Saturday, September 25, 2010
Friday, September 24, 2010
Wednesday, September 22, 2010
What possessed us to be so optimistic about the new Constitution and its promulgation? Were we high? If we had known what we now know, wouldn't it have been better for the billions that were spent on this project to be spent, however poorly, in building more super-highways or building more dams in Kitui or being pilfered through some other Anglo-Leasing type deal. That money should have been spent on anything but the Constitutional Review Process. That process has been a colossal waste of our time and energy.
We started violating the provisions of the Constitution the day it was promulgated, what with the invitation of Omar Hassan al-Bashir to our bash. The day after, when a few well-meaning but confused Kenyans decided to protest about Bashir's visit, they enjoyed the none too gentle attentions of Kenya's efficient and efficiently violent anti-riot police. And then a few of them were detained and arraigned in Court. Quite clearly, the government was yet to internalise the provisions regarding the right to peacefully assemble and petition the state. Now, it emerges that none of the Principals or their toadying, brown-nosing acolytes wishes to give up their seats in their less-than-transparent political parties. Even the formerly loud champions of internal party democracy like Ababu Namwamba have fallen silent on this provision of the Constitution. Finally, we have our esteemed Minister for Justice (that's a laugh), National Cohesion (the irony is not lost on me) and Constitutional Affairs (only half-right), Hon. Mutula Kilonzo (ODM-K, Mbooni) ridiculing us over the ICC thing. All along we have naively believed that he would carry on the campaign to see "perpetrators of post-election violence" handed over to the ICC for prosecution. Apparently, the good minister has discovered that the Constitution has miraculous powers, for it has now cleansed our police service and Judiciary of the filth that clogged their smooth operations and it is now quite possible to try the perpetrators and the masterminds of the violence without there being a miscarriage of justice, as his fellow learned friends would put it. Regardless of whether or not we change a few of the monkeys in uniform or in robes, a change of the law is sufficient to assure that the guilty will be punished in Kenya. Tell me you don't wanna wail into your beer right now?
When you look around you, the names being bandied around for the post of Governor or Senator are nothing to write home about. Simeon Nyachae has thrown his hat in the ring. So have Moses Akaranga (apparently his ministry feels the need for a little temporal uplift), Kivutha Kibwana (who has spent the past two-and-a-half years advising the president on National Cohesion, though there's nothing to show for it), Mutula Kilonzo (he sensed the winds of change when the people of Mbooni Constituency ignored his exhortations to ratify the Proposed Constitution), Njenga Karume (he still thinks we have not had enough of his mwana-nichi buffoonery), Nicholas Biwott (does New Kanu even exist?), Maina Njenga (apparently allegedly running a nationwide criminal syndicate from behind bars is sufficient proof of 'executive experience'), Lawrence Majali (after failing to impose discipline on the sexually adventurous members of his beloved KNUT, he plans to devolve this failure to the County level) ... the list is depressingly long. In all these calculations and maneuvers, ordinary voters have been left out in the cold. Their voice, which was humoured during the referendum campaigns, is now being ignored by the high-and-mighty of the political establishment. Not just ignored, but intimidated and brow-beaten to to the line, or else ...
And it is not just politics. KU, God knows why, still has Prof. Mugenda in charge, despite her failure of leadership when her students were getting shot to death by police or alternatively, were setting private property on fire. Our water sector institutions are bedeviled by the worst outbreak of outright embezzlement and corruption in a decade. Our transport sector is ashambles - the RVR concession of the Kenya/Uganda Railways has tottered from one bad decision to another, and now we are setting our sights on a new Brazilian partner.
When will we ever learn? It is a dog-eat-dog world and only the ruthless survive. To survive, you gotta fuck over the guy next to you. If you don't, he'll have you over a barrel with your pants around your ankles. And he won't be gentle. Or have a handy tube of lube with him. As in all things, when they come asking for your vote (they have no choice in the matter), it is your opportunity - nay, your solemn duty - to screw them out of hundreds of millions, because when they end up in the various august houses in 2013, they will take every opportunity to screw us over. Mark my words. Screw them first before they screw you over. It's the circle of life - fuck or get fucked!
