kenyan legal issue no. 16
TRANSCRIPT
1 www.kenyanlegal.com [email protected] [email protected] + 254 (0) 715 907 898
Kenyan Legal Issue No. 16 – April 2015
IN PARTNERSHIP WITH:
IMPUNITY IS VALUED MORE THAN HUMAN
RIGHTS: THE BURUNDI STORY
“…Burundi is currently burning. Innocent blood is freely flowing down the streets of
Bujumbura and the cry of the Burundi people is so loud. However, AU and the East
African Community has blocked their ears from their cry. Unfortunately, we have
turned our backs against this country at a time it needs us most.”
- By Jack Brian Ong’anya
WHY HAVE WE TURNED OUR BACKS AGAINST BURUNDI?
INTERNATIONAL TRADE LAW IN
A NUTSHELL: AFRICA STRUGGLES
“Acting as a united group, these birds are flying away
with my snare but without doubt, they will fall as soon
as they quarrel among themselves.”
April’s Question:
What do you know about maxims of
Equity?
- Ombo D.M.
i
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DISCLAIMER:
The opinions and views expressed in this issue do not represent the views and opinions of the Kenyan Legal
Magazine, but solely for those of their authors. Whilst every effort has been made to ensure the accuracy of
the information in this magazine, the authors, publisher and editor accepts no responsibility for any loss,
financial or otherwise by any person using this publication.
Reach Us:- Website: Kenyan Legal Facebook: Kenyan Legal Twitter: Kenyan Legal Email: [email protected] or [email protected] Phone: + 254 (0) 715 907 898
ii
EDITORS NOTE
I love art. It has a way of tapping into life’s little experiences. Art can even capture a dream. Don’t we
all wake up in the morning torn between the desires to improve the world or to take over the world?
And by taking over I mean through success. We fail to be who we want to be in life because we let
others take the steering wheel of our destiny. We tend to make our success subject to approval of
others. People do not always have our best interest at heart and as Eddie Colla, one of my favorite
artists said, “If you want to achieve greatness, quit asking for permission.”
Speaking of taking charge of your life, in this 16th issue we get a one on one with Mr. Mugambi or as
others would prefer to call him, the ‘grandfather of moot’. He beat all odds to become the first best
oralist in East, North and central Africa. His story is hinged on hope; the belief that his fate could not
be determined by anyone or any circumstance.
As we remember the survivors of the Nepal Earthquake, find out from our association Partner’s
Human Rights Without Frontier editor in chief, Willy Fautre why the rescue and relief operation in
Nepal has not been effective.
I laud the authors of the articles or research papers advanced towards the April 2015 Issue 16. I hope
that you as the reader you will gain something from the articles.
Regards,
Stacy J. Jayo
Senior Editor, Kenyan Legal Magazine
iii
Composition of Kenyan Legal
Performance Auditors: Mr. Michael Opondo & Ms. Linda Wangui
Managerial Department
Chair Person: Ms. Joyce Muthoni – [email protected]
Vice Chair Person: Ms. Nazneen Basha – [email protected]
Editorial Department
Senior Editor: Ms. Stacy Jayo – [email protected]
Assistant Editor: Ms. Jane Muhia – [email protected]
Associate Editors: Mr. Quincy Kiptoo - [email protected]
Ms. June Kyenze – [email protected]
Mr. Samuel Onyango – [email protected]
Content and Layout
Mr. Duncan Ombo – [email protected]
Communications Department
Communications Director: Mr. Aira Godfrey – [email protected]
Communications Co-Directors: Ms. Valerie Akumu – [email protected]
Ms. Beryl Naliaka – [email protected]
Mr. Peter Mungóma – [email protected]
iv
Table of Contents Cover Page
Kenyan Legal: Subsidiary and Sponsors i
Editor’s Note ii
The Composition of Kenyan Legal iii
Table of Contents iv
1. HUMAN RIGHTS WITHOUT FRONTIERS – NEPAL 1
2. WHY HAVE WE TURNED OUR BACKS AGAINST BURUNDI 7
3. ARGUE YOUR CASE 11
4. INTERNATIONAL TRADE LAW IN A NUTSHELL: AFRICA
STRUGGLES 13
5. WHY THE ESTABLISHMENT OF THE OFFICE OF THE COUNTY
ATTORNEY IS TIMELY AND NECESSARY 17
6. TAXES AND WALKING THE TIGHT ROPE 20
7. LAWYERS REPUTATION: CHANGE OF TACTIC 23
8. LIFE SECTION 24
9. JOKE OF THE MONTH (LAW) 27
1
Human Rights Without Frontiers International
Newsletter "Human Rights in the World"
Disclaimer: Human Rights Without Frontiers (HRWF) publishes information from a variety of
outside sources which express a wide range of viewpoints. The positions taken in these
communications are not necessarily those of HRWF
Nepal in crisis after earthquake
2
By Raju Thapa, director of Human Rights Without Frontiers/ Nepal
HRWF Nepal (04.05.2015) - A powerful 7.8 M earthquake struck Nepal on 25th April. As of 3rd May,
it has been reported that 7276 people have died and 14278
people are injured. In this earthquake, Gorkha,
Sindhupalchowk, Makawanpur, Sindhuli, Bhaktapur,
Dhading, Dolakha, Kathmandu, Lalitpur, Lamjung, Rasuwa,
Ramechhap, and Nuwakot districts are severely affected. In
such crisis situation lots of support and aid has been receiving
by the government but still rescue and relief operation is not
being effective due to following reasons;
1. Less prompt and ineffective communication
a. Prime Minister of Nepal knew about the earthquake half an hour after, with the twitter
message of Indian Prime minister Modi[1]. This suggests that the head of executive is not
continuously updated about his country, which indicates reluctance and less concern for his
country.
b. As powerful after shocks hit one after another, the required amount of rescuers weren't
mobilized for several hours of earthquake. The government failed to effectively communicate
to them so that rescue and relief would be more prompt.
c. People tried to contact their family, relatives and friends so due to the over traffic on cell
phone network, it become inaccessible. On the other hand significant numbers of BTS towers
installed in the rooftop of the buildings collapsed. Alternative means of communication, which
is Internet, was also shut down. Government had no satellite phone to establish
communication with concerned stakeholders in time.
2. Delayed decision to deliver command in rescue operation
a. Emergency Ministerial cabinet meeting was held only five hours after the earthquake. It
should have been held much earlier to plan the disaster management, the manner in which the
rescue and relief should be conducted and proper mobilization of rescuers so that more lives
could be saved.
