Thursday, August 29, 2013

No. Parliament is incompetent to summon JSC.

The fetishisation of the Constitution, indeed of the law, is a mistake. If we are going to make an idol out of the law, at least let us pretend to do all that a religion requires, like learning the catechism, for our new religion. To make this new religion a success we must understand what the chapters and verses of the Constitution say and what they mean. Without that essential ingredient, then it will be as if the high priests of this new religion are taking us for a ride the same as those myriad one-church fly-by-night preachers who make our lives miserable.

Chuma Mwendwa, writing in the Daily Nation, suggests that the Judicial Service Commission must obey the summons issued by the Justice and Legal Affairs Committee of the  National Assembly under the provisions of Article 10 of the Constitution, as well as, rather oddly too, Article 173 on the Judiciary Fund (Why JSC should appear before the House, 29/08/13). Mr Mwendwa is wrong. The only relevant provisions are Article 251 of the Constitution on the removal of a Commissioner in a constitutional commission and section 12 of the Judicial Service Commission Act, 2011, on the suspension and removal of the Chief Registrar. The allegations and counter-allegations made by the Judicial Service Commission and the Chief Registrar can only be resolved either by the removal of the members of the Commission from the Commission or the dismissal of the Chief Registrar from office.

No one disputes that Parliament has the power to investigate the Judicial Service Commission; however, Parliament does not have the power or authority to summon members of constitutional commissions. Commissioners may choose to appear before parliamentary committees and if they choose not to, they cannot be compelled to do so. Parliament is not a court of law and it does not enjoy powers of a court, even if Members of Parliament think it does. If their lawyers are advising them that they have that power, someone should swiftly disabuse them of this erroneous interpretation of the relevant law.

The dispute between the Chief Registrar and the Judicial Service Commission is the JSC's fault. We may not like the idea of a person being investigated not being suspended while the investigation is being conducted, but that is the law that we have on the books. We do not have a law that says the JSC can make things up as it goes along. The JSC was wrong to suspend the Chief Registrar without informing her of the decision to do so and without giving her an opportunity to challenge the decision.

The JSC must have information that compelled it to act as it did. But this information is worthless if the JSC refuses to obey the express provisions of the law. In this case, section 12 of the Judicial Service Commission Act enumerates the steps that must be taken before the Chief Registrar is suspended from office or removed. The JSC disregarded these provisions. Now we will never know if the Chief Registrar is a crook or not.

The parliamentary committee has also misread the law. While it has power to investigate, its investigations do not empower it to summon members of constitutional commissions or holders of independent offices. Parliament does not even have the power to dismiss the holders of offices in constitutional commissions. It can only investigate and recommend to the President the appointment of a tribunal to investigate further and recommend whether the individual commissioners should be dismissed or not. In its investigations the parliamentary committee can summon any other person or it can receive information and testimony from any other person. It failed to exercise this power. All it needed to do was summon the acting Chief Registrar, Deputy Chief Registrar Kaikai Kissinger, and ask him to provide the information it required to make a decision in the matter.

Mrs Shollei, the Chief Registrar, has gone to the High Court and the High Court, after hearing her, has suspended any investigation into her affairs as Chief Registrar. But the decision to allow the parties to negotiate a settlement is wrong-headed and illogical. If Mrs Shollei did what was alleged by the JSC, then she is unfit to hold office. If the JSC was wrong to suspend her as it did, then it cannot competently discharge its duties. One or the other must go. The decision of the JSC risks destroying the Judiciary's newly stellar reputation.

The buck stops with the President.

Long-distance runners in Kenya are national heroes. You would not know it to look at Athletics Kenya, the dysfunctionally managed institution at the heart of management of athletic sports in the country. If not for the international exposure Kenya's top athletes receive, and the fact that athletics, generally, are solitary sports, athletics would be in the shitter. This, sadly, is the situation the most popular sport finds itself in: football.

Football and athletics are the oldest and most popular sports in Kenya. Despite the on again, off again success of other sports - cricket, volleyball, swimming, hockey, tennis - Kenya is defined by its athletes' prowess in the marathon and long distance races at the Summer Olympics and other global athletics events, and its utter dysfunction in the management of football and development of top talent in the sport.

Uhuru Kenyatta and William Ruto, in their manifesto, promised to make significant investments in the youth of Kenya, specifically in identifying, nurturing and promoting talented athletes. Their manifesto promises to invest in the development of athletics and sports programmes, and infrastructure, so that the youth of Kenya can develop other talents than those tied to offices or factories. The Sports Bill, 2013, is supposed to be a part of their strategy. It, however, epitomises the wrongheadedness of the Jubilee government's approach to youth development in general and sports management in particular.

A fallacious proposition has gained currency in Kenya: the solution to any problem is legislation. Football, and sports, in Kenya is in the crapper. To rescue it from total collapse, we must enact a new law to deal with the problems that bedevil the sport. Thus the Sports Act. The effect, however, is unanticipated. Instead of miraculously reforming the administration of football in Kenya, it gives rise to new bureaucratic fiefdoms.

Because of the incessant clamour for a law to deal with this, that or the other from the myriad of specially interested groups that collectively call themselves civil society in Kenya, there is a new industry too: the creating, and staffing, of new public institutions. This is the case in sports. When Kenyan athletes descended on Moscow's Sheremetyevo International Airport for the 2013 IAAF Championships, in addition to their coaches and managers, training partners and physicians, they were accompanied by an equally large delegation of government officials whose role in Moscow remains murky to date. Rather than restructure sports management in Kenya, or hold sports' federations' managers to account for their work, the Sports Act simply gave the erstwhile Youth Ministry the motivation it needed to create new positions and to staff those positions with career public officers with as much knowledge of sports management as a child has in neurosurgery.

More Kenyans than at any time in the past fifty years watch the English Premier League. It is more popular than the Kenya Premier League not simply because the EPL players are better, though many are, but because the KPL is not a joy to watch, its matches are not a joy to attend, and its reputation as a shambolic system overseen by a cabal of gangsters and petty thieves is yet to be sullied by professionalism. Many Kenyans live in the absurd hope that the budding relationship with Super Sports will clean up football management in the KPL. The election of the likes of Sammy Nyamweya to head Kenya's federation should swiftly disabuse Kenyans that sunny days in Kenyan football are ahead for the sport.

While it is laudable that the Jubilee government intends to build, or finance the building of, stadia around the country, the government coffers are empty. This is a promise that will not be realised in the 5 years that the government has. And if the government finances the construction of sports stadia, it is almost certain that during the tendering process, the graft that will ensue will rival Goldenberg, Triton and Anglo-Leasing. The public-private-partnership route is a route to disaster too.

The solution, as this blogger keeps harping on, lies not in enacting ever more laws to solve our problems. The solution lies in observing and enforcing the ones that we have now. The Sports Act is a fact of life today. Its repeal is not on the cards and probably never will. Therefore, why not implement its provisions properly for the good of sports in Kenya? The sports "managers" we've had for the past five decades have proven to be millstones around the sports' collective necks. If the Act can provide a way of replacing all of them with sports management professionals, that is a course we must zealously pursue. If the Act can ring-fence sports funds and sports revenues from the usual hyenas, that should be done. It is the responsibility of the President to ensure that it is done. if he hides behind weaselly words as "the Cabinet Secretary is responsible" or "it's the sports commissioners fault," we must call him on it. The buck stops with him. If he manages to ensure that all sports' federations are managed without the whiff of mysteriously depleting bank accounts or suspicious grumbles amongst sportspersons, whether he builds new stadia or not will not matter; he will have done more to rescue sports in Kenya than any other President in history.

