We are owed

THE RECENT DEVELOPMENTS over the dismissal of four judges of the Court of Appeal, and the decision of the Minister of Finance to offer blandishments to Members of Parliament in exchange for their support of the Finance Bill, bring into stark relief the effect that Chapter Six of the Constitution will have on the next general elections. When Kenyans ratified the Constitution in 2010, one of the requirements was the departure of the Chief Justice and the Attorney-General and the vetting of judges and magistrates to weed out those unfit for duty. Chapter Six demands that the men and women who serve in the public service must meet specific integrity and leadership requirements. The dismissal of the four judges, and the expected dismissal of more judges and magistrates, should be a call to arms for the men and women vying for elective positions and those that will apply for positions in the national and county governments.

WHEN THE HIGH COURT failed to give a definitive determination on when the general elections could be held, and the Independent Electoral and Boundaries Commission decided to schedule the elections for 2013, they gave the political class ample time to either make a determined effort to do things the right way or to continue on the path that has led to so much trouble and strife for the peoples of Kenya. The antics of the Minister for Finance emphasise as nothing else will that the Tenth Parliament continues along its path of holding the peoples of Kenya at ransom unless their demands are met. 

The Tenth, and the Ninth, Parliament have consistently refused to place the needs of the peoples of Kenya ahead of their own. When the Ninth Parliament raised the pay and allowances of its members, it did so knowing full well that they were creating an aristocracy divorced from the general population. When the Minister for Finance proposed to do so again in his 2012/2013 Budget Statement, he was not reprimanded by the Members of Parliament; rather they cheered him on secure in the knowledge that the peoples of Kenya would not rise up in opposition. In the midst of a resilient economic onslaught on the working peoples of Kenya, the Members of the Tenth Parliament saw no reason why they should forgo the blandishments of the Minister for Finance, including the award of a substantial increase in their "winding up allowances". All they had to do was to give up their demand for a cap on the interest rates that commercial banks may charge for loans advanced to Kenyans. That the MPs would continue to feed off the public trough while Kenyans would continue to suffer the high cost of credit facilities was lost to them in the heat of their own financial avarice.

IN THEIR INCESSANT campaigns to be re-elected, or elected to new offices, or their support for one of their own to succeed President Kibaki, and despite the insistent warnings of Mutula Kilonzo, Martha Karua and Gitobu Imanyara of the strictures of the Constitution on leadership and integrity, the current MPs continue to refuse to accept that they no longer enjoy a free hand in the manner by which they serve their constituents, or how they conduct the business of the National Assembly. They are confident that the institutions of state will continue to kowtow to them well into their retirements. Not even the Chief Justice's warning that Chapter Six binds them has given them pause; instead, they continue to perpetuate the impression that they are above the law, even beyond it.

IT REMAINS UNCLEAR whether they will see the light as Saul did on his way to Damascus. Today, they are more interested in advancing their political careers than carrying on the business of the peoples of Kenya. They are more interested in protecting the political careers of a few at the expense of the needs of the many. There are thousands of Kenyans who continue to languish in abject poverty not just as a result of the violence that rocked the nation after the 2007 general elections but also because of the economic policies of their elected government. That the Tenth Parliament and our leaders in government continue to concentrate only on what advances their careers should inform to a great extent the challenges to their continued political existence. Many of the decisions they have made over the past five years may have been within the strict letter of the law, but many will argue that they violate the spirit of it. 

The standards that have been set by Chapter Six must be met by all who choose public service over careers in the profitable private sector. If they are unable to meet these standards, they are best advised to seek profit elsewhere and to give the peoples of Kenya an opportunity to elect a government that treats them with the respect they deserve. If they are incapable of making the choice, the people of Kenya must make it for them. Justices Omolo, O'Kubasu, Bosire and Nyamu failed to heed this warning and the Judges and Magistrates Vetting Board made it for them. We must do the same when the general elections are held. We owe it to ourselves to do so.

Lessons from the Lubanga and Taylor Convictions

The Special Court on Sierra Leone, after five years of trial, has convicted Charles Taylor, a former president of Liberia, of crimes against humanity. Sitting at The Hague, the Court found that Charles Taylor had more than a hand in the civil war that wracked Sierra Leone in the 1990s. The civil war which saw the mass conscription of children into the fighting ranks of the rebel forces was a stain on the continent, even for a continent so used to pestilence and disasters on a biblical scale. The peoples of Liberia and Sierra Leone are well rid of a man who ensured that what was a relatively simple political dispute degenerated into a civil war that ruined the lives of millions upon millions. Mr Taylor's ill-gotten millions were no defense for the Court and now he sits in jail as he awaits sentencing. This is a lesson that the ICC Four should take to heart.

In 2007, Kenya held a general election and the presidential result was hotly contested. Few wish to remember that the seeds for the dispute were laid when President Kenyatta unilaterally decided to appoint commissioners to the Electoral Commission of Kenya, setting aside the 'gentleman's' agreement that allowed the Opposition a say in who was appointed to the ECK. Howls of rage from the Opposition guaranteed that there would be disputes regarding the results of the elections. When Samuel Kivuitu declared Mwai Kibaki the winner of the presidential election, and doing so under armed guard, Raila Odinga and ODM refused to accept the results. Fewer still wish to remember that Mwai Kibaki was staunchly defended by leading lights of the PNU alliance, not least of which was Martha Karua the NARK-K supremo. The scenes witnessed at the Kenyatta International Conference Centre were a throwback to the dark days of KANU elections.

