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Thursday, July 30, 2009

"Stateless" man finds a home











Mr Scott James Edman, who has been languishing in prison for more than six years because his nationality is unknown, has finally found a place to call home.

His nightmare ended after the government of Papua New Guinea gave the green light to have him sent there. “I am happy to get my birth right. Even though I won’t be able to join my family which moved to Australia, I will have somewhere to call home,” said Mr Edman when he appeared in court on Monday. The State law office on Monday informed Mr Justice Mohammed Warsame who had earlier ordered the release and deportation of the man that the government had booked a flight for him to travel to his mother country on August 1.

Mr Edman was first arrested on April 2, 1996, and charged with being in the country illegally and holding a forged Australian passport. He was found guilty and sentenced to six months imprisonment. But, after the term he could not be repatriated because he refused to disclose his identity and country of origin. The United Nations High Commissioner for Refugees declined to give him refugee status in January 1998. The Australian High Commission too declined to accept him, saying he was not an Australian. Two years later, the government issued Mr Edman with a certificate of identification and directed him to leave the country but he refused. He was arrested and charged on August 10, 2000, with being in the country unlawfully. He was again found guilty.

In November 2003, he was released from custody and issued with a prohibited immigrant’s notice after which he travelled to Dubai. He was denied entry there because he did not have travel documents and he returned to Kenya. At the time, he said his country of origin was the United States, but he was born in Papua New Guinea and that his parents were Australians.

On Monday, Mr Justice Warsame directed the matter be mentioned on September 16 to ascertain whether Mr Edman has reached his destination safely.

Wednesday, July 29, 2009

Nemo iudex in causa sua

No man may be judge in his own cause, writes Lord Alfred Denning in The Just Judge.

Although this principle originates in the courts of law, it does apply with equal force to all matters of public interest where a danger exists for private need to interfere with the common good.

The current cabinet impasse over the best way to address the crimes and injustices committed in the aftermath of the 2007 elections, is just such a matter. In the interests of justice, we can safely say that save for Gavin MacFadayen, Pascal Kambale, Philip Waki, Luis Moreno-Ocampo and a handful of his assistants, no one knows the suspects on the list of 11 individuals deserving further investigations in connection with the post-election violence.

Yet the Waki report — which is the cause of all the anxiety in Kenya — shares many attributes with the bikini: it is revealing enough to sustain interest, while covering up the essentials.

Even then, it makes no secret of the fact that some six cabinet ministers are on the list of 11 individuals suspected to have planned, directed and financed the violence. These six individuals continue to sit in Cabinet meetings when debate on whether to try the suspects through a Special Tribunal or recommend that they face justice at the International Criminal Court in The Hague.

None of the reports about those heated meetings has suggested that a single individual has removed himself or herself from the proceedings to avoid the mere appearance of a conflict of interest. Those concerned can argue quite correctly that they do not know that they are on any list and thus deserve to enjoy their full rights as members of the cabinet. This duplicity is what allowed this same cabinet to approve the first Bills that attempted to set up a special tribunal. Those proposals omitted a critical recommendation from the Waki report – that those named in connection with the violence would stand down from public office until they had been cleared. This omission alone soured the mood in Parliament and forced MPs to start looking out for their own interest.

So, Kenya is back where it started — at a rendezvous with fate. The government’s own watchdog, the Kenya National Commission on Human Rights, has published On the Brink of the Precipice, which is an account of the post-election violence. Many people, mostly those named in connection with various transgressions, have dismissed the report in highly uncharitable language.

Whatever its shortcomings, however, the report provides the first opportunity for people who know they are innocent to rescue themselves from the decisions on what happens to the suspects. In this regard, the six cabinet ministers whose names appear in the KNCHR report can demonstrate to Kenya that they have nothing to hide by staying away from Cabinet deliberations. With the kind of cabinet size we have, one can argue that these ministers constitute only 15 per cent of the whole and cannot sway the vote one way or another. One can also argue that if they are indeed guilty, they can still influence their friends without attending.