Wednesday, August 28, 2013

Be careful what you wish for.

Those whom the gods wish to punish, they answer their prayers.
The push-and-pull over whether the National Government is implementing devolution faithfully is misplaced. Devolution fails or succeeds on how ell the 47 men elected as governors perform. They have, so far, and in concert with their Senators, fucked it up six ways to hell. All, bar none, came to office with a misguided sense that they were akin to Governors in the United States, with "constitutions" of their own, "federal powers" and authority to "raise revenues" as they saw fit. They are not, have not and do not. Counties, regardless of the lofty title, are glorified local authorities and governors are no better than mayors or council chairmen. No more. In fact the only governor who recognises this as his true position is the governor of Nairobi City County. Rather than accompany his party leader to the United States, where he could not possibly draw the proper lessons, he accompanied the head of State to the Middle Kingdom, where he probably would.

Kenya's devolution structure may contain the nomenclature popularised by the United States and India; in reality, it is very similar to that of the People's Republic, minus the overweening central government. Counties cannot "tax" in the traditional sense; whatever revenue they raise by "borrowing" must be approved by the National Government. As must all their expenditure plans, lest these endanger the national economy. Counties do not have police services of their own, the nearest being their "inspectorates" that are not akin to the disciplined police. They have no impact on foreign policy or National Economic policy except as followers rather than pace-setters. Perhaps Nairobi City and Mombasa may one day, because of the local revenues they will generate, rise to the level of national pace-setters on political, economic and foreign policy. That day, sadly, is not today.

The relationship between the counties and the Senate remains tentative. Governors are not sure that the hyenas their counties sent to Nairobi have the balls to do the right thing when it comes to devolution; the Senators, on the other hand, think that they left their counties in the hands of complete morons incapable of managing money or personnel in a responsible manner. It is why governors feel more comfortable striking individual deals with the National Government, especially with the National Executive, rather than pursuing the more long-term-oriented Senate path, where more or less permanent legislation will secure their positions and the Senate is attempting to bolster its prestige by raiding the Constitution for non-existent additional powers and functions. The National Executive, of course, has taken advantage of the situation.

When the Senate and the governors begged, piteously, for the full transfer of functions, the National Executive pretended to hem and haw before, in one fell swoop, doing just that. Then it pushed the Senate and the governors into a harebrained scheme to amend the Constitution. Without the benefit of guidance, both the Senate and the Governors will come to a bad end because of their iniquitous greed. All, when their backs are to the wall, will admit that counties are in no position to perform all the functions enumerated in the Fourth Schedule to the Constitution; they can barely account for the limited functions that had been performed by the former local authorities. Nairobi City and Mombasa can barely afford to pay their workers. If the full transfer of functions is accomplished before the counties are ready to perform the functions, or ready to properly manage the resources that will accompany those functions, this might be the catalyst for serious constitutional amendments that end with the extinction of devolution as we know it, the expunging of county governments from the Constitution for all eternity, and the unlamented death of the Senate.

Why won't the JSC admit it is wrong?

Gladys Boss Shollei accused her employer, the Judicial Service Commission, of abusing its power, behaving in an arbitrary manner, and unlawfully asking her to "step aside" while it investigated mysterious claims against her. At least that was the substance of her application in the High Court. The Judicial Service Commission, on the other hand, was convinced that its Secretary, the Chief Registrar of the Judiciary, the erstwhile Ms Shollei, had a long-fingered interest in procurement decisions made in the Judiciary, that she was capricious and difficult to work with, and that she had dictatorial tendencies that simply had to be investigated. That at least is the innuendo surrounding the Judicial Service Commission's decision to send Ms Shollei on forced leave while it investigated the mysterious claims made against her.

Ms Shollei has every right to protect her reputation; she, however, does not have a right to lie and cheat in order to prevail against the JSC. So far, she has not been accused of lying or cheating. So far, the High Court seems to agree with her: the JSC acted in bad faith when ti did what it did. In a civilised society, at least the ones that we compare ourselves to in the West, when a person is aggrieved by a decision of their employer, they go to court. Ms Shollei acted in a civilised manner.

Once a court is seized of a matter, there are several possible outcomes. The court can hear all the parties (or one of them in extraordinary circumstances) and make a decision; it may refuse to hear any of the parties and ask them to resolve the matter without resorting to the court process; or it may hear part of the case and suspend proceedings while the parties negotiate an agreement. Majanja, J., seems to have chosen to hear Ms Shollei before directing her and the JSC to negotiate a settlement.

This is where it gets murky. Ms Shollei, as Chief Registrar, and the Judicial Service Commission, are public institutions. If one or the other acted improperly, the consequences are significant. Either one or the other cannot be trusted to discharge their functions competently, honestly or with the national interest in mind. Therefore, the negotiations between the Chief Registrar and the JSC can only result in one or the other admitting that they were wrong. If it is the Chief Registrar, prosecution for impropriety must follow her admission. If it is the JSC, the President must appoint tribunals to investigate the members (and the tribunals can only reach one conclusion given the admissions made). The JSC precipitated this situation; if it admits it is wrong then all the JSC's claims of spearheading "reforms" in the Judiciary will be mere hot air and a waste of our time.

Whatever we feel about the laws and regulations that seek to civilise us, we cannot pick and choose which laws and regulations are convenient to observe, and which ones are not. The members of the JSC include well-trained, experienced and respected lawyers. How is it that they looked at the provisions of the law and chose to ignore them? Even in the absence of key members of the Commission, before the Commission took the precipitate step, why did it not obtain the opinion of an unbiased third party? It is the JSC that is to blame for the situation, not the Chief Registrar. Whatever the Commission feels of the rules regarding the dismissal or suspension of the Chief Registrar, or the Code of Regulations of the Public Service, the Commission was not at liberty to make things up as it went along. on that ground alone, regardless of whether the proof of what they allege against Ms Shollei is found, they must compensate her and reinstate her to her office.

Tuesday, August 27, 2013

It's all about preserving face.

Juristic persons, that is things like companies, political parties or even states, are not moral beings. The officers of these beings may or may not be moral beings, but juristic persons have no human personality to which we can ascribe feelings or morality. they exist as their creators intend them to exist and they do what their creators intend them to do. No more and no less.

Kenyans frequently forget to make this distinction when reacting to what a juristic being has done or been accused of doing. Take, for instance, the scaremongering perpetrated - by men who should know - over the recent economic and financial deals struck between Kenya and China. Some commentators and editorialists have argued that Kenya should be wary of the intentions of China; that because China has a record of getting into bed with dictators and such like, Kenyans should ensure that Kenya does not end up with a dictator at home fronted by China.

States, especially so, do what they must to serve their purposes. Frequently, their purposes are the purposes of the men and women who form the government, whether they be in the Executive or the Legislature, and on some very rare occasions, in the Judiciary. For the most part, however, it is the National Executive that determines what that "purpose" is, and the National executive is frequently the President and his closest advisors (not even the Cabinet).

So, if your president is a deeply moral individual (that is, he makes decisions based on whether they are morally right or not), then your nation will be seen as a moral state. If he is not, it will get the reputation of China, which is frequently accused by many of being a handmaiden to gross human rights abuses. The problem with that perception (other than the image of hypocritical politicians declaiming on Chinese amorality) is that it focuses too much on China and not enough on China's so-called client-regimes.