William Ruto and his cohort from the Rift Valley were extremely vocal in their displeasure at the turn of events. When violence 'spontaneously' erupted in the Rift Valley, many attributed it to Raila Odinga's call for mass action even though he publicly called for an end to the violence. When marauding gangs began the process of ethnic cleansing in the Rift Valley, targetting persons deemed to be PNU supporters (primarily Kikuyus), the wheels had surely come off the wagon. But it was in the retaliatory attacks on ODM supporters that the seeds for the intervention of the international community were laid. 

The interventions of the African Union, through its Panel of Eminent Personalities, led to the establishment of the Waki Commission and the Kriegler Commission. The Waki Commission eventually established that the violence that erupted after the elections results was neither spontaneous nor without sponsors. Mr Justice Waki and the Commission decided to prepare a list of the persons they deemed to be responsible for the violence, seal it and leave it to the former Secretary-General of the United Nations to deliver to the Prosecutor of the International Criminal Court if the Government of Kenya failed to establish a local mechanism to try the perpetrators of the violence.

Mwai Kibaki, the President, Raila Odinga, the Prime Minister, Martha Karua and her successor Mutula Kilonzo, the Minister for Justice and Gitobu Imanyara, the MP for Imenti Central, tried to bring Bills to Parliament to set up just a local tribunal, but the cohorts led by Uhuru Kenyatta and William Ruto stifled these attempts. It fell to Koffi Annan and the Prosecutor of the ICC to seize the matter and the results are there for us to see. Now, Mr Kenyatta and Mr Ruto find themselves in very deep waters with the convictions of Thomas Lubanga and Charles Taylor for crimes against humanity for the roles they played in the civil wars in Rwanda and Sierra Leone, respectively.

Mr Kenyatta ad Mr Ruto, since their indictments by the Court, have attempted to brow-beat it into dismissing the charges against them or, alternatively, to postpone their trials until after the general elections slated for March 2013. Refusing to admit that they were solely responsible for the cases being tried at the ICC, they have attempted to lay the blame variously on foreign powers and on Raila Odinga, the Prime Minister. Instead of concentrating on their defenses, they have spent more time whipping up tribal sentiments in order to influence the result of the coming general elections. Even when the suspects had the opportunity to put their best foot forward during the confirmation of charges hearings, Mr Kenyatta and Mr Ruto played to the Kenyan gallery by parading witnesses who were ultimately unpersuasive before the Judges of the ICC Pre-trial Chamber II. Now that the process is hurtling towards a trial date, they are doing all in their power to manage the political fall-out rather than prepare for their defenses.

What the international criminal judges have done is similar to what Sharad Rao's Judges and Magistrates Vetting Board has done: no matter how high your standing in society, you are accountable for your actions. We must remember that William Ruto and Uhuru Kenyatta are innocent until proven otherwise. However, if they are determined to base their defense on their standing in society, they will surely take note that international criminal law is no respecter of standing in society. It is time for them to organise themselves as properly as they may by instructing their lawyers to pursue every opportunity that presents itself to preserve their freedom. If it is their intention that they maneuvre the electorate to secure the government in their favour, they must look no further than the fate that has befallen the President of the Republic of the Sudan who has had the ignominy of having international warrants of arrest issued against him in the matter of the Darfur ethnic cleansing. All the oil in Turkana will not rescue them from this pickle.

A change is a-coming

RSC Omollo, Emanuel O'Kubasu, Samuel Bosire and Joseph Nyamu have been weighed by Sharad Rao's Judges and Magistrates Vetting Board and they have been found wanting. Mr Rao, a former Deputy Public Prosecutor, and his colleagues are serving notice on serving members of the Judiciary that the impunity of their past is catching up with them and that there isn't a rock under which they will hide that won't get turned over, leaving them exposed. Mr Justice Omollo, Kenya's senior-most appellate judge, is notorious in the manner he runs his court. There isn't a practicing advocate who has not experienced his acerbic tongue; there are quite a few who have alleged that Justice Omollo's rulings did not meet the standards to which we all pay lip service. It is his misfortune that the Vetting Board has pored over his record and exposed it for what it is. Now he and his three colleagues are out in the cold, their benefits gone forever.

Justice Aaron Ringera's Radical Surgery was a fiasco. Even the good judge will admit it today that in the absence of a firm legal and constitutional foundation, he had too free a hand in the manner in which he decided who would go and who would remain. Philip Waki, one of the appeal court's judges cleared by Mr Rao's Board, was once a victim of Ringera's surgery and had it not been for his tenacious pursuit of the right to clear his name, he would be out in the cold too and we would never have added "Waki Envelope" to Kenya's political lexicon.

The Rule of Law is a difficult concept for Kenya's high and mighty to grasp. Philip Moi, one of President Moi's sons, is being sued by his former wife for substantial amounts in missed maintenance payments. He is unwilling to pay and claims, incredulously, that he cannot afford his former wife's demands. Nancy Baraza, the suspended Deputy Chief Justice, is doing everything in her power to avoid being investigated by a tribunal for her conduct on New Year's Day. Deputy Prime Minister Uhuru Kenyatta is tenaciously holding onto his office regardless of the Sword of Damocles hanging over his head in the form of an ICC trial. Jakoyo Midiwo, the Gem ODM MP and Government Chief Whip, makes unsubstantiated allegations that there is a conspiracy to assassinate the Prime Minister and then does everything in his power to avoid facing the law for wasting police time.