3. Lack of relief materials in store with the Government
a. Nepal lies in high seismic zone, and this is well known by the government. The government
officials and ministers have been attending many national and international seminars and
meetings regarding this issue, but government showed least preparedness, with very shameful
amount of rescue and relief materials in store. There was great scarcity of heavy equipment
that was required for rescuing the trapped ones, and clearing the roads by removing the rubble.
4. Lack of clear and adequate knowledge about responding in emergency situation
a. Deputy prime minister, Bamdev Gautam declared a 'state of emergency' in ministerial cabinet
meeting of 25th April[2]. Nepal government has also appealed for humanitarian assistance
across the region. However, when members of the 'state management committee' of the
parliamentary comittee argued that state of emergency is not applicable in such situation, Mr.
3
Gautam himself seemed to be unclear about his previous statement and he corrected himself
by stating that he declared severely affected districts as 'crisis zone'. This suggests that even a
responsible person like deputy prime minister can't clearly differentiate such important
concepts[3].
5. Office and residence of the head of the state and head of the executive were not safe
a. Office of the both president and prime minister is very old building, and have got several
cracks due to earthquake[4]. When there was a shake of 6.8 Richter scale the following day,
which is 26th April, the participants of ministerial cabinet meeting, rushed to the open space
while the meeting was taking place at the office of the Prime Minister [5]. This shows the extent
of carelessness and ignorance of the leaders. At least they should have chosen a safe building
to live and work, as they are the responsible ones for most of the power and commands to
operate the country.
6. Complicated Lifestyle
1. Due to the lack of electricity and most BTS and Internet tower shut down, it made a difficult
situation for people to communicate and seek help.
2. Rain made life more difficult as almost all people were living under open sky.
3. It was difficult to find open space in Kathmandu. The available spaces gradually got dirty as
there were many people residing, with lack of latrines and clean water.
4. Mosquito, insects and parasite problem were rampant in the open space. There was shortage
of mosquito repellent.
5. The shops and other private sectors didn't feel responsible enough. They didn't easily provide
supply of the basic needs. Those who provided inflated the price many times than normal
times[6].
6. Indian helicopter highly accompanied Indian journalist rather than rescuer and relief materials.
They prioritized publicity rather than the rescue operation.[7]
7. There is a perceived threat of epidemic.
7. Political parties, leaders and ministers are taking this situation as an opportunity
a. The influential political leaders have captured the relief materials and dispatched them in their
home district. This has led to many needy victims still deprived of relief materials[8].
b. Instead of identifying the villages that need immediate relief and rescue, the ministers were
sending rescuers to places of their interest. In the ministerial cabinet meeting held the day after
the earthquake the finance minister, Ram Sharan Mahat, expressed his dissatisfaction with
Nepal Army as he had requested the Nepal Army to send relief materials to his constituency
in Nuwakot district. The Army officials did not identify his village, so he expressed that he
himself would go with the officials in their helicopter to distribute the relief materials. This
caused the disturbance in the meeting and Minister of Helath, Khagraj Adhikary, thought that
if a leader belonging to Nepali congress does this, people will incline and be loyal to Nepali
Congress, and so he said that Mr Sharan has to take the Foreign Minister along with him
because the Foreign Minister belongs to Communist Party of Nepal (Unified Marxist Leninist)
4
and is also from Nuwakot district. This issue heightened to such level which halted the
distribution of relief materials in Nuwakot for 7 days, as the parties were disputing over who
should distribute these materials. The ministers are using this time of crisis also as an
opportunity to make happy their cadre.[9]
c. Political parties are exerting pressure to the bureaucrats to include the names of the party cadre
in the earthquake victim list, although they are not the real victims. In Sarlhai district political
parties have intimidated the bureaucrats to do so.[10]
d. The political parties desperately want to get credit, but instead of acting wisely and gaining
trust and rebuilding their diluted image by showing sincerity at least during this situation where
people are in real need, they are fighting with each other in order to get more share of relief
materials, so that and they can donate it with their name.[11]
8. Old law fails to properly address the complexity of modern disaster management
a. The country has a very old law called 'Natural Calamity Relief Act 1982' there are no clear legal
provisions of the jurisdiction of bureaucrats in time of such devastating crisis [12].
9. Incompetency of bureaucrats and ego problem
a. There seems to be lack of consensus between bureaucrats, which is one cause of delayed and
inefficient relief and rescue operation[13]. The Chief secretary holds the capacity to order and
assign tasks to all other secretaries. Thus, with this in mind Mr. Leela Mani Paudyal, the Chief
secretary in his leadership formed a committee of 11 members to manage this disaster in a
better way. But according to the 'Natural Calmity Relief Act 1982', rescue and relief operation
falls under the jurisdiction of Home Ministry. So, the Home Minister and Home Secretary
showed great disagreement to Mr. Paudyal's act. Mr. Paudyal might have thought of forming
such committee because, Defense Ministry looks after and regulates Nepal Army, so the
Home Ministry might not be able to properly mobilize the Nepal Army for better relief and
rescue, but the Chief Secretary as aforementioned does hold the capacity to give instructions
and mobilize them, therefore he might have thought his committee would be very useful to
suitably manage this crisis. With such disagreements this issue did not come to understanding
and Mr. Paudyal's committee stood ineffective with no opportunity to perform the desired
tasks[14].
In this way bureaucrats have failed to plan properly, failed to co-ordinate successfully, failed to identify
the urgency of relief and rescue of the victims, and failed to prioritize victim's needs over theirs are
some reasons behind the snail pace dispatch of relief material[15].
10. Too many parliamentarians and their overloaded interest
a. Nepal has 601 constituent assembly members and most of them want reach to their
constituency for inspection, interaction with people, and distribution of relief materials. In this
they are using the helicopter that has been transporting relief materials to various places. In
such a scenario the amount to relief materials that used to be loaded in a helicopter is being
reduced, so that the constituent assembly members can also be included in that helicopter.[16]
11. Government acts hopeless
5
a. After four days home minister said that rescue and relief operation was ineffective [17].
12. Delayed announcement of nominal relief package
a. After five days of earthquake Prime minister announced that the relief amount of USD 1000
will be provided to the bereaved families [18].