Sunday, September 12, 2010
I must respectfully disagree with my senior, Ahmednasir Abdullahi regarding the question of Florence Simbiri-Jaoko's decision not to resign as chairman of the Kenya National Commission on Human Rights (KNHCR). In today's Sunday Nation (Jaoko must accept Rights team decision), Mr. Abdullahi makes the case that because Ms. Simbiri-Jaoko was elected by the members of the Commission, she must accept the decision of the vote of confidence against her by the same Commissioners and resign her position as the chairman. His argument is that because her election was an internal matter, her removal by the Commissioners was also an internal matter and that she did not have a legal argument against the internal decision of Commissioners who elected her to the chairmanship. I find this line of argument unfortunate, for it negates what is a basic principle of law, that is, no man shall stand judge in his own cause. I am glad that this is a position taken by my other senior, Donald B. Kipkorir in today's Sunday Standard ( KNHCR commissioners have demonstrated contempt in bid to remove Jaoko from office).
In making his case that Ms. Simbiri-Jaoko should resign, Mr. Abdullahi alludes to "internal wrangles, a crippling credibility crisis, saddled with uninspiring leadership and defined by woeful underperformance". What Mr. Abdullahi has failed to do, just as the Commissioners have, is to articulate the grounds for which Ms. Simbiri-Jaoko deserves to step down. The vagueness surrounding the allegations made against her tend to suggest that the KNHCR has fallen prey to the internal bickering and politics that have bedeviled other national institutions. The speculation regarding the reasons behind the coup d'etat against the chairman suggests that even this important institution is yet to internalise the principle of the rule of law when it comes to its "internal affairs". This is the same argument that repressive regimes like the People's Republic of China, the Democratic People's Republic of Korea, and the Islamic Republic of Iran have used to avoid the attention of international interlocutors like the United Nations or the attentions of world powers like the United States. Is the KNHCR a law unto itself that it cannot abide by the provisions of the law under which it was established?
The KNHCR is funded by tax-payers' monies. It is not a private organisation. If there are going to be changes in its leadership, the people of Kenya have the right, and indeed the duty, to be involved in these decisions. Long gone are the days when government departments, agencies and institutions could operate behind a veil of secrecy without being accountable to the people of Kenya. If the 7 Commissioners are persuaded that the chairman has been derelict in her duty to the people of Kenya, then it behoves them to state their case and let the chips fall where they may. If they managed to push out the chairman without a public reckoning of their decision, would they sit idly by as she was appointed or nominated to another public institution? The Constitution places an onerous obligation on all of us to take public responsibility for the task of defending and upholding its principles, including that of the rule of law.
Despite the fact that the chairman is elected from among the members of the Commission, the law is clear on the process or her removal. This is a mandatory provision and it does not envisage that the Commissioners can suo moto take another vote to remove the chairman. As one of the guiding principles of the Commission, the rule of law must be applied as strictly as possible. We cannot allow what appear to be personal vendettas to be used as a basis for the removal of the chairman without the law being applied as it was meant to be applied. The internal affairs of the Commission have a direct impact on the people of Kenya and these cannot be used as a fig leaf to cover the illegality that the 7 Commissioners are attempting to foist on the people of Kenya. Someone must point out that the emperor has no clothes.
To contextualise the role that the provisions of section 11 of the Act play in the removal of the chairman as Mr. Abdullahi asks us to do, he must cast his gaze wider than the "internal democracy" of the KNHCR and see that when Kenyans overwhelmingly ratified the new Constitution, they were also making a clean break with a past that was characterised by lies, secrecy and personal vendettas. The national values enumerated in article 10 of the Constitution include the rule of law, democracy and the participation of the people, good governance, transparency, and accountability. The 7 Commissioners have indeed shown contempt for thee principles. It is imperative that we do not allow them to get away with it. Anything less, and we are better off inviting President Moi to resume his iron-grip on the affairs of this nation. We owe it to ourselves to remind the Commissioners that the day we ratified the Constitution is the day we stopped being bystanders in the internal affairs of our nation institutions and instead became active participants in their processes and actions.
Nine years ago the United States of America suffered what has come to be described as the worst intelligence failure since the attack on Pearl Harbour by the Imperial Japanese Navy on December 7, 1941. As a result, the United States formally entered the Second World War and the rest, as they say, is history. On September 11, 2001, President George W. Bush was informed of the surprise attack on the American homeland by operatives of the Al Qaeda terrorist organisation, whose death toll would rise to over 3,000 as the news unfolded. As a result, the people of the United States rallied behind their political leadership as it declared war on those it deemed responsible for the reprehensible act. The world's policeman had been caught by surprise by a dedicated group of murderers who operated out of caves and employed rudimentary intelligence techniques to fly under the radar. In less than 6 months, the United States was bombing the strongholds of Al Qaeda in Afghanistan, a country so backward that there was nothing worthwhile to bomb after 3 days.
