Tuesday, January 27, 2015

What has Mr Wambugu been smoking?

Ngunjiri Wambugu, the director of Change Associates which is a "communications think tank," has the temerity to suggest that the situation in Kenya after the 2007 general election is the same as that that has prevailed in Palestine since 1947. I do not know which bits of the history books Mr Wambugu has been perusing, but I am sure that a people that has named what befell them the Naqba will be leery to be compared to a little-known political backwater known as the Rift Valley Province populated by two tribes that have had a love-hate relationship since the founding of the Republic.

This is not to downplay the hypocrisy of the United States government when it comes to its interventions in Palestine. But to compare the utter destruction of a people's homeland, their exile to foreign lands, and their complete betrayal by world powers to the political problems arising out of two tribal leaderships' collective myopia is to take hyperbole too far.

This is also not to say that the Office of the Prosecutor of the International Criminal Court had a credible case to begin with. Founded on flawed investigations that ignored basic principles of due process and fair play, the Kenya Cases at the ICC were bedevilled by problems even before indictments were handed down by the Pre-trial Chamber. Of the initial accused, Henry Kosgey, Hussein Ali and Francis Muthaura understood that for them to prevail, they had to challenge the evidence relied on by the Prosecutor to indict them. They let their lawyers handle it. They were vindicated. The remaining three, including the hapless Sang, pursued a two-pronged strategy that was flawed from the start.

The strategy - a political bandobast against the ICC and a legal assault on the ICC process - might have gotten two of the accused elected to the highest offices in Kenya, but it prolonged and complicated what should have been a relatively short and uncomplicated process. In the end, one of the Cases collapsed entirely with none of the accused standing trial at all; the other Case is at the Trial stage with the hapless Sang and the Deputy President in the dock. Any similarities between the Kikuyu-Kalenjin political animus with the human rights tragedy of Palestinians is only visible to Mr Wambugu.

In Kenya the instinct to appoint kingpins to represent our interests remains strong, especially if they are of the ethnic variety. It is not wrong in and of itself. But to equate the fate of the kingpin with the fate of the represented is stretching things too far and setting the stage for future horrors. Mr Ruto's and Mr Sang's trials are not trials of the Kalenjin just as the dropping of charges against Mr Kenyatta was not a dropping of charges against the Kikuyu.Mr Wambugu must take this to heart, because the charges filed against Mr Kenyatta were not filed against the Kikuyu nor were the charges filed against Mr Ruto and Mr Sand filed against the Kalenjin.

The temerity to suggest that the question of right and wrong, justice and injustice, is no longer germane is perverse too. In Kenya's case, whether we agree with the Office of the Prosecutor or not, the ICC handed down indictments against known people, not their communities. These people are accused of perpetrating great crimes; their communities remain blameless. At no point did the Office of the Prosecutor suggest that the organisations he spoke of were political parties or ethnic communities; this is something only Mr Wambugu sees. If the trial of Mr Sang and Mr Ruto is concluded, the verdict will be for or against them; the Kalenjin are not on trial. They never were.

Monday, January 26, 2015

An Arabian Two-step.

There are many Kenyans who work in the United Arab Emirates, UAE, without incident. They are treated decently by their employers and their rights and dignity are respected. They earn an honest living, and come home successful beyond many others' dreams. These are the Kenyans who spread their wings and give our nation pride of place in diaspora investment overseas. They should be celebrated and encouraged.

There are many more Kenyans whose work in the United Arab Emirates, and the Middle East in general, mirrors the slavery that prevailed in the 17th, 18th and 19th centuries in Arabia. They are not alone. European and United States' human rights activists and organisations have highlighted the plight of labourers in the Middle East at the hands of the Middle East governments, labour recruiters and employers at work sites. Whether these labourers are putting up billion-dollar buildings or stadia, or working as domestic servants or nannies, their fate is frequently the same: low pay, long work hours, virtual imprisonment, sexual and physical abuse and, many tragic times, death.

Now the Government of Kenya and the United Arab Emirates have struck a deal in which more than 100,000 Kenyans will find job opportunities in the UAE. The government's aim of this deal, it seems, is to ensure that the volume of remittances to Kenya from overseas increases. The promises for a more robust regulatory framework for employment agencies is likely to remain a promise for a long time to come if it is true that these agencies are "owned" by well-connected politicians and their front-men.

Kenya is not the only nation contemplating exporting its surplus unemployed and, frequently, unemployable. India, Pakistan, Bangladesh and Nepal have shipped off millions of their nationals to the UAE, especially in the burgeoning construction industry. Harrowing tales have been broadcast about the conditions under which these people live and labour in the dessert heat of Arabia. Many Kenyans have been recruited as domestic servants in the Middle East too. Most of the stories of their work has been of abuse and untold cruelty by their employers.

