Eala Ruling Trashes Kibaki

[adongo12345]

By Adongo Ogony

"We won the referendum on behalf of the people. We have won the debate on essential reforms on behalf of the people, we have won the Arusha case on behalf of the people and we shall win the General Election on behalf of the people,"

Those are the words of Prof. Ayang' Yong'o after the government's appeal collapsed at the East African Court of Justice in Arusha On March 30, 2007.

I don't know where President Mwai Kibaki was when this ruling was made. I suspect he was in some luxurious hotel in Riyadh where he was attending the Arab Conference. Was he taking a nap? May be. Was he in the shower? Who knows.



The one thing I know is this; as soon as his aides would talk to him on March 30, 2007, they told the president the Arusha case is lost. Why is this important to the president?

For beginners, it is embarrassing for Kenya to be singled out as having engaged in "fictitious elections" for Eala seats allocated to our country in this important regional assembly. I have said it before, that our current system of nominating Eala reps, sucks, to borrow the words of my nine year old son.

But then the drama goes beyond that. You see sometimes last year Kenya together with the other countries had to nominate a new round of reps to the EALA.

In Kenya, the parties went through their little consultation circles and party leaders nominated their friends, relatives and party hawks who couldn't possibly win a seat in a public office. This is what they have done before and it was fine. The Eala nomination is a travesty already as it is, but the Kibaki team decided to take it to a whole new level of just outright illegality.

After all the political parties with representation in parliament had submitted the names of their reps, the government hawks and those who fit the in the State House weekly diary ,decided they had better plans.

The House Business Committee which from the previous deals between parliamentary parties, was supposed to just submit the names to parliament, decided to change the names.

President Kibaki concurred with them. A purge was carried out to remove the following party nominees; Dr. Paul Soike (NPK), Ochieng' Mbeo (LDP), Yvonne Khamati (FORD-K), Rose Waruhui (DP).

The big deal here really was that, Kibaki's people wanted to kick out Mr. Ochieng' Mbeo the lone LDP nominee and replace him with Clarkson Otieno Karan. This was merely to teach Raila a lesson, never to mess up with the big shots. Just a simple vendetta and look what it has cost the country and the region. For what?

As we all know the matter went to court when a group ( comprised of mainstream political parties) opposed to the violation of laid out rules of nomination took the matter to the East African Court of Justice and succeeded in securing a legal notice barring the swearing in of the Kenyan contingent.

Needless to add this development paralyzed the operations of the Eala altogether. That is bad enough and one would have thought the Kibaki government would have learnt a few lessons, retreated a little, talked to the opposition and solved the problem. Tough luck if you think like that. These guys are tough. I mean the Kibaki guys. Real tough boys and girls if you get my drift.

Negotiate? Comeon, tough folks don't do that. So what to they (the government) do, with your money? They go on the offensive. I mean offensive to Kenyans.

They hired lawyers from the private sector to complement our own legendary AG Amos Wako and a whole battery of expert legal minds in the AG's Office and the DPP. No, Amos Wako and crew were not enough.

They brought in Gibson Kamau Kuria. Remember him. He of the Goldenberg infamy. Yes that one. And Ndugu Githu Muigai, a nice man, he was my buddy at UON. We are told these two fine legal minds took in something close to Kshs 40 million to help the government in misleading itself in a matter that a second years law student would know, the government had no feet to stand on. And according to the ruling, Kenyans taxpayer must pay costs to the other side. Let's hope kina Orengo and Kihoro and co , the fine patriots that they are, will cut as some slack.

After losing in the first round when Kenyan nominees were barred from joining the rest of the the team, Kibaki and his team introduced a new provision in the East African treaty to make it easier for members to remove from the regional court those who were under investigations in their own countries. This is a unique demand of course, because it was only in Kenya at this time that several judges were facing tribunals, thanks to the Justice Ringera' "radical surgery" in the Kenyan judiciary.

The comical part of it all is that it just so happens the Justice Moijo ole Keiwua, the President of the East African Court of Justice who delivered the ruling to bar Kibaki's nominees was under investigation on orders from Justice Ringera. The government of President Kibaki immediately made moves to introduce mechanisms to remove Justice Keiwua from the East African Court of Justice. The whole saga of the Kibaki government war plans against Justice ole Keiwua may be a huge chapter in Kenyan history and the legacy of president Mwai Kibaki and his legal advisers.

As we stand now, the Eala is completely paralyzed. They can't hold sessions without the Kenyan contingent. A Mr. Kamani representing the demoralized Kenyan government team told the court, the government will respond to the requirements of the ruling, which include among others, the need to set up new nominations guidelines and abide by them.

