Unnecessary conflict
written by KIm G , February 26, 2008

This squabble in the Nairobi City Council is childish and a total waste of time. It also goes to show that politicians have learnt little from events of the past two months. Indeed, with incompetents like Uhuru Kenyatta, President Kibaki really doesn't need any more enemies.

It was really foolish for Uhuru Kenyatta to replace the names of nominated councillors. Even if, like in the case of Esther Passaris, he had reasonable grounds for doing so, he should have consulted with the parties. It was also really callous for Uhuru to add about seven councillors for the PNU side in complete disregard of ECK quotas. This action will add to the condemnation of President Kibaki as arrogant and anti people.

ODM has the majority of councillors in the city of Nairobi. The best the Local Government Minister should do is to develop a mutually beneficial relationship with these councillors for the benefit of the people of Nairobi. With the way things are going, we are likely to end up with a divided council that will not make any meaningful decisions. In fact, these battles may mean that the Council will be unable to pass its annual budget later in the year.

The mark of a true leader is knowing how to choose ones battles. This is one battle that Uhuru and Kibaki definitely do not need. In this sense, Uhuru has failed his first task as Local Government Minister.

...
written by Eric , February 26, 2008

Kenya is a bully society, the weak have no chance. It reminds me of the Bolsheviks and Mensheviks. Though the Mensheviks were more in numbers, they were the minority in opinions simply because Bolsheviks narrowly defeated Mensheviks on the single question of party membership. Lenin was the bully and Martov was the "soft" guy.

It is a historical fact that tack and bully antics to carry the day. It was true in US elections in 2000. Uhuru's actions amount to bullying and misuse of power. Unfortunately, it has become a tradition in Kenya.

When ODM lost, they decided that bullying was the way to power, that we shall have to wait and see how it works out. When Moi was pressured into accepting multi-party politics, he stayed in power through bullying, buying and rigging.

Kibaki and Uhuru say,mta-do?

Ruto and Raila reply,wakidhubutu wataona!
Let us watch the bulls fight it out, if you are grass, sorry, if you are a small bull/calf, watch from a distance.

careful now
written by Stephen Wanyama , February 26, 2008

Now one must be very careful before criticising Uhuru for his decision, it may be draconian yes, but it is definitely for the good of the council and for the people of Nairobi and for all Kenyan tax-payers.

If Uhuru had allowed that Passaris become a councillor, chances are Raila would have made the other ODM candidate step down and she would have been compelled on the ODM councillors. For proof please see this and past Kisumu mayoral elections.

It is unlikely that the Ministry would have allowed this to stand given the very great conflict of interest issues. So essentially she would have been the head of a public organisation her private self was involved in litigation against.

The Nairobi City Council would have had to pay her, the Kenyan tax-payer would have had to finance the court case against her (i.e. Uhuru's attempt at removing her after the fact) but most of all along with the ODM's grievance culture, any attempts at removing her after the fact, would have been deemed draconian and part of the whole of the ODM's tunamalizwa spiel.

Perhaps we would like for our LAs to be run in a fashion that is more independent of interference from Central Government, but our laws do not reflect that. If Nairobi City Council was not working well, if its leadership was involved in endless wrangles, the egg would be on Uhuru's face.

overmighty executive
written by Daniel.Waweru , February 26, 2008

I'm not a fan of Passaris at all, and the conflict of interest is very obvious.

Still, it's unclear where Uhuru derives the authority to decline to gazette her nomination, when the ECK appears to have given their consent to it.

There's some provision that allows him to regulate the election and nomination of councillors, but natural justice requires that he inform the nominees and candidates before applying the regulations. He hasn't done so in this case.

Also, IANAL, but it appears that only the ECK is expressly authorised by statute to set rules regulating the nomination of councillors. Further still, conflicts of interest do not appear to be acceptable grounds for the disqualification of a given nomination.

89 permits councillors who have a conflict of interest to declare it. Implicitly, one can legally be a councillor even where a conflict of interest exists. The existence of a conflict of interest is insufficient to disqualify a duly nominated concillor from holding office. (Under ǧ 89.7, the Minister has the power to relieve a councillor of any disability imposed by the conflict-of-interest provisions in the rest of 89.)