On this anniversary of that terrible day, it is imperative to look back and learn from the events of 2001 and their aftermath. 9/11 was the terrible price the Americans paid for encouraging a rag-tag band of cut-throats to develop their skills and then abandon them without giving them so much as a Golden Parachute for their services. The Mujahideen who had been the primary instrument of the Americans in their Cold War with the Soviet Union were financed, trained, armed and unleashed on the occupying forces with the active participation of the Pakistani ISI and the quiet acquiescence of the world. When the Berlin Wall came down, the Americans simply abandoned their erstwhile friends and reverted to their own cocoon of making more and more money at the expense of everyone else. The Mujahideed morphed into the Taliban and some of them became active members of the Al Qaeda, gaining more experience in the killing fields of Chechnya and Bosnia. By the time they turned their eyes to the US, it was too late: they had developed a great amount of anger against that country and the terrible bill came due on 9/11.
Kenya is at a crossroads today. Our borders are not as secure as we would like them to be. There is still the festering boil that is the civil war in Somalia, the tension in Southern Sudan and the insurrection in Northern Uganda. As a result, we have constant streams of refugees with noble and ulterior motives entering Kenya almost at will. Our TV stations have exposed the human trafficking that takes place across our unsecured borders as a consequence of the various insurgencies and the corruption of our security apparatus. If we are not careful, the varous wars will spill over into Kenya and not just in the border areas. These are people who have a lot of experience in fighting guerrilla wars and if they decide to export their wars on our streets, Kenyan society does not have anything tat can match them. It is imperative that our engagement with these nations has an end-game in mind, where their civil situations are improved and their nations are at peace. Only then can we hope to have a secure homeland. The Americans forgot this lesson, and 9/11 was the price they paid. By abandoning the Afghanis to their fate, they did not anticipate the the civil chaos thousands of kilometres away would lead to a terrible blow. If Kenya stands idly by and watches as Somalia, Southern Sudan and Northern Uganda continue to burn, it is only a matter of time before we have another August 7, 1998.
When Kenya extended an invitation to Omar Hassan al-Bashir, the Butcher of Darfur, to witness the promulgation of its New Constitution, few knew about it; this is how police states operate. When they are about to do something that will get people's backs up, they tend to be sneaky and secretive. They rarely consider the legal niceties of their actions. Make no mistake: Kenya is a police state that pretends to be a democracy, scheduling regular (blood-soaked) elections and allowing a nominally free press. However, the process that led to the promulgation ceremony was bedevilled by distortions and misinformation on a scale that would have made Joseph Goebbels proud. A lie told thousands of times becomes truth, so said Herr Goebbels and the opponents of the Proposed Constitution spared no opportunity in lying through their teeth to get their way. It seems that one Okiya Okoiti Omtata is determined to carry one the fight long after the umpire has blown the whistle (Best international practice absolves Kibaki of the Al-Bashir visit, Saturday Nation, September 11, 2010).
In his latest diatribe, Mr. Omtata is attempting through some convoluted linguistic gymnastics to equate international law to the Constitution. This was one of the canards that the REDs perpetuated during the Refrendum Campaigns and one that I had thought had been dismissed for the lie that it was. Article 2(1) states that the Constitution "is the supreme law of the Republic ..." Article 2(5) states that "the general rules of international law shall form part of the law of Kenya" while article 2(6) states the "any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution." (Emphasis mine).
In the context of the logic that Mr. Omtata is attempting to foist on the country, it is quite clear that the Constitution is the supreme law. No other law exists over and above the Constitution. A reading of articles 2.5 and 2.6 shows that international law is subordinate to the Constitution of Kenya, and regardless of whatever treaties Kenya has signed and ratified, they shall be subordinate to the law of Kenya. Last week, Peter Mwaura attempted to show that there were at least two possible interpretations of Kenya's actions regarding the Al-Bashir visit: the first being that Kenya could have met its obligations under the Rome Treaty. The other was that Kenya could have complied with its obligations under the African Union Charter, which Moses Wetangula informed us was what the government chose to do.
