Tuesday, May 31, 2011

The wave of anti-government litigation is good for the nation

Stephen Mutoro of the Consumer Federation of Kenya (COFEK) and Ndung'u Wainaina of the International Centre for Policy and Conflict (ICPC) have gone to the High Court arguing that the Constitution is under threat. Mr Mutoro argues that as a result of the failure of government regarding the escalating cost of energy, and by extension, the cost of living, the economic and social rights of Kenyans guaranteed under Article 43 have been violated. He is seeking orders to compel the government to take steps to control the 'skyrocketing' price of basic commodities and lower the cost of living. Mr Wainaina, a committed activist, is seeking to prevent the Minister for Finance from reading the Budget on June 8th until he has complied fully with the provisions of Chapter 12 of the Constitution on Public Finance and specifically, Art 221.

Both Mr Mutoro and Mr Wainaina have ignited the imagination of Kenyans with their antics. They are not alone. The Constitution opened the floodgates that had been kept shut by the autocratic tendencies of all three previous regimes. Kenyans today are free to demand the protection of their constitutional rights without the fear that State agents will arrest them in their sleep and detain them without trial, or worse. In this context, it is fit and proper that if there is a dispute regarding the government's dedication to the protection of the rights enshrined under Art 43 or the willful violation of the provisions of Art 221, the proper forum for resolving these disputes is a Court of Law. We may scoff at their arguments, but we should appreciate that the usual manner in which we resolve disputes involving machetes and clubs are no longer necessary under the new constitutional dispensation.

Many may decry the messy manner in which the implementation of the Constitution is proceeding, but there is nothing wrong in ensuring that at these early stages in the 2nd Republic, all manner of styles and principles are tried and tested so that we are able to tell which ones work and which do not. It is in this context that the debate surrounding the suitability of Dr Mutunga and Ms Barasa as nominees for the positions of CJ and DCJ should be welcomed. Just because polls show that 80% favour their appointments is not proof positive that all Kenyans are unanimous about this. It may be that the polls failed to take account of the vast majority of off-the-grid Kenyans and thus the 80% may not be a figure that is unassailable. But, it is only through a vigorous public debate and where possible court-room litigation that we may finally acknowledge that Kenyans from all stations in life were given an opportunity to participate in public affairs.

On national security and food security and 2013

Public Watchdog, also known as Watchie, is at it again, equating a poor food security situation to poor national security (When majority of citizens go hungry, national security by State is a mirage, Standard, 31st May, 2011). National security simply means the survival of the state using military, economic and political power. Food security, on the other hand, is simply the availability of food and ones access to it. Now Kenya has suffered almost a decade of poor rain seasons, with dramatic and terrible rounds of drought brought about by the El Nino and La Nina weather phenomena. In the past two years, the territorial integrity of this country has been tested by Ugandans, Ethiopians, Southern Sudanese and Somalis, in addition to sundry drugs'-smugglers and human-traffickers.

What Watchie fails to appreciate is that in a developing country like Kenya, there will be no absolute security over anything. At this point in our evolution, the nation is in the middle of a difficult transition, a transition that is threatened by entrenched interests and foreign powers to suit their ends. At the same time, the long-term effects of the Structural Adjustment Programmes of the late-eighties and early nineties are now being exorcised, and this too in the midst of a slowing global economy. The national security neighbourhood is not as rosy as Watchie would have you believe: unstable nations to the North (South Sudan, Somalia, Ethiopia, Egypt), and autocratic quasi-democracies (Uganda, Rwanda, Burundi), and jealous donor-dependent ones (Tanzania). Neither is the political landscape calm - political and constitutional transition, a fractious coalition government, and a disintegrating National Assembly. So when exactly would the government have had time to set about crafting a coherent food security-cum-national security framework?

Let us examine a few facts, regardless of the challenges we face. Despite the fact that pockets of the country are undergoing severe food and water shortages, a majority of the country has access to food in adequate quantities, though not necessarily at affordable prices. Despite the deteriorating internal security situation, and discounting the Ugandan land-grab in the Lake Victoria, Kenya is generally at peace with its neighbours, which is remarkable considering all of them in the past 40 years have either been at war with each other or with themselves. Despite decades of KANU hegemony during which Kenya's economy slid from one of promise to one of ridicule, Kenyan entrepreneurs did not lose sight of their skills or talents and as soon as the markets re-opened to them, they took the world by storm. The innovations, especially in telecommunications, pioneered in Kenya are proof that with the correct incentives, the sky is the lower limit of our ambition and potential.

But, our success or failure has hinged to an unhealthy degree on what the political class will or will not do. This is set to undergo a paradigm shift in 2011. While eliminating the political class almost entirely from the Executive, the Constitution has expanded the National Assembly, created a Senate and devolved Executive and, to some extent, Legislative power to 47 County Governments. The power of the Executive has also been circumscribes with many layers of checks and balances; its freedom to do as it pleases no longer exists. The power of the Legislature to award itself pay-rises not commensurate with its functions is also completely eliminated. 

Therefore, the political horse-trading that usually accompanies national crises should be a thing of the past once a professionalised Cabinet is appointed and the new Government gets down to work. With the active participation of a vigilant and enlightened citizenry, then things like hunger or cross-border banditry should come to an end. If we sit and whinge, as is our wont, not even a new Executive, judiciary or Legislature, or indeed, a County Government, will save us from hunger or foreign invasions.

Monday, May 30, 2011

Don't hate the lawyer, hate his client

The State Law Office is the largest law firm in Kenya, and Wanjuki Muchemi is the busiest managing partner (Solicitor-General). The role of the of the Attorney-General under the former Constitution has come in for a lot of flak, especially given that the tenure of Amos Wako seems interminable, having survived the implosion of the Moi presidency and almost the Kibaki one too. If it was not for the transitional clauses in the new Constitution, Amos Wako could have retired as Attorney-General, having extended his term at the State Law Office longer than all his predecessors combined.

The manner in which the A-G has been mentioned in public, including by international interlocutors, has been very unflattering. The A-G has somehow managed to keep smiling through it all, refusing to break the oath of confidentiality between him and his principle client, the Government of Kenya. If he had been an advocate in private practice, his professional colleagues would not be calling for him to reveal the content of his communication with his client, let alone publish it for all and sundry to read. It is one of the most basic lessons that green law students are taught at university, reinforced during pupillage and doubly emphasised when one is called to the Bar.

The A-G has borne all the ill-will directed at him with exceptional goodwill. His detractors, for the most part, have never met the man and have never appreciated the circumscribed manner in which his authority was exercised. It is in the realm of public prosecutions through, initially, the Director of Public Prosecutions, and now recently, the Chief Public Prosecutor, that the A-G has gained especial notoriety. When he has entered applications for the withdrawal from prosecutions, sometimes he has been accused of shielding well-connected persons, or having an interest in the non-prosecution of certain members of society. In the manner in which he has advised government regarding various transactions, his opinions have been received by his detractors with much-ballyhooed anger and promises of enquiries into the conduct of the A-G himself.

Many refuse to accept that while the A-G is no ordinary lawyer and the government is no ordinary client, until the foundational principles of the practice of law are reviewed, the A-G, even under the new Constitutional dispensation, is still limited to offering his client the best possible advice. Whether the client chooses to heed the advise is up to him. When the government is sued for one reason or another, it is the responsibility of the A-G to defend his client, regardless of his personal or moral feelings of the defense. It is the same position that Dr Gibson Kamau Kuria took during the Kiruki Commission into the activities of the Artur Brothers, arguing that if the Devil had been accused and had retained his services, he would defend his interests before such a Commission. 

The Chairman of the Law Society, the Chairman of the Advocates Commission, and the Chairman of of the Advocates Disciplinary Commission, and indeed the one of the Kenya Law Reform Commission, will all agree that from a professional point of view, Amos Wako has conducted himself to the highest standards of the profession. If his clients were determined to pillage and loot the Exchequer, the A-G did not have the luxury of whistle-blowing like the former employee of the Central Bank who disclosed the Goldenberg Scam. He could only advise his principle client of the correct legal position, and defend his interests as and when they were under attack.

The animus with which Article 156 and section 31 of the Transitional Clauses were drafted betrays the fact that even with an impressive Constitution, Kenyans are still not confident enough about themselves or their public institutions. This recognition tracks with the general mood of Kenyans, one fostered by poor political leadership and a general decay ion many non-governmental institutions, including schools and faith-based organisations. The desire to lay the blame squarely on the shoulders of one man is so strong that few are willing to examine the fats and arrive at correct assessments of circumstances that led Mr Wako to serve as long as he has. 

If Mr Wako had demonstrated the same political ambitions that Charles Njonjo did, his career would have been very short. Let us see if the wishes of the Anti-Wako lobby will be satisfied with the appointment of an A-G after August 27, 2011. But be warned, the person's tenure now is less secure and his powers reduced, but his influence shall still be all-pervasive.

