Sunday, May 30, 2010

Ruling on Kadhis’ courts was a judicial coup attempt

Sunday Nation 30 May 2010

The constitutional court ruling on Monday last week concerning the place of Kadhis’ courts in the constitution and in our national life was, of course, meant to be controversial. The timing of the ruling also raised eyebrows.

Many arguments will be made on the merits or otherwise of the ruling, including its effect on the constitutional review process, and this is likely to keep legal academics talking for a long time to come.

In my opinion, however, this ruling will be remembered in future for an entirely different reason.

It will be remembered for attempting to turn a courtroom into a classroom at the School of Law, and trying to overthrow the established constitutional order through judicial fiat.

With a stroke of their collective pen, the constitutional court judges threw to the four winds the doctrine of judicial restraint favouring, instead, a more active engagement in re-writing the constitution of the Republic – a judicial coup attempt.

Legal issues

Quite apart from the weighty legal issues the ruling raises, it contains numerous other obvious errors including the citation of parts of the constitution that have absolutely nothing to do with the ruling the judges handed down.

These are merely indicative of the decline in the culture of exactitude that we inherited from the British colonialists, and a descent into an attitude of “anything goes”.

For instance, the judges aver that paying for the Kadhis’ courts from public coffers is “... also against the principle of separation of state and religion as captioned by section 1A of the Constitution”.

The cited section in fact only says that “The Republic of Kenya shall be a multiparty democratic state.”

The leap from “multiparty democratic state” to one that actively eliminates minority rights is a huge one, indeed, and one hopes that their long 114 page ruling (as cited in the press) contains the legal philosophy and theory that enables that chasm to be safely navigated.

The main foundation of the judges’ findings was that section 66 of the constitution (which allows for the creation of Kadhis’ courts and the necessary infrastructure) is inconsistent with section 65 (which gives Parliament the power to establish courts subordinate to the High Court) and section 82 (which outlaws discrimination in law-making).

An ordinary citizen may quite truthfully plead that ignorance of the law blinds them from seeing the inconsistency between sections 66 and section 65, but we must wait upon the lawyers to educate us on the extent of this conflict.

However, regarding section 82, subsection 4(b) explicitly makes exemptions for laws that make provisions “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”, which is exactly what both section 66 of the constitution and the Kadhis’ Courts Act set out to do.

Indeed, section 82(1) of the constitution explicitly recognises this fact by providing in the beginning that “subject to subsections (4), (5) and (8) ...”.

For the learned judges to find inconsistency between this section and section 66 begs a deeper explanation than can be found in a plain reading of the ruling and the constitution itself.

Further, in granting the clergymen’s prayer to declare section 66 to be, among other things, “unconstitutional”, the judges clearly pushed jurisprudence to another level.

In theory, the people in a constitutional democracy exercise their sovereignty through the constitution.

They elevate it into a canopy underneath which all organs of state must function, and any act or provision that is perceived to run afoul of the constitution is considered null and void, and ultimately unconstitutional.

In this regard, therefore, the courts are custodians and the primary defenders of the constitution, with the power to interpret the will of the people as expressed in this document.

A coup

Nobody has the power to change the constitution except through mechanisms prescribed in the same document which, in our case, is encapsulated in sections 47 and 47A of the constitution.

Any other attempts to instigate alteration or replacement of the constitution would be regarded as a coup against the constitutionally established order, and most jurisdictions would deal with it as a treasonable offence.

If this decision is allowed to stand, it will deal a deadly blow to the last bastion of our nationhood, belief in the infallibility of the constitution.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine

Sunday, May 23, 2010

Blatant disregard for the law does not auger well

Sunday Nation 23 May 2010

Even as the Independent Interim Electoral Commission was announcing that the official campaign period for the referendum would begin on July 13 and end on August 2, the opposing Yes and No camps had already embarked on the campaign trail.

In the past two weeks, they have held large campaign rallies at Uhuru Park to campaign for their point of view, and numerous more rallies have been held across the country for the same purpose.

Despite the fact that most people had not had enough time to read and internalise the provisions of the proposed draft constitution, the protagonists immediately went for each other’s jugular.

The No camp embarked on media campaigns and rallies, and clergymen have been using the pulpit to drive their point home.

The Yes group, on the other hand, has been traversing the entire country at times in the guise of civic education, and at other times openly campaigning for the document.

The sum of it all is that as far as the referendum and the quest for a new constitution is concerned, there is a total breakdown of civility in the land. Politicians, clergymen and civil society activists are all engaged in activities that challenge the boundaries of legality in broad daylight.

