Justice and doing what's right

JUSTICE n 1. the quality or fact of being just. 2. Ethics. the principle of fairness of like cases should be treated alike. 3. the administration of law according to proscribed and accepted principles. 4. conformity to the law. (Collins Dictionary & Thesaurus, Third Ed., 2004)

Justice n. 1. The fair and proper administration of laws. (Black's Law Dictionary, Eighth ed. 2004)

I like the law. It gives me hope that peoples can govern themselves without to resorting to violence to resolve disputes. I also despair. Kenya has proven time and again that intolerance and rigidity are its defining qualities.

Many canards have been spread about what this country is and what it aspires to be. The history of this nation is a history of betrayals right from the gun-toting bible-wielding settlers of the 1890s to the bloodthirsty freedom fighters of the 1950s to the assassination-prone politicians of the 1960s and '70s to the corrupt murderers of the 1980s and '90s. What has changed has been the increasing desperation and disillusionment of the people of Kenya, such disillusion and desperation being used to scare them into making fatal mistakes every now and then.

The greatest betrayers of Kenyan society in the recent past have been the various faces of the Church leadership in Kenya. In 2005 and 2007, instead of leading the flock, church leaders, especially of the pentecostal and evangelical brands, lied and misled Kenyans. The results, not surprisingly, were chaos and death. Other than the 1998 Bomb Blast and the violence related to the deportation of Abdullah el-Faisal, I think Christians have been responsible for more violence than Muslims. Even the Shifta Wars of the 1960s and '70s, were perpetrated against the Somali Kenyan Muslims by state, which culminated in the Wagalla massacre in 1984.

Now we are being scared with tales of 'abortion on demand' and 'Kadhis' Courts. I wish I could say that I didn't care and that people were free to spread fear and discontent and misogyny and and xenophobia because it is their right to speak their mind. But I cannot.

I have travelled widely in this country and I know for a fact that the level of poverty in this country is extreme. The number of Kenyans who have access to adequate and affordable primary health care is small and dwindling. The number of Kenyan women who have access to contraception, prenatal and maternity health care is small, and dwindling. The number of women surviving childbirth is increasingly under threat. The number of women who fall pregnant as a result of sexual violence (witness the chaos of 2007/08), incest or failing contraception is on the rise. But the saddest are those who were betrayed by their friends and families or had their childhoods torn asunder by their guardians.

It is claimed by religious fundamentalists that ALL pregnancies should be carried to term, that life begins at conception and ends at natural birth. I have no quarrel with this position so long as it is a religious position. But if my daughter was the victim of rape, right after exacting my personal vengeance on her attacker, I would support her fully if she chose to terminate the pregnancy. My church would prefer that she suffers the emotional and physical scars for all eternity! In MBO v Republic [2010] eKLR, the Court of Appeal has just convicted a 63-year old man to 10 years with hard labour for sexually molesting children aged 6, 9, and 11 years. The church has failed to stem the tide of this rot and now it is threatening us with eternal damnation if women are given the right to choose, which they are not in this draft.

The provisions of Article 26 are the most draconian I have ever seen. The draft has been used as a Roman broad sword to cut a swath in the Kenyan body politic. One day the church leaders will realise that their job was to interpret the Word of God, not to speak for Him. The stand they take today will either make them or break them. I am afraid, they will fail and even if they succeed, they will still fail because provisions on abortion make lesser demands under the Penal Code than in the draft and the Kadhis still exist in the constitution. What we will be left with is an overmighty presidency whose powers have been used more for ill than for good.

The TJRC Must Go!

Ambassador Bethwel Kiplagat is a man facing one of his toughest challenges today. He should not have agreed to become the chairman of the Truth, Justice and Reconciliation Commission (TJRC) knowing full well that the role he played in the Nyayo Era, no matter how benign, would form the basis for the objections raised againts his chairmanship. Even if he did not know this, the situation today has become untenable for him and to remain at the helm of the TJRC is the height of obstinate stupidity.

The Minister for justice is right that Ambassador Kiplagat's conduct so far does not raise questions that would lead to the formation of a conduct to investigate him. But this is not merely a legal matter anymore; it is a moral one. The chairman's claim that he is an honourable man would necessitate his resignation whether he was guilty or not and give the country an opportunity to work out the kinks from its past.

