Post by miguna on Dec 30, 2005 2:49:22 GMT 3
THE REGISTRAR OF SOCIETIES SHOULD BE CHARGED
(A critical look at the ODM scandal in Kenya)
By MIGUNA MIGUNA* - © 28 December 2005
There is an embarrassing political argument raging over the ownership of the Orange Democratic Movement (ODM). This argument is as unwarranted as it is unnecessary. However, since it shows no signs of abating, it should promptly move from the political to the legal arena, where it ought to belong.
Apparently, some unknown characters have been listed as the new “owners” of ODM by either the Registrar of Societies or the Registrar’s Assistant. It does not really matter whether it is the Registrar or the Registrar’s Assistant who pulled this unscrupulous fast legal mischief on the Kenyan people. The reality is that it has occurred. Now we must apportion blame and call for blood.
From where I am standing, the registration is a nullity. The act of registration ought not to have happened. In fact, the act is void by virtue of the fact that those claiming to have duly registered ODM as their own have no legitimate claim over that political outfit. The Registrar’s office ought to have been aware of these purported new owner’s standing vis-à-vis ODM by a mere single click of a computer mouse. The Google search engine is nowadays so precise with these matters that one need not employ any other sophistry associated with legal “searches” and “executions.” No unnecessary expense should have been incurred by anyone if the Registrar’s office exercised due diligence and “checked” what ODM stands for, when it was formed and by whom. This could not have taxed any lazy person much given the fact that all three major Kenyan daily newspapers are now firmly accessible online.
Unless someone has just arrived by some spacecraft from Mars into our hemisphere, the ownership of ODM shouldn’t really take more than two minutes to settle. But since we are on Planet Kenya where nothing is certain (where blue can be white), I will indulge the readers with a brief history.
One Saturday afternoon, politicians affiliated with the referendum No campaign – mainly members of the LDP and Kenya political parties – converged on Kisumu City and addressed a mammoth rally. At the end of that rally, a declaration was made about the formation of the Orange Democratic Movement. The Orange was a symbol for the NO campaign that had been assigned by the Electoral Commission of Kenya (ECK). Following the Kisumu Declaration, numerous political rallies and press conferences were held in the name of the ODM and the NO campaign. Numerous Pres releases were issued bearing the insignia ODM. Political retreats, consultations and meetings were held under this ODM moniker.
From that sunny afternoon up to now, ODM has only been associated with the No campaign. The public faces of ODM leadership were Raila Odinga, Kalonzo Musyoka, Uhuru Kenyatta, William Rutto, Musalia Mudavadi, Anyang’ Nyongo, Ochillo Ayacko and Najib Balala.
On numerous occasions, ODM leadership has publicly declared that they will register this entity as a political party. Although we now hear that ODM had instructed Mutula Kilonzo to proceed and register the name at the Registrar of Societies, apparently Kilonzo has confirmed that he “requisitioned” that the name be “reserved” for his group prior to registration.
Needless to say, before anyone else could validly register ODM, it was incumbent upon the Registrar to ascertain that,
• One, all records (from the public domain such as media reports, court records, et cetera) were clear that nobody or entity had laid claims over either the name Orange Democratic Movement, Orange Democratic Movement Party or ODM. Had the Registrar done this, he or she would have found thousands of public pronouncements (which are valid in law) by those affiliated with the NO campaign. I believe that this exercise was actually unnecessary given the public claims repeatedly made by the NO campaign that any Kenyan, however allergic one would pretend to be of news, must have chanced on them.
• Two, that those purporting to own ODM had valid authorizations from the known No campaign leaders. To have gone ahead and registered ODM to unknown entities with absolutely no instructions, directions or authorizations from the legitimate ODM was not just mischievous, it was also fraudulent.
