I have had a very interesting and eye opening experience today. In Kenya, there is the case currently in Court about the nominations to the brand new never been seen before in Kenya Supreme Court. For the benefit of those who do not know what this is, let me break this down for you. We passed a new Constitution last year that stipulated in it that the composition of all elective and appointive bodies will have to have no more than two thirds of one gender. The Supreme Court nominations have Two Women and Five Men. Has the requirement to not have more than two thirds of one gender been met?
The Federation of Women Lawyers Kenya Chapter (FIDA-Kenya) has led a group of several womens organisations to challenge this balance as failing to meet the Constitutional provisions. The Chief Justice has appointed some reputable Human rights lawyers to defend the Judicial Service Commission in the matter. Till now, I was a casual observer to this circus, since as you can tell from my earlier posts, my beef with the JSC was on a different tangent, but today they are not lucky, I am on their back again!
Let us do the math. Two thirds of 7 will give you 4.67 people. One third will give you 2.33. Now we know there are no .33 people (duh!) so how do we resolve the impasse? Article 81(2) of the Constitution of Kenya 2010 reads as follows.
81. The electoral system shall comply with the following principles––
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
This means any number less than or equal to two thirds is within the Constitutional confines. It therefore follows, any such overflow, must be rounded down to ensure the threshold is met. This means therefore if you have 4.67 rounded off to 5 people, 5 is more than the two thirds MAXIMUM and therefore it cannot be Constitutional. Meaning, .67 takes it over and above and therefore is unconstitutional. The only solution is to round it off to 4 so that the number of the opposite gender comes up to 3 meeting the threshold of NOT MORE THAN two thirds.
The argument has been on women attaining the one third threshold, but that premise is misleading. The constitution gives the maximum, and it cannot be exceeded even by one person. Not getting it yet? Let me try it another way. Having 5 members of one gender in a 7 member Court translates to 71.43% of the court being represented by one gender. Having 2 members of one gender in a 7 member Court translates to 28.57%. Two thirds would be 66.67%, meaning the current composition of the Supreme Court is 4.76% OVER the allowed constitutional maximum. This may seem like a small difference but just think of it this way. We are to have a National Assembly with 350 members. If it were to be 4.76% off, instead of having 233.33 members of one gender topping the two thirds maximum, you would have 16.6 more members, making the new number 250. That is 17 members over the limit, but the same 4.76%
I know either you have a eureka moment, or you are shaking your head wondering what I am on about. The moral of this whole story is this. The Supreme Court appointments may look like the are off not even by a whole person, so why the big deal. Think of a protractor, where you measure one degree from another is a single convergent point, but as the lines elongate, it becomes apparent that a degree from another travel very different paths and if you meet them after one kilometre, they will be so far apart. A builder puts a plumbline to determine whether a wall is straight, because even the smallest deviation, could see the whole structure collapse. If we are implementing this constitution, lets do it right, otherwise, in future the mess will be bigger than we could have imagined, and may be too late for us to fix. God bless y'all, as usual, the big children need me to pick them up or the school will fine me 500/= for late pick-up. (seriously, they fine us if we pick the children up late!!)
Tuesday 28 June 2011
Friday 24 June 2011
Well well, what do we have here!!
If you are a fan of TV, then you have heard this line several times, "Well, well, what do we have here!!" It usually means someone has been caught at the wrong time in wrong place, or he is red-handed, or he was trying to escape the villain and now he is cornered with no escape. My reference is the red-handedness. In my May blog I indicated all we needed is two more activist Judges in the Supreme Court and the Liberals have it in the bag, a Supreme Court of Judicial Activists. Well well, what do we have here!
With the nomination of both Njoki Ndungu aka Susanna and Smokin (what) Wanjala, the Liberals have it. Why do I make these wild accusations? As previously indicated, Ms. Ndungu has a good head on her shoulders, which she has used in scholastic, political, and activist use to good effect. She is a regular columnist in a few papers (this now has to stop, she is a Judge and a gag order surely follows with that) She sponsored the Sexual Offences Act, whose provisions cause so much disquiet among men that before it was passed many provisions, most notably the one for castration for sexual offenders, was removed. She was in the Urgent Action Forum held in Naivasha in June 2007 in which the strategy to decriminalise sexual relations was laid out, a forum our new Chief Justice was famously quoted as saying "This kind of rubbish (religion) makes him very mad!" Here is the link, read it for yourself. http://www.urgentactionfund-africa.or.ke/pdfs/Sex%20Matters.pdf She also organised ladies who work in pubs and bars as well as sexual workers to have a forum where they spoke about legalising prostitution and registering sex workers to offer them more protection. This to me clearly demonstrates to me, that she is NOT a centralist as some commentators in the main stream media would have us believe, but she is indeed quite Left Handed, meaning Liberal. What I can expect from her therefore is another one for Team Mutunga.
