Thursday, December 30, 2010

What would Jesus Do?

What does it mean to be a 'good' Christian? Is it the faithful observance of rituals? If so, does it mean that if you are a member of one of the various and varying branches of Christianity that you are in a superior position compared to all the rest? When martin Luther nailed his theses to the Church doors, he set of a chain reaction that has yet to stop. Today, the practice of Christian faith is observed from the hallowed halls of roman catholic churches, Anglican parishes, and many more. IN Kenya, the 'established' churches observe rituals that go back centuries while the evangelical and Pentecostal ones are of more modern vintage. All profess to be the true path to heavenly glory and none is willing to give an inch to the other.

It has variously been claimed that Africa, and indeed Kenya, is a Christian region, where Christians outnumber the practitioners of other faiths. It is taken for granted that one is either a Christian or a Muslim. The other 'minor' faiths do not enjoy the prominence or notoriety of the Cristian faith in Kenya. During the recent referendum campaign, Christians were exhorted by their spiritual and religious leaders to vote along Christian lines and reject the Proposed Constitution because it had many un-Christian articles that would come to haunt the nation once it was ratified. However, it was never clear what Cristian tenets were at risk from the ratification of the Proposed Constitution, and as we emerge from the celebration of the birth of Jesus of Nazareth who was the Christ, we are still left to our own devices when it comes to deciding what makes a good Christian.

This is my take, and it is influenced to a large extent by the notion that when God Almighty gave us a mind of our own, he expected of us the correct decision when it came to temporal matters and that in the end, we will be judged by how we worshipped him and whether we maintained our faith in His glory and power. Jesus, the father of Christianity, is captured in all His Glory in the four Gospels of Matthew, Mark Luke and John. His words are reproduced for us to interpret and apply to our lives in the opes of seeing the gates of Heaven. However, it seems that the ritual of the Church has become the be all and end all of Christian faith, taking the place of what Christ actually called us to do and to be. It is more important to participate in the rituals than to observe the words of the Almighty. We place more faith in the interpretation of the importance of the ritual at the expense of the words themselves.

Christianity is like a club that excludes the non-believers even when they observe the spirit of the faith more faithfully than the spirit of Holy Scripture. Therefore, the modern interpretation is that those who diligently and faithfully attend church services and observe the rituals are 'true' Christians, with a guaranteed ticket to heaven, than those whose relationship with their church is tenuous at best. So, we must be seen to be good rather than actually be good. This, I believe, is the reason why we place such great stock in the participation of politicians in the church activities, even when we know they are liars, cheats and murderers.

The pillars of Christianity may include the rituals, but they should also include such virtues as honesty, charity, faith in the Almighty, subjection to His Will, trust in His Mercy, and all the acts and actions that we consider virtuous. So what if some of the Christians have not been to church service in 20 years? The rituals should serve as a reminder of the significance of the words and acts of the Christ; they should not be a replacement for true faith. when we witness to un-believers, it should be on the basis of faith and not judgment of their status as un-believers. It is not our place to judge whether or not their path will lead to hell or heaven; we should minister to them in the spirit of fellowship, knowing that we are going about our Father's Business. My pastor should advise me that certain actions are verbotten; that I am to speak, think and act as Christ would have. It is not his business to predict the eternal hellfire that my soul shall endure simply because I did not take Communion or I did not attend service. When I act or speak, will my action or speech endanger my immortal soul? That should be the question at the forefront of all Christian activity. For me to be a good Christian, it is my responsibility to speak and act with the intention of doing good whether it is recognised as such or not. Therefore, I should honour my parents, love my neighbour, and maintain my steadfast belief that Almighty God is the only one to be worshipped. Ritual is the helper for meeting my obligation to be good; it is not proof that I am good.

As the clock inexorably ticks towards the Second Coming (and the end of 2010), we must remember that as Kenyans we have treated our fellowman shamefully. We have allowed families to be torn asunder. We have murdered in the name of tribes and ethnic communities and political ideals. Today, thousands of Kenyans who were killed, maimed or forced out of their homes, await the recognition by their fellow Kenyans that crimes were committed against them in the name of politics. They await our speeches and actions infused with Christian ideals. We continue to disappoint them. We are truly committed to being the worst of the worst, keeping these families in limbo while they wait for earthly justice. On the Day of Judgment will we truly say that we did all that was possible to offer solace and justice to this men, women and children?

Wednesday, December 22, 2010

What does 2011 portend for William Ruto?

A key plank of William Ruto's defense is that the ICC prosecutor relied on the reports prepared by the Kenya National Commission on Human Rights and the Commission of Inquiry into the Post-Election Violence which, he claims, relied on false witnesses and that the ICC prosecutor should be compelled to conduct 'fresh' investigations in order to be in a position to issue credible summonses or warrants against him. However, his vitriol seems to have been reserved for the Florence Jaoko-headed KNHCR, especially Commissioner Omar Hassan Omar. This correspondent will be the first to acknowledge that Commissioner Omar is a faintly comical and deeply annoying individual, wearing his sanctimoniousness as a suit of armour and pontificating on anything and everything that is in the public domain. What is still in doubt, despite his refusal to sit down with officers from the Criminal Investigations Department of the Kenya Police, is that he is solely responsible for the coaching and bribing of witnesses to finger William Ruto, implicating him in the PEV.

Mr. Ruto and his acolytes, including Isaac Ruto, Charles Keter and Joshua Kutuny, have been heavy with the innuendo but scant with the evidence of Commissioner Omar's connivance in the framing of William Ruto. Uhuru Kenyatta went to the High Court to have his name expunged from the KNHCR report on the PEV and failed. Mr. Ruto must have realised that such a move on his part would have met with similar failure and he chose a public-relations assault on the edifice of the KNHCR, with mixed results.
It was not until the Head of the Civil Service was named in the ICC prosecutors application to the Pre-Trial Chamber II that he found support in the erstwhile Central Province. In other words, the likes of Kareke Mbiuki, Silas Ruteere Muriuki, Ephraim Maina and Jeremiah Kioni are what could be charitably described as fair-weather friends; they only joined the anti-ICC bandwagon when one of theirs was named. They are not in the fight to save Mr. Ruto's hide from the visceral attentions of the ICC prosecutor, but they are in it because one of their own is in the hot seat. If the good ambassador is indicted, tried and convicted by the ICC, it may, perhaps, bring unwanted attention into the activities of his staunchest defenders in the run-up to, and during and after the disputed 2007 general election. If indeed this is their primary motivation, if for whatever reason the ICC prosecutor fails to make his case to the Pre-trial Chamber II regarding Amb. Muthaura, Mr. Ruto may well find himself fighting a rear-guard action on his own. He will have no one to blame but himself.

It is increasingly apparent that the ODM only decided to defend Mr. Ruto as it would have been unseemly for them to defend Mr Kosgei, the party chairman, without defending an erstwhile strong pillar of the ODM house. The same rationale applies with regards to chairman Kosgei: if the ICC fails to make its case against him, Mr. Ruto will find himself on his own and phrases like "let him carry his own cross" will flow once more.

In 2007, ODM engaged in a series of primaries to determine who would be its presidential flag-bearer. Raila Odinga, by virtue of his wealth, his history and his personal popularity won the contest hands down and his former challengers offered him their staunch support in his contest with Mwai Kibaki. It is a truism that Mr. Ruto rallied the Rift Valley in favour of Mr. Odinga, bringing out the vote in the populous Kalenjin community. He was extremely vocal in the aftermath of the elections, taking hard-line positions when it became apparent that Mr. Kibaki's men were hell-bent in fiddling with the election results. In fact, Mr. Ruto will be hard-pressed to explain away his echoing of the 'mass-action' calls that his acolytes want to hang around the PM's neck. In the negotiations that led to the National Accord, Mr. Odinga relied on Mr. Ruto to arrange the most favourable deal for the ODM. In return for his services, Mr. Ruto was appointed the Minister for Agriculture. It is at this point that things went sideways.

Even during the electioneering period, it was apparent that Kenya was in the midst of a severe famine and that millions of Kenyans were in desperate need of food aid. As Minister, Mr. Ruto was responsible for the effort to provide relief food to the stricken Kenyans. But as is common in Kenya, politicians and civil servants never let a catastrophe slow them down in profiteering. Allegations were levelled against the government that individuals linked to the powers-that-be were benefitting unfairly from the sale of maize stocks from the granaries of the National Cereals and Produce Board. Mr. Ruto was accused of complicity; he challenged his accusers, managing to survive a Motion of No Confidence in the National Assembly. At this point, he started seeing himself as the equal of the Prime Minister and that it was the Prime Minister who was his greatest stumbling block in his road to State House. His relationship with his party's senior-most leader took a turn for the worse from which it has never recovered.

