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
>> lifestyle, self-motivation n more...
>>*FOR CAR-HIRE SERVICES IN KISUMU: CALL 0787-833804 or 0725-942054*
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>>Unsubscribe:progressive-kenyans+
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> the country..Capacity is 1500 kgs.Contact us for efficient reliable service
> .0722409129/0734767649.
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> Bedroom APARTMENT Available in Madaraka Estate. Minimum Stay is 4 Nights
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> Unsubscribe:progressive-kenyans+
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>
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> PickUp Transport available ..Available for hire and tranport to anywhere in
> the country..Capacity is 1500 kgs.Contact us for efficient reliable service
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> *************************************************************************************************
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> Bedroom APARTMENT Available in Madaraka Estate. Minimum Stay is 4 Nights
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