H.e Kofi Annan, the Former Un Secretary General Has Set Very Low Standards for Kenyans; Statement by the Partnership for Change on the Kofi Annan Visit to Kenya Issued at Nairobi Thursday 8, October 2009

H.E Kofi Annan, the former UN Secretary General has set very low standards for Kenyans. Statement by the Partnership for Change on the Kofi Annan Visit to Kenya issued at Nairobi Thursday 8, October 2009


We watched in disbelief yesterday as former United Nations Secretary General Kofi Annan briefed Kenyans on the outcome of his three day visit to Kenya.

Kofi Annan came for three days and scheduled meeting after meeting with the key players of his negotiated agreement to discuss the progress of the National Accord implementation programme. He did not however meet the Kenyan public who are the raison d’être of his negotiated Agreement.

He did not meet with any of the Victims of the Post Election Violence

He did not visit any IDP Camp

He did not meet with any of the Voters from Shinyalu and Bomachoge, the only Kenyans who currently have voters cards, to ask them what kind of elections were conducted by the Interim Independent Electoral Commission on August 27th 2009.

He did not visit any Police cell or prison

He did not leave the Serena Hotel except to visit Kibaki, Odinga, Moi and Marende.

Instead he met the heads of the Institutions that have been created by the Grand Coalition Government; self selected ‘stakeholders’ and his own secretariat. More or les the same people he met in Geneva six months ago when he started talking about the window of opportunity for the National Accord reforms closing. In March 2009 in Geneva Kofi Annan had the following to say

It is not too late for Kenya’s political leadership to lead. Statesmanlike determination to work together to support, if not initiate, actions to implement the recommendations of the Waki and Kriegler Commissions and some of the ideas emerging from this consultation could have a dramatic, positive effect. But at a time when there is a growing skepticism about the behaviour and motives of the ruling elite, the window of opportunity is closing. Time is running out. There is a need to move beyond criticisms and playing blame games. Every element of Kenyan society has a role to play in taking the country forward and Kenyans should take individual responsibility to contribute to this process. You can be sure that the Panel remains ready to assist in every way and I have no doubt that the international community will continue to support you.”

So 6 months later, and without any reference to the Implementation Matrix of July 30th 2008, Kofi Annan’s Verdict after 17 months of the existence of the Grand Coalition Government is: there has been progress. It’s up to the Kenyan Public to put pressure on their Government and Donors should pick up the tab.

Agenda 4 reforms can be found in the Implementation Matrix of the Long term issues. Here the Government has demonstrated that the Grand Coalition Government is unable, and incapable of dealing with Agenda 4. The Agenda 4 issues require resources for which the Government has made no provisions for. The truth is that there will be no Agenda 4 reforms as there is no money for it. A government that fails at the very minimum to plan cannot be given the responsibility of implementing reforms. We need as Kenyans to be candid and accept our fate. We restate our position that the Grand Coalition Government has reached its sell by date.

Kofi Annan did not bother to restate the timelines of the implementation matrix of the National Accord – the mandate rules of the Grand Coalition Government that gave Kenyans a bench mark to measure the success of the Grand Coalition Government in implementing the reforms.

In telling Kenyans to push their Government Kofi Annan failed to tell Kenyans how they were to go about this since there is no democratic space to even don t-shirts in protest. Letters are issued by the Police barring citizens from freedom of protest and expression.

Kofi also asked donors to pay for the folly of the Grand Coalition Government without asking the same Government to provide resources for the Implementation of reforms. As he was making this request the Grand Coalition Government was issuing cheques for hundreds of brand new cars and the IDP’s were sleeping in the cold.

Reports by the BBC that Kenyans were rearming were dismissed by Kofi Annan as rumours and mere criminality – rather than clear evidence of impunity requiring immediate action; rather than the harbinger of crimes against humanity being planned in the Rift Valley.

Apart from that, why did Kofi Annan disappoint?

Kofi Annan set very low standards for Kenyans. Just because Kenya is a not a first world country, does not mean that we do not understand Democracy and the Rule of Law. It does not mean that we want standards lower than the rest of the World. We want to be clear his reform window of opportunity analogy has worn thin, and is now meaningless.

