Tuesday, June 28, 2011

The A-G serves the government, not the people

The Attorney-General -

(a) is the principal legal advisor to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and
(c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.

Art 156 (4), Constitution of Kenya

A fiction is being broadcast that the Attorney-General serves the people of Kenya. Nothing could be more inaccurate than to presume that the role of the A-G is to serve the people of Kenya. He serves the national government and his duties revolve around serving the interests of the national government, protecting it sometimes, even, from the people of Kenya. His duties are not assigned to him by the people of Kenya, but by the Constitution, Acts of Parliament and by the president himself. In some instances the duties of the A-G will coincide with the protection of the public interest, but for the most part, the A-G will be protecting the interests of national institutions such as the Executive, Parliament and the Judiciary whenever and wherever they are parties to civil suits in courts or other tribunals. The President shall also assign such additional duties as he may deem fit, such as legislative drafting, preparation of contracts and offering legal advice on international agreements and treaties.

Therefore, the principal role of the A-G is to act as a legal advisor to the government, not to act as the defender of the national interest. This is why the opprobrium that has been heaped upon the State Law Office by those who perceive it as having betrayed the public trust is misplaced. The concept of an independent A-G misses the fact that the A-G serves, or served, the national government, particularly the Office of the President. As an ex officio Member of Parliament, the A-G was not an elected representative, nor a nominated one, but appointed by the President to offer advice to the government. The criticism levelled against the State Law Office should therefore, have revolved around the quality of the legal advice that it gave the government (or shall give in the future) and not on whether the public interest was served by such advice.

While Kenyans must be concerned about the person who shall occupy the Office of the Attorney-General, this concern must be logical. What we want is an A-G who is eminently qualified and who understands the role that he will play in national governance. Ultimately, though, the President will nominate only such a person who will be able to serve him best. In other words, the President will only nominate a person who will enable him to govern effectively. The President, after all, is elected and he must serve the public interest. To do so, he must receive the best advice, include legal advice, from those who serve him, including the A-G. Those calling for the appointment of an independent A-G are proposing a recipe for disaster and they forget that a lawyer and his client do not have an ordinary relationship. What they should be calling for is for an honourable person to serve as A-G. They should be calling for a lawyer who espouses the best of the profession, and not a lose cannon incapable of offering sound legal services. It will be disastrous if the next A-G had an independent policy divorced completely from the needs of government. In the history of the legal profession, lawyers serve the interests of their clients, protecting their legal rights and advising them on their legal positions. Where a lawyer fundamentally differs with his client, he withdraws his services, or in some circumstances, applies to the court to withdraw as counsel. This is the quality that we will be looking for in the next A-G: if his client refuses to heed his advice and insists on pursuing a path that endangers the public interest, then he must resign.

Thursday, June 23, 2011

No pay, no play

The Speaker of the National Assembly, Kenneth Marende, is relying on a principle of law to argue against the Kenya Revenue Authority's demand that Members of Parliament pay income tax on all their earnings. He argues that once a privilege has been conferred, it cannot be withdrawn arbitrarily. He is, of course, correct to argue that when MPs were elected to the Tenth Parliament, only their basic salary of KES 200,000 was subject to income tax, and the remaining KES 850,000 was not. At one time he had suggested that those of his colleagues who felt sufficiently philanthropic were free to have KRA deduct income tax on their entire earnings. Only Peter Kenneth (PNU, Gatanga) and Johnstone Muthama (ODM-K, Kangundo) took him up on this offer. The remaining 220 MPs decided that they were not sufficiently philanthropic.

The transitional clauses of the Constitution have caused a lot of headaches, sowing confusion about the rights and obligations of, in particular, MPs. This was amply demonstrated when the Minister for Finance was accused of breaching the provisions of Art 221 after he delayed in tabling before the National Assembly's Finance Committee the relevant estimates of government expenditure for the year 2011/2012. It is now emerging that Members of Parliament have interpreted the Transitional Clauses in the context of the requirements under Art 210 where they claim that they are exempted from the requirement of paying income tax on their earnings until after the next general elections. Until the High Court rules in this matter, it seems that the 220 MPs will continue to thumb their noses at KRA and refuse to pay taxes on all their earnings.

Mr Marende and his colleagues miss the big picture. From a political point of view, it is wrong for the men and women we expect to enact laws on our behalf will forever continue to shirk their duties when it comes to taxation. They are unwittingly creating the impression that they do not wish to shoulder the burdens that their constituents are carrying, especially in these times of economic volatility and the rising cost of living. Perhaps they are tacitly admitting to themselves that they may miss their place in the next Parliament and are therefore, building up their nest-eggs for their inevitable retirement from Parliament. The arguments being advanced by the likes of John Mbadi and Charity Ngilu regarding the loans they have taken or the threats to their stature in society are merely smoke-screens behind which they hide the truth about their thoughtlessness and selfishness. Or perhaps it is a self-fulfilling prophecy where they predict that their actions have guaranteed their failure at the hustings and therefore they have no need to modify their behaviour. Whatever convenient excuse they advance, what they have doe is wrong and it should bear consequences.

However, we should not despair. When the next general elections are held, we will have the opportunity to refashion the legislature in the image that we desire. If the tax-evading nature of our current representatives proves sufficiently reprehensible, then we owe it to ourselves to send them packing next year. To date, we have never taken responsibility for the quality and character of our representatives. With the promulgation of the Constitution, this fig-leaf of ignorance will no longer cover our nakedness. It is time that we took responsibility for those we elect to Parliament and ensure that they remain forever accountable to us. These people only understand the power of the ballot when it goes against them therefore, let us use it wisely. It is time we reminded them of the words of the Preamble, "We the people..." and acted like we appreciated their import. The days of whingeing are well and truly over.

Wednesday, June 22, 2011

Progress may be slow, but it is being made

I cannot believe we all missed it. Article 77 (2) states: Any appointed State officer shall not hold office in a political party. Therefore, the Prime Minister was right and Charles Nyachae, the Chairman of the Constitution Implementation Commission, was wrong. However, the Prime Minister was wrong in one respect. While Members of Parliament may hold offices in political parties, the Prime Minister, Cabinet Ministers, Assistant Ministers, Chairmen of Parliamentary Committees and civil servants cannot, as they are all 'appointed' in the context of Article 77. The President and Members of Parliament are elected, while the PM and Cabinet Ministers are appointed, as are Chairmen of the Parliamentary Committees and civil servants. Mr Odinga is free to retain his position in ODM so long as he relinquishes his post as PM, a position he was appointed to by the President under the terms of the National Accord and Reconciliation Act. Section 3 (1) of the Act states: There shall be a Prime Minister and two Deputy Prime Ministers appointed by the President in accordance with this section.

Mr Nyachae is frequently prone to hyperbole in the performance of his duties as Chairman of the CIC. In his unwarranted rant against politicians who hold offices in political parties, he went so far as to suggest that their continued role as office-bearers in their respective political parties was a threat to the implementation of the Constitution. He may be right, but it is important to remember that the implementation of the Constitution is not the exclusive preserve of politicians, whether in or out of government, but also of the citizens of Kenya. In one respect, though, he was right: the continued refusal of MPs to pay taxes on their earnings was wrong and it does undermine the implementation process. John Mbadi's (ODM, Gwassi) argument that the saving of the role of Ministers in the Transitional Clauses of Schedule Six of the Constitution was justification enough for the tax-evasion of MPs does not cut much water. Nor is Charity Ngilu's (NARC, Kitui Central) argument that MPs have committed significant proportions of their earnings to meeting the needs of some of the constituents. It is instructive that Ferdinand Waititu (PNU, Embakasi) rejected this argument, reminding his colleagues that many of them had other sources of income before they were elected to Parliament and that they should share in the same hardships other Kenyans undergo, whether it is in the cost of living or meeting their obligations as tax-payers.

Regardless of the progress being made in the implementation of the Constitution, things could be much worse. Kenya is unique in having ratified a new Constitution during a time of peace. Normally, Constitutions are changed during times of turmoil after which elections are immediately held. In Kenya, though, elections are scheduled to coincide with the ordinary timetable fixed under the former Constitution, hence the need for the Sixth Schedule and its Transitional Clauses. None of the key actors in the implementation of the Constitution has actively sought to sabotage the process; many are simply misguided about their rightful roles and thus, the confusion that reigns is nothing more than than the teething problems in coming to terms with the changed political climate. Going forward, it is possible to imagine that everyone involved in the process will adjust to the new realities and make the choices that maximise advantages for them and their causes.

Of course, there are actors who would like to have a favourable outcome at the expense of others' and they may employ questionable tactic and interpretations of the Constitution that favour them. These are the persons that the CIC should watch out for and take action against. It is not necessary that Mr Nyachae and his team keep an overly beady eye on the State Law Office, as the Attorney-General and his staff merely execute the will of the Government. The challenges that the future will bring, especially after the next general elections, are mind-boggling. For instance, the manner in which the 'budget' was presented this year bring the relationship of the Executive branch with the Legislative branch in stark relief. After the next elections, neither the President nor members of his Cabinet will be members of the Legislative branch, so how Bills are shepherded through Parliament will affect how the Executive executes government policies and enforces laws. The manner in which the Judiciary is managed will also become the subject of public focus, especially now that the various levels will enjoy a certain level of autonomy. The role of the Chief Justice in the leadership of the Judiciary will affect the administration of justice. Therefore, we should not just focus on the short-comings of the political class, they are the least of our problems despite their very high and over-inflated prominence.