The plans for the export of Kenyans to the UAE to work are not bad - not on paper anyway. But if they are implemented in the manner that all government plans are implemented, 100,000 Kenyans should pause before accepting the entreaties of both their government and that of the UAE. This transition from the Kibaki to the Kenyatta regimes is proceeding in fits and starts, with some sectors showing improvement and others regressing to pre-Kibaki days. We hope that the plan to export Kenyans to the UAE will be in line with the reformed bits of the government.

The manner in which the policy was announced, and the secrecy surrounding the fine print, however, do not inspire confidence that the Ministry of Foreign Affairs and International Trade has any clue about what needs to happen - or how. It was completely in the dark about the seventy-seven mysterious Chinese nationals running a "radio station" in Runda. It doesn't seem to have any say over the threat to Lake Turkana from Ethiopia's two-hundred-and-forty-meter-high Gibe III dam. It has completely failed to pull Uganda from its lunatic edge regarding the Migingo Island imbroglio. And it is being pushed around by Tanzania over the reciprocal relationships of tour operators in Kenya and Tanzania.

I have a feeling if all these things are highlighted for the Cabinet Secretary, her first three minutes in response will be to pass the buck to someone else: Interior and Co-ordination of National Government, East African Affairs, Commerce and Tourism, and Environment, Water and Natural Resources come speedily to mind. But then again, the foreign ministry is not known to be at the forefront of reforms or forward-thinking.

If the Cabinet Secretary is truly the new foreign policy broom she says she is, she will do away with the natural instinct to hide and obfuscate everything and publish the policy, warts and all, for public scrutiny. It is the only way that the silo-mentality of the Ministry will be broken regarding the blind spots of the policy that we are surely to find. Her beloved policy will be enriched if she and her mandarins will accept outside criticism with open minds.

KANU lives. Sigh.

Charles Keter and Sunjeev Kour Birdi, popularly known as Sonia Birdi, are Members of Parliament. The initials "MP" are attached to their names. They are members, too, of the United Republican Party, URP, whose party leader is the Deputy President. They are members of the URP parliamentary party and serve on parliamentary committees. Mr Keter has been out of the limelight since he raised concerns at various forums over the public procurement for the Standard Gauge Railway, SGR, which is well underway. Googling Sonia Birdi seems to reveal little of note.

A video allegedly featuring the two MPs is doing the rounds in which they are depicted as attempting to bully policemen at a weighbridge to let through a particular lorry. Someone who bears a striking resemblance to Mr Keter is videoed making utterances of a threatening nature with someone who looks like Ms Birdi urging him on with unprintable words of encouragement. Voices in the background, presumed to be those of policemen, are heard arguing that their mandate is to enforce the law to which the belligerents in the video argue that it is they who make the law. We can only infer that the intended meaning is that those who make the law know it better than the ones who enforce it, and that it is the makers' interpretation that must prevail and not that of the law's enforcers.

We will stay as far away from making any conclusions about the behaviour of the MPs at the weighbridge; that we shall leave in the capable hands of clinical psychiatrists, consulting psychologists and epidemiologists of note. We will, however, bear in mind that there is a generation of Kenyans who never witnessed the KANU way of doing things who were given a master class of the KANU way from that video. The Jubilee government's spin doctors will have to work fast to persuade gullible Kenyans that the events depicted in the video are not symptomatic of the re-assertion of the KANU way in government. The Jubilee hash-tag army has to erase the impression in the mind of the public that #TeamJubilee is not the KANU wolf in Jubilee sheep's clothing.

The KANU way has certain pillars. For instance, institutions are irrelevant; all one needs is a strong man with the will to get things done. Another is the propensity for eliding the law and applying an interpretation of rules and regulations for the expedient resolution of problems. A third is the unstinting belief in the power of connections; with the right connections in the right places and with the right leverage, there isn't a problem that cannot be fixed. Finally, there is the hubris that comes with election or nomination to high office; it is inconceivable to the elected or the nominated that the initials "MP" would have very little purchase in the resolution of a law and order problem. The honorific is a badge of honour that must not only be respected, but feared and obeyed in equal measure. The drama at that weighbridge is not the first one involving our respected elected representatives and it will not be the last.

One of the reasons why the KANU way worked was because of the party's status as the ruling party in the period between 1982 and 1991, that is, when Kenya was a de  jure one party state. Everyone was a party member, whether they wanted to or not, and at the top of the party machinery in the grassroots was the KANU MP to whom everyone owed obeisance and obedience. Policemen at weighbridges, magistrates and prosecutors all took their cue from the MP about what was lawful and what was not. In some parts of Kenya, the KANU way still prevails, thirteen years after KANU ceased to exist as a credible national party. Yet its philosophy prevails. MPs throwing their weight around at weighbridge stations are proof that KANU may be going the way of the mighty moa, but its insidious software, its malign nature, lingers like the aftermath of a skunk attack.

Friday, January 23, 2015

The fairness of hypocrisy.

