U.O.N Now Plans To Build A 22 Storey C.U.N.T

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Somewhat related..

Somewhat related..

So I stumbled on this gem on the Nation this afternoon.

I’ll skip to the interesting bit:

Vice-Chancellor George Magoha said the building should be completed in 120 weeks and will be named Chandaria University of Nairobi Towers. [Ed: That would be C.U.N.T for short]

He said the Chandaria Foundation would contribute Sh125million towards the construction and hence the reason behind the naming of the facility.

Ehem. One question. If you have Sh.2.5 billion to spend on building anything, wouldn’t you look carefully at the name you chose?

I can’t help but feel like the guy designing the logo for this looked at the name and asked “Are you sure?” And chuckled when the Vice-Chancellor said “Yeah. We’re very sure.”

Maybe they should also build a medical school annex next to it and call it the Doctor’s Instruction Center of Kenya while they’re at it and really just milk those abbreviations for what they’re worth.

Honestly, I’m just waiting for the “Slippery When Wet” signs that have a C.U.N.T logo at the bottom.

Or better still, the Chandaria University of Marketing.

This is too easy.

Another View: Why I Disagree with the Supreme Court of Kenya

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By Isaac Rutenberg**

I have nothing but the utmost respect for Dr. Willy Mutunga. He is brilliant and progressive, and I couldn’t pick anyone better to lead the judiciary. Nevertheless, I fundamentally and vehemently disagree with the Supreme Court’s recent holding that spoilt ballots are not to be counted in the presidential ballot.

Under Kenya’s Constitution 2010, a presidential candidate wins only if s/he gets at least 50% + 1 vote of the “total votes cast.” In the 2013 presidential election, the Supreme Court was asked to rule on several issues including whether the spoilt votes should be considered with respect to the 50% + 1 requirement. The Court held that such votes should not be counted, and to me, this represents a severe injustice.

Lawyers like to extrapolate a situation to its “logical conclusion” using hypothetical scenarios. In this case, consider an election with 100 voters. Assume that 99 of the voters cast spoilt ballots, and that one voter casts a valid vote for candidate X. Applying the Supreme Court’s logic such an election would be decided by the single valid vote, and candidate X would be declared the winner.Even though she received only a single vote in her favor, candidate X would have passed the 50% + 1 threshold (indeed, candidate X would be declared the winner with 100% of the votes in her favor!).

What are the implications of this hypothetical scenario (the logical conclusion of the Supreme Court’s decision), and are they relevant to the 2013 elections?

In the hypothetical, the voter turnout was 100% – i.e., every votertried to indicate his/her preferred leader. But, the minority rather than the majority determined the election outcome. In other words, 99% of the electorate wasdisenfranchised, and the country would be forced to accept a leader chosen by only 1% of the population.Surely this cannot be considered a desirable form of Democracy. The only fair course of action in this hypothetical is to re-vote until the number of spoilt ballots does not influence the outcome.

One might argue that the voters casting spoilt votes are to blame, and that they should have been more careful to ensure they are casting valid votes. This argument places the blame in the wrong place. It is the government’s responsibility to hold elections that are accessible to the entire population regardless of their level of education, primary language, and ability to read/write. Citizens with opinions (as evidenced by their turning out to vote) should not be punished merely because the government failed to hold an accessible election.

There is one instance where I would have agreed with the Supreme Court, and that is where it was proven that the spoilt ballots were fraudulent (e.g., attempts by one or both parties to increase the voter turnout in order to force a run-off).

Provided that the spoilt ballots were not fraudulent, they represent the undeterminable will of the people. Such ballots cannot be ignored. If the spoilt ballots were numerous enough to influence the outcome, the only fair course of action would be a re-vote.

In the case of the 2013 election, the margin of victory (i.e., for satisfying the 50% + 1 requirement) if the spoilt ballots are counted was less than 10,000 votes. With over 10 million votes cast, this margin is less than 0.1%, which must surely have been within the margin of error for the voting process. I am therefore skeptical that the outcome actually reflects the will of the people. In any event, for the above reasons, I am more upset about the precedent set by the Supreme Court in ruling that the spoilt ballots are not to be counted.

