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ICPC LAUNCHES SHADOW MONITORING REPORT ON KENYA’S TRUTH SEEKING PROCESS

Tuesday 25th June 2013.

The International Center for Policy and Conflict finally released its shadow monitoring report of Kenya’s Truth Seeking processes. The report titled Concealing the Truth to Reward Impunity: A critical Analysis.

The Launch marked the end of a journey that ICPC has travelled since the year 2008 when it began its engagements on Truth Seeking processes in Kenya. ICPC also went ahead and played a critical role in critiquing and informing processes around the formulation of the Truth Justice and Reconciliation Act. In 2009 the Center conducted major advocacy around the recruitment of the commissioners and made recommendations around suitability of certain commissioners. Later, ICPC began its monitoring project of Truth Seeking Processes in Kenya and through its grass root partners, monitored the activities of the Truth Justice and Reconciliation Commission (TJRC) in various counties and at the national level. The culmination of these engagements and monitoring is the Shadow report.

The launch was opened by ICPC’s Deputy Executive- Director Paul Mwaura who made opening remarks by giving an over view of the process of truth seeking in Kenya and the various interventions by the Center. He then yielded the floor to the Executive Director who read his speech. The main message that he put across in his speech was that of reconciliation and accountability through prosecutions of culpable individuals. He observed that “To such victims reconciliation is an empty word; they feel they are being ridiculed. The culture of impunity constitutes a serious disregard for the dignity and rights of the victims. The people of Kenya have gained the impression that the treatment being meted out is unequal”.

He concluded by stating that even though the official TJRC process is over despite the glaring flaws it would only be appropriate for the relevant government agency to release the report as it is part of Kenya’s official public records . It is the right and lawful thing to be done in accordance with the TJRC Act.

He concluded by saying that The TJRC was expected to be the coalescing platform for Transitional justice agenda in Kenya. However, it has taught us that Kenya’s political elite remains uncommitted to credible and independent transitional justice processes. The elite usually capture legitimate processes and then manipulate them. It has emerged that state influence on these processes is negative. Civil society remains the vanguard of creating, driving and implementing serious transitional justice processes and another lesson flowing from TJRC process is the positive and important role of international actors in promoting credible transitional justice processes in the absence of political will at the national level.

Dr. Thomas Obel Hansen was the next Speaker who run the participants through the various sections of the report. He begun by outlining the methodology of the report and the whole monitoring process. He noted that the report looks at the antecedents to the process and the entire process. The process involved desktop research, field studies, data collection during the statement taking and hearing process. He also described the structure of the report which starts with an Introduction, the Concept of a Truth Commission, an Overview of Kenya’s TJRC, the main body of the report which focuses on Analysis and Critique of Kenya’s TJRC and the processes of Truth Seeking, the Context of the TJRC. He concluded by stating that the report concludes that TJRC presented an window of opportunity for addressing some of the Central causes of human rights abuses and injustices in Kenya. The opportunity was lost in many aspects due to the political context in which the commission operated in. The Country needs to invest in solutions to achieve a more peaceful and just country.

The Last and Speaker and Key Note address was from Betty Murungi former TJRC Vice Chair Person and Commissioner. She made several observations on the process and the various challenges that they were facing. She noted that the government first starved the TJRC of funds, seconded officials who were suspected to have been intelligence operatives declined requests for information most of the documents that the commission ever used were obtained through extra legal means. The tribunal that had been also set up to investigate the Chair Person was also sabotaged before it even begun its work since their term ended and was never renewed.

She remained optimistic that there are positive aspects of the TJRC report that can be salvaged. She posed the question why nobody was going to court to demand for the original report that was ready by 3rd May 2013. She also welcomed ICPC’s observation on the process and noted that it was a positive contribution to the discourse. She recommended for civil society to engage in the budget making process to ensure that there is allocation of funds for implementation of the TJRC Report recommendations.

The Launch was concluded by the unveiling of the report. This was presided over by the Chief Guest Ms. Betty Murungi and ICPC’s Executive Director Mr. Ndung’u Wainaina.

This summary is compiled by Juliet Kamau who is a Lawyer and the Assistant Programme Associate at the International Center for Policy and Conflict.