Tuesday, June 21, 2011

I was wrong: They should not resign

I was wrong. Calling for the resignations of Prof Sam Ongeri and Prof James Ole Kiyiapi because of the allegations levelled against the Ministry of Education's officials before the investigations were completed was wrong. In fact, even calling for the resignation of the former Permanent secretary, Prof Karega Mutahi, before these investigations were completed was wrong. It was wrong also to presume that because Prof Yash Pal Ghai and Prof PLO Lumumba had raised serious questions about Keriako Tobiko's candidature for the position of DPP warranted the withdrawal of his name from consideration by both the JSC and the CIOC. The reasons why iI am reversing myself have nothing to do with the concept of persons taking responsibility for the sins of omission or commission of officers serving under them or the records of their past service, but on the realisation that in Kenya, accusations are used to score political scores and not to find the truth.

It was Prof Mutahi who brought about this change of tone when he questioned the rationale behind the demands for his resignation. As he tells it, the calls for his resignation are not motivated by a desire to trace where funds meant for the Kenya Education Sector Support Programme have been diverted to, but to score political points by using his name in a campaign against someone else. The same rationale could be applied when one considers the allegations that were made against Mr Tobiko; the allegations were barely supported by any evidence, and it was left to observers to either believe or disbelieve his accusers based on their perceived public profiles, that is, Prof Ghai's stature as the former Chairman of the Constitution of Kenya Review Commission and Prof Lumumba's as it's Secretary and, today, the Director of the Kenya Anti-Corruption Commission.

It has become fashionable to call for Cabinet Ministers to bear political responsibility for the scandals that erupt in their ministries, usually taken to mean that they should resign to "allow full and impartial" investigations into the scandals. rather than relying on the President, and the Prime Minister to some extent, to set the pace regarding how and when Cabinet Members will be relieved of their duties, other politicians and members of civil society call for action without considering the political fallout of their demands. This is not the United States or the United Kingdom where government has evolved to such a point where scandal almost always leads to resignation. many are pointing to the recent resignation of Anthony Wiener, a Republican Representative from New York, who resigned his position in the House of Representatives due to a sex scandal that erupted because of his foolishness on Twitter, but ignore the fact that in Kenya the information available to the public regarding the KESSP swindle is what the Minister for Finance and members of civil society say it is. We have had no independent opportunity to corroborate the facts that are emerging on a daily basis, and therefore, we cannot possibly say that we are making informed demands of our politicians and civil servants.

Our tendency to call for action absent any verifiable proof has been used by interested parties, including politicians and wannabe politicians, to cast the accused in a bad light, perpetuating the siege mentality of members of certain communities. As a result, ordinary Kenyans are being used as cannon fodder in the war between sitting and ousted political actors. The effects have been to polarise the country along ethnic lines every time a major swindle takes place. Very rarely do the resignations lead to full and impartial investigations; rather, quite frequently, the investigations tend to drag on for years without being resolved. Persons like the Director of KACC have no business calling for the resignations of Cabinet Ministers or Permanent Secretaries where impartial investigations have not been concluded. Regardless of the perception that impunity is being protected, until all our institutions start playing by the same rules, it is wrong to call for the resignations of the Ministers and their Permanent Secretaries who have been in charge when allegations of graft have arisen in their ministries.

On disaster management and crisis response

Every time there is a national or local emergency, such as the explosion that took place along Kirinyaga Road, or the building that collapsed in Embakasi-Pipeline, the Kenya Red Cross and the Kenya Army are usually among the first-responders that attend to the scene along with the Nairobi Fire Brigade. A common sight is a crowd of onlookers and ill-trained, ill-equipped members of the public who attempt to participate in the disaster response and any rescue efforts that may ensue. The policy of the Fire Brigade and the Red Cross has always been to discourage these people from participating in the response because their actions may hamper the effort rather than help. Pleas for them to wait for the response units to take action have so far fallen on deaf ears. This reflects, perhaps, the popular perception that the disaster response system in Nairobi, or nationwide, is less trusted than the popular instinct to 'do something' regardless of the risks posed to those directly affected by the disaster or the mass of people rushing to take whatever action they can to save lives and prevent further loss of property.

The Kenya Red Cross, as well as the St John's Ambulance, run programmes for institutions, families and individuals on basic disaster response and emergency care in the event of accidents or disasters. However, many Kenyans have yet to take up these organisations' training programmes and as such, many members of the public are unable to appreciate the risks that attend such responses to emergencies as was witnessed after the above-mentioned two emergencies in Nairobi.

Our public education system has deteriorated over the past 15 years. It used to be that many of the emergency response techniques that would be useful in the event of such disasters was part of the schools' curricula, ensuring that primary and secondary school students were adequately prepared to take action in the event of a crisis. Today, however, many would be hard-pressed to respond properly to minor accidents. This has led many youthful persons to rely overwhelmingly on what they see on TV or hear from others and as a result, they take great risks every time they respond to a crisis, placing their lives in great jeopardy. It high time that the National Disaster Management Office rolled out a programme for the integration of disaster management in the syllabi and curricula of all schools and learning institutions in Kenya, including basic training in first aid and disaster management in order to leverage the overwhelming goodwill Kenyans have for each other and to take advantage of the common Kenyan desire to assist whenever and wherever disaster strikes. It is the only way that the risks to ordinary first-responders' lives can be minimised and the maximum opportunity to save lives can be increased.

At the same time, the government can also ensure that all local authorities have well-established disaster response units. It can also review the relevant law to empower local fire service chiefs to take the necessary steps to minimise or prevent future disasters. For example, in the United States, it is common for the heads of local fire brigades to enjoy enormous power with regards to the maintenance of fire-fighting equipment, both at municipal level and within buildings and other public areas. The heads of these departments have the authority to shut down buildings and public areas that do not meet the minimum fire-safety standards of the municipality. This is an idea that should be explored by Kenyan authorities so that disasters such as the Kirinyaga Road one are not repeated in future.

The City Hall two-step

This is my two-cents' worth on the collapsing residential and commercial buildings in Nairobi. The rot began with the Nairobi City Commission back in the 1980s. It is the City Commission that was responsible for the mess that we find ourselves in. The City Council that it replaced had proven to be a mess, a mess that was the responsibility of the foolish voters who put it in power. The Commission went out of its way to look out for the interests of the Commissioners and not that of the residents of the City of Nairobi, which used to be known as the Green City in the Sun. Back then, the trash was collected on time, the streets were swept, the street lights shone, and planning permission was par for the course for any building that came up in Nairobi.

The City Commission was appointed and all of a sudden it was de rigueur for housing contractors to cut corners and for planning permission to be obtained at a fee, based on the size of the wallet and not on the quality of the structural plans. The collapse of Sunbeam Supermarket along Tom Mboya Street was a harbinger of the doom that was to befall the residents of the City and Nairobi was never the same again. When the Council started issuing Letters of Allocation to well-connected individuals, eschewing the ordinary planning procedures, the haste with which the new 'investors' erected patently unsafe buildings left one in awe at the massive level of institutional myopia that the Council was suffering from. In their haste to 'recoup their investments', the new building contractors were no longer interested in safety, but more on how many zeros they could add to their telephone-number bank accounts in the shortest possible time. At the same time, the level of corruption in City Hall rose with the increase in the City's temperature and the loss of its green areas. It became OK for one to bribe his way to a permit for an off-plan shop, school, dispensary or petrol station and as a result, you are today hard-pressed to find a single open space in the City that has not been earmarked for some bland high-rise block of flats. Today, the number of buildings that may collapse is more than the mind can comprehend, and it is only a matter of time before their structural integrity is at an end and they come down like houses of cards.

Of course, Mr Philip Kisia, the Town Clerk, will lay the blame on the Judiciary, forgetting that the Judiciary, in its new-found judicial independence, will only intervene when it is clear that legal rights are at stake. If Mr Kisia's Legal Department is unable to persuade the courts of the City's rights, he has no one to blame but himself, and the dead and dying have no one to blame but Mr Kisia and his mandarins. Mr Kisia, and his predecessor Mr John Gakuo, managed to persuade the residents of Nairobi that they were doing their best to end the culture of graft at City Hall. But, the records show that their anti-graft campaigns have not borne much fruit. Because of graft, the payment of rates has not kept pace with the unlicensed operations that take place in the City annually. Indeed, reliable sources opine that the City Fathers are unaware of exactly how many bank accounts the City Council operates or how much these accounts hold. As a result, the City has been unable to hire enough Inspectors to keep an eye on the explosion of construction that is taking place, especially the construction that follows none of the City's rules or obeys the edicts of engineering. Therefore, it should surprise no one that buildings are constructed on land of dubious ownership, using materials of dubious quality, at speeds that raise more questions than answers, and using techniques that suggest that engineers are conspicuous by their absence in the buildings' planning or supervision. The results have been death and suffering.

When the Minister for Local Government suggests that the government together with City Hall will collaborate to identify all such buildings, and knock them down, he is merely treating the symptoms of the cancer rather than surgically removing the tumour. If they do nothing to sort out how City Hall operates, this is a problem that will bedevil the residents of Nairobi for generations. Twenty years from now, when another wave of collapses engulfs our fair City, we will be left suggesting the same solutions as we are today.

Monday, June 20, 2011

Environmentalism in Kenya must change or we are doomed

Kenyan environmentalism is a mess. Despite the accolades received by some, notably Prof Wangari Maathai's Nobel Peace Prize or Dr Paula Kahumbu's National Geographic Award, Kenya's environmentalists have made a career of being the best at attending UN-sponsored conferences and other global and regional workshops on adapting to climate change or managing and reversing bio-diversity losses. However, there is no clear-cut policy on incorporating environmental principles in national and economic development. It's all slogans, and not much else.