We wish to point out three weaknesses with the way the reform process is going on in Kenya today and then point out 5 practical things that should be pursued to change the direction and pace of reform in order to attract;

Problem analysis

During the KNDAR mediation, the National Civil Society Congress proposed to the Kofi Annan Mediation Panel and the Kenya National Dialogue and Reconciliation Committee that the best solution to the post election crisis was a transitional government for only two years but this was turned into a five year transitional period. This effectively removed the pressure points and incentives for the political class to undertake the reforms stated in the final National Accord Agenda. In fact the political class in Kenya thinks that Kenyans lost their right to elect a clean, lean, effective, accountable and responsive government (CLEAR government). Kenyans have overwhelmingly called for a fresh election because nearly 74% of Kenyans according to an April 2009 Steadman Opinion Poll, do not approve of the performance of this coalition government.

Kofi Annan understands that by accepting the role of mediator he effectively became a servant of the people of Kenya seconded to Kenyans by the African Union. But he seems to tread too carefully in advocating for the people of Kenya before the political leaders he had of necessity to deal with. He accepts at face value what Kenyans have seen through as delay tactics or even outright lies. During yesterday’s press conference he refused to castigate the Government for issuing false statements to the effect that 90% of the reform agenda had been accomplished. And yet every presentation to him indicated that the situation was extremely desperate and dire. Speaking the truth to our Government is what we expect from Kofi Annan. This he may very well have done behind closed doors, but yesterday he missed an opportunity to show his empathy for the victims of this Government’s misconduct and mismanagement. We foresee this as a strategic error in his mediation mission and fear yesterday’s press conference will diminish his respect in the eyes of Kenyans should God forbid things fall apart in Kenya.

So we addresses Kofi Annan as Kenyans he chose to serve and wish to outline that this Coalition government firstly:

a) Is NOT Clean; Your Excellency we have evidence to show that more than 60% of our cabinet consists of Ministers who have been involved in corruption, misuse of office and of individuals who have been involved in the violation of the rights of Kenyans or condoned the same. It is Public knowledge that some cabinet ministers are suspects who might have committed crimes against humanity earning the infamous distinction of being in the Waki envelope. This does not tell us of a clean government. Parliament has been used as forum for dealing where huge bribes are offered to obtain votes. The Judiciary is known to be corrupt. Where are the reformers that will drive the reform Agenda then if we do not turn to the people?

b) It is NOT Lean- such a bloated cabinet and government that remain highly wasteful. Wastage of public funds and resources has given profligacy a new face. Yet as expected, large government is always non effective because you can not coordinate 93 ministers and assistant ministers that are seen to be ODM and PNU ministries effectively.

c) It is NOT Effective- Kenyans are starving and dying all over the nation. There is no policy coherence. The much rumored about harmonized PNU-ODM Manifesto has never been published so the people of Kenya simply do not know what the policies of this government are. The 5 year Development plan based on the vision 2030 does not seem to be followed by any one in government.

d) It is NOT Accountable- corruption has just risen and no one seems to face punishment for the corruption that is all over the country from the local councils, parastatals, in ministries or at State House.

e) It is NOT Responsive – impunity remains intact. Kenyans are being killed by the police; The National Accord from Agenda 1 to 4 has been handled so badly. That same government is using our taxes to do propaganda about reforms.

The Partnership for Change published a technical assessment on the delivery so far on the whole National Accord Agreement from Agenda 1 to 4 and we found that far from the propaganda doing rounds and held as the truth in government circles, the National Accord Agreements, which are Law in Kenya are not being implemented.

Secondly Sir, Last Year during the negotiations, the National Civil Society Congress and the Vital Voices called for a 21-member National Accord Implementation Oversight mechanism to over see the signed National Accord Agreement. The oversight Body would be necessary to ensure that the reform process can and shall be owned by the widest cross section of Kenyans and not by the two principals and the parties in government. This was not granted.

We are very frustrated that the politicians are basically in charge of holding themselves to account. Even progress reports from outside government do not have any impact on the catalyst and facilitative role you are playing to promote implementation of the National Accord. The Partnership for change wrote to you a letter in February 21, 2009 but we have never received a reply from your office Sir.

Thirdly, Clearly the government is not interested in implementing the National accord in accordance with the wishes and demands of the people of Kenya but according to the wishes of the cabinet and PNU and ODM. We therefore in Principle, find it a serious miscarriage of the people’s right to democratic participation in processes concerning them when we do not strong citizens participation in the implementation of the National Accord.

