Monday, November 29, 2010

Is the PM's anti-gay crusade an attempt to shift attention from Ngilu's problems?

Why has the Prime Minister decided to wade into the murky world of gay activism? yesterday, the PM made statements to the effect that government will dedicate resources towards reducing or eliminating the incidence of gay sex and gay romance. In the aftermath of the Minister for Special programmes calling for the inclusion of homosexual persons in the fight against the spread of HIV/AIDS, it is indeed strange that the PM has decided to come out so strongly against homosexuality, especially now that Parliament has decided to go on hiatus on the implementation of the Constitution. In Kenya, it is a safe bet to go on the offensive against homosexuality given the strong feelings of a vocal minority against the practice, but this should not be the province of Prime Ministers when they have much bigger fish to fry.

The Prime Minister, as the supervisor of government ministries, needs to get his priorities right. The Minister for Justice is on record that he was in the dark regarding the operations of the Interim Independent Boundaries Review Commission. The Minister for Higher Education has been suspended. The Minister for Foreign Affairs has 'stepped aside' to pave way for investigations into irregular transactions relating to diplomatic properties of the Government of Kenya. The Minister for Water is under great pressure to 'step aside' regarding corruption in her ministry. The US government, through its ambassador to Kenya, has made shocking accusations regarding the conduct of senior politicians and civil servants in narcotics trafficking. 

The US government is also opposed to the re-opening of Charterhouse bank, accusing it of money laundering and tax-evasion, though how the latter affects the US government has yet t be explained. The Minister for Internal Security (who is also acting as the Minister for Foreign Affairs) has pledged government support to the ICC in its interrogation of senior government officials regarding the events of December 2007 and January-to April 2008. Parliament has refused to endorse the appointment of two Commissions until the boundaries dispute is resolved to the satisfaction of the representatives of Central Kenya. Therefore, the PM should really not be calling attention to an issue that is of little or no national importance. Unless, of course, he is trying to deflect attention from the problems in his own house.

It has not escaped notice that the Minister for Water is one of the staunchest supporters of the PM. Indeed, the PM was quite prompt in his defense of the Minister when a former Assistant Minister, now an Assistant Minister in the Ministry of Public Works, made startling allegations that the Minister for Water was involved in the shady goings on in her ministry. It has also not escaped notice that the Chairman of the Interim Independent Boundaries Review Commission, IIBRC, contested the Vihiga parliamentary Seat on an ODM ticket and that the majority of new constituencies were created in what are perceived to be ODM 'zones'. 

Therefore, is it not in the realm of the impossible that the PM has seized on any issue that he can use to deflect public attention from the trials and tribulations of his ally in government? If this is the case, then his attack on the homosexual community in Kenya is a cynical exercise in political brinkmanship and someone should call him out on it.

Sunday, November 28, 2010

Too early to tell

Article 138 (4) states that "a (presidential) candidate shall be declared elected as President if the candidate receives - (a) more than half the votes cast in the election; and (b) at least twenty-five per cent of the votes cast in each of more than half of the counties."

The presidential elections have always been about numbers and the 2012 one will be no different. The recent flurry of alliance-making has been informed by the numbers game. It is presumed by many that the aspiring presidential contenders have the support of the peoples they claim to represent. Hon. Uhuru Kenyatta, Hon. Kalonzo Musyoka and Hon. William Ruto are seen to control vast political blocs that may guarantee that at least one of them has the numbers to take the presidency. This may be true; but does Uhuru Kenyatta control the votes of Nyandarua, Nyeri, Kirinyaga, Murang'a and Kiambu; or Kalonzo Musyoka of Machakos, Makueni and Kitui; or William Ruto of Turkana, West Pokot, Samburu, Trans Nzoia, Uasin Gishu, Elgeyo/Marakwet, Nandi and Baringo? In addition, Hon. Ruto is seen as the Rift Valley kingpin, so does he have the additional support of the peoples of Laikipia, Nakururu, Narok, Kajiado, Kericho or Bomet?

The picture that is being painted by these assumptions is that these three control ethnic blocs that will vote as they are directed. The truth is rather more complicated. Uhuru Kenyatta is a relative newcomer to elective politics, though he was first elected to Parliament in 2002. He is not the only presidential contender from the five counties that make up the erstwhile Central Province. There is Martha Karua, whose combative style is sue to give him a run for his money. She may persuade the voters of Kirinyaga to reject Uhuru's advances. William Ruto comes from the erstwhile Rift Valley province, which is a cosmopolitan place with peoples from other parts of the country settling in its fertile plains. He will have to persuade the many Kikuyus, Luos, Kisiis, and Luhyas in the region to prefer him over 'their' candidates come 2012. Stephen Kalonzo Musyoka is perhaps the one with the least chance of even taking the Ukambani Counties with him in 2012. If his performance during the referendum is anything to go by, he wa largely blamed for the lucklustre performance of the region, when it barely managed to ratify the Constitution. He will have to contend with the popular Mama Rainbow, as Charity Ngilu is popularly known, who may choose to endorse an 'outsider' like he defender, Prime Minister Raila Odinga. Looking at the arithmetic through tribal lenses shows that for the declared presidential aspirants the path to State House is riven with compromises that would make it very, extremely, difficult for them to attain their goals.

What we want is a candidate with cross-country appeal. Mr. Kenyatta and Mr. Ruto have cross-country name-recognition, but no polling has been done to determine their approval ratings yet as individuals. It is presumed that Ms. Karua's 'unfavourables' are higher than her 'favourables', though, again, no polling data is available to confirm this. It does not help that a perception is going that she is in league with a dangerous criminal. Mr. Odinga, on the other hand, enjoys cross-country name-recognition and popularity, though whether these are 'solid' will only become apparent come 2012. It is yet to be seen whether there will be a 'Third Way' candidate who can cause an upset. Prof. Makau Mutua has called on Abdikadir Mohammed and Rev. Mutava Musyimi to throw their hats in the ring, given the effective way they have performed in Parliament and Parliamentary Committees. Mr. Mohammed has been an effective leader of the PSC on Constitutional and Legal Affairs and his personal popularity reflects the manner in which he successfully steered the process of constitutional reform in its last stages. Rev. Musyimi is notable for opposing the Proposed Constitution, though this does not seem to have engendered feelings of animosity against him, given his perceived personal probity and intelligence.

Therefore, any candidate who wants to take the presidency must garner 50+1% of all votes cast, and at least 25% of votes cast in each of at least 24 of the counties. At this stage it is too early to predict that any candidate has the numbers, and if any of them is going to rely on the candidates in any of the constituencies to deliver the votes in their constituencies, the going will be tough; MPs have not acquitted themselves well in the past few weeks.

Saturday, November 27, 2010

Who will speak for you?

The salient features of the Donde Bill escape me, but if memory serves, the then Hon. Joe Donde published a Bill that sought to regulate the manner in which the Central Bank of Kenya would set minimum and minimum interests rates on deposits held and money advanced on credit. The substance of the Bill is not relevant; what is is the fact that Hon. Donde came to be associated with the rights of borrowers as against their banks and other financial institutions. This is the situation as it obtains in the West, especially in the United States, where many civil libertarians and civil rights activists are bemoaning the loss of Russ Feingold from the US Senate. He was one of the few senators who proposed amendments to the USA Patriot Act when it was passed in 2001 in response to the 9/11 attacks. In Kenya, very few legislators can lay credit to being identified with a matter of national importance, but a few come close.

Njoki Ndung'u will forever be remembered for the way in which she shepherded the Sexual Offences Bill through Parliament in the face of very strong and chauvinistic opposition (remember the antics of the likes of the then Paddy Ahenda?) and Hon. John Mututho will be remembered for the Alcohol Control Act, that seeks to reverse the debilitating effect of alcohol on the lives and livelihoods of Kenyans. But try as I might, I am hard pressed to consider any of our current legislators as synonymous with a national issue. Hon. Martha Karua resigned from government because, in her eyes, the Executive did not respect the role of the Minister for Justice in the appointment of Judges. But other than her resignations, and the speeches she has made regarding the small matter of official corruption, who can say that Hon. Karua is a leading light in the National Assembly in the fight against corruption? Who among the 222 Members of Parliament is a champion of the civil liberties of Kenyans, or a proponent of universal health care for all Kenyans regardless of their station in life? Who speaks for the rights of the child in the National Assembly? Certainly not Hon. Millie Odhiambo-Mabona, even though she styles herself the Member for Children. Who is the champion for affordable housing for the lesser among us? Certainly not the Minister and Assistant Minister for Housing.

Our legislators, and those who wish to enter the August House, are united in their desire to become MPs and the perks that go with the position. But, in the absence of an ideology, all our MPs are frequently mouths for hire and paper tigers, incapable of articulating an issue as a matter of principle or national interest. This sad state of affairs has prevailed for many years and it does not seem to be coming to an end any time soon. Gidion Mbuvi has spent at least three nights in police custody after being arraigned in court on charges which, if convicted, would see him spending time behind bars as a guest of the state. Hon. Karua, the chairman of Hon. Mbuvi's party, Narc-K, has maintained studious silence on the whole saga perhaps because she was either willfully negligent in the vetting that permitted Hon. Mbuvi to stand on her party's ticket or because she is complicit in his alleged crimes. The Prime Minister must be enjoying the sight of the Deputy Prime Minister and Minister for Defense, Hon. Uhuru Kenyatta, defending himself against the demands of members of his party to step down as the chairman of KANU as he is a state officer, in line with the provisions of the Constitution. Why is it that the Prime Minister has not offered to resign his party position in favour of someone who is not a state officer? It is after all law.