In the West, for the most part, much of their scientific and technological advances were made on the back of military innovation. The science of war advanced their knowledge in other areas such as telecommunication and propaganda. Every time we log onto our e-mail addresses or use our smart-phones or watch a new Sylvester Stallone action movie, we are acknowledging the gifts that the US military gave to the production of these technologies. 

In Africa, on the other hand, the land, for much of our history, has produced enough for all without the volatile competition engendered by shortages or population growth. Since the advent of colonialism in Africa, the delicate balance between economic progress and personal greed that underpinned indigenous and traditional environmental polices, Africa has slid inexorably towards the failed Western ideas of resource management. The effects of a rapidly-changing climate and an increase in the population of the peoples of Africa, as well as the destruction of the soils of our most arable lands have all served to degrade the environment that is the foundation of our livelihoods so much so that now men and women spend half their working lives attending conferences and workshops on what is to be done to reverse this sorry state of affairs.

Some of the failed ideas being promoted in Kenya have come about on the back of the slow decline in the authority of the State. As recently as 1985, the State was ubiquitous in matters relating to environmental policy in the context of rapid urbanisation. Kibera had yet to gain notoriety for its size, flying toilets or slum tourism. The Permanent Presidential Commission on Soil and Water Conservation was taking the lead, albeit under the leadership and guidance of one Mulu Mutisya, in reversing soil erosion and coping with its effects. However, with the decline of the State, especially as a result of the constant challenges to its coercive authority, the impacts of poor environmental policy were beginning to be felt in food and water security, increased resource-based conflicts and the worsening of the impacts of drought and famine. Phenomena like climate change and biodiversity loss merely exposed the lie that government could solve all our problems.

Nairobi and its environs starkly demonstrate the challenges we face today. In addition to the failures of the State to properly incorporate environmental policy in all spheres of economic and human development, the worsening situation with regard to the Land Question have brought about the effects of environmental policy failures, such as pollution of water sources and complete degradation of soils. 

Kikuyu Town, in Kiambu County, has one of the highest population densities in Kenya. The management of land in the County is a microcosm of the management of land nationwide, characterised by subdivision of land to such uneconomical sizes that many of the residents of Kikuyu Town have chosen to invade what was originally government land and claim it as theirs. Under ordinary circumstances, they would be referred to as squatters, but without alternative livelihoods and the perpetuation of the concept of traditional land ownership in Kenya, they are best referred to as environmental squatters. Many of the areas that they have invaded tend to run along river courses, railway lines and roads, areas that were traditionally reserved to the State for use in such mundane activities as waste and sewerage disposal. This leads to conflicts when state agencies continue to carry on as before refusing to acknowledge the presence of these squatters, as is the case between some residents of Kikuyu and Town and the University of Nairobi's Kikuyu Campus.

With the implementation of the Constitution, such challenges as resolving environment-based conflicts will come to the fore and the State will be compelled to balance many rights found in the Bill of Rights including the right to property and environmental rights. In its guaranteeing of socio-economic rights, the government shall be forced to either admit that it is impossible to provide jobs for everyone or that it is impossible for everyone to own land. With continuing urbanisation, it may be necessary to explore other property rights at the expense of the idea that every Kenyan must own a piece of land 'back home'. Only then will a first step have been made to marrying the environmental needs of the nation to its other socio-economic needs.

Saturday, June 18, 2011

Human rights violations and land

Article 25 of the Constitution states:
25. Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited -

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment;
(b) freedom from slavery or servitude;
(c) the right to a fair trial; and
(d) the right to an order of habeus corpus.

Torture, according to the United Nations Convention Against Torture (an advisory measure of the UN General Assembly) is:

...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.

In 2005, the Sabaot Land Defence Forces launched a massive campaign of intimidation, including the widespread use of torture, to force people to vacate lands in the Mt Elgon area that had been set aside for the Chebyuk Settlement Scheme. In 2008, the Government of Kenya responded by sending a mixed team of military officers and police forces to crush the SLDF. The security forces were accused of employing the same tactics used by the SLDF in carrying out Operation Okoa Maisha. The atrocities committed by the SLDF and the Government were documented by the Independent Medico Legal Unit and the Western Kenya Human Rights watch. To date, no one has been successfully tried in a court of law for the crimes that were committed in Mt Elgon area. Needless to say, the area remains tense 3 years after the cessation of hostilities.

The origins of the conflict are easy enough to recall. IN 1963, when Kenya gained internal self government, and in 1964 when it became an independent republic, the Government of Jomo Kenyatta promised to resettle the millions of Kenyans who did not own land of their own. One of the programmes that was funded by the British Government was the Million Acres Scheme, by which the Kenya Government would be guaranteed loans from the World Bank to buy a million acres from the departing white settlers for the resettlement of indigenous Kenyans. However, what was to become routine in Kenyatta's and Moi's regimes, the land did not go to those who needed it most; instead, many of the beneficiaries of the land settlement schemes were politicians and senior civil servants in the Kenyatta and Moi governments. As a result, the Land Question in Kenya has never been resolved, and incidences such as the Mt Elgon land clashes continue to hold this country to ransom, 47 years after Uhuru.

With the repeal of Section 2A of the former Constitution and the return to multi-party politics, every general election since 1992 has been characterised by land clashes and inter-ethnic clashes over land. Politicians seeking public office have exploited the despair many Kenyans feel over the 'invasion' of their 'ancestral' lands by 'outsiders' to galvanise them into taking action to weed out the outsiders and chase them from their land. The scenes of this violence have always been areas where settlement schemes were poorly managed, usually in the fertile areas of the Rift Valley, including the Mt Elgon region.

Opposition to the new Constitution was founded on, among other things, the fear that the land provisions in Chapter 5, would be used to deny many deserving Kenyans of the opportunity to own land or to take away land that had been allocated to others. Many of the undeserving beneficiaries of the Kenyatta and Moi Land Policies opposed the Proposed Constitution on this ground, and they sought to whip up popular sentiment against its ratification. These same forces had been opposed to the Draft Land Policy published by the Government in 2007.

The chickens of the Kenyatta and Moi Eras have now come home to roost. The gross human rights violations in Mt Elgon have their roots in the failed land policies of the Kenyatta and Moi regimes. The continued refusal by elements in the Kibaki regime to acknowledge these failures is rooted in part on their use of extra-constitutional methods to resolve these issues. If the military and police officers involved in Operation Okoa Maisha are ever brought to justice it may bring down the Kibaki government and all those who knew or participated in the authorization of torture and other cruel, inhuman and degrading methods in the pursuit of the leaders of the SLDF insurgents. 

The Land Question will continue to cast a long shadow long after the Kibaki Era has come to pass. We can only hope that the yet to be constituted National Land Commission is up to the task of resolving once and for all what has become the bane of national politics. If not, the next ten general elections will witness the same cycle of violence and land that has characterised the last four.

Snatching victory from the jaws of defeat

It is a reflection of the changed political environment that everyone and their uncle is able, without fear (but with some favour), to speak their mind about matters of national importance. In 1984, members of the Degodia Clan were rounded up and assembled at the Wagalla Airstrip by members of Kenya's security services. Many were killed and many more maimed, some for life. The violence that engulfed the nation in 2007 and 2008 gave rise to the National Accord which in turn gave rise to the Truth, Justice and Reconciliation Commission through an Act of Parliament. The Commission has been holding hearings, low-key ones for that matter, into what took place in Wagalla and who were responsible. For the first time in decades, the Government of Kenya through the Commission is taking the first faltering steps to come to terms with what happened in 1984. But, it is the fearlessness of the Commissioners and witnesses to speak about the monstrous crimes that were committed that demonstrates that Kenya has come a long way since Mwai Kibaki was sworn in as President in 2003.

The politics of Kenya has always been dominated by the will of the President. President Kenyatta was notoriously intolerant of dissent in any form, jailing and hounding his erstwhile friends and allies when he was in power. Some of the men who came to a bad end during his reign, some would say a reign of terror, include the charismatic Tom Mboya and JM Kariuki, as well as Pio Gama Pinto and the indefatigable Jaramogi Oginga Odinga. When President Moi was sworn in in 1978, he vowed to 'fuata nyayo', follow in the footsteps of Kenya's first president. This he did with zeal, using the power of his office to detain without trial some of his more outspoken detractors and hounding others to exile for their political thoughts. President Kibaki' reign has been characterised by corruption, and it is fir and proper for Kenyans to question his commitment to the fight against graft. However, in other areas, it has seen the liberalisation of speech to such an extent that other than the question of whether or not the President is a polygamist, Kenyans are free to air whatever views they have on the President and his Cabinet. Under President Kibaki, the realm of free speech has expanded so much that now Kenyans are unsure what to do with this freedom.

With the promulgation of the Constitution a Constitution that was overwhelmingly ratified - Kenyans have the opportunity to expand the realm of fundamental freedoms to greater extent than ever in our 47 years of Uhuru. One of the most heartening events of the recent past has been the overwhelming popular choice of Dr Willy Mutunga and Ms Nancy Barasa to helm the Supreme Court of Kenya. For the first time, Kenyans have placed a premium on merit in the choice of holders of national offices, eschewing their usual ethnic-tinted look at national appointments. The support for these nominees has been heralded as a first step towards the creation of a pluralistic society, accepting all that qualify to hold national offices. The voices of dissent have been given an opportunity to air their dissatisfaction with the choices and none, to my knowledge, has been hounded or attacked unfairly. For the first time too, women and youth have been given an opportunity to participate meaningfully in national affairs - their views are no longer treated with disdain. As we proceed with the implementation of our Constitution, this spirit of togetherness and patriotism must be encouraged and expanded. It is only in protecting and guaranteeing our freedoms that we will be able to overcome the burdens of our chequered history and achieve the dream that was once Kenya.

