Our Current Reaction to Govt Statements and Political Commentary

Tribe 2

And yet, we’re the same guys that trash talked Kalonzo Musyoka for profiling a journalist on tribal grounds. Truth be told, we are not very different from Kalonzo.

The question we should all ask ourselves before and after reading an opinion piece or listening to a government statement is: Am I already biased  in my current political views or is the statement/opinion biased?

Or as one drunkard would ask another: Am I blind or did someone turn off the lights?

Check yourself.

Anglo Leasing Contracts: Law Society’s Case Against the Office of the Attorney General of Kenya

gado cartoon amicus corruptiae mortician AG Githu

“The man you see before you is the mortician. The patient died on the operating table a long time ago.” – The Hon. Attorney General, Prof. Githu Muigai, SC, on Anglo-Leasing cases.

Earlier this month, the Law Society of Kenya (LSK) went to the High Court of Kenya in the case of Law Society of Kenya v Cabinet Secretary Treasury & The Attorney General [2014] eKLR seeking conservatory orders restraining the Government of Kenya from making payments to Universal Satspace (North America) LLC pending hearing and determination of the LSK’s case against the Executive Branch. Many will recall that Universal Satspace is one of the entities involved in the now infamous Anglo Leasing Contracts under investigation by the Ethics and Anti-Corruption Commission (EACC). However, Majanja, J sitting in the High Court declined to grant the interim orders sought by LSK. In this ruling, the court defers to the Legislative Branch’s oversight authority over national revenue and expenditure.

Folks, there you have it: separation of powers at work!

This past week, the Executive Branch defended its decision to pay KES 1.4 Billion in one single payment to one single bank account to settle debts with respect to “security contracts” with two entities, Universal Satspace and First Mercantile Securities Corporation. The President, the Treasury and the AG have maintained that paying the colossal sum all at once was the only way the country could secure an urgently needed Euro bond or otherwise risk cutting back on government expenditure, service delivery and programmes for Kenyans.

In between time, LSK decided that it would take action against its members: P.105/1421/85, P.105/2913/95 and P.105/1434/85, also known as Prof. Githu Muigai, SC., Mr. Njee Muturi, the Solictor General and Ms. Muthoni Kimani, the Deputy Senior Solicitor General respectively. According to LSK, there are reasonable grounds to believe that the Muigai, Muturi and Kimani have acted in an unconstitutional, illegal and unprofessional manner and have conspired with the Executive Branch in dealing with the Anglo Leasing type contracts and in particular in the case between Universal Satspace and the Government of Kenya.

The following documents have been made public by LSK in support its case against the Office of the Attorney General:-

1. In a letter dated August 11, 2008, the Deputy Solicitor General Muthoni Kimani advised the Government’s Advocates’ not to advance the defence of bribery and corruption. LSK argues that Kimani did this despite reports by Kenya Anti-Corruption Commission (KACC), the Cabinet, Pricewaterhouse Coopers, Public Accounts Committee and the Auditor General to the effect that the contractual documents in the transaction were procured through corrupt practices and that Universal Satspace and First Mercantile had no permanent address. A copy of the letter is available here.

2. In further support of the point above, LSK has made public the request for Mutual Legal Assistance by KACC to the Swiss Federal Office of Justice and Police. In the request, KACC names 20 persons and companies under investigation. The request appears to conclude that the contracts were signed by corrupt Kenyan officials named in return for financial or other inducements. Earlier this year, the EACC confirmed in a letter to the Treasury and the Attorney General that it was still investigating the Anglo Leasing contracts. A copy of the request is available here. A copy of the EACC letter is available here.

3. LSK accuses the Attorney General of entering into an illegal consent in a case filed in Switzerland by First Mercantile Security Corporation. A copy of the judgment in the court of first instance in Geneva is available here.

