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Post by tactician on Nov 7, 2012 18:30:54 GMT 3
Uhuru Kenyatta and William Ruto are not barred by the Constitution from standing as presidential candidates in the forthcoming election.It is an error to think that Chapter Six of the Constitution bars them. Articles 73 – 80 thereof are relied upon to exclude them. Closer scrutiny of these provisions is therefore required. Art.73 does set out the guiding principles of leadership and integrity, and the manner in which authority is to be exercised. But it and Chapter Six apply generally only to State officers. “State officers” are those who hold ‘State office’. ‘State office’ is defined as any of certain specified offices. (Art.260). These include the offices of the President, the Cabinet Secretaries (Ministers), MPs, judges, county members, governors, and offices established and designated as such by Parliament. The ‘office’ of a presidential candidate is not included in this list. Nor has Parliament designated it so. As is obvious, a candidacy is not an office and would not attract Chapter Six. As candidates, Uhuru and Ruto are not State Officers. And Chapter Six does not apply to those who might become State officers in the future. Chapter Six does not end there. Its concluding article, Art.80, does allow Parliament to pass legislation to “establish procedures and mechanisms for the effective administration of this Chapter,” (Art.80(a)) and “make any other provision necessary for ensuring promotion of the principles of leadership and integrity referred to in this Chapter and the enforcement of this Chapter.” (Art.80(d)). This could lead to checks on candidates. But the present Integrity Bill does not make significant provision for that. Is it then in violation of the Constitution? The matter is in Court. Art.75(1) is an important gauge for the conduct of candidates. It provides that a State officer shall conduct himself in a manner that avoids conflict of interest between personal interests and public official duties; avoids compromising any public interest in favour of a private interest; avoids demeaning a State office. But an important gauge is not a bar, unless expressly stated to be so. There is no such express statement against candidates. What a large section of public opinion is saying is that if a presidential aspirant, who is charged at The Hague with particularised conduct that both nationally and internationally constitutes grave crimes carrying moral turpitude, persists in standing for the highest office in Kenya, it is demeaning Kenya. By standing, instead of stepping aside voluntarily, he breaches the public trust vested in him not only by our country, but also by all our ethnic groups. And if he persists, despite a large expressed opinion that this is not wanted, then it is also a conflict between his personal interests and the public and national interest. Such candidates are not desirable. This conflict impacts directly and adversely on all Kenyans. It does not benefit its majority. The candidacy in such circumstances is not even for the benefit of the broad mass of the ethnic group of such a candidate. It is for the candidate’s own interests. And those of the small economic and social elite that flatter and batten off such candidacies. It is certainly not for the benefit of other Kenyans. There is already a mechanism in the Constitution to deal with such candidates. It is Art.38. It is to refuse to vote for them. The reason for the vote being the remedy is that it is neither democratic nor desirable that one person or a few persons – whether the Director of Public Prosecutions or the Registrar of Political Parties or one or a panel of judges – decide on whether a candidate is a suitable person to stand for State office. The great mischief that such a situation could give rise to, is obvious. A few individuals cannot disenfranchise millions. It is contrary to democratic principles. It is contrary to the Constitution. It is for the people to decide.Even in the face of the candidates’ subversion through a well-oiled propaganda machine with very deep pockets buying individuals and media and inciting ethnic nationalisms in support. This is fascism. We have to reject both, candidates and such programs. For, at election time it is not a few individuals, not some anti-corruption body, but the public as the electorate, that becomes the enforcer of the values in Art.10, And it is both duty and self-preservation, that we voters reject those candidates for president who, even before they have reached that office, keep violating every value in our Constitution and our traditions.
Source: www.the-star.co.ke/news/article-94589/chapter-six-doesnt-bar-ruto-and-uhuru
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Post by b6k on Nov 7, 2012 18:56:03 GMT 3
Nowrojee should let us know what happens once a candidate's status changes to incumbent state officer if the electorate is hellbent on voting for the duo. Shouldn't there be a mechanism other than the whims of fickle voters to arrest the unfavorable outcome before it happens.
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emali
Full Member
Posts: 219
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Post by emali on Nov 7, 2012 19:14:29 GMT 3
“The ‘office’ of a presidential candidate is not included in this list. Nor has Parliament designated it so. As is obvious, a candidacy is not an office and would not attract Chapter Six. As candidates, Uhuru and Ruto are not State Officers. And Chapter Six does not apply to those who might become State officers in the future.”
I still don’t get this part maybe Otish & some lawyers may help here…
If Uhuruto are elected don’t they become ‘state officers’…at that point doesn’t chapter six kick in?