Books and their covers, and the effects of first impressions

It must be mentioned: public displays of integrity are very unreliable indicators of Christian, or any other sort, of values. The history of man is replete with tales of sheep in wolves' clothing, pretenders who hid their true nature until they achieved what they wanted before revealing their true selves. In Africa, living saints like Nelson Mandela are the exception that prove the rule. When he voluntarily stepped down as president after one term, he set the tone for all the other African presidents. They all found it difficult to follow his lead: President Moi may have left peacefully, but it was by no means voluntarily. Uganda's Yoweri Museveni managed to persuade his parliament to amend the constitution to remove the term limits that he himself had negotiated into the document in the first place. Tunisia's Ben Ali and Egypt's Mubarak were violently removed from office, kicking and screaming.

All of them came to power, having made certain promises that were quickly forgotten once the trappings of power became addictive. It is not possible to determine whether the public face of an individual accurately demonstrates his morality or his acceptance of certain societal norms. Therefore, it is entirely possible that the Church leaders are correct that Willy Mutunga and Nancy Barasa, because of their complicated personal lives, may be entirely unsuited to hold the positions of the Chief Justice or Deputy Chief Justice. On the other hand, their complicated personal lives may instead, give them the breadth of experience and empathy with the messiness of everyday life to allow them to make truly judicious rulings on matters that may come to the Supreme Court for determination. It is a principle of law that where two scenarios are possible, the one that favours the accused is the one to be adopt by the Courts. In this instance, the benefit of doubt, absent concrete evidence of Dr Mutunga's unsuitability, or indeed, Nancy Barasa's, must lie with the candidates.

This is not to say that we must allow them a free hand in the manner in which they shall helm the Supreme Court. Anyone who wishes to see the positive development of law, or the defense of deeply-held values system, must participate in the next phase of judicial development, that is, one must take a keen interest in the quality of the judges who will be appointed by the Judicial Service Commission to the Court of Appeals and the High Court of Kenya. The representative of the faith-based organisations who resigned his seat on the JSC denied the Church a voice in the selection of the next Chief Justice and Deputy Chief Justice. Why the church leaders did not move with speed to replace him with another one of their nominees remains a mystery, but it is not too much to speculate that had they done so, they would have had a say in the choice of the next CJ and DCJ, and if their views had been ignored, they would have had valid reasons for rejecting the choices made. In the USA there is a saying that aptly captures the church's dilemma: decisions are made by those who show up. They did not show up and so their position of opposition is weakened by their absence.

At this stage in the process of implementing the Constitution, it is imperative that the Supreme Court is established. Its role in the interpretation of the Constitution is being usurped by unqualified and incompetent institutions, such as the Commission for the Implementation of the Constitution and the Constitution Implementation Oversight Committee. The process of confirming the CJ and DCJ and appointing the Judges of the Supreme Court must be done quickly and professionally. The delay in the establishment of the Supreme Court is allowing the main opponents of the Constitution adequate time to ensure that there are enough bottlenecks and stumbling blocks in the public sector, that the Court will spend the first few years of its existence simply trying to undo what has been done.

In this context, the red herring that is the question of the nominees' values system must be ignored, and instead, focus must shift to the the more crucial question of who will sit in the SC, the Court of Appeal and the High Court, in order to ensure that the hard-won rights of individuals are protected from those that would seek to undermine them.

Sunday, May 29, 2011

We must elevate public debate

A strange argument is gaining currency that the nominees for the positions of Chief Justice and Deputy Chief Justice are unfit to hold those positions because they will adversely affect the moral fibre of Kenyan society, especially given that the nominee for the position of CJ is an ear-stud wearing two-time divorcee, the nominee for DCJ is single, and both of them have shown a disturbing level of tolerance for deviant behavior, especially homosexuality, and a permissiveness regarding abortion that borders on the genocidal. If they are confirmed in their positions, the argument goes, the two will preside over a Supreme Court hell-bent on re-writing the moral code of the nation and encourage the murder of the unborn on a scale never seen before. In other words, the two are the vanguard of the Dark Days predicted by so many apocalyptic religions. They are un-African and un-Kenyan.

The debate that their nominations has generated, and the debate now surrounding the question of when the Budget will read, demonstrate that when it comes public discussion of matters of national importance, facts are to be treated with contempt. The number of persons that purport to speak for the masses, or to speak with professional certainty, boggles the mind. Some are now styling themselves as the conscience of the nation, determining who is right and who is wrong, who is a man of integrity and who is not. Some style themselves experts at the interpretation of the Constitution, never mind that they keep quoting sections that do not exist.

A good example is the equation that integrity equals morality. A keen reading of Chapter Six on Leadership and Integrity shows that "morality" is absent from the entire Chapter. Key phrases in this Chapter include "respect for the people", "honour to the nation", "dignity to the office", "serve the people", "personal integrity, competence and suitability", "objectivity and impartiality", and "honesty". If one wishes to challenge the nominations of Dr Mutunga and Ms Barasa on the basis that they do not satisfy the conditions, or the objects, of Chapter Six, they must demonstrate this using facts, not innuendo, as has been the case so far. Indeed, Dr Mutunga and Ms Barasa will, or they should, welcome scrutiny based on what they have done and what they have said in the past, but the evidence provided so far as to their suitability would be laughed out even from a kangaroo court.

It is expected that any person who wishes to engage in public debate must do relying on facts. This is a condition that must be observed by everyone who purports to be involved in the implementation of the Constitution, including public officers, church leaders and members of the general public. Anything less is to be construed as an abdication of public duty and should be ignored.

Friday, May 27, 2011

I accuse the church in Kenya

My Brothers-in-Christ, as I was used to calling them, continually stressed the Americanism: hate the game, not the player. In their zeal to convert Souls to Christ, they would overlook any alleged personal moral weakness, and instead, they would dedicate their every waking moment, or so it seemed, to prayer and on some occasions, Chanting-in-Tongues. Back then, while I may have grown increasingly incredulous about the efficacy of their methods, I did not doubt the sincerity of their convictions. They may have looked like they were off their rockers, but their hearts were in the right place and I believe God Himself was speaking to, and through, them. The quality of their conviction was demonstrated ona daily basis as they went out of their way to ensure the Army of Christ emerged victorious in the Spiritual War being waged on earth for the Souls of Men.

And I may have carried on in blissful contentment if it had not been for the Bomas Conference, the 2005 and 2010 Referendums, the 2007 General Elections and the nomination of Dr Willy Mutunga for the position of Chief Justice and Nancy Baraza, Advocate, for the position of Deputy Chief justice. I should not have been surprised; the signs were there for the discerning to see: the complete and utter intolerance to the question of Family Life Education in schools; the close links between certain Men of the Cloth and President Moi and his regime; the quisling silence of the Church when outspoken members of the clergy were brutalised at the hands of the government.

But, the Bomas Conference was the first time that the Church, or at least its leadership, came out openly in its true colours: ethnically and paternalistically chauvinist, well-entrenched with the Establishment, opposed to serious constitutional reform if it did not involve the relegation of other faiths, notably Islam, to second-class status, and the blatant politicisation of church pews for or against the Second Liberation Movement. These tendrils of infamy sank deeper roots during the 2005 Referendum, the 2007 General Elections, the 2007/08 PEV Crisis, and the 2010 Referendum. The Church and its leadership, or through its leadership, acquitted itself shamefully. But, their opposition to Dr Willy Mutunga's nomination takes the biscuit.

Because of his earring, and because of his twice-divorced status, the Church has declared that Dr Mutunga's integrity is in doubt, and that he does not satisfy the conditions laid down in Chapter 6 of the Constitution (the same Constitution they opposed tooth-and-nail) on Leadership and Integrity. One of the guiding principles of leadership and integrity is "selfless service based solely on the public interest". When Dr Mutunga was a lecturer at the University of Nairobi, he served the public interest. After he was dismissed from service, and after he was unfairly incarcerated, and after he was released from prison, Dr Mutunga served the public interest. His complicated personal life did not affect the manner in which he served the public interest. The church, on the other hand, abdicated its role the moment it became 'difficult' to speak for the weak in society; instead, it joined hands with the purveyors of lies and violence, the masters of corruption and murder. Today, the church stands accused, if not of complicity in the crimes against Kenyans, at least for gross negligence in the performance of its duties to Kenyans. The church does not have the moral authority to raise doubts, not about Dr Mutunga or anyone else. At this point in its evolution, the church and the Devil share the same moral minefield; whether it can safety navigate its way back to straight and narrow all depends on whether Kenyans will pull their heads out of the sand and acknowledge that reform will not be limited to the Judiciary, but the Church, too, must be reformed.