Despite the accusations and indictments levelled against our President, for example, and despite his sometimes bare-knuckled political Kung-Fu, Kenyans generally repose great faith in Uhuru Kenyatta. Indeed, many believe that even if he is not a "good' Christian, his neither amoral nor immoral. Some will argue strongly that he is a deeply moral man. There is nothing to suggest otherwise. But the decision to invite ever greater investments by China in Kenya suggests to many that he is becoming, at the very least, amoral. They are wrong. He is doing what he is doing because he knows, or believes, that it is the right thing to do in the interests of the nation. And that is as it should be.

It is irrelevant what your personal feelings are. When you occupy a national seat of power, the decisions you make (in addition to preserving your power or authority) must be made with the good of the nation in mind. If this means supping with the Devil, the only consideration should be the length of the spoon. Dealing with the United States, the United Kingdom or the European Union is an endurance test for Kenya; we must endure publicly humiliating lectures on our "human rights record" or our "pace of democratisation." With China, if there are any lectures to be given (or threats to be made), they are done in private, where the leaders can arrive at an understanding that preserves the semblance of comity, builds up the confidence of the people in their government, and our standing on the world stage.

Monday, August 26, 2013

Scrap the Senate. It has outstayed its welcome.

We also need amendments that give life and meaning to the Senate. The irony here is that those Senators crying that they have been neutered are the selfsame MPs in past life who during the constitution-making process conspired to water down the powers and functions of the Senate. - Macharia Gaitho, Daily Nation (26/08/13)
When the Harmonised Draft Constitution was finally presented to Kenyans to comment upon, an overwhelming majority of voters focused their minds on the structure of the National Executive. They debated, and fought, over whether the National Executive should be presidential or parliamentary. The structure of Parliament did not even feature in the top ten concerns of the electorate. It did not receive the attention that was received by the Abortion Question, the Two-thirds Rule, the Land Question or Devolution. There were flaws, for sure, in the Harmonised Draft; we chose to ignore them in pursuit of narrow points-scoring.

This blogger does not believe that the Senate needs to be "strengthened" or its role in the government of Kenya "clarified." The Senate is not the Upper House that Senators believe it is. It was not conceived as such. It is the institution whose principle duty is to protect devolution. They have done a piss-poor job of protecting devolution because the Majority and Minority Leaders in the Senate are very, very busy playing handmaiden to political colossi in the form of Uhuru Kenyatta and Raila Odinga, respectively.

Kithure Kindiki may be a respected and accomplished lawyer; he is completely useless in the political arena. Indeed, Moses Wetangula is a not only an accomplished lawyer, he is also an accomplished politician but in the Senate, he is completely wasted. What the two have managed to do over the past six months is to demonstrate as starkly as possible that the Senate is a chamber of no use and should be scrapped.

Rather than plan for the inevitable, they have gone looking for new powers to exercise and new functions to perform. they have done everything they could other than what they should. They have given scant attention to the devolution process and allowed it to be hijacked by the National Executive, the public service, sundry irrelevant commissions and authorities, and political players out in the cold with idle hands ready for the Devil's work. And instead of refocusing their attention on their jobs, they have picked fights with the National Assembly and the National Executive, receiving the hiding they richly deserve at every turn. Very soon the Supreme Court will disappoint them too.

Why they believed they could style themselves as American Senators without the power to do so beggars belief. A cursory comparison of the US Constitution and the Kenya Constitution would have clearly shown that the two chambers are as similar as chalk and cheese. The US senate enjoys great power; the Kenyan one does not. The Kenyan one is the equivalent of a glorified debating society which will only be roused when it is time to take part in the budget-making process. It does not enjoy one single veto power over anything. If there are amendments to be considered regarding the Senate, the only sensible one is how to scrap it and transfer its functions to the National Assembly. At the very least, it will bring down the massive wage bill for those characters. Kenyans would definitely approve that.

Amendments are political. Deal with it.

This blogger has argued in the past that Kenya is not benighted because of politics but because of its politicians. It is why this blogger is disappointed by the calls not to politicise the Constitutional Amendment Question that is abroad in the land today. No less an authority than the Daily Nation begs Kenyans not to politicise the issue. With all due respect those asking for the elimination of politics from the Constitution Amendment Question are wrong.

The Constitution is a political document; the process of amending it is necessarily political. Into this mix it would be near impossible to amend it without the participation of politicians. Indeed, the men and women likely to lead the process of amending the Constitution are politicians. Of course the Constitution is not just political; it is also a moral, social and an economic document. It is the principle tool for the organisation of our lives, our relationships and our government. If there are flaws in the document, these flaws must be ironed out through the only process available for the resolution of political, moral, social and economic problems: the political process.

How do those asking for the elimination of politics from the process propose that the Constitution be amended? Perhaps they think that an external institution can do the job for us. This line of thinking is dangerously flawed. Kenyans did not trust its politicians in 2008 to spearhead the drafting of a new Constitution. It is why they placed great hope in the Committee of Experts. This was a direct consequence of the betrayal by politicians after the Bomas process. If it had not been for Bomas, and the fallout among the principle players in the NARC administration, there would have been a different outcome after the 2005 referendum.

The Committee of Experts did the best they could with the flawed drafts they were working with. But at the end of the day, the final arbiter of what was to be presented to Kenyans was the least trusted body in Kenya: the Tenth Parliament. Unless you have been living on Mars, you must recall the fraught and poisonous political negotiations that ensued among the members of the Tenth Parliament. Key provisions that would have kept the political class on the straight and narrow were bastardised. Look at the original drafts of what became Articles 10 and Chapter 6 and you get an idea. But there was no alternative and Kenyans, as they always do, allowed the political class place pride of place in the negotiations and followed it blindly down every dead end on the way to the 2010 referendum.

We have a young Constitution but we still retain the political process that we have always had. Its membership consists of snake-oil salesmen and charlatans of all shades and stripes. They have done everything in their power to bastardise the concept of the sovereignty of Kenyans in order, once more, to guarantee pride of place for themselves. Regardless of their personal probity and popularity, politicians are a much-distrusted and much-loathed class. Despite this, they are the only ones who can lead the Constitutional Amendment Process, which means the process must be a political process.

This does not mean that they have a free hand to do as they please. The hands-off Kenyans who sit on their hand while the process is abused must get off their asses and get involved. It is not enough for the Daily Nation and its ilk to wring their hands and bemoan the politicisation of the process; they must get their hands dirty and engage the politicians in a political debate about the future of the nation. Whatever decision we make will be a political one; it is imperative we marshal political arguments that are more persuasive than those advanced by that perfidious, iniquitous and untrustworthy group.

This is for you, Jakom.

My favourite punching bag, Raila Odinga, is still sore that the Kenyatta II administration is still standing. I feel his pain ,though. Therefore, in the spirit of even-handedness, I think it is time we gave him new ideas to pursue his unrealised dreams, one of which, as you are all aware, is to make the Independent Electoral and Boundaries Commission share his pain. Let us help ODM's Jakom send home the IEBC.

By IEBC we obviously mean the Commissioners and the Chief Executive (although I think the Ethics and Anti-corruption Commission will put the Chief Executive in jail before Jakom gets to him. C'est la vie! Let us hope the legendary EACC incompetence will give Jakom a chance to get his hands, figuratively speaking of course, around the Chief Executive's neck.