Vox populi, vox dei

We may agree to disagree, but the manner in which Mwai Kibaki and Raila Odinga are dealing with the fallout from Uhuru Kenyatta's spectacular revelations about the graft that seems to engulf the Ministries of Education and Medical Services leaves a lot to be desired. When Raila Odinga was calling on the resignation of Prof Sam Ongeri, it bewilders me why he did not do the same for Prof Peter Anyang' Nyong'o. The Prime Minister is in a bit of a pickle. He cannot be seen to be taking sides in the war on graft, that some kind of graft is better than others. If monies were misappropriated from the Ministry of Education's coffers, then surely, monies must have been misappropriated from the Medical Services Ministry too. If the solution to the problems that bedevil the Education Ministry are to be solved by the Minister for Education, then too, the same solution may be applied against the Minister for Medical Services. It is only logical and the engineer in Raila Odinga must appreciate the simplicity and symmetry of this solution.

The promulgation of the Constitution brought many unforeseen challenges to the fore, the most popular being the creation of new institutions, including finding the men and women to head these institutions. However, at a more fundamental level, the Executive had to reorganise itself to reflect the new facts on the ground. It is no longer okay that Kenyans continue to be saddled with a Cabinet that has over 40 Ministers and fifty Assistant Ministers. The re-shuffle of the Cabinet, as and when it is accomplished, must reflect the new austerity measures that are demanded in light of the straitened times that all Kenyans are facing. It should not be that the only institution that is showing growth in its ranks is the one that simply refuses to give value for money. It is time that the President and Prime Minister looked at the numbers and trimmed the Cabinet to between 14 and 24. 

They can start by relieving the Ministers of Education and Medical Services of their duties awaiting a full and impartial investigation into the missing monies. If they are exonerated of any wrongdoing, so be it. But it is wrong for them to keep drawing salaries at the tax-payers' expense when their Ministries face such serious integrity challenges.

The same rationale should be applied against the Ministry of Local Government (Cemetery Scandal), Agriculture (Fertiliser Scam), Transport (Privatisation of the Port of Mombasa and the Lamu Port Over-billing issues), Information and Communication (CCK Director-General's new contract), Water (Tanathi Water Services Board integrity issues), Defence (Border Control failures), Internal Security and Provincial Administration (Suicidal Police, rampant violent crime, extra-legal police executions, etc), Special Programmes (IDPs' resettlement) ... and the list goes on. If there is a Ministry where political or administration have been experienced, the Ministers must be dropped and no new ones appointed to replace them. In other words, it is high tie the Executive was reorganised to reflect the provisions of the Constitution regarding the size of the government.

Before Kenyans go to the polls in 2010, it is important that the government be put on a war-footing to reflect the fact that it is no longer business as usual. It is time that Kenyans got used to the image of politicians and senior public servants being held accountable for their acts of omission and commission. The argument that "It wasn't me" should no longer apply; if there are problems in your ministry, it means that your are asleep on the job and it is time you went home to look after your cows and goats! This is the will of the people. The voice of the people, after all, is the voice of God.

Wednesday, June 15, 2011

Resign, and be done with you!

The recent stalemate in the Constitution Implementation Oversight Committee over the nomination and confirmation of Keriako Tobiko, and the Ministry of Finance's revelations over the Kenya Education Sector Support Programme audit, reveal that when it comes to the public good, incumbent office-holders are not beholden to the people but to their sense of importance. When the CIOC failed to unanimously agree on Mr Tobiko as their preferred choice of the DPP, they should not have forwarded his name to Parliament for consideration. Mr Tobiko himself should have realised that the vetting process itself had brought forward Kenyans, some of no mean repute as the former chairman of the Constitution of Kenya Review Commission, Prof Yash pal Ghai and its Secretary, Prof PLO Lumumba, who expressed reservations over Mr Tobiko's nomination as DPP. With a stalemated CIOC and unfavourable reviews from these two among others Mr Tobiko should have withdrawn his name and asked that the process be restarted; it was untenable for him to continue holding onto the chance of being appointed even when doubts, serious ones no less, had been raised about his suitability to hold the position.

Meanwhile, the Ministry of Finance had ordered a CID-led audit of the financial records of the Ministry of Education after the funds meant for the Kenya Education Sector Support Programme, better known as the Free Primary Education Programme, were improperly managed, and in some cases, stolen by officials in the Ministry of Education and heads of several of the schools in question. When the scandal first came to light, the Prime Minister attempted to suspend the Minister for Education, Prof Samuel Ongeri, and the then Permanent Secretary, Prof Karega Mutahi, a decision that was swiftly reversed by the President, claiming that the PM was attempting to usurp his powers. The PM's actions had received wide-spread popular support, but it came as no surprise that the Minister refused to resign and the PS was suspended briefly by the President while the long-winding CID investigation progressed. Prof Mutahi was transferred to the Ministry of Local Government to take over from another disgraced PS, Sammy Kirui, who had been implicated in yet another scandal, the KES 280 million cemetery scandal, that has so far also claimed the scalp of the Mayor of Nairobi, His Worship Geoffrey Majiwa, the ODM Councillor for Baba Dogo Ward. Needless to say, the calls for Prof Ongeri and Prof James Ole Kiyiapi, Prof Mutahi's replacement as PS, have come fast and furiously, and they have predictably been ignored.

The recent attempt by the Judiciary Service Commission to introduce a measure of transparency and accountability into the process of managing the government of Kenya has raised the expectations of Kenyans that high government officials will take responsibility for the successes and failures of their departments. No longer will the buck-passing mentality, especially of Ministers, pass muster. The JSC reminds us that it is no longer business as usual. Regardless of the wishes of the Maasai people, or what William Ole Ntimama, the Minister for Culture and National Heritage and the de facto spokesman for the Maasai claims they are, Mr Tobiko must withdraw his candidature to the office of DPP. Regardless of the political cost to him personally, and the embarrassment that it will bring the President, Prof Sam Ongeri must resign too. It is a new dawn; this is the right thing to do.

Tuesday, June 14, 2011

Odinga marches to the beat of a different drummer, no?

Silly, presumptuous me! It seems that Raila Odinga is not quite asleep at the wheel as it may have earlier appeared. He is slowly but steadily rebuilding the ODM ship after it foundered in the shallows of the post-Referendum stage. He went to Meru and cleaned up the spoils. He attended Kosgey's son's wedding, and Sally Kosgei could be seen staring in his eyes with can only be described as heart-felt relief. He went to Mombasa and Najib Balala came crawling back amidst jeers of "Kigeugeu" by, I suppose, the vocal supporters of Kisauni's Ali Hassan Joho. It remains to be seen if the new love-in between Raila Odinga and his bosom buddies will persist for the fifteen months remaining to the 2012 general elections. Politics is about chance and opportunity and who knows, perhaps these new-found friendships may not last that long. But, seeing the way politicians are sorting out the chaff from the wheat, this may be an alliance that lasts.

Raila Odinga is a formidable politician and it bears repeating for some of us may forget that the man has come a long way from the days he maintained a crazy look in his eye and a rather cheesy goatee. He is quickly emerging as a statesman, even being called in by the African Union to help sort out continental issues when they prove too much to handle. He is on the phone-lists of heads of state even though he is not. He is attending high-level global chinwags and bringing home the bacon. Mr Odinga is behaving presidentially and it is not going un-noticed. Meanwhile, William Ruto, Kalonzo Musyoka and Uhuru Kenyatta keep examining, re-examining, explaining and reiterating their relationship to all and sundry, fighting persistent rumours about the state of their political polygamous marriage (have they forgotten that Kenyan clergy have ruled that polygamy is un-Kenyan and un-Christian?) Given their constant need to remind Kenyans of their unity, perhaps we should be considering the fact that if the main players are not sure about the state of their relationship that it may not be the best bet for a Kenya in transition.

Mr Odinga has a consistent record, despite his many flaws. Messrs Kenyatta, Ruto and Kalonzo have demonstrated a flip-flopping, tentative character that has bewildered many. It is unclear whether their only vision of Kenya is one where the Prime Minister does not ascend to the Presidency or something more worthwhile. It is easier to stand against something that to stand for something. What do these three stand for other than for Odinga's downfall? Despite Mr Odinga's support for the local tribunal option way back when it was clear that senior politicians would be in Justice Waki's list, the three consistently called for The Hague Option. Now that it is upon them, they are blaming their woes on the man who was originally on their side, and now that the ICC wishes to hold the hearings in situ, they are crying foul and want the proceedings as far away from home as possible!

There are lessons to be gleaned from the recent developments in Kenya's political scene. Never trust that the positions a politician takes are motivated by anything other than self-interest. Never assume that alliances will last. Never presume to call the game in favour of one or the other until the votes are counted and the dust settles. Whether the ODM returnees will stay the course will only be apparent when Kenya goes to the polls in 2012. Until then, it is still a very fluid situation.

Monday, June 13, 2011

Will Odinga shoot himself in the foot?

The presidency is not for the weak or faint-hearted. That truism lies at the heart of every presidency, whether good or bad. The various contenders for the top job come 2012 have expressed their desires in the position, without demonstrating that they are strong or courageous, save for the Prime Minister and the Iron Lady of Gichugu. It could be argued that Mwai Kibaki's presidency was really a Presidency by Committee, seeing the overwhelming influence the so-called Mount Kenya Mafia has played in determining policy and strategy. The former Minister for Internal Security ad former Member for Kieni, Chris Murungaru, is quoted as saying that he ran the country during Mwai Kibaki's many health scares in 2003 and 2004. The influence of men ilk Dr Joe Wanjui and their ilk suggest that Mwai Kibaki did not so much as rule as preside over a Board of Directors, deciding how and when to take various actions, including the mass walkout of the Bomas Conference in 2003, denying Kenya its first realistic shot at a new constitution.