Thursday, May 26, 2011

Eternal vigilance: The price we pay for an independent Supreme Court

The Judicial Service Commission (JSC) is at it again, this time overlooking sitting judges for the positions on the Supreme Court and instead, packing their short-list with candidates from the private sector. At least that is how some conservative members of the Bench feel, what now with the nominees for the CJ and DCJ jobs being 'outsiders' and experienced senior judges, once again, getting the short end of the stick. Of the 26 short-listed candidates, only five are destined to be appointed to the Supreme Court, and if successfully completed, this will bring to a close the first trying phase in the reform of the Judiciary. The Supreme Court, other than intervening in disputes involving presidential elections, is set to become either the defender or the betrayer of the Bill of Rights.

It is this context that must continually inform the choices that the JSC continue to make in the constitution of the Supreme Court. It is good that the Judiciary does have experienced senior judges, and no one would gainsay the fact that their experiences will continue to be of great and critical importance to the Chief Justice as he embarks on what is surely to be a trying 6 years (if the good Dr Mutunga is indeed confirmed by the National Assembly). However, simply because they are senior judges and simply because they are experienced does not mean that they must be appointed to the Supreme Court or, as the JSC demonstrated earlier, as the Chief justice or Deputy Chief Justice.

One of the reasons why Kenyans do not have any faith in the Judiciary, regardless of the true situation in the corridors of justice, is the perception that judges and magistrates, especially senior and experienced ones, were senior and gained experience simply because they were lackeys of the Executive branch, especially during the much-maligned rule of President Daniel Toroitich Arap Moi. The situation has not been helped with advocates, including some very vocal members of the Judicial Service Commission, telling all and sundry that the Judiciary is rotten to the core and that the nation would be best advised to rid itself of a judicial class that has caused more problems than even the perfidious and avaricious political class. If the key actors in the administration of justice, that is the Bar and the Bench, do not have a positive word to mention about the other, there is no way that public confidence in either institution would be high. As a result, it is presumed, rightly or wrongly, that the senior and experienced judges, despite no adverse mention of their names, are not the right persons to head the Judiciary or sit in the Supreme Court. It is in this context that the rejection of Samuel Bosire, Riaga Omolo, Alnashir Vishram, Joseph Nyamu, Hannah Okwengu, Mary Ang'awa and Kalpana Rawal for the positions of Chief Justice and Deputy Justice is to be seen. It si also why the choice of Dr Mutunga and Ms Barasa as CJ and DCJ was inspired - their lack of ties to the Establishment may stand them in good stead as opposed to the perceived advantage of being senior or experienced.

But, we must remain vigilant. There are many conservative members of the profession in private practice who would or could have the opportunity to affect the manner in which the Bill of Rights is protected and promoted. If they manage to infiltrate the Supreme Court or, indeed, the superior courts, there could be a derogation from the Bill of Rights to such an extent that individual liberties would exist only on paper while in practice, the Executive would continue to ride rough-shod over an uninformed public. It is not just the independence of the Judiciary that is critical, the members of the Judiciary must have independent minds and must dispassionately apply the law with a view to protecting the marginalised and the vulnerable.

Tuesday, May 24, 2011

Musinga, J may be unpopular, but he is right

The thrust of today's Public Watchdog article (When does public interest override an individual's, The Standard, Tuesday 24, May, 2011) is that under certain special circumstances, the rights of the individual must surely give way to the overwhelming needs of the majority, and that the Courts must make this distinction when such public interest issues as elections come before them. In Public watchdog's opinion, Musinga, J was wrong to grant the petitioner against the IIEC an injunction stopping the Kamukunji by-election. Instead, the court should have commiserated with the petitioner while still trampling over his right to be heard in a court of law.

In the 1920s, as Adolf Hitler was coming up in German politics, he had already formulated the germ of an idea: blame a community for the ails of the Wiemar Republic. As a result, the rights of minorities were slowly whittled away when the National Socialist Party came to power in the 1930s, starting with homosexuals and mentally retarded persons and ending in the gas-chambers of Sobibor and Riga. 

In Kenya, the courts do not have a stellar reputation; the persistent perception is that the Government and other powerful men and women have used the courts to trample over the rights of the individual or communities in the name of the majority. Just last year, the African Court of Human and Peoples' Rights ruled that the manner in which the Endorois were moved off their land to make way for a foreign-exchange generating tourist hotel was wrong and that the Endorois deserved compensation or in the alternative, the land should revert to them.

Whether it is one man's rights or it is a small community's, the principle still applies: it is wrong for the rights of a few to be trampled on in the name of the rights of the majority. Of course, it is regrettable that the IIEC spent many millions preparing for the bye-election. But it is equally wrong, as the Court determined, that the receipt of nominations was conducted in such a manner as the rights of the petitioner were violated. 

In Mario Puzo's The Godfather, the Don intones, "Better a thousand guilty men go free than an innocent man go to jail". In Kenya, it should be that it is better that the majority suffer an inconvenience if it means that the rights of the least of us will be protected. Once we start differentiating between the different individual rights that are inviolable and those that are, we will be treading upon a slippery slope whose end will only be calamity. To insist on the Courts being partners in this sort of discourse will be both calamitous and disastrous.

Sunday, May 22, 2011

Who among us is without sin?

It is only natural that Dr Willy Mutunga's nomination will give rise to speculation that his ear stud is a sign of his moral decrepitude. It has been used as a lightning rod by William Ruto and Canon Peter Karanja of the NCCK to cast doubt as to the moral probity and integrity of Dr Mutunga to hold the post of Chief Justice of Kenya. The fears that Mr Ruto and Canon Karanja expressed during the referendum campaign, to their minds, have come to pass and the nomination of Dr Mutunga, and Nancy Barasa to a lesser extent, is proof positive that the new Constitution is the doorway for immoral and 'unconstitutional' practices in Kenya and that Dr Mutunga, and his Judiciary, will be at the forefront of promoting 'alien' practices and ideas by 'legislating from the Bench'.

Lost in the debate about Dr Mutunga's stud is the fact that he has been at the forefront of the Second Liberation Movement, having not only been jailed unlawfully by President Moi's government, but also having articulated the intellectual and legal philosophies of the Second Liberationists, receiving recognition and acclaim for both his scholarly and political treatises. His personal life, if it has been of an immoral character, would be germane to the question of his suitability to serve as Chief Justice, but in the 21st Century, divorce is no longer a cause to question the integrity of a man or woman, not even if they are twice divorced.

Dr Mutunga and Ms Barasa have promoted the concept of equality before the law of all and the equal treatment of all before the law in their professional careers. This is the fundamental basis for the rule of law. Our Judiciary must be at the forefront of protecting the rights of individuals enshrined in the Bill of Rights of the Constitution that we ratified on August 4, 2010 and promulgated on August 27th, 2010. None can question their professional qualifications to hold the positions of Chief Justice and Deputy Chief Justice. It is only on the malleable concept of morality that their nominations are questioned, and the likes of Mr Ruto and Canon Karanja are promoting a false debate knowing full well that they have no legitimate basis for their opposition.

The Bill of Rights at Arts 27 (Equality and freedom from discrimination), 28 (Human dignity), 32 (Freedom of conscience, religion, belief and opinion) and 33 (Freedom of expression) protects the rights of the two nominees as much as of the Kenyan people. Dr Mutunga and Ms Barasa cannot be prevented from holding the two positions merely because they have expressed opinions regarding the rights of homosexuals, or on the unfounded innuendo that Dr Mutunga is himself a homosexual. The only legitimate ground for campaigning against their nominations would be that regardless of their professional qualifications, their moral conduct, either in public or in private have been such as to raise significant doubt about their moral probity and integrity. No proof has been presented to suggest that the two have been involved in any activities that would raise doubts about their morality or integrity, and Mr Ruto and Canon Karanja know this.

The nominees are set to be vetted by a discredited Tenth Parliament. The National Assembly is noted for the manner in which it has trampled over the rights of Kenyans, from awarding themselves pay-rises they did not deserve to ignoring the plight of millions who have suffered from the ravages of drought, food shortages, water scarcity and invasion by marauding raiders from across our borders. They have taken their personal political conflicts to ridiculous heights, sometimes defending men and women accused of heinous crimes against individuals and communities regardless of the pain and suffering of the victims. In their various dubious campaigns, they have been joined by men and women of the cloth, a partnership that has eroded the moral and spiritual authority of the church. In the Book of John at Chapter 8, Jesus is asked to judge a woman accused of adultery. He exhorts her accusers that the one without sin be the first to cast a stone against her and carry out what was the traditional sentence for adultery: stoning to death. None could, all being convicted by their consciences. In the case against Dr Mutunga and Ms Barasa, are Mr Ruto, Canon Karanja and their supporters blameless of sin that they should be the first to cast stones against the nominees?

