This Is Africa

It is an arrogance that belies the truth behind it, but Martha Karua is right. If Uhuru Kenyatta is unable to stand on his own two feet and face her in an equal challenge, there is no reason why she should acknowledge his presence in the political arena. In Central Kenya, the House of Mumbi is being rend asunder by the political forces that are determined to anoint Uhuru Kenyatta as the Chosen One to lead them to political victory over the Prime Minister. In his way stand Martha Karua, possibly Peter Kenneth, and despite his roots in the Rift Valley, Prof. George Saitoti. Mr. Kenyatta has demonstrated that he does not appreciate the place he occupies in Central Kenya politics, holding firmly to the coat-tails of the likes of John Michuki, Mwai Kibaki and the rabble-rousers egging him on in his quest to be Kenya's fourth President. He is the heir to a political legacy that stretches back to the bad old days of colonial rule and yet he behaves as if he is a Johnny-come-lately, incapable of articulating a thought that is his very own. He would make a terrible President of the Second Republic.

Mr. Kenyatta's allies in the inaptly named KKK Alliance are a pair of chancers whom Kenyans would be well rid of. Vice-President Kalonzo Musyoka has made a career of fence-sitting and betrayal that is unlike in the worlds annals of political action. Since his start in 1985, he made a career of defending the image of President Moi and his regime, rising through the party ranks and holding positions in government that should have guaranteed that the people of Mwingi enjoyed the best in terms of government largesse. Instead, Mwingi is a picture of abject despair and poverty, where men and women must travel inordinate distances to access basic healthcare services or find drinking water. Hunger stalks the land and children, the young and the old are dying a slow and painful death. Yet, Mr. Musyoka imagines that his record in government, serving and defending two presidents, is enough to elevate him to the ranks of statesmen and women of the world. His very nature would doom any presidency in which he was the man in charge.

William Ruto, the embattled former Minister for Higher Education, on the other hand, has made a career of spotting opportunities and exploiting them to his advantage. In 1992, he took advantage of the YK'92 machinery to make a name for himself. In 2002, he saw the way the wind was blowing and abandoned the KANU ship of state for the uncertainty of the NARC revolution and emerged unscathed and even more popular. In 2005, he joined Raila Odinga in opposing the Wako Draft and the Orange Democratic Movement was born. In 2007, he stood steadfast at Raila Odinga's side and was rewarded with a Cabinet position that guaranteed he would have a voice in government at all times. Now, he has jumped ship again, spotting another opportunity in cutting the Prime Minister down to size and ensuring that he never gets to sit in State House. He is the quintessential political operator and his opponents underestimate him at their own risk. A Ruto presidency would be a site to see and it is unclear whether he is cut from the same cloth as President Moi or he is an operator par excellence, his own man. While his troubles in the Anti-corruption Court and the ICC are all the rage among the commentariat, it is yet to be seen that he is defeated and on the back-foot. Mr. Ruto is the only one among the three who has the capacity and capability to bring the war to Mr. Odinga's doorstep.

Whatever else prevails, and until Mr. Ruto is shipped off to The Hague in hand-cuffs, the 2012 battle will be between him and the Prime Minister. 2007/08 was billed as the war between the Kalenjin Nation and the House of Mumbi and the House of Mumbi came out the sorrier and poorer. That Mr. Ruto has managed to create the impression that it is all the Prime Minister's fault that IDPs still languish in camps us a testament to his political skills. That the Mau Rehabilitation Programme has come to a screeching halt is proof of the power he wields in President Kibaki's government. That Kalonzo is busily spearheading the diplomatic efforts to defer Kenya's case at The Hague for a year is proof that he understands the fears ad jealousies that motivate Mr. Odinga's other opponents. Mr. Ruto is slowly gaining a reputation similar to that of President Moi's, capable of seeing far like a giraffe, and the adaptability to change his stripes whenever his career is threatened with extinction. Even outside the Cabinet, he continues to exercise the minds of his opponents whenever he opens his mouth. The political evolution of Mr. Ruto is a sight to behold.

Prime Minister Odinga has had an interesting political career. President Moi detained him on numerous occasions, yet he stuck a compromise with the former president and joined his Cabinet. He had always wanted to be president, but in order to bring down the KANU system, he endorsed Mwai Kibaki in 2002 and saw the end of KANU as a political power. Even when he was betrayed by the NARC regime in 2003, he still managed to present a show of strength and managed to kill off the much despised Wako Draft. In 2007 he was cheated of victory and yet he now shares power in an uneasy coalition with Mwai Kibaki. Mr. Odinga's popularity cuts across ethnic borders and economic classes. He is just as popular in Luo Nyanza as he is in the slums of our teeming metropolises and in the boardrooms of corporate Kenya. The 2012 contest is his to lose.

Of course it could all go pear-shaped in 2012. If Mwai Kibaki, who still commands the armed forces and the security services, decided to hang on despite the Constitution, Kenya would be plunged into a period of turmoil and anarchy. While he has indicated that he will hand over power peacefully in 2012, the events of 2007 and 2008 must give us pause and consider that he may have such great animus against his Prime Minister that he may feel compelled to hang on to power in order to prevent the PM's rise. The story of Africa is the story of presidents who need to be pushed out by the masses and Mwai Kibaki may yet prove that he has form too. So while we keep an eye on the Raila-Ruto contest, let us not forget that This Is Africa!

Can they feel us?

