Tuesday, October 22, 2013

Of sheep and wolves.

Why did we hate the Judiciary so much we insisted on its complete shake up even before we gave ourselves a new constitution? It is not just because the Judiciary had become a presidential rubberstamp, sending us to gaol or to the gallows on "flimsy" evidence, "trumped up" charges or good old-fashioned "witch-hunting." It is also because the Judiciary was not just aloof from and hostile to the public, it lived like its members were princes of old. Judges and magistrates, somehow, ended up on some of the choicest bits of Nairobi real estate for, essentially, being told what to do by the President.

The fiasco of the first attempt at reining in the Judiciary revealed the extent of the rot. Sure, the radical surgery became a witch-hunt too, but not before Kenyans were astounded and scandalised by tales of moral turpitude that made shady politicians look like choir-boys. Somehow, the reform agenda went back on track and we ended up, under a new Constitution, with a revamped Judicial Service Commission, a new Supreme Court and a Judges and Magistrates Vetting Board. With the appointment of Willy Mutunga and the rest of the members of the Supreme Court, the appointment of the Judicial Service Commission with increased numbers of outsiders, and the appointment of a new Chief Registrar of the Judiciary, Kenyans thought the Judiciary had turned the corner.

Until the Judiciary started spending money. Of course the country faces a sharp shortage of judges, magistrates, court buildings and facilities. But when the Judicial Service Commission prioritised a mansion and limousine for the Chief Justice, limousines for the Judges of the superior courts, and a plane, it was clear that things were amiss. And then they started "leasing" buildings for multi-million shilling multi-year contracts from building owners whose antecedents not only raised eye-brows, they brought into question the rationale of allowing the Judiciary a free hand to spend like drunken sailors.

All these and more are being reveled because, and this blogger could be wrong, the key players have discovered that, as with every key institution in Kenya, power does not derive from the legitimacy one obtains from the consent of the people but from the authority to incur expenses on behalf of the institution with as little oversight as one can get away with. Regardless of what the law says, power belongs to the one who controls the purse. And the Judiciary has demonstrated that when it comes to the interpretation of statute when it comes to the question of its management of public funds, not even the threat of parliamentary sanction will compel them to reverse course. Hence the spectacular contest between the Chief Justice and the judicial Service Commission on one side, and the Chief Registrar of the Judiciary in the other. Her sacking will go down in public service history as one of the most ineptly handled knee-capping in the history of knee-capping. Why it took Willy Mutunga and the Judicial Service Commission two months to fire Gladys Boss Shollei is a testament to the determination of Ms Shollei to hang on to her job, come hell or high water.

But in their narrowly-focused pursuit of their objectives, rightly or wrongly, the Judiciary will come off the worse. No number of open days and PR communications will unsully its image. Kenyans may not be the most sophisticated intellectuals, but they are pretty savvy when it comes to knowing right from wrong, good from bad. And they know, especially when they suffer heart-rending experiences at the hands of judicial officers, lawyers and other public servants, that regardless of the still-glowing halo atop the Chief justice the Judiciary is has become adept at wearing sheeps' clothing to cloak its wolfish intentions.

Put your money...

The Mo Ibrahim Prize for Achievement in African Leadership is awarded by the Mo Ibrahim Foundation to African heads of state or government who deliver security, health, education and economic development to their constituents, and who democratically transfer power to their successor. It was sponsored by Mo Ibrahim, a businessman born in Sudan. According to Ibrahim, "Good governance is crucial." With a US$5 million initial payment, plus $200,000 a year for life, the prize is believed to be the world's largest, exceeding the $1.3m Nobel Peace Prize. Former South African President Nelson Mandela, former United States President Bill Clinton, and former United Nations Secretary-General Kofi Annan are among those who have welcomed the initiative.

And now for the less charitable assessment of the Prize. In the words of an acerbic Ahmednasir Abdullahi, the Prize is one of the most expensive self-aggrandizement and promotions (sic) in history. That it is and much more. But it is not unique in the world of self-aggrandizing and self-promoting robber barons, tech tycoons and billionaire philanthropic do-gooders. What is unique about the Mo Ibrahim Prize, and the Trust that awards the Prize, is that it is the first in Africa to bequeath staggering amounts of money to award winners.

The less charitable among us, in addition to the penis-envy that afflicts us over the determined Mo Ibrahim brand of dick-measuring, are mad that Mr Ibrahim intends, year after year, to highlight for the rest of the world, especially all Africans, the depths our heads of state or government have fallen. Every year the Prize is not awarded is a year in which an African billionaire shouts from the rooftops that his continent produces charlatans, thieves, snake-oil salesmen, murderers, sex-pests...the scum of the universe. However harsh the light might be from the Mo Ibrahim Trust, it is time that we accepted, even with massive dollops of sodium chloride, that Africa has some of the worst leaders that walked on the Earth.

At the end of the Second World War, when the victors pulled the wool over the "third world" regarding the end of colonialism, many new African states declared a war against poverty, ignorance and disease. West Africa, especially, was easily blessed with abundant natural resources. Some sixty odd years later, West Africa is the armpit of Africa: it record of military coups and general civil strife is unrivalled in Africa, even taking into account the festering Somalia civil war, the twenty-year Mozambican one (that seems set to reignite), the Sudan one, or the Ethiopia/Eritrea enmity that seems set to persist until the end of time. West Africa, which was the intellectual leader of Africa, surely must have set a record for the number of presidential assassinations and military take-overs. Mo Ibrahim's implacable gaze is one that refuses to gloss over the records of recent Big Men.

Take Mwai Kibaki for instance. He surely qualifies to be considered for the Prize. And Mr Abdullahi is surely right that Mr Kibaki does not need the pitiful $200,000 per year the trust promises for the rest of his life. But, hypothetically, if Mr Kibaki were to be assessed by the Trust, the chances of winning the Prize would be lower than those of a camel passing through the eye of the needle, as the Good Book says. Mr Kibaki no doubt presided over one of the greatest expansions of civil and political liberties Kenya has seen in its brief half-century. he expanded the economy and repaired crucial infrastructure. He oversaw the professionalisation of the public service and attempted to tackle the same problems that had been identified at independence with a sense of urgency. He aspired to great things. He failed.

When Mr Kibaki left office, the poverty rates had marginally improved, infant and maternal mortality were rising after e period of decline, the quality (if not the quantity) of education was in the toilet, crime was rife and the nation was more Balkanised than during the reigns of Kenyatta I and Moi. How would Mr Kibaki qualify if thousands died from non-natural causes on his watch, hundreds of thousands were displaced from their homes, billions in property was destroyed, and more citizens hated their fellow-citizens than ever before?

