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Post by kamalet on Nov 1, 2012 11:53:22 GMT 3
I do not think they would have much leg to stand on unfortunately as their predicament is reflected by the will of the people in that Kenyans specifically voted in a referendum to restate their ouster from office as defined in the constitution. That is how I would expect the courts to rule. I think the difference between their case and the case before the court is that the courts have only ruled that they have jursidiction. It will be upon the petitioner to prove to the court how they feel their rights have been infringed upon for them to expect any relief from the courts - i.e. overturning the decision of the board. The people also insulated the vetting process from the courts - but the courts have rules they have jurisdiction! In the same way, the court would rule it has jurisdiction! The people may have insulated the process from the courts, but they people did not abrogate the rights of the judges which I think is the issue that sits in court. Please look at this: (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. (3) The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State; (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and (c) are subject only to the limitations contemplated in this Constitution. I have highlighted specific points that argue the case for the judges and why our Kibaki/Wako etc arguments would have a problem. The Sixth Schedule only provides for the process not to be questioned by anyone, but it cannot purport to take away the rights of the judges which is the argument I make.
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Post by tactician on Nov 1, 2012 12:08:11 GMT 3
The people also insulated the vetting process from the courts - but the courts have rules they have jurisdiction! In the same way, the court would rule it has jurisdiction! The people may have insulated the process from the courts, but they people did not abrogate the rights of the judges which I think is the issue that sits in court. Please look at this: (2) The purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. (3) The rights and fundamental freedoms in the Bill of Rights— (a) belong to each individual and are not granted by the State; (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by law, except to the extent that they are inconsistent with this Chapter; and (c) are subject only to the limitations contemplated in this Constitution. I have highlighted specific points that argue the case for the judges and why our Kibaki/Wako etc arguments would have a problem. The Sixth Schedule only provides for the process not to be questioned by anyone, but it cannot purport to take away the rights of the judges which is the argument I make. Now we are on the same page! If these provisions provide cover for the judges, don't they also provide cover for Kibaki/Wako? After all, the kibaki/wako removal procedures are in the sixth schedule, just like for the judges. Or what is the difference?
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Post by kamalet on Nov 1, 2012 12:11:37 GMT 3
Tactician
..and just like the judges, Kibaki, Moi et al will need to petition the court claiming their rights have been affected. If they do not the courts cannot come to their rescue!
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Post by tactician on Nov 1, 2012 12:14:10 GMT 3
Tactician ..and just like the judges, Kibaki, Moi et al will need to petition the court claiming their rights have been affected. If they do not the courts cannot come to their rescue! They question is - if they did petition, would the court rule in the same way as the precedent they have set?
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Post by kamalet on Nov 1, 2012 12:21:24 GMT 3
Tactician ..and just like the judges, Kibaki, Moi et al will need to petition the court claiming their rights have been affected. If they do not the courts cannot come to their rescue! They question is - if they did petition, would the court rule in the same way as the precedent they have set? But the court has not ruled on any of the petitions before it claiming violation of rights. All it has asserted is its right to hear such petitions. So essentially no precedent has been set .....jut yet!
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Post by tactician on Nov 1, 2012 12:32:33 GMT 3
They question is - if they did petition, would the court rule in the same way as the precedent they have set? But the court has not ruled on any of the petitions before it claiming violation of rights. All it has asserted is its right to hear such petitions. So essentially no precedent has been set .....jut yet! You're missing the point! The petitioners in the Gacheche case claimed their rights had been violated - and the high court therefore ruled it had jurisdiction in that respect which is in express contradiction of the transition clauses. What the court therefore did was to order that the aggrieved judges must not be de gazetted until the case is heard. In the same vein, Kibaki/wako just need to claim their rights have been violated AND the court should then hear the case. As the court is hearing the case, then the petitioners (kibaki/wako etc) must then be allowed to participate in the offices they are claiming (vie for office, go back to original offices) until the case is heard! Meaning Kibaki & Moi would be allowed to vie until the cases are heard! And Gicheru/Wako would be reinstated until the cases are heard!