13. Least responsible leaders
a. Chairman of the Constituent Assembly of Nepal, demanded to hold a constituent assembly
meeting, so that information from constituent assembly members can be obtained about their
respective constituencies, and on that basis rescue and relief could be made more effective,
but the PM denied calling for the meeting assuming that discussion about the government's
weak responding mechanisms, drawbacks, and failures would be discussed[19].
b. Political leaders of Nepal love to attain international meeting. Leaving behind this pathetic
scene at home, Finance Minister Ram Sharan Mahat flew to Azerbaijan to attend a donor
meeting on 3rd May[20].
Nevertheless, the sectors that have been doing commendable jobs to soothe the victims have also
been witnessed, which are:
1. Nepal Army, and Nepal Police have been playing significant role in the crisis situation.
2. International relief effort is praiseworthy.
3. Nepal electricity authority has been able restore electricity very quickly excluding some severely
damaged areas and arrangements.
6
[1] http://timesofindia.indiatimes.com/india/Modi-Nepal-PM-learnt-of-quake-from-my-tweet/articleshow/47102377.cms [2] http://www.bbc.com/news/world-asia-32461019 [3] http://article.wn.com/view/2015/04/25/Quakehit_areas_declared_crisis_zones/ [4] http://www.myrepublica.com/politics/item/20226-quake-damage-assessment-for-govt-buildings-starts.html [5] http://www.myrepublica.com/politics/item/20226-quake-damage-assessment-for-govt-buildings-starts.html [6]Kantipur daily Apr, 30 2015 [7]Kantipur daily Apr, 29 2015 [8]Kantipur daily 29 Apr 2015, page 15 [9]Kantipur daily Apri 30, 2015 [10]Kantipur daily 30th Apr, 2015, page 9 [11]Kantipur daily, Apr 29, 2015 [12]Natural Calamity Relief Act 1982 [13]Kantipur daily, 29 Apr, 2015 page 15 [14]Kantipur daily Apri 30, 2015 [15]Nagarik daily, Apr 30, 2015 [16]Kantipur daily, Apr 30, 2015 [17]Kantipur daily Apr 29, 2015 [18]Kantiour daily Apr, 30 2015 [19]Kantipur daily, Apr 30, 2015 [20] http://www.myrepublica.com/politics/item/20324-mahat-flies-to-azerbaijan.html View all "Human rights in the world" newsletters: http://hrwf.eu/newsletters/human-rights-in-the-world/ View this newsletter: http://hrwf.eu/wp-content/uploads/2015/05/Nepal.pdf
7
WHY HAVE WE TURNED OUR BACKS AGAINST BURUNDI?
By
JB ONG’ANYA1
(The author has just completed his Bachelors of Law Degree (LLB) from Mount Kenya University. He is also the
senior editor at the Kenya Journal for Law and Justice and Director of the 5th Committee (Social and Human Rights)
at the International Youth Action Against Justice.)
I have written before, that in Africa, impunity is valued more than human rights. I have also written
in the past that the African Union (hereinafter ‘AU’) is a total late down. I dare say the AU has betrayed
the African Citizenry. And I have also said before that AU is interested in protecting Heads of State
and not the African citizenry.
Burundi is currently burning. Innocent blood is freely flowing down the streets of Bujumbura and the
cry of the Burundi people is so loud. However, AU and the East African Community has blocked
their ears from their cry. Unfortunately, we have turned our backs against this country at a time it
needs us most. Who will hear the cry of the Burundians? What is annoying is that the leadership in
Burundi is perpetrating violation of human rights as the World watches. The African Union’s silence
is ‘speaking loud’ and it amounts to betrayal of the highest level. The AU has always been on the fore
front in defending African Heads of States who have committed various atrocities in Africa and
ignored the Africans who are always the victims of these atrocities. We have always thumbed our chest
that “Africans have solutions for their own problems” but why are we not providing solutions for the
Burundians? We as Africans have enacted a number of regional Conventions with juicy provisions
aimed at protecting human rights. Sadly, these provisions have only remained good on paper and can’t
be applied since its implementation is another problem altogether. We therefore cannot invoke such
provisions in times of crisis since some of our leaders are acting as if they are above the law. The main
reason why these laws were enacted was to ensure a future that is free from violence. There was a
1 The writer is the Director of the Committee on Social and Human Rights (5th Committee) under the International Youth Action Against Terrorism (IYAAT).
8
contemplation that in case of crisis, these laws would be referred to, to offer guidance. One such law
is the African Charter on Democracy, Elections and Governance (2007/2012)2. African leadership
pride in signing these laws, but not in implementing them.
Burundi is one country that has experienced pro-longed civil war and it is a fact that current President
Pierre Nkurinziza came to power in 2005 after 12 years of civil war. The civil war saw the death of
over 300,000 lives. Such events raises a lot of questions
than answers. Since when did the blood of innocent
Africans became a stepping stone to leadership? Is this
the reason why AU has ganged up against the ICC? So
that they can violate African Human Rights at will?
Human rights are inherent anywhere in the World, they
are not granted at the mercy of anyone. These human
rights are universal and can’t stand alone, but depend on
others. In this era and age, the route of democracy is the way to go. Democracy is the light and savior
that we didn’t have in the past as Africans. However, efforts are being made to kill it completely in
Burundi. Democracy demonstrates the will of the people. In the words of Abraham Lincoln3,
democracy is the government of the people, by the people, for the people. In Africa, the opposite is
preferred by the leadership. The people have no say in their government, leaders impose themselves
upon the people and some even refuse to relinquish power. The sovereignty of the people of Burundi
is expressed in their Constitution. The history of Constitutional making world over, is that
Constitutions are products of upheavals, violence or civil wars. It is normally enacted to provide
solution and act as a source of reference in future when faced with a similar problem. The people of
Burundi, in their Constitution expressly gave the person to be elected as president “two terms” upon
which he/she can serve as president and leave to someone else, through a free, fair and transparent
election, which should reflect a democratic process. Upon President Nkurunziza indicating his
intention to vie for the third term, which amounts to overthrow the Constitutional requirement, the
People of Burundi took to the streets to protect their Constitution. President Nkurunziza’s action is
not only selfish, but dictatorial, unconstitutional and ought to be condemned in the strongest terms
possible. It is now clear why the AU cannot comment and/or condemn the same since most of its
2 Adopted in Addis Ababa, Ethiopia, on 30th January 2007 and entered into force on 15th February 2012. 3 President of the United States of America (1809-1865).
