Sunday 24 March 2013

[wanabidii] The Supreme Court of Kenya



Good People,
 
 
Hold your peace and know that the going on in the court will be made live to
public audience and not behind the curtain or hidden somewhere behind the
closed board room.
 
 
Proper and Firm establishment of Counties are more fundamentally most
crucial as it is the backbone of the constitutional leadership success and
it cannot be loosely patched-up in kirakas or held with bandages.


Judy Miriga
Diaspora Spokesperson
Executive Director
Confederation Council Foundation for Africa Inc.,
USA
http://socioeconomicforum50.blogspot.com
 
 
 

The Supreme Court of Kenya

25TH MARCH 2013

REPUBLIC OF KENYA
IN THE SUPREME COURT OF KENYA
AT NAIROBI
CAUSE LIST

ON MONDAY 25TH MARCH, 2013 AT 10.00 A.M
BEFORE: THE SUPREME COURT OF KENYA

FOR PRE TRIAL CONFERENCE
1. PETITION NUMBER 3/ 2013 MOSES KIARIE KURIA & 2 OTHERS - VS- ISSACK HASSAN & ANOTHER

2. PETITION NUMBER 4/2013 GLADWELL WATHONI OTIENO & ANOTHER –VS- AHMED ISSACK HASSAN & 3 OTHERS

3. PETITION NUMBER 5/2013 RAILA ODINGA -VS- IEBC & 3 OTHERS

ESTHER NYAIYAKI
REGISTRAR, SUPREME COURT OF KENYA
22ND MARCH, 2013

Kenya chief justice pledges fair hearing for election challenge

Kenya's new chief justice Willy Mutunga delivers his speech as he takes office soon after a swearing in ceremony in Kenya's capital Nairobi June 20, 2011. REUTERS/Noor Khamis

By James Macharia and Humphrey Malalo

NAIROBI | Mon Mar 11, 2013 9:09am EDT
NAIROBI (Reuters) - Kenya's Supreme Court will handle any challenge to the result of last week's presidential election in a fair and speedy manner, the chief justice said on Monday, two days after defeated candidate Raila Odinga threatened legal action over the outcome.
Uhuru Kenyatta, indicted for crimes against humanity, was declared the winner on Saturday. Odinga refused to concede, although he urged his supporters to avoid any repeat of the violence that erupted after the last election in 2007.
 
 
Chief justice Willy Mutunga, appointed in 2011 to reform a legal system accused of serving the interests of the elite, said politicians and political parties had confidence in the judiciary to handle all electoral disputes.
A swift and transparent resolution of the dispute is seen as critical to restoring Kenya's reputation as a stable democracy, something that was helped by last week's largely peaceful vote.
"We at the Supreme Court are prepared to hear any petition that may be filed impartially, fairly, justly and without fear, ill-will, favor, prejudice or bias and in accordance with our constitution and our laws," Mutunga said.
The chief justice was speaking at a news conference held on the steps of the court after receiving a copy of the election results from electoral commission officials.
Several peaceful demonstrators waving Odinga posters near the gates to the court hours after Mutunga spoke, shouted: "We want Agwambo not the suspect", referring to Odinga, who is known as "Agwambo" or the daring one, and Kenyatta.
'DEMOCRACY ON TRIAL'
In rejecting the result, Prime Minister Odinga said "democracy was on trial in Kenya". His camp had raised complaints during tallying that the count was deeply flawed and called for it to be halted.
President-elect Kenyatta, now the deputy prime minister, won 50.07 percent of the vote, edging above the 50 percent needed to avoid a second round by about 8,400 of the 12.3 million votes cast.
International observers said the vote and count had been broadly transparent and the electoral commission said it had delivered a credible vote.
Kenyatta, Kenya's richest man and son of its founding president Jomo Kenyatta, faces trial at the International Criminal Court in The Hague on charges of playing a leading role in the wave of tribal killings that followed the disputed 2007 election.
How Western capitals deal with Kenya under Kenyatta and his government will depend on whether he and his running mate William Ruto, who is also indicted by the ICC, work with the tribunal. Both Kenyatta and Ruto deny the charges and have said they will work to clear their names.
The ICC prosecutor on Monday withdrew charges against one of Kenyatta's co-accused, senior government official Francis Muthaura, for lack of evidence.
The United States and other Western powers, big donors to Kenya, said before the vote that a Kenyatta win would complicate diplomatic ties with a nation viewed as a vital ally in a regional battle against militant Islam.
Mutunga said that the six Judges in the Supreme Court would hear any petition filed in the time allowed by the constitution, and invited the media to cover the proceedings live.
"I am sure that for justice to be done and to be manifestly seen to be done this public participation is absolutely necessary," he said.
CONFIDENCE
Odinga's Coalition for Reforms and Democracy (CORD) has up to seven days from Monday to file its case against the electoral commission, after Odinga said that "there was rampant illegality in the electoral process".
President Mwai Kibaki won a second term in 2007 after he was declared the winner by the then electoral commission, but Odinga said the vote was rigged and called for peaceful mass action.
However, riots broke out plunging Kenya into weeks of tribal bloodshed. Under a power-sharing deal brokered to end the violence, he was given the prime minister's post.
A new constitution, a key plank of the deal brokered by former U.N. chief Kofi Annan to end the post-election violence, has built public confidence in the courts.
Odinga said on Saturday his CORD alliance and most Kenyans had faith in a reformed judiciary and he would accept the Supreme Court's ruling on his petition. His comments quickly defused tensions in flashpoint areas.
(Editing by Giles Elgood)
 