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Post by kamalet on Nov 1, 2012 12:43:00 GMT 3
But the court has not ruled on any of the petitions before it claiming violation of rights. All it has asserted is its right to hear such petitions. So essentially no precedent has been set .....jut yet! You're missing the point! The petitioners in the Gacheche case claimed their rights had been violated - and the high court therefore ruled it had jurisdiction in that respect which is in express contradiction of the transition clauses. What the court therefore did was to order that the aggrieved judges must not be de gazetted until the case is heard. In the same vein, Kibaki/wako just need to claim their rights have been violated AND the court should then hear the case. As the court is hearing the case, then the petitioners (kibaki/wako etc) must then be allowed to participate in the offices they are claiming (vie for office, go back to original offices) until the case is heard! Meaning Kibaki & Moi would be allowed to vie until the cases are heard! And Gicheru/Wako would be reinstated until the cases are heard! To cut the chase, are you saying the ouster clause means the high court has no jurisdiction to hear matters related to the rights of the judges if the feel they have been violated? It is for the aggrieved judges to show which right has been violated and the courts to rule accordingly. I do not agree that the board was given unfettered rights to decide on anything on earth and that is why I quoted for you the vetting Act so that you can see the extent to which some of the decisions could violate ones rights giving rise to a petition. If the Act as envisaged in the Transition clauses is inconsistent with the constitution, that inconsistency cannot be cured by the ouster clause.....that has been my argument.
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Post by tactician on Nov 1, 2012 12:56:52 GMT 3
You're missing the point! The petitioners in the Gacheche case claimed their rights had been violated - and the high court therefore ruled it had jurisdiction in that respect which is in express contradiction of the transition clauses. What the court therefore did was to order that the aggrieved judges must not be de gazetted until the case is heard. In the same vein, Kibaki/wako just need to claim their rights have been violated AND the court should then hear the case. As the court is hearing the case, then the petitioners (kibaki/wako etc) must then be allowed to participate in the offices they are claiming (vie for office, go back to original offices) until the case is heard! Meaning Kibaki & Moi would be allowed to vie until the cases are heard! And Gicheru/Wako would be reinstated until the cases are heard! To cut the chase, are you saying the ouster clause means the high court has no jurisdiction to hear matters related to the rights of the judges if the feel they have been violated? It is for the aggrieved judges to show which right has been violated and the courts to rule accordingly. I do not agree that the board was given unfettered rights to decide on anything on earth and that is why I quoted for you the vetting Act so that you can see the extent to which some of the decisions could violate ones rights giving rise to a petition. If the Act as envisaged in the Transition clauses is inconsistent with the constitution, that inconsistency cannot be cured by the ouster clause.....that has been my argument. Let me answer this by quoting from the Transition clauses of the katiba: " A removal, or a process leading to the removal, of a judge, from office by virtue of the operation of legislation contemplated under subsection (1) shall not be subject to question in, or review by, any court."As you can see, the alleged violation of rights is covered in the phrase "process leading to the removal". This is what Kenyans decided. That they don't care if there are violations or not - the process must be insulated from the courts. And what the board decided is final. Kaput. In effect, what the court has done in this Gacheche ruling was to question the wisdom of the creators of the katiba! Yet the court itself is a creation of the creators of the katiba! Whether the creators are right or wrong is not the matter - what they said is final. It can only be undone via a constitutional amendment - not by a court, which is established by the katiba, overthrowing what the same katiba says.
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Post by kamalet on Nov 1, 2012 14:03:23 GMT 3
Tactician
I think you are looking at the ouster clause in exclusion of many other things. For instance does that clause allow the board to do things that are illegal or that exceed their mandate in their performance of their duties? For instance can they board order a sacking and restitution of losses to litigants merely because its decisions cannot be questioned and notwithstanding that the law they operate under provides for such a penalty?
Would such an illegal action require the intevention of the high court? You may call it stretching my imagination, but just like the Moi/Kibaki situation look at it that way!
Can the judges declare sections of the Vetting Act unconstitutional by it being inconsistent with the constitution?