Today we have a group of MPs holding the House Agenda hostage because of the actions of an Independent Commission that the National Assembly appointed. The irony should not escape you. Mr. Andrew Ligale was chosen, vetted and appointed with the acquiescence of all Members of Parliament. I am yet to trace any statement against his appointment as chairman of the IIBRC in the Hansard. While Prof. Yash Pal Ghai is correct that the failure of Parliament to endorse the names proposed for the CIC or the CRA will not overly cripple the implementation of the Constitution, he misses the point when he fails to call the politicians on what they truly are - a selfish, self-interested, semi-informed, semi-literate bunch of tax-dodging, privileges-abusing, hate-mongering crooks. If we have a National assembly and Senate composed of men and women of the same ilk after the 2012 elections, we are doomed to mediocrity and petty, partisan brinkmanship that will do nothing to advance this nation to the objectives of Kenya Vision 2030, or any other vision for that matter.

Friday, November 26, 2010

Call their bluff

Emmanuel Talam, on KTN's Newsnight, in a discussion on the effect of the passage of the adjournment motion to suspend debate on the Commission on the Implementation of the Constitution, stated what has now gained the currency of popularity, that failure to constitute the CIC within the three-month deadline allows any person in Kenya to petition the High Court for the dissolution of Parliament. In my fevered examination of the provisions of the Constitution, including Articles 248 to 254, Chapter 18 (Transitional and Consequential Provisions), the Fifth Schedule and the Sixth Schedule, I find no basis for this alarmist declaration.

Article 261 makes provisions regarding the effect of Parliament not passing legislation within the periods stipulated in the Fifth Schedule. In fact, Article 261 (5) states "If Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter." Black's Law Dictionary defines legislation thus: "1. The process of making or enacting a positive law in written form, according some type of formal procedure, by a branch of government constituted to perform this process. 2. The law so enacted. 3. The whole body of enacted laws." It also defines law as ...the aggregate of legislation..." Nowhere is a commission analogous to law or legislation. Therefore, the basis for Mr. Talam's statement is unknown and unknowable.

Section 5 of the Sixth Schedule describes what the CIC is, what it shall do, and how long it shall remain in existence. For your information, after the date of its creation, the CIC shall serve for five years and, depending on whether its life is extended by Parliament, it shall then cease to exist.

If Hon. Isaac Ruto and his cohorts hope to derail the process of constituting the CIC and the Committee on Revenue Allocation as a way of expressing their displeasure with the manner by which the IIBRC has conducted its affairs, then they also misapprehend the provisions of Sections 41B and 41C of the former Constitution regarding the place of Parliament in boundaries review and delimitation. The National Accord which was entrenched in the former Constitution was drafted in such a manner to ensure that politicians, especially Parliamentarians, did not meddle in the interim independent bodies that it created. The main charge of ODM after the disputed 2007 elections was that PNU, and by extension the President and his political allies, had actively meddled in the affairs of all national institutions, including the Electoral Commission of Kenya (which was in charge of elections and boundaries review) with a view to ensuring that PNU carried the day and that the president was re-elected. As a result, the national consensus was that all national bodies that would be created after the National Accord was implemented would be insulated from interference, either by the Executive or Parliament. The decision of the IIBRC must be published in the Kenya Gazette and all who have a dispute with the decision can appeal the same to the High Court. The Judiciary has acquitted itself admirably in recent months, and despite Gacheche, J's meddling in the boundaries review process, no one should doubt that when an appeal against the decision of the IIBRC is brought before the Bench that it will continue to acquit itself with honour and without bias.

The risk posed by the Isaac Ruto cabal is to the wider course of implementing the Constitution. If they prevent the CIC from being constituted on the basis of their displeasure with the IIBRC decision, they risk ensuring that Parliament fails to meet its deadlines vis-a-vis the Fifth Schedule, in which case the provisions of Article 261 will apply. 261 (7) states that "If Parliament fails to enact legislation in accordance with an order under clause (6) (b), the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve Parliament." Perhaps Hon. Ruto wishes to see early elections. If this were the case, perhaps he hopes that this may rescue Hon. William Ruto from facing difficulties with the ICC when indictments are handed down. This is a dangerous game. Unless Hon. William Ruto somehow manages to persuade Kenyans to elect him president, he may not survive the ICC indictments if and when they are handed down. This rabid opposition to the IIBRC decision reeks of an attempt to prevent this Parliament from serving its full term, giving William Ruto an opportunity to stand for the presidency prematurely, and sowing enough confusion and chaos so that the government will not be in a position to act as and when it is required to do so. If that is the case, then let the President and Prime Minister dissolve Parliament and call for general elections today. Let's call their bluff and let the chips fall where they may.

Thursday, November 25, 2010

Drugs and 2012

I have been wracking my brains as to why Prime Minister Raila Odinga has not taken steps to ensure that the drug-dealers-in-government charge is laid to rest one way or the other. It makes no sense for the Prime Minister to allow this matter to be flogged in the media without the identities of the politicians, civil servants or policemen involved being revealed. Neither is he taking steps to assure the people that the charges are baseless. The allegations that have been made in Parliament indicate that at least one of the president's closest political allies may be involved in narcotics trafficking and the PM may be weighing his options regarding the question of whether he should reveal their identities or continue keeping them secret to be used at a later date. When the US ambassador set the cats among the pigeons regarding senior politicians and civil servant involved in narcotics trafficking, it demanded a response from the President and the PM. The president has maintained a studious silence on the matter, perhaps because he hopes the whole thing will fade away. The PM, on the other hand, has his (future) presidential ambitions to consider and he can hardly keep mum.

A casual examination of the political landscape will suffice. The Parliamentary committees, especially on Defense and Foreign Relations, and on Equal Opportunities have been active this past month. The traditional committees, like the PIC and the PAC, have been silent. Perhaps with its chairman fighting an election petition, Hon. Dr. Bonny Khalwale is too busy to steer the PAC to investigate malfeasance in government at the moment. The PM has been lucky that some of his political opponents are facing tough choices in the next few months. Hon. Ruto has been suspended. Hon. Wetangula has 'stepped aside'. Hon. Kenyatta faces tough questions in relation to PEV. Senior security and intelligence officers are about to be questioned by ICC investigators. The PM therefore, needs his people to be in positions of strength going into the anticipate 2012 elections. I think this is the reason why he is keeping the drugs question alive. He wants to deflect attention from his allies, including Hon. Charity Ngilu who faces corruption issues in the Ministry of Water and Hon. Otieno Kajwang who has questions to answer in relation to corruption in the Ministry of Immigration.

There are those who have kept an eagle eye on the PM, including his forays abroad. He has been to India and Germany in recent months. The speculation is that the PM is being 'groomed' by foreign powers to assume the presidency in 2012. Indeed, the allusions to foreign funds for election campaigns has been raised precisely because it is suspected that a significant chunk of the money he spent in 2007 came from overseas. If this is the case, perhaps it is the Germans who are acting as a stalking horse for the West meaning the US, the UK and the EU. However, he has not been linked to China, the other global power with intentions on the African continent. The Chinese seem to have hitched their wagons to Central Kenya, with delegations from the region making regular 'investment' trips to cities in China, most notably to the Shanghai Expo recently. Therefore, it is safe to assume that if foreign powers are playing the Great Game in Kenya, the West has in Raila Odinga their champion, while China will back whomever Central Kenya endorses come 2012.

The ODM leader must begin to shore up his support in various regions before the next elections. It is believed that he has lost the support of the North Rift - after all, William Ruto and Samuel Poghishio are not seen as his most ardent supporters. In Ukambani, he still has the backing of Charity Ngilu, but he needs to woo the minnows like the two Kilonzos to his side. The loyalties of John Harun Mwau and Prof. Phillip Kaloki remain unknown. He seems pretty set when it comes to Western and Nyanza, but he needs to be able to count on significant pockets of support in the Coast and North Eastern regions. This may explain why he is keeping the drugs issue alive - to distract the public from the challenges his allies and acolytes are facing in regards to corruption charges.

Things have changed, though. The traditional outlook based on provincial arithmetic is now out and he must now begin afresh, looking at the 47 counties as separate political units. A successful presidential candidate must sweep 51% of the counties in the next elections. The assumptions that men like William Ruto control the Rift Valley will be put to the test when the indictments from the Hague are handed down. If Hon. Ruto is indicted, and if only the people of Uasin Gishu County come out in his defense, then the PM has a chance with the entire Rift Valley come 2012. If Uhuru Kenyatta is indicted, it may throw the game open in Central Kenya, as he is not the only potential or viable candidate - Martha Karua, George Saitoti and Peter Kenneth are already sniping at his heels and how they survive 2011 will determine the fate of 2012, although Hon Karua is now in deep water over her staunch defense of Mike Sonko. The PM must have support in the National Assembly and the Senate for his presidential agenda to succeed; if he only gets one House, he may find himself cutting deals with people he despises.

The PM is playing a dangerous game. If he allows the drugs problem to remain unresolved, the questions of what he knew, when he knew and what he did may come to haunt him in the campaign. If he manages to salvage Hon. Ngilu's political career and it is later shown that she indeed is corrupt, he will lose face with many Kenyans. If he allows the people around President Kibaki to be indicted on drugs charges, he could stand indicted in Central Kenya for destroying their political base, just as he is being blamed for destroying the prospects of Kalenjins opposed to his political ambitions. How he manages to thread this needle will determine the kind of president he will be.

