DARE NOT LIMIT MY FREEDOM, THE LAW ACCORDS IT CLEARLY

33. (1) Every person has the right to freedom of expression, which

includes—

(a) freedom to seek, receive or impart information or ideas;

(b) freedom of artistic creativity; and

(c) academic freedom and freedom of scientific research.

(2) The right to freedom of expression does not extend to—

(a) propaganda for war;

(b) incitement to violence;

(c) hate speech; or

(d) advocacy of hatred that—

(i) constitutes ethnic incitement, vilification of

others or incitement to cause harm; or

29

(ii) is based on any ground of discrimination

specified or contemplated in Article 27 (4).

(3) In the exercise of the right to freedom of expression, every

person shall respect the rights and reputation of others.

Today I had to go back and check if I had lost touch with my knowledge on the constitution. To my understanding article thirty three of our constitution (shown above) could have changed, only to be mesmerized that it was still the same. Last month I was a moderator at a forum on youth and democracy, and at the end of the speech I said that the old folks past the “age of God”; which to my understanding of the Bible is seventy years, should not hold any public offices. This was just a sarcastic manner to express it but I at the same time meant it. After that I received several word lashes from fellow learning friends, the church and the public including some elites that I so much respect. They said that my choice of words was wrong and that I was not entitled to say such a thing. You may be surprised when some of you read this article; I was not touched by any of your words, I did not feel a thing because I knew I had done nothing wrong and that I had just done what my freedom requires me to do. I had just expressed myself and what I felt was good for this country. One of my criticizers called me arrogant, rude and a person with personal vendetta. I told her that given another platform I would say the same thing and today I repeat it; “Old leaders should not have a place in Kenya if this country is to realize her full potential towards sustainable development” I am not sure if that is moral, but who said the law is all about morality. I may have failed in that morality test but legally I was very right. No one can limit my freedom to the extent the law provides me with it. Why should I limit myself if the law allows me to do it; we would rather have no such laws on freedom of speech at all! Freedom is not worth having if it does not connote freedom to err.

This trend has now moved nationally it is no longer in that small cocoon of mine.  When senior advocate Ahmednasir Abdullahi said that the government is just playing a “looking pretty game” by making a forty billion road that the only purpose it serves is transporting pineapples, yet the main importation road was a wreck, the president lashed at him. He was purported to spread propaganda and hate speech. Truly is that hate speech. That is a mere fact that any Kenyan needs to look and see it. Why was he just threatened and no action taken. When John Githongo came out and said that he would give information about the government malicious working in Anglo leasing scandal, he was silenced and even forced to leave the country for security purposes. Where is the same government of the people who call themselves reformers currently protecting, upholding and dispensing the same constitution? They are still the same people. But with different formulas of silencing people who are exercising their constitutional rights and freedoms.

The new trend of freedom of speech limitation in our country today is that of abuses and being threatened to be summoned by the Mzalendo Kibunja’s commission. Jirongo came out and said that statehouse was funding some political aspirants. This was not the first time this had been said. The only difference was that previously no specific person had done it but all along it was in the public domain. When Jirongo did it the president came out abusively on public press; “bloody bure”. The state house claims Jirongo is spreading propaganda yet Jirongo has given them the go ahead to sue him or compel him to substantiate his claims. Since then we have never heard from statehouse or anyone else trying to threaten Jirongo.  Kenyans, why can’t we read in between the lines that people are trying to silence us “smartly”, when are we going to stop begging and humbling for what belongs to us? . I am sure you expect me to talk about MRC but I will not you can reflect it on your own.

Our country must morally re-arm. We cannot run a country where virtue is vice and vice is virtue. Kenyans it is the high time that we realized that this fundamental freedom of speech is not something we should fear when exercising it. You should not fear being subjected to anti- reform talks. As for accusations even the divine Jesus of Nazareth was accused of many things; even Martin Luther King Junior was accused of many things; even Mahatma Gandhi was accused of many things. But it is our duty to prove our detractors wrong by our actions. We must stand out for our freedom of speech. A 'No' uttered from the deepest conviction is better than a 'Yes' merely uttered to please, or worse, to avoid trouble. Even if you are a minority of one, the truth is the truth. Freedom is never dear at any price. It is the breath of life. What would a man not pay for living? Kenyans our freedom of speech is much more power than we imagine. In a gentle way, we can shake this country.  Today I proclaim to this nation that article thirty three was meant for you and I, and we should stop at nothing while expressing ourselves under its parameters. I repeat “While it is good to be both nice and right, in this case I prefer to be right rather than nice.” Our freedom of speech has been wrongly used, abused and misused but we should not allow being confused that we are not fully entitled to it. I think it is time you learn from  Miguna Miguna and I.