Here is what the judges said to give them the power to hear the petitions:
However, in spite of the above gallant effort to insulate the vetting process from the operation of constitutional provisions that the drafters of the Constitution felt would mar the admittedly time-bound and fairly transitional vetting process, we observe with a keen eye that the drafters did not deem it fit to exclude the operation of Article 165 of the Constitution to the vetting process. In the event, and whether by design or sheer inadvertence on the part of the drafters, Article 165 of the Constitution was left unscathed by the ouster clause constituted in Section 23 of the Sixth Schedule to the Constitution. Ipso facto, therefore, we find that the High Court has jurisdiction to exercise any of the constitutional mandate conferred by the people of Kenya under Article 165 even in the face of Section 23 of the Sixth Schedule.
is any of these helpful?
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Post by mwalimumkuu on Nov 1, 2012 14:25:03 GMT 3
On this one, the judges have used the back door to plant themselves in the vetting control room. Kenyans should tell them NO. One cannot be a player and a referee in the same game.
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Post by tactician on Nov 1, 2012 14:32:14 GMT 3
Tactician I think you are looking at the ouster clause in exclusion of many other things. For instance does that clause allow the board to do things that are illegal or that exceed their mandate in their performance of their duties? For instance can they board order a sacking and restitution of losses to litigants merely because its decisions cannot be questioned and notwithstanding that the law they operate under provides for such a penalty? Would such an illegal action require the intevention of the high court? You may call it stretching my imagination, but just like the Moi/Kibaki situation look at it that way! Can the judges declare sections of the Vetting Act unconstitutional by it being inconsistent with the constitution? Here is what the judges said to give them the power to hear the petitions: However, in spite of the above gallant effort to insulate the vetting process from the operation of constitutional provisions that the drafters of the Constitution felt would mar the admittedly time-bound and fairly transitional vetting process, we observe with a keen eye that the drafters did not deem it fit to exclude the operation of Article 165 of the Constitution to the vetting process. In the event, and whether by design or sheer inadvertence on the part of the drafters, Article 165 of the Constitution was left unscathed by the ouster clause constituted in Section 23 of the Sixth Schedule to the Constitution. Ipso facto, therefore, we find that the High Court has jurisdiction to exercise any of the constitutional mandate conferred by the people of Kenya under Article 165 even in the face of Section 23 of the Sixth Schedule.is any of these helpful? This is why i said that the judges were reading the katiba dryly & technically. They read it as if it is a katiba that had was adopted wholse from a neighbouring country and which had no history. Why did Kenyans insist on vetting of existing judges? Why did they insist on placing a Supreme Court above the previously final Court of Appeal? Can the same branch of government stand in judgement against itself? This is exactly what the judges have done - they have converted the judiciary to sit in court against itself. What justice is this? This is precisely why the vetting board was to be insulated against the courts. Otherwise, we might as well ask the executive to impeach the president and members of his cabinet. They judges read the katiba in isolation of how the katiba came to be - and the rationale for why it was drafted the way it was. What we now have is lions sitting in judgement against lions. It doesn't matter how well thought out the judges rule, the perception that justice has not been done will remain & stink forever.
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Post by kamalet on Nov 1, 2012 14:41:25 GMT 3
Tactician
you are still misreading the judges!
In our view therefore, we see it our duty to carve out a delicate balance that will ensure that the exercise of the court’s jurisdiction does not undermine the substratum of the vetting process or whittle down the clear intention of the ouster clause of shielding the mandate of the Vetting Board from judicial intrusion. In furtherance of this balance, we will ensure that the court only intervenes to the extent permissible by law and by the dictates of justice. That balance will have been created if this court is able to ensure that the Vetting Board shall retain its place as the constitutionally mandated body to authoritatively, impartially and independently adjudicate upon matters relating to the removal or the process leading to the removal of judges as contemplated by Section 23(2) of the Sixth Schedule of the Constitution, with the only caveat that no aspect of the exercise of its function shall drift beyond the four corners of the mandate.