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Post by joblesscorner on Nov 7, 2012 19:35:32 GMT 3
Emali, I'm sailing on the same boat, I guess the president and vice president are not designated as state officer. Man Otish can aide as here.. “ The ‘office’ of a presidential candidate is not included in this list. Nor has Parliament designated it so. As is obvious, a candidacy is not an office and would not attract Chapter Six. As candidates, Uhuru and Ruto are not State Officers. And Chapter Six does not apply to those who might become State officers in the future.”I still don’t get this part maybe Otish & some lawyers may help here… If Uhuruto are elected don’t they become ‘state officers’…at that point doesn’t chapter six kick in?
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Post by mwalimumkuu on Nov 7, 2012 19:45:10 GMT 3
“ The ‘office’ of a presidential candidate is not included in this list. Nor has Parliament designated it so. As is obvious, a candidacy is not an office and would not attract Chapter Six. As candidates, Uhuru and Ruto are not State Officers. And Chapter Six does not apply to those who might become State officers in the future.”I still don’t get this part maybe Otish & some lawyers may help here… If Uhuruto are elected don’t they become ‘state officers’…at that point doesn’t chapter six kick in? This is very self-explanatory. A candidate is just that, a candidate. You cannot bar anyone from running for anything on assumptions that they will be elected. The basis for being elected as president and deputy president are clearly outlined in the katiba, and as long as one meets that criteria, they are free to run. It is only after they are elected into office that the other provisions kick in (read impeachment) And even with the other provisions, all avenues of appeal must have been exhausted and the said officers found guilty. That is our katiba.
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Post by mwalimumkuu on Nov 7, 2012 20:00:09 GMT 3
Whereas I agree with the author of the article in principle, there are some undertones to the writing that I take exception to.
Yes, it is true that the decision of whether to run or not to remains (in the spirit and letter of the constitution) individual until the courts find them guilty, it is a little unfair to blanketly throw in issues of the nation without thoroughly discussing how such a decision can be achieved without harming the individual in question.
If you take the ICC issue for instance, which is the main reason we are having this debate, it is rather obvious that some candidates have looked at it as a perfect avenue to fix their opponents and therefore have an easy ride to the throne of power. In cases where such connivance gives forth to malicious grounds such as what we are experiencing, it becomes extremely difficult to divorce the interests of the nation from those of the individual. And that is where the issue of mwananchi deciding their own destiny with such situations kicks in.
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Post by terminator on Nov 7, 2012 20:58:31 GMT 3
I think they should be barred purely from a practical point of view. Because they will not be able to exercise the role of office. They have lost control of their timetable to the ICC. It is not any different than a person in remand facing trial for murder. If such a person cannot be eligible, then they too should not be, for the same practical reasons. Whether one is physically restrained or otherwise does not matter. It is still a practical consideration IEBC ought to take into account.
Should the IEBC use their better judgment and prevent them from getting on the ballots, they still have recourse to the courts. The courts can also use their better judgment and set a precedent. It does require some thinking out of the box as well as deciphering the intent of the people for the judges. But it seems like a sensible thing to do.
Even if one were to nitpick and act like the constitution exists in a vacuum, in defense of the blatantly insane, there are valid arguments against their candidature in the letter of chapter six. Uhuru and Ruto are current office holders. It is arguable that they are presently in violation of Chapter six.
In section 99 of the constitution you find
Qualifications and disqualifications for election as member of Parliament (2) A person is disqualified from being elected a member of Parliament if the person— (h) is found, in accordance with any law, to have misused or abused a State office or public office or in any way to have contravened Chapter Six.
From a practical, moral and legal perspective, barring them seems like the prudent thing to do.
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Post by abdulmote on Nov 7, 2012 23:44:58 GMT 3
I think the good old lawyer got his "knickers in twist"!
Chapter six is certainly not applicable retrospectively. It may appear that it is also not applicable to the current: ( a position he clearly 'ommittted' to mention, and according to him, it cannot apply for the future! Then what the heck is Ch 6 for if anything at all?
Besides, I could argue, why let anyone 'candidate' apply such a mischief fo standing for such an important 'public office' if only for the same to end up being in obvious and clear potentisl 'conflict of interest', which can result in enormous loss to the whole nation?
Oh, I forgot, he had stated that Ch 6 does not apply in the future! Simple.
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Post by jakaswanga on Nov 8, 2012 0:11:54 GMT 3
Last paragraph, the public as an enforcer? I think of violent mob justice, tearing a suspected thief to pieces, or stoning the culprit dead!
I prefer common sense first: suspected of crimes against humanity, you do no run for president. If you do, somebody must tell you to stop joking. There is nobody to tell Uhuruto they can not? then the whole country is a joke, with neither moral fibre nor historical worth. Better it burn down if it can have a president who hired thugs to murder fellow citizens ---at that is the new constitution after 40 years of resistance! Lawyers!