For a people used to having things easy, the implementation of the Constitution has proven rather trying over the past six months for Kenyans. First, there was the spat over the Ligale Commission's delimitation of 80 new constituencies. That matter has never been successfully put to bed. Then came the appointment of two commissions, the Commission on the Implementation of the Constitution and the Commission on Revenue Allocation. Now we have the spectre of the President and Prime Minister squabbling over the appointments of the new Chief Justice, the Director of Public Prosecutions, the Controller of Budget and the Attorney-General. This too, as the country celebrates three years since the signing of the National Accord, and its subsequent entrenchment in the former Constitution, with its creation of the temporary offices of the Prime Minister ad Deputy Prime Ministers.

A lot of water has passed under the bridge since 28th February, 2008. The Grand Coalition Government is soldiering on despite the squabbles of the two Principles and their foot-soldiers. Indeed, even Jeremiah Kioni and his colleagues threatened to pull PNU out of the coalition due to what they perceived as the Speaker of the National Assembly's open bias for their ODM partners.

As Chief Justice Evan Gicheru serves his last day on the Bench, we must ask ourselves whether we are capable of navigating the treacherous political waters that have been roiled by our politicians. While many will welcome the departure of the CJ, we must not forget that the implementation of our Constitution is not limited to only constitutional appointments by the President and the Prime Minister. The challenges we face will reveal themselves as we get deeper and deeper into this process. For instance, we are yet to seriously engage with the task force appointed by the Minister for Local Government regarding the question of the devolved government. Neither are we engaged with the question of the appointment of the other Commissions and independent offices contemplated in the Constitution.

The Law Society, for all the challenges it has faced over the past year, is doing a commendable job. As is the National Council of Churches of Kenya and other members of civil society. However, we must also take part in the process. The representative nature of the institutions created by the Constitution demand that we debate the issues rather than dwell on the political advantage one community will enjoy at the expense of another. Vice President Kalonzo Musyoka and his friends have asked the National Cohesion and Integration Commission to outlaw the use of the 'KKK' tag to describe their alliance; yet, members of the alliance show no remorse for having foisted this language on an unsuspecting nation.

Messrs Musyoka, Ruto and Kenyatta have, for ill or good, brought this upon themselves. If Mr Ruto and Mr Kenyatta were not Hague Suspects, would they be in an unholy alliance at this moment? Their visceral hatred of the Prime Minister, expressed in their every speech, belies the benevolent nature of their alliance. They have successfully managed to reduce the implementation of the Constitution and the 2012 general elections to a contest between their alliance and the Prime Minister. They are attempting to portray themselves as the victims of the Prime Minister's, and his men's, political machinations and by extension, that their communities are the targets of the Prime Minister's. They refuse to acknowledge that the politics of tribal numbers are a thing of the past. Kenyans are no longer willing to act as cannon fodder for the political warfare of the political class. Kenyans have taught themselves a new nomenclature: development, true leadership, integrity, inclusivity, and nationhood.

While 2012 is significant, it is not the only concern Kenyans have. We wish to see the full and complete implementation of the Constitution. We wish to see real reforms in the police services, the judiciary and in the machinery of government. PM Odinga was wrong that the Cabinet could not be trimmed to reflect the provisions of the Constitution. It could. It is only that political calculations have subsumed everything to itself that we are unable to countenance that so-and-so could not be a Minister or Assistant Minister without there being some form of development fall-out on 'our' community. If the KKK is looking forward to the 2012 elections with trepidation, many Kenyans cannot wait for it to be over and done with. Whoever forms the next government will have an onerous burden of meeting the expectations of a nation tired of the same old political practices. If they want to persuade us to their side, they must demonstrate that their hopes and fears of the future are not tied to what the Prime Minister does or does not do. If they are incapable of even this, then we will better off if they spent the rest of their lives in a cell designated by the ICC as their final place of abode.

We can listen and learn from Museveni

Love him or hate him, President Yoweri Museveni of Uganda is right, albeit in a roundabout fashion, about one thing - Kenyans got it wrong when they made tribalism the defining feature of their politics. Uganda had gone down this road before, ending with Milton Obote's ill-fated second time round as president that ended with Museveni's National Resistance Movement taking power in 1986. 

President Museveni's open contempt for how Kenyan politicians do their thing, despite his twenty-five years of iron-fisted rule, is a wake-up call for all of us. An analogy he uses is apposite - when a man walks into your shop to purchase something, the last thing that you think about is not the tribe he comes from, but how much he will pay for the product or service. If this is how a dictator, though he will dispute this description, sees us, imagine how the rest of the world does. For decades, despite its ups and downs, the rest of the world viewed Kenya as the stable one in a region full of conflict and revolution.

Until Museveni took over, Uganda was constantly deposing its presidents, sometimes violently. Somalia has not had a stable government, or any government at all, since the fall of Mohammed Siad Barre in 1990. Sudan has just emerged from the second civil war with a successful referendum that will give birth to the Republic of Southern Sudan in June 2011. Ethiopia has suffered through the insurrections of the South since Mengistu Haile Mariam deposed Emperor Haile Selassie I as well as after ending its ruinous war with the breakaway Eritrea. Rwanda and Burundi are busily rebuilding after the civil chaos of the mid-1990s. The Democratic Republic of Congo, similarly, is recovering from the deposing of Mobutu Sese Seko and the assassination of Joseph Kabila. Tanzania, the only constantly stable democracy in the region, was almost ruined by the Ujamaa system put in place by their founding president, Mwalimu Julius Nyerere.

Then Kenya went to the polls in 2007 and it all went to shit. In 2003, we replaced Moi's kleptocracy with the promise of a new beginning. Then President Kibaki suffered a series of serious health crises that necessitated a caretaker arrangement by his minders. Their suspicions of Raila Odinga ensured that they would jettison an MoU signed between the two men, plunging Kenya into a new round of intrigue and political maneuvering that would culminate in two epochal events - the defeat of the Wako Draft constitution in 2005 and the violence that followed the deeply flawed general elections of 2007. As a result, the cozy view Kenyans had of their country was shattered and the world saw us for what we really are - a bunch of tribe-obsessed murderers and looters without a sense of nationhood and an overinflated sense of ourselves. We were put in our place. 