All the while, the CIPEV was holding hearings and the KNHCR was preparing its damning report. Mr. Justice Philip Waki is no stranger to the way the government, and politicians by extension, operate. He had just survived Aaron Ringera's radical surgery and he was in no mood to see his Commission's hard work ignored, or worse still shelved. It is only after he gave Kofi Annan his famous envelope with names of 20 persons the Commission recommended further investigations on that Mr. Ruto realised that his ambitions may have taken a serious knock. From then on, even after the publication of the KNHCR report, Mr. Ruto embarked on a low level insurgency against the Prime Minister, roping in supporters where he could find them. When he and his allies were outflanked by the Prime Minister during the PSC retreat in Naivasha, he joined the NO side in earnest, unsheathing his sword against the Prime Minister in public. Needless to say he has been one step behind the wily Raila Odinga every step of the way. Now he is in an untenable position. He has been suspended from the Cabinet, he is under investigation by the ICC and if the New Year is as bad as the old, he will be summoned to explain himself before the ICC Trial Chamber.

Mr. Ruto must survive the ICC process if his ambition to be president is to be realised. He will need his allies to keep the faith even if they have no reason to do so. He has the backing of the Vice President, but given his previous betrayal of the Orange Movement, the V-P's support may be a two-edged sword. Mr. Musyoka may gamble that it costs him nothing to support Mr. Ruto if in the end he is still indicted. So Mr. Ruto must muddy the waters as much as he can if he is to survive. He must cast doubt on the CIPEV report, the KNHCR report and on the good name of the ICC prosecutor. If the Pre-Trial Chamber accepts his arguments, then he may live to fight another day. If it does not and he is indeed indicted, then his career will enter uncharted waters so treacherous he may find himself sailing them alone.

Tuesday, December 21, 2010

Who cries for our internal refugees?

Did Kiraitu Murungi really finish a Masters Degree at Harvard Law School? His recent statements in support of the Hague six point to a serious lack of legal analysis. In this he is joined, quite unfortunately, by the likes of Ephraim Maina and that windbag-for-hire, Joshua Kutuny. President Kibaki has already set the tone - wait for the Hague to summon them, then begin to worry. The Central and North Rift MPs who are fulminating about the 'politicised nature of the ICC process' have put the cart before the horse. If the Six are indeed indicted, what will be the political fallout - that seems to be the thinking behind the 'we will offer them material and moral support' line that Kiraitu has been peddling for all his worth.

In 2007 and 2008, thousands of Kenyans were murdered in their homes. Thousands of women and children were violently raped, especially by policemen acting either on their own basest instincts or on the orders of the Head of the Civil Service and the Commissioner of Police. Mr. Justice Philip Waki and his Commission of Inquiry, documented the allegations and accusations with as much humility as the situation demanded and when they were drafting their report, they just knew that they could not let the matter lie with a set of recommendations. So they drew up a secret list of 20, handed a sealed envelope to the former Secretary General of the United Nations and asked him to hand it over to the prosecutor of the ICC if the Government of Kenya failed to set up an independent, credible and impartial mechanism to investigate the allegations and accusations made against the twenty, and where possible, try them for crimes committed during the pogrom.
As usual, the politicians refused to acknowledge that the country needed a clean break with the impunity of the past 30 years. Instead of heeding the good judge's recommendation, they thumped their chests and declared that the National Accord and Reconciliation Act had washed away all their sins and that the country was well and truly back on the road to democratic normalcy. The Minister for Justice, first Martha Karua and later Mutula Kilonzo, tried to warn these honourable men and women that if they failed to establish such a tribunal on home ground, the ICC would do it for them in The Hague. They were ignored and one Isaac Ruto came out forcefully - Let us not be vague; let s go to The Hague. William Ruto scoffed that it would take the ICC up to 2090 to investigate the Kenya Problem and that by then many of the perpetrators and victims would be dead. In a cruel twist of fate, the ICC prosecutor has acted with more alacrity than any of them anticipated, occasioning Kiraitu's rather self-serving declaration.

Now all manner of legal professionals have joined the fray, warning that regardless of whether Kenya withdraws from the Rome Statute or not, the process cannot be stopped. The Prime Minister has promised the National Assembly that the government is studying all options, including applying to the United Nations Security Council for a deferral in the matter. In all these political and legal maneuverings, we have all conspired to forget the fates of those who were murdered, raped, maimed and their properties confiscated unlawfully, destroyed or scattered to the four winds. The millions that the politicians seek to collect for their 'heroes' - as one politician called the Six - will not benefit the country one jot. Their exhortations that Kenya is a sovereign state do not wash. When Kenya was burning, they were comfortable in ceding sovereignty to the Panel of Eminent African Personalities led by the able Kofi Annan and the former First Lady of Mozambique and South Africa, Graca Machel.

The political and professional elites of Kenya have learnt to live with the inequity between the rich and the poor. After all, we feel, as the Speaker so eloquently put it, sufficiently magnanimous to pay a poor woman from the slums of Nairobi a pittance to clean our houses or her husband to stand guard every night over our properties. We take carnal advantage of them when they serve us our beers in the nightclubs, bars and 'gentlemen's clubs' that now proliferate our formerly fair city. We run them over in our Vitzes, Prados and Mercedes-Benzes and we do not bat an eyelid when our insurance companies refuse to compensate them or their families. Today we are prepared to sacrifice the hundreds of thousands living in deplorable, dehumanising conditions in what we euphemistically refer to as IDP camps. They are refugee camps, dear readers, and they are the closest to hell a person can get without dying. Unless they reside, courtesy of their government, in cholera-stricken 'GK' prisons. In their political contests, politicians of all shades and stripes have used the plight of these unfortunate men, women and children to raise tens of millions which our refugees are yet to see. The Minister of State for Special Programmes in the Office of the President, first Naomi Shaaban and now Esther Murugi, have treated these people shamefully.

It used to be that Christmas was the time for public charity. The Mayor of Nairobi had his Christmas Tree Fund. Other charitable organisations also had their 'funds' for the upkeep and maintenance of the less fortunate members of the society, the so-called poorest of the poor. This year, it seems the poorest of the poor will play second-fiddle, again, to the well-heeled and well-connected. Our refugees will spend a desolate Christmas in their camps. Their children will watch with envy and rage as the children of the middle-classes and the political elites spend their Christmas in the holiday spots of the nation, eating and drinking and partying to their hearts content. I have warned that if there is violence in 2012 it will not be by one ethnic community against another, but about the oppressed youth against an unfeeling, uncaring, perfidious government. Mr. Kiraitu Murungi is yet to learn the proper lessons of 2007/08. The children living in the refugee camps will remind him in no mean fashion when he and his ilk come trolling for votes. These people must be compensated and resettled if this country is to hold its head high again. The fates of the Ocampo Six are not important; those of the refugees are.

Sunday, December 19, 2010

Wait and See

Ever since Raila Odinga's Liberal Democratic Party merged with KANU, Hon. Raila Odinga has set the tone of political debate in Kenya. Since 2005, when he went against Collective Cabinet Responsibility, and led a sizable chunk of Cabinet Ministers into the Orange Democratic Movement and opposed the Wako Draft, he has set the political temperature. Since April 2008 when he signed an accord with President Kibaki to end the stalemate in government after the disputed elections of 2007, he has become the bogeyman that all other politicians see in their nightmares whenever the question of the 2012 presidential election arises.

Vice-President Kalonzo Musyoka and Deputy Prime Minister Uhuru Kenyatta, leading lights of the Orange Democratic Movement in 2005, have since parted ways with Hon. Odinga, each pursuing an ambition to become president of Kenya. William Ruto, the suspended Higher Education Minister has also recently broken ranks with Hon. Odinga, pursuing his ambitions at the expense of the party that was formed in the aftermath of the 2005 referendum. In the beginning, he was a loyal supporter of Hon. Odinga's presidential ambitions, one of the loudest protesters at what has come to be seen as the naked power-grab of the Kibaki coterie, fondly known as the Mount Kenya Mafia. However, when it emerged that in the ODM there is only one undisputed, indispensable leader, he set out to mould a political constituency for himself, separate from the party or the party leader. Much as we would like to think otherwise, Hon. Ruto has succeeded in carving for himself a political constituency that does not owe allegiance to the party or Raila Odinga, and this makes him a dangerous man to underestimate.

A loose alliance has been formed between Kalonzo, Ruto and Uhuru, pejoratively known as the KKK alliance. It is facing challenges now that Hon. Ruto and Hon. Kenyatta have been named by Luis Moreno-Ocampo as among the six who bear greatest responsibility for the PEV. In his submissions to the Pre-Trial Chamber II, Mr. Moreno-Ocampo is asking for summonses against the six, including Hons. Ruto and Kenyatta, to answer for the violence that plagued Kenya after the disastrous 2007 general election. Given his dismal showing at the last referendum (where he barely managed to choose a side, or deliver votes), the Vice-President has been criss-crossing the nation in attempt to shore up his popularity, making statements in defense of Hon. Ruto, sometimes spewing such vitriol that the national Cohesion and Integration Commission has launched an investigation of his statements. It remains to be seen if his two allies will face trial at the Hague. If they do, his position as a consensus candidate remains precarious, especially if the constituencies loyal to Uhuru or Ruto decide that he is too untrustworthy to be be their candidate.