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Mukwhasi
Full Member
Justice will live on ..
Posts: 180
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Post by Mukwhasi on Nov 8, 2012 1:12:25 GMT 3
WAKE UP AND SMELL THE COFFEE!, OF UHURUTO ALLAINCE I was watching a documentary on how crocodiles feed and how they do that is by opening their mouths for a long time and allowing all manner of non-suspecting insects to be attracted by the foul smell to settle in then they violently shut their mouth and feed on their prey. This analogy made me think of Uhuru and Ruto because this is exactly what they are doing .They have had their mouths open since they made that journey from the Hague and will soon shut their big foul mouths and consume us all. I am shocked at how the fate of 40m people can literally hang on the backs of two crimes against humanity suspects. It is so ironical that only yesterday an impeccable Kenyan by the name of PK he of the tunawesmake fame offered himself for the leadership of this country but alas our tribal nature will hear none of it.
It is time Kenyans did some serious soul searching and ask themselves some very pertinent questions. First is as to whether we really want to turn our country in to a pariah state like Sudan or Somalia. We must remember that by electing these two ICC suspects as president and deputy we will become isolated in this ever shrinking global village. Many have been deluded to think that Kenya can look east and forget the west but a critical look at this fallacy will paint a very negative picture if we were to dismember relations with the west. Let us look at a few myths about the so called China ,how much of Kenyan goods to the Chinese actually buy compared to the west? , how many Chinese tourists visit Kenya compared to the west? And lastly how many Kenyans live freely in china and have been accepted as dual citizens in china compared to the west?. China has in the recent past demonstrated itself to be a major economic force but devoid of counterfeit, economic espionage, currencies holding its economy will collapse. Ask your self who is the number one consumer of Chinese goods in the world? ,which companies and corporations moved there for cheap labor and other strategic reasons ,who’s population is uncontrollable that they have to send their citizens to Africa to roast maize and do manual labor?
America has been through some difficult times yes and they have realized that bringing back jobs to their shores is healthier for their economy and so is buying made in America ,these type of policies will soon shut Chinese growth down and remember there is cheap labor across the US border in south American countries ,on this front immigration issues will be buffered and so will the cost of production. China may be flourishing economically but poverty and low living standards is still the norm, democracy and human rights are still at an all time low, is this the big brother we should emulate, where dictators do as they please trampling on human rights as if there are no laws? , I do not think so. Chinese international policy is see no evil , hear no evil ,say no evil ,so even if our elected leaders decide to eat babies for breakfast China will feel no obligation to speak for the vulnerable besides its might ,to me that is the height of cowardice.
In a nutshell, we can not have a president and his deputy who are suspects of crimes against humanity .The judiciary should call their bluff by barring them from running for office and let the clean candidates compete fairly and may the best man or woman win. Alternatively in the event that the Kenyan courts decide otherwise then let us send a very clear message to William Ruto and Uhuru Kenyatta that we are not pawns in their defense strategy for their cases at the Hague ,that we can not mortgage the future of our children by betting on them. Kenya is bigger than two men who are drunk on power and hubris, God help Kenya!
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Post by Mobimba on Nov 8, 2012 1:27:37 GMT 3
Mukwhasi.
Could agree more. On matters ICC, Uhuru and Ruto are technically 'out on bond'. Folks in that state cannot be presidents of cattle dips. Those suggesting that Kenya should look East and nowhere else should remember that China itself also looks WEST.
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emali
Full Member
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Post by emali on Nov 8, 2012 1:49:16 GMT 3
“ The ‘office’ of a presidential candidate is not included in this list. Nor has Parliament designated it so. As is obvious, a candidacy is not an office and would not attract Chapter Six. As candidates, Uhuru and Ruto are not State Officers. And Chapter Six does not apply to those who might become State officers in the future.”I still don’t get this part maybe Otish & some lawyers may help here… If Uhuruto are elected don’t they become ‘state officers’…at that point doesn’t chapter six kick in? This is very self-explanatory. A candidate is just that, a candidate. You cannot bar anyone from running for anything on assumptions that they will be elected. The basis for being elected as president and deputy president are clearly outlined in the katiba, and as long as one meets that criteria, they are free to run. It is only after they are elected into office that the other provisions kick in (read impeachment) And even with the other provisions, all avenues of appeal must have been exhausted and the said officers found guilty. That is our katiba. I understand the candidate part...what I was asking is the same question b6k asked (I missed his post initially) and Abdulmote has seemingly answered...what is the point of Chapter six then? You have mentioned impeachment...well it has to be a first anywhere in the world to be eligible for automatic impeachment immediately one is elected as president...yes it is our Katiba but I will be excused for questioning the character of those hell bent on abusing this ‘loophole’...