4. LSK alleges that the government directed the Attorney General (vide Cabinet memo dated 30th September 2010) to engage foreign competent advocates with complex commercial litigation experience to defend the Anglo Leasing type contracts. In this connnection, LSK argues that the Attorney General acted contrary to these directions by frustrating Government lawyers. LSK further argues that the Attorney General appears to have withdrawn instructions in December 2013 from the foreign advocates and that his office unprocedurally took over the conduct of the case. In this connection, the Solicitor General Njee Muturi represented the country before a London Court in December 2013 without a licence to practice law in England and Wales. Therefore LSK argues that the Kenya Government effectively did not have legal representation in the suit and the proceedings are a nullity. A copy of letters sent in vain from government lawyers Edwin Coe, LLP is available here. A copy of the proceedings in the London court are available here.

5. LSK accuses the Office of the Attorney General of scaring the Government into make the Anglo Leasing payments by sending a letter informing Treasury of a threat of attachment of the Kenyan Embassy in Switzerland and the intended Sovereign Bond. A copy of this letter is available here.

6. LSK contends that during the meetings held on 28th March and 1st April 2014, the Office of Attorney General failed to advise the Government which led to the latter’s agreement to settle claims by First Mercantile Securities Corporation and Universal Satspace in one single payment by the end of the Month of April 2014. A copy of the Minutes of the meetings is available here. A copy of the Letters of Agreement between the Government of Kenya (signed by the Attorney General) and First Mercantile Securities Corporation and Universal Satspace is available here.

7. LSK accuses the Attorney General of giving a misleading legal opinion that the Government had no other legal option but to pay the Anglo Leasing contracts while an appeal option was and is still available. LSK argues that this failure by the Attorney General to pursue an available appeal was a dereliction of the AG’s constitutional mandate under Article 156 to protect and uphold the rule of law and defend public interest. A copy of the legal opinion is available here.

8. LSK contends that, on the strength of the Attorney General’s misleading opinion, the National Security Council directed the Cabinet Secretary for the National Treasury, the Cabinet Secretary for Foreign Affairs, the Cabinet Secretary for Defence and the Attorney General to devise a communication strategy for the undelivered Anglo Leasing contracts and Cost/Benefit Analysis of Anglo Leasing payments. These directions were communicated through a letter from the Secretary to the Cabinet. A copy of the letter is available here.

9. LSK further contends that, on the strength of the Attorney General’s misleading opinion, the Treasury wrote to the Director of Budget requesting the latter to grant credit to make the Anglo Leasing payments. In her response, the Director of Budget accepted the advice of the Attorney General but rightly requested Treasury to furnish proof of parliamentary approval to release funds from the Consolidated Fund. A copy of the letter from the Treasury is available here. A copy of the response from the Director of Budget is available here.

In view of the above, LSK has publicly stated that it intends to take the following action against the Attorney General, the Solicitor General and Senior Deputy Solicitor General for professional misconduct:-

(a) Ask them to Show Cause why a Certificate of Dishonour by LSK should not be issued to them.
(b) File suit to declare them unsuitable to hold office and surcharge them for any monies paid in the case.
(c) Strike off the Attorney General from the Roll of Senior Counsel.
(d) Ask the Hon Attorney General to vacate office by resigning pending further investigation in the matter.

In sum, the ball lies squarely in the court of the Attorney General’s Office to rebut the weighty allegations made against them by LSK. In a previous post here, we discussed the important role to be played by the then Attorney General nominee, Prof. Githu Muigai.

In the meantime, the Law Society remains one of the most powerful professional bodies in Kenya with its members serving as Heads of two Branches of Government, namely the Judiciary and the Legislature. In an earlier post here, we highlighted how LSK ‘disciplined’ the Speaker of National Assembly for acting contrary to the law in the MPs’ salaries case. Now it appears that LSK has turned its attention to the Executive Branch and in particular, its legal advisor, the Attorney General.

Rape is NOT just a word

Rape is NOT just a word

 

230 high school girls in Nigeria were kidnapped by Boko Haram. Depending on what you read, some escaped, some were forcefully married, some were taken across the border, and some … well … we don’t know what happened to them. What is STILL happening to them. And their families are driving themselves crazy thinking about it, wondering about it, imagining what is being done to these girls.

