PLO Lumumba has only himself to blame

If Cecily Mbarire is right, PLO Lumumba launched a preemptive strike to prevent her husband from filing suit in the High Court questioning his competence as Director of the Kenya Anti-corruption Commission, KACC. Dr Lumumba went on the air waves to denounce what he described as an attempted bribe by David Apaa, Ms Mbarire's husband. He explained that he had been compelled to go public because someone, it is still unknown whether in the KACC or outside, leaked information regarding the KACC's sting operation against Mr Apaa. 

He stated that KACC had been conducting inquiries into dubious tenders awarded by the long troubled Ministry of Water and Irrigation, and that Mr Apaa, or a company controlled by him, was the subject of inquiry. As part of the sting operation, Dr Lumumba used his foundation to solicit donations from Mr Apaa. Or is it the other way round? that Mr Apaa suggested to the Director of KACC that he could slip him KES 100,000 through his foundation in order for KACC to drop the investigation against Mr Apaa?

Maina Kiai, writing in today's Saturday Nation, is asking some of the questions that the members of the Fourth Estate and indeed, Members of Parliament, should be asking (Public servants should not be allowed to own businesses or run foundations). As the Apaa case demonstrates, it is possible for the public servants so engaged to be compromised or, as is more likely, to use their businesses or foundations to solicit bribes from members of the public or indeed from persons wishing to do business with their departments.

Dr Lumumba was all vim and vigour when he took over from the hapless Justice Aaron Ringera, promising results. He has constantly been in the news, informing the public of his intention to bring down the 'big fish'. But, as Peter Mwaura satirically notes in today's Fair Play, he seems to have only nabbed the small fish: police men and women engaged in the act of soliciting bribes (How PLO briefed his operations team after the abortive Runyenjes sting, Saturday Nation, August 27, 2011). His behavior too, of late, has been quite odd. The Minister for Lands, James Orengo, was surely right in questioning the KACC Director's motives when he joined with members of the Law Society of Kenya in a demonstration organised against his ministry. It seems that Dr Lumumba has forgotten that he is a member of the Executive Branch and that it is unseemly of him to join with a civil society organisation to denounce the self-same government he serves in.

Parliament shall soon consider the creation of the Anti-corruption and Ethics Commission and at this moment it would be wise for them to consider whether Dr Lumumba's stay at the helm of that body will be a boon in the fight against corruption or a bane. When Dr Lumumba contested the Kamukunji seat in 2007, he proved to be a poor political campaigner or organiser, shipping in Tanzanian politicians to endorse his candidature. He was roundly defeated. This should have been fair warning for the men and women who fronted him to replace Ringera, J. When Parliament considers whether or not to retain him as the Director of the new Commission, they must take a hard look over his accomplishments as Director of KACC. If they are satisfied with his performance, he should be retained. However, I fear that they will look at his actions over the past six months and look for new blood elsewhere. The Apaa case may be the straw that finally broke the camel's back.

Miguna Miguna's sacking is the first step to Raila Odinga's 2012 campaign strategy

This time round Prof Makau Mutua is surely right: Miguna Miguna's departure as Prime Minister Odinga's advisor on coalition affairs was a move that had been long delayed (Why Miguna Miguna's sacking was long coming, Sunday Nation, August 21, 2011). The reasons Prof Mutua advances are surely right too, but the most cogent is the fact that Miguna Miguna attempted to be greater than his principal. He should have taken a leaf out of the books of Prof Kivutha Kibwana, President Kibaki's advisor on constitutional affairs, and Caroli Omondi, Prime Minister Odinga's go-to man when there is trouble in the Prime Minister's Office. Many will quibble with the manner Mohammed Isahakia sacked Miguna Miguna, but political operatives will appreciate the reality of the situation: the consiglieri cannot overshadow the godfather.

Prof Mutua's advise for Miguna Miguna is also sound: he should go quietly lest his loud departure be seen as a direct challenge against the Prime Minister. If his intention is to seek an elective post after his service to the PM, or if it is his intention to inherit Mr Odinga's leadership role among the Luo of Kenya, he should swallow his pride and depart the field of battle. If it is true that he has offended the nabobs of the Orange Democratic Movement Party of Kenya, his time outside the PM's Office should allow him to begin the long and arduous process of mending fences and re-building the coalition that existed prior to his employment. If he fails to recalibrate his relationship with the PM and the ODM, especially its MPs, he runs the risk of being a footnote of history and a laughing stock of not only his peers, but also of the whole nation.

