The VWS Experience

Recently, I came across this frightfully apt description of courts penned in England around 1851 by Charles Dickens in his book, “Bleak House”:

“…Some score of members of the High Court of Chancery bar are mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against walls of words and making a pretence of equity with serious faces, as players might

(…)

The various solicitors in the cause, some two or three of whom have inherited it from their fathers, who made a fortune by it, ought to be — as are they not? — ranged in a line, in a long matted well (but you might look in vain for truth at the bottom of it) between the registrar’s red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense, piled before them.

(…)

This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man’s acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give — who does not often give — the warning, ‘Suffer any wrong that can be done you rather than come here!'”

How relevant so many centuries later!

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Day 5 (Paper Chasin’)

Like most of you, I’ve also hit the ground running in this new year. The blind optimism and feeling of newness of yesteryears has been replaced with a sober realisation that a new year is not a new lease on life and resolutions can be as empty as the white spaces they were written on if they’re not backed up with a solid plan of action and concrete steps forward.

This year for me is all about more and more paper. I get my first year’s practicing certificate from LSK anytime now, then there’s that masters graduation, meanwhile there’s the job ladder to climb and looking out for more legal side-hustles.

The paper chase has begun.

A Tale of Two Constitutional Traditions: South Africa and Kenya

For the last two days, the Judicial Service Commission in South Africa has been interviewing the presidential Chief Justice* nominee Justice Mogoeng Mogoeng who is set to replace Justice Sandile Ngcobo at the apex court of the land, the Constitutional Court (Concourt).

I picked up on a key distinction between Kenya and South Africa vis-a-vis key appointments to government. For example, the person nominated to be CJ in Kenya can only be appointed after parliamentary approval. South Africa’s constitution gives the President the sole discretion in appointing the CJ and his nomination does not have to go through parliamentary approval. This simple fact, I believe, illustrates Kenya’s traumatising history with the powers of the Executive. Whereas South Africans have never had to deal with an Imperial President who hires and fires at will and is accountable to no-one in the manner in which he runs the country. However, I know that apartheid South Africa had to deal with an Imperial Parliament that was majorly white and enacted the most oppressive and racially motivated laws ever recorded in human history. Therefore it is clear that the stance taken by the post-apartheid constitutional drafters was to remove a lot of the powers vested in Parliament and provide for clearer limits, checks and balances among the three branches of government.

Whereas here in Kenya, every single person that has been involved in the constitutional-making process, from Pre-Bomas to our Committee of Experts, recognised the urgent need to decentralise the powers of the President and make the Executive Branch of government more accountable to Parliament and more open to judicial supervision and guidance.

But I foresee a problem.

It seems like we have now given the Legislature waay too much discretion in second-guessing and questioning the decisions and proposed actions of the Executive. This problem is prominent especially now where parliamentarians are able to hold the Executive and Judicial arms of government at ransom. MPs, as we know them are a self-serving lot that have proved time and time again that exercise of their constitutional mandate is up for sale to the highest bidder. Parliament is now able to prevent the Executive from living up to its political pledges by dragging it’s feet on enactment of enabling laws or even by blocking the appointment of suitable Presidential nominees.

If you ask me, Parliament is the biggest beneficiary under the new Constitution deliberately because of the decades of mistrust and misuse of prerogative powers by the Executive under the aptly dubbed “Imperial Presidency”. However it is important to remember that these powers have been donated to parliament by the great people of Kenya therefore it is up to us to ensure that parliament exercise their new-found powers in strict accordance with the wishes of the people.
Thus, it was probably in the CoE’s wisdom that a Right of recall provision was included in the Constitution to empower the voters to chuck out their non-performing area MPs.

As we enter the second year since the promulgation of the constitution, I would urge everyone to familiarise themselves with their social contract with the state and cascade that knowledge to others so we can foster a more informed and more participatory democratic culture.

Day 154 (How To Feel)

Hello,

It feels like the month of May Day literally blew past. This is probably why:

Workwise: I’ve been working with Government since the beginning of the year and it’s gradually gotten more and more demanding, challenging but also more interesting. I was lucky enough to find the one government agency that specialises in the one area of law I’m most passionate about and after I shook off the newbie label and got to handle real matters, it’s been down-hill ever since.
But I’m now at a cross-roads. The plan wasnt to settle here. The plan was to get here, get all what I needed and get out… six months, a year..max! Thereafter, the plan was to move to private practice. The corporate world with its sleek offices, flaboyant wardrobe and mega-shilling clients. Well, it’s not so clear what the plan is anymore. I could spend an entire post telling you all the awesome perks of working in gava i.e. the endless work/training trips both locally and abroad (I’m yet to do the abroad ones but I’m *this* close), the countless meetings/conferences/workshops (these may seem like idle stuff but for me, this is where theory meets practice, lots of sharing of ideas and experiences, brilliant for eager beavers in the field like moi) and ofcourse, the flexibility, as in we have fixed hours, we have clear performance contract targets so how you spend the rest of your time thereafter is entirely up to you… this would be the most ideal environment to pull a work/study thing especially for me who’s dreading that LL.M workload. SO all in all, the only advantage private practice has over gava is the pay. And I know I have a responsibility to my housemate and my bro to chip in financially to the household running costs so.. yeah, its quite the pickle. This one firm is really keen on having me start next month so I have until next week or soon thereafter to make up my damn mind.