As Kenyans we propose the following five concrete steps to Implementing Reforms

1. The immediate establishment of a 21 member National Accord Implementation oversight Committee to work with the Panel of eminent Africans to ensure the systematic assessment and oversight. We will need a carefully selected Committee of serious and independent-minded Kenyans who represent the widest cross section of the Kenyan nation to sit on the Oversight Committee.

2. That a clear road map be outlined by this Oversight Committee. This is the road map that shall offer clear standards and benchmarks against which the government and all National Accord Implementation bodies and agencies shall be held to account. Right now we are groping in a discretionary Assessment environment. Kenya has since the pre- independence struggle fought for democratization using universal standards as first enshrined in the UN Declaration of Human Rights and the later International Covenant on Civil and Political Rights. This is how we have been advancing our democracy. Kofi Annan is too easy on those violating the peoples’ rights. Now is the time that the standards have been lowered below what can be acceptable to the people of Kenya.

3. That Kofi Annan’s office immediately releases a provisional progress report on the progress. It must be a report that enjoys the greatest input from the agencies that are working on the reform agenda and not government. It must be current to October 2009 – the South report is now out of date. Finally, Government cannot be a referee in its own assignment.

4. We propose that the International Community delivers to the government our clear message that the National Budget as currently partially passed by the National Assembly clearly shows government is not interested in implementing the National Accord. The Partnership for Change has completed a detailed analysis of the National Budget- the most elaborate government policy tool- and we have found out that government is not putting the money where it is required – rather spending is actually away from the National Accord reform priorities. For example the Government Spokesman’s advertising budget is larger than the individual allocations to the Truth Commission and the Witness Protection programme. We want government to review its spending priorities to reflect the National Accord priorities – the Appropriation Bill pending before Parliament should be amended to reflect a new focus as implied by Kofi Annan’s final statement. The window of opportunity for the political elite to continue to perpetrate a fraud on the public by retaining status quo under the guise of lack of resources for implementing the National Accord should be slammed shut now.

5. Lastly, Kenyans are concerned that the voices of the women and the youth of Kenya have become even further marginalized under the Grand Coalition than ever before. Kenyans do not want to be spectators in the governance of their country. These two constituencies represent the vast majority of the livelihood interests of Kenyans. We call for the immediate structural and policy steps to improve the playground for the youth, women of Kenya and the people of Kenya generally. This includes for example the passage of a budget that implements a 60% developmental and 40% recurrent expenditure policy. This will release resources for reforms will benefit the youth and women of Kenya first.

We also recommend that, as the religious leadership and we the Partnership for Change have said before, to ensure that the National Accord is implemented to save our nation from a fresh round of conflict, the Interim Independent Electoral Commission should be empowered to immediately register all Kenyans as voters to vote in the referendum but also to vote for a CLEAR government as soon as possible before 2012. We are keen to cut short the suffering of Kenyans who may be asking themselves: why did Kofi Annan actually come to Kenya and what does he plan for us on his next visit? Hopefully, not another indefinite lease of life to this non-performing Grand Coalition Government OR more talk of reform windows of opportunity closing. Truth is you lose a day every day that we do not implement reforms and no one can predict the exact date the reform window slams shut in our faces. That was a disappointing visit but since it is our country it is truly only our responsibility as responsible citizens.

Issued at Nairobi Thursday 8, October 2009

MARS GROUP KENYA

NCEC

For and on Behalf of the Partnership for Change

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Kenya’s Grand Coalition Government Has Failed to Implement the National Accord Agreement and Its Reform Package. Kofi Annan Must Not Be Fooled by the Government Spokesman, Dr. Alfred Mutua; Kenyans Rate the Reform Performance As (f):- Grand Failure!

Kenya’s Grand Coalition Government has failed to implement the National Accord Agreement and its reform package. Kofi Annan must not be fooled by the Government Spokesman, Dr. Alfred Mutua; Kenyans rate the reform performance as (F):- GRAND FAILURE!


Full page Kenyan tax paid adverts placed by the Government spokesman Dr. Alfred Mutua entitled “THE TRUTH ABOUT AGENDA 4 REFORMS. WHAT YOU NEED TO KNOW TODAY!” appear in the National Dailies today Sunday October 4th 2009.

