Wednesday, June 29, 2016

How business is done

One of the strangest things happened without much fanfare yesterday: the tribunal appointed to investigate the conduct of Philip Tunoi, retired judge of the Supreme Court, wound up its sittings arguing that with the retirement of the judge, it had become "functus officio", that is, the retirement of the judge no longer required the tribunal to continue to investigate his conduct because he was no longer a judge. The winding up of the sittings or the reasons for the winding up are not the strange part; the strange part is how the whole thing unfolded in the first place.

The basis for the appointment of the tribunal was an accusation by a journalist that he had been denied his due in a scheme to pervert the course of justice. The judge's accuser claimed that he had acted as an intermediary between the newly-elected governor of Nairobi City County and the judge in a scheme to bribe the judge to guarantee a favourable ruling for the governor in an election petition filed by the governor's principal rival in the 2013 general election. The bribe has never been proven.

The saga beings in a strange way. The accuser goes to a contact he knows at the Directorate of Criminal Investigations and asks for help to get his cut of the bribe from the judge. He informs the CID man that the judge has for months been dodging him, fobbing him off with twenty thousand shillings. The CID man, for some reason, sends the man to his superior who, rather than open a criminal investigation into the alleged bribe, asked the man to find a lawyer to help him swear out an affidavit laying out the sum and substance of his accusations. The lawyer he settled on happened to be the lawyer for the Judicial Service Commission, which had already asked the judge to retire.

The man gave the affidavit to the Chief Justice some time in 2014. Why he gave it to the Chief Justice remains a mystery. The Chief Justice on his part decided to "investigate" the allegations using the administrative machinery of the Judiciary. The man grew impatient as the judge didn't seem to be paying a price for allegedly cheating him out of his cut. So he went to the press with a copy of the affidavit, forcing the Chief Justice's hand who in turn announced the appointment of a team to investigate the affidavit and make recommendations. The team recommended the appointment of a tribunal to investigate the judge. The recommendations were forwarded to the president.

The president blew hot ad cold on the appointment of the tribunal, eventually being forced to do so by a sustained bad press over the whole affair. The rest, they say, is history, for while the tribunal sat, the Court of Appeal ruled that the judge should have retired at the age of seventy years and the Supreme Court, in a fit of madness, is unable to do anything about it because the Chief Justice has retired too, as has the Deputy Chief Justice, and two members of the Supreme Court have recused themselves from hearing the matter and, therefore, the Supreme Court has no quorum to hear the matter.

I find it strange, though, that the man who accused the judge of withholding his cut of the alleged two million dollar bribe was not charged by the Office of the Director of Public Prosecutions with his part in the alleged crime. He has vanished from the newspaper pages, TV studios and blog posts. The whole saga has been about the judge and whether or not he received a bribe from a governor. The Chief Justice behaved strangely, too. Even with his notorious open door policy, how did he come t receive the affidavit and to whom did he share it? Was he so hell bent in forcing the judge out of office on account o his age that he would enter into a scheme to force him out on account of alleged bribe-taking? The judge himself created the circumstances that exposed him to this state of affairs by engaging with both the governor and his accuser in the months before the accusation.

With the winding up of the sittings of the tribunal, and the notorious secrecy instincts of the presidency, it is almost certain that we will never know the truth of what really happened between the three of them. That will be in keeping with the way Kenya does business, which is, really, how the whole world does business.

Monday, June 27, 2016

Burning down the school

Rules are meant to be applied fairly. When we permit a few to play by a different, laxer set of rules, we encourage many to seek such accommodations, whether they are "entitled" to them or not. Rules are meant to guarantee a fair outcome for all, not privileges for a few at the expense of the majority. Kenyan public administration is a study in how unfairly rules are applied, how privileges are distributed and how conflict is managed when the outcome is less than optimal. In Kenya, the privileged few play by a set of rules that elevate them over their fellowman.

The results of the Kenyan way are evident. Conflicts are not easily resolved. Conflict has become hardwired among Kenyans and dispute resolution has become more difficult to manage. Whenever disputes arise today, the option readily to hand is violent confrontation sometimes with tragic consequences. The privileged elite ask why it is not possible for groups in conflict to peaceably negotiate to find solutions forgetting that they themselves don't negotiate for the privileges they enjoy. Young Kenyans are internalising this way of looking at things: if they don't get their way, they will burn down the house even if it means that they will sleep outside in the cold.

That is what happened last night. A boys' residential school's administration refused to allow the boys to watch a football match. If this boys' school is anything like my alma mater, it is likely that the manner in which the decision was communicated to the boys would be described as "high-handed," which is not how you address boys who have been cooped up in school for weeks on end. As evidenced by the rise of school-burnings in recent months, the outcome was predictable. The boys protested the decision without succour from their teachers. The protest escalated and ten dormitories were set ablaze. It could have been worse if the mob had somehow managed to "invade" a nearby residential girls' school. When the blood of a mob of boys is up, there is no telling what the boys are capable of.

What these boys did was what they think they have seen on TV and read about on the internet, that if their demands are not met, they have the right to "strike" and in striking, anything goes. After all, that is what their teachers have done on numerous occasions, using some of the most incendiary and unlettered language possible. It is what doctors, the epitome of academic excellence, have done on numerous occasions. It is what their political leaders have done since time immemorial without paying a price for it. Most importantly, it is what their parent do every day, sometimes to survive and sometimes to obtain an unfair advantage. The social compact that we are supposed to have made with each other - to live by the rule of law and to respect the equality of everyone - has been abandoned at the altar of individual need and greed at the expense of the greater common good.