It is easy to look at the hubris of a man trying to right the wrongs of an entire continent and scoff at the effrontery. But when we have given up the fight and allowed events to determine our destinies, rather than pushing back, it is us who demonstrate effrontery. Mr Abdullahi is partial to witticisms. This is one he might appreciate: put your money where your poison pen is.

Monday, October 21, 2013

A moral crisis

Two events last week demonstrate, rather starkly too, that we are far from becoming a nation of laws held to the same standards regardless of status. A child was brutally attacked and raped; the men who attacked her are walking free, having performed "community service" at the direction of the police. The second incident isn't really an incident and it didn't really happen last week but it was widely reported last week. The Kenya Defence Forces troops sent to the Westgate Mall during the siege by al Shabaab fighters have been accused of looting during the period when they were in charge of the building.

The lazy will blame TV, music, the Devil, witchcraft, laziness, lack of job opportunities, poverty, poor education, focus on the girl-child and a myriad of other excuses for the rising cases of sexual violence against women, girls and children. None will think to lay the blame at the feet of the sexual predators' parents. None will think to blame their elected representatives. None will think to blame their spiritual leaders. None will think to blame their families and clans. We will look for convenient excuses that absolve us of responsibility.

Other than orphans for whom there are no surviving relatives, a child born in Kenya, is born to a parent or two, and joins a family and a community. In our zeal to get the squealing monsters off our hands in the shortest period possible time, so that we can go back to living our lives of hedonism, we have passed on the task of socialising our children to hired maids (whom we treat like shit), television sets (that prioritise cash-generating entertainment at the expense of costly information-provision and even costlier education), FM radio stations (whose morning shows have fetishised sexual adventure to an almost religious art form) and "bouncy-castle sheep-pens for children at the burgeoning shopping malls dotting our fair land). Music videos and "celebrities" celebrate sexual hedonism with wild abandon, teaching young men (and women) that sex is the sine qua non of the nation, the Brass Ring of life. It is common today for many young parents to describe their scions in terms that should make adults blush.

We have paid a steep price in celebrating the sexulisation of media in Kenya. Many young men, freed from the firm guiding hands of their parents or their teachers, receiving their information on sex and sexuality from imperfect school and church instruction, and secret stashes of pornographic material (both in print and electronic form), have become sexual predators of insatiable appetites. sexual assault victims now range in age from as young as three years old to as old as eighty-five. Sexual predators are as young as eleven and as old as ninety. Into this cauldron we dump one of the most insensitive police services in the free world; tales of the police, the courts and the prosecutors colluding to give what amounts to a slap on the wrist to many sexual predators has ensured that boys and men never learn that it is inherently and fundamentally wrong to attack women, girls and children in such a cruel way.

It is the same case, it seems, with members of the security services. In images flashed around the world on TV, soldiers are seen casually walking through the aisles of the Westgate Mall Nakumatt with shopping bags, as if they had just finished shopping for their weekly grocery. And this too while the public is being informed that there are at least ten to fifteen armed al Shabaab gunmen mowing down surviving patrons of the mall with impunity. First, the civilian authorities declared that no wrong-doing took place. Then the spokespersons of the military incredibly claimed that the soldiers "repatriated" property from the mall for "safe-keeping" and that it would be returned to their rightful owners at some point in the future.

The behaviour of the soldiers, lampooned as "lootenants" by Kenya's vibrant and vocal online community, when seen in the context of the rife graft that pervasively permeates the security sector should not be seen as an aberration. Kenyans have become inured to acts of criminality among its police. They had always reposed their faith in the armed forces, now renamed defence forces. But ever since the Mwai Kibaki-ordered adventure in Somalia, the image of the defence forces has began to lose its bloom. the United Nations and other independent observers have documented acts of rapine by the Kenya Defence Forces' troops in Kismayu where they have more or less commandeered the lucrative charcoal-export business. It seems that pride is no longer sufficient to keep the dress whites of the soldiers snow-white clean; now their venality is being caricatured online as their image as a source of national pride takes a shellacking.

We cannot pretend that the manner that Kenya is socialising its young is not having an impact on the institutions Kenyans once had pride in. When we witness men and women in positions of authority flouting the law with impunity and getting away with it - whether it is politicians or judges or civil servants - we imagine that if we too made enough money or gained enough power we would be able to straddle the narrowing defile between good and bad with impunity. Right is no longer fashionable. Wrong is sexier and profitable.

Uhuru Kenyatta, our beleaguered President, is facing crises that he alone cannot resolve. He has made a decent fist of things so far. It helps enormously that even those who would wish to see him spend the rest of his life behind bars is persuaded that he does not have a penchant for dipping his hands in public cookie jars. His financial probity in and out of government is stellar. He has had the misfortune of inheriting a governance structure that has been moulded over decades into an instrument for tormenting the people while robbing them blind. We must stand behind our President if we want to get to the other side where the rule of law prevails, where soldiers are not the butt of cruel online jokes and where women, children and girls are safe from their fathers, brothers, uncles, grandfathers or friends.

Wednesday, October 16, 2013

Don't drink the Kool-Aid, Mr Ng'eno.

Even with his penchant for hyperbole, Eric Ng'eno's violent diatribe against Kofi Annan, the former United Nations Secretary-General and mediator-in-chief in Kenya's recent political imbroglio, is a thing of wonder. This blogger will not quibble with the general thrust of Mr Ng'eno's assertion; we only wish to examine the violent outburst that Mr Ng'eno's delivery is made. In his rage, Mr Ng'eno glosses over, rather conveniently too, over certain discomfiting events.

The most egregious willful blindness is over whether Kenya should or should not have accepted Mr Annan's, and his Panel of Eminent Africans, mediation efforts. Mr Ng'eno's boss, the President, in stating his case before the African Union while asking for support, had nothing but words of praise for the efforts of the AU and, presumably, the Annan team of Eminent Africans in the aftermath of the 2007 general election. However, even then, Kenya did not have a gun held to its head, metaphorically speaking, by London, Washington, DC, or Brussels; Kenya was in a suicide death-match with itself. Mwai Kibaki could easily have declared, as Mr Ng'eno does, "I won. You lost. Deal with it!" and let the country burn for as long as it took for everyone to accept that "coalitions are unconstitutional!" One outcome of the coalition government that Mwai Kibaki and Raila Odinga built was to "visit excruciating grief on Kenyans and [lead] to spectacular dysfunction and corruption." Among the persons who would be implicated in the dysfunction and corruption, if the doctrine of collective responsibility is to apply, are Mr Ng'eno's boss, the President, and the Deputy President.

