Friday, August 26, 2016

Mr Opalo is on the right path

The Banking (Amendment) Act, 2016, is now law and the Banking Act is now amended to ostensibly protect depositors and borrowers from banking institutions' rapaciousness when it comes to the niggly problem of interest rates paid for deposits and those charged for loans. By law, now, if a banking institution takes your money in deposits, the minimum it can pay in interest on the deposits is 70% of the Central Bank rate and if it advances a loan, the maximum it can charge as interest is 4% above the Central Bank rate (though various respected pundits have pointed out that the surprisingly vague language of the amendments leaves much to be clarified by way of regulations). Whether this will reduce the overall cost of credit in the market or boost savings rates among depositors is contested ground.

A respected analyst points out that there are many variables that affect the cost of credit, among these are a robust statutory environment and an efficient judicial system. In order for banking institutions to advance credit, this is what he suggests parliamentarians have neglected in their zeal for populist laws such as the Banking (Amendment) Act, 2016:
Second, Kenya needs a 21st century commercial legal system, fully fitted with bankruptcy laws that give risk takers a second chance. Streamlining commercial laws will bring certainty to the debt recovery process when debtors default. It will also ease the bankruptcy process and give risk-taking entrepreneurs second chances. Again, thinking critically about how to reform the practice of commercial law in Kenya – through legislation and further reforms in the Judiciary – requires more work than waheshimiwa are willing to put in.
Read more at: http://www.standardmedia.co.ke/article/2000210233/new-bill-seeking-to-fix-borrowing-rates-in-kenya-misguided

Second, Kenya needs a 21st century commercial legal system, fully fitted with bankruptcy laws that give risk takers a second chance. Streamlining commercial laws will bring certainty to the debt recovery process when debtors default. It will also ease the bankruptcy process and give risk-taking entrepreneurs second chances. Again, thinking critically about how to reform the practice of commercial law in Kenya – through legislation and further reforms in the Judiciary – requires more work than waheshimiwa are willing to put in. http://www.standardmedia.co.ke/article/2000210233/new-bill-seeking-to-fix-borrowing-rates-in-kenya-misguided
Banking institutions in ideal markets go out of their way to ensure that their risks are properly hedged. This could take the form of interests that they either pay for deposits (keeping them as low as they can get away with in a competitive market) or they charge in respect of loans they advance (charging the highest rates that they could without jeopardising the likelihood of repayment). But interest rates can also be affected by the quality of the judiciary and the commercial laws of a country. In light of the enactment of the Companies Act, Insolvency Act and Limited Liability Act in 2016, and the existence of the Banking Act, the Sacco Societies Act, the Capital Markets Act and the Central Bank of Kenya Act, among several others, the commercial laws of Kenya are not the problem any more. The judiciary still has a long way to go, though.

It isn't enough to hire more judges and magistrates when the integrity, speed and legitimacy of the judiciary remains in doubt. When it comes to things like bankruptcy or insolvency, debt-collection and contract disputes, a corrupt, slow, inept and illegitimate judiciary is as much a hindrance to credit-creation as high interest rates on loans. So too are an ineffective public prosecutor's office and police investigation forces; if the DPP is incapable of swiftly and surely prosecuting bank fraudsters, conmen and other finance-sector criminals and if the police don't have the technical expertise to investigate these kinds of crimes, fewer and fewer (imprudently managed) banks would be willing to advance loans in these kinds of markets.

In Kenya the problem has never been the law but its proper and fair enforcement. Regulators, public prosecutors, police and the judiciary have been accused of picking and choosing which of our laws to enforce robustly and, more importantly, against whom to enforce these laws. It isn't enough to declare the constitutional principal of equality before the law, but these institutions must actually live by that principal. But when all of them pick and choose which financial crooks to prosecute or which tone a financial crimes prosecution will take, they undermine peoples' and investors' faith in the justice system and how much money they are willing to commit in such an economic system. President Kenyatta may have done the right thing by assenting to the Banking (Amendment) Bill, 2016. But he needs to do more to ensure that the entire financial system, in the end, never needs statutory bullying to offer truly competitive interest rates.

Trust, but verify, Nairobi style

First, an apology. In the run-up to the last General Election, I wrote at length in these pages how Nairobians had to elect Dr Evans Kidero – at the time viewed as a polished corporate titan – and reject the stone-thrower of Embakasi.
What a mistake. Today’s Nairobi looks worse than the worst days of rot and decay in the 1990s when mayors went by names such as "Magic" Mwangi; garbage, crime and potholes were the order of the day and kanjoras were known better for their sure aim with chairs during monthly wars at City Hall than offering services to residents of the capital. August 6, 2016
But Miguna has one huge advantage which basically virtually no other Kenyan politician can boast. He is a clean man untouched by the stench of corruption which has reached crisis proportions at every level of government from the very highest to the lowest ones in every village.
If Nairobians want a fresh start, they can make a bold statement to the rest of the country by donating to Miguna’s campaign because he won’t spend any money buying them. I will certainly consider it. August 15, 2016
These are extracts from Murithi Mutiga's column in the Sunday Nation. And having read Miguna Miguna's manifesto, I believe that there are many Nairobians who are doing penance for ever supporting Evans Kidero and who believe, fervently, that Miguna Miguna is the answer. I would caution them. They should do what they should have done when considering Evans Kidero's candidature in 2012/2013: trust, but verify.

