Monday, September 30, 2013

What idiot came up with the War Plan?

Have we not learnt anything from the WikiLeaks fiasco? Those who refuse to learn from history are doomed to repeat it; those who refuse to learn the proper lessons are simply doomed. Why would the Chief Justice, if it is true, engage in a conspiracy to shove the Chief Registrar out of the Judiciary? This conspiracy, as detailed by the Standard in recent days, is one of the daftest enterprises ever concocted by Kenya's power-mad wheeler-dealers.

It is a truism in Kenya that when you acquire a little power, you go out of your way to acquire more. Power begets power; position requires more and more authority. They say that the corruption of the good is the worst. In the case of the Chief Justice, it has been a slow and steady turning of his head. It began with really small and simple things: a swanky limousine here, a fat sitting allowance there, a mansion fit for a king, and so on and so forth. No one doubts, or no one doubted, that the Chief Justice was the tonic required to cure the rot in the Judiciary. When the men and women who objected to his appointment could not prevent his appointment, they decided on a more subtle strategy to undermine his efforts at reforming one of the most opaquely corrupt institutions in Kenya, second only to the intelligence/security establishment.

This blogger argued some months ago that it was a mistake for the Judiciary to insist in sharing in the spoils of the National Treasury as the National Executive and Parliament were hell-bent in doing. This blogger argued that it would send the worst possible message to the people. The message would be that on the surface, the Judiciary would mouth the same platitudes that the political class has become very adept at mouthing, but behind the scenes, not much would change. It would be business as usual. In Kenya, we measure the depths of corruption and corrupting influences by how many stories we write about the institution that revolve around public funds.

It seemed like a marriage made in Judicial heaven, that of the Chief Justice and the Chief Registrar. He had been a hard charging member of the Second Liberation movement and he has paid the price for holding on to his liberal ideals in the face of a truly recalcitrant establishment. The Chief Registrar is renown for her efforts to modernise every institution that she has been associated with. He signature achievement is the Kenya Law Reports website, an idea that was ahead of its time in a government that knows how to keep its secrets. But their falling out over the past two months has been a study in how ambition and power can corrupt even the best among us.

How and why the Chief Justice fell in with the Gang of Seven that styled itself the war Council we will never know. How they managed to drive a wedge between him and the Chief Registrar is a testament to the ends that those determined to halt the reforms in the Judiciary are prepared to go. The Chief Registrar is in charge of the administration of the Judiciary, including the financial administration of its finances. The Chief Justice, however, is not simply a bystander. He has an important role to play in ensuring that the objectives and aims of the Judiciary are achieved, and that means that he must have a say in the financial administration of the Judiciary. How the Chief Justice's role overlaps with that of the Chief Registrar's is the nut that both have failed to crack.

This is the fallacy at the heart of the reforms in the government attempted by the Committee of Experts. They imagined that the financial autonomy of institutions, without the dead hand of mandarins in The Treasury, would be the panacea required to make the government a servant of the people, rather than their overbearing landlord. As the Parliamentary Service Commission and, now, the Judicial Service Commission, financial autonomy was a mistake. Without taking into account decades of financial shenanigans even among the good and the best, the reform agenda was bound to fail. The greed witnessed in the Judicial Service Commission, whether for power or for money, is the weak link in the reform agenda. The worst thing is that we cannot do anything about it: the men and women tasked with the responsibility of reforming thee financial arrangements of the government are the same ones obsessed with keeping things ticking along as they have over the past fifty years.

Sunday, September 29, 2013

One nation, One blood.

Why are they referring to the Westgate as a "symbol of Kenya's economy" and as "a high value target for terrorists," and that elite shoppers are the engine of the Kenyan economy? Don't get me wrong; the Westgate is a symbol, but it is not at "the heart of the Kenyan economy" nor is it the centre of economic activity in Kenya.

Since the halcyon days of public policy making in the 1960s, Kenya has undergone various economic iterations, each determined by mainly external factors. The collapse of the coffee price in the late 1970s and a voracious boll worm attack devastated Kenya's coffee industry; it is yet to resurrect. Structural Adjustment Programmes sponsored by the International Monetary Fund in the 1980s, including the privatisation of state-owned corporations and public utilities, destroyed manufacturing; the industry is now dominated by quasi-monopolies and foreign-owned trans-national conglomerates. Cost-sharing in education, introduced at the advent of the 8-4-4 system, has seen the quality of both basic and higher education deteriorate to such an extent that more Kenyan scholars publish papers abroad than in Kenya today. We will simply chalk up the decrepitude found in basic education to "this is Kenya."

This Kenya is not the Kenya that spends time or money at the Westgate; the Westgate Kenya is the cosmopolitan one which is well-read, well-travelled, and, crucially, white-collar-employed in the "knowledge economy" that we hear so much from the mandarins in the government. The Kenya Westgate constitutes less than ten per cent of the population. The vast majority of Kenyans do not have the privilege of being bombed in swanky malls my al Shabaab; they are bombed in filthy council markets, one-room shacks that double up as places of worship, Migingos where they get to enjoy a cold one after work, and public service vehicles plying the often death-inviting smooth highways of death. When they are killed, the government, and its "friends" overseas, does what it does best: it dissembles, it promises retribution, it promises justice, and then it goes back to business as usual. It is rare that a foreigner, especially an Anglo, is a victim of the violence perpetrated against the majority of Kenyans by al Shabaab, and organised crime syndicates. But now that they are victims it is time to step up the fight against al Shabaab.

Kenya's economy is not dependent on Westgate; it is dependent on our continued agricultural growth. 60% of Kenya's GDP is agriculture-based, with a large chunk of that in horticulture, coffee and tea. White goods account for a pitifully small chunk of the GDP, mostly because we manufacture very few white goods, and still fewer high tech ones of those too. But if it is consumption that the government is worried about, it is fast-moving consumer goods that account for that portion of the economy, but only in the form of wafer-thin margin kadogo quantities. The middle class may be growing; but it is yet to become the driving engine of the economy through consumption.

So why do we dismiss the suffering of Kenyans when they are not getting killed at the Westgate? Is it because the men and women charged with the duty of keeping Kenyans safe do not shop at Gikomba, Marigiti, Mutindwa or Soko Mjinga any more? None of them is troubled by the hassle of fighting to board a PSV at 6 in the morning and 6 in the evening. Their children do not share seats, desks (when they are available) or text books (if they are available) at school. They are yet to experience water shortages, sewer blockages or the pile up of garbage on their leafy streets. They do have exercise books cut in half as the foundation of their medical records when they go to the doctor. They do not give birth on the floor while being assaulted by medical staff. But when they are killed in their shiny malls, now Kenya is at war with evil? Now the safety of the State is at stake? Now the integrity of the nation is at risk?

This attitude is the same one that would seek to "eliminate loopholes" in the tax regime by enacting a VAT law that places an onerous burden on those with the least wherewithal without considering the knock-on effect of the law. The government will collect more revenue. The rich will pay their share. The poor will have to work harder. But in the aftermath of Westgate, the Kenya-of-the-Westgate was joined by the other Kenya in donating blood. The blood transfused into the veins of the victims did not refuse to flow because of economic status or political influence. Al Shabaab did more to remid the high and mighty that one day the one thing they will need from the hoi polloi, no money can buy.

Secrecy, Speculation and Westgate.

This is Kenya's problem, at least one of them: speculation in the absence of even the semblance of credible, verifiable facts. It is going a minute a riot with the Westgate Attack, and its aftermath. But this would not be so without the pernicious and corrupting secrecy at the heart of the Government of Kenya. In the wake of Kenya's colonial history, Jomo Kenyatta and his successors maintained the colonial rules of secrecy and even bolstered them to ridiculous levels. It is a crime to reveal almost anything that goes on in the shadowy chambers f the government and it matters not that you work for the main public service, the parliamentary service or the judicial service. If you know something, you keep it to yourself until you are authorised to tell someone about it, usually some other public servant.

