THE SECOND REPUBLIC: WHY THERE IS REASON TO BE OPTIMISTIC

By Elizabeth Sisenda

Promulgation of the Constitution of Kenya 2010

In the year 2005, Kenyans for the first time in the country’s history went through a constitutional referendum. A lot of deliberation had been made to come up with the draft constitution. Pressure for constitutional reform had been mounting prior to 2002 from opposition political parties, the Law Society of Kenya, civil society and various NGOs, climaxing in 2002. Reason being, Kenyans and especially opposition politicians, had realized what immense powers the office of the president holds constitutionally. This translated into executive dominance over the other two distinct arms of government, as well as having the machinery of the state concentrated in the executive through the office of the president. As a result, the office of the president not only had an edge vis-à-vis the other arms of government in terms of political power, but it also had control over the allocation of resources nationally with insufficient checks on it by parliament. 

The Bomas draft had been proposed as an alternative to Kenya’s previous constitution. Although it had its fair share of critics, several groups had been willing to adopt it for various reasons. Nonetheless, the Bomas draft underwent various amendments prior to and after the 2005 referendum before the final document, which was considered acceptable by the majority of the interest groups, was tabled by the attorney-general on 6^th May 2010. Thereafter, Kenya went for a constitutional referendum for a second time on 4^th August 2010. The final draft, which the government officially endorsed, was overwhelmingly voted in by the public in a process that was considered to be Kenya’s best organized election so far (especially coming after the Kivuitu-led 2007 polls). With the ushering in of a new constitution, a new republic was born: the second republic. There has been a lot of optimism that the new supreme law will bring about the radical change in governance that Kenyans have yearned for since independence. Here are some reasons why this belief is well founded.

To begin with, the electorate has been empowered under section 104 with the right to recall a member of parliament representing their constituency under articles 97 and 98 before the end of the term of the relevant house of parliament. This provision will encourage MPs to be accountable to their electorate because a failure to do so may result in their removal from office and their replacement with a more responsible leader. Therefore, cases of misappropriation of constituency funds or a lack of interest in the affairs of the constituency by MPs, which in the past though rampant has gone unaddressed, are likely to come to an end with the introduction of this new provision.

New measures have also been introduced where the expenditure of public funds by MPs has been checked for the benefit of the public under section 116 (3) where an act of parliament which confers a direct pecuniary interest on MPs (such as a salary/allowance increment) shall not come into force until after the next general election of members of parliament. In this way MPs are deterred from giving themselves unnecessary salary/allowance increments because they are not guaranteed of enjoying the same; should the constituents be displeased by such an act, the culpable members of parliament risk losing the chance to be re-elected to the house that would enjoy the pecuniary benefit.

Furthermore, the ordinary mwananchi now has the power to petition parliament to consider a matter within its authority, which includes the enactment, amendment or repeal of any legislation as provided under section 119 of the new constitution. This enables the citizenry to play an active role in governance by advocating for legislation which they feel would be beneficial for the nation. This may prove particularly helpful in addressing the contentious issues which arose in the course of the debate that led to the drafting of this new constitution.

The new supreme law also enhances the legislative power of parliament under section 115 (6) where a bill passed by the house shall be taken to have been assented and shall come into force as law even where the president fails to give the required consent within the stipulated period. Under the same section, sub-section (2) (b), parliament may proceed to pass a bill that has been referred back to them for consideration by the president without making the recommended amendments. This means that legislation no longer requires executive endorsement as has been the case under the previous constitution. This can be considered as a major step towards giving effect to the doctrine of separation of powers between the different arms of government.

Moreover, the new law has provided affirmative action for prospective female legislators who now have a reserved number of seats in the house under sections 97 (b) and 98 (b) to (d). This in the long run will go towards ensuring that the special plight of women, who form the majority of the citizenry, shall now be considered in legislative matters by requiring their participation in the house.   

…To be continued……

ARE ECONOMIC PARTNERSHIP AGREEMENTS (EPAs) BENEFICIAL FOR KENYA AND THE EAST AFRICAN COMMUNITY (EAC) AND KENYA?

By Elizabeth Sisenda

Negotitation of Trade Agreements

Economic Partnership Agreements or EPAs are trade agreements which are currently being negotiated between the European Union and African, Caribbean and Pacific countries (ACP). These agreements replace the obligations under the Lome convention which governed trade relations between ACP countries and the European Union (EU), in which ACP countries were granted non-reciprocal trade preferences and unlimited entry into EU countries in order to promote their economic and social development.

