Friday Quick Hits

Justice Fred Ochieng courtesy The Nation

• A while ago I praised Justice Ochieng's rather robust approach to disqualification.   The  judge has now disqualified himself from hearing the Kamkunji petition after remarks were made against him that he had been influenced.  In this case, although the advocates confirmed that they had full confidence in the judge, the petitioners advocate informed the judge that his client was uncomfortable after a third party made remarks that the judge had been bribed.  The case  now goes to the Chief Justice to shop for another Judge to hear the petition.  Wouldn't it be proper to have the individual making these  remarks substantiate the claim or face contempt proceedings? If litigants are allowed to continue making unsubstantiated allegations  Judges then we would have no judges to hear any case in Kenya!
• This has been the week for stepping aside.   One of the issues by the proponents of stepping aside is that the Constitution, Chapter Six on "Leadership and Integrity" requires that an officer should step aside.   The general intention and spirit of the Constitution is that state officers should have utmost probity in public and private affairs.  Article 80 provides that Parliament shall enact legislation establishing procedure and mechanisms for effective administration of the Chapter.   Article 77 (2) requires a person who contravenes  the provisions of the Article, be subject to applicable disciplinary proceedings which will be provided by an Act of Parliament.   Parliament is yet to enact such legislation and has two years to do so.
• The court has now intervened and stopped the application of increased parking fees in Nairobi.  What a relief!   While court intervention is welcomed, I am not sure that it is the best solution.  Political leaders must be sensitive to public concerns and the court should not relieve them of their obligation to listen to the citizens and take appropriate action.
• The Parliamentary Justice and Legal Affairs Committee has been given TJRC  an ultimatum to put is house in order or face disbandment.   Apart from lack of of political support, I think the TJRC has two problems; the chairman and money.  The Chief Justice should move swiftly to deal with the issue of the Chairman and Parliament and the Treasury should provide a solution to the long term funding of the TJRC.   I doubt the utility of the ultimatum.
• Speech by Professor Githu Muigai at the admission of new advocates this week.

Of Vetting and LSK JSC elections

Whither vetting

I have expressed my views on the issue of  approval by the National Assembly of members of the the JSC here.  My attention  has drawn  the provisions of Chapter Fifteen of the Constitution dealing with Commissions and Independent Offices.  Article 258 (1) provides that the Chapter shall apply to commissions specified in clause (2) to the extent that the Constitution provides otherwise.   One of the Commissions specified is the Judicial Service Commission.

Article 250 (2) provides as follows;

The Chairperson and each member of a commission ...... shall be

(a) identified and recommended for appointment in a manner prescribed by national legislation;

(b) approved by the National Assembly; and

(c) appointed by the President.

The argument made is that Article 250 entitles the National Assembly to approve the Chairperson and each member of the Commission who are then appointed by the President.  Thus, the  JSC members elected must undergo the process prescribed under Article 250.  

My views have not changed because the under the Article 171 dealing with the Establishment of the Judicial Service Commission is self contained.   Firstly, Article 250 (2)  cannot be selectively. The Chairperson and members are not identified and recommended for appointment in a manner prescribed by national legislation they are identified and prescribed by the Constitution itself.   Membership of the JSC is prescribed  by Article 171 and secondly, the section 2(h) of Article 171 only prescribes approval of persons appointed by President.

This is not to say that the National Assembly is powerless.   It still has the power of oversight under Article 96 and also exercises the power of removal of a member of the Commission under Article 251.

The Elections

The full results of the JSC LSK elections are here and here.   The results confirm that time is up for the older advocates is up.  Non of the advocates admitted prior to 1985 advocates got more than 100 votes.   LSK elections  have become very competitive. Aggressive campaigns make it difficult for the older folk to reach out to an increasingly younger constituency.  Most of the advocates are located in Nairobi, Mombasa and Eldoret thus in order to win, a candidate must rack up a huge tally of votes in Nairobi and Mombasa and at least  some of the regions.  

Candidates like Mercy Deche, Rose Odede and Richard Onsongo won big in their respective regions but were unable to move beyond that.   Ahmednasir won big because he collected votes all over the country except in Kisumu where he garnered 5 out of 74 while in Kisii he polled 4 out of 58.  Chacha got most his votes in Nairobi and fewer in other stations.   Among the female candidates, the race was more competitive but the winner needed to rack up huge margins in the key regions.