As it is, Mwai Kibaki charted a middle course that tamped down the blazing fire, never quite putting it out, and agreed to mediation, to a coalition and to a reform agenda that gave Kenya a Constitution that had eluded it for a decade. Regarding the incredible claim that Justice Waki's Commission violated the law, the proof is in that not even Mr Ng'eno's boss thought to challenge the foundation of the Commission's decision to prepare a separate list of suspects to be presented to the mediator-in-chief who would hand them over to the Prosecutor of the International Criminal Court if Mwai Kibaki's government failed to implement the recommendations of the Justice Waki Commission.

In word and reluctant deed, a Deputy Prime Minister and a former Minister for Higher Education agreed to the establishment of a local tribunal and supported three Bills in the National Assembly to establish such a local tribunal. Now I am speculating about this, and I will take my lumps when they come, but the Deputy Prime Minister's and the former Minister's supporters in and out of Parliament rejected the local tribunal. They were very emphatic about it. "Don't be vague; Go to The Hague" they chanted, over and over, derisively too, at the Mwai Kibaki and Raila Odinga. Indeed, the former Minister was quoted, and it might have been out of context, stating that he did not trust that credible investigations would take place without the involvement of world-renowned experts from the United States' Federal Bureau of Investigation or the London Metropolitan Police Service, better and popularly known as Scotland Yard. The Deputy Prime Minister is now President; the former Minister is now Deputy President.

Once you cut through the violent rhetoric, one question remains unanswered: has Mr Annan's argument that the victim's must be served too been dealt with? The President eloquently stated his case before the AU regarding the victims of the PEV. Within six months of the election of his government, the PEV IDPs had all been resettled and all their camps closed for good. And he spoke the truth. But not one of them has seen justice being done. If it was all about the resettlement of the landless, victim and charlatan alike, this matter would not be receiving the attentions of the ICC or the civil society industry. Mr Ng'eno must confront the ugly truth.

Kenyans were murdered, Kenyans were brutally maimed, Kenyans were raped, Kenyans were robbed, and Kenyans were chased from their homes and their homes set on fire. Churches were set on fire. Businesses were set on fire. Brutal crimes were committed in the name of electoral combat. A Commission inquired into it all. The Commission prepared its report and made recommendations. The President and Prime Minister, in a rare show of unanimity, agreed to implement the recommendations in toto. As did the Deputy Prime Minister and former Minister. Among the recommendations, which did not face judicial or political challenge, was the secret envelope's journey to the ICC. Mwai Kibaki did what he could with what he had to prevent the secret envelope from landing in Luis Moreno-Ocampo's desk. He failed. And here we are today.

Harry Houdini could make an elephant disappear in the middle of a room. He was the master-illusionist. Mr Ng'eno is not a master illusionist. Shining his torch and waving his pitchfork and screaming bloody murder at the inept Kofi Annan will not hide the facts from the discerning. When we were burning down the country, "democratic sovereignty" was not our watchword. When we were giving testimony to not one but two Commissions of Inquiry, both of which had foreigners, we did not speak of "democratic sovereignty." When the spectre of the ICC was waved in our faces, we embraced it, not thinking that we would invoke the spirit of "democratic sovereignty" later on to back out of it. It is important to remind ourselves of how we got here. We are here, today. How we get out is not by lying to ourselves, or lying to our people. And Kofi Annan is no longer a factor of importance.

Tuesday, October 15, 2013

Choices and Consequences, Part Deux.

Even in a presidential government, there is nothing unusual with the deputy President standing trial; after all, the Deputy President is not the Commander-in-Chief, does not appoint the heads of various departments or ministries, is not the Chairman of the National Security Council, and is not a symbol of national unity, all things that the President is. The trial of a sitting head of state, head of government, Commander-in-Chief and a symbol of national unity is bound to send us into uncharted territory, where prudence demands that only an objective examination of the landscape will serve us well. Emotion and similar biased criteria risk sending us off constitutional cliffs that we are blind to.

But first, we must dispense with the idea that the accused in the ICC Kenya cases do not have a right to pursue every available course to avoid trial or win acquittals. When Uhuru Kenyatta declared during the first presidential debate in 2012 that his tribulations at The Hague were a "personal challenge" that he would overcome, he probably meant it at the time. But this blogger suspects that t was a clever line designed to win him the presidency, which it probably contributed to. Messrs Kenyatta and Ruto have a constitutional right to fight for their innocence, or acquittal, at The Hague. If they choose to use the instruments of power handed over to Uhuru Kenyatta by Mwai Kibaki, then so be it. It is up to the people to determine whether the use of those instruments of power for the resolution of "personal challenges" is constitutional and then what the people can do once they decide that such use of the instruments of power is not constitutional. What the people cannot do is prevent the President and Deputy President from defending themselves with everything in their reach from being tried or being convicted by the International Criminal Court.

When they were first indicted, Uhuru Kenyatta and William Ruto were mere ministers. Uhuru Kenyatta was the Deputy Prime Minister and Minister for Finance while William Ruto was the Minister for Agriculture and, later, the Minister for Higher Education. Their fate was not a constitutional conundrum; the only issue to be resolved then was whether they'd resign their Cabinet positions after their indictments. That is no longer the case. Messrs Kenyatta and Ruto are the President and Deputy President, the principal figures in the National Executive in the Government of the Republic of Kenya. There is no escaping this simple, constitutional fact. Whether they were indicted before or after their election, they will be tried as head and deputy head of state. That raises serious constitutional challenges, especially with the trial of the head of state.

If it was just one or the other undergoing trial, then the provisions of Articles 144, 145 and 146, depending on the circumstances, would apply regarding the succession of the President and Articles 149 and 150 regarding the replacement of a Deputy President. The present circumstances have the very real risk of a conviction of both the President and Deputy President, which would allow for the impeachment of both by Parliament. If the President alone was standing trial, and he was convicted, and then he was successfully impeached by Parliament, then the Deputy President would succeed him. If it was the Deputy President alone who went to through a similar experience, then the President would nominate a new Deputy President, who would be elected by Parliament. But when both risk being convicted or impeached, the succession becomes a very knotty affair. The succession of the Speaker of the National Assembly if both the President and Deputy President, albeit for sixty days only, will not go down well with the people. Not at all.Article 103, on the vacancy of the office of Speaker (and Deputy Speaker) is silent on a vacancy being created because the Speaker is the Acting President; there is the possibility that the Speaker will be the Acting President, a conflation of both the legislative and executive functions of government in one individual.

