from David ochwangi

Folks,

I am not the one to pour cold water on a good thing (assuming these nominations are) but I am also grown and knowledgeable enough not to accept everything at face value; I always reserve some level of professional skepticism just in case, after all they say “fools rush in where angels fear to tread” and I would like everyone to reserve judgment before we rush to endorse these nominees as managers Kenya’s third branch of government. We may be fulfilling the proverbial “from the frying pan into the fire” adage as it appears Kenya is about to do what amounts to replacing pilots/captains of a plane/ship with the cabin crew! We have seen this movie many a time before- Kenyans jump on the bandwagon en-masse in euphoria only to find out shortly thereafter that the wagon is missing a wheel or two and we end up stuck with the problems for a long time. The Judicial Service Commission’s nomination of two lawyers, Dr. Willy Mutunga and Nancy Baraza to head the judiciary must necessarily be thoroughly scrutinized. Perhaps I should start with a very unusual personal experience I had with the Deputy Chief Justice nominee, Nancy Baraza and let you judge for yourself her suitability for the office for which she has been nominated. I have agonized on whether or not I should bring this experience into the public domain and decided that given the very high level position Ms. Baraza would assume in judging others and the fact that she sought me out, the public’s interest in the conduct of our leaders far outweigh the need for privacy-none was expected anyway.

FACTUAL BACKGROUND:

Around May 2010, the Ministry of Foreign Affairs in Nairobi announced a list of new envoys to be posted at Kenya’s Missions around the world. Among those appointed for Ambassadorial posts were P.M. Raila Odinga’s brother in law H.E. Excellency Elkanah Odembo – USA and Odinga’s Personal Assistant, H.E. Dave Arunga- Egypt, among others. I thought (still do) that those appointments were not based on merit and that career diplomats were passed over in favor of the appointees and that these appointments couldn’t have been effected but for these gentlemen’s relationship to Prime Minister Raila Odinga. In response, I penned a blog entitled “Envoy Appointments-Now Kenya Adds Nepotism, Cronyism and a Dynasty to its Export Portfolio” (attached) to highlight the rot in government.

Up until this time, I had never heard of a “Nancy Baraza” a day in my life. On June 9, out of the blue, I received an email titled “DEFAMATION OF NANCY BARAZA” from Nancy Baraza, accusing me of defaming her and threatening to sue me and the Standard Newspaper for “maliciously and recklessly publishing a vicious story without ascertaining whether indeed it was true or not”; It read,

{
“You did a very good job for yourself, publishing my name all over the world, claiming I am one of the unfit Kenyans who had been unfairly appointed as a diplomat. The story spread by you against me was unwarranted as indeed I have never sought to be appointed an ambassador and neither has that job ever been given to me. Your publication of my name all over the world within a vicious story without ascertaining whether indeed it was true or not was not only malicious but reckless. My reputation has been injured and you have subjected me to public contempt and ridicule. The matter is with my lawyers now and I just wanted to inform you that you are going to be co-joined with the Standard newspaper and all others that have injured me that much.”

—
NANCY BARAZA
DEPUTY CHAIRPERSON
KENYA LAW REFORM COMMISSION
P.O. BOX 34999-00100
NAIROBI

)

I read the anguish in Nancy’s email and very much wanted to apologize to her but for the fact that she had failed to perform the very task she was accusing me of, namely, checking her own facts and ascertaining whether indeed it was true or not that I wrote the “vicious story” about her let alone mention her name. If only she cared to look into the facts before rushing to judge me, maybe conduct a perfunctory review of her source first, she would have found out it was untrue and I never defamed her- I never once mentioned Ms. Baraza in my op-ed. And so I responded to her and attached what I had written just to try and clear the confusion but yet again, Nancy wrote me back and still demanded an apology, she failed to acknowledge that she was in-fact wrong and had wrongfully accused me of something I didn’t do, if anything I am actually the one due an apology from her but instead she tried to spin this time by stating that the statements such as mine put her in bad light when “interpreted in that context would amount to defamation of me”! In other words evidence didn’t matter to this lady, she had already convicted me lack of evidence notwithstanding.

{
“You can apologise to me and tell me that I was not your target. Otherwise, my name was put among the Dave Arungas and others in the most unflattering manner and subsequent publications such as yours, intepretted within that context would amount to defamation of me.”
}

– – –

To this day, I stand accused and exposed to litigation for something I didn’t do or say courtesy of the Deputy Chief Justice of Kenya nominee, Nancy Baraza!