9
members are ‘beneficiaries’ of the same undemocratic ideology starting with the AU Chairman himself
Robert Mugabe, Equatorial Guinea’s Teodoro Obiang Nguema, one time Congo’s big man Joseph
Kabila, among many others. It is therefore not surprising that Mr Nkurunziza has read from the same
script which appears to be somewhere safe within the AU’s archives. These kind of leaders have
submerged the principle of government by the people and for the people. They have prompted
uprising whose wind have always been so strong that has swept them out of leadership. These leaders
seem not to learn from the history. It is only recently that countries such as Senegal and Bukina Faso
experienced popular uprising that forced long time leaders to step down. It ought to be understood
that protesting and demonstrating is not a crime. In modern democracies, it signifies displeasure with
the manner in which things are conducted. It is a human right that is anchored in a number of regional
human rights instruments. As I write this Article, a number of human rights of the people of Burundi
is being infringed upon for instance, right to security, right to education, right to property, right to life
among others. There is no doubt that there is no security due to turmoil experienced. A number of
international Bill of Rights instruments guarantee the right to security. For instance Article 9 of the
International Covenant on Civil and Political Rights provides for the right to security of all persons.
Due to insecurity, the right to life of the Burundians is at stake. Most institutions of learning, such as
Universities have been closed and some students forced to camp outside the US Embassy for fear of
attack. The authorities in Burundi are responsible for the ten lives so far lost. There is high probability
that this may increase as well as destruction of property. However, what is annoying is that the World
is watching in silence, especially the African Union. The AU is treating the Burundians lives as less
important compared to that of a single head of state that the Union will fight tooth and nail to protect
from the jaws of ICC. By closing of institutions of learning, the right to education is in limbo. Most
of human rights hinge on political stability, without which, their enjoyment becomes a pipe dream.
The African Charter on Democracy, Elections and Governance, has established certain principles4 to
the effect that State parties shall respect human rights and democratic principles; exercise of state
power in accordance with the Constitution among others.
I submit that in most cases these turmoil are caused by actions of the heads of state which attempt to
throw away their various Constitutions. When a President wakes up and decide that he/she will vie
for a third term, contrary to the Constitutional requirement of two-terms, such a person is setting
stage for violence. As former ICC prosecutor Luis Moreno Ocampo put it “violence is not a ticket to
4 Chapter 3, Article 3(1-11).
10
leadership position, but a ticket to the Hague (ICC)”, however, there is no doubt that the AU will not allow
‘one of their own’ to be prosecuted by ICC, it is only fair that it leads in preventing situations that may
necessitate this. If AU would only protect the African citizenry with the same zeal it uses when
protecting Heads of State, today I wouldn’t be writing about Burundi. But because it has refused, I
am obliged to use the power of the pen to remind them that they have failed us. The said African
Charter on Democracy at Article 23 obliges the AU to sanction any act that amounts to
unconstitutional changes of Government. The same provision extrapolate what amounts to
unconstitutional change of government, and in this case the situation in Burundi amounts to refusal
by incumbent to relinquish power.5 People of good will in Africa and the World at large need to stand
by the people of Burundi, at this hour of their need, in helping to protect their human rights which
are being deliberately violated. History reminds us that the tree of democratic gains and liberties was
watered by the blood of people who refused to keep silent when their rights were being trampled
upon. How many lives must still be lost in Burundi before anyone can notice? I want to challenge
human rights organizations in Africa that they need to rise up and be counted in condemning this
aristocratic regimes which are interested in blood shed in our continent.
It is my prayer that the AU will get back to its senses and realize that they are exercising a donated
sovereign will of the people. Their priority should be to defend, promote and protect human rights of
its citizenry. Theirs is not to make noise that “Africans have solutions for their problems” yet we
cannot even see those solutions in times of crisis. As Martin Luther King Jr would put it, “in the end
we will remember not the words of our enemies, but the silence of our friends.” If we are true friends
of Burundi, let us stand by Burundians in this hour of their need.
5 (n2) Article 23(4).
11
ARGUE YOUR CASE
Lucy Monyenye
3rd Year LLB
Kenyatta University School of Law
One afternoon, I was seated in a matatu headed home. Somewhere en route the conductor came
round picking fare. Well, being some minutes to four in the evening we normally pay fifty shillings.
The conductor was asking for seventy shillings instead, everyone gave him without question
(apparently ignoring the fact that he was asking for so much). When he got to where I was sited I paid
without question but the young guy seated next to me gave him fifty shillings. He refused to take
saying it was seventy, the young guy seated next to me told him he was only going to pay fifty shillings
because it is what should rightfully be paid at that time of day.
I wondered how many people were sited in
that bus but did not speak on the injustice.
How many people chose to sit in silence and
not be seen as a penny pincher? Then it
occurred that my country is full of such
people, who just sit and not react but when
you are alone or in a tiny group, we hear how
much you hate injustice.
How many times do we sit down in those
idle groups and just listen. Listen to each
other state the loopholes in the law. How the
penal code needs to be revised to
accommodate new emerging crimes? How the criminal and civil procedures need to be reviewed to
deal with backlogs that have developed over the years and prevent future backlog?
How many times do we sit down and blame somebody? Oh, correction, sit down and look for
someone to blame for our silence? Yes, when you choose to sit and watch we encourage all the evils.
We choose not to speak our mind when we see that police take the bribe from an offender. When we
see our neighbors mistreat a child and do nothing about it. When we help steal by keeping silence and
not call the police.
Yes, they did that but it did not affect me. Well that would be how you see it. Did you ever think that
you may have suffered an injustice once and someone else kept silence and watched? They just sat
there, passed by or worst of all laughed at you!
We need to find the voice that our country needs. The one that will make all sleeping fellows feel
threatened and do their job; that one voice that will salvage this country from its fast sinking state.
12
The voices that will bring decency back to the legal profession and make advocates go back to their
roots. The voice, which this country is in desperate need of.
The good news is that the voice is here with us. It is not something we have to wait for or fetch from
somewhere else. It never left. It was silenced and we can revive it. We can be part of the generation
that will actively participate in taking this country where we want it to be.
Imagine for a second what a world this would be if we spoke up. If we let each, other explains their
position and states their case. If we spoke against all the things that decay our society and makes us
not develop towards the country we all want to see. So speak up! Argue your case!