These concerns are valid, but what is more important right now is a demonstration that cabinet ministers can publicly acknowledge their personal interest — however remote — before taking a decision on behalf of the whole country. As it is, we have actual and potential suspects frustrating the entire country’s search for closure on a painful and regrettable chapter in its history.

Should they fail to do so, Prime Minister Raila Odinga and President Kibaki can stop pretending that their hands are tied and ask them to take the pep-walk. When— not if — the Bills for establishing the tribunal go to Parliament, the 16 MPs who have been tarred— however unfairly — by allegations of incitement, planning, directing or financing the violence also need to publicly demonstrate that they have excluded themselves from the decision that the House takes.

This is the only way the country’s leadership can claw back its damaged credibility.

Thursday, July 16, 2009

The sequence of the civilian coup in Kenya on December 30, 2007

Once Kivuitu walks into the plenary hall of KICC at 4:37 pm on Sunday, December 30th, to announce the rigged results, the stage is set for a a civilian coup. The GSU storms the plenary hall and ejects Opposition MPs, agents and the media from the hall. Outside, more GSU and Administration Police surround the building and clear the compound. A lone Nation reporter is still filming the unfolding drama. He captures the arrival of the Police Commissioner's car.


However, the Police Commissioner is already inside the building, having walked from Vigilance House. He walks to his car, past an armed GSU guard. Most of them seem unsure of what to do. Only a few salute. Maj. Gen. Ali's car follows behind that of Justice Minister, Martha Karua who had made a quick arrival and departure. Minutes later, Kivuitu declares Mwai Kibaki the winner of the election. Only the state-owned KBC is allowed to broadcast the declaration. KBC swiftly transmits the material to all other media houses. About an hour later, Mwai Kibaki is sworn in at State House by the Chief Justice Evan Gicheru in the presence of the Attorney General, Amos Wako, his key aides, supporters and military chiefs and Maj. Gen. Ali. Within minutes, ten people are killed in Kisii.

Later that evening, John Michuki, Minister of Internal Security, through Bitange Ndemo, the PS Ministry of Information, issues a circular banning all live broadcasts "in the interest of public security and good order. Two days later, Samuel Kivuitu admits that he does not know whether or not Mwai Kibaki won the general election.

NB -- ATTORNEY GENERAL AMOS WAKO WAS ONE OF THE COUP MAKERS. YET LATER THAT DAY, HE WAS ASKING FOR AN INQUIRY.

The Facts of the post-election violence are these:
• More than 1,327 people were killed due to the violence (estimate based on continuous recordings) - many by armed government forces with shoot-to-kill orders and ethnic killings with crude weapons. Official police count: 526 killed (police only admited so far 90 killings caused by security forces); official government count 923. Unofficial police statement on 25th February 2008 (given by an unnamed Senior Police Commander to AFP): 1,500. Most media count over 1000 killings. UN estimate: 921 killings; Red Cross estimate: More than 1000. Opposition estimate: More than 1,500. Overall 57% were killed by crude weapons or burns and 43% by bullets. However, in Western Province 91% were killed by bullets. Mortuaries were overfilled everywhere. Bodies were dumped in forests. Government banned mass graves for uncollected bodies. Numerous people abducted by "police" still not found.

• More than 550 private motor vehicles and more than 280 Public Service vehicles were burned.

• More than 1,850 women and girls raped and many forcefully circumcised (also many men and boys are circumcised by force). Though the turmoil calmed down more than 165 underaged children even young as only 2 years of age are at present defiled per month, says official police report. And these are only the reported cases.

• More than 5,685 houses, shops and increasing number of schools, public buildings and churches burnt down.

• More than 12,500 Kenyans fled into Uganda and over 3,000 to Tanzania. Only very few returned. On 6th March 2008, UNHCR counted 12,000 refugees from Kenya in Uganda.

• More than 6,850 children seriously injured (many by police and other armed forces).

• More than 14,689 adults seriously injured or wounded (many by security forces).