EPA s are mainly offering the EAC duty free and quota free (DFQF) market access in Europe in exchange for the liberalization of EU imports by 82% over a period of 25 years within the EAC.

On 27^th November 2007 the EAC agreed on a region-region interim EPA with the EU. The interim agreement mainly covers trade in goods and fisheries, and is the foundation towards a full EPA. A commitment was taken by both parties to continue negotiations on services, investment, agriculture, rules of origin, sanitary and phyto-sanitary standards (SPS), technical barriers to trade (TBT), customs and trade facilitation, and other trade-related rules in order to conclude a full EPA.

Under the EPA, the EAC commits to open its market to goods from the EU in three phases over a period of 25 years. In the first phase (2008-2010), the EAC will liberalize 64% of imports from the EU; while in the second phase (2015-2023), 16% of imports will be liberalized. In the last phase (2020-2033), the EAC will liberalize a further 2%, making the total imports from the EC being liberalized 82%.

As a temporary measure, 18% of the EAC’s trade with the EU, which covers sensitive products, is supposed to be excluded from market liberalization requirements. These products are: agricultural products, wines and spirits, chemicals, plastics, wood based paper, textiles and clothing, footwear, ceramic products, glassware, articles of base metal and vehicles. But civil society groups assert that the provision is contradicted by the ‘standstill’ clause whereby the EAC has agreed not to increase the applied duties on all their products. This implies that should the East African states decide to raise tariffs in sensitive agricultural areas such as dairy products, they will be unable to do so.

The EU in the interim EPA (IEPA) acknowledges that EPAs will influence the scope and content of future agreements made between the EAC states, other trading partners and the regions stance in negotiations. It also acknowledges that EAC states have indicated that they wish to renegotiate a number of issues included in the IEPA. Paragraph J of the IEPA avers that the liberation schedules do not require a country to start removing any positive barriers until 2015 and that the EAC partner states have 24 years to complete the IEPA liberalization process. Paragraph N provides that a full EPA should not impair the capacity of the EAC partner states to promote access to medicines. The EU acknowledges that the agreements between the EU and eastern and southern Africa region should not contradict each other or impede regional integration in this wider region.

Article 13 acknowledges the establishment of transitional periods within the IEPA for SMEs, in order to enable them adapt to the changes put in place by the agreement, and urges the authorities of the EAC partner states to continue supporting SMEs in their negotiations towards a comprehensive EPA.

Despite all the undertakings by the EC, the EPAs between EU and EAC have received sharp criticisms from various quarters for a number of reasons: To begin with, EPAs are unnecessary for Least Developed Countries (LDCs) which already enjoy the benefits promised by the agreements. Recently, MPs from Uganda, a member state of the EAC and the current chair of the community, have expressed great dissatisfaction with the agreement terming it as unnecessary. Despite EU’s offer of DFQF market access for all products originating from the EAC, Uganda, Burundi, Rwanda and Tanzania (which are termed as Least Developed Countries) need not sign an EPA in order to gain preferential market access to the EU. LDCs have access to an arrangement called ‘Everything But Arms’ which allows preferential access to the EU without reciprocity – it is as easy as writing this on the export packaging. Kenya is the only country within the EAC that does not enjoy such preferential market access because it is no longer classified as an LDC.

    

Further, the EPA deal being proposed will seriously undermine East Africa’s development due to the unfair competition between EU farmers and manufacturers and East African ones that will arise from the implementation of the agreements. This is because key sensitive products that are important to the region’s producers were not protected under the agreement contrary to popular belief. They were not included in the list by the negotiators. For example, frozen chicken and other meats (sheep, processed beef and pork) are not protected from European competition. This will lead to a surge in imports of cheap poultry/meat from the EU as has been the case in West Africa, where imports of low quality poultry/meat consisting of the least demanded poultry cuts in the European market have undermined the local industry because they are as cheap as half the price of local cuts. These imports are threatening the entire local meat production industry. It will increase the domination of European firms, goods and services in the regional market. This will result in worse unemployment, food insecurity and social inequality.

Moreover, the EPA agreements will remove taxes on imports from EU goods, leading to a significant loss in government revenues that may end up being compensated for through further taxation of the population in these areas, such as VAT. Each year the EAC member states will lose revenue from imports on EU goods. The EAC as a whole will lose an estimated US$ 162.5 million annually. This will aggravate donor dependence.

