Saturday, November 30, 2013

Why is Kenya so afraid of reforms and so shy of change despite her new 2010Constitution?

While the Kenya Executive seems to dither and blinker sometimes getting blinded by the complexities of change, it is quite clear to many who have been engaged with steps of growth in the country that the Kenyan Judiciary should NOT be at this time at same level as the Executive or the Legislature. It should be independent. Standing proudly head and shoulders above the fray- higher than the snow on Mt Kenya- to give this nation of diversity balance. To set the example of the management of such gifted resource both human and environmental.

But the Kenyan Judiciary stands tried. Kenya is afraid to take change head on. And yes, even as they say change comes slowly and that it respects cultures and traditions we have not done what we have overnight. The implementation of the Constitution cannot remain too painful to be done in a country where we cut people easily, win marathons and where we pull our act together fast after terror attacks. When we write in the Constitution that we have accepted change and given it to ourselves as a nation, we need to believe it. To task ourselves, to challenge ourselves and to account for our hopes and struggles.

I know why reading today, of November 2013, what Justice Willy Mutunga said at the launch on a book on election petitions in Kenya made me shudder and wonder. There is nothing wrong with books. I understand that the times- 2013 in particular- have been  rough and tough for the CJ and for Kenya in many ways. But our 50 years of celebration of Kenya's independence should count for change too. It is not books and laws that are lacking. It is integrity.Our focus to achieve and not just for ourselves. Slaying the dragon of greed and corruption. All have had to fight their way there, Kenya must do so now.

I hoped and still do that because of our multiple challenges and the fact that in 50 years we cannot boast about being even Cub Tigers as the Philippines and Indonesia can in spite of massive poverty, nor come close to the Four Asian Tigers or Dragons in terms of development we could still say that our New Mother of All Laws the 2010 Constitution has a spirit that can bind us together. That we can invest and allow others to because of security in this attractive land. That all tenders or building infrastructure will be competitive and well researched. That we can stop once and for all dangerous driving which many and that depends on a willing people and keep HIV/Aids in check. The list is long regarding education and health services, salaries and reforms in the police force. The rule of law.

In about 50 years, Europe put herself together after the Second World War. Norway was a poor country in 1969 and the country has been built on proper management of the finding of oil, tax system and on immigration to the US by the poverty ridden people who built their country from heavy toil and investing back home until we have what stands today. Fifty years is important a period in individual lives as in nations. Challenges have been turned into opportunities elsewhere why do we wallow in ours? 

I wanted to hear certain hope in law from the Chief Justice of Kenya but I hear the opposite. Why? Many died to ensure an independent Judiciary especially since Kenya now has a bigger governance arrangement and small commissions appointed by politicians, dissolved by them can become a law unto themselves and help the return of dictatorship as the President can make decisions that leaves Kenya unprotected. For Kenya is neither the years that have passed nor the persons in power today. Kenya is. I wanted that deep change and this we must get. We cannot justify otherwise.

When the struggle for a new Constitution was at its febril levels in the 90s, one of the reasons for the demand, in fact the main bone of contention was the reduction of presidential powers. 

As I write the Judicial Service Comission, the party that should have stood together to oversee the strengthening of the Judiciary has been sent home by the President. I watched lawyer Elisha Ongoya interviewed on KTN tell how precarious that is. And not only that, how embarrassing for the judiciary. And it does not stop there, there is an activist who has gone to court to show reason why the Chief Justice should be sacked. 

I would take this lightly were it not that all falls into a plan which one heard about at the time of the election of March 2013. I mean then, certain people who read hope in the CJ were seen as making a terrible mistake. Yet our hopes were banked on the fact that this is a CJ who told us that Kenya's new Constitution of 2010 would protect everyone from the simplest hut to State House. 

And moreover, many feel he knows injustice in his own skin. He experienced detention in Moi years, oppression. Many feel betrayed but that is not the reason why it is said he has to leave his job. The Executive did feared his stand on other issues but he rules with six other judges not alone. That he has a strong human rights track record which no one can contest. What is happening or what happened? But besides laying hopes on individuals, many times theyquote other countries in cases that have vexed Kenya. Do they also rely on small bodied to judge electoral petitions or only theirConstitutions? What is the CJ of Kenya saying and not saying?