Mr. Omtata is correct that the rules of international law are not as straight forward as some of the moralists calling for President Kibaki's impeachment seem to think. The West, as shown by the actions of the United States and the United Kingdom, have repeatedly violated the terms of treaties and charters that they have signed and ratified. The United States was a founder-member and a considerable force behind the formation of the United Nations and yet, when it suited its interests, it ignored the provisions of the United Nations Charter and invaded, not just Afghanistan but Iraq too, leading to "collateral damage" on an incredible scale. However, because of its power, no one is going to call for the indictments of George W. Bush or Barack Obama for prosecuting what are essentially illegal wars. The United Kingdom is a signatory to the OECD Anti-Bribery Convention but it was not averse to halting prosecution or investigation of officials of BAE systems in their arms deals with the government of Saudi Arabia, arguing that such an act would compromise its "national security."
In both these examples, international law was subsumed to the national interests of both the US and the UK. Why should we, just because we have recognised the role of international law under Kenyan law, not play fast and loose with the general rules of international law, international treaties or conventions? Mr. Omtata, in attempting to show that the Constitution is deeply flawed, has failed to make a credible point showing that Kenya has reduced itself to a vassal of the perfidious West. If Kenya indeed had placed international law at par with its Constitution, it would have been extremely foolhardy for it to have invited Al-Bashir to the ceremony on August 27, 2010, as this would have placed it at odds with the rest of the world. But an objective look at the reactions of the country's interlocutors shows that they merely made statements; no economic sanctions have been imposed or even proposed. The world keeps on turning.
When the Government of Kenya extended its invitation to Omar al-Bashir, only the naive could have expected that the ICC indictments would be insurmountable when Kenya was considering its national interests. Our failure is not that we did not do anything to ensure that the Government of Kenya complied with the provisions of the Rome Statute; our problem is that we were or have been unable to win the public relations war waged against us. Hon. Wetangula, Vice-President Musyoka and the spokesmen of the Government of Kenya and the Ministry of Foreign Affairs have proven quite inept at this game. Their statements have the whiff of panic about them. In the absence of a creditable PR team in government, these worthies should have taken the time to consider carefully how and what they would say and then chosen one person to make the case. The disparate arrangement of the government has exposed it to political risks that will detract from the effort of keeping its foreign relations on an even keel. In the long term, it wold be irresponsible for Kenya to antagonise a nation with a 108,000-ma standing army; a policy of non-intervention would probably be best. This is the prism through which our relationship with Sudan should be viewed; spending time and effort analysing whether or not Kenya should have arrested President Al-Bashir merely showcases that Mr. Omtata and like-minded windbags simply do not understand the concept of international law, its implications, and what our foreign policy should be vis-a-vis international obligations.
Wednesday, September 08, 2010
When the 7 members of the Commission chose to force a vote of confidence against the Chairman, they ignored a core value of the Commission: the promotion of the rule of law. The Kenya National Commission on Human Rights Act provides the means by which the Chairman, or any other Commissioner, may be removed from office. A vote of confidence is not provided. The Commissioners may feel that the vote of confidence may place an onerous moral burden on the chairman and compel her to leave office in light of the feelings expressed by her colleagues.
The Commission has suffered several public relations setbacks in recent months, topped most recently by the resignation of the combative media-savvy Hassan Omar Hassan as the Vice-Chairman, partly in response to the actions of the Chairman herself. However, the Commission has not demonstrated that the former magistrate is incompetent or that she has taken a partisan approach to the management of the affairs of the Commission. Indeed, it may, I suspect, be her management style which has put her at odds with her colleagues who are now calling for her to resign. Mr. Kiai had spent several years in the Third Sector, where the bureaucratic structures of government are absent and he brought this sense of independence to the Commission during his tenure at the helm of the Commission. Ms. Simbiri-Jaoko was for many years a magistrate and she was steeped in the management policies of the Government of Kenya. It is only natural to expect that, even after the years she spent as a Commissioner, that she would be loath to abandon a management style that had served her well. Unless the rogue Commissioners can show that her chairmanship has had an adverse effect on the operations of the Commission or lowered the dignity of the Commission or brought it to disrepute, they do not have the right or the authority to call for her resignation.