Kenya’s Government spokesman Alfred Mutua should stop using Kenyan tax money to hoodwink the public on the National Accord Reforms. Indeed, Dr Mutua should be made aware that it is an offence to use public money to mislead the public. Were we in charge, we would order that Dr. Mutua be surcharged for the cost of the adverts. Parliament should go further and strip the Government spokesman of his advertising budget until he pays back the tax payer for this waste of public funds.


In the advert, Dr. Mutua tells Kenyans that the truth about the reforms will shock us and that we are being lied to by the agents of doom. Dr. Mutua goes ahead to rate the Government performance as 90% and gives it an (A) grade. We might be agents of doom according to Dr. Mutua, but there is no way on earth that Kenyans will allow the Grand Coalition Government to keep up what can only be described as “rubbish”

Dr. Mutua should be aware by now, that the National Accord is a matter of life and death for millions of Kenyans and that the grand failure by the Grand Coalition Government to deliver the National Accord is a reality. On February 21, 2009, the Partnership for Change wrote to H.E Kofi Annan explaining that the Grand Coalition Government had failed to keep its part of the National Accord Agreement and that we wanted to vote again. This call was supported by the National Council of Churches of Kenya (NCCK) but ignored by H.E Kofi Annan who is in Kenya this week to assess the performance of the Grand Coalition Government on the Implementation of the National Accord. Unless he is blind to the obvious, Kofi Annan will find the position is exactly as it was in February. Grand failure by the Grand Coalition Government.

People of conscience can’t afford to remain silent on the flagrant abuse of power by so many of the members of the Grand Coalition Government. We must exercise our democratic options to protest abuse of trust by the Government of Mwai Kibaki and Raila Odinga. We must not fear to say the truth that Mwai Kibaki and Raila Odinga do not possess the credentials to deliver on corruption and the National Accord.

The Truth that Alfred Mutua will never mention

We remind the Principals of why they are where they are: “Mwai Kibaki and Raila Odinga our country went through a near death experience because of a botched election in which you were the main actors.” On 28th February 2008, Mr. Mwai Kibaki of the PNU and Mr. Raila Odinga of the ODM signed an agreement known as the National Accord. This agreement was signed because after the botched election of December 2007 and post election violence that followed, Kenya was on the brink of a precipice. No one in Kenya knows who won the Election of December 2007 and therefore Mr. Kibaki and Mr. Odinga cannot claim a legitimate mandate based on votes to rule Kenya. Kenyans gave their consent, for establishment, by constitutional amendment, of a Grand Coalition Government with the sole mandate of implementation of the National Accord. The hybrid form of Government (the so called Grand Coalition) was accepted because we feared for our lives, and we repeat here what we have said for the last 20 months: – that we have not taken leave of our senses and neither have we abandoned our rights. Among these rights is the FULL implementation of the National Accord. The reforms will be implemented, whether by the Grand Coalition Government or not. Kenya will have the reforms of the National Accord because Kenyans are determined to reform our country.

The National Accord was intended to facilitate an effective government to develop the country and conduct essential statutory and administrative reform of key institutions, even while reconciling Kenyans, tackling mass poverty and unemployment, addressing historical grievances, ending impunity and punishing crimes committed during the two month period of post-election-violence that caused the murder of 1,133 Kenyans and the displacement of over half a million citizens .The National Accord was meant to heal and reform Kenya to prevent the eruption of violence from happening again in Kenya.

Since that date 20 months ago, the Grand Coalition Government has dragged its feet on the implementation of the National Accord and has failed to provide money in the National budget for its implementation. The cabinet has failed to establish the tribunal to try the perpetrators. The Executive and Parliament have failed to provide money to ensure that the Special Tribunal is established and the National Accord is implemented. The Partnership for Change considers the Grand Coalition Government to be ruling ultra vires the constitution of which the National Accord is an integral part. The Grand Coalition Government cannot and is not capable of providing the enabling environment for the reform Agenda. Reforms require capable reformists; Mwai Kibaki and Raila Odinga have no reform credentials and have demonstrated none during the 20 months that the National Accord has been in place


Violation of the Human Rights of Citizens – Agenda 1 of the National Accord

On 30 July 2009 The President Mwai Kibaki and Prime Minister Raila Odinga held a press briefing after a 4 hour Cabinet Meeting and released a Statement to Kenyans stating that Cabinet had discussed exhaustively the various options available to deal with crimes committed during post-election violence.