These are reasonably educated girls, seeing as they were taken from school. So it’s not just their bodies being broken. Their minds are being broken too. In addition to what is being done to them, they are questioning where their God is, where their government is, why they ever bothered going to school.

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Of Sex And (Not So) Hidden Cameras

Some time last week, a story did the rounds on twitter. Some guy posted a photo of a semi-nude sleeping woman as proof that he had just gotten lucky. I didn’t see the original tweet or the photo, but it did disturb me quite a bit. I don’t know how many women think about things like this, but I know that every time I’m intimate with a man, I wonder if he has his house rigged with cameras, or if he was taking photos in my sleep.

In rom-coms, it’s sweet when a man watches you sleep. In real life, it’s far more likely he’s ‘watching’ with an internet enabled phone, and it’s a very scary thought. Of course if he keeps the pictures to himself, then there’s no harm done. But when you snoop accidentally see the shots on his phone – or worse – online, then Houston, we have a problem.

Just wrong

It’s understandable that some men assume women enjoy flaunting their bodies. After all, lots of us willingly give nudes to complete strangers. Even more of us use our bodies to get ahead, either directly by sexually transmitted promotions, or indirectly by using feminine charms to get out of tricky situations. Continue reading

Sex For Fish And Other Stories

A story was published in the Daily Nation last week. The headline implied that women were exchanging their bodies for fish. I shook my head in sadness, but I didn’t read the full article until the next day. Basically, female fishmongers in certain parts of Nyanza can’t BUY fish unless they first have sex with the fishermen.

I love her smile. I hope she didn't have to.

I love her smile. I hope she didn’t have to.

I’ve said over and over again that I’m not a feminist. I am – however – a woman, and this article maddened and saddened me on about a hundred levels. It goes beyond prostitution. It goes beyond simply selling my body for cash. It delves into a much darker region.

You see, these are not just women working on their backs. These are businesswomen, with business plans, and capital, and sales strategies. These are women with money. Their plan is to invest this money into products which they mark up and sell at a profit. Which is perfectly logical in this capitalist economy.

But no. They can’t buy these goods – which they have the money to pay for – unless they sleep with the sales people. So in effect, they’re paying for the goods AND for unwanted sex. They’re paying for it. Do you get that? They’re not being prostituted. They’re paying for sex that they don’t even want. What depravity is that?

Oh, and it’s not just sex and fish they’re paying for. They’re also paying for STDs. Diseases that can kill them, their husbands, and their children. Because some of these women are married. And they’re being forced to have sex with strange men in order to BUY fish to feed their families. So on top of everything else – pun fully intended –  they’re basically paying to be infected by AIDS.

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The MPs’ Salaries Case: A Triumph for Constitutional Supremacy in Kenya

Gado on MPs Salary Raise

“Parliamentarians are expected to operate within the letter and the spirit of the Constitution. Parliament, like all other state organs, is not above the law. Members of the National Assembly, like all other state officers, and the National Assembly, like all other state organs are compelled by the Constitution to adhere to the national values and principles of governance found in Article 10 of the Constitution. We therefore agree with the petitioners that the resolution by the National Assembly to nullify the Gazette Notices published by the SRC was unconstitutional.” – Judgment in Petition No. 227 of 2013 at paragraph 82.

The above judgment by a three-judge bench sitting at the High Court at Nairobi is significant for two distinct yet connected reasons: firstly, it is a big win for the doctrine of constitutional supremacy against the doctrine of parliamentary sovereignty and secondly, it restores much-needed public trust in the ability of the Judiciary to dispense justice. A copy of this landmark judgment is available here.

In the recent past, there have been several spirited public campaigns against members of parliament (MPs) whom many registered voters feel have gone rogue by putting their narrow private interests above those of the electorate that put them in public office. The climax of this perceived parliamentary impunity came in May 2013 when the National Assembly (NA) wrote to the Salaries and Remunerations Commission (SRC) purporting to nullify the remuneration of various categories of state officers which the SRC had published in the Kenya Gazette.

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