This secrecy breeds unhealthy speculation. Among the speculative conclusions doing the rounds over the Westgate attack are that it was successful because Kenya had prior "intelligence" on the attack and did nothing; Kenya is corrupt and that this contributed massively to the success of the attack; that the National Police Service does not have a well-trained anti-terror response unit that would have taken on, and defeated, the attackers at the Westgate; that the members of the National Security Council are incompetent and that some of them should never have been appointed to their positions at all; and so on ad infinitum. Almost no one wants to link the level of secrecy in the government to the poor public participation in national security, yet without the active and dedicated participation of even a portion of the adult population would see wonders being done in national security.

Secrecy is a vital tool of public policy. It is essential to managing the national security. But it is effective when it is properly calibrated to achieve a balance that serves both the national interest and engages the people to participate in issues of national importance. Excessive secrecy breeds resentment. It creates avenues for rent-seeking. It fosters corruption. It facilitates costly errors. In Kenya, we have taken secrecy to way beyond what is necessary for national good. It is time we reviewed the manner in which information is collected, analysed and disseminated. In other words, rather than shining a light into every nook and cranny of the State, we should reconsider the number of nooks and crannies we require.

Take the secrecy behind the agreement between the Chief Registrar and the Judicial Service Commission. These two are public institutions, created by the Constitution, and charged with public functions that call for very high levels of probity and integrity. But the unseemly tango between the two has been hidden behind a veil of weaselly lawyer-words with the aim of protecting the two institutions, but not promoting the rule of law in Kenya, or fostering the confidence of the people in the institution of the Judiciary. It could only end in tears.

The same is so when it comes to national security and public safety. When the Ransley Commission went round, they could never confirm how many policemen Kenya actually has, or what their qualifications are. I doubt whether the Cabinet Secretary knows how many men and women work for the National Intelligence Service. In this pit of secrecy, Kenyans imagine all manner of perfidy. It is why when a rumour is spread that the President lied about the number of dead, it is believed, especially by men willing to believe anything evil about him without question. It is why when the Cabinet Secretary refuses to divulge what the Government of Kenya knew, when it knew it and what it did, he does nothing to reassure the families of the victims that the evildoers will be caught and, in the words of the President, punished painfully.

Kenyans demonstrated that they will come together when they are faced by evil. But for the Government to demand more of its subjects, it must make them want to participate. This cannot be achieved by rhetoric or sloganeering. It can be achieved by transparency and accountability. Our instinctive desire to protect Big Men from embarrassment must end. A Commission of Inquiry must be appointed. Its terms of reference must be to review the intelligence that was available at the time; no hiding of information by the National Intelligence Service or the National Police Service is permitted. It must inquire into the deployment of experienced police. (Is it true that many elite members of the National Police Service are acting as bodyguards instead of going after al Shabaab types?) It must review the manner in which information is classified and whether it is a valuable tool in preventing the next Westgate or it is a habit that no longer makes sense. And it is time we debated whether the goal is national security first or public safety.

Rotten. To the core.

The battle royale brewing up between the Chief Registrar and the Judicial Service Commission was inevitable. The only surprise is that it took this long to bubble up into the public sphere. In November 2012, the JSC, with the active assistance of the Chief Registrar, went out of their way to demonstrate that when it came to financial avarice, the only difference between them and the perfidious National Assembly is that the JSC thinks of itself as above politics, above human emotions, above human greed. In the JSC's defence of its desire for Kenya's version of royal accoutrements it betrayed the people's faith in the reforms that had been mooted. It seemed to many that the reforms were simply meant to pull the wool over the eyes of otherwise over-taxed Kenyans. With this break between the JSC and the Chief Registrar, the scales have finally fallen off our eyes, the rose-tinted glasses have been smashed to bits.

We have documented the greed of the upper echelons of the public service before. The Judicial Service sometimes behaves as if it is not part of the public service, when it is in fact a vital part. But that is neither here nor there; the Judicial Service has been made autonomous by the Constitution, but it is abusing its autonomy in ways that the main-stream public service is very familiar with. It is not surprising that when it comes to self-aggrandizement the Judicial Service is no better than the Parliamentary Service or the rest of the public service, its moral superiority complex notwithstanding. But still, eighty thousand shillings for each sitting allowance insults millions of Kenyans who live way below the official poverty line. A three hundred million shilling mansion for the Chief Justice is immoral when hundreds of thousands of children sleep out in the cold for want of housing.

The sitting allowances and the public procurement by the Judicial Service are the tip of an otherwise rotten iceberg. The JSC and the Chief Registrar have adopted the same attitude that the Tenth Parliament had cemented from that of the Ninth, that the public purse is a bottomless one and that all one needs will be found, whether it is by public borrowing or higher taxes. The attitude of the men and women atop the decision-making tree in the national government is that public finances must be spent. We pay lip-service to efficiency or effectiveness; the real aim of collecting national revenue is to spend it all on white elephants of utility only to those who commission them. It is why you will find water fountains in the middle of the Nairobi CBD in the midst of a water crisis that has bedeviled the capital for nigh on two decades. It is why the JSC will purchase a building in the capital for hundreds of millions of shillings to house the Court of Appeal and the judges of the Court of Appeal will refuse to move in because of unfounded fears of health risks. Wasting public funds is not part of the language, or the conscience, of the Judicial Service.

The Chief Registrar and the JSC are doing the public a power of good. The reform-talk of the past six months had created the impression that the Judiciary had moved on from the legacy of corruption and abuse of power. It is now revealed to be just as canny at manipulating the public as the National Executive or Parliament. It is now revealed to be just as corrupt as the rest of the public service. It is now revealed that it is adept at sophistry. It is now the past-master of snake-oil salesmen. It is rotten. To the core.

Change or Die.

Kenyans and foreigners alike were butchered mercilessly in the name of a liberation movement that seeks not liberty for those it claims to fight for, but theocratic subjugation not seen since the days of the Spanish Inquisition. Al Shabaab fighters, disguising themselves as civilians, held out with their hostages for four bloody days against the combined might of the National Police Service, the Kenya Defence Forces, various undeclared foreign security and military elements, the dreaded General Service Unit and the National Intelligence Service. When the smoke cleared on the fourth day, scores were found butchered by the well-armed and, ultimately (or presumably) suicidal fighters who carried out the bold raid.

There are increasingly loud and portentous voices declaiming on the reasons why the attack succeeded. Ill-tempered MPs claim, without a shred of public proof, that "corruption" is at the root of the "intelligence failure." The National Intelligence Service, the NIS, is fighting back clandestinely; presumably, it is behind the leakages detailing the warnings it has provided to government officials over the past twelve months showing that the attack was coming. Pundits and members of Kenya's voluble commentariat have started a vicious war of words, with lines drawn in the sand either for the National Executive or against it.

If blame is to be assigned, the poisoned atmosphere prevailing today will make it very difficult not to politicise the process. Then we have those who simply will not look at the Big Picture: they have already warned the President and the Deputy President not to take advantage of the al-Shabaab-created chaos to "avoid their obligations to the International Criminal Court." With the National Command Authority otherwise distracted by these and a million  other concerns, it is easy to forget that hundreds of Kenyans, perhaps thousands, were victims of al Shabaab and that what happened at Westgate will scar this nation for a generation, just as the 1998 US Embassy bombing did, perhaps more so.

In the fight against al shabaab, it is not the Kenya Defence Forces, Kenya's special forces, the National Police Service, the NIS or Parliament that are the critical tactical element but Kenyans in the civilian population. We demonstrated that when it comes to national calamity that we will give that which is most precious to us in order to save our sisters and brothers, our blood. The Kenya Red Cross recorded the highest volume of blood collected in almost a decade. Safaricom reports that over a million dollars has been collected for the victims of the Westgate attack. Now that we know that we can, and will sacrifice, for our fellowman, it is time we took this to the next level.