To compound our humiliation, we had to suffer through the prescriptions of the Panel of Eminent African Personalities, led by the lucklustre former Secretary-General of the United Nations, Kofi Annan. Where once Kenyan diplomats and civil servants had played a leading role in conflict resolution, we were now relying on foreigners to mediate what was basically a political stalemate. Our shame has now been laid bare in African and world capitals by the shuttle diplomacy of the president's men in an attempt to ensure that the tribal coalition being put together to keep Raila Odinga out of State House survives the attentions of the ICC. Where once Kenya led the way, we are now left behind, fulminating at the contemptuous treatment the likes of Museveni and President Jakaya Kikwete of Tanzania feel free to dish out at our expense.

Mzalendo Kibunjia's National Cohesion and Integration Commission is one of the band-aids that we saw fit to use over the deep crevasses of our fractured nation. President Museveni is right that if we do not properly diagnose our political problems, we will not come up with the correct political prescription for what ails our body politic. No matter how flawed Uganda's elections are, we cannot continue feeling superior towards Ugandans for today we are no better off than they are. Indeed, we may be worse off. Until we face head on the reality of the tribal arithmetic that goes into our political calculus, we will never advance to become a middle-income nation, despite the lofty ideals encapsulated in the Kenya Vision 2030 policy documents that we will churn out over the next two decades. It is for this reason alone that if Uganda manages to use its oil revenue well, it will surpass Kenya to become the economic and diplomatic engine of East Africa and it will take its place at the head of the table when it comes to EAC integration, leaving Kenya with the scraps.

A good example of our tribal myopia is the proposed privatisation of the Mombasa Port, or parts of it. Tribal chieftains in Mombasa have declared that the privatisation will lead to the continued impoverishment of 'their' people, forgetting that the port benefits not only the Coast region of Kenya, but the nation as a whole and that it must be the nation's interest that guides its privatisation and not the needs of the people of the Coast alone. If this is the attitude that we will bring to the management of national institutions when we eventually implement the devolution contemplated in the Constitution, then the national good will continue to be a pipe-dream, and all Kenyans will be the poorer (and sorrier) for it. We will continue to worry loudly about the place of 'my' tribe in national politics and at the helm of national institutions and forget about the integrated approach to nation-building that we will need if we are to regain our place as a respected leader in East Africa or indeed the rest of the continent. Museveni will go to his grave marvelling at the stupidity and futility of our politics and thank God that he was able to re-build a nation from ashes.

Lessons and more lessons

It was never going to end well, was it? When the President sent his list of nominees for the positions of Chief Justice, Attorney-General, Director of Public Prosecutions and Controller of Budget to the Speaker of the National Assembly, he set the cat among the pigeons as the Prime Minister had claimed that consultations had not taken place, and that the list be held back until they did. The Speaker sent the names of nominees to the Parliamentary departmental committees for action. As expected, the Committees were divided on political grounds as to what their roles would be, and the reports they tabled before the Speaker reflected the biases of the committees' members, whether they were for the PM or for the President. In the meanwhile, the High Court of Kenya ordered that no vetting could take place, indeed that no action could be taken regarding the nominees, until a suit filed by a women's organisation called the G-10 had been determined. the Chief Justice, an interested party if there ever was one, assigned the case to a three-man Bench to hear and determine the suit. It is still pending before the court, and the Speaker took this into consideration when he made his ruling late Thursday.

Now the Vice-President and a Deputy Prime Minister, both of whom have presidential ambitions, have called into question the integrity of the Speaker in ruling as he did, going so far as to claim that the ruling was meant to give political advantage to the Prime Minister in his war of words with the President and his men. They intend, as they have said in the past two days, to challenge the Speaker's ruling by all means at their disposal, including by sponsoring a Motion in Parliament to reverse his ruling. Some of their more militant partners, including a suspended Cabinet Minister with presidential ambitions, are talking of censuring the Speaker for his ruling, arguing that he has not only ignored Parliament's Standing Orders, but also of failing to uphold the independence of the National Assembly and ignoring the separation of powers, the bench-rock of the Constitution. They are also apparently planning to strip the Prime Minister of his post as leader of his own party and in effect ensuring that he no longer serves out his term as Prime Minister, hoping to deal a serious blow to his presidential ambitions in one fell swoop.

The term of the Chief Justice comes to an end on 27th February, and until he is vetted by the Judicial Service Commission, he will serve out his term as a member of the Court of Appeal. Legal eagles advise that a 'senior' member of the Court of Appeal can be appointed as Acting Chief Justice until the post is substantively filled. Of course, Chief Justice Evan Gicheru could choose to retire on the day his term as CJ comes to an end, but no one seriously thinks he will do so. after all, when have Kenya's high and mighty resigned or retired willingly?

As with all crises faced by the Grand Coalition Government, the machinations behind the latest crisis revolve around the chances or otherwise of the various presidential aspirants. The President's nominees are mere collateral damage and their names will be quickly forgotten as the Prime Minister and his rivals go about their political maneuvering. The Prime Minister had the upper hand when the Proposed Constitution was being reviewed by the Parliamentary Select Committee in Naivasha last year. Then, he somehow managed to wrong-foot his opponents when he acquiesced to their demand for a purely presidential system of government and let go of his dream of a parliamentary system or a hybrid one. It was seen as a bold and brilliant move and he carried the momentum into the referendum, ensuring that his opponents were reacting to his moves and not the other way around. However, in recent months, the PM has made strategic blunders and creating the impression, widely accepted today, that it is he who is on the back-foot, reacting to the tactics of his opponents. He has been weakened in the recent past by the near en-masse defection of his supporters in the Rift Valley to the camp of one of his potential presidential opponents, a man who faces the possibility of trial at The Hague for crimes committed in 2007 and 2008.