So far, Mr. Kiplagat has been linked to the Wagala massacre, the Ouko assassination and illegal acquisition of property in Nairobi and Eldoret. All these will be subjects of the TJRC whenever it finally gets off the ground and begin's to discharge its mandate. Mr. Kiplagat, therefore, would be called to testify or defend himself. This is quite clearly a conflict of interest on his part. Indeed, he swore an affidavit before being appointed the chairman that there was nothing in his past that would warrant enquiry by the same commission. He lied and it is time he recused himself from any further involvement with the Commission until such a day that he is called to speak before it.

Betty Murungi is a different kettle of fish. Again, Hon. Kilonzo was right to question her motives for resigning as the vice-chairman, a posistion I might add that does not exist in the parent Act, while still choosing to remain a commissioner. The grounds for her resignation included an assertion that because the Chairman would eventually become the subject of enquiry, it would be untenable to work with him as vice-chairman. Only in Kenya can one appear to gain the moral high ground without actually gaining it. Ms. Murungi and her fellow Commissioners should all have resigned if they felt that retaining Mr. kiplagat as chairman would compromise the work of the Commission. It is not enough to make statements that amount, asically, to nothig without acting on the strength of your convictions.

I can only posit that the reason why none of them has resigned is becuse of the attractive terms that they enjoy. As has been the trend since the Goldenberg Commission of Inquiry, fat paychecks tend to blind people to the wise decisions that must be taken to protect integrity. These Commissioners are no different from the allegedly perfidious politicians we have running this country. The recent attempt to carry out a palace coup against their chairman came in the same week that the City Council of Nairobi decided to spend a further KES 250 million on another cemetary. The irony should not be lost on you: taxpayers' monies are mere tokens to be shared out among the elite. Perhaps it is time we elected to do away with the TJRC in the interests of the nation. It can be constituted later when we have gone through the Referendum and the process of the implementation of the new Constitution is well underway. Otherwise, we will kep burning millions of shillings with nothing to show for it.

Who cares if the Chief Kadhi is entrenched in the Constitution?

"The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance."

-Art. 29(4), Revised Harmonised Constitution of Kenya (8th January, 2010)

I have no problem in this provision or the the ones that regulate Kadhis' Courts (202 (1)(b) and 203). The basis for my position is not that they have been entrenched in the current constitution for nigh on 45 years, but the fact that Muslims in Kenya are an identifiable minority in need of protection from the Christian majority, who apparently define themselves as such.

The history of persecution of religious minorities is long and bloody. many Kenyans may not appreciate this, but Bosniaks (Bosnian Muslims) were massacred by Orthodox Christian Serbs simply for being Muslims. Adolf Hitler sent 6 million Jews to their deaths because they WERE Jews. The treatment by the State of Israel of its Palestinian minority will fuel the Palestinian war for decades to come unless the Jewish state re-thinks its position. The mantra "Israel has nuclear bombs but we have human bombs" should be an indication of the level of resistance the Jewish State faces.

We find ourselves at the cusp of a new beginning but we are at risk of losing the chance. Christian hard-liners who have forgotten that the basis of their faith are the teachings of Jesus of Nazareth, are attempting to change the nature of our Christianity. They are attempting to persuade us that the battle for a new constitution is also a battle between the Islamicisation of Kenya or its secularisation. I respectfully beg to differ.

The new constitution is about fair and unfair; right and wrong; protection of human rights and abuse of human rights; good governance and bad governance; equity and inequity; justice and injustice. Last time I checked, victims of human rights abuses included Muslims and non-Muslims alike. Corruption in Kenya affected all Kenyans regardless of religious affiliation. To portray this draft as the end-result of a conspiracy to impose Shariah on an unsuspecting country is to mislead with extreme prejudice.

I will vote yes because I wish justice to reign over all things. One of my favourite lines in music goes something like: "Let righteousness cover the earth like the waters cover the sea." While the draft is not a panacea for what ails this benighted nation, but it is a credible first step to certain goals: justice, good governance and an end to impunity. I despair that there are those who wish to perpetuate a system that would not only guarantee that their pet peeves are not eradicated, but that would entrench even more firmly an unjust, unfair and, I must add, an un-Christian system!

Somalis and the Constitution

The Independence Constitution, during the Lancaster house Conferences, was stuck on the question of citizenship. Therefore, because it was a negotiated document, we ended up with the provisions that we have today. Citizenship can be acquired in specific ways, including by birth, registration and naturalisation. In the 1960s and through the 1970s, Jomo Kenyatta launched what came to be known as the Shifta Wars with the aim of preventing the secession of the erstwhile Northern Frontier to the bastard state of Somalia. As a result, a significant population of Kenyans are of Somali origin; the Somali is recognised as a Kenyan ethnic group by the government, indeed, by the world.