Apart from the fact that Ahmednasir has been in the forefront of fighting for judicial reforms, it is important to remember that he was elected by the members of the Society for two terms as their Chairman.

Parking Fees

Am not an expert on matters of traffic in Nairobi but I think that unless the Government of Kenya and the City Council develop proper and broad traffic plan that ramps up and improves public transportation,  piecemeal declarations will not solve our traffic jams and all.  And spending 300 shilling per day, almost Kshs. 300,000.00 per year,  on parking  is insane!

UPDATE
Clearly arithmetic is not my forte.  I must be insane!

Parliamentary Overreach

Mr Ahmednasir Abdullahi courtesy of the Nation

I blogged here that the Constitution does not provide for the approval of members of the JSC elected by the Judiciary  and the Law Society of Kenya by the National Assembly.  Section 172(2)(h) only requires vetting  for persons appointed by the President under the said section.   So it was important that the former Chairman of the LSK and member of JSC made the point today at a hearing before the Parliamentary Committee on Justice.  

The point raised by Mr Ahmednasir is important.  He stated,   “I am not seeking the legitimacy of Parliament. Once I was elected, that’s the end of the story. When the Constitution is so young, I think, an interpretation that gives a contrary meaning is dangerous."  ....   “I don’t think you can really expand your powers to act beyond what is provided for here. I have not been identified or appointed. I am elected. If you insist that we go on with this kind of vetting, I don’t think you have the competence. Jurisdiction in law is conferred; it’s never assumed.”   

At this stage of our new dispensation, we must challenge those who seek to appropriate power they do not have.   While some may view otherwise legitimate questions as abrasive, for any lawyer, this is a proper question to ask.  I am sorry to say the members of the Committee did not answer the question whether they, in fact, they had jurisdiction to proceed with vetting.   The fact that the Committee has power  under its rules to vet  nominees as Namwamba contended is to fail the first test of Consititutional law; the supremacy of the Constitution.

If there is any doubt as to why Mr Ahmednasir was elected overwhelmingly by the lawyers, it is that he is able and willing to challenge those who take comfort in the dictates of the  status quo and to do so fearlessly.

Establishment of the JSC

 Section 171 of the Constitution establishes the Judicial Service Commission (JSC).  It is thus not necessary to enact legislation creating the JSC as it is established by the enactment and promulgation of the Constitution.    The 6^th Schedule (Transitional and Consequential Provisions), section 20 provides that the Commission shall be appointed within 60 days of promulgation and that it may not perform its functions unless five members have been appointed. 

The following are the members of the JSC; the Chief Justice, Evan Gicheru; Justice Riaga C. Omollo representing the Court of Appeal Judges; Justice Isaac Lenaola and Hon. Emily Ominde representing the High Court Judges and Magistrates; the Attorney General, Hon. Amos Wako; Ahmednasir Abdullahi and Florence Mwangangi representing the advocates.   There are three vacancies namely;  the person nominated by the Public Service Commission and two persons, one male and one female, nominated by the President and approved by the National Assembly.

Notwithstanding the existing vacancies, the JSC can now begin to discharge its constitutional functions.

LSK JSC elections

The provisional results for the Law Society of Kenya (LSK), Judicial Service Commission (JSC) representatives have been announced.  The male representative is Ahmednasir Abdullahi who received 896 votes against his rival Chacha Odera who captured 482 votes.  The female representative is Florence Mwangangi who received 484 votes against Mercy Deche's  410 votes. The poll was conducted by the Interim Independent Electoral Commission.  Previous LSK elections have been conducted by postal ballot which have often led to allegations of rigging.

Friday Quick Hits

• The campaign for the LSK nominees is in high gear.  Concerns have been raised about some judicial officers calling advocates not to vote for Ahmednasir Abdullahi, the former Chairman for  his profile role in the radical surgery.

• One of my favorite legal websites is the Guardian Legal page.  Read this interesting article on the dying art of court reporting in the UK.  Court reporters are the window through which the public see the process of justice and it is important that they understand this.  I recall, not so long ago, I did a trial which involved some rather famous personalities.  The news items  the following day bore little relation to what transpired in court.  The report merely regurgitated and amplified the allegations that were being put to my client in cross-examination.  The fact that my client denied each and every allegation and the fact that there was no evidence to the back allegations was lost in the headline grabbing story.    It is not lost to me that there is inadequate training for reporters to understand the nuances of a trial, or that reporters are so poorly paid that a party can pay a reporter to report a favourable version of the story.   Anyway, I never take a newspaper court report at face value.

