Raila Odinga's Statement On The Judgement of The Supreme Court

STATEMENT OF THE RT. HON RAILA A. ODINGA ON THE JUDGEMENT OF THE SUPREME COURT

29thMarch, 2013

Fellow Kenyans,
...
Members of the media,

Ladies and gentlemen,

Good afternoon,

You will recall that on 9th March 2013, I issued a statement on the conduct of the elections which had just been concluded.

I expressed my deep gratitude to all Kenyans who had turned out massively to exercise their democratic rights to vote and elect their leaders.

I however expressed my dismay that contrary to the expectations of Kenyans, we witnessed the failure of virtually every instrument the IEBC had deployed to ensure free, fair and transparent elections.

I outlined such failures, with concrete examples of the anomalies that all of us witnessed. It was clear that the constitutionally sanctioned process of electing new leaders had been thwarted again by another tainted election. Democracy was on trial in Kenya.

But that has not dented my commitment to constitutionalism and the rule of law.

Enforcing the spirit and letter of the constitution remains the only sure way to peace and prosperity for our young democracy.

My decision to file a petition in the Supreme Court to challenge the validity of the election was a testament of my faith in the independence of our judiciary.

We did so for the sake of our democracy and for the sake of all Kenyans who wanted to exercise their constitutional right to elect their leaders through free and fair election.

We were joined in this endeavour by Africog, which separately filed a petition seeking to nullify the fourth of March Presidential election.

This proves that my petition had nothing to do with personal grudge as contended by the IEBC, Hon Uhuru Kenyatta and Hon William Ruto.

In the petition, I expressed our belief that the court would uphold the letter and spirit of our constitution. I pledged to abide by the court decision.

We prosecuted the case to the best of our ability.

Our legal team, led by Senior Counsel George Oraro compiled formidable and logical evidence showing that massive malpractices occurred during the elections.

We unearthed evidence of technology failure that required a full audit, inappropriate conduct on the part of IEBC staff, irregular and unethical arrangements such as the sharing of servers by IEBC with a competitor and unmarked registers.

We regret that the court disallowed evidence on the grounds that it was either filed late or the court did not have time to inquire into these discrepancies. In the end, Kenyans lost their right to know what indeed happened.

Ladies and gentlemen,

The court has now spoken. Article 140 of our constitution states that “the Supreme Court shall hear and determine the petition and its decision is final.”

Although we may not agree with some of its findings, and despite all the anomalies we have pointed out, our belief in constitutionalism remains supreme.

Casting doubt on the judgment of the court could lead to higher political and economic uncertainty, and make it more difficult for our country to move forward.

We must soldier on in our resolve to reform our politics and institutions. Respect for the supremacy of the constitution in resolving disputes between fellow citizens is the surest foundation of our democratic society.

And the courts should always act within the evolving constitutional culture.

I and my brother and running mate Hon Kalonzo have no regrets for taking our case to court.

Indeed, it is our view that this court process is yet another milestone in our long road towards democracy for which we have fought so long.

Truth, justice and the faithful implementation of the constitution is our best guarantee to peace and security.

Ladies and gentlemen,

It is my hope that the incoming government will have fidelity to our constitution, and implement it to the letter for the betterment of our people. I wish president –elect Uhuru Kenyatta and deputy President elect William Ruto best of luck in this endeavour.

I also wish all the Senators, Members of Parliament, Women Representatives, Governors and others who were elected in the last election success in discharging the expectations of our people.

I want to thank Senior Counsel George Oraro and the members of his legal team for their hard work and devotion in the quest for justice. I would also like to pay special tribute to the Africog legal team led by Kethi Kilonzo for their immense contribution to the rule of law and democracy.

To the Kenyans who supported us and our petition, I want to assure you that I will continue to work for you and with you to build our county, Kenya, and to help you achieve your dreams.

My actions have always been guided by my desire to bring about a better life for all Kenyans, particularly those who are less privileged. The future of Kenya is bright. Let us not allow the elections to divide us. Let us re-unite as a Nation.

Finally, I call on all Kenyans– our supporters and opponents alike – to remember the sacred words of our National Anthem: Justice be our shield and defender;

Thank You and God Bless Kenya.

