SUPREME COURT DATE WITH THE gods!

Supreme Court of Kenya

Four things that belong to a Judge:

To hear courteously; to answer wisely;
To Consider soberly; and to decide impartially. (Socrates 399-469 BC)

NASA Chief-Principal; Raila Odinga

NASA Chief-Princpal has chosen to go to Supreme Court. Supreme Court has two alternatives only: re-affirm or invalidate the election of Uhuru Kenyatta. In arriving at this decision, the Supreme Court has two paths.
On one path, it can follow the footsteps of the Supreme Court under Dr. Willy Mutunga and be guided by the jurisprudence of Nigeria and Ugandan Courts, and like a witch make its decision in thPrincpal

I don’t know which self-respecting lawyer will use Nigerian and Ugandan decisions as stare decisis on Presidential Elections! The results for Presidential Elections in Uganda and Nigeria are known well in advance by the President, the Electoral Commission and the Deep State! There, Elections are a choreographed dance to launder money! Or it can take the high road, and follow the Supreme Court of United States. In the US, the Supreme Court proudly makes its decision when the sun is up! We all know the US Supreme Court during the reigns of the great Chief Justices John Marshall and Earl Warren. Under Marshall, the Court decided Marbury vs Madison that forever laid the independence and exclusive jurisdiction of the Judiciary. Under Warren, the Court decided Brown vs Board of Education that forever officially ended racial segregation.

Our Supreme Court under CJ David Maraga can choose to be night-runners and give us a decision we will never use anywhere; or stand in the public square when the sun is up and give us a decision that binds our Nation-States of Kenya forever. Lightning doesn’t strike twice the same spot. ~By Lawyer Donald Kipkorir

RULES AND PROCEDURE OF FILING OF THE PRESIDENTIAL PETITION 

FILING OF THE PETITION:

Article 140 (1) of the Constitution stipulates that all petitioners who intend to file petitions challenging the presidential elections have seven days from the date of declaration of the results by the commission within which to file such petitions.

SERVICE OF THE PETITION:

The Rules provides for two modes of service. Under Rule 10 (1) the petitioner is required within two days of filing of the petition, to serve the same upon the respondent directly or by advertisement in a newspaper with national circulation. Rule 10 (2) further requires the petitioner to electronically serve the respondent within six hours of filing of the petition.

RESPONSE TO PETITION:

Similarly, Rule 11 gives the petitioner who wishes to oppose the petition four days within which to respond to the petition.

CLOSE OF PLEADINGS AND INTERLOCUTORY APPLICATIONS:

The pleadings shall close upon filing of a response or notice of intention not to oppose. Interlocutory applications shall be made one day after the close of proceedings and shall be determined before the hearing commences.

PRE-TRIAL CONFERENCE:

Rule 15 provides for the pre-trial conference. This shall be done on the eighth day after the filing of the petition.

HEARING OF THE PETITION:

Immediately after the pre-trial conference the court shall commence the hearing of the petition under Rule 18 of the Presidential Election Petition Rules.

FINAL DETERMINATION:

By the fourteenth day the court will be expected to deliver its verdict. In this regard, the court may give its decision and reserve the reasons for the decision to a later date. This has been provided for under Rule 23 of the Presidential Election Petition Rules.

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DECISION 2017: Blatant rigging schemes in a poll that never was

I agree with the NASA coalition leadership that the 2017 general election was a sham.

In the run-up to the 2017 elections, a friend advised me against contesting as the governor of Isiolo County. I was surprised at his suggestion. When I asked him why, he replied, “Are you able to buy the returning officer and the agents of your opponents?” I was kind of taken aback. In this time and age, elections should reflect the will of the people.

Of course, I disregarded my friend’s advice and proceeded with my quest. I was fully aware of the demands from our electorate, including being paid to attend campaign meetings and other exorbitant but sometimes unavoidable costs that run into millions of shillings.

On the campaign trail I did what every ordinary politician does; go and see people, talk to them about my plans, manifesto and how I planned to improve their lives.

MONEY

Most often these messages were received positively. Later I realised the  average Kenyan voter does not really listen to the messages leaders bring them. The most attractive thing to a voter in a campaign meeting is the money that people receive. In fact, during the campaign period, there are people who shut down their business only to wait for politicians. Lots of money is spent just for people to come out to listen to a politician.

The reality of my friend’s advice hit me when I saw a presiding officer at a polling station assisting an elderly and unlettered voter.

The agents were all staring away as the presiding officer kept on assisting the unlettered voters.

To my utter shock, I realised more than 70 per cent of the voters in the rural areas are assisted voters, meaning they don’t possess even the most basic form of education. Most elderly voters voted for a candidate they did not even know.

Uneducated voters don’t have enough information on how to vote. Presiding officers have lots of power to influence elections once they are compromised. The concept of using agents is not really working.
The agents themselves easily get compromised. The presiding officer I saw in fact was marking the wrong candidates for the voters.

This aspect really shocked me and confirmed the fears that our electoral process is a sham.The saddest part though is the counting of ballot papers. My impromptu visit to a number of polling stations confirmed my fears.

As the former Russian dictator Joseph Stalin once said, “It is not enough that the people know there was an election.

The people who cast the votes decide nothing. The people who count the votes decide everything.” The methods I saw in several polling stations suggested an agent cannot really confirm with certainty that the process is fair and transparent.

POOR LIGHTING

Some of the polling stations do not have proper lighting system so agents sometimes cannot verify the results. The whole process looks very unfair. The presidential tally was the most inaccurate.

The NASA coalition has been lamenting about votes being stolen. Scores of people have so far been killed by the security forces.

The worst part in my observation is the buying of voters on the polling queue. Without blinking, candidates were openly giving money to voters in the presence of the police officers.

The electoral process as it is now cannot reflect the wishes of the people.

The best solution would be to use mobile phone applications for people to vote. Since most adults in Kenya today can vote, IEBC should invest in an APP that can be used to elect the leaders we want.

If an illiterate voter needs to be assisted, then it is better if assisted by relatives they trust rather than a stranger.

The elections of 2017, despite the orderly and peaceful manner in which they were conducted, did not qualify for the “free and fair” description.

