Media

Police yesterday fired tear gas to break civil society protests in Nairobi’s CBD against closure of three major TV stations and a return to dictatorship.

Kenya Human Rights Commission director George Kegoro, his deputy director Davis Malombe and International Commission of Jurists chairman Njonjo Mue led the demos from Freedom Corner in Uhuru Park. They made stopovers at the Standard Group offices and Nation Centre and demanded that the firms’ TV stations be switched on. KTN and NTV were back on air last evening.

The demonstrators also told the government to stop “persecuting” journalists Ken Minjungu, Larry Mandowo and Linus Kaikai

They were, however, teargassed after they attempted to use Harambee Avenue to get to Harambee House, which houses the Interior ministry’s offices. A senior police officer said they were instructed not to allow any demos along the avenue.

Mue said, “We are concerned about the dangerous turn that our country has taken. In the recent months, we have seen an introduction of a very dictatorial way of doing things. We are here to defend our Constitution and say that we will not stand a government that is quickly becoming a criminal enterprise.

“We’ve seen blacking out of major TV stations that Kenyans rely on for local news. We’ve seen arbitrary arrests of opposition politicians that are not just arrests, but abductions by a police force that is quickly becoming a criminal gang. We’ve seen violations of human rights and freedom of information.”

He criticised the government for resorting to dictatorship and taking Kenya back to the dark days of single-party rule, instead of resolving issues that hold the economy to ransom and cause youth unemployment.

Kegoro said there are plans to include public actions and reaching out to authorities, including the courts, to stop repression.

“What started a few days ago [crackdown on politicians] after the opposition swore in Raila Odinga as the People’s President is disturbing and regrettable to us as citizens of the country,” he said.

“We’ve seen muzzling of media and closure of TV stations. The courts have ordered the reopening of the stations, but the government has defied the orders.

“Miguna Miguna was arrested, the court ordered his release, but the government defied the orders. We’re seeing what the Moi administration did — arresting someone at one place and taking him rounds around the country to punish them before they are charged.”

Anti-riot police officers fired tear gas on Monday to disperse activists who demonstrated against the government’s shutdown of TV stations.

Kenya Human Rights Commission director George Kegoro, deputy director Davis Malombe and International Commission of Jurists chairman Njonjo Mue led the protests.

The group marched from Freedom Corner in Uhuru Park, along Kenyatta Avenue, and made stopovers at Standard Group and Nation Centre.

They demanded that the stations owned by these media houses by reopened – KTN and NTV were shut alongside Citizen which is owned by Royal Media Services.
The civil societies rejected a “return of dictatorship” and urged the state to stop the “persecution” of journalists Ken Mijungu, Larry Madowo and Linus Kaikai of NMG.

They were teargassed while forcing their way to Harambee House as the Interior ministry’s office is in Harambee House. A senior police officer said they had been instructed to block demonstrations along the avenue.

Mue noted concerns about “the dangerous turn in our country where we are seeing a very dictatorial way of doing things”.

“We are saying that we are concerned about the dangerous turn our country has taken. In the recent month, we have seen an introduction of a very dictatorial way of doing things,” he told journalists.

“We are here to defend our constitution and say we will not stand a government that is quickly becoming a criminal enterprise. We have seen the blacking out of major TV stations that Kenyans rely on for local news. We have seen arbitrary arrests of opposition politicians. These are not just arrests but abductions by a police force that is quickly becoming a criminal gang.”

Read: Kenya on slippery media freedom path, Uhuru must act – HRW

He also noted violations of human rights such as access to information.
The activist further criticised the Uhuru Kenyatta’s Jubilee administration for resorting to dictatorship and taking the country back to single-party rule instead of resolving issues that hold the economy at ransom and cause youth unemployment.

Kegoro announced plans for public action and engaging relevant authorities and the courts in the fight against dictatorship.

“What started a few days ago [crackdown on opposition politicians], after the opposition swore-in Raila Odinga as the people’s president, is disturbing and regrettable to us as citizens of the country,” he said.

“We have seen the muzzling of media through closure of TV stations. A court ordered the re-opening of the stations but the government has defied the orders,” he said.

“Miguna Miguna was arrested and the court ordered his release but the government defied the order. We are seeing what the [former president Daniel] Moi government did – arresting someone at one place and taking him around the country to punish them before they are charged.”

Civil societies are planning countrywide demonstrations against the government’s media shutdown.

Led by Kenya Human Rights Commission and the International Commission of Jurists, they noted the government must uphold the spirit of constitutionalism.

ICJ’s Njonjo Mue announced that the protests dubbed ‘Not in my country’ will begin on Monday, the goal being to stand up to the government and ensure it respects all institutions that serve the people.

Mue emphasised that civil societies are not going to throw their hands in the air and let Kenya plunge into authoritarianism.

“This country is not going to stand for the switching off of TV stations, denying us our right to information. This is not a favour granted by the government, any minister or communications authority, but a right protected by constitution,” said the transitional justice expert.

He added the Jubilee Party regime is taking the country back to one-party dictatorship as evidenced by events following Nasa leader Raila Odinga’s self-oath on January 30.

Related: How dare you fault Raila over oath? NASA tells AU, EU and US

The activist said persistent aggression against opposition leaders shows the government is “simply afraid of a revolution”.

“We cannot stand for a state that arrests and abducts its citizens using violence. This is clearly a rogue state acting like a criminal enterprise. It has suspended the constitution and is slowly introducing a state of emergency,” he said.

Mue further said that the manner in which police officers are raiding the homes of opposition leaders, “to the extent of breaking down their doors, must be condemned in the strongest terms possible”.