The PM and his opponents are near-obsessed with the question of who will succeed Mwai Kibaki as president in 2013 to the almost total exclusion of everything else. Kenyans are facing starvation due to a drought that was predicted over five months ago. While the economy has recovered from the effects of the Post-Election Violence, and tourism numbers and exports are improving, youth unemployment remains worryingly high as does the trajectory of violent crime and police extra-legal activities. However, all these issues remain firmly on the back-burner as the Coalition grapples with the one subject that animates it - 2012.

Kenyans have a golden opportunity in this crisis. They can learn their lessons and apply them in 2012. The current crop of Parliamentarians, bar one or two, does not seem to appreciate the fact that national life does not revolve around the single issue of the 2012 general elections. If Kenyans were to apply these lessons to the future, they will send all of them packing and pick a new crop of leaders who will have a better appreciation of their needs. However, this is too much to hope for. It is for this reason that intellectuals and other opinion-makers need to speak out and speak up, to ensure that Kenyans are in a position to make good choices in the future. If these men and women let down the people of Kenya once more, the Constitution will remain a political football to be fought over by a few at the expense of the many.

How NEMA can meet the challenges of a developing Kenya

When the Environmental Management and Co-ordination Act, 1999 (EMCA), came into force on the 14th January, 2000, it was a watershed moment. For decades Kenya's environmental policy was implemented through a raft of statutes that numbered over 70 that included the Chiefs' Act and the Public Health Act. The ten years it took to come up with the EMCA were not in vain, and today we have institutions such as the National Environment Management Authority (NEMA), the National Environment Council (NEC) and the little-known Public Complaints Committee (not to be mistaken with the Public Complaints Standing Committee, the Office of the Public Ombudsman).

It is of course a truism that policy comes before legislation. However, with the EMCA, policy will follow statute and thereby, there is much confusion as to the thrust of Kenya's environmental policy today, especially when faced with the vagaries of drought and the needs of the Kenya Vision 2030, our blue-print for turning Kenya into a middle-income industrialised nation within the next two decades. Many point out that in 1978, Kenya's GDP equalled that of the Republic of Korea and the other Tiger Economies of South Asia, but that today, while they have leapfrogged forward, we are still languishing somewhere near the bottom of the league tables in terms of development. Many Kenyans today live below the poverty line, and those that don't struggle to make ends meet, sometimes taking on more than one job to sustain themselves and their families. In this context, the role of environmental management institutions has come in for criticism, especially when the implementation of environmental laws makes it very expensive to invest in development projects.

When we speak of the environment in Kenya, we usually speak of the elements that make up the natural environment, and not the physical environment comprising of towns and cities and their infrastructure. We see the forests, water bodies and to some extent our wild flora and fauna as the sum-total of "environment." However, environmental experts will state that 'environment' is a much broader term and that its definition is not easily made or presumed. Therefore, for example, operators of Public Service Vehicles and proprietors of entertainment places see the intervention of environmental legislation in their livelihoods as a bad thing, threatening their bottom lines in ways that were not anticipated in the year 2000.

Part of the reason why environmental legislation is now seen as a burden is because of the manner by which it is being implemented, especially by the NEMA. In the year 2000, NEMA was seen as an institution that would play a supervisory role in ensuring that all government ministries, departments and agencies followed a predictable course in the implementation of environmental legislation and policy. It was not envisaged as a super-policeman, keen on taking on the active role of implementing the environmental legislation and policy at the same time. However, as a consequence of its taking on roles that it did not have the competence to perform, NEMA has become the favorite bogey-man of the investor class, especially in its zealous application of the Environmental Impact Assessment and Environmental Audit processes, and now, of the Noise Regulations, Water Regulations and Waste Management Regulations.

It is not enough to castigate the process by which these Regulations were enacted, cutting out or limiting the role of interested parties in their formulation. We must also address the structural problems associated with the manner by which NEMA intends to enforce these Regulations. It is now apparent that part of the reason why the NEMA is implementing these regulations revolves around the question of license and permit fees. If the fees had been channelled towards ensuring that the NEMA became a better enforcer of the regulations, no one would bat an eyelid or raise a stink. But, it has not done so, and as a result it is overstretched and outmanned when it comes to the matter of enforcement. 

Quite simply put, NEMA does not have the capacity, either technical or structural, to implement the 7 Regulations it has passed since 2003. On a good year, it will receive at least three thousand applications for an EIA license and at least six thousand environmental audit reports. It has a staff of less than 2000, including officers in its Department of Compliance and Enforcement. They must go through every single EIA study report (or project report) and audit report and determine whether or not they meet its standards under the EMCA. Then, they must conduct regular site-inspections to verify that the information contained in these reports, and the commitments made, are accurate and that they are abiding by the rules. Where a project proponent is found to be non-compliant, the Authority must consider whether enforcement will be by means of administrative action or by litigation.

In all respects of the EIA/EA process, NEMA can now be classified as a failure. The same can be said for the manner in which it is enforcing the 7 other environmental regulations it is enforcing as well as in the manner in which it is co-ordinating the development and implementation of environmental policy. For NEMA, and environmental legislation in general, to receive broad public support, the NEMA must jettison the need for overseeing every aspect of environmental law enforcement, and allow the other institutions involved to play a more meaningful role in their implementation. 

