USA Africa Dialogue Series - Re: [kenya-diaspora] This is serious for All Continental Africa Diaspora/ Fw: PETITION NO.25/2014: IEBC VS. NEW VISION KENYA & OTHERS

Dada Juliana and  Kefa:

Thanks. I believe this hard fought victory for Kenya Diaspora cannot be taken  lightly. An  appeal is usually based on the technical deficiency in the legal process.

 The  Independent Election and Boundaries Commission ( IEBC) needs to explain the legal basis for appealing the right of Kenya Diaspora to vote.  That is the question. The case was never whether the Kenyan government  has the political leeway or whether the IEBC has the technical or administrative wherewithal to conduct elections. Or else, it would be akin to saying government has  no money to build schools, therefore education is not necessary. This aside is to make the distinction between rights and the implementation.  

 The IEBC was established by  the Constitution of Kenya in 2011 to conduct or supervise elections or referendums. Constitutional insanity would be in play if the IEBC is appealing  the right to vote (established by the constitution) without citing such a  law that should overturn Kenya Diaspora's victory. Can the IEBC do this job?  Ironically, the IEBC should be on trial over its competence and compelled to show good faith effort to implement the law. 

Understandably, this would be a legal uphill for those without means to take on the IEBC. Poor people are at the mercy of injustice where money determines the quality of representation.

Kefa cited US Voting Rights.  The Voting  Rights Act  0f 1965,  as an example, even strengthens the hand of Kenya Diaspora.  The burden is on the IEBC to show what  provision in the Kenyan Constitution or any other existing law in Kenya prohibits citizens in the Diaspora from voting as guaranteed in the Constitution. Apparently, since there is no law,  this  central question before the court gave Kenya Diaspora the victory.

In law, there  are 1)  de jure, which pertains to what the law says based on legal principles and standards and 2) de facto, which refers to what actually happens. De facto laws are practices, which could be results of habitual ways of doing things,  political rigmarole, institutional whims and caprices, shenanigans, laissez faire, etc. whether with lawful authority or not.

The US Voting Rights Act of 1965 was designed to  implement what the law says (de jure) by removing racial discriminatory (de facto practices) hinder the exercise of the right to vote.  In effect, it was about  enforcing the voting rights that are guaranteed in the 14th and  15th amendments to the US Constitution.  The American court was not denying the constitutional rights of racial minorities.  But the practices violated those rights, which necessitated protection by the Act.   The practices needed redress.

What is the relevance here?

The voting rights of Kenya Diaspora was affirmed by the court. On what constitutional  basis is the IEBC appealing this constitutional right? 

Other Continental African constituents should have an interest in this case. Voting Rights and Dual Citizenship are implicit in whether African governments are serious about Diaspora Affairs. This is not asking of new rights. This is protecting our rights; not loosing it because we migrate and Africa is benefiting from this migration through our money and investments at home.

May our leaders have some sense in their heads.

MsJoe

To Lead You Must be a Servant

-----Original Message-----
From: oyomose oyomose@yahoo.com [kenya-diaspora] <kenya-diaspora@yahoogroups.com>
To: Juliana jmwose@saintmarys.edu [kenya-diaspora] <kenya-diaspora@yahoogroups.com>
Sent: Tue, Sep 30, 2014 2:19 pm
Subject: Re: [kenya-diaspora] Fw: PETITION NO.25/2014: IEBC VS. NEW VISION KENYA & OTHERS

 

All,

I agree with your concerns and also hope for the best.  I must add however that constitutional rights can be taken away by law and practice. Just look at the rollout of the voting rights act or even the equal protection clause in the USA.

There are many court rulings in Kenya that have not been implemented. In Kenya, contempt of court does not yet seem to carry a high price except if one is poor.

Kefa 

-------- Original message --------

From: "Juliana jmwose@saintmarys.edu [kenya-diaspora]"

Date:09/30/2014 1:46 PM (GMT-05:00)

To: kenya-diaspora@yahoogroups.com

Subject: Re: [kenya-diaspora] Fw: PETITION NO.25/2014: IEBC VS. NEW VISION KENYA OTHERS

 

Evelyn you have hit the nail on the head. Bulls eye! Voting is a non negotiable constitutional right - period, for any citizen of a country and, it is also a responsibility.

If the government claims lack of funds to conduct the exercise, then that is a whole different issue, which cannot be addressed by a legal appeal. A ruling to deny citizens the right to exercise their obligation would be both illegal and immoral.

We await the decision of the court.

Sent from my iPhone

On Sep 30, 2014, at 12:34 PM, MsJoe21St@aol.com [kenya-diaspora] <kenya-diaspora@yahoogroups.com> wrote:

 

Dr. Shem:

This is unfortunate. What is the judicial lapse, which would constitute the legal basis to appeal the ruling if citizens have the right to vote? The feasibility to implement cannot override constitutionality.  For example, if the  IEBC  cites costs or any other administrative barriers, these do not nullify citizen's rights. Rather, it is a matter of how it can be done. So what is the IEBC  appealing?  

This case can be a Stare Decisis (legal precedent)  for other Africa Diaspora communities on the issue of Voting Rights.  

Best and Keep the Cause Alive

MsJoe

To Lead You Must be a Servant

-----Original Message-----
From: Shem Ochuodho shemochuodho@yahoo.com [kenya-diaspora] <kenya-diaspora@yahoogroups.com>
To: Kenya Alliance <kenya-diaspora@yahoogroups.com>; G-47 Kenya <g47-kenya@yahoogroups.com>; NVK-Mageuzi Members List <nvk-mageuzi@yahoogroups.com>
Cc: Gichane Muraguri <gichanemuraguri@yahoo.ca>; Carolyne Ayuya <ayuyac@yahoo.com>; john maina <jmaina01@gmail.com>; David OTWOMA <otwomad@yahoo.com>
Sent: Mon, Sep 29, 2014 9:52 am
Subject: [kenya-diaspora] Fw: PETITION NO.25/2014: IEBC VS. NEW VISION KENYA & OTHERS [1 Attachment]

 

Friends,

As per attached communication, mention of the Diaspora Vote before the Supreme Court is tomorrow, Tuesday, 9am. You recall IEBC has appealed against the Appeal Court ruling that upheld our voting rights!

I'll attend. Any body else available and presently in Nairobi to join us?

Kind regards,

Shem

Convenor, KDA

On Monday, 29 September 2014, 15:29, Kounah & Company Advocates <jkounah@jkadvocates.com> wrote:

Dear Sir,

Kindly see the attached.

Regards

James Kounah
Kounah & Company Advocates
Jameson Court, Block D, Suite 11,
Ngong Road,
P.O. Box 8035-00200,
NAIROBI

Te l: 254-020-2122060

       254-716-333035 
DL : 254-722-733179
This communication, including attachments, may contain information that is confidential and protected by Attorney- Client or other privileges. It constitutes non-public information intended to be conveyed only to the designated recipient(s). If the reader or recipient of this communication is not the intended recipient, an employee or agent of the intended recipient who is responsible for delivering it to the intended recipient, or you believe that you have received this communication in error, please notify the sender immediately by return e-mail and promptly delete this e-mail, including attachments without reading or saving them in any manner. The unauthorized use, dissemination, distribution or reproduction of this e-mail, including attachments, is prohibited and may be unlawful. Receipt by anyone other than the intended recipient(s) is not a waiver of any Attorney- Client or other privileges.

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Posted by: oyomose <oyomose@yahoo.com>

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