Friday, January 31, 2014

I agree with Luis Franceschi, for once.

Luis Franceschi has an interesting take on the place of law in politics, and politics in law, in today's online edition of the Daily Nation (Can courts prevent county assemblies from voting on impeachment? 31/01/14). In the same paper, the Chief Justice calls for better wildlife conservation/protection laws. This blogger thinks that it is the Luis Franceschi view that should prevail, namely that not everything can be legislated. This blogger would go so far as to argue that not everything the state or the elites declare to be a crime should be made a crime punishable at law.

Kenya is a biodiversity-rich ecological wonder because of its unique terrain, soil, geographical location and its enlightened public. But its diversity is threatened with destruction from poor management and outright sabotage even by the well-meaning. Kenya is also unique in having a truly diverse economy that seems to be thriving but with terribly high levels of inequity between the haves and the have-nots. The poor seem to remain poor for longer than should be the case if the economy is growing at the rate the experts say that it is.

It is for this reason that the law should take into account the realities on the ground. In the 1940s and'50s, when the colonial government took on the challenge of conserving Kenya's flora and fauna, very little was known about Kenya's diverse ecological riches, but a lot was known about the state of impoverishment because of the colonial land policies and economic policies. The villagisation of Central Kenya has had a pernicious effect on the management of the environment since the colonial era. The same mistakes that were committed then are being committed today: the demonisation of the weak and the poor for the sake of dollars from tourism.

Mr Franceschi was writing in the context of the Embu governor's impeachment, but his argument can be extended to the manner in which environmental conservation has been managed, especially since the late 1970s. For the most part, it has been a donor-driven effort, with many researchers from overseas, especially the United States and Western Europe, exploiting out flora and fauna for their benefit. Meanwhile, the residents of Kenya have not been so lucky. The few that have had opportunities to conduct research in the nation's parks and game reserves, have found their research restricted to mundane subjects that had very little commercial viability, unless of course they were attached to a larger Western research project. Kenyans who live around these protected areas have had their livelihoods disrupted for very little or no compensation. (The Endorois would have very strong views on this.)

Therefore, when the effect of the enforcement of the wildlife protection laws is the persecution of the poor, there must come a time when we ask whether or not it is worth it to protect lions and elephants when millions of Kenyans are at risk of starvation. The short-sighted decision by the Kenya Wildlife Service against renegotiating the Convention on International Trade in Endangered Species (CITES) will rank as the hallmark of the wildlife conservation lobby against the interests of the poor. If all the nations of the world were allowed to trade in their stockpiles of wildlife trophies, Kenya could set aside this amount to helping communities around parks and reserves adapt to alternative livelihoods. This is a simplistic argument, but the fact that Kenya did not have a chance to debate the matter is instructive.

For a lawyer, every problem can be solved by more laws, or so it seems from the Chief Justice's remarks. He should know better. Laws are simply not enough; they must enjoy broad legitimacy amongst key stakeholders, f not the whole nation. Wildlife laws are broadly legitimate, but not among the communities who live next to reserves and parks. When young poor men form the bulk of offenders, their families pay the price when these young men are incarcerated or fined. Until the youth of Kenya, especially the youth living near game parks and reserves, get better economic opportunities that better education and other public facilities bring, they will form the bulk of anti-wildlife offenders and Kenyan elites will keep calling for stiffer penalties or, in the words of the Chief Justice, improved wildlife laws.

Thursday, January 30, 2014

Try Kodiaga first before you recommend extended stays.

It is only someone who has yet to set foot in Kenya's eye-wateringly soul-shattering police jails or "GK" prisons who would call for an offender to be held or incarcerated in one of these places. When he was an honourable mheshimiwa, Shem Ochuodho would not have hesitated to recommended the stiffest prison sentence for any offender. The few months he spent at the Kodiaga GK Prison re-educated him about the inhumanity of it all.

In recent months there has been a concentrated effort to "enhance" the penalties meted by the courts under the law for offences against wildlife in Kenya. While Kenyans are acutely aware of the place of the nation's wildlife in bringing home the dollars, they are also equally acutely aware of the hypocrisy that goes with wildlife conservation (and protection).

The popular narrative, supported even by well-meaning but clueless eco-evangelists in far-flung areas of the globe, is that "poachers" are usually armed with "crude weapons" which might include boys, arrows, machetes, spears, simple snares or traps and home-made poison. It is why the prosecution of hunters simply looking for their families' next meals is so draconian. But this popular narrative has been discounted by hundreds of testimonies from victims of poachers, and this blogger does not mean the elephant or the rhino.