Wednesday, November 24, 2010

My take on County Government

I don't know if it was the Editor-in-Chief or that these are his true thoughts on the County, but my learned senior, Otiende Amollo, is wrong on certain aspects of County Government (Counties take governance closer to the people, Daily Nation, 24th November, 2010). In response to a question, Mr. Amollo states that "the role of councillors is now defined. We will have many more councillors because the county assembly, at least one third must be of the opposite gender. Since most of those that will be elected are likely to be men, more women will be nominated to reach the one-third requirement." There are two problems with this statement. 

First, the County Assembly is not a larger version of City, Municipal, Town or County Council. Chapter Eleven, the First and Fourth Schedules define what a county government is. In their definitions, the local authorities do not figure. In fact the allusion to wards that Mr. Amollo makes later on the interview are irrelevant to the discussion at hand as the Counties are new creatures in the history of this country, they will have different and differing responsibilities and they will not be an upgrading of the local government system that has been in place since before Independence. Second, the question of gender balancing in the Constitution has nothing to do with the county government per se, but everything to do with redressing the appalling patriarchal system that has existed since time immemorial with a view to reversing the iniquities that have been visited upon our womenfolk for millennia.

I realise that we have a difficult needle to thread when it comes to the question of local government in the context of the County Government. What will be the place of large councils such as the City Council of Nairobi, the Municipal Council of Mombasa, the Municipal Council of Nakuru or the Municipal Council of Kisumu? It is possible for the councils in Kisumu, Nakuru and Mombasa to co-exist with the County Governments as their areas of jurisdiction did not cover the entire counties as in Nairobi. Nairobi will be a special case. For instance, it may assume the same status as Washington DC to some extent as it is both the capital City, a County and has a Council that has jurisdiction over it entire territory. Nairobi is the only unit that does not have a county or town council. Perhaps, Mombasa too suffers from this problem. This, I suspect is the reason for Article 184 on urban areas and cities, where Parliament, and not the senate, will legislate on the matter within one year of the effective date, i.e., promulgation of the Constitution. Therefore, it is possible to have mayors and governors co-existing in the same county. Parliament may have to pass a law defining the relative jurisdictions of Nairobi City County and the City Council of Nairobi to avoid conflict. But for all intents and purposes, the local government was effectively abolished the day the Constitution was promulgated.

The Minister for Local Government, for whatever reason, has taken charge of the process of reforming the local government structure to conform with the the devolved system of government. In appointing Mutakha Kangu and his committee, Hon. Musalia made a wise choice but it remains to be seen whether the Committee will be able to navigate the difficulties of separating the local government structure from the devolved government structure as envisioned in the Constitution. Many of the functions that have been given to the devolved structure are the same ones that were performed by the local government. It will be great challenge for the committee to come up with new functions for the local government in conformity with devolution f they assume that they can legislate on the devolution from the devolved structure proposed in Chapter Eleven. To date, local councils have performed dismally. Many have run up huge debts that eventually have to be borne by the central government. But in light of the fact that County Governments will have dedicated funds devolved to them to spend autonomously, the position of local government remains precarious.

Article 176 provides that county governments "shall [decentralize their] functions and the provisions of [their] services to the extent that it is efficient and practicable to do so." This implies that it ill be up to the counties themselves to determine the level of devolution that is desirable and that Parliament or the senate are not competent to legislate on this matter. Therefore, the committee appointed by the Minister for Local Government can only suggest the mode of devolution but not the details of devolution, as these ultimately, will be determined by the counties themselves. Even section 15 of the Sixth Schedule in no way suggests that the local government shall definitely form a part of the County Government. What it provides for is the phased transfer of functions to county governments from the national government, a process that should not take longer than 3 years.

I wager that the implementation of the devolution structure will be the most difficult and potentially, the most contentious. Many well-meaning professionals have already embarked on the process of determining the governance of counties without fully appreciating the complexities of attempting to replace one system of government with another. The challenges will include the question of the effective exercise of the powers of county governments and the management of public funds devolved to the counties. In the end, it will be a matter of how involved all Kenyans are in the manner of devolution that will determine whether this experiment succeeds or not. Mr Amollo has opened the debate and it is up to us to participate in it as fully and effectively as possible.

Demography should not be a risk

Many estimates put the population of 18 to 60 year olds at approximately 60% of the total. Demographics can make or break a nation. When the decennial census results were declared recently, it was noted with alarm that the population rate was too high, with some analysts stating that the high rate placed the economy of the country in jeopardy. Recently, too, the Minister for Finance amended the Retirement Benefits Act to allow persons who had contributed to a defined pensions scheme to withdraw their savings before the age of retirement. Arguments were advanced to justify this decision, that is, because of the deteriorating economic situation as a result of the global economic crunch, many people had been laid off from their employment and needed access to their retirement benefits in order to invest in other income-generating activities.

In the West, especially in America, the level of unemployment has remained steadily high despite the economic stimulus programmes that have been implemented to rectify the situation. In France, Nicholas Sarkozy has managed to ram through a decision to raise the retirement age of state employees in the face of stiff public opposition. Britain's coalition government is defending its public spending cuts in the face of animosity from the people. Indeed, while many of them do not wish to be saddled by the cost of paying for welfare cheats' lifestyles, they are also averse to reviewing public expenditure, declaring that their revered National Health System is a national treasure that politicians tinker with at great political risk. David Cameron's government has caved and pledged to protect the NHS. Meanwhile, in Japan, the state is facing massive outlays to what is becoming a rapidly aging population which will continue to draw from the public purse for decades to come due to their incredibly high number of the population over 65 years. Life expectancy in Japan has steadily crept upwards due to its relatively efficient health-care system and standard of living. In contrast, Central Kenya is facing a declining population rate but not for the same reasons as in Japan.

The decline in the population rate of Central Kenya has been blamed on among other things alcoholism in the youth and the migration of large numbers of the youth for greener pastures, usually in the Capital and more frequently, overseas. Central Kenya has been a victim of its own success. Because of its mercantile tradition, many men and women have emigrated to other parts of the country to find their fortunes, frequently with great success. The few who have chosen to remain have a large proportion of them incapable of embodying the mercantile traditions of the House of Mumbi and have therefore, been incapable of founding and maintaining large families. As a result, the demography of Central Kenya is slowly becoming an aged one. Many homesteads are now headed by aged or aging people. In a country that still has yet to craft an effective pension strategy, this is a risk that will eventually catch up with other parts of the country where young and youthful persons are emigrating from the farm to the city. When one considers that arable agricultural land is becoming scarcer as the effects of climate change become more and more apparent, there will reach a time when rural Kenya is incapable of taking care of its aged and aging population.

While the census results point to a high population rate, the Government has been unable to keep pace with population growth. It is hope that Kenya Vision 2030 will raise the overall standard of living to that of a middle-industrialized nation capable of sustaining an economy with a growing populations, with pockets of retirees in rural parts. The growth of the youthful population should be taken as an opportunity. If the government implements an effective economic plan, it can plan for the inevitable aging of the population, ensuring that the pension system is able to sustain the aged and aging. Taking the experiences of the developed world, Kenya should be able to predictably plan its economy in such a way that white-collar job-creation slowly replaces basic production and swells up the pensions' coffers for that coming rainy day.

Charity begins at home

All manner of organisations enjoy a tax-exempt status on their incomes, including churches. The case for churches not paying income tax is becoming more and more untenable as we enter the second decade of the twenty-first century. In days gone past, the church was the main agency in not just offering spiritual and moral guidance, but addressing the woes of widows and orphans. I remember as a child that my church, the African Inland Church in Mukaa, took in children who had been born out of wedlock or whose parents had passed away and had no other living relatives. It was my church that took it upon itself to ensure that widows, the old and the infirm were taken care off in their times of need. This is not the situation today.

When we look at the new evangelical and Pentecostal outfits today, what is striking is the apparent lack of a corporate social responsibility, if you will, when it comes to their responsibilities to their congregations or the less fortunate in the communities where they are located. Many of us remember the rhetoric that the church deployed during the Referendum Campaign, when many church leaders declared that the would deploy the considerable resources that had been given by their congregants to fight the Proposed Constitution. At that time, there was a muted response that if the church decided to use the offertory for the purposes of engaging in a political campaign, then it would be just that the church started considering the question of paying income tax on its rather considerable income. This debate went nowhere and it is high time we started questioning the wisdom of allowing a religious group that has refused to abide with its social contract to provide not just spiritual but material solace to its more vulnerable members.

It is common these days to see churches running training colleges, primary and secondary schools, and nurseries and kindergartens, frequently for profit. The incomes derived from these institutions should be deployed for the welfare of the communities that live around these churches. But this is not so. Instead, it is common to see church leaders swanning around in expensive four-wheel drive vehicles and living in the choicest neighbourhoods whole many members of their congregations are incapable of paying for their basic necessities. We may acknowledge that churches still come to the aid of bereaved members of their congregations, but this is usually in the form of organising harambees and other fund-raising events, as well as organising prayer sessions and hospital visits for the afflicted. But, in material terms, the church keeps all of its funds, usually for the comfort of its leadership. This must end.

