In Kenya, we don't abolish empires

The Government is in the empire building business, not the empire killing business. I saw an interesting tweet: I am getting to that point whereby I’ll vote in anyone who vies and promises to stop Housing Levy and SHIF deductions. I immediately saw the flaw in the wish: your candidate will stand in the election and promise to abolish the Affordable Housing Levy (AHL) and Social health Insurance Fund (SHIF) deductions but the moment he takes office, he will abandon his promise and, instead, find a million ways to make you comply with the law. Let me illustrate with a story about the consequences of the Constituencies Development Fund (CDF).

When it was initiated in 2003, it was meant to facilitate greater citizen involvement in development decisions at the grassroots level, and complement the central-government-led development framework that revolved around the corrupt provincial administration. It was a resounding success in its initial stages and many citizen-focussed development projects were completed that immeasurably improved lives and livelihoods.

The model was thereafter expanded to youth enterprise development and women empowerment with establishment of the Youth Enterprise Fund (YEF) and the Women Enterprise Fund (WEF). These were later followed by the Uwezo Fund and National Government Affirmative Action Fund (NGAAF). Suffice to say, the Funds succumbed to the corruption that eventually took root in the Kibaki Government and they have concisely lost billions for years with little to no accountability.

Facing a severe cash crunch, in 2019 Uhuru Kenyatta's Government attempted to roll all the various enterprise funds into one, the Biashara Kenya Fund, and wind up the other funds by transferring their balances into the new one. Parliament was having none of it. The Funds had become empires unto themselves and nothing short of an act of God is going to wind them up. This is true of the Affordable Housing Levy and Social Health Insurance Levy.

The monies raised by the two new programmes is so enormous - tens of billions of shillings per month - that no one in the national executive or Parliament is interested in winding them up. So long as this Government stands and so long as its parliamentarians enjoy a majority in the National Assembly, Kenyans will pay through the nose for "affordable housing" and "social health insurance" even if the majority will never get an affordable house are receive comprehensive social healthcare.

The only time the Government abolishes one of its empires is when it is replacing it with another bigger one. The original NSSF was replaced by a new NSSF. NHIF was replaced by SHIF. CDF was replaced by NG-CDF (and all this in the face of judicial decrees). If Biashara Kenya had been structured as two replacements for YEF and WEF instead of one, it would have gone through without a hitch. The AHL and SHIF empires, with all their inequities and iniquities, are here to stay.

The false dream of a national dress

Every once in a while, someone with little to no business about it tells me how to do my job. They ("they" are people with a bit of power and, perhaps, a bit of seniority, but very little technical ability, if any) look over my shoulders as my fingers flit, with nimbleness and confidence, over my very expensive mechanical keyboard, and attempt to tell me what to draft (and much, much worse, how to think about a legislative sentence). Those kinds of attempts are made only once by these sorts of people and they never darken my door again. One even had the temerity to try and pull of an appeal to authority fallacy on me. Anyway, this is not about my challenges dealing with the professionally feeble-minded in my profession but about the "Kenya National Dress", a national government cultural boondoggle that has consumed tens of millions of dollars for dogs' years with nothing to show about it.

The Government has tried on many occasions to impose on the Kenyan peoples a national dress. It has failed. The Government has made these failed attempts because its instinct to control every aspect of the Kenyan peoples' lives, especially their cultural lives, has endured from the moment a white man set foot on the shores of Nam Lolwe and decreed that the bare-breasted women of the Kavirondo should cover up because he felt some type of way. Rather than educate himself on the culture and lives of the peoples he encountered, mzungu imposed on the "native" peoples his culture and enforced his cultural norms with a combination of biblical interpretation and coercively violent police power. The Government has carried on this tradition without batting an eyelid, explaining the obsession with a "national dress". So long as the effort for a national sartorial identity is driven by the Government, the effort will fail abjectly.

The several state-sponsored institutions of high learning employ cultural scholars of no mean repute who have documented so much of the Kenyan peoples' cultural histories. Even in the grasp of an overweening government that sought to police how they could write what they wrote, these men and women have published truly ground-breaking work on what the peoples of the land that eventually became Kenya spoke, did, ate and dressed in, and why. Bethwell Ogot's truly magisterial "A History of the Luo-Speaking Peoples of East Africa" is indicative of the gifts our historians are capable of bestowing on us if the government kept its grubby controlling fingers out of the kitchen.