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emali
Full Member
Posts: 219
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Post by emali on Nov 8, 2012 1:51:37 GMT 3
Whereas I agree with the author of the article in principle, there are some undertones to the writing that I take exception to. Yes, it is true that the decision of whether to run or not to remains (in the spirit and letter of the constitution) individual until the courts find them guilty, it is a little unfair to blanketly throw in issues of the nation without thoroughly discussing how such a decision can be achieved without harming the individual in question. If you take the ICC issue for instance, which is the main reason we are having this debate, it is rather obvious that some candidates have looked at it as a perfect avenue to fix their opponents and therefore have an easy ride to the throne of power. In cases where such connivance gives forth to malicious grounds such as what we are experiencing, it becomes extremely difficult to divorce the interests of the nation from those of the individual. And that is where the issue of mwananchi deciding their own destiny with such situations kicks in. The main reason we are having this debate has nothing to do with ‘such a decision can be achieved without harming the individual in question’ nor ‘it is rather obvious that some candidates have looked at it as a perfect avenue to fix their opponents and therefore have an easy ride to the throne of power’ nor ridiculously ‘malicious grounds such as what we are experiencing’…the reasons are stated clearly by every poster on this thread… The question would still be relevant if Raila was not running & the candidates are not being harmed in any way if anything it can be argued they have used the court case to propel them to their current status politically…god forbid someone mentions the same court case can finish them!
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Post by b6k on Nov 8, 2012 6:35:03 GMT 3
Maybe we should have included legislation barring any politicians who were at any given time affiliated with KANU from participating. in the first elections under the new katiba, much like Germany barred the NAZI party from participating in post war elections. To paraphrase the real JC, why bother putting old wine into new wineskins? Garbage in, garbage out (GIGO). The KANU era politicians, even the relatively young ones (& Uhuru & Ruto fall into this group), tend to practice very crude politics ya kifua. It should have been made clear to them that although their services were (grudgingly) appreciated, they would no longer be required under the new dispensation.
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Post by kamalet on Nov 8, 2012 8:41:47 GMT 3
Chapter six only applied to 'serving' state officers so yes the old lawyer is right that it cannot be used to bar the 'two' from vying for the office of president.
Chapter Six and attendant legislation provides for the behaviour of a STATE OFFICER (which means one needs to be a state officer for the chapter to apply) and the consequences of misbehaviuor.
In the case of Uhuruto, their charges at the ICC can only have them removed as president if Parliament impeaches them on grounds of the cases hanging over their heads, but legally and with the aassumption of innocence until proven guilty even the ongoing cases cannot halt their holding office.
The only re-course to them not vying for office is appealing to their conscience as I do not think the law stops them.
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Post by Daktari wa makazi on Nov 8, 2012 14:05:32 GMT 3
Chapter six only applied to 'serving' state officers so yes the old lawyer is right that it cannot be used to bar the 'two' from vying for the office of president. Chapter Six and attendant legislation provides for the behaviour of a STATE OFFICER (which means one needs to be a state officer for the chapter to apply) and the consequences of misbehaviuor. In the case of Uhuruto, their charges at the ICC can only have them removed as president if Parliament impeaches them on grounds of the cases hanging over their heads, but legally and with the aassumption of innocence until proven guilty even the ongoing cases cannot halt their holding office. The only re-course to them not vying for office is appealing to their conscience as I do not think the law stops them. KamaletHuu jambo. Your argument are not very convincing. Uhuru is a state officer as a deputy PM and will be if successful with his campaign for presidency. If he is found to have misbehaved, as a deputy PM then off goes his integrity as a consequence of misbehaviour even if successful in his presidential quest. You will remember Dr Mutunga issued a warning that must have rung alarm bells in the political arena by declaring that he will not hesitate to use Chapter Six of the Constitution on Leadership and Integrity to prevent politicians of questionable integrity from seeking elective office in the General Election. Chapter Six of the Constitution requires, among other standards, that State officers must not have behaved in a manner, “demeaning the office the officer holds” and must bring “honour to the nation and dignity to the office” they hold. Sect 35 of the Leadership and Integrity Act ( not clear if this Act is operational) states: “A person seeking to be appointed or elected as a State officer may not be eligible for appointment or to stand for election to such office if that person has, as a State officer, contravened the Leadership and Integrity Code under this Act or, while serving as a public officer, has contravened a Code of Ethics and Integrity applicable to that officer”. It cannot bar anyone who is seeking the presidency from running, but only those who have been convicted. The Leadership and Integrity Act also empowers the Ethics and Anti-Corruption Commission to bar those seeking to be elected or appointed to office if they have contravened the law. Sect 43(1) of the Act reads: “The Ethics and Anti-Corruption Commission and the responsible commission may, on application by any person, issue a certificate to that person or any other interested person or institution, confirming that a particular State officer is compliant or not compliant with some or all of the provisions of Chapter Six of the Constitution or this Act.” Second, Uhuru run the risk of being impeached immediately after being sworn into office. The Constitution demands that the Senate start impeachment proceedings against the President and his deputy if there are reasonable grounds to believe that they have committed a crime under national and international law. And if the Senate refuses to do so, then any one can petition the courts to do so. In nutshell, it is my view that any candidature of Uhuru for the presidency is still born.
