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Archive for January 3rd, 2012

Why IEBC Must Not Disenfranchise Diaspora Kenyans

Posted by Administrator on January 3, 2012

By Henry Ongeri

Early this month, Independent Elections and Boundaries Commission (IEBC) Chairman Issack Hassan and commissioners made whirlwind trips across the globe, ostensibly to gather views from Kenyans on the upcoming 2012 general elections.  OnDecember 12, 2011, I attended one such meeting inMinneapolis,Minnesotain theUnited States. IEBC Chief Executive Officer James H. Oswago assured the audience (to rare applause), that the commission was on a listening tour and IEBC was still considering various options for registration and voting options for Kenyan citizens in the Diaspora. His list included voting by mail, in-person voting at embassies and consulates and electronic voting via the internet.

Though the Mr. Oswago insisted that IEBC was yet to make a decision on the manner of registration and voting, Chairman Hassan swiftly overruled him, repeatedly stating that that the only realistic option for the Diaspora was in-person registration and voting at embassies and consulates. Further that somehow, this option fully satisfied the constitutional requirement of “progressive realization of the right to vote.” He even suggested that IEBC had considered denying Kenyans residing outside of the country its right to vote till the 2017 general elections due to a shortage of time.

According to Chairman Hassan, “progressive realization of the right to vote” means a couple of limitations: Diaspora Kenyans will only be permitted to register and vote at embassies and consulates; Embassy and consulate staff will serve as returning and presiding officers and Diaspora voters will only vote for presidential candidates, eschewing National Assembly,  County or Senate contestants.  In essence, this would be the substance of the regulations that IEBC was sending to Parliament for approval.

Like hundreds of thousands of Kenyans in the Diaspora, I fundamentally disagree. Such  constricted reading of applicable law is disconcerting, to say the least. Indeed, it may be a violation of Section 38(2) of the Constitution, which guarantees every Kenyan citizen the right to a free, fair and regular elections based on universal suffrage.  For this piece, I do not address the wisdom or otherwise of using embassy staff-who are political appointees- to oversee and report the outcome of, such supposedly free and fair elections.

Under Section 82(1)(e) of the Constitution, Parliament is mandated to enact legislation providing for the progressive registration of citizens residing outsideKenya, and the progressive realization of their right to vote. One such law is the Independent Electoral and Boundaries Commission Act. Section 31(2)(e) of the Act requires the IEBC to make regulations providing for registration and for putting into effect the progressive realization of the right to vote for Kenyans residing outside of Kenya. Like other functionaries of State organs, IEBC commissioners have taken an oath to, at all times, obey, respect and uphold the Constitution of Kenya and all other laws.  Naturally, any statutes enacted pursuant to Section 82(1)(e) and regulations promulgated thereunder, must conform to the dictates of the Constitution.

While seemingly rational on the surface, the IEBC proposal for Diaspora voters is tantamount to denial of the fundamental right to vote by bureaucratic pronouncement.  First, it practically strips away the right of every Kenyan to vote if they are unable to travel to far-flung diplomatic installations in their country of residence. For example in theUnited   States, the Kenyan embassy is located inWashington,D.C., with consulates inNew York,New YorkandLos   Angeles,California.  Thus, only than Kenyans in contiguous states likeVirginia,Maryland,Arizona,Nevada,New   Jerseycan afford the time and money to register and vote.

Locating voting and polling stations at only three cities across the entire breadth of theU.S.is preposterous. It flies in the face of the undeniable reality of the enormous concentrations of Kenyans in the Midwestern and Southern states and cities.  Just to name but a few, these are:Minneapolis,Minnesota,Chicago,Illinois,Kansas   City,Kansas,HoustonandDallas,Texas,Detroit,MichiganandAtlanta,Georgia.  Ironically, IEBC visited most of these cities during its recentU.S.tour!

Second, the proposed regulations would purely be technical obedience to the law, while in practice, eviscerating a fundamental right. It is a time-honored canon of statutory construction that in enacting legislation, Parliament could not have intended an absurd or manifestly unjust result. In other words, IEBC must read laws in a manner that makes sense and avoid inevitable absurdity.  Nothing could be more absurd than requiring Kenyan citizens to travel thousands of miles just to register and vote.

