Senior most Judge can swear in President

The Senior most judge in the Supreme Court could swear in the president - elect in the absence of the Chief Justice and the deputy Chief Justice, this is according to Attorney Githu Muigai. The constitution however says that only the CJ can swear in the president - elect or in his absence the Deputy CJ. The position of DCJ is vacant following the exit of Nancy Baraza and her proposed replacement Kalpana Rawal has to wait for the next parliament to approve her appointment.

Meanwhile, over 15 independent constitutional bodies have expressed satisfaction with the preparedness by the Independent Electoral and Boundaries Commission to conduct credible elections. The representatives of the fifteen independent constitutional bodies led by Chief Justice Willy Mutunga, Attorney General Githu Muigai, Director of Public Prosecution Keriako Tobiko, IEBC Chairman Isaack Hassan among others, were all unanimous that the country is ready for the March 4th general election.

Each outlined plans he has put in place to ensure fairness, with Mutunga saying they have set up specialized courts to deal with petitions from the election.

Tobiko welcomed the idea saying it will facilitate prosecution of those who go against the law including civil servants, sentiments echoed by Githu.

Hassan says the IEBC is ready and proper measures have been put in place to ensure fairness, urging all candidates to respect the code of conduct they signed. Inspector General of Police David Kimaiyo says those with intentions of causing any kind of protest will not be spared, adding that security has been beefed up in all parts of the country. Transition Authority Chairman Kinuthia Wamwangi also says they have already dispatched their officers to the 47 counties in readiness for the transition to county government. The organizations have now urged Kenyans to exercise their democratic right and vote in the election, and foster unity during the electioneering period.

 By:Rufus Hunja

UN chief urges peaceful elections in Kenya

UN Secretary General Ban Ki-moon has called for peaceful and credible elections in Kenya as he discussed the next week's polls with President Mwai Kibaki. In a telephone call with Kibaki on Wednesday, Ban voiced the hope that all Kenyans will work together to ensure that next week's elections are peaceful, expressing appreciation for efforts made to strengthen Kenya's democracy and its electoral system since the last general elections. "He trusts that efforts made at many levels to prevent a repeat of past violence will be redoubled during the remainder of the campaign," said a news release from the UN, citing information provided by the Secretary-General's spokesperson.

 
The March 4 elections are regarded as one of the most significant event in the history of this country because they will be the very first to be held since the 2007/2008 post election violence, when, within a seven-week period following the polls, and as a direct consequence of the contested results. The elections are also significant because they will be the very first to be organized under Kenya's 2010 Constitution, which provides for safeguards against unfair, insecure, corrupted, non- transparent or inefficiently administrated elections.

 Already, the country's security agencies and the electoral body charged with overseeing the March 4 polls have confirmed their readiness for the exercise. The Independent Electoral and Boundaries Commission (IEBC) chairman Isaack Hassan and the Inspector General of Police David Kimaiyo said adequate measures are in place to make next week's polls successful. During the conversation with Kibaki, Ban stressed the importance of respecting the independence of the judiciary and the authority of the Independent Electoral and Boundary Commission (IEBC), which is entrusted with organizing the elections, and ensuring that the results reflect the will of the Kenyan people. He was encouraged by the recent statements made by all the presidential candidates to reaffirm their commitment to a peaceful and tolerant campaign, and to appeal to their supporters to do the same, and to reject inflammatory rhetoric, violence or fraudulent actions.

 

PS Foreign Affairs Arrainged in Court

Foreign Affairs Permanent Secretary Thuita Mwangi was Thursday morning arraigned in court alongside Allan Mburu to answer to four charges of alleged abuse of office and corruption related crimes in the Ministry. The PS and Mburu, the Charge d’affaires at the Kenyan Embassy in Tokyo did not however take plea after their lawyers objected, demanding production of materials that formed basis of the charges.
The third suspect, Anthony Mwaniki Muchiri, who is Kenya’s ambassador to Libya has now been issued with summons to appear in court on March 14. The three are accused of breaching public trust by approving the purchase of property for the chancery of the Kenyan embassy and ambassador’s residence at a cost of 1.6 Billion Shillings while aware that a fair market price could have been obtained had proper procurement procedures been adhered to.
Mwangi and Mburu face two other counts of abuse of office and failure to comply with the law and procedures relating to procurement. Mwangi’s objection to taking of plea was presented by four lawyers led by Evans Monari, who insisted that the matter had been subjected to various investigations by a parliamentary committee and the Treasury and that the PS needed all documentations that informed the charge presented. Monari told the anti-corruption court that they will need to study and analyze all the investigation reports to enable their client take plea and write a precautionary statement. The two were released each on a 2 million shillings cash bail each by Senior Principal Magistrate Doreen Mulekyo who will give directions whether they should plead to the charges on 8^th March.

