Saturday, October 23, 2010

The Bar, the Bench and Judicial Vetting

If you are an advocate, and you took out a practicing certificate in the last 18 months, you must have been inundated by calls, text messages and e-mails from the aspiring contenders for a seat on the Judiciary Service Commission. While we weigh our options, we must ask ourselves some hard questions. Are we in a position, as a Society, to play a leading role in the vetting of judicial officers prior to their employment? What are our criteria for determining the suitability of a lawyer to serve in the Judiciary? Are we looking for activist judicial officers or strict constructionists? Who among us deserves to sit in the Judiciary, or for that matter, the JSC?

The Bar and the Bench are partners in the administration of justice in Kenya and the rot that permeates the halls of justice can be laid at the doors of both. Therefore, we should not take a holier-than-thou attitude when vetting prospective members of the Judiciary, but we should approach the whole exercise with a view to improving not just the relations between the Bar and Bench, but also to improve the manner in which both conduct business.

Some years ago, an advocate was accused and ultimately found guilty of cheating the grieving widows and families of fallen prison warders of their benefits. His was the most extreme of actions but it was not unique. Allegations of advocates taking advantage of the ignorance of their clients are rampant and they have led, among other things, to the rule that awards to be paid to clients will not be lodged in accounts controlled solely by advocates. Even with these changes, advocates are still being struck off the rolls for such financial shenanigans. If these advocates are to play a role in the vetting of judicial officers, it is still possible that we may not get the Judiciary we want. Therefore, for the LSK to play a leading, commanding role in the vetting of prospective judges and magistrates, we must reform the disciplinary processes of the LSK to ensure that only the best candidates from among us get to wear the robes of the Judiciary. Then we can truly say that the partnership between the Bar and the Bench is flourishing.

Our attention on the Judiciary has not been entirely unmerited. There are judicial officers who have taken their authority in the court room to ridiculous heights, going so far as to decree what manner of dress advocates are to have and how to address the court. In some instances, these officers have been the subjects of unrest among the legal fraternity, so much so that some of our branches have gone on strike demanding that these officers be re-assigned to other duty stations. The Bar is mindful of the dignity of the Bench and it will be a pretty stupid lawyer who decides to antagonise a judicial officer handling his client's matter. But, judicial dignity is not assailed by the manner of dress by advocates and it is time that members of the Bench took cognizance of this fact. Unless an advocate has walked into the court room in his underwear, whenever he dresses decently, he should be allowed to address the court just like any other advocate.

These disputes have concentrated the minds of advocates and I believe that the ones who serve on the JSC will discharge their duty diligently and with skill. We are looking for judicial officers who display sagacity in their rulings, who are firm but fair in the management of their courts, who will display independence and courage in the face of a manipulative Executive, and who will work to ensure that justice is indeed our shield and defender. What we do not want are judicial officers who are slothful and weak-kneed, spineless yes-men in the pay or control of outside influences. We do not want persons who will make extreme judgments that are without foundation, making the Bench the pulpit for their wacky ideas. In other words, we want officers who will work to ensure that the law is interpreted correctly, fairly and imaginatively. If you do not possess any of these qualities, you need not apply. And, for God's sake, take your eyes from my 4,000-shilling suit and listen to the substance of my argument!

Friday, October 22, 2010

Hon. Keynan is the face of a more assertive legislature

Adan Keynan Wehiye (KANU, Wajir West), the combative chairman of the Defense and Foreign Affairs Parliamentary Select Committee, has been gunning for Moses Masika Wetangula (PNU, Sirisia) for some time now. His Committee has publicised the irregularities involving two transactions regarding the sale and purchase of diplomatic facilities in Nigeria and Japan. Hon. Wetangula has valiantly attempted to head off the investigations, especially when they detail what he knows, when he knew it, and what he did. In the meantime, the Parliamentary Select Committee is variously investigating the Ministries of Water and Industrialisation over the allocation of resources and the employment of the MD of the Kenya Bureau of Standards respectively, trying to unravel the criteria and methods of taking decisions at these two ministries.

What is becoming more and more apparent as the implementation of the Constitution gets underway in earnest is the important role that Parliamentary Committees will play in the coming years. Hon. Keynan may have an axe to grind with the Minister for Foreign Affairs, but without a doubt the issues his committee is investigating are of paramount national importance and Hon. Wetangula cannot escape scrutiny simply because the Committee's chairman has a vendetta against him. This is the nature of politics worldwide and Hon. Wetangula better develop a thick skin while he's at it. However, these committees must become more and more professional in their investigations and must bring to bear every possible investigative tool at their disposal in order to secure answers that are critical to understanding the management of national affairs by the Executive branch of government.

During the Moi years, Parliamentary Committees, such as the PIC and the PAC, were mere rubber-stamps, endorsing the decisions taken by the Executive. Today, the situation is much improved no thanks to the fact that President Mwai Kibaki is not overly interested in manipulating the operations of the Legislative branch. He has allowed his Cabinet a relatively free hand in the manner in which they manage the affairs of their respective portfolios and he has allowed the PSCs to take a more hands-on approach to assessing and evaluating the work of his Cabinet. President Moi did not allow the Legislative branch to develop such power at his expense and he ensured that the chairmen of these committees were tame yes-men, willing, or compelled, to toe the line at all times.

Parliamentary Committees play an important watchdog role in Parliamentary politics. They are the organs mandated to investigate and report on the activities of the Executive branch and their importance is tied to the fact that they check the possible excesses of the Executive. Hon. Keynan may have a vendetta against the Minister for Foreign Affairs, but this does not reduce the importance of the enquiries he has launched against the Ministry. In previous years, the Executive could make decisions and take action without Parliamentary scrutiny, fostering a culture of impunity that we hope will be wiped away by the Constitution. Hon. Keynan and his counterparts are the first line of defense against the overreach of a powerful Executive and their role can only grow in importance when the new government is formed under the new Constitution in 2013. They will be instrumental in vetting and approving or rejecting the presidential nominees to public office and their recommendations should reflect the views and wishes of the people of Kenya.

Hon. Wetangula and Hon. Ngilu are realising, albeit belatedly, that they cannot operate with impunity. Their decisions and actions are subject to scrutiny, and where malfeasance or other malpractice id detected, they should be held to account. The transactions being investigated by Mr. Keynan's Committee are crucial to understanding how our government allocates and uses resources collected from hardworking Kenyans and Mr. Wetangula cannot hide behind claims that he is personally not to blame for the actions of the mandarins in his ministry. The days of passing the buck are over and all ministers must take responsibility, both administrative and political, for the decisions taken in their name. It is high time that other oversight bodies displayed the zeal with which the Parliamentary Committees are going about their mandates. For instance, the Inspector-General of State Corporations must involve himself intimately in the controversial conduct of the agencies under his jurisdiction. Why, for example, hasn't he come out with a report regarding the shameful way in which Joseph Tirop Koskei was appointed the MD of KEBS? The allegations of nepotism and tribalism should have been sufficient to trigger an investigation regarding the apparently unfair manner in which his appointment was effected. No longer should Kenyans be held hostage to the selfish goals and objectives of politicians; it is the responsibility of their representatives, through such organs as the PSCs to ensure that when decisions are taken, they are taken with the national interest in mind.

Thursday, October 21, 2010

We need more than the Michuki Rules

The President came out very strongly about the state of our driving in Kenya the other day, using the word 'lousy' to impress upon us on our very limited skills as drivers. This should not come as a surprise. Hon. Mwakwere (PNU, Matuga) and Hon. Kimunya (PNU, Kipipiri) are on the record that the job of ensuring the safety of motorists on our roads lies with the Minister for Internal Security and his Traffic Police force. Hon. Prof. Saitoti (PNU, Kajiado North) has had very little to say. Indeed, the only time he has ever spoken about the transport sector was only tangentially after the horrific Sachang'wan Inferno in which several Kenyans were killed when a trailer transporting fuel overturned and area residents took the highly risky opportunity to siphon fuel from the stricken vehicle. Other than then, it seems that he is more concerned about the International Criminal Court and cross-border terrorism than with the safety of the roads in Kenya.

It is rumoured that we have a National Transport Policy which has been adopted and adapted by the government of Singapore to ease the traffic congestion that is experienced on the island city-state. If this is the case, we must already know that a solution can be found for the problems that assail the transport sector, especially in the urban areas. Road traffic fatalities, after a lull in the early stages of this decade, are on the rise once more. It is said that thousands are killed or injured in road traffic accidents. Many of them can be laid at the door of the matatu industry, especially the 14-seater minibuses. The largest number of fatalities and serious injuries from road traffic accidents attributed to the transport industry are to be found when these minibuses are involved. Many are dangerously, nay, recklessly, driven. Many do not comply with the speed-governor requirements of the government. Many are operated by crews of dubious training or competence. Indeed, I would go so far to say that other than the employment figures attributed to these buses, and the revenue they generate, they are a great risk to the transport industry and it is time we began an earnest phasing out programme of these vehicles from the transport sector.