Additionally, arguing that “progressive realization” only requires IEBC to locate a registration and voting desk in Washington, New Yorkand Los   Angelesmakes nonsense of the spirit of the new Constitution.  Per Webster’s Dictionary, “progressive” means moving forward, evincing progress or favoring improvement, change or reform.  It defies logic that erecting unreasonable hurdles for the Diaspora in exercise of the right to vote may somehow, be progressive.

Third, the IEBC proposal would be unduly burdensome and prohibitively expensive for Kenyans not residing near embassies and consulates.  For example: for a Kenyan inMinnesotaair travel fromMinneapolis–WashingtonD.C.- $500 (Kshs. 34,069);  accomodation – $250 (Kshs. 20,825) per night, food – $50; lost income (minimum of 2.5 days, depending on wages, may range from $1,000 (Kshs. 83,000 per day).  Come voting day, whether in August or December, 2012, the poor Kenyan has to do this all over again.  In contrast, Kenyans back home can literally walk to their stations, at minimal or no expense.

Fourth, the proposal would set a terrible precedent by sanctioning IEBC’s race to the bottom. In other words, doing the bare minimum to satisfy literal constitutional and legal mandates would now become legally acceptable.  Parliamentary approval of the regulations by IEBC would inevitably lower the bar for performance of public agencies in matters affecting the citizenry.  It is ironic that IEBC continually brags of the technical competence and expertise of its commissioners and staff while at the same time viewing the relatively uncomplicated additional voting stations as a “logistical nightmare.” For this reason, reasonable people can legitimately question IEBC’s competency and ability to handle the intricacies of the 2012 elections.

Finally, the casual dismissal of the role Kenyan Diaspora is disquieting.  If it is the Diaspora is Kenya’s 48th (and financially affluent) county, why treat it as though they were composed of second class citizens? Given the undisputed role that remittances play in propping the Kenyan economy, the IEBC’s disdainful attitude towards the Diaspora is inexcusable. By squandering its opportunity to engage the Diaspora in a meaningful dialogue on HOW to most effectively handle the registration and voting, IEBC is now left to tis own devices. Kenyans in the Diaspora will incessantly demand realization of their right to vote, with only equitable and justifiable constraints.

All Kenyans of goodwill must rise up and stop IEBC from unilaterally disenfranchising Kenyan citizens under the guise of “progressive realization” or some other lame excuse.  An online petition challenging IEBC’s proposed regulations is available at http://www.gopetition.com/petitions/kenya-diaspora-right-to-vote.html.   Kenyans and friends ofKenya are signing up in large numbers to support the right to vote. Will you be one of them?

IEBC would be loath to make the argument that Kenyans (to whom sovereign power ultimately belongs) intended to hand over such a fundamental right to the whims and convenience of IEBC commissioners.

At a minimum, IEBC should locate registration and polling stations within reasonable traveling distance (by airplane, train or automobile) of the cities with the largest concentration of Kenyans across the Diaspora. If resources were the issue, then Chairman Hassan and IEBC should initiate a sober and purposeful discussion on that particular challenge to find sensible solutions.  And come 2017, all Kenyan citizens should be able to vote electronically, regardless of geographical location or time-zone.  Now that is progressive.

 

*The author is an attorney and counselor at law in the States of Minnesota andNew Yorkin theUnited States of America.  He is also an Advocate of the High Court of Kenya.

Posted in Analysis and Opinion | Comments Off on Why IEBC Must Not Disenfranchise Diaspora Kenyans

Q&A with immigration attorney Uhuru Ndirangu: I was denied a Marriage Based Green Card due to insufficient evidence. Now what?

Posted by Administrator on January 3, 2012

Question: “I have a pending case with the immigration court. I have been here for ten years and I have a family. My I-751 was denied for lack of sufficient evidence and a contradictory answer to a question I did not understand during the interview. Can a judge grant me my green card in court and what determines this?