With the ;spread of modern communications technology and media, young Kenyans are shown the benefits of bad behaviour by everyone. When inebriated pastors run down and kill other road users, they lie about it and use their positions of leadership and authority to escape from the consequences of their actions. Then they justify it at the pulpit on every subsequent Sunday. When politicians suborn murder and violence, they are not arraigned in court; instead they are celebrated as "liberators" and "champions" of the people. When civil servants extort from the poor and the vulnerable, their bosses do not demand, at the very least, their resignations; they ask for forbearance because the civil servants' service is too hard. Bad deeds, young Kenyans know, need not have bad outcomes. It is almost certain that unless we change how we relate with each other - how we respect the law and uphold our equality - more school dormitories are going to be set ablaze.

Monday, June 13, 2016

Less than owed

Who are your heroes and role-models? Mine happen to be the only two people I have ever truly disappointed: my parents. They are famous - within their circles. If you google their names, by the time you get to page 10, you'll be exhausted. I want to focus on my mother, though, because I think her experiences are what made me appreciate the key phrase "legislative and other measures" in relation to "past discrimination" (by the State) against the women of Kenya.

One of the funniest things - at the time I was five or so and didn't know better - my mother ever told me was that until 1985 or so, women didn't really need national ID cards. After all, they were either a man's daughter or a man's wife. There was no third classification. A woman's father or her husband was sufficient for the purposes of identifying a woman in Kenya. You can imagine the scenario - that for a woman to register as a voter - the principle of universal suffrage was accepted in theory - she had to be accompanied either by her father or her husband. So if she wanted to stand for elective office, whether as a councillor or a member of Parliament, ditto! husband or father required.

This paternalistic view of women, even rebellious ones like Wangari Maathai, was the hallmark of the State and it prevails even today, though many of the ridiculous shackles have been loosened. When she won a scholarship to finish her PhD in the UK, she had not just to receive permission to leave the country from her university, the Ministry of Education and the Office of the President, but she also needed my father's written "consent" to obtain a passport and travel overseas. She smiles when she says this, but you can tell she found it ridiculous and frustrating in equal measure back then.

Today, you would think that the women of Kenya have overcome the entrenched patriarchy that has cause so much grief in Kenya. You would think so and you would be wrong. While women are free to obtain documents of identity without relying on their fathers or husbands anymore, and while they can travel to any destination whether or not their husbands or fathers think they should, in key areas, women continue to suffer disadvantages that hinder the full realisation of their full potential. 
 
I remember this line from a song with a wildly different context, "The oppressor says that turning to politics is the only way" and it seems strangely apposite when it comes to the question of how we can erode the entrenched patriarchy that holds half of the Kenyan population back. It is why we have internalised the false narrative that the only way to break with a perfidious patriarchal past is to elect or nominate ever more women to Parliament and county assemblies and appoint ever more of them in public service positions. (Or, if it is non-political women, hand over sacks of cash as part of "women entrepreneurship development" and hope for the best.)

The "legislative" part of our constitutional contract with women (and other marginalised groups) seems more or less settled; all that remains is for the political deal-making and horse-trading to take place, and, come the 12th Parliament, elected and nominated women representatives will form a substantial core of the elected classes. When it comes to "other" measures, other than "enterprise funds", women have received less than they are owed.

Take a recent discussion I had with a blogger I respect. She had been invited to moderate a panel that had just one other woman among three other men, yet the online advertising would lead you to believe that it was a panel of men alone. You would have had to click on the link to the event in order to know that it was a sausage fest. In subtle and insidious ways, we erase the presence of women in our lives, whether professionally, socially or personally. We mansplain them away without shame. It is why, try as hard as you can, few of you remember that there have been more influential women in Kenya than just politicians. (Google "Orie Rogo Manduli Safari Rally" and thank me later.)

My mother is an accomplished women despite the patriarchy she survived on her way to greatness. I am lucky that my father and my grandfather were contumacious that my mother and aunts were not treated any differently from my father and uncles. That cultural rebellion has given us a family that is well-rounded and well-represented in all the professions. Our family needs no government handouts or quotas in order to make a mark; we make a mark simply by being us. I am inordinately proud to be her son, even though I have done absolutely nothing to deserve her and one day, if the winds of fate blow in the right direction, my precious R will live up to my mother's expectations - the ones that I didn't live up to.

Nairobi politics: sharp elbows needed

City politics is not for the faint of heart or for the meek of the Earth. City politics is for the brawlers and for those with egos the size of small planets. Less is definitely not more in city politics. Balls of brass, whether one is of the male species or not, are a requirement. Because when you go in, to stay in you will need fortitude of the testicular kind. Johnson Arthur Sakaja is slowly coming to realise that a suave approach to the siasa za Nairobi will not give him the edge to edge out the incumbent, the hapless Evans Kidero.

A stupid tweet - it was rather daft - by Mr Sakaja suggests that Nairobi traffic will improve if only most (or all) Nairobians drove city cars and didn't obsessively go for 4x4s. The deluge of scorn that followed was impressive, especially for a Sunday morning when most Nairobians are supposed to be praying in church, nursing massive hangovers or nursing massive hangovers in church. It exposed Mr Sakaja as the neophyte who couldn't get nominated or elected in the party that he is chairman of. Now he wants to unseat Mr Kidero. Like I said: big brass balls.

Evans Kidero was elected because Nairobians were tired of the City Hall Way. We didn't want anything to do with Ferdinand Waititu or Mike Sonko. Jimnah Mbaru was too keen by half and too short to make it past our ideals of a mwanasiasa. Evans Kidero ticked off all the superficial right boxes: well-read, well-spoken, tall, stellar (supposedly) business background, boatloads of cash and the right political party. It's been almost three and a half years since Mr Kidero took over a City Hall and his reign has been a disaster.

He has a few accomplishments to his name: the e-platform, security lights in the CBD and the efforts at Pumwani Maternity Hospital. By and large, however, Mr Kidero has failed and failed spectacularly. The mounds of garbage that simply refuse go away, the matatu madness that seems to grow worse every week and the collapsing residential buildings that seem to grow in scale - these are all on Mr Kidero's watch. No one trusts him any more to get to it right. So now Mr Sakaja joins the acerbic-tongued Miguna Miguna and the colourful Mike Sonko in the Kidero Must Go bandwagon. He will need sharper elbows than he has demonstrated so far.