The demon seed of a Constitution that somehow denied Jakom the presidency, at Article 251, contains the rules for the removal of members of constitutional commission, such as the extant ones. The grounds in Art 251(1), particularly in paragraphs (b) and (d), are just perfect for Jakom's purposes: gross misconduct, whether in the performance of the member's ... functions or otherwise, and incompetence. It's devilishly difficult to establish gross misconduct; incompetence, the main plank of Jakom's Hail Mary Supreme Court Petition, is the ticket.

The Commission, that is, the incompetent commissioners that make up the Commission, were supposed to perform the following functions, well, competently:
  1. Register eligible voters.
  2. Create and maintain a register of voters.
  3. Capture their biometric data in an easily retrievable database.
  4. Procure equipment to register eligible voters and store the details of the registration.
  5. Conduct a general election for President and Deputy President, Governors and Deputy Governors, Members of the National Assembly, Women Representatives of the National Assembly, Senators, Members of County Assemblies, as well as the nominations of Members of the National Assembly and County Assembles.
  6. Record the numbers of voters who voted for each candidate, verify the ballots cast, electronically transmit the results and record the final numbers of the votes garnered by each candidate.
  7. Procure the equipment for the identification of validly registered voters.
  8. Procure the equipment for the transmission of results of the election.
  9. Procure the equipment for tallying the results of the election.
Jakom should abandon all hope of proving that, in the words of the Supreme Court, the Register of Voters was a moving target. He should, instead, prove the incompetence of the IEBC by showing that when it came to the process of registration, verification and identification of voters, the Commission was incompetent; that when it came to the process of recording and transmitting the votes that were cast, the Commission was incompetent; and when it came to the procurement of election equipment and materials, the Commission was incompetent. He does not have to prove gross incompetence, just mere incompetence.

We must not ignore the elephant in the room: for the Commissioners to be dismissed, Jakom requires the President to appoint Tribunals to investigate each and every one of them and to assign the proper blame on each individual Commissioner. This might seem like an insurmountable obstacle; but those who doubt his capacity to rally the people when he has the facts on his side should be wary should he pick up this gauntlet and throw it at the feet of Uhuru Kenyatta.

Since his ignominious defeat at the Supreme Court, Jakom has been searching for a cause. The various ones that he has road-tested have been mere small potatoes, including the sheer lunacy of amending the Constitution to fiddle with the manner in which a president is elected. But if he wants a mission that will receive the full-throated support of his supporters, the perfidious IEBC is a perfect target for his mobilising skills. All he needs are the facts and he will be half way to creating a movement for change.

This will give him something worthwhile to do while his minions in the National Assembly and the Senate deal with the minor detail of trying to hold the Uhuru Kenyatta government to account. They do not need the distraction of a national campaign to fire the IEBC; they don't have the mental or testicular fortitude to see the campaign through. But this is where he will make his mark. We can't go to another general election with these jokers in charge.

Sunday, August 25, 2013

Anti-corruption Warrior-in-Chief? Has hell frozen over?

If corruption will be vanquished only when Uhuru Kenyatta stops sitting on his hands, then we are in deep trouble. Once more I am compelled to partially disagree with Ahmednasir Abdullahi's proposition. (President is best suited to end corruption, Sunday Nation, 26/08/13.) But if Mr Abdullahi intended that grand corruption will be vanquished because of the President's actions, I have no quarrel with that. And when we speak of grand corruption, we mean the acts of official corruption that have granted us new phrases in our political lexicon: Goldenberg and Anglo-Leasing are merely the most popular.

Kenyans, for the most part, think of corruption in terms of the likes of Goldenberg or Anglo-Leasing. Very few imagine that they are corrupt or must act corruptly in order to make it through their day. The corruptors and corrupted would be glad if the President took a more hands-on approach to corruption; it would mean that they would most likely not be caught or punished. The ones who would worry, and who should worry if the President does get into the anti-corruption racket, are the ones making procurement decisions in the government and its agencies. Mrs Shollei is only the first of many high-profile public officers who will undergo enhanced official scrutiny if the President stops sitting on his hands.

But, in the words of the unlamented former Director-General of the Kenya Anti-corruption Commission PLO Lumumba, the small fish will have a field day. It is in the unseen world of the hoi polloi where corruption is insidiously rife. I wonder if Mr Abdullahi would be shocked to know that the seeds of petty corruption are planted when we are still trying to overcome our hormonal urges while in High School. What would he say if he were to know that students who seek medical attention in the public hospitals near their boarding schools must part with a facilitation fee for the doctor who sees them? What would he say if he were to know that when seventeen-year old truants, testing the boundaries of their guardians by going to night clubs and beer dens, nowadays carry an extra 500 shillings for the policemen who will confront them on their way home from their night of revelry?

The battle against corruption, grand or otherwise, will not be won only because the President has a stake in its success. It will be won when Kenyans, collectively, take a stand against it. Kenyans will take a stand against it if they trust that they will not be required to solicit, or give, bribes for municipal services that should be their as of right. To that end, a bureaucratic monster in the guise of an anti-corruption commission is a grand waste of public finances and resources. Special anti-corruption courts are a waste of judicial time and resources.

If one examines the constitutional and legislative anti-corruption environment, one is confronted by Article 10, Chapter Six, Articles 225 and 227, and Article 232 of the Constitution; the Ethics and Anti-corruption Commission Act, 2012; the Public Procurement and Disposal Act, 2003; the Public Financial Management Act, 2012; and the Penal Code. The institutional framework has the anti-corruption Commission; the Commission on Administrative Justice; the Public Procurement Oversight Authority; the Central Bank; the National Police Service; the Judiciary; and many many more. The war on corruption is not being lost because the President sitting on his hands; it is being lost because Kenyans have not bought into the premise that corruption is an inherently bad thing.

Even if Mr Kenyatta ordered all the players in the anti-corruption game to step up their efforts, he will find it impossible to monitor their efforts. On the other hand, if he wanted to fire the laggards in the pack, he would need the National Assembly to agree with him. If there is a Member of the Eleventh Parliament who has demonstrated a capacity for fighting the corruption wars of the past two decades and has a record of achievement, he (or she) has managed to camouflage himself (or herself) rather deftly. Parliament will not be Mr Kenyatta's partner in a renewed onslaught against the citadels of corruption, big or small.

The solution, as with all things, is simple in theory, and hairy to implement in reality. Simply enforce the laws of the land as they were meant to be enforced. There should be no special favours or considerations. If you are caught in wrongdoing, only a good lawyer should get you off. If you wish to trade with the government, you should not sweeten your tender with a briefcase full of dollars. And so on and so forth. Theory? Good. Implementation? When hell freezes over.

Facts are facts; wishful thinking is for children.

We shall no longer ask Makau Mutua to "accept and move on" in the small matter of the election of Uhuru Kenyatta and William Ruto as President and Deputy President respectively. He is likely to hurl. Prof Mutua has made up his mind that the election of the two was illegitimate; he is never going to accept them as the legitimate leaders of Kenya because of the accusations levelled against them over the crimes committed in 2007 and 2008 and their subsequent indictments, and imminent trials, at The Hague. He warns them that the Look East Policy initiated in the government of  Mwai Kibaki will not rescue them from the clutches of the International Criminal Court's Prosecutor. (Looking East won't end Uhuru's troubles, Sunday Nation, 26/08/13)

Mr Kenyatta's pursuit of investment opportunities in the Middle Kingdom and in Russia may be misguided. Indeed many economists, while holding their judgment until the details of the deals struck in Moscow and Beijing are revealed, have many qualms about the state of the national debt because of these deals. But is Makau Mutua right that only reason why Mr Kenyatta has been so comfortable in wrangling the deals from the two is because he wants to use them as leverages to extricate himself, and his Deputy President, from the clutches of the ICC?

