Wednesday, November 27, 2013

Share our pain, dear lawmakers.

Now that the Executive has admitted that serving and former law enforcement officials are involved in the commission of crimes, violent and non-violent, why are the Ethics and Anti-corruption Commission and the Director of Public Administration sitting on their hands? Do they not realise that one of the things Kenyans expect from them, whether they are sincere or not, is to "swing into action" to bring this sorry, sordid chapter of the evolution of the National Police Service to a close? While vetting may assuage the feelings of the chatteratti, Kenyans from lesser ivory towers expect "action" and a "return to normalcy" with the declaration of the Commission and the DPP that "heads will roll" and that "no stone will be left unturned" in their "dedicated efforts" to "bring the offenders to justice." It seems that they have forgotten the dictum about "the long arm of the law."

Despite the grim memories of the aftermath of the 2007 general election, in the long run, Kenyans will remember Mwai Kibaki fondly. When he was first elected in 2002, the hopes of 35 million Kenyans rose to heights not seen, perhaps, since Independence. One of those inimitable opinion polls ranked Kenyans as the most optimistic people in the world. What President Kibaki achieved in the ten years he was in power is nothing short of a miracle. The liberalisation of the airwaves and the expansion of the free-expression environment are some of the absolute gains Kenyans must thank Mwai Kibaki for. Without his light-touch approach to governance and political survival, Kenyans would not be in a position to demand things from their government, such as the dismissal of corrupt policemen.

Despite this, there is a dark underbelly to the Kibaki Miracle. Not all Kenyans made the leap from shackles to financial success, especially the hundreds of thousands that form the public service. Many of them resent the creation of the special cadre on special terms and conditions who are coining it even today while the rank-and-file make do with a pittance. many, rightly or wrongly, consider the special cadre as an abomination. It is why, despite some of the most stringent provisions of the law regarding wealth declaration or ethic, many public officers will not hesitate to abuse their offices for financial gain. It is why, for example, policemen will "rent" out their firearms and uniforms to criminal elements. It is why policemen will participate in the commission of vicious crimes. It is why policemen will take money to look the other way when crimes are committed.

Policemen perform a hazardous enough job without us making it more so. Kenyans, sadly, do not care to understand the employment environment of the men and women in uniform. They turn a blind eye to the indignities visited upon them by their government and their superiors. They refuse to acknowledge that policemen live like rats in such abject conditions it is a wonder that more of them have not taken up secondary careers as brigands and bandits. Kenyans simply demand security, but refuse to spend more for it. Kenyans would rather elect and re-elect thieving politicians as a mark of their ethic loyalty. They refuse to acknowledge that the thieves who trouser hundreds of millions of shillings in pay-and-perks ever year are the primary reason why they do not have security, or safety. Until Kenyans are honest about the circumstances they have consigned their police to, safety and security will remain out of the reach of the majority. But they will proudly watch as their tribesman is surrounded by a cohort of well-armed, well-trained gunmen in the name of tribal pride.

The proposal that former policemen will be placed under surveillance to prevent them from engaging in acts of criminality is all well and good. It is, however, the sledgehammer employed to swat a fly. Why not eliminate the incentive of former policemen to engage in crime in the first place? Enhanced pay seems like the most light-bulb clear idea of the day. Of course, it means taking money from some other programme or project. Why not simply yank a chunk out of the fat wallets of the men and women who make our laws? They claim to be serving the nation; this is the moment for them to put their money, quite literally, where their mouths are. It is time that they shared our pain.

Friday, November 22, 2013

Luis Franceshi is right.

If we fail to crack the nut of how to incentivise public doctors, devolution may fail altogether. This, at least, is Luis Franceschi's argument (Unhealthy Devolution: Underpaying doctors will take us from health to hell, Daily Nation, 22/11/13). This blogger will not quibble with that analysis for it is cogent and reasonable. However, when Mr Franceschi suggests that the solution lies in county authorities being more imaginative, because their lack of imagination has prevented them from offering solutions, he fails to appreciate that it is not a lack of imagination that will bring this crisis to a head, but what has become a troubling pattern with county governments nationwide: greed.

The reasons for the clamour for devolution are now well-known. The people were used to the central government, and the President, being the centre of the developmental universe. What the President decided, and what his government did, were one and the same thing. For almost forty years, the central government was an expression of the will of the President. It mattered not what the people wanted; the President knew best and doled out public funds without being troubled by things such as unequal distribution of natural or public resources and such like. With the election of Mwai Kibaki n 2002, and his re-election in 2007, things took a turn.

