Equality v Security

Every person in Kenya is equal before the law and deserves the equal protection of the law. There is no basis for persons facing similar situations to be treated differently by state agencies or organs. Equality for the law cannot be jettisoned at the altar of safety or security. Neither can equal protection of the law. If one is the victim of a crime, the state cannot purport to mitigate the offense without punishing the offender. These principles, enshrined in the Constitution, as they were in the former Constitution, are being ignored in order to pacify a political class, or a section of a political class, that has been at the forefront of impunity since Independence.

In Mau Narok, a section of the Maasai community is violently opposed to a plan by the state o resettle IDPs in land they consider 'theirs' arguing that the state cannot use force to resettle these IDPs while they continue to own land n other parts of the country. Their argument is that the state should use the same amount of force to ensure that these people are restored to their rightful properties, regardless of the 'feelings of the communities that had evicted them in the first place. They argue that the freedom to own and hold property anywhere in Kenya is useless if the government will not safeguard this freedom. An American president once stated that those who wold sacrifice liberty for security would have neither. This is a truth that President Kibaki's government better take to heart.

When Mwai Kibaki was sworn in at dusk in 2007, it set off a chain reaction whose effects are still being felt today. Thousands upon thousands were driven from their homes in the dead of night, accused of being Fifth Columns of rival political parties and blamed for the losses suffered by the other side. Many have died while many continue to live in abject conditions in IDP camps, refugees in their own country without a place to call home. The so-called peace and reconciliation committees have done nothing to restore these families to their homes. The government has not helped the situation by remaining divided on the question of resettlement. Parliament has not helped, failing time and again to hold the Executive to account for the manner in which monies allocated to the resettlement exercise have been spent.

Now we have the spectre of agents of the Executive using deadly force to resettle a section of the IDPs in locations where historical issues are yet to be addressed. The Maasai in Kenya, as in the greater East Africa, suffered grossly under the corrupt practices of the British colonists. They were swindled of their land and Kenyatta's, Moi's and Kibaki's governments have done nothing to redress the evils that were perpetrated against them. It is he duty of the Executive to uphold and defend our rights; these rights cannot be abrogated in order to satisfy the political needs of a few. The right thing to do, regardless of the consequences, is to restore to the IDPs the land that they lost, their homes and farms.

Who will lead us to the New Canaan?

The imminent, apparently, downfall of Col Gaddafi should be a warning for the hyenas that pass for Kenyan presidential candidates. Most of them believe that at that level, they are the masters of their destinies. Nothing could be further from the truth. The history of African presidents and prime ministers is a history littered with revolutions, coups de tat, assassinations and other downfalls. If these men and women (woman?) believe that they will have a free hand to determine the political and economies direction of this nation, it is time someone whispered in their ears and disabused them of that idea.

Conservative talk radio in the USA has been busy lately, calling out President Obama for his dithering over the Libya mess. But what should be instructive for us is that while the USA claims it is no longer the world policeman, it is still operating a foreign policy that determines what is in the best interests of the nation at the expense of the self-determination of the rest. Vice-President Kalonzo Musyoka, going out on a limb, thinks that his opinion on the goings-on in Libya will have an effect, either domestically or internationally, on how he is perceived in terms of his ambitions. He mistakes his years as Foreign Minister as giving him unique insights into diplomacy. The truth is, Mr. Musyoka was NOT a diplomat; he was just the political face of Kenya's diplomacy. His fulminations regarding the bombardment of Gaddafi's troops do not serve him or our nation in the best light.

What we should be considering is why Kenya is in hock to western banks and governments, universities and militaries, multinational corporations and 'world' bodies. The effect since the advent of Kenyan independence has been to retard innovation and success. It is indisputable that Kenyans from all walks of life are intelligent and capable of making decisions regarding the destiny of this country without bowing down to the wisdom of the IMF or the World bank or the United nations. If we had politicians of goodwill, 2007/08 would not have been so bloody, if at all. If it had turned nasty, Kalonzo Musyoka and his band of pseudo-diplomats would not have spent a hundred million shillings on some fools errand to try the Ocampo Six at home; it would have been a matter of course to investigate the atrocities, try the perpetrators of the violence, and where possible, convict and sentence them in all fairness.