One of the un-noticed elements of the 2012/ 2013 Tana River clashes was the presence of sophisticated helicopter-borne poaching operations in the Tana River District and the southern bits of the Maasai Mara, Amboseli and Tsavo East. Not only were the illegal hunters flying about in helicopters, but they deployed sophisticated ground radar, seismic monitors, night-vision goggles and long-range sniper rifles. Their brutal efficiency ensured that the population of elephants and rhinos plunged alarmingly in that period. And when their operations were discovered by the residents of the Tana River, the hunters turned their sophisticated arsenal against the people. These hunters contributed a great deal to the sore-wounds between the Pokomo and the Orma that might never heal.

What is curious is that the men and women who smuggle wildlife trophies are caught, as are the small-time hunters. But the sophisticates with their hi-tech weapons seem to vanish into thin air, even though no one can land a helicopter in Kenya without attracting the curiosity of even the most sophisticated suit-clad graduate: we all want a peek at the idiot flying about in a helicopter. How is it then that shuka-clad hunters are being blamed for the destruction of Kenya's heritage while these hunting helicopters are refueled in the nation's ""air-strips" without anyone batting an eyelid?

Therefore, how can we demand with a clean conscience life imprisonment for people we know are not a threat to our cultural or environmental heritage? If there was even a hint that the pilots and crews of these hunting airships would face the same harsh judicial verdict, then we would by no means support life imprisonment for hunters of our endangered rhinos or elephants. But that is not the case. It is the poor who pay the high price demanded by our laws, while the rich laugh all the way to their Asian buyers. By all means try and find innovative ways to stop the carnage in our national parks and game reserves, but keep in mind that so long as we do nothing to prevent the financiers of industrial-scale poaching from purveying their craft in Kenya, it is the poor and our wildlife who will pay the price.

The Man in the Mirror

Despite the billionaires amongst us (dollar billionaires, not the run-of-the-mill shilingi billionaire, let us be clear) we are a poor country. Nor resource poor as those benighted sheikhdoms with oil only; but poor in the sense that over half the country shits in the bushes or down a very deep hole. Poor in the sense that even pretty wealthy men and women see nothing off about their five-fingered-discounts habits, especially when it comes to monies placed in their care. It is for this reason that this blogger is surprised that it took this long for a Governor (and his female deputy) to get their asses in the firing line of their county assembly on accusations of having trousered several ten million shillings meant for "development," that catchall word that means many things to many people.

Ironically, the news broke on the same day that the President and Commander-in-Chief was lining up his Cabinet in front of State House (with many of us hoping for a firing squad scenario) and the beaming broadcasts of the media and declaring in his Big Boy Voice that the Standard Gauge Railway will be built, come hell or high water, or words to that effect. He warned (what is it with this President and his warnings?) those who thought they could reverse decisions that initiated in the long-forgotten administration of Mwai Kibaki to...this blogger is still not sure what he wants them to do. What is notable, however, is the fact that the Government of Kenya, which cannot seem to supply clean drinking water, or buy computers, or pay doctors or nurses or teachers, has gotten it into its head that it is a good idea to secure a Very Large Overdraft from the Chinese (whose people have been taking a keen commercial interest in our wildlife, among other natural resources) to pay for a railway for reasons yet to be explained. We have a railway. Yes, it is old. But why do we need a new one? Why can't we simply make the one we have more efficient? Why exactly do we need an SGR today?

Meanwhile, Kenyans are realising that perhaps, the Deputy President, before he was a Deputy President, was right about the wee matter of implementing the constitution. It is still not clear whether the brainiacs that conceived devolution could have known that the hyenas that had pitched camp in the Capital would relocate their centres of greed from the nation's political centre to its forgotten fringes. It should not come as a surprise that this is exactly what happened; after all, how many of the idealists who served on the Committee of Experts failed to parlay their "experience" into wallet-fattening government jobs later on? If these one could not resist keeping their fat fingers out of the National Treasury cookie jar, it would take an Act of God to keep the Governors, deputy Governors, "Chief Officers and sundry county hefties and worthies out of the county treasuries, would it not?

But the catch is that while the machinery of government is creating billionaires and making millionaires on a weekly basis, a majority of Kenyans don't have two shillings to rub together. They are the ones at whom we snigger on morning FM radio because their homes have been flooded the night before and they cannot trace their loved ones or their meagre belongings. They are the ones we condescendingly organise nation-wide campaigns to supply them with sanitary pads and tampons, because their mothers and fathers have not the wherewithal. They are the ones we slap hefty prison terms on for doing what their betters do with briefcases and lawyers.