Let us see if I will get this right. My house gets broken into. I catch a glimpse of the burglar, but I cannot see him well enough to pick him out of a police identification parade. I report the matter to the police and tell them that I suspect that it is my next door neighbour with the funny accent. The police arrest him and produce him before a judge and charge him with the offence. They investigate further the crime. The collect evidence. My neighbour applies to the court to have the charge-sheet withdrawn on account that the evidence is insufficient to sustain a prosecution. The judges listen to him and withdraw the charge-sheet. I am angry. I apply to the court for the police to publish the evidence they had against my neighbour. They do so. The police and I are sore losers.

I do not care for the certainty that prevailed in the pronounceents of the Kenya National Commission of Human Rights members, the officials of the Kenya Human Rights Commission, the Prosecutor of the International Criminal Court or the Representative of the Victims in the Kenya Cases at The Hague regarding the guilt of Uhuru Kenyatta. It is a cardinal principle of law, upheld in all democratic societies, that a man is innocent until a court convicts him of a crime. Whether they will admit it now or some time down the road, Uhuru Kenyatta is innocent of the accusations levelled against him by the Office of the Prosecutor. Therefore, the application by the Victims' Representative to the Trial Chamber V, and the decision of that Chamber, to publish the Prosecutor's evidence regarding its investigation of Mr Kenyatta, is in bad faith and terrible violation of Mr Kenyatta's rights.

No one disputes that offences were committed in 2007 and 2008 and no one disputes that investigations were conducted by not one but three separate institutions before the International Criminal Court got involved: the Waki Commission, the Kriegler Commission and the Kenya National Commission for Human Rights. But despite the allegations made against Mr Kenyatta, at least two judges of the International Criminal Court were persuaded that he should never have been tried at The Hage, and the court eventually agreed with Mr Kenyatta's lawyers that the Office of the Prosecutor acted in haste when it preferred charges against him. The OTP should have completed its investigations before proceeding at all.

The Court was wrong to even entertain the application by the Victim's Representative. If Mr Kenyatta has not been tried or convicted, the evidence collected against him cannot be released unless it is intended to embarass him or foment hatred against him by the Court or the Victims' Representative. One or Mr Kenyatta's persuasive arguments before the court was that he was never given an opportunity to present alternative arguments regarding the allegations made about him before the various investigations into the 2007 and 2008 events. He was not accorded due process. The Prosecutor admits that she relied on the reports of these investigations a great deal while conducting her own investigation. Without Mr Kenyatta's rebuttals, the Prosecutor's as well as the Commissions' investigations amounted to a witch-hunt. With the publishing of this evidence, it apparent that the witch-hunt is not over.

Everyone keeps mouthing off about the rule of law; I have no problem with liars and cheats lip-syncing. But I will be damned if the sanctimonious windbags who do so are just as hypocritical as the liars and the cheats. Sooner or later, a legal process must end. Uhuru Kenyatta's at The Hague ended long before Ms Fatou Bensouda withdrew charges against him; the process came to an end when political expediency prevented the investigations from giving Mr Kenyatta his due when they accused him. They denied him due process. They cannot blame anyone else for the outcome but themselves. All he did was to use the product of their unfair tactics against them. Seems only fair.

Nature of the beast.

Tigers are magnificent animals. Their magnificence makes them desirable to the types of people who have everything and want something more. There are many narco-traffickers, dictators, showbiz types and "artists" who keep tigers as pets. Tigers are not pets. They are predators. They are hunters. They do not purr with satisfaction when petted by their owners; their tigritude lurks within them until one day it bursts forth and the tigers do what tigers do: hunt. Even tigers raised from when they were cubs eventually become hunters, predatory killers. That is the nature of the beast.

In the 1980s, before "cost-sharing" and "structural adjustment programmes", when the Kenya Bus Service provided exactly that - a service - before Nairobians discovered gated "communities" or built private citadels surrounded by high, apparently impregnable walls, topped up with razor wire and electric fences, and secured by "private" security, before all that, crime was not organised in any sense. Thieves and housebreakers might have belonged to gangs, but the gangs were not political voices to be feared or co-opted.

Something strange happened when Daniel Toroitich arap Moi directed the repeal of section 2A of the former Constitution. Something no one truly understood until 2007. What started out as the bare flicker of an idea in the "youth wings" of political parties and pressure groups, germinated into an idea whose time had well and truly come. Between 1991 and 2007, in tandem with the realisation that the government could barely pay its bills, political violence was organised around gangs that became organised criminal syndicates. Youth wings were cast aside; gangs became the preferred method of political zoning and political enforcement.

The idea was as cute as a tiger cub; the aftermath of its implementation is proof that tigers will eventually turn on you. In the 1997 general election, everyone worth his salt had a militia. It was the only way to guarantee that a vote would be relatively honest. These militia did not just fade away once the elections came to an end; they became permanent fixtures on the political landscape. To support themselves while their patron was away in Nairobi "representing the people," these militia provided "services" that the government no longer provided. Some were better at service delivery than others. The strong are in existence today; the weak have been destroyed, cast away on the ash-heap of bad ideas.