For five decades we have been content to be led by the nose by snake-oil salesmen and charlatans of all shades and stripes. The effect has been soul-deadening. In the past fifteen years, more and more of our children have been exposed to the worst amount of violence ever recorded since pre-Independence. Not even the Saba Saba days were this violent. It is time Kenyans said enough; it is time they realised that their choices have had pernicious consequences. It is time that we changed.

The victims of the Westgate attack demand that we change. Their blood is the sacrifice we needed to realise that we cannot be led by the nose any more. Our safety and our sanity - nay, our lives - depend on us changing the equation. Many will resist drawing a line between their choice of political leadership and the Westgate mall, but it is there for those with eyes to see. It is our elected representatives who have refused to allocate resources for the training of a police service we can be proud of. It is our elected representatives' contempt for the rule of law and for due process that has seen national security being equated with police body-guards, at public expense, for nabobs and nawabs who do not need it. It is elected representatives who, instead of asking the right questions, in the right manner to the right people, who will spend the next three months staring at their navels, wringing their hands in despair, and making the wrong decisions for the wrong reasons and with the wrong motives. Until we elect men and women who put us first, and who take our safety as being more important than theirs, Westgate is set to be the first of many al Shabaab successes.

It is not enough that we line up like lemmings to choose our leadership; we must go much further than that and actually hold them to account for their actions in Parliament. Harebrained civil society acts of civic disobedience capture the public imagination but are short term and ineffective. If Kenyans began engaging, actively so, with their elected representatives (and not just to beg for handouts), by demanding answers and solutions to bread-and-butter problems, perhaps we might begin to reverse the tide of public decrepitude that hold us hostage to the likes of al Shabaab. We can change. Or we can die.

Sunday, September 22, 2013

Safety and Security.

It is not any one thing that could have prevented the attack on the Westgate Mall in Westlands, Nairobi. But all the terrorists needed was for one of those things to fail in order for them to succeed. Since the Kenya Defence Forced obeyed their Commander-in-Chief's order to deploy to Somalia and deal with the al Shabaab threat, Kenyans have been placed on high alert to acts of terrorism. These have followed one another with buses, religious crusades, bars and places of recreation being attacked by the terror outfit. Kenyans have had to endure heightened scrutiny from increasingly blase security offices at various installations and businesses. With the notorious attack by the former Deputy Chief Justice on a security officer at another high-end mall on New Year's Day, Kenyans have increasingly chafed at being prodded and scrutinised while entering places of business that prod and scrutinise their patrons.

The safety of Kenyans has frequently taken a back-seat to the security of the nation, and of its means of doing business. The priority, obviously, in security has been the preservation of the State and its authority. This is reflected in the statutes that we have on the books regarding policing, the military forces, intelligence and official secrets, as well as in the deployment of forces of law and order. Al Shabaab must have studied the security situation in the capital and drawn the proper lessons in order for them to take this rather bold step of attacking a symbol of Kenyan middle class advance. The procedure when entering the mall is not designed to identify and stop threats; it is designed to feed the mirage of safety in the minds of patrons. It is ineffective in interdicting threats. It is a facade.

When Kenyans were brutally murdered in Western Kenya in the aftermath of the general elections, the calls for enhanced security from elected lawmakers were more or less ignored. This followed a pattern established in the wake of similar attacks in North Eastern Kenya and the Coast. Indeed, even after dastardly attacks in the Capital, the reaction differed only in the volume of name-calling and blame that issued from elected representatives, and the knee-jerk deployment of uniformed police by the Executive. A determined enemy, which al Shabaab surely is, would find a way around the rudimentary public safety system in place, which it did on Saturday.

The police are fond of reminding us that security, as opposed to safety, begins with us. We, the civilian population, must be vigilant and identify and report security threats whenever we find them. However, our national psyche is such that we refuse to take even the most rudimentary steps to manage public security; we are more concerned in building ever higher razor-wire-topped walls around our homes than in taking notice of strangers in our neighbourhoods. Residents' associations take the question of security only as seriously as they are required to pay security fees and leave the security management to one or two people. Our mindset revolves around "Me, me, me."

Our mindset is a reflection of the Executive's mindset, indeed the mindset of the whole government. In its determination at self-preservation, the State has treated its subjects with disdain and barely concealed contempt. The people are a threat, always. They are to be treated as a threat, at all times. Their input into the management of the security of the State will be taken only when all other options have been exhausted, including extra-legal measures such as unlawful detainments and detentions. Or unlawful renditions of undesirables to places outside Kenya without the bother of an order from the Judiciary. The rule of law, such as it is interpreted to be by the government, is frequently a weapon deployed against the people than for the people.

Our focus on national security at the expense of public safety all but guaranteed the siege at the Westgate. Because of the Executive's selfish outlook on national security, the deployment of forces of law and order is not designed to keep the public safe, hence the lack of police presence in and around high-value, high-volume places of recreation favoured by the public. It is why when the initial reports of gunfire and explosions at the mall were received, the police dismissed it as just another robbery, and why it took them over an hour to respond and even then, not in force. It is why Kenyans are prepared to believe that in addition to the deployment of elements of the Kenya Defence Forces, there are foreigners among the security officers responding to the siege. It is all but guaranteed that if we do not shift focus from national security to public safety, Westgate will not be the last, or the most heinous, success of the dastardly footsoldiers of al Shabaab.

What if?

One of the arguments advanced in calling for the halt of the trials of Kenyans at The Hague is that we now have the capacity to investigate such offences and try them in a just manner. Is this true?

An administration of justice system relies on police investigations that are credible, and the rule of law when a prosecution is conducted in the courts. The rule of law means that judges will make determinations without considering the status of the accused. These two elements are yet to be credibly tested in Kenya.

Those hailing the reforms in policing should look at the manner in which the investigations into how the offences committed in 2007 and 2008 were handled. When the Director of Public Prosecutions examined three hundred files relating to the offences, he determined that none of them could proceed to trial because of the quality of police investigations. The oft repeated description of the investigations was "shoddy." One of the persons fingered by Witness No 536 in the trial of the Deputy President and a radio journalist was acquitted by the courts in Kenya because of the poor quality of the investigation into the murders that were committed when the Kiambaa Church was set on fire. He was not acquitted because he was innocent; he was acquitted because the police did a bad job in collecting information, evidence or testimony that would persuade a magistrate of his guilt, or exonerate him, after a trial.

Two of the persons being tried at the International Criminal Court are the President and Deputy President. Their status in Kenya is among the highest, if not the highest. Even before they were fingered by the Prosecutor of the ICC, the accused enjoyed prominence in Kenya. Mr Kenyatta is the son of Kenya's first President; Mr Ruto is renown as the leader of the disparate tribes known as the Kalenjin. Both wielded great political power then, and greater still since their election. And despite claims to the contrary, the rule of law is not applied impartially in Kenya; status is still vital and it bends the court, every now and then.

Much has been made of the fact that the ICC Prosecutor relied on civil society organisations, and the Kenya National Commission on Human Rights, in his investigations into the Kenya situation. The main complaint has been that civil society and the KNCHR have had it in for the President and Deputy President for the longest time possible. There is much truth to this; the campaign of the former chairman of the KNCHR against the two, first to prevent them from standing in the March 4 general election, and second to see them tried at The Hague is a mark against the Commission. But the alternative is equally troubling.

The ICC does not have a separate police force of its own capable of conducting credible investigations. It must rely on sources on the ground in the countries where it conducts investigations. In Kenya, it could have relied on the police, especially the Criminal Investigations Department. But given the political power wielded by the two main accused, and the efforts of the Executive to stymie its initial investigative efforts, it is not surprising that it also relied on the KNCHR and civil society groups with axes to grind.