If the allegations are true, it was a $2 million bribe that kept Ferdinand Waititu from City Hall. But Mr Waititu himself is no shrinking violet. The way he stomped on Mr Mbaru's ass during the TNA nominations was a thing of wonder. Sonko is no stranger to playing hardball as Ms Shebesh (and her husband) can painfully attest to. He may have attempted to rebrand himself, but Sonko is no gentleman when playing in the rough and tumble of siasa za Nairobi. Mr Miguna has yet to prove himself in an election; the last time he tried his hand at it was somewhere in Luo Nyanza where, depending on where you sit, the Odinga hypnosis was unbreakable or he was just too arrogant for the electorate who are pretty arrogant themselves. This colourful group is against whom that Mr Sakaja intends to run.

It remains unclear whether Mr Sakaja has the money, the muscle, the cunning, the ruthlessness and the asshole factor to prevail in Nairobi. He is smooth and he seems to have some money to his name, but whether he can finance the kind of rabid support that Sonko does or organised chaos that Waititu seems to favour or the ad-buys that Kidero definitely can remains a mystery. Can he spend more than a minute in the heart of Korogocho without turning up his nose? I don't know. Can he join The People as they wade across Nairobi's many rivers of shit on their way to work? Who knows? Does he have the stones to call a rival candidate a thief or a drug baron? Only time will tell. What is certain, though, is that he will need very sharp elbows and a way of throwing them that won't get him called out for it.

Monday, May 30, 2016

The right to be stupid

Put efforts where it matters...By the time you are asking for Cheryl Kitongas face to be concealed, you have lost the fight on women dignity. Stop the next Cheryl from being taken advantage of by a so called sponsor. Stop the next Cheryl from being a rich man’s play toy. Stop the next Cheryl Kitonga from a sponsor mentality. And telling them that is what the 20s are there for is not helping them either.Maggie Marrikah
The most unforgiving of humans, I believe, hate the thing that they fear becoming because they are weak. The kept woman, and more recently the kept man, remains a popular target for the self-declared protectors of our moral values. I have a feeling that Moha's Jicho Pevu, deep down, is a moralising crusader out to cleanse the public commons not just of odious politicians and political operatives but also of the women who are kept by them.

We must be wary when any man or woman arrogates unto themselves the task of determining what is and what is not morally upright, and what must be done to ensure that he body politic is purified of the immoral and the moral relativism that is the slippery slope to moral decadence.More often than not, it is founded on a Victorian-era application of sexual mores, that deny that even young women could have sexual agency un-tethered from what their fathers, brothers, elder sisters, religious or social thought-leaders determine to be the right kind of sexual behaviour.

It is not, however, enough to declare that "no one was injured;" after all, no one wants their child to be pointed at as the type that makes a living on their back or bent over while satisfying the proclivities of the ones with fat wallets. It is important, though, to remind ourselves that where especially moral and religious values have been declared to supersede individual agency, the result has more often than not been great sins against the individual.

Ms Marrikah writes from the United States. She would do well to acquaint herself with the justifications that the Moral Majority have relied on to persecute minorities, including racial and sexual minorities, in the name of upholding "family" and Judeao-Christian values. Segregation, even long after Brown v Board of Education of Topeka, remains the watchword of many Christian groups in the USA, and their poisonous interpretation of scripture, devoutly believed by hundreds of thousands, has led to violent crimes such as the brutal murder of 9 churchgoers, who happened to be Black, in Charleston, South Carolina.

It isn't just Christian fundamentalists who are a threat to the peace and safety of people; Islamic State has become the latest terror organisation to base its acts of great inhumanity on a fundamentalist, racist and erroneous reading of scripture, just as almost a century ago Roman Catholics and Protestants butchered one another in Northern Ireland, partly because of where each group went to church.

But back to sexual politics of the here and now. Women have always been made to feel ashamed for their choices, even seemingly wholesome ones, if these choices threatened the "stability" of the family unit. No pun intended, but women come second. Ms Marrikah is a proud perpetrator of this culture, and deserves to be called out for it. It may yet take a decade or so, but eventually it will dawn on the likes of Ms Marrikah that women are the equal of men. Men and women have different attributes and different capacities, but neither is superior to the other, no matter what St Paul says in his epistles to the Apostles, and because of this equality, whom they choose to sleep with or whom they allow to "sponsor" them is not a Scarlet Letter, but a reaffirmation of the right of both men and women to be equally stupid when it comes to sex.

Not much daylight

The Supreme Court of Kenya is a funny old thing, isn't it? It at once mythic and feckless. It is now caught in a web of intrigue and suspicion, with the odds of a resolution of its affairs being very, very long. It's president, the Chief Justice, is in the cross-hairs of a lawyer with an axe to grind, having variously claimed that the Chief Justice is a member of a junta that has maneuvered to defeat the ends of justice and that e has lied, time and again, about the real reason for his early retirement being that he is a year older than he claims.

One of its judges is being investigated by a tribunal for having received a bribe of two million US dollars. Three of its judges were reprimanded by the Judicial Service Commission for going on strike! But it is over the question of when a judge should retire from the judiciary that has brought to a moment of crisis: is it at the age of 70 years as set out in the Constitution or is it at the age of 74 years as it was set out in the former constitution? The question must be answered because it affects the Deputy Chief Justice, the Supreme Court's deputy president and the aforementioned judge being investigated by a tribunal.

