Tuesday, May 29, 2012

An unhealthy obsession

Just as Nairobians were beginning to feel that the Somalia adventure of Mwai Kibaki's government had finally been pushed to the fringes of the country (surprisingly, Mombasa and the North Eastern region are fringe), the nameless, faceless warriors of, presumably, al Shabaab struck once again, detonating an explosive device at a Nairobi landmark, Assanand's House on Moi Avenue, injuring dozens of innocents. Predictably, senior members of Mwai Kibaki's government, including posturing presidential candidates, did not wait long enough for the smoke to be cleared and the injured to be removed to hospital before they were, rather crudely, shoving the milling public aside so that they could get their opportunity before the TV cameras-and-microphones. Led by the Prime Minister, ODM's Raila Odinga, the politicians excelled at what they are good at: confusing the public and speaking at cross-purposes.

While Mr Odinga condemned unnamed terrorists, Internal Security's George Saitoti of PNU and his assistant Orwa Ojode of Raila Odinga's ODM were appealing to the public not to jump to conclusions until the security and intelligence agencies had sufficient information to make a public statement. The Commissioner of Police publicly speculated on the possibility of an electrical malfunction, speculation that was swiftly discredited by Kenya Power. Indeed, for the first time in a very long time, the City Council's fire brigade response was swift and effective, the fire being doused within minutes and the injured swiftly evacuated. The Kenya Police and Administration Police, quite obviously and rather surprisingly, still have not cue as to proper crowd management; TV images of a plainclothes officer losing his temper as he attempted to clear the blast scene of onlookers laid his lack of preparation or training bare for all to see.

Since the Kenya government decided on "hot pursuing" al Shabaab in late 2011, the police and intelligence agencies have warned of increased terror attacks against the civilian population, events that are now occurring with increasing rapidity. It was only a week ago that there were two other grenade attacks in different parts of the country. These tow followed brutal attacks at the Coast when a Christian gathering was grenaded too. What boggles the mind is the apparently fatalistic attitude Kenyans have adopted in the face of continued al Shabaab atrocities. many now bristle at the idea that they should be searched for weapons when entering public places or venues or vehicles. many will rush to scenes of emergencies whether or not they have the capacity or training to assist in managing the situation. In yesterday's attacks, if there had been secondary explosions the casualties would have been greater than the few dozens that were hospitalised.

There must be a special place in hell for the political class of Kenya and the bootlicking members of the press who slavishly follow and report on their every move. Nothing but an Act of the Almighty Himself, it seems, will prevent Kenya's army of news editors from headlining their news reports with the goings-on of the political class. Even yesterday, while there were Kenyans bleeding, and possibly dying, in hospital, nothing would distract the Fourth Estate from dwelling at length on the ICC Four, Musalia Mudavadi's and Raila Odinga's battle for western Kenya votes or the fact that William ruto is apparently feeling left out after Uhuru Kenyatta's rather spectacular coming out party for TNA. Now it is being whispered in dark places that the instability in Kenya is a ploy to delay the elections for at least two years by which time the ICC Trials will have been dealt with.

In our continued obsession with whether Raila Odinga's march to State House will be stymied by the combined efforts of Uhuru Kenyatta, Musalia Mudavadi, William Ruto and Kalonzo Musyoka, all one-time KANU die-hards, we continue missing opportunities to consider the kind of nation the Constitution mandates for us. Despite the lofty aims of the  social security provisions of the Constitution, because of their plurality and complexity, it is almost certain that none of them will be attained; those new social rights created by the Constitution will remain words on paper until we wrench our attention away from the preening prima donnas that are Kenya's political elite. For a class that has shown time and again that it is incapable of managing the affairs of state without dipping their greasy fingers in the till; that it cannot manage a crisis without stomping all over the evidence; that it will only unite the people in loathing them; our continued indulgence is becoming an expensive affair. If you do not think so, remember that even Mutula Kilonzo, a hard-eyed capitalist no less, warned that if Treasury refuses to release the Free Primary Education funds, he would go to Parliament and demand that they forego their Ksh. 3.6 billion gratuity so that it could be put towards education "Kenya's future".

Monday, May 28, 2012

And the Gay Agenda proceeds apace

Barack Obama, the Democratic US President, recently "finally" came to the conclusion that homosexual persons had the right to get married. An evolution that had been on-going since he decided to run for the US presidency in 2007 has finally reached its logical conclusion. In Kenya, meanwhile, the law continues to be the preferred weapon to keep same-sex sexuality in the closet that Kenyans are used to having it. Even when daily reminders of the homosexual scourge keep popping up with uncomfortable rapidity we are persuaded, whether rightly or wrongly, that this nation is firmly in the anti-homosexual column. But that cozy reality is about to be shattered.