**Follow him on twitter: @iruten

Between Activism and Restraint, The Supreme Court of Kenya Must Balance the Exercise of Judicial Power

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SCOK

“We also speak knowing that it is our duty to ask ourselves what is the use of having a Constitution if it is not honoured and respected by the people. The people will lose faith in the Constitution if it fails to give effective protection to their fundamental rights. The people know and believe that destroy the rule of law and you destroy justice, thereby also destroying the society. Justice of any other kind would be as shocking as the crime itself. The ideals of justice keep people buoyant. The courts of justice must reflect the opinion of the people.” – Chief Justice Madan in the case of Stanley Munga Githunguri vs Attorney-General (1985).

A functioning constitutional democracy requires a judiciary that is both impartial and independent. A judiciary that accepts it as its duty to give full effect not only to the letter of the Constitution guaranteeing fundamental rights and freedoms, but also its spirit.

For the letter killeth but the spirit giveth life.

In reality, judicial power is potentially no more susceptible to abuse or misuse than legislative or executive power but the difference is this: the abuse or misuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse or misuse of judicial power. Where there is no constitutional referee to review judicial wrongs, the judiciary’s responsibility becomes all the more onerous upon of its officers. It is therefore crucial for judges to remain conscientiously alive to the truth that with this potentially awesome breath of judicial power comes great judicial responsibility.

Most of us have read the recent judgment of the Supreme Court of Kenya (available here) in the matter of several Presidential Election Petitions challenging the Independent Electoral and Boundaries Commission (IEBC)’s declaration of Mr. Uhuru Kenyatta as the duly elected President of the Republic of Kenya. In this judgment, the highest court in the land purports to give reasons in detail why it unanimously dismissed the presidential petitions before it, effectively paving the way for the assumption into office of Mr. Kenyatta as the fourth Commander-in-Chief of Kenya.

At the heart of this 113-paged judgment on the “political-cum-constitutional” electoral process is a clear dichotomy between matters the Supreme Court Justices considered to be “constitutional-legal” and those they considered to be “political”, the latter being perceived as non-justiciable and beyond the competence of the court. For many, paragraph 203 of the judgment is crucial as it problematises the Judiciary’s role to give full effect to both the letter and spirit of the Constitution:

“…we express the opinion that, in the special circumstances of this case, an insightful judicial approach is essential. There may be an unlimited number of ways in which such an approach is guide the Court. But the fundamental one, in our opinion, is fidelity to the terms of the Constitution, and of such other law as objectively reflects the intent and purpose of the Constitution.” (Emphasis mine)

It is indeed tragic that the Supreme Court does not elaborate in any measure of detail as to what this insightful approach entails or whether their understanding of fidelity relates only to the black letter of the law or whether it extends in due measure to the spirit of the law.

Implicit in the court’s judgment is the acceptance that in the case of a Presidential election, the court should be guided by an approach of judicial restraint as the question before it is more political than constitutional-legal. Therefore the court was persuaded, with questionable arguments supported by equally questionable Commonwealth precedents, that the standard of proof in Presidential Election Petitions should be artificially higher than it ought to be so as to curb judicial intervention in matters where the electorate are deemed to have exercised their political choice by casting their vote.

It is ironic that in arriving at this troubling decision in favour of judicial minimalism, the Court was guided by the celebrated South African case of Minister of Health v Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC). However the Court failed to distinguish this case from the case before it and crucially point out that the TAC case clearly illustrates that judicial activism in constitutional adjudication is viable and part of modern day constitutional jurisprudence. The passage lifted from the TAC case and referred to by the Court at paragraph 223 of the judgment was not the holding of the South African Constitutional Court in that case! The passage cited at paragraph 223 was the contention of the South African government’s counsel in an attempt to avoid being held accountable for its HIV/AIDS policies at the time. The South African apex court, however, held that no system of separation of powers is absolute, since “there are certain matters that are pre-eminently within the domain of one or other of the arms of government”. The South African court therefore found that it has powers to evaluate the reasonableness of measures taken by government, where they are challenged for being unconstitutional. Thus where appropriate, the theory of separation of powers would not preclude that Court from making orders that have policy implications, and such a ruling does not result in a breach of the theory of separation of powers.