IEBC needs to initiate a new set of reforms to inspire confidence and ensure a candidate feels comfortable with the process.

As things stand now, it looks like elections in Kenya are determined way in advance and there is no need in taking part in an election in the first place.

By Mohamed Gulleid- Courtesy of The Standard newspaper

THE ASSUMPTION OF THE OFFICE OF THE GOVERNOR BILL 2016

 

The Assumption of The Office of The Governor Bill 2016 was a brainchild of Kiambu Senator Paul Kimani Wamatangi. The Bill provides the procedure and ceremony for the assumption of the office of the Governor by a Governor-elect. With necessary modifications, it will also apply to the assumption of the Office of the Governor by a Deputy Governor or the Speaker of the County Assembly.
Kimani Wamatangi- Kiambu Senator
The memorandum of the bill says there is presently no legal framework governing the assumption of the office of the Governor.
The defunct Transition Authority supervised the assumption into office by the current governors.
Key Aspects of the Assumption of The Office of The Governor Bill 2016
Establishment of Assumption of the Office of Governor Committee.
This shall be an ad hoc (special) committee. It shall consist of—
  • the County Secretary who shall be the chairperson;
  • the County Attorney;
  • the Chief Officer in the department responsible for matters relating to the county public service;
  • Chief Officer in the department responsible for matters relating to information and communication;
  • the Chief Officer in the department responsible for matters relating to finance;
  • Chief Officer in the department responsible for matters relating to public works, roads and transport;
  • the County Commissioner;
  • the head of the National Police Service in the county.
  • the head of the National Intelligence Service in the county;
  • the Clerk of the county assembly;
  • two persons nominated by the Governor-elect;
Functions of the Assumption of the Office of Governor Committee.
The functions of the committee shall be to—
  • facilitate the handing over process by the outgoing Governor to the Governor-elect; organize for the security of the Governor-elect;
  • organize for the necessary facilities and personnel for the Governor-elect;
  • co-ordinate the briefings of the Governor-elect by relevant county public officers; facilitate communication between the outgoing Governor and the Governor-elect; prepare the programme and organize for the swearing-in ceremony; carry out any other activity necessary for the performance of its functions under the Assumption of The Office of The Governor Bill 2016; and perform any other function assigned to it under any other written law. Arrangements for Assumption of Office by the Governor-Elect
The Assumption of The Office of The Governor Bill 2016 stipulates that the committee shall ensure the Governor-elect and Deputy Governor-elect are accorded adequate security. This is after IEBC declares the final results for the election of the office of the governor. The committee shall assist the Governor-elect to make the necessary preparations for purposes of assuming office.
In carrying out the above preparations, the Governor-elect may request, in writing, for any information they deem necessary from a county public officer. The county public officer should provide the information within reasonable time.
A county public officer who fails to comply with this request commits an offence. They are liable, on conviction, to a fine not exceeding 300,000 shillings or to imprisonment for a term not exceeding one year, or to both.
Swearing-in Ceremony for the Governor-elect
The swearing-in of the Governor-elect shall occur in a public ceremony before the resident High Court Judge. In the absence of the resident High Court Judge, the resident Chief Magistrate may officiate the ceremony.
The Governor-elect shall be sworn-in on the first Tuesday following the twenty-first day after the declaration of the result of the election of county governor. That is, the first Tuesday after 21 days since the IEBC declared the governor as having won the elections.
The Governor-elect shall, during the swearing-in ceremony, take and subscribe to the oath or affirmation of office. The oath or affirmation shall take place not earlier than 10.00 am and not later than 2.00 pm.
Upon taking or subscribing to the oath or affirmation, the Governor shall sign a certificate of inauguration in the presence of the resident High Court Judge. Alternatively, in the absence of the resident High Court Judge, in the presence of the resident Chief Magistrate.
The Governor shall give an inauguration speech to the county once the Deputy Governor is sworn in.
Amendments to the County Governments Act
The Assumption of The Office of The Governor Bill 2016 repeals the following provisions of the County
Governments Act —
  • section 30 (1);
  • section 32 (1); and
  • the oath of office for the governor/ deputy governor as contained in the First Schedule.
Section 30 (1) deals with the powers of the County Governor and Section 32 (1) on the oath of the deputy governor. The Schedule of the Assumption of The Office of The Governor Bill 2016 provides for the oath of the Deputy Governor.

DEVOLUTION ON TRIAL: A CASE STUDY OF ISIOLO COUNTY

 

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By Salad Malicha Guyo

@msaladus

For the first time in the history of Kenya, the public is keen in participating in policy and legislative development as well as holding leaders accountable as opposed to the past where citizens were mere recipients of laws and Isiolo County Government is not an exception to this. Unlike the past when Isiolo was County was both inaccessible and rife with banditry, the road to the Isiolo, through picturesque Mt. Kenya, is a joy to experience. As for safety, the County trumps most of Kenya and one can traverse the entire expanse of the County without a worry. Secondly, the people of Isiolo are extremely hospitable. They share from their obvious material paucity with humbling abandon. Nonetheless, Isiolo County is in dire need of proper governance and capacity building in legislative development which continues to derail all functions at the county level

DEVOLUTION ON THE ROPE IN ISIOLO COUNTY

Reality of Isiolo County Governance is tossing out spontaneous unexpected scenario. It will certainly shift in the way we relate to each other and do business of politics in Isiolo County. Quality leadership matters. Isiolo County Government team is effectively suffering under burden of untried political leadership. People expect their lives to leap forward, social relations to improve and negative politics disposed. The team opposing current leadership made one point clear. Dread. Fear –it is horror, run away.

There is now more confusion than light, disorder at County Offices, deceit on past relations, lack of information and growing elusion. Things were not going in the right direction from onset, early intervention was sabotaged; and justice crawled in the woods
Isiolo County government is real theatre of absurd; Management by chaos, pressure on establishment and strain to the limit of governance and social structures. Everything seems to work through a chaotic process and behind schedule. People’s expectation and dreams were shuttered. Tribe, Clan or Sub clans’ talks are the order of the day. Court sanctions, Court injunctions are daily affairs.