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Post by kamalet on Nov 8, 2012 14:44:56 GMT 3
Hi Sadik
I can see you have been allowed back!! Hopefully you will have a lifespan longer than that of spider!!
I see you correctly dwell on technicalities! But if Uhuru is a state office today and no action has been taken by the relevant authorities to stop him from service as per law for the alleged breaches of the law would it not be selective justice to apply the law when his circumstances change?
As for impeachment by the senate, I highly doubt this is a route that can work if the same lot has a majority in parliament. Secondly, the crimes that are alleged are still in court and have not been concluded as to have them judged guilty or even completed the appeals process. The ICC cases are most unlikely to stop the two from contesting for this reason.
If we stick to technicalities as you prefer, Section 145 (1)(b) states that "..where there are serious reasons for believing that the President has committed a crime under national or international law". Now to apply this section, the crimes need to have been committed when the President is in office as any period prior to his election as president would have been clearly spelt out in Section 137 of the constitution.
I think you are wrong in suggesting that impeachment can be instituted by anyone else but the National Assembly. The senate only confirms the recommendations of the impeachment or otherwise the process having been initiated by the National assembly. The court petition by anybody only applies in instances where the president is being removed under medical/incapacity grounds.
Nothing stops Uhuru/Ruto from being on the ballot...i insist apart from their conscience!
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Post by b6k on Nov 8, 2012 15:56:59 GMT 3
Indeed welcome back Sadik. It's good to have another legal mind on Jukwaa that's not on Agwambo's dime. Stillborn for Uhuru & Ruto works for me their efforts of keeping Raila in a box notwithstanding. It's time for genuine change in KE.
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Post by Daktari wa makazi on Nov 8, 2012 16:15:24 GMT 3
Kamale and b6kI went to Siberia, banished in the unforgiving cold, but I am back. On your your point, Uhuru was appointed DPM before the commencement of the Constitution; hence no action can be taken against him, the provision of the constitution cannot act retrospectively. Vetting of politicians only takes place during elections. I think action could be taken against him today as DPM, if something of substance turns up, and I understand there are court cases to that effect, but that does not mean no action can be taken against him tomorrow. I think the efficiency unit needs to tackle this matter and they should do that before the March elections. That is because Uhuru will need clearance from The Ethics and Anti-Corruption Commission and the Independent Electoral Body before registering as a candidate under Sect 43(1). He will surely not get clearance with the allegation still over him. On the point about committed crime while sitting as a president, I think you are misreading Section 145 (1)(b). It says "where there are serious reasons for believing that the President has committed a crime under national or international law". Has committed is a past tense not necessary during his tenure as a president. It can mean any criminal action he committed before becoming a president. Legally, I think Uhuru is toasted. All these campaigns we see will, in my view, lead to nowhere. He will not stand when the time comes for him to do so. I think he stands a better chance fighting the ICC case without the political bravado. Turning on the ICC, I find their cases are unraveling daily. Prosecutor admitted that she does not yet have enough evidence and was seeking more. Further, I find their activities very weird. I was told sometimes ago that a Kenya judge at ICC addressed lawyers in Kisumu last year. I found the link at the ICC webpage. This was not covered in the national press. www.icc-cpi.int/NR/exeres/3426B1B9-D02E-40C5-9D77-74F144344CC3.htmI find it interested that the ICC has dispatched their Kenyan judge to come to Kenya and hold workshops in Kisumu. May be I am reading too much here and I am sure they would say that has nothing to do with on-going cases, but at this sensitive time, I find that action suspicious. In simple terms, I find it intriguing that a Kenyan judge sent to the ICC by Kenya as a signatory is involved in cases there. To be fair, the ICC judge also held a workshop in Kigali. Thanks for the welcome b6k.
