Kenya: The Myth of Peace in a Conflict Zone Exposed
Kenya's peace in a conflict zone is a myth
Despite peace and tranquillity in Kenya, Uganda, its neighbour, has been to war on many occasions, wars that led to the killing of thousands of Ugandans and the destruction of millions worth of property. In 1971, Idi Amin seized power through a military coup and for the next decade, the dictator presided over a brutal regime that led to the slaughter of an estimated 300,000 Ugandans. In 1979, Amin was overthrown by Tanzanian forces that launched an offensive together with a group of Ugandan rebels. After the invasion, former President Milton Obote regained power but in 1985, Obote was deposed once again by General Tito Okello who ruled the country for six months. When Okello took power, Yoweri Museveni was waging a guerrilla war from the bush with his National Resistance Movement (NRM) and during the dying moments of Okello’s rule, peaceful Kenya provided a platform where a peace deal was signed between Museveni and Okello. The deal collapsed after Museveni set it aside and seized power with his forces, forcing Okello to flee to exile. After Museveni took over the Ugandan State machine with much jubilation and support from Ugandans, Museveni continued to engage in both internal and external wars. Within the country, he began to fight against a new rebel group calling itself the Lords Resistance Army (LRA) that was being led by Alice Lakwena while Museveni also engaged in fratricidal wars in both the Democratic Republic of Congo (DCR) and the Great Lakes Region. Throughout this period, Kenya was considered a peaceful country due to lack of armed conflicts.
Tanzania, another country that borders Kenya, has been relatively peaceful and there is no recent and major internal or external conflict that can be cited. However, as Idi Amin’s dictatorship turned bloodier with new murders and assassination of opponents, Amin made a big miscalculation and invaded Tanzanian territory with a military agenda of expanding Uganda’s borders. President Julius Nyerere not only repulsed Amin’s forces but also took the war right inside Uganda. At the time of the Tanzanian repulsion, the poorly armed Ugandan army had degenerated to a rag-tag army suffering from war fatigue and disorientation due to lack of direction and war agenda. Eventually, the anti-Amin war by Tanzanian forces accorded Museveni the strategic advantage of moving into Uganda to take over the country’s leadership. Kenya remained peaceful as Museveni moved into Kampala to seize power by force.
Somalia, Ethiopia and Sudan
Somalia, another country neighbouring Kenya, is a country that has been at constant war, especially after the fall of the Mohammed Said Barre regime who ruled the country between 1986 and 1991. For more than a decade, Somalia has been without a government because different armed groups have been fighting to control the country. The result has been unprecedented chaos, insecurity, death and destruction. At the time of writing, Somalia was still at war with no clear signals that the war would soon come to an end. Resolutions by the UN and imperialist interventions have been unable to stop the war because of the complexity of forces involved. Consequently, millions of Somali refugees who have left the country since the outbreak of war have moved out through peaceful Kenya. Kenya is itself home to thousands of Somalis (Kenya-Somalis) and the naturalization process of Somali refugees in Kenya has been smooth because of this factor.
During the years of conflict in Somalia, Kenya provided a safe base for peace negotiations in Nairobi, which saw through an agreement that resulted in the election of a compromise President — Abdullahi Yusuf Ahmed. Unfortunately, peace did not return to Somalia as had been expected. This was because the Somali warlords continued to control territory, making it difficult for a new government to be set up in Somalia. Frustrated that Islamic terrorists would continue using Somalia for their operations by taking advantage of chaos occasioned by lack of government, the United States collaborated with the Ethiopian government to attack Somalia and sweep away the warlords. While the strategy succeeded, the problem that was left behind is that members of the Islamic courts, who were displaced by Ethiopian forces, have refused to disappear and fighting continues between these and Ethiopian forces.
Death and destruction continues while ships along the shores of Somalia have repeatedly fallen victim to piracy. Instability in that country continues. Because of the prevailing peace in Kenya, numerous humanitarian operations have been based in Kenya and when the post-election chaos erupted in Kenya, there were serious concerns on how the situation in the country would impact humanitarian operations in Somalia. When the focus is turned on Ethiopia, one is reminded of the thirty-year war between the Ethiopian government and the Eritrean Liberation Movement, a war that ended when Eritrea gained its independence from Ethiopia and became the newest State in Africa. Throughout this war, there was relative peace in Kenya, save for incidences of the “Shifta war” that raged in North Eastern Province during the 80s. In a crude attempt to contain what the Moi government called the “Shifta menace,” Kenyan security forces massacred more than 400 Somali Muslims who were believed to be supporters of the “Shifters.” The attack occurred on February 10, 1984, and created what is today known as the “Wagalla massacre.”