2012 still remains a contest between Raila Odinga and someone yet to be determined. With an ICC trial hanging over the heads of William Ruto and Uhuru Kenyatta, it is unclear whether Kalonzo Musyoka has an open field in the contest. Even if he does, it is unclear whether Prof. Georg Saitoti, Martha Karua or Peter Kenneth are wiling to allow his name to be on the presidential ballot unchallenged, or some outside candidate may inspire the support of everyone else in a contests against the Prime Minister. All calculations are suspended until the ICC scenario is dealt with. If Mr. Ruto and Mr. Kenyatta are indeed indicted by the ICC, their position will be greatly weakened for it is clear that the indictment may inspire individual Kenyans to sue them here in civil court to recover damages for injuries suffered during the PEV. For the Prime Minister, Henry Kosgey's indictment may also prove a political risk for him too. How he handles the possible indictment of his party's chairman may define whether he emerges unscathed once the ICC process is over. Given the close nature of their alliance, there may arise a situation where Raila Odinga is also sued as a co-conspirator in Kenya for losses and injury suffered by innocent Kenyans during the PEV. If all top presidential contenders are busy fighting civil and criminal suits, it may leave the field open for the Vice-President or any of the other presidential contenders. It may take time for the situation to solidify significantly for anyone to declare with confidence that 2012 will be Raila versus someone-else.

The Prime Minister must change or depart the political arena

When the Roman Senate appointed Julius Caesar dictator, they could not have predicted that it would all end with his assassination on the Senate floor at the hands of his most trusted friend, Brutus. In their decision, they were guided by the knowledge that in exceptional circumstances the Senate was a stumbling block to quick decision-making and that in giving the Caesar absolute power of decision-making, the Roman state would be protected from the threats that it faced in its day. As always, it fell on the shoulders of civic thinkers like Cicero to point out the dangers of handing over too much power to a man such as Julius Caesar was, and it came to pass that Julius Caesar enjoyed the power he wielded to the detriment of the Roman people and the Senate decided to act.

When the new Constitution was promulgated on August 27th, Kenyans were inundated by profiles of 'executive' presidents who would be professional and keep the good of the people at the forefront of their decision-making. Prime Minister Raila Odinga has styled himself as a consensus-builder who is the great hope of the nation after the next presidential election. The image that the Right Honourable Prime Minister has drawn of himself requires the truthful, honest examination that such a position demands. In his recent statements and activities, the Prime Minister has all but demanded that Kenyans interrogate his desire for the top job as dispassionately as possible with a view to deciding if he is truly the only one who cold see the implementation of the Constitution accomplished within the spirit of the Second Liberation Movement and the objectives and ideals of the Second Republic.

Presidents Kenyatta, Moi and Kibaki are poor templates of the president post- 2012. Prime Minister Odinga assures us that he is the best candidate and that in the 2012 contest we should repose our faith and trust in him. In the past month, he has come out strongly against homosexuality and homosexual acts (though he later retracted what he had publicly declared), he has called for the military overthrow of Laurent Gbagbo of the Ivory Coast, he has campaigned for Uganda's Yoweri Museveni, and, together with the President and their Cabinet, proposed that Kenya withdraws from the Rome Statute in order to safeguard our sovereignty and try the Ocampo Six in a local tribunal. It is now becoming more and more apparent that the lessons that the Prime Minister has learnt from the preceding three presidencies is the art of saying one thing and doing something else entirely.

The Prime Minister has the capacity to inspire loyalty in his supporters which other politicians only wish they had. As an orator, he may come out as stilted and a poor communicator, but this does not seem to have hurt his connection with the ordinary Kenyan. When he speaks, thousands upon thousands listen to his word as if it came from On High. However, what is apparent is that he does not believe in the rule of law if it is to be strictly applied against him. His call for action against homosexuals and homosexuality flies in the face of the anti-discrimination provisions of the Constitution that he campaigned vigorously for. His demand for the military removal of Laurent Gbagbo refuses to admit that military regimes in Africa have a poor record of returning power to civilian hands. His campaigning for Uganda's Yoweri Museveni acknowledges that at times it is more expedient to force constitutional amendments to perpetuate what is in effect a one-man presidency. He recent calls for the establishment of a local tribunal refuses to admit that the Judiciary has not changed from what it was pre-promulgation. It is still subject to the vicissitudes of the political arena and its independence though guaranteed in the Constitution is a mirage that Kenyans see but cannot touch. This is the philosophy that defines a possible Odinga presidency ad it is one that will ill-serve the Kenyan people. It must be resisted by all right-thinking Kenyans and the prime Minister reminded that though he has the power to ensure that the country is ungovernable, this is not his personal plaything that he can manipulate at will. We are a sovereign nation and we will not bow down to the Mighty USA or the Mighty Raila Odinga!

If he wishes to assure Kenyans of his good intentions, he must state publicly that he accepts the constraints placed upon the state by he Constitution, especially the Bill of Rights. He must acknowledge that military take-overs are abhorrent and should be avoided at all costs. He must distance himself from the Ugandan dictatorship that controls the country through he use of coercive military force. He must assure us that his calls for a local tribunal are not an attempt to scuttle the trial of the Ocampo Six at the Hague, but an opportunity to try all the other perpetrators of the PEV. If he fails to do this then, sadly, we must choose someone else as the President of the Republic of Kenya for he will not have our interests at heart, but his own selfish ambition.

Friday, December 17, 2010

Where is the middle class?

What is the role of the leader? Is it to play cheerleader to the masses or to show them the way? When the Member for Makadara rose to ask a question in the National Assembly regarding the manhandling by police of the Member for Embakasi, he hit the nail on the head. It cannot be that every time a Member of Parliament joins his constituents in opposing an unjust act of the state that he is hauled off in handcuffs on charges of incitement or disturbing the peace. Whatever ones feelings of Ferdinand 'Embakasi Style' Waititu, we must not forget that the good people of Embakasi elected him to serve in the Tenth Parliament, his warts notwithstanding.

In the Dark Days of the Moi Regime, it was the President himself who set the tone of public debate and who decided where the debate would go and how it would be conducted. Members of Parliament were mere voice-boxes of the President, and it was a brave MP who decided to actually take the role of representing his constituents' interests seriously. A surefire way of getting thrown out of the ruling party was to take positions that the party chairman and president had not, or would not. It is now emerging that Robert Ouko, the assassinated Foreign Affairs Minister, had decided to take on the role of the first anti-corruption crusader in Moi's Cabinet and this may be one reason why he was murdered in cold blood. That he carried out his campaign out in the open and in front of his constituents must have rubbed his fellow MPs the wrong way and very few of them were sad that he met such a brutal untimely end.

Public discourse has degenerated into a slanging match between supporters of different political personalities. The role of the middle classes is nonexistent. In their absence, the public arena is occupied by demagogues of all shades and stripes and the level of public debate is so low that even a child of five can participate and sound a sage. Speaking at a lawyers' conclave earlier this year, the Member for Gichugu called on the professional classes to take their rightful place in political parties, helping to craft ideology and policy at grassroots level. In her estimation, the days of the middle and professional classes crying foul over the misdeeds of their elected representatives are over. If they wish to see an improvement in public policy and development, it is imperative that they join political parties in numbers large enough that the party leaders do not walk over the rank-and-file with their ideas or ideology. She argued that their absence robbed the nation of valuable ideas that could be used to temper the rhetoric that politicians employ in political activity, ensuring that a considered opinion is always the watchword of political discourse. By defining 'politics' as the knowledge of government, she stated that it is the responsibility of every Kenyan to educate himself on what his government can or cannot do, in order to be in a a position to hold the Executive and his representative to account for his deeds or misdeeds.

For those of us who were not victims of the Moi System, it is imperative that we shrug off the apathy demonstrated by our seniors and undertook an examination of what it means to be a professional in the Kenyan political system. Many of us are professionals in our own rights, with white collar careers to think of. But we seem to have forgotten that our careers live or die by the state of the government. If the next Executive is tyrannically-minded, God forbid, our absence from the political arena will hurt us more than a studiously hands-off approach that we have applied thus far. As a member of the Law Society of Kenya, I would have no cause to complain if I did not take part in the activities of the Law Society when decisions were taken without my input. It is my responsibility as a member of the Bar to hold my Chairman's and the Council's feet to the fire if, in my estimation, they are overstepping their boundaries in managing the affairs of the Society. This should be the same philosophy that governs our relationship with our elected representatives and the State. While we may decry the methods that the Member for Embakasi employs to resolve the problems of his constituents, it must be asked where the middle class members of the constituency are. If they truly care about the image of their constituency in the eyes of the nation, it is time that they engaged more forcefully with their MP ad stopped sitting on the fence as if it were an Olympic sport. In the end, if they continue to do nothing, they will have no one to blame every time he is hauled off to jail on charges of incitement or disturbing the peace.