Mr Miguna epitomised what was wrong with the manner with which the Coalition Government operated. Outsiders continue to view it as a sack full of rabid cats, constantly fighting for whatever advantage they may find. In his dealings with his counterparts in PNU, he did not look out for the best interests of the ODM; rather, through his public statements, he sought to create the impression that the PNU was populated with idiots and that everyone who did not see things his way was a moron or had ulterior motives. It is this combative nature that poisonously pervaded relations between the coalition partners. Prime Minister Odinga must have realised that the poisoned air between the partners had something to do with the way the relationship between the two was cultivated by, among others, Miguna Miguna, and he is now seeking to mend fences as we enter the home stretch to the next general elections.

If this is so, he may be attempting to create an atmosphere of goodwill between him and the President with an eye to seeking the President's endorsement, or in the alternative, prevent the President from endorsing any other successor. If anyone can inherit President Moi's canny ability to foresee his political future it is the Prime Minister. His recent activities paint him as seeking the best political settlement for both him and his party as the country maneuvers itself into the 2012 election cycle. He has taken politically significant steps to clean house in ODM, to address the famine in parts of the nation and to shore up his political base among the residents of Mount Kenya. But in allowing his PS to remove Miguna Miguna from his inner circle, he has began the process of re-branding that may see him recapture some of the ground he has lost to Uhuru Kenyatta and William Ruto as well as place Kalonzo Musyoka in a difficult position regarding his relationship with the President. One way or the other, the PM is laying the ground for what will be a make or break campaign and regardless of new polling data from dubious sources, it is a matter of time before the tea-leaf reading class comes to the same conclusion: count Raila Odinga out at your peril!

The Political Parties Bill heralds our doom

When the Parliamentary Committee on the Implementation of the Constitution declared that it would take over the process of shepherding delayed Bills through the National Assembly despite the clear provisions of the Constitution allowing the extension of time by one year (Art 261.2), the stridency of the declaration by, among others, Millie Odhiambo-Mabona (ODM, Nominated) should have raised alarm bells among the commentariat. When one sees the manner in which a critical Bill has been mangled and bastardised by the National Assembly, one should be aware that the 2012 elections have superseded the national interest. An example, of course, is the Political Parties (Amendment) Bill, 2011, which has been sent to the 3rd Reading this week: the amendments made to the Bill to permit the formation of pre-election coalitions and alliances is a betrayal of the ideals, such as they were, that led to the adoption of the presidential system of government.

Under the presidential system, the President is no longer a member of the legislature while no member of the legislature shall serve in the executive branch. It is possible to have a divided government: one party dominates the legislature while another party heads the executive branch. In Parliamentary democracies, it is possible to form a coalition government as the leader of the largest party in the legislature gets to form the executive, or, as in the case of Britain, the leader of the largest coalition in parliament gets to form the executive. In the United States, in contrast, there is no record of a coalition government having ever been formed since the War of Independence. Abraham Lincoln famously had a Cabinet made up of a team of rivals, that is, members of his Cabinet were drawn from both parties, but it was never considered a coalition government; the legislative branch was still divided along party lines, and members of each party looked out for the interests of their party.

The members of the Gang of Seven who have sponsored this demon-seed of an amendment will come to regret it. If their intention is that they will balance the presidential ticket between two of their members, it is important that they remember that the Constitution creates a system of checks and balances between the three branches, each with their own unique and largely autonomous functions. The possibility of a divided government still looms large, especially in 2012. Opinion polls continue to show that no single presidential contender will garner the required 50+1% votes cast in the first round and there is a very large possibility that the 2012 presidential election will go to a second round of voting. More importantly, given the divided nature of our existing political parties, no party will dominate Parliament. Therefore, there exists the possibility that not only will the winning presidential ticket not do so in the first round, but that the party (or parties) of the President and Deputy President will not command a majority in Parliament, thereby negating the formation of the coalition in the first place. If the formation of the coalition is only meant as a cynical ploy to win power, rather than ensure stability, then it will fail at its objective.