But those are just the politico-legal considerations that must be addressed. Then there are the sociopolitical ones. No one seems to want to address that the reason we are having this debate is because of political events exploited by the two to their advantage. The narrative all along, especially from the principle actors and their intellectual cheerleaders, is that the "peace" between the Kikuyu and the Kalenjin is because the President and Deputy President are "sharing power." If one is convicted and the other is not, will it be seen as a betrayal of one by the other? If both are convicted, a presidential election is held, and a person from a "tribe hostile to both" is elected, will the unity of the two hold and will their political rivalry be rekindled? If both are convicted, will the government, of which they remain head of until they are removed, co-operate with the ICC and hand them over to serve sentence? The President is a symbol of national unity; does it mean that with his conviction, Kenya will not have a symbol of national unity?

What will be the fate of the thousands of persons suspected of having committed crimes during the PEV and who have not been tried for lack of credible investigations? Will the conviction of the President and Deputy President lead to a reopening of the case files? And what about the fate of the victims? Will a conviction mean that many will now finally recover their properties and restore their lives to as normal as possible a situation?

It is not enough to insist that the President must go to The Hague. It is not enough, not at this level, to insist that justice for the victims overrides all other considerations. Neither is it enough to claim "sovereignty" as a reason for the President not to go. Nor is it enough to claim "criminal immunity" neither. We must go beyond the rhetoric and assess the myriad possibilities of one even or the other. If we can do that, then we can anticipate the challenges of governance that are headed our way and propose solutions to them. Secretary Mohamed has already floated the trial balloon of the President being allowed to serve out his presidential term before the trial can be held. She has advanced her reasons. Some are persuasive, some are not. The other side must advance a counter-argument that anticipates the same things that Secretary Mohamed does.

Friday, October 11, 2013

Knottier and knottier...

Ambassador Amina Mohammed, the Foreign Affairs Cabinet Secretary, is correct: in recent times there has not been a single sitting head of state tried in any court in the world. Hosni Mubarak and Mohammed Morsi, both former heads of state of Egypt, were deposed before legal proceedings were initiated against them. Regardless of the accusations against President Kenyatta, and regardless of the fact that he was indicted before the was elected President of Kenya, this is an unprecedented situation globally and everyone is on a steep learning curve when it comes to how to deal with it.

President Kenyatta is a head of state in one of the most volatile regions in the world. Kenyans, especially those in the burgeoning civil society industry, may seem to confuse the relative calm in Kenya as a fact of life, but the events of the past month should disabuse them that our enemies will sit patiently while the nation deals with the fallout from the President's trial at The Hague. Our enemies will take advantage of the complexity of managing the affairs of state while simultaneously worrying about the liberty of the President and Deputy President.

This is not to argue that the President should not be tried; far from it. Secretary Mohammed alluded to it too. If Mr Kenyatta is to undergo trial, the International Criminal Court must not ignore that Mr Kenyatta is President, and that his trial is unprecedented.The Court should not impose its will without flexibility; the fate of over forty million Kenyans hangs in the balance.

Mr Kenyatta, until he loses the next election or he is impeached, remains the Head of State and Commander-in-Chief of the Defence Forces. There are certain decisions that only he can take; there are certain function that only he can perform. These are decisions and functions that cannot be delegated. That he and his deputy are being tried means that the situation is much more fraught than even civil society champions acknowledge. Despite the fact that Raila Odinga came as close as he has ever came to winning the presidency, he cannot replace Mr Kenyatta if Mr Kenyatta is otherwise detained by the ICC. That is not how the Constitution of Kenya works. Neither can a member of the Cabinet, the Chief of Defence Forces, the Speakers of Parliament, one of the 47 governors or the remaining Members of Parliament.

Kenya faces a constitutional problem that must be resolved in the least traumatic way possible. Secretary Mohammed has suggested that Mr Kenyatta's, and perhaps Mr Ruto's, trial be suspended until he finishes his term as President, which may be in 2017, or in 2022 if he is re-elected. Civil society, predictably, is opposed to this, but it also fails to propose an alternative that does not upend the proper constitutional order in Kenya. Now that al Shabaab has decided to bring its war to Kenya, to kill and maim with impunity, and to sow confusion in Kenya, whom do the civil society propose to right the ship of state when the President and the Deputy President are unavailable? The Constitution provides no answer, and neither does civil society.

They cannot also argue that we made our beds and we must now lie in it. That is an argument that will only find favour in a children's sand-box. We are facing a problem that will affect the lives of the same men and women the civil society industry says it speaks for. If they are determined to reject the idea that the trials should be delayed, they must propose a solution that leads to justice for the victims but also preserves proper constitutional order, the integrity of the nation and the safety of the people. Saying "I told you so!" in a hectoring tone will not help.

It's the little things...

Being a leader is harder than it looks, as Rachel Shebesh, the Nairobi City County Woman Representative is discovering. One must maintain a certain level of political decorum even in the face of great temptation to go all out in a bid to build up a profile that will guarantee re-election the next go-around. Her political star has risen in every election, especially since she ditched the listing ODM canoe for the sailing-in-the-high-seas TNA speedboat. She made the correct political decision to dump Raila Odinga for Uhuru Kenyatta; Odinga's party was out of fresh ideas and out of time while Uhuru Kenyatta's party was the Second Coming in Kenyan politics.

But, Mrs Shebesh's antics during the general election raised doubts about her political savvy. When she picked sides in the Battle for Othaya, she made Uhuru Kenyatta's life difficult for no political gain. When she, and several other members of TNA, insisted that Uhuru Kenyatta had no say over whether he could withdraw from the presidential contest, she was getting way ahead of herself, and her party, in matters over which she had no control. Her public partnership with the man who would become the Senator of Nairobi City County, she raised eyebrows when they need not have been raised in the first place. And she did nothing to endear volatile university students to her party, or her campaign, by accusing female university students of prostitution.

She must have been on a mission to rehabilitate her political halo when she led Nairobi City workers to the Governor's Office to demand better working conditions for them. She chose the wrong tactics in her confrontation with the Governor. While Kenyan politics is all hurly-burly, it pays to know when to loudly confront the guy on the other side, and when to negotiate soberly. She picked the wrong fight, with the wrong man, at the wrong time and ended up being embarrassed on camera. Now her relationship with the Nairobi Senator is being exploited for the salacious enjoyment of Kenyans who cannot get enough of salacious enjoyment. as a result of the tumult caused by recent events, she has been forced to resign from parliamentary committees. She may yet again make a comeback, but in the Digital Age, the digital footprints of the events of the past month will be used as cannon fodder every time she gets out of line or out of hand.