For instance, the Ministry of Public Health and Sanitation, as well as the Ministry of Labour, play a crucial role in determining the safety of all buildings in which people are employed, through Public Health Officers and Health and Safety Inspectors, respectively. When publishing the Noise and Excessive Vibrations Regulations, NEMA could have permitted these agencies to oversee the process of enforcing the noise requirements for such premises that fell within the scope of the regulations, rather than taking on this role itself. As such premises must undergo regular inspection to check on their public health and workplace safety compliance, these institutions would have a better opportunity to ensure that compliance needs were met, rather than the ill-trained and ill-equipped officers from NEMA. That way, there would be fewer complaints and a greater chance of enhancing the environmental quality of workplaces. 

Thus for NEMA to succeed as an agency, it must give up the police roles it has abrogated to itself and allow the other institutions with better capacity to take them up. In this way, environmental legislation and policy could play a positive role in enhancing development and ensuring that as we meet our Vision 2030 targets, no one is left behind.

Judicial activism may save us yet

Let's get something straight - 'activist' judges are not necessarily a bad thing. Sure, Mr. Justice Musinga is roiling the waters with his string of rulings in recent weeks. Sure, Lady Justice Jean Gacheche started the trend with her intervention in the Ligale Commission case. But we cannot hope for a conservative Judiciary if we want the true ideals of the Constitution to be upheld, especially a positivist interpretation of the Bill of Rights that seeks to expand upon the gains of the Second Liberation Movement. Fears of an activist Judiciary are overblown and are meant to create the impression that the status quo is a thing to be maintained when it has been the bane for the past 47 years. Indeed, the Constitution calls for an activist Judiciary in Articles 19(2), 20(3), and 21(3) when interpreting or protecting and preserving the rights enshrined in the Bill of Rights.

Many conservatives will point to the culture wars being fought in the United States Supreme Court, especially the judge-made laws that expanded abortion rights or limited the power of the Federal Government, and declare that such a situation in Kenya would lead to great social and political turmoil, leading to crises such as the one that followed the 2007 general elections. I beg to differ. During the Referendum Campaign, many in the Red Camp read mischief in the manner with which certain articles were drafted, paying special attention to the clauses on right to life and those on land. The Committee of Experts came in for special attention, being accused of subverting the sovereignty of the people of Kenya, especially by providing for when abortion could and could not be performed. Many of the opponents of the Proposed Constitution, especially from the Rift Valley and certain other well-connected land barons objected to the sweeping power that the National Land Commission would wield, especially regarding 'historical injustices'. They were, and continue to be, wrong.

The greatest battles over the soul of this nation will be fought in the courts. It will take an especially enlightened Judiciary to right the wrongs of the past 47 years and give to Kenyans a sense that their rights will be protected from all those who threaten them. The Judiciary must play a leading role in not only interpreting the Constitution, but developing constitutional law to the fullest extent of freedom envisaged under the Constitution. The Judiciary must ensure that the expansion of the freedoms in the Bill of Rights is unfettered with the fears of a minority or the desires of a thieving political class. Which is why the manner in which the President and Prime Minister nominated the Chief Justice and Director of Public Prosecutions was wrong and wrong-headed.

While the Constitution specifically provided for the Principals to act as they did, they had no reason to ignore the positive aspects of the appointment procedure contemplated under the Constitution. The role of the new judicial Service Commission and the Office of the DPP are meant to protect Kenyans from their government and to provide them with an opportunity to claim their rights at the only forum that is acceptable to all. With all other governance institutions facing their own specific challenges, the Judiciary should be the last place where the battles between the PM's ODM and the President's PNU are fought out without considering the needs of ordinary Kenyans. If the political class is unable to grasp this basic truism, then we are in graver risk than was originally assumed.

The risks of an activist Judiciary cannot be gainsaid. For instance, the Judiciary may become the weapon of the State in restricting the freedoms enshrined in the Bill of Rights, limiting the opportunities for ordinary Kenyans to expand their rights by making narrow, mechanical interpretations that reserve the power to make decisions in the hands of the State agencies. It can make judgments that create political and social risks without regard for the risks many Kenyans faced when challenging the post-Independence status quo.

 

The risks of an activist Judiciary can only be addressed if the process of constituting the Judiciary is as open and as competitive as possible. Lists of judicial officers cannot be drawn up in political back-rooms or kitchen cabinets. The input of the people, especially through the JSC, is critical and mandatory. It is only when the process is transparent that Kenyans may have any confidence in the probity, integrity, wisdom and judgment of their judges and magistrates. To this end, Mr. Justice Visram and Kioko Kilukumi would be best-advised to withdraw their names from consideration until the process is made more transparent. Just because the President can do what he did does not mean that he should have. It was wrong, and it is time Kenyans started telling him so. After all, he gave us this opportunity by being the most hands-off president of all time.

Donald B Kipkorir is both right and wrong

President Kibaki's nominations still continue to excite comment in the national press. Donald B Kipkorir, in the Standard on Sunday, makes the point that that President acted under the terms of the National Accord, embedded in the former Constitution as the National Accord and Reconciliation Act of 2008 (Kibaki nominations constitutional, objections ill-informed and a sham). There are those who have made the rather fallacious proposition that the National Accord is not a law 'made by Parliament', but rather a contract between President Kibaki and Prime Minister Odinga and, therefore, it cannot be amended without taking into account the special circumstances of the post-2007 elections and the violence that necessitated the National Accord.