One of the main reasons why the transport sector is in such a shambles is the involvement of organised crime groups in the industry. It is an open secret that in Nairobi and Nakuru it is the Mungiki that calls the shots on where and when certain matatus can ply their trade. Because of the demands of this gang, the owners of matatus are overly incentivised to raise their daily revenue at the expense of safety. They are thus motivated to cut corners on maintenance and regulatory compliance in order to meet the demands of a criminal gang that cares for neither. As a result, matatus are sometimes unfairly targetted whenever tragedy occurs on our roads. 

The owners of matatus are more concerned with meeting the daily extortionate requirements of the Mungiki that they have very little time for the concerns of their passengers or the welfare of the transport sector as a whole. When you are asked to part with a portion of your revenue to a gang that uses extreme violence to make its demands, there is very little incentive to consider the needs of others, let alone the little question of improving the sector such that all stakeholders operate at their highest level of profitability, safety and professionalism.

The City Fathers of Nairobi should also come in for some stick. Despite the laudable attempts of ensuring that the matatus plying intra-city routes play by the rules, it is becoming evident that because many city councillors are owners and operators of matatus, they are also caught up in a dilemma: do they ensure that there is a level playing field or do they maximise profits before they are violently forced out by the Mungiki? 

When the Kenya Bus Service enjoyed a monopoly of entry into the Nairobi Central Business District, there was a semblance of order and certainty. Buses could only pick up and drop off passengers at designated stages and termini, and they all ran on a strict timetable. The liberalisation of this policy allowed other players to enter the CBD, but they seem to have jettisoned the requirements for timetabling and other measures also. Nowadays, it is common to witness buses and matatus stopping in the middle of the road to pick up and drop off passengers. The 'overlapping' that is common during the rush hours of the day are as a result of the desire for profit at the expense of almost everything else. The Traffic Police Department is overwhelmed by the increasing numbers of motor vehicles on the city roads that they have simply given up on enforcing many of the rules of the road. It is becoming more and more difficult to drive safely to and from work and this situation is getting worse by the day. As a result, thousands of man-hours are lost each year to delays in traffic and national economic productivity is suffering as a result.

A solution that has been suggested countless times is an integrated mass-transit system to cater for the increasing number of transport stakeholders, including passengers, motorists, transport company owners and regulators. The Kenya Railways Corporation is planning to expand and improve its intra- and inter-city passenger services to cater for the increasing number of passengers. The City Council of Nairobi together with the Ministry of Nairobi Metropolitan Development have embarked on a programme to limit the number of parking slots in the CBD while at the same time increasing the parking rates paid by those lucky enough to find the increasingly fewer number of slots available. The City Council and the Ministry of Local Government have embarked on the modernisation and expansion of bus termini in and around the city. However, all these will come a cropper if there are insufficient numbers of safe, efficient and reliable buses and matatus.

New rules are needed to regulate how transport sector players operate, especially in urban areas. Their enforcement will be crucial to ensuring that they play by the rules. The Michuki Rules were a step in the right direction, but they were insufficient as they only dealt with the question of safety. They did not address the question of reliability or efficiency. It is time a system similar to the one that the KBS operated is mandated for the entire transport sector. Buses and matatus must ply designated routes and must only pick up and drop off passengers in designated areas. They must also follow a designated timetable. For this to work, the numbers of buses licenses to operate from the CBD must be limited and this rule ruthlessly enforced. Designated mass-transit lanes must be created and the safety and efficiency of the system must be enforced and monitored from a central point. 

All motorists, regardless of whether they are in the transport sector or not, must meet stringent higher standards before they are allowed to operate vehicles on our roads and drink-driving rules must be ruthlessly enforced. Finally, the power of the Mungiki and other similar organised crime gangs must be crushed to allow for the modernisation of the transport sector in order to assure investors of the safety of their investments. This means that all operators and stakeholders must join hands to suggest ways and means of improving this sorry situation. For instance, the Kenya Police, the City Council and the relevant ministries can identify the crime-hotspots in and around the city in order to track the activities of criminals leeching off the transport sector. The passengers who ply these routs can participate by providing information, even anonymously, to the relevant authorities. In the end, only collaboration will begin to address the problems of transport.

Hon. Ruto is caught between a rock and a very hard place

The political process is very rarely perfect. If Kenya is anything to go by, the process involves countless compromises, conflicts of interest, corruption, lies and all manner of skulduggery. The current affair involving the Minister for Higher Education, Science and Technology, William Ruto (ODM, Eldoret North) is nothing new and the way it unfolds will be instructive if not but for the manner in which we will be schooled in the compromises that are sure to take place. Hon. Ruto, as is alleged, was involved in an 'irregular' transaction that involved the sale of government land without following the due process of law. It is alleged that he used undue influence, influence derived from his position in government, to ensure that the deal benefitted him and his cronies at the expense of the government, and by extension, the people of Kenya. When he was initially charged, Hon. Ruto went to court to challenge the constitutionality of the authority of the Kenya Anti-Corruption Commission. The Court of Appeal, four years after the constitutional challenge was filed, has now ruled that indeed Hon. Ruto and his accomplices can be tried.

Section 62 of the Anti-Corruption and Economic Crimes Act provides that where a public officer is charged with a crime under the Act, he shall be suspended from his office until the mater is determined. Section 63 provides that if he is convicted, his suspension shall continue until all appeals are concluded. Logically, once all appeals have been concluded and the conviction upheld, the public officer shall be dismissed from office. Hon. Ruto's allies and supporters, including Hon. Moses Lessonet (ODM, Eldama Ravine), argue that as the matter has been pending in the courts since at least 2005, there is no reason why he should step down as the Minister for Higher Education as the facts have not changed. The Prime Minister, when answering a question in Parliament put forward by the Member for Gichugu, Hon. Martha Karua (Narc-K), had argued that there was no need to suspend Hon. Ruto from his portfolio as the Court of Appeal had not determined his application. His thinking was that if there was a possibility that the Court of Appeal could rule in his favour there was no need to suspend him as such a determination would open the way for Hon. Ruto to make his way back to the Cabinet. Hon. Odinga's position was a fallacy. The At is clear - when a public officer has been charged, he MUST be suspended pending the determination of the suit.

The media has painted a picture in which the Prime Minister and the Minister for Higher Education are pitted as bitter political rivals. This picture has been embellished by the statements attributed to several MPs from Hon. Ruto's erstwhile Rift Valley Province such as Isaac Ruto (ODM, Chepalungu), Charles Keter (ODM, Belgut) and Hon. Lessonet that 'they' are being 'targetted', especially for the stand they took during the referendum campaigns earlier this year. However, this picture requires clarification in order to separate fact from wishful thinking.

During the general election campaign in 2007, Hon. Ruto and his allies were firmly identified as Hon. Odinga's most ardent supporters. Indeed, they were among the most vocal of the fact that the ODM flag-bearer had been cheated of his right to form the next government. However, after the violence that rocked the country, there was a re-alignment of forces, with Hon. Ruto attempting to craft an alliance outside the ODM umbrella, one that eventually came to be known as the KKK alliance which was meant to unite the political ambitions of the Vice President Stephen Kalonzo Musyoka (ODM-K, Mwingi North), Deputy Prime Minister Uhuru Kenyatta (KANU, Gatundu South) and Hon. Ruto. The alliance was prematurely premised on the idea that the winning candidate in 2012 would be in a position to offer rewards to the other two in the ensuing government. However, Hon. Odinga played against the fears of this trio during the process of negotiating the structure of the new Constitution. The Prime Minister is an ardent observer of the mood of the country and he correctly guessed that the people were tired with the idea of elected politicians serving in government. However, to hide his plans he and his allies let be known that they would support only a Parliamentary System of Government where an executive prime minister would be in a position to pick his cabinet from among elected Members of Parliament, knowing full well that the KKK alliance would oppose this strategy, arguing that the Prime Minister was manipulating the process in order to give himself an advantage over the other presidential contenders, especially the proponents of the KKK alliance. Heading to the now infamous Naivasha retreat, the three campaigned for the idea that the executive should be a presidential one and when Hon. Odinga switched sides and agreed with them, they had no choice but to go along. The rug had been pulled from under them and they could not change their minds. They attempted to cobble together a Parliamentary majority to propose amendments to the proposed Constitution that would give them some advantage over the Prime Minister. They were unsuccessful and here we are today.