I do not have any recollection of President Kenyatta having ever visited the Northern Frontier even once in his 15 years as president, nor president Moi in his 24. The level of official government neglect and marginalisation is staggering. Today, many of the families in Northern Kenya have struggled to ensure that their sons and daughters (but mainly the sons) have gone to school and graduated from universities. Indeed, Hon. Mohammed Abdikadir, the chairman of the Parliamentary Select Committee on the Review of the Constitution is a Harvard-educated lawyer while the Chairman of the Interim Independent Electoral Commission is equally well-trained and qualified to discharge his mandate. These are success stories despite the neglect and abandonment of their own government and there are many similar success stories that can be depicted.

It is only natural that a community that still bears the scars of the Shifta Wars and the Wagalla Massacre to be clannish and band together to protect itself from the vagaries of the political environment. After all, Kenyans are notorious for fanning ethnic troubles for political ends. Consider the effects of the 2007 General Elections. Therefore, the existence of Somali ghettos such as Eastleigh is not unusual or 'a danger to the fabric of the nation' as alleged, but a sign that the Balkanisation of Kenya has had unintended consequences. Would the author not agree that it is the poor who are most likely to live in ethnically-divided ghettos? Mathare and Kibera, two of our most-famous slums in Nairobi, have since 2008 been clearly divided along ethnic lines. So why shouldn't the Somali community in Kenya choose to sequester itself away from a government that has abandoned them and waged war against them at various times in the past?

Comparisons with other countries' experiences with their Muslim populations also vary and depend to a large extent on the histories and economies of those countries, among other considerations. The failed state that is Somali has nothing to do with the ethnic identity of its populace but with the very real fact that it was a dictatorship that was overthrown and the result was a collapse of the very infrastructure of government with everyone attempting to impose his own dictatorship on a proud people. The current assail on the TFG by the Al-Shabaab is just the latest chapter in a long and bloody history. Al Qaeda and its supporters would not have a toe-hold in Somalia if there had been a stable government in place. The instability, which was exacerbated by the USA and her allies, created the perfected conditions for the growth of sectarian and extremist groups in Somalia.

This brings be to an important conclusion: If Kenya wishes to find a solution to its 'Somali' problem it must make every effort to ensure that a stable government capable of policing it borders and maintaining peace and security is installed in Mogadishu. Somalia is our 'Strategic Hinterland' and we must ensure that our backyard is peaceful. We have been lulled to believing that the purpose of government is just the protection of human rights and 'good governance.' The true purpose of government, which the USA discovered very early on in its history, is commerce and international trade. Kenya must create the conditions that will guarantee it an important role in regional commerce and ensure its dominance in the economic activities of ALL countries in the Greater East Africa Region, including the Horn of Africa. This cannot happen while we turn a blind eye to the travails unfolding in Somalia and to a large extent in Southern Sudan. Greater wealth for the nation can be made only in a stable area and East Africa is NOT stable.

The large scale acquisition of property in Nairobi and other parts of the country by Somalis and other wealthy Muslims should be taken as a sign that they have lost faith in the Government of Kenya to intervene effectively in the problems in the region. Any attempt by the government to forcefully intervene to deny them rights that they enjoy as Kenyans will be met with resistance. How the government acts will determine whether this resistance will be civil or violent.

Yes:1, No: 0

Did anybody see the ass-whupping Ruto received at the hand of one Martha Karua on Newsnight tonight? Man, the guy got beat. It was almost too painful to watch. Shoulders were slumped, he was hunched over his seat, legs crossed at the ankles like a school-boy in the Principal's office and his eyes couldn't focus. With his hands clutching and un-clutching in nervously in his laps, he was a shell of a broken man.

He had taken his 'No' campaign to the KTN studios unprepared and arrogant. Hon. Karua took a scalpel to his arguments and pointed out some home-truths he would have preferred remained buried for life. This should be a lesson to the nay-sayers out there: you take on the 'Yes' campaign at your own peril; if you must, you must prepare and prepare well. I just wish I had remembered to record the encounter. Ruto's battered ego on TV is worth the bank!