• More than 23,800 people robbed of all their property.

• More than 80,000 school children, who had to flee, had to be allocated to other schools, while 520 school teachers could not return to their schools for fear of ethnic persecution. Allocations were stopped due to renewed tension.

• More than 100,000 children were registered as displaced (UNICEF), another 100,000 not accounted for at their former residences, i.e. they fled with or without their families and nobody knows where they are.

• More than 600,000 people fled from their homes (Government counted only 219,485) and about 50% (ICRC: 304,000, UN: 310,000) were registered as IDPs (internally displaced people, i.e., refugees in their own country) in more than 44 "official" IDP-camps all over the country, but in reality at many more sites (UN: More then 300 camps - over 192 sites in western and central regions alone). In the North Rift Valley alone over 126,000 people were displaced. Many IDPs were and are still unreached and without shelter or food. About 150,000 registered IDPs have left the camps for their ancestral homelands. Around 300,000 people found refuge with families and friends as well as other wellwishing Kenyans and expatriates. Beginning of March still 200,000 people (some newly registered) are in protected camps.

All this because Kibaki wanted to go back to State House. It's so surreal, I still feel like I'm dreaming...

Wednesday, July 15, 2009

Kibaki as gulty as Taylor & Saddam

How many must Kibaki kill before he can be tried?

Ex-Liberian leader Charles Taylor is on trial for ordering the killing of civilians. Saddam Hussein was executed for the trial and execution of 148 Shi'ites. Kibaki Killed thousands. Under Kenyan law, killing one person leads to the gallows.

THE HAGUE, Netherlands, Sun Jul 12, 2009 7:24 am ET: Prosecutors say Taylor commanded Sierra Leone rebels responsible for the atrocities from his base in the neighboring West African nation of Liberia, where the former warlord was the elected president. Saddam was brought to trial under the Iraqi interim government set up by U.S.-led forces.

On November 5, 2006, Saddam Hussein was convicted of charges related to the 1982 killings of 148 Shi'ites, suspected of planning an assassination attempt against him, and was sentenced to death by hanging. Saddam was executed on December 30, 2006.

The International Covenant on Civil and Political Rights (ICCPR), 1967 recognizes the right to life. Article 6 declares: 6(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The African Charter on Human and Peoples’ Rights declares:
Article 4: Human beings are inviolable. Every human being shall be entitled to respect for his life and integrity of his person. No one may be arbitrarily deprived of this right.’


Kenya has ratified the African Charter, but has not provided through legislation for its effect under her municipal law. Having ratified ICCPR, Kenya is obligated under its Article 6 to take measures to restrict arbitrary murder of citizens by state agents. The president of Kenya cannot lawfully give shoot-to-kill orders unless a state of emergency is in effect.

Kenya has ratified the Rome Statute establishing the International Criminal Court. The jurisdiction of the court is limited to war crimes, genocide and crimes against humanity – crimes considered to be the most heinous universally. The punishment meted by the court upon conviction for any of these crimes, which also constitute gross human rights violations, is life imprisonment. By ratifying the Rome Statute, one could argue that the state has implicitly acknowledged that it would adhere to its laws.

VIOLATION OF KENYAN LAW
Kibaki committed acts that amount to treason, treachery and promoting warlike undertaking:

ChapterVII - Treason and Allied Offenses
40. (1) Any person who, owing allegiance to the Republic, in Kenya or elsewhere -
(a) compasses, imagines, invents, devises or intends - (iii) the overthrow by unlawful means of the Government; and
(b) expresses, utters or declares any such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing or by any overt act or deed, is guilty of the offense of treason. 2) Any person who, owing allegiance to the Republic -
(a) levies war in Kenya against the Republic; or (3) Any person who is guilty of the offense of treason shall be sentenced to death. 42. Any person who -
(a) becomes an accessory after the fact to treason; or
(b) knowing that any person intends to commit treason, does not give information thereof with all reasonable despatch to the Attorney-General, administrative officer, magistrate, or officer in charge of a police station, or use other reasonable endeavours to prevent the commission of the offense, is guilty of the felony termed misprision of treason and is liable to imprisonment for life.