13
INTERNATIONAL TRADE LAW IN A NUTSHELL: AFRICA STRUGGLES
Maseka Kithinji
2nd year Law Student
Riara University
Preamble
International trade law sometimes called international economic law or the law of international
business transactions6. It is the law or rules that governs trade between different countries. In order
to understand international trade law one must first understand international trade.
David Ricardo,7 a pronounced economist, developed and published one of the first theories of
international trade in 1817. He stated that - to produce the wine in Portugal, it might require only the
labor of 80 men for one year, and to produce the cloth in the same country, it again might require the
labor of 90 men for the same time. It would therefore be advantageous for her to export wine in
exchange for cloth. This exchange might even take place, notwithstanding that the commodity
imported by Portugal could be produced there with less labor than in England. Though she could
make the cloth with the labor of 90 men, she would import it from a country where it required the
labor of 100 men to produce it, because it would be advantageous to her rather to employ her capital
in the production of wine, for which she would obtain more cloth from England, than she could
produce by diverting a portion of her capital from the cultivation of vines to the manufacture of cloth8.
Similarly this concept can be applied centuries later to what is commonly known as the ‘barter trade
system’. A system that was applied and worked in most parts of Africa and was the form of trade
before the currency of money came about. This was a direct system of trade that varied in trade from
goods and services. For instance a certain tribe would be rich in gold and ivory but due to the
geographical area in which they lived in they could not produce maize, or green vegetables that are
desperately needed in that tribe to survive. So they would simply trade with the neighboring tribe who
are rich in agricultural in exchange for some of their gold and ivory9.
International trade law
6INTERNATIONAL TRADE LAW, Problems, Cases, and Materials, Wolters Kluwer, Aspen Publishers, pg. 1 7THE CONCISE ENCYCLOPEDIA OF ECONOMICS, David Ricardo (1772 – 1823) Available online at: http://www.econlib.org/library/Enc/bios/Ricardo.htmlhttp://www.econlib.org/library/Enc/bios/Ricardo.html 8Quoted from paragraphs 7.15-7.16 in On the Principles of Political Economy and Taxation. Available online at: http://www.econlib.org/library/Ricardo/ricP.html 9Further reading at: The History of Bartering and Money, by James Harvey Stout (deceased), Available online at: http://www.theorderoftime.com/politics/cemetery/stout/h/pbb-24.htm
14
“Acting as a united group, these birds are flying away with my snare
but without doubt, they will fall as soon as they quarrel among themselves.”
(Panchatantra, Book II, Verse 9)10
Now that there’s a proper establishment as to the history of trade, we can move onto today’s modern
world. In today’s world there are four major channels of international trade, which are (1) trade in
goods, (2) trade in services, (3) technology transfer and (4) foreign direct investment11.
All these various channels of trade need governing, thus the creation of international trade law that
can be seen as a bargaining tool between countries to establish proper trade relations. There are various
international trade relationships a country may invoke which are; unilateral measures (national law),
bilateral relationships, plurilateral agreements, and finally multilateral arrangements (GATT/WTO).
The platform for negotiations and bargains for trade between countries on multilateral agreements is
the World Trade Organization. The World Trade Organization
came into force in the year 1995, 1st of January. The WTO
basically handles all the multilateral agreements countries can
enter into, which means that through the WTO a country may
be able to reach the scope of trading with more than perhaps,
three countries at once in different sectors, as compared to a
unilateral or bilateral agreement that is binding only to the
parties involved. The WTO is the successor to the General
Agreement on Tariffs and Trade (GATT) established in the wake of the Second World War. From
1948 to 1994, the General `Agreement on Tariffs and Trade (GATT) provided the rules for much of
world trade.
It seemed well-established, but throughout those 47 years, it was a provisional agreement and
organization. The system that is now known as the WTO was developed through a series of trade
negotiations, or rounds, held under GATT, the last round — the 1986-94 Uruguay Round — led to
the WTO’s creation12.
Africa’s challenges in the realm of international trade law
10International Trade and Developing Countries: Bargaining Coalitions in the GATT & WTO By Amrita Narlikar 11INTERNATIONAL TRADE LAW, Problems, Cases, and Materials, Wolters Kluwer, Aspen Publishers, pg.2
12WORLD TRADE ORGANISATION, (a) THE WTO IN BRIEF: PART 1 the multilateral trading system—past, present and future. Available online at:
https://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr01_e.htm (b) UNDERSTANDING THE WTO: BASICSThe GATT years: from Havana to Marrakesh. Available online at
https://www.wto.org/english/thewto_e/whatis_e/tif_e/fact4_e.htm
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“Nonetheless, the developing countries must be able to reap the benefits of international
trade.”
Anna Lindh
Over three quarters of WTO members are developing or least-developed countries13. According to
the World Population Sheet data 2012 and the United Nations Population Division14, Africa holds the
highest number of developing or least developing nations in the world. The question then presents
itself as to why Africa is at a detriment or loss when it comes to trade agreements and yet occupies
75% of membership at the World Trade Organization.
This imbalance between developed nations and developing nations in the global trading regimes was
attempted to be resolved at the Doha Development Round/Agenda (DDA)15 of trade negotiations
among the WTO membership carried out in Qatar in 2001. This agreement was aimed at improving
the trading prospects of developing countries, developed nations and the emerging economies of the
South. The effect of the DDA’s vision was not quite in line with member states of the WTO, for
differences between countries took precedence and most of the countries resorted to bilateral and
regional trade pacts.
However, Africa’s resilience is relentless for one of the top priorities are its agricultural products
having more access to the global market, which means the agriculture-related issues remain and are
very much still critical for African countries in the Doha Development Agenda.
What Next For Resilient Africa?
“Clearly, development is not just about growth”
(World Trade Report 2014 Trade and development: recent trends and the role of the WTO,
page 58)
So what next for Africa? It is faced with a platform that is very much disputed upon as to the benefits
it acquires from these various agreements, regardless of the WTO providing a helping hand to the
situations the continent is faced with. The efforts of the WTO shown through all agreements
containing special provisions for developing countries that include; exemption from various
provisions in the agreements, longer periods to implement agreements and commitments, measures
to increase their trading opportunities and support to help African nations build the infrastructure for
WTO work, handle disputes, and implement technical standards. It appears that as a continent it has
13THE WTO IN BRIEF: PART 4 Developing countries. Available online at: https://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr04_e.htm 14 World Population Data Sheet 2012, available online at: http://www.prb.org/Publications/Datasheets/2012/world-population-data-sheet/fact-sheet-world-population.aspx 15UNDERSTANDING THE WTO: THE DOHA AGENDA, Available online at: https://www.wto.org/english/thewto_e/whatis_e/tif_e/doha1_e.htm
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been offered a ‘silver platter’ that offers not only trade but aid in order to achieve the standards that are
set and met by the said developed nations.