The Ethiopian-Eritrea war raged against a background of relative peace in Kenya and the Kenyan government ensured that it remained neutral in the war so as not to antagonize neighbours. This brings us to Sudan, another neighbour of Kenya, which has also had its share of wars as Kenya remained peaceful. For almost thirty years, the Islamic government in Khartoum fought the Sudanese People’s Liberation Army (SPLA), which had been fighting for autonomy in Southern Sudan. The conflict stemmed from opposition of Southern Sudanese (who are Christians) to domination by Islamic government in Khartoum. Because Kenya remained peaceful throughout this war, Nairobi became the base of choice when the two sides decided to go for a negotiated settlement to the decades-old conflict. The peace deal was eventually signed and some degree of peace was achieved in Sudan. This opened the way for self rule in Southern Sudan.
Raging conflicts in Kenya
From the above summary, Kenya earned its reputation as a “peaceful country” in a conflict zone. From a military point of view, Kenya has been peaceful but from a political, social and economic perspective, a longstanding internal conflict has been raging in Kenya for decades. When elections were rigged, the dynamics of this silent conflict exploded in the streets by way of violence, looting of property, senseless killings and wanton destruction of property to a level that has never been witnessed in Kenya before and to proportions that shocked the international community. Millions of observers inside and outside Kenya could not comprehend how such a peaceful and tranquil country that “has enjoyed prosperity” could suddenly explode with uncontrolled violence just because elections had been rigged.
The battle that has been raging in Kenya and that rarely finds effective expression in the world media is the battle between the rich and the poor, the “haves” and the “have nots,” the exploited and the exploiter, the powerful and the powerless, the wealth grabbers and the robbed, the bellyful wanabenzi and the hungry, the millionaire tycoons and the beggars in the streets, those with food on the table and those starving, the business community and the paupers, the fat land grabbers and the landless, the tiny wealthy ruling class and the army of unemployed youth. A huge but silent conflict has been raging between these different groups and classes of Kenyans and the rigging of elections simply acted as a catalyst to bring this war into the open and before the international community.
The post-election violence that erupted across the country was a result of election rigging but it was also tied to growing inequalities in the Kenyan society, mass poverty, mass unemployment, lack of opportunities especially for the youth, spiralling inflation, starvation of vast sections of the population, poor remuneration of workers who live on starvation wages, lack of housing, which has created huge slums in urban areas, social frustrations, lack of clean drinking water, collapse of public infrastructure due to looting of the economy, corruption in high places, and a host of other vices that have ravaged the lives of millions of Kenyans, especially the youth who were defying live bullets fired by police in the streets in the name of change. The December 2007 election was about the departure of President Mwai Kibaki and the gang of thieves that surrounded the President. Millions of voters who opted for ODM believed that once this economic terror gang was ousted from power, it would be possible to address ways of ending the root causes of the suffering of millions of Kenyans who have to go without food, drinking water and shelter above their heads on a daily basis.
The war between the rich and the poor is grounded on theft of public resources by those in power in the face of collapsing social services across the country and the lavish lifestyles led by the rich using money stolen from the poor taxpayer. Exploitation of Kenyans by local and international capitalists who have acquired every profitable enterprise in Kenya for themselves, corruption within the government by fat cats surrounding the President and the ruthlessness of the so-called “business community” are vices that ODM supporters in the streets expected to be addressed as they voted for the Party.