In Favour of the Kadhis' Court

Christian fundamentalists and hardliners are right in one respect: no matter how we look at them, Kadhis' Courts are based on Islamic law and, therefore, ARE religious institutions. Where they are totally wrong is in their demand that they be removed from the Revised Harmonised Draft as they will 'Islamicise' the nation or some such stupid reason. On the other hand, family law under Islam is essentially civil in nature and therefore, even though family law is addressed in the Holy Quran, this interpretation is essentially civil in nature. The irony is not lost on me: a religious text making secular provisions. Therefore, on that basis, Kadhis' Courts are not religious institutions and since we shall have the Judiciary given constitutional protection, this protection should be extended to the Kadhis' Courts too. The length of their stay under the current constitution should be persuasive but not conclusive. Ultimately, it is irrelevant how long the Kadhis' have been retained under our current constitutional framework. What is relevant is that they are deserving of constitutional protection, just like any other court within the judiciary. This is not to say that specialised tribunals should also receive such protection, but that because the Muslims in Kenya are an identifiable minority in a Christian majority nation they must be protected from the tyranny of the majority. The objections raised by the various leaderships of the various Christian church denominations in the past few months should be sufficient proof of such tyranny.

Marriage, divorce and succession should not be contentious in any way. That they have been made to seem so indicates the level of ignorance about the role that the Kadhis play in today's judicial framework. Christians have Christianity as the basis of the African Christian Marriage and Divorce Act as well as the Marriage Act. Indeed, even the preamble to the Revised Harmonised Draft declaims the special role of God. This does not in any way make the draft any less secular than it is.

The Minister for Justice has his work cut for him trying to convince the Christian objectionists to the relevance of the Kadhis in today's legal framework. Their's is not an objective, logical or rational objection but one that has been fuelled by ignorance and misinformation about the need to offer some recognition that Muslims in Kenya are a minority deserving of at least some semblance of constitutional recognition and protection. The argument that Kadhis' Courts were inserted into the Constitution by way of fraud or blackmail does not hold water. Many of the amendments to the constitution made by the Kenyatta and Moi governments since 1963 were based on the need to entrench executive power in the hands of the president to the detriment of the needs of the people of Kenya. The draft attempts to reduce the power enjoyed by the president and to ensure that we shall no longer be at the mercy of the executive. Indeed, even the chapters on representation and devolution go a long way in reducing the power the executive has to make decisions or take actions in the name of the people without ensuing that such decisions or actions are indeed in the interests of the people.

A new constitution has been a long time coming. It has become a mantra that we require a new constitution without looking at the merits or otherwise of such a need. It is time that we reminded ourselves of the perfidy that has been perpetrated against us as a nation under the current constitutional dispensation and admit that though not all our desires have been addressed in the draft, it goes a long way in offering a new contract between the governed and the governors. We cannot go into the next general elections knowing that the head of state and head of government will be essentially free to do as they please without some sort of supervision or overriding authority in certain circumstances. The draft offers us a chance to reshape the role that political power plays in our lives.

Christian leaders cannot make the case the Christians in Kenya are a minority. Muslim leaders can make that case for all Muslims in Kenya. A nation is only as strong as the protections it offers its minorities. The Christian majority should take this to heart for it is only when a minority is subjected to tyranny that it truly rebels and takes up arms against the majority.

Land and the Referendum

It is becoming increasingly apparent that the opposition to the Revised Harmonised Draft Constitution has nothing to do with the clauses on abortion or Kadhis' Courts but everything to do with the question of land and equitable access to land. The same forces that have been arrayed against the implementation of the 2009 National Land Policy are the same ones arrayed against the draft.

We seem to have forgotten an important component of our nation's history. When the Mau Mau was formed, it gave itself the name "Land and Freedom Army". Majority of the original members of the Mau Mau were the dispossessed of Central Kenya and the White Highlands. Our main beef with the colonial power was with land policies and our resistance to these policies was violent and political at the same time. President Jomo Kenyatta betrayed the men and women who fought and died over the land question and this is the legacy that has haunted this benighted land ever since.

Over the decades, many attempts have been half-heartedly made to redress the iniquitous distribution of and in Kenya. These culminated in the Ndung'u Land Commission and the National Land Policy. Today, we have the Revised Harmonised Draft. What we decide over the next few months will determine whether or not this country can ever escape its past and forge a bright future for its young and their children.

It is instructive that the standard-bearers of the 'No' campaign are the same people who have acquired thousands upon thousands of hectares of land unlawfully. The opposed the government's plans to evict illegal settlers from the Mau Forest and they will oppose this draft because in the long run, one of its provisions will lead to the repossession of land that had been unlawfully obtained. President Moi and William Ruto may differ on political matters but on the Land Question, they are brothers-in-arms. They are among the thousands of KANU operatives who acquired land illegally from the government using their positions of power to do so at the expense of national priorities and ground realities. They are not alone.