Thursday, December 16, 2010

Step Up to the Plate. Please. Pretty please!

Bavaria Motors and CMC Motors are upping the ante when it comes to executive saloon cars with the introduction in the Kenyan market of the latest generation BMW 5 series and the Jaguar XJ. DT Dobie is not to be left behind. last year it introduced the latest generation C and E series saloons. What is notable though is that the market has not developed to the level where sales of bent eights are routine.

While no none disputes that the bent six is a powerful power plant, it is time that all those members of the Fat Wallet Society started spending their enormous disposable incomes on something with a bit more oomph. The V8 and the V12 versions of these motors tend to be the most sophisticated and come with an array of features that would not be out of place on the deck of the Star Ship Enterprise. But it is the power that comes with an '8 or a '12 that makes them motors to desire. Take, for instance, the BMW M5 or the Mercedes-Benz E63 AMG. The phrase "with great power comes great responsibility" is apposite for these motors had power plants that would not have been out of place in a long-haul semi. The last generation M5 came with an absolutely mental 5 litre V10 that kept pulling when one had already run out of road. The epic battle of horsepower and top speed waged by the likes of BMW's M division and Benz's AMG are the stuff of legend. Throw in the perennial unknown, the Audi RS4, and it gets interesting in a hurry. The revival of jaguar by their new owners Tata Motors does not seem to have slowed down Jaguar one bit. The XJR promises to bring the battle to the the other three in spades. If only Kenyans spent the way Europeans did.

It is time we started eating our desserts first. A few courageous Kenyans have started buying up venerable motors on the international market. I've seen a Mazda RX8, an Audi TT, a Porsche Cayenne Turbo S, a third-generation E55 AMG, a Camel Trophy Defender 110, and a smattering of 300Cs. But, where are the 911 Carreras, the '64 Impalas, the '69 Mustang Fastbacks, the Caterham 7s, the Nissan GTRs, the Holden HSVs, or the Wiesmans? All those fat cat CEOs are letting the side down, concentrating almost exclusively on Land Cruiser LX470s, Range Rovers, Range Rover Sports, non-turbo Cayennes, S-Classes, and the ubiquitous Disco 3s and a smattering of 4s. Until the day we grow out of our obsession with the price-at-the-pump, Nairobi's packed roads will be populated by the likes of the Vitzes, the Marches, the Micras, sundry offerings from Korea, and the ever popular white Toyota Corolla now in its gazillionth iteration. And we will be the poorer for it.

Who are the others?

Until yesterday's press conference in defense of Ambassador Francis Muthaura, the Head of the Civil Service, I had never heard Silas Muriuki (PNU, Igembe North) speaking in public. What he had to say epitomises the head-in-the-sand approach to politics that holdovers from the Moi and Kenyatta Eras have perfected. In his mind, Luis Moreno-Ocampo, the ICC prosecutor, has been influenced by political motives in naming Amb. Muthaura as one of the six persons he wishes to try at the Hague for crimes committed during the PEV. In contrast to Amb. Muthaura's calm and measured response, Hon. Muriuki is of the opinion that the tribe supersedes national and international law. In this view, he has the support of the likes of Isaac Ruto (ODM, Chepalungu) and Gideon Konchellah (PNU, Kilgoris), both beneficiaries of the system that had been perpetuated by President Moi for nigh on 24 years. They would wish to see Kenya abrogate the provisions of the Constitution regarding international law and it place in the laws of Kenya.

It is easy for Kenyans to point and sneer a the Ocampo Six without considering the bellwether that this event was. In our history, no one has ever been called to account for his sins of omission or commission if they happened to be senior politicians or civil servants. When Tom Mboya, JM Kariuki, Pio Gama Pinto and Robert Ouko were assassinated, the State went through the motions of investigations, commissions of enquiry and trials, but the truth surrounding the assassinations has never come out. Even when Parliament recently investigated the Ouko Murder, no one was held accountable and the results of the Troon Investigation still remain a mystery to the millions of Kenyans interested in its findings. With the naming of his six suspects, Senor Moreno-Ocampo has re-written the rules of engagement for the Kenyan VIP. We should not allow this opportunity to pass us by.

It is time that we engage in an exercise of naming-and-shaming. We want to know the names behind the FPE Scam, Anglo-Leasing, Goldenberg, the Maize Scam, the Grand Regency Sale, and the names of those suspected to be traffickers in narcotics and other illicit drugs. We want to know the names of the persons behind the contracts awarded to multinational firms engaged in prospecting for oil and other minerals in this fair land o ours. We want to know the terms and conditions that have been imposed on the Government of Kenya in its dealings with international financial lenders and other governments. We want to know who are in charge of the programme of extraditing innocent Kenyans to hostile countries on suspicion of having committed international crimes. We want to know who was in charge of authorising the rendition of suspected terrorism suspects to Guantanamo Bay at the behest of Michael Ranneberger's Government. It is not enough anymore for the President or the Prime Minister or their Cabinet to issue statements that all is being done to right the wrongs that have been committed. Moreno-Ocampo has shown us that for there to be true healing, all the details of the events must be made public and all the actors in the transaction arraigned before a court of law and tried.

It may be too early to tell, but the calm that surrounded the revelations by the ICC Prosecutor are a harbinger for the calm that we will enjoy when the six are eventually tried for their alleged part in the chaos of 2007/08. This is but a small step in the right direction. The government has expressed a desire to re-start the process of establishing a local tribunal. This is a commendable proposal. But until the Judiciary is reformed, a new attorney-General, Chief Justice and Director of Public Prosecutions appointed, the local tribunal will not enjoy the confidence of the Kenyan public. Hon. Amos Wako has done all that he could do to ensure that establishment figures in Moi's and Kibaki's governments do not see the four walls of a court room for their crimes. The Constitution has shifted the balance of power away from the A-G to the DPP, and whoever is appointed the DPP must take the bull by the horns and act impartially and independently.

Ahmednassir Abdulahi, speaking at a CLE event earlier this month, expressed cynicism at the choice of the President and PM of the next DPP. In his mind, they will nominate a person who will act as a loyal gatekeeper, anxious to maintain the status quo and not upset the apple cart by going after all and sundry. He argues that the two principals have not demonstrated a desire to democratise the country; instead, they have always, but always, desired to be overlords of all that they see and command. The expansion of political rights that has been witnessed in this country since 2003 should not be squandered at the altar of a peaceful transition to democratic politics in 2012. It is in our best interests if we held their feet to the fire and demanded that they nominate a DPP who will not be afraid to go after the Big Fish (minus the PLO-like theatrics) regardless of the political fallout that may ensue. The likes of Silas Muriuki cannot keep holding the nation ransom over the perceived slight to their fellow tribesmen. That era is over. It is time we started to see ourselves as Kenyans and that all problems affect all Kenyans equally. Only then can we begin the journey to a rule-of-law based Constitutionalism.

Wednesday, December 15, 2010

The majority Leader is Key to Good Governance post-2012

Parliament is set to undergo a revolution in the manner in which business is conducted after the next general election. The Executive will not be represented in Parliament. The role of the Executive will be to govern, while that of Parliament will be to legislate. While the Senate will enjoy prestige, especially because Senators will represent a larger geographical area compared to MPs in the National Assembly, it is the latter that will have actual clout, and the Leader of the Majority Party will enjoy powers of patronage that had previously been the preserve of the President (and Prime Minister post-2008).

The Constitution separates the roles of the various institutions. The President and Deputy President do not have a place in the Legislative Branch of government. The members of the Legislative Branch do not have a place in the Executive Branch either. Neither of the two can hold positions of authority in the political party. Therefore, all three can play the roles that are ideally suited to them. The political party will be relegated to the role of managing the political process separate from the role of governing. Party chairmen are set to enjoy clout at the expense of sitting MPs or Senators in matters dealing with party ideology, party policy, and party management. The feared days of party disciplinary committees are set to return, but within the rubric of rules and regulations that all agree to live by.

Patrick Gichohi, the Clerk of the National Assembly, in this month's Nairobi Law Monthly, alludes to the important changes that will be ushered when the Congressional system takes effect in 2013. He describes the stalemate that President Bill Clinton found himself in after the takeover of Congress by the Republican Party after the 2006 mid-term elections when the government was forced to shut down for three months because the President and Congress failed to agree on a budget on time. It was the role played by Newt Gingrich that defined the relationship between the Executive and Legislative branches that will be the defining feature of Kenya's system when it comes to pass.