What this means is that it is facile to claim that an investigation against Mr Kenyatta and Mr Ruto would have been credible whether or not the ICC relied on non-state actors (though the KNCHR is a state actor.) Kenyans must admit, if to themselves only, that the possibility of credible investigations went out the window when the police could not mount credible prosecutions of the "low-hanging fruit" of those ho had been identified in rapes, acts of arson, mutilations or had been clearly identified committing acts of murder. This had been made impossible when politicians, including the former Prime Minister, coming to the defence of "youth who had only come out for peaceful mass action" and asking the State authorities to let them go.

If Mr Justice Waki had not created a secret list of suspects, and if he had not handed over the list to the AU mediator, and if he had not asked for a special mechanisms to deal with the events of 2007/08, and if he had not asked that the ICC be involved in the affair, would there have ever been trials to address the affair in Kenya? When Mwai Kibaki and Raila Odinga endorsed the findings of the Waki Commission report, they set the stage for the involvement of the ICC. If only the Tenth Parliament had ignored the short-term political advantage of stymieing the establishment of a "local mechanism," the President and deputy President would not be in the cross-hairs of the ICC. Maybe by now they would already have been exonerated for the crimes committed and they would have more vital things to worry about in governing the country.

Are they saying that it is all about tribe?

The campaign to bring the ICC trials of the President, Deputy President and a radio journalist to a close has employed one of the most sophisticated propaganda machines not seen since the general election campaign that brought Uhuru Kenyatta and William Ruto to power. Anyone who looks at it as anything less requires a new set of bifocals.

Two events over the past two weeks confirm this. When the Deputy President and the radio journalist winged their way to The Hague, in addition to their families and friend, they were accompanied by a a gaggle of politicians who tagged along "in solidarity" with the accused Kenyans. The politicians along for the trial are a motley bunch; some are pretty intelligent; others barely have the gravitas to order orange juice in a restaurant. What unites them is their determination to impress upon the International Criminal Court that they consider the trial of the Deputy President to be a colossal miscarriage of justice; that they will stand by the Deputy President to the bitter end; and that the people of Kenya approve wholeheartedly with their intentions regarding the trial.

The politicians, many of whom happen to be sitting Members of Parliament, have made asses of themselves at the court. Some of them have been very active in demonstrating their piety on the court steps, praying loudly and emphatically every time the Deputy President made his way into and out of the court during the trial. The Dutch police, and quite rightly too, has put a stop to this. They have directed the prayerful Kenyans to hold their public displays of piety away from the court's doors, or in a specially designated room in the court building. Quite understandably, the MPs are not interested; they are only interested, so far as this blogger can tell, in garnering acres of free press in Kenya's newspapers and hours of footage for the TV viewers back home. That cannot be achieved if the Dutch police shove them out of their preferred prayer zone.

While the antics of these MPs have been comical, what they have managed to achieve in Parliament is anything but. Both the Senate and the National Assembly have passed motions calling for the withdrawal of Kenya from the Rome Statute, a process that will take at least a year once initiated. Outside Parliament, the increasing influential voices of intellectuals and professionals in support of the withdrawal is having a subtle effect on the way Kenyans frame the questions around the trial. In the Standard on Sunday, Donald B Kipkorir makes a sophisticated and lucid argument for the Prosecutor to withdraw the case against the deputy President and the radio journalist. (I implore you Madame Fatou Bensouda, drop these cases, 22/09/13.) On social media, even apparently disinterested intellectuals and professionals have been making the case for the termination of the trials of both the President and Deputy President. Their grounds range from the banal to the cogent.

None of those calling for the withdrawal of the cases has even attempted to argue that the trials should never have been initiated because the accused were innocent, which is very striking. While there is a presumption of innocence in all criminal trials, this presumption only seems to apply when lawyers make a big deal out of it. The rest of us seem to think that to be accused is to be guilty; and the higher your social standing when you are the accused, the guiltier you are. You can't get higher than President and Deputy President.

Instead, many of those calling for a halt in the process have taken to describing the political situation as grounds for the halt of the trials. All of them are obsessed with the idea that Kikuyu and Kalenjin are traditionally hostile to each other and that now that two of their senior-most politicians are sharing power, it is ill-advised to try them for offences that were committed when their communities were ostensibly at war with each other. While they add and subtract different rationales for an end to the trials, this seems to be the principle one. And it is incredibly offensive, especially to victims of the 2007/08 violence who are not Kikuyu or Kalenjin, and who suffered grievous losses and injuries.

The narrative that has been constructed around the two trials is that it is a matter for two tribes; the rest of Kenya does not have a dog in this fight. It is an observer, a bystander without an opinion worth hearing. The argument is that the 2007/08 crisis was an inter-ethnic bloodletting that arose because of the inherent ambitions of the leaders of the two tribes that has now been assuaged because the two tribes share power and that Kenya stands to benefit politically and economically from the union of the two tribes. Whether the Prosecutor has proof that the President and Deputy President have a hand in the events for which they are being tried is immaterial. What matters is that two tribes have reached a rapprochement. The blood of the dead and wounded is neither here nor there.

Saturday, September 21, 2013

Will outlandish conspiracy theories define the ICC trials?

It is a case where we must agree to disagree. This blogger has no love for the International Criminal Court, or its Office of the Prosecutor, and is of the opinion that the decision by the member States of the African Union to withdraw from the Rome Statute will be vindicated in the long run, especially if the African Union sets up its own international crimes tribunal. But in the trial of the Deputy President of Kenya and a radio journalist, this blogger is forced to disagree with Senior Counsel Ahmednasir Abdullahi who advances the preposterous argument that the trial has become akin to a trial by "unflattering regimes like military juntas and dodgy and unaccountable tribunals." (Let Ruto, Sang confront accusers in open court, Sunday  Nation, 22/09/13.)

Mr Abdullahi relies on the following planks to advance his argument: that the Court is overly solicitous of the Office of the Prosecutor, granting it its every request; and that the decision of the Court to hear the testimony of the first witness called to the stand by the prosecution in camera is designed to deny the defence, and the public, an opportunity to confront their accuser in public. That, at least, seems to be the sum of the Senior Counsel's gripe with the ICC. And he is wrong.

His blanket statement that "[In] camera trials are a rarity in criminal trials. Such trials are associated with unflattering regimes like military juntas and dodgy and unaccountable tribunals" is true, but not in the way that he frames it. Criminal courts will not hesitate to hide the identities of child witnesses or witnesses who have been victims of sexual offences. In certain circumstances, witnesses who fear for their lives may have their identities hidden, especially if they wish to return to their communities, and do not wish to be spirited away to witness protection programmes. It is at the discretion of the court to determine when to hide the identity of a witness from both the accused and the public. In the Deputy President's case, while charges were filed against him before he became the Deputy President, the change in his circumstances necessarily changes the nature of the relationship between him and his accusers. The fear by the Office of the Prosecutor that the witness may likely be molested after giving her testimony, or if the Deputy President is acquitted, remains strong.

What Mr Abdullahi must consider is that this is not a secret trial; it is a public trial with parts of it that are kept secret. Even when the Office of the Prosecutor was applying to the ICC for permission to file charges against the accused persons in the Kenya cases, the Prosecutor relied on some secret evidence. This evidence was disclosed to the accused; but it was not generally disclosed to the public. Mr Abdullahi has rightly pointed out that the accused is entitled to a fair trial, which would include that it is not held in secret, or by applying secret rules of procedure, or relying on secret evidence and testimony known only to the prosecution and heard by a secret panel of judges who are accountable to no one. This is not the case with the extant trial. While a witness has been allowed to testify in secret, and some of that witnesses testimony has not been disclosed to the public, only the identity of the witness has been kept from the defence and not the substance of her testimony. The defence need not know the identity of the witness in order to challenge the sum and substance of that witnesses testimony. If the accused person did not do what the witness claimed that he did, it is simplicity itself to prove that. On that plank, alone, Mr Abdullahi must reconsider his attack on the trial.