AT ISSUE:

It better for 100 guilty men to go free than for 1 innocent man to go to jail! Let’s call a spade a spade; what I have narrated above is not fiction but the truth. In my opinion, the actions above speak volumes, Ms. Baraza acted improperly, impulsively, vindictively and lacked the temperate approach of which her new position will require and I don’t think I am the only one who has been on Nancy Baraza’s crosshairs, not counting “The Standard”. If her judgment above is anything to go by, none of us is safe if she gets the nod from the president and Parliament. I would like you to look me in the eye, given the above rendition, and tell me that someone in Nancy Baraza’s shoes; with her intemperate and vindictive rush to judgment of me or it could be anybody else for that matter, based on rumors and innuendos, is fit to supervise judges in Kenya. I want you to examine it in the context of the judiciary, an institution where judgments are rendered daily that affect millions of lives, judgments of which absolute
care must be taken not to wrongly convict citizens, where judgments must always be supported by findings of evidence, where judges’ temperaments are just as critical in meting justice fairly just as are the reviews from their supervisors. Lawyers Willy Mutunga and Nancy Baraza will be supervising, reviewing and judging the work of other judges; men and women whom until now these two have only argued cases in front of (if ever). Something is terribly wrong somewhere.

Judges with years and decades of experience at the Bench, NOT the Bar, will suddenly become subordinates to Dr. Willy Mutunga and Ms. Nancy Baraza, both of whom have ZERO, ZILCH, NADA experience at the Bench! There is something amiss and nerve-racking about this arrangement and yet it appears that the usual kneejerk euphoric exuberance by Kenyans is once again blinding us to the obvious. On merit, a primary and key variable in any job application world over (except Kenya), these two novices are completely unqualified for the positions they have been nominated to serve. It would be prudent and helpful if they judges at some rank up the judiciary echelons but they are not. It is imperative that we clearly delineate the two, i.e. the Bar and the Bench. From what I have gathered, these two lawyers are civil rights activists and in as much as that is an endearing and noble background, it is certainly insufficient qualification for the offices of Chief Justice and Deputy Chief Justice. In fact, that alone should
have raised red flags with the Judiciary Service Commission, the bench is supposed to be neutral, independent, unbiased, just and fair- not a place for special interests, activism (civil rights or otherwise), agendas nor avenues to even scores, it is not a platform for pontification nor was it designed to reward those who champion these causes. The reason is very simple, justice is BLIND.

I watched some of the interviews and the questions the commissioners were asking the candidates and I couldn’t help but feel sorry for our country, I give them” A” for effort since it was their first one but the JSC seemed unprepared, sketchy and scantly addressed the meet and substance of the positions being filled, it came across more as “meet and greet” and “getting to know you” sessions than interviews to fill the top slots of the Judiciary-very regrettable! The JSC missed a remarkable opportunity to show balance and wisdom in their selection, they should have, in my humble opinion, at the very minimum preserved some level of seniority and continuity of the Bench at the top with respect to managing the Judiciary rather than decimate it. I think they could have easily struck a balance by nominating the CJ from the Bench and the Deputy from the Bar or vice versa, change at such a high level must be gradual and yet radical but not too sudden and shocking as to jolt or paralyze an entire arm of government. Th
e selection of these two not only demoralizes hard working judges who were passed over but also risks throwing the entire Judiciary into a complete meltdown, these positions are too vital and do not render themselves to “on the job training” of two lawyers who have never seen the inside of the bench a day in their lives, who is training who, who shows the other around?

We must not pass blanket judgment on all judges, not all judges in Kenya are corrupt, inept, rotten or inexperienced as such, we must consider both the short and long term ramifications of these nominations, we can’t predict the future but we can let the past guide us; with respect to these two nominations and the positions they have been nominated for, they have no past to guide us, NOTHING! Only reputations and “hope” that they will deliver but those alone are not enough to take such a big leap of faith and hand over this extremely important branch of government to amateurs.

Finally, neither President Kibaki nor Parliament is bound or obligated by the JSC’s nominations and I think it will be wise for these parties to send these names back to the JSC and demand the proper balance, let’s get this RIGHT from the beginning. Let the JSC forward several names from a pool of candidates, say three for each position and let the president pick one for each post and forward to Parliament for confirmation. The president and Parliament are NOT mere rubberstamps and they are required to equally provide the proper checks and balances and stop any excess from taking hold un the new Kenya just like the president was estopped from steamrolling appointments for the same positions just a month ago, let’s GET IT RIGHT from the beginning. Let’s start over.

