Sunday, July 31, 2011

So what if the next A-G is a reformer?

It is not Amos Wako per se, but the institution of the State Law Office that is a problem. Hassan Omar Hassan, Charles Nyachae, and all those that are welcoming the imminent departure of Amos Wako from the Attorney-General's Chambers with undisguised glee have it all wrong. As Michael Joseph, the former Safaricom CEO would have put it, it is a peculiarly Kenyan habit to lay the blame on the individual rather than on the system that permits him to be as he is. Mr Wako's departure has been constitutionalised and he has no choice in the matter, but until the State Law Office is reformed to reflect the reforming transition that Kenya finds itself in today, it is irrelevant who the next Attorney-General is: the temptations of the post may overwhelm even the most liberal, reformist person to occupy that position.

In the absence of a real debate regarding the proper place of the State Law Office in the government of Kenya, Mr Hassan and Mr Nyachae have directed their ire at a man. They and their fellow-travellers may have no clue as to what the place of the A-G is and this may inform their intemperate statements regarding the person of one Amos Wako. Their failure to express clearly what they want the State Law Office to do informs their arguments: that Mr Wako is the embodiment of impunity. What they may be unwilling to admit is that they do not know - nobody does - what the A-G is and what he should do when it comes to the reform agenda as espoused by them.

The Constitution prescribes the powers and functions of the Attorney-General. In addition to being the principal legal advisor of the government, the A-G will also perform functions that may be assigned to him by the president or by national legislation. To date, it is the State Law Office that oversees the registration of businesses, partnerships and companies (both private and public); marriages; and manages the estates of persons who die intestate until a court rules on the distribution of the estates. No one, to my knowledge, has challenged the manner in which the State Law Office has discharged its functions in these areas. It is only in the area of political controversy that the A-G, and the State Law Office, have taken flak.

It is here that reforms will be needed. The recent controversy regarding the publication of the Independent Electoral and Boundaries Bill, and later its assent by the President, demonstrate what the challenges are. Mr Nyachae and certain members of civil society, have accused the Attorney-General of stymieing the process, engendering delay and threatening the implementation of the Constitution. The impression being created is that Amos Wako is the Colossus standing in the way of the implementation of the Constitution and that his imminent departure will open the floodgates of law-writing, and implementation will move at much faster pace. This, however, completely ignores the history of the office of the A-G. Few are willing to remember the odious impacts that previous A-Gs had on the government of Kenya, most notably Mr Charles Njonjo and Justice Matthew Guy Muli. Who could forget Mr Njonjo's declaration that even contemplating the death of Jomo Kenyatta constituted treason, a crime that carries the death penalty?

Merely hoping that the next A-G will be a reformer without addressing the structure of the State Law Office is being too generous on the good sense or generous spirit of the next Attorney-General. Institutions should be greater than the men and women who head them, and so it should be with the Attorney-General of Kenya. Until an honest assessment of the proper role of the office is conducted, it is only a matter of time before greater controversy is generated as we seek to implement one of the most liberal Constitutions in modern times. The A-G should be the symbol of the rule of law, offering opinions to the government that are not only backed by a proper understanding of the law, but also tempered by the realisation that such opinions shape government policy and ow the government relates with its citizens. The reformist credentials of the A-G should not be the only criteria used to judge him or to appoint him. If they are, then we may as well appoint a poodle to the post.

Tuesday, July 26, 2011

Stop using famine as a political weapon

Kenyans have extremely cold hearts. If the images of children starving to death is unable to shake them off their obsession with who will or will not be president in 2012, nothing else will. Children, and elderly persons, the most vulnerable members of our society are dying of hunger. Many more, having trekked hundreds of kilometres from a dysfunctional Somalia, are dying at our border, the government having taken a firm stand against allowing in more refugees from that benighted country. International aid agencies are struggling to cope with the worst famine in 50 years in the Horn of Africa. So is the Government of Kenya, and stories of the outright theft of food aid by officials merely underscores the peril millions of Kenyans and Somalis face today.

Mohammed Farah Aideed understood the power of hunger and in his war with the other clans in Mogadishu, he ensured that he used it for his own ends. Mr Aideed controlled the aid flow in Somalia. Aid workers were killed in his internecine war and the Americans vowed never to send its troops to Somalia after the infamous Blackhawk Down incident. The dictum that he controls the food controls the people seems to be playing out in Kenya this year.

The transition from the former Constitution to the new one has seen every political player worth his salt take to the field with gusto. Prime Minister Odinga, the putative frontrunner, has the Gang of Seven nipping at his heels. He has used his office to highlight the plight of the starving masses in Northern Kenya to no avail. Meanwhile, the Government of Kenya has decided to permit the import of genetically modified foods as a solution for the famine, arguing that the grain stocks in the Strategic Grain Reserves have fallen so low and the season's harvest has been so poor that this drastic step is warranted. Whispers of rent-seeking among the members of the political class, men and women who are willing to make a killing ahead of the 2012 general elections, have been doing the rounds giving the lie that the decision to import GM maize has anything to do with the plight of the hungry and the dying.

Economists and social economists all agree that, in the twenty-first century, drought will occur but that there is no reason why famine should. Famine is a symptom that the government of the day cares more for its survival than the survival of its people. With the expansion of the railway system to all parts of the country, India has never suffered peace-time famine since 1919. In Kenya, twenty-four years of hegemonic KANU rule saw the national infrastructure (roads, railways and air transport) crumble and fall into disrepair, with the government of the day being the only institution with the capacity to reach all its citizens. KANU used this power to control the people of Kenya, controlling the distribution of grain in such a manner as to punish or reward its people. By also controlling the press, and the media, KANU and Moi shaped public opinion, denying Kenyans information and using their ignorance to cement Moi's grip on power.

To his credit, Mwai Kibaki has tried to undo in ten years what it took KANU forty years to build: an edifice of corruption and cronyism that has laid this country low and could be legitimately blamed for the violence of 2007/2008. Mr Kibaki is hostage to his past and it will be up to the next president to make a clean break with past, including using famine for political purposes. Our duty to our fellowman should not be tied to our political affiliations. We must embrace the idea that Kenya, for all its baggage, is a nation that can reach for the moon if all its citizens participate fully in its development. As a starting point, we must force our government, all three branches, to ensure that the starving masses are offered succour with no thought as to who will stand to benefit from the decision. If we cannot guarantee our brothers and sisters in the north food security then we are no better than the charlatans of the al Shabaab and al Qaeda that seek to destroy us.

Monday, July 25, 2011

Their hate is the key to understanding them

Let us admit that while there may be legitimate political and policy differences between Raila Odinga and the Gang of seven, their battle is an emotional one. The Gang of seven has one everything in their power to ensure that the Prime Minister does not get to win. Period. Messrs Ruto, Kenyatta, Musyoka and their acolytes may have legitimate reasons why they think they would make better Presidents than the Prime Minister, but their campaign rhetoric and other public statements are infused with a level of hate that Kenyan politics has not seen since Jomo Kenyatta and Oginga Odinga went toe-to-toe in the 1960s, so much so that the current battle between the PM and the G7 is seen as an extension f the Kenyatta-Odinga battle.

Their foot-soldiers have taken this to heart and their public statements are riddled with the stench of a personal war run amok. It remains unclear why the Gang of Seven is so opposed to an Odinga presidency, especially under the new Constitution. Mr Odinga's credentials include early opposition to President Moi's autocratic tendencies. He has credible executive experience and his international connections may well benefit the nation in the years to come. Messrs Kenyatta and Ruto, on the other hand, are tainted by their close association with the Moi regime, especially Mr Ruto who was a notorious foot-soldier for Moi's 1992 election victory. While Mr Ruto has been lauded as an effective manager in the ministries he has served, he is still associated with the fiasco of the Maize Scandal in 2008 when thousands of Kenyans starved to death while billions were lost or stolen in a maize import scam at the Ministry of Agriculture. Mr Kenyatta's stint at the Ministry of Finance has not been free from controversy, the latest only being the accusation that he failed to abide faithfully by the Constitutional provisions on public finance. Meanwhile, Mr Musyoka will not walk away from accusations that he betrayed the Orange cause when he decided to stand for the presidency despite the Orange popularity of Mr Odinga and his deal with the PNU in the aftermath of the 2007 general elections did not win him friends.