The extent of judicial restraint exercised by the Supreme Court in its judgment is at the core of the collective disappointment shared by many Kenyans. In a well reasoned and must-read dissection of the judgment by seasoned constitutional lawyer Wachira Maina (available here), he opines:

“The unhappy feeling one comes away from this judgment with is just how stringent the standard that the Court imposes on petitioners is. And, conversely, save for the rather tame recommendation that IEBC be investigated and maybe prosecuted, just how so very lenient the standard by which IEBC’s performance has been judged is.”

In this vein, we should all take heed of the wise words of former South African Judge Albie Sachs who is currently a member of Kenya’s Vetting of Judges and Magistrates Board. In his eloquent judgment in the case of Prince vs President of the Cape Law Society and Others, Sachs reflected that: “Undue judicial adventurism can be as damaging as excessive judicial timidity.”

What Kenyans needed to see come out clearly in this judgment of Supreme Court was a balance between these two approaches of activism and restraint. In a country of vast inequalities and historical injustices such as ours, judges cannot afford to be textual, formalistic and mechanical in their interpretation of the Constitution. A purposive, contextual and liberal approach to constitutional adjudication is crucial as it provides for protection of fundamental rights and freedoms as against claims of state security and national stability.

In light of this judgment one wonders whether this judiciary will survive the potential onslaught led by rogue parliamentarians, kleptocratic cabinet ministers, and others who may have little regard for the Judiciary. After all, the Judiciary has no army or police force and neither does it have the power of the Purse. Judges are not elected and therefore do not have the natural support that leaders of the majority party might have by mere virtue of being leaders of the party.

Therefore, the Judiciary relies heavily on the confidence bestowed upon it by the public for its independence and impartiality. In an earlier post, this blogger condemned the Executive Branch of Government in strong terms for interfering with the Judiciary through harassment and intimidation of its members including the Chief Justice. Indeed a functional constitutional democracy is one where the public is vigilantly alive to the important role played by the judiciary in protecting the rights and interests of ordinary citizens – including those that form the electorate.

However, the people of Kenya must always hold the Judiciary accountable and responsible for any and all exercise of judicial power. In the present case, it is our solemn duty and responsibility to criticise and lay blame squarely on each of the Supreme Court Justices that have individually and collectively misused the sovereign power donated to them by people of Kenya as enshrined in the Constitution.

If the loud silence that currently reverberates from many quarters of our country is anything to go by, the courts of this land must double their efforts to (re)build public confidence in the Judiciary.

Remember E-Sir: 10 Years Later

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e-sir-01

This past Saturday marked the 10 year anniversary of E-Sir‘s passing.

The thought alone sinks my heart.

Anyone you ask who ever met the guy, whether in a studio, club, classroom or in their neighborhood will tell you the same things about him. His personality and charisma overflowed. The thing that struck me about about him was that he was confident without being overly cocky and had a certain clarity and determination that followed that confidence.

I was in high school when I first ran into that particular clique of guys he used to roll with. Continue reading →

Kenya Won

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kenyan voting

After many hours spent in queues trying to vote, clenching cheeks in unison, and shaking fists at the IEBC, Kenyans finally got a new president. The opposition did not accept this result. Kenyans however, did, as some celebrated, some waited for the court hearings and the rest were just happy to be back at work. We did what we did peacefully and force fed foreign journalists naysayers their own feet.

I’m in that group that’s just happy to be at work because I believe the true victor was not a person.

It was the people. Continue reading →

Chief Justice Harassed and Threatened: Executive Must Apologise and Take Measures

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“I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay.” – Chief Justice Dr. Willy Mutunga, 20th February 2013.