• Another one bites the dust.   The court has now nullified the election of Ngata Kariuki, the MP for Kirinyaga Central. This is one of the most egregious cases where the loser was actually declared winner of the election.  The Kriegler Report on the Constituency results stated, " Our own tabulation and addition of votes from form 16A of all polling stations indicate that a  wrong parliamentary winner was declared. According to ECK/RO the winner was Kariuki John Ngata with 17,219 against Dickson Daniel Karaba with 17,151. Our own additions indicate that Dickson Daniel Karaba’s votes adding up to 17,270 and Kariuki John Ngata’s adding up to 17,268. This has the implication of reversing the parliamentary declaration." It is a pity that it took so long by the court to reach this conclusion.

• The International Centre for Transitional Justice (ICTJ), Kenya has just released its report on Institutional Reform in the New Kenyan Constitution.    The report looks at the ability of the Constitution to right past wrongs.   One  of the issues noted in the report is the lack of a coherent strategy within the Constitution to address past human rights violations.  The TJRC, a pillar of transitional justice is not anchored in the Constitution. 

• There has been a suggestion that the law should be amended to make it easier to for the Chairman of the TJRC to be removed from his position.    The Chief Justice, who is charged with the responsibility of initiating the removal process has been "sitting on the file"  for the last six months!  Am not sure that amending the law to deal with this specific issue would be a solution.   I think greater thought should be given to securing the tenure of members of independent commissions while ensuring tenure does not become an end in itself or an impediment to accountability. 

• ICJ and FIDA have raised concerns about deal making between the coalition partners ICJ and ODM in naming the new Chief Justice and Attorney General.  So far the principals nor those close to them have not commented on this.   Maybe Hon. Karua will raise this issue during PMQ's

Monday or Thursday!

The good old days Bethuel Kiplagat and Betty Murungi in close consultation courtesy APSEA

Professor Slye has now resigned from the TJRC citing lack of commitment by the Government to fund the Commission.   Bethuel Kiplagat is still the chairman while the Chief Justice, in his usual style, still sits on an application to appoint a tribunal to investigate the embattled chairman.  The list goes on and on ......

At the time the Kenya  National Reconciliation and Dialogue  was negotiated, dredging up all things bad since 12th December 1963 and labelling them historical injustices looked like a reasonable thing to do.   Historical injustices, an ill defined yet powerful term, evoked such emotions that it had to be included in the to do list.   No one thought that digging up the compost heap of Kenyan history was a pretty smelly task.  I always felt that the politicians thought that TJRC was like a dustbin to consign all the difficult to deal with issues.

There are certainly issues facing the TJRC which need to be resolved and somebody needs to  do something fast.

Last week the National Assembly purported to  approve two JSC nominees; Justice Lenaola and Ms Ominde.  Under section 171 (2), the only persons  nominated to the JSC  requiring approval by the National Assembly are the one man and one woman appointed by the President to represent the public interest.   While I think it is a good thing for nominees to appear before Parliament to speak about their agenda etc. and for the  National Assembly to exercise it oversight powers under section 95 (5),   approval by the National Assembly except where provided is an act of legislative overreach that must be discouraged. I can't just imagine Justice Omollo appearing before the National Assembly!

Another reason why the Constitution Implementation Bill, 2010 is flawed. 

Nani Shujaa?

 Hayati Mzee Jomo Kenyatta

Tomorrow is Mashujaa Day. What does it mean?   I always thought Kenyatta day was too Kenyatta centric to the point of ignoring the other freedom fighters.    47 years after independence also makes the struggle for independence looks rather remote as we now wage new battles everyday. Battles against disease, corruption, maladministration, tribalism, ignorance and all manner of social ills. 

Mashujaa day should celebrate all our heroes, young and old, those salt of the earth people who make the our hard won independence 47 year ago a daily reality.  The teacher, the doctor, the nurse, the social worker, the athlete who inspires the youth to dream, the lawyer who takes the most hopeless case to fight injustice.  Choose your Shujaa and celebrate!