Now that ODM has joined the referral v deferral bandwagon, it is indisputable that the voice of the ordinary Kenya is to be ignored when it says inconvenient things. The Prime Minister, attempting to shore up his support in certain tribal enclaves, has 'permitted' his acolytes to raise the deferral/referral issue and to support the government in its endeavours to establish a 'local mechanism' for the Ocampo Six. Nowhere is it being suggested that the investigations into the causes and the perpetrators of the violence and mayhem will be full or complete or that the thousands upon thousands of youth who were paid to kill, rob, rape and plunder will ever see the inside of a court room.

Kenyans are fond of proclaiming their love of their fellowman, that they will do everything in their power to offer support and solace to those who suffered injustices at the height of the PEV, yet thousands upon thousands still languish in tented camps, living in squalor and abject dejection. It is only fair that those who were chased from their farms or homes be protected when they do return; the Constitution, after all, protects the individual's right to own property anywhere in Kenya. Arguments that individuals have an 'ancestral' or 'traditional' home to go back to admit that we are yet to see justice in quite the same light as the victims of 2007/08.

It is in this background that the interference of the west is to be seen for the hypocrisy that it is. The USA and its acolytes does not want Kenya, or Africa, to be truly free. If we were, then we would not buy their cars or their computers or their guns. An America president once proclaimed that the business of America is business, while another warned about the influence of the military-industrial complex. Look at the wars that keep on erupting in Africa and you will see that American and European big business and their guns and bombs are everywhere. Until we unshackle ourselves from the western-oriented slavery that restrains us, it really doesn't matter whether Tinga or Wiper or the Iron Lady or 'UK' are in charge, they'll still take their cues from Obama or his successors.

All Hail Prof Anyang' Nyong'o

You have to hand it to Prof Peter Anyang' Nyong'o. He did not waste time. Days after his return from cancer treatment in the United States, he has set the pace for re-interrogating the place of the political party in governance. The Secretary-General of ODM has announced that regardless of the position taken by the party leader in government, the party must make its own determination regarding the wisdom, or otherwise, of Shuttle Diplomacy II. Simply because the Prime Minister has taken a position regarding the fate of the Ocampo Six as part of the wider rapprochement between the two Principals in the Grand Coalition Government does not mean that the voice of the party will be ignored. This puts paid the assertion by the Ruto Twins that ODM is a 'dictatorship' or that it is Raila Odinga's cheering section.

Prof Anyang' Nyong'o illustrates that democracy is only as vibrant as the vibrancy of its democratic institutions, including the political party. Whether we wish to admit it or not, this country needs political leaders; many of these leaders will rise to positions of leadership through the political party. The Constitution provides for two ways in which a person can be elected to office: either as an independent candidate or as a nominee of a political party. It also provides that if one leaves a political party to become an independent or to join another political party, he must resign his elective position and seek a fresh mandate. So too must an independent candidate who chooses to join a political party after he has already been elected to office. However, it is silent on the relationship between elected representatives and their parties, and between parties and government.

Back in the day, KANU and government were synonymous and many have held on to the notion that what the government wants and what the party in power wants are the same thing. This may not always be true. The US Congress frequently demonstrates this reality. For instance, many have taken note of the role the Tea Party has played in conservative politics in America. While it is frequently considered to be the fringe element of the Republican Party, its views are increasingly holding sway, determining the legislative agenda of Republicans in the US Congress. It is no longer enough to be elected; one must toe the Tea Party line or suffer consequences at the polls. In Kenya, the bastardisation of the political party structure has led to a situation where the tail is wagging the dog; political parties no longer set the agenda of government, but government sets the agenda of the parties. Witness the manner in which MPs from PNU or ODM disport themselves when it comes to national matters; one is hard pressed to differentiate the party position from the government (Executive) position.