Without doubt, some of the more established churches, like the Seventh day Adventists, the Roman Catholics, the Anglicans and the AIC still maintain an expensive social system that is of immense benefit for the community. But it is the sight of the evangelicals and the Pentecostals running multi-million shilling empires without a thought as to the material well-being of their communities that galls. Sometimes it is not clear whether these corporate empires are creatures of these churches or the personal property of the Mchungaji or Kasisi. It is all well and good that the Constitution has finally outlawed the tax-exempt status of all state officers,while allowing for the possibility of tax-exemptions for charitable bodies. It is now up to the Kenya Revenue Authority to take a cold hard look at the operations of all churches to ensure that their tax-exempt status is not abused. If the churches deploy their considerable income to the running of community dispensaries, orphanages or to tend to the material needs of widows, the old and the infirm, then they can retain their tax-exemptions. However, if the church exists solely for the aggrandizement of the church leadership, their tax exemptions must be revoked forthwith.

Tuesday, November 23, 2010

Mututho is a hero

Friday, 26th November, 2010, will be a day to be remembered in the war against alcohol addiction. John Mututho will witness the apogee of his baby, the Alcohol Control Act, and alcohol consumers across the nation will weep into their favourite tipple as the days of 'gari inajua njia' come to an end. Some of the provisions of the Act are designed to kill certain portions of the alcoholic beverages industry such as the chang'aa, muratina and karubu dens that dot our 'informal' settlements across the Capital, indeed across the nation. After the losses of human life that have been traced to these establishments, this should not come as a shock to the purveyors of what the government describes as illicit brews. There comes a time in any situation when the State must step in to ensure that its citizenry are protected, even from themselves. John Mututho seems to think that that time is now.

My favourite provisions relate to the question of access by under-age persons. Bars and alcohol outlets shall not be located within 300 metres of a school. Alcohol shall be sold only on proof of age of majority. Under-age persons are not allowed into establishments where alcohol is for sale. Advertising for alcohol shall be restricted to times when under-age persons are asleep or to areas where they are unable to witness them. All this is to the benefit of the youngsters who style themselves as 'grown up'. I especially like the idea that a person who knowingly sells alcohol to an under-age person is liable to a stiff fine or a jail term or both.

I think Hon. Mututho's intentions were honourable. He wants to see children and other vulnerable persons achieve their potential without suffering the risk of alcohol-induced lethargy. It is irrelevant that he seems to want to see the Act enforced in his native Central Kenya; he is after all a Member of Parliament from the area. This is the role of politicians - to try their level best to improve the lot of their constituents even when they are convinced that a vice is good for them. If MPs from my native Ukambani took the same stance as Hon. Mututho regarding the challenges faced by my people, then I would consider Hon. Mututho's example to be a success. That he spent a significant proportion of his personal fortune to shepherd the Bill through the national Assembly tells me that, despite his personal politics (which I find abhorrent, to say the least) Hon. Mututho has laid a challenge for other MPs to emulate. It should be about service to your constituents and not service to self as most of our representatives seem to assume. Hon. Mututho should be hailed as a hero for the mothers, wives and employers of men, women and children who have become hostages of drink.

A word of warning is warranted though. In Kenya, we have some of the best-drafted laws in the world. There are officers at the Kenya Revenue Authority who are convinced that our revenue collection machinery and system is the best in the world, and they could very well be right. Our Alcohol Control Act is a good law, despite the objections of beer-manufacturers. Like other institutions, they do not want to change with the changing norms and mores of their customers. But, we should take note that the enforcement of this law will depend to a great extent on our police service and it has proven time and again to be the most corrupt of all institutions and this Act may be an opportunity for them to 'eat' like never before. Considering that this law will begin its life around the festive Christmas holidays, when many holiday-makers are looking forward to unwinding after a grueling year, the opportunities for petty corruption are many and it will take the vigilance of right thinking Kenyans to prevent the abuse of this law, just as it is meant to prevent the abuse of alcohol. 

This is an opportunity for the manufacturers of alcoholic beverages, law-enforcement agencies and the public to join hands to ensure that while every Kenyan has the right to enjoy his favourite drink, the situation does not degenerate into a war of wills among them. In the end, mature Kenyans must enjoy their drink, manufacturers must be allowed to market to them and the law enforcers must enforce the law wisely and fairly.

Sunday, November 21, 2010

We can't keep crying over spilt milk when we refused to keep an eye on the gourd

Does the fact that you were a human-rights campaigner or a political reformer make you fit to hold high public office? Or turn you into a constitutional expert? That record, so far, has been disappointing. Let us take the cases of Kiraitu Murungi, the Minister for Energy and formerly the Minister for Justice, and Prof. Kivutha Kibwana, the former Minister for Environment and former MP for Makueni. Mr. Murungi was one of the faces that coalesced around the anti-KANU agitations in the early '90s, earning President Moi's wrath and was eventually forced into exile in the USA. He ended up taking a Masters Degree at the prestigious Harvard University. When NARC came to power in 2003, he famously asked Moi to sit back and watch what true governance was all about. In short order, he led the walk-out from the Bomas talks, was linked to the Anglo-Leasing scandal and then came Triton. He has protested his innocence all along, but he has been unable to prove one way or the other that he understands constitutional law, appreciates human rights or the complete overhaul of the political structures of Kenya.

Prof. Kibwana is a respected constitutionalist. As the MP for Kilome, even his enemies will admit, that he did a lot for the people of Makueni. However, as a minister in President Kibaki's first Cabinet, he proved a disappointment to his friends in civil society. He seemed to abandon all tenets of fair play and instead became a champion for the excesses of the Kibaki government. In his blind support of the policies of the government, he failed to address the systemic weaknesses of the state and ended up an apologist for the crimes that were committed by his cabinet colleagues. It is right that despite his perceived achievements in Makueni that his people showed him the door when the 2007 election results were announced.

The implementation of the Constitution is facing more challenges than Kenyans were prepared for. The current Members of Parliament wish to play a leading role, or a commanding one, depending on where you stand. As a consequence, they have taken political scalpels to the Constitution in the hope that they can surgically reduce the importance of various Commissions and Independent Offices in the implementation of the Constitution. Take for instance the heat generated by the proposed boundaries review by the IIBRC. The debate has moved on from the question of whether or not Kenya actually needs an additional 80 constituencies to the question of whether or not certain political powers are set to benefit from the proposed distribution of the new political units. 11 MPs have gone to the High Court to prevent the publication of the Commission's report, because their 'Constitutional rights' may be, or have been, infringed. But as political commentators in this Sunday's papers allude, their complaints are not constitutional, but political based on their fears that their ethnic communities are perceived as having 'lost' in the process.

Parliament is about to vet the nominees for the Commission for the Implementation of the Constitution, the Commission on Revenue Allocation, and the Judicial Service Commission. Names that are being bandied about include Prof Kibwana's, who just so happens to be a political advisor to President Kibaki. Others include Koki Muli, a well-known reformer and Mutakha Kangu, an advisor to the ODM party headed by the Prime Minister. No one denies that these men and women are intelligent and experienced. What we have not done is to debate whether they are the right people to head or join these important implementation Commissions. We know almost next to nothing about their constitutional interpretation of the Bil of Rights or the role of the state in our day to day lives.

In the US last week, a New York federal court convicted Ahmed Ghailani on one charge of conspiracy in the 1998 bombings of US embassies in Kenya and Tanzania and acquitted him on the remaining charges of conspiracy to commit murder because the testimony of one witness was obtained after Ghailani was tortured and gave up the name of the witness. US lawyers are now debating whether or not the constitution prevents the courts from relying on reliable testimony that has been obtained through torture, invoking the 4th Amendment against unreasonable searches and seizures and the 6th Amendment against self-incrimination. In contrast, the constitutional philosophies of the candidates mentioned in our newspapers are unknown, if they exist at all.

When Kenyans were 'renditioned' to Uganda following the World Cup bombings, very few of my learned seniors explored the limits of Constitutional provisions in this matter. It was left to an NGO, the Kenya Human Rights Commission, and the government's own KNHCR, to issue statements over the matter. In fact, the KHRC went to court over the matter and obtained a judgment stating that the Government of Kenya must follow the due process of law before allowing its citizens to be extradited to foreign countries to answer to criminal charges. The police so much as admitted that renditions are a routine matter if a suspect is detained within a 100km corridor on either side of the border and that the police chiefs of the East African states co-operate on this issue. In fact, additional sources indicate that the Government of Kenya, through its intelligence and police agencies, regularly co-operates with other law enforcement and intelligence agencies over the matter of how to deal with so-called terror suspects.

As a consequence of the apathy demonstrated by Kenyans to interrogate the constitutional credentials of candidates to these Commissions, we are left to discover the extent of their philosophies only after they have assumed office and some controversy arises during the course of their work. If Andrew Ligale had been properly vetted, by both the public and the National Assembly, we would not find ourselves in the situation we are in today regarding the delimitation of the 80 new constituencies. His political philosophies would have been addressed and his competence to head the IIBRC determined based on additional criteria. As a result, we are left to pick up the pieces of his decision and the matter has now become a political football in the field of inter-ethnic rivalry that so dominates Kenya politics. Will this be the fate of all Constitutional Commissions in the future? We can only answer this question in the negative if we take a more than casual interest in all the relevant qualifications of the candidates to these offices. Otherwise, we will be left asking "how did so-and-so end up in this or that Commission". Kenya will be the poorer for it.

Saturday, November 20, 2010

Will sanity prevail?