The Constitution, contrary to what many think, does not explicitly ban homosexual acts or even homosexual marital unions. Some will argue that the explicitly stated right of a person of one sex marrying a person of the opposite sex also means that there is no right of a same sex marital union. Nothing could be further from the truth. The Committee of Experts, in one of its more inept drafting exercises, failed to use the one word that would have guaranteed such an outcomes. Had Article 45(2) been drafted thus "Every adult has the right to marry a person of the opposite sex only , based on the free consent of the parties", then even the Anti-discrimination Rule in Art 27 would not have applied. This rule, too, if it had meant to exclude homosexual acts would have not have used the words "including" and "or"  and thus the 17 grounds listed in Art 27(4) would have been final and exhaustive. Now, any advocate worth his law degree can make the argument that sexual orientation is not and cannot be a basis for discrimination while arguing for the amendment of the Penal Code to decriminalise "acts against the order of nature" (Ss 162, 163,  and 165) or the "unenumerated" right of homosexual couples to get married.

There is a common conflation of family with marriage, yet the two, while interlinked, are not the same. Even religious texts remain vague about the divine call to marriage, merely describing the mechanics of marriage rather than its divine sanction. Family is barely mentioned in the Bible. It has been inferred for centuries as akin to the Holy Family, but the only reference I can draw for the institution of marriage is in the Messiah's rejection of divorce, save for the offence of fornication (Matt XIX: 8). Social scientists on both sides of the debate opine variously on one hand that a heterosexual union is good for the children and on the other so too is a homosexual union. But it is in the steadfast refusal by the protectors of public morality of the pernicious effects of modernism on our social and cultural lives that the conservative, family-first movement fails to counter the onward thrust of the progressive movement.

Since the Union Jack was lowered and Kenyans were allowed to govern themselves, and especially since we declared Kenya  republic, many of the shibboleths that we cling to seem to be stuck in a time warp. While the United Kingdom has evolved beyond what it was in 1963 on social, religious and cultural matters, Kenya seems to have remained stuck, at least in some parts while other parts have leapfrogged even the British. The starkest development over the past twenty-five years has been the steady decline in family values and the sense of community a family inculcated in a community's right-thinking members. No one can argue that single-parent families are the cause for the spread of homosexuality, but it is indicative of the permissiveness prevalent in Kenyan society today. It is no longer fashionable, or even moral, to ostracise members of the community for certain lapses in judgment and it is only a matter of time before  our liberal predilections extend the limits of our moral tolerance to include men and women accused of unnatural feelings, and acts.

Even with the charge against liberalising the anti-homosexual laws being led by the likes of William Ruto and his acolytes in the evangelical Christian movement, if we truly want to re-create the Kenya that adopted and ruthlessly enforced Victorian mores, then we must do more to recreate the extended family and the sense of community that prevailed right into the 1980s. Instead of championing homosexual-promoting ideas such as free speech or privacy, we must ensure that everybody and his dog is able to take a real close look into our bedrooms to ensure that the person you are sharing your bed with is not only of the opposite gender but that they are your spouse, whether affirmed by civil or customary norms. But, and this must come as a shock for the Moral Majority, the Constitution we ratified in August 2010 is not designed to roll back the tide of time; it is meant to free Kenyans fro  the shackles of their leaders, their government, their pastor and their teacher. This is especially true of the homosexual population of Kenya.

Saturday, May 26, 2012

No game-changer in sight

Right out of the gate in 2003, the 9th Parliament decided to raise its pay-and-perks to astronomical heights and Kenyans went along with it. After all, 24 years of Nyayoism had come to an end and Baba Jimmi was promising a New Day and a New Deal. Fast forward to 2012, and the game is not yet done. The 10th Parliament, quite in contravention of the Constitution that it halfheartedly supported, is going over the peoples' heads and attempting to collect even more shillings than its record suggests it merits.

Representative government in Kenya has failed to meet the needs of the people. When one casts his eye over the shambles that are the education, health and public security sectors, one is astonished that the government continues to stand. The Executive has consistently failed to provide the tools that citizens need to better themselves. Jomo Kenyatta's promise to wipe out poverty, ignorance and disease has not been achieved, not by his, Daniel Toroitich arap Moi's nor Mwai Kibaki's governments. More and more Kenyans continue to access public goods that fail to meet the basic minimum standards for them to improve their lives or that of their children. The Legislature, the institution that should speak for the weak and downtrodden, is not only riven with rivalries but its members are more interested in lining their pockets than in checking the power of the Executive or making laws that will give hope to the masses. The Judiciary, even with the installation of a progressive Chief Justice, continues to fail to offer justice to the millions who come before it for the same.

We have now given to ourselves a Constitution that prescribes genuine checks-and-balances for our government, but we are determined to concentrate all our faculties on the inane and the insubstantial. Uhuru Kenyatta presided over the coming out party of The National Alliance Party just as his fellow Deputy Prime Minister, Musalia Mudavadi, presided over that of the United Democratic Front Party. Both have declaimed on the paucity of political integrity, conveniently forgetting that their entire careers have been devoid of the same integrity they claim to champion. It is the same with all the political stalwarts striding confidently abroad in the land. Their promises of change are mere words to be flung at the people in the hope that when the political dust settles, they will still continue to operate as they have for decades. None is willing to accept that the old way of doing things has consigned Kenya to second-class status in the comity of nations, begging for handouts from all and sundry. It is a sad testament that men and women who should think of their constituents instead demand their constituents' love and loyalty without giving back in return. The future, sadly, is not as bright as Kenyans think it will be. The forest may have changed, but the monkeys remain the same.