Chief Justice Mutunga on Elections

As Kenyans celebrate the fifth anniversary since the signing of the national Accord and Reconcilliation Agreement the Judiciary took the platform to launch the Pre-Election Report of the Judiciary Working Committee on Elections Preparations (JWCEP). In short this is a report showing how Prepared and measures that have been put in place to tackle the over 500 petitions expected to be lodged after the 4th March General Elections. In his public address to the nation, Chief Justice Willy Mutunga affirmed to the nation that the Judiciary was ready. Saying during the election period court registries would remain open from six in the morning until seven in the evening, while judges and magistrates will sit through weekends and public holidays whenever necessary in order to dispense with court cases pertaining to electoral disputes. In addition judicial officers would not be allowed to go on leave between March and October. All presidential election disputes would be resolved within fourteen days while all other election petitions would be heard and resolved within six months.

COURT TO RULE ON KAJWANG'S INTEGRITY AFTER ELECTIONS

                                                     



The High court is expected to rule on 15th March this year on the integrity of Immigration Minister Otieno Kajwang who is facing fresh hurdles over his quest to become the first Senator of Homa Bay County.

This comes after a group of civil rights activists moved to court to block Kajwang’ claiming he is not fit to hold any public office after being struck off the roll of advocates for professional misconduct. They claim that the Immigration Minister did not meet the threshold of integrity required by Chapter Six of the Constitution to warrant running for office whether public or elective after he was accused of misappropriating clients’ money and the disciplinary committee found him guilty and struck off his name.

Kajwang’ was struck off the advocates roll after he was found guilty of misappropriating clients’ money on nine different occasions between 1999 and 2006.

However, he applied to be reinstated in July 2012. In December 2012, the Law Society of Kenya disciplinary committee allowed the request but made certain recommendation to the Chief Justice he had to fulfill before being fully allowed to practice.

The civil organization argued that the process of reinstatement has not been completed  even by the time he had given his nominations papers to IEBC. According to the condition for his reinstatement, Kajwang’ was for the first twelve months supposed to make a minimum of five presentations at LSK’s legal seminars on a topic he has expertise. The society claims Kajwang’ has not fulfilled the conditions and as such should be barred from contesting the Homa Bay senatorial seat. Justice Isaac Lenaola will make his ruling on 15^th.

Mexico union leader Elba Esther Gordillo arrested

Ms Gordillo, 68, is known simply as "la maestra" or "the teacher"

 

Union head Elba Esther Gordillo, known as Mexico's most powerful woman, has been arrested on corruption charges.

Ms Gordillo, who runs the 1.5 million-member Mexican teachers' union, is alleged to have embezzled more than $156m from union funds.
No-one from her legal team has responded to the allegations, but in the past she has denied any wrongdoing.

Her arrest came a day after the government enacted major reforms to the education system.
President Enrique Pena Nieto signed the sweeping reforms, which seek to change a system dominated by Ms Gordillo's union in which teaching positions could be sold or inherited.

"We are looking at a case in which the funds of education workers have been illegally misused, for the benefit of several people, among them Elba Esther Gordillo," Attorney General Jesus Murillo Karam said.

His office alleges Ms Gordillo, 68, used the money on property, including in the US, private planes and plastic surgery.

The BBC's Will Grant in Mexico City says that Ms Gordillo is one of the highest profile figures in Mexican political life, known simply as "la maestra" or "the teacher".

For more than 20 years she has led the National Union of Education Workers (SNTE). Political player
With an estimated 1.5 million members, the SNTE is considered Latin America's most powerful union.

Ms Gordillo has held real influence over governments and individual presidents by persuading her union members to vote as a single bloc, our correspondent says.

The teachers were also responsible for manning polling stations on election day.

Her union is very wealthy, and can count on an annual budget of tens of millions of dollars.

It is on claims that she mishandled those funds, allegedly diverting money intended for the union's coffers to her personal accounts, that she has now been arrested.

The education reforms appeared set to weaken the SNTE, which has largely controlled access to the profession.

The union has argued that reforms could lead to massive lay-offs.

Critics also say the changes could signal the start of the privatisation of education in Mexico.