However, Mr Abdullahi's claim that the Trial Chamber V and, indeed, the entire ICC, is led by the nose by the Office of the Prosecutor deserves greater scrutiny. If it is true then the whole process has been charade. It would mean that when the Office of the Prosecutor applied to the Pre-trial Chamber II for permission to investigate the Kenya situation, that the sole judge who refused to go along with the majority was merely play-acting; the Pre-trial Chamber had already decided in favour of granting permission for the investigation. The same would be true too when the Office of the Prosecutor filed the two cases against six Kenyans; the dissenting judge was merely pulling the wool over our eyes for a decision that had already been determined. Even for conspiracy theorists, this seems a bit over the top.

This blogger is of the opinion that trials cannot to be held in the media; the media can report on a trial, the public can benefit from being informed of it, but neither can make a determination on the facts argued before the court. The court cannot render its judgment based on an opinion poll. Indeed this is what those who suggested that the election of the Deputy President was a "referendum" on whether or not he should stand trial and they were manifestly wrong. If that were the case, then all a person accused of heinous crimes need do is to stand for election; if he is elected, he is innocent and if he is not elected, send him straight to jail without even the bother of a trial. The Deputy President and the radio journalist have been accused of heinous crimes. The process of bringing them to trial has been tortuous, but fair. The trial is proceeding apace. The outcome is no longer in the hands of the press or the public, but in the hands of the prosecution, the defence and the court. If they are acquitted, that should be the end of the affair. Many Kenyans, but surely not all of them, have faith in the ICC process more than they do in Kenya's Judiciary. When this trial is over, we may find out if their faith is misplaced or not.

Business at the grassroots is the key.

Taking a hard look at the Fourth Schedule of the Constitution, after a hiatus of three years, is an eye-opener. If the intention of the Committee of Experts was to convert devolution into glorified local government, they succeeded beyond their wildest dreams. It is why when one hears of the Big Plans Kenya's forty-seven governors have made one is struck with their chutzpah, their moxie, their balls. The governors' interpretation of the Constitution that they are akin to the president, but at "grassroots" level should be dispelled with quickly, before they do irreparable harm to devolution.

One of the principle reasons why devolution s popular with Kenyans was the inequity in the distribution of national resources. For example, official neglect of the North Eastern Province, parts of the Coast Province and the northern reaches of Eastern Province were demonstrated by the low allocation of development funds by the erstwhile central government. The only relationship that seemed to matter to Nairobi seemed to be the one that treated the residents of these regions as security threats to be manged. This was acutely experienced by these people whenever they applied for national documents of identity, such as the national identity cards every adult is required to carry. Before they were issued with one, a district security committee had to confirm that they were Kenyans, even after they submitted copies of their parents' IDs and birth certificates. This system still prevails today in the shadow of the devolved government and by all means seems to be a permanent situation.

The dream of devolved government survived the attentions of the Tenth Parliament, but only in a bastardised form. While many governors think that what they have is a federated style of government, the truth of the matter is that what they head are little more than glorified local authorities. If they were to take this in good stride, they could go far ion affecting the course of government, even in Nairobi. If they, and their senators in Nairobi, insist in pushing the national government, especially the National Assembly, to grant them more powers and more responsibilities, they may miss the opportunities to positively affect the lives of Kenyans at the grassroots and this is an opportunity they may never get again.

In Nairobi and Mombasa, for example, the biggest challenges revolve around income-generating activities, especially petty vending and small-scale retailing. The majority of residents in the Capital and in Kenya's gateway make their living from either the "informal sector" or peddling wares door-to-door, in markets or as "hawkers" in the central business districts. What they require are systems that guarantee that they are able to earn a decent living, earn a decent profit, and suffer few regulatory penalties. The situation that prevails today makes all small-scale vendors and hawkers petty offenders attracting the attention of over-zealous municipal inspectorates, such as the City Council askaris, and their batons.

While many governors have led their counties in drafting legislation that would expand investment and investment opportunities for "major" investors, they have ignored the small and medium enterprises sector that accounts for a large part of the employment and economic opportunities in their counties. It is time they swiftly turned their attention to this vital sector. They must begin by reviewing the extant by laws; these have been the bane of the SME sector for decades. The aim should be to simplify the process of applying for and obtaining permits. The Single Business Permit regime must be reformed to account for the increased numbers of vendors, and the decreased slots in authorised markets and shopping centres.

Secondly, county governments must invest more in expanding legitimate locations for the carrying out of legitimate business activities. Markets and shopping centres must be modernised and expanded in size to attract more vendors and sellers. If the costs of operations for SMEs can be kept low, and the incentives for investing in the SME secotr made more attractive, one of the pernicious problems of the SME sector (unlicensed hawking) may be eliminated. It will take a concerted and sustained effort by county executives. But given their nascent proclivity towards white-elephant investment, it might be a while before governors see the light in the small sector than in the big ticket investments of foreigners and established conglomerates.

Sunday, September 15, 2013

The question remains: Who speaks for the victims?

The Kenyan cases were forced on the Court by America and European countries with a view to determining the political destiny of the country post-Kibaki. ~ Ahmednasir Abdullahi, Sunday Nation (15/09/13)
It is very easy to re-write history; all one must do is to ignore facts on the ground because the human memory is fickle and easily manipulated in an age of twenty-four hour news cycles. The trope that Barack Obama and his surrogates in the European Union engineered the indictments of the President and Deputy President, before they were elected, has gained currency, even among the ranks of those who should know better, including Mr Abdullahi.

When analysing the first day of the trial of the Deputy President, Ahmednasir Abdullahi continues to peddle the notion that had it not been for the interventionist foreign policy intervention of the United States and the EU regarding the political environment once Mwai Kibaki retired, Messrs Kenyatta and Ruto would not be facing charges at the International Criminal Court. This is the principle political plank of the President and Deputy President in their ongoing post-election war with the former Prime Minister. And it is wrong.

In case Mr Abdullahi has forgotten, the sequence of events went something like this: in 2004/05, Kenya acceded to and ratified the Rome Statute. While the treaty was an American brainchild, Kenya did not have a gun figuratively pointed at its head to accede to or ratify the treaty. Next came the ill-fated referendum; Mwai Kibaki and Kiraitu Murungi decided to fiddle with the draft Constitution and submit it to a referendum. Raila Odinga, Uhuru Kenyatta, William Ruto and Kalonzo Muyoka, and a coalition known as Orange, campaigned against and defeated the draft Constitution at the referendum.

In 2007 President Kibaki and Martha Karua, his justice minister, unilaterally appointed members of the Electoral Commission of Kenya to replace others who had retired. They did so knowing full well it would raise questions about the President's dedication to free or fair polls. Uhuru Kenyatta abandoned his second attempt at the presidency and supported Mr Kibaki's tainted candidacy. Mr Ruto, who had supported Uhuru Kenyatta in 2002, was firmly in Mr Odinga's camp and he helped bring the vast vote-basket of the Rift valley to Mr Odinga's side. When the final tally was controversially announced by the late Samuel Kivuitu, Mr Odinga, with Mr Ruto by his side, called for "mass action, peaceful mass action" to challenge the result. At that moment, all bets were off.