Saturday, May 21, 2011

The world will only end after Agwambo has been consulted

By my clock, it's one-and-a-half hours since the deadline for the End Of The World came and went. This world is full of doomsdayers, and I must say, I cannot blame them. This is not the first time that someone has predicted the end of the world, and it will not be the last. It is in the nature of man to predict the worst when things are dire. In Kenya, today, hunger stalks the land amidst plenty. The government is stumbling from one coalition crisis to another. Our borders are about as impermeable as a sieve. Who would not take the doomsday scenario seriously? Apparently a sugarcane farmer in Western Kenya has sold all his worldly possessions, leaving his wife and seven children destitute. He has now been taken into custody by the police. I am still trying to work out what criminal offence he committed, save being incredibly stupid.

In the United States, men and women have made a career of predicting the worst and in an increasingly interconnected world, it is only natural that their crazy musings make their way to otherwise placid places like our fair land. Some time back, another fringe Christian community was persuaded that the end of the world would be accompanied by nuclear hellfire. Suffice to say, in their own peculiar way, they took precautions, gas-masks and all. Of course, they were taking their cue from an American crackpot. The USA is home to more nutcases than a No. 14 'Nissan'. Since we seem to place our faith in American hip hop and rap stars, Oprah and Tyra Banks, why should it surprise us that the fringe elements of the American bible belt have ardent followers this side of the world?

In 1963, when Mzee Jomo Kenyatta was being sworn in as Prime Minister, he identified the triple threats of ignorance, disease and poverty as the issues that an independent Kenya would fight. 48 years later it is clear that we have failed on all three counts. Poverty-levels refuse to fall below fifty per cent. More mothers and children die at child-birth like never before. But it is the continued ignorance of Kenyans that continues to defy all attempts to redress this issue. Mwai Kibaki's Free Primary Education has only served to swell the ranks of primary schools without addressing the key question of quality. Secondary schools keep on churning out students incapable of holding a coherent conversation in either English or Swahili. But it is our ivory towers, the public universities, that take the biscuit.

Very few of our university graduates, and even fewer graduate students, are capable of intellectual engagement at a global level. In 2005, when Kenya was going into a referendum over the so-called Wako Draft, even university professors could be heard declaiming that if Agwambo had read the draft they had not reason to do so, and they would vote 'no' when the referendum came to pass. Similar sentiments are expressed by the K'Ogalo, those rabid supporters of Gor Mahia Football Club: no team is 'allowed' to defeat their beloved team unless Agwambo has been 'consulted'. As a result, they continue to be a blot on the national conscience, raining death and destruction wherever their team suffers defeat on the pitch. It comes as no surprise that the K'Ogalo include doctors, lawyers and teachers among their ranks.

So, when the next doomsday conspiracy inevitably sweeps across the world from that bastion of lunacy that is the United States, do not be surprised if a significant proportion of the lunatic fringe of the Kenyan populace joins in the hysteria. It is only to be expected when we fail year in, year out to sweep out the Augean stables of the rot that permeates our education system.

Sunday, May 15, 2011

Charles Kanjama is wrong, the JSC did us proud

Charles Kanjama is wrong (By rejecting judges, JSC failed in assessing suitability, Standard on Sunday, May 15, 2011). While there may be doubts as to the manner in which the public inquisition was conducted, the decision by the JSC to forward only two names to the President is not wrong. Even if the JSC had fallen on sitting judges for the positions of CJ and DCJ, they should have forwarded only one name apiece for the two positions. The rationale behind this stratagem, namely to deny the politicians an opportunity to horse-trade on the choices, is a welcome departure from the feckless manner in which appointments to public offices have been conducted by the Kibaki-Raila coalition government.

A major reason why Raila Odinga threw a hissy fit when Kibaki nominated four persons for the positions of CJ, DPP, A-G and Controller of Budget earlier this year was the fact that he and the president had horse-traded on the nominations and the president, and his wing of the coalition, had reneged on the deal. As a result, the nation was treated to days of uncertainty with members of the coalition government making all manner of threats, throwing doubt on the stability of the government and giving pause to potential foreign and other investors. The JSC, mercifully, has denied the principals an opportunity to rain more uncertainty on the people of Kenya. The two have one choice only: accept the nominees' names or reject them. Parliament too, is limited to that choice: it can either approve the nominees or reject them. This is good for the country.

The JSC has discharged its duty. Whether it was wise for them to employ the methods they did will be debated until the next round of interviews for the judges of the Supreme Court, but no one doubts that it was a great confidence boost for the country to see their betters subjected to the same kinds of questions hapless graduates undergo when they are 'tarmacking'. Given that this is the first time that Kenya has engaged in this kind of theatre, it is only reasonable to expect that the JSC will get better at it. Mistakes were bound to be made, but they are not mistakes that will bring this nation low or the candidates who were not selected into disrepute. It may be that the 'philosophical premise that existing judges are not independent, clean or qualified enough' is wrong, but Kenyans, regardless of their stations in life, have endorsed the nominations of Dr Willy Mutunga and Advocate Nancy Baraza and it would be wrong to presume that even uneducated Kenyans do not enjoy the right to accept the choices that have been made on their behalf by one of the most representative interview panels this nation has ever seen.

The ball is now in the President's court. If he allows his 'advisors' to muddy the waters and he rejects the JSC's nominees, he will have proven once more that he holds the same views he did before the overwhelming ratification of the Constitution. Parliament, through its committees, has already demonstrated that, bar a few dispiriting political incidents, that it will perform its duty of holding public officers to account in a public forum. It is expected that the National Assembly will take its cue from the JSC and conduct a public examination of the candidates and, where necessary, members of the JSC during the confirmation process. This is how it should be. All we can pray for is that these institutions will get better with practice and the quality of public vetting will improve. Only then can we claim we have turned the page on a past that has brought shame and disrepute to the people of Kenya.

Resign or deny the rumours James Ole Kiyiapi

Murithi Mutiga, as always, was thought-provoking this Sunday when he writes that Martha Karua and James Ole Kiyiapi must do better if they are to run a successful presidential campaign in 2012 (To Karua and Kiyiapi: You have to do much better to topple Old Guard, Sunday Nation, May 15, 2011). He asks Prof Kiyiapi to take the proper lessons from Barack Obama's successful presidential campaign if he is to secure the presidency in next year's general elections. However, he misses a big point: if James Ole Kiyiapi is the face of an honourable presidential campaign, he has misstepped by not coming out and saying that he is running in the first place.

Prof Kiyiapi is the Permanent Secretary in the Ministry of Basic Education, having taken over from the hapless Prof Karega Mutahi who had been in charge when some of the scandals that bedevil the Ministry came to light. Prof Kiyiapi had come to the ministry via the Ministry of Medical Services and the Ministry of Environment and Mineral Resources. It is moot that Prof Kiyiapi is an honourable man in a government that frequently has such men in short supply. However, if his presidential ambitions have become fodder for Op-Ed pieces in our daily newspapers, it is time that he came out and admitted or denied the rumours swirling regarding his putative presidential bid.

Public Service rules are clear that when a public servant wishes to enter elective office, he must resign from the public service. One of the objectives of this rule is to prevent public servants from misusing or abusing their positions for political reasons. It is now widely reported that the registration of the Restoration and Rebuild Kenya Party is linked to a possible presidential run by the PS. if it is true, then his continued stay in government is unconscionable. If he is unwilling to play by the rules at this stage, it is entirely possible that he will be willing to overlook the strictures of other rules once his campaign gets underway or if he is elected president of the Republic. It therefore, behooves him to step down and concentrate on his political career. Everything he now does will be interpreted by interested parties through political prisms. He is likely to be accused of using his public office for personal gain, an accusation that could have adverse consequences on him both personally and politically.

Political campaigns require money and supporters. Will the PS raise his campaign funds using his office? Will he require the public officers he oversees to contribute to his campaign? Will every decision he makes now be with the presidential campaign in mind? These are some of the questions that must be addressed at present. To put them to bed, Prof Kiyiapi must either announce his presidential bid and resign from government or deny any such ambitions and carry out his duties faithfully and responsibly. His continued silence over this matter likens him to the hyenas in the Tenth Parliament that Kenyans have so come to loath.

Thursday, May 12, 2011

The JSC is wrong to insist on solid anti-corruption credentials for the CJ and DCJ

The Judiciary Service Commission is oddly obsessed with the question of corruption in the Judiciary, insisting time and again that the candidates for the offices of Chief Justice and Deputy Chief Justice (as President and Deputy President of the Supreme Court) will be solely responsible for reforming the Judiciary and eradicating corruption from the hallowed halls of justice. The truth, as always, is more nuanced. If the job of reforming the Judiciary fell on the shoulders of the CJ and DCJ, then we can start counting the many missteps in the process right now.