Government ministers, and the mandarins they command in their ministries, are not scholars, though these days the corridors of the national and county executives are festooned with men and women brandishing PhDs (both real and honorary) like weapons. But these people are not employed in the government because they are scholars; they are employed in the government because they are (or are capable of being) able administrators. Their output is not composed of scholarly works but rules, regulations, policies and a mysterious document called a budget. So it beggars belief that government ministers (and their minions) think they have the cultural intelligence to supervise the development of a "national dress" that will unify the over fifty cultural traditions that are to be found in the borders of the Republic of Kenya. This kind of arrogance is why many Kenyans have lost faith in the senior-most ranks of the public service, and more and more Kenyans are treating the entire public service like a nuisance at best and an invasive cancer at worst.

The government, this Government, exists to control the people it is supposed to serve. It has long-struggled to cede control to the people despite the bold declaration in Article 1 clause (1) of the Constitution that states that All sovereign power belongs to the people of Kenya. And so, tens of millions of dollars more will continue to be wasted as ministers and ministry wankers look high and low for inspiration to create, finally, the Kenya National Dress and parade it in all the runways of the world. That kind of arrogance beggars belief. In the face of thirty years of abject failure, these people are still forging on in search of an elusive, unattainable dream. To paraphrase Henry II, will no one rid us of this pestilential and wasteful white elephant?

Will the Koome Court ever achieve greatness?

I saw an astonishing series of social media videos yesterday: the Judges of the Supreme Court gravely and seriously declaiming about the jurisprudence of the Court. Then the members of the Court, led by its president and deputy president, presided over a televised spectacle at which Chief Justices emerita and the leading lights of the executive, the President and Deputy President, were in attendance, and the subject du jour was the twelve years of jurisprudence by the Court. The PR game has finally alit at the Supreme Court of Kenya.

The judiciary of Kenya has a long and complex relationship with the peoples of Kenya, the complexity revolving around the way the judiciary was used to dispossess Kenyans of their property, violate their rights and fundamental freedoms, entrench human rights abuses within the fabric of the justice system, and perpetuate and sustain two dictatorships in rapid succession (three, if you count the tyrannical dictatorship of the colonial government).

The promulgation of the new new constitution in 2010 was supposed to be the birth of a new judicial dawn. Just as the defeat of Baba Moi's project was supposed to be in December 2002. Instead, the Kibaki era gave us the Radical Surgery that was neither radical nor surgical. And the Uhuru Kenyatta era gave us Judicial Vetting that did very little actual vetting. The outcome, in both epochs, is the sad realisation that "independence" as understood in Kenya is the independence to spend public money on projects of doubtful value without oversight or control.

From the moment the Ministry of Finance handed over the Income Tax House to the Judiciary, and it was repurposed as the Milimani Law Courts, the Judiciary has been spending our money like drunken sailors on shore leave. Willy Mutunga, CJ emeritus, supercharged the profligate squandering of public funds with his expansive real estate projects in the name of construction of law courts to bring justice closer to the people. For sure, the courts came to the people, but justice remains just as elusive.

David Maraga, CJ emeritus, was more successful in his efforts to bring justice closer to the people. Despite the reckless sabotage by the Law Society of Kenya, he set in motion the rollout of the Small Claims Courts that will have far greater impact on the lives of litigants that the seventy or so new law courts that Dr. Mutunga built.

The incumbent Chief Justice does not have a real estate empire to build or a brand-spanking-new judicial paradigm to shift. The judiciary she heads is a grab bag of judges who have found lawyerly arguments to get around their obligations to make judgments in the best interests of the child (that means you Mr. Chitembwe) or have not had the best luck staying out of political contestations (as ex-DP Riggy G can attest). All that she is left with is a strong desire to be seen to do something, anything, even if it means publicity that is inexplicable and confusing.

Even the most dull-witted and uniformed Kenyan knows the case of Roe v Wade. A few of the more ambitious among us can give a solid explanation of the holding in Giella v Cassman Brown. Heck, I was in Nanyuki in May and one of the nicer servers at the hotel I was staying in had very strong opinions on the Muruatetu Case. Despite Willy Mutunga's real estate shenanigans, his Supreme Court set precedents that we shall cite for decades. The current Supreme Court, alas, will be reduced to PR as it waits for a real case to come before it. And that is its tragedy: it is seeking the chance to be a consequential court and in its desires, it is making mistakes that will cost the Court its legitimacy in the long run.