It is the personalisation of the battle between the PM and his opponents that fuels the fire of the speculation surrounding the 2012 general elections, and not the issues that must be addressed before and after the next general elections. If these issues are not highlighted, the next elections will be a personal battle between the PM and the Gang of Seven (if they still remain allies). Kenya will be the loser. Without a candidate to articulate their hopes and fears, the campaign will serve to whip up emotions that Kenyans have demonstrated they are incapable of managing. When we are called upon to defend individuals, or to defend our idea of ethnic superiority (or victimhood), neither logic nor common sense serves to call on our better angels. The Raila-G7 war can only end in tears if the emotion is not removed from the conflict.

More lessons from the United States

The presidential system of government that we endorsed last August will be a challenge to implement, especially when we know that members of our legislature are some of the least-educated men and women in any legislature. Bar none. That is the impression that many commentators have created over the life of the Tenth Parliament. If this were true, we would be in graver danger than we are today. Some of our MPs such as former Nominated MP Njoki Ndung'u and Nakuru Town MP John Mututho have demonstrated that they have the interests of the people at heart. That their colleagues failed to support them in the implementation or management of the after-effects of the Sexual Offenses Act and the Alcoholic Drinks Control Act is more a testament of the short-termism of Kenyan politics than an appreciation of the importance of keen follow-up by Parliament.

Events in the United States demonstrate the challenges that come with the existence of a divided government. The United States government is in the middle of negotiating a settlement that will prevent the government from defaulting on its sovereign debt. Barack Obama, the Democratic President, is negotiating with a Republican-dominated House of Representatives, hence the divided-government description. The negotiations, which have been going on for months, have failed to arrive a compromise that both sides could sell to their party members. This is one of the challenges that the government of Kenya will face in the years to come. In the event that the President comes from one party and the National Assembly is dominated by members of another it will be necessary for the politicians on both sides to demonstrate maturity when making decisions that will affect the nation as a whole. The same level of maturity will be demanded if the situation also prevails with the Senate.

At this moment it is crucial that voters elect leaders who are capable of transcending party and ethnic loyalties. The country is primed for one of the most crucial general elections in a generation. We missed the opportunity to reform the country in 1992 when President Moi managed to divide, and conquer, the opposition forces that had massed behind the Forum for the Restoration of Democracy. We missed another opportunity by the Kiraitu Murungi-led government walk-out of the Bomas Conference in 2005. In 2012, we have the opportunity to turn back the clock and grab the brass ring. If we fall prey to the same ethnic-oriented atavistic and chauvinistic impulses that politicians have cultivated for 20 years, reform may never be achieved.

Sunday, July 24, 2011

The true role of the A-G

I have no problem with Prof Makau Mutua's endorsement of Betty Murungi as Kenya's next Attorney-General (Why Betty Murungi should be the next attorney-general, Sunday Nation, July 24, 2011), but I have a problem in the manner he describes the A-G's role in governance. He states that "the A-G will be the principal legal advisor to the state. In that position, the A-G will play a key role in the reform of the state. That's why the next A-G must be someone who understands - and fully internalises - the principles, values and diktats of the new Constitution." Prof Mutua is right regarding the need for the next A-G to be wedded fully to the principles that underpin the Constitution, but he is wrong regarding the role the next A-G will play in reforming the state.

It is in the A-G's job description in the Constitution that his role is defined. As the principal advisor to the government (not the State, as Prof Mutua alleges), the A-G is duty-bound to offer the three arms of government the best advice he can regarding the discharge of their duties and their place in the implementation of the Constitution and how to exercise their powers. The Constitution does not compel state officers to obey the advice of the A-G; it merely states that A-G shall be their principal legal advisor. What they choose to do with that advice is for them to decide. If the next A-G were to heed Prof Mutua's call there will be a high turn-over of A-Gs as numerous situations will arise where the A-G's advise is ignored, leaving him only with the choice of resigning in protest.

Amos Wako's twenty-year tenure is being held up as an example of a failed reign. He is accused, even by Prof Mutua, of being the epitome of impunity. This is a debate that Mr Wako's supporters will lose, especially given the failed or lucklustre prosecution of perpetrators of grand corruption such as the Goldenberg scam, the Triton scam and the Anglo-Leasing scam. But, Mr Wako's remit extended beyond public prosecution. As the principal legal advisor to both President Moi's and President Kibaki's governments, Mr Wako has advised the two presidents on numerous occasions on diverse subjects, from foreign relations to commercial transactions. No one has done an assessment of the quality of advice the A-G has offered the government in this period and whether this advice has had a salutary effect on the operations of the government or whether it has been responsible for the decline of the power and effectiveness of government.

In the implementation of the Constitution, the role of the A-G is set to grow. In addition to being an outstanding legal practitioner, the next A-G must demonstrate political skills to rival those of the politicians and state officers he will be advising. If the A-G takes the position that only his advice should be heeded regarding the manner in which the Constitution is implemented, he will be an abject failure and will no doubt lose his job faster than he could say 'impunity'. 

The government is being reformed, but this reform will not occur in a day, a month or a year. It will be an on-going long term process and the A-G must be capable of adapting to changing circumstances and compromising when necessary. His advice must enable the three arms of government to function at their best. If his advice is progressive, and if it is presented in the most politically advantageous manner, it will be accepted and respected. If it is delivered in a manner that suggests that it is the only viable advice the government is to receive, it will be ignored, or worse still, challenged. 

We must be cautious whom we allow to be appointed the next A-G. International respect is not the only unique selling point for the A-G's qualification; after all, the Wako that is being lampooned by all and sundry, enjoyed a similar international reputation when he was appointed. The A-G must be able to persuade the government, especially the President and the Members of Parliament, that the advice he is giving them is not only good for the nation, but good for them too. It is the only way the A-G can be effective in progressively reforming the state.

Thursday, July 21, 2011

Old wine, new skins. Pity.

The race for State House in 2012 started way before the Constitution was promulgated; it started when the Raila Odinga-led faction of Kibaki's first administration rebelled and rejected the Proposed Constitution in 2005. Since then, the country has been in a permanent political campaign and, notwithstanding the events after the 2007 elections, will continue to be in such a state until well after the 2012 general elections. It seems that Kenyans, generally, accept this state of affairs and take a morbid pleasure in participating fully in the more unsavoury aspects of their preferred candidates' campaigns.

Opinion polls continue to indicate that Raila Odinga is the man to beat in 2012, though he is yet to declare whether he will stand for the presidency. The men and woman who have declared their candidacies are determined to create the impression that they are serious contenders, primarily by issuing press statements and headlining events where they either give money for charitable causes or solicit funds for their presidential bids. None, however, has created a credible campaign machinery targetting the 47 counties and existing 210 constituencies. Other than rhetoric concerning their desire to 'reform' the institutions of governance or promises to wipe out corruption from public life, none has suggested a programme for achieving any of their lofty promises. All still seem wedded to the idea that a successful presidential campaign is still based on whether or not they receive the support of their ethnic communities and how well they can persuade members of other ethnic communities to ally with them. None has been able to dispel the image of a tribal chieftain that is crucial to their identities. In short, theirs' are campaigns of style over substance.