Shorter this post: Ditto Eric.

...
written by Eric , February 26, 2008

Wanyama, I rest my case. No wonder we need a new constitution. How can a minister have so much power?

Kim G, Waweru,Eric
written by Stephen Wanyama , February 26, 2008

I am sure you mean well, but Kenyatta is acting entirely within the law (its spirit if not its letter). Vide,

Cap 265, Local Government Act, 26(b)

such number of councillors nominated by the Minister to represent the Government, or any special interests, as the Minister may, by order determine;

Cap 265, Local Government Act, 271.The Minister may from time to time make rules-

(a)for the better carrying out of the purposes and provisions of this Act, and any such rules may be made with regard to all local authorities generally or with regard to any particular local authority or class of local authorities;

My understanding of course, is that the Local Government Minister is actually the one making the nominations, much in the same way that in the UK the Queen confers knighthoods, even though these are on the advice of the Prime Minister, who in turn is acting on the advice of his party and the other political parties. I find it difficult to see anything but the most intense malice in Esther Passaris' nomination. I am sure even the ODM city councillors find it not just an affront to democracy but the greatest travesty imaginable. Like I said in my previous post, Uhuru has bitten the bullet for the City and the people of Kenya. Unless I am mistaken, it is in the authority of the local government Minister that nominations are made, and it is there that they must come undone. Note also,

Cap 265, Local Government Act, 40.(1) The term of office of every councillor nominated under section 39 (1) (c) shall be five years or such shorter period as the Minister may, at the time of nomination, specify:

Provided that the Minister may at any time in his discretion terminate the nomination of such a councillor by notice in writing delivered to the councillor and thereupon his office shall become vacant.

Admittedly, Passaris was not yet a councillor, but it is clear that it is not altogether draconian for the Local Government Minister to wield a stick in defence of the council, legalistic quibbles aside.

Incredible resolve eludes us
written by Isindu Mwangaza , February 26, 2008

Wanyama, I rest my case. No wonder we need a new constitution. How can a minister have so much power?

Eric, spot on. I'm actually exasperated by the idea of debating the common sense of governance. I have found new respected for the Gandhis, Mandelas and Martin Luther Kings of this world. How did they master the courage, the strength, the pain the disappointment, the heartache and the solitude of thought and the fortification of dignity?

Kenyan protagonists will need this resolve.

wait again
written by Stephen Wanyama , February 26, 2008

Actually, I find that the powers Uhuru enjoys are necessary for the proper functioning of Kenya's LAs. Think about it, would you have been happy to have Passaris in the City Council? Would you have been happy to have her as its head?

City Councils have in the past five years, Mombasa and Nairobi especially provided improved (pinch of salt) services to their residents. Note for example the beautification projects and the new markets in Nairobi. We may not want to admit it, but far worse than MPs even are councillors to govern themselves. The history of Kenyan LAs has proved that they need more, not less supervision. To iterate, the very fact that Passaris and Raila could even contemplate her being a councillor shows just how very very sick Kenya is. Thank God Uhuru was there and equipped to stop them.

ahem
written by Amir Ibrahim , February 26, 2008

§ 89 permits councillors who have a conflict of interest to declare it. Implicitly, one can legally be a councillor even where a conflict of interest exists. The existence of a conflict of interest is insufficient to disqualify a duly nominated councillor from holding office. (Under § 89.7, the Minister has the power to relieve a councillor of any disability imposed by the conflict-of-interest provisions in the rest of § 89.)

So Waweru, your objection is that Uhuru did not first nominate her, before disqualifying her? Does not the particular nature of this conflict of interest seem to you particularly weighty, so much so that the Minister's hand is really pushed? Given the fact, well-known it was, that she was being positioned to be mayor was it not exigent that she not be allowed even the shortest period in office? What do you think? As Wanyama says, the conflict of interest (likely running into the 100 millions in worth) is so glaring that one cannot help but read mischief in her nomination.

more Passaris
written by Daniel.Waweru , February 26, 2008

Stephen,

Good point in re § 40.1.