As for Dr. Smokin, he was Deputy Chair for one Judge (Rtd) Aaron Ringeera at the KACC, who whas adjudged of having done such a poor job that despite his very strong judicial career, and well documented sound jurisprudential reasoning, was not even shortlisted for the interviews. As his immediate deputy, I therefore am still wondering, how Rigeera came out blackened and charred and somehow Smokin smells not of smoke but of lavender!!! This seems to me, that this particular appointment was done as a huge favour to someone, because the same disqualification that applied to Ringeera should have applied to Wanjala and Sichale! People to whom huge favours are owed usually collect when the stakes are high enough. Since this show is being run entirely by "Reformers" I can only conclude that the one who will collect will be one of these.
Where does that leave us? It means it does not matter how conservative or level headed Judges Ojwang', Ibrahim and Tunoi are, they can dissent until they are blue in the face, they can write 50pages or reasoning explaining their dissent, but in the Supreme Court they all sit and they all decide and where the scale falls is how it is decided. In a sure 4 versus 3 (if at all) balance, I now await the circus to begin. From later this year when the cases start flooding in,they will be the light that will shine so we are able to see the true colours out of the prism of this "New Dawn" in Judiciary. As a law making court, any such decisions, however contrary to the rest of us are binding even on Parliament to change the law to line up with the Court's constitutional interpretation. Even bad law is still law and until another Supreme Court sits on the same issue to reverse it, we shall all have to be duly obliged to the Honourable Justices.
Phew!
This has been too long. But I had to get it off my chest. It is a long road we have to travel. Hope you have buckled in for the ride. Keep praying, Keep believing, a better Kenya is so possible!
With the nomination of both Njoki Ndungu aka Susanna and Smokin (what) Wanjala, the Liberals have it. Why do I make these wild accusations? As previously indicated, Ms. Ndungu has a good head on her shoulders, which she has used in scholastic, political, and activist use to good effect. She is a regular columnist in a few papers (this now has to stop, she is a Judge and a gag order surely follows with that) She sponsored the Sexual Offences Act, whose provisions cause so much disquiet among men that before it was passed many provisions, most notably the one for castration for sexual offenders, was removed. She was in the Urgent Action Forum held in Naivasha in June 2007 in which the strategy to decriminalise sexual relations was laid out, a forum our new Chief Justice was famously quoted as saying "This kind of rubbish (religion) makes him very mad!" Here is the link, read it for yourself. http://www.urgentactionfund-africa.or.ke/pdfs/Sex%20Matters.pdf She also organised ladies who work in pubs and bars as well as sexual workers to have a forum where they spoke about legalising prostitution and registering sex workers to offer them more protection. This to me clearly demonstrates to me, that she is NOT a centralist as some commentators in the main stream media would have us believe, but she is indeed quite Left Handed, meaning Liberal. What I can expect from her therefore is another one for Team Mutunga.
As for Dr. Smokin, he was Deputy Chair for one Judge (Rtd) Aaron Ringeera at the KACC, who whas adjudged of having done such a poor job that despite his very strong judicial career, and well documented sound jurisprudential reasoning, was not even shortlisted for the interviews. As his immediate deputy, I therefore am still wondering, how Rigeera came out blackened and charred and somehow Smokin smells not of smoke but of lavender!!! This seems to me, that this particular appointment was done as a huge favour to someone, because the same disqualification that applied to Ringeera should have applied to Wanjala and Sichale! People to whom huge favours are owed usually collect when the stakes are high enough. Since this show is being run entirely by "Reformers" I can only conclude that the one who will collect will be one of these.