The job of the CJ and DCJ is administrative; the policy aspects of their role in the Judiciary will be to ensure that the Judiciary functions effectively and efficiently. Of course they have a role to play in fighting corruption, but it is not their primary function, nor even a critical part of their job description. Art 166.3 lays down the qualifications for appointment as CJ and none requires him to have been at the forefront in the fight against corruption. What is required of a candidate is 15 years as a superior court judge or 15 years as a distinguished academic, judicial officer, legal practitioner or such other experience in other relevant legal field. However one chooses to interpret these qualifications, they do not include an affirmation that the candidate was a key player in the fight against corruption, whether in the Judiciary or elsewhere. Of course, it is imperative that the candidate have no connection to corruption or corrupt acts.

What the interviews reveal, and from the statements made by the candidates under consideration, is that they have not actively participated in activities that were crucial in the fight against corruption. Dr Willie Mutunga may have written about this problem, but there is no proof that he has done anything to actively contribute to this fight. Therefore, insisting that the candidates possess solid anti-corruption credentials is irrelevant and misses the role that the CJ and DCJ will play in the administration of justice in Kenya.

It is in their administration of the Judiciary that the CJ and the DCJ will be judged. We already have multiple institutions charged with the duty of fighting corruption: the Kenya Anti-Corruption Commission and the Office of the Director of Public Prosecutions come to mind. It is their duty to fashion strategies, tactics and procedures for the fight against corruption. The job of the CJ and the DCJ will be to implement these strategies to ensure that Kenyans who seek justice in our courts are not short-changed. Therefore, the candidates must demonstrate that not only are they competent managers of the machinery of justice, but that they are willing to implement policies and strategies formulated by others in ensuring that "justice for all" is not just a slogan but a defining principle for the Judiciary. Insisting that they come up with strategies for a function that has already been assigned to another agency or institution is to misjudge the place of the Chief Justice in the fight against corruption. It is time that the JSC in determining who is the best candidate jettisoned this pipe-dream and instead focused on what makes a good Chief Justice.

Wednesday, May 11, 2011

Tribe? Really? In the 21st Century?

It is remarkable that despite the fact that thousands upon thousands of Kenyans have attended universities, which are by definition non-ethnic ivory towers, the adult population of Kenya is obsessively concerned about the ethnic orientation of his next-door neighbour. Of course, a university education is no guarantee that a person will not be influenced by the politician-peddled ideas of ethnic superiority or inferiority, but it helps, or should help, that universities are cosmopolitan institutions, drawing students from all communities, faiths and walks of life. However, as has been demonstrated by the manner in which our public universities are managed, especially the Big Three - Nairobi, Kenyatta and Moi - not even a professorship obtained from a foreign university is enough to staunch the iniquity of the tribal card. It is now common knowledge that Nairobi University is a bastion of Luo chauvinism, as Kenyatta University is Kikuyu and Moi University is Kalenjin. This is reflected in the manner the Vice-Chancellors administer these institutions: whom they choose to promote and whom they exile to academic Siberia.

But, it is in the public sphere where the dark cloud of ethnic division looms large. Over the past three years a narrative has been floated to the effect that 'foreigners' are buying up large swathes of Nairobi, pushing out 'locals' and thereby, presenting a looming national security risk. It is being subtly promoted in the Kamukunji by-election, with the implication that the two candidates from the Somali community are unsuited to stand for election as they are not quite right. In Nairobi, the plight of the Somalis receives no publicity; many Nairobi residents are either resigned to the blatant xenophobia against them or they are active purveyors of the lies that seek to depict Kenyan Somalis as less Kenyan than, say, Kikuyus or Luos. This is the same attitude that led the residents of Trans-Nzoia to oppose the settlement of IDPs in Endebess or the residents of Molo to reject the ones in Mau-Narok. It explains why the NCIC found that certain ethnic communities 'dominate' the ranks of the civil service while other remain marginalised. It explains why the MPs from the Turkana community feel that the Government of Kenya has abandoned them to the machetes and machine guns of marauders from across the border in Ethiopia.

Certain social institutions are not spared either. Churches have become the latest victims of this chauvinism. This was in stark display when 'bishops' led massive prayer rallies for the Ocampo Six, showing their loyalty for the man from their community. Not one of them shed a tear for or remembered the pain of the displaced or the dead. In church after church, right across the country, men of the cloth are busy preaching a subtle sectarian message, shepherding their flocks towards supporting 'their man'.

And now this poison has made its way to the internet. The number of hate-filled, ill-informed and patently tribal websites and blogs has exploded in the recent months. The consumers of this material tends to be youthful and the youth is being poisoned by the same tool that should free them from the shackles of their community or their politicians. It will be a sad day when young men and women will not be able to attend university because it is located in the 'wrong' area. If we do not change, that day will be upon us before too long.

Reforms cannot be borne by the CJ alone

It is remarkable. The JSC placed the onerous duty of reforming the Judiciary, and ridding it of the dead weight of decades of Kenyatta and Moi rule, on the arguably feeble shoulders of the future CJ and DCJ, and the candidates undergoing scrutiny by the JSC were at pains to demonstrate that 'they' were the right people to manage the onerous task. What is even more remarkable is that these candidates are falling for this bait-and-switch. All, bar none, have come out with plans of what they will do, how they will do it, and how long they expect to be at it (never mind the ten-year tenure of the CJ under the Constitution).

If the reforms in the Judiciary were to be left in the hands of the members of the Judiciary, we would still be waiting for change by the time the JSC sits to interview the fifth CJ, fifty years from now. Many of the members of the Judiciary have been at it for decades; many are tainted, if not by actual acts of commission, but then by association with the acts of the Kenyatta, Moi and Kibaki regimes, and not one of them is trusted to be an honest broker when it comes to the question of reforms in the Judiciary. Their incredulous tone of hurt at the suggestion that their association with the ills of the past three regimes would be laughable if it were not for the fact that the candidates have no idea what is required of them as the reform agenda gets truly underway. Neither, it seems, does the JSC.

The most effective reform tool in this programme is transparency. The Judiciary has embarked on a modernisation programme to drag it into the 21st Century. The Milimani Commercial Courts are set to be the most advanced in the country, featuring state of the art equipment and software for the effective administration of its affairs. If this programme is extended to every single court in the land, then the battle for a more transparent Judiciary will have been half-won. The other half of that equation is the willingness and the will of the Judiciary to open up its affairs to public scrutiny. Some of the candidates suggested that they would institute systems of performance review to ensure that the courts are as effective as possible; this is laudable. But the results of the performance review must be published widely in order for Kenyans to know who is to be trusted, and who is not. The JSC, too, must publish what criteria it is relying on in the assessment of the candidates. When it makes its choice of CJ and DCJ to the president, it must publish a report explaining why it suggested the candidates, and what it hopes they will bring to the Judiciary.

Relying on the media for an accurate examination of the interviews and their impacts on the administration of justice in Kenya has proven an exercise in futility. It is now clear that they do not have the intellect or the capacity to sieve out the salient features in the assessment of who is and who is unsuited to head the Judiciary in Kenya. As a result, we are compelled to rely on other sources, such as the politically-divided Law Society or the few independent talking heads that make their way to the TV studios. Therefore, if the new CJ and DCJ, and the JSC wish to ensure the successful reform of the Judiciary, it is imperative that they operate in the most transparent manner possible, flinging open their files for public scrutiny. It is the only way that they can be redeemed in the eyes of the people.

Tuesday, May 10, 2011

Are we a failed state?

There is something odd in running Kenya's defence and foreign policy in the media and in the hallowed halls of the National Assembly. When, as Minister for Defence, or Internal Security or Foreign Affairs, you are being cashiered by men and women with incomplete information based on some atrocities committed against citizens, it is proof positive that you have failed. It is remarkable that the Kenyan response to citizens getting slaughtered by foreign militias was a protest note and a fact-finding mission by a group of Nairobi-based security officials. It is even more remarkable that two years since Migingo Island was grabbed by the Government of Uganda, Kenya has allowed the same government to lay claim to another island, Ugingo.

According to that website that released thousands of American diplomatic cables, President Kibaki allowed the Ugandans to lay claim to Migingo in order to humiliate the Prime Minister, seeing that the island lies in what is Mr Odinga's back-yard, Luo Nyanza. Is the same rationale behind the lack of response to Uganda's land grab in Ugingo Island? Is it the same rationale behind the fact that the Government has not responded muscularly to the continued murder and mayhem in Kenya's arid Northern Frontier? Prof George Saitoti's continued claims that Kenya's territorial integrity will be safeguarded against all comers is beginning to wear thin and MPs Ekwe Ethuro and John Munyes are right in thinking that perhaps the Government of Kenya considers their constituents to be second class citizens, unsuited to the robust protection by the almighty state.