Ms. Simbiri-Jaoko is correct that t would be unfair for her detractors to demand that she run the Commission the way Maina Kiai did. She is not Maina Kiai and she has not had the same experiences as he. Even if she did, it would be impossible for her to emulate him in every aspect of the management of the Commission. It is only natural that while following the broad footsteps that had been laid by Mr. Kiai, she would attempt to craft a management style all of her own. This is not a ground for the removal of the Chairman of the Commission. To remove the Chairman, the provisions of section 11 of the KNHCR Act shall apply and they state:
11. (1) The office of a person appointed as the chairperson or as a commissioner shall become vacant if the person -
(a) dies; or
(b) resigns from office by writing under his hand addressed to the President; or
(c) is convicted of an offence and sentenced to imprisonment for a term of three months or more without the option of a fine; or
(d) is unable to discharge the functions of his office by reason of physical or mental infirmity as certified by two registered medical practitioners; or
(e) is absent from three consecutive meetings of the Commission without good cause; or
(f) is declared bankrupt by a court of competent jurisdiction.
(2) The President shall notify the termination of the appointment of the chairperson or a commissioner under this section by notice in the Gazette.
(3) Without prejudice to subsection (1), the chairperson or a commissioner may be removed from office for misbehaviour or misconduct; or, if the commissioner is convicted of an offence involving moral turpitude but not sentenced to a term of imprisonment, but shall not be removed except in accordance with this section.
(4) Where the removal from office of the chairperson or a commissioner arises under subsection (3) -
(a) the Chief Justice shall, by notice in the Gazette, appoint a Tribunal which shall consist of a chairperson and two other members selected by the Chief Justice from among persons who hold or have held offices as judges of the High Court;
(b) the Tribunal shall inquire into the matter and report on the facts to the Chief Justice and recommend whether the chairperson or the commissioner ought to be removed from office and the Chief Justice shall communicate the recommendations of the Tribunal to the President.
(5) Where the question of removing the chairperson or a commissioner has been referred to a Tribunal under subsection (4), the President may suspend the chairperson or the commissioner from the Commission and the suspension may at any time be revoked by the President and shall in any case cease to have effect if the Tribunal recommends to the President that the chairperson or the commissioner, as the case may be, should not be removed.
The rules for the removal of the Chairman are clear. If the 7 Commissioners who voted against her in the vote of confidence are convinced that Ms. Simbiri-Jaoko is unfit to hold the office of Chairman, it is imperative that they live up to the core values of the Commission and invoke the provisions of section 11 of the Act. Any other action on their part would constitute an abandonment of the rule of law as the guiding principle in this situation and instead, they would be operating like a kangaroo court. They are interested parties in the question of whether Ms. Simbiri-Jaoko should continue to serve in her capacity as chairman. Therefore, they cannot be the judges in the matter and it is imperative that they call on the Chief Justice to convene a Tribunal to determine whether or not she can continue in office.
One of the promises we made to ourselves on August 4th was that matters to do with the management of our national institutions would be conducted under the rubric of the rule of law. Therefore, if the Commissioners wish to demonstrate their fidelity to this canon, one that is a core value of the Commission, they must abide by the stipulated statute and call for a Tribunal. In the alternative, they should accept that she will never be her predecessor and that it is time that they moved forward from Maina Kiai's halcyon tenure and find more constructive methods to make Ms. Simbiri-Jaoko the successful leader that they want her to be.
Sunday, September 05, 2010
Okiya Omtata Okoiti is at it again, this time having trained his guns on the process of vetting judges, equating the yet-to-be-appointed panel to a kangaroo court that will be "unfair, unjust and counterproductive" (Yes, reform the Judiciary but do not subject judges to mob justice, Saturday Nation, September 4, 2010). He argues that the process will negate the rule of law and deny the judges' constitutional rights to the equal protection of the law and freedom from discrimination. How he draws these conclusions from a programme that has yet to commence is beyond the realm of reason and betrays his deep animus against the Constitution, one that was ratified by the majority of Kenyan voters, and one that was adopted in view of the fact that many of our national institutions, including the Judiciary, had fallen into disrepute.