Isiolo the County Assembly which is mandated to do oversight on the executive, representation of people and making of County Bills have performed miserably due to persistent political patronage by the Executive arm of the county government. The buck stops with the measure of wisdom and ingenuity of the County leadership.
The County leadership hides and influence the public views behind curtain, ethics and social relations flow through resistant mode and manipulations. Change becomes slow and invisible. Any shifts that happens break lose rapidly and become erratic event.

Governance institutions often respond in single rigid way, leaders expose weaker side of human face, new rules are set to enhance exclusion, transformation path is obstructed, unmanageable stress become order of the day, social order is exposed to series of crisis that open path to conflict and violence. The pressure on system and structures break down. New path open to scare-free for all. Disorder and stalemate takes centre stage. This grossly prejudices the ability of officers to deliver on their responsibilities. Even more worrying for past two years, the assembly had only passed one Bill (Isiolo County Appropriation Act). The County Assembly however, managed to make trips to inter alia Japan and the Emirates.

Another worry was the low expenditure on development by the county. In the last published report by the Controller of Budget, the entire resources in the county were spent on recurrent expenditure, with no monies going to development. There are structural challenges that counties generally encounter on expending on development but we would have expected Isiolo, being a county in so much need of development, to seek innovative avenues for absorbing development expenditures. This has happened in counties like Bomet, which during the same season had expended 41 per cent of their revenue on development!

The other worrying thing in the county was the continuation of the marginalization discourse. Despite the county being the second highest recipient of revenue per capita, the citizens and indeed some leaders still engage in marginalization narrative with the same vigor as that prior to devolution. Granted, Isiolo has been marginalized for long and even ten years of devolution will not erase the impact of marginalization. But the cure for marginalization must start with the county using the funds it has been allocated innovatively and prudently.

Whereas, it is unforgivable for any county, or indeed the national government to spend the bulk of its resources on wasteful expenditure, for needy and previously marginalized Counties like Isiolo, to waste this rare opportunity to erase the injustices of the past through waste is almost criminal.

Finally; the minimal investment in education in this county leaves a lot to be desired. Granted, education is a function of the national government. The county government must however look for more ways to raise the education standards of Isiolo if this county is to emerge from its dark past, bottom line. Devolution has presented an opportunity for Kenya to correct its past misdeeds, if the new leadership of the counties does not exploit these opportunities and instead invest their time in unnecessary drama and showbiz, it will be the worst betrayal of a desperate public.

CURRENT STATUS AT PLAY IN ISIOLO COUNTY

  • There is a need for an extensive community awareness and participation to usher in county government and resort city project through stakeholders sharing ideas, views and setting common goals.
  • Isiolo county has an economic potential but was ranked as among the worst towns to do business in and its time that stakeholders come together to identify the core problem hindering business growth, enterprise development and why investors are shying away.
  • The roles of different sectors in promoting economic growth especially those that facilitate the growth of dependent sectors are not well defined and are not up to task to pave way for economic empowerment of local people.
  • There is a missing link between community, public sectors, Non- governmental organization and corporate sectors to collaborate and spearhead common agenda for development and growth.
  • There is lack information among small business owners that resulted to many people closing their businesses after few months, therefore there is need for relevant sectors to provide training on enterprise management, micro-finance initiatives to help them grow.
  • Isiolo town need strategic business hub oriented strategic plan to promote missing business diversity among the business community.

MALFEASANCE AND FINANCIAL IMPROPRIETY

  • Kshs 62 Million was given to Isiolo County Government by the Transition Authority from April-June, 2013 which was meant for the establishment of County government offices. The fund was grossly misused without any due tendering process hence flouting Public Procurement procedures (Public Procurement and Disposal Act, 2013.
  • Arbitrary hiring or leasing of private vehicles by the Governor and the Deputy governor from their close ally in the name of one Abdi Viazi at the rate of Kshs 25,000 per day after election till to date. The Deputy Governor hires his own vehicle; Nissan Navara double cabin at the rate of Kshs 10,000 per day.
  • Refurbishment of County offices furniture through donation from the Turkish Government via their Kenyan Embassy but information from reliable sources had it that County money was used to pay for the same donated items which can be found on the website of Turkish Embassy.

GREY AREAS IN THE SAID FULLY PAID PROJECTS (FINANCIAL YEAR 2013/2014)

  1. Murraming of roads within Isiolo town was single sourced by the Executive for Finance who happens to be sister in-law to the deputy Governor at a whopping Kshs 20 million to Shibli Construction Company owned by the family of Deputy Governor. This project was never advertised, no procurement procedures was adhered to and it was over inflated.
  2. Proposed hydrological studies was not advertised, there was no public awareness & participation if it all it was carried out. The report of the alleged studies was never shared out to the members of the Public. The cost of the said studies was Kshs 6,972,000
  3. Malka-daka Mogore road was done at a cost Kshs. 200,000. This road is located in Isiolo South Constituency and does not require any upgrading. It was properly murramed previously through Isiolo South Constituency Development Fund kitty before 2013 General election. This project was never advertised and it was done through single sourcing. The cost of the project was extremely over-inflated
  4. Installation of KVA stand by Generator was done at a cost of Kshs 6,897,000. Just like other projects, it was never advertised and proper procurement procedures was never followed.
  5. Handling of area for fisheries was done at a cost of Kshs 751,622. This project was never advertised, procurement procedures was never adhered to and it had no sustainable impact on the lives of the people.
  6. Renovation of Livestock Marketing Departmentwas done at a cost of 650,000. It was never advertised and no procurement procedures was followed.
  7. Murraming of drive way and park area at the County office was done at a cost of Kshs 675,000.It was never advertised. Interestingly, it the County office yard was carpeted at an unknown amount.
  8. Consultancy for Environmental Impact Assessment was done at a cost of 4,184,700 Million. There was no advert, no competitive bidding, no citizen participation and the alleged concluded report was never released to the public.
  9. Award the improvement of Isiolo township car parking bays at a cost of Kshs 19,380,109 Million.This project was single sourced and it was given to the cronies of the Governor. The job was shoddily done by cowboy contractors.
  10. 8 Second hand tractors with plough (Kshs, 30, 000,000 Million) and 5 ambulances(Kshs 29,667,000) The said tractors and ambulances were donated to the Isiolo county government by USAID and UNDP and a colossal sum of money was withdrawn from the county exchequer for purchase of the same donated items. To date those tractors have not been utilized and are at the parking yard of the County government offices. All the ambulances have broken down.
  11. Kshs 121 Million meant for famine relief was approved by the County Assembly. The tender was single sourced and it was awarded to the famous crony of the Governor called Abdi Viazi who is the owner of Wajir Vegetable Ltd. The shocking thing is, out of the Kshs 121 Million, 30 Million was given to elected County representatives to buy and distribute food to drought stricken wards. Several parts of the County wards did not get the said food items. Much worse, from the 30 Million, it was alleged that the County representatives and the suppliers looted it. 91 million was pocketed by the Governor in connivance with the rogue supplier. Information from reliable sources intimated that the Governor used the same money to impeach the Speaker by buying some of the County Reps.
  12. Purchase of Medical drugs at a cost of12,000,000 Million. This is absolutely outrageous!!! There was no advertisement and there are no drugs in all the health facilities in the County. In fact Medical Superintendent of Isiolo General Hospital resigned due to frustration (Dr. Al Amin). As we speak, there are no supplies of food to the in-patients.
  13. Purchase of certified crop seeds was done at a cost of 5,000,000. Million Interestingly, the naïve and ignorant people of Isiolo County have never had of this project, therefore this was a white elephant project.
  14. Purchase of Veterinaries supplies was done at a cost of Kshs 4,000,000 Million. This was once again like all other projects, it was never advertised, no competitive bidding and the resilient pastoralists have never seen this supplies!!!!!!!!!