William Shakespeare remains the source of many, many quotable quotes. This one from Twelfth Night is apposite: Some are born great, some achieve greatness, and others have greatness thrust upon them. The Koome Court was not born great. It can only hope to achieve greatness if it steels itself against the temptation to seek greatness in the political wilderness. But it is mistaken if it thinks that Kenyans, and the politicians Kenyans have elected, will thrust greatness upon it. The PR stunts of the past week are not the way to achieve greatness.

Kenya is not the Occupied Palestinian Territories

When the British arrested the men they accused of being the leadership of Mau Mau in 1952, imposed a state of emergency over Kenya Colony, and waged a brutal campaign against Kenyans, there is no doubt in my mind that what Kenyans did to resist the British crimes was not just justified by also morally right. The Kenyan collaborators who were murdered deserved to be killed; after all, because of their actions, Kenyans had been killed in sometimes very heinous ways. The resistance by the Palestinian people against the crime of the Israeli Occupation Forces, including the targeting and killing of Israeli civilians, is justified and morally right.

Any person who tries to compare the corrupt edifices of the Kenyan state to the British colonial government or the Israeli occupation of the Palestinian Territories is not a serious person. I understand how decades of frustration have led to many Kenyans, in their despair, to seek the short cut of murder, violence, mayhem and chaos. In my opinion, they are wrong.

Kenya has had two false starts in the past twenty five years: in December 2002, when Mwai Kibaki was elected as president, and in August 2010 when Kenya promulgated a new constitution. The Kibaki regime made many positive strides towards rebuilding the institutions of government but just as equally, swiftly reversed those gains and supercharged the corruption of the state to unforeseen levels. It was no longer grand corruption; it had morphed into grand looting.

The date of the promulgation of the Constitution - the 27th August, 2010 - was the last time that the new constitutional order was respected, defended, upheld and protected by anyone of consequence in the government. The past fourteen years have seen dedicated efforts, sometimes at the highest levels, to ensure that the values and principles of the constitution have been undermined, subverted and desecrated. Because of these anti-constitutional efforts, fewer and fewer Kenyans have faith in the institutions of government to deal with the entrenched culture of corruption and impunity, whether it is in Parliament, the Judiciary or the executive at both national and county levels. Today, more and more Kenyans have concluded that only the capital execution of the corrupt is the solution. They are no longer interested in the hard work of building, sustaining and nurturing state institutions.

To justify their position, the kill-the-corrupt forces point to the the knock-on effects of corruption from lack of life-saving medications in hospitals to the poorly-designed public infrastructure that lead to the deaths of Kenyans. Some have even go so far as to suggest that the regular Chinese government's habit of executing hordes of corrupt public officials after short show trials may just be the way for Kenya to go. What these people ignore is that so long as they keep the structures of the government unchanged, killing civil servants and politicians will not stop, or slow down, corruption in the government.

Kenyans' suffering because of the corruption of Kenya's public officials is not remotely the same as the destruction of the Palestinian people at the hands of the Israeli Occupation Forces. One is the natural outcome of a disaffected population that is disinterested in national building. The other is the natural outcome of colonialism and racial apartheid. The solution to the former is the reintegration of the people in national building. The solution to the latter is armed resistance. It would pay if Kenyans understood the difference.

Constitutional shibboleths and social media animus

It is a fraught exercise to bring strong opinions on Twitter. Those with whom you may have interacted with previously, and who have become reliable responders to your 280 character musings, will not find it unusual that you may sometimes state things in a certain way. The vast majority though, might react in less-generous ways. Particularly when you find it very difficult to go along with their very wrong takes on the Constitution. Or the Standing Orders of each House of Parliament. Or the role of the Attorney-General when it comes to the legislation-making powers of the Government.

For example, some might not respond favourably when you point out the obvious: Articles 255, 256 and 257 collectively deal with the amendment of the Constitution. Article 256 deals with amendment by parliamentary initiative. Article 257 deals with amendment by popular initiative (of which much was heard during the halcyon days of the BBI fiasco). Article 255 decrees which constitutional amendments must be subjected to a referendum.