Thank you. George M

 

Answer: A person seeking relief in removal proceeding may be eligible for several forms of relief.  These include adjustment of status, voluntary departure, cancellation of removal, withholding of removal, asylum, among others.

If seeking relief through cancellation of removal for non Lawful Permanent Residents, then one has to show a ten year continuous residence, good moral character for 10 years, no certain convictions, that removal would result in exceptional hardship to his or her U.S. citizen or LPR immediate relative, and that the case warrants a favorable exercise of discretion.

If seeking relief through adjustment of status in immigration court, the immigration judge must adjudicate the adjustment and the case cannot be remanded to USCIS unless ICE counsel consents.  It’s a matter of prosecutorial discretion whether ICE counsel consents to the case been remanded to USCIS.  This means that an immigration judge has the authority to grant you a green card.

In removal proceedings, the Government has the burden of proving removability. (8 U.S.C. § 1229a(c)).  Once the government has met this burden (through proving up the Notice to Appear) then the applicant has the burden to show eligible for the relief sought — i.e. adjustment of status. ( Aslam v. Mukasey, 537 F.3d 110, 115-17(2d Cir 2008).  It is therefore the applicant’s burden to show that the marriage was a bona fide marriage and not entered into for purpose of immigration benefits.

George, immigration courts, like other courts require legal knowledge.  The government, in this ICE counsel, is not allowed to give you legal advice.  The immigration judge is not allowed to give you legal advice because the judge is supposed to be neutral. If you choose to represent yourself in court, you are expected to know the legal procedures. My advice to those in legal proceedings, whether immigration or any other legal proceedings, is to seek legal advice.

Please remember that this legal Information is intended for general informational purpose only. This legal information is not intended as a substitute to retaining an attorney.  Please consult an attorney licensed to practice law in your jurisdiction for answers to your specific legal questions.

Did you know?

Good moral character.  Under INA §101(f) (1) a person whose is a habitual drunkard is not considered to be a person of good moral character. (Habitual drunkard during the requisite period of the relevant form of relief being sought)

Posted in Immigration | 2 Comments »

Exam cheating rampant in America too

Posted by Administrator on January 3, 2012

Reports of rampant cheating on standardised tests in the summer of 2011 by schools across the United States may surprise Kenyans who have a  lofty image of US institutions.

Cheating there is more widespread than portrayed by the media.

Citing pressure to meet the federal ‘‘No Child Left Behind’’ mandate requiring schools to meet rigorous performance benchmarks, teachers and administrators routinely erased wrong answers on student papers, and replaced them with the correct ones.

In other incidents, teachers allowed students to copy answers from one another.

Suspected exam violations were reported in the states of Maryland, Georgia, the District of Columbia, Pennsylvania and Texas.

Departments of education in all these states take matters of examination irregularities seriously, and those implicated face severe penalties.

For instance, the certificates of some teachers named in the Georgia scandal were revoked for two years, while administrators’ licences were permanently revoked.

For Kenyan students, suspicion of involvement in cheating leads to cancellation of one’s test results. It’s not entirely surprising if test results of an entire school are cancelled due to alleged irregularities.

In a stark contrast with their US counterparts, teachers and principals at the centre of the scandals in Kenya march away scot-free, or the consequences, if any, are not widely reported in the media.

In a survey by Donald McCabe, a lead researcher and professor at Rutgers University, New Jersey, students at US institutions of higher learning cheat on tests, homework and assignments.

Bill Bowers conducted the first large-scale study of cheating among US colleges and university students in early 1960s. In 1964, he reported that three fourths of more than 5,000 students ‘‘had engaged in one or more incidents of academic dishonesty’’.

In the most recent study, McCabe surveyed more than 14,000 undergraduate students. Two thirds of respondents admitted cheating.

Students easily cut and paste passages and articles from the Internet. Sites like cheathouse.com, cheater.com, schoolbytes.com and many others offer downloadable papers for a fee.

Rapid developments in technology pose a challenge to authorities and individuals responsible for combating the trend. Luckily, software companies have developed plagiarism-detection systems to counter cheating attempts.

Turnitin.com is just what colleges and professors need. No wonder prominent colleges and universities in the US and Europe constitutes its core clientele. Other sites include checkforplagiarism.net, scanmyessay.com and writecheck.com.