OTHER PROJECTS

  1. Town Public Park at a cost of 31,513,862 Million. It is located opposite Jamia masjid (Mosque) along Isiolo –Nairobi road was also single sourced and awarded to one Abdi Viazi, who is a crony of the Governor.
  2. The solar powered street lighting project was a donation from a non-state actor but a proxy company was single sourced by the Executive. It was allegedly allocated Kshs 120 Million from the County government coffer for the said projects. The project was single sourced. People have christened the street lights as lamp posts because it emits light like that of a candle. County government spends a whopping 5, 00,000 paid to security guards in the name of protecting of the said street lights. As we are speaking most of those street lights are not working.
  3. The recurrent expenditure for fuel is arbitrarily given to private and personal cars without official approval by the designed authority.
  4. Kshs 46 Million was withdrawn from the County Government exchequer for bribing some Members of the County Assembly to impeach the Speaker. The scheme was hatched and crafted by the Governor and supported by both Senators (Elected Nominated)
  5. Kshs 12 Million was withdrawn on 30th June, 2014 in the name of legal fees for the lawyer representing the Governor. 10 Million Was later reverted to the Governor from the lawyers account through proxies hence the flow of that money necessitated investigation by the Ethics and Ant-Corruption Commission
  6. Within a period of a year the Governor has enriched himself and acquired several properties registered under the name of his close families including his father in-law of his first wife. These properties include;
    • Gadhisa Hotel-(74 Million)
    • Lavish house in Lavington
    • Nursing Home in Tullu Roba, Isiolo
    • Luxury house in Nanyuki for his second wife whom he married mid last year- call it devolved families!!!!!
  7. All the Executive Committee attend workshop organized by N.G.O’s and Government and they are paid night out allowances and per-diem by both Government and Non-state actors
  8. Kshs 800 Million Equalization fund meant for road projects in the entire County was grossly misappropriated by the Executive for roads in connivance with Governor. Further investigations need to be pursued in relations to their bank accounts and also close relatives
  9. Saud Arabia and Qatar governments are said to have partnered with the Isiolo governments on various projects. This donation has never been disclosed to people of Isiolo County contrary toCounty Government Act, 2013, Section 87 (a-g) on Citizen Participation.
  10. Fencing of perimeter wall of Isiolo General Hospital which was financed by German Government through the defunct Ministry of Medical Services (Prof. Anyang’ Nyongó was the Minister). The project again, like all other contracts was single sourced and given to politically correct contractor. The same projects was financed by the County Government again
  11. The outstanding imprests by members of the Executive which is unaccounted is huge. This was also reflected in the Auditors General’s report
  12. Kshs 8.4 Million was spent during Isiolo county’s anniversary celebration without the approval of the County Assembly
  13. County Assembly representatives were allocated Kshs 750,000 for the 10 wards in the name of staff salary for the year ending June, 2014 which contravenes Public Finance Management Act, 2010. To date none of the wards have working staffs and offices.
  14. On numerous occasions some Members of the County Assembly were bribed to bring statements and motions to the Assembly in favour of the Executive. Such fraud trickster approach has always been bank rolled by the Governor.
  15. Over payment of sitting allowances above the normal ceilings as set by Salaries and Remunerations Commissions.
  16. Unnecessary trips by the entire Members of the County Assembly to Dubai where each of them were given Kshs 500,000. The trip had no value to the mandate and activities of the Assembly whether in terms of oversight or parliamentary practice. Two (Charri & Garbatulla Ward) of the county Representatives never went for the trips but they were also given the said amount.
  17. The Governor rarely comes to the office and as such some pundits call him absentee Governor or ‘MH370’ (missing Malaysian plane). Most of the time he spends working hours in Shamz Hotel (owned by his chief campaigner; Abdi Viazi), Sarova Hotel, Ashnil, Simba Lodge and Laico regency in Nairobi. All these, at the expense of taxpayers’ money.
  18. In the month of May (2014) the Governor paraded a group of women to sing for him some political songs in praise of his mediocrity leadership. Their bill was also footed by taxpayers’ money. Is he copying the scripts from the late Iddi Amin or Gaddafi?
  19. Several ghost workers are employed arbitrarily by the Governor, particularly from his clan hence ballooning the wage bill of the County
  20. Handpicking of individual contractors who happen to be his cronies( Wajir Vegetable Ltd & Baretu Construction Company) or political foot soldiers without meritocracy or following proper procurement procedures
  21. County Government money is badly misused for fundraising, Harrambees and weddings to those who supported the said Governor.
  22. The County Executive and the Assembly is embroiled in myriads of litigations which has extremely hampered the delivery of much required services by the people of Isiolo County.
  23. A section of the County Assembly Members allied to the Governor snubbed the Speaker, made their own make-shift Mace made of wood and without substantive staff purportedly approved the supplementary budget which was declined by the Controller of Budget and subsequently injuncted by through the Court. To date, the supplementary Budget has neither not been approved legally by the Assembly.
  24. As things stands the Governor has proved to be crafty, slippery, cunning and indecisive. The last resort to this ugly scenario is to petition the President to dissolve the County. Seemingly, being a Jubilee County the government is not keen on taking Makueni way

ABUSE OF OFFICE

The Isiolo County Government logo is illegal. It was designed and used without the approval of the County Assembly which contravenes County Governments Act, 2012- County symbols.