Prof Anyang' Nyong'o reminds us that members of the Executive are elected by the members of their political parties and that it is these members who decide what is a priority and what is not. The Executive may, from time to time, determine that a matter is so critical and that speed is of the essence that consultations with the membership of the party is not possible. However, everything that the Executive does must meet with the approval of the party and regardless of the context of the decisions of the Executive, the party reserves the right to retroactively approve or disapprove of it. This is a healthy development. It serves notice on the Executive that Kenyans are no longer content to be led by the nose by the powers-that-be, but that they are capable of analysing contemporary events and making up their own minds as to what the correct course of action will be.

I do not know what the ODM Parliamentary Group will decide, or whether they will heed the voice of the masses, but it is clear that the PM's decision to support the new government attempt to scuttle the ICC process is an unpopular one, to say the least. Kenyans are still not persuaded that it political leadership is capable of setting up a mechanism that if fair and just to try the PEV suspects named by Louis Moreno-Ocampo. The ICC itself is not convinced; three years after the Grand Coalition Government came to life, the Ocampo Six have neither been investigated nor prosecuted. Until an impartial investigator is appointed, an impartial Chief Justice and DPP are appointed, and Judges and Magistrates are vetted, Kenyans want to see the Six shipped off to The Hague to face the ICC. Prof Anyang' Nyong'o reminds us that we are not impotent spectators, but that at least one MP has our interests at heart. All hail the return of the king!

Time to get off the bench!

WikiLeaks is the gift that keeps on giving. Now it emerges that President Kibaki did not offer a sufficiently robust riposte to President Museveni's land-grab in Lake Victoria because he wanted to weaken the Prime Minister and his acolytes in the ODM. It further emerges that before Dr. Sally Kosgei saw the tribal light on her way to the Kalenjin Damascus, she thought very little of the Little Emperor of Eldoret, William Ruto. The picture that Ambassadors William Bellamy and Michael Ranneberger have drawn of our leaders gets less and less flattering the more we read these exposes.

Apparently, the Pre-Trial Chamber II of the International Criminal Court at The Hague has decided to issue summons to appear to the Ocampo Six. This at a time when President Kibaki has despatched his special envoys to the member states of the UN Security Council to beg for a deferral of the prosecutions at The Hague. The summons require the suspects to appear some time in early April. Meanwhile, Parliament has given itself a two-week holiday, after a charge-filled last week in business. PNU is still determined to bloody the PM's nose. ODM is determined to set its house in order, and if the Ruto Twins and their foot-soldiers to not heed the call, they will find themselves out of the Party and out of parliament.

Kenya still faces challenges. Hunger still stalks the land. The Met Department tells us that the long rains may not be as fulsome as some expect, with very few areas receiving adequate rainfall. Youth unemployment remains frustratingly high, yet the commercial banks are raking it in. Informal settlements are going up in flames yet housing finance companies and real estate development companies are making plans for mega projects. Prof. Anyang' Nyong'o has made a triumphal return, calling for more investment into the diagnosis and treatment of cancer while millions of Kenyans go without even the most basic of primary healthcare. Intern doctors do not want to spend three years in government service, yet their expensive education has been largely subsidised by the same people they seek to avoid in the corridors of government-run hospitals. The world celebrates the International Women's Day and yet in Kenya, Angela Ambitho and InforTrak-Harris tell us that gender-equity might as well be a pipe dream. Hundreds of thousands of youthful Kenyans are taking and passing the KSCE without a guarantee that they will have a place in our national institutions of higher learning, having failed time and again to increase their capacities or establish new ones. And in the midst of a road-construction boom, Nairobi is becoming more and more a seriously large parking lot. Millions of man-hours are lost annually by workers stuck in traffic, delayed by the madness on our roads.

And yet it is only one tiny aspect of politics that fascinates us day in, day out. When will we stop obsessing over every minute pronouncement by our political leaders and instead, take up the challenge of getting more and more engaged in the political process? It is time we took time out to consider how and where we can contribute to the political, social, spiritual, economic and cultural development of our nation. This Constitution that we are so proud of will remain but a piece of paper if we do not inculcate in ourselves its principles and objectives. It is our duty as citizens to question our leaders on why things are so dark at present. It is our duty to take responsibility for the irresponsible choices we have made in our political leaders, both at national and local level. It is time we got off the bench and took matters into our own hands. Kenya needs an Arab Uprising of its own; one directed against the pilfering, lying, cheating, murdering, greedy, selfish political leadership that is leading us to death and darkness. We cannot wish our contribution away. The only solution is to become the masters of our destinies. A first step is to remind the politicians that they should fear us, not us them. A powerful signal of our intent will be to not only to ship off The Hague Six off to the ICC, but to round up the thousands that caused mayhem, destruction and murder, and arraign every single one of them before our courts.