The middle class elite in Nairobi, as frequently reported in the media, is interested in 'issues'. The proof of this interest is in the numerous Op-Ed pieces penned by intellectuals and members of the professional classes. Whether this is the reality remains to be seen. The issues that affect Kenyans acutely revolve almost entirely around the misperforming economy, of which the Vision 2030 is the latest of a long line of strategies for reforming the economy of Kenya to ensure that everyone can afford to live as they please. Over the past 2 years, since the global recession brought about economic pain, the cost of living in Kenya has touched highs not seen since the structural adjustment programmes of the IMF and World Bank were imposed on Kenya in the late 1980s and early 1990s. Basic commodities have become exorbitantly expensive, with staples such as maize meal priced out of the reach of the working classes. If the presidential contenders have solutions for the economic problems that continue to bedevil Kenyans, they are keeping them very close to their hearts. It is as if they will keep these solutions as trump cards to be revealed only when they have been elected to the presidency. By then it may be too late.

When Bill Clinton won the election in 1991, his campaign had been predicated on the economy then. George H W Bush had failed to recognise this simple fact and when he lost, many Americans stated that it was because he had failed on the economic front. In Kenya, the economy has never played a dominant role in the election of our three presidents. Until the repeal of section 2A of our former constitution, presidential elections were foregone conclusions and after its repeal, they became a test of how well the incumbent could manipulate inter-ethnic relations to secure victory. President Moi's KANU, despite being an unpopular party managed to divide the opposition in 1992 and 1997 to prolong his rule by a further 10 years. Mwai Kibaki's second presidential victory was despite the fact that he was less popular than his main challenger. At no time since 1992 was the economy a factor in the election of wither Daniel Toroitich arap Moi or Mwai Kibaki as president. The new presidential contenders know this and it is the only reason why when their manifestos are written in 2012, none will offer realistic plans for the country, and regardless of which one of them wins, the manifesto will be jettisoned promptly. Perhaps 2012 will be different, but so far no signs of change are in the air. It is still old wine in new skins. More's the pity.

Sunday, July 17, 2011

Spare a kind thought for the police

The Kenya security and intelligence apparatus depends to an overwhelming degree on the effectiveness of its civilian counterpart, the Kenya Police Force. The Kenya police have been on the receiving end of endless opinion polls and studies that label it corrupt, ineffective and outdated. For the thousands of Kenyans who every day are the victims of crime, the Kenya Police is not seen as the solution to their problems, hence the continuing popularity of vigilante justice. Not a week goes by without stories of men and women lynched for committing one crime or the other. The suspended 'police vetting exercise' was met with skepticism and opposition, especially by the human rights lobby in Kenya. They argued that the institution lacked the capacity to vet its own officers and that the exercise would not be able to weed out ineffective officers.

The Constitution creates the new post of Inspector-General of Police, in charge of the Kenya Police Service, the Administration Police, the General Service Unit and other specialised para-military police units such as the CID and the Anti-Stock Theft Unit. Recent high profile crimes have concentrated the minds of Kenyans on the continuing failures of the police to solve these crimes. Blame has been laid, among other things, on the leadership of the police services, where it is alleged that the President and his cronies only wish t place 'their' people at the helm of these agencies to protect their interests. Together with the leadership of the military services, it is presumed that these officers owe their careers to the president and therefore, would not be willing to jeopardise this relationship but would go out of their way to protect it at all costs, even if it means allowing criminals to get away, literally, with murder or the territory of Kenya to be used as a launch-pad for secessionist movements in neighbouring states.

Kenyans' faith in their security and intelligence apparatus has hit an all-time low. However, the challenges facing the police, particularly, do not seem to exercise the same excitement as the campaign to paint them in bad light has. Very few Kenyans shed tears for the policemen who have committed suicide, seeing it as the just deserts for a force that has caused more misery than any other institution in Kenya. This mindset must change if the new police service is to serve the interests of Kenyans. An honest examination of the circumstances surrounding policing in Kenya will show that the police operate in an extremely hostile environment, where corruption is not just limited to traffic cops taking bribes but also policemen paying bribes not to be posted to 'hardship areas'; what they will experience there is truly hardship: poor housing and lack of essential amenities and the total isolation that can only come with keeping them away from their families for months on end. A walk through police lines scattered across the land will demonstrate, as nothing else will, the sacrifices that men in uniform make every day: living conditions that none would wish on his bitterest enemy, congestion that gives rise to the desire for advancement at all costs. When beat cops witness their superiors living it large in Nairobi's suburbs, sending their children to schools that actually have teachers, the desire to bend the system to their own devices is overwhelming. Kenyans pretend that the squalor of policemen's lives is not their concern and complain when their police service is not what it should be. There is a word for this: hypocrisy.

Reforming policing in Kenya will not just be about clarifying the hierarchy of the various units, it must be a complete reorganisation of the way policing is done with a recognition that a good police force is not cheap. Unless and until we pay for the upkeep of a police service, paying a fair price for their services, and until we provide them with the tools, both material and political, to make then as independent as possible, murderers will continue to walk free and billions will continue to be stolen from our nation's coffers.

Love, companionship and children are not the only bases of marriage

Charles Kanjama opines that "marriage means, above all, love and companionship, a lifelong commitment of equals that safeguards and nurtures their equal dignity and equally noble task of begetting and rearing children" (Marriages are institutions of love, not unions of comrades, Standard on Sunday, May July 17, 2011). This romantic notion of the institution of marriage is of recent vintage. It was not always so. Marriages, for millennia, were institutions that served the common good and did not always satisfy the romantic needs of the partners. Love and companionship, especially, are very modern objectives of marriage and are the very heart of the changes that have taken place in the institution of marriage, eroding its place in the foundation of society.

In Africa and Asia (including the Middle East), romance came by way of the European colonists. The institution of marriage served as a means of uniting families, clans, ethnic communities and political groupings. Strict rules governed the institution of marriage, regulating who, how and when a couple would be united in matrimony. The Judeo-Christian mores introduced in Africa by the English, the Portuguese and the Germans undermined the institutions of marriage in traditional African communities, insisting that a Victorian perspective was better than the African one. As a consequence, traditional African marital arrangements were frequently criminalised, outlawed and stiff penalties attached to any African that chose to practice his culture and traditions. Polygamy, the most common tradition, was criminalised and is now being opposed by Christian faith-based groups including the church in Kenya. The infusion of religious overtones in the institution of marriage is also a relatively modern addition by the Europeans; marriage in Africa was frequently a civil affair, a social pillar that guaranteed stability and peace.

It is a poor society that lives in the past, and dwelling on what marriage was, rather than what it is, has been the Achilles' Heel of those hell-bent on perpetuating a patriarchal system that has seen the advancement of women in society blocked or slowed down. However, in defending the institution of marriage from the assault, as claimed by Mr Kanjama, by modernity, it is important to strip away the romantic notions of what marriage is. Marriage still plays a crucial role in society, as it has always been, but ephemeral and abstract concepts such as love and companionship should not be used as the basis for refusing to change with the changes taking place in the mores of the people of Kenya. It is for this reason that the stance adopted by many Christian fundamentalists, indeed by many conservative Kenyans, regarding the place of homosexual unions in the institution of marriage is short-sighted. Kenya is not what it was twenty, forty or a hundred years ago. It has evolved and so have its peoples' cultures and traditions. If it were not so, then the incidences of inter-ethnic marriage, or even interracial ones, would face great opposition and would, one way or another, be outlawed or accorded second class status.

In debating the new family laws it is important for everyone to accept that they will not get what they want at the expense of other sections of their communities. An open mind is needed. The institution of marriage cannot be used to deny sections of the community legal rights that will be accorded to others. The Constitution, in outlawing discrimination in all its forms, should be interpreted in a manner that is likely to protect the rights of minorities when it comes to the question of marriage particularly. Until we can accept that society is made up of all manner of persons, the institution of marriage will continue to be undermined and the likes of Mr Kanjama will continue to fulminate against the assault on an institution that has changed.