  1. (1), (a,b,c)

(2) The County Executive shall develop the symbols of the county through a consultative process for approval by the county assembly by legislation.

(3) The county legislation enacted under subsection (1) shall provide for the use of the county symbols in the same manner as provided for in the National Flag, Emblems and Names Act (Cap. 99).

(4) A county symbol shall not be the same as, or bear a likeness or similarity to a National symbol.

  1. Blatant misuse of County vehicles by the Executives to attend to personal matters and entertainment spots beyond working hours, public holidays and weekends. More so they drive themselves. In certain instances convoy of County Government vehicles are used to ferry people as far as 300Kms to grace the weddings of Governors kinsmen with full security detail accompanying Governor’s wife, the best example was on 24/4/2014 in Garbatulla.
  2. Hiring of Mediocre personnel (drivers) from the Governor’s clan while the Ministry ones are left idle with no work to do
  3. Skewed Appointment without following due process of law: The Constitution of Kenya stipulates: Article 179. (1) The executive authority of the county is vested in, and
    exercised by, a county executive committee. (2) The county executive committee consists of—
    (a) the county governor and the deputy county governor; and
    (b) members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly.
    (3) The number of members appointed under clause (2) (b) shall not exceed—(a) one-third of the number of members of the county assembly, if the assembly has less than thirty members; or (b) ten, if the assembly has thirty or more members.
    (4) The county governor and the deputy county governor are the chief executive and deputy chief executive of the county, respectively.
    Was Article 179, clause 3 (a) and (b) followed?
    County Governments Act, No 17 of 2012
    Appointment of county executive members
    (1) The governor shall, when nominating members of the executive committee—
    (a) ensure that to the fullest extent possible, the composition of the executive committee reflects the community and cultural diversity of the county; and
    (b) take into account the principles of affirmative action as provided for in the Constitution.
    (2) The county assembly shall not approve nominations for appointment to the executive committee that do not take into account—
    (a) not more than two thirds of either gender;
    (b) representation of the minorities, marginalized groups and
    communities; and
    (c) community and cultural diversity within the county.
    (3) A person may be appointed as a member of the county executive committee if that person—
    (a) is a Kenyan citizen;
    (b) is a holder of at least a first degree from a university recognized in Kenya;
    (c) satisfies the requirements of Chapter Six of the Constitution; and
    (d) has knowledge, experience and a distinguished career of not less than five years in the field relevant to the portfolio of the department to which the person is being appointed.
    (4) A member of the county executive committee shall not hold any other State or public office.
    Was Section 35 of the County Government Acts followed to the letter?

CONCLUSION

All the actions above breaches the Constitution of Kenya and the relevant statutes!

Chapter 11 of the Constitution, Transition to Devolved Governments Act, 2012, County Government Act, 2012, Public Finance Management Act, 2012, Transition County Appropriation Act, 2013, Intergovernmental Relations Act, (No, 2 of 2013) and Public Procurement and Disposal Act, 2013

NRT UNMASKED: A CONSPIRACY IN THE WILD

 

For over 10 years, the Northern Rangelands Trust, a Kenya-based conservation initiative, has been acquiring land in the arid north of the country. Today, it controls almost 10% of Kenya’s land mass. Environmental journalist John Mbaria investigates. (Courtesy of the New African Magazine)

In its dying days, the Obama Administration pumped massive amounts of money into supporting a powerful NGO accused of using below-the-radar tactics to control a huge amount of Kenyan land, thereby using conservation as a subtle tool for dispossessing tens of thousands of pastoralists, who have unwittingly participated in their own dispossession.

Much of the land, whose control is enforced by local well-armed militias, has recently been granted UN-protected status. And with financial backing from powerful Western donors, the Northern Rangelands Trust’s (NRT) activities are largely insulated from public scrutiny.

Unless the new Trump administration discontinues the US government’s support to wildlife conservation in Africa, the NRT is set to continue having a say over vast, mineral-rich lands in the north and coastal areas of Kenya.

Most of these lands have been identified, in official documents, as areas of immense potential capable of becoming the very basis of the country’s future economic progress. These areas are also crucial to the maintenance of the extensive livestock husbandry practised by millions of pastoralists in northern Kenya.

Today, the NRT effectively controls 44,000 km2 (or 10.8m acres) of land – that’s roughly eight per cent of Kenya’s 581,309 km2 landmass. Interestingly, the organisation appears to have acquired a decisive say over these lands by co-opting the local leadership. Consequently, NRT’s control of the lands in Kenya’s Upper Rift, North and Coastal areas is facilitated by local political and community leaders, some of whom are co-opted as members of the organisation’s Board.

This has been done through community wildlife conservation, a model in which landowners assert the right to manage and profit from wildlife on their lands.

Conservancies have proliferated across pastoralist, wildlife-rich areas in northern and southern Kenya. They are also an extremely attractive funding prospect for Western donors in the conservation sector.

All the cash is handed over, not directly to the landowners, who have constituted themselves into 33 community conservancies, but to the NRT, which acts like a middleman and which has taken up not just conservation, but other roles (including security arrangements) that are ordinarily performed by national governments.

Among the biggest financial supporters of NRT, the former Obama administration consistently extended tens of millions of dollars to the organisation through the United States Agency for International Development (USAid). As if to underscore how important the NRT’s work was to the Obama Administration, the organisation’s Chief Programs Officer, Tom Lalampaa, and its founder, Ian Craig, were among the people given the privilege of making short presentations about their work when the former US president visited Kenya last July.