He addressed a press conference in Nairobi on Friday.

His sentiments were echoed by George Kegoro who said it was “pure madness” for the government to shutdown three major stations – NTV, KTN and Citizen.

Kegoro further chided the government for ignoring court orders that suspended the shutdown, noting it cannot expect citizens to be obedient.

“The court had given this government a face-saving way out of the hole it dug itself into but it has chosen to ignore the same by giving lame excuses as to why the stations had be put off.”

The Communications Authority on Friday blocked activist Okiya Omtatah from serving them with court orders lifting the shutdown on media houses.

Omtatah told The Star he was blocked outside the authority’s gate on Friday.

Earlier yesterday, a section of civil societies and journalists demanded reopen the stations and vowed to sue individuals behind the orders.

The High Court has quashed a decision by NGO Coordination Board Executive Director Fazul Mahamed to deregister the Africa Centre for Open Governance (AfriCOG) for operating illegally.

In his ruling, Justice Georg Odunga prohibited the Directorate of Criminal Investigations (DCI) from investigating and prosecuting seven directors of the lobby group over illegal operations.

Those who had been indicted include human rights activists John Githongo, Maina Kiai, Funmi Olonisakin, Stella Chege and three others.

In addition, the court has barred the Central Bank of Kenya from freezing the NGO’s accounts.

AfriCOG can now continue operations after the High Court barred the NGOs Coordination Board from closing it.

In a judgment delivered yesterday by Justice George Odunga, the court further ordered the CBK not to freeze AfriCOG’s bank accounts.

Odunga also stopped the DPP from instituting any criminal proceedings under the NGOs Act relating to activities and operations of the lobby, or arresting any of its directors.

“I have said enough to show that the Notice of Motion dated September 28, 2017 is merited. I, however, agree the Central Bank of Kenya ought not to have been dragged into these proceedings. It is, however, clear that it was the NGO board misplaced letter that provoked that course of events,” he ruled.

This is after AfriCOG and its directors, led by Maina Kiai, moved to court seeking to stop the government from interfering with its operations.

In the case, they had argued NGOs Coordination Board boss Mahamed Fazul, on his own accord and on behalf of the Interior CS and the NGO Board had no role whatsoever to interfere with their operations.

The lobby said Fazul’s decisions cannot be reasonably justified in a democratic society and underscored by sovereignty of the people, constitution delegation and delimitation of powers, good governance and the rule of law.

The High Court on Monday quashed an order to close down operations of the Africa Center for Open Governance (AfriCOG), and further ordered the Central Bank not to freeze bank accounts belonging to the non-governmental organisation.

Justice George Odunga also barred the Director of Public Prosecutions (DPP) from arresting and instituting criminal proceedings under the NGO Act relating to the activities and operations of AfriCOG.

This comes after a decision by NGO Coordination Board Executive Director Fazul Mahamed in August to deregister AfriCOG on allegations of illegally operating in Kenya.

“I have said enough to show that the Notice of Motion dated 28th September 2017 is merited. I however agree that the Central Bank of Kenya ought not to have been dragged into these proceedings. It is however clear that it was the NGO board misplaced letter that provoked that cause of events,” ruled Justice Odunga.

The orders were issued in a case in which AfriCOG, together with its directors led by Maina Kiai, moved to court seeking to stop the government from interfering with its operations.

AfriCOG had said that Fazul’s decision to close down the lobby group could not be reasonably justified in a democratic society.

“Fazul’s decisions have been made in excess or without jurisdiction and are bad in law,” they claimed.

The lobby group had petitioned the court to quash the NGO Coordination Board’s directive to close down its operations and further sought to stop arrests and commencement of criminal prosecutions in relation to the decision.

Respondents in the case were the Interior Cabinet Secretary, the Attorney General, the NGO Coordination Board, its Executive Director, Director of Criminal Investigations, CBK Governor and the DPP.

The Law Society of Kenya was also named as an interested party in the matter.

The petitioners included AfriCOG and its directors John Githongo, Maina Kiai, Dr. Fumni Olonisakin, Stella Chege, Donald Deya, Charles Wanguhu and Gladwell Otieno.

By RACHEAL MBURU, NAIROBI, Kenya, Dec 18 – The High Court has quashed the decision by the NGO Coordination Board Executive Director Fazul Mahamed to deregister the Africa Centre for Open Governance (AfriCOG) for operating illegally.

In his ruling, Justice Georg Odunga prohibited the Directorate of Criminal Investigations (DCI) from investigating and prosecuting seven directors of the lobby group over illegal operations.

Those who had been indicted include human rights activists John Githongo, Maina Kiai, Funmi Olonisakin, Stella Chege and three others.

In addition, the court has barred the Central Bank of Kenya from freezing the NGO’s accounts.

AfriCOG together with the human rights activists had sued acting CS Fred Matiangi, the NGO Board and others following the directive to close down organisation on grounds that it was operating illegally.

Justice Odunga stated that no evidence was adduced to show that the lobby group was carrying out its activities unlawfully.

Njonjo Mue is not the typical human rights activist: He is brilliant, hardly screams and speaks methodically.

Born in Thika, Mr Mue came to the attention of the media in 1997 when he joined many other activists at Uhuru Park to demand for a new constitution ahead of the elections.

As police tear-gassed everyone, one man was left kneeling down – praying and singing the National Anthem: The man was Njonjo Mue.

REFORMS
The bravery of Mr Mue caught the attention of photographers and his picture became the source of inspiration to those confronting the Moi administration and demanding free electoral atmosphere.