Mrs Shebesh should have taken a leaf out of Charity Ngilu's book, or Martha Karua's. Mrs Ngilu famously fought a vendetta with the Vice-President and came out smelling of roses. Martha Karua took on no less than two presidents and built it up into a credible presidential run, albeit an unsuccessful sun. Mrs Shebesh has very little to show for her vivacious personality, but shame for her husband and children. Instead of leading a fight with both political and intellectual weapons, she chose the tactics that served Ferdinand Waititu and Gideon Mbuvi aka Mike Sonko well in the trenches of the general election. She forgot that regardless of the claims to the equality of women enshrined in the Bill of Rights, Kenyans are not ready to give women a lot of space to behave just as men do in the political arena. There is much Kenyans will forgive, but not alleged salacious adventures by women politicians.

Tuesday, October 08, 2013

It will end in tears, Mr Chepkonga.

The idea behind independent offices and constitutional commissions is a sound one, in the light of the previous muscular intervention of the Presidency in the exercise of power and performance of functions by State institutions such as the Judiciary. It is for this reason, this blogger believes, that the Committee of Experts sought to insulate the independent offices and constitutional commissions from interference by both Parliament and the national Executive. Hence the clause "commissions...are independent and not subject to direction or control by any person or authority." [Art 249(2)(a)]

That clause is not in conflict with Article 95(5)(b) that describes Parliament's role to "exercise oversight over State organs" or Article 125 (1) that empowers Parliament to "summon any person to appear before it for the purpose of giving evidence or providing information." The harebrained attempt by the High Court, while interpreting the former Constitution, to attempt to invalidate one part of the former Constitution because it was in conflict with another part will not apply in this case; while giving its opinion on the Two-thirds Gender Rule, the majority of the Supreme Court stated that the Constitution must be read in context and as a whole, with each part of the Constitution complementing each other.

The chairperson of the Justice and Legal Affairs Committee of the National Assembly declared on the floor of Parliament that Parliament has teeth, he has teeth, and that the Judicial Service Commission cannot ignore summons from his Committee. Previously, when the Committee had failed to ensure that members of the JSC appeared before it, he had argued that because the Committee reviewed the budget of the Judiciary, it had the power to compel the appearance of the members of the JSC before it  and to examine it on matters that affected the administration of justice in the courts.

This blogger has previously argued that the parliamentary committee, and its chairperson, have misunderstood their mandate under the Constitution and arrogated to themselves powers that the do not enjoy. This misinterpretation has not been resolved; Parliament still insists that as part of its mandate to oversee State organs, and the power to compel persons to appear before it to give evidence, it has the power to summon members of independent offices and constitutional commissions, and to examine them on whatever Parliament may be investigating. Parliament must be made to understand that they cannot summon members of constitutional commissions; commissions are specifically protected from such summonses by Article 249.

The protection from Parliament enjoyed by the Judicial Service Commission does not mean that it, or its members, are laws unto themselves. There is a procedure to be followed if it is suspected that members of the Commission have committed acts that violate the provisions of the Constitution or the law of Kenya. Article 251 provides for the grounds and the procedure for the removal of a member of a constitutional commission. This is the only reasonable interpretation of the National assembly's power of oversight over the Judicial Service Commission. It cannot summon members of the Commission. It cannot purport to discipline them other than under Article 251. 

But Parliament is not restricted from summoning the staff in the Secretariat of the Commission; they are not members of the Commission and so are not protected by Article 251. And regardless of whatever rules the Judicial Service Commission has drafted regarding the handling of records and other documents of the Commission, these are documents that Parliament can demand from the Secretariat without violating the protections enjoyed by the commission under Article 249.

The events surrounding the contest of wills between the Chief Registrar and the Judicial Service Commission have become a political football. The chairperson of the Justice and Legal Affairs Committee is not interested in the truth, not from the decisions he, and his committee have made, or in the acts they have committed. What he is interested in is publicity, to show to his constituents that he is a man to be obeyed, even by members of a constitutional commission. He is pursuing his scheme to its bitter end to prove that he is an alpha politician. His scheme can only end in tears.

Sunday, October 06, 2013

Assassinations don't work.

When George W Bush, and the United States, were confronted with the spectre of an enemy willing to kill thousands of innocents to achieve an objective that, to rational beings, is unachievable, their instinct was to fight back with every weapon at their disposal. In addition to punishing an entire nation for what its leaders had done, that is, harbouring their enemy, the United States government re-wrote the rules of armed conflict. Many democratic governments have a fear of assassination, whether of their own leaders or that of the enemy, because if they bend the due process of the law to assuage their anger, so too can their enemies. It is why when the first Gulf War ended, the United States did not attempt to assassinate Saddam Hussein, even though he was not similarly inclined.

The rules changed, not on 9/11, but on 19 March 2003, when the United States invaded Iraq with a first strike intended to "decapitate" the Iraqi leadership. Since then, rather than capture its enemies for trial, or kill them on the field of battle in armed combat, the United States has arrogated to itself the power to designate a person as an enemy combatant, to target that enemy combatant whenever he may be found, and to kill him and those with him with extreme prejudice. The decision to assassinate enemy combatants, whether they are in the field of battle or hiding out in a cave, is made by the President of the United States and relies on secret information collected using secret means and reviewed using a secret process that is not subject to anything that comes close to due process. When you become an enemy of the United States, your death is all but guaranteed. You may die at the hands of "special forces" or by hellfire missile fired from an unmanned aerial vehicle controlled from thousands of miles away.

There are now calls for Kenya to take the fight to al Shabaab, and its leadership, wherever they may be, to find them and to assassinate them. On 16 October 2011, Kenya launched a police action in Somalia, code-named Operation Linda Nchi, using the Kenya Defence Forces to "take the fight to al Shabaab" in its Somali strongholds. The launch of the operation was preceded by night-time raids, just like the US invasion of Iraq, by special forces. Unlike the publicity surrounding the US war in Iraq, Kenya's police action has enjoyed a level of secrecy that all Kenyans are familiar with. Whether or not al Shabaab leaders were targetted on the night before the launch of Linda Nchi remains a closely guarded secret.

Westgate is now being used as a fulcrum to leverage the Kenya government to adopt targetted assassinations as policy in the war with al Shabaab. The morality of the proposal is neither here nor there; the Kenya government has a responsibility to protect its people and its territory against the aggression of its enemies. However, if the the script to be adopted is the one adopted by the United States and Israel, then Kenyans have much to be hesitant about. Our history of secret military operations is a dark one. The Shifta Campaign, the Wagalla Massacre and Mt Elgon's Operation Okoa Maisha are merely the most infamous. The accusations of gross human rights abuses remain to go away. Given the large Kenyan Somali population, it is almost certain that some Kenyan Somalis will be accused of being members of the leadership cadre of al Shabaab and if the targetted assassination of al Shabaab leaders is approved, there are Kenyans who may find themselves in the cross-hairs of Kenyan assassins. And because the assassination business is necessarily a secret one, we will never get an opportunity to question the veracity of the information relied on by the government to assassinate an alleged enemy of the state. Further, because of the widening schisms between and among tribes in Kenya, the inherent corruption at the heart of the government, and the contests for power within the government, we will never know how many innocent Kenyans are the victims of assassination for reasons other than their being leaders or members of al Shabaab.