America’s latest support to the organisation was announced in a press statement released by the US Embassy in Nairobi in late November 2016. In the communiqué, the US Ambassador to Kenya, Robert F. Godec, said
the US’s new 5-year, $20m support was meant “to help expand” the NRT’s operations in Coastal
Kenya.

He hailed NRT’s partnership with the communities, terming it “a shared vision of protecting ecosystems and promoting peace for a better future”. He added that the cash would be used to support the work of community rangers, to conserve wildlife and fisheries, improve livelihoods, and advance women’s enterprises.

For its part, NRT, through Craig (who signed off as the organisation’s Director of Conservation), said the cash would be used to fund the opening up of new conservancies and create a conservation trust fund.


The former Obama administration consistently extended tens of millions of dollars to the NRT through USAid.


Though the US government believes that the NRT shares “the visions of protecting ecosystems” with the communities in Upper Rift, the North and on the Coast, recent developments in Kenya have proved otherwise. Indeed, the US support comes at a time when some well-armed herders, from some of the same communities the NRT has helped to form community conservancies, have invaded sprawling private ranches in Laikipia and elsewhere, leading to human fatalities, the killing of wild animals and forcing the deployment of specialised security units from the Kenya police.

The work of NRT and the West’s support to conservation in some of Kenya’s arid-and-semi-arid lands has altered the human/ wildlife dynamics in some areas. This has also invited curious concern from conservation experts, who believe that the US and other countries in the West have been supporting a controversial organisation that has been usurping the role of Kenya’s human and wildlife security organs, as well as destroying the age-old ability of tens of thousands of herders to live off their land.

As New African found out in extensive visits and interviews with different people in the affected areas, the NRT-inspired community-conservation model is simple and can be quite attractive for anyone ignorant of its implications, especially for the lives and livelihoods of local people.

After co-opting the local leadership, the NRT appears to have crafted MOUs with the communities owning the vast tracts of land. In most cases, the communities’ land-ownership claims are based on the most rudimentary rights – an ancestral claim to the land.

Community members are also reputed to retain significant respect for, and allow themselves to be guided by, local leadership which, in most cases, uses its standing in communities to advance, and persuade “lesser” members of communities to conform with the wishes of the NRT.

This is not so difficult as the organisation has come up with quite an attractive package for the  communities, including securing for them investors interested in developing lodges and other tourism facilities, once they agree to set aside some of their lands for exclusive use by wildlife and the investors.

NRT also promises bursaries for school children, employment for community members, a ready market for the livestock and the setting up of a grazing plan to prevent livestock deaths through drought in the drylands of Kenya.

“NRT’s approach is quite attractive to communities who have been neglected by successive governments in Kenya since the country attained independence from the British,” says Daniel Letoiye, a Samburu County resident who previously worked as a programme officer with NRT.

However, hidden in the fine print are consequences that are considered grave for the pastoralist groups in Northern Kenya. “Even when droughts occur, many of the pastoralist groups [who have signed up to the agreements] cannot access part of their lands that are now set aside for wildlife conservation and which constitute community conservancies,” says Michael Lalampaa, an official with the Higher Education Loans Board who hails from Samburu County.

Samburu comunity elders discuss their perspectives with the author in Samburu County

Lalampaa complains that the NRT compels communities to set aside the best portions of their lands for the exclusive use of wildlife and the tourist investors. Lalampaa says that the organisation usually identifies leaders and elites within relevant communities who aid in persuading the pastoralists to set aside big parcels of land for conservation purposes. “Once the agreements are put in place, it becomes impossible for the herders to access some areas with pastures in the conservancies … they are confronted by armed scouts who evict them.” He adds that it is “sad that at times, livestock ends up dying simply because the owners cannot graze the animals in what used to be their own lands.”

This has proven problematic especially since vast sections of the relevant rangelands have been depleted year-in, year-out by overgrazing and are inhabited by people who have become increasingly vulnerable to the devastating effects of climate change.

As a result, hundreds of thousands of livestock end up competing over the remaining patches of grasslands and dwindling water sources such as the Ewaso Nyiro River.

This happens, as copious reports show, in an area largely ignored by the Kenya government, inhabited by

morans, have taken up cattle- rustling as a traditional pastime.

Claims have also been made that NRT’s activities have far-reaching implications on the entire country and therefore need to be handled with more than casual attention by Kenya’s allies across the world, the government as well as the people of Kenya.

“The sheer geographical, financial, cultural, and political scale of this intervention calls for a lot more thought than has been given to it thus far,” said Dr Mordecai Ogada, a conservation consultant based in Laikipia County.

Dr Ogada believes that the Kenya Wildlife Service (KWS) has “abdicated” from its responsibility to inspire the formation and sound management of conservation activities outside Kenya’s protected areas. But top officials at KWS – which has lately been experiencing financial difficulties – deny this, saying that they see no problem with the operations of the NRT.

However, KWS appears critical of recent moves by foreign governments to fund the NRT. “Conservation NGOs like NRT have recently benefited from funding from development partners, following the paradigm shift where development partners and other governments prefer to fund communities through NGOs rather than governments directly,” said Paul Gathitu, KWS spokesperson and head of corporate communications.

Attempts by New African to elicit comments from NRT met with no success. Nevertheless, on its website, the organisation – which calls itself a “movement” – announces that it has been raising funds to aid the formation and running of conservancies.

NRT also says that it supports the training of relevant communities and helps to “broker agreements between conservancies and investors”. It claims that it provides donors with “a degree of oversight” by participating directly in how community conservancies and incomes accrued are managed. This was evident as New African toured eight conservancies in Isiolo, Marsabit, Samburu and Laikipia, where NRT has appointed its own managers who are in charge of the day-to-day running of the conservancies.

Besides the managers, there are the members of the Board and grazing committees who are, on paper, supposed to be making decisions that suit the needs of the true owners of the land.

However, there is evidence that main decisions are made by NRT and that the organisation has maintained little or no engagement with the owners of the land and local public institutions.

