Friday 17 August 2012

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

Okiya,

Thank you for than very clear and comprehensive answer. It shows the
level of respect you accorded my question.

May I ask you a simple question please:

This level of arrogance that I see in you; did you have to take
training for it or is it something that comes naturally to you?

By the way, if you didn't want to answer my question you should have
simply kept quiet instead of answering me as if you're addressing a 3
yr-old.

Courage




On 8/17/12, Okiya Omtatah Okoiti <omtatah@yahoo.com> wrote:
> 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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>>>>
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>>>>
>>>>
>>>>
>>>
>>>
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>>>
>>>
>> --
>> *************************************************************************************************
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