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Post by kamalet on Nov 9, 2012 18:24:21 GMT 3
Kamale and b6kOn the point about committed crime while sitting as a president, I think you are misreading Section 145 (1)(b). It says "where there are serious reasons for believing that the President has committed a crime under national or international law". Has committed [/u][/i] is a past tense not necessary during his tenure as a president. It can mean any criminal action he committed before becoming a president. Legally, I think Uhuru is toasted. All these campaigns we see will, in my view, lead to nowhere. He will not stand when the time comes for him to do so. [/quote] Sadik I do not think that even lawyers would not selectively read the statement as you have done. The subject matter of the section is THE PRESIDENT! So It may be past tense, but needs to have been committed when he was president! That is my argument....and it is based on the fact that there is a vetting process that takes place prior to his election and if he passed that criteria and gets elected by Kenyans, then it can only be a crime committed when he hold office as President! As for the Aluoch workshop in Kisumu, I will refuse to speculate!
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Post by jakaswanga on Nov 10, 2012 0:07:03 GMT 3
I prefer common sense first: suspected of crimes against humanity, you do no run for president. If you do, somebody must tell you to stop joking. There is nobody to tell Uhuruto they can not? then the whole country is a joke, with neither moral fibre nor historical worth. ! Now you lawyers on the board, going on and on about letters of the constitutional about integrity: General David Patreaus, a heavy duty fella if any from the USA army, and until yesterday CIA director, has just asked to be relieved of his duties. Reason: extra-marital affair. Does any of you catch the moral force at work here? or does somebody know a specific act of congress which says you cannot pump butt on the sidelines and run the CIA at the same time? Just to give a hint of how many centuries we, our country, are behind some people's! Even if our CJ went to Oosgoode which should not be half a decade behind Harvard really! Uhuru should not even be parliament! let alone DPM!
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Post by Omwenga on Nov 10, 2012 0:58:00 GMT 3
Uhuru Kenyatta and William Ruto are not barred by the Constitution from standing as presidential candidates in the forthcoming election.It is an error to think that Chapter Six of the Constitution bars them. Articles 73 – 80 thereof are relied upon to exclude them. Closer scrutiny of these provisions is therefore required. Art.73 does set out the guiding principles of leadership and integrity, and the manner in which authority is to be exercised. But it and Chapter Six apply generally only to State officers. “State officers” are those who hold ‘State office’. ‘State office’ is defined as any of certain specified offices. (Art.260). These include the offices of the President, the Cabinet Secretaries (Ministers), MPs, judges, county members, governors, and offices established and designated as such by Parliament. The ‘office’ of a presidential candidate is not included in this list. Nor has Parliament designated it so. As is obvious, a candidacy is not an office and would not attract Chapter Six. As candidates, Uhuru and Ruto are not State Officers. And Chapter Six does not apply to those who might become State officers in the future. Chapter Six does not end there. Its concluding article, Art.80, does allow Parliament to pass legislation to “establish procedures and mechanisms for the effective administration of this Chapter,” (Art.80(a)) and “make any other provision necessary for ensuring promotion of the principles of leadership and integrity referred to in this Chapter and the enforcement of this Chapter.” (Art.80(d)). This could lead to checks on candidates. But the present Integrity Bill does not make significant provision for that. Is it then in violation of the Constitution? The matter is in Court. Art.75(1) is an important gauge for the conduct of candidates. It provides that a State officer shall conduct himself in a manner that avoids conflict of interest between personal interests and public official duties; avoids compromising any public interest in favour of a private interest; avoids demeaning a State office. But an important gauge is not a bar, unless expressly stated to be so. There is no such express statement against candidates. What a large section of public opinion is saying is that if a presidential aspirant, who is charged at The Hague with particularised conduct that both nationally and internationally constitutes grave crimes carrying moral turpitude, persists in standing for the highest office in Kenya, it is demeaning Kenya. By standing, instead of stepping aside voluntarily, he breaches the public trust vested in him not only by our country, but also by all our ethnic groups. And if he persists, despite a large expressed opinion that this is not wanted, then it is also a conflict between his personal interests and the public and national interest. Such candidates are not desirable. This conflict impacts directly and adversely on all Kenyans. It does not benefit its majority. The candidacy in such circumstances is not even for the benefit of the broad mass of the ethnic group of such a candidate. It is for the candidate’s own interests. And those of the small economic and social elite that flatter and batten off such candidacies. It is certainly not for the benefit of other Kenyans. There is already a mechanism in the Constitution to deal with such candidates. It is Art.38. It is to refuse to vote for them. The reason for the vote being the remedy is that it is neither democratic nor desirable that one person or a few persons – whether the Director of Public Prosecutions or the Registrar of Political Parties or one or a panel of judges – decide on whether a candidate is a suitable person to stand for State office. The great mischief that such a situation could give rise to, is obvious. A few individuals cannot disenfranchise millions. It is contrary to democratic principles. It is contrary to the Constitution. It is for the people to decide.Even in the face of the candidates’ subversion through a well-oiled propaganda machine with very deep pockets buying individuals and media and inciting ethnic nationalisms in support. This is fascism. We have to reject both, candidates and such programs. For, at election time it is not a few individuals, not some anti-corruption body, but the public as the electorate, that becomes the enforcer of the values in Art.10, And it is both duty and self-preservation, that we voters reject those candidates for president who, even before they have reached that office, keep violating every value in our Constitution and our traditions.