Saturday, July 16, 2011

Democracy and gender-equity

When Mohammed Issack Hassan suggested that one-third of all elective seats be contested by women only, and that a formula be found to pick which seats would be contest by women candidates only, I thought that it was his alter-ego speaking. The question of gender-equity has exercised the minds of operatives in the civil society and the government for at least a decade and, barring one or two sound ideas, it is always presumed that given Kenya's patriarchy, women would be the main beneficiaries of affirmative action oriented towards guaranteeing them a seat at the table. Mr Hassan's suggestion, however, raises certain fundamental questions.

No one disputes the right of the people to elect the representatives of their own choice, but when it is suggested that their choice be limited to members of one gender, the spectre of guided democracy becomes rather real. Presidents Moi and Kenyatta believed in guided democracy, that the people were not smart enough to make good choices and that it was the party, or the President, who was in a better position to understand their needs and to take the appropriate action to meet those needs. Mr Hassan's suggestion is that in those select constituencies the people will be better off if the Independent Electoral and Boundaries Commission, or some other public body, would be better placed to determine who would best represent their interests in the National assembly, the Senate, and the County Assemblies. Their right to choose their representative would be limited to the voting process but not in the choice of who is best for them.

It is also unclear whether the elected members of that particular gender would continue to enjoy special privileges when it comes to their duties in the legislative bodies or whether they would represent only the interests of their constituents of the same gender. It also remains unclear whether they will also demand a similar proportion f all appointive jobs in the legislatures and how they would measure these jobs' relative prestige in their demands. This also brings to mind the question of whether to reserve one-third of the governorships and deputy-governorships to members of this gender. Such affirmative action would also require criteria to formulated to determine which county would face such a requirement and which would not. Finally, the question of whether such affirmative action would be a permanent feature or would have a sunset clause need to be answered, or indeed, whether it would be rotational such that a county or constituency that has not faced such reservations would be compelled to go through the same requirement as any that have in the past.

Of course it is abhorrent that women have been locked out of decision-making in and out of government since Kenya became a republic, only being used to rubber-stamp decisions that ave been taken by men. The reasons why are complex, but the solution is not the use of patently undemocratic means to achieve parity. In fact, for things to change, society must accept that women have often received the short end of the stick. No statistics or opinion pols exist that demonstrate that Kenyans are ready for such a draconian measure to elevate women in government. But a consensus exists that this is now a problem and that a solution is required. Perhaps the solution can be found in the rules themselves. If one-third of all elected representatives are to be women, perhaps then of all elected representatives, one-third could be nominated to make u the numbers. This way, they could demonstrate their leadership activities, raise the profile of women leaders and eventually ensure hat in the political arena they receive a fair shake. This rule could also apply to all appointed offices: it must be made mandatory that in public appointments, women receive one-third of all appointments at all levels, taking care to ensure that they are not quarantined in one sector alone.

The decision to reserve public offices to women must be made in the knowledge that if we do not reform the manner in which women are viewed, affirmative action in their favour may fail to establish them as equals in public service. The change must be led by recognising and appreciating their contribution to public life and ensuring that Kenyan society no longer places a premium on the male child alone. A paradigm shift in the manner i which women are perceived is necessary. Change the mind, change the country.

Thursday, July 14, 2011

Our only option

Some members of the Christian clergy in Kenya, the vast majority in fact, opposed the promulgation of the new Constitution on religious grounds, claiming that it would authorise unfettered access to abortion in public hospitals and lead to the decline of the family. No statistics exist yet, but no stories abound of the hordes of women rushing to public hospitals to procure abortion services and, to my knowledge, no homosexuals or under-age persons are getting married in droves. Perhaps, given the social stigma associated with them, women continue to procure abortions in secret and homosexuals are keeping their sexual relationships secret to avoid the wrath of a riled up public. More significantly, very few persons are discussing these topics today, almost a year since the Constitution was ratified and promulgated.

It seems that even with the clergy the subject that animates everyone is the 2012 general elections. Another that seems to have captured the imagination concerns the pace of the implementation of the Constitution, and, led by the Commission for the Implementation of the Constitution, the general opinion seems to be that we are lagging behind in the implementation process and that some interested parties, in and out of government, are hell-bent in sabotaging the process. In quick succession, the CIC has led the chorus against Members of Parliament, the Attorney-General and the Head of the Civil Service. However, not once has the CIC provided proof of the misdeeds of these institutions, merely alleging that some of their acts have had the effect of sabotaging the process.

It should go without saying that the implementation process was never going to be easy of straight forward. The Constitution is a complex document, drafted to reflect a political and social consensus that had been forged during the drafting process. Many of the provisions of the transitional clauses reflect this consensus. As the Prime Minister has joked, if it were not for the Constitution 'saving' the National Accord, he would now be out of a job. For the PM and his party to endorse the Proposed Constitution, he had to be guaranteed continued political power for as long as possible and saving the National Accord guaranteed that he wold continue to play an important role in governance and, indeed, in the implementation of the Constitution.

The role of the citizenry has largely been overlooked and it is fortuitous that in its fight with the Head of the Civil Service, the CIC has also proposed renewed civic education. Kenyans must be reminded that they are an integral part of the implementation process and that nothing should be done without their consent or their participation. They can participate fully by organising themselves effectively, either by joining political parties or the myriad of civil society organisations devoted to holding the government's feet to the fire over matters of national importance. They can also do so by ensuring that all faith-based organisations take a more than casual look at the role they can play in keeping members of the political class honest. It is time we started questioning he wisdom of permitting politicians to make political speeches during funerals or their almost constant invitations to participate in religious ceremonies of whatever kind. Not a Sunday goes by without stories of politicians being invited, or, more commonly, inviting themselves to church services and using the captive audience for their own political ends. If the church, and any other faith-based organisation, is going to permit itself to be used for political ends, then it is high time it defined what its priorities were and crafted a strategy to achieve them. It can no longer be a passive spectator to the acts being committed in its name by a class that has forever disappointed its own people.

There is no single guarantor of the success or failure of the implementation process save the people of Kenya. One way or the other we must be roused from the political stupor we find ourselves in and take back the public sphere that we have abandoned to the ruling classes. Towards this end, the topic of reform must be discussed with our active participation. If our education system is to be reformed, reform must reflect our priorities. If political parties are to be reformed, the reform must focus on empowering us to be better citizens and to make better choices of representative leaders. If we allow the reforms to focus solely on the needs of politicians, we will have ourselves to blame for the mess things will become. Positive change can only come by way of our consent and participation. It is our only option.

Wednesday, July 13, 2011

The CIC may be right, but they are wrong!

When Francis Muthaura, the head of the Civil Service, picked a fight with the Commission for the Implementation of the Constitution over their terms and conditions of service, a debate should have been opened about the unfair system that is in place where an elite in the public service is offered terms that compare rather well with those of top-tier managers in the private sector while the vast majority of public officers suffer poor terms and conditions. Dr Elizabeth Muli, the Vice-Chairman of the Commission is undoubtedly right when she questions Ambassador Muthaura's motives or the constitutional basis for his directive, but she misses the point, as Members of Parliament have, regarding the need for all their pay and allowances to be taxed.

Prof Richard Leakey started the trend with his Dream Team in the late 1990s when he poached experienced managers from private practice and offered them similar or better terms to what they had been receiving and then unleashed them on the public service, jumping over more experienced officers who enjoyed less impressive terms. This set the ground for the government to regularly offer private sector managers similar fat terms at the expense of experienced and senior members of the public service. This may partly explain why some of them have engaged in acts of massive corruption over the past ten years, leading to mega-scandals such as Anglo-Leasing, Triton and the FPE scam. Many forget that these financial crimes could not have been committed without the active participation senior pubic officers; they are the only ones who would be able to identify the budget lines and the civil service guidelines for spiriting away the billions of shillings that have been stolen.