The more things change ...

Now that we know know what US diplomats think of Kibaki, Raila, Kalonzo, Uhuru and Ruto, we should begin re-examining why these men think that they are the Second Coming. They have been portrayed in such unflattering terms that it beggars the mind that they still think that they are capable of deciding what is right or wrong about our body politic. It now emerges that President Kibaki has always been in control and that the stories that he is in thrall to his advisors and cronies is bullshit. It emerges that Prime Minister Odinga's calculations have led him to slow down the pace f reform in the hope that he will keep his motley crew together. It emerges that Uhuru Kenyatta has no reason to engage in graft, that he is hardworking, but that he does not have the capacity to lead that many of his supporters claim he does. It emerges that neither the Americans nor Kibaki and his cronies trust William Ruto, seeing in him the embodiment of impunity and corruption. In perhaps the least flattering portrait, it emerges that Kalonzo is an "intellectual lightweight", but this is not news to many of us.

In a just world, we would rate these men on their political and development records. In a just world, their wealth would be of little significance in determining who would become our next president. In a just world, the voice of the people would be heard. In a just world, our votes would count for something. But this is not a just world. They are rich or have rich backers. They control the electoral process. They control their political parties. The voice of the masses is just a voice; it has no effect whatsoever in their decision-making. If they spared a thought for the ordinary man on the street, it has been well camouflaged. What they do and what they say is calculated to ensure that one of them succeeds President Kibaki in 2012.

President Kibaki has appointed special envoys to assist Vice-President Kalonzo Musyoka in his task to seek a deferral of Kenya's ICC trials for a year. Meanwhile, Prime Minister Odinga has opposed this plan. William Ruto has accused the PM of abandoning the men and women who went to the mattresses for hi in 2007 and 2008. His accusation has resonated with a section of ODM, especially Members of Parliament from the populous and vote rich Rift Valley and they have closed ranks with the embattled Eldoret North MP. Indeed, it is now widely assumed that Henry Kosgey, Raila Odinga's party chairman, and Sally Kosgei are firmly in the Ruto camp, allegedly representing the interests of the people from the North Rift. ODM is sending a trial balloon by expelling Isaac Ruto and Aden Duale from the party. If their expulsion has no ill-effect on the party, or if it compels the other rebels to rethink their rebellion, then the gambit will have paid off. If the reverse happens, then Raila Odinga will be entering a period of great political risk and it is uncertain whether he will survive to run for the presidency come the next general elections.

It is now apparent that Mwai Kibaki is loath to see Raila Odinga succeed him in State House. It is also apparent that he has fallen in with politicians from the Mount Kenya region in seeking to see Uhuru Kenyatta take up the mantle of the presidency. William Ruto and Kalonzo Musyoka are mere cogs in the wheels that are turning to spare Uhuru an ICC trial. It remains to be seen how they will be rewarded if Uhuru Kenyatta takes the presidency in 2012. They must know that regardless of the process that will be followed to choose who the flag-bearer will be from among them, President Kibaki and his men prefer Uhuru Kenyatta to anyone else. Regardless of how many turns the Central Kenya region has had at the presidency, they are determined that Uhuru will succeed Kibaki. How Kalonzo and Ruto view this is anyone's guess; but, perhaps, their animus against the PM is so strong that they are willing to live with an Uhuru presidency at the cost of their own ambitions. The Uhuru Project has been revived, nine years after Kibaki himself demolished it. The more things change, the more they remain the same.

What has Miguna Miguna been smoking?