The statutory environment is largely settled today when it comes to devolution and devolved government. Chapter Eleven establishes the broad outlines of devolution and devolved government, while the details are provided by the County Governments Act, the Urban Areas and Cities Act, and many regulations made under the repealed Local Government Act. Devolved governments are also regulate by the Public Finance Management Act, the Public Audit Act, the Public Procurement and Asset Disposal Act and the Anti-corruption and Economic Crimes Act. Any candidate who wishes to govern Nairobi mus be intimately familiar with this statutory environment before they may even propose an anti-corruption plan of action.

The policy environment, too, is largely settled and the data underpinning the policy environment is available both online and from specialised State agencies such as the Kenya National Bureau of Statistics and the Kenya Institute of Public Policy Research and Analysis. Private think tanks such as the Institute of Economic Affairs have also contributed mightily to understanding Kenya's public policies, including public policy in relation to devolved government and their data and analysis is also available to the interested party. An aspiring governor of Nairobi must take a keen interest in these things if he or she is to propose a public expenditure scheme for the purposes of a students' bursary, public infrastructure development and public service delivery.

It is the political environment, though, that continues to give us pause, isn't it? Mr Mutiga points out that the tribal maths being relied on to divide the Nairobi vote banks is likely to be used to lock in votes for the incumbent as well as for his rivals. It is why the "right" political party matters to them and why Mr Miguna has chosen a different path: standing as an independent candidate. Indeed, it is Mr Miguna's bold declarations on everything under the Nairobi political sun that differentiates him from Evans Kidero, Mike Sonko, Dennis Waweru, Margaret Wanjiru, Esther Passaris and Eugene Wamalwa. If there are any Nairobians who trust Mr Miguna, they should verify that their trust is not misplaced.

It is almost impossible to prove a negative. But it is possible to assess a person's preparedness for high political office based on their acts of commission and of omission. Since Mr Miguna's return from political exile (as he likes to think of his long sojourn in Canada), he has contested and lost the Nyando Constituency ODM nominations, played a role in the political campaigns of Raila Odinga, has served in Mr Odinga's office when the latter was Prime Minister, been suspended from that office, refused all entreaties to return to work, shown and abandoned an interest in the Nairobi governor's office and appeared frequently on TV shows to launch polemical broadsides on his enemies and opponents. I challenge any of Mr Miguna's various boosters (including Mr Mutiga) to identify one public service achievement of Mr Miguna's whether or not he was a public servant. Just one.

For sure Mr Miguna has not been implicated in any corruption scandal but for sure, too, Mr Miguna is not remembered for doing anything for the residents of either Nyando or this benighted city except for being reminded in the most strident tones that we have been foolish to vote for thieves and drug dealers and that we don't know any better. Mr Miguna is offering to save us from ourselves and our tormentors. However, he doesn't support his offer with anything more than a screed against his enemies and opponents masquerading as a manifesto. It is invaluable to be reminded that some candidates are idiots, thieves, con artists and drug dealers; but their failings are in no way an acknowledgment that the one with the prescience to highlight them is qualified to govern our city.

So far, Mr Miguna has not demonstrated that he has a keep appreciation for the statutory or policy environments within which he will have to govern. None of his promises seems to be founded on any data. Perhaps his "economic blueprint" which he promises to unveil soon will shed some light on his preparedness. Until then, I will not hold my breath.

Monday, August 22, 2016

Fair or just?

Before you wig out, let's understand one thing: the judiciary exists to administer justice. Not right or wrong (except in the context of statutory ad constitutional construction) and definitely not about fair or unfair. The administration of justice revolves around provable facts and the proper interpretation of the Constitution, Acts of Parliament and the precedents of the judiciary itself. The administration of justice is not engineered to always arrive at fair outcomes but just ones. 
 
In this I agree with the Attorney-General: the judiciary has to be consistent in its interpretation of the Constitution, statute or precedent so that similar facts will more often than not lead to a similar interpretation of the law and similar judicial outcomes. Of course, every now and then, the judiciary must reconsider a prior decision and the tradition it has established in light of any new facts, a change in the law (or a Constitution, as happened in 2010) or even a new understanding of the meaning of key legal principles or concepts. The judiciary should not hold onto a particular interpretation of facts or the law simply because that is how it has always done things. But if the judiciary is, in effect, to change its mind about something, it must do so openly and clearly, setting out its rationalisation and reasoning.

It is why it is important to distinguish between what we wish to be and what is; we may wish for both a just and fair judicial process, but we only have one designed to dispense a justice that is often unfair. What we must campaign for is a fair society that shouldn't rely on the judiciary to promote fair outcomes. In the here and now, the judiciary is least-equipped to push this nation towards fair outcomes, only just ones. One of the hardest things to admit to ourselves is that it is those with the wherewithal to employ well-trained and experienced lawyers who are most likely to find both justice and fairness in the halls of justice. More often than not, it is undeserved.

If you doubt this, think carefully about the two killings by Tom Cholmondeley. In the first instance, the Attorney-General couldn't successfully prosecute the racist killer. In the second one, even though the Attorney-General secured a conviction after almost three years of trial, the killer was set free after serving only eight months. Yes, he was convicted of manslaughter and not murder, and yes he had been incarcerated for the entire period, but only his friends, family and lawyer believe that the sentence was both just and fair.

Especially in a time of political and social transition, such as what Kenya is undergoing, it behooves the judiciary to be twice as careful to appeals for progressivism in the manner that it interprets or applies the law. We are no doubt in need of changed circumstances but that change must not be driven by a committed, hardcore minority, but must come from a broad mandate from the widest number of Kenyans. Online bloggers or social media warriors may represent a vocal minority, but unless they can prove it, I doubt very much that they speak or write for the majority of Kenyans.

