African Press International (API)

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EA Court discounts Kenya

Posted by African Press International on March 31, 2007

By Adam Ihucha, Arusha

Kenya went against the procedure normally followed by the East African Community in electing members of the regional Legislative Assembly, the East African Court of Justice ruled yesterday.

In a landmark judgment read by EACJ Vice President Joseph Mulenga from Uganda, the court declared that the process that the Kenyan government used to get its nine members of EALA was outright illegal.

Justice Mulenga said Kenya grossly breached Article 50 of the EAC treaty which directs that the legislatures of the three partner states should elect the proportional nine members to the EALA through procedures to be determined by the august assemblies themselves.

?As per evidence presented before this court, Kenya has not done any election as clearly stipulated under Article 50 of the EAC treaty.

Rather, it has merely appointed its own members,? he stated.

In the judgment, which he delivered for two and half hours in a packed courtroom, the judge called on EAC member states to harmonise their laws to conform to the EAC treaty.

?The EAC treaty must be interpreted, understood and implemented uniformly by the EAC member states` laws and not otherwise,? stressed Justice Mulenga, who was flanked by three fellow judges.

These are Augustine Ramadhani (Tanzania), Harold Nsekela (Tanzania) and Kasanga Mulwa (Kenya).

But he hailed Tanzania and Uganda, saying the modalities they had used in electing their respective EALA members went as stipulated by Article 50 of the EAC treaty.

The ruling fell short of saying whether Kenya should conduct a fresh election for its EALA members but the applicant?s counsel team leader, Mutula Kilonzo, said that was obvious.

?This is a landmark ruling by the EACJ and it should be a warning to the EAC member states on the need to abide by the law and not to leave a few people in power to decide crucial issues at the expense of the majority,? Kilonzo told reporters shortly after the ruling at the Arusha International Conference Centre.

It all began as ordinary case of political jostling when Kenyan Vice President Moody Awori and Health Minister Charity Ngilu started arguing last September as to who between them had the right to lead the process of picking the nine Kenya representatives to the EALA.

Ngilu argued that, as the chairperson of the ruling National Rainbow Coalition (NARC) which had put the current (Mwai Kibaki) government in power, she had the right to preside over the selection process.

But Awori insisted that, as the leader of government business and the chairman of the House Business Committee which sets the agenda in parliament, he was better placed to preside over the process. The government sided with Awori.

However, as it appeared that the jostling was over and everything was going on smoothly again, another problem arose.

Things came to a head when the government dropped some of the names forwarded by some of its constituent parties and went ahead to pick other representatives on behalf of the parties.

The government`s official position was that the former ruling party, Kanu, had authorised the House Business Committee to come up with the names for parliamentary approval.

It is that system that was used to pick the outgoing members of the regional assembly, mostly from Kanu.

Five of the nine names – Catherine Kimura, Clarkson Otieno Karan, Augustine Chemonges Lotodo, Gervase Akhaabi and Safina Kwekwe Tsungu – were nominated by the government.

The opposition Kanu picked Abdirahman Haji, Sarah Godana and Christopher Nakulei, as Ford-People went for Reuben Oyondi.

Four names forwarded by some constituent parties of NARC were rejected, much to the chagrin of their sponsors.

They were Fidelis Nguli, Yvonne Khamati, and outgoing EALA members Ochieng Mbeo and Rose Waruhiu.

The aggrieved constituent parties, Democratic Party, Liberal Democratic Party, National Party of Kenya and Ford-Kenya, protested and subsequently filed a case in the EACJ challenging the nominations.

The parties argued that the nominations went against the principle of the EAC treaty that provides for direct and representative democracy in that the names forwarded by the Clerk of the Kenyan National Assembly were not those proposed by the parties concerned.

The government, through Attorney General Amos Wako, argued that the regional court had no jurisdiction over the partner states` selection methods.

It said the treaty gives the states the flexibility to determine the rules under which to pick their candidates for the regional assembly.

However, the regional court dismissed the argument as a wrong interpretation of the EAC treaty.

  • SOURCE: Guardian

Posted by Karuga Njuguna, published by African Press in Norway, apn, tel +47 932 99 739 or +47 6300 2525

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