And indeed during the court case to judge the presidential election petition  election of 2013 we were told about the precedents of the Supreme Court of the Philippines. Here are the details of that petition and the ruling which was gazetted in Kenya . 

Answering to many queries on the fact that the election petition was time barred for the petitioner, the Chief Justice said he was impartial and that the case was easy to decide since the other side did not have good evidence. So this should be over. 

Still in my chest is faith that when such issues come up and they are bound to return, we shall have an independent judiciary to deal with the matter. But not so the Chief Justice. He speaks of how the court should not be the place for such petition. And I wonder then why we fought for a strong mother of all laws, a constitution that leaves us all dry under a national umbrella of laws that can stand all storms. Why does the Chief Justice, CJ, now speak of a smaller body when what we wanted was the big body? 

And this at a time when with regard to media law, the Executive, has formed such a small body of their own accord which all have said will, together with a media bill of 2013 sit on Freedom of Expression? President Uhuru Kenyatta made his amendments but no, they have not taken off the yoke of abuse of law from the Bill and for the fifty years of Kenya's freedom journalists are planning yet another demonstration to object to his amendments that do not make that law better. We have a Constitution but we are skirting it and running away clad in old clothing of I do not know what type?

For the CJ also went on to lament that Kenya is deeply divided on different ground and the list went: Ethnic, tribe, clan, religion, class, culture and race. And again from him we expect to hear that the rule of law is here in Constitution 2010 to be that balm that crosses these ridges and rifts of division by first and foremost protecting such things as land distribution, resources such as oil and equal sharing of wealth in a good tax system at least trying to imitate the Four Tigers, the various Commission Reports such as the Ndung'u Report and that of the Truth and Justice Commission (for what it is worth). Instead we hear lamentations all around and again wonder why we are shy to marry the law of change with all the pain it might take because it is better that way than in any other style.

Kenya suffered in 2007 when such a petition was not made by Raila Odinga because he did not trust the courts. Now am on this 
not because of a time warp but since the Chief Justice two day ago explained again that he could not have pleased everyone. 
Did he really say that "The courts cannot satisfy everyone in an election dispute?" The Supreme Court, I thought was not meant to please anyone but to stand b. It was supposed to serve justice. He was referring to the judgement that his court announced in March that Jubilee had won the Kenyan General Election.

Again, that was only natural and is the norm anywhere to expect that the three arms of government: The legislature, the Executive and the Judiciary are separated for the good fo the people. It was actually more than a sigh of relief considering that it is before the law where we should be equal and Kenya is in the news many times for the need of equality before the law since impunity is nursed by the rich and powerful who also happen to become the main political players. So we did end up in the Supreme Court after the Election of 2013 and whereas many took the ruling for what it was, it did not fail to be examined over and over again and it still stands on trial in the eyes of many. 

At 50 years of independence, in Kenyan we are still at the point where memories of what it took to get the first Constitution and Self-governance in 1963 from the British are fresh in every sense of the word. Some  Kenyans can still sniff the smell of the paper the law was written on, the feeling in the air, the touch of Kenyan people without the ugly differentiation of ethnic brand, even if the roots of identity as belonging for the sake of benefitting those one was close to were thrust in both colonial and and first three presidencies Kenya has had.

For every year on the Madaraka Day, which is celebrated on 1st June, people have gathered at our Freedom Park and other spaces in the country and sang and recalled our history. On Jamhuri Day on December 12th when finally independence came, the same is done. Dancing to the same happy song of independence, celebrating. Flying past the President and his guests in style, armies marching past and a couple of times also citizens daring to make a point.

I recall how many were arrested in the Jamhuri Day of 2008, for reminding MPs as the President gave his speech that all had to pay taxes. I distributed with others thousands of T-Shirts with the logo "No Taxes for MPs, No Taxes for us, utado?" The arrests is a long and different story but that Day the message reached the top. 

Five decades are over. The foundations of justice, are still wanting. Many have worked for equality before the law. It took long to get the August 2010 Constitution. We have to read in earnest and practice what we laid out in Chapter 6 of the 2010 Constitution. Integrity. We have to admit that without integrity in leadership we cannot prosper. It is still basic. The Executive, the Legislature and the Judiciary must all be independent and free before the country can celebrate years of independence. The people must be free to say that and still be regarded as the most important whole where as these powers remain parts. 

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