Source: www.the-star.co.ke/news/article-94589/chapter-six-doesnt-bar-ruto-and-uhuru In an as yet to be published article on this issue, I note the following position I have maintained from since the ICC cases were lodged against the current suspects: First, there is nothing under the current constitution or law that would provide a basis to legally prevent any of the ICC suspects from seeking public office, including the presidency. Given that simple fact, either Uhuru or Ruto who have both expressed interest to seek the presidency are and should be free to do so. That, however, does not mean either men cannot use their common sense and/or wisdom and remove themselves from consideration as a matter of good politics and morality. Should either or both decide to vie, then Kenyans will have to make a choice whether they want to have as our president a person with a hangman’s noose dangling over their heads or one who is not. In Uhuru and Ruto Must Now Suspend Their Presidential Ambitions, omwenga.com/2012/05/24/uhuru-and-ruto-must-now-suspend-their-presidential-ambitions/ that I also posted here and generated some discussion back in May in jukwaa.proboards.com/index.cgi?board=general&action=display&thread=6991&page=1, I noted the following: Indeed, right after the confirmation of charges, the duo [Uhuru and Ruto] embarked on extremely reckless and highly charged “prayer rallies” which had nothing to do with prayer but a blatant effort to incite and plant seeds of discord to further divide the country or even stoke violence. Their actions were condemned by peace loving Kenyans, including the Civil Society one can assume the suspects heard an earful from the ICC they wisely heeded and toned down the rhetoric. Granted, after confirmation of the charges, the duo and the other remaining suspects lodged an appeal challenging the ICC’s subject matter jurisdiction over the cases against the now Ocampo-4. One can therefore assume on probably bad legal counsel from their attorneys, the duo were given the advice they should carry on with their political activities as if the confirmation of charges had not occurred simply because of the pending appeal. Fortunately or unfortunately for the duo, the Appeals Chamber has now unanimously dismissed the appeal, meaning the last hurdle to start trial of the cases against the remaining suspects has been passed. There is nothing now short of a small miracle will stop the cases from going to trial at the ICC. This means in simple, practical terms that Uhuru and Ruto must now stop pretending that everything is hanky dory and instead get serious in mounting a defense against these serious charges they face. It will be the height of arrogance and self-elevation to a level of importance unparalleled in history to demand that the duo should nonetheless be allowed to vie for the presidency notwithstanding these serious charges they each face. There are those who argue, and these two suspects obviously believe in the same and that is, their being barred from vying is a windfall for Raila and his own presidential ambitions. That’s nonsense. Raila’s prospects for being reelected as president actually significantly improve, almost like day and night if the two are allowed to vie and that’s a fact only those who don’t understand Kenyan politics may doubt. Uhuru and Ruto should out of respect of the PEV victims and the unity of our country simply recognize they are in a bad jam they should not drag the rest of the country into their woes. That does not mean they are guilty or that they should be banished. Far from it. As the leaders they claim to be, the duo should simply focus on defending themselves against these serious charges and let the rest of the country focus on electing new leaders. If the two are found not guilty, there will be plenty of time ahead to seek whatever office they fancy and with such an acquittal, it may just be a walk to any of the offices they chose to pursue save for the presidency they still must individually make the case they have the leadership qualities needed to occupy that office. The presidency is not a birthright for anyone. Neither is it an office one must seek regardless of what the constitution says. The constitution sets the minimum criteria and qualifications one must have to be eligible to vie for office, which means one can apply a higher standard and disqualify themselves if necessary. There is no more apt case for such self-disqualification than in this involving Uhuru and Ruto and their quest for the presidency. Both men must rise above politics and put country first and if they do so, there is only one right decision they must reach consistent with anyone with more than deminimis moral values and that is, removing themselves from among those vying for the presidency. It will not be the end of the world if they did so and neither will it be the end of them or Kenya. End quote. I still firmly maintain these positions and would therefore tend to agree with the author in some parts and disagree with many others there is no need to dig into that now. I particularly disagree with the notion that a court or tribunal with proper authority and jurisdiction cannot decide whether or not one qualifies to vie for public office. It can, does, should and must do so.