The Constitution provides in article 89 that there shall be 290 constituencies in Kenya (89.1). It provides in article 89.5 that "the boundaries of each constituency shall be such that the inhabitants of the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner specified in clause (6) to take account of -
(a) geographical features and urban centres;
(b) community of interest, historical, economic and cultural ties; and
(c) means of communication."

Article 89.6 provides that "the number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than -
(a) forty per cent for cities and sparsely populated areas; and
(b) thirty percent for the other areas."

Article 89.12 provides that "for the purposes of this article, "population quota" means the number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided under this Article."

Section 27.1 of the Sixth Schedule provides that "the Boundaries Commission established under the former Constitution shall continue to operate as constituted under that Constitution and in terms of sections 41B and 41C but -
(a) it shall not determine the boundaries of the Counties under this Constitution;
(b) it shall determine the boundaries of constituencies and wards using criteria mentioned in this constitution; and
(c) members of the Commission shall be subject to Chapter Seven of this Constitution".

Section 27.4 also provides that "the Boundaries Commission shall ensure that the first review of constituencies undertaken in terms of this Constitution shall not result in the loss of a constituency existing on the effective date."

Section of 41B (7) of the former Constitution provides that "in the exercise of its functions under this Constitution, the Commission shall not be subject to the direction or control of an person or authority." Section 42C (a) provides that "the Commission shall be responsible for -
(a) making recommendations to Parliament on the delimitation of constituencies and local authority electoral units and the optimal number of constituencies on the basis of equity of votes taking into account -
(i) density of population, and in particular the need to ensure adequate representation of sparsely populated areas;
(ii) population trends;
(iii) means of communication;
(iv) geographical features; and
(v) community interest.

The Constitution is this clear on several issues. It is clear on how many constituencies Kenya shall be divided into (290). It is very clear on which body shall be responsible for the delimitation of constituency boundaries (the IIBRC or the IEBRC, whichever is in existence). It is very clear on the procedure to be followed and the criteria to be employed. It is also clear on the process of reviewing the recommendations made by the Boundaries Commission. Article 89.10 and 89.11 are clear that any person can apply to the High Court for a review of the decision of the IIBRC and that such appeal can only be filed within thirty days after the decision of the IIBRC has been published in the Kenya Gazette.

The IIBRC was meant to serve a two-year term, ending on the 27th of November, 2010 (three months after the effective date, i.e., the Promulgation of the Constitution) or when the Independent electoral and Boundaries Commission is formed, whichever is later. My interpretation is that until the IEBRC is formed, the IIBRC shall continue to exist and carry out its functions in accordance with the terms of both the current Constitution and the former Constitution. Therefore, the statements to the effect that Mr. Ligale and other Commissioners shall cease to hold office on 27th November 2010, in the absence of the formation of the new boundaries Commission, are way off the mark.

The Constitution, in the Sixth Schedule, also provides for 'protected' constituencies, i.e., in its first delimitation of boundaries of under the Constitution, no constituency shall be lost because it does not meet the criteria provided for under the Constitution. Therefore, constituencies that fall outside the population quota or the variations provided for, shall not be lost until the second delimitation of boundaries, which shall be done between 2018 and 2020. Also, if general elections are held in the next twelve months, the new constituencies created by the IIBRC shall not be contested as per the provisions of article 89.2 and 89.4.

Gacheche, J. was wrong to entertain a petition that prevented the IIBRC from publishing its recommendations as per the provisions of article 89.10 and 89.11 which state that a review of the decision of the decision of the IIBRC can only be made after it has published its recommendations in the Kenya Gazette. It is difficult to see what rationale she employed to allow the application for the injunction to succeed. the petitioner did not wait for the Commission to publish its report and therefore, there is no way that he could be prejudiced by the recommendations of the Commission. If he had valid grounds for objecting to how the Commission had discharged its mandate, he should have waited for it to publish its report before applying to the High Court for a review of the decision. However, given the principle of separation of powers, on which the Constitution is based, the MPs calling for a censure motion against the Judge are wrong. The correct procedure is to petition the Chief Justice, who would then recommend to the president the appointment of a Tribunal to investigate the alleged judicial misconduct of Lady Justice Gacheche. As it is, their censure motion, eve if it succeeds, will have no effect on the Judge.

Finally, the list the IIBRC published in Friday's newspapers is raising concerns that the Commission did not eve apply the formula provided in article 89. I am assured that in statistical analysis, different values are assigned to the various factors that will be taken into account in calculating something as crucial as as the population quota. I expect that the Commission would also have published the rationale for its decision and therefore, those saying that the Commission betrayed its mandate have jumped the gun in castigating it. Until we see all the data they relied on in arriving at their decision, regardless of the three Commissioner's public statements, we cannot be sure that the Commission was wrong in what it did. Only after it publishes in the Kenya Gazette can we then judge its actions. The political posturing that is taking place betrays the fact that our politicians still look at electoral boundaries as ethnic strongholds. They cannot fathom the idea that one 'group' will lord it over 'theirs' and it is imperative that sanity prevails, otherwise the 2012 elections may be even more bloodier than the 2007 ones.

Tuesday, November 16, 2010

It's gonna be an epic Christmas, no?

It's going to be an interesting Christmas. Luis Moreno-Ocampo is about to apply to the ICC for indictments against six Kenyan politicians from the ODM and the PNU. PLO Lumumba is about to forward to the Attorney-General investigation files on four Cabinet Ministers and an unknown number of 'senior' government officials. Parliament is about to initiate proceedings against the Head of the Civil Service, Ambassador Francis Muthaura. The ghost of Anglo-Leasing is about to be resurrected. And one way or the other, the IIBRC, which will be merged with the IIEC, to create the Independent Electoral and Boundaries Commission, will publish in the Kenya Gazette the names and boundaries of 80 new constituencies.

Since the promulgation, the Constitution of Kenya has been a source of much trial and tribulation for certain members of the political class. This is a good thing. For far too long, Kenyans have lived under the illusion that politicians are free to do and say as they please, that there are no consequences for their multiple sins of commission and omission. That streak has well and truly come to an end. As is expected, Charity Ngilu will find herself out of the Cabinet, having 'stepped aide' to allow investigations of corruption to be carried out in her ministry. Hon. Ruto and Cllr. Majiwa will attempt to find new and interesting ways to ensure that the corruption charges against them are dismissed. We have the Constitution to thank for the burgeoning interest in public affairs that Kenyans continue to exhibit day after day.

This is however, a first step only. It is important that as Hon. Mudavadi's Committee drafts its report on the management of the Counties, that we take a more than casual interest in its operations. It is imperative that when the new Constituencies are finally created, we take steps to ensure that the new MPs elected to represent these political units are not the usual run-of-the-mill, hands-in-our-pockets, snake-oil salesmen that have been monkeys on our backs for dogs years. We must consciously and conscientiously begin the process of identifying, encouraging and voting for leaders who reflect our national values, who go out of their way to defuse inter- and intra-ethnic flash-points and who take time to understand the needs and priorities of their constituents so that when they rise o make their maiden speeches in the re-constituted National Assembly, they will speak with sagacity and make every effort to represent their needs and interests in the finest tradition of the House.

Dr. Lumumba gives us hope that in our perennial battle against the scourge that is corruption, it is no longer OK for the beat-cop to face the wrath of the courts while the fat-cat PS or MP walks walks away with impunity. MPs like Peter Kenneth and Mutava Musyimi show us that it is possible to run CDF Committees without offering jobs to your kith and kin at every turn. Abdikadir Mohammed shows us that it is possible to manage matters of national importance with wit and wisdom, serving the nation instead of narrow ethnic or parochial interests. Mohammed Issack Hassan shows us that it is possible to manage elections without resorting to mass ballot-staffing to favour one candidate over another. And the trials and tribulations of one Gidion Mbuvi, aka Mike Sonko, remind us that you can run, but you cannot hide in the New Kenya.

It falls on the likes of Moses Wetangula to remind us of why we loath politicians so. In a public gathering, where he vowed to return to Cabinet, he let out a truth that many politicians gloss over: he had gotten 'his' people jobs of consequence in the government. As he put it, it was by his hand that 'his' people benefitted. The implication was that if they wanted to continue benefitting by his very same hand, they were to make as much noise as possible to ensure that the 'baseless' allegations made against him were dismissed and he is restored to his rightful place as the Minister for Foreign Affairs. I say, if he never sees the inside of Kibaki's cabinet ever again, it will still be too soon.

The ever interesting Michael Ranneberger, the US Ambassador, is at it again, banning 4 'senior' politicians from ever setting foot on US soil again. Just like when he held back the names of 'senior' government officials whom the US considered persona non grata, he refuses to share what he knows of our narcotics-trafficking politicians. The US is founded on the freedom of information; I just wish he would extend us the courtesy of informing us who is on the perfidious list so that we can begin making our arrangements for their political funerals. I wonder of one of them will volunteer, Wako-style, the information that the US government considers them drug dealers! Miracles may still happen and lighting strikes twice, no?