The High Court and the Court of Appeal, in a rare moment of judicial agreement, both say that the proper age of retirement for a judge, whether they joined the judiciary before or after August 27, 2010, is 70 years. The Judicial Service Commission, of which the Chief Justice is its chairperson, has already said that judges who have attained the age of 70 years should retire. (One other judge of the supreme court is a member of the Judicial Service Commission.)

This crisis was precipitated by the arrogance of the entire Supreme Court and its spectacular lack of preparation, incredible degree of infighting and astounding blindness to political realities. The Chief Justice was never going to serve his full term and a succession plan should have been among the first orders of business for not only the Supreme Court but also the Judicial Service Commission, instead of the incredible lunacy of new limousines for judges and a palace for the Chief Justice. The moment the spigots of the Consolidated Fund were opened, the infighting got out of hand, and that eroded the last of the political goodwill the Supreme Court - indeed, the Judiciary - enjoyed, and the nitpicky way the Judiciary dealt with key questions about the separation of powers betrayed a political tone-deafness that turned both the Executive and Parliament against it.

Independence begins with independence of thought and on that front, the Judiciary and the Supreme Court are about as independent as pea is from its pod. What shocks to the core is the remarkable degree of sameness in how the Judiciary sees things, especially when it comes to public funds and the privileges enjoyed by its seniormost officials. Now that it emerges that even cut-rate politicians seem to have a hand in how the Judiciary behaves, I am not surprised by the charges levelled against the Judiciary. The only difference between the Judiciary and Parliament, is that the Judiciary isn't officially elected. In every other respect - greed, perfidy, caprice, arrogance, mendacity - there isn't much daylight between the two.

It is not a government Madaraka


What is troubling is the symbolism of an Opposition party holding a parallel rally on a national day. This is akin to the desecration of our pride as a nation; the desecration of our national values; the desecration of our heritage as a nation; the desecration of our hard-fought freedom and independence. As much as it might feel aggrieved on other matters of national importance, CORD's plan is ill-advised and serves to ratchet up the political temperatures for no reason. http://www.standardmedia.co.ke/article/2000203420/parallel-madaraka-day-fete-is-ill-advised
First it was the National Security Council, the highest institution when it comes to the security of the nation, that accused the Coalition for Reforms and Democracy's leadership of treason for persisting beyond all political reason with their Teargas Mondays, a moniker slapped on the Monday demonstrations against the IEBC. Now the Standard media group is accusing the CORD leaders of desecrating our national values, heritage, freedom and independence, and that CORD should let things be and that Kenya should be more like the United States which celebrates its Fourth of July as a sacral day because we hold the USA "in high regard."

Kenya was not an imperial power when it gained independence from Great Britain; it was the victim of sixty years of colonial oppression, racialised government and a culture and tradition of obsequious deference to the government without question. The Constitution of Kenya that was ratified in 2010 is a repudiation of all that and more. It declares unabashedly, and longwindedly sometimes, that "We, the people" are sovereign. 

We do not answer to another sovereign, not the Governemnt of Kenya, not the President and not your precious Madaraka Day, and in our sovereignty, we decide when and where we will remind our Government of its obligations to us, not the other way round. On a public holiday, such the one two days hence, we have the perfect opportunity to remind the Government and the ruling alliance that we, not they, are supreme. No, that is not a treasonous statement; it is Constitutionally factual and true.

One of the most important aspects of Madaraka Day that even the Standard seems to have forgotten is that it took not just the application of violence by the Mau Mau, but also the resistance of hundreds of thousands of Kenyans who were held in concentration camps we still insist in calling "native reserves", in which great acts of inhumanity were perpetrated because free-born Kenyans refused to bend to the will of the colonial government that relied on an interpretation of the law that insisted on the subjugation of Kenyans akin to bondage or slavery. Kenya's first and second presidents attempted to perpetuate that system beyond all reason, but in 2010, "We, the People" finally nailed that coffin finally shut. If we want to celebrate our Madaraka by cavilling against the Government of Kenya, that is exactly what we will do, desecration or not. The Standard had better get on board with the new national order: the people come first!

And just so the Standard knows, Kenyans do not know enough of the United States to make an informed decision about holding it in high regard. The hagiography has been excellent. However, once Kenyans learn that the the Fourth of July celebrates the independence of white settlers only but perpetuates the enslavement of an entire people for a further seventy years, Kenyans might have pause to consider the regard with which they hold the USA. But once Kenyans are fully aware of the way the descendants of Black Africans are treated in the USA and how Black Africa is viewed by the white United States, that regard might turn to an emotion that is substantially apposite: unremitting hostility!

Pride goeth before the fall, IEBC

If you care to read, Article 248(2) in Chapter Fifteen of the Constitution, there are ten commissions and two independent offices. (The Kenya National Human Rights and Equality Commission, via three Acts of Parliament, is now made up of the Kenya National Commission on Human Rights, the National Gender and Equality Commission and the Commission on Administrative Justice.) Among the ten is the Independent Electoral and Boundaries Commission, whose commissioners have become the target of Raila Odinga and the Coalition for Reforms and Democracy, CORD. Mr Odinga and CORD want the commissioners to resign.

Joseph Stalin distrusted democracy, to say the least, but he understood its weaknesses. He is quoted as saying, "The people who cast the vote don't decide an election, the people who count the votes do." Mr Odinga appreciates the truth in this quote; the IEBC has not covered itself in glory when it comes to the manner in which it has comported itself, especially in the period immediately before the 2013 general election and during the presidential election petition hearings. Its chairperson, especially, made wildly intemperate and highly partisan statements about Mr Odinga. The neutrality and objectivity of the commissioners is no longer a given.

If Mr Odinga and CORD want the commissioners to be removed from office, the procedure for doing so is set out in Article 251. Mr Odinga and CORD would have to petition the National Assembly with proof. Only the naive think that proof will be forthcoming. But, based on the public statements of Mr Odinga and his co-principals, CORD does not want the commissioners to be removed from office, they want them to resign their offices. It is a fine distinction, I submit, but a crucial one.