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Post by tactician on Nov 1, 2012 15:12:57 GMT 3
Tactician you are still misreading the judges! In our view therefore, we see it our duty to carve out a delicate balance that will ensure that the exercise of the court’s jurisdiction does not undermine the substratum of the vetting process or whittle down the clear intention of the ouster clause of shielding the mandate of the Vetting Board from judicial intrusion. In furtherance of this balance, we will ensure that the court only intervenes to the extent permissible by law and by the dictates of justice. That balance will have been created if this court is able to ensure that the Vetting Board shall retain its place as the constitutionally mandated body to authoritatively, impartially and independently adjudicate upon matters relating to the removal or the process leading to the removal of judges as contemplated by Section 23(2) of the Sixth Schedule of the Constitution, with the only caveat that no aspect of the exercise of its function shall drift beyond the four corners of the mandate.And where did the court derive the powers to define those 4 corners? Let me show how the absurd consequences of this ruling: To be eligible to be an MP, the katiba says that one must be over 18yrs. But in another part of the katiba, it says that every person is equal before the law & is free from discrimination. Going by this Gacheche ruling, a minor can argue that the IEBC, which is the one in charge of registering voters, has trampled on his rights by refusing him to register as a voter - yet the katiba expressly bars discrimination based on age. Going by this ruling, the court would rule that the since there is the possibility of violation of rights and age-based discrimination, the minor should be registered and allowed to stand until the issue is determined.
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Post by OtishOtish on Nov 1, 2012 15:54:39 GMT 3
Tactician I think you are looking at the ouster clause in exclusion of many other things. For instance does that clause allow the board to do things that are illegal or that exceed their mandate in their performance of their duties? For instance can they board order a sacking and restitution of losses to litigants merely because its decisions cannot be questioned and notwithstanding that the law they operate under provides for such a penalty? Would such an illegal action require the intevention of the high court? You may call it stretching my imagination, but just like the Moi/Kibaki situation look at it that way! Can the judges declare sections of the Vetting Act unconstitutional by it being inconsistent with the constitution? Here is what the judges said to give them the power to hear the petitions: However, in spite of the above gallant effort to insulate the vetting process from the operation of constitutional provisions that the drafters of the Constitution felt would mar the admittedly time-bound and fairly transitional vetting process, we observe with a keen eye that the drafters did not deem it fit to exclude the operation of Article 165 of the Constitution to the vetting process. In the event, and whether by design or sheer inadvertence on the part of the drafters, Article 165 of the Constitution was left unscathed by the ouster clause constituted in Section 23 of the Sixth Schedule to the Constitution. Ipso facto, therefore, we find that the High Court has jurisdiction to exercise any of the constitutional mandate conferred by the people of Kenya under Article 165 even in the face of Section 23 of the Sixth Schedule.is any of these helpful? Kamalet: Would you care to coment on what I posted earlier on how the judges inserted themselves into the matter. A couple of points: One, saying that Article 165 was not explicity mentioned and so ... amounts to saying that any any Article X that was not explicitly mentioned ... Two, it is not necessary that Article 165 be explicitly mentioned. Article 165 deals with the High Court and 23(2) states that no court will interefere with the vetting board. Which part of "no court" excludes the High Court?
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Post by OtishOtish on Nov 1, 2012 15:57:14 GMT 3
On this one, the judges have used the back door to plant themselves in the vetting control room. Kenyans should tell them NO. One cannot be a player and a referee in the same game. We all know exactly what the Vetting Board was supposed to do and how it was supposed to do it. So do the judges. We all know the exact intent of 23(2), which is written in quite clear and simple language. So do the judges. No amount of cleverness will fool people.