Friday, November 12, 2010

Why I must Disagree with John M Khaminwa

In a nation governed by the rule of law, it falls on the Judiciary to ensure that everyone plays by the rules, and when violations are detected, that it offers an unbiased mechanism to arbitrate the conflict. With all due respect to my senior, John M. Khaminwa, and recognising that he is an eminent authority on constitutional law, I must disagree with him regarding the vexed question of the vetting of judges (Why I am against vetting judges, Nairobi Law Monthly, November 2010). In his submission, he attempts to argue that the Sixth Schedule to the Constitution does not form part of the Constitution of Kenya. He goes further to argue that there will be chaos and anarchy should judges and magistrates preside over trials while their vetting is pending. He argues that the fact that many of the judges and magistrates have yet to be vetted, their status is unclear and that as a result they are incapable of rendering fair, impartial verdicts. He admits that in prior years, the Judiciary has fallen prey to the machinations of the executive and that certain judicial officers were partial and biased.

The Constitution of Kenya creates the Judiciary in Chapter Ten. It also provides for the mechanism for the creation of the Judicial Service Commission and the vetting of Judges and Magistrates in the Sixth Schedule. If we accept the argument that the Sixth Schedule is not part of the Constitution, then the vetting of judges and magistrates will be ultra vires the Constitution. But, I intend to argue that the Sixth Schedule is part of the Constitution and that the vetting if judicial officers is not ultra vires the Constitution, but that it is an integral part in the reform of the Judiciary; as integral as the reform of the Executive has been through the ratification of the Constitution.

The Constitution of Kenya is the result of both a revolution and evolution of Constitutional Law in the country. Until the demise of the KANU regime in 2002, Kenyans did not have truly free hand in deciding their political destiny. The governments of both President Moi and his predecessor, President Kenyatta, lorded it over the citizenry, abusing the provisions of the old Constitution, amending it almost at will to entrench power in the presidency at the expense of the other arms of Government. One of the pernicious effects of this situation was the absolute subsuming of the Judiciary to the wants and needs of the Executive. The situation at one time was so dire that the Executive dictated the hours in which the courts would operate and the nature of their verdicts. Instances are recalled by victims of the Executive's excesses of courts sitting in the dead of night and prosecutors dictating prison terms which 'enemies or the state' would serve.

As a student at the Kenya School of Law, I was regaled by stories of patently unqualified advocates being appointed to the Bench without their knowledge or any form of vetting for that matter. Paul Musili Wambua, our civil procedure lecturer, recalls an instance where an advocate from Meru, who had charges of misappropriation of client funds made against him being appointed to the Bench. As was customary at that time, when he saw the Administration Police approach his home to inform him of his appointment, the man panicked and took off like a shot fearing that they had come to arrest him. It is impossible to know how many of these judges or magistrates were so appointed and only an impartial process of vetting can identify the beneficiaries of Executive fiat.

Mr. Khaminwa argues that the suitability of judicial officers to serve on the Bench will be determined by the Judicial Service Commission, the Chief Justice, the Chief Registrar and other officers appointed under the Constitution. He adds that it would be wrong to subject the to an additional procedure that would, in effect, embarrass the Judiciary at this critical juncture. He argues that it is better for the Judiciary to reform itself rather than have outsiders do it. If all that mattered was the image of the Judiciary, then it would be simplicity itself to ask for the Judiciary to be principled enough to ensure that rogue elements were eliminated and only upstanding officers continue to serve. This misses the point.

We all recall the fiasco that was the radical surgery conducted under the aegis of retired High Court Judge Aaron Ringera. Its effect, rather than to clean up the Augean stables, was to entrench impunity within the ranks of the Judiciary. In that instance, an insider was tasked with the responsibility of identifying judicial officer unfit to wear the robes of judges and magistrates. Instead, the process gave rise to instances where the radical surgery targetted judicial officers for political and other reasons. Kenyans took the opportunity to take their vendettas to the tribunals constituted to consider Ringera, J's list. In the end, the Judiciary was not reformed. I submit that a reason why the radical surgery failed is that it was not carried out under the rubric of a well-defined legislation and as a result, 7 years after his actions, we still have appeals pending where judicial officers challenged their dismissals and are fighting to reclaim their former positions of glory.

The vetting of the Judiciary is vital to reforming the Judiciary. A legal maxim holds that a man shall not stand judge in his own cause and it should be applied to the Judiciary too - the Judiciary is incompetent to undertake the massive reforms needed of its own affairs. It requires the intervention of an outside force to do so. The JSC is the right vehicle, established by law and operating under clearly defined rules of procedure. The JSC, as envisioned under the Constitution, is the most representative body in the history of the administration of justice in Kenya. If the National Assembly draws up the proper rules of procedure for its operations, it will do more to reform this Judiciary than any other body. The chaos that Mr. Khaminwa anticipates in litigation will pale in comparison if the integrity of the Judiciary continues to be in doubt. It is also notable that with regards to serving judicial officers, this process shall be a one-off affair. Once they have been cleared by the JSC, there will be no doubts remaining as to their suitability for judicial office.

Finally, I must join with Mr. Khaminwa in calling for the quick constitution of the JSC for the sole purpose of expanding the ranks of judicial officers from the current 44 to his proposed 250. The media has reported on the great backlog of cases in the Judiciary ad an expansion of the ranks of the judiciary should take care of all pending suits and ease the burden on judicial officers. In the long run, as with all matters of national importance, the money and resources will be found to support the expanded judiciary.

Thursday, November 11, 2010

A lesson in redistricting

In the recent US mid-term elections, the the State of California considered a ballot initiative on the question of the redistricting of electoral boundaries. Proposition 20 proposed to hand over the task of re-drawing electoral boundaries to a state commission. In Kenya, the Andrew Ligale-led Interim Independent Boundaries Review Commission is about to publish proposals for the creation of 80 new constituencies, in line with the Constitution, which makes provision for 290 constituencies. Mr. Ligale, who represented Vihiga between 2002 and 2007, has come in for flak with speculation that his commission proposes the addition of new constituencies to already well-served regions, notably in the erstwhile Rift Valley, Central, Eastern and Coast provinces. Danson Mungatana (NARC-K, Garsen) has gone so far as to accuse Mr. Ligale's team of gerrymandering specific regions for political purposes.

The California experience has shown that when sitting legislators take upon themselves the onerous task of re-drawing voting districts, they do without regard to the needs of the voters but for purely political ends, seeking to entrench the advantages of the incumbent. The effect has been to skew representation in favour of a particular political party at the expense of the voting needs of the voters, denying some minorities rights that are guaranteed by the State and US constitutions. As a result, the California State Legislature has been gridlocked with the power-plays between the Republicans and Democrats stymieing, among other things, the passage of the state budget, sometimes for months on end.

When the Kenyan Members of Parliament retreated to Naivasha to consider the Revised Harmonised Draft, among the questions they wanted to settle was the exact number of Counties and new Constituencies that would be created. Towards this end, the invited Mr. Ligale as an expert to offer insights into the matter. Even then, there were howls of protest from certain MPs, arguing that Mr. Ligale was incompetent to advise them on what the number of new new electoral districts would be in the new Constitution. They ignored his advise and settled on 47 Counties and 80 additional Constituencies and sent him on his way to draft a report on what they had agreed on. Well, the chickens have now come home to roost.

During the Referendum Campaign, there were two schools of thought on the vexed question of delimitation of electoral boundaries and representation. MPs from populous constituencies argued that the one man, one vote principle had lost meaning when the votes of their constituents counted the same as those from less populous areas, virtually all of them from Northern Kenya. The counter-argument was that a new principle should be introduced: one kilometre, one vote, reflecting the challenges of representing constituencies that were sparsely populated but were extremely large in size. The Committee of Experts attempted to find a middle ground and in drafting article 89 provided for variation in the relative sizes of Constituencies to take into account population size and geographical locations of the proposed Constituencies. Their solution pleased no one, hence the objections to what many speculate to be a political agenda by the Ligale-led Commission.

The delimitation of boundaries has consequences, including the allocation of funds under the CDF, the LATF and indeed, from the Government of Kenya with regards to development and other matters. In addition, when the Counties come to life in 2013, a county that as more than its fair share of constituencies shall attract a larger than usual share of the national resources through the CDF and LATF, among other funds. The protests being voiced today reflect the fear that some counties may end up being short-changed while others may suffer from abundance of fortunes. Mr. Ligale must be prepared to defend his Commission's recommendations as persuasively as possible or else he will remain forever a bogey-man for all that ails politics in Kenya.

Let there be no illusion; the politicians making faces at the IIBRC recommendations do not have the people's concerns at heart. They look at the proposed Counties as new troughs from which they can eat all they can. Therefore, when they see constituencies being 'awarded' to other counties, they are concerned that those counties shall have more resources to steal from. They do not consider that the recommendations may have been based on an assessment of the representation question in light of the fact that some constituencies must be split for they are too densely populated to be effectively represented in Parliament. It is an open secret that Central Kenya is too under-represented, but it is also a fact that Central Kenya has been the recipient of far too much national largesse, usually at the expense of other more deserving regions. The situation in Northern Kenya would not have been so dire if resources had not been concentrated elsewhere.

This country is undergoing transformations that were unthinkable barely a decade ago. It is good that Kenyans are now slowly to realise that they have a role to play in governance. It is only a matter of time before the institutions of governance catch up with the rest of the nation. Until then, it is important that we do not allow institutions such as the IIBRC to make far-reaching recommendations without taking them to task as to their methodology or criteria. Only then can we begin the journey toward a truly representative democracy, where even the voices of the voiceless are heard loudly and clearly.

Who thinks children should be charged with murder or arson?