Mr Mue was part of the group that coined ‘No Reforms, No Elections” phrase in 1997 when opposition MPs decided to side with Moi and agreed to carry out minimum reforms against the wishes of the civil society groups, which were pushing to an overhaul of the Constitution.

A former ‘A’ student at Alliance High School – where he was an actor and sang in the choir – Mr Mue studied law at the University of Nairobi and later at Oxford University where he was a Rhodes Scholar and did Bachelor of Civil Law.

LEGAL ADVISOR

He also studied for a Master’s in international law and comparative human rights.

On his LinkedIn page, Mr Mue says that he was “prevented from graduating due to illness”.

Before he came back to Kenya, Mr Mue worked with Article 19 as the legal advisor to the African programme based in South Africa.

It was during this period that he was named Jurist of the Year 2000, becoming the youngest recipient of the award. He was 33.

Mr Mue was later employed as Regional Director with Panos Eastern Africa based in Uganda up to 2002 – before starting work as head of advocacy with the government-funded Kenya National Commission on Human Rights, which was chaired by his ally, Maina Kiai.

ACTIVISM
It was his epic speech during the Jurist of the Year ceremony that captured attention of everyone present as he sought solutions to the national issues.

“First, we must robustly embark upon the task of organising the unorganised.

“I was once led to believe that the role of education was to enable us to speak for the voiceless; but I have since come to know that the best people to speak for the voiceless are the voiceless themselves,” he said.

Mr Mue has a driving philosophy and which he clearly elucidated:

“The human rights movement has tended to be selective in choosing the issues to articulate, partly based on convenience and practical considerations.

“But we cannot choose our battles only because they can be won. We must choose our battles because they must be fought”.

ARREST
He is the man who in 2004 scaled the walls of Parliament and took away a pennant flag off a cabinet minister’s limousine to symbolically demonstrate the government’s loss of moral authority to govern after the Anglo-leasing scandals and decision by MPs to increase their salaries.

He was also said to have slapped an assistant minister in the process before he was arrested and charged with creating disturbance.

At the court, he got more attention when he stood and sang the whole national anthem and the magistrate asked the orderlies to let him finish the song.

INSANITY TEST

But when the magistrate ordered that he be subjected to psychiatric test, Mr Mue sought to address the court:

“If in Kenya today it is considered normal for ministers to drive vehicles worth Sh10 million while a family of six in Kibera subsists on Sh40 a day, then you don’t have to ask a psychiatrist, I will tell you myself for free, I am mad;

If it is considered normal for MPs to be taken to Mombasa on holidays by BAT to be bribed to block tobacco control legislation while our people continue dying of tobacco related ailments, then I am mad;

If it is normal for our leaders to traverse the land hurling insults at each other while our people are robbed, raped and murdered, then I am mad;

And I take comfort in the fact that I am not the only one, we are millions of mad people who do not want to act normal while watching our country going to the dogs.

As for the charge before you, your honour, I beseech you not only to find me guilty, but to hand down the harshest sentence permitted by the law.”

ELECTION

A day before he filed the presidential petition, Mr Mue had posted the same thought on his Facebook page:

“We should pick our fights not just because they can be won, but because they must be fought.”

Besides his life as a human rights crusader, Mr Mue is also a trained theologian and did an MA at the Nairobi International School of Theology majoring in the Theology of Social Involvement, Christian Ministry and Leadership.

He wrote his MA Thesis on the topic “Forgiveness in Politics: Reflections on Truth, Justice and Reconciliation in Kenya.”

AfriCOG have expressed “utter disappointment” in this year’s election, saying IEBC failed to perform in line with the constitution.

In a statement issued at their office in Lavington, Nairobi, on Monday, executive director Gladwell Otieno said the poll was “neither free, fair, transparent or regular”.

“It is very hard to burglar-proof a house when the burglars are already inside,” she said in the address that touched on a raid of the premises by police officers and KRA agents.

More on this: [VIDEO] Police, KRA raid AfriCOG offices after Fazul’s shutdown threat

The lobby filed a petition after the disputed March 4, 2013 contest between Uhuru Kenyatta and Opposition chief Raila Odinga but it was thrown out.

There has been speculation that the raid took place to keep the organisation from filing a petition on the August 8 election.

NASA chiefs led by Raila Odinga have filed a petition at the Supreme Court.

Otieno said the government spent a lot of money purchasing equipment meant to boost the election’s credibility but that “progress is barely visible”.

“We have the same amount of failures that we experienced in 2013, even with the new technology. We have noted numerous irregularities during the whole election process,” she said.

“The 2013 election was not fair and credible. Electronic systems to prevent irregularities failed, IEBC did not have an official voter register and unfortunately in 2017 they did not have it either.”

The executive director further noted voter registration failures in some areas, which left equipment unable to recognise some members of the public.

Otieno also noted returning officers complained that their laptops crashed or that they forgot the passwords and ended submitted results by phone.

“They did not offer equal conditions and opportunities for all candidates to take part. IEBC failed to allow political parties to inspect all the facilities being used in the elections,” she added.

“They also failed in protecting ballot boxes after elections so as to prevent them from being tampered with.”

Otieno also said agents were locked out of tallying centers on allegations of being rowdy after perceived system failure.

She said they did not witness counting and cannot assert that the results presented were true.

“Forms for presidential, governors and MPs results contained different numbers of registered voters.The process did not offer equal conditions and opportunities for some citizens, due to the unknown delay in some areas, to have access to polling stations and to vote.”

The AfriCOG boss further said results announced by the electoral agency did not match those of a single candidate, numbers which she termed “strange, different or higher”.