Fellow Kenyans, make no mistake about it: “Eternal vigilance is the price of liberty”.

Yesterday the Chief Justice (CJ) made a public statement (available in full here) where he highlighted two seemingly isolated events that point to a calculated and sinister plot by those seeking to reverse Kenya’s constitutional gains, undermine institutional independence within the Government, and subvert the Rule of Law. Indeed, the CJ’s “poison-pen” letter and “small hiccup” at the Jomo Kenyatta International Airport (JKIA) must be cause for renewed “resolve of each and every Kenyan to protect our Constitution” because, after all, an injustice to one is an injustice to all.

Kenya is at a precarious moment in its history and with Parliament out of the picture, only two arms of government remain: the Judiciary and the Executive. As far as the “small hiccup” goes, the average observer can clearly see that this is nothing more than the Executive taking advantage of the fact that Parliament is no longer around to make noise and call into question the Executive’s move to blatantly undermine the authority and independence of another arm of government namely, the Judiciary. We must take comfort in the CJ’s statement as it exposes the Executive’s feeble attempt to ‘bend the ear, mind and resolve’ of the Judiciary through its head, the CJ.

The statement affirms that despite this intimidation, the Judiciary will uphold, protect and defend the Constitution and the Rule of Law. This incident at JKIA also illustrates the systematic disrespect of the Judiciary as an arm of government, where in the recent past we have seen the Executive failing to obey court orders and decisions. After all, one wonders, in the hierarchy of power and authority under the law, who is PS Francis Kimemia to bar the Head of the Judiciary from traveling, let alone the lone Immigration Officer carrying out the Executive’s bidding? Although it may not be in dispute that this Immigration Officer must “know people”, one is relieved that the CJ preferred to negotiate his way out of the situation rather than cause a scene at JKIA that may have ended up being politicised to remove him the Bench’s apex court.

On a personal note, this incident at JKIA should remind us all that our right to freedom of movement is enshrined in the Bill of Rights of the Constitution and specifically guaranteed under Article 39. Any limitation or transgression of this right or any other must not be treated lightly.

It is therefore fair, just and proper that the Executive through the very PS Kimemia do issue an unconditional and unequivocal public apology for abusing the powers that We, the People of Kenya have donated to the Executive under Article 1 of the Constitution. This public apology must also be coupled with the Executive’s deepest regrets conveyed to the Judiciary and its officers whom it needlessly harassed.

Moving to the matter of “the poison-pen letter” alleged to be authored by the outlawed Mungiki sect, one thing is clear: anyone thinking they can scare or intimidate the CJ is terribly mistaken. In another life, the CJ, Dr. Willy Mutunga had been a legal academic and a prominent human rights activist in Kenya since the 1970s. Indeed one wonders whether a man who has been hardened by mistreatment, arrest and detention under former President Moi’s authoritarian regime, would now feel the least bit intimidated or cowed by death threats from so-called Mungiki. Be it as it may, the issues of security during and after elections must not got unaddressed and the State is squarely responsible for guaranteeing that law and order prevails.

Finally, there are those who argue that this public disclosure by the CJ ought not have happened and instead the two events handled in camera between the relevant state agencies concerned. To many this argument may be ably challenged with reference to Article 35 on the right of access to information under the Constitution. In particular, attention may be drawn to Article 35(3), which requires that the State (which includes the Judiciary) must publish and publicise any important information affecting the nation. In a previous post, this blogger has discussed the import of Article 35 and argued that whistle-blowing and/or public disclosures must be made with due consideration for the hierarchy and chain of command within the public institution in question. In essence, public disclosures of information held by the State must be sanctioned by the highest authority concerned and the manner of disclosure must be clear and concise. In this present case, one must bear in mind that the CJ is acting not merely an individual but as the Head of a branch of government. Thus, to whom is the CJ supposed to make disclosure other than the People in whom sovereignty is vested?

What we all must learn from the CJ’s statement is that silence is not always the right option and that truly wise and brave Kenyans will remain vigilant and will constantly ask themselves if their silence is contributing to injustice or not.