 
 

Devolution off to smooth start as team takes oath

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Updated Sunday, March 24 2013 at 00:00 GMT+3
By Abdikadir Sugow
KENYA: The devolved system of government officially took off on Friday with the swearing-in of members of county assemblies.
The new system, under the new Constitution, is geared towards involving the people in governance by giving them chance to actively engage in law making, and also allows better supervision and implementation of policies at the grassroots.
The Constitution stipulates that every county government shall decentralise its services and co-ordinate its functions to efficiently serve the interests of the people at the local levels.
The county government includes a county assembly and executive committees led by governors who are directly elected.
The executive administration is charged with the responsibility of exercising executive power, implementing laws for administration of the county as well as carrying out other executive functions of the county.
Members of the county assemblies, otherwise county representatives and a Speaker, will have powers to enact laws for effective performance at the county level, act as an oversight instrument on the county executive committee and receive, approve plans and policies for smooth operation and management of resources and county institutions.
On the other hand, the county executive committees will implement county legislation within and also national legislation to the extent that the legislation so requires, manage and coordinate the functions of the county administration and its departments, prepare proposed legislation for consideration by the county assembly and provide the county assembly with full and regular reports on county matters.
And the law stipulates that the number of executive committee members should not exceed a third of the county assembly members if it has less than 30 members or l0 if the assembly has 30 or more members. The county governor and the deputy county governor are the chief executive and deputy chief executive of the county. When the governor is absent, the deputy governor acts as governor. A person cannot hold office of governor or deputy governor for more than two terms.
Key principles
The Constitution upholds that democratic principles are observed at the county level with members of the county assembly well represented in terms of gender, marginalised groups and persons with disability.
At the initial stage, the county governments oversee agriculture (crop and animal husbandry), fisheries, health services, cultural activities, public entertainment and public amenities, transport, trade development and regulation, planning and development, pre-primary education, village polytechnics, home craft centres and childcare facilities, implementation of specific national government policies on natural resources, environmental conservation and public works and services.
A county governor may be removed from office if the leader makes gross violation of the Constitution or any other law, if there are serious reasons for believing that the governor has committed a crime under national or international law, abuse of office or gross misconduct and physical or mental incapacity to perform the functions of governor's office.
And the President may suspend a county government due to internal conflict, war or other exceptional circumstances. The suspension cannot be for more than 90 days and when it is over, elections are held.
 
 
 

To serve Kenyans, the Cabinet needs leadership and not technical ability

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Updated 6 hrs 1 mins ago
By Kennedy Buhere
The next challenge of the incoming Government, regardless of the direction the Supreme Court will give to the two petitions on presidential election before it, is the appointment of the Cabinet.
For it is the members of the Cabinet and the Principal Secretaries who ultimately help the Government to translate the promises it made to the electorate into policies, and programmes for implementation.
It is the Cabinet Secretaries and Principal Secretaries (ministers and PSs under the old Constitution) who help the Government to effectively meet and take advantage of challenges and opportunities that rise up in the polity. History Professor, Macharia Munene, was quoted by a section of the press as saying those the president-elect should appoint "should have the expertise to hand the docket they have been nominated into."
That is, without question, bad advice. The Civil Service is suffused with men and women with technical ability. The ministries, departments and agencies are full of specialised people relevant to their respective mandates. All that they need is leadership. It needs men and women at the very top whose claim to those strategic positions should be leadership — ability to provide vision, mission, values, energy and shared goals and purpose.
In his best selling book, How to Wing Friends and Influence People, Dale Carnegie notes that even in such technical lines as engineering, about 15 per cent of one's success in performance as a manager, is due to technical knowledge and about 85 per cent is due to skill in human engineering—to personality and ability to lead people.
This country has, under President Kibaki's administration, established two very strong foundation for the effective management of public affairs. It has established strong legal and policy framework that now provides a strong foundation for institutional building. It has also radically improved the public finance by streamlining the collection of internal sources of revenue in central Government finance systems.
Government can now raise more than Sh800 billion today against about Sh200 billion it used to raise as revenue in 2002. The legal and policy framework that the Government has instituted in the last 10 years means that it can now meet any conceivable public policy challenge or problem. Nay, these has also made the Government have the potential, to take advantage of the strength and opportunities that the superior human resource capital it has and the strategic position it has. The workforce in the public service has all the technical reserves and energy to meet challenges. All that it needs is some ignition. Inspiration. Direction. People activate the latent energies. Someone to inject meaning in the things they do so that they can give the very best of their knowledge, abilities and ability to the tasks at hand.
The leadership in question will face the task of renewing the culture, break the bonds of bureaucracy and unleash the creativity that the workforce has to tackle the public policy challenges and problems that the Government anywhere, and this one in particular, face.
Prof Munene's prescription to the effect that the President-elect secures specialised people to handle the dockets they have been nominated into is counter-productive. The best strategy is to appoint and deploy people to mandates that have remote connection with their professional or technical background.

