Court lifts Mombasa Republican Council ban

FJM said:

Just curiouss, wasn't Kenya a 'unitary' state even under the old-dear katiba? How was MRC came into being? and do they (MRC) really buy into unitery state as per the new constitution?

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I am sorry I do not understand what you are trying to ask. Please rephrase your question.

Mwembetayari said:

I am sorry I do not understand what you are trying to ask. Please rephrase your question.

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Kiongozi, I asked that question based on posts no 2 & 3 which you pointed out a clause in the new constitution saying 'Kenya is a unitary state'. Now, if the old constitution stated the same, that means the MRC was against the law. So, under the new constitution, is there a possibility for the MRC to brake the law, again? What is the attitude? Are they thinking differently?

FJM said:

Just curiouss, wasn't Kenya a 'unitary' state even under the old-dear katiba? How was MRC came into being? and do they (MRC) really buy into unitery state as per the new constitution?

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Criminal elements have always existed in Kenya. The new constitution is the master document that safeguards the right to dissent and also provides an effective framework to address the historical injustices these individuals cite.

I find the implications of your question skewed as it takes an imaginative mind to rope in the existence of crime and essentially ask: why criminal elements exist when we have laws?! :redface:. I find this line of thought rather amusing.

Mwembetayari said:

Criminal elements have always existed in Kenya. The new constitution is the master document that safeguards the right to dissent and also provides an effective framework to address the historical injustices these individuals cite.

I find the implications of your question skewed as it takes an imaginative mind to rope in the existence of crime and essentially ask: why criminal elements exist when we have laws?! :redface:. I find this line of thought rather amusing.

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I see!

Ieleweke kuwa the question before the court was NOT about the legality of MRC, rather, kama ni haki kwa serikali kudeclare MRC kuwa kikundi haramu ukizingatia katiba mpya. The judges found that the government was in the wrong. the government could not prove that MRC met all the conditionalities laid to enable the government declare them illegal.

I believe that is why the judge told MRC to register as a political party. He knows that as is stands now - MRC is an unregistered entity - other than the fact that, the government, under the old MOI era mentality, under-estimated the threshold required for the case and the independence of the judiciary, assumed they would easily win ( even MRC themselves were surprised ) the case.

So now the only option for MRC is to be constituted as a political party since their agenda is political in nature. Problem with that is the political parties act. Which mandates that a political party must have offices and members all over the country. MRC solely in PWANI will not meet this threshold and thus cannot be registered as a political party! You can guess what happens after that.

Namtih58 said:

Ieleweke kuwa the question before the court was NOT about the legality of MRC, rather, kama ni haki kwa serikali kudeclare MRC kuwa kikundi haramu ukizingatia katiba mpya. The judges found that the government was in the wrong. the government could not prove that MRC met all the conditionalities laid to enable the government declare them illegal.

I believe that is why the judge told MRC to register as a political party. He knows that as is stands now - MRC is an unregistered entity - other than the fact that, the government, under the old MOI era mentality, under-estimated the threshold required for the case and the independence of the judiciary, assumed they would easily win ( even MRC themselves were surprised ) the case.

So now the only option for MRC is to be constituted as a political party since their agenda is political in nature. Problem with that is the political parties act. Which mandates that a political party must have offices and members all over the country. MRC solely in PWANI will not meet this threshold and thus cannot be registered as a political party! You can guess what happens after that.

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I was laughing when I saw them jumping up and down as they celebrated the ruling because they did not realize they had been outfoxed!

And If I may add, they would also have to amend the constitution first to allow for cessation and that means getting 85% of votes.

Freedom of the courts is a provision provided for by the new constitution. The Judiciary should not become a radical supreme court by trying to jostle for supremacy with every ruling especially those that seek to protect the fragile security of the nation. There are so many ways the supreme court can exercise her new found freedom and one of the things it must not do is to try to radicalize every sensitive situation that would tear the fractious unity of the state. It must not also seek to catalyze the country into more volatile upheavals reminiscent to those witnessed during the last PEV. Then where will these fractious MRC build their government with

Kabaridi said:

Freedom of the courts is a provision provided for by the new constitution. The Judiciary should not become a radical supreme court by trying to jostle for supremacy with every ruling especially those that seek to protect the fragile security of the nation. There are so many ways the supreme court can exercise her new found freedom and one of the things it must not do is to try to radicalize every sensitive situation that would tear the fractious unity of the state. It must not also seek to catalyze the country into more volatile upheavals reminiscent to those witnessed during the last PEV. Then where will these fractious MRC build their government with

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The courts are there to interpret the law as is written. You can not expect the courts to side with the government even when they are clearly wrong. The current government of Kenya, is still stuck in the old ways, partly because a lot of the people have been around from the old click and the old ways served their interests.

The courts did no error, in my opinion. As I mentioned before, the question before the courts was NOT the legality of MRC but rather whether the government was right in declaring them illegal. The court found that the government rushed in declaring MRC illegal. The government could not prove that they had done all that is required by law before such a gazette notice can be issued.

No one is disputing that what MRC is advocating for, i.e secessionist agenda, is illegal, but that is not what was before the court. One cannot argue that they are right in breaking the law to prevent the law being broken. If the KE gov. really wants to win cases in the new system, then I think it will do them good to study the law, and do things by the book.

You only have to look at how many KE gov. acts have been overturned by the courts to realize that this government needs to rethink its strategy rather than criticizing the judges.

Remember with the vetting of judges going on, the judges can no longer afford to issue rulings that are not grounded in law, because from now on they will have to defend every decision they make.

Namtih58

Thanks for your ideas and clarity with regards to the new position of the judiciary when it comes to making rulings. They interprete the law as made through legislation and constitution, not popular opinion. As to the legality of MRC, it is no doubt that the circumstances and legality surrounding them remains unarbitrated. There is need for the separatist movement to be open and clear about the purposes of their movement. The new constitution allows for freedom of association and it will be a mistake to overlook the chief exponents of the laid down virtues of sitting govt.

Most of their grievances / historical purposes are fundamentally understandable i.e. fight for recognition and securing descent standards of living. But the simple refusal for MRC to register a political party to pursue their agenda means they are more prone to open exploitation and victimization from self serving politicians and other organized international pressure groups that may not feel disdained from, notwithstanding extremists hellbent to popularize themselves.

If such sectarian interests are left to mature under the blessings of a malevolent reactionary judiciary, then we do not have a reformed judiciary. We have had many nations torn between secterian violence, wickedness, and impeity some of which the country has experienced in the past till recently. The separatist movement should engage in round table negotiations about their future plans with govt. and other non govt. organizations/ stakeholders. As fractious as the unity of the country is let the reformed judiciary, AG and other legal stakeholders endeavor to secure a common policy and joint action with the national cohesion body by legislation in questions concerning groups with special secterian interests.

FJM said:

Just curiouss, wasn't Kenya a 'unitary' state even under the old-dear katiba? How was MRC came into being? and do they (MRC) really buy into unitery state as per the new constitution?

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An uprising mainly consisting of mijikenda meant that the colonialist and sultanate had to consider their position as rulers of pwani si kenya. Yet you are right even before the oman arabs overthrowing the portugese in 15 century AD
pwani si kenya was a solitary state with its HQS in MSA.
The british protectorate was later merged to the greater british east african protectorate kenya to become one.