Monday, May 21, 2012

There is only one Barack Obama

Why are Kenyan politicians trying to evoke the spirit of Barack Obama's insurgent political career and why are the members of the news media encouraging this hubris? Barack Obama, the President of the United States of America, the son of a Kenyan father and an American mother, has had what can only be described as an extraordinary political career. His presidential success is a testament to the spirit of opportunity that infuses the American Dream. There is no equivalent in all of the world, certainly not in Kenya. While Kenyans are proud of the fact that Barack Obama's heritage can be traced to Kenya, they must certainly realise that his political career cannot be replicated in a country where there is no equivalent of the American Dream.

Uhuru Muigai Kenyatta, the Deputy Prime Minister ad Mwai Kibaki's apparently preferred successor attempted to channel the spirit of Barack Obama's political trajectory during the national launch of The National Alliance Party on Sunday at the Kenyatta International Conference Centre lawn. From the use of the TelePrompter to the use of lights and music, the launch of the TNA attempted to copy what is the staple of US political theatre today. His speech was redolent with the spirit of Barack Obama's speeches over the years. He attempted to portray the same image Barack Obama evoked when he chose to stand against Hillary Clinton in the Democratic Party presidential nomination race.What Mr Kenyatta attempted to gloss over was the fact that the life that Barack Obama led to his nomination victory, and to the US presidency, is not the life that Mr Kenyatta has led. While President Obama is the son of a single parent, his father having abandoned him at an early age to return to his career on Kenya, Mr Kenyatta is the son of great privilege, born in the State House and raised in great wealth.

President Obama's political awakening must be seen in the context of the racial politics of the US as with the traditions of the Democratic Party that go back to the Civil Rights Movement of the 1950s and 1960s. His has not been a charmed life; it has entailed sacrifice and hard work. His successes are a testimony to his strength of character and the choices he has made ever since he decided to become a community adviser in the 1980s and he joined local politics in Illinois. Mr Kenyatta, on the other hand, does not have a similar story to tell. If it was not for President Moi attempting to foist him on the people Gatundu in 1997, Mr Kenyatta would not have a political career to speak of. The decisions he has made over the past 15 years have not entirely been with the people of Kenya in mind, but with his advancement up the political greasy pole. Indeed, in contrast to the career of Raila Odinga, Mr Kenyatta has been a study in the contradictions inherent in the ambitions of the rich and powerful at the expense of the weak and poor. His charmed life is not one that is shared by the majority of Kenyans, but by the elite few that managed to use the State for their benefit, frequently at the expense of millions of Kenyans.

This is not to say that Raila Odinga can claim to have experienced what many Kenyans have, but in his frequent challenges against the system, he has articulated what many Kenyans have been unable to do without great personal harm or sacrifice. Mr Odinga's detentions at the hands of the State have allowed him to see the State for what it is and his attempts since the 1980s to bring a change in their circumstances have prepared him more than any other presidential candidate to date. It is Mr Odinga who should be evoking the spirit of Barack Obama and not Mr Kenyatta and the fact that the Prime Minister refuses to do so is testimony to his insight and intellect. Even he recognises that there can only be one Barack Obama.

County Commissioners are not the key to the next general election

The games politicians play cost us time, money and national cohesion. When Mwai Kibaki appointed 47 county commissioners as part of his programme for reorganising the Provincial Administration so that it conforms to the devolved structure, he seemed to be laying the ground for his preferred candidate in the next general election, presumably Uhuru Kenyatta, the Deputy Prime Minister and former Minister for Finance. Raila Odinga objected to the appointments claiming that he had not been consulted. Perhaps his objections had little to do with the lack of consultation with the President and more to do with the fact that he too would have wanted his preferred county commissioners in place for the general election. His anger was perhaps in recollection of the appointments the President had made before the 2007 general election to the Electoral Commission of Kenya, which he blamed for his loss to the President. Then, he had argued that by making unilateral appointments to the ECK, the President had not only ignored the principles behind the 1997 IPPG deal, but was packing the Commission with his appointees with the intention of rigging the general election in his and his party's favour.

Kenyan politicians do not trust each other, especially when the President uses the Provincial Administration as his preferred tool in the rigging of elections. The Prime Minister and his ODM colleagues do not know what the end-game will be in 2013, but their experience in 2007 means that they will not trust any changes that the President makes to the Provincial Administration without the substantive input, and agreement, of the Prime Minister. However, it is difficult to see how the elections could be rigged using the Provincial Administration, given that the Independent Electoral and Boundaries Commission has been structurally and functionally separated from other instruments of the Executive Branch. Indeed, if the ODM fears that the election will be rigged, they should consider the fact that the IEBC has gone to Parliament with a request for 35 billion shillings to finance the general election but Parliament is determined to allocate only 17.5 billion shillings, one-half of the sum requested. The IEBC claims that unless it gets the full amount approved and allocated by the National Assembly, their ability to hold free and fair polls will be compromised.

