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Post by furaha on May 19, 2012 17:49:39 GMT 3
Leadership and integrity issues involve much more than criminal convictions By MAINA KIAI Posted Friday, May 18 2012 at 19:59
This is the standard that all public officers must meet. If it is fair and just for judicial officers then it is fair and just for civil servants, MPs and ministers.
There should be major scalps along the way. For how will Uhuru Kenyatta, Njeru Githae, Joseph Kinyua and mandarins at the Treasury explain their disdain for the Constitution in budgeting and borrowing matters?
How will they explain the Sh480 billion discrepancy in the revenue accounts for 2007/8, which was an election year? How will Anyang’ Nyong’o explain Clinix in this election year or Amos Kimunya, the KPA Board?
The Public Officer Ethics Act is a small Act and would-be public officers are advised to read and memorise it. For while it previously went un-implemented, with a new Constitution and a Judiciary determined to give it expression, times have changed.
They better change too or be caught up in the tsunami that is the new Kenya we demand.
This is the standard that all public officers must meet. If it is fair and just for judicial officers then it is fair and just for civil servants, MPs and ministers.
There should be major scalps along the way. For how will Uhuru Kenyatta, Njeru Githae, Joseph Kinyua and mandarins at the Treasury explain their disdain for the Constitution in budgeting and borrowing matters?
How will they explain the Sh480 billion discrepancy in the revenue accounts for 2007/8, which was an election year? How will Anyang’ Nyong’o explain Clinix in this election year or Amos Kimunya, the KPA Board?
The Public Officer Ethics Act is a small Act and would-be public officers are advised to read and memorise it. For while it previously went un-implemented, with a new Constitution and a Judiciary determined to give it expression, times have changed.
They better change too or be caught up in the tsunami that is the new Kenya we demand.
kiai2000@yahoo.com Thanks Kathure for posting this important read. It spells it all out... By now too many Kenyans have been made to believe that anything goes, even if you have been indicted for crimes against humanity. You want to run for public office, even for president? No problem, as long as you have not been convicted. A better informed public debate is urgently needed and this article probably is a good starting point. How to interpret chapter VI? How to interpret the Public Officers Ethics Act? While that will ultimately be up to the courts to decide, public opinion should be shaped by hearing other versions in addition to the 'anything goes unless you have been convicted' version that is now widely peddled and which most media choose to publish uncritically. It is a sad state of affairs when, by repeating one-sided interpretations often enough, these become widely accepted truths. Here is link to the full text of the article. www.nation.co.ke/oped/Opinion/-/440808/1408710/-/ls4truz/-/index.html
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Post by Deleted on May 28, 2012 16:50:25 GMT 3
Will merchants of impunity let Mutunga do his job?
By MAKAU MUTUA
Posted Saturday, May 26 2012 at 18:03
I am worried – very worried – about my mentor Chief Justice Willy Mutunga. Street “chatter” suggests that CJ Mutunga’s life could be in danger. As governments are wont to say, there’s no specific threat.
But – and this is huge – CJ Mutunga had better watch his back. That’s because he’s making some people really mad. Let me be very clear.
Unlike ODM Chief Whip Jakoyo Midiwo, I am not alleging an assassination plot. But – and this is common knowledge among the hoi polloi – Dr Mutunga has quickly become the “moral champion” of the poor.
He’s now the pivot for the new Constitution. He’s determined to clean up the State. That’s why he could be in mortal danger.
Ordinarily, the election year should be the “silly season”. But in Kenya, unlike in real democracies, the election cycle is a “deadly season”. Merchants of impunity are in a fierce battle for the control of state power, wealth and privilege.
They are intent on doing so by any means necessary. They have done so at every election. They even did so in 2002 when they “rebranded” themselves under Narc and hijacked the “revolution” against Kanu.