By December 29th of that year, the protests, which had started out peacefully enough, were violently suppressed by Mr Kibaki's security forces under the command of the retired Commissioner of Police, Gen Hussein Ali. On January 3rd, the fight-back began and the protests and counter-protests became more than about the results of the election. Violence engulfed the Rift Valley, the Capital and Western Kenya, including Nyanza. By February, the violence had been violently suppressed and Kenya's "development partners" were calling for negotiations to settle the question of what form the Government of Kenya would take. The African Union first sent former Ghanaian President John Kuffuor to mediate. He was rejected by Mwai Kibaki's boys, including Uhuru Kenyatta. Then they sent the former Secretary General of the United Nationa, Kofi Annan and a specially appointed Panel of Eminent African Personalities, including the rightly sainted Graca Machel.

By the end of April 2008, the teams negotiating on behalf of Mwai Kibaki's PNU and Raila Odinga's ODM had agreed to terms. The agreement became the National Accord and Reconciliation Act, 2008, which was entrenched in the former Constitution. It created the position of Prime Minister and Raila Odinga was appointed to the position by Mwai Kibaki. Of the key lieutenants to the principals who benefitted from the Accord, Uhuru Kenyatta was appointed Deputy Prime Minister, but not William Ruto who felt betrayed. 

Under the Accord a Commission of Inquiry was appointed chaired by Philip Waki, a Court of Appeal Judge. It was to inquire into the causes of the violence after the elections and present its findings and recommendations to the President for action. It went beyond its remit. In addition to holding hearings, interviewing witnesses, visiting hotspots and reviewing classified and public documents, it considered Kenya's history of Commissions of Inquiry. In making its recommendations, it invoked Kenya's obligations under the Rome Statute and recommended that a special judicial mechanism be established to deal specifically with the crimes that were committed in Kenya between 27 December 2007 and February 2008. If the government of Mwai Kibaki failed to do so, the Commission had prepared a secret list of persons whom it thought bore the greatest responsibility for the violence, which it handed over to the chief mediator, Kofi Annan, who was to hand it to the Chief Prosecutor of the ICC.

Mwai Kibaki and Raila Odinga favoured the recommendations of the Commission. They tried, three times, to establish the special mechanism recommended by the Commission. On the face of it, Mr Ruto and Mr Kenyatta were foursquare behind the President and Prime Minister. But Mr Ruto could not forgive Mr Odinga for the betrayal of appointing someone he considered his political subordinate as Deputy Prime Minister in his stead. His support for what came to be known as the local mechanism was in word only. He seemed to direct the cohort from the Rift Valley to reject the Hague option. They, led by the likes of Isaac Ruto, were vocal in their support for the Hague option. Their rallying call was, "Don't be vague, go to The Hague!" Within two years they prevailed; Mr Annan handed over the secret list to the Prosecutor of the ICC, Luis Moreno-Ocampo, and he in turn applied to the International Criminal Court for authority to investigate the Kenya situation.

All along, Mr Kenyatta and Mr Ruto must have been confident that as the violence was a about the results of the general election, especially the presidential election, the ICC would either not indict anyone, least of all them , or it would indict the two principals, the President and Prime Minister. Mr Moreno-Ocampo made it clear that should he receive authority to investigate the Kenya situation, he would make Kenya an "example" for the world. This has wrongly been presumed to mean that Mr Moreno-Ocampo had already identified Messrs Kenyatta and Ruto as suspects and conducted his investigations, with the help of dodgy NGO outfits, to confirm his preconceived notion. As with many allegations made during this ordeal, no evidence has been advanced to support this assertion. In the end, Mr Moreno-Ocampo filed charges against six men in two cases, and these were confirmed against four. One person had the case against him withdrawn for lack of evidence and recanting by witnesses.

The role that was played by a State agency, the Kenya National Commission on Human Rights, and the Waki Commission, cannot be gainsaid. The latter's methods and findings were largely accepted by Kenyans; and not until the charges were filed did anyone suggest that the KNCHR had been in cahoots with the US government or the EU. By all reasonable metrics, Kenya willingly and knowingly brought upon itself the uncomfortable spectre of its President and Deputy President standing trial for international crimes at an international court in a foreign country.

This blogger is all for the members of the African Union withdrawing from the Rome Statute, but this should not be done with the aim of protecting African despots and serial abusers of human rights from being held to account. But that seems to be the principle motivator of those calling for the withdrawal of African states from the treaty. Sovereignty, the key buzzword of those calling for withdrawal, is meaningless if it is to be expressed in the slaughter of innocents during political disagreements such as happened in Kenya and none being held to account. Even Mr Abdullahi must admit that thousands of Kenyans were murdered in 2007 and 2008; tens of thousands were maimed, injured and raped; hundreds of thousands were displaced; and many of them lost billions of shillings of their properties. None of the victims has been compensated. The men and women who committed these crimes are yet to face justice in our much-vaunted halls of justice. If there are men and women who plotted the atrocities, they are yet to face justice either. This seems to have slipped the minds of those seeing global political conspiracies in the trials of the President and Deputy Presidents.

Saturday, September 14, 2013

Presidential security, statutory contempt and road carnage.

There's a simple explanation for why Kenyans will continue to be slaughtered and maimed on our Chinese-sponsored-and-built "super" highways. It has nothing to do with the Big Idea of a "culture of impunity." It is not linked to which tribe's turn it is to "eat." It is not because only of the incompetence of drivers and law-enforcers alike. It is because of all these and none of these. But at the core of the reasons for the continuing carnage lies a fundamental truth: Kenyans have a deep and abiding contempt for the law and for the rule of law. From the President on down, our respect for the law is measured by how many statutes we bend, manipulate, ignore, side-step, circumvent, suborn, undermine and outright break.

Before this blogger is accused of showing contempt for the institution of the Presidency by linking it to the national malaise of contempt for the law on the road, let us examine a few uncomfortable facts. Is there a Kenyan alive who can identify the piece of legislation that permits the presidential motorcade to flout the Highway Code? Can anyone prove that, by law, the President must at all times travel in a traffic bubble in order to keep his ass from getting fragged on the highway by some asshole with an axe to grind? Where does it state that the Presidential escort must travel in packs, like hyenas, and bully law-abiding road-users from the path of the presidential cavalcade? In other words, what is the law on presidential motorcades, or even presidential security for that matter?

If the President, mini-presidents, speakers, Cabinet Secretaries, Principal Secretaries and sundry movers-and-shakers cannot be bothered to drive within the ambit of the Highway Code - the Traffic Act for those anally retentive, lie yours truly - why should the new owner of a shitty grey import or the high-as-a-kite "pilot" of a PSV bother with even a rudimentary knowledge of that vital set of rules? In Kenya today, and over the past fifteen years, we have elected leaders, not rulers. If we were living in a time when our President ruled us, then it would matter not that he, and his security minders, thought of the Highway Code as a minor inconvenience. But we have leaders today. This is an important distinction. Leaders show us the way; they guide us to our hearts desires, whether they are economic liberty or academic excellence. Therefore, the fact that our leaders choose to publicly and notoriously demonstrate a mighty contempt for the Highway Code is crucial to understanding why Kenyan drivers, generally, will never respect the -road, road users or traffic rules.

We take many things for granted. One of them is that because of the place of the Presidency in the governance of the nation, and the power that the Presidency wields, that it is fit and proper to take reasonable and extraordinary measures to protect the person occupying the office. No one has seen fit to question the statutory justification for the offences committed in the name of presidential security. It is why none has seen fit to question the mass land grab that has taken place in public places by, mainly, public institutions in the name of security.

Take Harambee Avenue, for example. It used to be one could walk from the Treasury to the National Assembly without encountering a single fence, save around the Office of the President. Now even Vigilance House has barricaded itself behind a high fence and proceeded to grab the pavement in from of it to keep out God knows who. Pedestrians must walk on the road (an offence) because the armed policeman in front of Vigilance House might (now) shoot you for walking in front of one of the most militarised address on Harambee Avenue.