We may disagree vehemently on the political impact of Mwai Kibaki's presidency, but only the truly determined will find reason ti argue that Mwai Kibaki went to great lengths to spread around public resources. the death-dealing, but shiny, new highways are merely the most visible expression. His government experimented with various economic tools, including Kazi Kwa Vijana and the Economic Stimulus Programme to elevate the level of development in different parts of the country. Chapter 12 of the Constitution is the logical culmination of the past decade's changes. It fails or succeeds on whether county governments are capabe of tempering their avarice for the good of the people. Their records, thus far, have been disappointing, bar one or two truly inspired political; leaders at the county level.

Mr Franceschi is right; if county governments design a public finance system that will retain the services of public doctors (and if such a system is sustainable), in the long run, this will guarantee that families at the county level reduce the amount of family finances they spend on primary healthcare and the long term health costs of the county government will go down, with the savings going towards the county development budget. As we have observed over the past nine months, bar perhaps Dr Alfred Mutua in Machakos and Dr Evans Kidero in Nairobi, county governors lack the spark that will ignite the lamp of innovation in their governments. William Kabogo of Kiambu, for example, has been at war with his assembly since he took office; he is yet to unveil a strategy for the county that could have benefitted most from its close proximity to the Capital. Dr Julius Malombe of Kitui has failed to knit together an effective working relationship between his executive committee, the county assembly, his senator or his representatives in the National Assembly. Because of this, he is yet to unveil the strategy for exploiting the known, and large, reserves of coal, iron ore and limestone in his county. Similar stories are replicated in the remaining 43 counties.

It is therefore, optimistic to anticipate the moment when county governments will set aside petty political triumphs or losses in order to focus on the fundamentals of governance: healthcare, private investment and employment, market growth and stability, food and water security, infrastructure development and constant improvement in educational standards and facilities. They may be fundamental but they are the hardest nuts to crack. They require significant investment by both the public and private sectors. Some do not show instant results and may take a generation or two for their impacts to be felt. It is the impatience, and the glory-hounding of governors, that almost makes one despair. It is why this blogger believes that the fate of devolution is tied to the crop of governors and county representatives elected at the next general election. If the likes of Bungoma's Kenneth Lusaka are re-elected, we are doomed. If more who are in the mould of Dr Alfred Mutua are, devolution may yet restore Kenya to glory.

Thursday, November 21, 2013

White elephants won't do any more.

With great reluctance, this blogger revisits the subject of the continued rapacity of our nation's highways. In recent years, indeed in the past twelve months alone, the Executive has attempted various quick-fixes for the epidemic. The Traffic Act was amended and penalties for various traffic offences enhanced, sometimes to draconian limits. The Traffic Department of the National Police Service was slated for the chopping block, though no one is sure that would have contributed to finding lasting solutions to the epidemic. Mobile courts were launched with the aim of sorting out "minor" traffic offences on the spot. But, what do you know, the number of the dead and injured on the nation's highways has not demonstrated the likelihood of a downward trajectory; it has remained stubbornly pointed at the sky.

Road users, in case some of us have been misinformed, include pedestrians, bicyclists, motorcyclists as well as road-side vendors, newspaper hawkers and the occasional herd of cows that wanders into the middle of the road. Road users are not restricted to motorists or Public Service Vehicles alone. This is one of the fatal assumptions that has contributed so much to the death and injury on our roads. It is, usually incorrectly, that road users comprise only of motorists, and excludes everyone else. To a great extent, the moribund City Council of Nairobi after it was done gutting all professionals from its perfidious hallways, set the pace in how we manage our roads, how we protect human life and how we protect property while using the city's roads.

Priority was given to the motorists; other road users received short shrift. This is demonstrated by the pitiful and pitiable state of pedestrian pavements, road-side dukas, pedestrian crossings, traffic control system, design and location of markets and other public amenities and facilities, and the studious, mulish determination to maximise the number of PSVs on the roads without expanding PSV facilities such as termini, stages or stops. In Nairobi City, the effects of these drip-drip-drip missteps are plain to see. Traffic congestion, especially during peak hours, has become legendary. Pedestrian knock-downs have risen steadily in the past decade. Fender-benders are a common sight these days. PSV "hooliganism" has became the bane of public transport. The numbers and diversity of road traffic accident victims have risen and widened.

Solutions proposed in the past seem to have failed to address the problems. One of the newer innovations has been the establishment of a National Transport Safety Authority whose purpose, among others, is to find ways of making transport in Kenya safer. It will overwhelmingly concentrate its energies on road transport; after all, it is our roads that are proving almost intractable problems to solve. Taking its cue from other "authorities", the NTSA will, perhaps it already has, schedule foreign junkets to study the extant problem; it will spend hundreds of millions on conferences and stakeholder workshops; its Board will be among the best paid in public service; it will issue annual report after annual report which will be read only by the truly dedicated. In other words, the NTSA will be one among a number of white elephants the government likes to saddle its people with every now and then in the name of problem-solving.