Besides the US, NRT’s activities are funded by a host of other private companies and bodies in the West. Some of the principal donors to NRT include the Danish Development Agency (DANIDA); the Nature Conservancy (a US-based international NGO); and Agence Française de Développement (AFD) of France. NRT is also bankrolled by other donors who fund its long-term programmes – including Fauna & Flora International, Zoos South Australia, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ of Germany), US Fish and Wildlife Service, San Diego Zoo, International Elephant Foundation, Saint Louis Zoo, Running Wild and others. These latter donors have boosted what NRT terms a pooled conservation fund that has a lifespan of more than five years.

The Tullow Oil Company, that has been involved in oil prospecting in Turkana County, has funded NRT to the tune of $11.5m in a five-year project meant to aid the latter in establishing and operating new conservancies in Turkana and West Pokot counties.

Seventy per cent of the money was meant to go directly to community conservancies’ bank accounts for meeting operational costs (i.e. staff salaries, the purchase and running of vehicles, the acquisition of computers and other equipment), while 30% was to enable the formation and management of the conservancies.

The NRT has maintained little or no engagement with the owners of the land and local public institutions

But this did not go down well with the Turkana County government, which declared the relevant conservancies illegal, with the County Executive for Energy, Environment & Natural Resources ordering NRT to stop its operations there.

Later, the County Governor, Josphat Nanok, termed NRT’s move to establish conservancies in Turkana as “ill-advised with a hidden agenda”.

Josephat Nanok, Turkana County Governor

Dr Ogada believes that the millions of dollars in grants given by the US and other countries in the West have made NRT a “launch pad” for what he terms “a new conservation paradigm” in East Africa.

“NRT has championed this model of conservation very actively for the last decade [resulting] in a situation where challenges or mistakes aren’t spoken about by donors or implementers because of the sheer scale of professional and financial investment in an institution [which like all others] does have inherent weaknesses,” he added.

The NRT’s security function is considered one of the most controversial aspects of the community conservancy movement in Kenya. Usually, maintenance of security within countries is a preserve of governments. But on its website, the organisation says that it inspires community conservancies to “tackle insecurity holistically”.

This includes conducting anti-poaching operations, wildlife monitoring and providing what it terms “invaluable [support] to the Kenya Police in helping to tackle cattle rustling and road banditry”.

The organisation says that by 2014, it had facilitated the training of 645 rangers who operate in the conservancies while Dickson ole Kaelo, the chief executive of the Kenya Wildlife Conservancies Association, reported that over 2,300 community rangers have been trained so far.

Normally, the organisation selects community members and takes them for training by the KWS’s personnel at the wildlife agency’s Manyani Training School, close to Kenya’s biggest national park, Tsavo.

Here, the rangers are taught “bush craft skills, as well as how to effectively gather and share intelligence, monitor wildlife and manage combat situations”. The involvement of KWS in the training of the community rangers was confirmed, but downplayed, by Michael Kipkeu, KWS’s Senior Assistant Director in charge of the Community Wildlife Service. “The KWS law enforcement academy provides tailor-made community scouts’ training.”

After being trained by KWS, the rangers are given more advanced training than what is posted on the NRT’s website. For instance, according to the Save the Rhino NGO, the rangers are given Kenya Police Reserve accreditation and “sufficient weapons handling training”.

Such advanced training involves tactical movement with weapons, ambush and anti-ambush drills, handling and effective usage of night-vision and thermal-imaging equipment, and ground-to-air communications and coordination.

There are also suspicions that the bigger scheme is to ensure that Kenya unwittingly “forfeits” some of the lands under the NRT by getting them declared by UNESCO as World Heritage Sites.

The scheme to have UNESCO declare some of the biggest private game ranches and wildlife conservancies in Laikipia, Samburu, and islands in the Coast as World Heritage Sites is now being pursued in earnest.

“Legally, the move may not amount to much but knowing how lobbying is done, if the government were to [seek to] change ownership, listings would be put up to demonstrate how special these ranches are and why they should remain with the present landowners,” said Njenga Kahiro, a former Programme Officer with Laikipia Wildlife Forum. The aim, Kahiro avers, is “to create a super-big protected area … all of it [covered by] the World Heritage Convention.”

PETITION ON BRUTAL MURDER OF YOUTHFUL IBRAHIM MOHAMED HUKA BY GSU OFFICER IN ISIOLO ON 20/05/2017

                                       21/05/2017

Macharia Njeru,
The Chairman,
The Independent Policing Oversight Authority,
1st Ngong Avenue, ACK Garden Annex, 2nd floor,
P.O. Box 23035 – 00100
NAIROBI.
E-mail: info@ipoa.go.ke

Dear Sir,

RE: BRUTAL MURDER OF YOUTHFUL IBRAHIM MOHAMED HUKA BY GSU OFFICER IN ISIOLO ON 20/05/2017

I am kindly petitioning your esteemed instutition regarding the above emotive subject which is not only inhumane but also a beastly act on the part of the security officer meted against an unarmed and innocent 21-year-old man who has not committed any unlawful acts. Ibrahim was shot dead during a peaceful political procession along the Marsabit – Garba Tulla junction in Isiolo town on Saturday at 4.30 PM by General Service Unit officer who had gone to clear the road so that they may proceed with their Journey.

Supporters of a Jubilee Party team who were on a peaceful roadshow candidly reported that the officer aimed and shot at the deceased as he was running for his life. Among prominent personalities who witnessed the incidents include Isiolo County gubernatorial candidate on jubilee tickets; Hon. Abdul Bahari, Isiolo North Member of Parliament Hon. Joseph Samal, Senatorial aspirant Mohammed Liban, Woman Representative aspirant Rehema Jaldesa and Isiolo South Aspirant Abduba Molu.

The deceased was rushed to Isiolo County Referral Hospital which was a few kilometres away from the scene of crime. Isiolo Medical Superintendent Stephen Kiluva confirmed that the man was already dead upon arrival. Detectives who visited Isiolo County Referral Hospital reported that the man was shot in the head. It was also reported that the political leaders and other stakeholders had earlier raised a complaint to security officers specifically to Isiolo County Commissioner George Natembeya on a plot by their rivals to disrupt their rally and they did seek security for their supporters and that of opponents as well. However, their plight to the County security boss fell on deaf ears. The broader picture here is one of utter impunity and our fear is that the pattern of extrajudicial killings will only worsen with such trigger-happy police officers supervised by compromised security bosses.