The Leader of the Majority Party in Kenya's Parliament will play a leading role in determining the success or failure of the legislative agenda of the Executive Branch. It is presumed that the President's and Deputy President's party will command a majority in the National Assembly and in the Senate. Therefore, a proper working relationship between the President and the Majority Leaders in either House will be crucial in shepherding the Executive's agenda through Parliament. If for whatever reason the President fails to inspire the Majority Leader to see things his way, his agenda may be held hostage to forces that he can neither control or intimidate. It will then be left to the party chairman to issue a whip regarding the matter, which either would be foolhardy to ignore.

But it is in the patronage powers of the Majority Leader that he steals a march of the President. The President cannot appoint anyone to the Cabinet or any other national post without the support of the Majority Leader as all his nominees must be successfully vetted and approved by the National Assembly. However, the majority Leader does not suffer from this constraint when it comes to making appointments to Parliamentary Committees. He can hire and fire at will, unless the Standing Orders are re-written to whittle down his clout. He will be free to decide who gets to chair which committee, even within the confines of the gender equity provisions of the Constitution, and only those Members of parliament or Senators who meet with his favour will serve as Chairmen. This is also the happy position that the Minority Leader finds himself in vis-a-vis the deputy chairmanships of these Committees. In all this, the President and Party Chairman have very little influence.

The success or failure of the President's agenda is very much in the hands of the Majority Leader. It is in this respect that reform of the political party becomes critical. If the party is clear on its ideology, on the policies that it will pursue if it comes to power, and on the necessity of playing by the rules, then the roles of the President and majority Leader will be complementary as opposed to confrontational. If political parties are not reformed to give the party memberships a bigger say on ideology or policy, the President may end up with a hostile parliament whether or not his party enjoys a majority or not. In the remaining period before the next general election, it is imperative that all political parties engage in a programme to reform these parties, with a view to pushing up their memberships, especially with the recruitment of middle-class professionals, as well as reforming their party constitutions with a view to democratising the entire process of nominating and supporting individual candidates and party officials. If this is not done soon, 2012 may mark the beginning of turbulent times in the relationship between the Executive and Legislative Branches which may herald the beginning of political turmoil that may imperil the whole nation.

The Ocampo Six do not deserve mercy

When William Ruto reassured his political base that the Hague Option would take up to 2090 to be concluded, he could not have imagined that Luis Moreno-Ocampo would move with alacrity. When the ICC prosecutor names his Hague Six, the political ramifications cannot be predicted. President Kibaki and Prime Minister Odinga held a Cabinet meeting yesterday, resolving, inter alia, to push for the formation of a local tribunal to try suspects of the PEV. Hon. Gitobu Imanyara has resurrected his Bill that floundered on the floor of the National Assembly after Members of Parliament cravenly refused to take a vote on it. The Minister for Justice tried twice too and suffered similar defeats to the Imanyara Bill. The chickens have come home to roost and it is time Kenyans prepared themselves for a change in the weather forecast.

Hon. Ruto has been the most vocal opponent of the ICC process. He has even undertaken to challenge the authority of the ICC prosecutor; he elected to challenge the process once it became apparent that the prosecutor would not be held at bay. In his frenzied legal maneuvering, he has realised that despite the support he enjoys in the North Rift, he may have cooked his goose well and truly. No longer are Kenyans willing to sit idly by while impunity stalks the land like a Colossus.

In 2007 when Kenyans went to the polls, it was apparent that both sides of the political divide were angling for a clean sweep of the nation. President Kibaki controlled the instruments of State but he did not have complete control over the country. The National Security and Intelligence Service warned him that regardless of the results of the polls, there would be violence. Instead of taking measures to ensure that lives and property would be protected, he allowed his cronies and acolytes to use the Administration Police, among other institutions, to subvert the will of the people. The stories of APs participating and influencing the course of particular Parliamentary races refuse to die down and this is part of the reason why the security chiefs are trying for all they are worth to stall the process of taking their evidence before Lady Justice Kalpana Rawal of the High Court of Kenya. Raila Odinga's ODM was not to be outdone either. Stories of ODM victories carried on the back of 100+% turnout have also refused to die down. The fact of the matter is, the two sides engaged in wanton and rampant electoral malpractices that retired Justice Johann Kriegler's assertion that we cannot know for certain who won have a ring of truth about them. Both sides engaged in unlawful acts and when the Prime Minister and his supporters call for the 'thieves' of the elections to be investigated as a cause for the PEV, they put themselves squarely in the cross-hairs of the ICC prosecutor.

During President Moi's reign, his word was law. He determined whether one had a political career or not. It was by his fiat that one lived or died and he used his power to ruthlessly crush those he deemed unworthy of his grace. There would be no question of a person's political career stalling without the president's say-so and this is the system that we have sought to overturn since President Kibaki's inauguration in 2003. Despite President Kibaki's many flaws, and they are manifest, he has done more than any other person to liberalise the political arena. When Luis Moreno-Ocampo names his suspects tomorrow, their careers will be over. It is inconceivable that men and women who used violence to perpetuate their political careers will survive the revelations by the ICC prosecutor. This is a good thing. Echoing what Sunday Nation columnist Phillip Ochieng has said, the tribe is blameless for the sins of the politician. For those who were schooled in the Moi way of doing things, this must come as a shock.

William Ruto and his supporters in the erstwhile Rift Valley who continue to hold on to the notion that the tribe is the best bulwark against a hostile political sea are slowly beginning to realise that the KANU way is over and done with. They do not have a political godfather to manage the political climate for them. They stand or they fall on their own merits. If Hon. Ruto is named in the indictments tomorrow, he has no one to blame but himself. Sure his political allies, including the Prime Minister, have turned their backs on him. But this is only because he started believing his own press. Whether he remains a loyal, if disgruntled, member of ODM remains to be seen. Whether his alliance with Vice-President Kalonzo Musyoka and Deputy Prime Minister Uhuru Kenyatta survives the indictment is now in doubt. What is for certain is this: if he is named, he can date the day and the hour when his political career came to an end. This will be the same for the names that will be linked to anyone one connected to the Ocampo Six. It is only a matter of time before all comes out as rats desert the sinking ship. These people do not deserve our sympathy or our mercy. If they are convicted, it is important that their convictions will be on the basis of the thousands of lives that were lost, the thousands of families that were destroyed, the thousands of women and children that were sexually abused, the billions in shillings that were lost and the hundreds of thousands of Kenyans who were driven from their homes in the middle of the night and have lived like wild animals since the dark days of December 2007.

Monday, December 13, 2010

The lessons of Wikileaks

Julian Assange and his Wikileaks have ruined Hilary Clinton's and Barack Obama's end-of-year party. By accepting over 250,000 diplomatic cables from a disgruntled soldier and posting them online, they have exposed US diplomacy for what it is - a continuation of war by other means. President Kibaki, Prime Minister Odinga and Vice-President Musyoka were today unanimous in their condemnation of US diplomacy, and they reserved special, if allusive, attention for the cables that Ambassador Michael Ranneberger sent back to the State Department regarding various issues they would rather have remained un-mentioned. Prime Minister Odinga set the tone last week when he dismissed the leaks as gossip between the Ambassador and his master back home. Like the President, he chose to gloss over the fact that the Ambassador hit the nail on head when he described the Grand Coalition government as one of the most corrupt in the world, if not the most corrupt in Africa.

It has always been an open secret that the Grand Coalition was founded on a false premise and sustained on principles that the people of Kenya would find unpalatable. If you recall, when they were 'negotiating' the settlement, they started quibbling over Cabinet, Civil Service and parastatal appointments with an eye to shoring up their bases. ODM was holding out for a 'fair' distribution of Cabinet portfolios while PNU wanted to retain the most lucrative and powerful. The appointments made by Amos Kimunya and Henry Kosgey demonstrated like nothing else will the corrupt foundations of the Grand Coalition Government. The Anglo-Leasing scandal is yet to be satisfactorily put to bed. So, the Principals have no basis for alleging that the Ranneberger Cables are anything but the Gospel Truth.

The attacks visited upon the US diplomatic corps for their un-diplomatic Diplomatic Cables are hot air. The fact is, it is the responsibility of diplomats to advise their governments on the true state of affairs of the countries where they serve for them to make the best decision possible regarding their international engagements. Ambassador Ranneberger does not owe fealty to President Kibaki or Prime Minister Odinga, but to Barack Obama and the US of A. The US government cannot expect anything less from the diplomats serving in Washington DC or New York. It is the nature of the game. This is a game for adults not for children in need of adult supervision and if the Principals cannot grasp this simple fact, it is time we arranged their early exit from the seats of power.