The fear might be what is on that ‘silver platter’ and after consumed whether it will turn into ‘gravel’, for
aid creates reliance, reliance that kills independence. So in order to solve part of this problem Africa
should aid itself before seeking it elsewhere and in fact is on the right track in doing so. Africa as a
continent brews great potential as each passing day comes and goes. The progress level may not be as
fast as the global market desires but nonetheless progress is achieved. Take for instance, the
unanimous desire shared amongst African nations to improve Customs and other border procedures
and transit regimes echoing what was stated at a joint African Development Bank-WTO trade
facilitation symposium in November 2012 in Nairobi. This as a result saw African countries initiate
programs to modernize their customs at the ports of entry and along transit corridors using the
guidelines of the Revised Kyoto Convention of the World Customs Organization.
International trade law is a step towards a global market that is one of the systems in the global village.
It is of grave importance for every country to be a part of this system no matter how difficult the
negotiations are or the ever new challenges presenting themselves, for it is a definite benefit to each
nation. Africa is one of the continents reaping fruits from these various agreements some may argue
they are ripe fruits others may say they are still raw and others plain rotten fruits. What matters at the
end of the day is that the African trading system has progressed from the ‘batter trading system’,
developed into a system that they can trade with more than just the neighboring countries and is
definitely proceeding into better trading relationships in the future.
17
WHY THE ESTABLISHMENT OF THE OFFICE OF THE COUNTY ATTORNEY IS
TIMELY AND NECESSARY.
BY GILBERT WAFULA JUMA
FOURTH YEAR LLB STUDENT AT KISII UNIVERSITY
Sterling and Mackay argue that “the office of the Attorney General has evolved to include two
distinctive functions: the “political” Attorney General, who, as an elected member of the legislature
and member of Cabinet, is a member of the Executive branch of the government of the day and thus
plays a role in formulating government policy; and the “chief law officer of the Crown” charged with
providing legal advice to government and directing … civil litigation.”16 In Kenya, the attorney general
is appointed by the president and approved by the national assembly thus making him a political
figure17. Under article 152 of the constitution, the attorney general is a member of the Cabinet and
thus sits in the national executive. The position taken by the attorney general under the constitution
of Kenya is therefore likely to jeopardize the efficient functioning of county governments.
Just like the national government, the county government has its own share of legal problems which
need a well ironed legal mind to handle. Among the key legal challenges facing county governments
include; the representation of county officials facing impeachment, recovery of land rates and other
levies from the defaulters and advice to the county assembly
regarding the constitutionality of bills18. These issues call for a
chief legal advisor to the county governments. Article 156 of
the constitution of Kenya 2010 establishes the office of the
attorney general who according to article 156(4) is the
principal legal advisor to the government. This implies both
the national and county governments. As regards legal
representation however, Article 156 (4) (b) limits the attorney
generals role of legal representation to the national
government. This leaves a lacuna as regards the legal
representation in counties. The high court breathed life to this
provision in the case of IsaacAluoch polo Aluochier v
Uhuru muigai Kenyatta and another19 where justice
16 Sterling & Mackay; the constitutional recognition of the role of the attorney general in criminal prosecutions; Krieglar v Law Society of Alberta. Accessed on the 13th of April 2015. Retrieved from www.sclr.journals.youku.ca/index.php/.../3178 17 Article 156(2) of the constitution of Kenya 18 Counties to have ‘AGs’ if Bill is passed. Accessed on Wednesday 7th January 2015. Retrieved from www.nation.co.ke/new/counties-t0-have-AGs-if-bill-is-passed/-/1056/2581808/-/ccpvphz/-/index.html 19 High court at Nairobi, constitutional and human rights petition number 360 of 2013.
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Lenaola stated that “In the Kenyan context, the two levels of Government; national and devolved,
form the Government of Kenya and the Constitution deliberately limited the role of the Attorney
General to legal proceedings involving the National Government, and devolved Governments are left
to seek their own legal representatives. But it must be noted that his advice as opposed to
representation is to “the Government” in the wider context.” The questions that then arises is, can the
attorney general effectively advise the 47 county governments? And how should the county legal
representatives be appointed?
In the light of article 6 of the constitution which provides that the governments at the national and
county level are distinct and interdependent and can only carry out their mutual relations on the basis
of corporation and consultation, a mist of confusion still looms amongst legal practitioners, legislators
and constitutional experts as to who really is the principal legal advisor to the county governments.
Currently, each county government is forced to hire its own legal officers and appoint a county
attorney every time a legal issue arises within the county. This is really too costly. There is therefore
need for a permanent county attorney who shall act as both the chief legal advisor to the counties as
well as represent the counties in court.
The county attorney’s bill popularly known as the Wako bill, was introduced in the senate to ensure
all county governments set up the office of the county attorney20. The bill proposes to establish the
office of the county attorney which shall consist of the county attorney, the deputy county attorney
and the county legal counsels whose number shall be decided by the county attorney in consultation
with the county public service board21. Section 5 of the Bill proposes the county attorney to be
appointed from amongst persons with at least 5 years working experience as judicial officers or legal
practitioners or in any other legal field. Under section 7, the county attorney will play the following
functions; shall be the principal legal advisor to the county government, shall represent the county
government in court in any matter other than criminal matters, shall advise county government
departments on legislative and other legal matters, shall negotiate and draft all agreements on behalf
of the county government, shall revise county laws, represent the county in all civil and constitutional
matters and liaise with the office of the attorney general when need arises. The officers in the office
of the county attorney enjoy immunity from criminal and civil charges arising out of the exercise of
their powers under the county attorney bill22. The officers shall also not engage in any gainful
employment likely to put them in a situation of conflict of interest23.
In proposing this bill, the senate was invoking its powers under article 96 (2) which entitles it to
participate, debate and approve bills concerning county governments. The bill concerns county
governments as it is aimed at changing the powers and functioning of the county governments by
establishing an office which will give advice to the county government as well as represent the county
20 The County Attorneys’’ Bill was introduced to the senate by Hon. Amos Wako who is the head of the legal affairs and human rights committee of the senate. 21 Section 4 of the county Attorneys Bill 2014. 22 Ibid, section 10 23 Ibid, section 11
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government in court. It therefore meets the threshold of article 110 (a) of the constitution as a bill
concerning the county government24.