Apart from the fact that we are messing up the operations of one of the most important institutions (Eala) to spur the emergence of an East African Power house with five countries in one of the richest part of the world (resource wise), we also don't know what steps next.

Is Kibaki going to accept the ruling, swallow his pride and invite the opposition to find a way forward? We don't know.

The sad part about this big bad flop for Kibaki is that it was completely unnecessary. This was a purely machismo battle by Kibaki's insiders to kick the LDP butt and show them who is boss. That is all this whole nonsense is about. Isn't that sad.

Look at it this way, there is no strategic significance for Kibaki and his team as to which of the two lists goes to the Eala and yet they threw in the kitchen sink to fight for something that adds no political ugali to their plate. And what is worse, they lost. Miserably.

What then should we do?

We need the Eala to start functioning ASAP. It seems obvious that regional bodies like the EU, COMESA and our own EAC are the engines to mobilize communities to greater heights of economic prosperity in the next century. We cannot afford a stillborn Eala, because Kibaki and his people have personal vendetta with some some sections of the political mainstay of the nation. Let's make the rules and follow them. That should apply to everybody including the government of President Mwai Kibaki.

People who specialize in giving Kibaki faulty advice need to take a one year sabbatical leave, to enable the rest of the country to set things right in this first election year since we toppled the Moi-Kanu regime. Steadman pollsters can stay. They have an exemption clause.

My suggestion is that the president should hold immediate consultations with oppositions parties, resolve this problems and immediately forward a new and acceptable list of Eala nominees.

The other reality is that the president has been taking bad advise from people who are not probably as accountable to the Kenyan people as he is. We don't care who the president choses to get advice from. But surely as Ayang' Nyong'o says three strikes usually means you are out, ama?

The writer is a human rights activist.

[50cents]

You forgot to mention what this has stupidity has cost the taxpayer in terms resources, money and of course the current government. Now, on the current government - Is it a narc government or GNU? If it is the latter, who endorsed it.

This guys have raped the "Kenyan Unwriten Law" mercilessly and all for what? Teaching Raila a lesson? The jury are still out there and only time keeps on proving wrong all the time("We won the referendum on behalf of the people. We have won the debate on essential reforms on behalf of the people, we have won the Arusha case on behalf of the people and we shall win the General Election on behalf of the people,"
Those are the words of Prof. Ayang' Yong'o after the government's appeal collapsed at the East African Court of Justice in Arusha On March 30, 2007.)

[50cents]

nationmedia.com/dailynation/nmgcontententry.asp?category_id=39&newsid=95046

LAW REPORT: Kenya didn’t elect MPs to regional Assembly as per treaty, court rules


Publication Date: 4/2/2007



The National Assembly of Kenya did not undertake an election within the meaning of Article 50 of the Treaty for the Establishment of the East African Community. This is as per the East African Court of Justice in the case of: Hon Prof.Peter Anyang’ Nyong’o & 10 Others vs. Attorney General of Kenya & 2 Others and Abdirahin Haitha Abdi & 10 Others (interveners), East African Court of Justice at Arusha, Reference No 1 of 2006 (M. Ole Keiuwa P, J.Mulenga VP, A.S.L. Ramadhani, Kasanga Mulwa & H.R.Nsekela JJ.), March 30,2007


This was a reference under Article 30 of the Treaty for the establishment of the East African Community (EAC Treaty), in which Hon Prof. Peter Anyang’ Nyong’o and others sought to invoke East African Court of Justice’ (EACJ) jurisdiction under Article 27 of the Treaty.

They contended that the process in which the 1st, 2nd and 3rd interveners were deemed to be elected as Kenya’s nine members of the East African Legislative Assembly (EALA), and the rules made by the Kenya National Assembly and invoked for effecting the said process infringed the provisions of Article 50 of the EAC Treaty.

They urged the EACJ court to among other things interpret and apply Article 50 of the EAC Treaty to the said process and rules and declare them to be void.

The Republics of Kenya, Uganda and Tanzania, are all mandated under Article 50 of the EAC Treaty to send nine members each to the EALA, which consists of 27 elected members and five ex officio members.

Kenya deliberated

Pursuant to this, the House Business Committee of the National Assembly of Kenya deliberated upon lists of names presented to it on October 25 and 26, 2006. In the list, Kanu presented three nominees, Ford People one while Narc presented two lists of five nominees each.

One of Narc’s lists was submitted by the leader of Narc while the other was presented by the Government Chief Whip Hon Norman Nyaga.