Lack of Enforcement of Laws major threat to a Clean and Healthy Environment

Today June 5 2013 marks the World Environment Day, a day that has been set aside by the United Nations Environmental Programme on the need to take positive environmental action. This year’s theme is Think Eat Save. Everyone is encouraged to reduce food wastage and loss to reduce the every individual’s food print. The UN Food and Agricultural Organization says that 1.3 billion tonnes of food is wasted the irony of it all being that this amount of food lost is equivalent to  the amount of food produced in Sub Saharan Africa  with Kenya being no exception .

Every year the country experiences floods and later severe drought spells undermining food production leading to starvation among sections of the citizenry. This points to poor management, forecasting and contingency planning on the part on the part of the government. Plans need to be put in place to mitigate against adverse climatic conditions and to prevent environmental degradation.

This year’s Environment day comes at a time when the Constitution is facing serious challenges in its implementation more so Article 42. This article entitles every person to a clean and healthy environment. This includes the right to have the environment protected for the benefit of present and future generations through legislative and other measures. Chapter five of the Constitution focuses on Land and Environment since it is the source of life for all Kenyans. The Environmental Management and Co-ordination Act in section 3 also echoes word for word the provisions of the Constitution by giving every person in Kenya a clean and healthy environment. Any person is also entitled to move to court to enforce their right to a clean healthy environment in accordance with Section 4 of the Environmental Management and Co-ordination Act and Article 22(1) when their rights have been violated. The Judiciary has also established a court to adjudicate specifically on matters of Land and Environment.

Almost three years down the line the status quo remains the same with the Country having no effective waste management systems in many of its urban areas. The Urban and Cities Act in section 5 it describes a city as a having capacity for functional and effective waste disposal. The deplorable environmental conditions at public places poses serious health risks to the public thus undermining the constitutionally guaranteed right to life for all persons. Raw sewer emitting freely by the road side next to the Muthurwa Housing Estate, the illegal dumpsites along the Muthurwa and Marigiti Market and in Mombasa City at Kibarani area between Makupa causeway and Changamwe roundabout, Kisimani-VOK along the Malindi Highway area are just glaring examples of the state of neglect and degradation the environment is facing. Our country still continues to experience illegal loggings leading to the sharp decline in our forest cover which now stands at between 5 and 6 % the country needs to work extra hard in order to attain the recommended 10% .

In low income residential areas every person has to become accustomed to a fashioned walking style to evade the massive pools of what are clearly not fresh water streams. This can be attested by the statistic that about 70% of people in Nairobi live in deplorable and squalid environments especially in the informal settlements. If we were to strictly adhere to the conditions stipulated in the Urban and Cities Act then Nairobi and Mombasa would not qualify to be called cities as clearly their waste management systems fall way below the mark. This continues to occur under the watchful eye of the National Environmental Management Authority. This Statutory body is funded by tax payer’s money yet it fails to effectively carry out its mandate.

The law is very clear and seeks to punish those caught polluting the environment through the polluter pays principle. The principle means that the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, and cost of beneficial use lost as a result of an act of pollution and other costs that are connected should be paid or borne by the person convicted of pollution. This notwithstanding there has been no prosecutions in our courts of perpetrators found to be polluting the environment or any compensation for victims of the same.

The recent demonstrations in Istanbul Turkey to save a park from development by their government reminds us all that all persons need to remain vigilant and demand protection of their environment by the government .This reminds every Kenyan to be thankful for the likes of the Late Prof. Wangari Maathai who stood her ground and fought plans by the Moi regime to put up a multi storey building at Uhuru park setting the standards of environmental preservation so high.

As we move towards devolving our governments bringing services and power closer to the people there is need for more awareness at the County level on the need for the protection of the environment. This is in cognizance of the County government in Schedule 4 of the Constitution being given the role to provide refuse, waste disposal services together with the all important role of control of pollution.

There is need for revision of the Environmental Management and Co-ordination Act to ensure that it is in line with devolution in order to have harmonious coordination with the various county governments. NEMA needs to give a clear strategy on how it plans to devolve its services to the counties in order to have a clean and healthy environment at the Counties. There needs to be constant public information and awareness on the environment, the duty bearers and the enforcers to avoid the constant shift of blame between NEMA and County governments.

