Je ne suis pas #CharlieHebdo

CharlieHebdo 26

We say the words: “Je ne suis pas #CharlieHebdo” (“I am not #CharlieHebdo“) with due respect to all those affected by the terrorist attack at the Charlie Hebdo offices yesterday in the French capital, Paris. As Kenyans, we are all too familiar with the pain, loss and damage caused by acts of terror. So, we empathise with the French people and we say to them: “Poleni sana”. However, as #CharlieHebdo continues to flood timelines, media outlets and newspapers, we must decolonise our minds and remember not to get sucked into the Western Media frenzy. As Kenyans and Africans at large, we have very complex and pressing problems of our own that are not so fortunate as to receive the worldwide coverage currently being given to #CharlieHebdo.

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Anglo Leasing Contracts: Law Society’s Case Against the Office of the Attorney General of Kenya

gado cartoon amicus corruptiae mortician AG Githu

“The man you see before you is the mortician. The patient died on the operating table a long time ago.” – The Hon. Attorney General, Prof. Githu Muigai, SC, on Anglo-Leasing cases.

Earlier this month, the Law Society of Kenya (LSK) went to the High Court of Kenya in the case of Law Society of Kenya v Cabinet Secretary Treasury & The Attorney General [2014] eKLR seeking conservatory orders restraining the Government of Kenya from making payments to Universal Satspace (North America) LLC pending hearing and determination of the LSK’s case against the Executive Branch. Many will recall that Universal Satspace is one of the entities involved in the now infamous Anglo Leasing Contracts under investigation by the Ethics and Anti-Corruption Commission (EACC). However, Majanja, J sitting in the High Court declined to grant the interim orders sought by LSK. In this ruling, the court defers to the Legislative Branch’s oversight authority over national revenue and expenditure.

Folks, there you have it: separation of powers at work!

This past week, the Executive Branch defended its decision to pay KES 1.4 Billion in one single payment to one single bank account to settle debts with respect to “security contracts” with two entities, Universal Satspace and First Mercantile Securities Corporation. The President, the Treasury and the AG have maintained that paying the colossal sum all at once was the only way the country could secure an urgently needed Euro bond or otherwise risk cutting back on government expenditure, service delivery and programmes for Kenyans.

In between time, LSK decided that it would take action against its members: P.105/1421/85, P.105/2913/95 and P.105/1434/85, also known as Prof. Githu Muigai, SC., Mr. Njee Muturi, the Solictor General and Ms. Muthoni Kimani, the Deputy Senior Solicitor General respectively. According to LSK, there are reasonable grounds to believe that the Muigai, Muturi and Kimani have acted in an unconstitutional, illegal and unprofessional manner and have conspired with the Executive Branch in dealing with the Anglo Leasing type contracts and in particular in the case between Universal Satspace and the Government of Kenya.

The following documents have been made public by LSK in support its case against the Office of the Attorney General:-

1. In a letter dated August 11, 2008, the Deputy Solicitor General Muthoni Kimani advised the Government’s Advocates’ not to advance the defence of bribery and corruption. LSK argues that Kimani did this despite reports by Kenya Anti-Corruption Commission (KACC), the Cabinet, Pricewaterhouse Coopers, Public Accounts Committee and the Auditor General to the effect that the contractual documents in the transaction were procured through corrupt practices and that Universal Satspace and First Mercantile had no permanent address. A copy of the letter is available here.

2. In further support of the point above, LSK has made public the request for Mutual Legal Assistance by KACC to the Swiss Federal Office of Justice and Police. In the request, KACC names 20 persons and companies under investigation. The request appears to conclude that the contracts were signed by corrupt Kenyan officials named in return for financial or other inducements. Earlier this year, the EACC confirmed in a letter to the Treasury and the Attorney General that it was still investigating the Anglo Leasing contracts. A copy of the request is available here. A copy of the EACC letter is available here.

3. LSK accuses the Attorney General of entering into an illegal consent in a case filed in Switzerland by First Mercantile Security Corporation. A copy of the judgment in the court of first instance in Geneva is available here.

