Peace to you, too.
That you wrote the brief yourself and take full responsibility for it is noted.
You are so very wrong when you say that only Parliament can hold the president accountable when he breaks the law and that the courts should have no say or role in correcting such violations. So wrong it will take time I don't have to explain in case it's not obvious to you why other than to say your position is no different than what we just freed ourselves from and that is, a situation where the President routinely violates the law or acts lawlessly knowing fully well nobody will do a darn thing about it--including Parliament which even under the new Constitution can sit on its laurels and do nothing as he does so.
You are actually confusing two issues when you keep talking about the courts trying the president: There are violations of law by the president that rise to the level of impeachable offenses which must and can only be prosecuted by the National Assembly at the initiation of at least one of its members in a motion supported by at least 1/3 of the National Assembly. All the laws you have cited apply in that situation.
However, there are violations of the law that do not rise to that level which can be challenged in court even by an ordinary citizen such as was the case we are discussing about. The difference between the two is simply a matter of interpretation and the only guidance the constitution provides is the violations of the one kind are ordinary while the other--the impeachable kind are "gross."
You say I am wrong in saying the president is immune from suit related to his official conduct only when acting constitutionally. You are wrong. I am right and let me re-quote myself and place proper highlights for you to see why: the president is immune from suit related to his official conduct only when acting constitutionally. In other words-- in case someone misses this, I was not addressing all other situations the president may be immune to suit represented by the provisions you cite. The petition Hon. Lady Justice Mumbi Ngugi ruled on challenged the president's official conduct, which was alleged and now confirmed to be unconstitutional.
Hope this clarifies for you my position.
Peace, Unity and Truth
Omwenga
On Fri, Aug 17, 2012 at 1:46 AM, Okiya Omtatah Okoiti <omtatah@yahoo.com> wrote:
Ndugu Omwenga,Peace!1. I wrote the brief myself hence I take full responsibility for it.2. I fully agree with you that "Kibaki, like all of us, must obey the law for neither he nor anyone else is above it." All I am saying is that, when Kibaki is still in power and he breaks the law, the institution to hold him accountable is Parliament not the Courts. I am also not discussing the legality or otherwise of his appointment of county commissioners. All I am asking the courts to establish is that the Kenyan Judiciary has no jurisdiction to put a serving Kenyan President on trial, even indirectly. Only Parliament can do so. That is what the Constitution says in Article 145.3. You are wrong to state that The president is immune from suit related to his official conduct only when acting constitutionally.This is what the Constitution says:Protection from legal proceedingscrime for which the President may be prosecuted under any treaty to
143. (1) Criminal proceedings shall not be instituted or continued in any court
against the President or a person performing the functions of that office,
during their tenure of office.
(2) Civil proceedings shall not be instituted in any court against the
President or the person performing the functions of that office during
their tenure of office in respect of anything done or not done in the
exercise of their powers under this Constitution.
(3) Where provision is made in law limiting the time within which
proceedings under clause (1) or (2) may be brought against a person, a
period of time during which the person holds or performs the functions
of the office of the President shall not be taken into account in
calculating the period of time prescribed by that law.
(4) The immunity of the President under this Article shall not extend to a
which Kenya is party and which prohibits such immunity.(a) on the ground of a gross violation of a provision of this4. I still hold that the courts have no jurisdiction to put a serving president on trial. The duty belongs to Parliament. This is what the Constitution says:Removal of President by impeachment
145. (1) A member of the National Assembly, supported by at least a third of all
the members, may move a motion for the impeachment of the
President—
Constitution or of any other law;(b) where there are serious reasons for believing that the Presidenthas committed a crime under national or international law; or
(c) for gross misconduct.
(2) If a motion under clause (1) is supported by at least two-thirds of all the
members of the National Assembly –
(a) the Speaker shall inform the Speaker of the Senate of that
resolution within two days; and
(b) the President shall continue to perform the functions of the office
pending the outcome of the proceedings required by this Article.