First, let us deal with the question of whether the Accord can be amended. It can. Under the provisions of the Transitional Clauses in the new Constitution, the National Accord and Reconciliation Act, which was embedded in the former Constitution, continues to form a part of the Law of Kenya. It is, as has been amply demonstrated by the two Principals, still used to make appointments to national offices before the 2012 general elections. It was embedded in the former Constitution by an Act of Parliament, the Constitution of Kenya (Amendment) Act of 2008, which was passed by the National Assembly to give life to the coalition government. 

Article 94 defines the role of Parliament under the Constitution, and exclusively reserves the right to make law to the legislative branch of government. The Judiciary shall not 'make law', but shall 'develop law' when addressing the question of the enforcement of the Bill of Rights. Therefore, it is not correct to presume that Parliament does not have the authority or the power to amend the National Accord. It is part of the Constitution and thus, under the provisions on constitutional amendment in Chapter 16, Parliament can amend the National Accord. Without Parliament, the coalition government would not exist. Whether it chooses to do so is a political, and not legal, matter.

Secondly, Mr. Kipkorir makes a rather startling statement in his article. He claims that "democracies have in their wisdom given heads of government and State this leverage of appointment. For who wants a situation where a president is given a hostile CJ or AG?" Mr. Kipkorir reinforces the notion that the appointments made by the President are meant to serve his interests and not the national interest. He is correct to point out that the presidency would be well-served by a 'friendly' judiciary or Attorney-General; however the presidency may not always get its way. 

The Preamble to the Constitution declares that all sovereign power (including the power to make such appointments) belongs to the people of Kenya and is to be exercised in their interest. Therefore, in the interests of the people of Kenya, whether the president faces a hostile CJ or A-G is neither here nor there. The President is limited to nominating only those officials who will serve the interests of the people and not his own. If President Kibaki so much as admits to have nominated men who would only serve his or the PNU's interests, indeed if the Prime Minister makes such an admission too, they will both have committed an offence. They will have admitted that they do not recognise the sovereign power of the people of Kenya and they would, thus, be unfit to continue in office. The classic American definition of democracy must apply - government of the people, for the people and by the people.

Finally, Mr. Kipkorir is wrong to dismiss the question of gender balance in the nominations. Of course, it is a difficult thing to carry out. However, from the statements being issued by the President's and Prime Minister's representatives, the two did not even have a short list of potential nominees that had women in them. The Constitutional places a burden on the President to nominate persons such as the final make-up of the instruments of governance reflect the rich diversity of this nation, including the role played by women in national governance and development. 

The President and Prime Minister have demonstrated that they do not appreciate this rich diversity, instead concentrating overwhelmingly on what political advantage one may gain at the expense of the other when it comes to such sensitive issues. If, instead, they had declared that there were no qualified women to take up these positions, they would have opened up the debate on whether or not they were prejudiced against women, or that women simply did not measure up. Instead, refusing to acknowledge their presence reaffirms that when it comes to national governance or development, these two old men do not appreciate the positive and symbolic role the nomination of women would have played in further reforming the State after the August 4th Referendum.

No Action, Talk Only.

It is simply not enough to express outrage at the outrageous suggestion that The Hague Six should not be on the first plane to The Hague as soon as the ICC decides to permit their prosecution. It is simply not enough to sit idly by as the hundreds, perhaps thousands, of co-conspirators continue to live lives of comfort while hundreds of thousands languish in squalid camps. It is simply not good enough to watch in despair as millions starve to death while we enjoy our fries and chicken at the local Kenchick fry-up. Kenyans must stop talking and start acting.

Three years ago, Kenyans were murdered in their homes, taken from their beds and set upon by mobs instigated by politicians. The 'spontaneous' rejection of the ECK results of the 2007 elections were anything but spontaneous. Reports documented the meetings that were convened to plan and execute a plan to kill thousands in the name of political score-settling. A year ago, the Kenya Meteorological Department predicted that the La Nina Phenomenon would cause drought in several parts of the country, hitting hardest the arid and semi-arid lands, leading to food and water shortages. These challenges were forecast and the government promised that this time, no one would die. That promise has not been kept and Kenyans are dying of starvation, schools have been closed and millions, perhaps billions, in shillings have been lost due to crop failure and livestock deaths. And still, President Mwai Kibaki and Prime Minister Raila Odinga and their entire Cabinet continue to operate as if the only thing in our minds and in the nation's calendar are the 2012 general elections.

In 2008, the Government of Kenya and the Orange Democratic Movement Party signed an accord to end the stalemate the threatened to stall every single government initiative unless a political compromise could be reached. As a result, Kenya was treated to the rare sight of political opponents smiling for the cameras and shaking hands, promising to put the past behind them. The coalition government decided to whitewash the crimes that were committed in 2007 and 2008, allowing thousands of suspects in the violence to go free. Hundreds of thousands of Kenyans were herded into refugee camps as the government promised a quick resolution of their plight. Thousands found their way to the homes of well-wishers and family members, leaving their properties and livelihoods behind in the hope of a better tomorrow. Tomorrow is here and they are yet to rebuild their lives. Meanwhile, the same coalition that promised them some measure of justice is doing everything in its power to wriggle out of its commitment, refusing to set aside monies for their compensation and refusing to reform the administration of justice system to try those who committed horrific crimes against them.

In 2006 and 2007, hundreds of Kenyans starved to death on the back of a debilitating drought. The government then and the coalition government 2 years later promised that such a situation would not come to pass. This tie round the government was forewarned. It assured the citizenry that it had put in place measures to ensure that Kenyans would be offered succour. As in 2008, it seems that there are individuals, in and out of government, determined to make a killing, literally, from the misfortune wrought by the current drought. When a few of them in 2008 made billions from the supply of relief food, none was ever brought to book. They stalk the land today like Colossi, knowing that their billions will save them from the attentions of the State, or an angry populace. The same fiasco that led to hundreds of deaths in 2007 and 2008 is being replayed anew. They say that history repeats itself - first as farce and then as tragedy. This time round, it is not funny.

