BY:FWAMBA NC FWAMBA..THE CONSTITUTION UNDER ATTACK

MR PRESIDENT,THE NEW CONSTITUTION IS UNDER ATTACK. By Fwamba NC Fwamba.................................................................... When we campaigned, voted and promulgated the constitution on 27th August 2010, president Kibaki and other government officials took fresh oath of office. Unlike the rest of the leaders, protection of the constitution was part of the presidential oath and responsibility. That is why he holds an extra burden of ensuring that our constitution is adhered to at all times. The walk to attaining the constitution was rough in the history of this country and therefore it was a sigh of relief to majority of Kenyans especially those who suffered under Kanu’s monolithic dictatorship. Our constitution is not yet one year old and there appears to be serious confusion caused by various interpretations of the law by diverse individuals and non governmental organizations. The constitution Implementation Commission which is entrusted with overseeing the process of implementing the constitution appears not left behind in the creation of this confusion. Every time the chair of the commission speaks, it vividly comes out that he is trying to express his personal opinion as opposed to making utterances that are reflective of the constitution and the mandate of the CIC. In the recent past, there has been a spirited campaign through the media with people lobbying for their preferred candidates to take up the position of the Attorney General. Most notable is Professor Makau Mutua’s article in the Sunday nation 24th July 2011.Professor Mutua, a man with enviable academic credentials in law decided to give his opinion on the basis of his preferences at the expense of making true references to the constitution. Professor Mutua presented the cv of his preferred candidate to the wrong audience. Article 33 of the constitution provides for freedom of expression. Section 2 of the article 33 of the constitution also states that freedom of expression does not extend to propaganda. The article reminds me of a phrase that the ‘right to be heard does not necessarily include the right to be taken serious’. In his piece, Prof Mutua wants the current Attorney General to be out of office with Godspeed which I consider a good idea but unnecessary. Unnecessary because the constitution already provides for the same; that Wako’s tenure officially expires on 27th of August and thus its expected that by the deadline, we will be having a new Attorney General to help speed up the reform process as provided for in the constitution. Prof Mutua with disregard to the constitution has abrogated himself the role of determining the procedure, short listing and finally selecting the person he thinks is best suited to be that Attorney General. He has gone ahead and even suggested that president Kibaki and Prime Minister Raila Odinga follow his procedure and eventually appoint Prof Mutua’s choice. That is ridiculous. It’s ridiculous in the sense that the constitution is already very clear on the requirements and procedure of appointing the Attorney General. What Prof Mutua should do is to advise his preferred candidate to present her CV to the appointing authority. The leadership of this country was elected based on people’s judgment and the powers given to any leader by the constitution cannot be usurped by mobs or people with vested interests. Article 156 section 2 of the constitution clearly states the process of appointing the Attorney General. The article states ‘the Attorney General shall be nominated by the president and with the approval of the national assembly, appointed by the president’. It’s our constitution that gives the president and the national assembly the role of appointing the Attorney General and that must be respected unless if we are advocates of anarchy. I am surprised that well trained lawyers want to push us into violating the constitution instead of playing a cardinal role in providing accurate constitutional civic education to correctly help ordinary Kenyans in interpretation and understanding of the same. The opinion leaders might be having diverse interests and wishes. It must be recognized that the national assembly was given a role in the appointing process because the members of parliament represent the electorate and the general Kenyan population. No one else can purport to be a more legitimate people’s representative than the parliamentarians who have direct mandate from the masses. Recently another debate came up from the same clique that the Attorney General should be a woman. I have gone through the constitution many times and I have not come across such a provision. They appear to be relying on the principle of having at least one third of every institution represented by women. This notion appears to be totally misguided because the Attorney General’s office only has one person and therefore the issue of gender doesn’t arise. Gender activists and other foreign interests have been in arms in advocating for this kind of arrangement. The person to be appointed the AG should be either gender as long as the person has integrity and with the best qualifications in respect to the constitutional requirements. The Commission on the Implementation of the Constitution, the Civil Society, legal scholars and all other stake holders should try as much as they can to help Kenyans in understanding the law instead of taking advantage of their credentials to mislead Kenyans. We also need to delink the process from the interests of international non governmental organisations whose interests are not necessarily in tandem with the ordinary Kenyan citizenry. The appointment of the Attorney General should be done according to the constitution because the constitution serves all of us as opposed to the NGOs that serve sectarian interests. It’s important that we uphold the rule of law under which sometimes we gain and sometimes loose so that others gain. That is what happens in a democracy. If we don’t adopt this principle, the country might start falling victim to a new dictatorship; a dictatorship of some egocentric civil society functionaries. Fwamba NC Fwamba Box 41046-00100 Nairobi +254721779445

Will Raila Odinga be our Gandalf?