The action and complacency on the part of the officers outrightly infringes on many basic rights and freedoms protected in Kenya’s constitution and international human rights law, time is now for the Kenyan security organs to focus on how Kenyan security agencies have for long violated human rights with impunity and discipline such rogue officers especially during this season of electioneering.

Moreover, the Kenyan Constitution, upholds both repealed and present, which included or includes the right to life, the prohibition of torture, inhuman and degrading treatment, the right to a remedy, the right to security of the person and the right to effective remedy, among other provisions.

The Kenyan laws which includes; the Police Act, the Criminal Procedure Code, the International Crimes Act, and various other acts governing the police and policing, among others are clear and well stated.

In addition to that, the International treaties to which Kenya is a party, including the International Covenant on Civil and Political Rights, the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, the African Charter on Human and Peoples’ Rights, the Rome Statute of the International Criminal Court, and the Treaty of the East African Community buttresses the existing homeland security laws.

The Nuremburg Trials forever redefined the course of history. That never again shall any man violate the dignity of others without accountability. Men in uniform who wield the comparative advantage of power and instruments of State over their people can no longer abuse such positions without recourse in law.

In this regard, we are demanding thorough investigations into this heinous killing and prosecute those who are responsible and establish a special team within the Department of Public Prosecutions to ensure that investigations and prosecutions are credible and independent. We want severe action to be taken against this heartless officer within the next 24 hours.

Yours Sincerely,

CONCERNED ISIOLO RESIDENT

Copied to;

Keriako Tobiko ESQ, LLB(Hons), Nbi. Dip. Law (KSL), LLM
(CANTAB), FCCS,
Director of Public Prosecutions,
NSSF Building, Block ‘A’ 19th Floor,
P.O Box 30701- 00100,
NAIROBI.
Mobile: 0723202880/0787880580
Hon. Prof. Githu Muigai- EGH, SC
Attorney General,
Office of the Attorney General and the Department of Justice,
Sheria House, Harambee House,
P.O. Box 40112-00100,
NAIROBI.
E-mail: info@ag.go.ke
Maj. Gen. Joseph Nkaissery, EGH
Cabinet Secretary,
Ministry of Interior & Cordination
of National Government,
Harambee House, Harambee Avenue,
P.O Box 30510-00100,
NAIROBI.
Chairman,
Johnstone Kavuludi,
National Police Service Commission
P.O Box 47363 – 00100
Sky Parkplaza,5th Floor, Westlands,
NAIROBI.
Francis Muhoro Ndegwa,
Director,
Directorate of Criminal Investigations
P.O. Box 30036 – 00100 Nairobi
Mazingira Hse,Kiambu Road.
Opp. Forestry Department Headquarters, Karura
Tel +254 020 3343312.
The Chief Executive Officer,
Kenya National Commission on Human Rights,
Ist Floor, CVS Plaza, Lenana Road,
P.O Box 74359-00200,
NAIROBI.
Phone: +254 20 2717900/020-2717908/073380000/0724256448
The Chief Executive Officer,
Kenya Human Rights Commission,
Gitanga Road opp. Valley Arcade Shopping Center,
P.O Box 41079-00100,
NAIROBI
Phone +254-20 2044545 +254 20 2106763,
Mobile +254-722-264497 +254-733-629034
The Chairman,
National Cohesion and Integration Commission,
KMA Centre, 6th Floor, Mara Rd, Upper Hill,
P.O. Box 7055-00100,
NAIROBI.
Tel- +254-020-2585702/3/1
                               

OPEN LETTER TO ISIOLO COUNTY COMMISSIONER MR. GEORGE NATEMBEYA REGARDING HIS SHOOT-TO-KILL ORDERS

George Natembeya-Isiolo County Commissioner

The attention of the Independent medico-Legal Unit (IMLU) has been drawn to a statement you are said to have issued during a peace meeting in Isiolo on Thursday 12th November 2015 authorizing shoot-to kill-orders against anyone found carrying firearms.

This order, in your view would contribute to curb general insecurity and cattle rustling in Isiolo County. Whereas we condemn crime in all its manifestations, and appreciate you efforts in enhancing public safety and security, it is our considered opinion that your orders are in total disregard of the Constitution of Kenya and the law and will only contribute to aggravating insecurity.

We wish to unequivocally express our dismay at this order that is not only a license for extrajudicial executions but also militates against the rules of natural justice, where one is assumed innocent until proven guilty through a competent judicial process. In addressing crime and insecurity the law has to be safeguarded and such an order is an outright affront to the provision of article 26 of the Constitution on the right to life and an unacceptable violation of the National Police Service Act 2011.

We’d wish to bring to your attention the provisions of the sixth schedule of the National Police Service Act 2011 that sets out the rules and procedures on use of force and firearms by police officers. The law is categorical that force and firearms will only be used where less extreme means are inadequate; ostensibly to protect life and for self-defence. As such, blanket shoot-to-kill orders from anyone must be treated with the contempt they deserve. Any directive contrary to the set legal guidelines must be considered void ab initio. We remain ready to discuss with your good office the possibility of supporting the establishment of the County Policing Authority in Isiolo County with a view to putting in place a more sustainable approach to public safety and security in the county.

We highly value and recognize the critical role played by the National Police Service in fostering public safety and security and it is our considered view that intelligence policing should be strengthened to avert criminal activities not only in Isiolo county but the entire country. Shoot-tokill directives are a thing of the past and should not be replacements to an integrated community driven security agenda for this country.

It is for this reason that we demand that you denounces this directive in order to allay public fears and reassure residents of Isiolo County and Kenyans in general of your commitment to safeguarding the Constitution and the rule of law. We at the same time urge police officers to ignore Mr. Natembeya’s orders and continue serving Kenyans within the ambits of the law.

We appeal to the Director of Public Prosecutions to investigate these utterances with a view to instituting proceedings against Mr. Natembeya.

Signed: Peter Kiama,


Executive director

Independent Medico-Legal Unit