If the bill sees the light of the day, it will save the county governments’ the financial burden of hiring
different lawyers to represent the county government in different legal matters and also provide the
counties with an organized legal team necessary for the efficient running of the county governments25.
From the above discourse, it is therefore plausible to conclude that, indeed the enactment of the office
of the county attorney bill is timely as the county governments are grappling with legal issues which
are costing huge amounts of money to solve. The bill is a necessary tool in addressing the lacuna
within our constitution and ensure smooth running of the county governments.
24 The county Attorneys’ Bill 25 Counties to have ‘AGs’ if Bill is passed. Accessed on Wednesday 7th January 2015. Retrieved from www.nation.co.ke/new/counties-t0-have-AGs-if-bill-is-passed/-/1056/2581808/-/ccpvphz/-/index.html
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TAXES AND WALKING THE TIGHT ROPE
Walter Mandela
Graduated from Uganda Christian University with a Bachelor of Laws Degree in 2014
Currently pursuing a Post Graduate Diploma in Legal Practice (The Bar Course for Ugandan
lawyers) at the Law Development Centre, Kampala, Uganda
A tax is defined as a monetary charge imposed by the government on persons, entities, transactions,
or property to yield public revenue by virtue of the sovereignty of the state and for its
support.26Taxation is the imposition or assessment of a tax. The means by which the state obtains the
revenue required for its activities.27Government collects taxes in order to provide efficient and steadily
expanding non-revenue yielding services such as infrastructure, education, health, communications
systems, etc. Tax is the nexus between state and its citizens. Tax revenues are the lifeblood of the
social contract between the people and the state. 28
Tax collection is an extremely delicate issue which
warrants walking on egg shells. In the biblical times in
Israel during the Roman occupation, the tax collector was
considered to be amongst the vilest in society.29 Taxes
have led to some of the bloodiest episodes in world
history. The French Revolution of 1789-1799 is
attributable to the unfair taxation regime which placed
onto the backs of the poor a yoke that they couldn’t possibly carry. Their only alternative was to fight
the system.30The American War of Independence of 1775 – 1783 also has its basis in taxation. Taxation
caused rebellions in Africa (Angola)31 and later in Sierra Leone32 during the colonial times. It even
26 Black’s Law Dictionary 8th Edition Page 1497 27 Ibid 1 Page 1500 28World Christian N, EmekaNkoru, Tax Revenue and Economic Development in Nigeria: A Macro econometric Approach Academic Journal of Interdisciplinary Studies Page 212, published by MCSER-CEMAS-Sapienza University of RomeVol 1. No.2, November 2012. 29 The Tax Collector, http://www.bible-history.com/sketches/ancient/tax-collector.html 30 The French Revolution, 1787-1799, http://www.britannica.com/EBchecked/topic/219315/French-Revolution/2498/The-new-regime 31Tax Wars, http://www.bbc.co.uk/worldservice/africa/features/storyofafrica/11chapter10.shtml 32 Ibid 5
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caused genocide in Namibia.33 This is a peek into the cataclysmic threat that taxation presents to
societies.
Principles have been developed over time which can potentially make taxation a win-win for the tax
payer and tax collector. These principles are called the Canons of Taxation Per for himself.
THE CANONS OF TAXATION
The Canon of Equity: Every person should pay the government depending on his ability to pay. The
rich should pay higher taxes because without the protection of the government, they couldn’t have
amassed and would not be in position to enjoy their wealth.34
The Canon of Convenience: The mode and timing of tax payment should be as far as possible
convenient to the tax payer.35
The Canon of Certainty: The tax which an individual has to pay should be certain, not arbitrary. The
tax payer should know in advance how much tax he has to pay, at what time to pay and in what form.36
The Canon of Economy: The cost of tax collection should be lower than the amount of tax collected.37
The Canon of Productivity: The tax system should be able to yield enough revenue for the treasury
and the government does not have to resort to deficit financing. If a few taxes imposed yield a
sufficient fund for the state, then they should be preferred to a large number of small taxes which
produce less revenue and are expensive in collection. 38
The Canon of Elasticity: The income from the tax should be capable of increasing or decreasing
according to the requirement of the country.39
The Canon of Flexibility: The tax system must be flexible. Changing times and circumstances dictate
that the government should be able to adjust the tax system without difficulty to meet the changing
times and circumstances.
The Canon of Simplicity: The tax system should be plain and straightforward. It should be simple to
understand how to calculate and how much to pay. The forms to be filled should be intelligible to the
tax payer. This avoids the temptation of oppression and corruption on the part of the tax man.40
33 Ibid 6 34 Book V, Chapter 2, Part II Of Taxes, Adam Smith The Wealth of Nations, Cannan Edition, 5th Edition, London; Methuen & Co. Ltd 35 Supra 5 36 Supra 5 37 Ibid 9 38Canons/Principles of Taxation by Adam Smith, http://economicsconcepts.com/canons- of-taxation.htm 39 Ibid 12 40 Ibid 13
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The Canon of Diversity: There should be a variety in taxation. A few taxes would defeat the canon of
equity and would fail to meet the revenue requirements of the state.41
In conclusion, in matters of tax, the state must heed to the wise counsel of Jean-Baptiste Colbert,
Minister of Finance under King Louis XIV of France who stated that “The art of taxation consists in so
plucking the goose as to obtain the largest possible amount of feathers with the smallest possible amount of hissing.”
41 Ibid 14
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LAWYER REPUTATION: CHANGE OF TACTIC.
Annabelle W.
1st year student
Kenyatta University School of Law
Self-improvement means wanting to make better, some (if not all) aspects of our lives. It is logical to
Act on past mistakes and realizations to make today and the future better than yesterday.
Legal profession today is flawed with negative public perception not only in Kenya, but globally. Legal
practitioners have been doing all they can; holding service weeks and judicial marches in a bid to
advance the professions reputation positively. My advice to them is that they need to stop worrying
about the professions reputation because it’s a lost cause.
Public perception comes with direct contact. Lawyers have been perceived to be expensive, corrupt,
defend criminals and political to an extent they
became unruly during the Law Society of Kenya
annual general meeting. Yes, I am aware of the
freedom of expression enshrined in the
Constitution of Kenya. Do these lawyers yell and
be uncontrollable in their own meeting and then
call for service weeks and judicial marches. Really,
who is going to take you seriously?