Martha Karua, the indefatigable Gichugu MP, and Ahmed Issack Hassan, the Chairman of the IEBC, have entered into a slanging match over the date of the next general election. Martha Karua, quite reasonably, argues that elections are never held after a Parliamentary term but during it. Mr Hassan, equally reasonably, argues that the High Court gave him great latitude to set the election date, latitude he has exercised to fix it for March 2013. Both claim that the rule of law guides their actions. Mr Rao, quite rightly too, has upended this cozy disregard for the law and the rule of law manifested by our leaders. Now that even the President of the Court of Appeal is facing dire legal circumstances and the Deputy President of the Supreme Court is being investigated by a tribunal for what many of her ilk would consider a minor issue, the high and mighty had better re-examine their place in the totem pole and adjust accordingly.

The Constitution declares rather breezily that the people of Kenya hold all sovereign power and that elected and appointed officials are mere delegates of the people. Quite clearly this message is yet to sink into George Saitoti's head. When his police officers use what many consider to be unjustifiably excessive force to break up a political meeting, and when many suspect that the reason he is doing so is to prevent the rise of another power centre in the Mount Kenya region, he makes a mockery of the sovereign power of the people. So too does the Minister for Medical Services who dreams of fancy new hospitals for the dying rich but refuses to pay his lowly doctors and nurses what they deserve nor get them the materiel they need for their operations. And so too does the Chairman of the National Cohesion and Integration Commission who spends more time writing reports and making recommendations on what to do about highly ethnicised public institutions instead of prosecuting the men and women who have consistently perpetuated a culture of impunity and a callous disregard for merit or what is good for their institutions (it is no longer funny that the University of Nairobi is seen as a 'Luo' university while Kenyatta University is seen as a 'Kikuyu' university).

Change comes as sure as the sun rises. It is now apparent that some of the changes are going to be received with skepticism, sometimes outright hostility, but there is no denying that Kenyans are optimistic that these changes will be seen through to the end. If the overwhelming approval over the dismissal of the four judges is anything to go by, it is only a matter of time before civil servants start to feel the heat over their sins of commission and omission.

The People hold the Key.

The fallacy that the promulgation of a Constitution is all that is required to change the behaviour of a government that has redefined impunity for decades keeps on being perpetuated by the chatteratti. Even sages such as Maina Kiai still propagate the theory that since the Constitution bestows, or affirms, certain rights to Kenyans, the powers-that-be should modify their decades' long behaviour and act as the Constitution demands they do. While we can justly claim to have an incredible document as our mother of all laws, we must remain alive to the fact that reforming the state and its institutions is a work in progress, with reforms taking shape in some parts and in some others impunity fighting back with a vengeance all the while society keeps ticking along as before.

Civil society organisations, for all their fire and brimstone, have done little to help Kenyans realise that the new dispensation applies to them as much as it applies to their government. This past week Maina Njenga together with other prominent leaders and supporters attempted to hold a rally at the Jumuuia Gardens retreat in Limuru, the site of the Kiraitu Murungi-organised Limuru II GEMA meeting where Uhuru Kenyatta was declared the presidential candidate of that 'cultural' organisation and calls for the postponement of his trial at the ICC were vociferously made by various speakers. Maina Njenga and his cohort were prevented from participating fully at Limuru II and therefore, vowed to hold Limuru IIB to counter the impression that had been created in the minds of many that Limuru II was merely a tribal outfit out to secure the interests of the Deputy Prime Minister.

Limuru IIB was violently prevented from taking place by the combined efforts of the Kenya Police and Administration Police. Eric Kiraithe, the police spokesman, informed the public that the Kenya Police had received intelligence that the meeting was a re-launch of the dreaded Mungiki and that there was no option but to prevent it from occurring. Many opine that the reason why the meeting was disrupted was due to the fear that it would undermine GEMA's plans for the DPM and thus it could not be allowed to proceed. Maina Kiai argues that the violent disruption of the meeting by the police forces is a sign that impunity still reigns in Kenya and that the State continues to ignore the clear provisions of law, falling back on tried and tested methods perfected during the twenty-four years of KANU one-party rule.

While it is a right guaranteed by the Constitution for Kenyans to peaceably assemble and propagate their political vision, it is not a right that is enjoyed without restriction. If the police, as they claim, had credible information that the meeting was designed to revive the Mungiki, it was their duty to respond as they did, first by denying its organisers permission to stage the rally and then using force to disperse its attendees once they ignored their directions. The presence of luminaries such as Paul Muite and David Gitari should not have influenced the police in any way. On the other hand, if the information was provided with the motive of preventing Uhuru Kenyatta from witnessing organised opposition to his plans and he used his connections in government to browbeat his opponents into seeing things his way, then we must surely still be living under a one-party dictatorship disguised as multi-party democracy. Kenyans are yet to inculcate democratic, constitutional ideals yet, though.

When one witnesses the reckless manner in which drivers flout traffic rules, for example, one is persuaded that Kenyans believe that the law is meant to regulate someone elses behaviour and not their own. To date, many political parties are claiming memberships in the tens of thousands yet it is impossible to ascertain whether this is true when even the popular ODM are forced by the Registrar of Political Parties to amend their party registers because thousands of members are registered elsewhere. It should be a badge of honour for a person to identify himself with the political party of his choice, one that espouses his ideals and promotes his objectives. Yet listening to men and women hold forth on politics in this country, one is left with the distinct impression that they think that politics is the exclusive preserve of political leaders and that theirs is only to follow without thought. Without demonstrating that they are active participants in the political process, their parties are merely repositories of the vitriol and corruption that has kept this nation from achieving many of its objectives since Independence.

