Post by 50cents on Mar 30, 2007 22:25:28 GMT 3
www.timesnews.co.ke/31mar07/nwsstory/topstry.html
Govt suffers blow
www.timesnews.co.ke/31mar07/images/todays/p1.jpg
EA COURT OF JUSTICE REJECTS KENYA’S LIST OF MPs
By KIPNGENO RUTO & JOHN OSORO
The Government yesterday suffered a major blow when the East African Court of Justice rejected the names of its nominees to the East African Legislative Assembly.
Essentially, the nomination of Clarkson Otieno Karan, Safina Kwekwe Sungu, Gervase Akhaabi, Christopher Nakuleu, Sarah Godana, Abdi Rahman Haji, Reuben Oyondi, Catherine Ngima Kimura and Augustine Chemonges Lotodo as MPs to East African Legislative Assembly (EALA) stands nullified.
It also means that members of the East African Community (EAC) would have to wait longer before they have a legislative assembly while Kenyans would have to go back to the drawing board, formulate nomination rules to pick new members.
The court, comprising judges Justices Moijo ole Keiwua (president), Joseph Mulenga (vice-president, Uganda), Kasanga Mulwa (Kenya), Augustino Ramadhani and Joseph Sinde Warioba (Tanzania), Stella Arach Amoko (Uganda) upheld that the government had arbitrarily violated the rules and procedures governing the selection of the nominees to the Assembly.
Immediately after the ruling, state counsel Muthoni Kihara assured the court that the government would abide by putting in place all the recommended legislative mechanisms.
And lawyer Mutula Kilonzo, described as humbling and a protection of democracy and rule of law in the East Africa.
“It is one thing for a lawyer to identify an anomaly and start pursuing it, and another for judges to concur with him. I am humbled by this ruling,” an elated Kilonzo told Kenya Times by telephone.
The court upheld that the rules governing election of Kenya’s representatives to the EALA were in violation of the provisions of the Treaty Establishing the East African Community.
Even if the government of Kenya were to appeal the decision in the yet to be constituted appellate division of the East African Court of Justice, it would have to wait until July when Rwanda and Burundi become fully-pledged members of the Community.
In a unanimous decision by five judges drawn from Kenya, Uganda and Tanzania, the judges rejected the government’s argument that each partner state was at liberty to decide on the mode of electing its representatives to the regional assembly.
The judges ruled that Kenya’s parliament had left the role of electing its representatives to EALA to the House Business Committee, contrary to the treaty governing the establishment of the community.
Dismissing the government’s contention over the nomination exercise, the court ordered the Kenya to formulate rules and regulations for the election of MPs to the regional parliament.
The court urged the member states to be committed to the success of the community treaty adding that they should be ready to surrender their sovereignty on certain matters.
The Kenya government was further ordered to pay costs of the suit to the petitioners.
Political parties filed a suit in the East African court of Justice based in Arusha to stop the convening of the East African Legislative Assembly and the swearing-in of Kenya’s nominees to the assembly until their complaint was resolved.
The court was delivering judgment in a reference filed by Professor Peter Anyang Nyong’o and 10 others.
In the reference filed in October, 2006, Nyon’go, LDP, NPK, DP, Yvonne Khamati, Dr. Paul Saoke, Ochieng Mbeo and others had named the Attorney-General of Kenya, Amos Wako and the East African Community Secretariat.
Mutula Kilonzo, Otiende Amollo, Daniel Maazo, Tom Kajwang, Judith Sicheny and Eugene Wamalwa represented Nyong’o and 10 others.
The AG appeared for himself assisted by Wanjuki Muchemi, Muthoni Kimani and Anthony Ombwayo who were Solicitor-General, Deputy Solicitor-General and Principal State Counsel respectively. The court yesterday said the treaty envisages uniformity in rules governing election of representatives to the EALA in all member states.
Among the partner states, it is only Tanzania that has made rules that comply with the provisions of Article 50 of the Community Treaty.
The judges noted that it was not only Kenya that had not complied with the provisions of the treaty with respect to election of representatives to EALA. In a firm and strongly worded judgement, read out by the court’s vice-president Justice Joseph Mulenga of Uganda, the court stated that Kenya adopted a process that led to a “fictitious election” in violation of the treaty.
The parties, which included, Ford-Kenya, LDP, ODM-Kenya, Narc, Democratic Party, and NPK, commenced the proceedings and argued that the government had interfered with the nomination of the EALA members by presenting a parallel list containing different names from those picked by the parties.