Where does that leave us? It means it does not matter how conservative or level headed Judges Ojwang', Ibrahim and Tunoi are, they can dissent until they are blue in the face, they can write 50pages or reasoning explaining their dissent, but in the Supreme Court they all sit and they all decide and where the scale falls is how it is decided. In a sure 4 versus 3 (if at all) balance, I now await the circus to begin. From later this year when the cases start flooding in,they will be the light that will shine so we are able to see the true colours out of the prism of this "New Dawn" in Judiciary. As a law making court, any such decisions, however contrary to the rest of us are binding even on Parliament to change the law to line up with the Court's constitutional interpretation. Even bad law is still law and until another Supreme Court sits on the same issue to reverse it, we shall all have to be duly obliged to the Honourable Justices.
Phew!
This has been too long. But I had to get it off my chest. It is a long road we have to travel. Hope you have buckled in for the ride. Keep praying, Keep believing, a better Kenya is so possible!
Thursday 23 June 2011
A prophet has no honour in his home town.
This week the Parliamentarians and other Constitutional Office Holders received a salvo from the Taxman. Pay your taxes in arrears or we send you auctioneers!! During the pre-referendum era, many politicians tried to encourage the Church leaders to enter an MoU with the Principals to ensure our objections are taken care of once the Constitution is passed. This is because, they too were objecting to the passing of the Constitution, because they would be taxed. They had a famous meeting where the President assured them that they would not be taxed until the next time round when elections are held. Now the Tax-man is calling, and the Principals are quiet. As the elders said it, "Wametulia kama maji ya mtungi!"
The immediate former Chief Justice is the one who swore the President into office at dusk. The Chief Justice demoted the then Registrar Christine Meoli and sent her back to the Trenches of the Court Corridors. He embarked on building himself a glorious court in Milimani, only now for Willy Mutunga to occupy it! The Ocampo 6 each played a role in the getting into power of the two Principals. Now they are facing the music alone, with their Principals safely here one dosing away in State House and the other strategising on how to get into power next year!
I'm sorry if I come across today as being cocky, and sounding very "I-told-you-so" like, it is just that sometimes, one has to be reminded, hopefully they will learn from it. My son is very Curious George cheeky. (If you don't know Curious George, search YouTube to see him in action.) Every time there was a black out and we would light candles, my son would always keep us busy trying to keep him from the flickering flame. One day there was a black out so we lit a candle. He was drawn to the flame. I kept saying to him, "don't touch, it is hot hot hot" he would back off whilst I was looking at him. When he thought I was looking away, he put his little finger into the flame. Well, he got burnt. I looked back at him. He had folded his burnt finger into his little fist, and had bit his lower lip and tears were welling up in his eyes. When I asked what was wrong, he could not even talk, simply shook his head. Finally he burst into wails and ran into my arms holding his little finger up. I kissed and made it better, and he calmed down. Suffice it to say, to date, I have not stopped using candles, but I have never had to tell him to not put his finger in the candle, he knows what it means.
Whenever you warn someone of impending danger, sometimes they do not heed the warning, simply because they know you too well. They have seen you in your failings and your sufferings, there is no way to convince them that there is any authority behind your warning. I must admit, one must test every word, lest you be misguided into doing something very foolish. However, I am now very proud of the stand the Church took. Since this Constitution was passed, things have been unfolding and the reaction is sometimes shock and disbelief. One of my life's mantras is "Those who fail to learn from history are duty bound to repeat it." Whenever we raise objections or make noise, it is because we have looked at other people who had the same glorious promises being made to us made to them. Now in hindsight, they wish they had left it alone. The only consolation is it may be a shock to others, but for me, I simply sip my tea and look at it from a distance. One day, they may learn to listen to my voice.
Again, time to run pick the babies, sorry, big children (the Teacher said to not call them babies so I have to retrain my head to call them children!!) Have a blessed time y'all
Tuesday 14 June 2011
If I had known then what I know now.
Its been a while since I blogged, mainly because I have been engaged in the Nation Building process. When I was in school the loud mouth I was, I did a lot of public speaking. One poem I did was "Building the Nation" It was the story of a driver who's Principal (everyone is using this word these days to mean Boss!) was a Permanent Secretary who drove to all these nice places he could not enter, lovely restaurants he could not eat from and when he was done driving the wonderful vehicle, had none to take him home. I have been trying to do my bit to make Kenya what I believe it can be, with limited success, but unending unwavering psyche on my part.