Hon. Karua wants to sow as much discord in ODM, to the extent that she hopes to bait the Prime Minister and the President into suspending the Minister for Higher Education until his case is determined. I do not see the two falling for this gambit. They know, and not incorrectly, that suspending Hon. Ruto would not serve the Prime Minister's plans for him to suspend Hon. Ruto from the Cabinet. Indeed, the Prime Minister is so alive to this fact that he has not taken any disciplinary action against Hon. Ruto in the party for opposing the party position in regards to the Referendum. The Prime Minister enjoyed wide support in the Rift Valley in the last general elections, largely because he was seen as a supporter of Hon. Ruto's ambitions in the province. He must calculate that it will be politically suicidal for him to be seen to be overtly against the Minister at this sensitive juncture and so I do not see him taking a position regarding the suspension of Hon. Ruto. If the president were, on his own volition, to suspend the minister, Hon. Raila may walk away from the affair with his hands relatively clean.

Regardless of the pronouncements of his supporters and allies, the Prime Minister knows that his chances of taking the presidency in 2012 are dependent on the level of support he will enjoy in the erstwhile Rift Valley. Therefore, I see him making a deal with Hon. Ruto. A sad truth that informed the reform of the Judiciary is that it is easily manipulated by the Executive. Thus, the Prime Minister may assure Hon. Ruto that the case against him may never be concluded if he comes back to the fold and offers the Prime Minister his full and vocal support. This would require that Hon. Ruto fully commit himself to a Raila presidency and part ways with his two partners in the KKK. Hon. Musyoka has already read the tea leaves and has embarked on a unilateral campaign to bolster his support in various pockets that are up for grabs, including his recent forays to Western Kenya. Despite Hon. Michuki's endorsement of Uhuru Kenyatta, he is not a serious presidential contender even if he decides to run a unilateral presidential campaign. He is in the same boat as Martha Karua and without a credible nationwide alliance, or one that unites a majority of the political regions in Kenya, his chances of winning the presidential election are slim, to say the least. Considering the level of acrimony that is directed at Central Kenya, he stands an even lesser chance of playing kingmaker come 2012.

Until the Prime Minister indicates what his long-term plans are we can assume that he will do nothing, or enough to ensure that Hon. Ruto survives until at least the general election. The little matter of the ICC investigation is a minor bother for them. It will only play a part in determining 2012 fortunes if the Prime Minister takes a hands on approach to how the investigation shapes up. It will be in his interests that the investigation takes long so that matters come to a head after 2012. How Hon. Ruto reacts to the Prime Minister's stance will also determine his fate. If he rejects the olive branch that ha been offered, then his fate will be sealed - if the Anti-Corruption Courts do not get him, the Prime Minister will see to it that the ICC does. Hon. Ruto has his fate in his hands and how he sees things leading up to 2012 will determine whether he gets to enjoy the perks of power or spend quality time with other accused persons in Kenya or in the Hague.

Sunday, October 17, 2010

Moi Kibaki will not save us

here is a growing movement to rehabilitate the image of President Moi in the public's mind. Murithi Mutiga writes in today's Sunday Nation that we should imagine how well Kenya will be governed if the next president were a hybrid of the best qualities of Presidents Moi and Kibaki (Why we should elect 'Moi Kibaki' as the country's next president). Images of Kenyans chanting the demise of the Moi Era in January 2003 have long been forgotten. President Moi was instrumental in defeating the Wako Draft in 2005 and he did his best to defeat the extremely popular CoE draft in 2010. What should be evident for all to see is that the manner in which President Moi ruled the nation, when everything was laid at the door of Baba Moi, did more harm than good. When political commentators laud President Moi's 'deft touch in politics', they willfully and blindly forget that his 'deft touch' was more often accompanied by the jackboots of his secret police. Former detainees and torture victims will attest to the fact that the old man did not have a deft touch; his giraffe-like view of politics was informed by one desire only - to remain at the helm come rain or high water.

When we look out over the political landscape today, a few things come to mind. Prime Minister Raila Odinga is undoubtedly a leader among men. However, the praises being sang in his honour by his multitudes of supporters and fans should not blind us to the fact that his family has had a long and tortured history when it comes to the question of governance in Kenya. He has had to make political accommodations in order to bring him this close to power. Indeed, had it not been for his 'Kibaki Tosha!' slogan in 2002, Uhuru Kenyatta, his Deputy Prime Minister and Minister for Finance would be the president today. In 2007 he cobbled together what he thought was a winning combination and the dispute that arose after the fiasco of the counting of the presidential votes led to the violence that led to the National Accord that led to his appointment as Prime Minister. No, until Mr. Odinga proves once and for all that he is a firm believer in the rule of law, we must withhold our judgment and our presidential votes.

Charles Kanjama points this out in his article in the Sunday Standard (MPs must be pushed to pay tax on all income) when he speaks of the fact that the MPs of the Tenth Parliament continue to ignore the clear provisions of the Constitution when they continue to refuse to pay taxes on their more than KES 600,000 in allowances. This tax boycott is the defining feature of the contempt with which politicians, including the revered PM, hold the people of Kenya. How can the billionaire political colossus look us in the eye, and ask us to trust him, when he cannot do the right thing and pay his taxes? Uhuru Kenyatta, who has received the seal of approval from John Michuki, and indeed his predecessor at the Ministry of Finance Amos Kimunya, indicated that it was right and proper that the 222 well-paid MPs should pay taxes on their total income. They refused, and other than mild rebukes from the Prime Minister and the President, nothing has been done to reverse what can only be described as a sorry state of affairs.

The challenges that face this country in the implementation of the Constitution are becoming more and more apparent as the days turn into months. Some have described this situation as the last kicks of a dying horse, the dying horse being the system that KANU built in Kenyan politics. The suggestion is that the problems we face today can be laid squarely at the feet of the political classes and that we only need to elect newer and 'better' politicians and all our problems will be solved. This fallacy has to a large extent informed the caucusing that is taking place in the professional classes regarding the role they will play in the governance of the counties post-2012 general elections. The truth, as always, is much more complicated. Just like the falacy of trying to find the better aspects of the Moi regime is the fallacy of reposing the people's trust in the professional classes. I have argued before that politics in Kenya is not inherently a bad thing. We have suffered because we have lacked politicians who understand how to play politics well. We have been held hostage by bad leaders our entire post-Independence life and it is time we found 'good' leaders to move us out of the quagmire we find ourselves in. Exhortations that we need a 'Moi Kibaki' are wide off the mark. Instead of deploying their powers of rhetoric to inspire Kenyans to be better citizens, our politicians in the past two weeks alone have found every possible reason to make the case for their ethnic communities, inspiring people to chauvinistic ethno-nationalistic bouts of umbrage and outrage. These are sentiments that will not generate ideas for the more efficient management of national resources or for solutions for national challenges. As a class, both the so-called professionals and the politicians have ill-served Kenya in their leadership positions. When Rose Ambitho asks leaders to listen to the silent concerns of their people, she also should ask the people to take matters into their own hands - it is time that we got involved in the management of our affairs by participating fully, just as the Constitution provides, in the management of our political parties, local authorities, counties and national government. We should call our politicians to account for their political acts of commission and omission and insist that if one is to remain in a leadership position, one must demonstrate a desire to lead by example. For this, the Moi Era must be consigned t the dust-bin of history and all MPs must pay income tax, backdated to the date when Amos Kimunya first demanded that they do so. Those who pay deserve consideration. Those who don't, must be dumped, and dumped quickly!

Friday, October 15, 2010

Henry Kosgey and the crisis in leadership in Kenya

Why are we surprised that the Minister for Industrialisation, Henry Kosgey (ODM, Tinderet) went against the National Standards Council, the external headhunter KPMG and his own Permanent Secretary, to appoint the next Managing Director of the Kenya Bureau of Standards? He did as others had done before him. 

When John Njoroge Michuki (PNU, Kangema) was acting as the Minister for Transport, he ignored the recommendations of the Kenya Airports Authority and controversially extended George Muhoho's term as the MD by a further twelve months. Indeed, when Amos Muhinga Kimunya (PNU, Kipipiri) decided to appoint a new MD for the same agency, the process was riddled with controversy, yet no one remembers these names today. 

It has also emerged that at least two relatives of the Prime Minister, one of whom is his sister, have been appointed to diplomatic posts even when none of them has diplomatic training or experience. The Foreign Affairs Minister's assertions that because they have advanced degrees, and that the Prime Minister's sister has knowledge of California, is specious at best and betrays the fact that until a new government takes office after the next general elections, government jobs are still tools for patronage where nepotism, tribalism and any other kind of -ism hold sway.