If we are to drive this nation towards providing or guaranteeing fair outcomes, this process must involve everyone and every institution, not just the political ones such as the government or the judiciary. Religious institutions must rebuild the trust they once enjoyed as should educational institutions. We must restore such tools as shame in our arsenal of social change because it is not right that men and women responsible for the fates of hundreds of thousands of young people will shirk their responsibilities when things go wrong but bask in the glory obtained through blood, sweat and tears when victory is won. Anyone with an ounce of shame would resign when things went wrong on his watch.

I don't think the Attorney-General was wrong to propose that consistency is sometimes better than being right because he too must realise that "right" is never a binary condition, but a fluid one, shaped by evolving circumstances, facts and, yes, laws.

Thursday, August 18, 2016

Olympian humiliation

Catherine Nyambura Ndereba was the first woman in the world to win the Boston Marathon four times: 2000, 2001, 2004 and 2005. She was selected as the Kenyan Olympic Team Chaperone and accompanied Kenya's Olympians to Rio. But an athlete who made Time Magazine's 100 Athletes to Watch (at No. 38) in 2008 at the age of 36 was treated in one of the shabbiest ways by the National Olympic Committee of Kenya. First she wasn't accredited as a member of the Kenyan team and more shamefully, she was left to fend for herself in Rio de Janeiro, organising her accommodation and other needs without the support of NOCK. She was not alone.

In 2008, rumours were flying thick and fast that the Beijing Olympics were an opportunity for hyenas to feast at the expense of athletes' preparedness or management. The scalawags responsible were senior officials of the Ministry of Sports, Athletics Kenya and NOCK. The same rumours were rife in London in 2012. In Rio 2016, they are no longer rumours; they are provable facts.

Julius Yego, who remained unnoticed by both the Ministry of Sports and NOCK until his surprise first place finish at the 2011 All-African Games in Mapupto, Mozambique (where the national organising committee had almost refused to fund his travel and accommodation), almost didn't travel to Rio because his air ticket "was missing". A coach was sent home for "attempting to impersonate an athlete" as NOCK denied knowledge of how the man had made it to Rio in the first place. It turns out that the coach, John Anzrah, had also not been accredited as part of the Kenyan team and had begged Kenya's Ferguson Rotich for his badge so that he could gain entrance into the Athletes' Village for breakfast. I want you to picture the image of a sixty-one year old man begging a 26 year old man for food and let the image remain imprinted in your mind.

It also turns out that for every Kenyan Olympian, the giant sports' apparel manufacturer, Nike, had supplied eight pieces of kit. The interweb has been replete with outraged tales of athletes who received one or two pieces of kit (or none at all, like the unfortunate Mr Anzrah) so much so that during the opening ceremony, Kenya was notable for its shambolic procession where different styles and colours were on display. As of yet, NOCK has been unable to fully explain where the Nike supplies went though I have no doubt that in a month or so, a fully-kitted, Nike-branded duka in one of Nairobi's shiny new malls will be selling Nike Olympic kit at a smart profit.

Kenyans have already lost faith in many institutions of their government; the last two bastions of fairness and integrity we had faith in were the Kenya Defence Forces and the sports fraternity (save for the seemingly irredeemable football sector), especially Kenyan athletics as represented by Athletics Kenya and NOCK. But since London 2012, that faith has been truly undermined and not only are Kenyans now willing to entertain sometimes farfetched allegations of doping, Kenyans no longer care enough to even launch online polemics against the poisonous presence of the current leadership of sports in Kenya: the Cabinet Secretary, his PS, their mandarins, and the I-will-only-let-this-job-go-over-my-dead-body officials of both Athletics Kenya and NOCK. Petty theft of athletics' kit under the incompetent oversight of the Ministry, Athletics Kenya and NOCK is the tip of an ugly iceberg made up of corruption, tribalism, sexual harrassment, sexual assault and, yes, doping.

One of the strangest solutions, seemingly endorsed because of its sense of finality and bandied about wildly and stupidly, is the death penalty for those who are destroying such venerable institutions as Kenyan athletics. The harsh language of violence is, ironically, being transferred to an institution established precisely so that the world could avoid violence. Those responsible for the problems in Kenyans athletics must be punished, but we must keep a sense of proportion when doing so. If they have stolen, let them pay back what they stole plus a hefty interest. If they have enriched themselves at the expense of our athletes or our national honour, let us confiscate their ill-gotten wealth plus a hefty interest. Let them lose their pubic positions and let them be banned for life from ever participating in Kenyan athletics. If need be, let us impoverish them so that everyone else will see that there are bad consequences for doing bad things. Let us not cover up our hypocrisies with state-sanctioned killing, no matter how much closure and finality we will experience.

Some of us suspect that nothing serious will ever be done. Reports, most certainly, will be written by parliamentarians and ministry mandarins and recommendations will be made about what should be done to improve things. Similar reports have been written since Henry Kosgey played a commanding role in the organising of the All-Africa Games in Nairobi in 1987. But where we are running with the hare and hunting with the hounds, our hypocrisy will not allow us to reform sports federations or their management or demolish the edifices of corruption that they have built. Not when a Kenyan minister will drag a bodyguard to a nation 25,000 miles away where both are not only unknown but definitely not at risk simply because it is in his power to do so. The stupidity would be funny if it didn't lead to such humiliating outcomes for Catherine Ndereba, John Anzrah and Julius Yego.

Why are they still being vetted in public?