The establishment of the Salaries and Remuneration Commission cannot come soon enough. If, as advertised, it manages to harmonise the salaries and allowances of all public officers, and do away with the two-tier system, it will have wide-ranging ramifications on the administration of the country. Serving your government should not be an opportunity for enrichment or rent-seeking; it should be done out of a sense of duty. If you want to get rich, try your luck in the private sector. However, the terms and conditions of civil servants should be adequate to guarantee the essentials and pay for one or two luxuries. It is a sad commentary that some civil servants can afford to pay off their mortgages withing three years of employment while others usually serve for decades before they can say they are debt-free. It is time to abolish this unfair and unjust system, otherwise all the reforms in the world will not make the public service a better servant of the citizens of Kenya.

Ruto will not save higher education

It seems as if I am focusing all my displeased attention on Prof William Ochieng' of Maseno University these days, but his article in today's Daily Nation could not go unanswered (Bring Ruto back so he can save universities). He insists on quoting a letter William Ruto, the suspended Minister for Higher Education, Science and Technology had written to the President regarding the stalled programme of work in the Ministry since his suspension, and using this line of attack to bolster his demand for reinstatement to the Cabinet and restoration to his old job as Minister. The stalled programme includes the failure to push through government the Universities Bill, the Science and Innovation Bill, or the failure to restructure the Joint Admissions Board or the creation of an Open University. Prof Ochieng' opines that these, and other actions he goes on to mention later in his article, if carried out by Mr Ruto will 'save' higher education in Kenya.

My displeasure arises from the fact that Prof Ochieng' fails to take into account the dysfunctional nature of public university administration that no amount of restructuring and tinkering with will correct as he continues to completely ignore the odious effect politicians' political battles have had on higher education in Kenya since prof George Saitoti was nominated to Parliament by President Moi in the early 1980s. But it is in completely ignoring the work that has been done by academicians over the past twenty years, and the policies crafted by civil servants, whom he accuses of cutting out the universities' administrations when crafting those policies, that had they been implemented even halfheartedly would have had profound impacts on the manner in which our young are educated and prepared for a life outside their parents' or teachers' supervision.

The reforms of higher education in Kenya will not be achieved if all hope is pinned on the admittedly unreliable shoulders of a politician; it will only be achieved if all stakeholders take the correct steps to ensure that the proper priorities are set, and that the correct strategies are pursued to address them. The traditional way of managing public resources has proved a failure. The solution is not to throw money at the problem; that will only be a recipe for rent-seeking by the avaricious among us. The solution lies in correctly diagnosing the problems that bedevil our higher education sector and reforming those areas that can be reformed and amputating those that cannot. For example, every Vice-Chancellor imagines that one day he will forge a successful partnership with the private sector to supplement his straitened budget. This is a commendable goal but with the wrong objective in mind. If, as prof Ochieng' claims, universities, especially public universities, are at the cutting edge of research and innovation, then the partnership with the private sector should not be based on the objective of plugging holes in university budgets, but of creating sustainable and reliable avenues of revenue based on an IPR regime that benefits both the universities and the private sector. In the alternative, if money is going to be thrown at the problem of shrinking budgets, it should be towards the restructuring of public university administration, with a view to ensuring that the universities have the capacity to pursue a two-pronged strategy: provision of quality services to an expanding student body and the exploitation of resources available to the university, such as its research, for the creation of sustainable additional revenue streams.

Merely calling for the reinstatement of a politician in order to rescue a situation that requires a concerted effort from all partners papers over the uncomfortable fact that even senior dons, having suffered years of Moi-Era neglect and mistreatment, and wrong-headed Kibaki-Era policies focussed in other priority areas, are now scraping the bottom of the barrel when it comes to viable ideas for the revival of higher education to heights not seen since its glory days of the '60s and '70s. That is how low we have sunk!

The Black Eyed Peas - Where Is The Love?

Tuesday, July 12, 2011

It's early days yet about reforming the administration of justice

The Chief Justice, ever since he was sworn in, is constantly being accosted to make statements regarding this or the other and then to constantly clarify his statements. As the head of the Judiciary, and the President of the Supreme Court, Dr Mutunga is placed in the unenviable position of giving the Judiciary a makeover and to manage the change from a closed-shop style of management to a more open and transparent style, raising people's faith in the administration of justice apparatus of Kenya. He faces a daunting task and the impatient among us are already calling into doubt his ability to effect the change that is demanded.

While a public communications strategy is now part and parcel of any public institution, Dr Mutunga must be careful that he does not endanger the credibility of his office by making statements that need constant rehabilitation in the press. The changes that are coming to the Judiciary require him to demonstrate the qualities that make all good judges great: deliberation and a careful choice of words. As the Chairman of the Judicial Service Commission, Dr Mutunga will be at the head of the process of appointing new judges of the High Court as well as oversee the vetting of all judges and magistrates. In the process, Dr Mutunga will be responsible for a process that may see more judges and magistrates resign rather than face a public inquisition regarding their continued service in any branch of the Judiciary. He must be careful to ensure that not only fairness prevails but that the credibility of the surviving officers is no longer in doubt and that all those who serve in the Judiciary play their roles diligently and honestly.

Dr Mutunga and Ms Baraza have barely began the arduous task of leading the Judiciary. While no one doubts that he has the capacity to learn speedily of what is required of him, he and his deputy must ensure that their learning curve is not distorted by the practices of the past. The cronyism that characterised judicial appointments and transfers must be a thing of the past and only those who merit such trust should be allowed to administer justice in our courts. If he can navigate the appointments process and oversee the coming vetting credibly, Dr Mutunga will have done more than enough to set the Judiciary on the right path. 

However, to expect the changes in the Judiciary to be carried out by the CJ and DCJ on their own is to miss the role of all stakeholders by a mile. Obviously, the Bar must play its part in the process now that two of its own sit in the JSC. But it is the wider citizenry that must answer Ahmednasir's call and provide all information at its disposal to the JSC in order to determine the future of the Judiciary. If we act as we have in the past, sitting on the fence and whingeing constantly, we will have no one to blame when it all goes pear-shaped.

Lessons from America's foreign adventures

When the Twin Towers fell in 2001, brought down by al Qaeda operatives, the relationship between the United States and the rest of the world changed. George W Bush declared a Global War on Terror, invaded Afghanistan toppling the Mullah Omar-led Taliban regime, and soon after invaded Iraq in search of weapons of mass destruction after Saddam Hussein refused to permit further inspections by UN team. But it is in America's prosecution of the war on terror that the United States came to be closely associated, especially in its secret programme of renditions and the incarceration of enemy combatants on the Island of Cuba at a US military facility, Guantanamo Bay, where the international rules of war were given short shrift and America was brought low by allegations of torture and victor's justice. 

Some Kenyan commentators, including prominent lawyers and human rights activists have decried the US way of doing things, calling on the American government to change tack and adopt a more acceptable tenor in its prosecution of its wars against it enemies. Some have even gone so far as to call for the arrest and prosecution of American leaders, including President Bush and his Secretary of Defense, Donald Rumsfeld, for war crimes and crimes against humanity. In Kenya, where many are proud that Barack Obama, a democrat, is the president of the USA because his father was a Kenyan, the calls for the prosecution of George W Bush and his officials, who were Republicans, have only grown louder as Kenyans, some of whom are Muslims, have been caught in the US's net and have been shipped off to Guantanamo Bay to answer to charges of being material supporters or active members of al Qaeda.