After years of suffering under one rotten regime after another — Kenyatta, Moi, Kibaki — and after decades of tolerance, Kenyans who voted for Raila Odinga as President believed that the country was ripe for a new breed of leadership that could help transform the country after old guards who joined politics in 1963 converted the country into a private business enterprise where they could act illegally and at any front without accountability. These political gangsters have been enjoying an upper hand in the politico-socio-economic conflict because of two reasons: control of the State machine and lack of political organization and mobilization of exploited Kenyans to fight back. When ODM came into the scene, the organizational element of the downtrodden in Kenya also fell into place. In the eyes of ODM supporters who were mainly the youth, prospects of an overthrow of the rotten Kibaki-controlled Kikuyu ruling class that took over from the equally rotten Moi-controlled Kalenjin ruling class that in turn, took over from the rotten Kenyatta-controlled Kikuyu ruling class became real. The cumulative anger and frustration resulting from a protracted mass struggle against the rich owners of capital is what exploded in the streets across Kenya when it dawned on millions of youth that their expectations would not be addressed because Kibaki and PNU had stolen Raila Odinga’s Presidency through Kibaki-appointed ECK to illegally return to power in order to maintain the unacceptable and retrogressive political status quo.
Basis for future conflicts and social explosions in Kenya
Under Kenyatta, Moi and Kibaki, Kenya has been a country where everything has been on sale including Justice in the courts and basic social services because of corruption. There are hospitals for the rich and the poor. There are schools for the rich and the poor. There are social gathering places for the rich and the poor. There are markets for the rich and the poor. Almost every aspect of life in Kenya is divided into rich vs. poor categories. Of course, this is the situation in every country where the political system of government is driven by rotten capitalism. The purpose of this analogy is to argue that below the aura of peace in Kenya, a fierce war has been raging from below and it had to take the rigging of elections by forces considered by the masses of the Kenyan people who voted for change as the “enemy forces” in order for the real dynamics of this war to explode in the open and to send pundits and an assortment of experts into a spiral of political analysis.
A rich man can escape prison in Kenya after committing an act of murder but a poor man will go to prison for shoplifting. Security forces are used by the State to keep the peace in the interest of the rich who have grabbed the country’s wealth and who continue to tread on the poor with impunity. Once one of their members have stolen from the poor and became a millionaire or billionaire, the thieving ruling class has notoriously bored the poor with Commissions of Inquiries to investigate how one of them stole but at the end, what the poor have witnessed in Kenya is that the rich never face justice but escape with all sorts of crimes including economic crimes that are responsible for lack of medicine in hospitals or lack of equipment in leaning institutions. Others have even escaped with political assassinations.
This gang of thieves who call themselves “government,” together with their imperialist allies, have resolved to keep the poor in Kenya in perpetual poverty, a situation that has been understood by sections of the poor whose political consciousness continues to grow by the day. While millions are landless in Kenya and others are squatters in their own country, the rich land grabbers have set aside huge chunks of idle land across the country. The Kenyattas, Mois and Kibakis are all members of this exclusive club of land grabbers and enough documentation already exists to enable any serious government to address the question of landlessness in Kenya. This is not to suggest that the conflict between the rich and the poor is unique to Kenya. As mentioned earlier, the problem is the same in several countries around the world that have been ravaged by capitalist class rule. The difference in the situation is that commentators were quick to point out that unlike other countries, Kenya has been peaceful. The truth is that the peace being trumpeted in this context has been an artificial peace because conditions for peace have not been in existence in Kenya for decades and this is how the situation will remain if key issues that led to the election of ODM are not addressed either by present or future governments.
The struggle against the corrupt one-Party dictatorship of Moi, the struggle for the re-introduction of political pluralism in Kenya, the struggle that removed Moi and KANU from power and the struggle against Kibaki and his Mount Kenya Mafia cartel have all been waged within the context of a war for a better Kenya where every Kenyan can have access to food, clothing, shelter and personal security. This battle has not ended with the formation of a Grand Coalition and the continuation of this battle will form the basis of future conflicts and social explosions in Kenya.
Raila Odinga’s Stolen Presidency:
Excerpt from Chapter 19: Consequences of Election Rigging
The myth of peace in a conflict zone exposed (pgs 349-354)
9 Comments »
Leave a Reply
About KSB
New Book On Kenya December 2007 Election Crisis: In Circulation
-
Recent Comments
funkee on Decoding The National Alliance… Charles Andrianasoav… on Decoding The National Alliance… Rita marley on Decoding The National Alliance… gwande on Raila Odinga Communicating Wit… omwami on Mudavadi is Not the Saint He P… NEW: COUNTRY STATS
Kenya is harvesting what Kibaki Regime SowedThe rigging of 2007 elections is showing its destructive effects>tHE nfd OF KENYA IS IN FRAMES /KILLINGS BURNINGS /RAPINGS/STARVATION /HUNGER AND MAIMINGS>http://www.facebook.com/media/set/?set=a.288227851236529.68903.104561442936505&type=3
There has never been Peace in Kenya (a)Uhuru Bandia 1963!