The MPs who sponsored the amendment have not thought through on the implications of their decision. How they hope to benefit from the formation of a coalition remains a mystery; the Executive branch will not accommodate them or their allies while the President and Deputy President will have no say on the legislative agenda of the Legislative Branch. Given the character and nature of our politicians it is possible that the coalition partners will have a great falling out before their term has ended which will bring into crisis the governance of this nation. If the members of the two branches have a falling out, either can sabotage the operations of the other: Parliament may stymie the passage of Bills that are important to the Executive while the latter may veto any Bills it is unhappy with.

It seems that the further we go along the implementation of the Constitution, the clearer it becomes that our politicians should not be in the driving seat when it comes to implementation. This time we cannot claim that we were not informed or that we were not aware of the naked maneuvering of the political class; they have not been shy of their intentions and their motives. It is time we took back the process and ensured that only laws that benefit us get enacted.

None is without blemish

Prof Makau Mutua suggested in yesterday's Op-Ed piece in the Sunday Nation that Raila Odinga should kick out William Ruto and the 'ruto-lites' out of the Orange Democratic Movement Party of Kenya (Why Eldoret North MP should not dine with reformers). He describes Mr Ruto's meteoric rise in KANU and his ascension to the seats of power in both President Moi's and President Kibaki's governments, starting out as an Assistant Minister and being suspended by President Kibaki from the Ministry of Higher Education, Science and Technology. What Prof Mutua glosses over is the fact that when Mr Ruto was useful, Mr Odinga had no qualms striking a mutually beneficial arrangement with Mr Ruto, using him in his war-to-end-all-wars with KANU in the run up to the 2002 general elections, in his war with Mwai Kibaki to defeat the Wako Draft in 2005, and in mobilising the populous North Rift for the ODM in 2007.

The tone and timbre of Prof Makau's piece seems to be that Mr Odinga has a greater claim on the presidency than Mr Ruto, given Mr Ruto's unsavoury past and his continued association with a political culture that, in Prof Makau's estimation and sans proof, Kenyans want no truck with. No one will dispute the fact that President Moi and KANU were the two worst things that ever befell Kenya and Kenyans. The corruption and crime that thrived within that party and in its government beggar belief, even today. The fact that Moi's blue-eyed boys are free today is proof that Kenya and Kenyans are not yet ready to bring to book every man and woman who ever profitted unfairly or unlawfully from what amounted to the biggest criminal organisation in the Republic of Kenya, the KANU government. Prof Makau also glosses over the fact that Raila Odinga's initial rapprochement with Moi's KANU in early 2002, much as it has been painted as a strategic plan to destroy KANU, was a pragmatic realisation that Mr Odinga needed to tone down his anti-Moi rhetoric if he was to be taken seriously by the masses. This cynical use by Mr Odinga of the millions who support him has been one of the defining features of his political coming of age, especially after the 1997 general elections. It is a quality that he has cultivated since he entered Parliament, most recently demonstrated in the manner in which he declared solidarity with the suffering people of Northern Kenya, and the plight of the refugees flowing in from neighbouring strife-torn Somalia.

I think Prof Makau recognises this which is why even he is not pretending that ODM, as a party, is a democratic outfit, in which dissenting voices will be given an opportunity to be heard or the concept of "one man, one vote" is taken seriously. When Prof Makau urges Raila Odinga to "kick out" Mr Ruto and his allies from the party, he acknowledges that ODM has become the personal political vehicle of Mr Odinga and that rather than attempting to persuade Mr Ruto by any means as to the error of his position, Mr Oodinga should act as Niccolò Machiavelli would probably have advised by striking first, striking fast and striking hard. None of the parties to the sorry state of affairs in ODM is blameless; all have been tainted, one way or the other, through association to each other, to KANU, and most illuminatingly, with President Moi. Not even Mr Odinga can claim that his conscience is snow-white clean; the violence that occurred in 2007 and 2008, regardless of his mealy-mouthed claims of innocence, would not have occurred if he had not claimed he had been unfairly denied victory by Mwai Kibaki. His call for "mass action" was the spark that lit that particular tinder. Since that defeat, and after his self-serving alliance with Mwai Kibaki in the Grand Coalition Government, Mr Odinga has done everything he could to consolidate the reins of ODM in his very capable hands. What Prof Makau, and the rest of Kenya, should realise is that it is a fallacy that there are any 'democrats' in Kenya's body politic; none has proven that they will sacrifice the chance at the presidency for the people of Kenya; none has demonstrated the willingness to jettison a political alliance for the people of Kenya; and none has admitted that they were wrong to lie, cheat, steal and refuse to pay taxes. Not William Ruto and not the mighty Raila Odinga.