There are many moving parts in the machinery of a general election. With the next polls, the IEBC is called to ensure that the election of the national Parliament, the County Assemblies, Governors and civic leaders is as smooth as possible. After testing a tamper-proof electronic voter-registration and polling system for the Constitutional Referendum, the IEBC is determined to roll out this system for the whole country. This will cost a great deal in capital costs. The IEBC states that for it to hire the personnel and facilities required for the general election, it must have the funds to do so. Otherwise, it will have to operate with a smaller elections staff, and this may prevent the proper monitoring of its systems and processes, giving unscrupulous elements an opportunity to interfere with the integrity of the polls.

ODM is facing its own challenges in the run up to the general election. Because of its recalcitrance in accommodating Musalia Mudavadi's concerns, it gave him the excuse he needed to strike out on his own. The party's excuse that the party constitution could only be amended by its governing body, it ensured that he would leave the party, taking with him a significant number of ODM MPs and supporters. Coupled with the departure of William Ruto and his Rift Valley cohort, the party has effectively lost its Parliamentary majority. The party is therefore, looking for any and all excuses to prepare its claim for irregularity in the general election. It refuses to admit that the actions of the party leader and his Luo Nyanza cohort are swiftly alienating large chunks of the electorate, creating the impression that the party is a Luo party. Irrespective of the vacuity of Mr Mudavadi's and Mr Ruto's claims, and Raila Odinga's continued personal political popularity among voters, ODM is creating the circumstances that may ensure its eventual defeat at the polls.

Because of their desire to win at all costs, Presidential candidates are unable to address the issues that affect Kenyans. Rather than concentrating on these questions in their poll plans, they are reading intrigue and conspiracy in every move the President and the government makes. Perhaps the President knows this, so his Executive decisions are designed to give Mr Odinga and ODM something to concentrate on rather than selling their message to voters and allowing the ever-fractious anti-Raila brigade the opportunity to set their house in order. If ODM is to weather the next months successfully and prevail at the general election, it must start worrying about the how it is perceived by voters and not on how the Executive branch is setting the stage for President Kibaki's succession.

Vetting is just the beginning.

DBM Mosotah, writing in May's edition of the Nairobi Law Monthly, draws conclusions from the decision of the Judges and Magistrates Vetting Board to dismiss four sitting Court f Appeal of Judges from the Appellate Court, ruling that they are unfit to hold office (Purge of Judges heralds new era in the judiciary). Of course, we all agree that a new era was heralded by the dismissals of RSC Omollo, Emanuel O'Kubasu, Samuel Bosire and Joseph Nyamu; whether this era is as Mr Mosotah espies it is something that I intend to argue somewhat against.

First, let me join Mr Mosotah and point out that the Judiciary has historically been the institution that denied ordinary Kenyans their rights since colonial times. It is not enough to point out the perfidy of the Judiciary since Independence, but since its establishment. If it were not for the courts, hundreds of thousands of Kenyans would not have been deprived of their land, their political autonomy or their God-given rights. In the century that Kenya has had a Judiciary, instead of playing a ''civilising role', the courts have ensured that political, economic and social Darwinism prevailed: only the tough survive and the grubby, greasy, filthy, blood-soaked fingerprints of the Judiciary are all over the place. Second, I also agree that Justice Aaron Ringera's 2003 radical surgery was a fiasco, not simply because there was no sound constitutional or legal framework for the hatchet job, but because it was used by interested elements to advance their interests, not those of the public. If one doubts this, the reinstatement of Justice Philip Waki and his vindication by the Sharad Rao-led Vetting Board should be proof enough. Thirdly, because of the incestuous relationship between the Executive and the Judiciary, the rights of the people received short shrift. Testimonies by grown men in tears about the tortures they suffered at the hands of state agents and the indifference of the Judiciary are an indictment of an institution whose primary role is to uphold the rule of law and protect the powerless against the interests of the high and mighty. Until Dr Willy Mutunga was appointed Kenya's latest Chief Justice, it was doubtful that Kenya's judiciary would ever change direction. The unapologetic nature of the four disgraced Judges' testimonies before the Vetting Board is proof that individual members of the Judiciary continue to live in a past that has been condemned to the ash-heap of history by the Constitution and the collective will of all Kenyans.

I propose to re-write Mr Mosotah's lessons thus: First, the judiciary's duty is to promote and protect the rule of law against all enemies, whether Executive, Legislative or Judicial. This is what the Judiciary must do to secure the public trust. If it is incapable of applying the law impartially, without fear or favour, then regardless of how many judges or magistrates are sent packing, it will remain an institution that is reviled and feared in equal measure.

Secondly, at a minimum, all judicial officers must satisfy the terms of Chapter Six of the Constitution. It is not enough that in their personal and professional lives that they be blameless, they must ensure that in their civic lives too (tax-paying, law-abiding, etc) they lead exemplary lives to be emulated by right thinking members of the society. Therefore, instances of Judges swindling little old widows of their land, or being accused of attempted murder, or engaging with fisticuffs with members of the public should bring swiftly upon them the pitiless wrath of the Judicial Service Commission and their equally swift punishment and dismissal.