“The IEBC’s portal displayed results of some areas even before the returning officers had transmitted the results,” she said.

“There was a suspicious constant graph of results from the beginning of the transmission which is quit strange if the results were being sent randomly all over the country.”

On August 16, the High Court suspended the crackdown on AfriCOG on allegations of non-compliance and illegal operations.

AfriCOG and seven rights activists moved to court to stop the NGOs board from interfering with its operations.

The NGO Board has written to the DCI to shut down AfriCOG over claims it is operating illegally.

In a letter to DCI boss Ndegwa Muhoro on Tuesday, executive director Fazul Mahamed said the organisation has not been registered and should be shut down.

“The board has noted that AfriCOG is not registered as required by the law. The purpose of this letter is urge your office move with speed to close down the operations,” he said.

Fazul said its directors and the members should also be arrested for contravening the NGO provisions.

“… with a view to arraigning and prosecuting them in a competent court of law,” he said.

He directed AfriCOG’s directors to cease all operations with immediate effect until when they will obtain a certificate of registration.

Fazul also directed the Central Bank of Kenya to freeze all the organisation’s accounts.

This comes a day after the government deregistered KHRC over allegations it is operating illegal bank accounts, employing expatriates fraudulently and failing to account for funds.

Kenya Human Rights Commission is associated with Professor Makau Mutua.

In a letter to the rights group on Monday, Fazul said the agency has opened four illegal accounts. Fazul said two of these are at NIC bank and the others at CBA.

On August 1, the board targeted Sh530 million in the accounts of an NGO associated with NASA chief Raila Odinga’s daughter Rosemary.

He said Key Empowerment Foundation Kenya received this amount from George Soros Foundation.

Fazul whom the Ethics and Anti-Corruption Commission has said is not fit to run the NGO Board is believed to have the ears of the powers that be in government.

When Devolution CS Mwangi Kiunjuri suspended him over the fake academic papers, the Coordination Board was quickly moved to the Interior ministry.

Kenya Human Rights Commission Chairman Prof Makau Mutua has dismissed the move by NGO Coordination Board to deregister the equal rights lobby. The NGO regulator accuses the rights commission of misusing Sh1.2 billion.

On Monday, Fazul Mahamed, the NGO Coordination Board Executive Director wrote to Prof Mutua informing him that KHRC had flouted the law by evading tax to the tune of Sh100 million from October last year, misused billions of shillings and had hired foreigners without proper work permits.

Fazul also asked the Central Bank of Kenya (CBK) to freeze all bank accounts operated by KHRC. But in a response on Twitter, Prof Mutua said the NGO board has no authority to delist KHRC. “Fazul has no legal authority to deregister the KHRC. High Court last year rejected these false charges and ordered him to cease and desist,” Makau tweeted. In the letter to the commission, Fazul accused it of operating four illegal bank accounts at the NIC Bank and Commercial Bank of Africa.
In a press statement, KHRC condemned the de-registration as an act of intimidation rather than enforcement of the law. KHRC revived the issue of Fazul’s academic qualifications and questionable conduct as the NGOs Board Executive Director.

Fazul has been in court trying to block the implementation of a report by the Ombudsman that he used a forged certificate to get a job at the the NGO Board. In May, High Court Judge George Odunga declined to issue temporary orders, saying that it would be a violation of rules of natural justice.

KHRC was registered in Kenya as an NGO in 1994 and has been on the frontline of fighting for the enhancement of human rights. Members of the KHRC board are Maina Kiai, Godwin Murunga, Muthoni Wanyeki, Devinder Lamba and Father Gabriel Dolan.

In another move, Fazul has written to the Director of Criminal Investigations, Ndegwa Muhoro, seeking to stop the operations of another non-state organisation until it is registered. According to the NGO Board executive director, Africa Centre for Open Governance (AfriCOG) has been operating illegallybecause it is not registered.
Fazul has also asked the Central Bank of Kenya (CBK) to freeze AfriCOG’s asked bank accounts. According to information available on its website, AfriCOG is an independent, non-profit organisation that provides cutting edge research and monitoring on governance and public ethics issues in both the public and private sectors so as to address the structural causes of the crisis of governance in this country.

AfriCOG is headed by an Executive Director accountable to a five-member Board of Directors, according to africog.org. The secretariat consists of staff organised functionally across two main function areas. The first area is programmes. This branch consists of staff dedicated to developing, implementing and monitoring AfriCOG’s programme activities built around the core functions of: research, advocacy and partnerships; and dissemination and linkages.

Members of AfriCOG’s board are Maina Kiai, Gladwell Otieno, John Githongo, Stella Chege, Donald Deya and Funi Olonlsakin. Just before the August 8 polls, AfriCOG had asked the courts to compel the Independent Electoral and Boundaries Commission (IEBC) to open the voters’ register for public scrutiny.

The Kenyan government is trying to shut down a rights group and a pro-democracy organisation who have raised queries over last week’s disputed presidential election, officials from the organisations said on Tuesday.

Official letters from the NGO Board – the government-run body that registers and regulates NGOs – to the Kenya Human Rights Commission (KHRC) and Africa Centre for Open Governance (Africog) said the two organisations risked punishment for administrative and tax reasons.

International and domestic observers have said the election process was largely free and fair, but opposition leader Raila Odinga has disputed the official results, which show incumbent President Uhuru Kenyatta won by a margin of 1.4 million votes.

The NGO Board did not return calls or emails seeking comment and Reuters reporters were not permitted to enter its offices.

Mwenda Njoka, a spokesman for the interior minister, said the letters, circulating on social media, were genuine. Africog and KNRC said they had not received any official communication.