Do you believe that "police reforms" are even taking place? Not many people do any more save for the cohort at the heart of policing who believe that reforms involve the purchase of new vehicles and equipment. Policing seems - and police vetting seems to confirm this - one of the most corrupt public services. Ever. And that too in a public service where the scale of procurement scams seems to get bigger and bigger with each revelation.

Why the national Executive continues to permit the continued public vetting of policemen defies all logic. Recent public admissions by policemen - on camera too - have painted the police service as one of the most effective business schools in the world. Senior police officers have been at pains to explain the sources of multi-million shilling mobile money transactions, multi-million shilling land holdings and multi-million shilling bank deposits as being the proceeds of peer largesse, investment activities and grants and donations from complete strangers for jobs well done.

What we have witnessed, though, apart from the not-so-subtle admissions of corruption, is a police service whose senior echelons espouses a philosophy that has refused to advance in any meaningful way in its professional capacity. More senior officers are unaware of their responsibilities not only to each other as policemen but to the communities they serve in. You wonder how someone is promoted to a senior rank without understanding intimately the rank structure of the service but that wonder turns to understanding when the same policeman is unable to explain how one hundred million shillings passed through his mobile money account in four years. There is an intimate connection between the corruption of the police service and its deteriorating professionalism.

When a taxi operator who was the complainant against a policeman who had shot him without cause was abducted, together with his lawyer and another taxi driver, by policemen, tortured and murdered, few Kenyans sought to ask whether or not police reforms were "ongoing" because deep down in their hearts they knew for a fact that they are not. When a policeman professed fealty to al Shabaab and murdered several of his colleagues in a remote outpost, no one seemed outraged anymore, not even his superior officers or the Cabinet Secretary. When a member of the elite General Service Unit not only stole weapons and ammunition from the police but also deserted the service and is alleged to have participated in armed robberies (and is still at large), it didn't even rate the first five pages of any major national newspaper and only received fifteen seconds on the 9 o'clock news.

The decay in the police service was evident when the service attempted to recruit ten thousand new officers and couldn't because many recruits had paid hefty bribes in order to be recruited. You should ponder that. The men and women whom we entrust the duty of enforcing the law committed offences in order to become policemen and we did nothing about it: we neither prosecuted the bribe-givers nor the bribe-takers. We shouldn't be surprised that some policemen are worth one hundred million shillings and some are capable of raising seven million shillings a month "for their superiors." The only reforms that seem to have taken place in the police service revolve around the numbers involved; the fifty-shilling bribes of the nineties are no more.

Wednesday, August 17, 2016

Allow me to retort

No matter how hard or fiercely the cartels fight or resist, their time is up.
The Majestic People of Nairobi from all walks of life, races, creeds, religions, faiths, gender, social classes and ideological orientations are fully behind the Transformation Team.
Malicious lies, distractions, diversionary tactics and inept propaganda churned out by hungry and desperate armies of cartel surrogates and messengers hiding under nom de plumes, fake handles and professional monikers such as "media personality," "investigative journalist," or "communications consultant" will neither succeed nor slow us down.
A patriotic people united in and for a cause will never be defeated!
The Majestic People of Nairobi - both locally and abroad - are determined, disciplined, committed and boldly marching ahead.
We are going to close the deal by 10:00 a.m. on Election Day.
Nairobi City County number 47 shall be free of the cartels, clean from garbage and prosperous under our Transformation Team. Viva Nairobi! Viva!Miguna Miguna

car·tel kärˈtel/ noun: cartel; plural noun: cartels an association of manufacturers or suppliers with the purpose of maintaining prices at a high level and restricting competition.

In our peculiarly Kenyan context, "cartel" is not used in the same sense it is used when the breathless media talk of "Colombian drug cartels" or the business press talks about the "energy cartel" composed of the Government-sponsored KenGen, Kenya Power, Geothermal Development Corporation, Ketraco, Kenya Pipeline Corporation and National Oil Corporation of Kenya. It is used to connote a group consisting of corrupt, ineffective, moronic and tribalistic elected representatives and their enablers. Enablers include cartoonists, bloggers, paid newspaper editors and others who dare challenge the wit or wisdom of the candidate.

The word used to describe the enablers is "surrogates" that is, in online interactions with the candidate, the enablers take on the persona of their cartel masters and adopt the cartels' positions. The surrogates are hungry and desperate, presumably channeling the hunger and desperation of the cartels because, by "10:00 a.m. on Election Day," the deal, presumably the destruction of the cartels and the defeat of their plans, will be sealed by the candidate and his Transformation Team. 

(I use the word "candidate" loosely; the election date has not bee announced and the submission of nomination papers to the electoral commission is yet to be undertaken. For the purposes of my diatribe (noun: diatribe; plural noun: diatribes a forceful and bitter verbal attack against someone or something), I shall use it as I believe the candidate intended to use it: a statement of his intentions to contest the governor's office at the next general elections in 2017.)

Those who have regularly read this blog know that my disillusionment with the incumbent governor is total and though I enjoy the colourful antics of the Senator, I don't believe that he is a good candidate to be Nairobi's next governor. I have no views about the suitability otherwise of the Member for Dagoretti South and I am wholly convinced that the chairman of The National Alliance and nominated member of the National Assembly is incapable of contextualising and, therefore, solving the intractable challenges this city faces. As for the former Member for Starehe, her behaviour immediately before and after the death of her estranged common-law husband shows that she is unfit to be elected to the office of governor too.