Road safety is a delicate dance by the National Executive, the County Executive, the National Police Service and road users. It is affected and influenced by the actions of trainers of motorists, the interpretation of the law by the Judiciary  and the insurance policies of the insurance industry. If one of the partners in road safety does a bad job, it affects all of us.

The solution to our road safety challenges is not in ever harsher penalties for traffic offences or the creation of more white-elephant "authorities". It is not to be found in "speedy" justice through mobile courts either. It is a series of steps, each reinforcing the one that came before. First, enforcement of the traffic rules must be stringent. Second, driver education must be comprehensive. Third, all road-users must be made familiar with their duties, obligations, rights and privileges.Fourth, when we spend public funds, we must spend them too on public education that is constant and relentless. Fifth, road design should include both motorists and non-motorists and construction must follow the design. Finally, especially in urban areas and  cities, the ratio of road-space, pedestrians, public transport capacity and traffic management must be calibrated so that a balance is struck between effective and efficient public transport and the number of licensed PSVs we have on our roads.

Wednesday, November 20, 2013

Why don't we fight for our children anymore?

We are slowly losing our moral marbles. If it is not the continuing death and destruction on the nation's highways, it is the continuing tango between the Executive and the International Criminal Court or the tug-of-war between the National Assembly and various elements of the Judiciary. There is, however, one abiding constant: when it comes to sexual predation of children and adolescents, we seem to be going from strength to strength.
The predatory habits, both of male and female adults, has contributed to a level of despondence not felt since the day when Mama Lucy Kibaki took the late Prof George Saitoti to task over his remarks regarding the fatalities occurring from the Sachang'wan Fireball. Kenya's limping and whingeing media, is saturated with heart-rending stories of children, some even infants of a few months, falling prey to the sexual predatory habits of family and strangers alike and the utter callousness of the reaction of the forces of law and order during the half-hearted investigations. Every now and then the media and the civil society industry will join hands to highlight a particular incident of utter beastliness and the forces of law and order, led by the Director of Public Prosecutions, will make the appropriate noises about "commencing investigations while quietly burying the whole affair six feet under.
In recent weeks, it is revealed, Kenya has become the preferred destination of sex tourists. The targets of their perverse appetites, shockingly to the uninformed, are the boys and girls of Kenya's coastal towns. Mombasa, Malindi, Kilifi and Kwale are mentioned as being the top destinations of these animals, mainly from Switzerland, Italy, Germany and our old colonial master, Great Britain. Forces of law and order, both here at home and overseas, know who these men, and women, are and choose to turn a blind eye. It remains unclear whether this collective vision impairment is to promote tourism numbers and international trade, or it is simply a callous calculation by foreign powers that if the pederast are targeting Kenyan children, they are not targeting children from their home countries.
It is the reaction of the Kenyan on the street that demonstrates how far we have come in the past few years. Ten years ago, we would not have stood silently as the police gave a sexual predator the equivalent of a slap on the wrist for aggravated sexual assault on a minor that left the minor with a broken back. Kenyans would not just have rallied to the defence of the victim; Kenyans would not have been satisfied until the offenders had their balls nailed to someone's wall, literally and figuratively. But today, other than making well-meaning noises, we stand by and declaim that "it is the responsibility of government to deal with this issues." We don't even have the courage to call them crimes anymore: they are issues.
This is the place where a tunnel-visioned focus on politics and political heroes and villains has taken us. If it is not a conspiracy about Uhuru Kenyatta's election or a diatribe about Raila Odinga's moral cowardice over the ICC, Kenyans are not interested. If it is not the salacious innuendo on morning talk radio, where sexual licentiousness is paraded as a badge of honour for all to hear, Kenyans will not lift a finger to do the right thing. We are the face of the problem. We are the victims, and perpetrators, of the crimes against children. We must change for the situation to improve. If we do  not, not even the jaws of hell will welcome us on the Day of Judgment.

Friday, November 08, 2013

Seize the opportunity, Mr President.

It is really a bad idea for a public institution to take on another public institution in the name of political supremacy, especially when neither enjoys legitimacy. Tony Gachoka, while appearing on KTN's Jeff Koinange Live, stated that the President, elected with over 50% + 1 vote has a mandate to govern while Parliament plays the role of oversight.

This is the presidential system that we gifted ourselves when we promulgated a Constitution in 2010. The American system we attempted to copy is now slowly being implemented. The National Executive, Parliament and the Judiciary check each other and balance the exercise of each others' powers. It is why the National Assembly was right to censure the Cabinet Secretary for Lands without the President rejecting the motion. What the President does next is vital. If he accepts that the oversight if his government lies with the National Assembly in this matter, he has no choice but to ask for the Secretary's resignation. If he rejects the power of the National Assembly to pass the motion, he has no choice but to take the matter to the High Court for the proper interpretation of the Constitution.