The path to the ICC has not been as straight or as inevitable as made out by Mr Makau and his fellow travellers. For sure, many errors have been highlighted in the process, and many questionable decisions were made by the ICC Prosecutor. The stories of the coached witnesses simply refuse to go away. The partiality of the Prosecutor is yet to be examined comprehensively. At each stage in the process at least one of the Judges has expressed grave reservations about the cases. Makau Mutua has an axe to grind; whether his view prevails is matter only time can reveal.

Messrs Kenyatta and Ruto have always pleaded innocence in the face of the accusations levelled against them. The constant drip-drip-drip of witnesses dropping out of the prosecution may be proof that they really are innocent or that they are using their offices to intimidate the witnesses into withdrawing their testimonies. Makau Mutua fails to impartially examine these issues; his mind, you see, is made up.

To a large extent, Mr Mutua says what the human rights industry in Kenya is saying: Kenyatta and Ruto should never have stood in the election; they should never have been allowed to stand in the election; the Kenyans who voted for them made a mistake, a grave mistake; whether or not there is a trial, Kenyatta and Ruto are guilty. The same human rights industry that has arrayed itself against the two is at the forefront of demanding a respect for the rule of law, one tenet of which is the presumption of innocence. The human rights industry has added a caveat to this tenet regarding Kenyatta and Ruto: because of the gravity of the accusations, and the positions the two held in the former and current administrations, they should be presumed guilty; they should prove their innocence before the world court. The rule of law, as postulated by Makau Mutua and his fellow theorists, does not apply to Messrs Kenyatta and Ruto because they are accused of international crimes; they are guilty as charged. Why should we then bother with a trial?

Mr Mutua is right in one respect: the voters of Kenya are bitterly divided over the Jubilee victory. Half the voters voted for the other guy. But, and this is in no small measure to Mr Mutua's efforts, the electoral system we adopted for the March 4 general election demanded that the winner be picked in the manner that he was picked. We can quibble over the incompetence, and possible corruption of the Independent Electoral and Boundaries Commission but we cannot pretend that this is not the system we chose to elect our president and his deputy. The men and women who voted for the Jubilee ticket may have agreed that the ICC indictments disqualified the two from standing in the election; they either didn't care, or they thought that it did not matter.

It was always a fallacy that the general election and the indictments were connected. If they were, then the rule would have been that whoever is indicted of an international crime could not stand for election anywhere in Kenya. That is not what the rule says. The rule says that a person convicted of an international crime cannot stand for election. In the here and now, Messrs Kenyatta and Ruto are innocent of any crime. They were innocent when they stood for election. This is the reality. There is no need to accept and move on. Whether one does or not, the fact on the ground will not change.

Saturday, August 24, 2013

The future sans the Eleventh Parliament

Should the President be elected in a two-step process involving a popular election and an electoral college? Should the President be compelled to appear in Parliament to answer for his administration or, in the alternative, should an elected or appointed Prime Minister, do so? CORD has made these the cornerstones of its proposals for ensuring the accountability of the National Executive. The Coalition is wrong.

When ODM, in 2010, preferred the Presidential System over the Parliamentary one, it did so in the full knowledge of the key features of a Presidential System. In the run up to the referendum that year, Kenyans were acutely aware of the failings of the Parliamentary System. When Raila Odinga came out in support of the former over the other, he did so knowing full well what it would entail. He was not misled. If there was any misleading, he did it to himself, and then misled the millions of Kenyans who ratified his proposal at the referendum. Indeed, it was a rare meeting of minds between ODM and the erstwhile PNU. It is cheeky and irresponsible for the descendants of ODM to now claim that the system they endorsed is not the system that Kenyans demand.

The presidential system requires the separation of powers with checks and balances to ensure effectiveness. The flaw, if that at all, is that when a party has a majority in Parliament and forms the National Executive, it might use its parliamentary majority to rubberstamp the proposals of the National Executive. The CORD minority is feeling the heat of this Tyranny of Numbers, hence their sour-grapes desire to amend the Constitution to whittle down the power of the Majority Party.

The problem with the system today is not that it is inadequate to check the power of the National Executive; it is that the Majority Leaders in both the National Assembly and the Senate have chosen political short-term glory over long tern institutional development. Messrs Aden Duale and Kithure Kindiki, respectively, have such a poor appreciation of their proper role in Parliament that they have done precious little to hold the National Executive to account for its errors of omission and commission. Summoning the President to Parliament to account for his administration will not change the effect of the Tyranny of Numbers; indeed, it might wed Parliament and the National Executive ever closer together to the overall detriment of governance, transparency or accountability. If Raila Odinga and his acolytes refuse to acknowledge this, they do not deserve to ever form the government.

The solution is not ensuring the President is made to appear in Parliament, or the creation of the post of Prime Minister once again. Third time will definitely not be the charm. The solution lies in Parliament playing its proper role of overseeing the work of the National Executive. The President and Deputy President do not have day-to-day responsibility for the management of their administration; that job now lies in the hands of the Cabinet and Principle Secretaries. If there are men and women who should speak for the National Executive it is these. If Parliament wishes to hold the National Executive to account, it can only do so by summoning and examining the Cabinet and Principle Secretaries before the proper committees.

Parliament should stop pretending that it is a part of the National Executive or that the Majority Party must always be in lock-step with their counterparts in the National Executive. Some of the National Executive's actions will adversely affect Parliament; it is for Parliament to take all necessary measures to protect its independence and the exercise of its oversight powers for the benefit of Kenyans, not just the National Executive. That day, sadly, is not today. It will take a more intelligent Parliament, led by more intelligent Majority and Minority Leaders, before Parliament truly comes into its own. The current crop is weak-kneed, indecisive, incompetent and too mule-headed to be trusted to properly manage the affairs of government. It's time we recognised this and made plans for the future. Without them.

Our Consent.

It is interesting to watch the different reactions to the Egyptian tinderbox. It is also interesting that there doesn't seem to be curiosity whether or not Egypt matters at all, especially to Kenya other than as a lesson...or a warning. A certain amount of hyperbole is to be expected; after all, Egypt plays a not insignificant place in the life of the Christ (in the Christian bible.) It has also played a leadership role in the on-going attempts to resolve the Palestinian Question. But at the end of the day, should Kenyans pay attention to the unravelling of Egypt's politics or to issues much, much closer to home. Like the fact that Uhuru Kenyatta and his entourage to China have somehow managed to push up the national debt by a trillion shillings. Or that some of the National Assembly's members think they can summon the Chief Justice to a parliamentary committee meeting as if they were the Principal and he were a naughty school-boy in need of chastisement.