Kenyans are getting frustrated at the innovative ways that our ministers are using to frustrate the objectives of the new Constitution. It is months since the Referendum and no steps have been taken to separate the inherent conflicts of interest to be found in the conflating of party jobs and ministerial ones. Heads of political parties still simultaneously hold offices in government, be it in the Executive or the Legislature. None of them has shown any indication that they will vacate these seats any time soon. Also, many government appointments, while nominally based on merit, are actually the result of ethnic and family calculations. The implication is that these new appointees are in those positions not to do stellar jobs, but to protect the political flanks of their "appointing authorities."

This state of affairs seems to inform the scale of interest in the position of Governor or Senator that have been created by the new Constitution - politicians seem to see these new offices as new opportunities for patronage and corruption. Many of the so-called professionals that are meeting to strategise about how to 'bring development to the county' do not seem to have political constituencies from whence they come. They meet in secret in the Capital City without so much as a by-your-leave from the residents of these counties. No form of consultation seems to have taken place, nor any kind of civic education regarding the role that the county government will play in peoples' lives. The potential gubernatorial and senatorial contenders seem to be concentrating on the perks of the job rather than a genuine desire to help transform the lives of people through the better management of public resources. The fact that there seems to be emerging a contest between retired politicians and professionals over these positions seems to affirm that many of the potential contenders will be defined by how best they can manipulate the system to their benefit.

Hon. Kosgey's appointment of a person who did not come out top in the headhunting process is proof that our political class has not had a re-awakening since the promulgation of the Constitution. The are still caught up in a history where politicians in influential positions used those positions to benefit the members of their community or their relatives. They do not seem to understand that while at one level they will find supporters for their actions, on another level they are betraying the trust that Kenyans have in the Constitution. 

Chapter Six of the Constitution addresses the questions of integrity and leadership. Our current crop of politicians would be hard-pressed to prove that they are willing to live with the principle enshrined in this chapter. This chapter is vital to cleaning up the manner in which leaders in government act in order to ensure that fairness and justice for all will be the watchword of those entrusted in managing national affairs. Indeed, their recent actions suggest that when the moment comes for the vetting of cabinet secretaries and other government officials take place, it will not be merit that tops the list of criteria but political and ethnic calculations. Woe unto us if we permit the likes of the Industrialisation Minister and his cronies to take us for what may well prove to be a very expensive ride.

Tuesday, October 12, 2010

Who says that 'professionals' are the answer?

One of the best comedies to come out of the post-Referendum phase is the idea that 'professionals' are the saviours our Counties, or future Counties, have been waiting for. Stories abound of 'professionals' meeting and crafting strategies for the effective management of their Counties, or Counties from which they 'traditionally' hail. During these sessions, sometimes hundreds of 'invited' guests pontificate on the priorities of the Counties while at the same time blaming the relative backwardness of 'their' Counties on the incumbent and past Members of Parliament. By professionals we of course mean doctors, lawyers, university dons, engineers, architects and accountants and others who are so professionally trained. It has become a truism that the future success of the County is in the hands of trained professionals capable of managing the huge resources that are soon to be devolved to the County Government. But is this vision reasonable or even true?

At the close of the Twentieth Century President Moi decided to professionalise the civil service, either willingly or as some would have it after being arm-twisted by the World Bank and IMF. Towards this end, he appointed Dr. Richard Leakey, the renowned paleontologist and conservationist, as the Head of the Civil Service. He in turn, put together what came to be known as the Dream Team. Among their first order of business was the retrenchment of thousands of civil servants, offering them Golden Handshakes to retire early. It was argued that the civil service had become so bloated it was virtually the cause of the poor service delivery by the government. 

A decade on, the effects of the ministrations of the Dream Team are being felt and government is still as inefficient as ever. Poverty, disease and ignorance still stalk the land as colossi and the blame is still being heaped squarely on the civil service. 

When President Kibaki was sworn in in 2003 he promised that the government would serve the people better. He gave up many of the trappings of power that President Moi had so made his own. He allowed university vice-chancellors to be chosen on merit and professional credentials in the hope that the quality of higher education in Kenya would be improved. Today, sadly, the University of Nairobi is facing stiff competition from the new kids on the block, including the Mount Kenya University and the Kenya Methodist University. Indeed, when one walks along University Way, one cannot but notice the new edifices of higher education that bear the names of these new upstarts. 

The University of Nairobi, on the other hand, is still caught in a time-warp, reacting to the changing market situation rather than leading the charge. Prof. George A. O. Magoha, the vice-chancellor, is out of his depth. So is Prof. Olive Mugenda, his counterpart at Kenyatta University. They do not have the managerial experience to manage institutions that have thousands of staff and billions of shillings in resources. The proof of this can be seen in their interference in students' elections and the fact that their institutions are incapable of competing with the best of the best globally, regionally or locally. Year in, year out, our state universities trail international ones in rankings of universities published by global institutions. This situation will not change unless there is a change in the manner which they are managed. The only qualification that seems to matter to the thousands of academic staff at these institutions is the fact that both vice-chancellors are professors in their respective fields and not whether they are effective managers, or even managers at all.

Many academics have been tapped to manage government departments and other institutions. Dr. Ayub Macharia, the acting Director-General, came to NEMA from Kenyatta University. His predecessor, Dr. Musya Mwinzi, came from Moi University. The Ministry of Environment and Mineral Resources' permanent secretaries, barring the incumbent, have lately been from academia. Dr. Bitange Ndemo is in charge of the Ministry of Information. Dr. Alfred Mutua is the official Government Spokesman. Their records, as are those of other academics tapped to be managers in government, have been anything but stellar. And now a narrative is being promoted that 'professionals' are the answer to what ails us in an executive sense, that they will make the best option for the leaders of the County Governments set to be inaugurated in 2013.

What we need are politicians with managerial experience or managers with political skills. One of the most pernicious fall-outs of the end of the KANU Era was the complete abandonment of the political arena by 'professionals'. They do not participate actively in the management of political parties and they do not contribute their time or their intellectual capacity to addressing the political challenges that face the nation. 

The idea that politicians are solely to blame for the quagmire we find ourselves in should be discounted. Politicians do not exist in a vacuum. They must play to the gallery to secure votes. That their ideas remain unchallenged is a testimony to the political apathy of 'professionals'. Now they purport to have all the answers and wish to lock out the current and past crop of politicians from the management of the County Governments come 2013. Given that their involvement in government and governance has not been salutary, someone should remind them that simply because they have become the best in their fields, be it in a professional or academic sense, does not mean that they can transfer those skills to the political arena. And, governing the county will be a political act first and a professional one second. 

They purport to speak for the silent masses, prescribing solutions to the problems of 'their' people. None of them has shown whether they have the support of these people. None of them has proven that they have the political skills required to negotiate the political settlements that will arise with the creation of the county government. None of them has displayed any political skills necessary to ensure that not only will they be elected to govern, but that they will enjoy the support of the masses when they do decide to enter elective politics. The solution to the problems we face today will not be found in the managerial skills of these men and women, but in the political skills of the the men and women eventually elected as governors and deputy-governors. If they are incapable of understanding and navigating the treacherous waters of the political world, their skills and experiences will count for nothing and 'their' people will continue to be assailed by the triple problems of disease, ignorance and poverty.

Before we can count on the skills and experiences of 'professionals', we must first re-create the political systems at the county level. The numbers of political party members must go up and these parties must allow for the diversity of opinions in addressing the needs of the communities. These so-called professionals must lead the way in re-awakening the political party system, where political ideas and solutions can be found. Only then can they purport to speak on behalf of 'their' people. Only then can they offer themselves for high office. If they are incapable of shaping the political discussions within their Counties, they cannot expect to succeed in their quests to become governors, or senators, or MPs.

Monday, October 11, 2010

Isaac Ruto and Ephraim Maina do not speak for me or you

Philip Ochieng', writing in yesterday's Sunday Nation is right that tribes are blameless for the violence that was visited on Kenya in 2007 and 2008 (Ocampo, do not fall for this trick by the elite). The past week has been hilarious: members of PNU have come out strongly to defend their 'people' against the bias they claim that the ICC prosecutor is displaying by asking for minutes of security meetings held before, during and after the violence that took place after the disputed 2007 general elections. Rift Valley MPs of ODM have joined the chorus by asking, nay demanding, that ODM provide minutes of its meetings when the Pentagon called for mass action. As Mr. Ochieng' notes, these men and women seek to hoodwink the ICC prosecutor into believing that the violence was a communal matter rather than an individual one. It is time that well-meaning Kenyans came out strongly against the tactics of the elite and informed Luis Moreno-Ocampo that Kenyans would not have committed these horrendous crimes if they had not been urged, encouraged or paid by their political masters. If the concept of command responsibility were to be applied to Kenyans in positions of authority, it does not matter whether they were Kikuyu, Luo or Kalenjin - they must all face the full brunt of the law.