It is quite possible that the Government of Kenya has a long-term strategy to defend its borders. After all, other than Omar el Bashir's army, Kenya has one of the most professional and disciplined armed forces in the region. Its General Service Unit and the Kenya Army's Recce Units have no equal in the region. Their deployment to the porous borders with Ethiopia, Sudan and Somalia should be a matter of course.

Dr Ekuru Aukot, the former Executive Director of the Committee of Experts, is right to scoff at the promises of the government that the perpetrators of the massacres in Turkana will be caught and brought to justice. We have seen this movie before and the punch-line is the same as it ever has been. The obsession by the Party of National Unity with the outcome of the 2012 presidential elections is robbing this nation of opportunities for development, peace and stability. Rumours are now circulating that the $1 billion required for the upgrading of the oil refinery in Changamwe and the creation of a strategic oil reserve is nothing but a strategy to raise campaign funds for the 2012 elections, with the aim of preventing Raila Odinga from becoming the fourth president of the Republic. If this is true, then it paints a poor picture of the PNU: they would rather burn down the house to kill a rat than find a better mouse-trap.

When the United States suffered the worst terrorist incident in 2001, they responded by waging war on their enemies, including the invasions of Afghanistan and Iraq. The merits of the wars and the Global War on Terror will be up for debate for a long time to come, but a message had been sent: attack us and there is nothing we will not do to get you. Osama Bin Laden learnt that lesson when he was killed by American special forces some time last week. What is Kenya willing to do to persuade its neighbours that it is not a soft touch? It is time we got off the fence and supported a robust response to the constant aggravations of our neighbours and while we are at it, we should also let the politics end at the nation's borders. Whatever the fight may be between ODM and PNU, it cannot be played out at the expense of national security or the lives of Kenyans.

Sunday, May 08, 2011

It is a brand new dawn

Senior positions in the Public Service are not like ordinary jobs. If you are being interviewed for a job at a private institution, it is unnecessary for your potential employer to conduct a public examination of your suitability for the job. The institution may have its reasons for secrecy, not the least being the secrets related to its successes, and this secrecy cannot be taken as an affront on the right of Kenyans to be informed. The Public Service, on the other hand, is special, and it is imperative that the men and women who make policy and other decisions while implementing government policy are persons of probity, integrity and intelligence, capable of deciding matters in the public interest and freed from any conflicts of interest by the record of their service or experience in and out of government. It is therefore, fitting that the JSC interviews for the positions of Chief Justice and Deputy Chief Justice are conducted in the full glare of the public, an unheard off event in the annals of Kenyan history.

Kenyan presidents do not like to be told what to do or have their power restricted by the uninformed masses. Moi and Kenyatta ruled by decree, deciding who would serve the nation and how they would serve. The manner in which government policies were implemented, or laws enforced, was as as transparent as mud. Kenya entered into treaties and other agreements at the behest of the president and president alone. The government drew from the Consolidated Fund as if it was its own personal bank account, without real accountability or any attempt at transparency. As a result, the nation suffered when billions upon billions were looted by well-connected individuals from the public coffers. President Kibaki came to power, promising that he was a new broom ready to sweep away the detritus of the KANU Era, but having inherited a system perfected by his predecessors and enjoying the power they had wielded, he was loath to give up the same pernicious influence enjoyed by them. The First Kibaki Administration was a disappointment for the millions who had chanted "Yote yawezekana bila Moi." The Second Kibaki Administration began on a very low note; hundreds of Kenyans had been displaced from their homes and thousands had been murdered. The president himself had been sworn in in secret.

But the spectre of Judges being grilled out in the open by an independent panel has revived the hope that was Kenya in 1963. The interviews have been ham-fisted, but the rationale behind them is still sound. This nation is no longer prepared to sit idly by while the President and his cronies make decisions that affect us. The days when secret appointments to public offices could be done without taking into account the needs of the nation are long gone. If Kenyans are to be persuaded that a wind of change is sweeping across the land, it is imperative that this public interrogation of all senior public officers be extended to every public institution. In the long run, the interview panels will be professionalised; they will make adequate preparations for their activities and they will strive to erase the impression that they are professional hatchet-amen out to settle scores with those they interview. This will also ensure that the public is informed of the qualifications of those who attempt to sit at the top of the edifice that is government. If we are lucky, public confidence in the government will rise, and instances of abuse of office will be reduced. It's a brand new dawn and potential candidates for public office had better get used to it.

Reform the Oil Sector and Quit Whingeing

The day after Easter was a daytime nightmare for the army of motorists on Nairobi's roads. Petrol station after petrol station reported that Super/Regular petrol was unavailable; stocks had not been delivered due to 'logistical problems in the supply chain'. As usual, some Kenyans took advantage of the problems. The rains during the week proved an added advantage to those who sought to profit from the artificial shortage of petrol. Matatu operators made a killing. Middle-men vendors of petrol made a killing. Vendors of jerry-cans made a killing. The Ministry of Energy and the Energy Regulatory Commission blamed unspecified 'oil cartels' for the problems bedevilling the energy sector. The oil marketers blamed the government for not cushioning them against an adverse market environment. All the players in the sector refused to take responsibility for their part in the fiasco. Meanwhile, Kenyans suffered the shortages with the usual blend of stoicism and whingeing that has become our trademark, another peculiar Kenyan habit.

The oil industry is complex and competitive. According to the Ministry of Energy there are over 50 licensed marketers and distributors of oil products in Kenya. The process of getting petrol into a vehicle begins with the Open Tender System. This leads either to the Kenya Petroleum Refinery at the Coast or to the Kipevu depot of the Kenya Pipeline Corporation. Then this leads to various transport options from the Coast, including rail, road and pipeline, to the limited depots of the main petroleum vendors across the country. The system has been plagued with crisis after crisis for at least a decade and promises by the government to create a Strategic Petroleum Reserve have not borne fruit. The demand by the government that industry players maintain a 21-day buffer to cushion the public from supply shocks is observed more in the breach, and none of the industry players has taken any steps to ensure that the required infrastructure to maintain such a buffer has been constructed. The problems Kenyans faced last week are not the last; they will recur if we do not take steps to change the manner we manage the system.

Regulation of the sector must be reformed. The first step should be to eliminate the conflicts of interest inherent in the system. Many of the policy-makers in the industry are investors in the industry, or they are proxies for investors in the industry. This is set to change when the new Cabinet is unveiled in 2013. God-willing, the President and the National Assembly will keep in mind the strategic importance of the system when appointing the Cabinet Secretary for Energy, keeping in mind the role it will play in meeting the objectives of Kenya Vision 2030 and the suppression of inflation rates. Secondly, the policies to be adopted in managing the sector must take into account that a majority of Kenyans live hand to mouth and any disruptions in the system tend to raise the short-term cost of living, reducing the capital available for other needs such as school fees and healthcare. Thirdly, the role of the sector in the economies of some of our neighbours is crucial to maintain a lead in the region; if the Kenyan government is unable to appreciate this, the risks that international investors will take a more hands-on approach to creating viable alternatives to the Kenyan market are great. For instance, the dredging of the Port of Dar e Salaam is always mooted as a viable alternative to the Port of Mombasa. However, given the low investment in other key infrastructure in Tanzania, such as road and rail, has always prevented the upgrading of the Tanzanian port. However, recent events may encourage international investors, including our current beau China, to invest more in Tanzania, posing an economic challenge to Kenya as the preferred port of choice for the import of oil products into the East African Region. Finally, clear rules must be drafted for the management of the sector and they must be faithfully and transparently enforced. Conflicts of interest must be eliminated as far as possible, otherwise all the reforms in the world will come to naught.

The oil industry plays a significant role in the success or failure of other industries in Kenya. But it is the supply chain where its effects are the greatest. Until it is reformed, the gains that may be made in the supply chain, especially in the export-oriented industries, will be lost and the economic fortunes of this nation may improve only for the few who will take advantage of the situation. A transparent review of energy policies and rules is warranted, and the public must play its part instead of whingeing every time there is a crisis.

Thursday, May 05, 2011

Refashion Kenya's diplomacy or suffer the consequences

Kenya is in a hostile neighbourhood. Uganda, in addition to making an unlawful claim on the Migingo Island, has now also dubiously set claim on another Lake Victoria island, Ugingo. Ethiopian marauders frequently cross the border at Turkana and kill Kenyans, apparently at will. The internecine wars in Somalia have crossed over into Kenya with many killed in the Mandera border town and many more in our capital city. 

It is only a matter of time before the instability that we thought we had sorted out in Southern Sudan spills over once more into Kenya. The fate of Kenyan workers in Tanzania is still a festering boil between the two governments and the provisions of the EAC Treaty are being respected more in the breach by our brothers down South. Let us not forget that as soon as Egypt sorts out its nascent troubles with the new wave of democracy sweeping across the Arab world, it will re-think the new Nile Waters Treaty and Kenya will find it and its allies defending themselves against a resurgent nation with a professional and well-trained military.