Still. Passaris was not a councillor yet (as you point out). The section provides for the termination of the nomination of a councillor, which presupposes that the person has already been successfully elected or nominated to the office. Passaris hasn't; the very point of Uhuru's intervention was to prevent her from gaining nomination, and so office. It's not obvious that the termination of her nomination falls within the scope of the powers granted the Minister by § 40.1.

Amir,

So Waweru, your objection is that Uhuru did not first nominate her, before disqualifying her? Does not the particular nature of this conflict of interest seem to you particularly weighty, so much so that the Minister's hand is really pushed? Given the fact, well-known it was, that she was being positioned to be mayor was it not exigent that she not be allowed even the shortest period in office? What do you think?

Not quite. My beef is that (i) Uhuru acted ultra vires, and (ii) that he denied Passaris what natural justice demands: a chance to put her case.

I've explained why I think he doesn't have the power to do what he did, so straight to (ii).

Passaris has horrendous conflict-of-interest issues. Parliament clearly didn't think that a conflict of interest, on its own, was sufficient to disqualify one's nomination as a councilor. This is implicit in the fact that Parliament gives regulations for the conduct of councillors who have conflicts of interest (See § 89). Even if Uhuru had established in a court of law that Passaris had a conflict of interest, her nomination would not, simply in virtue of that fact, have been rendered illegal. (§ 89.2.b(ii) provides that "(ii) a member of a company or other body shall not, by reason only of his membership, be treated as being so interested (i.e. possessing a conflict of interest) if he has no beneficial interest in any shares or stock of that company or other body." Passaris resigned the relevant directorships, so she has a case.)

Unless someone is doing something blatantly wrong , they ought to be allowed to put their case for it. If Uhuru thought, as I did, that the conflict of interest was so serious as to make her an undesirable mayoral candidate, he should simply have asked the courts to make that finding. That would've given Passaris her day in court. Instead, Uhuru unilaterally decided that the conflict of interest justified her disqualification. That's a weighty matter which requires the careful interpretation of the law. The executive has no business being in the business of interpreting statutes; that's the judiciary's job. It's especially annoying in this case because the standard of proof for conflict of interest is very low; basically, if it looks like there's a conflict of interest, there is. So he could legally have got what we all wanted. As it is, Passaris has every right to feel aggrieved.

Conflict of interest my foot!
written by Isindu Mwangaza , February 26, 2008

Talk about mixed priorities indeed. For those infallible talking heads, Kibaki, Uhuru, among other PNU elites are the largest land owners in the Country not to mention own companies that do business with the State. I need not go into detail for that. Would that not create a conflict of interest where matters of State, resettlement and land disputes are concerned especially given where we are? Common, who are we fooling?

Confined Rhetoric
written by Isindu Mwangaza , February 26, 2008

Mwangaza, still acting as the ODM handbook dictates I see. Do you people ever pose to think? How long will you keep throwing stones? Ever thought of building something with them instead? Like an argument, hmmmm?

Even a remote sense of sanity can dissuade those among us with genuine intent to view this rationale by Uhuru as inert, vested and clearly in the order of impassionate maneuvering that only plays to reveal the true nature of WHOM we are dealing with.

It plays into your hands, Wanyama, to retort to everything you conjecture. I'll certain not sink to your level. Nevertheless, if you so please I'd recommend you look around and find my opinion isolated to this person. In fact, it is that of the majority, assuming we are talking about Kenya as a whole and not your reclusive tent of confined rhetoric.

Fact is, Uhuru's very occupancy of the Ministry is in itself a conflict of interest in a myriad of ways.

...
written by Tim Norwood , February 26, 2008

Events gentlemen, seem to have overtaken us. Ms Passaris has to extend the pun, adopted the light and will neither be suing the Minister nor pursuing the Mayoral seat. She will instead be backing the ODM's Majiwa.
There is a suggestion that City Council Mayors should be invested with executive power, and that they should contest the elections in the same way that a President for example would. This may attract talent to these races, and in my opinion it is in these local governments where true change can be crafted, not for a moment suggesting that Passaris would be such a candidate!