Arrows and shields .................................................................................. BY FWAMBA NC FWAMBA .................................................................................. In the Prof J.R.R Tolkien’s fantasy trilogy; The Lord of the Rings, the role of one character Gandalf the grey, who later becomes Gandalf the white is very conspicuous. Gandalf belongs to the group of wizards, the wisest and most knowledgeable creatures in the middle earth. Unlike Saruman; another wizard who attempts to get the ring of power for himself, Gandalf sticks to his mission of helping the middle earth rid itself of the ring of power by helping in assembling and leading the team to destroy the ring of power in the same chasm inside the crack of Mount Doom where the ring was forged. The ring of power has a history of bringing down great leaders and kings including Isildur; whose heir is Aragorn camouflaged as Strider carries the duty of reinstating Isildur’s lost glory. Gandalf’s efforts to inform Saruman about The whereabouts of the ring turns out to be a calamity for its later discovered that Saruman has defected and joined Sauron; the dark lord to claim the ring. The ring is in the shire, the land of the Hobbits. Gandalf is faced with the challenge of ensuring that the ring is destroyed before his former ally Saruman or the main antagonist Sauron land their hands on it. Kenya is a county at the crossroads now. The political challenges that face us to day are akin to the conflicts that bedeviled the middle earth. Kenyans have attempted for long to bring about change. All efforts have been futile because of the greed of the leaders that have hypocritically come together in the name of destroying the establishment of impunity and corruption have ended up being corrupt and unreliable. They have always instead just like Saruman been converted and become allies of impunity and subjects of the same ills they purported to oppose. Kenya has gone through turbulent waters since the days of colonialism. Every political step in Kenya has been a make believe to the Kenyan masses that time for national redemption has finally come. The chronology of the Kenyan leadership starting from colonialism has always been a disappointment. In Kenya’s war for independence, the freedom fighters fought to return the land that had been taken away by the British colonialists. When freedom was finally granted, the country was optimistic that with an African leader all Kenyans were going to have better lives with equal opportunity to access education and resources compared to the previous regime which had been oppressive, racist and discriminatory against Africans. It emerged that their celebrations were in vain for the new African establishment became no different from the practices of the British colonialists. Fertile lands that had previously been taken by the colonialist were then taken over and shared among the African leaders that had taken over the reigns of power. The ordinary Kenyan who had fought so hard for independence became a disappointed person. It emerged that those who were landless during the colonial period remained landless; those who were lucky got small portions of land where they stayed as squatters. It was not forgotten that those who had taken power led by Jommo Kenyatta had claimed that they wanted change for an ordinary Kenyan African who was lacked opportunities because of racism and other forms of discrimination. It was evident that the African government substituted terms but continued with the oppressive ways of the colonialist. It was not lost to Kenyans that terms like racism were replaced with tribalism. Settlers were replaced by African land grabbers. It’s known to Kenyans that it was under the African regime that those who spoke out their mind like Pio Gama Pinto, Tom Mboya, Argwings Kodhek and JM Kariuki had their lives cut short because of having alternative views on governance. In 1978, Moi became president and people who had witnessed Kenyatta’s misuse of power and practices of tribalism thought that with change in the leadership, things were going to be different. It however turned out to be more disappointing that Moi declared that he was going to ‘fuata nyayo’(follow Kenyatta’s footsteps).Under the nyayo era, Moi perfected the art of tribalism, corruption and impunity. Under Moi’s leadership, democracy was crushed and detention without trial; a law that had been put in place under Kenyatta’s regime became more effective than ever. It’s during the Moi era that many pro democracy activists and university student leaders like Tito Adungosi and Wafula Buke were jailed over trumped up charges. Many activists disappeared without trace. It’s during this same regime that saw Kenya’s first Vice President and doyen of opposition Jaramogi Oginga Odinga was put under house arrest. Under the same regime more political assassinations and mysterious deaths occurred. It was during this regime that Bishop Alexander Muge, Dr.Robert Ouko and many others died under suspect circumstances. The atrocities committed under the Nyayo regime saw progressive politicians like Jaramogi Oginga Odinga, Ahmed Salim Bahmariz, George Nthenge, Masinde Muliro, Philip Gachoka and Martin Shikuku to team up and form the Forum for the Restoration of Democracy (FORD).It was a new dawn for Kenya when after pressure from the international community Mr.Moi repealed section 2(a) of the then constitution of Kenya which ushered in multiparty politics. Greed engulfed the country, for every politician saw an opportunity to ascend to power since Moi was very unpopular. Many opposition parties were formed. After the mysterious death of Masinde Muliro at the Jommo Kenyatta International Airport three months to the general election, Ford split into two factions Ford Kenya which was led by Jaramogi with headquarters at Agip House and Ford Asili that was led by Kenneth Matiba that moved their headquarters to Muthithi House (now Occidental plaza), the Democratic Party (DP) and the Social Democratic Party were formed and registered. Young people like Ruto and Jirongo saw an opportunity to become politically relevant. They formed Youth for Kanu 92’ thereby saving Moi’s regime from extinction by mobilizing the youth vote. The divided opposition driven by greed for power lost to Moi. The same situation was repeated in 1997.The opposition fielded many presidential candidates who included Mwai Kibaki of the Democratic Party, Michael Kijana Wamalwa of Ford Kenya,Raila Odinga of National Development Party and Charity Ngilu of the Social Democratic party. The opposition lost again and the country continued wallowing in the culture of impunity. With new wisdom acquired from lessons in the past election losses, in 2002,the opposition united to defeat Moi and his ‘project Uhuru’.The optimism of Kenyans was renewd.Most Kenyans believed that with the exit of Moi, the country had been saved from all the ills that we had fought against. That was never to be for after one year, the government was grappling with corruption allegations. A mega scandal akin to the Goldenberg that had occurred during kanu’s dark days happened; the Anglo Leasing. It dawned to Kenyans that the greed for power and wish to occupy Moi’s shoes was the driving force for the opposition unity. Kenyans discovered that it was greed for power and money and not good governance that had caused the opposition to unite to defeat Moi and ‘project Uhuru. In 2007, it emerged that both the incumbent led by Mwai Kibaki and the opposition led by Raila Odinga had been in government. It was declared to be the mother of all battles. The tight race between the two presidential candidates led to a disputed result. I contend that Kenyans didn’t know what the post election violence was all about. It was about greed for power. 2012 is beckoning and we face the same challenges that Kenyans don’t have a leader who wants to create a respectable state. Kenya needs a Gandalf like figure who will not get entangled into power struggles. Kenya needs someone with an opportunity to be president but because of being selfless will choose not to seek presidency, but will assemble a new generation of leaders who will ensure the country has a new beginning. Kenya needs someone to sacrifice, someone who is above temptations for power, someone with the interest of the nation at heart. If Moi and old Kanu establishments represent Sauron and Kibaki is Saruman, is Raila going to sacrifice his presidential ambitions and be our Gandalf?