Without having done either of the two, the Registrar’s action fell much below what is expected of that office. Registration of political parties is not akin to registering some shell companies. To assert that the Registrar acted appropriately by registering ODM to whoever approached the Registry with the appropriate fee and completed forms is tantamount to claiming that registering political parties in Kenya is only about revenue collection. This is farthest from the truth. Political parties are avenues through which legitimate democratic aspirations, dreams, visions and wishes of Kenyans are channeled. In a multi-party democracy like Kenya, ordinary persons can only express themselves politically in an organized fashion through political parties.
The registration of illegitimate parties is clearly not a means towards strengthening Kenyans’ voices; it is inimical to the empowerment of the ordinary people. By attempting to muffle people’s voices through unscrupulous, deceptive and fraudulent registrations such this one, the Registrar of Societies has become, not a proper record keeper of societies in Kenya, but a quack for hire. To have pretended to register ODM to some third-rate swindlers and peddlers is really to have committed an illegality that should not go unpunished.
Abuse of public office
Section 101 of the Penal Code, Cap. 63 (Penal Code) states that “Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.”
Section 102 of the Penal Code provides that “Any person who, being authorized or required by law to give any certificate touching any matter by virtue whereof the rights of any person may be prejudicially affected, gives a certificate which is, to his knowledge, false in any material particular, is guilty of a misdemeanour.”
Clearly the purported registration and issuance of a registration certificate to three people with no connection to the ODM and who had not sought or obtained ODM’s authorization to so obtain the certificate on its behalf, was not just arbitrary and capricious, it was in flagrant abuse of the above cited sections of the Penal Code.
Miscellaneous offences against public authority
Section 127 of the Penal Code states that “Any person employed in the public service who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether the fraud or breach of trust would have been criminal or note if committed against a private person, is guilty of a misdemeanour.”
Section 128 of the Penal Code states that “Every person employed in the public service who willfully neglects to perform any duty which he is bound either by common law or by any written law to perform, provided that the discharge of the duty is not attended with greater danger than a man of ordinary courage might be expected to face, is guilty of a misdemeanour.”
Once more, the Registrar and the Registrar’s Assistance had positive duties in law to conduct diligent searches of ALL RECORDS concerning the origin, existence and ownership of the ODM before purporting to issue a registration certificate to the three pretenders. There is no argument that the Registrar and his assistant neglected to do this and/or deliberately issued the certificate to those without any valid or legitimate claim. Consequently, both sections 127 and 128 of the Penal Code are engaged.
Criminal recklessness and negligence
Section 244 of the Penal Code provides that “Any person who unlawfully does any act, or omits to do any act which it is his duty to do, not being an act or omission specified in section 243 by which act or omission harm is caused to any person, is guilty of a misdemeanour and is liable to imprisonment for six months.”
The Registrar’s issuance of the certificate to three individuals with no bona fide claim to the ODM directly caused serious harm to the legitimate ODM, compelled them to incur unnecessary costs and therefore should be punished under section 244.
The issuance of the certificate to the three pretenders constitute theft
Under section 268 of the Penal Code, a person commits theft when s/he “fraudulently and without claim of right takes anything capable of being stolen or who converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.”
Subsection 268(2) (a), (c) and (d) states that:
(2) Any person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say:
(a) an intent permanently to deprive the general or special owner of the thing of it;
(c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; and
(d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion.
And “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question. [emphasis added].
Whether ODM is viewed as “property” or “thing,” it is imperative to note that the issuance of a certificate of registration to those without any valid or legitimate claims to it constitutes a “conversion” and hence its theft by the Registrar, the Registrar’s Assistant and the three pretenders. The three amigos have reportedly approached William Rutto with a suggestion that if the legitimate ODM wants to get back its ownership, then it should “purchase it” at the “right price” from the fraudsters. Not only is this criminal blackmail, it is a further proof of the fraud involved. To buy back ODM from these pretenders would be tantamount to the perpetuation of fraud, political blackmail and corruption in Kenya. The offer or condition is unacceptable. As well, the three amigos would not be able to “return” something that it never owned, to begin with. There was clearly an intention by those concerned to permanently deprive the legitimate owners or special owners of ODM (who I have already identified herein), from using it as a political electoral vehicle in Kenya. Accordingly, section 268 of the Penal Code is strongly engaged.