Monday Miscellany and the new Chief Justice

Justice Paul Kihara Kariuki courtesy of Nation

Hail to the Chief!

Yesterday, the Nation revealed that PNU and ODM has reached a deal  on the person to occupy the hallowed position of the Chief Justice of the Republic of Kenya.   Since he addressed the funeral of the son of the Njenga Karume, it has been an open secret along the court corridors that the son of the famous Bishop Obadiah Kariuki is the chosen one.

Other than validating rumours and quoting unnamed sources and lawyers familiar  with the search for the CJ, the Nation does a bad job of  interrogating the subject.  In fact, a substantial part of the article merely regurgitates the perspectives on various candidates  floated by the just published edition of the Nairobi Law Monthly  and the reported controversies between the bench and the bar concerning the appointment of the next CJ.  I would even go to the extent of  stating that the story is planted as a trial balloon meant to promote the subject.

I am afraid that backroom deals will become the norm and if this is accepted, you can be sure that the Supreme Court will be menagerie various regional, political and ethnic interests.  In an article titled, "Beware political aversion to competition," published in the Weekend Star  last Saturday, Mugambi Kiai makes the following point about the importance of competition,"Now just imagine if the Kenyan team has been picked from competitors who emerged fourth or behind in Kenyan trials. Or were simply anointed on the basis of some unknown criteria to represent the country.   It would certainly have been a bitter harvest.   That is the inevitable result when cream is not allowed to rise to the top and wheat is not differentiated from chaff.   Not too long ago, a wild card approach was attempted where the third representative to international events was not an automatic pick from the national trials.  It failed miserably; the representatives were not only uncompetitive but it also generated considerable bad blood in the camp as some were perceived to be favourites of those within the athletics leadership."

We must be wary of deal making and wild cards.  Let us see who these candidates are, their qualifications, temperament and track record.  If  you want to sponsor a candidate tell us why your candidate merits consideration.   If indeed the choice of the new CJ has been made, it is mockery of the new era supposedly ushered in by the Constitution.

Justice Kihara Kariuki is not a bad judge but is he the best person  out there?  I would agree with unnamed senior lawyer who says that the judge has not made any major judgments  nor done anything that can be heavily criticised.  In short, he is unremarkable.  If he is remarkable show me!

Somebody remind me why we need a new Chief Justice.

Taxes

Mr Waweru is right.  There is no principled reason for exempting MPs and Judges from paying taxes.  The collective decision expressed and accepted by Kenyans is that all state officers must pay taxes.  Section 210 (3) of the Constitution prevents the legislature from enacting legislation that prevents state officers from payment of taxes.   Their jobs are no more important than those of teachers, doctors and  nurses.  Anyone who joins the public service must accept some level of self and shared sacrifice.

Who will I vote for

What am looking for is someone who believes that this is is not business as usual.  A candidate who is willing to stand up and shake the system to its core.   One who will stand up and say no to deal making!

Friday Quick Hits

• The World Justice Project has just published its world justice index here.  Kenya is not doing too well.
•  William Ruto's trial will go on.  The judges ruled that he could raise all issues at the  trial.  Justice Said Chitembwe wants his trial to go on but it has been stayed by the Court of Appeal.  It is these kind of cases that create the perception that the ordinary wananchi can never get justice.  When a wealthy, famous person is charged, he can afford battery of lawyers who quickly apply for stay of the trial in the High Court for years on end.  Ultimately, the courts must deal with these applications expeditiously to avoid the perception that the court's are shielding certain  well connected people.
• The Chief Justice's interview and an interesting take by Kwamchetsi.  My own take on the interview is that the CJ seems to be saying, "Look guys, I am the Chief Justice.   I don't deal with small things, if things go bad my subordinates are to blame.  Since I am the head of the Judiciary, I cannot deal with many people. You know I must be careful whom I deal with as I may be poisoned by my enemies!"
• The word on the corridors of justice is that in fact the choice of a new Chief Justice has already been made. 

UPDATE
Check out this blog and  Inside Kenya's first virtual court  session .