In all this, the people of Kenya have been persuaded that politics is a shameful exercise, to be engaged in only by the 'political elite' of this country. This is a lie that must be laid to rest if the people of this country are to live in peace and with dignity. It s a terrible thing for a man to beg for his life, yet that is what we are asking the thousands that live in refugee camps and the millions facing death by starvation to do. In the meantime, we are spending tens of millions flying off to distant capitals to lobby the governments of the world to defer the trial of a measly six men for the alleged crimes they committed in the name of the State or the interests of a politician. We are held in thrall by calls to our sovereignty and independence, when we are incapable of moving bags of maize and tankers of water from one location to another. 'We the people' are standing idly by as the government acts in 'our national interest'.

But we have a way out of this morass of moral decrepitude that has been visited upon this nation. It is called The Vote. We must exercise it judiciously and zealously. However,it is not enough to just vote; we must participate fully in the process or else it will be like whistling in the wind. In Kenya, as in the rest of the world, politics is the process by which we negotiate among ourselves regarding matters that affect us all. Politics, in and of itself, is not a bad thing. Politicians on the other hand, are either good or bad and Kenya seems to have picked its politicians from the bottom of deep, dark, smelly and fecund barrel. Our politicians make the armed robberies constantly being executed by forces of law and order look like choir-boys. To send them packing, and to prevent others like them from ascending to the seats of power, it is time we jettisoned our apathy and joined political parties in droves. 

The political party is the only vehicle with which we can choose who our next crop of leaders will be. It is our only salvation. Our politicians are like what the colonialists described our late founding president: leaders unto death and darkness! To get rid of them, we must join political parties and choose only those men and women who will listen to our cries of despair and offer us an opportunity to better ourselves and improve the nation. No longer shall the political party be a closed shop, open only to the well-connected and well-heeled. It is our only forum for expressing the anguish and shame. If we ignore it due to some misconceived notion of the shame that is associated with it, we will have no one to blame but ourselves. The future will be filled with even more horrific crimes and the spectre of millions more starving to death.

Personal freedoms and the Mututho Rules

There are various schools of thought on the matter of personal freedoms, what the Americans call "civil liberties." For example, the US Constitution's First Amendment protects, among other things, free speech, which has been interpreted to include such esoteric subjects as what one wears, where they wear it and whether or not an institution, say a school, can determine whether what one wears is acceptable or not. The American Civil Liberties Union has gone to court successfully to argue that public schools cannot force students to wear a uniform, even though it has lost the case to allow students to wear 'gang colours'.

I am on record as having supported the enactment and enforcement of the Mututho Rules regarding the sale, consumption and advertising of alcoholic drinks. However, I am alive to the fact that these rules are having an invasive effect on personal freedoms, and if anybody wishes to challenge these rules, the question they should be asking is whether they can accept a certain amount of curtailment on their personal freedoms and, if so, to what extent. The businessmen challenging the rules have missed the point; it is not about their freedom to engage in commercial practices that is under threat, but the freedom of patrons of their establishments to determine when, how, how much and why they will imbibe alcohol.

Mr. Mututho is a lawmaker and his job is to make laws that will benefit his constituents. This is what must or should have informed his desire to control the alcoholic beverages industry. After all, a significant and vocal section of his constituency alleged that alcohol consumption has been responsible for the moral, spiritual, entrepreneurial and academic decline in their fortunes and they desired a law that would address the failings in his constituency. But Mr. Mututho could no make a law specifically targetting his constituency as he could demand that the rest of the country ignore the portions of the law that affected their personal and professional lives.

The debate surrounding the Mututho Rules should be about personal liberty and not about commercial activity. In Kenya we regulate business all the time; by requiring entrepreneurs to obtain various licenses and permits in order to operate; by standardising their merchandise and services; by restricting to whom they can sell; by regulating how they manage their waste; and by imposing safety and public health rules to ensure the fitness of their merchandise or services. For instance, it is unlawful to sell alcoholic drinks or tobacco products to children below the age of 18 years or to dispose chemical waste in waterways or water bodies. No one questions these restrictions, even though they impose a cost on businesses and affect their ability to maximise their profits. The people do not oppose these restrictions because they accept that they are for the greater common good.

When it comes to the Mututho Rules, some of the restrictions are not without merit. For instance, we all accept that alcoholic beverages should not be sold to children; children should not be allowed in premises that sell alcoholic drinks; children should not be exposed to advertisements on alcoholic drinks; all persons engaged in the manufacture, sale, distribution, and marketing of alcoholic beverages should be regulated to ensure that their products meet the highest quality standards, that they ensure a profit for those engage in the industry, and that society as a whole is not harmed by this industry. 

However, it is the aspects that affect personal liberty that are controversial and should be addressed if we are to rescue the situation from turning into a farce. We should challenge the rules that state when we can enjoy a drink and for how long, or what the limit should be. If a person decides to drink until he is quite senseless, unless he becomes a nuisance, it is not up to the State to determine whether he should be prosecuted for it or not. It is his right to drink himself into an early grave. The State cannot nanny all of us; if it did, it would have no time for building roads or staffing health clinics. If a proprietor of a pub or hotel wishes to sell alcohol to his patrons on credit, the State cannot deny him this right; after all, the State is also a borrower of public funds and no one places a restriction on  whom the the state can borrow from or on what terms.