When the serious historians write the history of the Mungiki, they will be writing the history of the KANU theory of political survival, a theory put in practice that perpetuated a dead party's hold on power for twenty years after the bell had tolled for it. An assessment of the impacts of the KANU Way will reveal the insidious tentacles between organised criminal outfits such as the Mungiki, political parties, faith-based organisations, ethnic violence, land hunger and grand corruption. If "youth wings" had remained purely political institutions, politicians had not been lured to the attractions of unaccountable militia in political enforcement, and if the government had not tacitly and actively endorsed this madness, 2015 would not be witnessing alleged leaders of a pan-national quasi-religious organised criminal organisation summoning pressmen to their presence to deny any links with the massacres that took place in 2007/2008.

Liars, one and all.

We are all corrupt. We are all complicit in corruption. We are the reason why a Cabinet Secretary publicly declares that she is afraid to name a suspected land-grabber. We have enabled the escalation of high graft, and we can no more escape responsibility than we can hide the sun under a bushel. We are the proof that when the rubber hits the road we will all fall in line and rob our fellowman blind. It has taken children in the line of fire - literally - to bring out our shame, yet we are not ashamed. We have no shame. We still hold our head high.

One of those sometimes edifying morning FM radio shows examined our complicity in the deaths of tenants living in deathtraps masquerading as flats. One of the callers to the show baldly stated that if he raised his voice about the quality of construction and the apparent unsafe foundation of the building, he would be branded as a troublemaker by both his landlord and his fellow tenants and asked to vacate the premises post haste. He announced to the approval of the radio show's hosts that he chose discretion and would continue to live in the deathtrap.

Children are taught to value truth and justice. It is drilled into them. Sometimes the infliction of pain is used to reinforce that truth brings pleasure and lies bring pain. This message is put across by their parents, relatives, teachers and their very own government. The message is a bald-faced lie. The adults live by the adage, do as I say, not as I do. The adults perpetrate the most monstrous lies and commit the most heinous acts of injustice. They do so without shame. They do so in the full glare of their children's eyes. They do so because they have persuaded themselves that "this is how the world works."

As we have accepted the lie we have accepted the liars and those in the service of liars. It is how a Governor and two Cabinet Secretaries will not hesitate to pass the buck to some mysterious powerful person. They will argue without shame that they did no wrong, that it was some underling who's "values" have been perverted by a mysteriously powerful outside force. They will plead weakness despite the obviousness of their power. They will plead ignorance despite the obviousness of the information at their disposal. They will threaten resignation despite the obviousness of that lie.

And as we have accepted the lie and the liars we have made liars of ourselves. We pretend that we do not know the people whom we allow to wield such power. We pretend that we do not know that they will rob us blind or allow us to be robbed blind. We live in a make-believe world in which we are the only honest ones, forced to do unspeakable things in the name of survival. We know it to be a lie. We want to lie. We want to lie because we all want to be rich. We all want to be rich without the benefit of hard work, intelligence and luck. In a month or a year or five years, when our pigeon-like memories of #OccupyPlayGround have faded, we will pretend that the newly constructed five-storey hovel on the same playground has always been there. We will have come full circle. And we won't care.

Wednesday, January 21, 2015

Playgrounds and loyalties.

There are circumstances that demand loyalty. More often than not, they revolve around the fates of our loved ones. Sometimes our loyalties are tested when the fates of groups larger than our families are at stake, but those should be few and far between. I am loyal to may nation, a democratic republic to which I will always return no matter where my travels take me and regardless of how long my travels are. I will always be loyal to my nation, but that loyalty will never supersede my loyalty to my flesh and blood. Those are the only kinds of loyalty that I would consider to be absolute and sacrosanct.

These days I am called to be loyal to my friends, my employer, my boss, my supervisor, my tribe, my business partner, my government, my president, my elected representative and a host of others to whom I am increasingly finding it difficult to be loyal to. My loyalty is taken for granted; it is assumed to be freely given without corresponding obligation on those that would demand it. I am told to be loyal because that is what a person in my position must be. I am told that if I do not demonstrate my loyalty, such disloyalty will come with consequences. The consequences are not spelt out, but they are intimated to be dire.

Loyalty is easy to demand, difficult to enforce in the face of the fundamental misunderstanding about the obligations that loyalty must engender. If I am loyal then it means that correspondingly I derive benefits from the one I am loyal to. My loyalty to my family and friends is amply rewarded by their commitment to my well-being and succour in times of hardship. My loyalty to my employer is more complicated; I will display that loyalty by doing what I am paid to do to the very best of my ability and to the highest standard I can muster. But because I know that my employer will not mourn my passing nor pass around the hat to defray the costs of my eternal interment, I see no reason why my loyalty should extend to sacrificing my time or my shilling to ensure that my very best work is done even when I have no obligation to do it. The same conflicted feelings go for my boss, my supervisor, my tribe, my business partner, my government, my president, my elected representative and all the rest of them.