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Post by tactician on Nov 1, 2012 15:59:15 GMT 3
Tactician I think you are looking at the ouster clause in exclusion of many other things. For instance does that clause allow the board to do things that are illegal or that exceed their mandate in their performance of their duties? For instance can they board order a sacking and restitution of losses to litigants merely because its decisions cannot be questioned and notwithstanding that the law they operate under provides for such a penalty? Would such an illegal action require the intevention of the high court? You may call it stretching my imagination, but just like the Moi/Kibaki situation look at it that way! Can the judges declare sections of the Vetting Act unconstitutional by it being inconsistent with the constitution? Here is what the judges said to give them the power to hear the petitions: However, in spite of the above gallant effort to insulate the vetting process from the operation of constitutional provisions that the drafters of the Constitution felt would mar the admittedly time-bound and fairly transitional vetting process, we observe with a keen eye that the drafters did not deem it fit to exclude the operation of Article 165 of the Constitution to the vetting process. In the event, and whether by design or sheer inadvertence on the part of the drafters, Article 165 of the Constitution was left unscathed by the ouster clause constituted in Section 23 of the Sixth Schedule to the Constitution. Ipso facto, therefore, we find that the High Court has jurisdiction to exercise any of the constitutional mandate conferred by the people of Kenya under Article 165 even in the face of Section 23 of the Sixth Schedule.is any of these helpful? Kamalet: Would you care to coment on what I posted earlier on how the judges inserted themselves into the matter. A couple of points: One, saying that Article 165 was not explicity mentioned and so ... amounts to saying that any any Article X that was not explicitly mentioned ... Two, it is not necessary that Article 165 be explicitly mentioned. Article 165 deals with the High Court and 23(2) states that no court will interefere with the vetting board. Which part of "no court" excludes the High Court? The first point above by otish is what i was explaining albeit by way of an example. If a certain section of the katiba must mention others for it to take effect, then the katiba would be full of contradictions - as in the example of minors seeking elective office.
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Post by kamalet on Nov 1, 2012 16:03:18 GMT 3
Tactician
I think we are at a point where we may not agree with the judgement but nevertheless have to respect it!
I am certain we shall have a similar debate when the rulings on chapter six come about as to whether the rules apply to elective of appointive offices when all of them at state and public officers.
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Post by tactician on Nov 1, 2012 16:04:06 GMT 3
kamalet,
you also asked what if the vetting board decides whatever it wants?
Fortunately or unfortunately, all litigation must come to an end at some point - and when we reach that point, we must accept the outcome, tupende tusipende.
In the judicial process, the katiba allows one to appeal all the way to the supreme court. If this court makes a mistake, we must live by it. Or otherwise institute political reforms by amending the katiba/law to ensure that mistakes do not happen.
In the same way, kenyans decided that the vetting board is the final arbiter in the process. Whatever mistakes we make, we live with them.
If we dont like them, we amend the katiba.
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Post by OtishOtish on Nov 1, 2012 16:07:12 GMT 3
kamalet, you also asked what if the vetting board decides whatever it wants? Fortunately or unfortunately, all litigation must come to an end at some point - and when we reach that point, we must accept the outcome, tupende tusipende. In the judicial process, the katiba allows one to appeal all the way to the supreme court. If this court makes a mistake, we must live by it. Or otherwise institute political reforms by amending the katiba/law to ensure that mistakes do not happen. In the same way, kenyans decided that the vetting board is the final arbiter in the process. Whatever mistakes we make, we live with them. If we dont like them, we amend the katiba. Well stated.
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Post by kamalet on Nov 1, 2012 16:10:55 GMT 3
kamalet, you also asked what if the vetting board decides whatever it wants? Fortunately or unfortunately, all litigation must come to an end at some point - and when we reach that point, we must accept the outcome, tupende tusipende. In the judicial process, the katiba allows one to appeal all the way to the supreme court. If this court makes a mistake, we must live by it. Or otherwise institute political reforms by amending the katiba/law to ensure that mistakes do not happen. In the same way, kenyans decided that the vetting board is the final arbiter in the process. Whatever mistakes we make, we live with them. If we dont like them, we amend the katiba. And then I had said: Tactician I think we are at a point where we may not agree with the judgement but nevertheless have to respect it! I am certain we shall have a similar debate when the rulings on chapter six come about as to whether the rules apply to elective of appointive offices when all of them at state and public officers.