Mexico's education system currently ranks bottom in a list of members of the Organisation for Economic Co-operation and Development (OECD).

The reforms will require teachers to undergo regular assessments, something that has previously never taken place inside Mexico's primary and secondary schools.

Many teachers in Mexico are said to have a very low standard of education themselves.

Another change is intended to tackle the problem of absent or even deceased teachers receiving wages.

Ms Gordillo has been an outspoken critic of the current education minister and his approach to the reforms.

http://www.bbc.co.uk/news/world-latin-america-21597680

Judicial appointments: new boys at the supreme court

Joshua Rozenberg @ guardian.co.uk,

Lord Justice Hughes is likely to be the only member of the supreme court with an interest in bellringing Photograph: AlamyThe three new members of the supreme court "represent a talented trio of judges", its president, Lord Neuberger, said after their names were announced. But, at that level of the judiciary, the other leading candidates are also highly talented. So who's in and who's out? First, the new boys.

Lord Justice Hughes, 64, is currently vice-president of the criminal division of the court of appeal. While he was still a high court judge, Sir Anthony Hughes was moved from the family division to the Queen's bench division, giving him experience of criminal trials. In 2008, I tipped him for lord chief justice. Two months ago, though, I reported that he was not interested in the job and backed him for the supreme court instead.
Hughes will bring much needed criminal expertise to a court that has traditionally lacked experience in this area of work. He is also likely to be the only member of the court with an interest in bellringing.
The appointment of Lord Justice Toulson, 66, was less expected, though I reported his name nearly two weeks ago. Like Lord Sumption, who joined the supreme court last year, Sir Roger Toulson served for five years on the Judicial Appointments Commission — not to be confused with the one-off commission that chose the three new supreme court justices. Toulson also chaired the Law Commission, the law reform body.
And Toulson is a supporter of the Marriage Foundation, a campaign launched last year by a high court judge with the aim of "fewer relationships breaking down and more people forming healthy stable relationships".
Although Toulson served in the Queen's bench division, he will replace Lord Walker, a distinguished chancery specialist. The supreme court is now looking a bit threadbare on the chancery side and it may struggle if it has to deal with an old-fashioned family trusts dispute. But such cases are probably quite rare these days and Neuberger was a chancery judge himself.
When these vacancies were announced, it was thought that — barring accidents — they would be the last until 2018. However, Toulson will have to leave the court in September 2016, when he reaches the age of 70. This is the mandatory retirement age for all judges first appointed to the bench after 31 March 1995.
Lord Hodge will succeed Lord Hope in October as one of the two Scottish judges in the supreme court. When I tipped him earlier this month, I pointed out that Patrick Hodge, 59, sits in the outer house of the court of session, Scotland's highest civil court. Though true, this gave the impression Hodge was at the equivalent level of an English high court judge rather than an appeal judge. A reader helpfully pointed out that Hodge has heard criminal appeals at the highest level. He also has a much broader level of judicial experience than his English colleagues.
And who's out? A quick glance at the court of appeal list shows who they must be. Lord Justice Laws, though 67, can sit until he is 75. A charming, erudite man and a former classical scholar, he has been a staunch friend of mine since his days as Treasury devil — the government's jobbing barrister — in the 1980s. He is regarded as perhaps too original a thinker for the highest court in the land.
Lord Justice Rix, 68, could also have sat until 75. A highly regarded commercial specialist, Sir Bernard Rix may well see his future as an arbitrator, where his skills would be much in demand.
After then comes Lady Justice Arden, 66. This must have been Dame Mary Arden's last chance for promotion to the supreme court. It would have made a lovely story if she had been appointed. The government — and Lady Hale — would have welcomed the promotion of a woman. Another of the supreme court judges, Lord Mance, would have welcomed the appointment of his wife. And Chancery lawyers would have welcomed the appointment of one of their own. But it was not to be.
Finally, Hope's retirement in the summer leaves a vacancy for a new deputy president. "Expressions of interest will be invited from the existing justices," the court has announced. But there are really only two candidates left with sufficient seniority, Hale and Mance. My money's on Hale.

US Supreme Court refuses to let Americans challenge FISA eavesdropping law

 

Published time: February 26, 2013 20:01

Reuters / Larry Downing

Tags
Court, Information Technology, Internet, Law, Security, USA

The United States Supreme Court will not let Americans challenge a provision in a foreign intelligence law that lets the federal government secretly eavesdrop on the intimate communications of millions of Americans.
On Tuesday, the top justices in the US said the country’s highest court will not hear a case in which Amnesty International and a slew of co-plaintiffs have contested a provision of the Foreign Intelligence Surveillance Act of 1978, or FISA, that lets the National Security Agency silently monitor emails and phone calls [.pdf].