The demands for Kenyans to demonstrate their loyalty by not taking the names of the high and mighty in jest have been rising in recent months because social media have proven difficult horses to corral. Individual users of social media have been prosecuted or investigated because of intemperate statements they have made about holders of high office; the aftermaths of these prosecutions or investigations have included calls for the demonstration by all Kenyans of loyalty to the holders of these high offices. In the light of the arrogance demonstrated by the high and mighty regarding the comforts of the huddled masses, that is a demand too far.

Someone demanding our loyalty permitted a school playground to be unlawfully allocated to a third party, refused to take any steps to reverse the allocation, stood idly by as the third party proceeded to alienate the playground, ignored calls from parents and school administrators alike to stop the alienation, ignored warnings that parents would ensure that the playground was accessible to schoolchildren, sided with the third party by deploying police to keep schoolchildren from entering the playground, authorised the police to attack the schoolchildren with "non-lethal" weapons when they demanded access to the playground, and then blithely declared that after all the playground belonged to the children and that they had nothing to fear. These are the people to whom we are told we owe our loyalty. Our loyalty would be freely given if they did not treat it as a right to which they were entitled, but a privilege which they earned by serving us as they promised they would.

Tuesday, January 20, 2015

What are Jubilee's prioties and duties?

Of course it is ridiculous for children to face off against riot police wielding weapons. The National Police Service, when in riot control mode, is not known for gentleness when dealing with protesters. But if there is any adult in the Ministry of Interior and Co-ordination of National Government who believes that a confrontation between tees and pre-teens and the tear-gas-shotgun-wielding policemen would end well, I believe there is a bridge in London they might be interested in purchasing. It was going to end in tears. And it did.

Whether children should exercise their rights and freedoms under the Constitution is not as simple as it sounds. It wasn't a simple black-and-white decision when the children of Soweto protested how apartheid affected their education and it wasn't simple when the children of Langata Road Primary School were used, and are being used, as pawns in a broader pro-Jubilee/anti-Jubilee political war. Some allege that land thieves are having a field day under the current regime; they are emboldened enough to exercise dubiously acquired rights over real estate with the confidence that not much will be done to challenge their tenuous holds over the properties. Indeed, some are very confident that when they do exercise their rights they will do so with the full protection of the National Police Service.

The President and Commander-in-Chief has reiterated his commitment to fight graft on may occasions. The institutions that constitute his government have done a great deal to undermine the President's pledge. The case of the Langata Road Primary School playground offers the President yet another opportunity to do the right thing but from the media appearances of politicians and public officials, it is quite clear that core of the challenges facing the President will not be challenged. Heads and sand will make contact, pray for the storm to blow over. Ostriches will be proud.

It has been two years and even given the sloth-like speed of the public service when it comes to reforms, the pace of change at the Ministry of Lands continues to raise doubts about the reform credentials of the Jubilee administration. Mwai Kibaki initiated the digitization of Kenya's land records; three ministers under him oversaw three separate programmes, the last being the half-assed attempt by James Orengo. It is Uhuru Kenyatta's turn now and for this onerous task he has Charity Ngilu doing the heavy lifting. However, one gets the feeling that other than the political fanfare of ten-day registry closures, and photo-ops at Ministry offices, business-as-usual seems the preferred way way of addressing the rot in land administration. As a result, doubtful titles are used to obtain local permits for morally reprehensible projects that affect the poor and the forgotten.

What we are witnessing in the aftermath of the #OccupyPlayground protest is a government desperately looking for any excuse not to take responsibility for its own stark failures. When the Cabinet Secretary for Lands, Housing and Urban Development and the Chairperson of the National Land Commission assured parents and stakeholders that the playground belonged to the school, the unlawfully erected perimeter wall should have been demolished. Nothing happened. When the civil society industry announced that it would march to the school to guarantee that the children's rights to play in the field was respected, the deployment of the police should have been for the purposes of protecting the children from harm.That is not why the police were there, if the teargassing of the children is to be seen in context. The mealy-mouthed attempts to blame civil society, the children's parents and the school's administration for the outcome of the protest is one more sign that despite the messaging discipline of #TeamDigital, this administration has a poor understanding of its priorities - and its duties.

Monday, January 19, 2015

My mother was right.

My mother is being proven right each and every day local yokels are in charge of public policy. However, he solutions to my future challenges appear pie-in-the-sky-like; I do not think Canada, Australia, New Zealand or Scotland will welcome me with open arms when they find out that all I would be interested in is their rather effective free basic education for my sprogs. That would simply not be on for them. But given that is now OK to fire weapons at schoolchildren, I don't think I have a point any more.