While the 2013 general election was accepted as "free and fair" by many independent election observers and endorsed as such by the Supreme Court, it was a mess. Despite the Supreme Court's thumbs up, even it agreed that there is something dubious about a voters' register that remains impermanent even on election day, with numbers being bandied about like confetti. The large scale failure of Electronic Voter Identification Devices puts into question the outlay of billions of shillings for the fancy gadgets. Finally, the tallying and reporting system raised more questions than answers, even with the Supreme Court's herculean efforts to refuse to consider the very question. In all these instances of utter failure, the commissioners are implicated. The least they could have done once the elections dust had settled, was resign.

Kenyan nabobs and never resign. Not when it is in their interest to do so. Not when it is in the interests of the country to do so. They hold on, white knuckles and all, till their grubby little fingers are pried loose from the levers of power. The commissioners of the IEBC would rather the world burned down around their ears than resign. They, in the parlance of former minister Amos Kimunya, will resign over their dead bodies. They are being encouraged in their obduracy by charlatans and snakeoil salesmen in mould of Beelzebub himself, unafraid to stand and be counted as among the minority that lives in stupendous ignorance of their cant and avaricious prideful greed.

The values and principles of national governance enshrined in Article 10 bind not just Raila Odinga and the lunatic fringe of his coalition, but the commissioners of the IEBC as well. The commissioners are foolish to ignore the calls for their resignation simply because the calls come from, in the malicious words of their chairperson, a "serial loser." If introspection has failed to persuade them that they botched the 2013 general election, and the blood spilled by the police in their name has not pricked their consciences, there is nothing to do but hope that when their fall comes, for it surely will as night follows days, that it is a mighty one. If they doubt that they will fall, let them stare at the shambles of Amos Kimunya's political career and take note.
The people who cast the votes don't decide an election, the people who count the votes do.
Read more at: http://www.brainyquote.com/quotes/quotes/j/josephstal390697.html
The people who cast the votes don't decide an election, the people who count the votes do.
Read more at: http://www.brainyquote.com/quotes/quotes/j/josephstal390697.html
The people who cast the votes don't decide an election, the people who count the votes do.
Read more at: http://www.brainyquote.com/quotes/quotes/j/josephstal390697.html

Friday, May 27, 2016

Brutalisation is the goal.

Does anyone know what the Force Standing Orders of the Kenya Prisons Service state when wardens are pursuing an escaped prisoner? What are the rules of engagement when the prisoner flees through a civilian institution, such as a girls' secondary school? When are prison wardens permitted to use deadly force, such as discharging their firearms at the fleeing prisoner? Dos it matter where the prisoner is relative to the warden? If what we are seeing about an alleged shooting in Migori is true, then I would posit that, (a) there are no rules of engagement, (b) that if there are rules of engagement, they permit shooting at any time, and (c) it doesn't seem to mind where a shooting takes place so long as a fleeing prisoner is either apprehended or killed.

Kenya's law enforcement and prisons' administration mirrors the United States' to a disturbing degree: law enforcement officers and prisons warders are armed to the teeth more often than not. They not armed with side-arms, either; when they are armed, it is always with automatic assault rifles like AK-47s and G3s, which are nothing as they seem in the movies but menacing and threatening all at once. Seeing armed police or prisons officers going about their work is to watch an armed force, more or less, occupy your free and not-so-free spaces with their malevolence and menace.

Perhaps their training irons things out, but I believe that an armed man is likely to resort to the use of his arms at the slightest provocation instead of finding and employing an alternative non-violent method. It seems to matter not whether the arms in question are firearms or rungus; if a law enforcement officer is armed, he will use his weapon should he perceive a threat rather than find an alternative method to address the threat. Not all threats are meant to be met with the force of arms.

Unless we subscribe to the patently racist colonial characterisations of Kenyans as inherently violent and inherently violent towards members of the disciplined services, there is no rationale to explain why every member of the disciplined forces should be armed to the teeth as if they were awaiting an armed assault by a foreign army. Whenever you encounter police officers while on patrol during the day, if they are armed you are likely to experience a moment of anxiety because few of us trust that the police will treat you with respect or dignity.

It was a mistake to place police (and later on, the Prisons Department, the KWS and the KFS) under the national security institutions of Chapter Fourteen of the Constitution. The national-security instincts are orientated towards the use of overwhelming force to neutralise threats against the state, such as the National Security Council has proposed against Raila Odinga's ill-advised jihad against the IEBC. It is why prisons wardens don't think twice about firing recklessly at fleeing prisoners. If schoolchildren are caught in the line of fire, that is a small price to pay to preserve the fear of the State that national security institutions seek to instill in the people.

Our prisons system is designed to brutalise, just as policing is and the other national security institutions are. It is why all prisons are overcrowded and spectacularly unsanitary. It is why prison wardens are remunerated poorly and housed in even more abject conditions than you could imagine. The entire system is not designed for the rehabilitation of prisoners; it is designed for the brutalisation of the offender and his jailer. The only logical outcome of such a system is the death by gunfire of innocent bystanders.

Whoever wins, we lose, Mr Gathara

In the run up to next year’s scheduled general election, weekly opposition protests and the subsequent brutal crackdown, have deeply polarized the country and left at least three people dead and many others, including police officers, wounded. - Patrick Gathara, Why This Is Not An IPPG Moment
With customary hyperbole, Mr Gathara declares that Kenya is "deeply polarised." Polarisation (according to the online Cambridge English Dictionary, "to cause something, especially something that contains different people or opinions, to divide into two completely opposing groups") implies that Kenya is divided, right down the middle, between those who support the Government on the IEBC question and those who support the Minority Party. Like I said, customary hyperbole.