Iraq and Afghanistan have proven that assassinations offer only temporary relief. Iraq begot Yemen, and Afghanistan begot the tribal areas of Pakistan. US drones strikes have simply made the enemies of the US more resilient and diffuse. Al Qaeda, instead of being in the retreat, has spawned affiliates on every continent, bar perhaps Australia, South America and Antarctica. Unless the Kenya government can guarantee that assassinations in and out of Somalia of al Shabaab fighters will force the enemy to capitulate and sue for peace, this is a weapon that must be reserved for tactical reasons, not strategic ones, in the field of battle as a means of demoralising the enemy and disrupting his operations. The strategy, as always, must be to reinforce the legitimacy of the government in Mogadishu, to empower it to police the entire nation, and to prevent al Shabaab from infecting the people with its ideology. The solution to al Shabaab, as has been the case for 8 years, is political, not military.

Saturday, October 05, 2013

Rights and Freedoms for Kenyans: My Thoughts.

What are the liberties that Kenyans stand to lose if the anti-terrorism legal framework is revised? Rights of arrested person? Movement? Association? Assembly? Speech? Privacy? Nationality? No one seems to be sure what rights or freedoms Kenyans will lose should the Executive or Parliament have their way regarding the legal framework that is supposed to work when protecting us from acts of terror.

What many of the no-changes-needed brigade refuse to admit is that Kenya is not the United States of America. Kenya, as an idea, was not born of the revolutionary or pioneering spirit. Kenya was born as a colonial idea; its political, legal and social history as a country, and as a nation, is as a consequence of the over six decades of colonial domination by Great Britain. When one examines the history of the United States, one sees that the Plymouth Rock pioneers left England because they were searching for religious freedom. The American War of Independence was fought for political freedom from England. And the American Civil War was fought to determine whether the United States would survive as a Union or whether State rights would prevail in all but a narrow set of circumstances.

Therefore, before we begin to examine the question of what rights and freedoms will be limited in a new anti-terrorism legal environment, we must determine what kind of nation Kenya is and how it came about. Because Kenya is not a nation born or shaped by revolutions fought over specific freedoms or rights, the manner in which those rights and freedoms are enjoyed, or limited, matters in the context of the Kenya government's war on terror. Thus civil society's demand that, for example, the Government of Kenya must not limit Kenyans' right to privacy must be debate din the context of whether this right existed in the first place before the promulgation of the Constitution in 2010.

This blogger supports, broadly, the right of Kenyans to be secure in their persons and property from unreasonable searches or seizures by the agents of the government. This right must necessarily protect Kenyans from the government agents who would go on a fishing expedition ostensibly in search of those who would seek to do us harm. It extends from Kenyans' bedrooms to their doctors' offices to their relationships with family members and spiritual advisors and their financial dealings. However, this right is not licence; in specific instances, Kenyans' right to privacy must be abridged, especially if that abridgment is in the broad interest of the public, such as their safety and security.

The catch, as always, is an effective method of policing those who would ask for the right to be limited. In the dark days of the Kenyatta and Nyayo Eras, all manner of private matters were criminalised. What one thought, in one egregious example, was criminalised when the Attorney-General declared that anyone contemplating the death of the President committed treason and could be triad as a capital offender. It is in oversight of the Executive that Kenya has always fallen short, and the institution charged with the oversight of the operations of the Executive has always betrayed the trust reposed in it by million of voters.

For this reason Parliament has been ineffective. It was hoped that even in a united government, that is, one in which the Executive and the Majority Party came from the same political party or coalition, Parliament would play a stringer oversight role under the Constitution promulgated in 2010. The behaviour of the Majority Party in the first six months of the Eleventh Parliament has put paid to that hope. The Majority Party has frequently behaved like a flower girl at a swanky wedding, cheering on every scheme proposed by the Executive as opposed to carefully interrogating them. Instead of focusing attention on the Executive, Parliament has trained its sights variously on the Judiciary, the independent offices and constitutional commissions, and the devolved government. As a result, even after a harrowing event as the Westgate Mall siege, Parliament has been unable to come up with a credible programme to review the event, to draw the proper lessons from it, and to guide the Executive on the correct path.

Civil society, which used to be the conscience of the nation and the primary instigator of broad reforms in the government, has failed to take up the challenge. In the wake of civil society's success at bringing about a peaceful transition from quasi-dictatorship to quasi-democracy in 2002/03, it was first co-opted into the government and, second, corrupted after tasting the fruits of unbridled power. The successors to the victors of the Second Liberation Movement have drawn the wrong lessons from the nadir of the civil society between 2003 and 2007 and as a consequence has been co-opted by interested parties whose end game is not necessarily the expansion of the freedoms or rights of Kenyans, but that of the business and financial opportunities of foreign powers and their companies.

If Kenyans are to properly debate the place of the national security establishment in the protection of the security and safety of Kenyans, they must do so knowing that they no longer have friends who are willing to advise them on the best way forward. Therefore, we must ask ourselves again whether the proposals being promoted by all the other stakeholders are proposals designed to promote peace, security and safety of Kenyans for Kenyans to make and keep their wealth or whether they are designed to make it easier for foreign powers, transnational corporations and other outsiders to exploit Kenya's rich reserves of resources for their benefit and their profit.

An Article of Faith.

The Chief Justice alleges that there are new corruption cartels in the administrative cadres of the Judiciary. He adds that these cartels have arisen because of the Judiciary's multi-billion shilling budgetary allocation. This claim seems of a piece with the alleged conspiracy, in which he is involved, to remove the Chief Registrar, the administrative head of the Judiciary, from office. The Judicial Service Commission has already alleged that the Chief Registrar is corrupt; now the Chief Justice ha added his voice to those allegations.

When Kenyans promulgated a constitution in 2010, one of the implicit objectives of the new Constitution was reforming the Judiciary. To this end, the Constitution established a Supreme Court, reconstituted the Judicial Service Commission and decreed that Judges and Magistrates would be vetted to determine whether they were fit to hold office. The reconstituted Judicial Service Commission was supposed to be more reflective of Kenya; it was not be held hostage by the deep State, consisting of operatives in the Judiciary and National Executive alone. This has largely been achieved, and yet the JSC is still not viewed with admiration.