The Arab Spring was romanticised by those who normally champion the cause of democracy and democratisation across the globe. To them, the Arab Spring symbolised the inevitable coming of age of a region that had so far refused to join the rest of the "free" world in guaranteeing and protecting the rights of the individuals rather than glorifying the place of the State in the body politic. The rose-tinted glasses did not reveal the inherent fallacies in the romance of the Arab Spring. They hid the absence of democratic institutions. They hid the back-lashes of a subjugated people granted temporary respite from their subjugation. They hid the client status of the militaries in the Arab world to the United States. Arab Spring nation after Arab Spring nation is following a path that was laid down by Hamas in the Gaza Strip. Tunisia, Algeria, Libya...all have somehow managed to give reactionaries power at the expense of the groups that the democracy peddlers would have sponsored. It is now Egypt's turn.

Kenyans must draw the proper lessons from the Arab Spring. It is not just that democratic institutions are vital to democracy to flourish; it is not just that constitutionalism must take root in the body politic for the rule of law to prevail. What is crucial is that when a nation embarks on a path to reforming its political landscape, it must do so knowing in advance that the path to reform is not a straight line. There will, inevitably, be very strong obstacles to be surmounted. Some will come from unexpected quarters, such as the champions of the revolution, and some will come from the expected quarters of vested interests and incumbents.

Kenya is attempting one of the most complicated reform experiments in the world, bar none. It is doing so after a crisis, but not after a civil war like is the norm the world over. It is reforming its constitutional order, its political order, its institutional structures, its education system, its security system, and many more. It is doing so with little money and little support from the National Treasury. It is doing so in the face of strong challenges from the vested interests that have made a killing from the status quo. It is doing so in the face of radical u-turns from democracy champions on all sides of the political arena. It is doing so with a youthful population in the millions that is well-educated but unemployed. And it is doing so when the fate of its national leadership is in flux, with the President and Deputy President fighting indictments in a foreign court and the unofficial leader of the Minority Party attempting to rebuild his political career in the face of constant debilitating setbacks.

We must stay the course. We must hold our national leadership's feet to the fire. We must ensure that the crass political class sacrifices where they must. We must build up the capacity of the public institutions to survive. Teachers, doctors, policemen, magistrates, nurses and civil servants must be given the facilities they require to help Kenya move to the next level in its reform programme. More money must be set aside for the institutions that directly benefit the Kenyan at the grassroots; it is not important that governors, senators, speakers, elected representatives, cabinet secretaries, principal secretaries, judges, commissioners or holders of independent offices have cars, drivers, body guards or fat wallets. It is not important that governors fly the national flag from their official limousines. It is not important that the Senate thinks of itself as the "upper" house. It is not vital that the National Assembly thinks it can judge judges.

It is vital that the rules by which we choose to govern our body politic are respected by all. It is vital that the concept of democracy is inculcated in all of us, that we all believe in constitutionalism and the rule of law, that the niggly bits of the reform process are not allowed to mushroom into Mushroom Clouds over Hiroshima and Nagasaki. Which means that those that see themselves as our rulers need to be reminded, in stern terms, that they are leaders and that they lead by our consent.

Friday, August 23, 2013

The China Syndrome

My governor is in China, and I have no idea why. He accompanied the head of state but he was also in the company of my senator and the governor of Kiambu, two characters with a colourful, shall we say, reputation. My governor tweeted that he had secured over 80 billion shillings of commitments from Chinese developers to finance "development" projects in our nation's Capital. My governor is seriously beginning to piss me off.

It is six months or so since March 4. In this period I am strongly persuaded if governors dreamt that the governor's mansion was a springboard to the presidency, that is a dream that will soon turn into a nightmare. If governors refuse to govern as they are intended to govern, the last thing Kenyans will do is trust the national government to them. Dr Kidero is fast proving that he simply does not get it.

Nairobi City is a mess. There are those who don't see it, the governor included. After all, they've made, or filched, so much money that they will never ride the death-traps we call matatus, they will be treated overseas (or the the Aga Khan, Nairobi or Karen hospitals), they will never shop at Marigiti, Wakulima, Muthurwa or Mutindwa markets, they will never experience pot-holed, street-light-less, or unmarked roads, and when they call the police in emergencies, there will be no claims of un-fuelled patrol cars (or the absence of OCPDs or OCSs). When they are chauffeured to their places of business, they willfully blind themselves to the great unwashed masses who have barely enough room on the "pavement" to walk on.

If Dr Kidero wants to see how low Nairobi has sunk, he should use pedestrian walkways across our high-speed highways: the one across Jogoo Road near the Law Courts, the one near the Nyayo National Stadium and the one near Madaraka Estate are excellent choices. It would surprise him I know to see people deliberately ignoring these life-saving facilities and risking their lives running helter-skelter across the busy roads. It would shock him, I know, if he were to walk across one of the three: mounds (yes, mounds) of human feaces, pools of human pee, and entire gangs of sundry muggers are what are to be found on these walkways. Let us not forget that they are, unsurprisingly, pot-holed to an incredible degree.

If this does not persuade his excellency ( I wonder why he'd want that honorific), he should take an incognito walk along Landhies Road, between the new Kenya Power substation and the traffic lights opposite the Retail Market. If the sight of blocked drains, exposed sewers, haphazardly-ridden boda bodas, strategically recklessly parked mikokoteni, and mounds (yes, mounds) of garbage does not shock him, then perhaps the sight of Kayole-bound matatus parked on the side of the road, the masses of Kenyans getting mugged at Machakos Airport, and the massive pothole on the roundabout surely should.

Dr Kidero's job is not to build factories. His job is not create jobs. His job is to make sure that the Capital functions. His Inspectorate is the most vicious blood-sucking parasite in the city, second only to the extortionate Mungiki and National Police Service. His City Hall is the most dysfunctional institution in all of Kenya. It is not just physically dysfunctional, it is structurally and culturally dysfunctional. How he is yet to recognise that he is the head of a gangster-riven government beggars belief.

But in Kenya, the Big Picture is all that counts. Big Ticket projects will give him a Name, and a National Profile, which he will leverage in his march to State House. The residents of Nairobi - the ones that self-indulgently place their lives at grave risk every time they board a City-bound Paradiso or visit any of the two dozen "City Dispensaries" when they are ailing - are the stepping stones he will step on on his way to State House, their needs being neither here nor there. Why would he listen to us about public safety, public health and sanitation, public transport, or civic functions when the billions he will secure from the Chinese will help him "build the infrastructure of a successful Nairobi" and give him a leg up over the over-ambitious likes of Ali Hasan Joho (Mombasa) or William Kabogo (Kiambu)?

Thursday, August 22, 2013

Why Parliamentary committees need competent technical staff.

Now that the East African Law Society has wormed its way into the Shollei/JSC imbroglio, and various pundits are punditing on the implications of the Legal Affairs Committee's summonses to Gladys Boss Shollei and members of the Judicial Service Commission, it makes sense for someone to take a less histrionic view of the situation. The Chief Registrar claims that natural law was ignored when she was sent home on compulsory leave to "pave way for independent investigations." A member of the JSC was on TV last night pleading innocence against allegations Ms Shollei has made against him  regarding the procurement of a building for the Court of Appeal when it sits in Mombasa. Now doubts are being expressed whether the National Assembly understands the concepts of separation of powers and checks-and-balances.

This blogger has a very dim opinion of the National Assembly (and the senate too, for that matter.) The Members of the national Assembly have attempted to line their pockets as quickly as possible at the great expense of the unemployed masses. They have not - NOT! - performed their duties faithfully or intelligently. They have failed, time and again, to consider the issues before them with sobriety or wisdom. They have spent a lot of time making the legislative equivalent of monkey-faces at the Senate and devolved government. It is quite obvious that the members of the Legal Affairs committee have an axe to grind; it is just unclear against whom they bear this animus.