The Grand Coalition Government’s Statement failed to meet the minimum standard set by the Waki Commission of Enquiry on the Post Election Violence with respect to establishing an independent, impartial and effective judicial method to conduct trials of the organizers, perpetrators and financiers of the post election violence. In fact the Cabinet Statement revealed the desire by the Grand Coalition Government to retract its adoption of the Waki Report surreptitiously; to grant the guilty impunity and to deny victims their inalienable rights to truth and justice. As of the date it was submitted to President Kibaki by Justice Waki, Kenya was a state in which impunity was guaranteed for certain connected individuals and Partnership for Change does not believe that anything has really changed since. “Impunity is the impossibility, de jure or de facto, of bringing the perpetrators of violations to account”

The Government’s own Kenya National Commission on Human Rights investigation of the post election period found that the infrastructure of violence was financed and sustained mainly by local politicians and business people to support costs such as transport of attackers, weapons and other logistics. Some of these individuals remain in the Grand Coalition Government today. Some sit in Cabinet.


Mwai Kibaki, Raila Odinga
appear to have no interest other than shielding alleged perpetrators named by the Kenya National Commission on Human Rights and “stopping accountability against persons bearing greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya.” Does Dr Mutua still score 90% (A) on the special tribunal? Dr Mutua claims the Special Tribunal is not part of the National Accord Reforms.

The Jamhuri Day Fiasco

On December 12, 2008, the government of Kenya marked the 45th anniversary of the Independence of Kenya with a deliberate and calculated attack on the fundamental rights and freedom of the Kenyan people. Thousands of Kenyans across the country were arrested and brutalised by the Kenya Police for wearing black t-shirts. Many were detained in holding cells in stadiums, in police trucks and at police stations across the country. By the end of the day all were released save for several members of the Partnership for Change who were held for three days in violation of their fundamental rights.

Today, Kenyans are still unable to demonstrate to protest against the Government. What do we then make of Agenda 1 of the National Accord? Does Dr. Mutua still give the Grand Coalition Government a 90% (A) grade?

Agenda 1 was to restore civil and political liberties to the people, to disarm militia, to stop intra citizen violence, and to end official repression – what Kenyans are saying to the Grand Coalition Government is that this has not happened.

Kenyans will need to see concrete action taken to ensure that militia and gang activity is curtailed and law and order re established. In the Mathira massacre we also saw that the police was condoning the establishment of vigilante armed groups which it appears have also turned rogue. It is incidents such as these where law enforcers turn a blind eye to criminal activity which give the country the image of an insecure country and which affects our economy. Indeed all we see these days is that the police have become the criminals- kidnapping citizens for ransom, executing heists worth millions and even defiling young children, seemingly with impunity.


But having said all that this the grand coalition government has not addressed the issues raised by the UN special rapporteur on extra judicial killings Dr. Philip Alston, and has not embarked on any serious investigation of the murders of two prominent human rights defenders Oscar Kingara and GPO Oulu, or indeed hundreds of other suspicious deaths and disappearances related to police activity some of which occurred after the establishment of the Grand Coalition Government.


There can be no hope of economic recovery if Kenya allows the fixing of the opinion expressed by Prof. Alston that the police are a law unto themselves killing with abandon. The grand coalition government has failed to satisfy Kenyans that it has a plan to end official impunity and to restore the rule of law.


AGENDA 2 of the National Accord – Immediately resettle the IDPs and to provide humanitarian assistance to Kenyans in immediate need

Agenda 2 was to immediately resettle the IDPs and to provide humanitarian assistance to Kenyans in immediate need – out there they are saying IDPs are still in the camps. Even though the president says 90% have been resettled – citizens are asking in what circumstances have they been resettled – on the fringes of national parks? At points have they been resettled where there are no common services, water or sewage?