“Making” or “uttering” a false document and “falsification” of register
Section 347 of the Penal Code defines forgery as the “making of a false document with intent to defraud or to deceive.”
Section 353 of the Penal Code states that “Any person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind and is liable of the same punishment as if he had forged the thing in question.”
Conclusion
From the foregoing, it is crystal clear that the legitimate ODM should not be forced to incur costs of litigating this matter before the certificate of registration is issued to them; the costs of litigation, including all other associated expenses ought to be born by the Registrar, the Registrar’s Assistant and the Attorney General. Running the Office of the Registrar of Societies is an honour that requires optimum ethical integrity. The duties of the Registrar ought not to be exercised whimsically, capriciously, deceptively, fraudulently, incompetently, negligently or mischievously. The real ODM should not have to go to court to deal with this matter.
Those behind this incompetent deception should be made aware that Kenyans know who the real ODM owners are. Kenyans also know why they supported the ODM/No campaign. Their grievances will not mystically disappear just because the name ODM has been (temporarily) given to political elopers.
If we are serious about championing the rule of law, there is no way that we can entertain these fraudulent tendencies within our political or legal systems. Not only should those responsible at the Registrar’s office be fired immediately, they should also be charged. In the event that the State is either unwilling or unable (as is to be expected) to act promptly in apprehending the perpetrators of these crimes and “return “the ODM to its rightful owners, the real ODM should also commence legal action to recover their damages, which were only incurred due to this unethical conduct by the Office of the Registrar of Societies. The three deceptive amigos ought not to go free as well. To fail to do so would encourage a sorry precedence in our country.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada
(A critical look at the ODM scandal in Kenya)
By MIGUNA MIGUNA* - © 28 December 2005
There is an embarrassing political argument raging over the ownership of the Orange Democratic Movement (ODM). This argument is as unwarranted as it is unnecessary. However, since it shows no signs of abating, it should promptly move from the political to the legal arena, where it ought to belong.
Apparently, some unknown characters have been listed as the new “owners” of ODM by either the Registrar of Societies or the Registrar’s Assistant. It does not really matter whether it is the Registrar or the Registrar’s Assistant who pulled this unscrupulous fast legal mischief on the Kenyan people. The reality is that it has occurred. Now we must apportion blame and call for blood.
From where I am standing, the registration is a nullity. The act of registration ought not to have happened. In fact, the act is void by virtue of the fact that those claiming to have duly registered ODM as their own have no legitimate claim over that political outfit. The Registrar’s office ought to have been aware of these purported new owner’s standing vis-à-vis ODM by a mere single click of a computer mouse. The Google search engine is nowadays so precise with these matters that one need not employ any other sophistry associated with legal “searches” and “executions.” No unnecessary expense should have been incurred by anyone if the Registrar’s office exercised due diligence and “checked” what ODM stands for, when it was formed and by whom. This could not have taxed any lazy person much given the fact that all three major Kenyan daily newspapers are now firmly accessible online.
Unless someone has just arrived by some spacecraft from Mars into our hemisphere, the ownership of ODM shouldn’t really take more than two minutes to settle. But since we are on Planet Kenya where nothing is certain (where blue can be white), I will indulge the readers with a brief history.
One Saturday afternoon, politicians affiliated with the referendum No campaign – mainly members of the LDP and Kenya political parties – converged on Kisumu City and addressed a mammoth rally. At the end of that rally, a declaration was made about the formation of the Orange Democratic Movement. The Orange was a symbol for the NO campaign that had been assigned by the Electoral Commission of Kenya (ECK). Following the Kisumu Declaration, numerous political rallies and press conferences were held in the name of the ODM and the NO campaign. Numerous Pres releases were issued bearing the insignia ODM. Political retreats, consultations and meetings were held under this ODM moniker.