The Senator leading the Nandi County delegation in the Senate proposed several amendments to the Constitution. Four of them are particularly important. The proposed amendments to Articles 101, 136, 177 and 180, would have the effect of extending the term of Members of Parliament, the President and deputy President, members of county assemblies, and Governors and Deputy Governors from five years to seven years. Crucially, he does not propose any amendments to Article 142(2) or 187(7), to limit the term of the President and Deputy President, and Governor and Deputy Governor to one term only.

Someone on Twitter said that the introduction of the Constitution of Kenya (Amendment) (No. 2) Bill, 2024, in the Senate was an attempt to escape the requirement for a referendum on the amendments relating to the term of these elected State officers. I pointed out that this was incorrect; that regardless of whether the proposed amendments were through parliamentary initiative or popular initiative, they would still require to be ratified at a referendum. They (and some of their acolytes) were not amused.

It is a consistent occurrence that when people speak on the Constitution, many forget to read the provision they are speaking on with other related provisions. In this case, the fact that the senator had said nothing about a referendum was taken to be his intention to evade the referendum, forgetting that the referendum would be done, regardless of whether the senator said anything about it or not. If the four amendments were not subjected to a referendum, they would not become the law of the land. It really is that simple.

Then came the inexplicable allegation that the Attorney-General, in addition to being unqualified to hold the office of Attorney-General (which she definitely is), had refused or failed to advise on the propriety of the Bill. This flies in the face of Parliament's powers under Article 94(5). Only Parliament can make law in Kenya. The mandate of the Attorney-General under Article 156(4)(a) as the principal legal advisor to the Government does not mean that if the Senate does not seek the Attorney-General's legal advice before proposing amendments to the Constitution, the Attorney-General cannot render such legal advice after the Bill has been published on the propriety of proceeding with the Bill. The advisory power of the Attorney-General can be exercised at any time.

In any case, in my opinion, the proposed amendments are not "unconstitutional"; if the two Houses of Parliament pass the amendments with the necessary thresholds at each stage, and the amendments are affirmed at a referendum, then there is little that the nay-sayers can do about it other than challenge the process in the Constitutional Court. After all, the constitution, including constitutional amendments affirmed at a referendum, are the ultimate expression of popular will, no matter who proposed the amendments or why the amendments were proposed.

I don't believe the four amendments are going to pass in either House or, if they do, that they will find support among the people at a referendum. No one wants elected state officers to pitch camp for seven years without seeking a fresh mandate from the people. But the debate that the amendments have elicited, particularly the ones dealing with the presidential term, have successfully obscured consideration of the implications of the other amendments, like the one to Article 96(3) on the Senate's oversight over national revenue allocated to county governments. The proposed amendment would render the role of county assemblies moot, undermining devolution in the most destructive way possible.

I am not claiming that my views on the Bill, or the role of the Attorney-General in its consideration, is infallible or unassailable. They definitely are. But what challenge you mount against them can't be, "Please just stop", only because I have not adopted a shibboleth that you intend to defend beyond all reason on account of an ill-explained animus against a State officer.

Conservative? What a joke.

I can't remember when he said it, but Kenya's first Leader of the Majority Party, in one of those strange political rallies he was fond of attending so that he could pledge fealty to his Dear Leader, once declared The National Alliance (or was it the Jubilee abomination it eventually morphed into?) to be Kenya's Conservative Party, with the same ideological leanings of the US's Grand Old Party and the UK's Tory party. He didn't say that he was a conservative; only that he was a member of a Conservative Party.

In this week's Sunday nation, the Governor of Murang'a declared that he is a conservative, leading into the same "small government" predilections of Ronald Reagan and Margaret Thatcher. Kenyan politicians are an astonishing group of people.

It is now safe to say that Kenya's politics is no longer moored to any kind of ideological framework. It is concerned, mostly, with taking money from the masses and wasting it on white elephants and thereafter, distracting the hungry, jobless masses that the reason their lives are so difficult has something to do with "corruption" and "tribalism". The declaration, "I am a conservative" or "My party is a Conservative Party" is the political system dipping its toe in the pond to see whether or not the people will fall for that shit because if the people do, indeed, fall for it, then they can watch as ever greater trillions of shillings are poured down the drain of "development" even as their lives continue to suffer degradations of unimaginable scale.

One of the most injurious things that Kenyans have done to themselves in the name of the Second Liberation is to separate the masses from national political institutions, particularly political organisation and political parties. Political decisions, particularly the choice of legislature candidates and allocation of scarce tax shillings, are now made by a tiny cabal that is not motivated with the greater common good. The most effective way to separate the people from their government has been to separate people from the toys they need for their political education, including music, theatre, sculpture and fine arts.