The two Principals Mwai Kibaki and Raila Odinga rejected the lean and clean cabinet wishes of the Kenyan people and now we have to pay the price of their folly. Almost two years without development, even as the IDPS remain in camps, ten million Kenyans face starvation daily, and the Ministry of Special Programmes admits it doesn’t have the resources to resettle the IDPs.The National Accord Grand Coalition Government has turned from the price for peace to the cause of economic ruin, which is staring us in the face. It has the deserved reputation as being person for person the most corrupt government we have ever had and the main reason why we will neither implement the National Accord Agendas 1, 2 and 4 nor have a hope of achieving the Millennium Development Goals. It has consumed the resources for these noble goals for the personal comfort of its members, and now surely it must go. Kenyans suffer daily as we watch our Government consume what little we have in waste and corruption.


The government needs to explain to Kenyans why it has been unable to plan for substantive resources for its resettlement programme. Is it because as Kenyans suspect the government is corrupt and untrustworthy. And if we are honest this perception is very much grounded in how politicians have conducted business as a grand coalition – maize – triton – Anglo leasing – Ken Ren in the budget – you name it we have seen it. There actually is enough money, if the Government cared to resettle all the IDP’s. The timeline for this exercise was immediately after the signing of the National Accord. It is laughable that Kibaki thinks Kenyans are impressed at his half baked attempt to now resettle the IDP’s giving them coins to start their lives while his finance Minister is on a car buying spree? Does Alfred Mutua still score a 90% (A) for this Agenda?

AGENDA 4 of the National Accord– long term issues

The Grand Coalition Government established after the National Accord is the largest and most expensive cabinet in Kenya’s history. The economic situation required the Government of Kenya to immediately demonstrate austerity measures, including the reduction of the number of ministries to a reasonable number. At Independence there were 13 ministries today there are 43. Kenyans are poor and cannot afford to continue to maintain a bloated Cabinet of 93 Ministers and Assistant Ministers. Many of the 43 Ministries in the Grand Coalition Government have no developmental added value and are mere sinecure positions for The President and Prime Minister to fill.


The National Budgets for the years 2008/2009 and 2009/2010 did not provide resources for Agenda 4 Reforms of the National Accord. There is no money for reforms, there will be no reforms. The Budget 2009/2010 brought to Parliament is unworkable and heavy on wasteful recurrent expenditure for these ministers. Further, the majority of the cabinet is adversely mentioned in Government and Parliamentary reports as being corrupt. Some have even been barred from holding Public office. The two Principals are unable to reshuffle their Government to reduce the number of ministers, and to remove the corrupt ones from the cabinet. Most of those who acquired land illegally are public officials and politicians and documented by the Ndungu report. Those accused of financing and organizing post election Violence are politicians, government officials and businessmen. Those accused of Grand corruption are politicians, government officials and businessmen. Many sit in Cabinet. Those accused of Extra Judicial Killings are appointed by the President and supervised by the Prime Minister.


Agenda 4 reforms can be found in the Implementation Matrix of the Long term issues. Here the Government has demonstrated that the Grand Coalition Government is unable, and incapable of dealing with Agenda 4. The Agenda 4 issues require resources for which the Government has made no provisions for. The truth is that there will be no Agenda 4 reforms as there is no money for it. A government that fails at the very minimum to plan, cannot now be given the responsibility of Implementing. We need as Kenyans to be candid and accept our fate. The Grand Coalition Government has reached its sell by date.


The following agreements and decisions constitute the National Accord:
• 01-Feb-2008 – Agreed Statement on Measures to Address Humanitarian Crisis
• 01-Feb-2008 – Annotated Agenda for the Kenya Dialogue and Reconciliation
• 04-Feb-2008 – Agreed Statement on Security Measures
• 14-Feb-2008 – Agreed Statement on How to Resolve Political Crisis
• 28-Feb-2008 – The National Accord and Reconciliation Act 2008
• 28-Feb-2008 – Agreement on the Principles of Partnership of the Coalition Government
• 04-Mar-2008 – Long-Term Issues and Solutions: Constitutional Review
• 04-Mar-2008 – Commission of Post-election Violence
• 04-Mar-2008 – Truth, Justice and Reconciliation Commission
• 04-Mar-2008 – Independent Review Committee
• 30-Jul-2008 – Statement of Principles on Long-term issues and solutions from 23 May updated with implementation matrix

Mars Group Kenya

For the Partnership for Change

There is No Obligation to Support Kenya’s Unity Government

There is no obligation to support Kenya’s Unity Government

The Partnership for Change is of the considered view that over the last 17 months the citizens of Kenya have exhausted the mechanisms available to us under the national Accord Agreement to cause the Grand Coalition Government to implement the National Accord. This government acting together with Parliament has no vision, no morals and no desire or intent to uphold the constitution of the Republic of Kenya. In fact they are collectively acting ultra vires the constitution. There is no moral reason why Kenyans are still obliged to support this ineffective, rights violating Grand Coalition Government.