In Nairobi, hard-driving Adopt-A-Light entrepreneur, Ms Esther Passaris, denied the councillors the tough battle they were bracing themselves for when she threw in the towel and backed Babadogo Ward councillor, Mr Godfrey Majiwa, endorsed to fly the flag by ODM.

She also indicated that she would not be suing Local Government minister Mr Uhuru Kenyatta for expunging her name from the list of nominated councillors, despite having been proposed by ODM.

Kisumu councillors were also denied the chance of an electoral battle when ODM leader Mr Raila Odinga a week ago endorsed Mombasa businessman Mr Sam Okello as the partys preferred mayoral candidate.

...
written by manta ray , February 27, 2008

If ODM had agreed to the Wako draft which allowed for direct election of Mayors, maybe we would not be having all these shenanigans. As it is, ODM must accept the rules as they are and if the constitution bestows Uhuru with draconian powers which he can use as he pleases, so be it.
It is clear that the regimented thinking of the ODM top brass and on to the rank and file is the party's biggest weakness. It raises unrealistically high expectations and this is seen in the initial reaction to the Presidential election results, and on to the hilarious spectacle of blubbering councillors(I still haven't got over laughing at that sight!)who expected a walkover, and then it would be "on on!" to the trough where they could engorge to their hearts content, if even that is possible.

Abuse of Office
written by Kim G , February 27, 2008

OK, fine. The Minister for Local Authorities has vast powers at his disposal to pretty much do whatever he wants. But the point I was making is that Uhuru shouldn't use his powers any way he feels like it because it will reflect badly on his boss, President Kibaki. At a time when peace talks between ODM and PNU are at a standstill and at a time when the president and PNU are under international pressure, allowing an ODM councillor to become Mayor of Nairobi would have earned significant goodwill at very little cost. After all, the post of Mayor does not have much executive authority. Indeed, the job of a Mayor is mostly to preside over council meetings and to receive official visitors.

The actions of Uhuru will provide evidence to show that Kibaki and PNU are not willing to compromise. The fact that the Nairobi Town Clerk and the city's Legal Officer both originate from Kibakis ethnic group doesnt help the situation at all does it? In politics appearances matter a lot.

...
written by Stephen Wanyama , February 27, 2008

Come, come. There is a world of difference between allowing an ODM councillor to be mayor, and allowing Esther Muthoni Passaris to be Mayor. I have heard, as is common in ODM circles, that the likely mayor, Baba Dogo councillor Majiwa is considered a PNU mole, so you see there is really no winning!
The ODM control the council and they will get their mayor, just not Passaris. We should all I think be happy about that.
Does anyone understand, why for people who say they are so intent on helping the poor, the ODM heads are consistently schmoozing with the most anti-poor people, Obasanjo, Dick Morris, Ramaphosa and Passaris?

re: Abuse of Office
written by Johnny B. Goode , February 27, 2008

OK, fine. The Minister for Local Authorities has vast powers at his disposal to pretty much do whatever he wants. But the point I was making is that Uhuru shouldn't use his powers any way he feels like it because it will reflect badly on his boss, President Kibaki. At a time when peace talks between ODM and PNU are at a standstill and at a time when the president and PNU are under international pressure, allowing an ODM councillor to become Mayor of Nairobi would have earned significant goodwill at very little cost. After all, the post of Mayor does not have much executive authority. Indeed, the job of a Mayor is mostly to preside over council meetings and to receive official visitors.

The actions of Uhuru will provide evidence to show that Kibaki and PNU are not willing to compromise. The fact that the Nairobi Town Clerk and the city's Legal Officer both originate from Kibakis ethnic group doesnt help the situation at all does it? In politics appearances matter a lot.