Martha Karua has demonstrated strength and courage, first in defying the Moi government in the manner she dealt with perceived insults by the former president. She then decided that she had had enough of the boys' club mentality of the Kibaki regime and walked out of government, taking her loyal Secretary-General with her. Her prior record when she was a member of the legal team that stood by Raila Odinga's side during the dark days of the Nyayo Era should not be discounted, even taking into account her robust and combative defense of the Kibaki election in 2007/08. She made her bed and she lay in it without regret.

Raila Odinga has taken many political risks, some verging on the reckless. When he agreed to share power with a man many considered had lost the presidential election, he also demonstrated pragmatism in the face f overwhelming odds. His stints in detention without trial have now become the stuff of legend, but they all point to a strength of character that many politicians, including many of his challengers for the presidency, lack. Surely, no one will deny that Mr Odinga has a strong personality, a resolute character and courageous heart and that these qualities will stand him in good stead should he take the presidency in August 2012.

But it is the other front-runners who cast poor shadows. Mr Kenyatta demonstrated a flicker of honour when he graciously conceded to Mwai Kibaki in 2002, but his actions since then have not been true to the spirit of leadership or the demands of political power. When he decided to cast his lot with the PNU machine, despite the fact that he had been endorsed by his party to stand for the presidency, he not only betrayed his constituents, he ensured that the nation would be plunged into uncertainty should the presidential result be disputed. Mr Ruto, on the other hand, has never had a conviction that he could not abandon, jumping from KANU to the LDP to ODM and now to UDM in his quest for personal political glory. The same can be said for Mr Musyoka, who decided that he could not live with the vision of a man he once participated in jailing at the height of Moi's government when he showed that he commanded a greater personal following than he. Despite Mr Musyoka's near twenty-six years of political activity, he cannot demonstrate that the people of Kenya hold him in the same stead as Raila Odinga and this has informed his persistent animus against the Member for Langata.

When the ballots open in 2012, the people of Kenya will be entering uncharted territory. If the politicians agree to play by the rules and to accept the verdict of the people, the character of the 11th Parliament will be so different as to constitute fresh start for one and all. There will be an expanded National Assembly, a new Senate, County Governments, a professional Cabinet and independent offices and institutions. Kenyans will be forced to contend with the fact that t is no longer business as usual and that the new rules will require all parties to keep a beady eye on their rivals and on the institutions of governance. The questions of development and equitable distribution of national resources will occupy the minds of everyone with view to striking the fairest balance for the good of the nation. Mr Kenyatta, Mr Ruto and Mr Musyoka have a choice to make, and if they make the wrong choices, they may find their political careers coming to an end with the spectre of a man they have come to loath lording it over them. This must keep them up at night, and Kenyans on tenterhooks. As the Americans are fond of saying, this election is Mr Odinga's to lose.

It's not all his fault!

The disturbing images of Kenyans live in penury from our Northern Frontier beamed to our living rooms continue to shock and dismay. Looking at the fraught images flickering on our TV screens, the question of whether there are two Kenyas still resonates with the urban elite in their secure cocoons far from the strife and suffering. And as we keep asking ourselves how this can be, the families described as pastoralists continue to suffer from food shortages, poor healthcare services, water shortages and the ever present danger of marauding raiders from Somalia, South Sudan and Ethiopia. Mwai Kibaki's government has been accused by the chattering classes of not caring for the people of Northern Kenya, this narrative being buttressed by these distressing images. The poor human development conditions in the North would seem to confirm this view. But, is it true?

The government Mwai Kibaki inherited in 2003 was bankrupt, financially, administratively and morally. President Moi chose the 2005 referendum campaign to pay his first visit to Northern Kenya, having ignored it and its residents in his 24 years in power. Those recalling his robust responses to security issues seem to forget that Kenya under his rule was a police state in all but name, with the imprimatur of the Commander-in-Chef writ large over the lives of all Kenyans, whether they received public goods or not. The police action that took place against the Degodia clan in Wagalla in 1984 was an example of how muscularly Moi's government would respond to perceived security threats. The public officers who served during that time and whose names have been linked to that massacre sweating in front of the Truth, Justice and Reconciliation Commission would be the first to admit that the Moi regime had other things in mind other than the human development of the peoples of Northern Kenya. Mwai Kibaki I (2003 - 2007) and the Grand Coalition Government (2008 - ), to their credit, have not turned a blind eye to the suffering in the Northern regions of Kenya; it is in prioritising development in other areas of the country that they have created the impression that Northern Kenya is not a priority.

Commentators seem to gloss over the fact that certain ecological developments have exacerbated the problems in Northern Kenya, especially the vagaries of climate change and biodiversity loss. As a result, resource-based conflicts, especially with regard to pasture lands and water, have sharply increased over the decade that Mwai Kibaki has been in power. The marauding Merille of Ethiopia, in addition to satisfying some of their more atavistic traditions, invade Kenyan territory in search of food, water and pasture. Their raids are not a testament to Mwai Kibaki's lackadaisical approach to the security of the peoples of Northern Kenya but a recognition of the fact that Kenya is a major player in the East African Community and that its responses must always be measured and well-reasoned. Any war with our neighbours would not only jeopardise our commercial interests in the region, it would set us back fifty years in terms of economic and political development. Nations at war, especially African nations, tend to lose their best and brightest to the war, impose military dictatorships on the people and ostracise the nation from the global community. Those calling for a muscular military response do not appreciate the delicate place Kenya finds itself, especially at this time of transition.

Major public works developments are taking place in Northern Kenya. The Great North Road to Ethiopia will do more to resolve the conflict between the Turkana and the Merille than fifty battalions of GSU and Kenya Police Reserves. Major dams have been commissioned intended to address the chronic water shortages of the region. Security concerns are being addressed in a multi-pronged approach, including the deployment of personnel and the use of diplomacy to co-opt the co-operation of the governments to our north. It is in the social development area that the government could do more: build more hospitals and schools to ensure that the people of Northern Kenya are not held hostage to culture and tradition that are slowly being overtaken by modernity. Any argument that posits that Mwai Kibaki does not care for the people of Northern Kenya is a bald-faced lie!

Sunday, June 12, 2011

Mistakes were made, but a start was made too

The manner in which candidates were short-listed, interviewed and vetted for the positions of Chief Justice, Deputy Chief Justice, Judge of the Supreme Court and Director of Public Prosecutions has come in for intense criticism from many quarters, some arguing that in certain instances, it lacked transparency or accountability. With regard to the CJ and DCJ, the Judiciary Service Commission has a lot to answer for, especially regarding its 'score-card' of the criteria it relied on to short-list the two nominees vetted by the Constitution Implementation Oversight Committee. The CIOC itself, did not acquit itself admirably or honorably, especially when dealing with the candidature of Keriako Tobiko as the nominee for the office of the DPP. That it was divided right down the middle regarding his approval is testament to the fact that either it did not prepare sufficiently for the task at hand, or that political considerations overshadowed its mandate to carry on a clean vetting exercise.

However, we must all come to the realisation that this procedure is new to Kenya. It is the first time that interviews for candidates for high government office are interviewed and vetted in public. The institutional arrangements in place prior to the JSC interviews favoured secrecy and lobbying over transparency or accountability. Appointing authorities, notably the Office of the President, were content to make up their minds in the secure knowledge that no one would challenge their decisions or choice of appointees. Love him or hate him, President Kibaki laid the foundations for the JSC process the day he agreed to sit in a coalition government with Raila Odinga. The manner in which the two horse-traded on who would head which ministry and who would be appointed Permanent Secretary threatened to dissolve the Coalition even before it had began and the fights between PNU and ODM aroused a desire in the people of Kenya to avoid similar fights in future, hence the public process so far followed by the JSC. The panel that short-listed the DPP nominees, which included the Attorney-General (who really should have known better, the COTU Secretary-General and the Chairman of the Law Society of Kenya (who also should have known better), seemed wedded to the traditional business-as-usual attitude prevalent in the inner sanctum of the government. As a result, while many will say the tactics employed by the JSC, especially the public evisceration of reputations, were undesirable, no one will dispute that they are a welcome step from the procedures of the past which sometimes were likened to the manner in which Cardinals elect the next Roman Catholic Pope. If the choice of Keriako Tobiko is shot down in the National Assembly, the next nominee for the office of DPP must undergo a public process similar to that of the CJ and DCJ.

Many mistakes were made in the process, notably the failure to provide for adequate time to allow all Kenyans an opportunity to weigh in with their thoughts of the candidates. Therefore, in future, regardless of the deadlines and timetables that may be imposed in the choice of the next candidate for high government office, the people of Kenya must be given adequate time to participate meaningfully in the process, even if requires the Commission (or some similar body) to travel to the Counties to conduct public hearings. It is the only way that their choices can receive the unqualified endorsement of the masses, much as it may be expensive or time-consuming.

When will the real debate begin?

The debate on the morality or otherwise of high government officials will not die down. The battle over whether or not Dr Willy Mutunga and Nancy Baraza should be confirmed as Chief Justice and Deputy Chief Justice refuses to die down because the debate surrounds an issue with which many Kenyans have an opinion, though seldom a rational one. The position of Kenyan clergy is known, though it remains unclear. They have their supporters who have taken the contest to levels hitherto unseen in public discourse in Kenya. Some of the personal questions that were levelled at the nominees were questions Kenyans would not ordinarily have asked in the past. This is progress, of sorts; Kenya in the 1980s and 1990s was a country where even to ask a legitimate question was to invite unmitigated disaster in one's life. It is this aspect of the very public interviewing and vetting of the nominees that Kenyans must examine if they are to be at peace with the Constitution that they promulgated in 2010.