Based on the most common, and erroneous, assessments, there are forty two "ethnic communities" in Kenya. (I wonder if these forty two groups include the "mixed" offspring of an ever-expanding state of "inter-ethnic" marriages and liaisons or the Afro-Europeans, the Afro-Asians, etc.) So based on Mr Gathara's hyperbole, the Government (and the ruling alliance that forms it) are supported by twenty one of those ethnic groups and the Minority Party has the support of the other twenty-one. If that sounds absurd, it is because it is. And the absurdity could be extended to the political parties represented in parliament; all the registered political parties in Kenya; the various civil society and professional associations that play an active role in the politics of Kenya; and so on and so forth.

If Kenyans were polarised, as Mr Gathara posits, they would not wait patiently for the coming of each Monday in order to pour onto the streets fulminating for or against the IEBC; they would never leave the streets at all. No. Mr Gathara, Kenya is not polarised and it behooves you and your colleagues to call it the situation what it really is: a family squabble.

The press has managed to create the impression, especially among the consumers of their fare, that Kenya is divided along political lines, the pro-Government/ruling alliance versus the Minority Party/CORD coalition, an idea that refuses to acknowledge an important fact: few adult Kenyans are members of political parties that form the ruling alliance or the opposition coalition. In 2013, about twelve million voters cast their vote in the general election. Even under the most generous assessments of party membership lists provided by the Registrar of Political Parties, there is no way that registered members of parties will equal the twelve million that voted in 2013. (More importantly, 12 million Kenyans, save for some fuzzy maths, do not represent half the people of Kenya; at most, they represent about one-third, who couldn't polarise the country if they wanted to.)

Mr Odinga's CORD commands a sizeable following, but, to paraphrase the odious Mutahi Ngunyi, the numbers are tyrannised by the numbers of the Jubilee alliance. Mr Odinga cannot prevail in Parliament and unless he can marshall a persuasive legal argument, he cannot prevail in the courts of law. He is left with the only arena that has served him well: the streets. He has exploited the disaffection among a core of disaffected Kenyans - unemployed youth, mainly - and used them as canon fodder in his campaign against what he perceives as a compromised IEBC so far without luck. The disaffected are mostly on their own; white-collar and blue-collar Kenyans with steady employment will not be joining Mr Odinga's rabble when they have bills to pay. That is the second ground against the polarisation argument.

Words are important, if only to tell us what is and what isn't true. From the IEBC commentary, one could be forgiven for believing that the IEBC is either incorrigibly corrupt or it isn't; that Mr Odinga is sacrificing himself for the sake of a far election or cynically exploiting unemployed young people without pity for his own selfish ends. No one sees fit to remind Kenyans that Mr Odinga is not a paragon of virtue and his family's single-minded focus on the presidency has been utterly poisonous for inter-ethnic dialogue in Kenya. Kenyans too, need to be reminded that key members of the IEBC have been adversely named in a corruption conviction in the United Kingdom; their integrity is no longer assured. Finally, it is not a battle of ideologies between Mr Odinga and President Kenyatta (hence the polarisation hyperbole) but one of huge egos and wits. The "people" are merely the fig-leaf for what is a political quarrel among the sons of the founders of the First Republic. Whoever wins, as one Alien versus Predator poster had it, we lose.


Reforms? Don't be so naive.

If you are surprised that a Kenyan policeman has, over a relatively brief period of four years, has had financial transactions totalling one hundred million shillings, you are clearly living in some utopia where there is a robust social safety net, policemen are not taken for parasites, and the rule of law is the North Star by which we guide our public affairs.

It is with this in mind that we must consider whether the exercise known as police vetting is worth our national time. Since the promulgation of the Constitution, Kenyans have been exhorted to believe a fundamental lie: that their government and its institutions will be reformed. What happened, however, was the renaming of institutions and the redistribution of certain prerogatives that had hitherto been the exclusive preserve of the presidency. Reforms have not, and probably never will, take place. The National Police Service is proof.

Reforming the government took a back seat to political considerations long before the Committee of Experts was allowed to publish the Harmonised Draft Constitution some time in July 2010. Of the institutions that were supposed to have been reformed to reflect the democratic inclinations of the Second Republic were the Kenya Police Force and the Administration Police Force, the latter which played such a significant role in the 2007/2008 crisis. But from the way Chapter Fourteen of the Constitution and Articles 243 to 246 were drafted, it is clear that the CoE's and Government's idea of "reforms" was simply renaming the police and little else. This was affirmed by the enactment of the National Police Service Act and the National Police Service Commission Act.

Kenyans continue to be lied to that the magic bullet of institutional reforms is newer and better legislation. Again, the National Police Service is proof that it is not. Policing in Kenya has a long and ugly history. The police forces of Kenya were never employed for the safety or protection of the "native" population, but for that of the settler communities, the colonial government and the home guard made up of "native" quislings. The colonial government may have gone the way of the dodo, but the descendants of the settlers and the home guard, as well as the descendants of the pro-settler Independence government ministers and senior bureaucracy, continue to use the police forces of Kenya in the same exact way it was used before Independence.

It is why the recruitment and training of policemen remains unchanged, save for tweaks here and there to accommodate, say, computers, the internet, social media and electronic communications and financial activity. By and large, the institutions that were established to brutalise and subjugate the "native" populations have survived practically unchanged and just as corrupt as their forebears. It is therefore, not unusual for a policeman who makes forty thousand shillings a month, or four hundred and eighty thousand shillings a year, or (assuming a very, very generous-with-allowances police service) one million, four hundred and forty thousand shillings a year, to have transactions totalling a hundred million shillings in four years. It is only unusual that someone is surprised at the sums being bandied about as the "vetting" takes place in Mombasa.