The county governments need to come up with agricultural policies that reduce food wastage in order to have more food security. This will protect the people from the freedom of hunger and want and ensure sustainability of economies by increasing sources of county revenue through increased agricultural activities. The time is now we must all remember the duty to protect our environment starts with us for the sake of our current and future generations.

 

Juliet Kamau is a Lawyer at the International Center for Policy and Conflict ICPC.

 


[1] <http://www.unep.org/wed/theme/>.

Whats your excuse?

Every day our media stations are dominated with politicians campaign trails and promises to Kenyans on what they will do once elected. But have you sat back and thought through it all?

Take prime minister Mr. Raila Odinga, he is in the government, second to the president, meaning he as the presidents own the current government, so how come he is promising changes and reforms which he is not implementing now?

Mr. Uhuru Kenyatta is the deputy prime minister so is Mr. Mudavadi, are they not the government? What have they done now in this government that makes them promise Kenyans things when they are in “their government”?

Mr. Ruto, Peter Keneth, Eugine wamalwa areor were ministers in the government, what have they done(did do)  in their ministerial positions to grant them rights to promise Kenyans reforms? If you cannot spearhead a change at a lower management level will you manage at a bigger level?

This is not a political statement trying to campaign for any candidate but a meditation piece for Kenyans to realize that the crop of politicians do take us as dimwits who cannot think beyond individual sense to reach common sense.

It would be reasonable for the candidates outside the government to make promises since they haven’t been in positions to implement or advocate for any positive change.

Any laws, reforms agenda and bills drafted or passed has been through these politicians promising us a different life once elected. But are we so blind to see they are responsible for our current congeliated systems? Are they not the reason we butchered each other in the aftermath of the last general elections?

What has changed? Do you think just because they are sitting down and dining together the people at the grass roots are doing the same? If their alliances do not work will we not be forced to taste a worse state of violence than we had?

A question one never asks, are we the only nation to have many ethnic groups? Of course not, but rather than embracing our cultures as a stronghold for norms and morals, the same individuals makes us believe it is the source of violence and other  acts of injustices, but is it? Why wouldn’t I stand proud to belong to a certain tribe?

When are going to realize that we have been brain washed so as to turn against each other in benefit to the same persons? Ever asked yourself what really changed after the massacre that followed the general election of last? Did any of the people we were championing for lose a family member, wife, husband, child, brother or sister or personally suffer any harm? Or who were faced to live without their loved ones once they suffered horrible deaths, forced to bury our own who died before their time?

Why is it that none of them calls for a reflections of past injustices, search for truth or advocate for justice to be implemented?

We as Kenyans have been changing individuals other than the system, subjecting ourselves to the same kind of corrupt government practices, failure to honor human rights and rule of law by the same individuals.

It is time to say enough and enough, stop letting these politicians in our places of worship to preach hate and peace at the same time, let them come as part of congregations and politic after. Let them address their past before they can promise us about the future, let them acknowledge their failures which they are allowed to have, they are also human.

But this is about us Kenyans, are we going to subject ourselves to the same or are we going to advocate for systems that are going to change our lives??

Time is now!

 

Court ruling on Matemu shut door for those with Integrity Questions

By Ndung’u Wainaina

A landmark judgement of the High Court of Kenya disqualifying Mumo Matemu from heading the Ethics and Anti-Corruption Commission is one of the bright shades in an otherwise politically polarised year.

This ruling made three critical determinations: It reviewed the powers of the Judiciary toward the actions of Parliament and Executive demarcating the separation of powers of three arms of State; asserted role of courts in reviewing appointments made by the Executive and Parliament; and completely settled the integrity or suitability standards to hold public office. The ruling dealt a fatal blow to the watered down Leadership and Integrity Act 2012 passed by Parliament. The judges strongly indicted Parliament and Executive for lack of judicious rigour and thoroughness in performance of public duty.

Reprehensibly disgusting individualistic interests in the Executive and Parliament have dominated the year 2012. Individuals expected to hold public office and act in trust have been callously deploying retrogressive hurdles to frustrate public interest. It has also revealed worrying levels of overrated sense of self-importance where despite clear guiding constitutional principles and values, and public outcry the Executive and Parliament have collectively demonstrated little sensitivity.