Heartwise: My heart is fine, thanks for asking. Okay, I’ll open up. Just a little. My heart’s hiding. It must. And since you asked, here’s why it’s hiding. It’s June. Her birthday is coming up. Dont even know why that matters anymore. I’ve already told my heart to MOVE ON. And we agreed it would but alas. Maybe it has something to do with next month marking a year since the break-up? Who knows. Anyways, my heart has had its share of good moments. Mostly through surges of testostrone and ego-stroked adrenaline. Sometimes all it takes is to strike up a conversation with a stranger and have them say something about your eyes or for a female friend to compliment you on a shirt, or a scent or a blogpost or something and just like that my heart comes out of hiding and smiles. Then quickly goes back in again. I still do not have balance. I still do not have peace.

Healthwise: I’m fine too. Kinda, sorta, maybe. It’s just that I cant remember when was the last time I soaked a teeshirt with sweat or had my lungs feel like they going to burst out of my chest, or felt my muscles burn – that good burn, that-workout-firmening-burn. I dont even know when exercise routine went off the tracks but it has. The only courts I go to these days are the ones where you bow when you walk in and you bow when you leave. I am aware that its only a matter of time before its starts to show and although I get PLENTY of exercise in other ways, I desperately want to go back to my regular basketball routine.

Spiritwise: My spirituality is orphan. It ran away from its Catholic home and has been roaming ever since. Had a major fall-out with the Baha’i community that had taken me under their wing so we’ve both opted for silence. Buut, at work, there’s this lady. She’s almost my mother’s age. I share the office with her and she’s a devout Jehovah’s Witness. Boy oh boy, she is relentless with the whole trying to get me back to christianity. She’s waay more persistent that the mormons who once tried to get me to join their faith. The absolute height was when she came with issues of their magazine “Watch Tower” in FRENCH!! Because she overheard me talking to my bro, and she caught a few french words. Unbelievable. It’s been weird at the office but I’m hoping she’ll give it a rest eventually. Today, she caught me staring at her reading her little prayer book or hymn book or pocket bible and she quickly asked me: “V, do you pray?” “When do you pray, V?” “You do remember how to pray, dont you, V?” Aii, I give up. lol.

I know there’s lots I’ve left out. But it’s a new month, so I’ll try and come back on here and fill in some of the other stuff as time progresses.

In the meantime, if you bump into me walking around Nairobi somewhere headphones and all or cruising along in Rusty (who is bumper-less at the moment.. long story), I hope something positive comes to mind.

Take care,

Cloudvillian

Day 215 (Final Reflections on the Proposed Constitution)

Mood: Calm

Mode: En faisant le bilan

Thoughts:

My name is N.V and I am citizen of Kenya. These are my final reflections on the eve of the August 4th 2010 Referendum on the Proposed Constitution of Kenya.

The quest for Kenya’s new constitution has polarized society to the extent that even usually neutral institutions such as the media and religious society have become partisan. These institutions would ordinarily serve as arbiters when society is embroiled in conflict. For the past three months in a row, the constitution has been Kenya’s most debated subject to the point where it overshadowed the just concluded World Cup tournament in South Africa.

Sadly, this constitutional debate has been reduced into a contest of Greens and Reds on a handful of contentious issues which have been conveniently isolated from the contents of the draft constitution as a whole. This minimalist approach to constitution making has overshadowed the strong and sound fundamentals that underlie this proposed constitution. Let us rise above academic, moral, political debates over the few contentious issues dividing us and look at this constitutional process as a whole. Shall we? Why did Kenyans spill blood, break limbs, get detained or even maimed? The real struggle for a new constitution has been to strengthen and protect human rights and good governance; achieve government accountability; facilitate generational and gender equity; promote and safeguard separation of powers; foster open politics; establish a high quality civil service capable of administering government policy effectively and impartially; address corruption broadly; foster an open and productive debate between government and civil society; and enhance economic transformation and social justice and access fair and quick justice for all.
My dear friends and fellow colleagues, we have reached the proverbial crossroads: Tomorrow, we will all be going to the polls to vote whether we accept or reject the proposed constitution of Kenya. It is unprecedented for any country of the world to have had one let alone two constitutional referendums, not to mention being the most expensive and longest review process in post World War II history. And the results? Nothing yet. But as Kenyans we have still yearned ever so patiently for a new Constitution. Why? Two reasons: we wanted and still want the best possible constitution in the world; one that would defend individual rights and freedoms while at the same time safeguarding national interests and secondly, Kenyans wanted to be involved in the constitution-making process. We wanted a constitution we can own and call our own. And I agree that “owning” this constitution lies in healthy disagreement and robust debate, which in our case has led to the formation of the Yes and No camps. But this is not a winner-takes-all contest since we are all Kenyans and our primary objective should be to move Kenya not for our personal benefit but for the greater good of this and the coming generations.