By late 2012, it became apparent that not even the Committee of Experts had anticipated the depths to which the Judicial Service Commission would sink or how fast it did. The press reported rather favourably of the JSC during the process of appointing a Supreme Court. But with the dismissal of the first Deputy Chief Justice and the Chief Justice's interference in the dismissal of another member of the Supreme Court, the press must admit that they got it wrong. When the Chief Registrar unveiled her financial plans to spend billions purchasing Mercedes-Benz vehicles for judges and a mansion for the Chief Justice, ostensibly so that the Judiciary could be seen as an equal of the National Executive and Parliament, it was only a matter of time before the financial administration of the Judiciary became the albatross around its neck.

The most recent crisis in the Judiciary is tied to the financial administration of the Judiciary by the Chief Justice and the Chief Registrar. The Chief Justice, as popular lore would have it, was a reluctant convert to the plot to remove the Chief Registrar, but once converted, he has been an ardent champion. When question were first raised about specific procurement decisions by the Chief Registrar, the Judicial Service Commission was split on the decision to send her on compulsory leave to "pave way for investigations," but the JSC failed to follow the law, the Chief Registrar obtained orders from the court and the whole matter was hashed out in secret between the two parties.

With the temporary reinstatement of the Chief Registrar (she may yet be dismissed), the procurement problems of the Judiciary have only become worse. A multi-billion shilling lease for an office block for the Court of Appeal has run into headwinds as the Judges of that court refuse to occupy that building for fear of "radiation" from a telecommunications gantry next to the building. There are two ways to interpret this event, in the light of recent events: either the Chief Registrar has an undeclared interest in the lease of that building and so has ignored technical advice regarding the health and safety of the building, or this is part of the multi-point "War Plan" of the Chief Justice and his "War Party" to remove the Chief Registrar from office. Either way, it is irrelevant what the Chief Justice and Chief Registrar now say; both have raised serious enough doubts about their probity or integrity that it is time for a full-blown external investigation to make sense of it all.

Naturally, we are all mightily aware of the phrase "due process" and you can put money down that before the Chief Registrar, the Chief Justice or the Judicial Service Commission are investigated, Kenya will spend years, and billions of shillings more, working out what "due process" means in the context of the recent revelations. The Fourth Estate is no good either; in the past members of the press have been known to receive, and to solicit, bribes for favourable coverage of this, that or the other personage. Neither, it seems, is the Ethics and Anti-corruption Commission up to the task. Since its reconstitution, and recent appointment of its chairman, it has done little of note, save to keep nailing the small fish while the big fish of Anglo-Leasing, Triton, Goldenberg, Kenya Duty Free, Kazi Kwa Vijana, Ardhi House and sundry other totemic events, run riot in the avenues of the public procurement environment.

But there is one thing that we can count on, call it an article of faith in the public service: the Chief Justice will not resign; the Chief Registrar will not resign; the members of the Judicial Service Commission will not design. All will demand proof of malfeasance and then fight to clear their names once it is presented. And the new cartels, which are really the old cartels, will smile all the way to the Central Bank.

Friday, October 04, 2013

Shelve the Forensics Lab Idea for now.

A laboratory for the National Police Service to examine and analyse forensic and other evidence collected during the investigation of crimes is a vital tool in such investigations. Since the hideous plot to steal from Kenyans via secret national security appropriations was uncovered in the Anglo-Leasing Scandal, the so-called forensics laboratory has been hanging fire. The question of a forensics lab has become live after the Westgate Attack, because of the images of foreign forensics experts collecting evidence at the ill-fated shopping mall.

The public in general, however, must be educated as to what goes into a successful forensics lab. Not just the technical aspects of equipment and personnel, but also the educational long-term planning necessary to make the laboratory an effective crime-fighting, or crime-prevention, tool. Many think that a forensics lab will mirror what they see on successful US TV shows such as CSI: Crime Scene Investigations, Bones, or NCIS. The reality is rather different. The reality is rather humdrum.

Certain questions require attention before the process of procuring a forensics lab is restarted. The most important is whether indeed Kenya needs a criminal investigations laboratory in the first place. The work that would take place in the lab would be highly technical and would call on the services of experienced scientists with the capability of collecting forensics material, storing it, analysing it and interpreting it correctly. To the best of my knowledge, the National Police Service is yet to start paying for its officers to be trained in DNA collection, testing or analysis; blood-spatter analysis; ballistics analysis; or even finger-print analysis. And if one has been keeping pace with the challenges the United States' Federal Bureau of Investigations has been facing regarding the relatively simple matter of finger-print analysis, one would understand why Kenya is at least a scientific generation away from setting up and credibly running a forensics laboratory.

For the foreseeable future, and with the long term plan if building criminalistics capacity in Kenya, the best the Criminal Investigations Department can do is to rely in the Office of the Chief Government Chemist. While this department has come in for a lot of flack for the way it has been mishandled by the politicians in charge of internal security, its work has the capacity of being both credible and professional. The department employs qualified technical officers. It has the necessary basic equipment to perform certain forensics examinations. And hand in hand with the Office of the Chief Government Pathologist, the forensic needs of the National Police Service are taken care of.

What we do not want to admit, and in the light of the inquiry of the deaths of George Saitoti and Orwa Ojode, is the fact that the Government Chemist and the Chief Pathologist have had their offices manipulated by politicians, not to uncover the truth, but to avoid embarassment. Therefore, the idea that a forensics lab will solve the political management problems of serious crimes is a fallacy at best. The lab is being promoted as part of the CID; the recent appointment of the Director of Criminal Investigations revealed the politcal interest in the occupant of that post. The same political interest will interfere in the operations of the forensics lab, if it ever built.

The other thing that we must admit is that Kenya has a history of white elephants that have cost the people dearly. The biggest, surely, were the Turkwell Gorge dam, the Eldoret airport, the Nyayo Car Project and the concessioning of the Uganda Railway to Sheltam Corporation. There is no reason to believe that once funding is approved for the forensics lab, it will not be delivered on time nor on budget and it will consistently fail to deliver value for money. It might be embarassing to rely on the United States, the United Kingdom, Germany, France and Israel for the forensics investigations into the Westgate attack, but it is cheaper than spending billions we do not have on a facility we wont use.

Wednesday, October 02, 2013

Be very, very afraid.

If it is true that the Chief Justice is being advised by a War Council, and that he has entered into a scheme based on a War Plan, to oust the Chief Registrar from her office, and that this should be accomplished regardless of whether the Chief Registrar has committed any act that would warrant her ouster, then the Chief Justice must resign his office. But this is not an examination of the pros and cons of the Chief Justice's attempt at stamping his authority over the Judiciary, but one of the incredible stupidity that led the War Council to advise the Chief Justice as they did, and how they want about advising him.