A change of tactic in approaching the bad
reputation is what they need. The greatest impact
will be achieved not by preaching, but rather
through modeling. Modeling is something which
everyone in the profession ought to do. Lawyer’s
job is service oriented. The only way the can ensure
that the quality of service is appreciable, is through
changing how they treat clients and how they associate amongst themselves. When the service is noble,
everything else will fall into place.
Lawyers have a role to play in the society, and it is imperative that they play it. However, this does not
mean that the public will like it.
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INTERVIEW
Meet Mr. Muhavi Mugambi, a humble but outstanding law candidate who has crossed great strides.
Apart from winning multiple local, regional as well as international moot court competitions, his
endeavors won him an internship at the International Criminal Court making him the first Kenyan
to earn this.
1. How did you first become interested in a career in law?
All along from form 1 at Vihiga Boys High School, I wanted to be a Bio-Chemist. Then my
history teacher reminded me to take some time off and assess my strongest talents apart from
the love for football. It was in form 2 that after reading Bildad Kagia and Nelson Mandela’s
autobiographies that the interest for law began.
2. Many publicly know you as the ‘Grandfather of moot’ but fewer know you personally
so in a nutshell what’s your story?
I am a young chap you know. My grandfather would be surprised with that title on me.
Preference has been made by some to the title of Esquire [Esq]. Ammmmhhh….I can be
described in four words and one phrase. However, But, Yet, Notwithstanding and the phrase
having said that I am a young man of balance. My story is hinged on hope. My mother giggles
sometimes and says ‘they will call you a hope monger’. It is true I talk a lot about hope. Because
the odds of me standing today are so small and so remote that I could not have got to where
I am without some hope. My father left me when I was still a toddler I needed some hope to
get here. I was raised by a single mother I needed some hope to get here. I was not born into
money or great wealth or great privilege and status, I was given love an education and some
hope-those have been my birth-rites.
3. What are your hobbies?
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My Babylonian dictionary informs me that the word hobby means an activity or occupation
which is done for pleasure or amusement. If further points out to me that pleasure means
enjoyment, delight and joy. Therefore it is only prudent to conclude that I consider leisure
thinking and problem solving a higher form of pleasure.
4. Do you have a role model? If so, who is it and why?
I have 17 role models both dead and alive and that list has not grown for the last 7years. But
E.Z. Ongoya and the late Profs. Antonio Cassese and Ronald Dworkin would all rank first.
Any genuine historian who would glaze the lives and times of these men would come to the
ultimate conclusion and ‘they love life and because they love life, they use the instruments of
justice to operationalize the theme of ‘equal justice under law.’ The historian’s work would not
be complete unless he/she does acknowledge the fact that the work ethics of these legal minds
remains unmatched.
5. What things do you not like to do?
I prefer not reading long fictions with plots and characters. I am hardly a conformist.
6. Do you read novels? If so which one are you currently reading?
I prefer reading autobiographies to novels. Every month I make sure I re-read ‘Letter to My
Children’ by Kenneth Kaunda. However, i have just finished reading ‘The State of Africa’ by
Martin Meredith. I have begun reading ‘Dead Aid’ by Dambisa Moyo.
7. What’s your take on the state of security in the nation post Garissa?
My heart goes out to the families of those who lost their lives in the aftermath of the Garissa
attack. The current administration faces enormous challenges in tackling insecurity. The
problem is both legal and administrative. Legal because we do not have harmonized laws that
can aid in tackling this contemporary insecurity issues. It is therefore prudent that the National
Assembly together with the Senate come up with a ‘Homeland Security Act’ that will ensure
the policing units are under one command and afforded the necessary resources and
manpower to respond and stop attacks before they happen. Administrative because
‘corruption’ still acts as an impediment in the prevention of terror attacks.
8. What’s your greatest achievement so far?
I think it is safe for me to say that it would be humanity’s greatest achievement if the Middle
East could have a two state deal between Israel and Palestine; if Boko Haram’s and ISIS would
stop the killings; if the violence in Darfur would completely stop; if beggars in India are
afforded a proper meal and shelter; if Kenya would ultimately concentrate on the ‘have-nots.’
It would be my greatest honor to be part of the generation that provides all that.
9. What motivates you?
Hope.
10. What’s your favorite meal?
Mala and Ugali.
11. How do you respond under stress?
I treat my highest and lowest moments the same.
12. In your view, what are the major problems/opportunities facing the legal industry?
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Judging at the All
Kenya Moot Court
2013 at Kenyatta
University School
of law
I think blind idealism and greed defocuses most of the upcoming young legal professionals.
No one wants anymore to do it for the younger generation that will succeed them. Most ask,
what is in it for me. These young minds have to start giving up themselves to something greater
than themselves. The legal profession should not be termed as an industry, but as a ‘Dignified
Profession’ that administers justice in service of humanity.
13. Give an example of when you have learnt from a mistake
I have made a lot of mistakes. I make sure I learn from each and avoid by all means necessary,
repeating the same mistake again. After our team lost in an international moot court
competition in D.C, I learnt that it is not always about winning, but the enriching experience
that I get out of it and I have carried this ever since.
14. Give us a parting quote;
I educate people on rights. I have done this in most regions of this country and elsewhere.
Something new comes up always. Last week, just last week, I got a woman to know that a
woman too has the right to make a will. Tears filled her eyes. I told her it is not too late.
Interview by Quincy Kiptoo
Riara University
Being interviewed after oral
submissions in United
Kingdom Supreme Court in
2014
27
I am trying to flip the pages of the Precedents book I received as a present some weeks ago
but the old men through their writings are informing that: too much work without play makes
Jack a dull person. Therefore, it is my view that after reading the invaluable law oriented
information herein, we should share a joke prior bidding you a bye till the next Issue.
JOKE OF THE MONTH (LAW)
At the height of a political corruption trial, the prosecuting attorney attacked a witness. "Isn't it true,"
he bellowed, "that you accepted five thousand dollars to compromise this case?" The witness stared
out the window as though he hadn't heard the question. "Isn't it true that you accepted five thousand
dollars to compromise this case?" the lawyer repeated. The witness still did not respond. Finally, the
judge leaned over and said, "Sir, please answer the question." "Oh," the startled witness said, "I
thought he was talking to you."
Source: ICICLE SOFTWARE
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