Kenya is no stranger to terrorism attacks: the attack on US embassies in Kenya and Tanzania left hundreds of Kenyans dead and maimed for life; the attack by al Qaeda on an Israeli-owned beach hotel in Mombasa left more Kenyans dead too. Al Qaeda-affiliated groups in war-torn Somalia have brought their war on Kenyan territory, with dozens of Kenyans either killed or maimed in along its Northern border with that benighted country. It is for this reason that the glee with which Kenyans greeted the imminent prosecution of the Ocampo Six at the International Criminal Court at The Hague seems paradoxical, not so much that Kenyans support an international tribunal to try those suspected of bearing the greatest responsibility for the mayhem that was visited on this country in late 2007 and early 2008, but because of the things Kenya may have to do in order to assure its security and safety in the future. 

American lawmakers and presidents have recognised this fact for generations and it is why they have never sanctioned the signing or ratification of treaties and conventions that would place American leaders, including military ones, under the jurisdiction of international courts or tribunals. Kenya may not have had a choice when it signed and ratified the Rome Statute, but the fact that it did makes it doubly difficult for it to engage in acts of aggression in order to assure its survival. This has been complicated by the fact that the Constitution, recently ratified by a majority of Kenyans, now makes international law, including international humanitarian law and the laws of war, part of Kenya's law.

The on-going Somali civil war and the Ugandan adventures in Lake Victoria make it difficult for Kenya to justify a war of aggression to sort out its border disputes once and for all or to pacify the restive clans in Somalia in the name of national peace and security. No Kenyan president will engage in a war of aggression knowing that to do so would be to invite the attention of the world and the use of international law through treaties it has signed, and international law it has incorporated in its Constitution, and the prosecution of those who knowingly and willingly led Kenya down that path. This attention may include the occupation of Kenyan territory by foreign powers and the complete negation of Kenyan sovereignty in the name of international peace and security. 

Kenya's neighbours are constantly testing its military resolve and with the exception of Tanzania, have made tentative military forays onto Kenyan soil. Uganda's occupation of Migingo and Ugingo Islands in Lake Victoria is only the latest of a series of military acts of aggression since at least the mid-1970s. Ethiopia has allowed its tribesmen in the south to raid Kenyan villages in search of livestock, food and water. Toposa tribesmen have invaded parts of Pokot from territory controlled by the government of Salva Kiir, a former SPLA commander, in South Sudan, Africa's newest nation-state. Sooner or later, these incidents will have to be stopped. If diplomatic solutions cannot be found, Kenya will have no option but to launch pre-emptive military strikes in foreign territory to ensure its safety and security. Once that happens, it will open itself to the risk of international intervention, and intervention all but guaranteed by its ratification of treaties such as the Rome statute and the incorporation of international law in Kenyan law via the Constitution. Only then will Kenyans realise that what Bill Clinton, George Bush and Barack Obama have done was to protect American interests and that Kenya could also make the same argument.

It is time we critically assessed our foreign policy in order to draw the proper lessons from the American way of preserving its vital interests rather than viscerally joining in a chorus of acrimony against the likes of American presidents. The USA will never give up jurisdiction over its presidents or military commanders. The least we could do is demonstrate the same steely resolve and deny the ICC an opportunity to try the Ocampo Six. If they are to be punished, it is in our national strategic interest to try them here. If they are tried and convicted by the ICC, Kenya will cease to exist as a sovereign state.

Friday, July 08, 2011

We are stakeholders in government

The on-going suffering of Kenyans due to the vagaries of drought and famine in the northern parts of the country, and in some parts of the coastal belt and Ukambani, have once more led to calls for the government to do something by members of the Fourth Estate and the Third Sector, with faith-based organisations, among others, taking the lead interventions to avert what everyone, including the executive branch of the Government of Kenya, as a national disaster. Those calling for a more muscular intervention by Mwai Kibaki's government are also stating that they are willing to partner with the government, in their capacity as stakeholders, to deliver aid to the drought and famine-stricken parts of the country.

This is language that has been promoted ever since the Third Sector came into its own, but more so since the 1992 Earth Summit held in Rio De Janeiro, Brazil by the United Nations. The 2,400 NGOs represented at the Earth Summit developed a whole new vocabulary of their own and, consequently, changed the manner in which government, all three branches of it, was perceived by the ordinary citizen. The use of terms like 'stakeholder' and 'partner' came to dominate the discourse regarding the proper role of government, and in Kenya, where the government has abysmally failed on many fronts, this language evoked a powerful image among the citizens, one in which they no longer had to suffer the failures of the government but could contribute meaningfully to solving many of the problems that made their day-to-day lives a great challenge.

The risk inherent in this kind of language is that citizens begin to see their government as an abstract, something that can be wished away at best, or merely ignored, in the hope that it will stop its meddling in their lives. As a result, it is now fashionable to describe the government as a 'stakeholder' in development when it should be that people are the stakeholders in their government. The view of the government as an abstract must be destroyed; the elected branch of the government, that is the legislature, has traditionally provided members of the executive branch, who in turn have appointed the public, and other, officers responsible for carrying out the mandate of the government. In a roundabout way, the mandate of the government is the mandate of the people. Therefore, there is no way that the government could be considered a stakeholder in the sense that the Third Sector is trying to portray it as. The idea that the government has a stake in what is its mandate is wrong. It is the citizenry who have a stake in the government, and hence who are in need of assurances that where their government has failed in its duty to them, it will find alternative solutions or strategies. Unless we change this perception, then it matters not the reforms being implemented in the government, for they may not enjoy legitimacy.

The government only exists at the sufferance of its people. Without its people, the government ceases to exist or enjoy legitimacy. This is the reason why absolute monarchies and dictatorships are illegitimate; their subjects are not stakeholders in their governments and hence do not, in any way, shape the agenda of the government. It is for this reason that the reforms in Kenya are critical; Kenyans must also re-involve themselves in the affairs of their government, participating fully in the manner that it is constituted, how it conducts itself and how it prioritises its affairs. Had we maintained a proper relationship with our government the speed and depth to which its officers fell into corrupt ways would perhaps been reduced and effectively managed, and Kenyans would not be begging for food and water every time the rains failed.

Thursday, July 07, 2011

Domestic workers' rights are just as important as their employers'

The International Labour Organisation recently adopted a historic set of global standards aimed at improving the working conditions of tens of millions of domestic workers worldwide. These are contained in the Convention on Domestic Workers. The new ILO standards set out that domestic workers around the world who care for families and households, must have the same basic labour rights as those available to other workers: reasonable hours of work, weekly rest of at least 24 consecutive hours, a limit on in-kind payment, clear information on terms and conditions of employment, as well as respect for fundamental principles and rights at work including freedom of association and the right to collective bargaining.

The Secretary-General of the Central Organisation of Trade Unions, Francis Atwoli, upon is return from the ILO session that adopted the Convention, declared that COTU would take the lead in ensuring that domestic workers in Kenya were properly protected under the terms of the Convention, and that COTU would be leading the charge to ensure that the Convention was domesticated and implemented fully in Kenya. His pronouncements, however, have set the cat among the pigeons; many employers of domestic workers claim that one of Mr Atwoli's demand, to wit, that they be paid a minimum wage of KES 7,000 is impractical and that they will be unable to afford the services of domestic workers if it is implemented and enforced. Some have gone so far as to claim that since they earn less than the KES 7,000 Mr Atwoli is claiming on behalf of domestic workers, it would be impossible for them to spend their entire incomes on domestic help and that an alternative solution, including in-kind payments, should be considered.

It is instructive that the debate in Kenya has revolved around the question of pay without considering the sometimes inhumane conditions under which domestic workers work. Every year, thousands upon thousands of domestic workers, many of them under-age, are sexually assaulted and otherwise abused by their employers, without viable avenues to file complaints or receive care or support. It is also lost on those claiming that they cannot afford a minimum wage for domestic workers that by keeping their wages artificially low, the domestic workers are in effect subsidising their employers' cost of living, ensuring that they can afford luxuries that are unattainable for the domestic workers. Indeed, if a person cannot afford the services of a domestic worker at the measly KES 7,000 that COTU recommends, they should not have domestic workers serving them!