Kibaki then commits Treachery, violating section. 24 of 1967, s.4. 43A, by inviting Museveni to wage war on Kenyans. Any person who, with intent to help the enemy, does any act which is designed or likely to give assistance to the enemy, or to interfere with the maintenance of public order or the government of Kenya, or to impede the operation of the disciplined forces, or to endanger life, is guilty of a felony and is liable to imprisonment for life.

Kibaki is liable to be charged for Promoting warlike undertaking, violating 24 of 1967, s.4.44. Any person who, without lawful authority, carries on, or makes preparation for carrying on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by or against any person or body or group of persons in Kenya, is guilty of a felony and is liable to imprisonment for life. The Shoot to Kill Order by Kibaki constituted murder under Kenyan Penal code and is a crime against humanity.

Monday, July 13, 2009

Jacksons fight over MJ burial

Michael Jackson’s mum has clashed with his brother Jermaine over whether the late music legend should be buried at Neverland.

Jermaine wants MJ’s former fantasy-style ranch home to be his final resting place. But mum Katherine has put her foot down, saying the ranch is "tainted" because police raided it during child abuse investigations. A source close to Katherine said: "Michael left Neverland for good, never to return. He felt violated by law enforcement after his molestation trial. He felt this place he had built had been tainted. Katherine continues to be her son’s protector even after his death." Friends said heated discussions have taken place at the Jackson’s Encino home over the issue. But despite the debate, the family has still not decided on a burial spot.

Jermaine has already spoken out in public about his hope for a Neverland grave. Speaking from the ranch, he said: "This is his home, he created this. Why wouldn’t he be here? I feel his presence. And I love that." Jermaine hinted at his clash with Katherine, saying: "I want my mother to come back here and feel what I feel. He built this place with love and you can see it and feel it."

The funeral has been put on hold until medical tests on MJ’s brain have been completed. MJ’s coffin was taken to a secret location after Tuesday’s memorial service in Los Angeles. LAPD chief William Bratton refused to reveal the location of the body, adding: "We have to keep some secrets." He did confirm the body would not be returned to the Forest Lawn cemetery, where the family held a private service before the memorial.

If they do decide on Neverland as his final resting place, the Jackson family will have to apply for a permit to bury the body or scatter his ashes there. Obtaining the relevant permission from Santa Barbara County officials could take weeks. But County spokesman William Boyer said they had not been contacted by the Jackson clan. “Local jurisdiction would have to be asked. We have not received any contact,” he said.

Sunday, July 12, 2009

Saturday, July 11, 2009

Uhuru's budget still has "computer errors"...

A parliamentary committee will question Finance minister Uhuru Kenyatta over ghost allocations in his Budget speech last month.

Agriculture Committee chairman John Mututho said inconsistencies discovered in the allocation of resources to the ministry of Northern Kenya and Arid Lands Development showed a new style of mischief carried out by Treasury officials. “How can funds be allocated in a manner that does not reflect the truth? The minister in his speech gave the ministry Sh10 billion, now it actually received Sh4 billion,” Mr Mututho said.

The Naivasha MP said the minister should not have purported to allocate Sh10 billion to the ministry in his speech while the money is actually given to other ministries. The committee members said since the ministry had overlapping roles specific to Northern Kenya, technical officers should be seconded there for ease of coordination and implementation rather than “keep them in mother ministries just for accruing other ministries funds.” They said similar mistakes must be in many ministries being scrutinised by parliamentary committees and in such events, loopholes of corruption due to the confusion created technically were most likely to take place.

The funding shortage has forced President Kibaki to order the Finance minister to allocate an extra Sh5 billion to the Ministry of Northern Kenya and Arid Lands Development. The President made the decision after being told that the Sh4 billion the ministry got was too little to cater for the vast region. The increase was disclosed by the docket minister, Mr Mohammed Elmi, at a meeting with Mr Mututho’s parliamentary committee on agriculture.