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by David ochwangi
05/10/2010

Envoy Appointments-Now Kenya Adds Nepotism, Cronyism and a Dynasty to its Export Portfolio

The just revealed list of appointments of Kenya’s ambassadors/envoys to various stations around the world, discreetly revealed to the media even after the government promised highest ethical standards and transparency; the appointments are so shrouded in supreme secrecy and done in the dark, exposes yet another rot and excesses in a government too drunk and too arrogant with power to care about any ramifications of the outcome of its follies. It is not enough that the country’s image has suffered immensely around the world in recent years or that this government spends Millions of dollars to spruce its image abroad, it is not enough that the government courts a criminal enterprise, Mungiki, to sell the draft constitution while shunning Christians, it is not enough that this government also promised to fight impunity, corruption and provide most opportunities to all Kenyans irrespective of tribe or family background; now it comes out that this government has not only failed to practice what it preaches but is now the biggest champion of double speak and hypocrisy, making a complete mockery of public service where performers are relegated to back offices and non-performers are rewarded with awards, family and friends are appointed to the most strategic posts around the world; how do you reconcile Wako being the best performer in Kenya when corruption is so rampant and murderers are roaming free in Kenya’s streets?

How do you reconcile the appointments of members of one family as envoys to the United States, both as Ambassador and Consul General respectively against nepotism? Isn’t this a clear conflict of interest? How do you reconcile the appointment of the personal assistant to the PM as ambassador to Egypt against cronyism? How do you reconcile appointments of complete neophytes to to key diplomatic appointments against cronyism? Kenya is a country of almost 38 Million people, hundreds if not thousands of them qualified career diplomats, why weren’t they picked for these positions? Something is badly wrong with this picture; good people stand up, evil triumphs when good men say nothing, and at this rate, we are perilously headed down a very dangerous path.

These appointments confirm yet again that the rot in government is excessive and has metastasized to dangerous levels, abuse of office and authority is the norm in Kenya now as the coalition government only pays lip service to its pledges and cares not what ordinary Kenyans think , that the cries for fairness, equality and expansion of opportunity to all Kenyans by PM Odinga were in fact a ruse whose outcomes and benefits were primarily meant for and intended for his family and those in his inner circles and not necessarily all Kenyans including those who shed blood ignorantly for this cause! Almost all the recalls and administration changes the Coalition government has made over the last year have overwhelmingly and disproportionately favored the PM’s family and those closest to him-not the General Kenyan population, it is an unbridled expansion of the Odinga dynasty and I think it is just plain wrong.

Nepotism has no place in modern day Kenya and it is wrong to export it outside of Kenya much less to the United States of America! President Obama and Secretary Hillary Clinton have railed against this practice; these are the injustices, ironically, that the PM rallied the country to campaign against Presidents Moi and Kibaki; these are the arguments he made to “Kenya’s friends”, Dr. Annan and the team of “Eminent Personalities” in demanding “Portfolio Balance” in the Grand Coalition that reflected the face of Kenya and yet now it is now palpably clear that the only “Portfolio Balance” worth any mention is skewed in favor of this family; is this what Kenyans died for in 2007/2008? To bestow, expand opportunity, power and influence unto just one family! Just less than a year ago, the Consular General in Los Angeles was recalled to Kenya and replaced by the PM’s sister, hitherto a chemistry professor; there is no record or evidence cited of her qualifications for the top rated diplomatic position in such a strategic location nor do we know of any shortage of qualified experienced diplomats who would have filled the spot. Fast forward to present, a decision has been made to recall H.E. Ambassador Ogego from Washington and his place will be taken by the PM’s Brother in law! That is a clear conflict of interest to have such a management hierarchy in the same office where relatives run Diplomatic affairs of an entire nation of Kenya in the United States of America. The reported designee to Washington is Ambassador Elkanah Odembo, just recently appointed as ambassador to France and is being elevated to the US, is married to the PM’s first cousin, who is the sister to the Government Chief Whip Jakoyo Midiwo, the MP for Gem and an ODM stalwart. Even companies have policies designed to prevent or at least mitigate conflicts of interest and many bar same family members from working is similar positions and reporting to each other. Odinga’s sister in LA will be supervised by her brother in-law in Washington, DC, this is just plain wrong and I wonder if Secretary Clinton and President Obama are aware of this arrangement and whether or not they will condone it, we’ll see.