Chief Justice's Statement on Judges' Security and Elections

Fellow Kenyans,

I have called this press conference to inform the country of two separate but significant events that have occurred in the past one week. I have considered the possible implications of this public statement, but concluded that given the history of this country, such a public disclosure is warranted, necessary, and proper. This statement does not seek to cause alarm but to strengthen the resolve of each and every Kenyan to protect our Constitution, secure our transition, and affirm our future.

On Monday, February 18, 2013, as I was sitting in the Judicial Service Commission interviews for the recruitment of the Deputy Chief Justice, my office received a poison-pen letter from the Mungiki Veterans Group/Kenya Sovereignty Defence Squad. The letter, which was dated Wednesday, February 13, 2013, makes all manner of threats against the Judges, ambassadors and my person. It warns against an adversarial ruling on the Presidential and Deputy Presidential candidacy of Uhuru Kenyatta and William Ruto. The letter extols the violent ‘exploits’ of the Mungiki movement and threatens dire consequences.

This letter was posted only a day before my departure to Dar es Salaam, Tanzania, where I had been invited by the Tanzanian Constitution Review Commission to a one-day event to share my thoughts and experiences on Kenya's constitutional experience. I was stopped at the Jomo Kenyatta International Airport (JKIA) by an Immigration Officer, who insisted that I could not travel because I had not been cleared by Mr. Francis Kimemia, the Permanent Secretary, Head of the Public Service, and Secretary to the Cabinet. I told the official that there is no constitutional, statutory, or policy basis or requirement that provided for the Chief Justice of the Republic to seek clearance to travel from the Head of Civil Service or anybody.

Further, the said Circular that he was invoking to make this illegal demand and decision did not -- rightly so -- even have the Chief Justice listed among the Public Officials on it. It requires quite some courage, ignorance, or political patronage or a combination of all three for an Immigration officer, on his own motion, to summon the confidence to stop a Chief Justice from traveling, particularly in the face of a nonexistent circular! After much haggling, I did eventually travel. The Immigration Shift Supervisor kept insisting that they were awaiting instructions. However, I still find the insistence on permission from Mr Kimemia bizarre to say the least. Even more baffling was that the Chief Registrar of the Judiciary received a purported ‘Clearance to travel”letter by Mr. Kimemia dated February 14, stating ‘..it has been noted the Chief Justice is travelling to Dar es Salaam, Tanzania’.

Upon landing in Dar es Salaam, I received a telephone call from the Director General of the National Intelligence Service, Major-General Michael Gichangi, apologizing for the 'small hiccup' at the airport. I told the DG that a Chief Justice being gratuitously stopped by anybody from traveling cannot fit the definition of a small hiccup, however generous one may want to be. It has never happened on any of my numerous previous trips. I have, therefore, concluded that this is deliberate harassment; and whereas I was keen to have this resolved bureaucratically, I am convinced it is political, and public accountability requires that I make it public.

These two incidents evidence a pattern of emerging harassment against my person, the Office of the Chief Justice, and the Judiciary -- especially since no fewer than five (5) Judges have been attacked in the recent past, with some involving gun incidence – as we head into the elections.

I, therefore, wish to state as follows:

1. Kenyans have invested heavily in this country's democratization, and this investment has resulted in a new Constitution. This Constitution must be protected and guarded jealously. Threats and intimidation of this nature against the Chief Justice, judges, or any other Kenyan or individual must be resisted actively, and rejected resolutely. I have given most of my life to a better Kenya and if taking it is what will be required to consolidate and secure our democratic gains in this election, or even thereafter, that is a price I am not afraid to pay.

2. I have invested heavily in the past one and a half years in creating a new Judiciary. I have repeatedly given my pledge to the country that the Judiciary will not flinch in interpreting the Constitution as is required, a task we have executed very well. For the 2013 General Election, we have done sufficient ground work to handle both pre- and post-election matters in accordance with the law. On February 28, 2013, we shall hold a special session with all judges of the High Court to give Kenyans a final statement on our preparedness. Therefore, candidates or their supporters -- real or claimed -- should not panic. We shall decide all cases independently, and with scrupulous fidelity to the Constitution and the law. Let no individual, group, candidate, or supporter imagine that cowardly and darkly acts such as these will cower us. We have seen and overcome worse, and we will all soldier on for this country. None will be held hostage by a cabal of retrogrades.