Mr. Omtata is holding onto the fallacy that one part of the Constitution is superior to the other, a position that was adopted by the High Court of Kenya in the now infamous Kadhis' Courts case decided a few weeks before the Referendum of August 4, 2010. Legal scholars of no mean repute, including the Minister for Justice, have weighed in that it is not possible to read the Constitution selectively, that the whole is to be read as one and that no portion of the Constitution is greater or superior to the other. However, the Constitution is drafted in such a manner that the process of tampering with the Bil of Rights is made necessarily more difficult than has been our experience under the old Constitution. Therefore, the rights of the Judges as enshrined in the Bill of Rights will be jealously protected. If any of the judges undergoes what he or she determines to be an unfair process, their rights as found between articles 26 and 51 (Chapter 2) can be exercised for their benefit and they will take their chances with the judicial institutions that we wish to reform.
Mr. Omatata is blind to the fact that for decades the judiciary has been the stumbling block to effective administration of justice, where justice was for sale and only the high and mighty amongst us could afford to approach the hallowed halls of the judiciary with any confidence. majority of Kenyans have been subjected to the short end of the stick and many have been denied their rights, have been deprived of their property and have suffered incarceration or worse as a consequence of judgments handed down by incompetent and corrupt judges and magistrates. One of the reasons why Kenyans agitated for over 3 decades for a new constitutional dispensation was the fact that the Judiciary was no longer perceived as an honest arbiter of disputes. It had become a club whose membership was restricted to men and women who were incapable of seeing the law as a tool for righting the wrongs in society and instead became a weapon which the State used to suppress and oppress the majority. In many of the hearings held by the Ghai Commission, the people desired a change in the Judiciary and vetting was deemed to be the only method that would pass muster. Many of the submissions that were made to the Committee of Experts reinforced this view and so it was that section 26 of the Second Schedule was enacted. In talking about the rule of law, Mr. Omtata must admit that the vetting of judges and magistrates falls withing the ambit of the implementation of the Constitution and it reflects our deep desire to be governed according to the rule of law. Unless he is suggesting that we should revert to the old way of doing things in which the law was applied selectively, he must bow down to the wishes of the majority who wish to see the Judiciary reformed and reconstituted. On this question, Kenyans have been adamant and Mr. Omtata must provide proof positive that the process has been or will be compromised before he starts labelling a yet-to-be-appointed panel a kangaroo court.
Mr. Omtata is right to ask that the vetting of judges and magistrates should not violate their fundamental rights. However, given that the vetting has been codified in the Constitution, it is up to Kenyans to take this process seriously. Kenyans must be involved every step of the way, from the appointment of the independent panel to the procedures and rules that it will adopt to the acceptance of the recommendations that it will make without rancour or animus. The Judiciary will be the primary organ for the proper interpretation of the Constitution and it is imperative only judges and magistrates of integrity, intelligence and skill be allowed to interpret the Constitution. If the process of vetting gives us an independent Judiciary that we can trust, the process will have succeeded. Its success however, will be determined primarily by how much involved as a nation we are willing to be. Therefore, it is a good thing that membership of the panel is as as broad-based at it is with its membership not drawn exclusively from the legal fraternity. The interpretation of the law is so important that it cannot be left in the hands of a minority, but must seek to reflect the professional diversity of the nation. Therefore, by making the panel as representative as possible, the drafters of the Constitution have ensured that the process will not be limited to legal or technical matters only, but will also address moral and other factors too. Mr. Omtata has agitated over the years for the inclusion of the people in the management of the affaits of state, so I would think that he would be the first to suggest ways and means in which the panel could accomplish its mandate to the best of its ability instead of taking potshots at the panel even before it has began its task. Mr. Omtata, it is time to govern. The days of agitating from the sidelines is over. Put up or shut up!
The Standard is publishing a three-part expose on the evils visited on children in Kenya, especially at the Coast. In 2006 when these issues were first highlighted, it was First Lady Lucy Kibaki who came out strongest for action to be taken to ensure that childhoods are not ruined by the sexual proclivities of the evil ones among us. Sadly, her exhortations fell on deaf ears. Millie Odhiambo (ODM, Nominated) styles herself as the 'MP for Children' but I do not recall a single instance in which she has raised her voice in defence of children in the National Assembly. Her public appearances since she was nominated to Parliament have revolved almost exclusively on the petty political intrigues that have surrounded her party of choice. Njoki Ndung'u was almost single-handedly responsible for the passage of the Sexual Offences Act, but she too seems to have rested on her laurels and there seems to have been a definite atrophying of efforts to further develop the law so that the innocent are protected from abuse or exploitation.