EPAs will also lead to a decline in regional trade between partners within the EAC and even COMESA. This will undermine regional integration rather than harnessing it. For instance, regional trade from Kenya especially with EAC members like Tanzania and Uganda, and with other COMESA and African countries is currently increasing (20% in 1991 – 49% in 2005), while trade with Europe has been decreasing (42% in 1991 to 25% in 2005). Kenya is becoming less reliant on the EU as an export market, and instead is developing her regional market. EPAs could undermine this trend, leading to an estimated 15% reduction in regional trade due to an increase of EU manufactured goods entering into the region. 

The regional market for value added/processed goods is much more important to countries like Kenya than the EU. For instance, 67% of manufactured exports (excluding agro-processed products) like chocolates, soap and plastics went to the COMESA market, with only 9% going to the EU. At the moment Uganda is Kenya’s most important trading partner, consuming 14% of the value of exports. Kenya and the other EAC partners stand to lose this advantage to the EU.

The EPAs also contradict what has been envisaged under the World Trade Organization (WTO) policy for Least Developed Countries (LDCs) who were not obliged to make any commitments, and for Developing Countries (DCs), who were only obliged to reduce tariffs that are higher than the prevailing rates. Acceding to the EPAs undermines the policy space and flexibility that DCs and LDCs negotiated at the WTO. This will place the majority partners of the EAC at a vulnerable position by waiving their preferential treatment under the WTO rules. 

Further, once the EAC are bound by the Free Trade Agreements (FTA) introduced by the EPA, there is nothing that will stop other developed countries such as USA and China from adopting the same policy towards them. The EAC will lose the opportunity to apply tariffs selectively to develop existing and future local or regional industries, and to manage their own economic policy. 

The EPAs between the EU and the EAC will largely undermine regional integration in the region under the EAC, COMESA and SADC, as these economic blocks are yet to establish elaborate trade polices between themselves. The EPA will have a negative impact on their ability to integrate their trade policies. Ugandan legislators have expressed a strong intention to pull out of the EAC EPA because they stand to lose under the agreement. This in itself will undermine regional integration, as the other member states of EAC may pull out too since they are in a similar position as Uganda (LDCs). 

Oxfam, which is one of the petitioners for renegotiation of EPAs, claims that the current agreement will fracture regional integration, increase poverty and make it harder for ACP countries to break away from commodity dependence. It says that the countries will be trapped in a vicious cycle of selling products of low value while buying products of high value.

Furthermore, opening up of the regional market fully will attract dumping, which destroys the local market and undermines local/regional producers.

In light of these important concerns, it would be advisable for the EAC to reconsider entering into EPAs with the EU or renegotiating the same because East Africa ultimately stands to lose the chance to exploit its economic potential permanently under the EPAs.

CHALLENGES POSED BY THE MAIN JUDICIAL OPTIONS AVAILABLE TO KENYA FOR TRANSITIONAL JUSTICE

International Criminal Law

CHALLENGES POSED BY THE MAIN JUDICIAL OPTIONS AVAILABLE TO KENYA FOR TRANSITIONAL JUSTICE  

2007/2008 post-election violence (PEV) in Kenya and the measures that were taken thereafter to restore peace and stability to the country brought the concept of transitional justice closer home to a lot of Kenyans.

Prior to that, the average Kenyan was not entirely familiar with this scope of justice which aims at redressing systematic or widespread violations of human rights in order to promote possibilities for peace, reconciliation and democracy.

Today, Kenyans are demanding for accountability and reform within the leadership using some of the initiatives that are taken to bring about transitional justice. These include criminal prosecutions, for instance by the local courts or the international criminal court (ICC), truth commissions, security system reforms and reparation programs.

There is consensus among the general public that there is need for those who were responsible for perpetrating the PEV to be held accountable so as to curb the culture of impunity which has taken root in our leadership.

There have been calls for the prosecution of those who are considered as having been responsible for the PEV. The debate has been centred on what forum the suspects of the PEV should to be tried in- is it the ICC or the local courts? The latter has been quickly dismissed as wishful thinking because of a lack of confidence in the judiciary. The judiciary is criticised for lacking independence in relation to the executive. It is feared that the executive is likely to interfere should the suspects be tried in our local courts. This is not only because some of the suspects are influential members of the executive, but it also results from the powers that the executive has which may interfere in the prosecutorial process.