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Post by kamalet on Nov 10, 2012 8:39:54 GMT 3
I prefer common sense first: suspected of crimes against humanity, you do no run for president. If you do, somebody must tell you to stop joking. There is nobody to tell Uhuruto they can not? then the whole country is a joke, with neither moral fibre nor historical worth. ! Now you lawyers on the board, going on and on about letters of the constitutional about integrity: General David Patreaus, a heavy duty fella if any from the USA army, and until yesterday CIA director, has just asked to be relieved of his duties. Reason: extra-marital affair. Does any of you catch the moral force at work here? or does somebody know a specific act of congress which says you cannot pump butt on the sidelines and run the CIA at the same time? Just to give a hint of how many centuries we, our country, are behind some people's! Even if our CJ went to Oosgoode which should not be half a decade behind Harvard really! Uhuru should not even be parliament! let alone DPM! Jakaswanga You judge the African wrongly and even worse hope he can behave like the American! Americans are a breed difficult to understand when you consider that they actually reacted to a bad debate night to give Romney a bounce! How many times has Kibaki called people mavi ya kuku and we cheered or the number of times Raila has made a political goof and that did not even dent his popularity if Ambitho is one to believe? They say that every African man is potentially polygamous and custom does not frown much when this happens. You should know of course that the wooing period prior to the second or third wife is essentially an extra marital affair! So as I have repeatedly said, the duo would only need their conscience to decide if it is okay to run. Unfortunately like the story told of the library thief who returned a book 50 years later after his conscience caught up with him, I suspect that like the thief, your duo and their conscience are years apart! So take it on the chin like a man and resign yourself to their names being on one of the six ballot papers you will have in your hands on 4th March.
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Post by reporter911 on Nov 10, 2012 21:07:46 GMT 3
www.standardmedia.co.ke/?articleID=2000070335&story_title=Kenya-ICC-rejects-Uhuru,-Muthaura-appeal Uhuru cited expenses for the reason he wants the case to be moved back to Kenya? is this a Joke? does he think the ICC judges are stupid? look at the Millions of compaign $$$$$$$$$ he is pouring all over Kenya from his bottomless Bank account.. Kweli this is hilarious ;D ;D Why didn't Ruto apeal his case to be heard in Kenya together with Muthaura and Uhuru? or they two didn't share their plans of appeal with him or his lawyers are asleep? which is which I wonder..
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Post by Daktari wa makazi on Nov 11, 2012 22:59:14 GMT 3
Kamale and b6kOn the point about committed crime while sitting as a president, I think you are misreading Section 145 (1)(b). It says "where there are serious reasons for believing that the President has committed a crime under national or international law". Has committed [/u][/i] is a past tense not necessary during his tenure as a president. It can mean any criminal action he committed before becoming a president. Legally, I think Uhuru is toasted. All these campaigns we see will, in my view, lead to nowhere. He will not stand when the time comes for him to do so. [/quote] Sadik I do not think that even lawyers would not selectively read the statement as you have done. The subject matter of the section is THE PRESIDENT! So It may be past tense, but needs to have been committed when he was president! That is my argument....and it is based on the fact that there is a vetting process that takes place prior to his election and if he passed that criteria and gets elected by Kenyans, then it can only be a crime committed when he hold office as President! As for the Aluoch workshop in Kisumu, I will refuse to speculate![/quote] KamaletYou surprise me. You accuse me of selective reading, when it is you who practice the same many a times! Nowhere in the section mentioned, above, does it say the past crimes must be committed when the subject is a President. The bottom line is I think the argument put forward that the Constitution does not stop Uhuru from standing for the presidency is not true. The constitution requires that any state officer to be a person with integrity. Those who offer themselves to such office by way of election must certify to body formed under the Constitution - EACC - that their integrity is beyond reproach. If there are allegations, investigation must be pursued. Where criminal allegation are live and before a court, it is only when such allegation are cleared, can that person be certified for election. No impression of political shadow boxing will circumvent that requirement. I wonder how Uhuru will jump that hurdle, even if we ignore the other provisions? Innocent till proven guilty does not wash. “Be ye ever so high, the law is above you”. This is a saying so engrossed in any lawyer's mind, some sing it in their sleep! My point is the final arbiter is a court of law. For example, in the integrity of Kimunya, Ndung’u and Kinyua which is being challenged in High Court over their involvement in a questionable deal between Treasury and money printing company, De La Rue Company, there is a real chance the Court will find that they have failed the 'integrity' test. After all, the High Court judge who heard the preliminary issues agreed that there was valued case with prospect of success to forward it to the CJ to constitute a Bench of 3 to hear it's substance. The High Court will interpret the Integrity provision and form a view. If it goes against the three fellows, I think, we can certainly say Uhuru's presidency is toasted. In my view, Uhuru with ICC charges hanging over him stands no chance, save a coup where constitution order of the country is suspended. That is why I suspect the ICC hearing after the election was a disaster. As for Alouch and her little workshop, I am merely highlighting it as a factual occurrence. The motive of the workshop will remain with the participants. Nothing to speculate about, there.
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