The tragedy is that both groups believe they are doing Kenyans a favour by crisscrossing the country canvassing for their positions on the proposed draft constitution.

In reality, these so-called “leaders” are doing the institutions of this country irreparable damage, and neither the current constitution nor the proposed one can save us from this amount of impunity.

By ignoring pleas from statutory bodies like the IIEC and the Committee of Experts, all those concerned are passing the message that nothing matters in their quest to have their way.

The irony is that both groups profess that their way will result in a safer, more prosperous country where the rule of law will reign supreme.

The message going out to the ordinary citizen is that legal strictures are meaningless unless they are sponsored or supported by their favourite bigwig, in which case they become sacrosanct and inviolate.

Indeed one will invariably hear the protagonists selectively quote legal provisions their opponents have violated, forgetting to attend to the logs in their own eyes first.

As far as the content of the campaigns is concerned, both sides are guilty of distortions of various provisions in the proposed draft. The Yes camp has magnified the sections they consider good, embellishing them beyond recognition.

They have painted the post-referendum period as one in which Kenya will be comparable to the Garden of Eden, and nobody will need to work since the state will spread its largesse to all corners of the land.

This distortion needs to be corrected and tempered with the necessary injunction that, even after the referendum, nothing will change unless all Kenyans re-dedicate themselves to the task of making sure that they create a better future for posterity.

As for the various No camps, multiple distortions are being peddled to serve their peculiar interests. The clergy are running around claiming that the draft promises “practically unlimited abortions on demand” and entrenches “Sharia Law” in the constitution.

Others in the No group are claiming that should the draft pass, people living on small pieces of land will lose them in the interest of setting a “minimum acreage of private land”.

Extreme examples of distortion include assertions that the draft allows the security forces to go on strike, picket and riot like ordinary citizens, setting the ground for a possible mutiny and even coup.

The drafters of the referendum law must have had just this scenario in mind when they set aside time for civic education. They must have known that no matter how good the draft ended being, there would still be people opposed to it.

These individuals would conceivably do everything in their power, including peddling falsehoods and distortions, to see it fail at the referendum.

In their wisdom, they must have set aside time for education of the masses to counter propaganda from both sides of the divide and ensure that the draft passes or fails solely on its own merit.

This noble objective is now unlikely to be met with any degree of success due to the ongoing disinformation campaigns compounded by delays in the release of the funds necessary for the programme.

This being the case, it is pointless for the IIEC to allow so much time for a fruitless exercise, and even more time for further campaigns when we all know that the product will only be lies, lies and more lies.

An accelerated referendum schedule would have served Kenyans better than the current spectacle of unending campaigns.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine

Sunday, May 16, 2010

The question we can’t answer: How many are we?

Sunday Nation 16 May 2010

It is almost nine months now since the government carried out a census that was meant to help with planning and resource allocation throughout the country, according to the Planning ministry.

The Minister for Planning promised at that time that the results of the census would be out in record time. Indeed, a December target was set and, for the first time, Kenyans were assured that they would know their total number within a few months after the census.

However, as the deadline approached, it was postponed to early this year before being put off indefinitely.

According to the minister, he was prevented from releasing the results by the Grand Coalition Principals who needed time to study the results and presumably confirm their veracity.

There were murmurs in the street that the real reason for the delay in the release of census results was due to shock over the massive increase in the numbers of some communities, with suggestions of ‘‘rigging’’ in time-tested Kenyan fashion.

Fears that the results may cause a significant ethnic realignment ahead of the next General Election were also expressed.

Newspaper reports late last year provided provisional figures nearing 40 million Kenyans but, early this year, there were indications that the results were shelved as a result of speculation that some communities managed to somehow inflate their numbers for some political purpose.

This issue of tribe in the census had been discussed emotively, but was dismissed by the government as misguided rants by civil society types out to oppose every government move, whether good or bad.

In the absence of convincing information from the government, rumours will continue to swirl about the true motives behind the silence over the census results. It is a shame in this day and age that our government is still playing ethno-political games with the nation’s vital statistics.

The current situation only serves to confirm the fears some of us had during the census about the question on one’s tribe.

As a matter of fact, those of us who answered that we were Kenyans may now justifiably hold up our heads in pride, because our decision not to allow our ethnicity to be used for political arithmetic may be one of the reasons the results were rejected as inaccurate.

Those that were counting on our numbers in order to assert their ethnic hegemony are now having difficulties reconciling the figures to suit their nefarious designs.

As things stand now, nobody knows what the government is doing with the census figures they have. It was earlier indicated that investigations were going on to find out how the figures for some regions and tribes were presumably manipulated to reflect very high rates of growth in tough economic and environmental conditions.