“This is an attack on any kind of independent voice,” said Gladwell Otieno, the executive director of Africog.

Otieno repeatedly raised concerns about what she described as insufficient preparations by the election board in the run-up to last Tuesday’s elections, when Kenyans chose a new president, lawmakers and local representatives.

Both organisations also expressed public concern over the unsolved torture and murder of a key election official a week before the vote.

Odinga has not yet provided any evidence of rigging but is due to address the nation on Tuesday. His rejection of results triggered demonstrations and a deadly crackdown by police in his strongholds, including Nairobi slums and the western city of Kisumu.

George Kegoro, the head of KHRC, said his organisation was compliant with all laws and was being targeted for political reasons. He denied they had failed to pay taxes, operated “illegal” bank accounts or employed foreigners without work permits.

“If you operate in the kind of environment we do, we have to be compliant. The rules are a drag but we observe them,” he said.

His organisation had already successfully defended itself in High Court against the same accusations, he said, making the new letter threatening de-registraton “a travesty of justice”.

“We think its got to do with the politics of the season. We’ve played a leadership role in organising civil society participation in this election. They (the government) don’t like that.”

Otieno said her organisation did not fall under rules governing non-governmental organisations and was properly registered.

Njoka denied the organisations were being politically targeted and said “there were some issues with their auditing and accounting … If they give good accounts they may not be de-registered.”

By OLIVE BURROWS, NAIROBI, Kenya, Aug 15 – The NGO Co-ordination Board has written to the Directorate of Criminal Investigations urging it to immediately shut down the Africa Centre for Open Governance (AfriCOG) and arrest its directors.

The Board’s Executive Director Fazul Mahamed has also advised the Central Bank of Kenya to freeze all its bank accounts since it is operating illegally.

“AfriCOG is not registered under the NGOs Co-ordination Act 1990 as required by law. In fact,” Fazul states, “AfriCOG is and continues to operate as a charitable organisation in direct contravention of Section 22(1) which according to the Act is an offence punishable by law.”

An offence which Fazul submits, attracts the penalty of an 18-month jail term.

AfriCOG which is chaired by John Githongo and whose board members include Maina Kiai and Gladwell Otieno was party to the last presidential petition with Kethi Kilonzo as its legal representative.

Most recently, it filed a case seeking to have the Independent Electoral and Boundaries Commission compelled to open up the electoral roll for scrutiny.

The action follows the de-registration of another high profile Kenyan non-profit, the Kenya Human Rights Commission on Monday, a day before they were set to file a petition challenging the re-election of President Uhuru Kenyatta.

KHRC which shares a board member in Kiai with AfriCOG, therefore described the action as politically motivated.

The action of the putting these not for profits out of business, as it were, follows criticism that Kenya’s civil society has faced great threat under the administration of President Uhuru Kenyatta.

On his visit to Kenya back in July of 2015, then US President Barack Obama stressed the importance of the civil society in societal transformation having himself worked in the sector.

“Despite the hard-earned political progress that I spoke of, those political gains still have to be protected. New laws and restrictions could close off the space where civil society gives individual citizens a voice and holds leaders accountable.

The ability of citizens to organize and advocate for change – that’s the oxygen upon which democracy depends.”

The Non-Governmental Organizations (NGOs) Co-ordination Board has written to the Directorate of Criminal Investigations (DCI) seeking to de-register Africa Center for Open Governance (AFRICOG), alleging that it is ‘operating illegally’.

In a letter addressed to the DCI boss, Ndegwa Muhoro, the NGO board argues that it has come to its attention AFRICOG operates without registration, contrary to Section 22(1) of the NGOs Co-ordination Act 1990.

Additionally, the NGO’s watchdog says that by virtue of the Gladwell Otieno-led AFRICOG operating as a charitable organization in the area of democracy, transparency and open governance in Kenya, it has gone against Section 22(1) CAP 134 Laws of Kenya.

The law states that it shall be an offense for any person to operate a non-governmental organization in Kenya for welfare, research, health relief, agriculture, education, industry, the supply of any other similar purpose without registration and certificate under this act.

“The board has directed the office of the DCI to act swiftly and close down all AFRICOG operations until the matter is resolved and to further arrest the its directors for contravening laid provisions, with a view to arraign and prosecute them in a competent court of law,” read the letter.

Further, the board wants the Central Bank of Kenya to freeze all bank accounts and funds of AFRICOG.

A day after deregistering the Kenya Human Rights Commission, the NGOs Coordinating Board now wants the Africa Centre for Open Governance (AfriCOG) shut down.

The board, in a letter to Director of Criminal Investigations Ndegwa Muhoro, alleges AfriCOG has been operating illegally because it “is not registered under the NGOs Coordination Act 1990 as required by law”.

LAW

“AfriCOG is and continues to operate as a charitable organisation in direct contravention of Section 22 (of NGOs Co-ordination Act 1990 )which according to the Act is an offence punishable by law,” NGO Coordination Board Executive Director Fazul Mohamed says in the letter.

He also quotes Regulation 75 of the Act and the attendant regulation, which requires all organisations engaging in charitable activities to rescind their various registrations and obtain registration.

“The purpose of this communication therefore is to urge your office to move with speed to close down the operations of this organisation and further arrest the directors and members of AfriCOG, for contravening the foregoing provision; and with a view to arraigning and prosecuting them in a competent court of law,” Mr Mohamed says.

Mr Mohamed further instructs all the directors of AfriCOG to cease all operations with immediate effect until the organisation acquires a certificate of registration.