Thirdly, all judicial officers must avoid the temptation to one-up each other and go about their business professionally and, need I say, soberly. Apparently, the relationship between two of the disgraced judges was poisonous such that in the drafting of a ruling overturning the judgment of one by the other, such intemperate language was employed that it was specially mentioned by the Vetting Board. The only considerations that should come to mind as judicial officers conduct the business of the courts are the rules of the game and the proper application of the law. Otherwise, they can take part of their fat wallets and join tennis clubs.

Finally, they must avoid discrimination of all kinds. This is the Big One. Despite their personal circumstances or histories, judicial officers must only be influenced by the law. Joseph Nyamu disgraced himself in the Kadhis' Courts Case as did RSC Omollo in the Matiba Petition. Personal biases, such as they are, should be left on the judicial floor when the robe is worn and the people are demanding justice from the courts. Where judicial officers discriminate, whether slightly or egregiously, we must show them the same pitilessness they have shown us by setting aside the law and allowing their personal foibles to determine right from wrong, just from unjust.

Kenyans should not look at this process as part of the implementation of the Constitution; to do so means we shall miss the forest for the trees. We should look at it as one part of the process of building new and credible institutions. Seen in this context, the implementation of the Constitution ceases to be a series of event to mark the enactment of legislation, but a series of milestones overhauled as institutions are created, strengthened, empowered and made accountable to the people, from whom they derive their power. The institution must survive the individuals who exercise power within it, or who play roles of responsibility in it. Kenyans should get the chance to serve their fellow Kenyans out of a sense of duty and responsibility and patriotism, rather than as a sure-fire way of ensuring a fat bank account at the end of their working lives. If one thinks that unfit people are being discouraged from joining the Judiciary, then the spectre of law-school graduates', state counsels' and other young lawyers' desire to join the Judiciary because of the remuneration package should sound the alarms; it is this kind of thinking that leads to the corruption and fouling of an institution.

Farce or Tragedy?

It should not surprise us that the leadership of Kenya's many faith-based organisations is interested in the outcome of the elections, scheduled for March 2013. The largest bloc belongs, obviously, to the Christian community, led by the traditional organised churches such as the Roman Catholic Church and the Anglican Church of Kenya. In 2007, church leaders allied themselves with specific politicians and championed some of their goals. The result, if we care to remember, was that many Christians in Kenya forgot their Christian principles and engaged in an orgy of violence that claimed thousands of lives and billions of shillings in property damage. In 2010, once again, the church leaders allied themselves with the Red Campaign against the Proposed Constitution. During that campaign, a case that had been filed by evangelical bishops was decided by a Bench that included the disgraced Joseph Nyamu in which the High Court declared that Kadhis' Courts were unconstitutional. Their inclusion in the Proposed Constitution, as with the inclusion of a weak ban on abortion, galvanised, especially, the evangelical church leaders to campaign actively against the proposed draft. That their objections tended to align themselves with those of some politicians has been claimed to have been happenstance.

In the aftermath of the violence of 2007 ad 2008, many church leaders, especially those of the NCCK and the Episcopal Conference, expressed contrition for the role that the church may have played in fanning the flames of the violence. They declared that in future, the church would act differently. Many Kenyan Christians took them at their word. Over the past eighteen months, those promises now seem to be a cruel joke on the unsuspecting. When the Grand Coalition Government was formed in April 2008, it had four crucial agendas, including the investigation of the causes of the violence and the prosecution of its perpetrators. When it seemed that Prime Minister Raila Odinga and President Mwai Kibaki would be the main suspects, not only did the church leaders of Kenya support the trial of any suspects at The Hague, they did so in solidarity with certain politicians, including Uhuru Kenyatta and William Ruto. Truth be told, these men and women were not truly interested in justice for the victims of the violence, but in weakening the Prime Minister and preventing him from succeeding President Kibaki. When it was apparent that President Kibaki and Prime Minister Odinga were not the targets of the International Criminal Court, but that Uhuru Kenyatta and William Ruto were, all the pro-ICC voices backtracked, claimed that Kenya's reforms had proceeded far enough to guarantee justice for the victims (and the suspects), and demanded that the ICC suspend the process, refer the cases to Kenya and prove to the world that Kenya 'is not a failed state'.

Recent developments, however, raise the stakes to unimaginable levels. Uhuru Kenyatta's supporters, led by the ill-disciplined Kiraitu Murungi, have revived a hated association from Kenya's dark and corrupt past, GEMA, as have the supporters of William Ruto with the revival of KAMATUSA. In 2007, church leaders were content to peddle hate messages from the pulpit; in 2012 they have decided to join the campaign bandwagon by becoming closely associated with the politicians, and the politicians' messages, of their choice. The presence of so many god-men at the relaunches of GEMA and KAMATUSA should serve as a warning. When the results of the 2013 general elections are challenged, as they surely must, and the violence spontaneously erupts, the tinder will have been laid by church leaders even when the spark will have been lit by calls to resist the unacceptable results. History repeats itself; first as farce, then as tragedy. We have been warned.