(b) Shifta war
(c)Kings Rifles Coup under Dolo which failed.
(d)T Mboya asassinated!
(e)JM Kariuki Asassinated!
(f) Mzee Karumba Kungu Killed and disapeared!
(g) Mzee Jaramogi Oginga Ondinga Detained!
(H)Seronei /Shikuku detained!
(I)Ngugi Wathiongo /Maina Kenyatti Detained!
(J) Koigi Wa Mwere /Wanyiri Kihoro and Kamonji Wachira/and others detained!
(k) Raila Oginga Odinga detained/and many others!
(L)Airforce Coup Detat Ochuka Flew to TZ and Others!Tribal clashes kill 21 in northern Kenya
ISIOLO: Tribal militias in northern Kenya clashed over grazing rights for a second day on Friday, killing at least 21 people and torching houses, residents said. Corpses lay strewn in scrubland outside three villages near the town of Moyale, the residents said, and the fighting between armed groups carrying automatic rifles and mortars raged on. Pastoralist communities in northern Kenya have long locked horns over the control of highly valuable grazing land. But this week’s fighting in the villages of Butiye, Harosa and Hellu marked an escalation in tensions. “So far 21 bodies have been recovered from the three villages. We have reports that more bodies are lying in the bush,” Mohamed Korme, a local civil rights activist, told Reuters. Provincial Commissioner Issaih Nakoru said the official death toll confirmed so far was five. He said Kenya’s government had deployed soldiers and a paramilitary police unit to the remote corner of the country to quell the fighting, which some residents said had been stoked by local politicians.
A local primary school teacher said elders from the warring Borana and Gabra communities estimated at least 34 people had been killed. The violence has sucked in Ethiopian fighters from both communities, other residents said. reuters
(M)Ochuka and othersrepatriated to Kenya and Hanged!
(N)12TH december Movement /Mwakenya formed its leaders arrested and detained and tortured at Nyayo house!
(O) Matiba Rubia detained .Mungiki emerged etc etc >
Kenya has never seen Peace Todauy KDF lost 2 of their highest rank in Somali war-front Put a plus of 2×10 and you get the answer hence govt propaganda and military secrets.
Osewe your history analysis is superb . Here you are proved right>
http://www.monitor.co.ug/Magazines/ThoughtIdeas/-/689844/1315466/-/c515q7/-/index.html
One of Mount Kenya Maffia Thug and founder of GEMA(Kikuyu Embu Meru association Njenga Karume and Former Defence Minister Denied and rejected his (own) son born out of marriage and who is a copy-Right of Mzee Njenga by refusing to take DNA prove and Kenyas corrup Judge threw the case away>FORMER Kiambaa MP Njenga Karume can now rest easy after a claim by his alleged son was dismissed by the High Court yesterday. Striking out the suit, Justice David Majanja said that the case by Edwin Thuo was settled three years ago through an agreement by all parties. The judge said that the case cannot be reopened because litigation must come to an end. Majanja also said that Thuo was trying to circumvent the consent order signed between him, his mother Lucy Muthoni and Karume before their lawyers in April 2008. The consent was later endorsed by the Registrar of the High Court eight months later on December 15, 2008. And since he and his mother had not applied to set aside the order, it was still valid. “In whatever manner the prayers are couched, it is still the same case; revolving around paternity. In my view the addition of the Attorney General (in the current case) and the exclusion of the petitioner’s mother, who was present in the first suit are merely cosmetic changes which do not affect my conclusions. The issue of paternity of the petitioner is the common thread running through both suits and it is the matter that was compromised by the agreement endorsed by the court. “It cannot be re-opened merely by elevating the issue to one of public law and packaging it differently as an enforcement action and thereafter adding the Attorney General as party to evade the general principle,” said Justice Majanja. – The Star, Kenya.
powered by
Home NEWS Business Lifestyle Sports radio Jobs Classifieds TV Video Gallery Blog Home Opinion Leaders Reporters Journal My Story Chris Kirubi Eric Latiff Laura Walubengo Michael Mumo Rob Jillo Robin Njogu
Alerts
Home » Opinion Leaders » Succession politics of the 70s replaying itselfSuccession politics of the 70s replaying itself
Posted by Opinion Leaders on February 1, 2012
Last week I read about police in Naivasha recovering coffee beans estimated to be worth over Sh10m after they had been stolen from a coffee factory. This was another incident in a long series of coffee thefts that reminds one of the ‘Chepkube Black Gold’ robberies of the 1970s. Unfortunately stealing coffee is not the only bad Kenyan habit of the late 70s that has come back.