Our leaders demonstrate contempt for the law on a daily basis. They encourage us to do the same. When we do so, we suffer tragic consequences. In addition to the leading causes of road traffic accidents, and the deaths and injury they engender, such as drink-driving, speeding, and driving unroadworthy vehicles, the biggest contributor is the false belief amongst road users that rules are meant to be broken. After all that is what our presidential security details demonstrates every time they swat us hoi polloi out of the way in the name of security.

Friday, September 13, 2013

Luis Franceschi is wrong.

Luis Franceschi is wrong. It is that simple. The solution to the slap heard around the country - indeed, the world - is not to talk it out between the slapper and the slapped. The Governor of Nairobi City County committed an offence - Ahmednasir Abdullahi, a member of the Judicial Service Commission called it a strict-liability offence - by striking another person who just happened to be the Woman Representative of Nairobi City County and a woman known for her sharp tongue, sharper elbows and general aggression in a cause dear to her.

In the Friday Nation, Mr Franceschi begins promisingly enough (Slapping the Constitution, 13/09/13). He states, correctly, that slapping a woman is totally out of place, no matter the circumstances. Then he goes all woolly. Instead of demonstrating that he understands the effect of the Governor's assault of the Woman Representative on the millions of women who suffer silently at the assaulting hands of men, he first proceeds to suggest that the Woman Representative contributed to being assaulted, and that rather than have the police investigate, that the two, perpetrator and victim, should sit and talk. Talk about what?! Even if the Governor apologises, this does not wipe away the fact that he committed a crime.

In Kenya, men run everything. The President and Deputy President are men. The forty-seven governors are men. The Speakers of Parliament are men. I believe only one county elected a woman as its speaker. The Cabinet is dominated by men. In only two influential ministries are women in charge: Defence and Foreign Affairs. But neither has much to do with domestic policy, not directly anyway. It is not just in the public sector.

A majority of management positions in faith-based organisations are held by men. The main Christian churches in Kenya - Roman Catholic, Anglican, Pentecostal and Presbyterian - are managed by men. Islam in Kenya is under the direct and exclusive control of men. In business, I think only the DTB bank has a woman CEO. The remaining major banks - Equity, KCB, Barclays, Standard Chartered and CFC Stanbic - are managed by male CEOs. In media, again, it is probably only Inooro FM that has a woman CEO. KBC, the Nation Media Group, the Standard Group, Royal Media name it, are under the direct control of male CEOs. It is not a stretch to suggest that the place of men in the power dynamics of the institutions that make and mould opinions in Kenya is a primary one. Women, play secondary roles and are to be "managed" by the men in charge.

This is why it is shocking that men who should know better would suggest that it is normal for Mr Kidero, or the Senator of Nairobi, to carry on in their positions for what they did in the past week. Both acted in a manner that confirmed for the world to see that in Kenya, at least, women are to be seen and not be heard. If they were to suffer violence, verbal or otherwise, at the hands of men, they were to deploy their mediation and negotiation skills and "talk it out." They are not to demand satisfaction in the halls of justice. In Mr Kidero's case, Mr Franceschi suggests that if Mr Kidero is punished for his violence, Nairobi will suffer because his managerial hand will otherwise be occupied. If I remember correctly, Mr Kidero was not the only experienced manager contesting the Nairobi City Governor's seat. Mr Jimnah Mbaru, a billionaire investment banker, readily comes to mind. Nairobi City will not miss a step simply because Mr Kidero is cooling his heels in gaol.

Thursday, September 12, 2013

Ignorance of the law should not convict a Kenyan.

It is time for the ends of justice in Kenya to dispense with the Ignorance Rule. The rule states that ignorance of the law is no defence. It was created for a jurisdiction and at a time in which its application was easy, straight forward. Its draconian application in Twenty-first Century Kenya frequently defeats the ends of justice. It is manifestly unfair as demonstrated by the hundreds of Kenyans convicted simply because an officious government applies obscure statutes to obscure acts that no reasonable Kenyan could possibly consider to be unlawful.

In the past decade alone, Kenya has enacted close to a hundred statutes. Some are very detailed. All are drafted in English. All may be obtained either on the internet for free, or at the Government Printer for a fee. None is distributed to the "ordinary" Kenyan. None is translated into any of the near forty local dialects. Public education on the enactment of new laws is conspicuous by its absence. How is the "man on the street" to defend himself when he cannot reasonably know what the law is, what it says, and what his obligations are under it.

The Constitution proclaims its supremacy, and declares the sovereignty of the people. But these constitutional principles are meaningless if the application of the laws made under the Constitution fail to account for the peculiar circumstances of the many users of the law. Official government statistics tell us that significant proportions of Kenyans cannot speak, read or write in English. Others cannot read or write. many do not have access to the internet. 60% live in rural areas without access to either electricity or government officials or to both. It is unjust to expect that these people will know the law in order to modify their behaviour in accordance with the law.

Even those who should know the law are not knowledgeable about the law. They may be educated, with access to the internet, and with the facilities to find out what the law is. But their lives do not revolve around their education in what the law is or what it means. Many must earn a living; they may or may not know what the law says regarding the activities they undertake when they go about their business. It is unjust to expect them, too, to know what the law is and to apply it.

In Kenya, there is no reasonable circumstance where Kenyans can honestly be expected to know the law. None. Even with education and access, and the capacity to know what bit of the law applies and which one does not, it is inevitable that large swathes of the Law of Kenya will remain unknown to a majority of Kenyans. Therefore, it is time for the courts to rule that ignorance of the law, even where it cannot be proven, is a defence. If the law is enacted in Parliament, and Kenyans are not educated about it in the broadest way possible, or the law is distributed to the widest number in the language that allows them access, and understanding, there is no reasonable expectation that Kenyans will know what the law is. It is only the State and lawyers who benefit from this rule; Kenyans, on the other hand, continue to be victimised by the law, not protected by it.

In search of political legitimacy?

Managing expectations is harrowing, especially when the expectations you are expected to manage are from men and women incapable of rational, logical discourse within their particular group. The cheerleading squad that accompanied the Deputy President to The Hague is one such group. Individually, each Member of Parliament is capable of erudition when discussing matters of national importance. Collectively, they are a mess. A hot mess.

Nothing demonstrates this as the expectations they have built up regarding the eventual acquittal of the Deputy President of all charges laid against him by the Office of the Prosecutor. Mr Ruto has done nothing to dampen their ardour. Indeed, he has ratchetted up their expectations such that it is near impossible to ask them to consider an alternative outcome. Every word that comes out of the mouths of Mr Ruto's capable team of lawyers is treated as just another element towards his eventual redemption at the International Criminal Court.

And it is not just the politicians we must watch. Even sensible lawyers in public and private practice have built up a nasty habit of ignoring unpalatable truths about the way the trial of the Deputy President is going. Otherwise sensible lawyers have sacrificed their legal intelligence at the altar of Hail Mary Passes. Many of them watched the Opening Statements of the defence counsels and decreed them to be the superior ones when measured against those of Fatou Bensouda, the redoubtable Gambian, and her team. When the Judges of the Trial Chamber V called out Ms Bensouda for not preparing adequately to lead her witnesses, they took this as a sign that the chief Prosecutor's case was much weaker than she has led everyone else to believe. Mr Khan and his team are the Seconed Coming; Ms Bensouda and hers are the witch-hunters in the employ of unnamed foreign powers out to foment evil in Kenya by any means necessary, relentlessly hounding the Deputy President out of some animus that has no foundation.

This blogger readily acknowledges his inexperience in trial advocacy, though he spent enough time acquiring his law degree and Bar certificate. This blogger has spent his entire professional life on the outside looking in, never having had the opportunity to play in the Big Leagues with the Big Boys. But despite this blogger's inexperience, there are certain immutable truths that even the Big Boys cannot elide. Trials are not won or lost on the strength or weakness of an opening statement, but on whether or not the facts support ones case. Ms Bensouda is yet to lay her case before the court in its totality. Mr Khan is yet to challenge the prosecution's case with counter-facts of his own. This trial is set to run its course. Mr Ruto's guilt or innocence will only be known when the facts have been presented and the judges have ruled one way or the other.