Don't let fraud bring down county units this late in the day

Updated Thursday, March 21 2013 at 00:00 GMT+3
It is worrying that talk is rife that almost all local authorities are either broke or struggling to even the most basic of obligations. Granted this will not be a permanent affair since there will be money flowing from the taps of the central government soon, it is nonetheless disconcerting.
Reliable reports show that revenue collection in Municipal, County, and Town Councils has been on the decline several months to the March 4 General Election despite many appearing to be bustling with activity.
Again, given that election time in Kenya is often a time of heightened anxiety and spurious activity, mostly to do with hordes of citizens idling about town and market centers hands outstretched for handouts from political campaign aspirants, there is little, real economic activity. Therefore, post-election periods often show very little in terms of incomes from majority of businesses and trade activity.
Today, however, we focus on the local councils themselves and the their commitment to collecting revenues during such periods. Although most lack 100 per cent capacity to police, licence and keep all revenue streams running, there is the big, pink elephant in the room in the form of fraud. Unscrupulous municipal employees have been known to print and circulate fake receipts and certificates for transactions and end up remitting only a pittance to municipality coffers.
The Transition Authority (TA) that was charged with co-ordinating the transition to the devolved system of government has had a myriad challenges as this is the first time Kenyans are doing anything remotely relating to devolved units.
We are glad that the TA has issued stern warnings against those officers found misallocating, misappropriating or grabbing council property.
Only the TA has the authority to midwife and hand over the assets, liabilities to the incoming governors and other County Assembly representatives who shall be charged with their administration as soon as the assemblies are sworn-in.
Devolution Canaan
For example, Nairobi City County revenue declined by half in February and March this year compared to the same period last year – from Sh600 million per month, to Sh300 million – amounting to Sh10 million daily.
Mombasa County even needed an infusion from the central government to meet the salaries tab after monthly revenue collection decreased by 300 per cent to stand at Sh90 million, down from Sh360 million which the former local authority was collecting before the January this year.
It is scandalous to realise the magnitude of the deficit revealed by TA chairman Kinuthia Wamwangi where some counties have recorded declines in revenue collection from charging traders license fees; parking fees, land rates, business permits fees, and outdoor adverting fees by more than 80 per cent.
Unless we are setting up the devolved units for failure, it is high time teams of auditors, police and the Constitution Implementation Commission got their act together and started peering long and hard over the shoulders of officers at all local authorities. Kenyans have ridden and flogged this horse to devolution Canaan too far and far too long now to let it faint.
Possible Supreme Court rulings on presidential petition

GLANCE FACTS

Possible Supreme Court rulings on presidential petition

GLANCE FACTS

What experts say
• The country is divided down the middle and the judges are acutely aware of the strained inter-ethnic relations
• If IEBC is (found) criminally responsible (for voter fraud), it puts the country at the risk of unrest
• To restore confidence, we can hire people with experience on a temporary basis