Kenyans are tired of being lied to by their Government. We know that many Cabinet Ministers and civil servants are corrupt, we just don't know who. PLO Lumumba will do his thing, but if he does not hand down indictments against the masterminds behind Anglo-Leasing, Goldenberg, the Maize Scam, the Free Primary Education Scam, the Triton Scam or any of the major corruption-related deals in government, then he too needs to go. Who really believes that Matthew Iteere, Kinuthia Mbugua and Michael Gichangi will chase down the purveyors of illicit drugs and bring them to book? If you do, then I have a bridge I am willing to sell at a fair price!

The Wikileaks revelations have shown that behind the facade of bonhomie cultivated by Kenya's diplomatic corps lies the true nature of their government and how it is seen by foreign leaders. Despite the vitriol directed at America's diplomats, the Kibaki government has retreated to a familiar theme: sloganeering and vague statements with no substance or purpose. I think what the American ambassador said about our President and the Prime Minister is unconscionable, but he does not work for me. The President and PM do. It is time we held their feet to the fire and demanded actual accountability. From the President on down. No one should be above the law, but these people behave as if Kenyan citizens are an irritant to be scratched and ignored. We must remind them that their sins of omission and commission did not go unnoticed and that the day of reckoning is nigh. We have weighed them and found them wanting and it is time for them to shape up or ship out. The Second Republic will not relive the mistakes of the Moi or Kenyatta Regimes. If we are to make mistakes, let us make new ones.

Sunday, December 12, 2010

Equity cannot exclude homosexuals

Prof. Makau Mutua is wading into uncharted waters when he declares unequivocally that the Constitution protects the rights of homosexuals, even the right to get married(Why Kenya's new Constitution protects gays, Sunday Nation, December 12, 2010). However, I can find no flaw in his argument. Charles Kanjama argues that the wages of deceit by the Prime Minister and those who stood on the Yes side during the referendum campaign (Wages of deceit catching up with leaders on new laws, Sunday Standard, December 12, 2010). I can find no flaw in his argument either.

Prof. Makau teaches at the State University of New York in Buffalo, New York in the USA. He has spent a considerable portion of his professional career in the United States and is, therefore, invariably familiar with the Doctrine of Unenumerated Rights, an American constitutional principle that holds that rights that are not explicitly excluded are protected by the Constitution even if they have not been enumerated (written) in the Constitution. Mr. Kanjama is right - the drafters of the Constitution used ambiguous and unclear language in the Constitution, especially the rights of a person to marry another person of the opposite sex. Therefore, the pronouncements by the politicians campaigning for the ratification of the Proposed Constitution did not tell the whole truth when they stated that the Proposed Constitution did not permit gay marriage.

Prof. Makau insists that Articles 27 (1), 27 (4) and 45 (2) must be read together if the rights of homosexual couples are to be protected. He is right when he insists that Art. 27(1) applies to all persons regardless of their sexual orientation or, indeed, their sexuality. He however omitted to state that Art. 27(4) is not exhaustive; that even if we were to assume that Art. 27(1) did not apply to all persons, Art. 27 (4) would of necessity include sexual orientation as a ground for which discrimination could not be based. The use of the word 'including' in Art. 27 (4) before the grounds enumerated in the Article ensures that the Courts have the jurisdiction for expanding the grounds they can rely on in protecting Kenyans from discrimination, including sexual orientation. Art. 45 (2) protects the right of heterosexual couples to enter into the institution of marriage. It does not, however, prevent homosexual couples from so doing. The right of a homosexual couple to get married is an unenumerated right which the State, other any other person or authority, cannot take away, not even the Prime Minister. He is also right when he states that because of the promulgation of the Constitution, the provisions in the Penal Code criminalising homosexuality or homosexual acts are now ultra vires the Constitution and cannot be enforced by the State or the Courts. He should have added that it is now the responsibility of the State to protect the rights of homosexuals, bisexuals, trans-sexuals, asexuals to engage in consensual lawful acts, whether State officers agree with their choices or not. This will be the challenge of the nation - to enforce the bits of the Constitution that the majority considers to be immoral to protect minorities, such as they are, from the abuse of the majority.

Mr. Kanjama points out to a reality of the political terrain in Kenya. It is impossible for the political class to speak the truth in the pursuit of their objectives. During the referendum campaign, both sides engaged in such wanton and rampant distortion of the truth that it is almost impossible to imagine that they remember the positions they took regarding specific items in the Proposed Constitution that they either agreed with or disagreed with. What is unconscionable is that both sides agreed that homosexuality was 'un-African' and that it should not be permitted, but that they failed to take any steps to ensure that the articles they felt could permit homosexuality to thrive were either amended or expunged in toto. This was not a matter in contention between the two sides but in their desire to pull a fast one over the other, they allowed the bigger picture to be distorted. Now both sides must live with the choices that were made and make the best of a bad situation.

The Prime Minister's recent rant against homosexuality and homosexuals, equating their choices as 'mad', exposes him to charges of hunting with hounds while running with the hares. Is this what is expected of him when he becomes the President and Commander-in-Chief in 2013? The Member for Eldoret North was given an opportunity to ensure that a Special Tribunal was created to try cases related to the Post-Election Violence of 2007/08, but he chose 'the Hague Option' and now he is crying foul when his projections of an 80-year investigation have been found to be way off the mark. His accusations against Luis Moreno-Ocampo have the whiff of panic and it is time he resigned himself to the process if he indeed is a suspect in the violence that killed thousands, displaced hundreds of thousands (who are yet to be re-settled or compensated) and led to the loss of billions in property and earnings. The Member for Kitui Central has discovered that there are no sacred cows where the Constitution is concerned and the provisions on leadership and integrity must be enforced ruthlessly whether one is a 'reformer' or a woman. Her actions in the Ministry of Water and Irrigation may have been above board but there is no doubt now that corrupt deals have been concluded while she was the Minister in charge and that indeed, some companies linked to her relatives benefitted from the Ministry's tendering process. She has no option but to resign while full and impartial investigations are carried out by the relevant authorities. He relationship with the President or the Prime Minister is immaterial to her guilt or innocence. They cannot declare her white as the driven snow for they are not the authorities charged with determining her guilt or innocence.

The implementation of the Constitution is not a theoretical exercise for in its implementation are significant changes that will be for the benefit of all Kenyans. Prof. Makau and Mr. Kanjama are right to demand that all Kenyans keep an extra vigilant eye on all the players in the implementation process. This is no time for Kenyans to go back to the habitual selves and get more engaged in the process. Even if the final bill leads to higher taxes, it should be in the knowledge that in the years to come, no Kenyan will escape the attentions of the Kenya revenue Authority. If our leaders bore the same costs of government that we do they would take all steps to ensure that the tax-burden was shared equitably and that the cost of government was radically reduced. Then the objective of the Constitution of creating an equitable society would be realised for all, even homosexuals.

Tuesday, December 07, 2010

Hon. Wamalwa will come to bad end

The intended rally headlined by Eugene Wamalwa and Maina Njenga at Kamukunji raises more questions than it answers. Hon. Wamalwa, brother to the late Michael Christopher Kijana Wamalwa and his political successor in Saboti Constituency, has over the past year laid claim to the presidency on the basis that his brother had been promised the chance to succeed Mwai Kibaki 'when the time was right'. Mr. Njenga spent years behind bars, convicted of the unlawful possession of a firearm, while also awaiting trial on charges of murder and attempted murder. He was later released after the State was unable to proceed with his prosecution. 

During his incarceration at Naivasha GK Prison, it was variously alleged that Mr. Njenga continued to helm what was authoritatively claimed to be a pan-national, quasi-religious, organised-crime organisation that had and continues to have tentacles in the transport sector, narcotics, gun and human trafficking, and that even from behind bars, he was responsible for murders that were traced back to the proscribed Mungiki sect. 

Since his release from prison once the prosecution on the capital offences ceased, Mr. Njenga was at various times linked to national politicians, including the Prime Minister (who apparently, had quietly recommended his release) and various politicians and businessmen in Central Kenya and the Rift Valley. Before the Yes campaign kicked off in earnest, Mr. Njenga shared a dais with President Moi at a 'peace rally' in the Rift Valley. He was a stalwart supporter of the Yes campaign, though it remains unknown how much money he contributed to the effort. 

His wife, who was murdered while Mr. Njenga was in prison, was buried in an ostentatious ceremony attended and officiated by religious leaders of no mean repute, including Bishop (Dr.) Margaret Wanjiru, who, coincidentally, was the one who 'counselled' him on religious matters while in prison and baptised him after he was released from prison. He demonstrated his Christian penance by leading over 3,000 ex-Mungiki youth to join the Jesus is Alive Ministries.