At some point the judges will have to decide whether the trial is worth continuing. In Kenya, this would be the stage when the court asks whether or not the accused has a case to answer. That point lies at least several weeks in the future. The fawning entourage of waheshimiwa making asses of themselves at the International Criminal Court viewing gallery must surely realise this. Unless their intent is not to discover the guilt or innocence of their friend-in-need. Perhaps, just as it has always been in Kenya, they are hedging their bets. If they are seen to be robustly foursquare behind the Deputy President, they may benefit politically on the off-chance he is acquitted. Or convicted. To them it might not matter one way or the other. What matters to them is the appearance of political loyalty. The facts, as always, are mere tools in their quest for political legitimacy. It would shock Mr Ruto to know that perhaps all those loyal voices in the gallery are there only to be seen by others at home, and not necessarily in support of his personal challenges.

Wednesday, September 11, 2013

Go! and be done with you!

Misogyny, apparently, has not been vanquished from our fair land by the Constitution. The exhortation against discrimination on the basis of sex, among other grounds, seems so much ho-hum when measured against the gubernatorial slap or the senatorial verbal assault. If the men at the highest echelons of our government are unable to see that what they did and what they said is wrong, or that they should ask the good people who elected them for a fresh mandate, then Kenya has many miles to travel before it can truly say that women are the equal of men in every respect. Those that would argue that the women at the receiving end of male assault were to blame, whether for finger-wagging or for pseudo-character-assassination, are wrong on the merits and on the facts.

Dr Evans Kidero has attempted to come across as an erudite and civilised kind of politicians. When measured against his erstwhile gubernatorial challenger, Ferdinand Waititu, Mr Kidero is miles ahead of the Embakasi Brawler. That, at least, was the image that he had cultivated in the nation's broadsheets, TV studios and salons of the chatterati. With a misjudged angry reaction to a finger-wagging-in-your-face incident by Nairobi's Woman Representative, Mr Kidero must struggle to rebuild his much-sullied image. Gideon Mbuvi aka Mike Sonko does not suffer from the image of erudition or civilisation. But his diatribe against a famous radio personality, punctuated with references to four-letter-word career progression, demonstrated that when it comes to the competition for the intellectual soul of the nation, Nairobi's Senator has decided to give that particular arena a very wide berth.

What the actions of the Governor of Nairobi City County and his Senator say about the state of woman liberation in Kenya is a cause for pause. It seems not to matter that, even in the pig-in-mud arena of Kenyan politics, women are truly the equal of men. In a twenty-first century Kenya where more and more women are going to school, graduating from university, running businesses and institutions, and keeping home and hearth together, it is incongruous that men elected to high office will not lead by example by treating even the most disagreeable women with respect, and courtesy. 

This blogger is on the record as thinking that Nairobi's Woman Responsible as being no better than her colleagues in the National Assembly. This blogger thinks that the pseudo-intellectual twaddle peddled by the radio presenter on the receiving end of the Nairobi Senator's assault is one more reason why Kenya is surely doomed to mediocrity and flash-in-the-pan plans of no merit. But despite this blogger's despise for the two women, he knows that it is vital for the soul of the nation that they be given a voice in the national commons. If they make intellectual fools of themselves, so be it. But the masculine reaction cannot a muscularly violent one. If we are to remind Kenyans of the vital place of the views of both men and women in the cause of national growth, Mr Kidero and Mr Mbuvi must resign their positions. if they will not do so willingly, their parties and coalitions must call for their resignations. If their parties or coalitions will not do so, it behooves the champions in the civil society industry to take the matter to the High Court and argue that by the elected representatives' public behaviour, they are in violation of the principles enshrined in Article 10 of the Constitution.

We must send a powerful message to all the girls contemplating a career in the public eye that their nation will stand foursquare behind them when they perform their public duties, even when they make fools of themselves. Men have this guarantee and they have abused it for far too long. It is men that gifted Kenya new words in their lexicon such as Goldenberg, Triton, Maize Scam, and Anglo-Leasing. It is men that demonstrate day after day that school-going girls require armed police to protect them from pederasts and molesters of all shades. It is men that have laid this nation low. It is men who are responsible for the very public death of civility and courtesy, and the celebration of mediocrity and political cant. For the sake of our national soul we must tell Mr Kidero and Mr Mbuvi, "Go! and be done with you!"

Tuesday, September 10, 2013

Fimbo ya mbali...

That day certain Kenyans have been waiting for or dreading, depending on where your heart bleeds, is here. The Deputy President, without much fanfare, was called to deny that he is what the Office of the Prosecutor claims he is in open court at the International Criminal Court. Then he let his lawyer do the talking. In hindsight, Mr Ruto should never have presumed on the enlightened interest of Justice Wakia and his fellow commissioners, nor on the good nature of the first Prosecutor in the case; he should, at a minimum, hired a lawyer when it seemed as if the Waki Commission was coming after him and not Raila Odinga. He should have hired a lawyer when the human rights industry in Kenya trained its sights on him and not on the Prime Minister. He should definitely have hired a lawyer when he was never given adequate opportunity (or so he claims) to rebut allegations made against him, and secret lists were handed over to the mediator and the Office of the Prosecutor.

Mr Ruto's sojourn in The Hague is not our concern today; we are more interested in the legions of vitriolic and anonymous commentators on the web spewing hate for or against the continued trial of the deputy President. This blogger is firm in his belief that unless a court of law convicts you of an offense, even the notoriously shoddy courts of law in our neck of the woods, a man must be permitted his liberty to pursue his interests. This blogger refused to subscribe to the argument advanced by the anti-UhuRuto mob that because Mr Ruto had been indicted by the International Criminal Court, and that he had been adversely mentioned in a human rights report, and that he was embroiled in a dispute with a landowner who'd fled Eldoret in the 1990s, and that he was the accused in a corruption trial involving government land, that he should put on hold his political ambitions until these minor, personal legal challenges were resolved. This blogger robustly defended Mr Ruto's right to pursue his political ambitions like any other Kenyan.

Mr Ruto's supporters - more like fans, really - refused to let things lie with this neat principle. As did those who were adamant that Mr Ruto enjoyed no rights at all when he was an accused person. They went back and forth over the "implications" of an accused person holding high office with the pro-Ruto crowd arguing that it was a declaration of Kenyan sovereignty while the other side argued that it would further entrench the "culture of impunity" if the politician held high public office while undergoing trial for international crimes. This blogger would leave things at that but for the acerbic language employed in defence of either side's positions, and the allegations of tribal loyalty or disloyalty that accompany the arguments advanced for or against the innocence of the Deputy President.

Mr Ruto's supporters have advanced supporting arguments that amount to a questioning of the patriotism of the Kenyans who'd see Mr Ruto drawn-and-quartered by The Hague-based court. They question the nationalist credentials of Kenyans who have done much to advance the cause of human rights in Kenya. Those on the other side do not understand how "civilised" Kenyans could stand idly by as accused perpetrators of gross human rights violations are elected to high office or mastermind their parliamentary colleagues to frustrate the course of justice. They fear that Kenya will be a pariah state if it finds a way of manipulating the system to rescue the Deputy President's hide from the ICC.

Now that the trial is underway, there are few options left. Even the bloviators in the blogosphere know that the extent of their influence is limited to their followers and no further. Mr Ruto may or may not be convicted; that is for the ICC to determine. Whether we win the online argument, Mr Ruto's fate, sadly, is in the hands of a court that sits thousands of miles away from the men and women fulminating online.

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...