According to the EALA nomination rules, the political parties were given slots depending on the party’s numerical strength to appoint members to be nominated to the assembly.
The names of the nominees were forwarded to a parliamentary committee which is chaired by the government Chief Whip for ratification before the same were forwarded to the Arusha-based assembly.
The applicants who included the members whose names had been removed and replaced by those picked by the government side.
Represented by a battery of lawyers led by Mutula Kilonzo the petitioners argued that the list presented by the Kenya government did not reflect the names of the nominees that were not those forwarded by their respective parties.
Consequently, the East African Court of Justice on November 27, 2006 issued orders restraining the Clerk of the EALA and the Secretary-General of the of the Assembly prohibiting them from convening or recognising or administering oath on Kenya’s nominees.
In the ruling the court declared the process of selection of the nominees by the Kenya government as null and void.
The nominees whose names were replaced by the government included Fidelis Nguli (NPK), Dr. Paul Saoke, Ochieng Mbeo (LDP), Yvonne Khamati (Ford-K), and Rose Waruhiu of DP.
After losing in the first round, the government immediately filed an application seeking disqualification of Kenyan judges on the bench from hearing the case on the grounds that they were facing allegations of corruption in Kenya.
The Kenya government through the Attorney-General, and the Solicitor-General argued that Justice Moijo ole Keiwua who is the Courts’ president had not been cleared of corruption allegations by a tribunal appointed by the President and was therefore not qualified to preside over the high profile case.
The court, however, dismissed the application to disqualify Justice Keiwua.
During the pendency of the main motion, Attorneys-General of the three East African states embarked on a series of meetings tailored to mend various sections of the articles of the treaty establishing the East African Community.
The amendments targeted the establishment of the appellate court within the East African Court of Justice among other things.
But the petitioners again filed a suit in the High Court in Nairobi seeking orders to prohibit the AG from purporting to publish any amendments to the treaty on the grounds that it was meant to defeat the petition that was pending in Arusha.
Justice Nyamu, who heads the Constitutional and Judicial Review Division of the High Court dismissed the application saying the court had no jurisdiction to ventilate matters touching on the East African Community.
Justice Nyamu said the court was unequipped with instruments to deal with matters relating to the East African partner states.
Govt suffers blow
www.timesnews.co.ke/31mar07/images/todays/p1.jpg
EA COURT OF JUSTICE REJECTS KENYA’S LIST OF MPs
By KIPNGENO RUTO & JOHN OSORO
The Government yesterday suffered a major blow when the East African Court of Justice rejected the names of its nominees to the East African Legislative Assembly.
Essentially, the nomination of Clarkson Otieno Karan, Safina Kwekwe Sungu, Gervase Akhaabi, Christopher Nakuleu, Sarah Godana, Abdi Rahman Haji, Reuben Oyondi, Catherine Ngima Kimura and Augustine Chemonges Lotodo as MPs to East African Legislative Assembly (EALA) stands nullified.
It also means that members of the East African Community (EAC) would have to wait longer before they have a legislative assembly while Kenyans would have to go back to the drawing board, formulate nomination rules to pick new members.
The court, comprising judges Justices Moijo ole Keiwua (president), Joseph Mulenga (vice-president, Uganda), Kasanga Mulwa (Kenya), Augustino Ramadhani and Joseph Sinde Warioba (Tanzania), Stella Arach Amoko (Uganda) upheld that the government had arbitrarily violated the rules and procedures governing the selection of the nominees to the Assembly.
Immediately after the ruling, state counsel Muthoni Kihara assured the court that the government would abide by putting in place all the recommended legislative mechanisms.
And lawyer Mutula Kilonzo, described as humbling and a protection of democracy and rule of law in the East Africa.
“It is one thing for a lawyer to identify an anomaly and start pursuing it, and another for judges to concur with him. I am humbled by this ruling,” an elated Kilonzo told Kenya Times by telephone.
The court upheld that the rules governing election of Kenya’s representatives to the EALA were in violation of the provisions of the Treaty Establishing the East African Community.
Even if the government of Kenya were to appeal the decision in the yet to be constituted appellate division of the East African Court of Justice, it would have to wait until July when Rwanda and Burundi become fully-pledged members of the Community.
In a unanimous decision by five judges drawn from Kenya, Uganda and Tanzania, the judges rejected the government’s argument that each partner state was at liberty to decide on the mode of electing its representatives to the regional assembly.