Translated, this means that senior politicians in government were worried that they would have to redo their ethnic arithmetic to include people they used to ignore in the past.

Figures indicating that some tribes’ contributions to the national average had declined in favour of others must also have caused plenty of sleepless nights for the perennial schemers in government. Excuses about tampering with the numbers must not be used to deny Kenyans results of a census that cost the country lots of tax shillings.

Even today some enumerators are still bemoaning the non-payment of dues several months after the job was done. What would be expected of a government that cares about its image in the eyes of the citizenry?

Firstly, a complete and transparent presentation of census results is absolutely necessary. Secondly, if any anomalies were detected at any stage of the counting process, an audit should have been carried out, the culprits identified and punished and remedial measures instituted.

Withholding the results indefinitely is akin to the ostrich burying its head in the sand in the hope that difficult times would pass it by.

Finally, if the problems with the results are such that they are irredeemably damaged and are of no use to the government or anyone else for that matter, the government must publicly acknowledge this and order a fresh census to be carried out in a more professional manner.

In this new count, emphasis should be placed on more important planning parameters such as place of residence, employment status, access to basic services such as health, education, food, water and sanitation, rather than on useless trivia like tribe. This will eliminate the incentive to tamper with the tribal arithmetic for whatever purpose.

If, on the other hand, it becomes clear that we cannot even count our people accurately, then it stands to reason that the results of the forthcoming referendum will be quite hotly contested and it is not even entirely inconceivable that a recount will uncover similar errors in that count!

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine

Sunday, May 9, 2010

Kenya will emerge from referendum stronger

Sunday Nation 09 May 2010

With the publication of the draft constitution on Thursday, progress towards the referendum and possible fundamental change in the way our country is governed has entered a new phase.

A flurry of activities is expected to actualise the referendum and, if the draft constitution is approved, more work lies ahead for Parliament, state institutions and the common citizenry to internalise the provisions of the constitution and make necessary enabling legislation.

As the process moves forward, some are cautioning that if the draft constitution passes as it is, there is a possibility of unrest and even conflict approaching the scale of the last General Election.

Some in the Christian right are insinuating that retention of clauses they are opposed to in the constitution will result in polarisation on various grounds, and that this may form the nucleus for renewed conflict.

Although it is important for all Kenyans to be alert for issues that may cause further damage to the fabric of our fragile state, it should be stated in no uncertain terms that this time there will be no violence before, during or after the referendum.

As fellow Sunday Nation columnist Kwendo Opanga noted last week, we must go to the plebiscite determined to vote Yes for peaceful coexistence, no matter what we vote for in the referendum.

The possibility of violence will be diminished this time by the various factors that have fortuitously converged at this point in our history.

For starters, many politicians and other campaigners on either side of the Yes and No debate are alive to the fact that the country remains under close scrutiny by anti-impunity forces all over the world, and one wrong step may result in very dire consequences for them and their future careers.

The presence of the ICC prosecutor at this point in time also serves as a potent reminder of the fate that awaits the masterminds of so-called “political violence” and their cronies.

Secondly, national institutions such as the Kenya National Commission on Human Rights and the National Cohesion and Integration Commission are assuming high profiles in the run-up to the referendum, and whoever chooses to incite Kenyans to violence again will definitely be noticed, named and shamed.

Even if it is accepted that these commissions are largely toothless bulldogs, the attention they will shower upon potential perpetrators of violent crimes will be enough to deter a significant proportion of them.

Thirdly, if Kenyans have any vestiges of memory left, it will be exceedingly difficult to herd them into monolithic killing machines as happened after the last General Election.

In many areas of this country, the disillusionment following post-election violence has resulted in severe cynicism, ensuring that most people no longer take politicians as seriously as they used to do in the past.

Often, a politician’s utterances are keenly dissected to establish their real implications before any action is taken by the masses.

Two categories

For the politicians and religious leaders, the two categories that are spoiling for a fight over the new constitution, it will serve them well to remember that nothing, however important to them, justifies destruction of property and loss of lives as happened after the last election.

They must engage each other on the basis of ideas, and not by sheer brute strength. Recurrent threats of “mobilising supporters” to reject or accept the draft is reminiscent of militant confrontation rather than honest disagreement on issues.

The truth of the matter is that all protagonists in this contest claim to have the best interests of the nation at heart. None of their proposals should therefore form the basis for a violent confrontation based on disagreements over a few clauses.

Those opposed to this draft will not be especially targeted by the new constitution if it passes. Those supporting it will on the other hand neither be especially favoured if it passes, nor be harmed in any way if it fails.