In the separation of powers doctrine, as enumerated in the Constitution, the National Executive, Parliament and the Judiciary are distinct and separate. The National Executive and Parliament are elected by popular vote. The senior ranks of the Judiciary are appointed by the Executive, but only after (relatively) nominations by the Judicial Service Commission and approval by Parliament. The Chief Justice, the senior-most judge in Kenya, is the head of the Judiciary, the President of the Supreme Court and the Chairman of the JSC. The Legal Affairs committee, ordinarily when dealing with the Judiciary, would do so through the Chief Registrar, not the Chief Justice. Ms Shollei, unless she is fired, is the Chief Registrar. In her absence, the Deputy Chief Registrar would act in her place. Because the dispute is between Ms Shollei and the JSC, the Legal Affairs Committee should have summoned the Deputy Chief Registrar, and if he is part of the investigation against Ms Shollei, then his deputy, if there is one. The committee cannot, and does not have the power to, summon the Chief Justice or any member of the Judiciary. This is the separation of powers doctrine at work.

If the committee is satisfied that the Chief Justice, in his role as the Chairman of the Judicial Service Commission has acted contrary to the law, it can only recommend to the President the appointment of a Tribunal to investigate the Chief Justice, and if the Tribunal finds that the Chief Justice has violated the law, recommend his dismissal. The role of the committee ends at finding that the appointment of a Tribunal is warranted. That is the extent of its role under the doctrine of checks and balances.

No one expects the Members of the national Assembly to possess such a sophisticated appreciation of the nuances of theories of governance; they barely have a working knowledge of the provisions of the Constitution as it is. Therefore, and this is where their priorities have been misdirected, they require a competent technical staff to advice them on the ins-and-outs of these niggly niches of the law. Otherwise, the spectacle of ill-qualified law-makers making embarrassing mistakes in the execution of their duties may become an all too common affair and this might further lower the already low opinion of the National Assembly and its members.

Chickens coming home to roost.

When the Judicial Service Commission sent the Chief Registrar of the Judiciary on forced leave, it highlighted a significant flaw in how the public service is administered in Kenya. Gladys Boss Shollei, the hard-charging Chief Registrar, was sent home without being informed of the reasons for the decision to send her on forced leave. Allusions to a dictatorial management style and unmentioned procurement snafus were made by the JSC, but nothing was committed to paper when the she was informed that the JSC would require her to relinquish her duties while it investigated the allegations against her.

She has not covered herself in glory, either. She declares her innocence; and when she appeared before a parliamentary committee, she named three members of the Commission as bearing an unwarranted animus against her. She accused one member of having had it out for her since the day she was appointed to her office; she accused another, a Judge to boot, of insisting on his people's "time to eat the fruits of uhuru;" she accused the third of having an interest in the Judiciary's procurement of a building to house the Court of Appeal in Mombasa, demanding that she abandon the process and allow him to provide said building. Of course, as has become a tradition in Kenya when these situations get out of hand, she did not produce evidence of any kind to support her allegations.

The flaw, such as it is, is that we are loathe to live by the rules we make because the rules we have made never seem to provide for the situations that we want to resolve. The forced leave forced on the Chief Registrar is ostensibly so that she cannot interfere in the investigations commissioned by the Commission. The JSC is surely right that Ms Shollei cannot hang around the office if the documents being sought by the investigators are in that office. She must withdraw so that the investigators, and her staff, are not compromised by her presence during the investigation. But the JSC is wrong to ignore rules that it has accepted in the process. The rules of the public service protect all public officers; they cannot be sent on forced leave without running afoul of the rules. And before they are sent on forced leave, they must be informed, in writing, of the rules that they have violated. Ms Shollei, to date, has not been informed of the grounds for her forced leave.

This is the same quagmire that Kenya finds itself, six months after the general election and three years after the promulgation of the Constitution. Raila Odinga and his ardent acolytes in CORD want the Constitution amended because, now, they find the provisions on the election of the President onerous. Governors and Senators want the Constitution amended because they now find that the devolution provisions are "weak." The National Assembly wants the Constitution amended because they now find that the Salaries and Remuneration Commission to be to hard-hearted when it comes to the question of their salaries and perquisites.

Three years ago, at the height of the referendum campaign, William Ruto and his fellow travellers in the Red team warned us that the Constitution was flawed and that the flaws should have been ironed out before Kenyans voted whether or not to ratify the Harmonised Draft. Raila Odinga and his Green warriors argued that the flaws could be ironed out after the referendum. This cavalier attitude to rule-making seems to have affected every piece of legislation enacted since August 2010. Regarding the forced removal of the Chief Registrar, the chickens have very definitely come home to roost.

Whether or not Ms Shollei survives this particular challenge, the damage to the reputation of the Chief Justice, the Judiciary and the Judicial Service Commission may be irreparable and may set back the cause of judicial reforms by many years. Even if Dr Willy Mutunga and his fellow Commissioners on the JSC disagreed with the provisions of the Judicial Service Act and the Regulations under it, they had an obligation to abide by them. It is not for the Commission to pick and choose when the rules will be applied and when they will not. If the Commission is to be seen as an honest institution, resolute in its observance and application of the rule of law, it must play by the rules without exception or misinterpretation. If Ms Shollei's dismissal makes it to the law courts, as seems likely, will the same institution that ignored the rules be able to honestly hear the case and rule in her favour if the facts support her claims?

Wednesday, August 21, 2013

We should be proud.

If a typical Nairobian hears cries for help, he will not be surprised, shocked or concerned. He hears cries for help all the time; he has become inured to them. The recently-suffering residents of Bungoma and Busia are learning to become inured to screams of fear just as the residents of Nairobi, Kiambu, Nakuru, and Mombasa have done. In no time at all, the residents of Bungoma and Busia will learn to shut out the cries of help and go about their business, just as Nairobians have learnt to do.

This is not because Nnairobians are callous or heartless. On the contrary, but they are acutely aware that screams for help may be the noose around their necks they cannot escape. If there is one outcome of the forty-year KANU interregnum it is that Kenyans have absolutely no faith in civil institutions such as the police, the police prosecutors, or the courts. It is why when they get an opportunity to mete out "mob justice," even the most chilled out, sedate and "civilised" ones among us will join in the "Ua! Ua!" chanting that will accompany an extra-legal execution.

To appreciate this, one needs to travel to a Western capital like Ottawa or Canberra. When civilians shout for help, and because it is frequently a very rare event, other civilians will stop and, where they are able, assist. The contrast with Nairobi is stark; because we know that even if we intervene the police will not come, we see no reason to enter situations that may end up with us on the receiving end of the unwanted attentions of thieves, armed robbers, or rapists. It is how the phenomenon of a "serial killer" amongst us is gaining prominence.

The serial killer is not an aberration when one considers how blasé we've become regarding rapists of all shades: child molesters (whom we euphemistically call defilers), granny rapists, gang rapists, et cetera, walk unchallenged among us and we do not bat an eyelid. Recently, in the United Kingdom, the Crown Prosecution Service (their version of the Office of DPP) came under political and public scrutiny because of how one of their lawyers had described a child victim of sexual assault. In Kenya, police prosecutors, magistrates and parents of the victim usually work in concert to sweep the whole matter under the judicial carpet, with child welfare officers cheerleading the whole thing to its ignominious end. How else do you explain how parents could marry off their under-age child with all the agents of the State pretending that nothing wrong has taken place?