The Constitution is meant to organise the relationship between the people and their government; everything else is of lesser importance to this question. The history of this nation is of the president reading significant power from the Constitution and employing that power to rule, rather than to govern. The Swahili translation of "Attorney-General" should be "mwanasheria mkuu" and not "mkuu wa sheria" as has been the norm, yet this mistranslation goes to the heart of the relationship between the people of Kenya and their government, especially their Executive in the form of the President and his Cabinet. It is for this reason that every time there is a national crisis where Kenyans are victims, their preferred solutions always begin with the plea, "Ninaomba serikali ..." imbuing the government with almost mystical powers to solve their problems and rescue them from the plight they find themselves in. The President and the Ministers and Assistant Ministers in his Cabinet enjoyed untold power to make decisions on behalf and for the people without oversight or right of appeal. As a result, they enjoyed a free hand to do pretty much as they pleased. The Constitution of Kenya, 2010, is an attempt to shift the balance away from an overmighty Executive to a more representative and accountable dispensation.

However, in interrogating the qualifications or otherwise of the Judicial nominees, and to a lesser extent that of the DPP, the debate has firmly focused on matters that are not the preserve of the Constitution but of the cultural and spiritual guides of the nation. As a result, important questions regarding the future relationship between the people and the government remain unanswered and unconsidered. In our zeal to participate in the almost salacious examination of Dr Mutunga's and Ms Baraza's personal lives, we have failed to answer a more critical question: will they have the courage to make pronouncements that affirm the constitutional sovereignty of the people of Kenya over their government, or will they rule to affirm that indeed, the President and his Cabinet will continue to enjoy untrammeled powers to do as they please?

Thursday, June 09, 2011

There is more to the Supreme Court than gays and abortion.

Pharis Kimaru, writing a commentary in today's Daily Nation (Pick either Mutunga or Barasa, not both) declares, "It is feasible that the court will rule on abortion, gay rights, sex education, sexual harassment and many other hot-button issues." Why is it that everyone assumes that the most controversial socio-political issues in Kenya will revolve around these themes, and not on the relationship between the Government and the citizens of Kenya?

The clergy are opposed to the two nominees because of their perceived stances on abortion, homosexuality and sex-related socio-cultural issues. They do not have a problem with the nominee for the position of DPP perhaps because he has never publicly stated what his position is regarding the prosecution of these issues in courts of law. As it is, his judicial philosophy and his legal interpretation of these issues is unknown. His candidature is being opposed by Yash Pal Ghai, among others, on the grounds of his perceived bias in the manner in which he has prosecuted some of the high and mighty of Kenya. If a respected jurist like Prof Ghai has doubts about the legitimacy of Mr Tobiko's nomination, it remains a mystery why the Church leaders have not taken up his campaign and buttressed it with their input. This obsession with the position the two judiciary nominees may or may not champion in their leadership of the Supreme Court betrays the fact that the church leaders do not appreciate the history of Kenya's Judiciary regarding the issues that have affected Kenyans since Independence.

One reason why not many mourned the resignation of Chief Justice Bernard Chunga in 2003 was his reputation during the dark days of the Nyayo Era. Regardless of the proof that was presented, many respected commentators condemned Chunga, CJ, for his role in the Nyayo Torture Chambers and they welcomed his resignation in the hope that the next Chief Justice would take a mallet and chisel to the citadel of official Executive impunity in the courts of law. Chief Justice Evan Gicheru disappointed many who had welcomed his appointment because he pursued reforms in other non-sexy areas of the administration of justice, such as his reorganisation of the Judiciary, especially the High Court, and the administration changes he brought about to speed up the disposal of cases and the professionalisation of the Judiciary. His decision to create the judiciary training school has not been lauded. One of the candidates for Chief Justice, Kariuki, J, pointed out that the role of this training institution was set to grow in the making of better judges and magistrates. Over the long run, this institution would serve the cause of justice better than any anti-corruption programmes that may be initiated at the instance of the Chief Justice.

The Supreme Court will certainly be called to address the constitutional issues surrounding right to life, sexual minorities, and morality, but it will not deal exclusively with these issues alone. The most significant judgments will revolve around the place of the Government in the protection of the fundamental rights of Kenyans and it is in these areas that Kenyans must take a healthy interest. Other than the constitutional issues surrounding the rights of accused persons and the imposition of penalties such as the death sentence, the Supreme Court will also be called upon to ensure that new rights are protected and that the government is compelled to institute programmes to ensure that they are enjoyed fully by all Kenyans. 

For instance, consumer rights have never been constitutionalised in Kenya and the role of the Supreme Court in ensuring that they are protected will be critical, especially, as I expect, the government claims that it does not have the resources or the capacity to protect them or enforce them against third parties such as manufacturers and other commercial interests. The recent sharp rise in the cost of living has affected more Kenyans than by the rate of abortion. The manner in which the oil and energy industry is regulated and managed has had a greater impact on the quality of life of ordinary Kenyans than the moral issues over which the clergy are fulminating.

Privacy, freedom of expression, protection of the right to property, labour relations, environmental rights, and the rights of persons detained, held in custody or imprisoned will have far greater impact that the issues surrounding the right to life or the place of the family in Kenyan society. The role of the Supreme Court in drawing the line between the duty of the government and the obligations of the citizenry will be crucial and the place of the Chief Justice and Deputy Chief Justice will be important. If they are only concerned about the hot-button issues of the culture wars, we are doomed. The failure by even the church to interrogate the stances of the nominees on these issues has robbed Kenyans of insight into the sort of court these two nominees will preside over. Given that it is the Director of Public Prosecutions who will be tasked with ensuring that laws relating to these questions are upheld, their failure to participate effectively in Keriako Tobiko's confirmation hearings shows that they do not seriously care about the bread-and-butter issues affecting Kenyans, instead concentrating on matters that will at best be academic and esoteric.

Tuesday, June 07, 2011

On Abortion

In the heated debate over whether Dr Willy Mutunga is suited to be our next CJ, using his positions on homosexuality and abortion to reject his nomination, a critical consideration of abortion has not been conducted. It should go without saying that no woman immediately considers the termination of a pregnancy, even if it was caused without her consent or without planning. The decision to terminate one is usually arrived after a careful consideration of all alternatives, including psychological and social ones. The debate surrounding abortion in Kenya, it seems, has cut out women from the conversation, seeing that it is men who seem to have the most strident opinions on the matter, holding themselves out to be the moral defenders of the right to life.

The Chairman of the Constitution Implementation Oversight Committee was quite adamant that abortion is not permitted under the Constitution. He is half right. It is not permitted, except in certain circumstances. The Constitutional interpretation of the Right-to-Life Clause in the Constitution will occupy the minds of the Judges of the High Court, Court of Appeal and Supreme Court soon enough, and it will be interesting to see the manner in which the legal debate is phrased during the hearings, and whether the interested parties in the debate will abide by the decisions of the three Courts. Just as in the United States, the Supreme Court of Kenya is set to declare what the true interpretation of the Constitution is regarding this knotty question; without a doubt, this decision will divide Kenyans into warring camps.

The Church in Kenya, for the most part, is headed by men. Very few women head churches in Kenya, or church organisations, or play a dominant role in shaping church doctrine or policy. As a result, an impression has been created that church leadership in Kenya is the preserve of men, at least when looked at from the perspective of the major churches such as the Roman Catholic Church and the Anglican Church. Women church leaders dominate in the evangelical and Pentecostal churches, which also see to espouse some of the most conservative aspects of Christian doctrine. As it is, therefor, many vulnerable women cannot expect the support of the church in making decisions regarding whether or not to terminate their pregnancies, but instead face the possibility of official opprobrium from the spiritual guides.

The Right-to-life movement is not restricted to the Kenyan church alone, but is shared by the conservative elements of Kenya's other main faith, Islam. The partnership between the two faiths on wide-ranging social issues has been startling, to say the least. They collaborated, in the 1990s, on the programme to oppose the introduction of sex education in all Kenyan educational institutions, insisting that 'family life education' posed a threat to the moral fabric of Kenyan society. More recently, even while they differed over the inclusion of Kadhis' Courts in the Constitution, they were united in rejecting any interpretation of the Constitution that would be seen to widen the scope for the termination of pregnancy. They joined together to denounce the relevant article in the Constitution, alleging that it virtually opened the floodgates. As with the Kenyan Church, Islamic leadership in Kenya is dominated by men. Indeed, all 11 Kadhis in Kenya are men.

The abortion debate mirrors the culture wars of the United States, with faith-based organisations uniting in challenging the US Supreme Court decision in Roe -v- Wade that affirmed that the Constitutional right to privacy also included the right of a woman to decide what could and could not be done to her body. This war has now crossed the Atlantic and is now being waged in Kenya through proxies, including arguably, The Ford Foundation and FIDA Kenya. In the lofty campaign rhetoric between the pro-choicers and the pro-lifers, the voice of the ordinary woman has been drowned. Everyone involved in the debate claims to speak for her, yet they have done precious little to highlight whether or not they truly represent her views.