At this juncture, Kenya's foreign policy needs a firm hand and the candidates positioning themselves to take over the mantle of the presidency must begin to articulate the nature of their foreign policy when they come to power. Martha Karua, the first out of the gate, must begin to demonstrate that her presidency will not just be obsessed with national issues; international ones will also have an impact on the manner in which she implements her agenda and it is imperative that she takes a more than casual look at what constitutes her international relations policies.

Prof George Saitoti, the acting Minister for Foreign Affairs, having taken over from the hapless Moses Wetangula, makes for a poor head of foreign policy. In the years he served as President Moi's deputy, he was not known for any bold strategic thinking. Instead, much t his humiliation, he was forced to sit out the Vice-Presidency for a term while Moi decided whether or not the nation needed a V-P in the first place. It is now his responsibility to manage the disparate elements of Kenya's diplomatic corps with a view to strategically positioning the nation to take advantage of the situation in our back yard, while at the same time balancing the relations between Kenya and the West and a rising China. Why he allowed Kalonzo Musyoka to go begging to the Indians remains a mystery only the sands of time will tell.

Kenya has an interest in a stable South Sudan and a peaceful Somalia and Ethiopia. If Meles Zenawi, who betrayed the African Union during the Copenhagen climate change talks, is unable to rein in the Merille who have become a thorn in Kenya's side then Kenya should begin to reassess its relationship with the mercurial Ethiopian Prime Minister. And while Kenya acts as a conduit for arms to the forces of Salva Kiir, who took over from the slain John Garang, it must also influence events in Juba to prevent the flaring up of an ethnic war between Kiir's Dinkas and their perceived enemies. That would be catastrophic not only for Africa's newest nation, but for Kenya too. These are not the eighties when we could host tens of thousands of refugees; our economy cannot cope with the influx of refugees at this time.

We need a robust foreign policy overseen by a competent diplomatic corps and a Minister who knows what he is doing. It is time for the President and Prime Minister to appoint a substantive foreign affairs minister and to refashion our foreign policy to reflect the changes on the ground. No longer can the ministry be used as one more front in the war between PNU and ODM and the president cannot appoint a minister whose sole job will be to keep Raila Odinga down. That mistake was made with the appointment of Raphael Tuju and we are still recovering from the ham-handed way he managed diplomacy. Ms Karua must tell us what she intends to do. If she cannot, then her credentials as a president will be seriously handicapped.

Wednesday, May 04, 2011

A disappointing start to the JSC's search for a CJ

The Judicial Service Commission's interviews of the Chief Justice candidates has gotten off to a predictable rip-roaring start. As expected, the 'hard' questions were being asked by Ahmednasir Abdullahi, and in his interrogation of Nyamu and Bosire, JJ, he did not hold back. In one instance he suggested that Bosire, J, was an intellectual light-weight quite unsuited to the position of the President of the Supreme Court of Kenya. Given the kinds of questions that were highlighted by our incomparable news media, I am unable to say that the JSC disported itself honourably or effectively.

Regardless of the lofty ideas that Mr Abdullahi was peddling, it is moot whether the candidates are competent or qualified to hold the position of CJ. The fact that they were short-listed by the JSC would be proof positive that these men and women are indeed so competent and qualified and questions regarding their time in high school or university do not serve to demonstrate whether they should or should not be appointed to this high position. The interviews betray the fact that the JSC was ill-prepared for these interviews. 

For instance, it was a complete waste of time to ask the Judges what qualifications they hold to qualify for this position. Perhaps, in their abrasive manner, the members of the JSC were attempting to tease out the judicial philosophies of the candidates but there is scant proof of this. Instead, it is emerging that the interviews are a long-awaited opportunity for some members of the Commission to score points against the judges interviewing before them and some, like Mr Abdullahi, have taken the opportunity to take pot-shots at their hapless victims.

What the Commission should be concentrating on is the judicial philosophy of the candidates; whether they accept that a paradigm shift occurred with the ratification of the new Constitution by the people of Kenya and what they will do, once appointed, to ensure that the gains of the Second Liberation are protected and advanced in the corridors of justice. These are not issues that can be determined by examining the academic qualifications of the candidates; they can only be determined by questioning them on issues of human rights law in the context of the Bill of Rights and asking questions that would reveal their biases, if any, regarding the knotty issues, some of which were highlighted during the referendum campaigns. Indeed, the Judiciary had taken positions on some of the 'contentious' issues, especially the question of the vetting of magistrates and judges. The views of the candidates thus far on what have become constitutional issues remain a mystery simply because the Commission failed to address them.

We have modeled certain aspects of the Second Republic on the American one and it would be instructive to examine what happens when the United States Senate considers the nominees for the US Supreme Court. The Senate Judiciary Committee is usually divided along party lines, with the Democrats generally favouring 'liberal' judicial nominees and the Republicans ,conservative' ones and the questions the members of the Committee ask of the nominees are designed such as to determine the level of the nominees' political bias. These issues usually revolve around totemic matters such as abortion, guns and judicial activism.

A glaring difference between the two systems, other than the obvious one, is on the preparation that is undertaken by the Senate Judiciary Committee before the confirmation process begins. The Committee members usually have staff that pore over the finer details of the nominees' professional lives, and sometimes their personal lives if they have had an impact on their judicial philosophy, and the results of these investigations usually determine the manner in which the confirmation process would unfold. For instance, when Justice Sonia Sotomayor sat for her confirmation hearings, the questions from the Committee were designed to address some of the judicial principles she held on to in light of some of her controversial rulings as a federal judge. The questions members of the Committee asked were designed to make a determination on whether Justice Sotomayor would be a valuable addition to the Supreme Court. Her confirmation hearing became a test of wills, and numbers, between the Democrats and Republicans in the Senate and her appointment was greeted with relief from liberals in the US.

The JSC does not seem to have been similarly prepared and their manner of interviewing reflected a problem that is bedeviling our nation. Rather than examine a person's record with a view to determining his or her suitability for the job, we seem more interested in ephemera at the expense of substance, hence the JSC's obsession with Bosire, J's 'lack of intellectual capacity'. The JSC must up its game if it is to be taken seriously in future, both by the public and candidates for judicial office. Otherwise, the effect of these interviews may be to put off potential candidates and therefore, deny the nation qualified and competent judicial officers. The effects on the Judiciary would be calamitous.

Monday, May 02, 2011

How to make the Karua campaign different

What sort of campaign should Martha Karua run? In Kenya, politics has nothing to do with substance, policies or manifestos. It is all about the ethnic group and the money. Ms. Karua, who has launched her campaign, is yet to announce what strategy she intends to pursue outside of the rhetoric and platitudes that were made during her launch at the National Museums of Kenya. Talk about the rule of law and the economy are par for the course and until Ms Karua informs her supporters and the public how she intends to address these issues, she will have trodden a path that has been beaten by politicians from Kenyatta to Kibaki over the past 4 decades.

Back to the question: what sort of campaign should she run? In America, that paragon of political action, a candidate for any office would begin by putting together an exploratory committee that would be converted into a campaign-to-elect committee. Then she will get her supporters to establish political action committees (PACs) to either raise money for the campaign or prepare policy briefs on the issues being articulated in the campaign. At this stage, it is not clear whether Ms Karua has any form of committee to assist in running her campaign, address the issues that will be raised or raise money. If she intends to run a creditable campaign, then Ms Karua must take the necessary steps to ensure that she is not tarred with the same brush that is likely to tar the other candidates.

It is clear that Ms Karua does not have the same financial muscle that Mr Kenyatta and Mr Odinga have, or the networking skills of Mr Musyoka or Mr Ruto, the other so-called front-runners. Therefore, she must establish a fund-raising staff to generate the millions that she will need to traverse the country and to articulate her policies. She must put a think tank together to advice her on the issues that she intends to articulate. She has raised the question of rule of law and the fight against corruption. Whom will she turn to to advice her on these issues? She may have been an ex-magistrate and a legal eagle, and a Minister of Justice, and a three-term Member of Parliament, but this does not mean that she is an expert on law and order, or corruption. If she intends to address the question of youth unemployment, then she must find an expert on economics who will be able to assist her in formulating a strategy to stimulate the economy in order to generate private-sector jobs for the unemployed youth of Kenya.

She has fired the first salvo of her campaign, but now the hard work begins. She has pledged transparency in a Karua administration, but in order for this pledge to be taken seriously by the voters, she must ensure that she runs as transparent a campaign as a possible. If she puts together a campaign staff and if she somehow manages to persuade egg-heads to join her advisory committees, she must announce their appointment or engagement. She doesn't have to tell us what they do or what they advise her, but it is imperative for Kenyans to know what sort of advice she is receiving. If she intends to win, she must get the best people to help her in her campaign. Sitting politicians can only offer her a limited perspective of the political playing field; she needs experts in various aspects of politics, including the nitty-gritty of political campaigning.