The candidate promises to release his manifesto "soon" as well as launch a website and publish an "economic blueprint" for Nairobi city. In his latest screed (noun: screed; plural noun: screeds a long speech or piece of writing, typically one regarded as tedious), he promises a prosperous Nairobi free of cartels and garbage. This in addition to his previous promises of public infrastructure and green spaces for young people. Inasmuch as the candidate claims the mantle of independence, he is pretty much no different from the other candidates in the nature of his political promises or in his commitment to being held to account for the promises.

What sets the candidate apart, in a crowded field with bloated egos, is that the size of his ego defies all known laws of nature or politics. He is undoubtedly a very clever man; no one practices law as a barrister, solicitor or mediator for fifteen years or so without having some smarts. No plays a part in the appointment of Kenya's only second Prime Minister without having grey matter of the invaluable kind either. But even compared to the inimitable and colourful Senator of Nairobi City, the candidate's ego defies all logic in that it is almost exclusively founded on his view of himself (hence, I believe the lack of self-aware irony that only the sad ones tend to retweet and "like" their own tweets).

The candidate will never acknowledge that he is not the only one to have read Kenya Vision 2030, the Constitution of Kenya (as well as the former constitution), the Urban Areas and Cities Act, 2011, the Intergovernemtal Relations Act, 2011, the Transition to Devolved Government Act, 2012, the County Governments Act, 2012, or the repealed Local Government Act (including the Bye-laws of the City of Nairobi made under under the repealed Act). He will never acknowledge that those who have read these documents have also comprehended them, perhaps not to his degree of intellectual comprehension, but sufficiently so that we will not be easily hoodwinked by politicians' honeyed words. 

It will probably be the equivalent of an intellectual enema for him to admit that our reading of the political tea-leaves is clear-eyed, and not blinded in a mental darkroom of roiled emotions and paranoia (noun: paranoia a mental condition characterized by delusions of persecution, unwarranted jealousy, or exaggerated self-importance, typically elaborated into an organized system). The only way either of us will know the accuracy of our positions will not be when the deal is sealed on Election Day, but when the returning officer for the election of the Governor of Nairobi City county announces the results of the election. Not a moment sooner. (How this simple understanding of the Elections Act, 2012, escaped an advocate of fifteen years' standing defies logic.)

What I want

It is now clear that Evans Kidero never had a plan for Nairobi City, Rachel Shebesh will probably never have a plan for Nairobi City, Mike Sonko's plans remain in the Lone Ranger mould, Dennis Waweru's plans can only be understood by Dennis Waweru, Johnson Sakaja's plans are both elitist and asinine, and Miguna Miguna's plans might never see the light of day given his overweening paranoia that "cartels" are fighting him and that "cartels" have hired the likes of yours truly to write scurrilously and defamatorily about Miguna Miguna.

This is what I want for my City.

First, a proper investment programme to rebuild and expand Nairobi City's official markets, including Gikomba, Burma, Kariokor Market, Jericho Market, Umoja Market, City Market, Kenyatta Market, Ngara Market, and City Park Market. The programme should also take into account the old neighbourhood markets such as the ones that came pre-packaged in Buru Buru, Doonholm, Ngumo, Ngei, Langata, Westlands, Komarocks, Emabakasi, Kilimani and Milimani. The programme should forcus especially on expanding capacity so that more stalls are built in order to accommodate the increasing numbers of vendors for whom access into established markets and shopping centres is currently extremely limited. These are not businesspeople who currenty have the capital necessary to take up space in The Hub, Two Rivers, Thika Road Mall, Garden City, Sarit Centre, the Westgate, Galleria, or The Point in Buru Buru.

Second, an infrastructure programme that deals with the problem of public transport and pedestrian walkways. On public transport, we may or may not have overcapacity in PSVs, but we definitely are under-resourced when it comes to where they can park in the business district. The zone between Moi Avenue, Ronald Ngala Street, River Road and the Khoja Mosque Roundabout is overcrowded for the most part of the day by stationary buses, minibuses and fourteen-seat vans because the Central Bust Station can no longer accommodate all the buses, minibuses and fourteen-seat vans that enter the business district every day. The exclusion zone between Uhuru Highway, Harambee Avenue, Moi Avenue and Kenyatta Avenue either has to be opened up or the other zone reserved for the exclusive use of PSVs.

In tandem with the management of PSV traffic in the business district should be a programme to provide for adequate and safe facilities for pedestrian Nairobians, what we call "pavements" in Kenyan parlance. These should not be car-free spaces for motorcycles or bicycles, but spaces for Nairobians who must walk and those who cannot afford public transport. (Yes, there are Nairobians who cannot afford public transport.) These should also be spaces available to Nairobians living with disabilities, especially those who are in wheelchairs or crutches as well as those who are visually impaired and must rely on white-tipped canes.

Third, a programme to professionalise solid waste management. Nairobi City's contract with Creative Consolidated and the awarding of zone-specific contracts for solid waste management (garbage collection) in Nairobi City has not been well-executed. Garbage mounds are a permanent fixture in the City. If Nairobians are to continue to both pay rates and pay private waste handlers, they must get value for their shilling.

Fourth, public safety should also be given priority. Even taking into account that policing is a national government function, it is still possible for the County Government to contribute immensely to the safety of its residents. This includes the rehabilitation of street lights (and not just the erection of floodlights), the proper marking of roads including the erection of proper signs, the proper naming of lanes, the clearing out of drains and sewers, the provision of rubbish bins including large capacity ones to be used as solid waste transfer stations, the trimming of trees and bushes and the enforcement of the traffic rules enforceable by the county government without bias or fear. The county government must break free of the shackles of assuming that public safety only includes safety from criminals or criminal acts but also those things that give people confidence to venture into all parts of the city, especially all parts of business district.