If Miguna Miguna is the Prime Minister's advisor on coalition affairs, then Raila Odinga is in more trouble than we thought. Writing in today's The Star, Mr Miguna attempts to equate the rebellion by William Ruto and his acolytes to a breach of the Constitution and the Political Parties Act. Though he does not refer to them by name, it is clear that Mr Miguna intended them to be sufficiently chastised and to reconsider their wayward ways. His choice of language is deplorable. In a civilised country, to which status Kenya still aspires, you do not refer Members of Parliament, no matter how much you disagree with them, as 'indisciplined brats'.

Mr Miguna glosses over the full import of Article 4. Kenya is, first and foremost, a sovereign Republic. In case Mr Miguna's time as an active advocate have severely crippled his recollection of the definition of 'Republic', here it is again from Black's Law Dictionary: "A system of government in which the people hold sovereign power and elects representatives who exercise that power." It is only after this declaration in Article 4.1 that the Constitution proceeds to declare Kenya a "multi-party democratic State." The classic American definition of 'democracy' is apposite: "government of the people, by the people and for the people." It is in the definition of 'multi-partyism' that Mr Miguna lets down his interlocutors - he does not define it at all! However, it is safe to assume it means a political system where more than one political party is permitted to participate in governance and government.

What Mr Miguna attempts to demonstrate is that the Ruto-led rebellion is a threat to the multi-party system in Kenya, rather than a threat to the Orange Democratic Movement Party. He is, to say the least, wrong. His allegation that "anything done by a party leader or member against the interests of his or her party is [therefore] unconstitutional" must be challenged. Mr Ruto and his acolytes are well within their rights to challenge the direction in which ODM is being led, especially in the tone that the Prime Minister has taken towards the Ruto-led rebellion. His actions do not in any way jeopardise the multi-party system; rather, they place in great jeopardy the Prime Minister as the leader of ODM and therefore, his place as the Prime Minister of Kenya. The National Accord and Reconciliation Act does not recognise Raila Odinga as the Prime Minister; it recognises the leader of the political party with the largest number of members in the National Assembly as the Prime Minister. That person, for the moment, is Raila Odinga.

Kenya, today, is undoubtedly modelled on the Westminster Model of Parliamentary Democracy. However, there are striking differences between the UK system and Kenya's current system, the most notable being that Kenya's is undoubtedly a Presidential system with Westminster-style accouterments, while the UK is a Constitutional Monarchy with an elected bicameral Parliament. A major difference is between the place of the UK's Prime Minister and the Kenyan one; the Prime Minister of Great Britain is the head of government, while the Queen is the head of state. In Kenya, the Prime Minister is a 'co-principal' who is neither the head of state nor the head of government, and whose place in the constitutional line of succession is murky at best.

The issues that Mr Miguna raises as being a threat to our Constitution are figments of his peculiarly hyperactive political imagination. However, a few things that his party has done have been a threat to Constitutionalism, the rule of law and democracy. Article 91(2) prohibits political parties from engaging in or encouraging violence by, or intimidation of, its members, supporters, opponents or any other person. The manner in which the Prime Minister and his defenders in the ODM Party have treated William Ruto and his band of rebels is intimidation of the worst kind; it is apparent that the PM is incapable of countenancing opinions or views different from his own when it comes to the vision of the party. 

Mr Miguna alludes to ideology, platform and programmes as the glue that holds political parties together; yet it is increasingly apparent that the only ideology that is welcome in the ODM is the one that acknowledges Raila Odinga's inalienable right to succeed President Kibaki. ODM is neither conservative, liberal, liberal democratic, Christian democratic, social democratic or socialist; in fact, I would go so far as to suggest that it is more than mildly authoritarian, especially in the manner in which internal dissent is quashed and internal elections constantly postponed to give the incumbent office-bearers time to re-strategise after suffering setbacks. If the party is unable to foster internal debate or democracy, if it will not countenance internal dissent, and if it will ignore the clear provisions of law, what is to stop it, if it comes to power, from running Kenyan as its own personal fief? Why should we trust that the party that is least democratic will increase the democratic space of ordinary Kenyans?