Kenya is undergoing fundamental changes and the likes of Isaac Kiprono Ruto (ODM, Chepalungu) and Ephraim Mwangi Maina (Safina, Mathira) are the wrong people to offer solutions to what ails us. In December 2007, Kenyans voted and made choices that they hoped would make their lives better. They had been bombarded by messages of change and hope by wily politicians. They had been bribed in imaginative ways and if it was not for the hapless handling of the elections by the discredited Electoral Commission of Kenya, things wold have gone on as much as before. But, the spectre of uniformed and plain-clothes security agents acting as the political agents of one party to the detriment of another proved to be the tinder set against the kindling of the Kenyan public's anger. Images of aggrieved politicians urging their 'supporters' to engage in 'mass action' to protest against the blatant thievery of the elections was fuel to the fire. Stories continue to emerge of politicians and businessmen funding marauding youths to perpetuate the violence. The Waki Commission heard harrowing tales of women systematically raped as other members of their families were slaughtered by the marauding mobs of security officers and other militias in the pay of politicians. Hundreds of thousands of Kenyans were driven from their homes at the urging of political players in their districts. Now we have the elite in these political parties seeking to shift the blame for the mayhem from themselves to their ethnic communities, attempting to create alibis for their actions where none exist.

The Director-General of the National Security and Intelligence Service is on the record as having warned the government that there would be violence if the results of the presidential election was disputed. Indeed, in the run up to the elections, an assistant minister was arrested for ferrying weapons to his constituency. To date, he has never been charged with an offence and is free to walk among us. How many cabinet members were involved in the arming of militia in their constituencies and did the NSIS know of this? Who knew, when did they now and what did they do about it? Prof. George Saitoti (PNU, Kajiado North), the Minister for Internal Security and Provincial Administration, is set to publish rules for the recording of testimony to be given by senior members of the security services and the provincial administration. Given that he has expressed an interest in the presidency, will he publish the rules in such a manner that only his political rivals are implicated or is he interested in the truth?

There is no way that the process of investigating the atrocities that were committed in 2007 and 2008 will not bring to light the culpability of senior politicians and senior government officials in the mayhem. That many of the officers in charge of security at that time come from 'one particular community', it is only reasonable to assume that they will face the brunt of Senor Ocampo's attention. It is also reasonable to assume that many of the politicians in the Rift Valley who called for 'mass action' may also be implicated during the investigations. However, the cost to these individuals will be political first and legal second. While some or all of them may escape indictment or even trial and conviction at The Hague, they will have suffered irreparable political damage. It is this that is exercising the likes of Ruto and Maina to fight the perception that only certain members of their respective communities are being 'targetted' by the ICC. Mutula Kilonzo (ODM-K, Mbooni) has suggested that some of the perpetrators, perhaps all, should be tried in Kenya, but as the acquittal of the policeman videoed shooting unarmed people in Kisumu shows it is not possible to get a fair trial in Kenya. The Hague remains, as it always has, our best and only option.

Regardless of the impact of Mr. Ocampo's investigation on the 2012 general elections, it is imperative that his investigators go where the evidence takes them. We must break with our dark history if we are to achieve anything as a nation. The work done by such organisations as the Kenya Human Rights Commission, the Kenya National Commission on Human Rights and other similar NGOs must be supplemented and complemented by the testimonies of Kenyans who witnessed what was going on. No one can lay claim to being a true Kenyan if he sits idly by while the investigators are in town. It is time we showed Ruto and Maina that individual responsibility comes first before communal responsibility; that individuals who exercised command responsibility will be targetted, investigated, indicted, tried and God-willing, convicted for their crimes against humanity.

Sunday, October 10, 2010

Homosexuals and family

According to that fount of knowledge, Wiktionary, the following definition applies to the noun "family":

family (countable and uncountable; plural families)

1. (countable) A father, mother and their sons and daughters; also called nuclear family. Our family lives in town.
2. (countable) A group of people related by blood, marriage, law, or custom.
3. (countable) A kin, tribe; also called extended family.
4. (countable, biology, taxonomy) A rank in the classification of organisms, below order and above genus; a taxon at that rank. Magnolias belong to the family Magnoliaceae.  
* 1992, Rudolf M. Schuster, The Hepaticae and Anthocerotae of North America: East of the Hundredth Meridian, volume V, page 4


The closest affinities of the Jubulaceae are with the Lejeuneaceae. The two families share in common: (a) elaters usually 1-spiral, trumpet-shaped and fixed to the capsule valves, distally […]
5. (countable) A group of people who live together, or one that is similar to one that is related by blood, marriage, law, or custom, or members of one's intimate social group.

This is my fraternity family at the university.Our company is one big happy family.They treated me like family.
6. (countable) Any group or aggregation of things classed together as kindred or related from possessing in common characteristics which distinguish them from other things of the same order.
7. (countable, music) A group of instrument having the same basic method of tone production.

the brass family; the violin family
8. (countable, linguistics) A group of languages believed to have descended from the same ancestral language.

the Indo-European language family; the Afro-Asiatic language family
9. Used attributively.

The dog was kept as a family pet. For Apocynaceae, this type of flower is a family characteristic.

When the Minister for Special Programmes, Esther Murugi Mathenge (PNU, Nyeri Town) suggested, in the contest of addressing the HIV/AIDS pandemic, that we should include persons of the homosexual persuasion in government interventions, she stirred a hornets nest and was subsequently for her statements by the members of the religious right as well as conservative African traditionalists who wish to deny that Africa has any homosexuals. Prof. Makau Mutua, whom I have disagreed with because of his stand on several constitutional issues, is on record asking that before Kenyans react 'emotionally' to the statements attributed to the minister, we should consider that homosexuals are people too and that they also enjoy the benefit of the protections of the Constitution of Kenya.

Living in my urban cocoon and having travelled outside the country, my perspective on the issue is coloured by my cosmopolitan experience. I have no doubt that on a moral plane, the men and women who are active homosexuals, that is, those who have and carry on homosexual relationships, are headed to hell. However, I also know that the world is not composed only of fundamentalist Christians or Muslims or African conservative traditionalists, but that it also contains atheists, heretics, anarchists and all manner of persons, who enjoy inherent rights, rights that cannot be abrogated by the desire of the majority to maintain its way of life. Changing social mores have greatly modified the interpretation of various portions of religious scripture. For instance, we are all agreed that it is unlawful to prevent a man and a woman from marrying simply because they are from differing races, religions or tribes. However, in Kenya, we still subscribe partially to this when we allow that Marriage Act and the African Christian Marriage and Divorce Act to remain in our statute books. Indeed, until late into the Twentieth Century, interracial marriages in that bastion of freedom, the United States, were punishble by law and it was not until the Loving case that the US Supreme Court ruled that it was unconstitutional to prevent interracial couples from entering into the institution of marriage. Similarly, we will frown on any person or nation that still holds that it is possible to hold people as slaves. The work of abolitionists in Europe and the United States have shown that slavery is a stain on humanity and unconstitutional. In these instances, inhumane interpretations of the bible have been abandoned and new ones have replaced them. It is time the definition of family also underwent such a fundamental change.

In today's world, it is possible for a family to consist of non-traditional combinations: single mothers, single fathers, parents of adopted children, interracial couples, multi-ethnic or multi-religious couples, childless families, etc. Why is the spectre of same-sex couples being pilloried as unnatural? Because the bible says so? Whether we will admit it or not, Kenyan society has undergone fundamental changes, especially in the last twenty years. More and more people are choosing to act in ways that their forefathers would have found 'unnatural'. For instance, nowadays there is much being debated about the concept of privacy. This would have been difficult to perpetrate when the extended family and the village played such a crucial role in individuals' lives. The family then was the last place an individual could claim a right to privacy, where even matters between husband and wife were the legitimate subjects of the village. However, today, it would be impossible even for the state to interfere in the marital affairs of a couple except where one of the couples was at risk of abuse or injury.

People have the right to lead their lives as they see fit. However, they have no right to impose their interpretations of moral law on anyone. If a man wishes to bend over for another man, it is inevitable that God will punish them without mercy; however, it is not my place to prevent them from living their life as they wish. The only rule is that as they live their lives, they should do so such that I am not injured or at risk of injury. Parents have right to raise their children as they see fit; but once their children have flown the coop as adults, their parents will find it very difficult to impose upon them their will. In today's world the influence of media on people is so pervasive that it is impossible to prevent an individual from coming into contact with new ideas or mores. Wishing away homosexuality is akin to wishing for the return of the 17the Century, where the flow of ideas was more easily controlled. Kenya must keep pace with its citizens or there will be disruptions in the future. The state has more important things to fight, like hunger, terrorism, disease and poverty, than to hound and harass men and women who have chosen an alternative life for themselves.