The last decade has been bad for those Kenyans who use public schools. First, the Cabinet Secretary for Education "banned" the ranking of schools whose candidates sit for the national examinations. Second, teachers' unions went on strike because their employer, the Government of Kenya, personified my the Cabinet Secretary for Education, the Cabinet Secretary for Labour and the Chairperson of the Teachers Service Commission refuse to "sit down and negotiate in good faith" regarding the pay deal signed - wait for it - eighteen years ago. And now it is the policy of the Government of Kenya, personified by the Cabinet Secretary for Interior, the one for Education, the one for Lands, and the acting Inspector-General of Police to fire weapons at children. (Whether they are non-lethal or not is not the point; it is a matter of time before they morph from non-lethal to lethal.)

St Andrew's, Turi, the Banda School, Braeburn, Brookehouse and the Peponi School cater to a segment of the society to which my aspiration exceeds my talents. Should I dedicate my extra waking hours to side-hustles, abjure all my vices and extol the virtues of ritual fasting, i think I can just about take advantage of the Riara Group of Schools' excellent facilities or those of Makini School. I know for a fact that whatever appetite I had for even well-performing public schools is now over; in "poor" public schools the police can fire weapons at your children. only an idiot wants his child withing a hundred feet of a public school at which policemen stomp about like angry rhinos.

It isn't just the risk to my child that gives me pause about educating him or her in Kenya; the quality of education in public schools has tanked in recent years. The pursuit of examination marks - rather than education - is the overriding mark of public education. More young Kenyans are handicapped in the long run because they are incapable of comprehending simple instructions despite the numerous certificates they have amassed over their long academic careers. It is distressing that employers have to set up what amount to remedial programmes to prepare even university graduates for the employment on offer.

I do not know whether my children will surpass their father in academic achievement - or whether they will pursue a different goal. I know that the choice is not available to them because Mr Kaimenyi's ministry, today as over the past decade, is presiding over the hollowing out of polytechnics and middle-cadre colleges for the illusory prestige of university and university-college status. Should my child wish to become a master welder, of whom there are few and far between in Kenya, there isn't a polytechnic that could offer him the opportunity to train or apprentice. His only choice would be to join the National Youth Service or the Defence Forces; either option could see him firing weapons at schoolchildren.

Promises were made; none are being kept. My mother was right; she always is. It is time to bite the bullet and sidle over to that friendly immigration officer from a Commonwealth nation that shall remain unknown and begin the arduous courtship that might secure for my family permanent residency and the guarantee of a good education without the chance of the police firing weapons at my children.

Mr Nkaissery's honeymoon is over.

My low opinion of the National Police Service has not changed. My low opinion of the men and women in charge of policing policy, police training and everything in between has not changed. If it is true that police lobbed tear-gas at primary school children exercising their Article 37 right to assemble, demonstrate, picket and petition, it might yet fall lower, even though I am now scraping the bottom of the barrel when it comes to the securocracy.

The fallacy that a change in management was all that was needed to sort out policing and its flaws has been exposed. Hon. Maj. Gen. (Rtd.) Joseph Nkaissery was the new boy expected to get policing ticking over like a fine Rolls-Royce; teargassed children makes policing more akin to a diesel-belching Route 12C "Nissan". Until Joseph Kipchirchir Boinet is confirmed in office, Samuel Arachi will continue to act in office - presumably faithfully tracing the steps of the hapless David Kimaiyo, including the incredibly stupid decision to grab public sidewalks in the name of security.

A change in the management of the securocracy should have gone hand in hand with a change in the ethos of the men and women in charge of our safety and security. That does not appear to be something that was contemplated by the powers-that-be. The National Police Service appears to be a well-oiled machine for the suppression of political discourse that displeases some of the high and mighty - or a weapon for the cowing of the downtrodden and marginalised. It beggars belief that the National Police Service's bosses would authorise the deployment of policemen in riot gear to a primary school, allegedly lob teargas at children and respond to the alleged teargas incident by, (a) denying it ever happened, and (b) justifying it by declaring that "children over the age of eight years can be charged in court for (sic) destruction of property."

It also beggars belief that, despite being warned that the demonstration was coming days in advance, the Cabinet Secretary for Lands, Housing and Urban Development would wait for the teargassing of students to declare that the land in question belongs to the Langata Road Primary School, without explaining how her Ministry and the County Government of Nairobi County could have missed the construction of a wall around the playground and why she and her Interior ministry colleague are still silent about the deployment of the police to the school in the first place.

Those with a conspiratorial paranoia about "corruption in high places" will allege that "it is someone high in the government" who grabbed, or tried to grab, that playground. They will advance no proof for their allegation, but they will be widely believed. It is in the nature of a largely illegitimate system that paranoid conspiracy theories gain credence. None is as illegitimate as the National Police Service and the manner it has been used throughout the history of this country.