Cookie-cutter liars!

France yesterday elected a Socialist President, the first since 1995 when Francois Mitterand was last in the Elysee. That Nicolas Sarkozy, the immediate former President was going to lose, is immaterial; what is not is the fact that the French voted along ideological lines, something that Kenyan voters are yet to internalise. What distinguishes Western democracies, and a few Asian and African ones, from Kenya is the fact that issues frequently supersede tribal considerations. Even the equally acrimonious elections in the United States that are contested by the Democratic and Republican tribes are ideological and the lunatic fringe of both tribes is usually relegated to the periphery during the general election. In Kenya, not surprisingly, our legacy has always been of a bitterly ethnicised electorate; our tribal identities are much stronger than our national, professional or even religious identities.

Recent developments reinforce this observation. Uhuru Kenyatta and his cohort from the Mount Kenya region have managed to create the impression that the Presidency is a Kikuyu bastion that others covet at their peril. Of course Mr Kenyatta and his counterparts have been very vocal about the need to unite the nation, eschewing ethnic rhetoric in favour of unifying slogans that should appeal across the board at all peoples of Kenya. But, the successful revival of the GEMA as a political kingmaker, and the exclusion and stifling of any whiff of opposition belies their national unity message. Mr Kenyatta is frequently surrounded by men and women from his political stronghold of Central Kenya, a majority of whom are members of the GEMA communities. It is the same story with William ruto and the KAMATUSA which despite its big-tent appearance is nothing but a Kalenjin outfit,controlled and owned by Kalenjins with the Samburu and Maasai merely making up the numbers but playing no substantive role in the outfit. It was also interesting to observe that the god-men that offered prayers during the recent meetings of these two outfits were god-men from the respective GEMA and KAMATUSA areas. So much for the Blood of Christ covering one and all.

Even the apparently most popular politician in Kenya is in danger of being reduced to a tribal kingpin rather than a statesman. Raila Odinga, the Prime Minister, is frequently surrounded by politicians from Luo Nyanza; and it is these politicians who act as the vanguard for the Prime Minister, taking one and all of his opponents and displaying their loyalty for the man they believe has revived and sustained their political careers. Deputy Prime Minister Musalia Mudavadi, on his way out of the ODM leadership and into UDF, took with him a sizable proportion of the politicians from Western Kenya, primarily Luhyas. His most vocal defenders are Luhyas, though the presence of Najiba Balala and Abdikadir Mohamed may have tempered what was surely a Luhya coming-out-party in Naivasha this past weekend. Surprisingly, the two politicians who do not seem to be ensnared in the traditional ethnic beancounting are Martha Karua and Peter Kenneth, but this may have to do with the fact that neither can hope to wrest from Uhuru Kenyatta the GEMA following so they have no choice to pursue a pan-national strategy.

While many will agree with the proposition that ideology is dead and that it never really existed in Kenya, they will have forgotten that in the '60s and '70s, when the global Red Menace was being fought, an ideological war was fought in Kenya with Mzee Jomo Kenyatta and his phalanx led by Tom Mboya were avowedly capitalist, while the likes of Jaramogi Oginga Odinga, Kung'u Karumba, JM Kariuki and Bildada Kaggia were equally avowedly socialist. With the inexorable personalisation of the power of the presidency and the destruction of the political party as an institution, ideology ceased to be a defining feature; greed and ethnic superiority did.

The seeds of corruption and impunuty that were sown by Jomo Kenyatta's regime and nurtured by Daniel Toroitich arap Moi's took root and have grown into the mighty Mugumo trees of Mwai Kibaki's KANU days. As result of these twin evils, the number of Kenyans dying of easily prevented diseases keeps rising, the number of mothers whose children die in childbirth keeps rising, as does the number of mothers who lose their lives during childbirth. Poverty and illiteracy straddle the land like colossi. Youth unemployment remains stubbornly high and Kenya's economy remains a hostage to the diktats of the mandarins of the IMF and World Bank. And the solutions the likes of Raila Odinga, Uhuru Kenyatta, William Ruto and Musalia Mudavadi have for the peoples of Kenya are the cobbling together of ethnic coalitions to defeat one or the other.

Their economic policies are the same; their security and defence plans are the same; their foreign policies are carbon copies of each other; as are their education policies and governance reform ideas. And no wonder. Regardless of their rhetoric, they have all at one time or another been members of the same government and they are all bereft of fresh ideas. When they promise to chart a new path for the country it would be impolitic to accuse them of lying but it would still be true. They are indistinguishable from one another and in their lack of ideological convictions of any kind they continue to condemn this nation to ills that should have been cured a generation ago.

What will Mudavadi do?