4. LSK alleges that the government directed the Attorney General (vide Cabinet memo dated 30th September 2010) to engage foreign competent advocates with complex commercial litigation experience to defend the Anglo Leasing type contracts. In this connnection, LSK argues that the Attorney General acted contrary to these directions by frustrating Government lawyers. LSK further argues that the Attorney General appears to have withdrawn instructions in December 2013 from the foreign advocates and that his office unprocedurally took over the conduct of the case. In this connection, the Solicitor General Njee Muturi represented the country before a London Court in December 2013 without a licence to practice law in England and Wales. Therefore LSK argues that the Kenya Government effectively did not have legal representation in the suit and the proceedings are a nullity. A copy of letters sent in vain from government lawyers Edwin Coe, LLP is available here. A copy of the proceedings in the London court are available here.

5. LSK accuses the Office of the Attorney General of scaring the Government into make the Anglo Leasing payments by sending a letter informing Treasury of a threat of attachment of the Kenyan Embassy in Switzerland and the intended Sovereign Bond. A copy of this letter is available here.

6. LSK contends that during the meetings held on 28th March and 1st April 2014, the Office of Attorney General failed to advise the Government which led to the latter’s agreement to settle claims by First Mercantile Securities Corporation and Universal Satspace in one single payment by the end of the Month of April 2014. A copy of the Minutes of the meetings is available here. A copy of the Letters of Agreement between the Government of Kenya (signed by the Attorney General) and First Mercantile Securities Corporation and Universal Satspace is available here.

7. LSK accuses the Attorney General of giving a misleading legal opinion that the Government had no other legal option but to pay the Anglo Leasing contracts while an appeal option was and is still available. LSK argues that this failure by the Attorney General to pursue an available appeal was a dereliction of the AG’s constitutional mandate under Article 156 to protect and uphold the rule of law and defend public interest. A copy of the legal opinion is available here.

8. LSK contends that, on the strength of the Attorney General’s misleading opinion, the National Security Council directed the Cabinet Secretary for the National Treasury, the Cabinet Secretary for Foreign Affairs, the Cabinet Secretary for Defence and the Attorney General to devise a communication strategy for the undelivered Anglo Leasing contracts and Cost/Benefit Analysis of Anglo Leasing payments. These directions were communicated through a letter from the Secretary to the Cabinet. A copy of the letter is available here.

9. LSK further contends that, on the strength of the Attorney General’s misleading opinion, the Treasury wrote to the Director of Budget requesting the latter to grant credit to make the Anglo Leasing payments. In her response, the Director of Budget accepted the advice of the Attorney General but rightly requested Treasury to furnish proof of parliamentary approval to release funds from the Consolidated Fund. A copy of the letter from the Treasury is available here. A copy of the response from the Director of Budget is available here.

In view of the above, LSK has publicly stated that it intends to take the following action against the Attorney General, the Solicitor General and Senior Deputy Solicitor General for professional misconduct:-

(a) Ask them to Show Cause why a Certificate of Dishonour by LSK should not be issued to them.
(b) File suit to declare them unsuitable to hold office and surcharge them for any monies paid in the case.
(c) Strike off the Attorney General from the Roll of Senior Counsel.
(d) Ask the Hon Attorney General to vacate office by resigning pending further investigation in the matter.

In sum, the ball lies squarely in the court of the Attorney General’s Office to rebut the weighty allegations made against them by LSK. In a previous post here, we discussed the important role to be played by the then Attorney General nominee, Prof. Githu Muigai.

In the meantime, the Law Society remains one of the most powerful professional bodies in Kenya with its members serving as Heads of two Branches of Government, namely the Judiciary and the Legislature. In an earlier post here, we highlighted how LSK ‘disciplined’ the Speaker of National Assembly for acting contrary to the law in the MPs’ salaries case. Now it appears that LSK has turned its attention to the Executive Branch and in particular, its legal advisor, the Attorney General.

To Pay or not to Play?: The Role of DJs in Licensing of Copyright in Kenya

It all started with this lone tweet from your favourite DJ’s favourite DJ:

Endless tweets, tweefs and radio interviews later, the air does not seem to be quite clear yet on the important role that DJs must play in the collective management of copyright and related rights in Kenya.