The columnist; John.S.N is a student of law at Africa Nazarene university, the vice chair of LAANU, a prospectus columnist and political analyst. The opinions written in this column are for the writer himself and not in anyhow those of Africa Nazarene University or LAANU. The opinions given are impartial and no personal vendetta has been expressed. The writer has proof of the facts given and is ready to adduce any evidence if required to do so.

“CLEANLINESS AND INDEPENDENCE OF THE JUDICIARY” A FALLACY!!!!

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  Charles Baron De Montesquieu may have come up with a very good framework of independence of the judiciary long before Kenya knew that she would ever attain her independence. His main logic was the need to have fairness in administration of justice, which could be achieved via independence of the judiciary. I wish he was here today to teach us these methods because it seems to me that they remain a mere rhetoric to Kenya. One word that comes into the mind of any reasonable man (as the law would want to identify people as such) about the judiciary of any government is how clean and independent the judiciary is. How stable it can run on its own without looking for support and stability from other government units in its quest for administration of justice. Ever asked why everyone these days cries for this “independence” thing. I don’t tend to understand it, but to me the people who mostly cry for it are those who tend to think that they are oppressed yet they have the power and capability. Sorry to say, but women and other lazy minority groups such as youth seem to exhibit this a lot in the name of fairness. Yet when they are left to walk alone they come back crying to be accommodated by the same people they demanded independence from. Do they really understand the meaning of that term?

That aside for so long we worked towards the independence of the judiciary and its cleanliness. It is very true that of the three arms of government the judiciary was a real mess. The restructuring of the judiciary saw the coming in of many civil society persons whom for a long time had been transversing the streets fighting and shouting in insanity about the same government that they now serve. We have now given them a chance to work what they felt had not been worked. Dr Willy Mutunga the CJ, Nancy Baraza DCJ currently suspended,  Lady Justice Njoki Ndungu are just but a few newly appointed judges from the civil society. Who said cleanliness of the judiciary is about civil society? Give me a break Kenyans! That is where we went wrong about the whole of this judiciary thing and trust me we will regret it. The amount of noise you make and the many times that you appear on our television screens chanting all manner of words does not mean you are the right person for the job.  True reformers are judged by history not what they say, purporting to be a reformer and yet we don’t know of an institution that you have headed to reform. The tiger does not shout about its tigritude, you see the skeleton of an antelope and you know that some tigritude has emanated, let us follow your footsteps and let history be your judge. It takes more than a sober mind to administer justice and ensure the right systems in place. Look at the greatest judges of the world; Lord Denning M.R, Former American jurist Wender Holmes and Lord Atkinson. Who of them was a civil society member, and was justice administered? Furthermore I have never heard of any of them who pointed a gun to anyone and threatened a life just at mere provocation. An administrator of justice needs not to have a fixed or made up mind of their own. An administrator of justice is who accommodates all ideas and rules from the law or the facts. I doubt that this “civil society judges” will do it.

I want to congratulate the persons who came up with article 160 of the constitution. It is quite a good job and the entire drafting of the whole chapter on the judiciary especially limitation of it powers; independence and accountability are works to give an applause for. However they are just words in paper and if not implemented correctly we will have nothing to write home about this same sketch that has been designed. Let us take a look at some of the aspects of independence that come out clearly in appointment. The president approves the names given to him by the judicial service commission and later forwards the names of those judges to parliament for further approval. The rot begins with the judicial service commission. How do you let the cat look after the mice? Look at the people who it comprises of. The names in the judicial service itself are a wreck. Some are political minded activist who are there to gain fame for their writing and criticism trying to show their holiness than though attitude, the former and latter Attorney Generals are all related to scandals and government psycho fancy, some have allegedly forged their pupilage admission to the bar and taken more than enough from their clients, one of the former judges sitting in the commission was recently fired from office because of corruption, the chair of the commission is a former activist. If you think am making up my own stories check on Ahmednasir Abdullahi, Amos Wako, Githu Muigai, Riaga Amolo and Dr. Willy Mutunga. What good appointments are going to come out of such a commission, tell me Kenyans what? The commission that has been formed to vet the magistrate and judges as part of the cleanup commission is headed by Rashid Rao. He is the former deputy director of public prosecutions who is once on record stating that he doesn’t know of a law that says you cannot detain someone for more than twenty four hours. Currently he is the same person who chases Riaga, Okubasu and Bosire for leading in the same dictatorial manner of detaining people without trial, is that even logical?