Wednesday, October 06, 2010

We must do more to protect our children

Four years after the President's assent brought into operation the Sexual Offences Act, children and young adults are still victims of sexual assault, particularly at the hands of parents, care-givers and teachers. Not a week goes by without the media reporting cases of children suffering unspeakable horrors at the hands of those whose responsibility it is to keep them safe from harm. In a nation that somehow found 700 million shilling to buy an office building for the Prime Minister and spent a further 320 million retrofitting it with fixtures from as far as Italy, it is unconscionable that children are still at risk of sexual abuse and mistreatment. Horror stories of children being trafficked for sexual slavery and other deprave acts have become commonplace, so much so that we no longer notice the shattered lives that are broadcast into our livig rooms on our nightly news bulletins. We have become inured to the plight of these young lives and when the dam breaks, God will forgive none of us for sitting idly by as these children's world burned.

Irene Nyamu, the Executive Director of Childline Kenya (hotline no. 116), is doing her best to ensure that children have a place to go when they are at risk or suffer injury at the hands of their protectors. Similar organisations have taken up the gauntlet to fight the scourge that is afflicting this nation. But it is the failure of our government to intervene that is most glaring. Stories abound of the manner in which parents and government officials collude to cover up the abuse of children. Worse still is the cover up that is perpetrated by officials of the Teachers Service Commission and the Kenya National Union of Teachers. Mr. Gabriel Lengoiboni and Mr Lawrence Majali, senior officials of the TSC and the KNUT respectively, have perfected the art of blaming the other for the failures of teachers, especially regarding the sexual offences many of them are accused of. The Chief Executive of the TSC is on record stating that the TSC cannot get involved in passing relevant information to the police authorities regarding complaints of sexual assault attributed to teachers it manages. The Secretary-General of the KNUT is on record as saying that the Union is only concerned with the welfare of the teachers ad that matters to do with their criminal offences can only be dealt with by the government. It boggles the mind to imagine that these two are parents. I wonder of they would sit idly by if it were their children who were the victims of these unspeakable acts.

The Law Society of Kenya is the body mandated by law to oversee the operation of the Bar, to ensure that advocates behave in the highest ethical standards in order to protect their client from the misconduct of their legal advisers. The Disciplinary Committee of the LSK is at the forefront of investigating and, where necessary, punishing the errant advocates within the ranks of the Society, sometimes even recommending their disbarment. As a union, the LSK is committed to ensuring that advocates adhere to the letter and spirit of the law, that is, the Advocates Act. Why is it that the KNUT does not seem to have a similar mechanism, if for nothing else but to ensure that while it looks out for the interests of its members, none of them should be of questionable moral character? When it colludes with the TSC to transfer teachers from one station to another, it is abdicating its duty to improve the quality of teachers and to protect the children under the care of these men and women. When the Minister for education banned corporal punishment in schools it was largely as a result of the fact that the KNUT and the TSC had failed to ensure that this form of punishment would not become subject to abuse, as it had become. By the time the Minister acted, many children had become maimed, some for life, at the hands of the men and women who were charged with educating them and protecting them in the absence of their parents. Now, the TSC and the KNUT are abdicating their duty to ensure that sexual offenders within the ranks of the teaching profession are exposed and banned from the profession. Ms. Nyamu is correct to demand that a national register of sexual offenders be published to ensure that the profiles of these animals are known and that they never ever get the opportunity to get their hands on unsuspecting children.

Since 2005, 12,600 children have fallen victim to sexual abuse at the hands of teachers, and only 600 of them have been dismissed from service. This is untenable. Mr. Lengoiboni and Mr. Majal must ensure that their organisations change to reflect the gravity of this matter, otherwise, we must dispense with heir services and find someone else willing to take action where action is needed. Children are the hope of the nation and it is our duty as Kenyans to ensure that our children are raised in a nurturing environment. Leaders in the education sector must grab the bull by the horns and declare that regardless of the role a teacher may have played in the sector, when they are caught abusing children, they must be barred from the profession for life and they must face the full force of the law. The TSC must co-operate fully with the police and other authorities by providing information on the record of teachers who are responsible for shattering the lives of the little ones. The KNUT must put a mechanism in place to investigate and punish errant members of the profession in addition to expelling them from the Union, never to serve as teachers ever again. The government must set aside more resources to ensure that children are protected and cared for when they are in school, that they receive psychiatric and other care when they are abused, and that their rehabilitation will not play second fiddle to the needs of the Prime Minister's office. It cannot be that we shall be willing to spend billions of shillings making sure politicians are comfortable when children are weathering under the grubby fingers of those whose duty it is to protect them. We must do better by our children or we will reap the bitter harvest.

How to realise the dream of Independence

At the dawn of Independence, the then Prime Minister Jomo Kenyatta identified poverty, ignorance and disease as the main challenges of his government. 47 years later, we have made progress education, but nary a step to address disease or poverty. The gap between the rich and poor in Kenya, despite the many statistics pointing to the growth of the economy, keep widening day after day. Poverty is the number one factor affecting access to basic needs, including food and affordable health care. In the past month, the National Hospital Insurance Fund has proposed a raise in the contributions made by employees. It has been opposed, by among others the Confederation of Trade Unions (COTU). The Minister for Medical Services has attempted to conflate the contributions of Kenyan workers with the laudable goal of universal health insurance cover. His is an exercise in willful blindness of the potentates while addressing the needs of the serfs of the nation. In other news, the Kenya Meteorological Department predicts that a significant number of Kenyan districts are at risk of famine and that the Government should put in place measures to counter the famine that is sure to follow with its attendant hunger. This news has all but been ignored, with he Minister for Special Programmes going public with the conflict between the World Food Programme and the government regarding the question of which aid agency will be responsible for the distribution of relief food. Again, the potentates are playing politics with the lives of the poor.

The relationship between the governed and their government has always been characterised by the greed of the latter at the expense of the former. Politicians in Kenya are more interested in the acquisition of power at the expense of the question of governance. Hons. Nyong'o and Murugi are no doubt intelligent people. However, their political lives take precedence over the needs of their constituents who are supposed to be served by their respective ministries. They are symbolic of the role that Cabinet Ministers play in the deprivations faced by the people of Kenya. The Ministry of Finance is more interested in revenue and development targets and has done little to address the question of the gap between the rich and the poor. The Ministry of Education and the Ministry of Higher Education, Science and Technology are more interested in re-jigging the education system to meet the Kenya Vision 2030 targets than in delivering services to the millions of students weathering under a regime that does not address their basic educational needs: adequate classrooms, books, and teachers. In the past 12 months, we have been treated to the theatre of the absurd by revelations of millions of shillings siphoned off by well-connected individuals from the Free Primary Education's coffers while the shortage of teachers has received short shrift from the government. Indeed, the Ministry of Education and that of Finance collaborated in hoodwinking the people that the hiring of teachers on contract terms that are barely fair was a step in the right direction.

The day when politicians no longer serve in government cannot come soon enough. No one can deny that the likes of Prof Anyang' Nyong'o, Esther Murugi, Dr. Noah Wekesa, or Mutula Kilonzo are intelligent men and women as are the rest of the members of the Cabinet. But no one can deny either that their presence in the Cabinet has not been a boon to the people of Kenya. They have played politics with the basic questions affecting Kenyans and in the end disappointed the millions of people who rely on what should be their sound judgments. As a result, millions of Kenyans will be shown on our TVs starving to death; children will attend schools that do not have classrooms, books or teachers; workers will sacrifice more funds for the operation of a health system that will continue to fail to deliver. It is easy to blame the mandarins in charge of implementing the policies of government, but the Permanent Secretaries and their staffs operate under the draconian direction of their ministers. This is how it has always been and the day the politicians are shown the door will be a red letter day for all Kenyans.

The Committee of Experts, for all their faults, hit the nail on the head when they identified the presence of politicians in the Executive as the primary reason for the failure to deliver services to the people and they rightfully crafted a system in which the politicians would no longer have a hand in service delivery. Today, it is imperative that Kenyans began to get involved in the process of crafting the next Executive, identifying key men and women in government or in the private sector who would be responsible for ensuring that the government functions as it was meant to: as a servant of the people and not as a slave-driver. It used to be that civil servants and other public officers accepted less than favourable terms of office in exchange for lifelong, pensionable employment. That system has been shattered with the introduction of contracted officers at competitive terms in government. This process should be taken to the logical end: all public officers should be on contract at favourable terms and in return they must meet ALL their targets. The performance contracting system that has been introduced must be strengthened to ensure that only the best and brightest serve in government. Anything less and it will be a betrayal of the promise of the new Constitution.