I would challenge those aspects of the rules that affect my personal freedoms, including my right to associate with anyone I please. If I want to meet with my friends and associates till the wee hours of the morning, the State cannot restrict this association simply because it is being held in a pub. I should be able to access credit in whatever form I deem fit so long as the credit is not a risk to the State. The debate raging over the Mututho Rules should be restricted to its civil liberties portions and not on anything else. I would uphold the portions that restrict the location of bars as on those that limit sale to people in the age of majority. We must elevate this debate; otherwise, the State will have all the right in the world to interfere in our personal freedoms simply because we do not know any better.

The seeds of instability

The Speaker of the National Assembly will make his considered ruling based on an interpretation of the word "consultation". Perhaps he will make the right ruling, perhaps he will not. However, it is the manner in which the President and Prime Minister have behaved that have brought us to this sorry state. The shenanigans of the Leader of Government Business in the National Assembly, including his taking out of a full-page spread in the dailies, have not helped. He is not a party to the National Accord and Reconciliation Act of 2008; he is not a Principal. His views, such as they be, and his interpretation of the facts, such as they are, should be treated with the contempt reserved for interlopers nosing where they are not meant to.

The Prime Minister has stated his case. The President, through various proxies, has stated his. It is now up to us to make judgment and come to an appreciation of the dire situation this country is in as a result of the antics of the two Principals. If as the Prime Minister contends, the President did not consult fully with him, then he is in breach of the provisions of the Constitution. If on the other hand, the President did fully consult with the Prime Minister, the PM's only recourse would be to marshal support to defeat the appointment of the nominees.

What is becoming more and more apparent as 2012 draws near is that the two are willing to jettison the rule of law for their own selfish ends. President Kibaki is barred by the provisions of the Constitution from seeking another term as President of Kenya. He therefore, logically should have no problem with the PM competing against the remaining presidential hopefuls come 2012. As a lame duck president, who is not even the chairman of his party, he should take a neutral approach to the machinations in and out of Parliament, and instead offer Kenyans a vision of what t would be like to live under the rule of law and respect for national institutions, of which the Constitution is an integral and vital part.

When that demon seed of an accord was signed in 2008, and when we overwhelmingly ratified the Constitution in 2010, it was expected that the Principals would work together to reform the Judiciary, the National Assembly and the Executive. The results, to say the least, have been mixed. The President and PM continue to share power in an increasingly acrimonious fashion, and regardless of the assurances of the PM, we all know that all is not well. Time an again, the PM and President come to some sort of accommodation before competing and varied interests intervene and the agreement is left soiled on the floor of the National Assembly. The humiliations the PM has suffered at the hands of the President and his proxies begs the question of why he persists in maintaining the fiction that the coalition is for the national good.

The law is clear on how the President and the PM are to act when making appointments under this Constitution. Whether we like or not, when we ratified the Constitution, we also made a bargain that certain provisions of the former Constitution would continue to apply until the next general elections. Therefore, the appointments of a Chief Justice, Attorney-General, Director of Public Prosecutions and Controller of Budget, among others, would be made by the President, after consulting the PM and after vetting by the National Assembly. This patently undemocratic manner in making national appointments was ratified and endorsed by the people of Kenya. We cannot wish it away now that it seems to be causing untold misery on the PM an his cohort of supporters. The manner in which the President and PM consult with each other was never publicly debated and therefore, it is impossible to know what expectations the two had regarding this arrangement. If they themselves cannot agree on what constitutes consultation, then it is left to the people to interpret it for them, usually wit much emotional and political baggage accompanying that interpretation. However, a few facts bear repeating.

First, the notion of 'joint' nominations, which the PM has proposed, is not contemplated in the Constitution. A plain reading of the Constitution shows that the president shall nominate candidates only after consulting the Prime Minister. The nominations shall not be made by both of them. There is no provision for the PM to endorse the candidates that the President nominates; only that he will be involved in the process of choosing who will be nominated. Second, the Constitution Implementation Commission has no role to play in the appointment of the next Chief Justice. The deal that was struck between the Government and the ODM did not envisage a role for the CIC as it did not exist in 2008. In the drafting of the Transitional Clauses of the Constitution, the Committee of Experts could have provided for the input of the CIC in these matters; it did not, and we are the poorer for it. Third, the Judicial Service Commission too has no role to play in the appointment of the Chief Justice. Its role is reserved for all subsequent appointments of the CJ, as well as for the vetting of all judges and magistrates and the constitution of the Supreme Court. They are free to offer advise regarding the manner in which this imbroglio is affecting the reconstitution of the Judiciary, but Constitutionally speaking, they must wait their turn.

Our leaders are displaying a worrying tendency to disregard the rule of law. They did so when they addressed the question of constituency boundary limitation, as well as the appointment of the CIC and the Committee on Revenue Allocation. Also the Federation of Women Lawyers (Kenya) has pointed out that the gender equation has remained skewed against qualified female candidates to these positions. The Principals and their acolytes have consistently ignored the need to show that they are capable of not only considering but also nominating female candidates to the various constitutional offices already filled. This is another reason why the Leader of Government Business should be ignored whenever he opens his mouth - how could he think that by appointing a woman to be the Deputy Chief Justice would be sufficient to address the question of gender imbalance in the manner of these nominations?

But it is in the manner in which the Principals continue to ignore the will of the people that is truly galling. Why they thought that should keep the names of their nominees secret is beyond me. Even if they were going to ignore the input of the people, the Principals should have made the names public and allowed citizens to weigh in on their suitability or otherwise for the positions they were nominating them to. It would have cost them nothing and it would have demonstrated powerfully that they consider Kenyans partners in governance and not just irritants to be ignored. These two are laying the ground for uncertainty, conspiracy theories and political instability. If Kenya goes up in flames once more, it will be laid squarely at their feet.