ODM, indeed all political parties in Kenya, has failed to inculcate democratic ideals either in its top leadership or in its rank-and-file membership. It has failed to allow the flourishing of differing and different ideas in the hopes of identifying an ideology to suit its circumstances. It has failed to identify alternative leadership models or ideas. If this were 1969, ODM would be KANU, where old and aging men (always men) decide everything, and acolytes carry out their masters' wishes. It is a caricature of the mass-movement that defeated Kibaki's demon-seed of a Draft Constitution in 2005. It is a pale shadow of itself. Raila Odinga must shoulder some of the blame for its dire state of affairs. As must William Ruto and the likes of Miguna Miguna.

Lessons from Germany

It is not enough that you can bring ten thousand screaming and chanting men and women into the streets. It is not enough that you can bring the State to a standstill. It is not enough that your words are capable of igniting a conflagration. For you to be a national or local leader, you must be fit to lead. In Germany the Defence Minister has just announced that he will resign after it was reported that he plagiarised as much as 5% of his PhD thesis. In France, they will not take you seriously as a national politician unless you have at least two or three best-selling books on weighty matters such as economics or law or, that French favourite, poetry. Even Barack Obama, president of one of the most un-lettered nations on earth, has a few books to his name. In Kenya, we make do with men and women who would not qualify to head a nursery school, yet we allow them to muck about with billions of shillings in the name of 'national development'.

Martha Karua, the Chairman of NARC-Kenya, insists that Gidion Mbuvi is an intelligent man and that he is a valuable addition to the National Assembly, and a valuable asset to her party. However, unless he was making a political point that escaped the rest of Nairobi, his treatment of the Minister for Special Programmes yesterday at Fuata Nyayo slum was unconscionable and betrayed a level of ignorance that would be shocking if it were an isolated event. You must recall Kiraitu Murungi's statements about rape a few years ago still with shock, especially when you consider that he pursued a Masters Degree at the prestigious Harvard University in the United States. On the anniversary of the Standard Group raid by hooded thugs in the employ of the government, John Michuki will not admit that what he ordered was wrong and an affront to our basic civil liberties. His friends in PNU will, no doubt, stand by him.

In the National Assembly, Martha Karua, Mutula Kilonzo, James Orengo, Abdikadir Mohamed, Ekwe Ethuro, Eseli Simiyu, Wycliffe Oparanya, Anyang' Nyong'o, John Harun Mwau, and Paul Otuoma show that a well-read person is a force to be reckoned with. It was a sad day for the National Assembly when Mukhisa Kituyi lost his deposit and his seat. His ripostes against the forces of reactionism are sorely missed.

The antics of Joshua Kuttuny, Simon Mbugua, Gidion Mbuvi, Bifwoli Wakoli, Millie Adhiambo and Rachel Shebesh, though amusing, show that for some, power is something they must be kept away from. If you are incapable of appreciating the role-model status that you enjoy as a national leader, you have no business conducting the affairs of State. This sad state of affairs is far much worse when it comes to our local authorities. Councils are populated by men and women who will hurl chairs at each other when they disagree; instead of defeating an argument with superior debating skills, they will resort to violence indicative of a third-world basket case. It is no wonder that almost all our local authorities are bankrupt and are incapable of providing even the most basic of services without allegations of inefficiency, inefficacy or corruption. It would come as a shock if a Cabinet member or an office holder in a local authority were to resign simply because they weren't smart enough.

The path that politicians have trodden is slowly being taken by Kenyans from all walks of life. People are unwilling to work hard; choosing instead the short-cut to success. The level of cheating in national examinations is getting to epidemic proportions and while the results may indicate that more cases of cheating are being prevented, it is not for want of trying. The reason why the KNEC insists on photo-identification documents is proof that we will do what it takes to lie and cheat our way to success.

These Augean stables must be shovelled of the muck that has infested them. We must all clean our houses. In 2012 we have the opportunity to re-create the dream of August 27th 2010, but to do so we must face up to the reality that we have allowed our politicians to get away with a lot. It would be enough if we were to insist that they knew what government means, what it can do, and how it can do it. If any of those snake-oil salesmen has not even bothered to read and understand the Constitution, he should not be given a second thought.