This long introduction is meant to demonstrate the relative strengths and weaknesses of Hon. Wamalwa and Mr. Njenga, for one is the leader and the other the acolyte. All that Hon. Wamalwa has going for him is a political lineage that is inherited from his more charismatic late brother. He has no famous (or infamous) Bills to his name in Parliament. He is not associated with a national movement or programme to address some specific national issue. His only claim to the presidency is that his brother would have been Kibaki's natural successor had he not died prematurely. Hon. Wamalwa, unlike his late brother, is a lightweight political actor without a credible political, economic or professional constituency to his name. 

Mr. Njenga on the other hand, despite his incarceration in prison for five years, still allegedly controls one of the most effective organisations in the country. It is capable of mobilising youth in the tens of thousands. It is capable of organising them into either an unruly mob or a disciplined crowd. It is capable of generating staggering amounts of cash and it is more than capable of laundering it in imaginative ways. He commands, if not the respect, the acknowledgment of other players on the national political scene. Mr. Njenga is a heavyweight capable of engaging in political action at the national level with other national politicians as an equal.

The Kamukunji rally, according to the ads placed in the Star, convey the impression that it is the 'youth' who are being encouraged to take a more active role in political activity in Kenya, and that Mr. Njenga believes that Hon. Wamalwa is best-placed to lead the way. It is clear that Mr. Njenga is the one calling the shots. Only he can mobilise the thousands who will attend the rally, perhaps, even, tens of thousands. Only he can command them to remain peaceful. And only he will determine whether or not they accept Hon. Wamalwa as their standard-bearer.

Comparisons with the Mwai Kibaki-Kijana Wamalwa union of 2002 miss a crucial point. When it was formed in mid-2002, the alliance was a political recognition that disunity in the top ranks of the Opposition had gifted President Moi electoral victories in 1992 and 1997, despite KANU's share of the total vote declining with each multi-party election. Mr. Njenga's and Hon. Wamalwa's alliance is a tribal alliance that is taking a cynical approach to political gamesmanship. Hon. Wamalwa stands to lose regardless of the outcome of the alliance; Mr. Njenga can only gain, especially from the legitimacy conferred by association with the novice politician, with limited political and professional qualifications (and successes) who is seen as a no-hopper come the 2012 presidential contest. Is this the reason why Hon. Wamalwa will come to a bad end?

Sunday, December 05, 2010

A new way of looking at Martha

CLE seminars tend to be as dull as ditch-water, but yesterday's was the bomb! Martha Karua, Ahmednasir Abdulahi and Chacha Odera made presentations that compelled participants to re-think some of their dearly held notions of what it takes to be a practicing advocate or a politician. But it is Martha Karua's presentation that makes for thoughtful reconsideration for it brings to mind the haste with which we take to media reports about politicians. In our defense, in the absence of credible or reliable alternative sources of information, we are compelled to make up our minds based on information that is disseminated by the print and electronic media.

Hon. Karua made her presentation on the challenges that young lawyers in practice will face, especially in drawing the distinction between their work as advocates and their work as activists, something that the estimable Chacha Odera elaborated in his usual erudite way. She pointed out that when she entered private practice, having served as magistrate for six years, the practice was predictable: you could always tell the chances of the success or failure of a matter based on the reading of the facts and of the law, regardless of the professional competence of the Judges or Magistrates before whom that matter would be listed. However, 10 years after she started practicing, it had become impossible to predict what would take place in the courts as the judges had become less than honourable and the biggest cash-filled brief-case determined the success or otherwise of a matter before them. All this is now moot; it is in her responses to specific political questions that the good lady from Kirinyaga kept the hall in thrall.

Responding to questions regarding what she knew, when she knew it and what she had done since Gidion Mbuvi's public travails became fodder for the media, she defended him as an articulate and intelligent young man. She pointed out that the allegations made against the Member for Makadara were only made after he had beaten establishment figures during the recent bye-election. I must admit that I was among those who called for a fuller explanation of Hon. Karua's role in the whole saga, and I am now satisfied that even if Hon. Mbuvi is found to have transgressed the law, she cannot be held liable for the actions of the Hon. Member for Makadara.

In her presentation, Hon. Karua has raised pertinent issues that demand our full attention and consideration. In the absence of middle-class professionals from the rank and file of political parties, what do we expect when the likes of Gidion Mbuvi are nominated and proceed to successfully contest elections? If we are so appalled by the manner in which they conduct themselves, it is our responsibility to join and influence the manner in which political parties are managed. She pointed out that political parties in Kenya are usually vehicles for the rich party leaders, where they make all the decisions because there are no voices among the rank and file capable of articulating or advocating for alternative party policies or activities. And she is right.
If the middle-class residents of Buru Buru were card-carrying members of NARC-Kenya, and if they actively participated in the affairs of the party, and if further still, they actively participated in the bye-election, the chances that a chancer without a political background being elected as their representative in the National Assembly would have been reduced significantly. He may have carried the day, but he would have been compelled to tailor his rhetoric to suit the needs of this vocal middle class bloc with a view to satisfying their demands or speaking to their needs as residents of the constituency.
In the end, the fact that they have chosen to take such an apathetic approach to political participation is the reason why their attempts at outrage at the exploits of Mike Sonko ring hollow. They are to blame for the situation in which they find themselves and it is their responsibility to reverse the trend. We cannot have it both ways - we cannot keep to our old, hands-off ways when it comes to politics and then turn around and complain that crooks of all shades are dominating the political arena. To bitch about Sonko's election, we must participate in the political process: join parties, participate in their nominating conventions and other activities, shape party policies, shape party ideology, and finally, vote every time an election is held. And if still it appears that there is corruption in the party, then we can truly state that the political process is beyond salvation. Until that day, we must live with the choices made for us by others.

Thursday, December 02, 2010

The Bill of Rights and 2012

Chapter Four, the Bill of Rights, is the foundation of the Constitutional order and its protection is the duty of all Kenyans, including the State, its agents, agencies, departments and officers. In Article 19(3)(a), the Constitution provides that the Rights and Fundamental Freedoms "belong to each individual and are not granted by the State." Article 20 begins "The Bill of Rights applies to all law and binds all state organs and all persons." in sub-article (4) it states that "In interpreting the Bill of Rights, a court, tribunal or other authority shall promote - (a) the values that underlie an open and democratic society based on human dignity, equality, equity and freedom; and (b) the spirit, purpose and objects of the Bill of Rights."

When Kenyans were unconstitutionally 'renditioned' to Uganda to face charges of terrorism, murder and attempted murder, only the Kenya Human Rights Commission did anything about it, going to court and obtaining a judgment that found that the Kenya Government had acted outside the law, and that the Commissioner of Police was responsible for the fate that befell the accused persons. Nothing was done. Nothing is being done. Kenyans are still facing charges in Ugandan jails and their government has all but abandoned them.

It is time someone brought charges against the Government of Kenya, demanding that the Prime Minister, who does not enjoy immunity from prosecution, face criminal charges related to the abuse of the Constitution, specifically Articles 19, 20, 21, 27, 28, 29, 31, 36, 39, 48, 49, 50, and 51. The Prime Minister has, on numerous occasions, declared he has the authority to co-ordinate and supervise the execution of the functions of the the government, including those of ministries. This is the law and it was enshrined in the former Constitution to give it maximum effect. In his"co-ordination and supervision", the Prime Minister, therefore, must have been informed of the plans that were executed to transport Kenyans, against whom no criminal charges had been preferred in this country, to a hostile foreign country on the basis of accusations and information provided by that foreign country without the benefit of the protections accorded to those Kenyans by the Constitution, a Constitution that received the spirited endorsement of the Prime Minister himself. 

In the period since these Kenyans were illegally extradited, the Prime Minister has done nothing to reverse the actions of the Minister of State for Internal Security and Provincial Administration, nor those of the Minister for Foreign Affairs or the Attorney-General. As a result, Kenyans innocent of any crime on Kenyan soil continue to face a hostile criminal justice system in a foreign country without their government coming to their aid or instituting legal proceedings to secure their release and transport back to their mother country.

The Prime Minister must be calculating that there will be minimal political fall-out from his gross dereliction of duty. So must the President, who, because of the immunity he enjoys while still in office, will escape the sanction of all right thinking Kenyans for the part he has played in this sorry affair. This is a pattern that is repeating itself in the interpretation and implementation of our Constitution. The Prime Minister heads the largest faction in parliament, but his authority over the MPs of the Orange Democratic Movement is tenuous at best. He has his eye so firmly on the 2012 presidential elections, where he hopes to emerge victorious, that he has taken his eyes off the importance of the rule of law.

The National Assembly too, has abdicated its duty to be the defender of the fundamental rights of Kenyans. The Members of Parliament, especially those who are the representatives of the Kenyans extradited to Uganda, have done nothing to secure their release, being preoccupied with the insignificant question of boundaries and memberships of constitutional Commissions. The national assembly has not censured the government or any of the members of the Executive branch for the gross violation of human and political rights of the Kenyans involved. All hope to be returned to their secure sinecures in the august House without too much trouble.