The common point of departure is the Copyright Act of Kenya Cap 12 of 2001. From this Act, it is clear that all the rights in a song or music work belong to the composer. However, as soon as the song or musical work is fixed or recorded, then the maker of the fixation or sound recording holds the copyright for that fixation or recording.

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Roll Call: “StoryMoja Hay Festival 2012”

Come one, come all Kenyans who love to read, The Story Moja Festival is here again.

Actually, it started yesterday, but it will be going on until the end of the week.

If you’re like me and you are wondering what the festival is about. Well:

The Festival is a four day celebration of stories, ideas, writing and contemporary culture through storytelling, books, live discussion forums, workshops, debates, live performances, competitions, mchongoano and music. It is organized in collaboration with Storymoja, the Hay Festival (UK) and British Council. The Hay Festival held in the UK every May attracts up to 150,000 people ranging from presidents to authors to fans.

I Caroline Mutoko’d that from the StoryMoja website.

One person I asked told me, point blank, that it would quite possibly be “the biggest gathering of creative minds in Kenya sharing their stories.” That’s all I needed to hear.

The crew will definitely be at a few of these so we hope to run into you there.

Cheers

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‘Nairobi Half Life’ Review: “It’s A Choice To Look or To Look Away…”

Everywhere you look, everyone is saying that Nairobi Half Life is brilliant.
Secretly, I wanted to be the first to pop that bubble.

While I am a huge fan of the arts I have always struggled to fully embrace and love our own. We are not lacking in artists; but they can’t afford to take anymore risks than they already have. We as the audience tend not to consume local art. We shun our own musicians, yet if anyone with a different passport grabs a microphone, tickets will sell out. Same can be said of pretty much every other industry that relies on art; from advertising to cinema. No creative wants to share his creation with an audience that won’t appreciate it or invest in it. Few dare to make that honest gamble, to risk being artistically inventive, invest all time and money into doing something that may go over people’s heads. And even if it doesn’t go over their heads, will they appreciate your labor of love? And even if they like it, will they pay for it?

Who really dares to be a dreamer in Nairobi in 2012? Most of our local artists wouldn’t risk it.

That cannot be said of the cast and crew of Nairobi Half Life.

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Wangari Maathai, Charity Ngilu, Martha Karua: Political Moments and the Legacies of ‘Mama’

“Leadership is not simply a matter of filling the top positions in a government. Nor is it a quality restricted to the ambitious, the elite, the politically gifted, or the highly educated. Indeed, not every person in a leadership position is truly a leader” – Wangari Maathai, ‘The Challenge For Africa’ (2009).

A good place to start would be the 1997 General Elections. Charity Ngilu, who was already a household name after capturing the Kitui central in Kenya’s first ever multiparty elections held in 1992, announced that she would be running for the presidency on a Social Democratic Party (SDP) ticket. “Ma saa na Ngilu”, for those who remember. We all cheered for this gallant politician who arrested our imagination when she stormed out of Mwai Kibaki’s Democratic Party (DP) and boldly struck out for the country’s top job despite a relatively short career in politics. And then, several months to the election, Wangari Maathai, too, announced that she was vying for the top job. The results? Moi won, of course. Kibaki came second, Raila, third and Ngilu managed a respectable 5th place, one notch higher than the late Martin Shikuku. As for Maathai, she came third from last in those elections with 0.07% of total votes cast.

With today’s news that Charity Ngilu will be seeking the presidency in the 2013 General Elections, one cannot help but feel that history is somewhat repeating itself. Martha Karua, the proverbial long-distance runner, launched her presidential bid a couple of years ago, and has been on the campaign trail ever since. Now Karua has company in the form of ‘Mama Rainbow’. It may be political naivete to ask, but would anyone serious about campaigning for the presidency launch a bid with only five months to the polls? Prior to her campaign announcement, wasn’t she on record that she would support Raila’s presidential ambitions? These questions may seem to you, rhetoric or a display of my ignorance, but allow me to continue.

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