Pressure to secure a spot in top colleges, or enrol in coveted programmes has prompted students to cheat on college entrance tests such as ACT, SAT and GMAT.

Back in Kenya, it’s common knowledge that some students, parents, teachers, exam supervisors, and others engage in cheating every year.

It’s definitely encouraging that cases of exam malpractices are down 1.5 per cent compared to last year, but the Kenya National Examinations Coucil must constantly devise measures that will ensure test integrity once and for all.

Mr Edward Musungu, a former teacher, is a recent graduate student from the University of Nairobi, while Mr Amos Wasike is an educator based in Baltimore, United States

Posted in Analysis and Opinion | 1 Comment »

Oped: PEACE FOR KENYA: A GIFT TO THE WORLD

Posted by Administrator on January 3, 2012

By Njeru Gathangu

The world has been on fire for the last one hundred years. Colonization, first world war, resistances against occupation, the second world war, the cold war, liberation war, mutinies and coup d’tats, political/ethnic cleansing and clan wars in Africa (Sudan, DR Congo,North Africa, Rwanda, Somalia,Kenya and many others).

Of all the wars witnessed so far, imperialist maneuvers clothed in diplomacy and foreign aid conceal deadly conspiracies that whither and dry up the “victims”. Actually any resistance to such conspiracies is met with resounding declaration of war against states.

Latin America, Pakistan, Afghanistan, Iraq, North Africa, Middle East and the entire African continent have a bitter story to tell.

With this disturbed world, those inKenyawho witnessed hatred caused by colonialism, marginalization and deprivation; political isolation and ethnic cleansing and particularly the post elections violence of 2008 which by and large loams around the Land Question, must soul search themselves and choose the role to play in peace creation and become witnesses to the world on how usurpation, hatred and violence cannot build, cannot create hope and or assure any community of their future.

 

2012 is another election year inKenyathat brings with it unresolved burdens and tensions, constitutional confusion, political ambition and mistrust among age old friends and partners. The country has started noticing few issues emerging that need to be addressed urgently, lest the centre cracks.

 

(i)        The attempt by the executive and to some extent, the parliament to create confusion and misunderstanding among Kenyans on the date of the next elections.

 

(ii)         Politicising the ICC process where some of the communities appear to be saying, ?hatutakubali wetu kuhukumiwa?-we shall not accept conviction of our kinsman. This by all standards is arrogance and disrespect to laws and the constitution.

 

(iii)        Absence of visionary leadership viz a vis values and the virtue of democracy. That a seat like the presidency can attract 20 aspirants is disaster and a crisis.

 

(iv)        Kenyan may not have appreciated the fact that the country is at war (declared by the president). To fight Al-Shabaab, a guerilla militia, our forces have to enter Somalia. Is it moral or ethical? Might we have created other enemies in the process?

Who would they be and so how does the country protect its citizens? Shall we be able to afford the whole programme and, for how long?

 

(v)        Is it possible that number (iv) above may drag to the elections and if so, how do we manage both?

 

(vi)        Politicians are busy popularizing themselves, who will inculcate the values and the virtue of peace among Kenyans?

 

(vii)        The social movement appears to have been ?mentally commercialized? or if you like, kept busy by donors and forced to wear blinkers not see anything but the “project”.

 

Let the country wake up to the reality that we are forty two nationalities and apparently most of them do not care much about others. In the coming year the region and the world need a peacefulKenyamore than any other time. Why? The whole region and indeed continent, its neighbours theMiddle Eastand the Arabian peninsula are in lots of trouble and apparently are somehow served from and through this country.

To assist the people, we must think, talk and live PEACE.

As for me, my friends and groups that I work with, we shall be propagating, living and spreading Peace through Kenya Horizons of Peace (Ken HoPe) to share with and tell our people that there can be life without the glimpse of hatred and violence.

Peace is the Ultimate.   Ken HoPe

 

Posted in Analysis and Opinion | Comments Off on Oped: PEACE FOR KENYA: A GIFT TO THE WORLD

 
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