Many have lamented the fact that the Government of the United States of America has not ratified the Rome Statute that established the International Criminal Court. The reason is that many American lawmakers were afraid that their citizens would be subjected to hostile and partisan legal processes in a tribunal that they did not have control over. This is a matter over the International Criminal Court. While the US has many extradition treaties with many nations, it presumes that its legal framework is robust enough to deal with criminal matters, even if they be trans-national. The Government of Kenya, has not even bothered to ensure that its legal processes are reformed to be able to legally extradite Kenyans accused of offenses in other countries.

Until those Kenyans are returned to their homeland, or in the alternative, until all legal processes are applied to prove that they deserved extradition in the first place, no Kenyan MP should be allowed to stand for re-election in 2012. None should be allowed to hold high office. None should be allowed, in short, to have the power to determine matters of freedom. We have been betrayed by the President, the Prime Minister, and indeed, by the Government of Kenya. If they cannot observe, respect, protect, promote or fulfill the rights and freedoms in the Bill of Rights, what is to stop them from completely ignoring all the other Chapters in the Constitution? Their good will? Give me a break!

Why the state is not welcome in my home

When Pope Benedict XVI was reported to have endorsed the use of condoms to prevent the spread of HIV/AIDS, Kenyan media, as usual, concentrated on the more salacious bits of the announcement, especially as the Holy Father's reported remarks were an example directed at male prostitutes. None chose to look at the fundamental shift in Roman Catholic doctrine that had been initiated by the Pope, especially when one considers his position on sexual relations within marriage, which he stated are an expression of love between couples. For centuries, Roman Catholic doctrine held that sex was for procreation alone and that it a sin of the flesh where sex is for other purposes.

The Holy Father, unwittingly, opened up debate on the matter of legislating moral issues. In the context of the latest assault on homosexuality in Kenya, the Pope offers us a unique opportunity to debate whether the personal moral failings of man can be legislated away, especially when they are not of intrinsic harm to society or individuals. Evangelical Christians tend to interpret the Bible in literal terms, especially when it means the continued and continuing growth of their flocks. As a result, their positions on homosexuality, as on many moral failings, are dogmatic and hard-line. For instance, they would probably call on a law to punish the seduction of married women. A simple thought exercise should suffice.

The Ten Commandments were handed down to Moses by the Almighty Himself on Mount Sinai. Among the commandments are some that would be very difficult to investigate or enforce. How do you know that a person has not coveted his neighbour's house, or his wife, or his manservant, or his maidservant, or his ox, or his ass? And even if you did, how would you enforce a law criminalising such covetousness? The Bible is the Word of God, to many Christians, and to non-Christians, it also seen as a guide to how a man could live his life in a moral and spiritual way. To be good, is to follow the Word of God; to be bad is to sin and endanger your soul for all eternity. It will be the same with the writings in the other Holy Books of the Jews and the Muslims. After all, Abraham is the father of all these faiths.

During the Referendum campaign, many Kenyans of Faith, and many who chose not to disclose their faiths, were persuaded that the Constitution was a bad one because it seemed to permit homosexual marriages. Despite the assurances of the Committee of Experts, they refused to accept that even despite the lack of a definite ban on such unions, that they were not permitted; they wanted an explicit sentence stating that homosexual marriages are prohibited. They did not get their wish, and many are still living with the sense of betrayal that the refusal engendered. It was the same with abortion, and many still harbour wishes that the Constitution should be amended to explicitly ban these two issues. What they refuse to accept is that the Constitution of Kenya was not drafted to satisfy the moral and spiritual needs of Kenyans of Faith, but it was meant to provide the basis for the governance of all Kenyans, secular and non-secular alike. It is a sad fact that Kenya, while it may be home to millions of Christians, is not the spiritual home of Christians or Muslims alone, but is home to many faiths and to many people who do not profess any specific faith and that all their needs must also be considered in the interpretation of the Constitution.

It is a good thing that the process of amending the Bill of Rights is tedious and expensive. This is as a result of the abuse of office by the previous regimes that gave us a bastardised version of the Independence Constitution, one where Kenyans could be held in detention without trial and one where Kenyans could be deported to parts unknown to undergo procedures unknown at the hands of non-citizens, all in the name of 'The war on Terror'. The Prime Minister was wrong to indicate that the state would indulge in abuses against the Constitution simply to satisfy the blood-lust of a vocal minority of Kenyans opposed to homosexuality in all its forms. While it is true many Kenyans find the practice abhorrent, just like the Almighty does, it is not true that many are unduly bothered by what goes on between two consenting adults in the privacy of their homes. Kenyans must open and participate in the debate regarding the powers they would like to see the state exercise in the name of morality for in that debate, if we all agree that the state has a place in our private lives, then it will be with our permission that we allow the state to enter our bedrooms. For if we must allow the state to investigate and punish acts of homosexuality, then we must also allow the state to investigate and punish acts of sodomy or fellatio. After all, they are carnal acts against the order of nature too and are frowned upon by the Good Lord Himself.

Wednesday, December 01, 2010

2013 is a different country

Those whom the gods wish to punish, answer their prayers, so the saying goes. Kenyans prayed for a new Constitution, any Constitution, and the gods answered our prayers with this bastard child. Look at how our revered Members of Parliament are gorging themselves on articles and sections as if these are the be-all-and-end-all of all creation. Now you have some lunatic proposing an amendment to extend the life of the discredited Ligale-led IIBRC. Another pair of nutters have gone to the High Court asking, among other prayers, that the National Assembly be prorogued because the National Assembly has failed to appoint the CIC and the CRA.

It is time for sanity to prevail, if it ever did, in the hallowed halls of the national Assembly. Everyone needs to kick back, relax, take a deep breath, and start over. Whatever one thinks of Hon. Ruto, none can deny that he faces challenges that have nothing to do with the ratification of the Constitution. Nor do the problems that assail the Honourable Member for Sirisia regarding his 'stepping aside'. The Member for Mathira has stated that he would rather not belong to the august House if it censures a sitting Judge for orders that she has granted in the matter related to the boundaries review. the Right Honourable Prime Minister has taken an acetylene torch to the gay community with a fervour that was absent during his pro-Constitution roadshows. The good lady from Kitui Central is facing her own road-to-Damascus moment and she refuses to heed the voice of the gods when they demand her resignation. Or 'stepping aside' in Kenyan parlance. None seems to want to admit that 2013 will be a different country.

Mr. Ligale has already set the cat among the pigeons. It is easier to create than to destroy and our political class knows this. Regardless of the feelings of Isaac Ruto and Ephraim Maina, the 80 constituencies that Ligale and his team created are here to stay. No amount of meeting and caucusing and political deal-making will reverse the creation of Kibra or any other new constituency. Rumours that the PM had a quiet word with the Commissioners, or the Commission's chairman, to create a Constituency tailor-made for his son Fidel, will be proven (or dis-proven) when we go to the polls in 2012. Whether Mike Sonko will be around to see the general elections will depend on how innocent he actually is. Or the permanent disappearance of all investigation and court files related to his current and past trials and tribulations. Whether Maina Njenga will give up his evangelical activities for the opportunity to govern Nairobi City County will depend on whether he sees profit in being a County Governor rather than in being the Chief Executive Officer of, what some claim, the best-run, most highly motivated, quasi-religious organised crime outfit in the history of the Republic, First or Second. Whether Uhuru 'UK' Kenyatta's alliance with Brother Stephen and Hon. William 'the king of the Kalenjin' Ruto will survive the attentions of the PM, will also depend on whether the PM has a hand in shipping off UK to The Hague to answer hard questions from one Luis Moreno-Ocampo. 2013 is a different country.

The political contours of 2012/2013 remain shrouded in uncertainty as MPs and other political animals get accustomed to the changed nature of governance. Assuming that each county shall have a 30-strong membership, there are, at a minimum, 290 National Assembly seats, 47 senate seats, 1410 county seats and about 3,000 council seats in the offing. This does not count the Executive positions and executive committee and cabinet positions to be shared between the political and professional classes. And then you have the Executive appointments to national security, diplomatic and parastatal positions that will be made. 2013 is a different country.

So, chill out, unwind, take a load off and keep an eye on the ball for when the real horse-trading begins, you will be shocked at how accommodating and considerate the warring parties will be. Wetangula, the two Rutos, Ephraim Maina, Beth Mugo, et al will suddenly discover a new vocabulary to describe the IIBRC or its successor and they will all live with their deals. Until the next conflict, that is.

Listen to what Gen Z is saying. Hear them.

Kenyan Gen Z seized the moment that was made for them and threw down the gauntlet at the feet of the Kenyan State. With the memory of the bi...