The shameful display of police power today also erodes the legitimacy of the Jubilee government. If the playground was legitimately acquired, the person who acquired it should have declared the acquisition and the deployment of the police to protect his property would have been legitimate. But because it is likely that the acquisition involved malfeasance in the Ministry of Lands and the Nairobi City County Government, the deployment of the police raises more questions than I believe the Cabinet Secretary is willing to answer. Who ordered the police to Langata Road Primary School? Who ordered them to fire weapons at children?

Cabinet Secretary Nkaissery made many promises on the day he was appointed. He's a politician, so holding his feet to the fire over his promises is futile. But he is in charge of the policing apparatus of this nation. It is his responsibility to ensure that policing resources do not become the fulcrum with which great crimes will be perpetrated against the people by unknown and faceless people. This is something for which we can hold him to account. The same panga that cut short Joseph Ole Lenku's ministerial career is the same panga that will cut short Mr Nkaissery's if his police continues to behave as if it is still operating in the colonial era.

Children, teargas and land hunger.

Prosperity is not possible without capital; the foundation of capital is frequently land. "Prime" land in Kenya's Capital is scarce; the vanished open spaces in Nairobi's suburbs is proof. Not even public schools are spared, it seems. The imbroglio involving the Langata Road Primary School should not come as a surprise to the members of the Ndung'u Commission, whose report document the hundreds of thousands of acres of public lad that had been grabbed since 1963.

The world over, land is the basis for wealth creation. It s so in New York, London, Rio de Janeiro and it is true in Nairobi, Mombasa, Nakuru and Kisumu. It is Kenya's Original Sin; the British settlers relied on a dubious application of English law to decide the fate of a territory to which they laid a dubious claim. The lessons learned from Imperial Britain have been applied with brutal ruthlessness for fifty one years. Going by the images of pupils suffering the predation-by-tear-gas of the National Police Service for exercising their right to assemble, picket and demonstrate under Article 37, it is clear that the next fifty one years will not differ much from the previous fifty one.

Land hunger is real. It is the basis for historical grievances. It is the basis for ethnic enmity. It is the basis for political instability. It is the basis for the radicalisation of a segment of Kenyan society. It has been a political problem since the swindle of the Million Acres Scheme. Successive regimes have failed to resolve the problem of land hunger; instead, cronyism, nepotism and corruption have defined the land policies of the government. It is the sunniest optimist who believes that the current land policy - if one exists - will surmount the difficulties of the past and settle, once and for all, the Land Question for posterity.

In the Twenty-first Century a war will be lost because of the paucity or the low quality of information available to the belligerents. In Kenya, there is a war over land, and the belligerents are the vested interests from the regimes of the past and the newly assertive peoples of this land who want a fair shake in the corridors of the government. In Kenya, one side is winning because it is asymmetrically better informed than the other side. Information on who owns what land and in what form is privileged information available to an elite few. This asymmetry handicaps those who would wish to contribute meaningfully to the resolution of the Land Question. Unless the information asymmetry is addressed, Kenya's Land Hunger will morph into a Land Starvation he effects of which could very well be catastrophic to economic investment and political comity among ethnic communities.

In an information-starved bureaucratic environment, it is the corrupt who have the power. The corrupt will never exercise this power for the public good. They will do so for selfish ends. Because they now that their days at the trough are finite, they will seek to camouflage their identities; they will hide behind corporate identities (whose records will permanently be unavailable to the curious) and they will employ nominees bound by rules of privilege such as lawyers. Their tentacles will spread to the makers of policies and the enforcers of government diktats. Their hearts will harden against the weak and marginalised; in order to secure their ill-gotten gains, they will not hesitate to unleash police, police dogs and teargas on children and reporters.

Kenya's choices regarding land are not stark; the Constitution makes them plain as day. It is the will of our representatives that is lacking. Where there is a will, there is a way. Our will as a sovereign people is being tested today. Whether we impose it on our government will determine whether in a decade we can count the teargassing of children as the straw that finally broke the camel's back and initiated the proper reforms needed to quieten the cries of the perpetually land hungry.

What is the limit of Article 24?

Kenya's Constitution recognises the people's aspiration for a government that values democracy. It provides for the democratic election of representatives of the people, and states that Kenya shall be a multiparty democratic state. The mainstays of Kenya's democratic status include the sovereignty of the people, the supremacy of the Constitution, the rule of law, and the Bill of Rights. Among the rights and fundamental freedoms in the Constitution are freedom of expression, freedom of the media and the right to freely assemble, demonstrate, picket and petition the government.

Article 24, however, provides for the limitation of a right or fundamental freedom. The limitation shall only be according to law and, even then, only to the extent that the limitation is reasonable and justifiable in an open an democratic society [and] based on human dignity, equality and freedom. In the wake of the enactment of the security Laws (Amendment) Act, 2014, it is alleged that the successful prosecution of a university student for "undermining the authority of a public official", the detention and interrogation of a blogger for the "misuse of a registered telecommunication device" and the proposed prosecution of a member of Parliament for "hate speech" are all harbingers of the "rolling back of the democratic gains made by Kenya in the past two decades."