Under the FISA Amendments Act of 2008 (FAA), the NSA is allowed to conduct electronic surveillance on any US citizen as long as they are suspected of conversing with any person located outside of the United States. That provision was scheduled to expire at the end of 2012, but Congress voted to re-up the bill and it was put back on the books for another five years.

Along with human rights workers and journalists, Amnesty International first challenged the FAA on the day it went into effect, arguing that the powers provided to the NSA under the FISA amendments likely puts the plaintiffs and perhaps millions of other Americans at risk of surveillance. Now years later, though, they are finally being told that they cannot challenge the law that, while meant to collect foreign intelligence, puts every person in the country at risk of being watched.

“Under the FAA, the government can target anyone — human rights researchers, academics, attorneys, political activists, journalists — simply because they are foreigners outside the United States, and in the course of its surveillance it can collect Americans’ communications with those individuals,” the American Civil Liberties Union wrote on behalf of the plaintiffs in a legal brief filed last year with the court.

Amnesty, et al have been pursuing an injunction against the NSA in their lawsuit, which names former NSA-Chief James Clapper is a co-defendant. Because the plaintiffs cannot prove that they’ve actually been targeted under the FAA, however, the case is been stalled endlessly.

In last year’s filing, the ACLU acknowledged that an appeals court panel agreed in 2011 that “plaintiffs have good reason to believe that their communications, in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct,” and the full body of US Court of Appeals for the Second Circuit later refused the government’s attempts to have them reconsider.

“But instead of allowing the case to be heard on the merits, the Obama administration asked the Supreme Court to review the case,” the ACLU’s Ateqah Khaki, wrote. “Our brief urges the Court to affirm the appeals court’s decision.”

On Tuesday, however, the Supreme Court dismissed the claims that the plaintiffs were being watched under the FAA. Amnesty and others had argued that the presumed surveillance they were subjected to has caused them to go out of their way to maintain working relationships with clients, forcing them to travel abroad to communicate without the fear of being monitored.

In the suit, the plaintiffs have said that because they communicate “with people the Government ‘believes or believed to be associated with terrorist organizations,’ ‘people located in geographic areas that are a special focus’ of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government,” they’ve undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications.

"This theory of future injury is too speculative,"Justice Samuel Alito said in announcing the 5-4 decision, calling it "hypothetical future harm."

“In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance,” the court ruled. “[R]espondents’self-inflicted injuries are not fairly traceable to the Government’s purported activities under [the FAA] and their subjective fear of surveillance does not give rise to standing.”

But only last year, Amnesty et al were given good reason to worry right from the NSA: Senators Ron Wyden (D-OR) and Mark Udall (D-CO) sent a letter to the Office of the Inspector General of the Intelligence Community asking, “how many people inside the United States have had their communications collected or reviewed under the authorities granted by section 702” of the FISA Amendment Act (FAA). The NSA responded by rejecting the lawmakers’request, and said a “review of the sort suggested would itself violate the privacy of US persons.”

“All that Senator Udall and I are asking for is a ballpark estimate of how many Americans have been monitored under this law, and it is disappointing that the Inspectors General cannot provide it,” Sen. Wyden told Wired’s Danger Room at the time. “If no one will even estimate how many Americans have had their communications collected under this law then it is all the more important that Congress act to close the ‘back door searches’loophole, to keep the government from searching for Americans’phone calls and emails without a warrant.”

In the court’s majority opinion, five justices even added that the government’s ability to wiretap Americans doesn’t begin and end with FISA, either. "The Government has numerous other methods of conducting surveillance, none of which is challenged here,”they ruled.

“Because respondents do not face a threat of certainly impending interception” under FISA, “the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,” the court told the plaintiffs.

Journalists Chris Hedges and Naomi Klein joined Amnesty in the case, along with Joanne Mariner, the Terrorism and Counterterrorism Program Director at Human Rights Watch, attorney Sylvia Royce and others.

Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas ruled in the majority. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all dissented.
http://rt.com/usa/scotus-FISA-FAA-surveillance-483/

COURT ORDERS IEBC TO USE TRANSPARENT BALLOT BOXES

Independent Electoral and Boundaries commission (IEBC) will have to contend with a new hurdle of procuring Transparent Ballot boxes as ordered by High court. This comes after City lawyer Harrison Kinyanjui moved to court challenging IEBC comply with the law as stipulated in the Elections Act. Justice Isaac Lenaola cited that the facts of the case were uncontested according to Election Act sect 2. He added that the IEBC Legal Manager Mohamed Jabane under oath had told the court that IEBC would duly comply with the law.  Lenaola also added that there was no controversy or dispute before him that transparent boxes would mean translucent boxes. The Judge, directed that IEBC moves with speed to rectify the anomaly of translucent boxes and use Transparent ballot boxes.  Should IEBC fail to comply with the court’s orders the petition will be heard on 12^th March this year.

COURT TO RULE ON INTERNATIONAL OBSERVERS

Nairobi’s High court judge, Justice Isaac Lenaola is expected to make a ruling on Wednesday 27^th February 2013, whether it will block the International observers, from the European Union, United Kingdom and the United States from monitoring the General Election. This comes after a voter, Samson Ojiayo through lawyer Harrison Kinyanjui moved to court seeking to block the European Union, United Kingdom and the United States from monitoring the General Election. Samson claims the UK, US and EU observers were partisan following the utterances made through the media towards the election of presidential candidate Uhuru Kenyatta and his running mate William Ruto who are facing charges at the International Criminal court.   

OKEMO GICHURU CASE STOPPED AGAIN

The High court today stopped the ongoing Extradition proceedings before a Nairobi’s Magistrate court again. The Extradition proceedings against former Namable Legislator Chris Okemo and Former Kenya Power boss Samuel Gichuru are both wanted in Jersey Island to face money laundering charges. On Friday 6th 2013 Nairobi’s City court Magistrate Teressia Murigi had ruled that the Director of Public Prosecutions Keriako Tobiko had the power to initiate the proceedings. Tobiko, authorized Okemo and Gichuru's extradition following a request by the UK in accordance with the Commonwealth Extradition Act, but the two challenged Tobiko’s power in court. Murigi said there was no evidence to support their argument that they will not get a fair trial due to the adverse media publicity. She said media publicity does not constitute a violation of a party’s right to a fair hearing. Okemo and Gichuru are wanted in the UK after a warrant was issued by the Chief Justice of the Island of Jersey in April 2011 for charges of money laundering and corruption of over 900 million shillings.

IDP'S WANT SECURITY

Over 3000 Internally Displaced Persons drawn from various parts of the country are now seeking an assurance from the govenrment of kenya on thier security during the forth coming general elections. The IDP’s who were before Justice Isaac Lenaola told the court they were warry and apprehensive about their security, since they were still living amongst the people who had displaced them. Through lawyer George Kithi they said they needed an assurance of their security during and after the elections. This case was filed last year by Naivasha Member of Parliament John Mututho seeking to have the 3000 IDP’s resettled before the 4th March General elections 2013. Justice Lenaola directed the Attorney General’s representative Stella Munyi to get the official number of IDPs who had not yet been resettled.  The IDP’s include 1533 displaced from Kisumu who allege they have never been registered by the Kisumu Town District Commissioner since 2008, also 320 people from Eldoret’s Kimumu area who also allege have never been registered and waiting for the government to act.The case will be heard on 30th April 2013.

KAJIADO COUNTY GOVERNOR CASE

Kajiado  County might have to wait for while before they elect a govenor if a case lodged by a voter succeeds. Jackson Tatao Pashile moved to court seeking to put off the elections of the Gurbernatorial  seat till the pending cases in court are heard and determined. Pashile claims a candidate vying on the URP ticket Nina Daniel Mpute’s academic qualification was questionable. Adding that Mpute ‘s alleged degree  from Catholic University was fake. Pashile added that the  Catholic University in a letter written to them had confirmed  that the degree was fake and declined to have been issued on 5th October 2012. At the same time the running mate of ODM’s govenor Paul Ntiati  is alleged to have been a civil servant and had declined to resign from office in accordance with the law. They allege Ntiati was a Non Governmental Organization co-ordination board member by september 3rd last year and had not resigned. High court judge, Justice Isaac Lenaola directed the case be heard before the Political Parties Disputes Tribunal led by Peter Simani on Wednesday. This case comes barely a month after the High court nullified the nomination of TNA’s candidate for Kajiado county, Josiah Taraiya Ole Kores’s  and the IEBC directed to remove his name from the list of candidates. The ruling was made by a 3-Judge bench which found that the alleged Degree certificate produced by Kores was not recognized by the Commission of Higher Education (CHE).