willy Mutunga.
>>>>>
>>>>>They are also asking the court to determine whether it has the
>>>>>jurisdiction to determine the legality of Executive decisions under
>>>>>the former constitution.
>>>>>
>>>>>Attorney-General Githu Muigai and the Commission for the
>>>>>Implementation of the Constitution have been named as respondents.
>>>>>Share This Story
>>>>>
>>>>>Lady Justice Achode certified
>>>  the case urgent and directed that it be
>>>>>placed before the Constitutional and Human Rights Division on
>>>>>September
> 20.
>>>>>
>>>>>--
>>>>>*************************************************************************************************
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>>>>>
>>>>>
>>>>>
>>>>
>>>>
>>>>--
>>>>Luopean is an attitude, way of thinking/talkin/living, swagg, a movement,
>>>> a
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>>>>To subscribe:progressive-kenyans+subscribe@googlegroups.com:
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>>>>
>>>>
>>> --
>>>
> *************************************************************************************************
>>> PickUp Transport available ..Available for hire and
> tranport to anywhere in
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>>>
>>>
>>>
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>>
>>
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