The budget figures read by Mr Kenyatta indicated the ministry had been allocated more than Sh10 billion whereas the vote was a “paltry Sh4 billion”. The committee, which held a post-budget analysis meeting with Mr Elmi and ministry officials, was dismayed that the Sh10 billion turned out to be Sh4 billion. Mr Mututho said since independence, the region had received little attention from successive governments.

Friday, July 10, 2009

End of the road: Are we about to see the resolution of impunity in Kenya?

Kenya’s attempts to delay punishment of top suspects accused of crimes against humanity on Thursday backfired after chief mediator Kofi Annan abruptly handed over the secret Waki list to the International Criminal Court.

What started as recommendations for the formation of a commission of inquiry into the violence following the presidential election in 2007 is now formally an international judicial matter and Kenya’s options have all but ended. Irritated by the deadlines set by the Panel of Eminent African Personalities, which brokered a deal to end the violence last year, the government sent a delegation to Mr Annan and later to negotiate directly with the prosecutor at the ICC, Mr Luis Moreno-Ocampo.

The reception in Europe was far from warm. Mr Annan thought Kenyan lacked the political will to punish the perpetrators of the violence. His advice was for the leaders to speak to Mr Moreno-Ocampo first and then he would communicate his decision. He summoned the other members of the panel of Eminent African Personalities, Mr Benjamin Mkapa of Tanzania and Ms Graça Machel of South Africa and they decided to hand over the list of suspects to the International Criminal Court.

His “communication” on Thursday caught everyone by surprise and threw the government into a panic.

Both the Party of National Unity and the Orange Democratic Movement have paid lip service to the need to end impunity without real commitment to punishment for crimes against humanity. ODM, according to a party apparatchik, is “focusing on... the officials who were in charge when innocent people were killed by police.” The feeling in ODM is that more of PNU people stand to be prosecuted than its own. The dossier it sent to the International Criminal Court in January last year consisted of evidence of murder by the State, including postmortem reports showing that victims had been shot.

On the other hand, PNU appears to believe that the bloody crackdown on protesters was a law and order issue, which is necessary to preserve the state, and that the Mungiki slaughter in Naivasha and elsewhere was “spontaneous” retaliation for killings and mass evictions reported in the Rift Valley and elsewhere. In other words, ODM started it. In both parties, those responsible for the slaughter believe that they could threaten new violence to deter prosecutions.











Some have argued that what is needed is “healing” and “reconciliation” rather than prosecution.

This explains the fashionable idea of referring even the worst criminals to the Truth, Justice and Reconciliation Commission. Justice minister Mutula Kilonzo is on record as having said that a special tribunal would only be formed if it did not threaten stability, an indication that there has been no single-minded pursuit of justice.

What started as recommendations for the formation of a commission of inquiry into the violence following the presidential election in 2007 is now formally an international judicial matter and Kenya’s options have all but ended.


All these are moot arguments now: According to the agreement entered into with the International Criminal Court, Kenya must establish a court or tribunal to try the suspects, offer proof that it was protecting witnesses and preserving evidence — all by September. The court or tribunal must not only be accepted by Parliament — a near impossibility given MPs’ hostility to a local tribunal — but must also have the broad support of many sectors of the society, according to Mr Annan’s letter. To build consensus and get MPs to pass the necessary laws in three months would require the kind of commitment to ending impunity that Kenya is yet to demonstrate.