The Constitution proclaims at article 45 that "Family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State." It further proclaims at article 53 that "(1) Every child has the right ... (d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, hazardous and exploitative labour ..." and "(2) A child's best interests are of paramount importance in every matter concerning the child."
The Children Act at section 13 states that "(1) A child shall be entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person" and "(2) Any child who becomes a victim of abuse ... shall be accorded appropriate treatment and rehabilitation ..."
The Children Act came into force in 2001 and in that period the State has done nothing to improve the lot of children living and suffering in Kenya. The hideous truth is to be seen daily on our streets and in our so-called five-star tourist hotels, especially at the Coast. Yesterday, it was reported that a person or persons unknown had managed to traffic into Kenya children aged between 5 and 14 for purposes that remain unclear and that they were abandoned on the streets of Nairobi to fend for themselves. If it were not for the actions of a man in the employ of a children rights non-governmental agency, they would have been left to navigate the dangerous streets of our fair city. Quite clearly, the provisions of the Children Act criminalising child-trafficking are yet to be internalised by our immigration or security authorities. If not, how do you explain the fact that children incapable of making their way out of their village managed to travel from the border with Tanzania at Isebania all the way to Nairobi without anyone batting an eyelid or asking a question?
It can be argued that since they were not Kenyan children, there is nothing much we can do about their straitened circumstances. However, this is not the same buck-passing philosophy that we can employ with our own children. It has been stated that a primary cause of the plight in which Kenyan children find themselves is poverty and that this motivates them and their families to engage in activities that without which they could not survive. This is horse-shit!
The State has a responsibility to ensure that ALL children are protected. The State is personified in the President, the Prime Minister and their Cabinet, in the Provincial Administration, in the local authorities and in the various state agencies and departments that tax us so heavily and deploy their coercive resources to keep us down when we protest. The State has failed its children and it is up to us, as law-abiding, tax-paying, otherwise obedient citizens to point out that with the coming of the new Constitution, it is no longer business as usual. The child-rights agencies are pushing against the sky in this effort and the State must begin to take its responsibilities seriously if it is to be taken seriously.
For starters, the State, in all its manifestations, must begin to re-direct its resources to ensure that children enjoy the rights that are inalienably theirs. White elephants must take back-seat to the need of providing for children country-wide. Before our Members of Parliament and their acolytes avail themselves of tax-free allowances, they must ensure that schools are built, teachers are provided, hospitals are staffed and medicines provided, and children have food in their stomachs and roofs over their heads. Family is the basis for social order and in children that social order is affirmed when they are healthy and safe. As individuals we cannot walk past the innocent faces of children everyday, simply worrying about our lives as if they are an inconvenience for others to worry over. An old African adage goes that it takes a village to raise a child. It is our responsibility as Kenyans to raise our children in safety and this is not limited to the fathers and mothers who sired and bore these children. When you see a child being used or abused, you must take action to ensure that the safety of that child is assured. It is your responsibility as much as that of the State.
The penalties for allowing children to be so ill-treated must be enforced to the maximum and maybe, even enhanced. It is rumoured that when a child from a poor family is sexually assaulted that sometimes the parents enter into an out-of-court settlement with the child's abusers or sometimes that the abuser himself bribes his way out of prosecution. This is mind-boggling. I have read the Criminal Procedure Code cover to cover and nowhere does it provide for plea-bargaining. Who are the prosecutors who decided to withdraw these cases from the court docket? Who are the magistrates who allowed this passage of affairs? Who are the prosecutors and policemen who received bribes and allowed the destroyers of dreams to walk among us? If you know of any public officer who allowed perpetrators of these heinous crimes to walk free, this is your opportunity to remind them that, in the words of another African saying, "Siku za mwizi ni arobaini." The vetting of judges and magistrates is about to take off. The National Police Service Commission is about to be appointed. As responsible citizens it is our duty and responsibility to report these public officers to these bodies to ensure that they do not continue to hold positions of rank or authority while innocent children suffer the effects of the decisions that they have taken. And those parents who placed their children in harm's way must be prosecuted to the fullest extent of the law and those who profited from the plight of these children must pay the price too. This is Kenya and it is no longer OK to walk tall when children are laid low. Children rights should be the defining moral question of the Kenyan Twenty-first Century.