POLL LINK

And just like he did with the Kenya Human Rights Commission case, Mr Mohamed asks the Central Bank of Kenya to freeze all bank accounts belonging to AfriCOG.

The board’s moves have touched off a storm and earned it serious lashing on social media, with several critics suggesting that it is frustrating NGOs purported to have reproached the government before, during and after recently concluded General Election.

Just before the August 8 polls, AfriCOG Executive Director Gladwell Otieno had asked the courts to compel the Independent Electoral and Boundaries Commission to open up the voters register for public scrutiny.

She partly won the battle after the commission told the court that the register was already open online.

On Aug 12, KHRC Chairman Makau Mutua, who is also among the founders of the rights watchdog, tweeted that he would never recognise the re-election of President Kenyatta.

He said, “The sins of 2013 have been compounded. That’s why as a matter of my conscience I can’t – and won’t – recognise Uhuru Kenyatta as president”.

COURT

After the notice of deregistration of the commission, Prof Mutua said Mr Mohamed had no legal authority to deregister KHRC as the “High Court last year rejected these false charges and ordered him to cease and desist”.

High Court judge Joseph Onguto had on April 29, 2016 declared a similar attempt to deregister the KHRC as unconstitutional.

Judge Onguto faulted the NGOs Coordination Board for wrongfully deregistering the commission as well as threatening an investigation against it.

Earlier in the month, the board deregistered an NGO associated with Rosemary Odinga, daughter of ODM leader Raila Odinga, and recommended that its account be frozen.

Mr Fazul Mohamed wrote to the chairperson of Key Empowerment Foundation Kenya to say it had been de-listed on August 4.

Ealier, Mr Mohamed, whose academic papers are in question, froze the accounts of the Kalonzo Musyoka Foundation, dissolving its board for alleged failure to account for Sh196 million.

The Kalonzo Musyoka Foundation has since sued the board.

Mr Mohamed has continued to run the NGOs board even after being declared unfit to hold public office.

By RACHEAL MBURU, NAIROBI, Kenya, Jul 21 – AfriCOG case seeking to compel the Independent Electoral and Boundaries Commission to open up the voters register for public scrutiny will be heard from next Tuesday.

Judge George Odunga fixed the hearing date after IEBC and the Jubilee Party which have been enjoined as interested parties sought to be given time to respond to issues raised in the petition.

Activist Gladwell Otieno wants the polls body directed to gazette the final register per polling station ahead of the General Election.

Also sought are orders stopping the electoral agency from distributing the voters register to Returning Officers pending determination of the suit.

Otieno is asking the court to grant the orders over claims that there are inconsistencies in the voters register in certain regions.

Otieno says Under the Elections Act, the Commission is required to open up the register 90 days to the election date.

In addition, the NGO’s founder wants the electoral body prohibited from deploying the voters register for use in the General Election before it is subjected to public inspection.

She argues that inspection of the register will enable her to scrutinise and ascertain the actual registered voters.

AfriCOG has faulted IEBC for failing to publish the voters register and in so doing posing a threat to the exercise of the right to free, fair and democratic elections

The electoral commission has been dragged to court for failing to make public the voters’ register. The petitioner, Gladwell Otieno, the founder and Executive Director of Africa Centre for Open Governance (Africog), argued that failure by the Independent Electoral and Boundaries Commission (IEBC) to open up the register for public scrutiny after the audit by KPMG, is a threat to free, fair and credible elections.

“There are noted inconsistencies in numbers of registered voters in certain areas. It is only through inspection of the register that we will be able to scrutinise and ascertain the actual number of registered voters but the commission has refused to publish it,” said Ms Otieno.

Through her lawyer Willis Otieno, Otieno wants the IEBC compelled to release a register of voters per polling station and allow public scrutiny of any errors to be corrected before August 8 elections. RETURNING OFFICERS She also wants the commission restrained from distributing the voter registers to constituency returning officers until the suit is determined. “The petitioner is apprehensive that time may run out before the public have a chance to scrutinise the register and sufficient time given for revision taking into account public views and comments,” said the lawyer.

An audit report by KPMG had discovered several discrepancies in the voter register, with 88,602 dead voters being deleted from the list. Ms Otieno stated in her affidavit that the commission was supposed to open the register of voters for inspection 60 days to elections for a period of one month, after which they were to publish a list of registered voters per polling station. She said despite numerous requests to the IEBC to be supplied with the voter register, the commission had refused, making her apprehensive that some discrepancies might be in the register. According to Otieno, verification of biometric data to confirm the details of a registered voter is different from a public inspection of the register. “What we want is for the public to confirm the details per polling station as reported by the commission and ensure that those appearing in the register are indeed those registered in the particular polling station,” she said. She accused IEBC of disregarding electoral laws by refusing public scrutiny of the register.

Read more at: https://www.standardmedia.co.ke/article/2001248240/activist-gladwell-otieno-sues-iebc-for-failing-to-make-voters-roll-public

No mature democracies, we are told, have ever fought a war against each other.

Although democracy promotion is seen as the surest path to world peace and security, democratic transitions have given rise to instability rather than peace.

Here, the declaration of an election is becoming more and more like a declaration of war.

Mr Raila Odinga’s recent unilateral declaration that Kenya will go to a third poll in less than a year on August 2018 has the potential of heightening tension.

A week ago, this column highlighted the emergence of Africa’s peculiar “deep state” with its elements deeply embedded in civil society, media, Judiciary and even national security as one factor pushing emerging democracies to the brink of war (SN, February 4, 2018).