In January 2013, when a new Executive has been created, Kenyans should expect to see professionals, masters of their crafts, serving as Cabinet Secretaries. No longer should the Cabinet be a way for the winning presidential candidate to reward his political supporters or manage a fractious coalition. The place for the Kenyan politician worth his salt is in the Legislature, the National Assembly or the Senate. If he is less ambitious, he should serve in the County Assembly or the local authorities that will survive a review of the law. For the more executive minded, they can contest the presidency or the 47 new governorships. And when they fail to manage their various executives, they should be dropped as swiftly as the next elections can be arranged for none of us is confident that the law on recall will be enough to guarantee an earlier ejection. In return, all politicians must turn their minds to how they can better serve their constituents, providing leadership and advice on the best possible methods of addressing the three problems of poverty, ignorance or disease. Only then can the lofty dreams of Independence be realised.

Tuesday, October 05, 2010

Martha should take a chill pill!

The news that Kenya is slipping in governance rankings published by Mo Ibrahim's foundation, read together with the statements made by Martha Karua (Narc-K, Gichugu), should compel Kenyans to re-think their stances on the vexed question of the kinds of leaders we allow to stand for elections. The recent elections of Margaret Wanjiru (ODM, Starehe), William Kabogo (Narc-K, Juja) and Gidion Mbuvi (Narc-K, Makadara) are instructive if only for the fact that these candidates spent millions, perhaps hundreds of millions, of shillings to secure victory at the bye-elections. The sources of their campaign funds remain a mystery and this is reason enough for Kenyans to interrogate the role that political parties play in nominating men and women to stand for elective office.

Martha Karua writes, "Whereas a political party cannot be expected to answer questions about its candidate’s source of funds, such questions must be asked of all candidates and all leaders." We should all question the idea that a political party cannot demand information regarding the source of political campaign funds of its candidates. To surmise that the reason is that the relevant laws have yet to be passed is the height of buck-passing. Parliament is not responsible for the management of the affairs of political parties; party officials, of which Hon. Karua is one, are. She is solely responsible for giving the nod for her successful candidates to stand for elections. She made the conscious decision to allow them to have their names put forward under the Narc-Kenya brand and she basked in their glory. She stood shoulder to shoulder with the winning candidates when they were sworn in as MPs by the Speaker of the National Assembly. In short, she is intimately involved with the decision to permit these 'businessmen' to stand for election. Or she should be.

The requirement that officials of a political party should not be serving members of the government, that is, they should not belong to any of the three branches of government is long overdue. The corruption that is endemic in government is partly as a consequence of party officials doing everything in their power to leverage their positions of power and responsibility in government to raise funds for their political parties (and themselves), especially around election time. Politicians in Kenya have made an art form out of the use of money in place of speech to inspire their supporters. When MPs and other government officials exempted from paying taxes on their allowances were informed that they would have to do so, they protested vociferously claiming, among other things, that their salaries and allowances were used in satisfying the myriad personal needs of their constituents including paying for funerals and school fees of the less fortunate members of their constituencies. Not one of them suggested that the reason they had been elected to Parliament was so that they could work hand in hand with the Executive to reduce their constituents' dependency on hand-outs from politicians and other philanthropists. Indeed, the National Assembly, in the form of the Speaker, came out strongly against the suggestion, accepted by some of its members, that MPs must pay taxes on all their earnings stating that until a law is enacted to compel them to do so, they would have to abstain. Does anyone believe that these MPs will permit the publication of a Bill that seeks to reduce the amount of money available to them at the end of the month?

The Iron Lady of Kenyan Politics is fast losing credibility. One has to admire her zeal in pursuing the presidency come 2012. However, this is not enough. She must separate herself from the pack of hyenas that are running besides her and declare unequivocally that she is against all forms of political corruption. She must admit that she was not in charge when Mike Sonko was nominated by Narc-K for the Makadara bye-election. Alternatively, she should admit that the difference between her and her fellow-competitors is that she is female. In all other respects, she is one of 'the boys'.

Hon. Mbuvi has declared his intention to stand for the Nairobi Senate seat in 2012. Does this reflect the wishes and priorities of the Flower Party? In the 2 years that he will serve as Makadara's representive, is he confident that he will have achieved his dreams for the resident's of Makadara so much so that he should offer to represent the entire Counrty come 2012 and does the chairman of his party share his bold ambition and vision? Martha Karua has the right to defend the reputation of her party, but she should not think that we are blind to the machinations she is engineering to secure victory come 2012. Gone are the days when Kenyans would be cowed by strongly worded letters to the editor. This is our time and we will be damned if we allow our politicians to deprive us of the right and opportunity to comment, however unfavourably, on the manipulations that are being perpetrated against us. Like PLO Lumumba may put it, the forest may have changed but the monkeys remain the same. Change or suffer the wrath of our pens!

Homosexuality and the HIV/AIDS challenge

Esther Murugi Mathenge (PNU, Nyeri Town) has set the cat among the pigeons suggesting that homosexuals and commercial sex workers should be mainstreamed when addressing the spread of HIV/AIDS as persons of concern. She is right. In the United States, when they were first researching the spread of this deadly condition, the stigmatisation of homosexuals in San Fransisco robbed the researchers of valuable time that would have permitted them to come up with effective strategies to ensure that it did not spread to the general population. The same farce is being played out in Kenya. It is now widely acknowledged that many homosexual Kenyans enter into heterosexual relationships in order to hide their predilections, putting their heterosexual partners at risk, especially if they engage in unprotected activities with their homosexual partners.

The debates surrounding art. 45 of the new Constitution primarily concentrated on the vexed question of whether homosexual marriages were permitted. We missed the point by a mile. Homosexual conduct in Kenyan society is rampant and many homosexuals are unaware of their HIV/AIDS status because of the stigma associated with their private lives. Consequently, many of them do not take appropriate prophylactic precautions, placing the general populace at risk of infection. As a result, we are unaware of the numbers associated with homosexuality and the infection rates among them. Given that many of them are also in committed heterosexual relationships, it is impossible to know how many of their partners have also been infected and therefore, we are not in a position to ensure that they are also tested and treated, where infected, before it is too late.

We should not concentrate overwhelmingly on their conduct as much as on the implications of such conduct. It is argued elsewhere that the criminalisation of homosexual conduct has not led to the reduction in the numbers of homosexuals in Kenya. Neither have faith-based or psychiatric interventions. The problem that the country is grappling with cannot be wished away by waving some magic wand. We must face up to the fact that the numbers of homosexuals are increasing and that this population is at risk as there are no strategies to address their infection or that of their heterosexual partners. Hon. Murugi is right to ask for a sea change in attitudes with the aim of improving access to treatment for this class of people. Moralising loudly about it will not solve the problem.

Ocampo should name names!

Are we surprised that some of Kenya's celebrated politicians are getting itchy just thinking of the day that Luis Moreno-Ocampo comes calling with his warrants? The recent pronouncements by Ephraim Maina (PNU, Mathira) and his PNU accomplices brings home the point that the ICC prosecutor is proceeding apace with his investigations into those who bear the greatest responsibility for the mayhem following the 2007 general election. However, he should disabuse himself of the notion that Ocampo is the stalking horse for PNU's bugbears in the ODM camp. 

It is an open secret that many of the people who would bear the greatest responsibility for the mayhem are serving and former members of the security apparatus of this country and it would behoove Mr. Maina to consider the fact that many of them were appointed from 'one particular community', so his exhortations for the investigations to be 'fair and unbiased' are mere hot air for the benefit of his constituents. This is not to say that only policemen and their bosses were responsible for the violence. Far from it. Individuals in both camps of government were at the forefront of fomenting trouble and it would be ideal if all of them, bar none, were arraigned before legitimate courts of law to answer for their crimes.

However, this is Kenya and the more things change, the more the remain the same. It is now a month since we overwhelmingly ratified the new constitution and Justice Minister Kilonzo has been attempting some mealy-mouthed sophistry to see that all the prosecutions in relation to the 2007/08 violence are handled in Kenyan courts. Kenyans have spoken loudly and clearly: we do not wish the prosecutions to take place in Kenya, unless the reforms that are taking place in the Judiciary give us credible magistrates and judges whom we can repose trust in. Especially when it comes to those who bear the greatest responsibility, we would like to see them answering to charges at The Hague because we do not trust them to see the process through without attempting to subvert it through their great wealth or their militias who stand at the ready to do their bidding.

Let s not forget that thousands of Kenyans were murdered at the urging of political and business leaders or that millions, perhaps billions, of shillings of property were destroyed and that the international image of Kenya as a sanctuary of peace and tranquility was shattered during the mayhem. The men and women responsible for this sad state of affairs rewarded themselves by occupying high offices and doing everything in their power to prevent the day of reckoning. That day is nigh and it cannot be wished away on the basis that only one set of criminals is being investigated.