Is it just me or is there a whole lot of unrest in secondary schools from the erstwhile Central Province? The spectacle of Form One and Form Two students being arraigned in court to answer charges of murder cannot be a comfortable one for anyone. How is it that children - for that is what they are - can conspire to set their dormitories alight with their compatriots sleeping inside? It simply does not compute.

I remember when I was a foundling in Form Three when we heard that a principal was being transferred from the poorly performing Mumbuni High School to our beloved Machakos School. Not many were amused, especially when allegations had been made that his particular management style had resulted in student unrest and low scores come the KCSE. But, it was the parents of students from Machakos Town who encouraged us to march to the District Education Officer's office to voice our displeasure with the turn of events regarding the transfer. That the transfer came to pass is neither here nor there, for on the week he set foot in Machakos School, the students were further encouraged to resist his presence. This led to the destruction of school property and the armed presence of scores of policemen. The school was eventually shut down for two weeks while tempers cooled down. It is a miracle that we managed to complete our Form Four syllabus and, for many of us, successfully sit for the KCSE exams.

I wonder if this is the scenario that is playing out in Central Kenya. Are parents and other adults behind the incidences of arson that have been traced back to children learning in these schools? If this is the case, then all the disaster management programmes in the world will not reverse the trend of school-burning that seems to be sweeping this region. Perhaps the political shadow-boxing that is taking place in Central Kenya is linked to the wave of arson attacks in schools that have left at least two students dead, dozens seriously injured, and at least 57 arraigned in court for criminal offences.

When students set fire to the dormitories of Upper Hill Secondary School in Nairobi some time in 2008, it was seen as an aberration at that time. The Minister for Education, Prof. Sam Ongeri, promised to institute reforms in the management of schools with the aim of eliminating student unrest and managing disaster if it ever struck again. It is not unfair to say that he has failed spectacularly in that goal. Why he is still serving in President Kibaki's cabinet remains a mystery that can only be explained by 'political' tea-leaf reading. Has anyone even considered the psychological toll that KCSE candidates are facing when their fellow-students violently disrupt their sitting of national examinations? Or the fear with which teachers are facing their students on a day to day basis?

There are those among us who have quickly jumped on the 'it-is-devil-worship' bandwagon, refusing to admit that in the management of our schools, just as in the management of other national institutions, Kenyans will blame anyone other themselves for the sorry state of affairs. In which secondary school are regular Parents-Teachers Meetings held? Which parent takes time to interview his son's or daughter's teachers to better understand the environment in which their progeny is studying? It is time to admit that parents take a very hands off approach to the management of the schools where their children live and study. It is not necessarily a bad thing that parents are busy looking for resources with which to support their children's educations, but it is bad that nearly all of them have taken this bread-winning excuse to such levels that they do not set aside adequate time to visit with their children or their teachers. More often than not, Endarasha-type disasters catch parents off-guard and they are loath to admit that they are part of the problem.

We keep repeating the mantra that children are the future, yet we seem to have neglected an important facet of the life-changing aspects of secondary school education. Here you have a group of teenagers without the requisite emotional maturity to appreciate that their actions have serious consequences. Parents and teachers, indeed the entire school management infrastructure, must take steps to revive the link that existed between parents and those in whom they entrusted their children's safety and education. 

It is time that all schools scheduled monthly Parent-Teachers conferences, in order to track any and all developments taking place in the school and its environs. In these conferences, they should be able to address the issues that have an impact on the lives of heir charges and take steps to ensure that where there are misunderstandings between the student bodies and the school managements, they are addressed quickly and effectively lest they balloon into Endarasha-style 'murders'. If we do not heed to this call, the numbers of children charged with arson and murder can only grow. And then we will truly be in trouble. After all, it is these 'murderers' and 'arsonists' who will form the next generation of leaders.

Wednesday, November 10, 2010

This is all ego

This is all ego.

William Ruto and Raila Odinga are locked in a battle of wills. Whoever wins, we may very well all lose. It has nothing to do with their desire to serve the people of Kenya. In all they have done so far in their political careers, they have thought of no one but themselves. Charity Ngilu, for all the allegations of graft made by Mwangi Kiunjuri, has a far better understanding of her role as an MP than these two. So do Mutava Musyimi and Peter Kenneth for that matter.

When you examine their political histories, what strikes you is the fact that they have demonstrated an unbridled lust for power, usually at the expense of someone else. Many hail Odinga's 'Kibaki Tosha' as the height of selflessness for the national good, but when you remember that the slogan was premised on two understandings: a) the total annihilation of KANU as a political power; and b) the division of the spoils among the victors of the 2002 general elections. The infamous MoU was as selfish a political deal as they come. 

William Ruto began his political career while still a student at the University of Nairobi and he owed his start, despite all his protestations to the contrary, to Kipyator Nicholas Kiprono arap Biwott, the Total Man. His political life began when he joined the deeply reactionary Youth for KANU '92 in which he was joined by the Likes of Cyrus Jirongo. YK92, if you recall, was a political vehicle that was designed to intimidate voters who had considered voting for FORD to reconsider their political options. It became the perfect vehicle for siphoning from public coffers what amounted to billions of shillings. As a result of its remarkably well-orchestrated activities, KANU - and Moi - was returned to power and our economy officially became a basket case.

Today, Mr. Ruto is travelling the length and breadth of the North Rift to shore up his political base, proclaiming that there are 'enemies' out to destroy his political career. That he has been targeted for showing ambition in the face of opposition from entrenched establishment figures. That his ambition should not be jettisoned at the alter of political expediency. That he deserves a shot at the presidency. Mr. Odinga hopes to redeem his family's honour, to use his considerable political clout to reinforce the fact that his family has suffered at the hands of the establishment and that the nation owes him for his suffering. That he deserves a shot at the presidency.

What arrogance.

Is this a democratic country or not? No one 'deserves' a shot. It is up to presidential contenders to persuade us, either by the record of their public service or the vision of their dreams that they are best-placed to lead this country in its hour of greatest need. They will do their thing, we will do ours. No one should live under the illusion that just because Moi detained them for years on end and hounded them to near political extinction that I owe them anything. No one should be mistaken that just because they have painted themselves as underdogs that they will secure my sympathies or my vote. All politics is retail. If you cannot sell your ideas in the political market place and you only rely on a misguided sense of entitlement, you do not deserve my vote. Or my sympathies.

This is all ego.

Kiplagat and our dark past

Why Ambassador Bethwel Kiplagat thought he deserved the sympathy of the Kenyan people beggars belief. 

In the 1980s, Kenyans of all stripes were hounded out of their jobs, homes and even nation for expressing beliefs and ideas contrary to the dictates of the ruling party, KANU, and its heavy-handed chairman, President Daniel Toroitich arap Moi. There were those who enjoyed the ministrations of secret policemen in the torture chambers of the basements of Nyayo House and Nyati House. As children, even in our innocence, we knew that a visit to these buildings only heralded pain and humiliation, perhaps, even death. 

That decade also saw the relentless expansion of the politics of 'tribal divide and conquer' that KANU had perfected, with many undeserving individuals elevated to high office simply for belonging to the correct ethnic group or for accepting the hegemony of one ethnic group. The state laid the foundations for what would become the greatest of all corruption scandals and to date, the men and women who kept that edifice of human rights abuses, corruption and ethnic cleansing alive have yet to be brought to book.

When President Moi was sworn in as our second president, he promised to 'fuata nyayo'. And follow he did in the bloodstained footsteps of the Founding President, Jomo Kenyatta. The various purges that had been initiated under the first president were expanded by President Moi. Repression become second-nature to him, especially after the ill-fated coup attempt in 1982. He strengthened the place of the ruling party in national life ensuring that all members of the civil service were card-carrying, dues-paying members of the party or their careers would stagnate. Party apparatchiks, who were frequently illiterate or semi-literate, wielded enormous power and they used this power to enrich themselves at the expense of the common mwananchi. Dissenters faced the wrath of the state in a variety of very imaginative ways.

Ambassador Bethwel Kiplagat may not have participated in any of the atrocities that were committed by his government, but he cannot stand blameless in the Twenty-first Century. He was there. He knew what was going on. And he did nothing. Instead, he rose to the highest levels of the state. Indeed, he was the Permanent Secretary in the Ministry of Foreign Affairs and International Cooperation when his minister was abducted, tortured and brutally murdered. He was a mandarin in the Ministry of Home Affairs when thousands of innocent men, women and children were murdered by Kenya's armed forces in the now infamous Wagalla Massacre. For evil to flourish, it only requires good men to do nothing, so said Simon Wiesenthal who did so much to expose the evils of the Nazi regime after the Second World War.

Together with retired army General Lazaro Sumbeiwo, Ambassador Kiplagat will be remembered for his sterling role in shepherding the Sudan peace process leading to the Comprehensive Peace Agreement between the North and South. However, this will not wash away the stain associated with the atrocities committed by the KANU regime. When Ambassador Kiplagat was appointed the chairman of the Truth, Justice and Reconciliation Commission, the objections of the vocal few reflected the fact that many of them knew that his appointment served to underscore the lack of commitment to the transitional process. There was never going to be reconciliation or justice if Ambassador Kiplagat continued to helm the TJRC and his resignation is a first step towards restarting the process.

Ambassador Kiplagat must appear before the Commission to explain his role, if any, in the decision-making processes of the Moi Regime. This is something that he cannot escape. He was there when evils were perpetrated against Kenyans. He can shed light on what motivated the government to maintain such a strangle-hold on the media; why it dedicated so much of its meagre resources in pursuing, detaining and molesting Kenyans for demanding their rights. His day in court will come, but if he wishes to vindicate himself in the eyes of Kenyans, to be absolved of his sins of associations, he must come clean or history will judge him harshly.