I went to County Hall together with other Christian Professionals to articulate our position on the nominations for the office of Chief Justice and Deputy Chief Justice. Suffice it to say, our opposition to the nominations was not very popular. In fact, I observed the time taken in cross examining presenters of a differing view was quite long. What bothered me was also the quality of the questions. Sample this: -
"You object to Dr. Mutunga wearing an earring, and yet your Bishops wear long dresses and large necklaces?"
"You people think Abortion is not right, so whose life is more important, the Mother's or the Child's?"
"Even God tells us in the Bible if God be God serve Him and if Baal be god then serve him, what is wrong if we choose to serve Baal? In fact, didn't your God also order Hosea to marry a prostitute?"
Now, this coming from Parliamentarians who have been given a presentation on ideology, activism and other concerns we had about the nominees, the tangent it took was very curious. It seemed like the hangover from the August Referrendum. The questions had nothing at all to do with what sent us to County Hall. That was me and building the nation.
I have it firmly set in my mind, that going to parliament turns your brain to mush. But I also have it firmly set in my mind, that I shall try my best to either get in their myself, or send men and women whose pedigree I well know. I am fed up with the over-fed over-rich idiots whose arrogance to any view is nauseating. I am also very fed up with sycophantic bootlickers who only pander to the whims and beckoning of their puppet masters. I am well and truly fed up with the so-called Christians in parliament, who obviously sleep all through the sermons, only glean from it that which they can misuse.
As a devout practising Christian, I have been accused many times of being intolerant, prejudiced and bigoted. What I have discovered and the conclusion I have arrived at, is those who level those accusations against me the loudest are themselves more bigoted, more prejudiced and more intolerant than I ever could be. How else do you explain that not one question that came out of the panel drew from our numerous presentations, but instead focused on passing judgement against the Church as having no "moral authority" to comment on the matters at hand.
I have to go pick the children from school now. Parting Shot: Watch out if you are standing lest you too fall. A hand saw cannot cut one way, it must go forwards and be pulled backwards for it to cut. What does this mean? If you look at me and think I am misguided, look in the mirror, because the only one misguided is you.
I went to County Hall together with other Christian Professionals to articulate our position on the nominations for the office of Chief Justice and Deputy Chief Justice. Suffice it to say, our opposition to the nominations was not very popular. In fact, I observed the time taken in cross examining presenters of a differing view was quite long. What bothered me was also the quality of the questions. Sample this: -
"You object to Dr. Mutunga wearing an earring, and yet your Bishops wear long dresses and large necklaces?"
"You people think Abortion is not right, so whose life is more important, the Mother's or the Child's?"
"Even God tells us in the Bible if God be God serve Him and if Baal be god then serve him, what is wrong if we choose to serve Baal? In fact, didn't your God also order Hosea to marry a prostitute?"
Now, this coming from Parliamentarians who have been given a presentation on ideology, activism and other concerns we had about the nominees, the tangent it took was very curious. It seemed like the hangover from the August Referrendum. The questions had nothing at all to do with what sent us to County Hall. That was me and building the nation.
I have it firmly set in my mind, that going to parliament turns your brain to mush. But I also have it firmly set in my mind, that I shall try my best to either get in their myself, or send men and women whose pedigree I well know. I am fed up with the over-fed over-rich idiots whose arrogance to any view is nauseating. I am also very fed up with sycophantic bootlickers who only pander to the whims and beckoning of their puppet masters. I am well and truly fed up with the so-called Christians in parliament, who obviously sleep all through the sermons, only glean from it that which they can misuse.
As a devout practising Christian, I have been accused many times of being intolerant, prejudiced and bigoted. What I have discovered and the conclusion I have arrived at, is those who level those accusations against me the loudest are themselves more bigoted, more prejudiced and more intolerant than I ever could be. How else do you explain that not one question that came out of the panel drew from our numerous presentations, but instead focused on passing judgement against the Church as having no "moral authority" to comment on the matters at hand.
I have to go pick the children from school now. Parting Shot: Watch out if you are standing lest you too fall. A hand saw cannot cut one way, it must go forwards and be pulled backwards for it to cut. What does this mean? If you look at me and think I am misguided, look in the mirror, because the only one misguided is you.
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