For decades, Kenyan domestic workers have suffered at the hands of their employers. In addition to the long working hours and poor pay, many are frequently assaulted by their employers, denied time off, prevented from seeing or speaking to their families, denied medical care when unwell, and for the majority of female domestic workers, whether children or adult, coerced into abusive sexual relationships with their employers. The adoption of this Convention by the ILO marks a watershed moment, especially in Kenya, and it should be domesticated and implemented in the shortest time possible. For Kenyans with the capacity to engage the services of a domestic worker, it is time that they realised that these services are not a license to do with them as they please, but should be treated with the same weight as other labour relationships. While we are reforming the government of Kenya, and its institutions, we should also reform the manner in which our domestic arrangements are managed or organsied.

Wednesday, July 06, 2011

Playing with fire

What is the place of the Commission for the Implementation of the Constitution in the correct interpretation of various articles in the Constitution? Charles Nyachae, the Chairman of the Commission, has on various occasions taken to task various state agencies for failing to act within the spirit and letter of the Constitution, accusing them of delaying the process or acting as impediments. He has been particularly vocal about the manner in which the State Law Office has conducted itself during this transitional period, accusing the Attorney-General of being a major obstacle to the implementation of the Constitution.

According to the Sixth Schedule, the functions of the Commission are:

1. Monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the constitution;
2. Co-ordinate with the Attorney-General and the Kenya Law Reform Commission in preparing, for tabling in Parliament, the legislation required for the implementation of the Constitution;
3. Report regularly to the Constitutional Implementation Oversight Committee on the progress in the implementation of the Constitution and any impediments to its implementation; and
4. Work with each constitutional commission to ensure that the letter and the spirit of the Constitution is respected.

Even a liberal interpretation of these provisions does not lead to the interpretation that the CIC is mandated to interpret the Constitution. That is the preserve of the Judiciary, particularly the High Court (Art 165.3), and it is not reserved to the CIC. In its interpretation of various clauses of the Constitution, the CIC is attempting to usurp the Constitutionally assigned powers of the High Court and this is giving rise to confusion on the process of implementing the Constitution.

In the past few weeks, the CIC has given its own interpretation on the question whether Members of Parliament and other constitution office-holders should pay income tax on all their earnings, on the correct date of the next general elections, on the proper manner in which the budget should passed, and on whether MPs may or may not hold office in political parties. These are questions that can only be properly answered by the High Court upon application by any Kenyan or by any of the constitutional commissions, including the CIC. The CIC's position is nothing more than an opinion and not the definitive interpretation of the relevant clauses of the Constitution. It is important that this distinction is impressed upon the members of the CIC, particularly the chairman, so that it can properly participate in the process of the implementation of the Constitution.

Therefore, the CIC cannot purport to draft legislation for the implementation of the Constitution; it is not a law-making body. That remains the preserve of Parliament. Draft Bills are usually prepared by bodies that shall be responsible for their implementation. For instance, government ministries, departments and agencies usually draft Bills for consideration by the Attorney-General, or more conveniently, they instruct the A-G to draft these Bills and submit the same to the National Assembly for debate. The CIC is only concerned with whether these Bills reflect the spirit and letter of the Constitution and makes an opinion for or against the Bills. If the CIC is unable to make this distinction, this is a situation that can only be resolved by the High Court, or if its decision is appealed against, by the Supreme Court. It is time that someone told Mr Nyachae and his fellow commissioners that they are playing with fire.

Tuesday, July 05, 2011

Let us raise the level of public debate

Prof William Ochieng', who teaches history at Maseno University, is making certain demands of the Judiciary that are idealistic but totally impractical (What we expect from the new Judiciary, Daily Nation, Tuesday, July 5 2011). While some are easier dealt with, at least in theory (attire), others demand a careful consideration of the place of judges and lawyers in the administration of justice in Kenya and whether a complete overhaul of the system will benefit Kenyans or cause them untold suffering.

Some of Prof Ochieng's points are easily addressed. He claims that an examination of recent public appointments, especially to commissions and other consultative or appointive bodies, appear dominated by the legal profession, that lawyers and women are "taking all the good jobs in the reformed Kenya". When it comes to gender equity in public appointments not even Prof Ochieng' should begrudge women their moment in the sun, especially if the women being appointed are qualified and experienced. Under Kenya's three presidents, the place of women has resolutely remained in the kitchen, or as nurses, nursery school teachers or supermarket checkout cashiers. 

He, and many men, refuse to acknowledge that women also have the capacity to contribute meaningfully in national policy-making or implementation, and that the continued dominance of structures of governance by men is no longer tenable in a country where women outnumber men on an absolute basis. As to whether lawyers are also taking the lion's share of new public appointments, this is a matter that the good folks of the NCIC can tell us about. But, when it comes to public offices dealing with matters of law or the constitution or constitutional interpretation, or indeed the Judiciary, to expect that lawyers would not be considered at all for any position on these bodies would be to betray an animus against lawyers that is unfair and unwarranted.

In fact, it is this naked animosity against lawyers that seems to permeate Prof Ochieng's article. Kenyans are now persuaded, sans proof, that lawyers are responsible for many of the ills that bedevil the nation, and lawyers-turned-politicians seem to act as the lightning rod against the legal profession, especially when they disgrace themselves in Parliament or in government. Therefore, calls for institutions such as the Judiciary to admit non-lawyers into their ranks resonate with the public completely forgetting that for such a scenario to come true, we will have to abandon a legal tradition, albeit a foreign one, that has prevailed in Kenya for well nigh on 110 years. 

Kenyans forget that in the absence of a credible system of administering justice, where law enforcement depends on the size of your political constituency (or wallet), the continuing illiteracy and semi-literacy of a large proportion of the population, and many other ills, it falls upon the legal profession to offer guidance and advice on a raft of challenges, both political and not. Contrary to popular belief, lawyers are generally honest, and demonstrate high morality and integrity, act professionally and maintain the highest standards of ethics. If they did not, all lawyers would be rich, fat and keeping at least two mistresses for their own pleasures.

It is this lazy approach to public discourse that is hindering the acceleration of the pace of reforms in this country. We must elevate the level of public debate in order to better generate ideas for the improvement of the lot of the majority of Kenyans. To do this, we must also ensure that social institutions such as schools and churches are revived, but more so, public universities. A liberal university education is a requisite for the job-hunt6ing youth of Kenya, where they will be challenged to expand the boundaries of social and political convention, to challenge accepted orthodoxies, and to experiment with the wisdom of rebellion. It is the only way that the professorships and doctorates manufactured every year can benefit this country. Only the will the likes of Prof Ochieng' find sound reasons for raining opprobrium on the legal profession instead of rehashing urban legends long discredited even by bar-stool intellectuals.

Monday, July 04, 2011

Enough. It is time to take back our dignity and pride.

What is it about fat, old geezers and their pursuit of pretty young things? In the recent few weeks, Kenyans have been horrified by tales of betrayal where political types entice barely legal college types with money, booze, sex and promises of adventure that have ended in tragedy. Now, a story doing the rounds about a Cabinet Minister abandoning an upcoming female musician in Zanzibar raises uncomfortable questions about the morality and integrity of our elected leaders and whether or not Kenyans, and Nairobians in particular, have become inured to their antics.

2012 could not come soon enough. It is time that Kenyans demonstrated that their previous awe-struck amazement at the political and financial prowess of our leaders are no longer the criteria that we will use to choose the next batch of MPs, Senators or President. The constitutionally changed political landscape offers us an opportunity to redraw the map and remind all potential leaders that it is no longer business as usual. It should not be OK that a young woman, in the prime of her life, is killed and nothing is done to catch and punish her killers or that a man will take a young woman out to Zanzibar and abandon her to her own devices without a means to get home.