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Post by tactician on Nov 1, 2012 16:11:13 GMT 3
Tactician I think we are at a point where we may not agree with the judgement but nevertheless have to respect it! I am certain we shall have a similar debate when the rulings on chapter six come about as to whether the rules apply to elective of appointive offices when all of them at state and public officers. This is heading to Supreme Court. No going back here. On chapter 6, the law is very clear. I don't even see why the need to discuss it. But if we must, you do not become a state officer before you are elected. Thus no one can be denied from running from office on the basis that if he wins, he will violate values of the katiba that require that state officers must exhibit x or y. The candidate must first win and get sworn in before he becomes a state officer. And even if he wins, how do we know that the circumstances that presently suggest he doesn't demonstrate violation of national values before he runs will not have been extinguished by the time he is sworn in? And if such circumstances are still prevailing after being sworn in, there are channels of removing him. All this is placing the cart before the horse.
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Post by kamalet on Nov 1, 2012 16:14:58 GMT 3
Tactician I think we are at a point where we may not agree with the judgement but nevertheless have to respect it! I am certain we shall have a similar debate when the rulings on chapter six come about as to whether the rules apply to elective of appointive offices when all of them at state and public officers. This is heading to Supreme Court. No going back here. On chapter 6, the law is very clear. I don't even see why the need to discuss it. But if we must, you do not become a state officer before you are elected. Thus no one can be denied from running from office on the basis that if he wins, he will violate values of the katiba that require that state officers must exhibit x or y. The candidate must first win and get sworn in before he becomes a state officer. And even if he wins, how do we know that the circumstances that presently suggest he doesn't demonstrate violation of national values before he runs will not have been extinguished by the time he is sworn in? And if such circumstances are still prevailing after being sworn in, there are channels of removing him. All this is placing the cart before the horse. I am actually happy if the guys appeal as it creates the necessary jurisprudence Kenya needs to build. I am not sure Rao's idea of going direct to the SC is sensible. As for not being stopped from becoming a state officer, how about then looking at the Matemu ruling!
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Post by tactician on Nov 1, 2012 16:22:38 GMT 3
This is heading to Supreme Court. No going back here. On chapter 6, the law is very clear. I don't even see why the need to discuss it. But if we must, you do not become a state officer before you are elected. Thus no one can be denied from running from office on the basis that if he wins, he will violate values of the katiba that require that state officers must exhibit x or y. The candidate must first win and get sworn in before he becomes a state officer. And even if he wins, how do we know that the circumstances that presently suggest he doesn't demonstrate violation of national values before he runs will not have been extinguished by the time he is sworn in? And if such circumstances are still prevailing after being sworn in, there are channels of removing him. All this is placing the cart before the horse. I am actually happy if the guys appeal as it creates the necessary jurisprudence Kenya needs to build. I am not sure Rao's idea of going direct to the SC is sensible. As for not being stopped from becoming a state officer, how about then looking at the Matemu ruling! Matemu was very clear - there were unresolved questions about his integrity which the appointing officers did not even consider. "...we find that the appointing authorities did not sufficiently take into consideration the institutional integrity of the Commission or its ability to function effectively with the Interested Party at its helm when they made or approved the appointment".
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Post by tactician on Nov 1, 2012 16:23:32 GMT 3
kamalet, you also asked what if the vetting board decides whatever it wants? Fortunately or unfortunately, all litigation must come to an end at some point - and when we reach that point, we must accept the outcome, tupende tusipende. In the judicial process, the katiba allows one to appeal all the way to the supreme court. If this court makes a mistake, we must live by it. Or otherwise institute political reforms by amending the katiba/law to ensure that mistakes do not happen. In the same way, kenyans decided that the vetting board is the final arbiter in the process. Whatever mistakes we make, we live with them. If we dont like them, we amend the katiba. And then I had said: Tactician I think we are at a point where we may not agree with the judgement but nevertheless have to respect it! I am certain we shall have a similar debate when the rulings on chapter six come about as to whether the rules apply to elective of appointive offices when all of them at state and public officers. About elective offices - the law is as clear as day and night!
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Post by OtishOtish on Nov 1, 2012 17:08:32 GMT 3
I am not sure Rao's idea of going direct to the SC is sensible. I think it would be "nice" if they first went to the Court of Appeal. But this matter is urgent, of great importance, and needs to be settled once and for all. In terms of law, Article 163(3)(b)(ii) says that they can go directly to the Supreme Court.
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