Without reforming how we see ourselves and how we act towards one another, we may expect more of the same as was witnessed in Limuru this week. We shall also, sadly, keep reading the disappointed ramblings from our chattering classes. If we do not change why should our government?

Sudan crisis exposes rot in foreign policy

The Republic of the Sudan and the Republic of South Sudan are moving inexorably towards war, seven years after the Comprehensive Peace Agreement was executed between the Republic of the Sudan and the rebel forces led by John Garang of the Sudan Peoples' Revolution Movement. The conflict revolves around many critical questions that are yet to be settled between the two governments but it is the oil question and control of the oil-producing regions that are exacerbating a very tense situation.

Since the CPA was signed between the two, it was understood that once a plebiscite was held to determine whether or not the south would secede, among the key questions to be settled would be the common border and the administration of the oil-producing region, especially the Abyei. One year after the birth of the Republic of South Sudan these two thorny issues are yet to be determined. The South has moved to occupy Heglig in South Kordofan State of the Republic of the Sudan, accusing the northerners of using the town as a base for attacking the South and for launching missile attacks. In response, the north has called the Republic of Sudan an 'enemy of the people' and has withdrawn its negotiators from talks being conducted in Addis Ababa, Ethiopia.

Meanwhile, Kenya has responded to the unfolding situation by despatching the Foreign Minister to Addis Ababa to bring about a resolution to the unfolding situation. He has made contact with his counterparts from the Sudan, Rwanda and Ethiopia, but not from the players who truly matter, South Sudan and Uganda. And it is this that makes it plain that in this time of electioneering, where everyone and his uncle seems to be seeking to be Mwai Kibaki's successor, our focus on foreign matters, especially in our near-abroad seems a bit wanting. Prof Ongeri is no doubt an intelligent, cosmopolitan, well-travelled and experienced politician but he is a poor chief of our diplomatic corps. 

Moses Wetangula had the opportunity to learn, first as Raphael Tuju's Assistant and later as the Minister over the past four years, but it is becoming increasingly apparent that he, like his predecessors before him going back to Kalonzo Musyoka, saw themselves as the managers of Kenya's political image internationally ad not as the vanguards of Kenya's interests, especially its commercial interests. Prof Ongeri does not have the time to learn on the job nor will be effective in managing relations during the Sudan conflict. It would have been to leave the Ministry in the hands of Moses Wetangula, inept as he had proven, rather than in the untested, ill-experienced hands of Prof Sam Ongeri.

The scuttle-butt is that Uhuru Kenyatta and his phalanx of advisors have pre-positioned allies in key departments to ensure that when the day comes that the ICC demands his delivery to The Hague, they will be able to forestall such an eventuality an that they will ensure that in his defiance of the international tribunal he escapes sanction. Wiser voices have been stifled and Uhuru is being led by the nose by the likes of Kiraitu Murungi, Robinson Njeru Githae and Ephraim Maina. Keen observers of the ICC, especially those with an eye to its political utility, predict that it is only a matter of time before the Attorney-General informs Uhuru Kenyatta's cohort that there is no stopping the ICC process short of dissolving the court before it hears any more cases. 

It is this overwhelming obsession with domestic issues that has hamstrung the diplomatic efforts of our country, explaining why incompetent men have been placed in charge of the Foreign Ministry since the assassination of the charismatic Robert Ouko. Even Kenya's 'pivot' towards China and away from the West led by the UK, the EU and the USA could have been skillfully managed; it was unseemly the public spat between the government and the French Ambassador over access to State House. Now that Kenya's near-abroad is erupting once more, it is time for a sensible pair of hands to take over the foreign policy of Kenya, ensuring that Uganda, Ethiopia, South Sudan and Kenya work together to ensure that the blood that is about to be spilled is averted, that Uganda and Ethiopia enjoy a bigger share of the spoils from the oil discoveries in the region, and that South Sudan and the Sudan settle their disputes quickly and for mutual benefit. sadly, Sam, Ongeri and Francis Thuita are not those hands.

Mr Kenyatta's leap of faith

The collapse of Uhuru Kenyatta's KANU was inevitable. Since his defeat by Mwai Kibaki and his allies in the 2002 general elections, Mr Kenyatta has been marking time in KANU, distracted by his rivalry with Raila Odinga, the Prime Minister, and hell-bent in re-kindling the love Central Kenya had for his father in the 1960s and '70s. Against the wishes of President Moi, Mr Kenyatta refused to stand again for the presidency in 2007, instead choosing to support Mwai Kibaki's re-election. It was then that the seeds of his departure from KANU were planted. 

While he may dislike the rebellious nature of the approach taken by the party Vice-Chairman, Gideon Moi, and the party's Secretary-General, Nick Salat, in attempting to clarify his place in the party, Mr Kenyatta must admit that contrary to accepted leadership norms, he has treated his party very shabbily. His membership in the Gang of Seven is a clear signal that he does not consider the Independence Party to be a significant player on the national political stage. For a party that ruled the country for four decades, this is a humiliating climb-down. It seems that with Mr Kenyatta's departure, the party will no longer be the political colossus it once was.