From that sunny afternoon up to now, ODM has only been associated with the No campaign. The public faces of ODM leadership were Raila Odinga, Kalonzo Musyoka, Uhuru Kenyatta, William Rutto, Musalia Mudavadi, Anyang’ Nyongo, Ochillo Ayacko and Najib Balala.
On numerous occasions, ODM leadership has publicly declared that they will register this entity as a political party. Although we now hear that ODM had instructed Mutula Kilonzo to proceed and register the name at the Registrar of Societies, apparently Kilonzo has confirmed that he “requisitioned” that the name be “reserved” for his group prior to registration.
Needless to say, before anyone else could validly register ODM, it was incumbent upon the Registrar to ascertain that,
• One, all records (from the public domain such as media reports, court records, et cetera) were clear that nobody or entity had laid claims over either the name Orange Democratic Movement, Orange Democratic Movement Party or ODM. Had the Registrar done this, he or she would have found thousands of public pronouncements (which are valid in law) by those affiliated with the NO campaign. I believe that this exercise was actually unnecessary given the public claims repeatedly made by the NO campaign that any Kenyan, however allergic one would pretend to be of news, must have chanced on them.
• Two, that those purporting to own ODM had valid authorizations from the known No campaign leaders. To have gone ahead and registered ODM to unknown entities with absolutely no instructions, directions or authorizations from the legitimate ODM was not just mischievous, it was also fraudulent.
Without having done either of the two, the Registrar’s action fell much below what is expected of that office. Registration of political parties is not akin to registering some shell companies. To assert that the Registrar acted appropriately by registering ODM to whoever approached the Registry with the appropriate fee and completed forms is tantamount to claiming that registering political parties in Kenya is only about revenue collection. This is farthest from the truth. Political parties are avenues through which legitimate democratic aspirations, dreams, visions and wishes of Kenyans are channeled. In a multi-party democracy like Kenya, ordinary persons can only express themselves politically in an organized fashion through political parties.
The registration of illegitimate parties is clearly not a means towards strengthening Kenyans’ voices; it is inimical to the empowerment of the ordinary people. By attempting to muffle people’s voices through unscrupulous, deceptive and fraudulent registrations such this one, the Registrar of Societies has become, not a proper record keeper of societies in Kenya, but a quack for hire. To have pretended to register ODM to some third-rate swindlers and peddlers is really to have committed an illegality that should not go unpunished.
Abuse of public office
Section 101 of the Penal Code, Cap. 63 (Penal Code) states that “Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.”
Section 102 of the Penal Code provides that “Any person who, being authorized or required by law to give any certificate touching any matter by virtue whereof the rights of any person may be prejudicially affected, gives a certificate which is, to his knowledge, false in any material particular, is guilty of a misdemeanour.”
Clearly the purported registration and issuance of a registration certificate to three people with no connection to the ODM and who had not sought or obtained ODM’s authorization to so obtain the certificate on its behalf, was not just arbitrary and capricious, it was in flagrant abuse of the above cited sections of the Penal Code.
Miscellaneous offences against public authority
Section 127 of the Penal Code states that “Any person employed in the public service who, in the discharge of the duties of his office, commits any fraud or breach of trust affecting the public, whether the fraud or breach of trust would have been criminal or note if committed against a private person, is guilty of a misdemeanour.”
Section 128 of the Penal Code states that “Every person employed in the public service who willfully neglects to perform any duty which he is bound either by common law or by any written law to perform, provided that the discharge of the duty is not attended with greater danger than a man of ordinary courage might be expected to face, is guilty of a misdemeanour.”
Once more, the Registrar and the Registrar’s Assistance had positive duties in law to conduct diligent searches of ALL RECORDS concerning the origin, existence and ownership of the ODM before purporting to issue a registration certificate to the three pretenders. There is no argument that the Registrar and his assistant neglected to do this and/or deliberately issued the certificate to those without any valid or legitimate claim. Consequently, both sections 127 and 128 of the Penal Code are engaged.