Finally, together with the national government and its ministries, departments and agencies, including with parliament and the National Police Service, the county government must take visible efforts to be inclusive and welcoming and not discriminatory and hostile. This asinine programme of roping off pavements, allowing business premises to use spikes on what are clearly benches and the violence directed at people who sit on flower pots must be jettisoned.

These are just some of the things I'd love my county government to do for me, whether I vote for the governor and his running mate or not. None of the candidates so far or the incumbent have addressed their minds to these things, or if they have, like Miguna Miguna, they're keeping their ideas a closely-guarded secret. I wonder what they will do for me.

Thursday, August 11, 2016

Even stupid people vote, Miguna

I rarely get to engage with true believers. These past three days, I have had the pleasure of engaging with four online true believers in Miguna Miguna and his Quixotic, independent campaign to become Nairobi County's governor. They believe what they believe and no amount of reasoning, mockery, inquiry or debate will shake their beliefs. It is, as always, something to behold.

If you are a regular visitor of this blog you are well aware that I get many things wrong, whether it is in my disquisitions on the law or economics or public policy or sex. I admit freely to not being perfect or in possession of perfect knowledge. From my engagement with Mr Miguna's followers, I came away with the impression that he is almost infallible, absolutely incorruptible, resolutely focussed and the One True Antidote to the Kiderorisation of Nairobi City County. Those of us who dare challenge Mr Miguna, his vision, his manifesto or his words are in the pay of faceless cartels, in bed with looters, thieves and drug-peddlers, stupid and blind.

Mr Miguna wishes to replace Evans Kidero in 2017. He hopes to accomplish this feat despite the naysayers in the media and the charlatans who publish opinion polls that do not show Mr Miguna as enjoying the overwhelming popularity he and his team believe he has amassed. Mr Miguna will do so, or so he believes, without affiliating himself with any political party. He will construct an independent political organisation that will crush his opponents at the hustings. Whatever Mr Miguna and his team are on, it should be bottled; they will make a killing in the market of mind-altering substances.

If Mr Miguna is elected in 2017, he will have pulled off the political coup of the decade. So far, his campaign exists almost entirely on social media platforms such as Twitter and Facebook or on Jeff Koinange Live! on TV (where he gets to call his opponents thieves, looters, idiots or drug-peddlers). So far as I have been able to discern, the barrister, solicitor, poet and author spends part of his time earning a living in Canada and has not yet headlined a rally or gone on a meet-the-people tour of the county's vote-rich enclaves of Nairobi's vast Eastlands.

If he is truly determined to run an independent campaign, he has yet to identify a running mate, he doesn't seem to have appointed a campaign manager, his campaign messaging is overseen by him in person and his nascent team so far consists of true believers who are yet to internalise the maxims of Dale Carnegie's How to Make Friends and Influence People. So far in our engagements I have been accused of a bias for Mike Sonko, of being an apologist for Dennis Waweru and a defender of incompetence. I have not been approached with a view to changing my perceived anti-Miguna stance. It has also been strongly alluded that I am stupid. (That last part may be true.)

Which brings me to the reason for this post: how does Miguna Miguna expect to be elected when so little about him, his campaign, his campaign platform, his campaign team and his campaign end-game remain shrouded in secret and firewalls? No matter how many volunteers he recruits, Mr Miguna must go out and meet Nairobi City's voters in person. This means that he must expend time and resources to publicise his campaign. So far, all he is willing to commit to is the publication of a manifesto "some time soon" and to demand, directly and through acolytes, our trust. You would think that a man who had worked on Raila Odinga's 2007 presidential campaign would appreciate the nuances of an election.

A good politician never loses his temper unless it is for strategic reasons. A good politician never loses his temper with an inconsequential blogger such as I am. A good politician leaves open all channels of communication with him; blocking bad reviewers from his Twitter feed is petty and small-minded, and raises doubts about his temperament and judgment. Churchill, I think, said that it if a candidate wins by one vote, that is all that counts. Mr Miguna won't win if he chases away single votes because of some perceived disrespect or slight. He needs all the votes he can persuade to his side. If he doesn't understand this basic premise of retail politics, he is in for a drubbing at the hustings.

Wednesday, August 10, 2016

It's a free country, Miguna

Miguna Miguna promises that "Within three months after assuming power, we shall actively source funds and embark on the construction of pedestrian walkways, bicycle lanes, under-passes and over-passes in all parts of Nairobi..." If his campaign is successful and he is elected as Nairobi City's second governor in August 2017, his bold three-month fund-raising and infrastructure-building plan will be surely tested, especially because he intends to stand for the election as an independent candidate.

In Nairobi City, the following county offices will be filled on the day after the general election: Governor and Deputy Governor, Senator, Woman Representative and Members of the County Assembly. Mr Miguna must name his preferred candidate for Deputy Governor; it is after all a joint ticket to head the county executive. To date, we do not know if Mr Miguna has a running mate and what that running mate's qualifications are.

For the most part, a governor can ignore his senator and woman representative when governing, though it is not advised at all. The poisonous relationship between Nairobi's incumbent governor and both his senator and woman representative has denied Nairobi a friendly ear in the Senate and national Assembly which may have encouraged the infighting and backstabbing among Nairobi City's elected representatives, interfering with the delivery of services and prolonging the suffering of Nairobi City's residents. Mr Miguna has not outlined his vision for fostering co-operation and co-ordination with the county's elected representatives in the Senate and National Assembly. I hope he has a plan.