President Barack Obama of the United States, refusing to be drawn into the culture wars, stated that while he recognised Roe -v- Wade as American law, he would work to ensure that abortion was rare, but when it needed to be performed, this would take place in the safest possible environment, protecting the rights and the life of the mother. This should be the approach in Kenya. Rather than worrying about the possibility of an outbreak of abortion in Kenya as a result of the Constitutional interpretation of the right to life, the government and all the interested parties must work together to reduce the incidences of abortion by addressing the reasons why it may be necessary in the first place. Key among this would be ensuring that young and youthful persons have access to sexual and reproductive health information that will enable them to make responsible choices and ensuring that the social welfare systems in Kenya offer support and protection to mothers and children. Further, in safeguarding and protecting the interests of family as the foundation of society, it is imperative that newly recognised and developed social mores related to the rights of women, girls and mother be affirmed and protected. In the end, if all stakeholders work together, the issue of abortion may not be as divisive as the church in Kenya has led us to believe.

Monday, June 06, 2011

Dr Mutunga and Ms Baraza are NOT the Supreme Court

The Constitution Implementation Oversight Committee, headed by Abdikadir Mohammed, today held public hearings to either approve or disapprove the President's and Prime Minister's nominations of Dr Willy Mutunga, Nancy Baraza and Keriako Tobiko as CJ, DCJ and DPP. Mr Mohammed has acquitted himself well in the hearings, steering them towards matters of substance and attempting to rein in his more excitable colleagues, notably Budalang'i MP Ababu Namwamba. As has become the norm for Mr Namwamba, he is yet to see a red flag that he does not charge at like a bull at a torero with a red cape. However, it is the thoughtful interventions of Bishop David Oginde and Father Ferdinand Luganzi of Christ is the Answer Ministries and the Kenya Episcopal Conference, respectively, that require a robust riposte.

In their submissions before the CIOC, the two men of the cloth have raised issues regarding the suitability of both Dr Mutunga and Ms Baraza to helm the Judiciary, relying on the argument that their personal and professional stances raise serious doubts about their moral integrity, contrary to the provisions Article 166 of the Constitution. They argue, rather persuasively, that as the Constitution does not allow same-sex marriages or abortion, and that the Constitution affirms the place of the family in society, their stances on these issues disqualify them from taking up the position of CJ and DCJ. However, George Kegoro of the International Chamber of Jurists-Kenya argues that the question of moral integrity should be viewed from the perspective that the Constitution of Kenya affirms that Kenya is a secular republic and not a theocracy, and therefore, it is secular moral values that should determine whether or not Dr Mutunga and Ms Baraza are fit to hold the positions to which they have been nominated.

First, the Chairman of the CIOC is not competent to rule that the Constitution outlaws same-sex marriages, or that abortion is absolutely banned. Neither are church leaders. The interpretation of the Constitution is the exclusive preserve of the High Court of Kenya, and until it does so, the views of the Chairman and the church men are at best opinions. Secondly, 'family' is not defined in the Constitution. Indeed, given the changing social mores of Kenyans, 'family' includes single fathers, single mothers, divorced persons, orphaned children, adoptive families, widowed parents or widowers with children. Therefore, the traditional definition of family composed of a father, mother and their offspring may no longer apply strictly. Finally, high moral integrity does not automatically disqualify divorced persons or persons who, in their professional capacity, have represented 'sexual minorities' in defining and protecting their rights.

Mr Kegoro raises an important point. While the Constitution in its preamble proclaims the supremacy of Almighty God, it also affirms Kenya as a secular republic. In other words, no single religion holds sway under the Constitution. It follows therefore, that the moral integrity being addressed under Art 166 is not a religious quality, but a social one. Whether one is a Christian or a Muslim or a follower of another faith or no faith at all, it is imperative that the moral integrity that is demanded of candidates for high judicial office include the virtues of honesty, impartiality and fairness. Any candidate who has been involved in corrupt practices, theft or other offences would automatically be disqualified from holding such office. To the best of my knowledge, Dr Mutunga and Ms Baraza have not been accused of any vices that would suggest that their interest in these judicial positions wee anything but guided by the national and public interests.

The church men also advance an argument that the two have displayed a philosophy that is at variance with values Kenyans hold to be dear. They point out that Dr Mutunga, in his legal practice, has represented persons who would seek to change the law as regards the question of homosexual relationships. This, they argue, is proof that when Dr Mutunga as CJ will be faced with this question, he will invariably side with them. Therefore, he is unfit to sit as the CJ and should not be confirmed by the CIOC or Parliament. The fact that Dr Mutunga and Ms Baraza are divorced also points to the fact that they do not value the family as the foundation of society and would therefor, in the capacity as judges, encourage the breakdown of the family unit, raining chaos on Kenyan society. What the church men fail to demonstrate is how the leadership of the two nominees of the Judiciary would be carried on in isolation from the rest of the Supreme Court.

The Supreme Court will have seven Judges, including the two nominees, and the judgments of the Court must reflect the judicial consensus of all the Judges and not just the two nominees. The Supreme Court is not a dictatorship of the CJ and DCJ. If appointed, the two nominees must work with the other five judges to pass judgments that are acceptable. This is why the job of the Judicial Service Commission is not done. In choosing the remaining five Judges, the JSC must also recommend men and women who have demonstrated independence and a keen understanding of the law and an appreciation of the Kenyan situation. It is the only way that Kenyans will regain their trust in the Judiciary.

Sunday, June 05, 2011

Embrace transparency or suffer the consequences

Apparently, Justice (Rtd) Aaron Ringera is contemplating suing the Judiciary Service Commission for not placing him in the short-list of candidates for position of Judge of the Supreme Court of Kenya, accusing the Commission of having violated his constitutional right to fair administrative action under Article 47 of the Constitution. Kenneth Mwige, another candidate who was not short-listed, has also accused the JSC of failing to abide by the principles of the Constitution in denying him a place on the short-list and also of failing to inform him of the the reasons why he was not short-listed. It is difficult to argue against the claims of these two eminent practitioners of law. However, I doubt whether their complaints would reverse the minds of the members of the JSC regarding their suitability to sit in the Supreme Court.

The JSC erred in not publishing the criteria it relied on in determining who would make the list and who would not. It erred in not publishing their reasons for and against the successful and unsuccessful candidates. However, I do not think that they were acting unconstitutionally, as the principle of public participation has not been legislated or interpreted yet by the Court of Appeal (sitting as the Supreme Court) or the High Court of Kenya. Some of the phrases appearing in the Constitution of Kenya are extremely vague, giving rise to these sorts of contentious accusations. For instance, "high moral character" in the context of determining the suitability of nominees for the positions of CJ and DCJ have given rise to arguments that the JSC considered 'alien' factors in short-listing Willy Mutunga and Nancy Baraza to the two positions respectively. So too the phrase "public participation" in using unspecified, unpublished criteria in not short-listing Aaron Ringera and Kenneth Mwiga to the position of Judge of the Supreme Court.

The proper avenue for resolving the ambiguities of these phrases lies in making applications to the High Court of Kenya for the proper interpretation of these phrases. Many institutions have applied to the Attorney-General for his opinion regarding these issues. However, the applicants have denounced the A-G's interpretations on grounds that they have been 'politicised' when they have not met their purposes. It is this claim that has been made regarding the A-G's opinion on the legality of the Minister for Finance's intention to read the Budget on June 8 without complying fully with the provisions of Art 221.

Justice Ringera was at the helm of the Kenya Anti-Corruption Commission when the Anglo-Leasing scandal came to light. His handling of the matter gave rise to doubts about his desire to fight corruption and impunity at the highest levels of government. Indeed, he was indicted by no less than the Permanent Secretary in the Office of the President for Integrity and Governance for the manner in which he refused to call the main perpetrators of the scandal to account and the selective application of law to prevent their prosecution or investigation. Further, the manner in which his re-appointment was conducted, and his refusal to step down in response to the calls of members of civil society, raised doubts about his understanding of the perception of his refusal. Finally, his past actions as a member of the Law Society of Kenya during the Second Liberation movement raised doubts about his desire to hold the government to account for its autocratic tendencies. Whether the JSC published its reasons for refusing to short-list the retired judge or not, it would have been unusual for them to even contemplate his appointment to the Supreme Court; too many doubts surrounded his past actions.

Mr Mwige claims that as a member of the Law Society, he has a right to be informed of the reasons why he was also not short-listed. He is right and the JSC must move with haste to do so. However, appointment to the Supreme Court is not a matter of right; it is a privilege and it can be denied to any person for reasons that pass constitutional muster. Other than his professional qualifications, Mr Mwige fails to demonstrate why he should be considered over other candidates for the position. He does not, for instance, demonstrate how his career in the practice of law elevates him above the other candidates, or whether his presence in the Supreme Court would advance the cause of justice in this country. He does not show, for instance, whether as a member of the LSK he has initiated any programmes with a view to reforming the Judiciary or to improve the practice of law in Kenya and improve the image of the profession for the good of the nation.

The JSC is not without blame. In contrast with the Constitutional Implementation Commission, the JSC has not set up a credible public communications infrastructure to provide complete information to the public as to the manner it conducts its affairs. In the 21st Century, the cost of setting up and managing a website is not longer prohibitive and the failure of the JSC to do this counts as a mark against it. The accusations of opacity in its deliberations will not go away so long as aggrieved candidates are denied the opportunity of viewing the criteria with which the Commission has based its decisions on. It must therefore, undertake to review its practice with a view to continuously provide information to the public with which its successes or failures can be gauged.

This is a lesson that must be taken to heart by all public institutions. One reason why Kenyans clamoured for reforms was because their institutions, indeed their government, went out of their way to hide information regarding their actions.Under the new constitutional dispensation, especially given the constitutional right to information, this situation cannot persist. For Kenyans to have full confidence in their institutions, they must take the unprecedented step of opening up their books to public scrutiny. Anything less would be a betrayal of the trust Kenyans have placed in these new bodies to safeguard the public interest from personal and political interference. Transparency is one of the cures for lack of faith and trust in government and its institutions. We must all be prepared to embrace the new era or be tainted by the same brush that tarred the KANU and Kibaki eras.