The Chepkube coffee thefts were happening at a time when Kenyan politicians were bracing themselves for a regime transition from a Kikuyu-led government. In the political scenes, a group of primarily GEMA politicians were traversing the country holding public rallies on how they wanted the transition to pan out, a lot like is happening today!
The GEMA politicians in the 70s included several cabinet ministers in Kenyatta’s government, and their message was that Vice President Daniel T. Moi must be stopped from being the next President of Kenya should anything happen to Jomo Kenyatta, at all costs. This gang of ethnic chauvinists believed that only a Kikuyu could take over from Jomo Kenyatta, and they were willing to change the Constitution to create the requisite environment to achieve their goals.
What was extremely problematic about what they were doing was that this group had the financial and numerical ability to mobilise Parliament, to achieve what they wanted, as well as intimidate politicians who did not agree with them by marshalling huge rallies across the country to put across their point. They also had the government capacity to get the State machinery to do their bidding, which means that they could transfer their contempt of Moi the individual to the office he occupied as Vice President of Kenya by manipulating government systems to visit various indignities on both the man, and the office.
They were therefore able to have the Vice President of Kenya stopped by traffic police officers and body-searched by the roadside; or kept waiting in Nakuru Statehouse as groups of women were ushered in to dance for the President.
The French have a saying ‘Plus ca change, plus c’est la meme chose’; i.e the more things change, the more they stay the same. In Kenya, we are back to the 70s all over again!
Our political arena is bracing itself for a transition from a Kikuyu President in a few months, and the reality that a non-Kikuyu politician is poised to take over from him if all things remain constant. We also have a gang of primarily GEMA politicians using the same script used on Moi to fight the closest non-Kikuyu presidential contender, i.e; huge facilitated political rallies; ethnically-loaded exclusive political statements; open contempt for non-Kikuyu presidential aspirants; the ability to rally numbers in Parliament to do whatever they want (including pass laws that are not necessarily in public interest!), etc.
Just like in 1976 when over 20 MPs met at a pubic rally in Nakuru to denounce a Constitution that created an automatic transition from Vice President to Presidency; this last weekend even saw a series of political rallies in Eldoret and Kiambu to denounce the values of leadership integrity enshrined in our constitution with the challenge that ‘the people of Kenya will decide’.
The argument being used is that even though it is wrong for an accused to hold public office as per our constitution we have the vote numbers to not only keep our people in office but we will even ensure that they become President!
It is clear that Kenya is facing another political moment similar to the transition environment of 1978. I am also personally persuaded that Kibaki will not support a Kikuyu candidate to take over from him; even Kenyatta, arguably a more tribal leader than Kibaki, knew better than to do that. What worries me is that so far we have no challenge to those shouting about ‘mundu wa nyuba’ taking over.
In 1978 a group of young politicians and government bureaucrats realised that what GEMA was out to do would damage Kenya’s nationhood. They were smart enough to understand that no one could be the President of Kenya by mobilizing two or three tribes of Kenya, no matter their size.
This group then strategically mobilised against the GEMA gang and using ‘right over might’, managed to thwart each and every plan of the much more powerful group. The irony is that this second group was led by politicians and government bureaucrats drawn from the GEMA communities; primarily Charles Njonjo and Mwai Kibaki. As a friend cheekily observed, they had their own KikuyusforChange then! Kenya owes a lot to the foresight of this group of leaders, and it is not a coincidence that one of them is the President today.
Kenya needs another generation of ‘Kibaki’s and Njonjo’s’ to emerge; a group that understands that Kenya’s interests are more important than the fears and interests of any individual, whoever he is, and are not scared to say it politically. Siasa Mpya creates the environment to do it; especially from within the Kikuyu and Kalenjin communities.