The time has come therefore to introduce an initiative by the people of Kenya to deal with this very serious problem. There is an urgent need for a new dispensation as our last resort to save Kenya from becoming a failed state. We should as the people of Kenya now evaluate our support and consent for the Grand Coalition Government by putting the question by way of causing a referendum which shall ask the following questions to the people Kenya directly.

  • Should Grand Coalition Government continue to govern?
  • Has the Grand Coalition Government outlived its usefulness,
  • Has the Grand Coalition Government become a national disaster?

If the answer to this question at the referendum is YES by more than 50+1 margin, then a fresh election should be conducted immediately.

There is no other way of moving this country forward. This route is absolutely important because the other options provided by the National Accord are in the control of the rulership which is insulating itself from accountability and contains a large number of suspected perpertrators and finaciers of the post election violence which murdered 1,133 Kenyans and displaced well over half a million citizens leaving them homeless and impoverished .

It is now clear that the Grand Coalition Government shall not deliver a new constitution. It shall not have one of the parties pulling out and the president is not going to dissolve Parliament. Only a people driven mechanism can save the nation from plunging into disaster by carrying out the referendum.

The Warning Shot… Mr Kibaki and Mr. Odinga must know by now that history is on the move.

On 28th February 2008, Mr Mwai Kibaki of the PNU and Mr Raila Odinga of the ODM signed an agreement known as the National Accord.

This agreement was signed because after the botched election of December 2007 and post election violence that followed, Kenya was on the brink of a precipice..

No one in Kenya knows who won the Election of December 2007 and therefore Mr Kibaki and Mr Odinga cannot claim a legitimate mandate based on votes to rule Kenya.Kenyans gave their consent, for establishment, by constitutional amendment, of a Grand Coalition Government with the sole mandate of implementation of the National Accord.

The National Accord was intended to facilitate an effective government to develop the country and conduct essential statutory and administrative reform of key institutions, even while reconciling Kenyans, tackling mass poverty and unemployment, addressing historical grievances, ending impunity and punishing crimes committed during the two month period of post-election-violence that caused the murder of 1,133 Kenyans and the displacement of over half a million citizens

The National Accord was meant to heal and reform Kenya to prevent the eruption of violence from happening again in Kenya.

Since that date 17 months ago, the Grand Coalition Government has dragged its feet on the implementation of the National Accord and has failed to provide money in the National budget for its implementation. The cabinet on numerous occasions has failed to agree on the mode of trial of perpetrators of the crimes against humanity committed in Kenya in the post election period. Parliament has failed to establish the tribunal to try the perpetrators 17 months later. The Executive and Parliament have failed to provide money to ensure that the Special Tribunal is established and the National Accord is implemented. The Partnership for Change considers the Grand Coalition Government  to be ruling ultra Vires the constitution of which the National Accord is an intergral part.

Grand Coalition Government sweeping gross crimes under the carpet

The Grand Coalition Government is also sweeping gross crimes committed against Kenyans under the carpet and is misrepresenting its ability to try criminals.The post election violence will definately forms the basis of an investigation by the International  Criminal Court for crimes against humanity committed in Kenya. These crimes were financed and organized by senior politicians and businessmen. We are grateful to the Government’s own body, the Kenya National Commission on Human Rights (KNCHR) for releasing the names of those who need further investigation. These names were provided to the KNHCR by Kenyan citizens – eye witnesses – conspirators – and victims. The release of these names for us as Kenyan Citizens is crucial because now we know those, who are probably behind the chaos in our country. We know that they are dangerous and will remain so until they are cleared in a transparent judicial process. Kenyans will not hero worship warlords.