The judges ruled that Kenya’s parliament had left the role of electing its representatives to EALA to the House Business Committee, contrary to the treaty governing the establishment of the community.
Dismissing the government’s contention over the nomination exercise, the court ordered the Kenya to formulate rules and regulations for the election of MPs to the regional parliament.
The court urged the member states to be committed to the success of the community treaty adding that they should be ready to surrender their sovereignty on certain matters.
The Kenya government was further ordered to pay costs of the suit to the petitioners.
Political parties filed a suit in the East African court of Justice based in Arusha to stop the convening of the East African Legislative Assembly and the swearing-in of Kenya’s nominees to the assembly until their complaint was resolved.
The court was delivering judgment in a reference filed by Professor Peter Anyang Nyong’o and 10 others.
In the reference filed in October, 2006, Nyon’go, LDP, NPK, DP, Yvonne Khamati, Dr. Paul Saoke, Ochieng Mbeo and others had named the Attorney-General of Kenya, Amos Wako and the East African Community Secretariat.
Mutula Kilonzo, Otiende Amollo, Daniel Maazo, Tom Kajwang, Judith Sicheny and Eugene Wamalwa represented Nyong’o and 10 others.
The AG appeared for himself assisted by Wanjuki Muchemi, Muthoni Kimani and Anthony Ombwayo who were Solicitor-General, Deputy Solicitor-General and Principal State Counsel respectively. The court yesterday said the treaty envisages uniformity in rules governing election of representatives to the EALA in all member states.
Among the partner states, it is only Tanzania that has made rules that comply with the provisions of Article 50 of the Community Treaty.
The judges noted that it was not only Kenya that had not complied with the provisions of the treaty with respect to election of representatives to EALA. In a firm and strongly worded judgement, read out by the court’s vice-president Justice Joseph Mulenga of Uganda, the court stated that Kenya adopted a process that led to a “fictitious election” in violation of the treaty.
The parties, which included, Ford-Kenya, LDP, ODM-Kenya, Narc, Democratic Party, and NPK, commenced the proceedings and argued that the government had interfered with the nomination of the EALA members by presenting a parallel list containing different names from those picked by the parties.
According to the EALA nomination rules, the political parties were given slots depending on the party’s numerical strength to appoint members to be nominated to the assembly.
The names of the nominees were forwarded to a parliamentary committee which is chaired by the government Chief Whip for ratification before the same were forwarded to the Arusha-based assembly.
The applicants who included the members whose names had been removed and replaced by those picked by the government side.
Represented by a battery of lawyers led by Mutula Kilonzo the petitioners argued that the list presented by the Kenya government did not reflect the names of the nominees that were not those forwarded by their respective parties.
Consequently, the East African Court of Justice on November 27, 2006 issued orders restraining the Clerk of the EALA and the Secretary-General of the of the Assembly prohibiting them from convening or recognising or administering oath on Kenya’s nominees.
In the ruling the court declared the process of selection of the nominees by the Kenya government as null and void.
The nominees whose names were replaced by the government included Fidelis Nguli (NPK), Dr. Paul Saoke, Ochieng Mbeo (LDP), Yvonne Khamati (Ford-K), and Rose Waruhiu of DP.
After losing in the first round, the government immediately filed an application seeking disqualification of Kenyan judges on the bench from hearing the case on the grounds that they were facing allegations of corruption in Kenya.
The Kenya government through the Attorney-General, and the Solicitor-General argued that Justice Moijo ole Keiwua who is the Courts’ president had not been cleared of corruption allegations by a tribunal appointed by the President and was therefore not qualified to preside over the high profile case.
The court, however, dismissed the application to disqualify Justice Keiwua.
During the pendency of the main motion, Attorneys-General of the three East African states embarked on a series of meetings tailored to mend various sections of the articles of the treaty establishing the East African Community.
The amendments targeted the establishment of the appellate court within the East African Court of Justice among other things.
But the petitioners again filed a suit in the High Court in Nairobi seeking orders to prohibit the AG from purporting to publish any amendments to the treaty on the grounds that it was meant to defeat the petition that was pending in Arusha.
Justice Nyamu, who heads the Constitutional and Judicial Review Division of the High Court dismissed the application saying the court had no jurisdiction to ventilate matters touching on the East African Community.
Justice Nyamu said the court was unequipped with instruments to deal with matters relating to the East African partner states.