Criminal recklessness and negligence
Section 244 of the Penal Code provides that “Any person who unlawfully does any act, or omits to do any act which it is his duty to do, not being an act or omission specified in section 243 by which act or omission harm is caused to any person, is guilty of a misdemeanour and is liable to imprisonment for six months.”
The Registrar’s issuance of the certificate to three individuals with no bona fide claim to the ODM directly caused serious harm to the legitimate ODM, compelled them to incur unnecessary costs and therefore should be punished under section 244.
The issuance of the certificate to the three pretenders constitute theft
Under section 268 of the Penal Code, a person commits theft when s/he “fraudulently and without claim of right takes anything capable of being stolen or who converts to the use of any person, other than the general or special owner thereof, any property, is said to steal that thing or property.”
Subsection 268(2) (a), (c) and (d) states that:
(2) Any person who takes anything capable of being stolen or who converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say:
(a) an intent permanently to deprive the general or special owner of the thing of it;
(c) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; and
(d) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion.
And “special owner” includes any person who has any charge or lien upon the thing in question, or any right arising from or dependent upon holding possession of the thing in question. [emphasis added].
Whether ODM is viewed as “property” or “thing,” it is imperative to note that the issuance of a certificate of registration to those without any valid or legitimate claims to it constitutes a “conversion” and hence its theft by the Registrar, the Registrar’s Assistant and the three pretenders. The three amigos have reportedly approached William Rutto with a suggestion that if the legitimate ODM wants to get back its ownership, then it should “purchase it” at the “right price” from the fraudsters. Not only is this criminal blackmail, it is a further proof of the fraud involved. To buy back ODM from these pretenders would be tantamount to the perpetuation of fraud, political blackmail and corruption in Kenya. The offer or condition is unacceptable. As well, the three amigos would not be able to “return” something that it never owned, to begin with. There was clearly an intention by those concerned to permanently deprive the legitimate owners or special owners of ODM (who I have already identified herein), from using it as a political electoral vehicle in Kenya. Accordingly, section 268 of the Penal Code is strongly engaged.
“Making” or “uttering” a false document and “falsification” of register
Section 347 of the Penal Code defines forgery as the “making of a false document with intent to defraud or to deceive.”
Section 353 of the Penal Code states that “Any person who knowingly and fraudulently utters a false document is guilty of an offence of the same kind and is liable of the same punishment as if he had forged the thing in question.”
Conclusion
From the foregoing, it is crystal clear that the legitimate ODM should not be forced to incur costs of litigating this matter before the certificate of registration is issued to them; the costs of litigation, including all other associated expenses ought to be born by the Registrar, the Registrar’s Assistant and the Attorney General. Running the Office of the Registrar of Societies is an honour that requires optimum ethical integrity. The duties of the Registrar ought not to be exercised whimsically, capriciously, deceptively, fraudulently, incompetently, negligently or mischievously. The real ODM should not have to go to court to deal with this matter.
Those behind this incompetent deception should be made aware that Kenyans know who the real ODM owners are. Kenyans also know why they supported the ODM/No campaign. Their grievances will not mystically disappear just because the name ODM has been (temporarily) given to political elopers.
If we are serious about championing the rule of law, there is no way that we can entertain these fraudulent tendencies within our political or legal systems. Not only should those responsible at the Registrar’s office be fired immediately, they should also be charged. In the event that the State is either unwilling or unable (as is to be expected) to act promptly in apprehending the perpetrators of these crimes and “return “the ODM to its rightful owners, the real ODM should also commence legal action to recover their damages, which were only incurred due to this unethical conduct by the Office of the Registrar of Societies. The three deceptive amigos ought not to go free as well. To fail to do so would encourage a sorry precedence in our country.
______________________________________________________________________
*The writer is a Barrister & Solicitor in Toronto, Canada