The Committee approved the lists presented by Kanu and Ford People, then after consideration of the two Narc lists and according to its minutes, “resolved to consider the list submitted by the Government Chief Whip for purposes of nomination...”, hence rejected the one by leader of NARC. That rejection led to the filing of this reference.

November 9, 2006, nearly three weeks before the 2nd Assembly was due to begin, the claimants filed the reference in EACJ court and further prayed for an interim injunction to prevent the said nine persons from taking office as members of the Assembly until determination of the reference.

The EACJ court heard application for injunction and granted the same.

Under the reference, the claimants contented that the whole process of nomination and election adopted by the National Assembly of Kenya was incurably and fatally flawed in substance, law and procedure and contravened Article 50 of the EAC Treaty, since no election was held nor debate allowed in Parliament on the matter.

The claimants further contended that any such rules that may have been invoked by the Kenya National Assembly, which did not allow election directly by citizens or residents of Kenya or their elected representatives were null and void for being contrary to the letter and spirit of the EAC Treaty.

The 1st respondents’ position was premised on the argument that the National Assembly, acting through its House Business Committee, in accordance with its Standing Orders and the election rules, went through the process of electing the nine members to the Assembly.

Process of election

He contended that the process of election neither infringed on the EAC Treaty nor was it unlawful.

All the respondents further contended that the reference disclosed no cause of action.

Out of these pleadings, the EACJ Court framed the following three broad issues – (A) Have the complainants disclosed any cause of action within the meaning of Article 30 of the Treaty? (B) Was an election undertaken within the meaning of Article 50 of the EAC Treaty? (C) Do the Kenya Election Rules, that is EAC Treaty (Election of Members of the Assembly) Rules 2001; comply with Article 50 of the Treaty?

While deliberating on the issues canvassed before it, the EACJ Court first looked at the issue of whether it had jurisdiction to hear and determine this matter.

The EACJ court made specific reference to Article 27(1) of EAC Treaty, which states “The Court shall initially have jurisdiction over the interpretation and application of this Treaty”. Basing itself on this Article, the EACJ court held that it had jurisdiction.

It went on to state that EAC Treaty, being an international treaty among three sovereign states, is subject to the international law on interpretation of treaties, the main one being The Vienna Convention on the Law of Treaties.

The EACJ court stated that the Articles of the Vienna Convention on the Law of Treaties that were of particular relevance to the reference before it are Article 26 that embodies the principle of pacta sunt servanda, Article 27 that prohibits a party to a treaty from invoking its internal law as justification for not observing or failing to perform the treaty and finally Article 31, which sets out the general rule of interpretation of treaties and which is express that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

Counsel for the claimants argued that in addition to seeking guidance from the Vienna Convention on the Law of Treaties in interpreting the Treaty, the EACJ Court should, in respect of Article 50 of the EAC Treaty, uniformly interpret and apply Treaty provisions in all the States party to the Treaty.

The claimants’ submission on the first issue was that the averments in the reference showed a cause of action within the meaning of Article 30 of the Treaty.

Court to interpret

They asked the EACJ Court to interpret Article 50 of EAC Treaty relative to the process and rules used by Kenyan National assembly and to determine if the process and the rules infringed the Article. They contended that this was a justifiable cause of action.

The 1st respondent on the other hand submitted that the claimants had not disclosed any cause of action under Article 30 of the EAC Treaty.

He contended that the claimants had no locus standi (The litigant must have sufficient interest in the subject matter upon which a court is to adjudicate). The Attorney General further contended that since Articles 34 and 52 of the EAC Treaty vested interpretation jurisdiction in the national courts also, the substance of the reference should have been dealt with by the High Court of Kenya.

He was express that if the EACJ Court ruled on the legality of the contentious election, it would be usurping the power of the High Court of Kenya.

On the claim by the 1st respondent of lack of locus standi and non disclosure of a cause of action by the claimants, the EACJ court held that Article 30 of the EAC Treaty conferred on any person resident in a Partner State the right to refer the specified matters to the EACJ court for adjudication. It therefore held that the claimants had a valid cause of action.

On the second issue regarding election, the claimants contended that no election within the meaning of Article 50 of the Treaty was undertaken.

They maintained that the expression “shall elect” as used in Article 50 could only mean, “shall choose by vote. The 1st respondent on the other hand contended that the words “election” and “elect” as used in Article 50 do not necessarily connote choosing or selecting by voting.

To resolve this issue, the EACJ court referred itself to the provisions of Article 50 of the EAC Treaty, which states that “The National Assembly of each Partner State shall elect, from among its members, nine members of the Assembly, who shall represent as much as is feasible, the various political parties represented in the National Assembly?”