For far too long we have suffered our political class, and 2012 is an opportunity to take back all that we have lost: our dignity and pride. Chapter 6 of the Constitution lays down what should be obvious. Integrity and morality should not be legislated; they should be matters that come naturally to any person who wishes to hold a position of authority in any country. Kenyans cannot keep suffering thieves, philanderers and liars in positions of power. Kenyans must be dignified and proud enough to admit that their favourite sons and daughters have let them down and that it is time we got ourselves a new leadership cadre.

It is heartening that many Kenyans are debating these matters in public after a very long time of silence. This is what reform is all about. Without public debate or discourse, however disagreeable, it is not possible to create a new dispensation. Kenyans demonstrated maturity and wisdom when they overwhelmingly endorsed Dr Mutunga and Ms Barasa as CJ and DCJ. They must do the same when they go to the polls in 2012. Just because we have done things a certain way for forty-seven years doesn't mean that we must continuing doing so. We may love, or appear to love, our current crop of politicians, but if they have done anything to bring shame upon themselves, their families, the government and the country, they must be given the steel toe and sent packing. I don't want to explain to my foreign interlocutors why so-and-so is still Minister when he displays behaviour akin to that of a five-year old with a machine-gun. I shouldn't have to. Neither should you!

G7 delusions of grandeur

The Group of Seven (G7) is caught in a time-warp. They have simply refused to accept the fact that the manner in which the next President of the Republic of Kenya will be elected has very little to do with the vote-bank politics of the past 47 years. In their desire to prevent Raila Odinga from ascending to the highest seat in Kenya, they betray the fact that they neither have fresh ideas nor a credible plan for ensuring that one of their own becomes the president. If all they have going for them is a desire to prevent a Raila presidency, then they have lost the game before it has even began.

While President Moi may have been following in President Kenyatta's footsteps, he perfected the art of marshalling ethnic blocs, especially after the repeal of Section 2A of the former Constitution. President Moi became very adept at using the Vice-Presidency as a carrot for keeping his allies in line. President Kibaki did the same by appointing, first Kijana Wamalwa, and later, Moody Awori, as his Vice-Presidents, ensuring that the vote-rich Western Province was kept in line during his presidency. Even after it all went pear-shaped after the 2005 Referendum, he did not re-think this tactic and he confirmed his lack of imagination when he appointed Kalonzo Musyoka as his V-P after the debacle that was the 2007 elections. The G7 hopes to use these kinds of tactics in their quest to keep Raila Odinga out of Harambee House in 2012. The spectacular lack of imagination is one reason why they should not be considered serious contenders for the presidency come 2012.

The numbers required for 2012 are very daunting: 50+1% of all votes cast, and at least 25% of votes cast in at least 24 of the 47 counties. The G7 calculates that it can unite to front one candidate, or in the alternative, 7 candidates with the view of denying Raila Odinga the 50+1% he needs to win outright and therefore push him into a run-off. They have not considered the possibility that neither of them commands the numbers to ensure that Mr Odinga does not win in their political back-yards. Only Mr Ruto and Mr Kenyatta can claim to have a modicum of power when it comes to the North Rift and Central Kenya respectively. Mr Musyoka proved to be a damp squib when it come to the command of Ukambani, which may help explain why he is slowly being sidelined in the G7 by his erstwhile allies. It may be that the anti-Raila glue is not strong enough to maintain the unity of the G7 before the next elections and this may be why it may yet disintegrate. Other factors that may contribute to the disintegration of the alliance include the fact that if all 7 do decide to stand for the presidency, they shall have to choose running mates from outside the alliance, perhaps from their satellites of acolytes. Further, if they cannot use the any of the 7 does actually manage to pip Raila Odinga to the post, they cannot use the Office of the President to reward the losers; that particular pork-barrel has been abolished by the Constitution. Nor can they count on enjoying a majority in Parliament which may yet hamper the effectiveness of their presidencies. Finally, the changing demographics of Kenya portend disaster for any person who thinks that ethnic communities are going to vote en bloc for any particular candidate simply because a politician, even a presidential contender, tells them to.

There is nothing logical to explain why they oppose a Raila presidency so viscerally. Messrs Musyoka, Ruto and Kenyatta have made their fight with the Prime Minister personal for no logical reason. If they were to take a page out of Martha Karua's playbook, or that of Rev Mutava Musyimi, they may yet make a dent in Mr Odinga's apparently unassailable national popularity. They must redefine the reasons why they want to be president other than they they do not want Mr Odinga to win. Kenyans want the next presidential poll to be based on ideas, ideology and national good. Simply painting this contest as Raila -v- The Rest is a recipe for failure. If they cannot see this, Kenyans should ignore their campaigns and go with those who at least espouse a modicum of a national plan for the country.

Friday, July 01, 2011

Fare thee well

The tears that are being shed for Mercy Chepksogei Keino, several weeks after her murder (for it was murder, right?) and burial back home in Nandi, betray our impotence in the face of an unrelenting wave of violent crime against ordinary members of Kenyan society. If the media, and what they report, are to be believed, she was not the daughter of a famous or infamous politician, godman, godwoman, business tycoon or musician. Nor was she a familiar face on our TV screens for one exploit or another. Other than getting it right in the classroom, Ms Keino seems to have led a blameless life. That it was cut short is tragic. That it was cut sort in such a brutal manner is calamitous. That no one in authority cares to find out how and why she was killed is a biblical disaster.

Nairobi morphed from a Green City into a Concrete Jungle some time in the early 1990s. It ceased to be a city that welcomed one and all and, instead, it became more evidently polarised between the fatcats in the still-leafy suburbs and the huddled masses in their selections of formal, semi-formal and informal settlements. In the late '70s and '80s, you had your Muthaiga, Kitisuru, Lavington and Red Hill; then your Kileleshwa, Ngong Road and Karen; then Buru Buru, Ngei and Ngumo; then Jericho, Jerusalem, Makadara and Shauri Moyo; and then every one else in the unseen Nairobi: Korogocho, Mathare Valley and Kibera. Each of the residents kept to his own kind, only mingling for the first time in national and provincial Secondary Schools and, where possible, at University. 

Parents were still, to large extent, involved in the lives of their sons and daughters, ensuring that their offspring were imbibing the correct spirit of youth, keeping their noses to the grindstone, and building the foundations for successful futures. The only blot in an otherwise tranquil decade was the increasingly authoritarian KANU dictatorship, characterised by disappearances, unlawful detentions, exiles, and GSU-University Student clashes that entered the annals of infamy. It was the latter that has proven to have had enduring negative effects on the University-going youth of Kenya.

As the calls for a freer Kenya increased volume, and agitation gathered momentum, politicians latched onto the idea of exploiting the youth for their nefarious ends. Thus were born outfits of which the Youth for KANU '92 was the most famous. Once their utility as campaign cannon fodder was exhausted, many young men and women, but particularly women, became playthings for the politicians. They were used, abused and abandoned at will and the HIV/AIDS infection rate among the 19-25 year age-group soared, despite the HIV/AIDS campaign by the government and the abstinence campaign by faith-based organisations such as the catholic and Anglican churches in Kenya.

Events, such as the 'party' Ms Keino attended on that fateful night, have become commonplace and it is normal to witness throngs of college-going men and women parading themselves at parties and other get-togethers attended or organised by political figures (looking to recreate the flower of their youth or indulge in appetites they are ashamed to admit having) where alcohol flows as down the Nile and alcohol-fueled disagreements and belligerent confrontations are commonplace. Ms Keino's death is a reminder of the betrayals the youth have suffered at the hands of politicians and the success that comes by keeping a respectful distance from married, fat men who come bearing gifts (and wine).

Some bosses lead, some bosses blame

Bosses make great CX a central part of strategy and mission. Bosses set standards at the top of organizations. Bosses recruit, train, and de...