Mr Kenyatta now has barely a year to not only join a new political party but to consolidate his leadership of that party, recruit its members and prepare it for the general elections scheduled for March 4, 2013. The current narrative is that Mr Kenyatta has been persuaded by his outings with the members of the G7 that he is popular on a national scale and that regardless of what political vehicle he rides in, his march to State House will be unimpeded. Mr Kenyatta risks political irrelevance if his plans do not come to fruition exactly as he hopes. He faces several challenges, however. 

2007, again, was not just catastrophic for the former ruling party, its aftermath now seems destined to dim his political star. In 2008 and 2009, both Martha Karua and Mutula Kilonzo attempted to forestall what they saw as a political risk for the Deputy Prime Minister when they attempted in vain to persuade him and his allies that an amendment to Kenya's former Constitution was a safer option in dealing with the violence of the 2007 general elections. Mr Kenyatta and his advisors must have thought that given that the International Criminal Court had yet to convict anyone for international crimes that the same would be true with regards to the Kenya situation. After all, Mr Kenyatta was not only a senior member of the Cabinet but his allies controlled the key ministries that would be involved in any engagement with the ICC. George Saitoti was firmly in charge of the Internal Security Ministry, Mutula Kilonzo controlled Justice, Moses Wetangula oversaw foreign affairs, and Kalonzo Musyoka was the V-P while Amos Wako tamely followed his master's lead.

When the ICC Prosecutor announced that he would give Kenya more time to put its house in order, Gitobu Imanyara took the initiative and attempted what Martha Karua and Mutula Kilonzo had failed to achieve, perhaps thinking that his GEMA ties would assuage whatever suspicions Mr Kenyatta may have had of the two Justice ministers' intentions with a local tribunal. The failure to establish a local mechanism to try the suspects of the post-election violence should have been a warning for the Deputy Prime Minister. Instead, his animus for Mr Odinga clouded his reasoning and today he finds himself not only indicted for the violence that took place in 2007 and 2008 by the international court, but facing the prospect of a protracted trial in the middle of his presidential campaign and, should he manage to win the presidency, during the first years of his first term. Mr Kenyatta has treated the ICC situation as a political game every step of the way, one that he intends to win, and every time he has chosen to make the wrong choices and take the wrong steps.

Now with his decision to abandon the former ruling party Mr Kenyatta places himself in greater peril than ever before. His legitimacy as a Deputy Prime Minister is derived partly as a consequence of his leadership in KANU. He must not delude himself that he is free to act as William Ruto does; the deputy leader's position in ODM is not similar in any way to the Chairmanship of the party. The power that the party chairman enjoys in KANU is enormous and to risk it simply to cock a snook at the Prime Minister is the height of folly. Mr Kenyatta exposes himself to a much more serious legal challenge than the one Nick Salat launched against him in the Mombasa High Court. In that case, the High Court may have been persuaded that this was a transitional period and that it was not proper for serving members of the Cabinet to resign their positions in their parties. It would have been an imperfect argument but one the Court would have been willing to listen to in light of current events. Indeed, given that nearly all political parties faced the same legal situation, the Court may have been persuaded that the situation would be resolved after the next general elections. With his abandonment of KANU, Mr Kenyatta exposes himself to a wholly new risk.

Unlike Mr Odinga who still enjoys popular support among the rank and file of his party, Mr Kenyatta cannot boast of the same advantage. A significant proportion of the membership of his party, which has been reduced to pockets of support in Central Kenya and Rift Valley, is hostile to his interests. If he declares publicly that his sympathies, and political future, lies in another party, this may be all that Nick Salat and Gideon Moi need to push him out of KANU once and for all and thereby set the stage for his departure from the Cabinet entirely. He may not even enjoy the president's support if he wishes to remain as Deputy Prime Minister. That, in turn, would strip him of the remaining vestiges of official state support in his tribulations with the ICC which in turn would make it easy for the ICC Prosecutor to execute a warrant of arrest against him. 

As it is, some of his key allies are in the wrong place at the wrong time. Amb Francis Muthaura is out of the Cabinet Office and his replacement, Francis Kimemia, may not have Amb Muthaura's skills in managing the ICC situation as may be demanded. Robinson Njeru Githae, his replacement as Finance Minister, has his hands full with the 2012/2013 budget and may not be able to properly defend his interests in the Cabinet if things get dicey. Moses Wetangula has been replaced by Prof Sam Ongeri at the Foreign ministry and he may not be the best person to manage the diplomatic side of getting Mr Kenyatta off the ICC's radar with the 2013 general elections looming. Even Prof Githu Muigai, Amos Wako's replacement, may be unable to do much to protect the DPM when the chips are down. While the Director of Public Prosecutions has long ties to the KANU establishment they pre-date Mr Kenyatta's entry into politics. Keriako Tobiko, the DPP, owes his public service life to President Moi and he may not feel any loyalty to Mr Kenyatta should he be called to assist him going forward.

In treating with the likes of William Ruto, Eugene Wamalwa and Kalonzo Musyoka, and abandoning KANU, Mr Kenyatta is making what the Americans would call a Hail Mary pass. Whether he is successful depends entirely on what his adversaries do. If Mr Kenyatta thinks that Raila Odinga, Martha Karua, Peter Kenneth, Moses Wetangula, Eugene Wamalwa will treat him as a potent force once he loses his KANU chairmanship, someone is misadvising him mightily and, perhaps, leading him to ever greater peril. Whether Mr Kenyatta can see the folly of his decision, only time will tell. He will either win it all or spend the rest of his life wishing that he had thought first, and fast, before he leapt.