(Ngunjiri Wambugu is the convenor of the Siasa Mpya initiative info@siasampya.com)
Skip to content
DNA test must be done in child’s best interest Tuesday, 31 January 2012 14:59 BY NJERI GITHANG’A KAMAU
Edwin Thuo (red tie)with his lawyer Kang’ati the Milimani law courts.He claims that former defence Minister Njenga Karume is his father..,
C. M.S Vs I.A.K Suing through Mother and Next Friend C.A. O.
Constitutional Application No. 526 of 2008.
High Court of Kenya at Nairobi.
Mumbi Ngugi J.
January 20, 2012.
“In determining a paternity dispute, the court must of necessity weigh the competing rights of the child and the party who is alleged to be the biological father. The right of the child to parental care takes precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such matters, the paramount consideration is the best interests of the child.
Can a children’s court, in a matter involving a child, order a party to undertake a DNA test where paternity is denied ? And if so, would such an order amount to infringement of the party’s constitutional right to freedom of conscience either under the new or the old constitution? These were some of the issues for determination before Justice Mumbi Ngugi in the Constitutional Court.
The Facts
On July 17, 2008, an order compelling the petitioner to undertake a DNA test was issued by the Children’s Court in Nairobi after the petitioner had denied paternity of the respondent’s child. Aggrieved by that order, the petitioner petitioned the constitutional court for a declaration that the orders made were unconstitutional and hence sought the orders to be set a side.
It was the petitioner’s case that the order was unconstitutional as it violated the petitioner’s freedom of conscience contrary to Article 32(1) of the New Constitution and also contrary to section 70(b) and 78(1) of the old constitution. According to the petitioner, the order infringed his rights as he had made it very clear to the subordinate court that he was not ready for such a DNA test and he would suffer mental anguish and trauma if he was subjected to a test that he was not ready for. His view was that the issue of a DNA test was irrelevant to the determination of the case before the Children’s Court because, under the Children Act, section 24(2), the most important matter was parental responsibility. He invited the court to take judicial notice of the fact that the Children Act had not been amended hence section 24(2) with regard to parental responsibility was still applicable. It was the petitioner’s case that he was not the father of the child respondent in the petition, and even if he was, he had no parental responsibility under section 24(2).
The respondent objected to the petition on the ground that the petition was incurably defective as the petitioner’s issue was against an order issued by the Children’s Court, but neither the Children’s Court nor the Attorney General was a party to the petition. The respondent was only an Interested Party as she was the plaintiff on behalf of the child in the case before the Children’s Court.
On the DNA test issue, the respondent argued that the test was being ordered so as to assist the court as the issue of paternity was important in the children’s case. He referred to Article 53(1) (e) of the Constitution which imposed parental care and responsibility on both the mother and father of a child whether they were married to each other or not. That article, according to the respondent, took away the position of the petitioner with regard to section 24(2) of the Children Act which could only apply to fathers who were not biological fathers who had acquired parental responsibility.
It was further argued that for biological fathers, such responsibility was automatic and by virtue of Article 2 of the Constitution, the Children Act could not supersede the provisions of the Constitution. The respondent pointed out that Article 2(4) was clear that any law inconsistent with the Constitution was void to the extent of the inconsistency. The sections of the Children Act which were contrary to the Constitution were hence null and void and the petitioner could not rely on them. The respondent noted that in any event the petitioner had invoked Article 32(1) and 32(4) of the Constitution and the petitioner could not invoke the constitution selectively. He asked the court to dismiss the petition noting that the matter had started in 2006 and the two guiding principles were the best interest of the child and speedy trial of the issues in any case involving a child.
Court Findings
While the court found that the petition was incurably defective for failure to join the Attorney General as a party, the judge went further to lay to rest the matter by considering whether, had the petitioner properly brought the proceedings before the court, it would have been possible to find the orders of the Children’s Court requiring him to undergo a DNA test an infringement of his right to conscience.
Relevant Positions of the Law
Justice Mumbi Ngugi noted that the right of the child to parental care was a continuing right, and Article 53(1) (e) of the Constitution in that regard applied. The argument by the petitioner that the issue of paternity was irrelevant in order to establish parental responsibility was therefore untenable. Further, in light of Article 2 of the Constitution with regard to the supremacy of the Constitution, the judge affirmed that any provision of the Children Act that is in conflict with the Constitution must give way to the Constitution.