What is Uhuru s'pposed to do, if the ODM councilors do not stick together and vote for one of their own? Uhuru does not appoint the mayor. The councilors elect one of their own. The law now says the toss of a coin will decide the winner. Fair enuff. I s'ppose it is the signs of the times that everything has to be seen through the tribal lens. Of course the local government minister is also from Kibakis ethnic group, just to add on to that. I'd also wager a significant portion of Nairobis population would be of that same same ethnic group. The irony of tribalism is that the only way that you can eliminate it is by totally embracing. By that I mean lets put tribal quotas on everything. 22% kikuyu, 14% Luhya, 13% Luos...you get the drift.

...
written by Amir Ibrahim , February 27, 2008

We really must leave the tribal divisions to ODM and other Kenya-haters. Let's put it like this, say Wanyama, Opoti, Tuju, Oyudo, Ogot, any of our many, many anti-ODM westerners here wanted to serve in public office, would they then be denied?

What happened to ideas? What happens to personal preference, does everyone have to be in the party of their region? Please note that while Kibaki is insisting that Tuju be one of the nominated MPs on the government side, ODM has used and finished with the likes of Mugambi Imanyara, Mumbi Ngaru and others like them. .

Is this what the grand coalition will be about? Tribal apportionment? Let's not play that game, leave it to the likes of Isindu and Raila.

What scorn!
written by Isindu Mwangaza , February 27, 2008

Come, come. There is a world of difference between allowing an ODM councillor to be mayor, and allowing Esther Muthoni Passaris to be Mayor. I have heard, as is common in ODM circles, that the likely mayor, Baba Dogo councillor Majiwa is considered a PNU mole, so you see there is really no winning!
The ODM control the council and they will get their mayor, just not Passaris. We should all I think be happy about that.
Does anyone understand, why for people who say they are so intent on helping the poor, the ODM heads are consistently schmoozing with the most anti-poor people, Obasanjo, Dick Morris, Ramaphosa and Passaris?

So now the personalities you named are anti-poor? Just who exactly made you an authority on that? Has the Kenyan elite, correction, has the PNU elite demonstrated any different? I presume thats just your cavalier opinion!

...
written by D84 , February 28, 2008

We should applaud the manner in which the Nairobi councillors solved the deadlock. They have set an example for how the rest of Kenyans need to act: with patriotism. You put the interests of many over the interests of one. If our leaders want to fight each other in a board room - let them. We as Kenyans need to begin to foster leadership qualities in our own communities.

The only useful Kenyan today is a patriotic one; one who knows that the country is bigger than themselves and loves their fellow Kenyan as much as themselves. Every act each make is a contribution to the country.

If you opt to kill, steal and obstruct peace (both on the ground and in the fancy board rooms at Serena Hotel), you are not patriotic. Your acts are selfish and to the detriment of our country.

It is a shame that we have had to endure the last month to learn how valuable it is to be unified and together. A threat to a single Kenyan is a threat to all. Ignore any leader whose actions and their consequences prove otherwise.

weshes
written by Stephen Wanyama , February 28, 2008

Well, who nominates? Is it not the local government minister? Is Uhuru bound in any way to accept the lists brought to him, that I suppose is the question, I have not seen any laws that persuade me that he is.

Cap 265, Local Government Act, 26(b)

such number of councillors nominated by the Minister to represent the Government, or any special interests, as the Minister may, by order determine;

My reading is that the political parties are among the special interests here, I suppose there have been updates to this law which I have not read, but it seems to me that Uhuru is to return to my previous analogy, in the position of say a British Prime Minister who will receive many names for consideration for honours, but who is not bound to forward those names to the Queen. Can anyone shed a light on this?

Esther Passaris owns Adopt-A-Light, the mere fact that she has resigned her directorship cannot change that. In addition, I would go so far as to agree with Amir, that the nature of her conflict of interest and in particular the circumstances surrounding the success of Adopt-a-Light are truly something else.

Mwangaza, still acting as the ODM handbook dictates I see. Do you people ever pause to think? How long will you keep throwing stones? Ever thought of building something with them instead? Like an argument, hmmmm?

Elections
written by Tab , February 28, 2008

Does anyone know whether there is any woman who has been elected as mayor this time round in kenya.Dear men, you should have considered this. A woman can make a good mayor also.