A few years back, a writer by the name of Lev Grossman published an article entitled ‘Forward Thinking’ in which he said: “Albert Einstein, in 1932 remarked that ‘there is not the slightest indication that nuclear energy will ever be obtainable ….. Thomas Edison thought alternating current would be a waste of time…. Franklin Delano Roosevelt once predicted when he was Assistant Secretary of US Navy that airplanes would not be useful in the battle against a fleet of ships…. In 1883, Lord Kelvin, President of the Royal Society and no mean scientist predicted that ‘X-Ray will prove to be a hoax.” To all this Grossman concluded that “there is nothing like a passage of time to make the world’s smartest people to look like complete idiots.” Borrowing from Levy’s wisdom, I am of the view that those who are opposed to the proposed constitution may think that they are the smartest people but time could prove them ‘complete idiots’.

As Kenyans, we know that a constitution will not magically solve all the contentious political problems of this country. But it will provide a shared spirit and framework for re-structuring and re-organising our politics, economy and society in a democratic and just manner. Our new proposed constitution will therefore become a focal point on which political leaders can develop a political culture, which enlivens and fosters integrity. A constitution will not establish constitutionalism. A constitutional culture and a prudent constitutional jurisprudence (in which the three branches of Government, lawyers, academics, citizens, the civil society, among others understand their respective roles) establishes constitutionalism.
A “good” constitution is not drafted; its hopes and aspirations are not in its elegant and spotless phraseology. A good constitution is lived and experienced; its strengths and hopes are in its interpretation and jurisprudence.

I am afraid that Kenyans will be searching for a perfect constitution for a long, long time unless they realize the simple truth that consensus-building on every single contentious issue is an exercise in futility.

Three Sides To Every Copyright Infringment Story..

copyright

This past weekend I edited one of my photographs a la Obama “HOPE” poster as you can plainly see.  Thereafter I saved it as my display picture on my gmail and skype messaging accounts.
Next thing, a friend of mine jokingly points out that as an aspiring intellectual property lawyer, I should know better than to infringe the copyright of Mr. Sheppard Fairey, the artist behind Obama’s unforgettable campaign poster.

At this point, I then took it upon myself to educate my misguided friend on the complex yet intriguing area of law that is copyright infringement. In order to do this, lets assume hypothetically that Sheppard Fairey himself decides to sue me for copyright infringement

In order to establish copyright infringment  through the reproduction or adaptation of an artistic work such as Fairey’s Obama poster, you have to prove that my work displayed above is both an objective and subjective copy.

1. The objective element of this enquiry entails an examination of whether there exists an objective similarity between the copyright work and my alleged infringing work. A court will determine “objective similarity” by deciding whether my work is a “chinese copy” (i.e. identical copy) or whether there exists a prior subject matter. What this means is that it is quite possible that the close ressemblance between my work and Fairey’s is simply due to the fact that both our works incorporate common prior subject matter. In the present case, we know that Fairey’s poster was an adaptation of Mannie Garcia‘s photograph of Obama. Therefore the existence of this original photograph in addition to the insertion of my own picture and the word: “COPE” rules out the argument that my work is an exact replica of the Fairey’s work.

2. The subjective element of this copyright infringment enquiry involves proving that there exists a causal connection between the original work and the alleged infringing work. This would be the most difficult part of my case. Causality can be established by using a simple “sine qua non” test: “but for Fairey’s work, my work would not have existed”. Although there may be a causal nexus between the works, it is still very possible for me to argue that I may have borrowed the colouring and format of my work from Fairey but the selection of my photograph and its subsequent editing were carried out independently and bear no substantial ressemblance to Fairey’s work.

Long story short, my picture is not a copyright infringement of Fairey’s poster.

Hang on, what if we took this argument one step further and asked whether Mannie Garcia (the photographer who took the original photograph of Obama) can sue Sheppard Fairey himself for copyright infringement of his work (i.e. the original photograph)?

EXHIBIT A:

copyright

One important clarification is that because Mannie Garcia was a freelance photographer working for the Associated Press (AP) at the time he took the picture you see displayed above on the left hand side, the AP effectively own the copyright to the photograph.

Now, coming back to the question I posed earlier: Can the Sheppard Fairey sue the AP for copyright infringement?

Well, actually.. HE DID!

If I was Fairey’s counsel on this matter I would argue that his work complies with all the requirements for the subsistence of copyright namely originality, creativity, and material embodiment. He’s a creative artist and he’s substantially changed the image that was made as a work of photojournalism by cropping a small portion just the Obama picture and transforming it.

On the other hand, if I was the attorney representing the AP, I would strongly argue that Sheppard Fairey’s work DOES INDEED amount to copyright infringement because he took out the “heart” of the photograph i.e. what we lawyers call the “heart and essence of the work” and undertook no transformation of the photograph whatsoever. Colouring it doesnt substantially change the original photo; that’s like colorising a black and white movie and it doesnt change it!

As you can see, I could defend either Fairey or the Associated Press in any court of law.

It all depends on who’s your client i.e. who’s paying me!