The Deputy Prime Minister and former Minister for Local Government, former Deputy Leader of the ODM and the current Member of Parliament for Sabatia made his grand announcement this past week, ditching-but-not-quitting ODM and joining the UDF, a suspicious outfit that was meant to be and still might be yet Uhuru Kenyatta's vehicle of choice after he too ditched-but-did-not-quit KANU, Kenya's Grand Old Party. David Makali, one half of Citizen TV's political talking heads, sees a grand conspiracy in the making. Uhuru Kenyatta and Musalia Mudavadi, both DPMs, go back a at least a decade to when both ran for the top job in 2002 and lost. Musalia Mudavadi got the short end of that stick by not just losing the contest to NARC's Mwai Kibaki but also his Sabatia seat. Now both have effectivley abandoned their parties with Uhuru ditching KANU and Musalia Mudavadi ditching ODM and both accusing Raila Odinga effectively of being a dictator-in-waiting.

His Sunday Live interview with Julie Gichuru revealed a person overwhelmed by his circumstances. Asked about his top priorities for his administration he gave a rambling list that seemed to be tied to the state of the economy. Or insecurity. It was difficult to tell. That he seems sincere is not enough. The challenges that Kenya faces at present ill challenge even the best of them, but Mr Mudavadi seems to be operating under the assumption that because he is sincere he will be able to surmount these challenges simply by 'bringing people together' forgetting that the experience of the coalition government over the past eight years has demonstrated that good deeds are not enough to get the government working. In the past he has demonstrated the spine many wish he has and it will take more than exhortations and courtesy to get things going. Every now and then he'll need to take a strap to his opponents and get them in line. The determination he demonstrated when he left ODM is must be coupled with political ruthlessness to ensure that his programmes are implemented properly. If he cannot grasp this simple truth, he is better off representing the people of Sabatia and not ruling this fractious nation of ours.

Mr Mudavadi, and is fellow presidential contenders, must realise that the presidency is no longer the lone-ranger imperium it used to be. Dr Mutunga has demonstrated that the Judiciary will no longer be the Executive's lap-dog and Adan Keynan has forcefully reinforced the independence of the National Assembly. If the President is to achieve the objectives of his government, he will have to learn to work with the National Assembly, the Senate, and the various County assemblies without running afoul of the independent Judiciary. It will be difficult at the best of times but it will be doubly so with the possibility of a divided Parliament and a Judiciary determined to flex its muscles all the while dealing with County governments out to grab as much for themselves from the national kitty. Sadly, Mr Mudavadi does not demonstrate the qualities required to handle the challenges of the job. Perhaps his choice of running mate will balance his lack of true executive experience. Perhaps.

It will not get better any time soon

The heavy rains over the past few weeks have exposed the depths to which this nation has sunk. In the eighties, just as Nyayoism was taking root, the streets and surface drains were free-flowing. Garbage was the responsibility of the City Council of Nairobi and the sewerage ever blocked. One still needed to go through every single step required to buy land and build a house on it. By the mid-nineties, it was clear that Nyayoism was but a camouflage for the gross corruption that had taken root in the government; it had become a weapon to be used against the few that had chosen to take a stand against the greed of the ruling KANU apparatchiks.

Today, though, if you are lucky enough to be in the middle class that can afford a set of wheels, the rains have proven that the Nairobi local government is an abject failure and its recent ISO certification is a cruel joke. Driving in Nairobi in the best of times is a nightmare. Millions of man hours are lost every year to productive workers stuck in traffic. Millions more will be lost this year because of the rains and the havoc that it keeps on wreaking on the free flow of traffic. It is natural to blame the rain for the chaos, but it would be better to lay the blame on a combination of factors from the apathy of voters to the corruption in the City Council and the Ministry of Local Government to the liberalisation of the transport sector (after the collapse of public transport) to the impunity that infuses every aspect of our day to day lives. Anyone that can claim to be an honest citizen under these very trying circumstances should be awarded an Oscar for their performance.

If one examines traffic-congested cities around the world, one feature stands out: large-scale mass transit systems that may be losing money but also ensure that large swathes of the middle classes use their vehicles infrequently but instead rely on rail and bus transport to get to their places of employment in the shortest time possible.  Nairobi, until the KANU system was done with it, had an effective and efficient bus transport system that was not only predictable but affordable for the millions that used it every year. The road network, though inextensive, served the few thousand drivers on the road well and the pavements catered for the hundreds thousands more who walked to work. Today, you either drive to work or ride the inefficient bust system. In the hierarchy of pubic transport, at the bottom you will find the fourteen-seat matatus that have become the bane of public transport in Nairobi, then the evil twins of the City Hoppa and City Shuttle bus companies, then the myriad SACCOs that run bus companies then the Kenya Bus Service and the Double M company.

Coupled with the failure of the government to anticipate the requirements of the travelling public and the failure of local authorities to police all developments in their jurisdictions, the traffic challenges are set to get worse if there is no intervention. The flooding occurring in parts of Nairobi's suburbs and exurbs are proof that our obsession with profit over social good has come back to bite us. The hours motorists spend stranded on the road to and from work are an indictment of the City Council and its ilk for failing to manage developments of all kinds and permitting developers to run roughshod over the little people in their quest for ever greater profits. As a result, roads are built but they are poorly designed to cope with the increasingly massive numbers of drivers, housing developments are going up but they do not take into account things like topography or hydrology, and public transport keeps going to the dogs while our elected representative rent-seek with the best of them. Like Chairman Mao said, it is darkest before it goes completely black.