On Thursday, Mr Annan separately called President Kibaki and Prime Minister Raila Odinga to inform them of his decision, sparking a flurry of meetings at Harambee House, the President’s office, attended by both the President and the PM. The two, it appears, did not expect Mr Annan to hand over the envelope to Mr Moreno-Ocampo, especially after last week’s visit to Geneva and The Hague by the government delegation. “Mr Kofi Annan today (Thursday) informed President Kibaki and Prime Minister Raila Odinga that the Panel had transmitted to the Prosecutor of the International Criminal Court the sealed envelope and supporting materials entrusted to him by the Waki Commission on 17 October 2008,” Mr Annan’s statement said. To underline the importance of his calls, Mr Annan also wrote separately to the President and the PM to inform them of the decision taken by the panel. He said the decision was reached after the government delegation of Cabinet ministers Mutula Kilonzo, James Orengo and Attorney General Amos Wako met Mr Moreno-Ocampo. The prosecutor gave the government until end of September to show proof that it was prosecuting the prominent people behind the violence in which more than 1,133 Kenyans were killed.

Mr Moreno-Ocampo’s office confirmed receiving the sealed enveloped and materials bearing evidence of the killings from Mr Annan. The ICC chief prosecutor, who is Addis Ababa, Ethiopia on a visit to several Africa countries, has stressed no one will be spared if the government fails to meet its side of the bargain. Sources said the meeting between President Kibaki, Mr Wako, Mr Kilonzo and Mr Orengo did not agree on the kind of judicial mechanism that they would put in place. ODM had expressed fears that a special division of the High Court may not meet international standards. Mr Wako, Mr Kilonzo and Mr Orengo were tasked to quickly work out a judicial mechanism that would be acceptable to MPs, The Hague and the public.

Although Mr Annan had welcomed the government’s efforts to either establish a local tribunal or a judicial mechanism to try the suspects, he declared that it must meet international standards and be agreed on by all Kenyans. However, he hit at the slow pace of putting in place a mechanism and warned that impunity must be tackled for Kenya to embark on a fresh chapter. He reminded the government that the public was becoming restless with the delay in implementing reforms under Agenda Four of the National Accord. “Justice delayed is justice denied. The people of Kenya want to see concrete progress on impunity. Without such progress, the reconciliation between ethnic groups and the long-term stability of Kenya is in jeopardy,” he warned.

A draft Cabinet paper on the establishment of the special court has been submitted to the President and the PM, although it appears that it will meet strong opposition in Parliament. The proposal seeks to set up a special division of the High Court that will be composed of foreign and local judges. The prosecutor and the investigator will be non-Kenyans.

Obama lambasts Kenya

President Barack Obama has spoken out on his administration’s approach to Africa on the eve of a symbolic visit to Ghana this weekend at which he is expected to make a major speech outlining Washington’s foreign policy goals to the continent.

Mr Obama, whose father was Kenyan, was interviewed by the online news service All Africa.com. In the excerpts released on Wednesday by the US President’s Press Office, Mr Obama singled out Tanzania in the East African region for praise, was critical of Kenya’s democratic path and silent on Uganda. “You’ve seen some very good work by the administration in Tanzania focusing on how to deliver concrete services to the people, and wherever folks want to help themselves, we want to be there as a partner,” he said. “And I think that you’ve got some very strong leadership in Africa that is ready to move forward and we want to be there with them,” Obama added.

Mr Obama repeats what Africa experts have already called the linchpin of current US administration’s African policy; a focus on good governance. The US President makes it clear that his choice of Ghana for his first African visit is because Accra has been characterised as a stable country in Africa having gone through two peaceful transitions of power. “Countries that are governed well, that are stable and where the leadership recognises that they are accountable to the people and that institutions are stronger than any one person have a track record of producing results for the people” Mr Obama said.

Mr Obama said he was concerned about the country of his father’s birth, Kenya, which has also come to symbolise the soft underbelly of democracies in Africa. Once considered an island of stability, Kenya descended into chaos after the disputed December elections of 2007. “I am concerned about how the political parties do not seem to be moving into a permanent reconciliation that would allow the country to move forward” he said. On aid, Mr Obama said a holistic approach was necessary which recognised that Africans were responsible for their destiny. “I think what’s hampered the advancement in Africa is that for many years we’ve made excuses about corruption and poor governance; that this was somehow the consequence of neo-colonialism, or the West has been oppressive, or racism. I’m not a believer in excuses,” he said.