Judicial Service Commission, LSK Elections and other stuff

LSK Secretary Apollo Mboya shows the ballot boxes at the society offices in Nairobi courtesy of Nation

The Council of the Law Society of Kenya has now approved 31 candidates; 17 men and 14 women to run for election to fill  2 vacancies in the yet to be established Judicial Service Commission.   Unlike the ordinary LSK Council elections, this ballot will be supervised by the IIEC and members will physically vote on 25th October 2010 at various High Court stations across the country.  A list of the candidates can be found here.  The list of is composed of a broad section of the membership.   Two lawyers;  George Waruhiu (1969) and Sharad Rao (1960) were called to the bar in the 1960s.  Among the women,  Lilian Mwaura (1975) and Dorcas Nanjero (1979) are the seniormost.     The majority of the contestants were called in the 1990s.  Then there is the fire breathing former Chairman Ahmednasir Abdullahi.

The campaign is now  in full swing with serious caucusing by members on the basis of ethnicity, regional and political orientation.   Recent elections of the LSK have been hotly contested and this one is no different.  The SMS's and emails are already flying around and the CLE seminars have become campaign venues.  The outcome is unpredictable if only because the electorate is an unknown quantity.   A majority of the members of the LSK are now young advocates who have practiced for 15 years or less spread all over the country.   In order to win one has to mount a serious campaign to reach those who are otherwise disengaged from the process.  The unpredictability is  further compounded by the relatively large number of candidates for the 2 positions available.

I hope my fellow advocates take the responsibility bestowed them seriously.

Today the Judiciary ICT Policy and Strategic Plan was launched with great fanfare.  Alas! I can't get a soft copy on the Judiciary  website. 

The new Civil Procedure Rules, 2010 have now been published and take effect three months from the date of publication, that is 10th December 2010.   I use the word published in the narrow sense.  The hard copy is not yet available from the Government Printer for public dissemination.

Let the Games Begin!

George Kegoro of ICJ -K and Grace Maingi of FIDA courtesy of Nation

One of the national values and principles of governance under section 10 of the Constitution is the democracy and public participation of the people.  It is important that at every stage of the implementation of the Constitution  the public is given the right and opportunity to participate in various processes.    I wrote previously that one of the principal objections to the Commission on the Implementation of the Constitution Bill currently before the house is that it excludes the participation of the civil society groups in the nomination process.  It appears that the legislators have now rejected the efforts by the civil society groups to be included in the process.  

One of the arguments made against allowing the Civil Society groups to participate in the nomination process is that they participated in the appointment of the now controversial Bethuel Kiplagat.  This argument cannot stand scrutiny.   It appears that the Honourable Members of Parliament do not understand the very legislation they enact.  Under the Truth Justice and Reconciliation Act, the Selection Panel,  composed of various members nominated by several civil society groups, only receives applications, vets them and submits the proposed nominees to the National Assembly for consideration.  The selection panel forwards 15 names to the National Assembly which does its own vetting and submits names of six  persons  to the President  who formally nominates four persons to serve on the TJRC.  If indeed there was  failure in the process of selection of any of the members of the TJRC then the National Assembly and President, whose task it is to select the chair, must share the blame.

The larger point though is that no process if full proof.  What is important is that there is open participation and transparency.  Civil Society groups represent a cross-section of the people of Kenya and cannot be ignored.  The system proposed only provides room for deals to be made by government functionaries.  The legislature will then rubberstamp the deal made by the principals and we all move on.  The Civil Society can act as a disinfectant but it is the duty of all Kenyans to remain vigilant.

Monday Miscellany

Some issues I flagged over the weekend.

 Justice Isaac Lenaola

Justice Lenaola was elected by his peers to represent the judiciary on the new Judicial Service Commission to be created. He is an excellent choice and has been involved in judicial reforms over the years.  He is one of the crop of young judges  appointed after the  2003 radical surgery.  As a judge he is practical, efficient and effective and it is always a joy to appear before him.   During his tenure in Machakos he managed to deal with the backlog there.  He is now the resident judge in Kakamega.  I think he would, make an excellent Chief Justice.  Ms Hellen Ominde, a magistrate and currently deputy registrar  at the Family Division, was also elected.

I like the robust approach taken by Justice Ochieng' in refusing to disqualify himself from hearing the Kamukunji election petition on the application of Simon Mbugua, the current MP.  Sometimes, advocates will make the most frivolous application seeking disqualification of a judge  for ulterior motives.  The application may be made to intimidate the judge or other judges who may handle the matter, run the clock on litigation or shop for a  particular judge considered favourable.  Some judges just disqualify themselves to avoid presiding over a long, complex or difficult matter.   In the latter case, the judge will merely  state that he or she has disqualified himself for personal reasons.  