However, a governor cannot govern without the co-operation of the county assembly. Whatever plans he may have for "the construction of pedestrian walkways, bicycle lanes, under-passes and over-passes", they cannot come to fruition without an Appropriations Bill being passed by the county assembly withing Mr Miguna's proposed ninety-day period. As an independent, that is unaffiliated, candidate, Mr Miguna may not have solid relations with the Speaker of the County Assembly, the majority or minority leaders or departmental committee chairs in the county assembly. Building those relationships from scratch may not succeed within a span of ninety days. What will be the fate of Mr Minguna's Appropriations Bill? No one knows. Mr Miguna doesn't know either or if he does, he isn't saying.

If he signs his spending Bill into law, he will now face the second part of his ambitious challenge: announcing, vetting and awarding the tender for the infrastructure programme. When he was the Prime Minister's advisor, I do not recall Mr Miguna overseeing the award of any large tenders. Will Mr Miguna be able to navigate the treacherous waters of public infrastructure tenders if he remains politically unaffiliated? Does he have any experience in identifying capable contractors? Does he have any experience overseeing the disbursing of large amount of public funds, overseeing their proper use and accounting for every cent allocated by the county assembly? Mr Miguna talks of "sealing corruption loopholes," but does he even know how many new ones will spring up after he shuts down the old ones? Again, he offers no guidance on these matters.

While all this is going on, Mr Miguna and the Nairobi City County Public Service must work together to appoint members of his County Executive Committee, their principal assistance and the senior directors of Mr Miguna's government. He promises a CEC that will be evenly balanced between men and women, but he is silent on the representation of people living with disabilities, marginalised groups, and youth. The public vetting of his nominees to the CEC will require a deft touch to ensure that vested interests, either in the county public service, the county assembly or the tenderpreneurs out there, do not sabotage the nominations of qualified persons. He offers no guidance on this either.

Finally, while Mr Miguna's vision for Nairobi is as clear as it can be, given all the concerns I have highlighted, his vision for his government is reduced to platitudinous declarations about service delivery and customer satisfaction. How does he intend to recruit qualified and motivated young people to the county public service? How does he intend to grow the county revenues to support his county public service? Are there any reforms he intends for the current county public service? Again, we simply do not know.

I admit that I am being overly critical of Mr Miguna. They say, "Once bitten, twice shy," and I have no intention of casting my ballot in favour of a man who appears qualified enough on paper without that man offering a detailed blueprint of his administrative or legislative agenda. Any man who declares himself with characteristic bombast to be the "best" candidate for Nairobi, must be prepared to have his credentials questioned at length and with great skepticism.  Mr Miguna is free to run his campaign however he sees fit and I am free to either support him or challenge his rhetoric whenever and wherever I please. If he feels that I'm being unfair, I invite him to go over the meaning and import of Article 33 of the Constitution. (That would be the one on the freedom of expression, by the by.)

What is Miguna's plan?

The following statements about Miguna Miguna were made by Sarah Elderkin in 2012:
...a person with deeply worrying issues and insufficient personal morality...a man with a good brain [who is] tortured and destroyed by emotions he cannot control, so that he ends up a victim at the mercy of his own self-destructive inner turmoil...overbearing ranting and raving...[Judge] Warsame said that Miguna was a man “who exhibits mental and emotional fits in his defence of issues”...[Judge] Warsame added, “He is described as a man living in [a] mental darkroom”...His actions have [...] everything to do with Miguna Miguna, his lack of balance, and his distorted sense of self.—Daily Nation, July 16, 2012
I had a few questions for the independent candidate in Nairobi's 2017 gubernatorial race. What happened next took me completely by surprise. Mr Miguna's online team challenged the foundation of my previous post on the basis that I was a supporter of thieves, the corrupt, the incompetent and drug-dealers, which is how the describe the incumbent governor of Nairobi City, the Cabinet Secretary for Water and Irrigation, the Member of Parliament for Dagoretti South Constituency, the Chairman of The National Alliance Party, the Senator of Nairobi City and the former Member of Parliament for Starehe and Bishop of the Jesus is Alive Ministry.

For the record, I do not intend to vote for Evans Kidero, Eugene L Wamalwa, Dennis Waweru, Jonson Sakaja, Mike Sonko or Margaret Wanjiru if they offer themselves for election as Nairobi's second governor. Mr Kidero has failed to do much to stay the rot in this city, Mr Wamalwa is a carpetbagger, Mr Sakaja is a lightweight, Mr Waweru doesn't seem to do much except act as a cheerleader for his party leader and Ms Wanjiru has demonstrated previous lapses in judgment that were quite troubling. However, let it also be abundantly clear that simply because I will not vote for them does not mean that I shall automatically vote for Mr Miguna. That is not how the game s played. Mr Miguna and his team seem to have missed this basic fact of retail politics that at some point I feared I was a target in Ashton Kutcher's erstwhile eponymous show, Punk'd.

The basis for my inquisition of Mr Miguna is his three-part screed on Facebook that he and his team call a "vision" which he published in April, 2016. Other than its erudition, I did not find it that much different from similar "vision" statements made by candidates for high office. Mr Miguna claims that he is the best candidate in 2017; on Twitter, I challenged him and his team to prove it. The proof was not to be based on what the other candidates had failed to do or were incapable of doing but on what assets Mr Miguna possessed that made him better than the rest if not the best. Again and again, I was reminded that Mr Miguna's assets are "Integrity, Vision, Honesty and Competence" in that order.