There are literally thousands of foreigners, civil servants, serving and retired disciplined forces operators and ex-colonial settlers who control the bulk of the valuable commercial and agricultural land in Kenya. They will not simply sit by and wait for the National Assembly to act with regards to the millions of acres of and in their possession. They will take steps to forestall any process that will ultimately deprive them of the sources of their great wealth.

When Martha Karua and her colleagues drafted the Constitution of Kenya (Review) Act in 2008, they could not have foreseen that it would be the seed for the dispossession of the above-mentioned worthies. For this, Kenya will owe her a debt of gratitude that only the passing of time will realise. What we must do as a nation is to safeguard the gains that have been made. Even if we do not adopt this draft, we must ensure that the National Land Policy is implemented in full. If it is, one of the main causes of perennial conflict will have been addressed once and for all. Without sorting out the Land Question honestly, we may never get another opportunity to right the ship of state. Governance issues and corruption will continue to be given short shrift.

Mr. Ruto and his fellow 'No' campaigners must be told that in no uncertain terms will they be permitted to derail what is a far-reaching exercise in ensuring equity and equality in Kenya. Someone must take the fight to them and remind them that KANU is no longer the party of choice, that we are tred of being manipulated for the benefit of others and that we shall take all necessary steps to ensure that we emerge a stronger and more vibrant nations. We are the only ones who can take this battle to their door-step. This is the second phase of the Second Liberation and we must prevail. Let this be a warning that shall be heard abroad in the land: you derail this constitution, we are still coming for our land. Come what may!

I want a new Constitution. Do you?

"The role of a constitution is to provide scope for good government, while at the same time placing limitations on the powers of the governors. " - Dr. Mark Cooray

This is the situation that we find ourselves today, that is, in the process of giving ourselves a new constitution. We wish to give to ourselves a document that will organise our government but at the same time place checks on how the power of that government is exercised. Our political class, before and after Independence, has never and will never accept checks on how their power to govern is exercised.

Today is the last day of debate before the Revised Harmonised Draft Constitution is sent back to the Committee of Experts for final drafting and then its onwards transmission to the Referendum. It is emerging that the political class will not get the amendments many of them sought to enhance the power of the governmet at the expense of credible checks on the exercise of that power. The leadership of the Honoroubla Speaker of the National Assembly has been ably demonstrated, especially when he ruled that to amend the revised draft would require a two-thirds majority. Thus began another assault on the revised draft by the agents of status quo. It is to the credit or discredit of Members of Parliament that their recently habitual divisiveness has prevented them from passing any amendments to the revised draft.

The journey to new political dispensation began with the first shots fired by Kenneth Matiba and Jaramogi Oginga Odinga in 1990 when they led the charge against section 2A of the Constitution of Kenya, leading to its repeal in 1991 and multi-party general elections in 1992. The way President Moi played off the key leaders of the oppoosition against each other in the intervening years before he peacefully handed over power to his successor, President Kibaki, was enough to slow down the road to a new constiitution. We overcame these hurdles and now are closer than we have ever been to a new constitution.

The IIEC has already began the process of creating a new voters' register. It would be remiss for any eligible Kenyan to refuse or fail to register, if only to vote in the referendum. This is not a general election; it is much more important than that. I have previously railed against the undemocratic structure of our political parties and I will not debase the word 'democracy' by participating in a general election in any way. However, the referendum on a new constitution is a different kettle of fish altogether.

The Constitution describes our relationship with our government and lays down in black and white our rights and obligations under the constitution. How can we state that we have a right NOT to participate in general elections if we did not participate in the process of creating and articulating that right? It is imperative of all right-thinking and engaged Kenyans to take part in the process: reading, revising, amending, and voting for (or against) the draft at the referendum. We cannot go through life bitching and moaning that this country is held hostage by politicians if when we had the opportunityt to determine what those politicians could do, we did not did not seize the day and take action. Registering as voters and voting in the referendum is our line in the sand and taking our country back from thos perfidious thugs in suits.

When history judges this nation, it should be that we took a stand and made our marks on the draft. We took charge and approved/disapproved a document that we had read and understood. We had thrown off the yoke of political apathy and instead held our heads high as we showed the world that our political process has matured. Otherwise, we will bequeath our children with a political process that will leave them at the mercy of what is proving to be an increasingly authoritarian and perfidious political class.