The President, even when he was a lowly Member of Parliament, believes in the power of institutions established by law. Despite the vitriol visited on him by the civil society industry and, lately, the media, he has always relied on public institutions to resolve disputes he has had with others. A case in point is when he approached the Media Council when his name was dragged in the mud by a media house. He could have sued; he could have asked for a hostile act from a government that he served. Instead, he brought the dispute to the Media Council, a public institution, and the matter was handled as it should have.

Mr Kenyatta is the head of his party, being the senior-most politician in the government of which his party is a vital member. He is the head of the coalition that formed his government. He must be disappointed that the men and women who give his government legitimacy are acting in patently illegitimate ways. Mr Kenyatta has not challenged the power of his parliamentary coalition, or indeed Parliament, to make laws. But this power should be exercised judiciously. There must be a plan - the party manifesto, perhaps - by which this power is exercised.

A casual perusal of the Jubilee coalition's manifesto does not reveal a need to muzzle the press or control the media, save in the broadest of terms. While the Kenya Information and Communications (Amendment) Bill, 2013, might have been inherited from the Kibaki government, it was necessary that the Kenyatta government reviewed its key provisions before allowing the Bill to be sent to the National Assembly. Mr Kenyatta now has an opportunity to revisit the Bill, taking into account the protests it has elicited in recent weeks, and send it back to Parliament if he is convinced that the Bill fails the constitutional freedoms test.

This blogger believes that Mr Kenyatta's government is in danger of becoming ineffectual because of the problems being experienced by his Cabinet in the execution of their duties and the wrongful interpretation of the Constitution by his parliamentary coalition. The Majority Leaders in both chambers have proven to be woeful generals of the parliamentary army. Cabinet Secretaries lack the requisite public communication skills and strategies to educate and inform the public of the jubilee government's agenda. If Mr Kenyatta's government is to cease lurching from one crisis to another, he must seize the opportunity to streamline the business of his government.

It is a delicate dance.

Everyone is a constitutional lawyer these days, even the charlatans parading in front of the cameras of the Kenyan media that they purport to despise. The National Assembly has lawyers sitting on it. The media fraternity (if fraternal it is) has lawyers mouthing off in front of any camera that will record their words. And all of them are constitutional lawyers with the capability of reading, comprehending and interpreting the Constitution of Kenya for the great unwashed.

The National Assembly has squared off, in recent weeks, against the media fraternity. It passed a law that has been described, by different interlocutors, as either draconian or obnoxious. The National Assembly claimed to know what the Constitution said and what it meant.

But the people, in whose name the National Assembly and the media claim to speak and act for, remains in the dark about the meaning of it all. It remains unclear to the people whether the institutions claiming to speak for them have the people's interests at heart.

The representatives of the people, the members of the National Assembly, who passed the law that the media fraternity find so objectionable attempted to explain their act as being for the benefit of the people who have suffered at the hands of a media that has failed to regulate itself for the benefit of the people.

The Constitution, bad drafting and all, is a beautiful piece of writing when one looks at it in context. It has multiple moving parts that, when read out of context, will appear incongruous, especially when laws are drafted to implement it. The Constitution establishes a system that should allow for its smooth implementation. However, its implementation will require that well-intentioned men and women do the right thing in the implementation of the Constitution. The passage of the Kenya Information and Communications Bill, 2013, that is awaiting presidential assent, is a case in point. 

The institutions involved in its drafting include the Office of the Attorney-General and Department of justice, the Ministry of Information and Communication Technology, the Commission on the Implementation of the Constitution, the Communications Commission of Kenya, the National Assembly, the Media Owners Association, the Kenya Union of Journalists, the Editors' Guild of Kenya and the people of Kenya. The general consensus, a consensus that was built by the media (owners, editors and journalists), is that the National Assembly went "rogue" and inserted draconian (or obnoxious) provisions that would "muzzle the media" and "roll back the fundamental rights of the media."

Both the media and the National Assembly claim to speak for the people. Both could be right. Both could be wrong. The history of Kenya is littered with instances when both the media and the members of the National Assembly betrayed the trust bestowed on them by the people. In those instances, the people paid a steep price. The people demonstrate their displeasure or satisfaction by how many of the incumbent members of the National Assembly they re-elect and how many newspapers they buy or how many news programmes they watch (and believe).

The transition from 40 years of KANU hegemony continues in fits and starts. It has not been stopped. It has not been rolled back. But it requires a delicate dance between the people's representatives, the media and the people in order to do the right thing for the benefit of the people and the nation. When the three fail to do so, the world is treated to the spectacle of the people's representatives called "rogue", the media being accused of partisanship and the people being kept in the dark.

As by law established

The members of my profession, the ones with a pompous sense of importance, tend to use phrases whose value has diminished greatly since the ...