This allegation is founded on the argument that these Kenyans have used social media in ways that the government has found discomfitting, and rather than the government taking credible steps to address the exposes made by these Kenyans, it has chosen to pursue their prosecution because of the fear that these Kenyans will either undermine the authority of the government or will lead to the fomenting of unrest abroad in the land.

The allegation may very well be true. In Kenya change has always come after the intransigence of the government was been worn down by popular will. The repeal of section 2A of the former Constitution came after the popular insurrection by the Forum for the Restoration of Democracy, FORD, galvanised the popular imagination of a majority of Kenyans. The promulgation of a new Constitution in 2010 was after the concerted efforts of civil society and the political opposition against the wishes of the ruling coalition. Therefore, the proper implementation of the rights and fundamental freedoms of Kenyans in Chapter Four of the Constitution will not be without the sometimes active opposition of the government or some of its key officials. The prosecution or criminal investigation of bloggers for what they say online is a sign that a paucity of ideas pervades certain sections of the government and only the concerted pressure of the people will force the government to call off the dogs.

The extent of the application of Article 24 to the Bill of Rights must be tested in the High Court. It will require that the political opposition and the civil society join hands to challenge every attempt by the national Executive to limit the enjoyment of the rights and fundamental freedoms enshrined in the Bill of Rights. Despite the sacrificial lambs tag, activists such as Boniface Mwangi and John Githongo, lawyers like Yash Pal Ghai and Ekuru Aukot, politicians like Moses Kuria and Jakoyo Midiwo, must keep pushing the boundaries of the Bill of Rights for as long as possible so that at the end of the day ineffective outfits such as the National Cohesion and Integration Commission and the National Gender and Equality Commission are scrapped and the High Court is confirmed in its rightful place as the true arbiter of what the Constitution means.

Thursday, January 15, 2015

Kwame Owino gets it right.

Kwame Owino is right: You cannot make people nicer by making all their bad behaviour a crime. Mr Owino properly diagnoses the problem and his solution is quite likely better than that advanced by the government through the National Cohesion and Integration Commission, NCIC. However, even if we agree with Mr Owino, it is quite likely that the government will double down on the bet it has made with the NCIC and pursue the same course of action that has done little to promote national cohesion or integration of the diverse peoples of Kenya.

The recent investigations and prosecutions for "hate" speech by the NCIC and the Office of the Director of Public Prosecutions prove Mr Owino's thesis. It can also be revealed in the manner the debate around national security has been conducted. The government's argument is that the statutory regime has proven inadequate in ensuring the security of the nation. While acknowledging that national securiy has been affected by a complex set of circumstances, its solution has remained a legislative one in which harsher penalties have been prescribed for offences in the Penal Code and similar statutes. Statutory solutions have very rarely enhanced national security in Kenya. The enactment of the security Laws (Amendment) Act, 2014, will, similarly, prove quite ineffective over the long term.

Part of the problem has been the conflation of public safety with national security. This is a problem that is also reflected in the constitutional understanding of the two interconnected matters. In nations with robust public safety institutions, policing is geared towards the safety of the people, and only slightly to the security of the State. The security of the State (national security) is left to the defence forces and the intelligence agencies of that nation. Policing is more concerned with ensuring that the public is protected from crime so that, for the most part, it can go about the pursuit of wealth and happiness.

Policing should be part of a larger system for enhancing the safety of the people. In this the devolved government has a larger role to play than the national government. Co-operation between the ministry responsible for policing and the devolved government will go a long way in reducing petty crime and ensuring that more serious crimes are effectively investigated (or solved) and, where required, offenders are successfully prosecuted and rehabilitated where possible. But where the devolved government adopts the failing national policies on public safety, the problems are magnified.

Some of the areas in which the police establishment and the devolved government can co-operate on include information sharing. With the right kind of information, analysed in the correct way, a county government can design an effective public safety infrastructure that promotes civic pride, which in turn will encourage more people to invest in income generating work, increasing local revenues for the county government, which can then be invested in the kind of infrastructure that improves the quality of life for the people. Information on the kinds of crimes committed, their spatial spread, the demography of offenders and the like will determine what kind of interventions required. In some cases, no doubt, penal provisions may need to be enhanced; in many others it might be the simple provision of street lights, or better drainage and sewer facilities or even the building of recreational facilities such as public parks or social halls might channel the energies of the idle to more productive ends. an improvement in public safety may then contribute significantly to national security.

The problems with the NCIC approach to hate speech are founded on the same administrative myopia as the challenges faced in national security. It is time the government and its institutions reassessed the legislative-led solution to problems paradigm. If penal provisions were the panacea for crime and criminality - the deterrent effect, that is - crimes of opportunity would have dissipated over the life of the application of the penal Code since its enactment by the colonial government in 1948.