The court acknowledged that in determining such matters, it had an obligation to weigh the competing rights of the child and the petitioner who was alleged to be the biological father. The right of the child to parental care according to the court had to take precedence particularly in light of the cardinal constitutional principle set out in Article 53(2) that in such a matter, the paramount consideration is the best interests of the child.
Would it be an infringement of the petitioner’s constitutional right to freedom of conscience either under the new or the old constitution to require him to undergo a DNA test? The court was guided by section 78(1) of the old constitution and Article 32(1) of the Constitution (2010). The court noted that the two provisions protected the right of all persons, including the petitioner, to freedom of thought and religion, and of the freedom to change his religion and belief and to practice his religion. The petitioner in the courts’ view had not demonstrated how by being required to undergo a DNA test violated his freedom of conscience as guaranteed by the Constitution.
In answering the question whether the petitioners unwillingness to undergo the DNA test was sufficient to override the interests of the child who would thereby be denied the constitutional right to parental care, the Court made reference to the case of MW-v-KC Kakamega HC Misc Application No. 105 of 2004 and the case of Shri Rohit Shekhar-v- Shri Narayan Dutt Tiwari & Anr IA NO 4720 of 2008.
The principle that emerged from these decisions was that an order for DNA testing should be made if it is in the interests of the child and if a prima facie case had been made to justify such an order. Such an order would not in the courts’ view be in violation of any of the petitioner’s constitutional rights and would be in the best interests of the child. In light of that, the petition was dismissed with costs to the respondent.
Raila plays down Luo-Kikuyu rift
Posted by LORDRICK MAYABI on February 6, 2012
PM Raila Odinga addresses Central Kenya Group/PMPS
NAIROBI, Kenya, Feb 6 – Prime Minister Raila Odinga is wooing voters from Central Province and says the perceived differences between the Kikuyu and Luo are not real but a creation of propaganda agents.
The premier who spoke after a breakfast meeting with activists, students, clergy and former MPs from Central Kenya at a Nairobi hotel, said that his government would create equal opportunities for everyone as well as protect the property of all investors.
“This ethnic issue is not based on a platform. It is a myth… It is something that has been created artificially. People are saying that if Raila becomes president the Luo’s will not pay rent; that he will kill businesses run by persons from the Kikuyu community, it is all propaganda!” said the ODM leader.
He said the perceived rivalry between the Luo and the Kikuyu was planted by the colonial authorities to weaken the nationalist movement that sought independence.
The perception was later revived by “opportunists” who painted the differences that emerged between the founding leaders President Jomo Kenyatta and his deputy Jaramogi Oginga Odinga after independence.
The PM said Jaramogi (his father) and President Kenyatta parted ways because of differences in ideals on what direction the country was to take after independence and not because of ethnicity.
“The main difference was on the issue of land. Jaramogi opposed the idea that Kenyans who fought for independence should buy land from departing colonialists who had got it for free. Kenyatta on the other hand said there would be nothing for free,” the PM said.
He explained that Jaramogi felt strongly that the Mau Mau fighters coming from the bush would not satisfy the conditions attached to getting loans to buy the farms.
“The differences were purely ideological. That is why Jaramogi’s key lieutenant was Bildad Kaggia while Kenyatta’s ally was Tom Mboya,” Odinga added.
Odinga also maintained that his disagreements with President Kibaki after the 2002 elections was mainly on principles but that the current Constitution has created a platform to help solve the problems.
He said that the country must be de-ethnicised so that it can achieve its development goals.
“We must be able to find the Kenya that our founding fathers wanted; one which is devoid of ethnicity and where all Kenyans work together,” he said adding that Korea which was on the same economic level in the 1960′s was now way far ahead.
Raila who faces stiff competition from his deputy Musalia Mudavadi for the party’s nomination promised to make visits to Central Province soon to woo more voters.
The leaders present including former Gatundu South MP Moses Muihia prevailed upon the PM to aggressively campaign in the area in order to win their votes during the forthcoming general election.
The meeting with leaders from Central Kenya comes at a time when Odinga and Mudavadi are assertively campaigning to get the support of ODM delegates across the country before the party’s primaries.