Thursday, May 10, 2012

Where is the proof Mr Abdullahi?

For an apparently bold crusader, Ahmednasir Abdullahi, the proprietor of the Nairobi Law Monthly, can be maddeningly, frustratingly cavalier in his presentation of evidence to support his myriad causes. In this month's issue of the venerable anti-Establishment magazine, Mr Abdullahi declares without equivocation that "The government of President Kibaki is not committed to such a trial" (Hidden card in Kibaki's fresh push for local tribunal, Nairobi Law Monthly, May 2012). Mr Abdullahi is, of course, talking about the imminent trial of four Kenyans at the International Criminal Court at The Hague for crimes committed in the aftermath of the 2007 general elections. Without a shred of proof, he bolsters his allegation with wild such statements as "the Kenyan police have refused and resisted to test the pain and pleasures of reforms" and "In fact, the Office of the President is not committed to police reforms and remains the biggest stumbling block to police reforms".

When Mr Abdullahi and the Nairobi Law Monthly decided to go after the Kenya Electricity Generating Company (KenGen) and its boss Eddy Njoroge over tenders awarded for the drilling of geothermal wells, they had the foresight to publish evidence that supported their claims. As a result of their efforts, the Director of Public Prosecutions has taken up the matter and it remains to be seen whether the evidence unearthed by them will be sufficient to support a prosecution of the KenGen boss. This, however, is not the case in the current campaign against the President and his administration with regards to the post-election violence, the trial of the four Kenyans at the ICC and the reform of the police.

Beginning with the police reforms, even Mr Abdullahi must admit that while ordinarily the buck stops with the head of government, in Kenya, Mwai Kibaki and Raila Odinga, the Prime Minister, have so given their respective Ministers a free hand to run their ministries as personal fiefs that they have become almost a law unto themselves. For this reason, it is important to examine the actions and motivations of the Minister of State for Provincial Administration and Internal Security, his immediate former Permanent Secretary, and the Commissioner of Police and Commandant of the Administration Police. Prof George Saitoti took over from the frighteningly effective John Michuki whose campaign against the Mungiki was as illegal as it was effective. Both were served by the able and competent Francis Kimemia, now the acting Head of the Civil Service. However, it is the decision by John Michuki to build up the fighting capacity of the Administration Police that must be examined in the context of the on-going reforms.

During the referendum campaign, Mr Michuki and Prof Saitoti were opposed to stronger independent civilian oversight of the police forces as well as the creation of a unified command under the Inspector-General. The regular police had become a most reviled institution and its reforms could not be stopped, both ministers understood; but the faith accorded to the Provincial Administration at the grassroots, a faith that took in the Administration Police, was something they could exploit to create an alternative force that had the goodwill of the people. Given the frequently quasi-judicial roles the Provincial Administration played and continues to play in rural Kenya and its power to enforce its awards through the Administration Police, Mr Michuki, Prof Saitoti and Mr Kimemia must have calculated that the majority of Kenyans would not be opposed to the continued existence of the AP, especially, in one form or the other. Thus, the billions that have been lavished on them since 2003 explains the modernisation in their equipment, training and tactics and the creation of specialised unites like the Rapid Deployment Unit. But very few Kenyans recognise the pivotal role the APs played during the 2007 general elections or in its aftermath; all eyes are on the corrupt and perfidious regular police. Resistance to the reforms in the police service probably will persist now that the two forces are under the command of the Inspector-General, because it will be impossible for the two to be used in the manner that they were in 2007 and 2008.

Now, as to the case of the post-election violence and the trial of the four Kenyans at the ICC, all can remember that the pursuit of statutory measures to have the trials in Kenya were spearheaded by both the President and Prime Minister. President Kibaki, and even recently the Prime Minister, has never shied away from his desire to have the investigations conducted by Kenyan prosecutors or the trials held in Kenya. There is nothing ulterior about his continued desire for the same today. In the past it has been easy to dismiss the sovereignty argument on the basis that Kenya made its bed by signing the Rome Statute, and by allowing the Waki Envelope to be delivered to the ICC prosecutor, and it must now lie in it. Without being glib, Kenyans must be forced to confront the fact that even while the British government and many NATO countries are signatory to the Rome Statute that establishes the ICC, all the investigations into crimes covered by the treaty and the subsequent prosecutions have been in Africa and against Africans. We cannot bury our heads in the sand and pretend that this is not colonialism by another name; the white man taking on the burden of the ungovernable Dark Continent and carrying on his civilising mission in the face of such strong odds. The United States and the Republic of the Sudan are not signatories to the Rome Statute, yet it is Omar Hassan el-Bashir who has been indicted for his government's role in the Darfur while George W Bush, former Secretaries of State Colin Powell and Condolleeza Rice, and US military commanders in Iraq and Afghanistan walk Scot free.

They all fall, eventually

The member of the National Assembly for Mumias East is a spectacularly unpleasant character. But he is not unique. A former member of the Na...