Sunday, November 07, 2010

Niccholo Machiavelli would have loved Kenya in 2010

In carrying his cross, William Kipchirchir Samoei arap Ruto (ODM, Eldoret North) has gone to The Hague to present his statement before the International Criminal Court. Hon. Ruto is setting the tone for political debate for the next two years and he has stolen a march on the Prime Minister and his acolytes. He has always proclaimed his innocence in the light of the startling allegations made against him by among others, the Kenya National Commission on Human Rights, regarding the violence that rocked the nation after the 2007 general elections. He has claimed a political hand in these allegations, that they have been made in order to prevent him from making a successful bid for the Presidency in December 2012. The Eldoret North MP and the Prime Minister are now formally locked in a battle of wits and supremacy and only one of them can emerge victorious.

Prime Minister Raila Odinga (ODM, Langata) has come out strongly in defence of the embattled Minister for Water and Irrigation, Hon. Charity Ngilu (NARC, Kitui Central) after allegation of graft were levelled against her and the Permanent Secretary, Eng. David Stower by a disgruntled former assistant minister, Festus Mwangi Kiunjuri (PNU, Laikipia East). Hon. Kiunjuri alleges irregularities in the awarding of tenders by the ministry and the Prime Minister took it upon himself to declare Hon. Ngilu's innocence, before backpedalling in the light of severe criticism from the likes of the Minister for Public Health and Sanitation, Beth Mugo (PNU, Dagoretti) and the Minister for Justice, Constitutional Affairs and National Cohesion, Hon. Mutula Kilonzo (ODM-K, Mbooni). The Prime Minister is going to be busy putting out fires for his political allies while Hon. Ruto will be re-writing history with him in the role of the underdog.

Hon. Odinga and Hon. Ruto evoke strong emotions whenever their names are mentioned. Hon. Ruto is seen as a 'typical Kalenjin', incapable of empathising with the plight of non-Kalenjins, caring only for 'his' people. Hon. Odinga is portrayed as a power-hungry Luo, out to destroy what the House of Mumbi has spent generations building. A political narrative is being written to portray the 2012 presidential election as a battle between the Prime Minister and the spunky, wily MP from the North Rift.

It is interesting to note that a few Members of Parliament are discharging their duties as MPs and Members or Chairs of Parliamentary Committees with as little fanfare as possible, with barely noticeable speculation that they would make excellent alternatives to the combative front-runners. Rev. Mutava Musyimi (PNU, Gachoka), the man who denied ODM Pentagon member Joe Nyaga (ODM, Nominated) a seat in Parliament that had been held by his family for dog's years, is now being seen as a credible alternative to the usual Raila or Ruto rigmarole and his role on Parliamentary Committees has been lauded as low-key and professional. Despite his opposition to the new Constitution, rev. Musyimi does not evoke feelings of loathing from the general public; in fact, he does not seem to feature at all in national discourse vis-a-vis the 2012 presidential elections.

As a result of his midnight flight to the Netherlands, Hon. Ruto has ensured that the spotlight remains firmly on him. What did he have to say to the ICC prosecutors? What names did he name? Will the president and prime minister be forced to make similar statements? Will other Waki Envelope Suspects also make similar arrangements? We will all watch keenly as the erstwhile Minister for Higher Education walks the tightrope that he has strung between his possible ICC indictment and his political ambitions because if he stumbles, then the prime minister has a clear shot for the presidency. If he successfully makes his way across, Hon. Ruto will have managed to embarrass the plans of the Prime Minister and given himself an unassailable public profile to boot. 

Hon. Odinga is now being advised to allow his political allies to be treated in the same manner as Hon. Ruto regarding allegations of corruption or violations of Chapter 6 of the Constitution (Leadership and Integrity), hence his walking back the statements he has made in defence of the Water Minister and the strong-arming of MPs to 'save' the Local Government Minister, Musalia Mudavadi (ODM, Sabatia). 

Najib Balala (ODM, Mvita) has already demonstrated a disturbing tendency towards independent thought and Joe Nyaga is all but done in Gachoka politics. Ababu Namwamba (ODM, Budalang'i), despite being yanked back into line by the PM, is a political light-weight, incapable of providing the political cover the PM needs to do things his way. So are Millie Odhiambo, Orwa Ojode, Otieno Kajwang, Esther Ongoro, or even his brother, Oburu Odinga. He has already been deserted by the entire Kalenjin ODM wing and it remains to be seen if he will successfully string together a new alliance with MPs from outside the ODM house, especially allies of Uhuru Kenyatta or Kalonzo Musyoka. 

The Prime Minister's recent failure to reverse the elections of Abdikadir Mohammed and Millie Odhiambo as the chairman and vice-chairman of the Constitutional Implementation Oversight Committee point to future difficulties regarding his choice of heads for key constitutional implementation bodies. It also does not help that it is perceived the PM also has his nose firmly in the trough with allegations regarding the appointment of his relatives in the diplomatic corps. 2012 is not the clean sweep that it has been made out to be, and if Hon. Ruto successfully manages to rescue himself from political obscurity, that will be the beginning of the end of the PM's presidential ambitions. He forgot an important Machiavellian principle: keep your friends close and your enemies closer. Alternatively, if you are going to destroy your enemies, strike first, strike fast, and strike hard.

Friday, November 05, 2010

We must take personal responsibility

Life, in Kenya, is valueless to those in power. It does not matter what agency one heads, all treat human life with the same cavalier attitude. How is it that men and women keep dying in our stadia and nothing is done? How is it that hundreds of lives are lost by way of road traffic accidents and all we receive are platitudes to do better from the powers-that-be? When eight Kenyans died before the Gor-AFC match three weeks ago, the organisers saw nothing wrong in allowing the match to go on. When we witness horrific accidents on our roads, the powers-that-be see nothing wrong in offering empty promises to clean up their acts. When Kenyans are gunned down in cold blood by policemen and criminals alike, the powers-that-be promise to work harder in solving these horrendous crimes.

Many Kenyans have erroneously pinned their hopes that things will change on the new Constitution without examining and re-examining their actions in light of the evidence presented. Kenyans will not think twice about offering a policeman a bribe if it means they will keep driving without valid driving licenses, or drive un-roadworthy vehicles, or drive recklessly. Kenyans will applaud the gunning down of criminal suspects without resorting to the bother of a trial. Kenyans will enjoy their football match, never mind that a few minutes earlier their fellow citizens were carted away to the City Mortuary. And the organisers of the match will print tens of thousands of tickets for the fans regardless of whether the stadium will accommodate them.

Mr. Justice Philip Ransley (Retired) handed in his commission's report to reform the police services some time last year and the process, we are assured, is under way. The Prime Minister as well as the ministers concerned have called for an enquiry into the debacle that was the Gor-AFC match with Football Kenya Limited 'banning' the use of Nyayo National Stadium and City Stadium from hosting league matches until 'proper measures are put in place'. No one is calling for a change in attitude in the millions of Kenyans who enjoy government services.

When the Double-M bus company started running its services in Nairobi's suburbs, it innovatively insisted that all its passengers would queue before boarding. In this way, it ensured that there was minimum fuss at the point of departure. This was a far cry from the operations of its competitors such as City Hoppa and the Kenya Bus Management Services which did nothing to ensure that their passengers were treated with dignity or respect. Double-M buses are frequently cleaned and mostly well-driven. Their crews are well-mannered, uniformed and respectful. Compared to its rivals, very few complaints are levied against this company. However, it is operating in a very competitive market and its desire to compete may be getting the better of it. Instances of reckless driving are increasing by the day and it is a matter of time before its grateful passengers can't tell the difference between this company and the myriads of matatus plying our streets. In all this, the passengers have maintained a studious silence, only piping up if they feel that they have been cheated. And even then, it is not a respectful encounter but a one-sided shouting match in which the passengers attempt to portray the crews as a criminal cabal out to fleece helpless civilians.

Kenyans have taken their self-righteous attitude to ridiculous heights, refusing to take personal responsibility for what ails them. It is no longer common to witness adults chastising children for bad behaviour. I wonder if there are any adults who go out of their way to ensure that their residential neighbourhoods have well-mannered children who reflect the community ethos of their home towns. It is rare to find children playing peaceably nowadays; more often than not, children are getting into violent altercations while their parents turn a blind eye. This live-and-let-live attitude is partly to blame for the liberties that are being taken in our name by the powers-that-be. In our apathetic approach to public debate or discourse, we have allowed our basest selfish selves to take over from our more enlightened generous ones. We watch the world as it sails by without taking responsibility for our inaction.

The next twenty years are going to be critical in the life of the nation. It is imperative that we take responsibility for all aspects of our decision-making, be it in the realm of disaster-preparedness and management to traffic safety and security. We must speak up when we notice that the things being done in our names do not measure up or add up. We must speak up when we notice that laws are being broken with impunity. The broken-windows theory should be our watchword - when we allow lesser laws to be broken with impunity, we invite the ghost of mega-corruption to keep visiting us over and over. Decisions are made by those who show up. It's time we showed up to the party!

We need to learn, again, how to think

I don't think the parliamentarians of the National Assembly will heed the call and #RejectFinanceBill2024. They will tinker. They will v...