PHILO IKONYA AND JACOB ODIPO RELEASED-NO CHARGES

In The Photo,Advocate Mbugua Mureithi and Philo Ikonya(in a sackcloth) outside the Kibera law courts moments after Mbugua Mureithi argued out successfully and the magistrate ruled that Jacob Odipo and Philo Ikonya had been unlawfully detained.Looking on is Tariq Jeptebkeny(in the background). picture by Gacheke Gachihi. -- Dear fellow Kenyans and friends of Kenya, This morning, Philo Ikonya and Jacob Odipo appeared before Magistrate Ireri in Kibera Law courts to answer to charges brought against them for allegedly participating in an unlawful assembly. They had been arrested yesterday while demonstrating outside Integrity House in protest of the re-appointment of Aaron Ringera. The two have today been released by Magistrate Ireri since the charge sheets produced by the prosecution were improper for not citing the relevant section of the penal code under which Philo and Odipo had been held overnight in custody. Thank you for any way in which you supported Bunge la Mwananchi in this regard. We urge you to continue to be heard as we speak and act against the culture of impunity in Kenya. Your voice counts. Sincerely, George Nyongesa Bunge la Mwananchi PO Box 456, 00606, Sarit Centre, Nairobi Webiste: www.bungelamwananchi.org Alternate Email: mwananchibunge@gmail.com Tel: +254 720 451 235 THEY WERE REPRESENTED AND THE CASE WAS COMPETENTLY ARGUED OUT AND WON BY LAWYER MBUGUA MUREITHI