A dose of sanity

Paul Mwangi in today's Commentary injects a dose of sanity in the debate over the dismissal of Najib Balala from the Cabinet (Balala's firing part of established democratic practice, Sunday Nation). In detailing the reasons for Mr Balala's dismissal Mr Mwangi demonstrates that in his service to the Prime Minister intelligence matters almost as much as clout or loyalty. Whether the rest of the political commentariat follows his lead is something else entirely. The poisonous air that Miguna Miguna injected in political discourse during and after his service for the PM is something that needs to be jettisoned for the benefit of all. The tone taken by Mr Balala too, especially in his roping in of the 'Muslim community' places the political discourse in Kenya in jeopardy as seeing that religious passions tend to be almost as poisonous as ethnic passions.

Mr Balala not only displayed disloyalty for his political party but for the political policies of his political boss, the Prime Minister. In more mature democracies, as Mr Mwangi points out, the honourable thing for the Minister would have been to resign not just from the Cabinet but also from his constituency seat and seek a fresh mandate on the basis for his political convictions. That he refused to do left the Prime Minister with no option but to relieve him of his duties as Tourism Minister, his excellent record notwithstanding, as well as strip him of his privileges in the party. It was the only thing that could have been done.

Mr Balala and Mr Miguna Miguna forget that in the light of the leadership and integrity principles enshrined in Chapter Six of the Constitution, political leaders must embrace a new culture that is bereft of the old style of operation. President Mwai Kibaki has encouraged his ministers to spread their wings as far as they could and t run their portfolios as private fiefs for their and their benefactors' benefits, and to treat the principles of collective responsibility and party loyalty with complete disdain. This explains why MPs and Cabinet members spend more time attempting to cross over to new parties without necessarily leaving their parties or resigning from the Cabinet. This level of indiscipline has ensured that party development has been stymied and the development of grassroots institutions has been short-circuited.

The poison that has been injected in political discourse, especially since prominent members of the Gang of Seven were indicted by the ICC, has ensured that reasonable debate is sacrificed at the altar of ethnic chauvinism. With Mr Mwangi's cogent explanation of the grounds for Mr Balala's dismissal, it is now clear that all is not lost. If only the rest of the political establishment follows suit we will be halfway to sorting out the implementation of the Constitution.

George Orido is wrong.

The truth, justice and reconciliation process, for all the billions it has consumed, is a wash. When George Orido, writing in TongueInCheek calls for the forgiveness for the architects of the post-elections violence (Time to forgive architects of PEV, The Standard on Saturday, April 7, 2012), he demonstrates that impunity has a long way to go before it is vanquished. 

Thousands died, hundreds of thousands more were killed and maimed, and billions of shillings of private property went up in flames and yet the men and women at the heart of the violence walk among us free. It is painful to the victims to listen to homilies on the forgiving nature of the Christian heart when that very same heart has had nothing but disdain for their plight. Even the Christ was not averse to demonstrating that fidelity to the law was a given. Did he not ask his people to render unto Caesar what was his? Did he not take a whip and drive the money-lenders from the temple?

This is not South Africa in the aftermath of the apartheid era. For truth, justice and reconciliation to work, men and women who killed, maimed, raped and pillaged must come forward an admit that they sinned against their fellowman and they must face the full force of the law. If their victims choose to forgive them after a full accounting of their sins, then so be it. But such forgiveness can only be the gift of the victim, not of the punditocracy. 

If Mr Kenyatta and Mr Ruto were to admit that indeed the accusations levelled against them are true, they must ask for forgiveness from the peoples they wronged and it is their victims alone who can call forgive them. Simply leading tribal delegations on missions of diplomacy between the peoples of Central Kenya and the North Rift is not enough. They must repent and pray that their victims indeed are Christian and charitable enough to let bygones be bygones.

The government is tom-tomming the closing of the last IDP camp believing that the crimes of the past have been swept away by the resettlement of Kenyans in new homes. Meanwhile, the properties that they lost have been occupied by interlopers in the name of tribal pride. No compensation has been or ever will be paid. The dead are being accorded the indignity of having their lives forgotten in the mists of time. And the men and women responsible for this refuse to admit that what they have done is not just a sin against the Almighty Himself but against humanity. 

Like cockroaches, they scurry from the light of truth and gather together in dark places to plot their own survival. They deserve not mercy but hostility to their dying days. We must never forget that they are responsible for not just the death of thousands but for shattering the illusion that all Kenyans are equal before the law of the land and God Himself.

Tragedy of the Commons

When Maina Kiai asks "Is it coincidental that the two communities from which Kenya's presidents have sprung are so against accountability?" (THINK AGAIN, Want to get away from the ICC? The first reform the police force, and fast, Saturday Nation, April 7, 2012), he betrays that Kenyans are yet to get away from their traditional means of viewing ethnicity in the context of political context. His argument that police reforms must be expedited is blameless, but his accusation of entire communities for what their political and spiritual leadership has said, and continues to say, speaks volumes.