For instance the Director of Public Prosecutions (DPP) who forms part of the executive and is mandated to exercise the State powers of prosecution under section 157 (6) of the Constitution, has the power under section 157 (6) (b) and (c) of the Constitution to take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, including those that would be instituted against the suspects of the PEV, and to discontinue at any stage before judgment is delivered (but with the permission of the court) any criminal proceedings that the DPP has instituted or taken over. It would therefore be possible for the DPP to take over the case of any of the PEV suspects and to discontinue it for whatever reasons the executive would furnish and the courts would permit at the time such as a lack of sufficient evidence.

Similarly, the president, who is the chief executive, has powers under section 133 of the Constitution to grant free or conditional pardon to a person who has been convicted of an offence, including the PEV; to postpone the carrying out of a punishment either indefinitely or for a specified period of time; and to substitute for a less severe form of punishment the punishment imposed by the court on a person for an offence or to remit all or part of a punishment.

These presidential powers of mercy may be exercised in relation to any of the suspects tried for perpetrating the PEV in a way that may lead to the miscarriage of justice in favour of political gain. If, for instance, the president sees it fit to set aside the punishment of the suspects in favour of a public apology to the nation the matter would have to be concluded in that way.

Further, the decision of the court of first instance that would be trying the PEV suspects would be liable to an appeal to the High Court under section 165 (1) (e) of the Constitution where the court of first instance is a subordinate court, or to the Court of Appeal under section 164 (3) of the Constitution where the court of first instance has the same jurisdiction as the High Court, or to the Supreme Court under section 163 (3) (b) (ii) of the Constitution.

This would mean that the suspects of the PEV would have the legal right to appeal against a decision by the court which finds them guilty of the crimes that were committed during the 2007/2008 PEV. This would not only delay justice through a protracted appeal process, but would possibly lead to its miscarriage where for instance an appellate court makes a determination in favour of the perpetrators of the PEV based on a technicality such as a legal procedural issue. This would lead to a public outcry and a massive lack of confidence in the courts’ ability to deliver justice, and in an extreme case it may even re-ignite the level of tension and violence witnessed in 2007-2008.

Given the opportunities for interference that are presented by the current system, it is felt that the local courts cannot effectively try the PEV suspects, who are influential members of the current government. Even if a special trial chamber were to be established within our ordinary courts system it would still be liable to these challenges.

The International Criminal Court (ICC) on the other hand is mandated to hold persons accountable for the most serious crimes that are of concern to the international community such as genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC’s jurisdiction permits it only to cover crimes committed after 1 July 2002, when the Statute entered into force. Those vouching for the ICC option are therefore optimistic that the perpetrators of PEV can be brought to book through this option since Kenya is a signatory to the Rome statute which constitutes and gives jurisdiction to the ICC.

The main challenge that the ICC has been facing in the Kenyan situation is adducing evidence to prove that crimes under its mandate had been committed, and not just internal sporadic acts of violence. The ICC prosecutor, Moreno Ocampo, is in the process of gathering evidence on the Kenya PEV case, having been given the go- ahead by the Pre-trial chamber of the ICC. This has generated a lot of anxiety and yet also optimism for those who see the ICC as the best and only means for Kenya to hold the PEV suspects accountable.

Those vouching for the ICC option view it as a neutral forum where the PEV suspects can be tried independently from any executive or political influence that they would otherwise wield locally to interfere with the process should they been tried in our courts.

Even so, the ability of the ICC to prosecute the PEV suspects will depend a lot on the state’s cooperation in the process. The ICC has in the past charged powerful individuals in the different governments of the states which have been accused of committing international crimes, but have been unable to secure the arrest of such individuals and therefore their trial and punishment because of a lack of cooperation from the governments of these individuals.

For the ICC to exercise jurisdiction over an individual crimes under its mandate must have been committed. In the Kenyan case this has already been established at a preliminary level. Secondly, it must be shown that the concerned state is either unwilling or unable to try the responsible individuals locally. In the Kenyan case, the failure by parliament to set up the Special Tribunal within the stipulated time opened the way for the ICC to take over the case owing to the state’s unwillingness to do so.

However, even if the ICC commences the case against the Kenyan suspects, it would rely on the state to execute the warrants of arrest that it would issue against the individuals because the ICC does not have the machinery to do so on its own, and relies on the good will of the member states to carry out its mandate. If Kenya fails to cooperate with the ICC, the perpetrators of the 2007/2008 PEV will most likely not be brought to book.

Therefore, the success of any of the judicial options available to the country to bring about justice in relation to the PEV relies heavily on the state’s willingness to support it- we need to take responsibility as a nation for any process aimed at bringing about accountability for past injustices.