The accepted test for a judge should disqualify himself is whether there is a ground for assuming the possibility of bias and whether it is likely to produce in the public at large a reasonable doubt about fairness in the administration of justice.  The test is objective and the facts constituting bias must be specifically alleged and established.

The recent revelations that certain judges are receiving threats is a  matter of grave concern and must be investigated and dealt with  and the culprits dealt with firmly.   Threats of violence against judicial officers  are a world wide phenomenon.  Even the US there has seen an increase in the number of threats against judges.  It is the duty of the government to provide all the security arrangements for the judicial officers so that they can continue their work free from fear.  On the other hand, the public expects judicial officers to be made from sterner stuff and not succumb to threats easily.

Finally, I think it is important when a judge disqualifies himself for personal reasons, he should disclose the reasons on record to the parties for comment.   A judicial officer is employed to decide cases and in the event they cannot hear a matter,  there must be disclosure to the public why the officer cannot hear the matter.  Of course, the nature and extent of disclosure will depend on the  circumstances of the case but disclosure is important if the public is to have confidence in the judicial process.

 

I am waiting to see the  ICT Strategic Policy and Plan for the Judiciary set to be launched.   While it is laudable that the Judiciary is set to move forward with an ICT Plan, care must be taken to ensure that technology does not become a barrier to access to justice.

The interview with the Chief Justice is here.   Just strange that the Chief Justice cannot find weighty matters to justify his sitting on the court of which he is a member!


The judiciary strategic plan 2009 - 2012 can be found here. 

The Wild Card

Section 24 of the Sixth Schedule of the Constitution (Transitional and Consequential Provisions) provides that the present Chief Justice shall vacate office within 6 months of the effective date.  The appointment of the Chief Justice is by the President, subject to the National Accord and Reconciliation Act, after consultation with the Prime Minister and with the approval of the National Assembly.   Unlike section 66 of the Constitution, which governs the appointment of the Chief Justice, in the event the office becomes vacant after the first general election, the recommendation of the Judicial Service Commission is not necessary.

In the absence of the recommendation from the Judicial Service Commission and all the safeguards and procedures provided under the proposed Judicial Service Bill, I am convinced that the next Chief Justice will be a “political appointment.”  The choice may come down to the two principals agreeing on some arrangement.   The President may reserve the choice to select the Chief Justice as his as part of his legacy or appoint a friend or political crony and the Prime Minister  may be given the chance to select the Attorney General as he needs someone to work with post 2012 general election. 

This scenario brings to mind the “wild card” appointment.   Someone not contemplated in the lists being bandied around out there.   There was little expectation that Justice Chesoni would be appointed as Chief Justice. His appointment, at the time, was termed by Nzamba Kitonga, then Law Society of Kenya Chairman as “shocking.”  Bernard Chunga was a wild card, his name did not appear on any of the lists provided by the Law Society at the time.

So who are the wild card candidates?

Judge appointed to take ICC evidence

Justice K. Rawal courtesy Standard Media

It has been reported that  Justice Rawal has been appointed to aid the Hague probe.  This is the same judge who disqualified herself from hearing the Kamkunji election petition on the grounds that she was receiving threatening SMS's from anonymous people.

The authority to appoint a judicial officer to assist in the taking of evidence it to be found at Section 78 of the International Crimes Act which is the local statute incorporating the Rome Statute provides as follows;

 (1) If the Attorney-General gives authority for a request relating to the taking of evidence to proceed, the statement of each witness shall be taken in writing on the oath or affirmation of that witness by a Judge of the High Court.
(2) The Judge who takes evidence under subsection (1) shall -
(a) certify that the evidence was taken by the Judge; and
(b) ensure that the evidence, as certified, is sent to the Attorney-General.

Given the local party and ethnic  aspersions being cast on the ICC probe, Justice Rawal may be considered a safe pair of hands handle the task.

On a different note, all the information on the ICC probe is coming through leaks and anonymous statements made to the press by persons who have seen correspondence and  certain unnamed lawyers and sources.   Given the public interest on this issue wouldn't  it be better for GoK to develop a communication strategy on the ICC issue rather than leaving everyone speculating on what is really happening?