The fatigued route taken has been to justify procedure over substance in purported compliance with the Constitution. Right from the sacked judges who despite being deemed unfit for office months ago and even losing their appeals, still unjustly draw their salaries partly because for some weird reasons, the President has refused to gazette their sacking. The refusal to withdraw ‘County Commissioners’ and the disguised postponement of police reforms when insecurity is at its peak, cap the year when every conceivable reason has been advanced to slow reforms.

For Parliament, I will not waste my time to enumerate its countless efforts to entrench impunity. It has proven to be the national hallmark of shame and embarrassment as MPs’ desire for self-fulfilment comes first to national patriotism. In all these situations, the erroneous assumption is that the individual nominees to public offices and/or public servants do not have corresponding duty to withdraw their candidature or position honourably allowing the country to move on. In fact, individuals cling to office defiantly raising questions on their fitness to serve in public office. In recent history, only Justice Smokin Wanjala had the audacity to leave KACC honourably.

On the political scene, we have purported presidential candidates contesting the presidency despite having international criminal charges being formally confirmed against them. Many others join them across all parties with known corrupt backgrounds and some currently facing all sorts of investigations and criminal prosecutions.

The common denominator in the examples above is the artificial quagmire of finding a balance between ‘individual rights’ and ‘the public rights/interests’. Article 50 (2) (a) of the Constitution guarantees ‘presumption of innocence’ whatever the circumstances. It also sets limitations on situations where the ‘public right’ to a leadership of integrity, honesty and unshaken probity is superior to ‘individual right’ dictated simply by personal aspiration to assume certain public office.

In the Matemu case, the judges had this to say on ‘presumption of innocence until proven guilty’; “Kenyans were very clear in their intentions when they entrenched Chapter Six and Article 73 in the Constitution. They were singular aware the Constitution has other values such as the presumption of innocence until proven guilty. Yet, Kenyans were singular desirous of cleaning up our politics and governance structures by insisting on high standards of personal integrity among those seeking to govern us or hold public office”.  It is therefore grossly repugnant to insist on having unbridled right to contest or be appointed to an office in the public service even with unresolved ethical and integrity issues. It is a clear signal of lack of regard for the Constitution and reputation of the country, and respect for the people of Kenya. Upholding and adhering to the principles enshrined in Chapter Six is an obligation. I have argued severally, sometimes on the face of misdirected threats that the country cannot afford to trivialise questions of integrity if it wants to realise economic goals. However, many have chosen the palliative convenient path of ethnic bigotry.

In setting aside Matemu’s appointment, the Judges declared “...to our mind, therefore, a person is said to lack integrity when there are serious unresolved questions about his honesty, financial probity, scrupulousness, fairness, reputation, soundness of his moral judgment or his commitment to the national values enumerated in the Constitution”.

To show seriousness they emphatically concluded ‘...In our view, for purposes of the integrity test in our Constitution, there is no requirement that the behaviour, attribute or conduct in question has to rise to the threshold of criminality. It therefore follows that the fact that a person has not been convicted of a criminal offence is not dispositive of the inquiry whether they lack integrity or not.’

The judges could not have been more accurate on the overriding values of the country. It is a position already practiced in all major self-respecting democracies where people withdraw at the slightest credible attack on their character. Of importance is the fact that the judgment challenges all public institutions to embrace national ethos and stand by the Constitution.

The IEBC must stand up and defend the Constitution as its duty to the country. Commissioners are bound by the Constitution and do understand the country’s history and desire for clean politics.  They certainly know that Kenya belongs to all of us and none has unqualified birthright to any office. The unequivocal public condemnation and reactions to Embakasi MP’s outbursts firmly confirm that majority of Kenyans already crossed the line in upholding Chapter Six.

Democracy is more than mere holding of elections

In a few months time, Kenya will hold its elections.  The challenges it is likely to face are two: guaranteeing credible, democratic and secure elections reflecting the will of people; and elections that improve the quality of democracy and strengthening democratic governance with all actors respecting democratic system and rule of law.