 You think it is only that? Now let me shock you; let me remove the cobwebs that have been put before you by this independence and reforms words. Another aspect of the judiciary independence is the funds that are allocated to it. I also have the same belief that such fund should be there to ensure units such as treasury do not blackmail them or make them their subordinates. But that does not justify the asking of eighteen billion and the complaining when getting the fifteen billion that is more than enough. I am longing to see the way the chief registrar will explain the usage of that money in the judiciary fund to parliament. When the newly appointed judges came in there was a salary increment of 300percent, the magistrate said they would go for a strike and 100 percent was given to them. What was that for? Is justice now bought for money? If I were in the position of Willy those salaries of judges should have remained the way they were after all there was more than enough. The magistrates’ salary is what should have been raised. This would have been the clear cut to show the true administrators of justice and those who come for it for the sake of the good package. That is what is happening in America today Judges are quitting and joining lawyers, and then from there we can tell the true noble judges. A Renowned city lawyer Prawvin Bowry argues the judiciary fund point in a, manner that impresses me. He asks where does the money gained by the courts in filing suits taken to? To file a suit in the high court of Kenya today is not less than Seventy thousand Kenya shillings, take a look at the bonds and fine the courts acquire from daily proceedings. Where is that money? Why can’t we use the same and reduce the judiciary fund for other judicial matters such as witness protection and legal aid which are a big problem at hand. In the utilization of public resources allocated to us we must emulate the Stoics and Spartans of old.

 The judiciary is said to vest its powers in the constitution and derive them from the people of Kenya and is not subject to any body about its decisions and judgements. Justice Nicholas Ombija delivered a judgement banning the Sudanese President Omar Al- Bashir from setting foot in Kenya. His Judgement was fought left, right and centre by the, executive to the extent of the AG writing to the Sudanese embassy that the judgement is bogus and the president is still welcomed. That alone is not enough just last week Lady Justice Mumbi Ngugi of the constitutional department gave a judgement on the wrong interpretation of the constitution by the president, during the appointment of the county commissioners. Hours later the president through state house head Francis Kimemia and the Ag said that such judgement is wrong and the county commissioners should remain in office. Of all people the Attorney-General who is a member of the JSC, a part of the judiciary is one person who should know about the appeal avenue and should have done the same for that judgement. What independence is there if there is no upholding of the rule of law through judgements of the judiciary? What they are doing is cleaning and stepping on it with muddy boots before it dries. In matters such as these we cannot but say that it is the dog that wags the tail and not vice versa. I can assure you many such scenarios are going to be seen more often in this new constitutional dispensation and the judiciary shall do nothing about them if they continue with the same way they are working.

The ministry of justice and constitutional affairs headed by presidential aspirant Eugene Wamalwa is also an abyss. The minister is rarely there for official matters. He is always moving from one place to place selling his party for the next general election. How is the judiciary going to work with such a guy? His biggest friends are those who where and still are opposed to the new constitution. How is he going to ensure fair dispensations if the people he works closely are opposed to it? Just a question, they say show me your friends and I will show you......It is when the boat approaches the shore that it capsizes; we must therefore tread with preternatural circumspection in these last phases of the Constitution dispensation Process.

While it is good to be both nice and right, in this case I prefer to be right rather than nice. I will not embrace cheap heroism by pretending to be a fire eating pseudo-revolutionary. I prefer to be called names but I will remain a servant of my conscience and a warrior for truth and justice. I am sick and tired of what I hear of this judiciary independence and cleanliness. So far I can dare Mutunga to come out and show the zeal and zest that he promised in the quest for perfection of administration of the judiciary. J.F Kennedy said that a good builder is he who when called to build best builds the greatest. The judiciary was only asked to build well it has done more than worse and I doubt if the construction will ever end. The road ahead is still tricky and will require a lot of patience, tolerance and level headedness. It is time they started working or they left. I tell you fellow countrymen there is nothing to write home about the Mutunga’s judiciary, its purported cleanliness and reforms.

The columnist; John.S.N is a student of law at Africa Nazarene university, the vice chair of LAANU, a prospectus columnist and political analyst. The opinions written in this column are for the writer himself and not in anyhow those of Africa Nazarene University or LAANU. The opinions given are impartial and no personal vendetta has been expressed. The writer has proof of the facts given and is ready to adduce any evidence if required to do so.