Saturday, June 04, 2011

The wheels of time grind slowly, but they grind surely

The ground is shifting beneath William Ruto's feet. It is unclear how his new-found friendship with Uhuru Kenyatta and Kalonzo Musyoka will play out in the run up to the 2012 general elections, which is well underway. Mr Musyoka has began the tiresome job of dissociating himself from the two and his stock, in turn, has sunk even lower. One is hard-pressed to identify a single initiative with his name on it. Mr Ruto too has began to re-think his place in the triumvirate, lashing out at one thing or another in recent weeks, most notably, stridently echoing the misgivings of evangelical and Pentecostal bishops about the nominations of Willy Mutunga and Nancy Baraza for the positions of CJ and DCJ. Meanwhile, Raila Odinga is discovering that his personal charisma is insufficient to guarantee victory at the hustings.

The changes the country is undergoing during this transition period, between the promulgation of the new Constitution and its full and final implementation raise many issues that require the fullest of faculties to navigate them. Our political class bar none has not risen to the challenges. Instead, they have made their plans and their calculations based on past patterns of behavior, both among themselves and their electors. Nearly all of them refuse to admit that their time at the trough is up and that it is no longer business as usual. Unusually, the chiefs of some of the Commissions meant to keep an eye on the implementation process have failed in their duty to properly advise the political classes, instead fomenting trouble where none existed. A good example is the kerfuffle surrounding the reading of the Budget between the Commission for the Implementation of the Constitution and the Minister for Finance. Charles Nyachae and his Commission are wrong to make a mountain over the molehill of Article 221. The Commission is incompetent to interpret the Constitution; that is the preserve of the High Court. When the dispute became apparent, the proper course of action would have been to petition the High Court to interpret the Constitution, and both the Government and the Commission would have been given an opportunity to state their case. (Of course, there is the little matter of the vetting of Judges, isn't there?)

The uncertainty surrounding the implementation process and the transition period is also a pointer to the impatience that Kenyans are demonstrating regarding these issues. For years during the Moi Era, Kenyans were programmed by his opponent to believe that change would be instantaneous and that all that ailed the nation would be wiped away by the promulgation of a new Constitution. The reality has proven to be something else entirely. No nation on earth has changed its constitution in peace-time. Ever. What Kenya achieved was unprecedented. Not even the United States has ever managed this. It is this that should have cautioned Kenyans to temper their expectations. Change will come; it will not come today or tomorrow. There are many tomorrows ahead for this nation and it is our responsibility to take each day as it comes while keeping a vigilant eye to ensure that no one monkeys with the process or the gains achieved.

This does not mean that we should not do what COFEK and Ndung'u Wainaina have done; all it means is that we must choose which battles to fight and which ones to abandon. Simply marching at every instance the Government does something that does not gel with our inflated world view is wasting time and resources and distracting us from the vital task of quickly building new institutions to manage our public affairs effectively. Regardless of their misguided opinions, the bishops are right to challenge the nominations of Dr Mutunga and Ms Baraza; but, they must be prepared to accept the verdict of the courts if it goes against them. This is the essence of the democracy that we bequeathed ourselves on August 27, 2010. It is time that the Uhuru-Kalonzo-Ruto alliance reviewed its strategies with this in mind. It would also do Raila Odinga a power of good to take the same lesson. Otherwise, they may all find themselves unsuited to lead this country after 2013.

Thursday, June 02, 2011

Theocracies do not work

If Kenya were a theocracy, would the religious leaders have solved the errors of the past and turned Kenya into a prosperous, tolerant and peaceful nation? The answer lies in how the theocrats of today have run their various institutions. The Roman Catholic Church, the Anglican Church, the AIC, SDA, and the other 'organised' churches have a leadership that is for the most part, democratically elected. However, it is the Big Two, the Roman Catholics and Anglicans, who demonstrate the contrasts of Christian theocracies.

The Roman Catholic Church is an autocracy, benevolent as it may seem. The Pope is the head and his word is final, infallible. His views on many social issues are unchallengeable, despite advances in science and in other areas. The intolerance of the Roman Catholics to certain ideas augurs poorly for a future where the Pope's representative in Kenya enjoys a veto in the decisions of the elected representatives of the people of Kenya. The Anglicans too, have their hard stances, but for the most part they have not displayed the same level of intolerance to the ideas of others. The schism that is being experienced by them regarding the ordination of homosexuals reflects the same debate that is raging in the public sector. It is entirely possible that whichever path the Anglicans finally follow it will be reflected in the choice the people they serve eventually do. Thankfully, though the Archbishop of Canterbury is an important figure in the Church, he is not infallible or unchallengeable.

What about the Muslims and the Hindus? The Muslims offer the starkest example of the need to separate religion and government. Iran has been run by the Mullahs since 1978 and in that time even their intolerance to certain matters has raised the hackles of Muslims. The overwhelming influence of Wahhabism in Saudi Arabia has led to the marriage of an intolerant strain of Islam with an authoritarian regime that serves not the good of its people but the ruling royal family, if family it is. As a result, many Islamic leaders have taken to employing Islam for their ends, regardless of what the religion may stand for. The history of the past 30 years is littered with the blood of the innocent, slain in wars which were justified in the name of Islamic Jihad. Hindus, do not fare any better. The chauvinistic manner in which they view themselves, and the intolerances within the hierarchical religion means that in theory, at least, they would be willing to support inequities in society.

No one disputes that religions proffer many positive values for society. Truth, honesty, tolerance, fraternity, sorority - these are all attributes that we must aspire to. But, these values quite frequently are enforced on in relation to the religion itself and not to outsiders. Therefore, Catholics are tolerant of other Catholics, Muslims of other Muslims, and so on. It is for this reason that theocracies fail in the long run. It is for this reason why we will keep attending church but vote with our heads it comes to government. I do not want a pastor in charge of this country just as I would not want a politician in charge of my Sunday sermon.

The 2012 numbers are not what they seem

Everyone and his uncle is looking at the 2012 general elections through spectacles of the past, making ethnic calculations about the chances of this or the other presidential candidate. The expectations are that the 'major' ethnic communities are set to ensure that one of their own will be the next occupant of the house on the hill. In this context, the presidency is seen as the exclusive preserve of either the Kikuyu, the Luo or the Kamba, with the Luhya being taken as the perennial bridesmaids, never the brides. As it is, Prime Minister Odinga is seen as the 'Luo' candidate, deputy Prime Minister Kenyatta as the 'Kikuyu' candidate, Vice-President Kalonzo Musyoka, the 'Kamba' candidate, and Deputy Prime Minister Kenyatta, the 'Kikuyu' candidate.

If this were 2007, then the calculations of how the respective ethnic communities would vote would have been more than valid. However, perhaps it is time to re-think the vote-bank theory. It is possible that the changed constitutional landscape may require a re-examination of the vote-bank politics of the past two decades, and instead, focus on the manner in which a winning presidential candidate needs to act to secure victory. For one, the existence of the Political Parties Act, flawed as it may be, is a crucial factor in determining victory. So is the requirement that the Executive be divorced from the Legislature entirely. The creation of the Senate also changes the manner in which parties and their nominees operate, especially in cosmopolitan areas.

The Political Parties Act requires that all registered political parties have a national, as opposed to regional, footprint. In 2007, only ODM demonstrated that it was a truly national party, only being locked out of Central Kenya. ODM-K and PNU, rightly or wrongly, were seen as "Ukambani' and Mount Kenya parties respectively. They have done precious little to change this perception. Neither have FORD-K and New FORD-K done much to change the perception that they are Luhya parties. Martha Karua's Narc-K, on the other hand, is trying its hardest to distance itself from even a whiff of ethnicisation. Looking at its office bearers, one can see that it is as cosmopolitan as it gets. However, given the animus with which Martha Karua and Danson Mungatana are regarded with by the main backers of PNU, it is hard to see how she will turn her cosmopolitan party into a contender in 2012. The Political Parties Act takes its cue from the Constitution, which not only makes it very difficult for a presidential candidate to hunt for votes only in his ethnic backyard. It also makes it hard to strike alliances of convenience because he cannot promise jobs for his backers in his administration. Therefore, the winning candidate must have broad national appeal if he is to head the next government. Further, his appeal must be strong enough to ensure the election of a majority of his supporters in the National assembly and the Senate as well as taking control of a majority of the County Governments. If one is hoping to rely on the arithmetics of 2007, they should give up now and bow out of the contest.

The people who are still obsessed with the numbers need a new calculus. Whether Uhuru Kenyatta and Martha Karua split the Kikuyu vote, or whether Kalonzo Musyoka can count on the Kalenjin and Kikuyu votes should Uhuru and William Ruto find themselves in The Hague for an extended period, is immaterial at this stage. This is true also of whether Raila Odinga can count on the votes of the Luo and the Luhya at the hustings. Those numbers are meaningless. The winning candidate must take at least half the votes cast in at least 24 of the Counties to secure victory. In order for his agenda to be implemented, he must control half of the 290 elected MPs and his people must take the governors' mansions in at least 24 of the 47 counties and at least 24 of the 47 contested Senate seats. Harping on whether the kikuyu, or the Kamba, or the Luo, or the Luhya will vote en bloc, misses the point by a mile.

As by law established

The members of my profession, the ones with a pompous sense of importance, tend to use phrases whose value has diminished greatly since the ...