Every time the Government is assessed on the degree of corruption that assails its firmament, the police forces, the judiciary and all the departments involved in procurement or accounting for funds, are ranked as the least trusted and the most corrupt. What surprises, for many of the discerning among us, is why more policemen are not transacting tens of millions of shillings in each year, though inexperience and naivete go a long way to explain why newly-minted policemen need the mentorship of their seniors to get going. (There was that corporal who was murdered together with his wife whose income couldn't explain the three cars in his name and the five-bedroomed house he was building in Kahawa West.)

Reforms, my friends, mean different things to different people, but to the institutions of our Government, reforms means the renaming of things and the redistribution of perks. No more, no less. The colonial behemoth established in 1921 endures, for better and for worse, mostly for worse.

Tuesday, May 24, 2016

Address electoral management in full

Kenya's problems over the past three weeks are not a matter of perception but I have no doubt that the Board of Directors of Brand Kenya and the "lobbyists" the Government of Kenya has expended great treasure on will find a way of massaging perceptions till up is up and pink is pink. Yet little will come of this massaging; the IEBC will be intransigent about the commissioner's resigning; the opposition will be intractable about; the ruling alliance will be implacable about its plans for the IEBC and the opposition. Perception-massaging companies are about to enjoy a bull run on the securities' market.

Kenyans are dying because of  a disagreement between the ruling alliance and the opposition coalition over the perceived integrity or lack of integrity of the commissioners of the IEBC. It is a year to another general election in which an incumbent with a complicated history with the leader of the opposition seeks to defend his presidency from the leader of the opposition. In 1997, the president was pushed to agree to a raft of half-measures by the opposition and, while the general elections were marred by spectacular levels of violence, they did not spill over into the new year. In 2007, the incumbent president refused to bend, even a little, on reforms to the election board, and the rest is a blood-soaked history.

Twice an incumbent has been asked to bend a little by the opposition and the only time he refused, Kenya was set ablaze by bloodletting, the expulsion of whole populations from their homes, the destruction of billions of shillings in property and the humiliating spectre of senior politicians being asked unfriendly questions by foreign prosecutors in a foreign court in a foreign land. The incumbent, so far, will not bend. Instead, like his predecessors, he will unleash the might of his disciplined forces on his enemies and he will crush them, if it means shooting down every idiot who thinks that they can bully his government's officials into resigning. Brand Kenya and other "lobbyists" will be on hand to massage perceptions in London or Washington, D.C.

Yet the structural infirmities in the electoral system remain unresolved and the alleged corrupt tendencies of key officials remain unaddressed in full. The instinct is to deny that the vapid and vacuous opposition has a point at all and to treat the opposition as a treasonous body out to overthrow the government by unlawful and unconstitutional means. This seems to give free rein to the lunatic fringe of the ruling alliance an incentive to push the envelope to its most extreme edge when it comes to the deployment of armed members of the disciplined services and the loosening to ridiculous limits of their rules of engagement when it comes to political demonstrations. The result, as has been published and broadcast around the world, has been death and gross bodily harm at the hands of armed agents of the state.

How commissioners are appointed, the direct and indirect role the play in the management of elections, their authority to authorise large public outlays for equipment and tools and their role as witness of parties to elections petitions are questions that neither the ruling alliance nor the opposition coalition have canvassed in detail, merely relying on sloganeering to make their point. If talks are to take place between the political belligerents, the people of Kenya must insist that the terms of the talks must address these niggly issues. If they don't, but only that short-term reforms are discussed and adopted, it is almost certain that the elections will be violent, though perhaps brief, and the problem will have been postponed for another ruling party and another opposition party. That would be a mistake.

A colonial way of doing things

It is dangerous to argue that the presence of an armed police constabulary, armed to the teeth, I might add, prepared to use force, including deadly force, to enforce the peace, engenders a peaceful business environment. There is a section of the Twittersphere that is convinced that Nairobi is calm because of the presence of armed riot police and that the swift breaking up of a political demonstration is a testimony to the peace credentials of our fair city. This notion should be swiftly disabused.

Kenya's protest politics, especially when spearheaded by Raila Odinga, has one outcome only: violent confrontation with the forces of law and order. Mr Odinga inspires the most visceral reactions whenever he is in the opposition, and now that he is free to lead a protest movement when he chooses, there is a section of the ruling alliance that sees it as their duty to crush Mr Odinga's putative rebellion. These people are idiots and they are the reason many Kenyans, especially Kenyans resident in this city, labour under a most unfair delusion that Nairobi is safe and peaceful.

The police in Latin American banana republics (I know, I know; what a pejorative term) are the principle agents in policing political thought and political activity. If the police is arrayed against you, and so long as your movement does not grow, your political activity will be greatly circumscribed. But if your political demonstration becomes a mass movement, as what Raila Odinga is attempting, very soon the army will be called out at which point, only one outcome will be acceptable: the total destruction of the enemies of the people, because that is what the opposition will have become.

Nairobi's central business district is neither safe nor peaceful; it is a boiling kettle whose lid is a tightly wound paramilitary police force. The dissipating teargas fumes are not proof of peace or safety and neither are the closed shops suffering hundreds of thousands of shillings in losses every time the anti-IEBC circus comes to town. What the quiet streets of downtown Nairobi reveal is an illiberal approach to political contest that eschews debate to bullying. They are the sign of a scared populace which will not risk life and limb in the illiberal political combat between the ruling coalition and the opposition.

A safe public space is devoid of overt demonstrations of police power; it is instead, characterised by green spaces, water points, seats. The Nairobi CBD, under the Kidero regime and the entrenched malevolence of the nationa Executive, is neither safe nor welcoming, unless one has a very fat wallet. What the anti-IEBC madness has revealed, if revelation were needed, is that we are yet to reverse decades of received wisdom about the relationship between the people and their government, and the place of robust political disagreement by way of demonstrations. Kenya, and more so Nairobi, is wedded deeply to the colonial way of doing things.