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Updated Saturday, March 23 2013 at 00:00 GMT+3
Millions of Kenyans turned up to vote on March 4. [PHOTO: FILE/STANDARD]
Updated Saturday, March 23 2013 at 00:00 GMT+3
By Juma Kwayera
KENYA: The Supreme Court battles challenging the declaration of Jubilee leader Uhuru Kenyatta as president-elect hold the potential for several legal surprises.
No less than three petitions have been filed over the outcome of the March 4 General Election, with a CORD campaign official and a civil society group seeking to have the election nullified.
The six judges in the court are expected to consider these along with written responses from electoral officials and the Jubilee team.
The merits of the cases cannot be argued in public, but observers are already casting an eye as to the possible outcomes and their implications for the parties in the contest.
Legal, election and political experts say some of the possible permutations have serious implications for Jubilee, CORD and the Independent Electoral and Boundaries Commission (IEBC). They could prove a shock for voters as well, after the country conducted peaceful elections since the 2007/2008 post-poll violence.
Experts we spoke to listed at least four possible scenarios, with some minor variations. These depend on how the court rules on key issues such as the integrity of the voters' register, the accuracy of the counting and tallying, the impact of other irregularities and how various types of rejected votes affect the threshold for victory.
However, judges have leeway to give any other orders they see fit as the evidence before them may lead to conclusions observers have not anticipated.
Scenario I
The court upholds the IEBC verdict that proclaimed Uhuru winner of the March 4 presidential election. This is likely if the judges find that the results are valid. It is also possible if they find the results incorrect due to tallying errors or to the inclusion of some or all of the rejected votes, but the changes do not affect the threshold for a first round win.
Scenario II
The court partially grants CORD its prayers to overturn IEBC's decision by declaring that the conditions for a victory were not met, but those for a run-off were. This is possible if the judges find tallying errors that lower Uhuru's total to below the 50 per-cent plus one vote threshold, after finding the rest of the election was credible and having resolved the question of how to treat some or all of the rejected votes.
Scenario III
What experts say
• The country is divided down the middle and the judges are acutely aware of the strained inter-ethnic relations
• If IEBC is (found) criminally responsible (for voter fraud), it puts the country at the risk of unrest
• To restore confidence, we can hire people with experience on a temporary basis

The court orders a recount of votes in selected areas. This is possible if the court is satisfied the voters' register and the voting process were credible, but finds evidence of major flaws in the counting and tallying. The outcome of a recount, taken alongside a decision on how to treat some or all rejected votes, would likely determine whether victory would be declared for Uhuru or a run-off ordered within 30 days.
Scenario IV
The court rules that the entire electoral process was flawed, making it difficult to determine who won the presidential race, and orders a re-run of the race in 60 days, as required by law.
This is possible if evidence is presented that shows the voter register was flawed, the counting and tallying massively manipulated, the IEBC and its officials complicit in voter fraud or both electronic and manual processes flawed.
Until all evidence before the Supreme Court is scrutinised for its veracity and impact on the outcome, there is no telling which scenario is most likely. Whatever the outcome, says, the International Commission of Jurists (ICJ) in Kenya, executive director George Kegoro the ruling will be historic.
"The country is divided down the middle and the judges are acutely aware of the strained inter-ethnic relations," Mr Kegoro says.
"Trust in the judicial and electoral processes will depend on the quality of the ruling," Kegoro says.
Chief Justice Willy Mutunga, the president of the Supreme Court, will hear the petitions alongside Justices Smokin Wanjala, Philip Kiptoo Tunoi, Mohamed Khadhar Ibrahim, Justice Jacton B Ojwang' and Lady Justice Njoki Ndung'u.
Kegoro predicts the final verdict will be based on any of the three factors: misconduct or mistakes by IEBC, misconduct by political players or a mix of both. If the errors or irregularities are too minor to matter, the petition may entirely be dismissed. If the errors are more severe, a fresh presidential poll may be ordered or a full (or select) recount to determine the winner. The last two options present a fresh challenge of public faith in the re-run or runoff.
"If the electoral commission is to blame (for major misdeeds) and the blame is extensive, then it will be difficult for it to run a repeat election," says the ICJ chief executive.
In worst-case scenario, a battle could erupt over inviting a third party to conduct the elections or attempting to reconstitute IEBC.
Sufficient days
Former vice-chairman of the defunct Electoral Commission of Kenya Gabriel Mukele, a lawyer, argues that the 14 days provided in the Constitution for the Supreme Court to hear presidential petition may not be sufficient. He also sees some outcomes as possibly complicated for IEBC.
"If IEBC is (found) criminally responsible (for voter fraud), it puts the country at the risk of unrest," he says. He rules out the possibility of the United Nations stepping in, as has been proposed by a section of CORD elected leaders, and says disbanding the commission would be "useless". "To restore confidence, we can hire people with experience on a temporary basis."
International Foundation for Electoral Systems' (IFES) chief co-ordinator for Kenya and Uganda Michael Yard says a presidential re-run or run-off would be easier for IEBC or any other electoral body to execute, as there will only be two choices to make. Both present different legal and logistical encumbrances, with a run-off due in 30 days and a rerun in 60 days.
A lawyer who spoke on condition of anonymity says the National Assembly and Senate, which begin sittings next week – their calendar is not tied to the Executive's – could amend the law and Constitution to buy more time for a repeat exercise.
That, he says, would necessitate an extension of President Kibaki's tenure or other caretaker arrangements like a government of national unity.
Mr Mukele, however, points out that the legislation process faces challenges, as there are sections of the Constitution that require a referendum to change.
The Supreme Court, he says, would likely offer a way out if it settled on a run-off or re-run, having considered the evidence that led to that conclusion.
 
 
 
 

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