Obviously, we cannot wish away the role of politics in all this. Kenyans are already being primed for the 2012 general election and many of the perceived suspects are gearing up to contest senate and governor positions. Ocampo could throw a spanner in the works if he were to name names before the date of the election. I dare say he must name them now or forever keep his peace. Nothing is served by keeping these names secret any longer, especially the names of those contained in Justice Waki's now famous envelope. 

The speculation surrounding the identities of Justice Waki's suspects is doing more harm than good and even though they have yet to be convicted of any crime, knowledge of their identities will not prejudice the country against them. After all, the political class has been indicted a hundred different ways for their greed, sophistry and love of self. It is time Kenyans started to distance themselves from these individuals and the revelation of their identities will serve a greater good. Kenyans should have the opportunity, nay the right, to approach the 2012 elections knowing where their political masters stand in relation to human rights. Ocampo should name names.

Thoughts on a Credible Legal Profession

I rarely get to agree with Donald B. Kipkorir, but I must say that this Sunday he is spot on (By churning out lists of potential CJ, judges, lawyers are scandalising the profession, Sunday Standard Oct. 3, 2010). Contrary to received wisdom it is not just lawyers who are best placed to proclaim who are best to take judicial office. This is a task that should also be accomplished by all consumers of judicial services in Kenya. After all, when judges proclaim law by interpreting the constitution, they do so on behalf of all Kenyans, affecting one and all from their lofty perches on the Bench.

It is quite obvious that the best candidates for judicial office would be experienced and learned lawyers. However, lawyers have a maxim that declares that no man can be a judge in his own cause and it would behoove the legal profession to heed this maxim in all its import. The Law Society of Kenya is the one of the most important institutions in Kenya, regulating the legal profession for the benefit of the nation. But on this matter, to give them prominence in the vetting process, something is bound to give. The judges and magistrates have a legitimate gripe when the LSK purports to draw up lists of approved professionals for the judicial offices that are to be created under the Constitution. This is the reason why the appointment of the reconstituted Judicial Service Commission and the board that would vet judicial officers should be speeded up. Even the LSK will admit that where there is a judicial officer found wanting, a lawyer will not be far behind. It takes two to tango and there must be a conduit for the misconduct of the judicial officers who shall be unmasked and it is reasonable to expect that some lawyers will be implicated. The judges and magistrates have a right, too, to expose the rotten tomatoes in the legal profession. Only then can this process be said to be as complete as we could wish.

Mr. Kipkorir is right to make comparisons with famous judges fro the USA and the UK. After all, the judiciary in Kenya is a reasonable facsimile of those of developed common law democracies. Therefore, it is reasonable to demand that those who wish to occupy judicial offices be men and women of probity, sagacity, and experience, capable of making rulings and handing down judgments that reflect these qualities. When President Moi engineered the appointment of Zaccheus Chesoni as our first back CJ, he exposed the rot that permeated both the Bar and the Bench and the Constitution is the opportunity that Kenyans have been waiting for to participate fully in choosing the people who deserve to be named to these positions. We must also reconsider our legal education system to ensure that we make the lawyers and judges that we want. The CLE programme of the LSK is a valuable tool in this regard and it should be enhanced and deepened to ensure that all practicing advocates upgrade their skills-sets and knowledge to better serve their clients and their profession.

It is imperative that we move away now from the tit-for-tat farce that is being played out in the question of vetting judges and magistrates. We must embrace the fact that we are all flawed and that NONE of the tainted men and women of the legal profession should be allowed within a hundred miles of judicial office. We must find a way of incorporating the thoughts and experiences of the wider public in the quest for a credible judiciary. We must also allow the public to become active participants in regulating and disciplining of the bar and the Bench to ensure that the administration of justice benefits all Kenyans, and not just the fat cats of the fat wallet society.

To vet or not to vet?

Judicial vetting is the new mantra of the chattering classes and it is time I put in my two-shillings' worth. Let us not miss the woods for the trees, concentrating only on the little matter of vetting judges and appointing a Chief Justice of the Supreme Court. This is not the only institution in dire need of reform. There is still the question of who will head the National Police Service, who will become the Attorney-General and who will be the Director of Public Prosecutions. In the administration of justice, these three offices will be key to ensuring that the process of justice is as fair as possible.

The President of the Court of Appeal and the Principal Judge of the High Court shall be elected from among the members of the respective courts and there is no controversy surrounding their imminent elections. It is with the Chief Justice that the chattering classes have concentrated on, with the Law Society firing the first salvo by publishing a list of judges it feels are ineligible to appointed to this position. However, the Kenya Magistrates ad Judges Association has retaliated by pointing out that the Society is out of line in blacklisting the 16 while the LSK itself is riven with internecine squabbles that threaten the smooth management of its affairs. 

The LSK, under the recent chairmanship of Okong'o Omogeni, has distinguished itself by taking principled stands in matters of national importance, playing a strong role in ensuring that the constitution review process was not hijacked by self-interested parties. Mr. Kenneth Akide, the embattled new chairman, has been taken to task for not being 'in charge'. It is early days yet to start calling for his removal and the members of the Society would be best advised to focus on what the Society can do to ensure that the process of reforming the Judiciary is not hijacked by the self-interested members of the KMJA. 

Right or wrong, the members of the Society chose to elect Mr. Akide as chairman and it is hypocritical of some of the members to start calling for his removal months after his election. As with all things, unless he runs the Society into the ground, his tenure shall be judged in the harsh light of history and if he is found to have been wanting, the judgment of posterity will be unforgiving indeed.

As to the vexed question of whether the LSK can blacklist individuals it deems to fail the test of leadership for the position of the Chief Justice, the LSK is within its rights to do so. The Magistrates and Judges are free to disagree with this position but they cannot claim that by expressing a well-considered opinion, the LSK is infringing upon the rights of a few members of the KMJA. The LSK, through its members and through its partnership in the administration of justice with Bar, is the primary consumer of the services offered by the Judiciary. 

Practicing advocates are in a unique position to tell who among the members of the Bench are fit to hold office. It is reasonable, therefore, that the Society should advise the country at large of its experiences dealing with the blacklisted judges and to ensure that their lacklustre careers do not proceed beyond their current level. It is only fit for the men and women who spend hour upon hour dealing and relating to the 16 to remind them that just because they wear the robes of judicial authority, they are not a law unto themselves and that they must be held to account for their sins of omission or commission.

The administration of justice in Kenya is a broken. The ham-fisted radical surgery perpetrated by the disgraced Aaron Ringera did not solve anything but ended up being a vehicle for the disgruntled and malcontent to settle scores with scores of sitting judges and magistrates. The current reform agenda must not be blighted by the need to settle vendettas, but with the sole objective of improving the system of justice in Kenya. Chief Justice Evan Gicheru, for all his faults, has comported himself with dignity and his silence on the imminent end of his tenure speaks volumes of his recognition of the need for a new man at the top. He should be given a send-off that befits his remarkable decision not to challenge the end of his reign. When you recall the self-righteous whining of the disgraced Chairman of the defunct Electoral Commission of Kenya, you will agree that Justice Gicheru has done what we have wanted him to do and while we will not be sorry to see the back of him, his departure should signal that all not well in the corridors of justice.

In the past few days, criminal defendants have laid bare the shortcomings of the system. They have taken the unprecedented step to write to the Chief Justice and the Minister for Justice regarding the sorry state of affairs, where money talks or justice is delayed and denied. They point out that unless you are a member of the Kenya's plutocracy, you will not benefit from the operations of the justice system. Instead, you will be held in remand while the members of the fat wallet society are treated with kid gloves, their matters expedited and their case files closed. 

If you are a poor man, chances are that the day you are remanded into custody is the last day the world will treat you fairly or with dignity. There are men and women who have been in remand for the better part of two decades, their case files being shuffled from one desk and one court to another without resolution. In the mean time, people like Thomas Gilbert Patrick Cholmondoley have their cases expedited and resolved in the shortest time possible, putting nary a dent in their well-ordered lives. This is a situation that can only be changed when the judges and magistrates are put on notice that it will no longer be business as usual until all Kenyans enjoy the same level of service as the moneyed and well-connected.

For the reform of the Judiciary to succeed, it must be accompanied by reforms in other parts of the justice system, including the police, the State Law Office and the legal profession. Lawyers cannot hold up cases simply because they dislike the decisions judges and magistrates make regarding their professional conduct. The police cannot be allowed to become guns for hire, 'negotiating' settlements with accused persons as they see fit. The State Law Office must be professionalised and the newly created office of the Director of Public Prosecutions must be manned by men and women of integrity and dedication. Finally, the citizenry must participate in the process, ensuring that the professional and non-governmental bodies represented in the vetting process truly reflect their needs and priorities and that they have their interests at heart.

They all fall, eventually

The member of the National Assembly for Mumias East is a spectacularly unpleasant character. But he is not unique. A former member of the Na...