When Kenya's winning long distance runners returned from the Paris Summer Olympics in triumphal form, they were confronted with one of the most hideous sculptures ever foisted on an unsuspecting public. It was a statue of woman marathoner, put together in the most slapdash way imaginable, and placed installed in the dead of night, to be sprung upon a people who could neither process the insult nor work out how to punish the offender.

What I found interesting is that the discourse around the crass demonstration of the indifference that the state and its agent's treats the people was how the one of the reasons the statue was removed from public view without an explanation was that foreign capitals, particularly in the United States, have celebrated Kenyan athletes in deeply meaningful ways. The sculpture was removed because it made Kenya look bad in the eyes of the world; not because the asshole that had ordered its installation was even remotely remorseful for his crime.

So while Kenyans' minds are slowly poisoned against any kind of learning and political education, and the wool is pulled over their eyes with rambunctious "debates" about the "impeachment" of un-useful state officers, the more cleverer of that perverse class introduces ideas about political ideology that they neither understand nor know how to explain to the people they purport to lead. Kenyan political parties lack any form of political ideology so how could the politicians who sit atop of that pile of empty briefcases claim to possess political ideologies of any kind? These men have failed to empower the people they govern to participate fully in political decision making and in order to hide their inadequacy, they try and paint themselves as Margaret Thatcher or Ronald Reagan when in actual fact they are the caricatures portrayed by Mr. Bean and Benny Hill.

The powerful keep making terrible mistakes

No one seriously thinks that the law is deployed for the benefit of the people anymore. It is almost exclusively used as a cudgel to beat submission into the thickest of skulls, particularly the thickest skulls of the young people challenging systems of power and oppression. What little lawful behaviour that occurs in day-to-day life is only by chance. The legal systems and frameworks we have to day only exist to ensure that the State, and those who benefit from the use and abuse of State power, continue to be preserved, even if it means it is at the expense of the weak and vulnerable.

What w have come to describe as the international humanitarian law lays bare the abuses of the powerful and the desperate attempts at survival of the weak and vulnerable. In Palestine, the Palestinian peoples have endured near-starvation at the hands of the Israeli Occupation Forces for the last twenty-five years. The international community has stood by and watched as international humanitarian law has been debased by the Israeli Occupation Forces. And when the international community as intervened, it has been to provide more and more destructive bombs to the Israeli Occupation Forces with which to conduct a systematic destruction of the Palestinian people.

This kind of violence is witnessed at national level too. In India, Hindutva, the supremacist ideology adopted by the ruling coalition in the central government, has been used to target Muslims and Dalits with increasing violence. Constitutional changes have been rammed through the Indian Lok Sabha to deny the Muslims of Kashmir any semblance of self-determination. In dozens of cities, towns and villages, Dalits have been assaulted and murdered on false accusations of cow slaughtering. In both instances, the law has been useless in preventing the atrocities being visited on minorities in India.

In Kenya, marginalised communities have been on the receiving end of environmentalists and environmental law. They have been violently pushed out of their lands in the name of environmental conservation. It is irrelevant that their traditional land use systems have preserved and conserved the environment better than than the modern fortress-like systems being deployed against them today. Because they do not have the population and money needed to push back against their oppressors, they have been reduced to subsistence levels so desperate that they have little or no energy to fight against their plight.

It used to be that there was a. pretence at enforcing the law equally and equitably. That pretence no longer obtains. The exploited can no longer rely on the law to offer them protection or restitution. And when they take their case to the streets, the law is used as a weapon to kill and maim with impunity. If the powerful have their way, even the idea of protest will be illegal. However, the powerful have made a terrible mistake.

The UK had the Gundpower Treason and Plot. The French had the Revolution against their oppressive nobility and beheaded the lot of them. The North American colonists, after their genocide of the First Nation, rebelled against their oppressive king. The United States, against all odds, faced the Black Power movement of the 1960s and backed down. More recently, Bangladesh has exiled its oppressive Prime Minister and Sri Lanka toppled its oppressive president. Sooner or later, the weak and vulnerable will have their backs against the wall and the only choice before them will be death or rebellion. No one willingly chooses death. Sooner or later, systems of oppression are rend asunder. It is never non-violent.