These elections will either transform Kenya’s future or plunge it headlong into great suffering.  Kenya is the best example of a country whose transition is embryonic yet fragile and fraught with enormous challenges. Kenya is faced with a problem of policy and implementation gap manifested in development of policies inconsistent with the developmental challenges, structural and institutional weaknesses and political commitment to state transformation and equitable development.

Looking into the future, the main challenge will be the ability of the State to govern according to democratic norms and values protecting civil liberties of citizens, state competence and capacity to redress the grievances of citizens, responding to their needs and creating avenues for them to participate in governance matters; and deepen state’s commitment to social spending and development.  To overcome these challenges and meet the obligations, State has to be capacitated and strengthened through its organs and institutions.

Currently, the country is being confronted by four scenarios: a harmonized, unified and secure nation with transformed economy and democratic governance; hobbling country with little beak from corrupt and impunity-driven culture and ethnicized politics; worsened status quo where a corrupt and vicious government get elected to secure corruption and impunity protection; and pseudo-military arrangement regime where Constitution is trashed or thoroughly amended.

There are clear signals that the country might have elected a government with tendency to maintain its authority through undemocratic means. It might try to amend the Constitution in its favour and also attempt at undermining the independence of the legislature and judiciary. With such signals, democracy cannot therefore be reduced to the mere holding of elections. It requires efficient, transparent and equitable public institutions as well as a culture that accepts the legitimacy of political opposition and recognizes and advocates for the rights of all.

Democracy has to be conceived not only as a political system but also as a system of governance that permits greater public participation and creates a favourable environment for widest society’s participation in decisions that affect its development.

The increasing frustration at the lack of equal opportunities and high levels of inequality, poverty and social exclusion is being expressed constantly through socio-political violence. Citizens are losing confidence in the political system which threatens the stability of the democratic system itself.

We have to frame democracy as valuable in its own right but tied to human development so that it provides the right framework for creating opportunities for political and social participation, particularly for the most disadvantaged. Thus, democratic governance is a key condition for human development.

Since 1992, progress has been made in holding of elections and institution-building. However, serious deficiencies remain in terms of the control citizens are able to exercise over the actions of the State. Political parties are deeply distrusted as representatives of the people posing a substantial challenge to the deepening of democracy.

The situation of human rights has improved when compared with the undemocratic period. And although national laws related to human rights have been promulgated, there are still some areas of weaknesses. Addressing respect for the right to life, to humane treatment, to security, and to non-discrimination has been uneven and inadequate.

Deepening of democracy therefore requires a significant expansion of social citizenship. We need to invest more in tackling poverty and inequality and creating high-quality employment in order to expand economic growth. Despite the progress made, it must be recognized that in terms of the progress toward democracy, economic and social dynamic, Kenya is still experiencing a precarious period of change. The country is entering a period of transformation both in the content of democracy and in its links to the economy and social dynamic in a global context.  This global space is characterized by change, concentration of wealth and increasing internationalization of politics.

Public opinion surveys and the opinions of the various pollsters recorded in the recent past coincide both on the need to recognize that the country is experiencing a period of transformation and crisis and on the need to value the true meaning of politics, namely, its capacity to create options for promoting new and viable collective projects. At the heart of this convergence is the empowerment of citizens.

The starting point for the strengthening of democracy lies in giving new value to the content and relevance of politics. The solutions to the problems and challenges of democracy would have to be sought within the democratic institutions and a constructive role restored to politics as the instrument that organizes the decisions of society and increase participation by citizens.

In order to make this sustainable, it is essential to promote politics that provide options, harnesses intentions and permits democratic empowerment. Politics is precisely the force that can create autonomous space. A key proposal is to build a new legitimacy for the State. There can be no sustainable democracy without a state that is capable of promoting and guaranteeing the exercise of citizenship. With a weak and ineffective state, hopes are limited to the preservation of electoral democracy. A citizens’ democracy requires stability in order to guarantee the universality of rights.

It is necessary to continue to consolidate democracy as a system and to create space for greater civic participation, with special emphasis on an active role for civil society. This encompasses an approach substantially greater than that of a mere political system and its institutional rules. Integral participation of citizens means that today’s citizens must have easy access to their civil, social, economic and cultural rights and that all of these rights together comprise an indivisible and interconnected whole.

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