JUDICIARY

The increasing use of judicial systems as weapons of political conflict has given rise to a new form of warfare popularised as “lawfare” — itself a portmanteau that blends law and warfare.

Although the term lawfare is yet to enter public debates on democratic peace in Africa, the phenomenon is profoundly transforming judiciaries into weapons in the hands of political strategists.

Not surprisingly, the concept has increasingly become a subject of numerous academic works, including Lawfare: The War Against Free Speech (2011) by Brooke Goldstein and Aaron Eitan Meyer and Lawfare: Law as a Weapon of War (1st Edition, January 2016) by Orde Kittrie.

Indeed, after President Donald Trump’s election in 2016, the hitherto little known Lawfare blog, established on September 2010, has become a necessary read.

Like terrorism, lawfare waged in courts is a form of asymmetrical warfare and part of what has been theorised as the “Fourth-generation warfare” (4GW) — defined simply as conflict that blurs the line between war and politics, combatants and civilians.

SELFISH INTERESTS
In an influential 2001 paper, General Charles Dunlap, currently the Executive Director of Duke Law School’s Centre on Law, Ethics and National Security, defined lawfare as “the use of law as a weapon of war”.

Governments are the targets of this asymmetric warfare, which primarily seeks to use the legal system to damage or delegitimise an enemy, tie up their time or to win a public relations victory.

While lawfare warriors project themselves as victims of residual authoritarianism, their aim is never a pursuit of justice but a counterproductive perversion of the law through the abuse of the judicial system to undermine the very principles they claim to fight for: The rule of law, the sanctity of innocent human life, and the right to free speech.

As the newest feature of 21st century combat, lawfare signifies an effort to “exploit democratic values to defeat new democracies”.

It thrives on legal principles dishonestly and strategically to “handcuff the state”, in many cases succeeding in delegitimising the state’s right to defend itself or to crack down on rebels and anarchists.

THE HAGUE
Ironically, the blissful rise of universal jurisdiction in the 21st century has also created new arenas of lawfare.

As the cases of Kenya, Libya, Sudan and Ivory Coast have shown, The Hague-based International Criminal Court (ICC) has morphed into a trident weapon of manipulative politics in the hands of former colonial powers rather than an instrument of democratic peace and justice.

In Kenya, the country’s extensive Bill of Rights as the hallmark of the country’s 2010 constitution, one of Africa’s most liberal, has been manipulatively deployed by human rights fundamentalists to advance partisan politics and undermine state security.

Over the last one decade, opposition parties such as ODM in Kenya have adopted the state of the art technology and honed strategies in modern information warfare as part of its lawfare edifice.

After the 2007-2008 post-election dispute, ODM hardly used lawfare as a political strategy, preferring street protests arguing that the courts were under the thumb of the Government.

CIVIL SOCIETY
This position changed radically after the March 2013 election.

Since the 2013 elections, the courts and the law increasingly became important arenas of political struggle.

Pro-opposition civil society groups have used lawfare tactics to delegitimise the government, make it unworkable or tie down its time.

Organisations such as AfriCog championed the ICC case against the ruling Jubilee leadership.

Ahead of the 2017 election, they filed a barrage of cases in courts against the Independent Electoral and Boundaries Commission (IEBC) that targeted various aspects of the electoral process including tallying and announcement of results, voter identification gadgets and the voter register.

By August 2017, Kenya’s lawfare warriors in the human rights wing of civil society and opposition operatives had lodged no less than 200 legal suits against the IEBC.

IEBC UNDER SIEGE
On July 19, civil society activists sued the IEBC over the procurement of the Biometric Voter Register (BVR) gadgets.

At the start of July 2017, a month before the election, IEBC was facing 20 cases filed in courts by the opposition and allied civil society extremists.

A few days before the election, AfriCog sued IEBC over the voters’ register.

Shortly after the election, human rights organisations announced that they would file a petition against the election of President Uhuru Kenyatta for a second term with 54 per cent of the vote.

The Supreme Court’s ruling on September 1, 2017 that annulled President Uhuru Kenyatta’s electoral victory in the August 8, 2017 poll brought lawfare to its acme.

It also unveiled the capture and weaponisation of Africa’s judiciaries by elements of the deep state as the salient feature of lawfare.

SECURITY
Lawfare has intensified in the aftermath of the January 30, 2018 “swearing-in” of Odinga as “people’s president”.

In reversing this trend, Kenya has had to make hard national security choices to ensure stability.

Lawfare by opposition and allied civil society is gradually pushing the state to increasingly use hard power in the crack down against the masterminds of the illegal “oath”.

Universal jurisdiction, Henry Kissinger once opined, risks “substituting the tyranny of judges for that of governments”.

Lawfare is the best expression of the emergent phenomenon of opposition authoritarianism behind Kenya’s 2017 post-election rebellion by Odinga’s National Resistance Movement (NRM).

However, it will take more than hard power to secure democracy from the vagaries of lawfare.

It has to harness the combined technologies of “soft power” (“ability to affect others by attraction and persuasion”) and “sharp power” (communication strategies warfare).