Friday, May 20, 2016

The lie

Some of the most fabulously wealthy people in the world are oil barons while others got there by writing computer code or designing flat-pack furniture or insanely expensive automobiles. Still others got there by getting humans to kill each other with the weapons they manufacture or by selling extremely cheap, extremely tasty, extremely unhealthy meals in thousands of cookie-cutter-same outlets. In Kenya, though, whether settler descendants, home guard descendants or entrepreneurs, many fabulously wealthy people got there by stealing from the peoples of Kenya through corruption.

It is hard to impress upon an outsider how strange it is to find someone's fabulous wealth is not the result of hard work, intelligence, luck and perseverance, but the ruthless grand scale thuggery and rapine that defined British East Africa for almost a century. There are so many Kenyans who are proud that Kenya has "discovered" huge deposits of oil and gas, rare earth and precious metals, because they think that Kenya is about to join the ranks of the truly comfortable Scandinavian, western European and north American nations.Thy believe that Kenyans will enjoy the same standard of living as Norwegians, Germans, Canadians or US citizens because of our discoveries oil, gas, rare earth and titanium.

These are Kenyans who have fallen for the lie. They hold sincere beliefs that their leaders have their best interests at heart. It is a belief that cuts across ethnic, economic and academic boundaries. It is supported by glossy brochures and easy-to-decipher pie-charts. In their world, A leads to B which leads to C, a straight line from discovery to great comfort and wealth. Naysayers who point to resource curses like the ones bedevilling Nigeria and Angola are accused of being wet blankets, hellbent in giving Kenya a bad reputation among outsiders. The ones doing the loudest accusing have a vested interest in the continued belief in rosy, saccharine endings.

Most Kenyans' tunnel vision regarding, especially, the oil hides the godawful truth about the future. If you look at the acrobatics and gymnastic contorting that took place to arrange the administration of our oil, you will notice a pattern that is wearily familiar. That pattern ends one way only: those who hope for a fair shake at the end of it all are going to find themselves in even greater debt and in ever greater penury, because these resources are not for the good of the people but for the good of the few. We are not members of the few. We never were.

Look at how the most precious capital has been allocated in Kenya, and you notice "the people" were a mere afterthought, noticed only when the buccaneers "developing" that capital build patently unsafe houses, illegally obtain certificates of occupancy, are waved on by every single regulatory agency, and cash in when the bloody reality occurs and dozens of Kenyans are killed in the dead of night. How Kenyans can still believe the fairy tale that they will get a fair share of the oil, the gas, the rare earth, the titanium...how they can believe after all these decades is a testimony to the brilliance in selling the lie. The lie has now taken a life of its own. It has become ubiquitous, like God. 

Kenyans hold onto its promise because the alternative is catastrophic disappointment. Kenyans will tolerate much because they believe that in twenty years, they shall be living in the Paris of Africa. Better yet, Paris will be called the Nairobi of Europe. The harsh, hard, cold truth would destroy us, it would destroy truth, it would destroy God. Yet the lie will never be allowed to die. Oil is here to save us.

Bob Collymore is right

Safaricom, the multi-billion-shillings-in-profit company, has been the victim of a crime. Bob Collymore, Safaricom's CEO, states that a draft report prepared for Safaricom's consideration was illegally leaked to the public. He is correct.

First, let us begin with Article 260 of the Constitution which defines "person" as including a corporation, of which Safaricom is one. Then we come to come to Article 31 which guarantees every person's right to privacy, especially sub-Article (d) which protects the privacy of a person's communications from being infringed.

The leaked report has energised the National Assembly, through its Finance, Planning and Trade Committee, to enquire into alleged graft at Safaricom, and has summoned the CEO, Mr Collymore, to appear before the Committee and offer an explanation. This brings us to Parliament's power under Article 125 to summon any person (including Safaricom's CEO) to appear before it for the purpose of giving evidence or providing information. This power can be exercised by either House of Parliament or any parliamentary committee, such as the Finance, Planning and Trade Committee of the National Assembly, and shall be exercised as if the committee were the High Court of Kenya.

The leaked report, according to Safaricom, is in draft form. Many of the outstanding issues raised in the draft report could be resolved once all the persons adversely mentioned in the report respond to the allegations against them to the satisfaction of the makers of the draft report. In this regard, the National Assembly jumped the gun; the draft report had not yet definitively accused Safaricom or its officials of graft. It had only documented allegations that needed clarification.

On the other hand, there is no provision that the National Assembly had to wait; common sense tells us that it should have waited for the final report to be published by Safaricom, before it summoned Safaricom's CEO. I hope that the members of the parliamentary committee understand that even though they have the High Court's powers when it comes to compelling the attendance of persons before it, Parliament could not act against the details of the report, even if they were true, other than by preparing a report of its own and directing the relevant agencies of the national Executive to take the necessary action. Parliament is restricted to obtaining information and preparing a report. It is not empowered to fire Safaricom's officials or levying fines against the company for graft or other crimes.

I believe that many parliamentarians remain unsure of their proper role when it comes to behemoths such as Safaricom, a publicly-traded company that is interwoven in our day-to-day lives in very intimate ways. They seem not to appreciate that Safaricom has a Board of Directors, a code of conduct and a corporate governance structure that should address internal company matters, such as whether company officers are engaged in acts of breach of trust, that is, breaches of their fiduciary duties to the company, its employees or its shareholders. And where the company commits any crimes, for example, where company officers, in the name of the company, pay bribes to public officials in order to win tenders, it is not Parliament that will act, but the National Police Service and the Director of Public Prosecutions with support from the Capital Markets Authority and, perhaps, the Competition Authority and the Communications Authority.

As of now, however, Safaricom is the victim of an unconstitutional act, the divulging of corporate secrets protected by Safaricom's right to privacy under Article 31. Bob Collymore is right to claim that this invasion of Safaricom's privacy is illegal, regardless of the fact that Safaricom is not a natural person.