Dave Arunga, designated to Egypt was the PM’s “Personal Assistant” and is being rewarded with Ambassadorship to Egypt. I mean the least is simply endless, the PM’s brother, Oburu Odinga is an Assistant Minister for Finance, other Odinga relatives in high positions include Deputy PM Musalia Mudavadi, Minister Fred Gumo, etc, etc. This is but a synopsis of the wider web of the PM’s family dynasty power expansion in government courtesy of the Coalition government but I don’t think this was the intent of “Portfolio Balance” under the “Power Sharing” agreement- this is not what the US Administration had in mind; rampant nepotism in government coordinated and supervised by the PM. We the people can no longer stand by and do or say nothing as this will only get worse and lead to more ethnic tension, I mean the in your face audacity in these appointments is stunning! Now some of the PM’s supporters are so emboldened by these developments that they now openly dare those of us not happy with these shenanigans to “swallow blades” or “hang yourselves”!

Kenya has a long list of distinguished and experienced career diplomats that the government can pick from and avoid creating yet more tensions among the population or tarnishing the country’s image abroad and it is disheartening that these people are denied these opportunities, particularly the young graduates and students of diplomacy, the message is very clear, your education and credentials don’t matter, your name and relations is all you need to land a plum appointment in Kenya. Didn’t PM Odinga “fight” the Moi and Kibaki governments against this? President Kibaki, are you aware of these shenanigans? Did you approve of this? Is this how you improve Kenya’s tarnished image abroad, exporting nepotism and cronyism? If it is, let me assure you right now that you have lost on this one, WATCH! Foreign Affairs Minister Wetang’ula, are you in on this sir? Why was this exercise conducted in such secrecy? What are you guys hiding?

What you may also not know is that this action by the Kenya Government in this regard would have bad unintended consequences touching on President Obama himself. Conservative media stations such as FOX NEWS NETWORK whose primary mission, it seems, is to detract and besmirch the US president have attempted numerously in the past to link PM Odinga personally to President Obama; so much so that they will invariably see these appointments as an Odinga-Obama nexus to run Kenya and the US and pounce on it big time; trust me, President Obama is way above these pettiness and yet it is possible that his name would unwittingly be drawn into this especially around election time, you got to be very careful Kenya! You have no clue how these networks embellish information, violence, communism, socialism, etc, etc, are all media synonyms for the Odinga-Obama agenda; I wouldn’t do this if I were you; the irony is that Ambassador Ogego’s stand in defense of President Kibaki’s administration has played extremely well politically in the US for the President. Kenya can buy all the public relations expertise to influence the US perception of the country but that can only take you guys so far, it is a waste of resources; the US Administration is not stupid, they can read and see through these schemes, give the administration some credit, they are extremely competent, you can’t hide nepotism, tribalism, cronyism from the Administration especially if you are exporting it to their homeland! Get a grip.

Finally, the Kenyan government must get its priorities straight; focus on getting the constitutional draft right first and avoid alienating key stakeholders in this process; prosecute PEV perpetrators, ALL of them starting at the top just as Ocampo has promised to do, he can only take so much of a caseload; prosecute corruption at all levels; resettle IDPs; avoid these rotten shenanigans of growing dynasties on the backs of Kenyans and run a clean open, ethical and transparent government not beholden to special interests or familial ties, we ALL have a stake in our government and ALL Kenyans deserve and MUST be permitted to participate, NOT just the few family members and the well connected, nepotism and cronyism are unethical, they breed and fuel animosity. STOP!

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From: David ochwangi
Subject: DEFAMATION OF NANCY BARAZA

To: “NANCY”
Date: Wednesday, June 9, 2010, 2:29 PM

Hello Nancy:

I just saw this in my junk mail folder but I am lost; what are you referring to? Sorry and I apologize if I offended you but I don’t even remember mentioning your name anywhere in the blog I posted, I am not even sure you were appointed an ambassador except for what I saw in the media; I think your name was in the dailies, either Standard or Nation as one of the appointees but I never mentioned you at all, where do you get your facts? I have attached the original post and I suggest you go through it yourself and advise where I wronged you. I was particularly after H.E. Elkanah Odembo and Dave Arunga because of nepotism and cronyism, a vice the PM has publicly decried and yet it appears he practices, it is the sanctimonious double speak I was railing against but not at any one person in particular; so as much as I want to apologize, please give me a reason, show me the error of my ways.

Thanks.
Dave O O