(3) Within seven days after receiving notice of a resolution from the
Speaker of the National Assembly—
(a) the Speaker of the Senate shall convene a meeting of the Senate to
hear charges against the President; and
(b) the Senate, by resolution, may appoint a special committee
comprising eleven of its members to investigate the matter.
(4) A special committee appointed under clause (3) (b) shall –
(a) investigate the matter; and
(b) report to the Senate within ten days whether it finds the
particulars of the allegations against the President to have been
substantiated.
(5) The President shall have the right to appear and be represented before
the special committee during its investigations.
(6) If the special committee reports that the particulars of any allegation
against the President –
(a) have not been substantiated, further proceedings shall not be
taken under this Article in respect of that allegation; or
(b) have been substantiated, the Senate shall, after according the
President an opportunity to be heard, vote on the impeachment
charges.
(7) If at least two-thirds of all the members of the Senate vote to uphold
any impeachment charge, the President shall cease to hold office.
Thanks and may you have a blessed time.
OOO
The Spearmaster
From: Samuel Omwenga <somwenga@gmail.com>
To: progressive-kenyans@googlegroups.com
Cc: NVK- M MAGEUZI <NVK-Mageuzi@yahoogroups.com>; africa- oped <africa-oped@yahoogroups.com>; New Vision List <newvisionkenya@yahoogroups.com>; WANAKENYA KENYA <wanakenya@googlegroups.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 7:08 AM
Subject: Re: [PK] Okiya Omtatah wants court to declare old constitution still in force?
Okiya Omtatah,
Whoever prepared this brief has misstated and misapplied the law and quite frankly addresses all manner of irrelevant and inapplicable issues and provisions as it relates to President Kibaki's illegal appointment of the commissioners and to argue that only a vote of no confidence against the president is the remedy for his unconstitutional actions demonstrates a lack of understanding of the law and ditto for the argument that the president is not immune to suit which by the argument advanced below it's clear the author collapses two issues into one premise and consequentially reaches a false conclusion, that the president cannot be sued in other than for criminal conduct. The president is immune from suit related to his official conduct only when acting constitutionally. When the president is acting unconstitutionally as he has in the illegal appointment of the commissioners, he is amenable to suit to prevent him from abusing the constitution he is sworn to uphold.
I need not get into the details of why the president acted unconstitutionally for Hon. Lady Justice Mumbi Ngugi cogently stated the reasons why but all one need to know is, a law was passed, which Kibaki himself consented to known as the Transition to Developed Government Act, 2012, which was clearly and indisputably enacted to provide the only mechanism to shame the county governments and devolution of powers, including the appointment of these commissioners by the Transition Authority established under that law but Kibaki simply chose to ignore this very law.
Again, these are the facts which clearly show Kibaki acted in violation of law and no amount of raising false arguments and citing inapplicable or misplaced provisions of the new or even old constitution is going to change that fact.
Hon. Lady Justice Mumbi Ngugi was right on both fact and law it's a waste of time for anyone to even bother challenging her decision.
Kibaki, like all of us, must obey the law for neither he nor anyone else is above it.
Peace, Unity and Truth
OmwengaOn Thu, Aug 16, 2012 at 2:34 PM, 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 OkoitiThe 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 KenyaFrom: George Nyongesa <grnyongesa@yahoo.com>Date: Thu, 16 Aug 2012 01:24:36 -0700 (PDT)ReplyTo: progressive-kenyans@googlegroups.comSubject: Re: [PK] Okiya Omutata wants court to declare old constitution still in force?--
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
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Bid seeks to cushion Kibaki from courts
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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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Samuel N. Omwenga, Esq.
Chief Executive Officer
LLP Enterprise, LLC
**********
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Samuel N. Omwenga, Esq.
Chief Executive Officer
LLP Enterprise, LLC
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CONFIDENTIALITY: This e-mail and any attachments are exclusively for the person or entity to which they are addressed. This message is confidential and may contain privileged information protected by law, which should not be used or disclosed to persons other than the intended recipient. Under no circumstance should its content be retained, saved, copied, used, disclosed or distributed. If you receive this message by mistake, please destroy its content and notify the sender immediately.Thank you.
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