On Judicial Independence

The tone of the The Nairobi Law Monthly over the past three issues has been triumphalist, celebrating the just successes of the inauguration of Dr Mutunga and Ms Barasa as the President and Deputy President of the Supreme Court of Kenya. The Nairobi Law Monthly, especially its editor Ahmednasir Abdullahi, have predicted that the reform of the Judiciary will be among the signature successes of the Chief Justice, and that he will lead the fight in making the Judiciary more independent, especially now that the Committee of Experts ensured its financial independence by providing for the establishment of the Judiciary Fund as a charge on the Consolidated Fund. The impression that The Nairobi Law Monthly has created is that financial independence of the Judiciary is synonymous with judicial independence. Nothing could be more fallacious.

I shall concede only one part of this argument: without financial independence the Judiciary was unable to expand its services to the citizens of Kenya; it was unable to offer members and staff of the Judiciary competitive terms of service; the work environment in the Judiciary was frequently dangerous and unfriendly; it was unable to modernise; and the training and re-training of judicial officers was frequently left on the back-burner. However, the much maligned former Chief Justice Evan Johnson Gicheru managed to spend goodly amounts of money on the expansion of Judiciary facilities across the country, and in the refurbishment of the Income-Tax House, he bequeathed the New Milimani Law Courts on a legal fraternity that had called him names and declared him an utter disappointment. It does not seem to me that lack of money was the reason why the Judiciary was not being modernised or reformed; rather it was the manner in which successive Chief Justices prioritised the resources available to them.

Another pillar of the new-found enthusiasm for the Judiciary is the manner by which the Chief Justice, his Deputy, judges of the Supreme Court and the remaining members of the Judiciary were appointed, that is, through a competitive, public process where their interviews and vetting were carried out in the glare of TV cameras and in the presence of the citizens of Kenya. The Judicial Service Commission assures us that this process gave us, and will continue doing so, the freest judicial members in the history of Kenya. Gone, it also assures us, are the days when the President (and Prime Minister) and their cronies picked their friends and supporters to serve in the Judiciary, more to protect their interests than serve the cause of justice in Kenya.

In drafting the Constitution of Kenya, 2010, the Committee of Experts offered a choice to the political class: settle for either a purely Parliamentary system in the Westminster style or for a pure Presidential system in the United States' mould. Kenya settled for the latter, and as a consequence the US concept of separation of powers and a system of checks and balances underpins the Constitution; the Executive, Legislative and Judicial Branches are separate and distinct, each with the power to check the other in some limited fashion. This is the first step to independence. The second was in ensuring that public finance in Kenya treated the three as distinct entities, hence the creation of the Judiciary Fund, among others. But it is on the third front that there has been deafening silence, even from The Nairobi Law Monthly, that is, in the rendering judgments and rulings by the courts.

To my knowledge, no statistics have been produced showing that bar corrupt acts, rulings and judgments of our courts were influenced, either by the Executive that controlled the purse-strings, or the Legislature that could conceivable pass laws unfavourable to the Courts, or by ideological and other considerations. It could be argued, though, that corruption has had a pernicious effect on the independence of the Judiciary, placing judicial officers at great risk of blackmail bay any of the aforementioned parties. Again, this aspect of the effect of corruption on the Judiciary has not been explored in public. 

This leaves us to ascertain from official court records whether the Judiciary was independent or not. During the JSC interviews of candidates for the offices of CJ, DCJ and judge of the Supreme Court, Omollo, JA, was cashiered by Mr Abdullahi over his consistent ruling in favour of President Moi in election petitions challenging the validity of his election as President of Kenya. Mr Abdullahi, however, failed to explore whether Omollo's, JA's loyalty extended beyond saving the president's bacon in election petitions. 