Prof Kagwanja is former Government Adviser and currently Chief Executive of Africa Policy Institute

[pdf-embedder url=”https://africog.org//wp-content/uploads/2017/05/KNCHR-Statement-on-Securing-the-2017-General-Elections.pdf” title=”KNCHR Statement on Securing the 2017 General Elections”]

Civil society organisations have blamed the International Criminal Court (ICC) for succumbing to political pressure and recommend that it should be restructured. The African Centre for Open Governance (Africog) and Kenyans for Peace with Truth and Justice (KPTJ) said in their report that it was mistake to allow President Uhuru Kenyatta and his deputy William Ruto to run for office when they facing criminal charges at the ICC. The report was published to coincide with the ongoing ICC Assembly of State Parties (ASP) at The Hague. The report, Impunity restored?
Lessons learned from the failure of the Kenyan cases at the ICC, took stock of cases involving Kenyans in the ICC. Domestic politics “As a matter of Kenya’s constitutional law, Uhuru Kenyatta and William Ruto, should not — as individuals facing the most serious charges known to law — have been able to run for president and deputy president of a country that is a member of the ICC,” the report said. It noted that after their election, the pair were able to use the instruments of State power “to obstruct all attempts by the Office of the Prosecutor to collect evidence from State agencies in Kenya.” The Office of the Attorney General in effect acted as counsel for the accused, rather than a State Law Office, the report noted. “Being the president and deputy president, the two accused were able to use the machinery of the State to identify and then target witnesses; to compromise them, to intimidate them.”
On September 19, ICC’s trial chamber confirmed that Kenya had not complied with its obligations to co-operate with the court and referred the matter to the ASP. It was noted that the court was vulnerable to domestic politics and international diplomacy. According to the authors of the report, propaganda was used to “first, to outflank and second, to diplomatically undermine both the Office of the Prosecutor and the Court.” The report says it is probable that the decision by the court to excuse both Kenyatta and Ruto from continuous presence at trial was a concession to AU pressure. African countries were accused of hypocrisy, because although they were opposed to the court handling their cases, it is these nations that had referred these cases to the court.
Africog and KPTJ said it was Ruto who coined and popularised the incantation: ‘Don’t be vague, let’s go to The Hague’. “Even more interesting is that Jean Ping, who was declared to have lost the presidential election in Gabon resulting in the violence that led to the request for the ICC to intervene, is a former chairperson of the AU Commission.” “He vehemently opposed ICC investigations in Africa when he was at the AU but now supports the call for the ICC to investigate alleged atrocities committed in Gabon. This clearly shows that what African states seek in the ICC is a court that will be at their disposal when it suits them, but that they will demonise and undermine it when it does not,” the report said.
The report also teared into the work of prosecution, saying it could have done a much better job in the Kenya cases. It blamed the prosecutor for failing to realise that those charged would try to obstruct ICC’s investigations. “Former ICC Prosecutor Louis Moreno Ocampo failed to appreciate the political realities of Kenya. In the haste to prosecute the ‘big-fish’ Ocampo failed to grasp the incestuous links, and the mendacity of Kenya’s political elite,” it says. The ICC was accused of failing to assist victims of the violence in Kenya. The report comes at a time when over 200 civil society organisations have written to Presidents of African State Parties asking them not to withdraw from the ICC. The letter endorsed by six Kenyan organisations—including KPTJ and Africog—comes hot on heels of notices by South Africa, Burundi and Gambia to pull out of the ICC

Read more at: http://www.standardmedia.co.ke/article/2000224072/harsh-verdict-delivered-ag

1% of Kenyans believe that corruption is prevalent at the office of the Deputy President while 46% feel that it thrives in the office of the President. A recent opinion poll survey conducted by InfoTrack Company and sponsored by the Africa Centre for Open Governance (AfriCOG) and Kenyans for Peace with Truth and Justice (JPTJ), also shows that 58 % of Kenyans feel the country is headed in the wrong Direction.

A majority of Kenyans feel the country is headed in the wrong direction, with urban dwellers being the most pessimistic, a new opinion poll has shown.

A larger number of Kenyans also think Deputy President William Ruto’s office is corrupt than to those who think the same of the President’s office.

The latest numbers show that 58.2 per cent of Kenyans feel the country is headed to the dogs, a five per cent rise from a similar study by InfoTrak in March.

Nairobi expressed the highest levels of dissatisfaction with the situation (80 per cent), followed by western (75 per cent) and Nyanza (71 per cent) regions.
But the majority of people in eastern Kenya felt things are getting better while many in north eastern could not make up their minds.

Corruption is still the biggest pain in the side for most Kenyans, with 89 per cent feeling the police are “almost always” corrupt.

Other culprits are unemployment, cost of living, insecurity, poor health care and ineffective devolution.

A majority of Kenyans (54.6 per cent) felt the Jubilee government is to blame for the decline, with 19 per cent blaming “everybody”. However, some respondents, especially those in central (19.7 per cent) and north eastern (15.2 per cent), placed the blame on the opposition.

County governments elicited a positive reception in areas that were previously marginalised, but 78 per cent of Kenyans still feel that corruption is prevalent in the new governments, with the county executive and assembly leading the pack.

HIGH LEVELS OF CORRUPTION

AfriCOG Executive Director Gladwell Otieno said the high levels of corruption are worrying and have led to “criminalisation of the State.”

“The State seems to have been captured by a small group of people who are using it for their own benefit. We see police officers amassing fortunes that cannot be accounted for. Our police seem to have a poor understanding of what constitutes conflict of interest,” she said during the launch of the survey report.

She pointed to the recent use of State House as a venue for a merger of political parties as an example of “blatant use of state resources for private purposes”.

Most Kenyans, 54 per cent, also admitted they would readily pay a bribe if confronted with a situation that requires it.

Researchers had a difficult time finding Kenyans who would admit to personally paying bribes, although many reported knowing friends and relatives who have. Ms Angela Ambitho, the CEO of InfoTrak, attributed this reluctance to self-preservation.

“We decided to go with the figures of people reporting knowledge of friends and peers giving bribes as they were more representative of the reality on the ground,” she explained.