Of course and argument could be made that by attending the rallies and conferences organised by their political leadership the members of the GEMA and KAMATUSA communities endorse their reactionary messages, but it would be a fallacious argument. To my knowledge, no polls have been taken to demonstrate that of the choices the peoples of Central Kenya or the North Rift they have chosen impunity over all the rest. In a political environment bereft f serious policy an political discourse, it is impossible to determine whether these people truly have made an informed choice to fall behind their political and spiritual leaders in their quest to rescue Uhuru Kenyatta and William Ruto from the unpleasant attentions of the ICC Trial Chamber V.

During the dark days of the KANU hegemony it was fashionable to lay the blame for the acts of political leaders at their communities' doorsteps. This system was perfected to such an extent that a ministerial flag was seen as belonging to the entire community and not to an individual whose oath of office was supposed to bind him to national objectives. When Raila Odinga 'sacked' Najib Balala from the Cabinet, one of his promises to the peoples of Mombasa was that their flag was safe and that they still had one of their own in the Cabinet. It seems that Mr Odinga and Mr Kiai still suffer from the after-effects of decades of KANU rule and are incapable of seeing political leadership outside the confines of ethno-balancing acts.

To wit, the peoples of Central Kenya and the North Rift, until proven otherwise, are blameless for the poisonous rhetoric of their political and spiritual leaders. They are not a hive mind capable of thinking as one. It is their leaders who set the pace and in the absence of a compelling counter-argument the people are incapable for coming up with an alternative to the positions staked out for them. Collective punishment was a tactic employed by the colonial government in Kenya and our politicians seem to have upgraded it for the twenty-first century.

The solutions are as simple as they are difficult to effect. With the Tenth Parliament we have hit a wall when it comes to reforming the political class. Indeed, it can be argued that the inauguration of the Tenth Parliament was accompanied by the most blatant display of avarice and cowardice ever witnessed in our short history as a free people. The Tenth Parliament swept into office with the ethnic blessings of tame religious leaders and intellectuals. Its members have time and again failed to rise to the occasion when called upon to do so. And their spiritual leaders and intellectuals have failed to hold them to account, choosing instead, to parrot the same lines as their political masters. In the end we have been left to pick u after them.

The general elections are an opportunity to walk away fro the horrors of our recent history. We can do so by electing to parliament men and women whose only concern is the welfare of their peoples and the well-being of the nation. They can demonstrate this fidelity by speaking to the concerns of their communities with regards to security, economic development and a shared future of all Kenyans. The behaviour of spiritual leaders and intellectuals shows that we cannot rely on them to help us make better choices for our collective future. It falls on us to decide whether it is better to exclude others than to include all in the national conversation. Changing mindsets will be a monumental task and it falls on a political leader of exceptional skill and foresight to help us do so. One is yet to prove himself or herself capable. And that is the tragedy of the commons.

Where is Kenya's Church?

The images of men of the cloth laying hands on two of the ICC Four were disturbing. However, it is the spectacle of serving and retired men (and women) of the cloth cavorting with the GEMA and the KAMATUSA that raise questions about their fidelity to Christ's Ministry. The Church of Christ has always been a Big-Tent Organisation, welcoming all and sundry to its comforting confines. In the Church, one is no longer the member of a family, clan, tribe or ethnic community, but a member of a global community that accepts that Christ is Lord, that He died and resurrected, and that on the Day of Judgment, he will return to earth for the faithful who will spend eternal life in bliss in heaven.

The messages that Kenyans take away from the 'prayer rallies' and the Associations' 'conferences' have little to do with the message of unconditional love that Christ bestowed upon humanity. If we are to live in His example, then the subtle and hidden messages of hate and exclusion that the proponents of GEMA and KAMATUSA broadcast will cast us into the eternal flames of hell for all eternity.

Evangelical Christianity's roots are deep in Kenya and the political class has been quick to recognise the political benefits of having tame preachers on their side as they canvass for votes in the country. Images of candidate Ruto with a bible in hand have been broadcast on all leading TV channels. Images of Kalonzo Musyoka, Uhuru Kenyatta and Raila Odinga have been broadcast declaiming from pulpits in various churches across the nation. The impression that they are assiduously cultivation is that of God-fearing men who will do right by the Christian community in their hours of need, of which there will be many as Kenya weathers myriad challenges, especially in its implementation of the Constitution. But it is impossible not to conclude that their new-found closeness to men of the cloth, and their churches, has nothing to do with the faith of millions of Kenyans but the cynical pursuit of political power at the expense of everything else. When Kenyans were murdered in their church, I do not recall a single instance when the millions of Kenyan Christians being mobilised by their political leaders or, indeed, their religious leaders to not only offer succour to the survivors, but to scour the nation in search of the perpetrators of the heinous crime and see that they were prosecuted to the fullest extent of the law.

It is thus with fear and trepidation that I am transfixed by the images of men of the cloth praying for the success of their preferred sons and baying for the political blood of their sons' opponents. The place of the Christian church in Kenya as the repository of the morals and mores of the peoples of Kenya is slowly being supplanted by the political figure, eager to exploit a captive audience for his own selfish ends. Uhuru Kenyatta and William Ruto stand accused of masterminding some of the most heinous offences in Kenya's brief history. Their communities remain blameless despite the machinations of their opponents to link them to these offences. Crimes are not committed by communities but by individuals. It is thus with the two. The accusations are laid at their feet and not at the collective feet of either the Kikuyu or the Kalenjin. Anyone that says otherwise is an enemy of the people. So why would the men of the cloth from Mr Kenyatta's and Mr Ruto's communities wish to create the impression that their alleged persecution is also a persecution of the Kikuyu or the Kalenjin, or their churches?