So while we pretend, as Nairobians are wont to do, that Nairobi stacks up favourably with Johannesburg and Pretoria, as well as London, Paris and New York, let us admit to ourselves that that Nairobi is not the Nairobi we all know and mightily loathe. That is the Nairobi where phrases like "gated community" and "leafy suburbs" are apposite, not cruel, sardonic insults hurled at the 60% who know they are living on borrowed time. The Nairobi that goes to the Westgate Mall, the Village Market, the Junction, attends the Circle or Blankets n Wine, purchases its rides from DT Dobie or Bavaria Motors, and educates its scions at Turi or the Banda School, is not the Nairobi that rides the rusting and careworn RVR bogeys from hell, wishes mutindwa had not been paved over for the reckless convenience of Umoinner Sacco, and still understands the crucial economic value of Blue Band ya Kadogo. It is this Nairobi that will not bat an eyelid as a Nairobian is being reminded of his pecuniary responsibilities to the muggers and petty thieves of the Green City in the Sun. This Nairobi is too busy not dying to actually live a full life.

Our beloved Governor has accompanied our equally beloved President to China with his begging bowl out. it's not his fault he found the City Treasury empty; but it must sit heavy on our souls that we are the begging capital of Nairobi. Before the one-precenters of Nairobi deem us the equal of London, it is time they pondered the irony that their city leads the nation in begging, both on the streets and in the government. It is a rare distinction. We should be proud.

Tuesday, August 20, 2013

On violence

Kenya is not a nation at war with itself; it is a nation that finds it completely normal to engage in debate in a violent manner. From the use of strong language to fisticuffs to "running battles with police." Kenyans have been educated by their political classes that the solution to their problems, whether be they domestic, social, economic or political, lies in violence and violent confrontations. We have taken the adversarial aspects of our administration of justice and political systems and transferred it, without modification, into our day-to-day lives. We have been paying the price for this for two decades-and-a-half now.

Few youth remember when local football matches dominated the public zeitgeist. Football commentary on the radio was one of the few joys Kenyans had in the 1980s, especially after Baba Moi outlawed, more or less, all other forms of social discourse in Kenya.Our footballers - Joe Kadenge, Washington Muhanji, John Abbas, et al - were heroes to the hundreds of thousands of  listeners hunched over their transistor radios at home, at the local pub or in the market place every Saturday or Sunday. It was the same with gospel music; when Munishi sang, I challenge anyone to remember any of his lyrics that were so overtly confrontational as those of today's Gospel "artistes."

Gone are those halcyon days. The zeitgeist now is filled with confrontation. It is about "victory" at all costs. In politics, calls for the Minority Party to "move on" are partly based on the argument that they "lost" the March 4 battle; Raila Odinga is described in pretty violent language by Uhuru Kenyatta's and William Ruto's sometimes unhinged supporters. The professional classes, especially teachers and nurses, use violent rhetoric in their on-going pay dispute with the National Government. It is only over the past decade that secondary school students have set their schools' properties on fire, sometimes murdering fellow-students in the process. Policing in Kenya's main towns and border areas is more often characterised by fatal shooting encounters between the forces of law and order and suspected criminals than not. Indeed, even in the realm of football, Kenyans' favourite pass-time (the Euro-version, though), there are fatalities among supporters of one European team or another. Sometimes there are suicides.

It is becoming increasingly difficult to find ways of de-escalating the violence in the public space. The government is still trying to find its way around a much more constrained environment; it's muscle-flexing is a vestige of the resistance of "experienced" civil servants unwilling or unable to accept that constitutional limits have irrevocably changed the political environment. Kenyans are unwilling to go back to an age where serikali ndio baba na mama. The government and its agencies, we hope, will ultimately learn to moderate their violent tendencies.

It is in society that we face greater - and graver - challenges. In the family, fathers and sons must accept that mothers and daughters are no longer chattels; and mothers and daughters must accept that it is not by a light-switch that the male members of their families will accept them as equals. The law may say one thing; it will take a cultural and mental shift before this legal truism is actually true. In society, the man-eat-man definition advanced by Tanzania's Mwalimu Julius Nyerere, should be redefined. We cannot make our success as individuals on the failure of someone else. The greed-is-good mantra popularised in 1987's Wall Street must be abandoned if we are to raise a nation of well-adjusted youth out to win but not win at all costs. In Gandhi's words, there is enough for our needs, but not for our greed.

Monday, August 19, 2013

It's time for the President to trim some fat.

I just read a ridiculous story of three American medical students being held hostage by their hotel over unpaid bills. I thought this sort of thing only affected new mothers when they failed to settle their maternity fees in public hospitals. Apparently, until Uhuru Kenyatta decreed that no fees would be charged for mothers who delivered their bundles of joy in public hospitals, even the premier medical facility that is Kenyatta National Hospital had an entire wing dedicated to holding new mothers, and their new-born children, hostage until bills were settled. In fact, it is not just new mothers-and-babies that here held hostage; the remains of patients who died while undergoing treatment would be detained until the families of the deceased paid settled the hospitalisation bills.

This is an indictment of a nation that has consistently prioritised the wrong things. For example, even in the new-breath devolution spirit, it is absolutely vital to provide armed police, chase cars, flags and other accoutrements of State authority to the legion of ill-prepared, ill-tempered and capriciously greedy governors, but it is still a to-do-list item when it comes to hiring new nurses or paying the ones who are there.

Right after he received the Instruments of Power, President and Commander-in-Chief Uhuru Kenyatta ordered the Cabinet Secretary of Defense to spend four billion shillings in military procurement in the 2013/2014 fiscal year. But his government could not find money to settle a fifteen-year debt owed to the teachers of Kenya or lecturers in our public universities. Some of his minions, perhaps thinking that it would curry favour with the boss, went out of his way to budget hundreds of millions of shillings for our Jubilee celebrations, including an obscene amount for a statue in commemoration of a president who had studiously avoided all forms of pomp or circumstance in his ten years in power. It is fit that the President fired the idiots who came up with that harebrained scheme.

Mr Kenyatta, and his boon-friend William Ruto, made many promises while campaigning to succeed Mwai Kibaki. Some of their promises were incredibly ambitious and would transform Kenya for the good if they were realised. Some of them were as harebrained as the multi-million shilling presidential statue, but since we elected them, we can't really bitch too much about them. Among their promises was that they would work towards enforcing the rule of law impartially and fairly. Everyone would be given a fair shake. It seems that this is one of the promises that will take the Jubilee administration time to realise.

The reason why the President and Deputy President seem to be taking two steps forward and one step back seems to be the sundry minions, hangers-on and kiss-asses determined to preserve whatever residual powers they imagine they possess. It is why you find civil servants who have managed to the game the system for decades seem to be finding reasons to issue new guidelines on this, that or the other, performing duties and exercising powers that no longer exist. They are living in a world where the Presidency is the sun, and they are the preferred planets in orbit around him, benefiting from the presidential solar afterglow. They are the reason why wazungus are getting detained by two-bit hoteliers in Kenya's boonies. The President and Deputy President need to step back and scan their immediate environments and bench every Hitler-in-waiting among their minions, hangers-on and kiss-asses.

Listen to what Gen Z is saying. Hear them.

Kenyan Gen Z seized the moment that was made for them and threw down the gauntlet at the feet of the Kenyan State. With the memory of the bi...