I have no doubt that Mr Miguna and his team believe that he is honest and competent, a man of integrity who has a vision for Nairobi. Those are mere words. They are not assets in the true sense of the word. Mr Miguna was an advisor in the defunct Office of the Prime Minister. He headed a secretariat on coalition coordination. When he was suspended, he was accused of
...refusal to sign Local Agreement forms, harassment, intimidation and use of abusive language to colleagues and misrepresenting the Office of the PM.Business Daily, August 11, 2011
My tweef with Mr Miguna and his team revealed a shocking lack of understanding of the constitutional, institutional and administrative arrangement of government, both at the national and county levels. I didn't expect Mr Miguna's online team to have a nuanced or sophisticated understanding of Article 96 of the Constitution or section 43 of the National Government Constituencies Development Fund, 2015, but I expected better from Mr Miguna. I was disappointed in Mr Miguna's and his online team's reasoning on both.

But what gave me pause was Mr Miguna's response to a series of questions regarding his plans for Nairobi. his was his response:
My Manifesto will not be influenced by your Tweets. It will be a Manifesto, not a LAUNDRY LIST!
Then he blocked me from reading his tweets. Mr Miguna faces a daunting task in 2017. Mr Kidero may be incompetent, Mr Sonko may have the CIA's allegations hanging over him, Mr Waweru and Mr Sakaja may be scrambling to fend of Mr Wamalwa's riposte while Ms Wanjiru may have her own skeletons to deal with, but none of all that means a hill of beans for Mr Miguna if he alienates voters. Most of us have no problem with his arrogance or acerbic tongue, but we are not children either. If he cannot engage patiently with an inconsequential blogger like me, I imagine that he will fare no better than the self-entitled residents of Nairobi who don't give two shits that he is a barrister, solicitor, poet and author. If he can't persuade us, his campaign will be akin to the one described by Miguel de Cervantes in 1605.

Tuesday, August 09, 2016

A few questions for Miguna

I have read and reread Miguna Miguna's "vision" on Facebook. It is longwinded, to say the least. More importantly, it is a declaration of  new kind of governance for the county of Nairobi City. What differentiates it from other similar declarations and political promises is that it is being made by a self-confessed independent candidate. It requires interrogation.

Mr Miguna, better than anyone else, understands that even at a municipal level, governance is a partnership between the executive and the legislature. If he is elected, his agenda for the county should be supported by the county assembly. At the very least, it should not be actively opposed by the county assembly or else he will face five years of residents' frustrations expressed in colorfully profane ways on his Facebook page. Mr Migunaa's "vision" is quite thin to the point of absolute anorexia on how he will forge a political, administrative and developmental partnership with the members of his county assembly.

Mr Miguna watched from a front-row seat how cabinet ministers undercut each other in Mwai Kibaki's poisonous government and how senior civil servants became pawns in the games that ministers played. He witnessed first hand the shenanigans surrounding all the major Kibaki-era scandals so he knows what is required to manage a team designed to deliver on political promises. Beyond public vetting, Mr Miguna does not spell out what qualifications the members of his county executive should possess or what degree of experience they must have. He does not spell out what he will do to reform City Hall and what legislative or administrative tools he will rely on to achieve this goal.

Third, some of his plans are too vague. Take this little gem,
Within three months after assuming power, we shall actively source funds and embark on the construction of pedestrian walkways, bicycle lanes, under-passes and over-passes in all parts of Nairobi...
Either he has forgotten the basic rules of the funding of a government or he assumes that we are oblivious of them. Public infrastructure projects, whether in Kenya or overseas, are the lifeblood of municipal governments and their financing has always been highly politicised. When Mr Miguna proposes to "actively source funds" for his infrastructure plans, does he mean that he will raise the fees and levies charged by the county government, or does he mean that the county will float a municipal bond? Does he mean that he will go with a begging bowl to "development" partners or will he borrow from commercial banks at eye-watering rates?

One of his signature proposals is the establishment of the
Nairobi City County Asset Recovery Unit (ARU), which shall be headed by an internationally head-hunted and respected chief executive. The ARU shall review all previous Auditor General’s Reports, Parliamentary Audit Reports, the Ndung’u Land Commission Report, Kroll Investigative Report and other investigative reports for purposes of initiating public asset recovery proceedings against past and present looters.
How, exactly, does he intend to accomplish the goal of recovering Nairobi City County's assets that have been looted by past and present leaders? Will he push through his county assembly an asset recovery law or will he rely on the good offices of the Director of Public Prosecutions and Attorney-General to do the heavy lifting? He must know that the investigation and prosecution of offences, including corruption and economic crimes, remain the preserve of the nation government. The least he can do is to sue for recovery of public assets belonging to the county.

But what gives me pause is that Mr Miguna doesn't seem to have a slate of professionals whom he intends to nominate for confirmation as members of is county executive. It is a year to the election and we do not know whether his county executive will be split evenly between men and women, how many will represent persons with disabilities or youth, how many are coming from banking, law, engineering, healthcare, commerce, accountancy, nursing or academia, how many have held public office before, and other similar matters. Does he intend to spend the first three months of his administration headhunting men and women willing to work in his county executive or does he have a slate of people ready to work with him?

It is not enough for Mr Miguna to claim that his
opponents are a miss-mash of political potato salad: people without any clear progressive ideological commitments or agendas; a group of people driven by unadulterated greed and chauvinistic tendencies. Virtually every single one of them has presided over the looting and desecration of Nairobi City County.
Mr Miguna must concretise his proposals and publish a more detailed manifesto, long on the mechanics of a government and short on polemics and longwinded disquisitions on the unfitness of his opponents. Maybe then, we shall pay heed to his prophecies.