Despite the clamour for justice, the tribunal to try these perpetrators has not been set up. Efforts to do so are being frustratrated by politicians, the cabinet and by Parliament. The proposed tribunal has been starved of funds deliberately and there is no serious money in the budget for the tribunal or for witness protection. Those who advocate for local tribunals ignore  the woeful understaffing and resourcing of the Kenyan judicial system.  The National Budget provides for only 20 Judges of Assize this financial year, yet the entire country has no more than 58 superior court judges, and only 287 magistrates.  The backlog of cases according to the latest data from the Ministry of Planning is over 800 thousand cases.

Further to this, there are over 45,000 Kenyan Citizens that are incarcerated daily in remand awaiting justice. A further 130,000 Kenyans are in prisons that have a 16,000 capacity. Kenya has not built any additional prisons since Independence. Hundreds of the thousands of Kenyans are still waiting for Justice. How can we expect Justice from this local pathetic situation.

The Kenyan judicial system cannot, without massive injection of resources and restructuring which could take years, try the post election violence cases that all Kenyans wish for.  Worse a bogus jurisprudence has been created in Kenya since 1964 which claims that the President is above the law and most Kenyan lawyers and Judges hold this position as sacred.  Impunity is built into the Kenyan criminal justice system for the President and those whom he wishes to protect or fears politically as such the Grand Coalition Government is resisting the use of Article 27 and 28 of the Rome Statute.

Members of Parliament and the two principals are aware that under the Rome Statute Article 27: Irrelevance of official capacity,the Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence

Members of Parliament and the two principals are frustrating the process because the two principals are being blackmailed by former supporters who argue that they know there is no Impunity in International Law.

Mr Kibaki and Mr Odinga under the Rome Statute, bear responsibility of commanders and other superiors. Mr Kibaki appointed the Commissioner of Police, Major General Hussein Ali now implicated by Justice Waki,.

Professor Alston and by the KNCHR as one of those bearing the greatest responsibility for the post-election violence.Yet Mr Kibaki, retains the Commissioner of Police as he continues to violate the Human Rights of Kenyans. The truth is that if there were seriousness on the part of Kibaki and Odinga, Major General Ali would have been sacked and would be currently facing prosecution for his role in the Post election Violence as Kenya has not suspended the Constitution, which prohibits murder of its citizens by the State. Infact our Constitution prohibits murder.

Should this government therefore be allowed to misrule on their own terms? Or on the terms of the National Accord as is the Law and the Constitution of Kenya?

And to the International community: How do you find it prudent to continue to do business with a government that is not implementing the National Accord? Is it that we the Kenyan citizens are on our own?

Kenyans want to support all efforts local and international that deal with ending impunity. But Kenyans do not want their efforts frustrated.

The Truth is that we as Citizens of Kenya can withhold our consent

To concentrate their minds Kenyans must focus action at the two principals Mwai Kibaki and Raila Odinga who bear the greatest responsibility for what happens in Kenya.

  • Mwai Kibaki and Raila Odinga have failed to remove the Commissioner of Police Major General Ali severly indicted by investigations into gross human rights violations since 2006
  • Mwai Kibaki and Raila Odinga have failed to remove the Attorney General Amos Wako whose role in refusing to prosecute is extensively discussed in the Waki Commission of Inquiry Report, and who was called ‘the embodiment of impunity’ by the United nations special rappateur on extra judicial executions.
  • Mwai Kibaki and Raila Odinga have failed to uphold the Constitution of Kenya, and specifically the Bill of Rights which protects the citizens they serve.
  • Mwai Kibaki and Raila Odinga have failed to provide resources in the 2008-2009 budget and now in the 2009-2010 budget for the implementation of the National Accord.

The Budget 2009/2010 is not a National Accord Budget. You can search the budget online at government.marsgroupkenya.org for any of the National Accord implementation matrix items. There you will find that the Grand Coalition Government has allocated pitiful amounts for the National Accord.  For example the Truth Commission gets less than 110 million shillings this year. To fulfill its mandate the TJRC would require billions of shillings for investigative services, witness protection, public hearings and extensive legal support and documentation. To add insult to injury, the Budget will now be guillotined on the 31st of August 2009. A new standing order has purportedly taken away our rights to have a vote by vote scrutiny of the Budget until October. It is sad that Parliament thinks it can hoodwink the Public into paying for waste, living large and corruption. The Truth is that we as Citizens of Kenya can withhold our consent.

Signed this 21st day of July 2009 at Nairobi by the Partnership For Change.

Article 27

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2. Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

Article 28

Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a),

a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.