One of the most shocking events was when a self-styled bishop chose to stand witness to William Ruto's innocence during the confirmation of charges hearings at The Hague and then being proven to be unreliable and, need I say, un-Christian in his characterisation of the politician or of himself. Asked of his efforts to offer succour to the displaced Kenyans lining in the Rift Valley, where his church is strongest, he could offer no coherent explanation why he had not made an effort even to visit even one of the camps that they occupied while he could find time to fly to foreign nations on his ministry's mission. It is so too every time we witness the dozens of preachers tail-coating the accused Kenyans, regardless of their prominence, every time they and their supporters launch polemics against their political nemesis. The millions of Kenyans who witness their escapades must wonder whether these men and women endorse the vitriol of the politicians and whether they will use their pulpits to cavil against the PM. Rather than preaching the Ministry of Christ, they seem to be preaching the opposite. The church is no longer a Big Tent; rather it has become the safe haven of the worst of the worst.

The Wild Card

Eugene Wamalwa continues to be underestimated. If the moxie his late elder brother demonstrated is anything to go by, with Eugene, still waters will run deep. A first time Member of Parliament, inheriting the late Kijana Wamalwa's Saboti seat on a PNU ticket, rather than the late Kijana's FORD-K. He has managed to pull the wool over everyone's eyes and now that he has been elevated to the Cabinet as the justice minister, it remains to be seen whether he will be the team-player Uhuru Kenyatta and William Ruto expect him to be. Received wisdom has it that he is merely a spanner boy, given the justice docket to ensure that whatever schemes there are underway to rescue the two fellow presidential candidates he will ensure that they are accomplished. It is presumed that Mr Wamalwa will loyally ensure the elevation of either Mr Kenyatta or Mr Ruto, though Mr Kenyatta than Mr Ruto, to the presidency by ensuring that the long arm of the ICC is stayed sufficiently long enough to guarantee that outcome. It is also presumed that Mr Wamalwa knows he does not have a shot at the presidency and therefore, he will be comfortable ensuring Mr Kenyatta's ascendancy for some post-election back-scratching of some sort.

The other narrative goes that Mr Kenyatta ensured Eugene's elevation is a signal to Musalia Mudavadi to get with the programme or be left by the wayside as happened in 2003. Then, Mr Mudavadi was Mr Kenyatta's running mate, refusing to dump KANU in favour of NARC and not just losing the election, but his seat which he had held since he inherited his late father's seat in 1989. Despite Mr Mudavadi's repeated protestations that he is not about to dump ODM, it is widely believed that should there be doubt as to the integrity of the presidential nominations in ODM, he will quickly find his way into the open arms of the Gang of Seven as their compromise candidate. These presumptions hing on one fundamental assumption - that Eugene will blithely sit by as Mudavadi is given a chance at the brass ring of the Kenyan presidency.

No one gets into politics to play second fiddle. No one declares an interest in the presidency using logic or rational decision-making faculties. Regardless of his chances at the hustings, it is entirely possible that Eugene will not so easily let go of the opportunity to stand for the presidency simply because it is expected of him by his partners in the Gang of Seven. And if the two main players in the G7 are flirting with the notion of a Mudavadi compromise presidency, it is entirely possible that Eugene may baulk at the idea that while his ethnic community is larger than Mudavadi's that he should be denied the chance to prove that he is the better-equipped candidate. Politicians have famoulsy large egos and Eugene's has now been bolstered by his elevation to the powerful justice docket. Power tends to corrupt.

The presumption that Eugene is just the spanner boy to Uhuru Kenyatta's ambitions is set to be tested in the next few months. The ICC has constituted a Trial Chamber to try the Kenya cases. The panel of lawyers appointed by the Attorney-General returned a verdict that there was no way out of complying with the ICC with respect to the Kenya cases. Mutula Kilonzo, the former justice minister, was very vocal that not only will the trials proceed but that Uhuru Kenyatta and William Ruto should not put themselves forward for the presidency until the trials are concluded. In other words, they should wait for 2017. Even the alleged reticence of the Chief Justice regarding the trials of Kenyans in a foreign court has been added into the mix, presuming that when a challenge to the ICC process finally finds its way to the courts, any appeal that finds its way to the Supreme Court will be handled in a manner designed to keep the Kenyan suspects in Kenya. The only wild card is Eugene Ludovic Wamalwa.

President Mwai Kibaki and Deputy Prime Minister Uhuru Kenyatta must be very confident of Eugene Wamalwa's loyalty to hand the justice docket to him. They must be sure that Mr Wamalwa will play according to their playbook and ensure that Mr Kenyatta's path to the presidency is unimpeded. If they are wrong about Mr Wamalwa's loyalty, there will be hell to pay down the road. Mr Wamalwa could use his newly acquired power to ensure that not only does Kenya comply fully with all the requests of the ICC but that Mr Kenyatta and Mr Ruto do not see the light of day ever again by ensuring that all evidence linking them to the crimes they are accused of is supplied to the ICC prosecutor. Mr Wamalwa is a presidential contender. His loyalty must supersede his desire to be president. If it does not, Mr Kibaki and Mr Kenyatta may be compelled to conduct another a re-shuffle and shove Eugene out of the very door that they shoved Mutula out out of. These are uncharted waters.