But this election year could be different. That’s because Dr Mutunga is a “game changer”. He has vowed to use Chapter Six of the Constitution – on Leadership and Integrity – to guillotine thieves, murderers, rapists and the craven. I can predict that very many prominent heads will roll.
There’s only one problem. Will the merchants of impunity let the CJ do his job? We don’t know the answer to that question. But we know this for sure – they’ll try to stop him by hook or crook. Until CJ Mutunga took over, the Judiciary had been the Executive’s concubine. While that’s changing, I would say we are a long way from a clean Judiciary. Many judges and magistrates still live with the Executive in a state of concubinage.
It’ll take several years to get rid of them and change judicial culture. The truth is that the Kenyan Judiciary is still a snake pit. Many judges will try to blunt CJ Mutunga’s reformist guillotine. Will he survive the backlash?
History isn’t on CJ Mutunga’s side. Truly reformist Kenyan leaders didn’t live to see the fruits of their labour. Take the Mau Mau leader Dedan Kimathi as your starting point.
Fast-forward to Kanu’s leftist ideologue Pio Gama Pinto. They killed him in 1965 to make Kanu a right-wing party.
In 1975, JM Kariuki, the “people’s millionaire”, was assassinated. Perceived enemies of the power nomenklatura have often been eliminated. It didn’t matter they were not even progressive.
Think of wunderkind Tom Mboya who was eliminated in 1969, or Foreign minister Robert Ouko who was “rubbed out” in 1990. There are many others – some progressive, others less so.
They had one thing in common – they “stood in the way”. There’s one chilling example CJ Mutunga would do well to remember. One could draw parallels.
Kenya’s first black Chief Justice, Kitili Mwendwa, was forced to resign in 1971 after being suspected of involvement in a plot to overthrow Mzee Jomo Kenyatta.
He died in a suspicious road accident in 1985. A strangely conducted government inquest came up empty. His death is shrouded in mystery up to this day. Foul play was suspected, but never proved.
It was not lost on observers that Mr Mwendwa had been permanent secretary to Vice-President Jaramogi Oginga Odinga with whom he – and his wife Nyiva Mwendwa – remained close.
Dr Mutunga, like Mr Mwendwa, his predecessor, is from Kitui. Mr Mwendwa, like Dr Mutunga, was stubbornly independent. Most pivotal election
Any Kenyan worth his or her name knows that this year’s election will be the most pivotal since the country’s independence. The left and right wings of Kenya’s political class will clash in a titanic electoral battle.
Prime Minister Raila Odinga leads his troops against the so-called Moi Orphans – the constellation of G7 leaders led by Deputy Prime Minister Uhuru Kenyatta, Vice-President Kalonzo Musyoka, Eldoret North MP William Ruto, and Internal Security minister George Saitoti. Former ODM deputy leader Musalia Mudavadi ideologically falls in the G7 camp.
In this battle, only one thing is for sure; one side will win and the other will lose. This is the vortex into which CJ Mutunga has been thrust. One side in the contest won’t be happy with him.
But let me warn those who may want to do the CJ harm – back off. CJ Mutunga is a man who is universally loved and revered in Kenya. I have never met a soul who had an unkind word to say about Dr Mutunga.
Even those who don’t agree with him on some issues – like the ear stud – admit that he’s a kind and honourable man.
I know that the man can’t be bought. It’s not that I have tried it – but I’ve seen how the corrupt and mendacious become small in his presence.
None has had the courage to suggest any shenanigans. He’s simply incorruptible. This is no secret to Kenyans. An attempt on his life wouldn’t be accepted. My view is that CJ Mutunga is the bridge between Kenya’s “today” and its “tomorrow”. I know it’s dangerous to pin a country’s hopes on one man or woman.
It’s true that no one makes a revolution alone. The great Mahatma Gandhi didn’t do it alone. Nor did the revered African-American civil rights leader Martin Luther King, Jr.
But they both inspired movements. As did Prof Wangari Maathai. Our chief justice is cut from a similar cloth. He’s a single man, but he carries the hopes of millions. He must live to take Kenya across that bridge.
Makau Mutua is Dean and SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of the KHRC.www.nation.co.ke/oped/Opinion/Will+merchants+of+impunity+let+Mutunga+do+his+job/-/440808/1414128/-/1o71bh/-/index.html
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Post by nereah on May 28, 2012 17:11:46 GMT 3
sister kk,
i see where makau is coming from but i beg to differ and at the risk of annoying some souls out there, i want to boldly declare that i lost justice mutunga the moment he sneaked into the kabarak lane for a god knows what parley with that wicked old man called daniel arap moi.
untill todate, mutunga has never found it fit to remove the doubt in some of us minds over this encounter with moi who as at then, had several cases line up against him in court(most famous being that of my former neighbour otieno makonyango) and moi's son philip which we helped ourselves with here in jukwaa.
i have also not been happy with the way wily has handled nancy baraza's case( my personal view which i am entitled to and for which in the fullness of time i am sure i will be vindicated)
i could go on and on but the sum of it all is that wily the mutunga is arguably beholden to these powerful forces and as good as they come(remember amos wako, good old prof. githu kiraitu murungi,lady martha karua, mutula kilonzo...right the way down to kitili mwendwa, the master of impunity understand that the judiciary is their last stand for which the likes of mutunga, however well meaning and decorated with reform credentials, either begins with a false start as in mutunga's dalliance with moi or stumble along the way like others.
i am saying that makau is disingenous and should have gathered courage to sieze wily who i have had priveledge of engaging with several years ago, instead of taking his aim at the mois of this world.
food for thought:
sonko's court cases and lately the yongo and ahmednassir saga over the karen land issue(where mutunga's name and association with ahmenassir was reportedly mentioned by affected residents) are classical examples of mutunga's judicial oversight.
note:i am aware that judiciary depends to large extend on the state law office.
i may be wrong, as usual
unedited
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Post by job on Jul 16, 2012 23:26:54 GMT 3
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Post by jakaswanga on Nov 11, 2012 16:38:10 GMT 3
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Post by kamalet on Nov 11, 2012 20:22:33 GMT 3
Jakaswanga
If only to help....the case will not come to Mutunga for any decision. He is just being asked to constitute a 3-judge bench to decide on the matter.
The real owner of the Integrity Act is the EACC and not any busy body if you ask me. The action should be against the EACC for not exercising its powers under the integrity Act.
As for the Kimunya case, I highly doubt that the high court will determine the decision of a parliamentary committee (even when the house has rejected a report) is sufficient law to be enforced.
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Post by Daktari wa makazi on Nov 11, 2012 23:22:29 GMT 3
Jakaswanga If only to help....the case will not come to Mutunga for any decision. He is just being asked to constitute a 3-judge bench to decide on the matter. The real owner of the Integrity Act is the EACC and not any busy body if you ask me. The action should be against the EACC for not exercising its powers under the integrity Act. As for the Kimunya case, I highly doubt that the high court will determine the decision of a parliamentary committee (even when the house has rejected a report) is sufficient law to be enforced. KamaletI doubt the single judge of the High Court would have referred the Kimunya case to the CJ to constitute a Bench if she thought there is nothing in it. That was essentially her task - she seems to agree there is a case of interpreting the 'integrity' provision of the Constitution in relation to Kimunya and friends and their little dealing.
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Post by kamalet on Nov 12, 2012 9:07:08 GMT 3
Jakaswanga If only to help....the case will not come to Mutunga for any decision. He is just being asked to constitute a 3-judge bench to decide on the matter. The real owner of the Integrity Act is the EACC and not any busy body if you ask me. The action should be against the EACC for not exercising its powers under the integrity Act. As for the Kimunya case, I highly doubt that the high court will determine the decision of a parliamentary committee (even when the house has rejected a report) is sufficient law to be enforced. KamaletI doubt the single judge of the High Court would have referred the Kimunya case to the CJ to constitute a Bench if she thought there is nothing in it. That was essentially her task - she seems to agree there is a case of interpreting the 'integrity' provision of the Constitution in relation to Kimunya and friends and their little dealing. Sadik You are saying the same thing I say. A single judge cannot hear a constitutional reference hence her placing the file before the CJ to constitute a three judge bench!
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Post by Daktari wa makazi on Nov 12, 2012 12:56:47 GMT 3
Kamalet
No, we aren't.
The single judge function is to vet the cases and only forward cases which has merit. She would not forward cases for a full bench if she thinks it does not hold any substance. By forwarding this case, the judge thinks it can succeed.
The single judge task is more that administration - unlike the CJ's - whose duty is to constitute a bench.
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Post by jakaswanga on Nov 12, 2012 22:19:24 GMT 3
Kamalet, Yes you are right, referred to the CJ so that he can constitute a 3-Judges bench. But must he, CJ Mutunga, disqualify himself from being one of the panel? [any knowledgeable learned friend may help us out here, if the CJ's role must merely be administrative. Otherwise when does he sit a Judge, or part of a panel of Judges?
This Kimunya case, when ruled on, seems to me to have the potential of being the precedent on this integrity chapter.
'declared unfit to hold office due to questionable .....' I can see half the presidential candidates failing the test, should Kimunya fail!
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Post by Daktari wa makazi on Nov 12, 2012 22:44:22 GMT 3
Kamalet, Yes you are right, referred to the CJ so that he can constitute a 3-Judges bench. But must he, CJ Mutunga, disqualify himself from being one of the panel? [any knowledgeable learned friend may help us out here, if the CJ's role must merely be administrative. Otherwise when does he sit a Judge, or part of a panel of Judges? This Kimunya case, when ruled on, seems to me to have the potential of being the precedent on this integrity chapter. 'declared unfit to hold office due to questionable .....' I can see half the presidential candidates failing the test, should Kimunya fail! Jaduon'g JakaswangaI think you are confusing two separate issues, here. The case against Kimunya and others was a judicial review action before the High Court. In the case, Trusted Society for Human Rights and Awake Africa moved to court seeking to have Kimunya, Central Bank Governor Njuguna Ndung’u and Treasury PS Joseph Kinyua declared unfit to hold office over their involvement in a questionable deal between Treasury and money printing company, De La Rue Company. The information used to bring the case emanates from a parliamentary accounts committee report that probed the deal. I imagine because the High Court has allowed the case to proceed, it has no qualms with the fact that the information used originate from a Parliamentary function. Otherwise, the Court would have refused jurisdiction and decline to hear the case further. I guess because the information were in the public domain means that they could be used to bring the case to the High Court. As such the issues raised in the petition touched on the leadership and integrity chapter and the Constitution and needed the interpretation of the court. A single judge, Justice Hellen Omondi heard the preliminary motion and decided to forward the case because touched on integrity under the Constitution which she thought must be interpreted. Justice Omondi's task was to weed the wheat from the chaff. She thinks there are some wheat in the case and forwarded it to the CJ whose administrative not judicial duties involve forming a panel of 3 High Court judges to hear the full merit case. In other words, Kimunya and others will have an adhoc Constitutional Court of 3 High Court Judges to determine whether their misdeeds come under the Integrity clause of the constitution and if does, are then unfit to hold office. The case is still not before the Supreme Court and the CJ does not have to disqualify himself as the case is not before him for hearing. Only after the High Court can the matter proceed to the Court of Appeal or jump to the Supreme Court. By way, a rather interesting case of Matemu have laid strong precedent on the intergrity account. That case dealt with the selection of Head of Anti-Corruption Body and it was determined that his appointment went against the rule as allegation against him were not investigated. He subsequently lost his position.
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Post by jakaswanga on Nov 13, 2012 21:14:27 GMT 3
Sadik, Always much obliged, when am clarified! but I could still re-direct for further clarification, like when the administrative roles of the CJ would seem to conflict with his Judge's robes! but that is for another day. Now a further comment! I will have to revise my civics class, to get the correct sequence in this legal maze. Omondi, herself a Judge at the High Court, pre-hears the case, only to refer it to the CJ who has to constitute another panel of Judges from the same High court, to hear it in total? What happened to the office of the prosecutor, who should sieve, or shift the chaff from the wheat, before a case reaches the bench? You now make this sound like the french system where we have 'investigative magistrates'! So, after this to be instituted 3-judges bench of the High court has has ruled, should the ruling not to be to Kimunya's liking, he can go to the court of Appeal [CoA or AC], and from there to the Supreme court whose ruling would be final on the matter? Meanwhile the March elections will surely be over, Kimunya long gone as minister, and perhaps quit politics altogether! In other words, all these learned men have calculated, and factored in the delay, to let the hot potato cooled down by itself! Or is interpreting this clause so much of a rocket science? We know parliament stone-walled on the integrity bills. We know the minister of Justice, the former or the present, dragged their feet too. We know the two principals were not too keen on the integrity bills. It therefore remained the calling of the Judicial apparatus to brood and hatch the egg of the peoples aspirations. But now, Moi in his best days would be proud of them. NB: The other integrity case, mentioning Uhuruto and in which the other candidates were enjoined, is also enjoying dormancy, gathering dust in the cellars of Mutunga's children. I would have thought these were national emergencies, enshrining the interpretations of the integrity clause, or public hygiene standards set for Kenyan elite office holders. BEST INTERPRETED AND UNDERSTOOD BEFORE THE BIG DATE, OF NATIONAL ELECTIONS! Kamalet, Yes you are right, referred to the CJ so that he can constitute a 3-Judges bench. But must he, CJ Mutunga, disqualify himself from being one of the panel? [any knowledgeable learned friend may help us out here, if the CJ's role must merely be administrative. Otherwise when does he sit a Judge, or part of a panel of Judges? This Kimunya case, when ruled on, seems to me to have the potential of being the precedent on this integrity chapter. 'declared unfit to hold office due to questionable .....' I can see half the presidential candidates failing the test, should Kimunya fail! Jaduon'g JakaswangaI think you are confusing two separate issues, here. The case against Kimunya and others was a judicial review action before the High Court. In the case, Trusted Society for Human Rights and Awake Africa moved to court seeking to have Kimunya, Central Bank Governor Njuguna Ndung’u and Treasury PS Joseph Kinyua declared unfit to hold office over their involvement in a questionable deal between Treasury and money printing company, De La Rue Company. The information used to bring the case emanates from a parliamentary accounts committee report that probed the deal. I imagine because the High Court has allowed the case to proceed, it has no qualms with the fact that the information used originate from a Parliamentary function. Otherwise, the Court would have refused jurisdiction and decline to hear the case further. I guess because the information were in the public domain means that they could be used to bring the case to the High Court. As such the issues raised in the petition touched on the leadership and integrity chapter and the Constitution and needed the interpretation of the court. A single judge, Justice Hellen Omondi heard the preliminary motion and decided to forward the case because touched on integrity under the Constitution which she thought must be interpreted. Justice Omondi's task was to weed the wheat from the chaff. She thinks there are some wheat in the case and forwarded it to the CJ whose administrative not judicial duties involve forming a panel of 3 High Court judges to hear the full merit case. In other words, Kimunya and others will have an adhoc Constitutional Court of 3 High Court Judges to determine whether their misdeeds come under the Integrity clause of the constitution and if does, are then unfit to hold office. The case is still not before the Supreme Court and the CJ does not have to disqualify himself as the case is not before him for hearing. Only after the High Court can the matter proceed to the Court of Appeal or jump to the Supreme Court. By way, a rather interesting case of Matemu have laid strong precedent on the intergrity account. That case dealt with the selection of Head of Anti-Corruption Body and it was determined that his appointment went against the rule as allegation against him were not investigated. He subsequently lost his position.
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Post by Daktari wa makazi on Nov 15, 2012 23:59:23 GMT 3
Jakaswanga
The question you pose are stuff one picks at legal practice course where one is taught how to be an advocate. I afraid time is not in my side, I don't want to infringe on my family time to post here. I must give Ceasar what is his!
But, in a nutshell. An application for judicial review is where the High Court is asked to look at a procedure/action/ policy of a public body where it is alleged that procedure/action/policy was not made or followed according to the constitution, or was illegal, irrational/unreasonable and that the outcome/consequence of that procedure/action/policy would infringe on the rights ( Human or Constitutional) of the applicant before the court.
When such an application is made, ( referred to as an ex-parte application as only one party make the application with no one responding) applicant/petitioner must provide details of what happened, how they were 'injured' by what happened and what they are asking the court to grant in way of 'relief'. Usually the application is made to duty High Court - the judge then, if s/he considers there is substance in the case forwards it to the CJ who then constitute a bench ( usually of 3 or sometimes 5 High Court judges) to hear the whole issue.
The CJ does not go into the substance of the case (application) - his job is to put together a panel and let them hear the case. That is seen to be 'arms length' from the High Court - denying High Court the chance to pick and chose cases they want to hear.
With a panel in place, all the other sides are invited - the gov't is usually represented by the AG ( in all judicial review the gov't is represented as the action is against 'public bodies' funded by the gov't). Sometimes the court get people who have interest on the matter joining the application. It is now an inter-parte hearing with all those concerned joining the action.
There is no prosecutor here, these being civil matters, as they ( prosecutors) only deal with criminal matters.
Now turning to the Kimunyua case, if unsuccessful before the constituted High Court, he and his friends can go to the C of A or if they want 'jump' straight to the Supreme Court.
NB. I was being told last month that there seem to be crisis in the Courts as many judges have been kicked out - the whole judiciary seems to be paralysed. I think that is why the JSC was trying to bring in some judges to help its operations. Your friend Warsame is being promoted to C of A.
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Post by jakaswanga on Jan 30, 2015 23:50:03 GMT 3
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Post by jakaswanga on Oct 20, 2016 20:51:02 GMT 3
WHERE THERE IS A WILL, THERE IS A WAY; BUT IS THERE A WILL? Willy Mutunga, for all his later failings, had, in the beginning, the intellectual presence of mind to recognise the elephant in the room! Some may think recognising an elephant in a room is no brainer, but those are those who have not studied man and fathomed his powers of denial! Mutunga is gone, enter the new CJ, and there is the old problem! rock solid! So what is Wily's successor worth? Time will tell. But some books can be judged by their covers! Willy Mutunga ended up expired in tenure without delivering an intellectual, positional ruling or his constitutional and legal interpretation of the thrust of chapter six, so-called integrity clause. Such work could have been a ground-breaking, precedent-creating effort for posterity. I am betting the new CJ, Maraga or so, lets pass the hot potato too. As Wole Soyinka used to warn, some problems require minds forged less feeble. Defusing this bomb is therefore a buck passed on. There is a plague which locks feeble minds to the top of Kenya –---the President who has fired his best shots at corruption without corruption blinking, and has now washed his hands of the problem is an excellent example. But here is to remind Maraga of the problem on a humorous but no less sharp take. elite gangs up to burry chapter six. Uhuruto uses chapter six as toilet paper. Aaah, what a large hole, that chapter six, in our national mind too? By the balls corruption holds the attorney general, soon the CJ too? THE INTEGRITY CLAUSE: That is a sum we can not get right, No!?
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Post by jakaswanga on May 22, 2017 22:57:26 GMT 3
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