3. The Judiciary has, in a private correspondence, communicated to Mr. Kimemia as to the legal position on the matter of the 'small hiccup' to ensure it never occurs again.

4. I believe that Kenyan security agencies, unless they willfully neglect or refuse to, have the capacity and resources to investigate the sources and partnerships of this threatening letter. To this end, I have this morning sent the letter to the Inspector General of Police, the Director of the Criminal Investigations Department, Director of the National Intelligence Service, and the Director of Public Prosecutions to investigate this matter and give the country a progress report. I am also asking the Inspector General of Police to take the necessary steps to enhance the security of judges and other judicial officers at this time.

5. If anybody, any candidate, any party, any agency, or any other actor thinks that it will bend the ear, mind and resolve of this Chief Justice to do anything that is unconstitutional or illegal, then they are mistaken. On any matter that will come before me or the Supreme Court, I and the Court shall operate strictly within the confines of the Constitution. Intimidation and threats are uninvited guests and will not be hosted in the execution of our mandate.

6. The political class must choose whether, either through direct pronouncements or suggestive behaviour, they want a peaceful, democratic and fair election free from the ring of rigging and intimidation, or whether they want to put the country on a path of violence. Whatever choice the political class and leadership makes, they must remain aware that ultimately, the people of Kenya and the rule of law will triumph. The Judiciary is playing its part in protecting and upholding the Constitution; let Kenyans also do their part.
7. I appeal to Kenyans to hold a peaceful election. It is only by so doing that we shall silence these dark forces of retrogression and also advance our constitutional and democratic promise. My fellow Kenyans, with confidence and tribute to the nation, go and vote for our Constitution. It is the only way to reject those who threaten and proclaim violence as a false choice.

Thank you.

Hon. Dr. Willy Mutunga, D. Jur., SC, EGH
Chief Justice/ President, Supreme Court of Kenya

Libya: New evidence shows Gaddafi, Mutassim were murdered by Misrata militias

A man holds a picture of the slained former Libya strong man Muarmar Gadaffi in Tripoli soon after his death.

Human Rights Watch in new evidence has blamed Misrata based militias for war crime for murder of former Libya dictator Muammar Gaddafi, his son Mutassim and 66 other Libyans on October 20 last year.

The evident is set to put into question the Libyan government official account that the two as well as all others who perished at the scene, died during fierce crossfire.

In a 50 page report titled Death of a Dictator: Bloody Vengeance in Sirte the human rights watchdog interviewed families of victims, survivors of the Gaddafi’s convoy and officers in opposition militias who were at the scene.

The report also reviews ‘a large number of video recordings made by opposition forces on their cell phones, some of which show captured detainees at the site of the final battle.”

“Video footage shows that Muammar Gaddafi was captured alive but bleeding heavily from a head wound, believed to have been caused by shrapnel from a grenade thrown by his own guards that exploded in their midst,” HRW says in an online website statement.

The evidence discredits the Libyan government’s and militias claim that Gaddafi and his son died in a cross. It also discredits the widely circulated You Tube video of the former dictator half naked and lifeless body being loaded in ambulance.

“In the (new evidence) footage of Muammar Gaddafi (he) is severely beaten by opposition forces and stabbed with a bayonet in his buttocks, causing more injuries and bleeding,” HRW says in evidence of torture of former Libyan leader before his death.

The evidence also confirms that Mutassim Gaddafi was also captured alive at the scene of the battle and his film in Misrata as he smokes cigarettes and drinks water while engaging in argument with militias was different from his body which was alter paraded on streets with a throat wound showing sign of torture.

“Our strongest evidence for these executions comes from the footage filmed by the opposition forces, and the physical evidence at the Mahari Hotel, where the 66 bodies were found,” said Peter Bouckaert, Emergencies Director at HRW says.

HRW say that immediately after the killing they reported the matter to National Transition Council (NTC) for full investigation and accountability has been dragging its feet to start an inquiry.

“Libya’s challenge to bring armed militias like Misrata militias under control and end their abuses is by investigation the mass executions of October 20, 2011,” Bouckaert says.

HRW now calls International Criminal Court (ICC) which investigates and prosecutes war crimes committed by all sides in Libya after February 15, 2011 to come in if the Libyan authorities are not able or willing to investigate or prosecute.

© Manuel Odeny, 2012