The court further sought to know the interpretation of the words “election” and “elect” as used under Article 50. The court referred itself to Article 31 of the Vienna Convention on the Law of Treaties, which provides the general rule of treaty interpretation.

According to the said Article, the terms of the treaty should be given an “ordinary” meaning. On this, the EACJ court held that the ordinary meaning of the words “election” and “to elect” are “choice” and “to choose” respectively. It held that the National Assembly of Kenya did not undertake or carry out an election within the meaning of Article 50 of the Treaty.

Election rules

On the issue as to whether election rules constitute an infringement of Article 50, the EACJ court stated that the National assembly was bound to make rules that conform to the primary purpose of the Article that conferred the power, whose primary purpose is to provide for the election of nine members of the Assembly by the National Assembly of each Partner State.

It contended that this purpose is defeated by the provision of rule 7 of the election rules, which provides for a fictitious election in lieu of a real election.

On this issue, the EACJ court therefore found out that the election rules infringed on Article 50 to the extent of their inconsistency.

In the result, the EACJ court declared that the National Assembly of Kenya did not undertake an election within the meaning of Article 50 of the Treaty and ordered Kenyan National assembly to undertake fresh elections of its members to the EALA.

Reported by Timon Kosgei

[job]

Folks,

It is sometimes refreshing to appreciate the fact that some of our EA neighbours can't put up with the stupid mess of a government presided by the inept and polarising figure called Mwai Kibaki.

Common decency, the rule of law and civility appear to be domains in which Kenya is currently suffering unprecedented bad PR due to stewardship by people who keep chasing narrow self interests,.......folks who are obviously already power-drunk and dizzy from running everywhere planting "their own" in all seats and public offers.

These government crazy-heads have even extended such shameful acts out of Kenya's borders,...chasing public appointments for "their own" in neighboring countries. Even Opposition parties are having people being "nominated" on their behalf by the Norman Nyagas of this world. Arrogance, unbridled impunity, tribalism and favouritism have been taken to new heights, even being exported to other countries.

I hope one day these guys will reflect on their narrow and selfish activities in retrospect and judge for themselves what perceptions they impacted in the minds of the general citizenry who are literally watching such shameful acts in disbelief and total amazement.

Thanks we still have rational and law abiding citizens in neighboring countries of East Africa who have the integrity to say NO to Kibaki's nonsense. Kenya must respect the EALA treaty and stop this arrogance and dirty games being outsourced into neighboring countries.

East African unity will come if individual EA countries nurture unity in their respective turfs. If UNITY is an ideal anyone wishes for KENYA, then by now they may have already realized that many Kenyans yearning for unity certainly don't expect it facilitated by a man who has failed to unite his own family,........... failed to unite his own party(DP),............ failed to unite his own coalition(NARC), .........and needless to point,.......... failed to unite his country. This man seems to be using each institution as a stepping stone as he advances his selfish personal interests, and never fails to discard or disown each stone he has used,...........disowning his own wife and child when convenient,...........disowning his sponsoring party DP,..........disowning his NARC coalition and snubbing its Summit,.......disowing his own country's constitution,......and now attempting to disown the EALA treaty. He has met his waterloo yet again and has been told NO!

We must move on and also tell him NO this december 2007! Events from other EA countries are encouraging indeed!

Job

[adongo12345]

Folks

This is something else to chew on as we wait for Kibaki to respond to this ruling. Don't ask me how long the wait is going to be. I doubt Kibaki himself knows what to do next. Good for him.

www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=2&newsid=95125

Adongo

[job]

I think it would be a miracle if Kibaki would wake up one day to acknowledge his devious ways. His is a mission of consolidating power blindly. He will keep getting lessons from people with integrity. Enough is enough,......This man must go to Othaya come December!

Job

[adongo12345]

It just gets worse.



www.nationmedia.com/dailynation/nmgcontententry.asp?category_id=1&newsid=95252

[adongo12345]

At some point people are going to be held accountable

www.marsgroupkenya.org/users/?p=28

Adongo

[job]

Why should any competent government pay sh 72 million for five days legal "consultation"?

Either because (a) it is stuffed with inept, incompetent, unqualified dimwits in the offices of the Attorney General, Solicitor General & Director of Public Prosecutions (largely employed on grounds of tribalism, nepotism and cronyism) or (b) it is deliberately creating opportunities to plunder public coffers for direct benefit of politically connected cronies, or (c) both options above existing together.

Sh 72 million could comfortably pay one hundred public advocates (or state counsels) salaries for three whole years ; or pay one hundred magistrates (in an attempt to decongest pending cases) for a whole year.

This fellas must be held accountable one way or another.

Job