The only thing that is sure to happen is that some of us will feel bad that our position did not win the day at the referendum.

The mentality that needs to win the day is that no matter which side wins at the referendum, the people of Kenya must emerge more united than divided. This is not the same as advocating a “non-divisive referendum” as some have been suggesting.

Asking for “consensus” before the referendum is tantamount to rejecting the referendum itself, for if there is unanimity there would be no need for a referendum in the first place.

In the final analysis, we can assert with a huge degree of confidence that Kenya will survive this referendum, and we shall emerge from it even stronger to face other challenges facing our republic in the days to come.

Lukoye Atwoli is a consultant psychiatrist and lecturer, Moi University’s School of Medicine

Sunday, May 2, 2010

It’s time to move on with the truth and justice agenda

By Lukoye Atwoli
Sunday Nation 02 May 2010

The formation of many of the post-2007 institutions was fundamentally flawed. Politicians were given inordinate influence even in non-political institutions such as the National Cohesion and Integration Commission, the Truth, Justice and Reconciliation Commission and other “independent” commissions.

Inevitably, political considerations would worm their way into the decisions being made by these commissions, especially in times of crisis. A case in point is the TJRC. Activities at this commission have been paralysed for a long time since its formation due to wrangles of one form or another.

The recent very public spat between commissioners and their chairman has further served to dent the commission’s credibility, culminating in the vice-chair’s resignation. When Ms Betty Murungi threw in the towel and left the commission after Mr Kiplagat clearly indicated that he had no intention to quit, the spotlight shifted to the rest of the commissioners and the chair.

The fact that her resignation has elicited no reaction at all within the commission, as far as the public is aware, is an indictment on the moral authority of the commission and its members. In fact, as soon as Ms Murungi stepped down, the commissioners met and elected one of their own to take over as vice-chair.

Soon after this they issued a public statement calling on the chairman to resign, and asking the relevant authorities to constitute a tribunal to investigate allegations against the chairman. Initial indications were that Mr Kiplagat was a signatory to the declaration but, in typical Kenyan fashion, he denied this and vowed to stay put until a tribunal asks him to step down.

This whole saga at the TJRC illustrates just what is wrong with the Kenyan system of morality. Whenever we are criticised for any wrongdoing, our first instinct is to deny culpability and look around for a suitable scapegoat. There is no shortage of “detractors” in Kenya, and most people accused of serious infringements will not hesitate to point out a political or ethnic agenda in the whole matter.

When the allegations against Kiplagat first arose, it was suggested that civil society types were eager to blacklist anyone associated with former President Moi’s regime. The TJRC chairman and his supporters came out fighting, protesting that almost everyone in government today had served under the former president. The insinuation was that if Kiplagat had to resign due to his association with the Kanu kleptocracy, then all top Kenyan politicians would have to follow suit.

This kind of discussion succeeded for a while in deflecting attention from the real issues being raised about the chairman’s purported role in various atrocities attributed to the previous regimes. Ms Murungi’s resignation has brought them back to the fore, and it is now clear that no one is seriously interested in dealing with them.

Mr Kiplagat’s intransigence may even stem from the fact that he knows that among his interlocutors there is none so unblemished as to cast the first stone. If there is, he also knows that there are some in government and other high places who would come to his rescue if the need arises.

The real issues are as clear as day. Allegations have been made concerning Mr Kiplagat’s role in what is now known as the “Wagalla Massacre”, and despite his strenuous protestations of innocence, the claims refuse to go away. The disappearance and subsequent murder of former Foreign minister Robert Ouko at a time when Kiplagat was the PS in the ministry has also been cited as a matter of concern regarding his reputation.

Other allegations point to his conduct in other positions in government, including as ambassador and peacemaker in the region. As long as he continues to engage in shadow-boxing and refuses to face the accusations squarely, Mr Kiplagat’s reputation will continue to take a beating.

Internationally, his credibility took a thorough nose-dive when a team of former TJRC chairmen from several post-conflict states called the allegations against him serious enough to warrant his resignation. Operating from the premise that Mr Kiplagat is innocent of any wrong-doing, what would be the civilised thing to do?

Even if we agree that his accusers are driven by malice, political motives or ethnic considerations, would a civilised man continue to cling to a position despite evidence to the effect that his continued stay had become counterproductive?

The civilised thing for Ambassador Kiplagat to do is to subordinate his ego to the good of the nation, and follow the footsteps of Ms Betty Murungi out of the commission. Further, with the departure of the Chairman and his deputy, the TJRC would have completely lost its original complexion, and it would be necessary for it to be disbanded and reconstituted in a manner that inspires the confidence of the citizens.

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s School of Medicine: