CJ Mutunga On Intergrity Part II

[jakaswanga]

Jun 5, 2012 18:56:02 GMT 3 nereah said:

unedited
i want to imagine that there is a corresponding memo to judges and magistrates to this effect or they will abide by the publicized soundbites.
(..)
the nereah in me stubbornly refuse to be carried along.
(...)
i don't have the energy to lift up that big moral brush and paint mutunga with integrity colours but i have the courage and to withhold my support and goodwill from him until he clears the air on his parley with the father of impunity in kenya,whose misrule kenyans are yet to completely extricate from.
(>>>>)
..i care for now is the small dent in willy's reform credential caused by the suspicious embrace with moi who any reformist worth his salt should avoid like a plague.

i am saying willy like the amos wakos,justice waki,yash pal ghai,mutula kilonzo, kiraitu murungi,sister martha karua,jim orengo,koigi wamwere et al is on a futile mission.

i may be wrong, as usual

ref
jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7028&page=1 CJ Mutunga on integrity part ii

Nereah Yuora,

It was your use of the word 'parley', to describe the Mutunga-Moi get together, that made me earmark this topic for later re-visit as you wisely admonished. I first heard of this word during a sociological foray into ancient Albanian customs that still linger, despite a half a century intermezzo of radical red terror under Enver Hoxja. These customs are bundled in a word known as KANUN --(it was the internationalist search for the origins of the Swahili word 'kanuni' took me there.)

'Parley' was some kind of truce arrangement between blood-feuding communities in which the most valuable bodies were exchanged as mortgages, securities to other side. Breaking the [conditions of the] cease-fire was sentencing them to death. By extreme painful means.

Of course these days parley is mostly an instrument in USA/Mafia and drug wars, where rival gangs arrange parleys to organise the playing field, and keep the police off the scent! But I would be glad to use it in relation to behaviour of supposedly competing international banks that got together and fixed the primary lending rate known as LIBOR. [London Interbank Offered rate], which I consider part of the cause of the International Financial Crisis of the past years.

I never found a better categorisation of the meeting between Mutunga and Moi, than in the word parley! In its pure form!

Since then I have watched CJ Mutunga assiduously keep his side of the bargain arranged during the parley!

(No, I am not talking about Philip Moi who could not be found and taken to court, despite a massive man-hunt by the Kenya police)

Just the fact that the integrity bill is now left to volunteers to make something of. The IEBC, Lucy Ndung'u at the Registrar's office, Heroic Judges, Petitions by activists guaranteed to be dismissed by Mutunga's friends at the bench. Not to mention the CJ presiding by default over the death of the vetting board! through his friend, the much troubled Warsame].

So here is the academic Martin Oloo pitching in, in the standard. An article worth every read. [This name Oloo, what is in it ;D. There is Dr. Adams too, over at the American one]
www.standardmedia.co.ke/?articleID=2000074384&pageNo=2&story_title=Kenya-Aspirants-face-hurdle-as-integrity-checks-tighten
integrity issues.

Dr Oloo of the Kenya School of Law, while acknowledging the positive intentions of vetting elective public office seekers, says the manner the process is handled is a potential minefield that could be counterproductive as there is no clear-cut mechanism of executing it.

Can somebody post the Leadership & Integrity Act 2012 in full here? A honourable lurker like b6k perhaps ? .

It would also be interesting to know what Uhuru Kenyatta, William Ruto, Raila Odinga, Musalia Mudavadi, Martha Karua, and Peter Kenneth will explain their affirmative responses to: Have you ever been dismissed from employment on account of lack of integrity? If you have been a public officer, have you ever failed to declare your income – assets and liabilities – as required under the Public Officer Ethics Act 2003? Have you ever been the subject of disciplinary or criminal proceedings for breach of the Public Officer Ethics Act 2003 or a code prescribed thereunder?

Have you ever been convicted of any offence and sentenced to serve imprisonment for a period of at least six months? Have you ever had an application for a certificate of clearance or a certificate of good conduct or for a visa or other document authorising work in a public office denied and/or rejected for cause in Kenya or any other country?

While the chairman of the Independent Electoral and Boundaries Commission Isaack Hassan is on record saying that unless one has been convicted of the crimes they are accused of committing they can contest public office, legal experts warn the commission could be impaired by inconsistency in the interpretation of the law. Hassan has in the past argued that only the High Court is best placed to determine if aspirants facing criminal charges can vie for public office.

Although it is generally agreed that only IEBC is mandated by law to vet and clear elective public office aspirants, the manner the agency is handling electoral issues is rather too liberal. The International Centre for Policy and Conflict Executive director, Ndung’u Wainaina, wants the commission to uphold the spirit of the law by setting high standards that reward meritocracy, but scoff at mediocrity in politics.

www.standardmedia.co.ke/?articleID=2000074384&pageNo=2&story_title=Kenya-Aspirants-face-hurdle-as-integrity-checks-tighten

It will be noted, as part of the inconsistencies, that Ferdinand Waititu and Mike Mbuvi Sonko [Nairobi Governor and county senate aspirants] are the only two likely to be barred, by failing to be issued by integrity health certificates by the relevant body!

A political compromise? will these two bones appease the baying hounds like yours truly?

other references
jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7028 Mutunga on integrity 1.
jukwaa.proboards.com/index.cgi?board=general&action=display&thread=4192&page=1 [where is honesty, truthfulness, integrity]

jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7289&page=1 [exploring the samson option]

jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7367&page=3 [CJ Mutunga is a funny guy]
jukwaa.proboards.com/index.cgi?board=general&action=display&thread=5500&page=12 [vetting judges and magistrates]

[Daktari wa makazi]

Jakaswanga

Several things stand out from your post.

1. the section you are looking for is actually Chapter 6 of the Constitution, ably titled Leadership and Intergrity. That is where the gist of the issues you are seeking to discuss are provided.

2. The Leadership and Intergity Act have only given effect to, and establish procedures and mechanisms for the effective administration of Chapter 6 of the Constitution and for connected purposes For example the Act sets up an Intergrity Code which is been used to be operate by the Ethic and Anti-corruption Commission (EAC). It is this body which then does the vetting on politicians, not the Electoral body (IEBC).

3. Where the EAC says someone is fine to stand for election, I doubt very much if the IEBC can say otherwise.

4. From the press, I understand the EAC has said only convicted criminal will not be allowed to stand for election.

5. Why you keep drawing Chief Justice Mutunga and other judges in the vetting for politicians beats me. Their role here is very specific- to entertain an application in judicial review, where an applicants questions the decision of the EAC.

6. As far as I am aware, there is a case at the High Court against Uhuru and Ruto, but it has yet to be heard. Let us wait for that decision.

[Daktari wa makazi]

CHAPTER SIX—LEADERSHIP AND INTEGRITY

Responsibilities of leadership.

73. (1) Authority assigned to a State officer—
(a) is a public trust to be exercised in a manner that—
(i) is consistent with the purposes and objects of this Constitution;
(ii) demonstrates respect for the people;
(iii) brings honour to the nation and dignity to the office; and
(iv) promotes public confidence in the integrity of the office; and
(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.

(2) The guiding principles of leadership and integrity include—
(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;
(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;
(c) selfless service based solely on the public interest, demonstrated by—
(i) honesty in the execution of public duties; and
(ii) the declaration of any personal interest that may conflict with public duties;
(d) accountability to the public for decisions and actions; and
(e) discipline and commitment in service to the people.
Oath of office of State officers.

74. Before assuming a State office, acting in a State office, or performing any functions of a State office, a person shall take and subscribe the oath or affirmation of office, in the manner and form prescribed by the Third Schedule or under an Act of Parliament.
Conduct of State officers.

75. (1) A State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids—
(a) any conflict between personal interests and public or official duties;
(b) compromising any public or official interest in favour of a personal interest; or
(c) demeaning the office the officer holds.

(2) A person who contravenes clause (1), or Article 76, 77 or 78 (2)—
(a) shall be subject to the applicable disciplinary procedure for the relevant office; and
(b) may, in accordance with the disciplinary procedure referred to in paragraph (a), be dismissed or otherwise removed from office.

(3) A person who has been dismissed or otherwise removed from office for a contravention of the provisions specified in clause (2) is disqualified from holding any other State office.
Financial probity of State officers.

76. (1) A gift or donation to a State officer on a public or official occasion is a gift or donation to the Republic and shall be delivered to the State unless exempted under an Act of Parliament.

(2) A State officer shall not—
(a) maintain a bank account outside Kenya except in accordance with an Act of Parliament; or
(b) seek or accept a personal loan or benefit in circumstances that compromise the integrity of the State officer.
Restriction on activities of State officers.

77. (1) A full-time State officer shall not participate in any other gainful employment.

(2) Any appointed State officer shall not hold office in a political party.

(3) A retired State officer who is receiving a pension from public funds shall not hold more than two concurrent remunerative positions as chairperson, director or employee of—

(a) a company owned or controlled by the State; or
(b) a State organ.

(4) A retired State officer shall not receive remuneration from public funds other than as contemplated in clause (3).
Citizenship and leadership.

78. (1) A person is not eligible for election or appointment to a State office unless the person is a citizen of Kenya.

(2) A State officer or a member of the defence forces shall not hold dual citizenship.

(3) Clauses (1) and (2) do not apply to—
(a) judges and members of commissions; or
(b) any person who has been made a citizen of another country by operation of that country’s law, without ability to opt out.
Legislation to establish the ethics and anti-corruption commission.

79. Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the provisions of this

80. Parliament shall enact legislation—
(a) establishing procedures and mechanisms for the effective administration of this Chapter;
(b) prescribing the penalties, in addition to the penalties referred to in Article 75, that may be imposed for a contravention of this Chapter;
(c) providing for the application of this Chapter, with the necessary modifications, to public officers; and
(d) making any other provision necessary for ensuring the promotion of the principles of leadership and integrity referred to in this Chapter, and the enforcement of this Chapter.

www.kenyalaw.org/kenyalaw/klr_app/frames.php

[jakaswanga]

Jan 6, 2013 11:10:46 GMT 3 Daktari wa makazi said:

Jakaswanga

Several things stand out from your post.

1. the section you are looking for is actually Chapter 6 of the Constitution, ably titled Leadership and Integrity. That is where the gist of the issues you are seeking to discuss are provided

Actually I was looking for the 'operationalisation': specific laws enacted by parliament with as reference the above chapter.

2. The Leadership and Integrity Act have only given effect to, and establish procedures and mechanisms for the effective administration of Chapter 6 of the Constitution and for connected purposes For example the Act sets up an Integrity Code which is been used to be operate by the Ethic and Anti-corruption Commission (EAC). It is this body which then does the vetting on politicians, not the Electoral body (IEBC).

Thanx for the speedy unearthing of the whole chapter six www.kenyalaw.org/kenyalaw/klr_app/frames.php

Now (79)-(80): Paragraphs beginning with the words: Parliament shall enact. --From here is where the juice I want and the bile I spew will sit and cohabit.

I was thinking this enactment by parliament is the Integrity and Leadership Act 2012 [Brother Mutula's version heavily revised by sister Eunice]. And it is the long form of this Act I was hoping the mighty learned friends on board would find and post here.

Then we can take every candidate and run and shine them against that light.

3. Where the EAC says someone is fine to stand for election, I doubt very much if the IEBC can say otherwise.

4. From the press, I understand the EAC has said only convicted criminal will not be allowed to stand for election.

Now the confusion starts in the public [newspaper ;D] arena:

By some reports the test would be IEBC --yet nobody could quote the relevant law which would make Hassan's body refuse say Uhuruto's papers. though IEBC seems to have suggested it can bar some fellows on its own rights!
The EAC put the bar on CONVICTION ON A FELONY, yet their spokesperson too did not quote any law, such that there arises confusion between their mandate and that of the IEBC respective integrity. Remember the CJ too is on record as having said THE COURTS will have the last word! And there is also the opinion: let the kenyan electorate be the ultimate court .. that, that too, is an 'operational' reading of the law!
Caveat: You have warned me before not use Kenyan mass media ;D as authorities on these issues, so I recognise these reports may have more to do with the imagination of paper editors than real law written in stone!

5. Why you keep drawing Chief Justice Mutunga and other judges in the vetting for politicians beats me. Their role here is very specific- to entertain an application in judicial review, where an applicants questions the decision of the EAC.

What was Mutunga's mandate on his vetting and elevation as the CJ? Reform the Judiciary. What are the instruments of reforming the Judiciary? he is Mr. I dontKnow. He reminds me of Raila who will transform Kenya after elections, but for the past many years in which he has been top dog, he claims mara he was sidelined in the nusu-mkate deal, mara Uhuru at treasury frustrated his programs, mara he had no power... always excuses! excuses! excuses! a mlolongo of scapegoating from here to planet Jupiter and back!

So here we are with the new Constitution, with a supposed integrity chapter, going to elections with ICC indictees as leading candidates! I call that impunity is alive and hot and mean and kicking. And that means those who have been vetted to ensure the official curtailment of that bureaucratic decay that makes such possible, are sleeping on the job. And Mutunga has the sad fate of having been the epitome of hope, throned on the pivotal seat of CJ.

I am judging him with an average set of instruments. I am not setting high standards for him. I just want a legal reading, and an interpretation based on the spirit of the new chapter 6. Can Uhuruto ran or not? And how about Kabogo [mentioned in the Keino case]. [Leaving corruption cases out for the moment! Imagine!]

Can the judiciary think it can have cases on mentioned cops like Kaindi in Kisumu, while the police that should investigate, is headed by the same people to be investigated. Mutunga has a doctorate in law, these are ABC questions. CJ needs a stand. Unless.

I understand parleys my friend. They take a toll on a man's nerves, mind, and dedication to duty.

6. As far as I am aware, there is a case at the High Court against Uhuru and Ruto, but it has yet to be heard. Let us wait for that decision.

You know my cynical opinion: it is being left to gather dust there, until its mention would be irrelevant, having been flown past by real events in real time. Like Election already held.

You remember the story about the mother of all petitions? It suffers delay after delay at every step.
So I was asking: is it so complex to assemble, we have to import foreign lawyers to do it, like we did import fiscalists to write our finance bill 2012? [But no, it is ABC I was told, even first years at law can do it.] So the DELAY IS 'cultivated'!
It is a season of parleys!

I had not thought of this, but now I found it: eligibility case, a circus: by your very good friend O-sh!
jukwaa.proboards.com/index.cgi?board=general&action=display&thread=7498&page=2

[nereah]

now that sister nancy baraza is out of contention, we should obviously focus on the yawning gap. i am putting my money on the lovely,brilliant,wise and humble sister in the photo above(in glasses) to be the deputy chief justice of kenya and hopefully the first female kenyan african chief justice.

back to willy, i have my reservation on justice mutunga. the latest instance is tweeting (pleasantries if you wish) with someone who has a case pending in court. i am sorry if i am prejudiced but something tell me willy may be a disappointment and i could be wrong as usual.

link:
tinyurl.com/azkf3op

[Deleted]

Jan 6, 2013 16:16:05 GMT 3 nereah said:

now that sister nancy baraza is out of contention, we should obviously focus on the yawning gap. i am putting my money on the lovely,brilliant,wise and humble sister in the photo above(in glasses) to be the deputy chief justice of kenya and hopefully the first female kenyan african chief justice.

back to willy, i have my reservation on justice mutunga. the latest instance is tweeting (pleasantries if you wish) with someone who has a case pending in court. i am sorry if i am prejudiced but something tell me willy may be a disappointment and i could be wrong as usual.

link:
tinyurl.com/azkf3op

Absolutely. That sister can help people who do not live with disabilities get over our freaking selves. And it would be the first time a woman who lives with a very visible disability ascends to such a high profile position. Affirmative action that will contribute to all of our redemption. And for all those dry people who think that affirmative action is about recruiting folks who aren't qualified you are dead wrong; as is every white man who claims the same rubbish.

by the way nereah what is her name? Kind of rude of us to be talking of her without a mention of her name.

[nereah]

this is her today.judge grace mumbi ngugi




more about this sister:
www.demotix.com/photo/1270711/kenyan-high-court-judge-grace-mumbi-ngugi-who-lives-albinism

[Daktari wa makazi]

Nereah

I don't know anything about Judge Mumbi. Have you come across any of her writings, including judgements?

[nereah]

Jan 9, 2013 17:38:06 GMT 3 Daktari wa makazi said:

Nereah

I don't know anything about Judge Mumbi. Have you come across any of her writings, including judgements?

sadik,

the hon lady judge is obviously in a class of her own, with rare boldness and sagacity. for the brief period she has been in the bench, she has made some very significant rulings.


just but to mention a few, she is the legal brain who declared unconstitutional a provision in the elections acts that required mps & county assemblies representatives to have post-secondary education on ground that it was discriminatory and contravened article 27 of constitution which you are familiar with.lets you fret, she made it clear that aspirants for governors,presidents and deputy presidents must abide by section 2 of the same elections acts, which requires them to posses academic degree qualification.

here is a veritable one:
www.kenyalaw.org/newsletter/20120416.html


here is a repository of some of the judicial advisories where you can trace her landmark rulings.
www.kenyalaw.org/klr/index.php?id=32