An analysis of the rulings and judgments of the Court of Appeal over the years should show whether the Court was overwhelmingly influenced by the Executive branch, or any other party or ideology, or not. It will give us an opportunity to determine for ourselves whether the Judiciary was guilty as charged, especially of the sins it is accused of having committed during KANU's long and corrupt reign in Kenya.

The Supreme Court of Kenya is now the highest court in the land. Its judgments are now binding on the Judiciary, including the formerly lofty Court of Appeal. It is for this reason that its rulings and judgments will be read with keen interest; after all, they are supposed to declare the rules of general application in Kenya. Of the 7 members of the Supreme Court, only Prof J B Ojwang', Mohammed Ibrahim and Philip Tunoi have a judicial record with which to ascertain their judicial independence; for the CJ, DCJ, Ms Njoki Ndung'u and Dr Smokin Wanjala, we will have to deduce theirs from their public stances, statements and published documents, a tall order at the best of times, but a veritable Himalayas when they have not been made public. It is their ideological and judicial philosophies that will determine whether the Supreme Court of Kenya will be independent, especially of the pernicious hand of the Executive branch, not the manner of its public financial management or the legislative agenda of Parliament.

Time's up!

Under the Constitution (Chapter 8), Members of Parliament, that is, Members of the National Assembly and of the Senate, shall perform the following functions:

1.Amend the Constitution;
2. Alter the boundaries of counties;
3. Protect the Constitution and promote the democratic governance of Kenya; and
4. Under the authority of the Constitution, or of any other written legislation, make provisions having the force of law in Kenya.

The National Assembly shall perform the following functions:

1.Represent the interests of constituencies and special interests;
2.Deliberate and solve issues of concern to the people;
3. Enact legislation;
4. Determine the allocation of national revenue between the levels of government;
5. Appropriate funds for expenditure by the national government and other national State organs;
6. Review the conduct of the President, Deputy President and other State officers and initiate the process of removing them from office;
7. Exercise oversight over State organs; and
8. Approve declarations of war and extensions of states of emergency.

From the foregoing, it would seem, on the face of it, that our National Assembly has shirked its duties. The dismal record of poor quorum in the National Assembly is a no longer funny. Kenneth Matiba set a bad precedent with his 'technical' appearances in the 1990s. Today, it seems that MPs spend more time kissing ass outside the august House, than carrying on the business of the National Assembly. If they had been doing their job, especially after the dire warnings of the Kenya Meteorological Department in November 2010, the famine that is ravaging the country could have been addressed in advance. Their authority under the Constitution to appropriate funds for expenditure by he national government should have been exercised well in time to compel the Executive branch of government to set process and structures in place for the alleviation of the expected suffering of the people of Kenya. The argument by Deputy Speaker Farah Maalim regarding the continued failure by the government should also be an indictment of the blinkered pig-headednes of the National Assembly, fractured as it is along ideological, party and tribal lines. The fact that some of its members have embarked on early presidential campaigns means that their minds are not focussed on the unfolding tragedy in parts of the country, more particularly the dire situation in northern Kenya - a region that has been neglected by successive governments, including by the National Assembly, since Independence.

When choosing our next representatives, and in the formation of the next government, including the county governments, we must be wary of men and women peddling the same stuff from years gone by. This idea that we owe them fealty simply because we speak the same mother-tongue or come from the same geographical area must be discarded as it is the reason why they seem unable to focus on issues that affect us directly. In their zeal to protect their interests they have frequently thrown us in front of the bus. Today we must make it plain that they have failed us and that their fifteen minutes are up. It is frequently claimed that Kenyans are bright and intelligent, capable of finding solutions to the most vexing problems that face them. If this is so, the time to prove it is today. They must draw the line in the sand that if the current members of the National Assembly wish to retain their seats at the next general elections, they must shape up. They have about a year to prove to us that their focus is not simply to embarass one man or to keep their seats. They must demonstrate the resolve that has been so lacking in managing the affairs of this nation. If not, pink slips must be handed out by the gross at the next elections. Tell them, Thank you, and good-bye! Our patience has run out. We are mad and we won't take it any more.