In one of the more unsettling events in Mwai Kibaki's administration, that bugbear of Western governments, WikiLeaks, released hundreds of thousands of United States' diplomatic cables to the public. Among the leaked documents were candid assessments of Kenyan politicians by the US ambassador to Kenya, Michael Ranneberger. Until the WikiLeaks expose, the US ambassador was candid about the President, the Vice-President, the Prime Minister, senior Cabinet Ministers, senior politicians, and sundry movers and shakers and he set down his observations in detailed diplomatic cables sent to the US State Department. After WikiLeaks, the United States government was confronted with the challenge of how it would manage its vast library of classified documents without their details falling into the hands of the wrong people.

What many Kenyans missed in their hour of Schadenfreude is that United States government has one of the most sophisticated information security systems on the planet, but it frequently relies on the unreliable human element to its very great cost. This was the case in recent months when intelligence secrets were leaked by a contractor working for the National Security Agency, the largest intelligence agency of the United States government.

Kenya and Kenyan institutions do not have enjoy the financial or technical facilities for the protection of information, especially documents held in electronic form. Kenya once had a very sophisticated document control system; in the days when information was held in physical files, the information was held in different files for classified and non-classified material. Classified material was kept, and still is, in what is known as the Secret Registry, while the rest is kept in the General Registry. Information retrieval is made only after a signed request by an officer. Unauthorised access to information was unheard of, until whistle-blowers came along with Goldenberg. It has been downhill since then.

When the Standard circumvented the information security protocols of the War Council, if they had information security protocols to begin with, it was simply carrying forward a recent and proud tradition of informing the public of both the good and the ill in the public service. Why the War Council was so careless in their scheme beggars belief. In a technological environment where even a rudimentary knowledge of information technology can turn a novice into a one-man hacking machine, it was a high-risk act to transmit their plans via e-mail.

The War Council also ignored lessons that were learnt the hard way by the war criminals of Nazi Germany and all war criminals ever since. In 1942 the Third Reich convened a conference at Wannsee to discuss the Final Solution. As could be seen by how they used language, even at that stage, the Nazi knew that sooner or later they would have to account for the slaughter of millions of Jews. Therefore, they did not use words that betrayed their intentions. One of the words they chose was "repatriation" by which they meant execution using the gas chamber.

The Chief Justice's War Council foolishly and recklessly used words that could only be interpreted one way. It was incredibly naive of them to think that their scheme would not be discovered. It was incredible risky of them to set down their plans in a multi-point document that detailed every step that they, and the Chief Justice, would have to take to oust the Chief Registrar and those members of staff of the Judiciary who were seen to be sympathetic to her cause. If they truly thought they were going to war with the Chief Registrar they have now lost the initiative. They have forgotten the lessons from Sun Tzu contained in The Art of War and the tactics promoted by one of the greatest military strategists of all time, Karl von Clausewicz, contained in On War. The Chief Registrar, quite clearly, has not. She has taken the lessons and tactics of war distilled from the two master strategists and infused them with modern elements, especially the new weapons of a free press and the public's insatiable desire to side with the underdog.

While we must deplore the breach of security in the communications of the Chief Justice, now that the breach has taken place, we cannot pretend that the revelations are not shocking. It is instructive that the Chief Justice has not bothered to deny the allegations made by the Standard, nor has he offered an explanation about why he thinks he must stamp his authority on the Judiciary. These allegations must be investigated. If the Judiciary will not do it, it will fall on the highly dubious free press of Kenya. We should all be very, very afraid.

Tuesday, October 01, 2013

Secretary Lenku needs help.

Joseph Ole Lenku faces a most difficult choice. He can admit that the response to the Westgate Attack was poor, or he can keep parroting the line that "we do not discuss security matters in the media" and hope that Kenyans have retreated to the discomforts of their daily grind. It is, however, unfair to lay the blame of the failures tat led to the Westgate Attack on his hospitality-industry-trained shoulders. If the leaked intelligence report is true, the National Executive was well aware of the risks that the Westgate faced from al Shabaab and either failed or refused to take steps to prevent the siege.

The structure of national security is to be found in Chapter Fourteen of the Constitution. The Committee of Experts, again refusing to admit that the proposals from the civil society industry to reform national security were unsuited to a nation in transition, made proposals that attempted to create truly autonomous national security institutions, with neither being under the direct control of the other. As we have witnessed with the fiasco that is the Judiciary reforms, the structure codified in the Constitution is unsuited to swift decision-making or command and control.

Whether we want to admit or not, Kenya is not yet at the level of trust among public officials that each will be expected to play according to the rules, to operate only within their areas of jurisdiction. Traditionally, the President has a had a free hand to shape national security policy, with the National Security Council playing an advisory role. In doing this he also a free hand in choosing the men and women in charge of various national security institutions: the National Intelligence Service, the police, the armed forces (now renamed the defence forces), Cabinet positions and sub-Cabinet appointments. Now the President must share national security administration with an institution that has neither the maturity or expertise: Parliament. As the various committee chairmen have demonstrated over the past five days, Parliament is yet to understand that national security policy and public safety policies cannot be interrogated by them through the media, but behind closed doors in an atmosphere of co-operation and problem-solving discussions.

There have definitely been lapses that led to Westgate and these will be investigated by the Commission of Inquiry the President intends to appoint. Once the Commission is appointed, Parliament must take a back-seat and must resist the urge to back-seat drive. The President should consider directing such a Commission to examine whether an obsession with national security and a casual approach to public safety may have contributed to Westgate and to make recommendations that will strike a balance between the two.

This blogger has in the past asked for public officials to resign for errors that lead to disasters on thew watch. This time, we hesitate to do so. Maj Gen Gichangi is an excellent intelligence boss. Anyone who knows how the NIS works will find it difficult to blame Westgate in them. Inspector-General Kimaiyo has not been in office long enough for the reforms he is spearheading to bear fruit. He needs support to revamp the training and equipment of his police force, including the tough nut of incorporating the Administration Police with the regular Police. Criminal Investigation Department boss Muhoro has a dodgy resume, but even those who pooh-pooh his antecedents will remember that when the late John Michuki directed him to take the fight to the Mungiki, he was brutally efficient. We can expect the same if he receives the same order regarding al Shabaab. Mutea Iringo, on the other hand, seems not to command the same reverential fear his predecessor, Francis Kimemia, once did when it came to internal security. Perhaps it is time the President considered a change of guard in the powerful PS's position.

Secretary Lenku needs all the help he can get. A Commission of Inquiry should help him clarify what he needs to do, how he needs to do it, and what resources he needs to bring Kenyan national security policy into the twenty-first century where traditional threats recede and more amorphous and transnational ones rear their ugly heads.

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...