Sunday, May 01, 2011

A word of caution for the supporters of Martha Karua

Martha Karua launched her presidential bid this past week at the National Museums of Kenya. Notably, other than Danson Mungatana, NARC-Kenya's secretary-general, other politicians from her party gave the even a wide berth. Indeed, even the most recent MPs from her party, William Kabogo and Gidion Mbuvi, have thrown their weight behind Uhuru Kenyatta, the Deputy Prime Minister. The Member for Gichugu has done a creditable job of representing her constituents in the Tenth Parliament, and as a Cabinet Minister, ensuring that their issues are well articulated and their interests protected. He pledges during the launch resonated with a cross-section of Kenyan society: resettlement of IDPs, better healthcare and living conditions for Kenyans, and upholding the rule of law. Until her manifesto is published, we will not know whether she has a plan or is just full of promises, something that Kenyan politicians have perfected over the past forty-seven odd years.

If Ms Karua were to become Kenya's fourth president in 2012, she will inherit a country in transition and a government in crisis. The ethnically-divided and divisive politics of the past two decades is a challenge that she will have to address within days of her confirmation. She will have to deal with an economy that benefits a few fatcats at the expense of millions of the working classes. She will have to ensure that the process of constitutional implementation remains on track and that the government is cohesive, reflects the face of Kenya and works for the interests of the people, not the politicians. Her record, alas, is not encouraging.

In today's Sunday Nation, Ahmednassir Abdullahi (Karua deserves to be Kenya's next president) glosses over some of the issues that defined Ms Karua's record in and out of government. Until the day she was named a Cabinet Minister in Kibaki's two administrations, she remained true to the ideals that propelled the Second Liberation Movement forward. However, her role as Justice Minister, and previously as Water Minister, raise questions about her objectivity and competence. As Minister for Water she oversaw the implementation of the reforms in the water sector. The effects of those reforms are being felt today. Water services are still inefficient and riddled with corruption. They are so expensive that millions of Kenyans who live in urban areas cannot afford to access them at reasonable fees. While allegations of favouritism in allocation of resources never received the same scrutiny Charity Ngilu's did, questions still linger over the manner in which she used her position as minister to ensure that Gichugu, and Kirinyaga South generally, benefitted when it came to allocation of finances and other resources by her ministry.

But it was her robust defense of the Kibaki regime in the aftermath of the 2007 General Elections and her actions as Minister for Justice that will come in for especial scrutiny. She defended the indefensible and must take her share of the blame for the bloodshed that ensued after that ill-fated election. As Minister for Justice she demonstrated caprice when she publicly disagreed with the manner in which the president sought to appoint three new judges of the High Court, using the apparent presidential snub as one of her reasons for resigning from the Cabinet. She has never publicly explained why she objected to those three appointments, appointments that came to pass anyway, and why it was so important for the Minister for Justice to be consulted when she had no role to play in the nomination process or appointment of the judges. That is a role, under the former constitution, that was reserved for the formerly constituted Judicial Service Commission and the President. The Minister, suffice to say, is neither a member of the JSC nor the president. 

Under the new Constitution, the president is only the nominee and appointing authority of judicial officers, the primary role of vetting and assessment being played by the newly created JSC. Will she use her power as president to attempt to circumvent the place of independent offices in the process of appointing new judicial officers?

What Mr Abdullahi sees as a strong personality may be interpreted by others as high-handedness and an inability to countenance dissension, charges that have been laid at the feet of the Prime Minister and leader of the Orange Democratic Movement Party. Indeed, the internal democracy of her party is doubtful, as seeing that internal elections have never been held to choose party officers. Indeed her pledge to live by the rule of law would seem to be belied by the fact that her party has not complied with some of the provisions of the Constitution or the Political Parties Act that separate members of the legislature from the leadership of political parties. Perhaps it is her pragmatic acknowledgment that while Kenya is in transition it would be foolhardy for a party leader to give up her position while other political parties do not make the same changes. This may in turn raise doubts about her leadership; will she claim pragmatism when she is called upon to make unpopular political choices when she is president?

No one doubts that in the cut and thrust of Kenya politics, Ms Karua has acquitted herself admirably. But the presidency is not just about the flash of political gamesmanship but also about the substance of leadership. Therefore, before we entrust the leadership of this nation to her untried hands, we must be sure that she will play the game with honour and that she will defend the national interests. This she can do by beginning the process of reforming her party, ensuring that not only does it abide by the letter and spirit of the law, but that it also reflects the wishes of its membership. For this, it must have members and until she attracts members to her party, I am loath to endorse her candidacy. After all, if she cannot get people to join (and pay for) the party, how can we be sure that the 'usual business' of party politics are not the reasons why she garnered the nomination to run for the presidency. Ms Karua faces great challenges; she can only surmount them if she demonstrates that she is willing to play by the rules she herself endorsed when she campaigned for the new Constitution.

We must save the young or they will eat their young

I did not attend the Swaggerific concert at the Kenyatta International Conference Centre, mostly because I was not aware that it was taking place, and also because if I had heard about it, I would still not have been interested. Jamaican dancehall reggae leaves me cold as do Kenyan hip hop and dance hall artistes, if artistes be they. However it is NTV's County Edition report on the 'bend over' mania that leads me to question whether we have permitted the beauty of music and dance to be so corrupted that men and women would allow themselves to be led astray by a Jamaican phenomenon that has faced the wrath of the Jamaican government in recent years. Daggering, the dancehall lyrical and dancing style, has been banned in public by the Jamaican government for its lewdness and propensity for abuse, being accused of leading the moral decline of a youth whose promise is being wasted at the altar of sexism and immorality.

This is not the first time that music and dance are being challenged. Every generation rebels against its senior and it was so during the 'twist' age of the sixties and the rock 'n' roll age of the fifties. This is, however, the first time that a majority of youth are joining in the condemnation of a style that they admit has 'gone too far'.

It is still unclear whether the rise in cases of child sexual abuse is a s a result of the increased openness of the Kenyan society or the fact the we are becoming more and more sexually decadent. Ever since the media started chronicling the manner of ways in which children are sexually exploited, not a week goes by without another horrific tale of men (and women) taking sexual liberties with children under their charge. The daggering phenomenon folds easily into this narrative, exposing the fact that families are no longer safe havens for children and that sexual offences, despite the enactment of the Sexual Offences Act, are on the rise. Indeed, even at our tourist hot spots, it seems that Kenya has also become a destination of sexual tourists, just as Phuket in Thailand has. So-called 'go-go bars' encourage this wild licentiousness under the noses of forces of law and order allowing the less inhibited members of our society to indulge in behaviour that has often been associated with the morally decadent West. 

In all this Kenya is losing its cultural and spiritual way. In recent months, a bench at the historic Muliro Gardens in Kakamega has become the subject of intense discussion among the youth, spiritual and political leaders. Images of men and women engaging in sexual congress in broad daylight have been broadcast on the internet, their passionate embraces flashed around the globe for all to see. In another incident, men and women have been photographed indulging themselves in a cemetery, of all places. Have we become the biblical Sodom and Gomorrah?

It is high time that the spiritual and moral authority of parents, the church, teachers and the government was reasserted to bring back the youth from the brink of destruction. We cannot sit idly by as boys and girls are introduced to the mysteries of sexuality without guidance or advice. Parents must take their roles and act as the moral and spiritual guides and guardians of their children, ensuring that they are exposed only to what is beneficial and preventing the wolves among the sheep from leading the youth of this nation astray. 

Virtues are to be inculcated in the formative years of childhood in the hopes that children will grow up to appreciate that not all pleasure must be pursued and that there is a fine line between enjoying oneself and indulging oneself with abandon. Schools, and teachers, must ensure that instruction is not just limited to taking and passing examinations, but also ensuring that moral values are reinforced. 

Teachers unable to properly guide their charges must be dismissed and the Kenya National Union of Teachers must ostracise the members who abuse the enormous trust bestowed upon them by parents and society. The church must get back to its core business, spiritual and moral guidance. If this comes at the expense of its new found passion for political discourse, that is neither here nor there. It must not take its eyes from the ball as it is the one institution that al Kenyans agree is without parallel in moral and spiritual leadership. If it fails in its duty, the consequences on the nation will be felt for generations to come. 

Finally, politicians and political leaders must also play their part. They cannot limit their role to simply taking and retaining political power. Whether they like it or not, they are looked upon as role models too and it is their duty and responsibility that youth are protected from the evils of the world and guided to taking up their rightful roles in society. Anything less and they must be purged with the same zeal we reserve for purging vermin from our kitchens and households. The future of the nation hangs in the balance.

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...