Compromises have defined the fifty years of self-rule. When it became clear that the much-hated settler community had great clout in the great halls of Whitehall, we swallowed our pride and allowed them to call Kenya home. When it became clear that KANU was a dictatorship, we swallowed our anger and went along so that we could get along. When it became clear that our Treasury was being pilfered, we swallowed our pride and gave our bit in the name of cost-sharing. It is only a matter of time that we stare at the face in the mirror and admit that we do not give tow shits about the poor, the weak and the downtrodden and that our nation, our government has taught us to look out for number one: the man in the mirror.

Tuesday, January 28, 2014

Rais, bend it to your will.

Rais, you are not on the campaign trail anymore and it is no longer your business to promise us action on this, that or the other. That is what we need to remind our President, ten months after he assumed power in State House and received the Instruments of Power with such colourful pomp and circumstance at teh Moi International Sports Complex at Kasarani.

This is not to say that the Presidency of Uhuru Kenyatta is a never-ending string of promises-yet-to-be-fulfilled; it is far from that. The Galana irrigation project, estimated to provide over 2 million jobs when fully implemented, is not a promise but action on the ground. However, if it is implemented in the same fashion as the free maternity healthcare promise, where babies are born while their mothers are standing, then it is not something he should tom-tom at the moment.

However, this blogger is not here to praise nor to hurl brickbats at the Commander-in-Chief; this blogger has noticed a worrying tendency by the Head of State to make promises: we will do this, we should do this, we are going to do this, we want to do is becoming part of his charming mantra every time a new idea or a new programme catches his fancy. But that is not what heads of government do; they do not promise things. They simply crack the whip and it is done.

If President Kenyatta wants the Ministry of Transport, the National Police Service, the National Transport Safety Authority, the Kenya National Highways Authority and the key stakeholders in the transport-and-roads sector to reduce the deaths and injuries on the nation's highways, he will not promise to take action; he will demand it with the full authority of his office. he will hold accountable the men and women in charge. He will fire the stumbling blocks. He will prosecute to the fullest extent of the law the saboteurs. And he will publicly celebrate the achievement of the men and women who translated his Presidential Decree into Policy and finally into Results.

My President does not need to promise that the war against corruption will be fought and won; all my President needs to do is to demand it. He is the head of the government. He has the right to demand such an outcome. If Mumo Matemu and his fellow commissioners cannot meet the President's demands, they should be sent packing. My President does not need to promise that the Single Gauge Railway will be built; all he has to do is demand that it be built. It is the business of the Ministry, the Cabinet Secretary, the railways corporation and the Attorney-General to see to it that this presidential demand is met. When they embarrass him by playing the same old procurement hide-and-seek games, he has absolutely no reason to retain them in the service of his government. he is well within his powers to ask for their resignations. If they resist him, he must ensure that they go and that they never set foot in the public service ever again.

The time for making promises is over. This is the time to keep the promises that were made during the campaign, not to make new ones. It is not time to seize on every new idea out there. It is only required that the President should direct the machinery of his government to achieving all the ends of his promises. In this, the President need only point his finger for the public service to get to it. The sand in the gears of the machinery of government must be dealt with ruthlessly. They must be purged. In this, the President has the law on his side. If the sand is composed of the corrupt, the perfidious, the lazy, the incompetent, the saboteurs, and the like, he must set the forces of law and order on them. He must have the book thrown at them. He must make them an example and a lesson. In other words, it is his government. It is time he bent it to his will.

Monday, January 27, 2014

Why Ms Kilonzo is going to be disappointed.

This is not the United States of America. The spirit of the American Revolution is not alive and thriving in the savannas of this most East African of East African nations. The United States was built on the foundation of the greatest extent of human liberty that one could get away with in a nation-state. It is why the Supreme Court in Roe v Wade could read privacy into the First Amendment though neither pregnancies nor their terminations are mentioned at all in the First Amendment.

The American Declaration of Independence is a truly remarkable statement of intent. The Preamble to the Constitution of Kenya is a poor imitation.In it you will struggle to find the equivalent of a rallying call to extend human liberty to its most extreme end. Instead, it is a set of platitudes perfected by the rhetorical flourishes of carnivore buskers; it is incapable of even raising the hackles of those who feel that their right to privacy is under the greatest of threats from their government.

When Kethi D. Kilonzo asserts with authority that the right to privacy is essential to a free society and she quotes the principles and the right enshrined in Article 91, I wonder whether she has been keeping up with the changes that Kenya has undergone over the past fifty years (Leave me alone and just let me be, Sunday Standard, 26/01/14). Kenya is not the United States; its Mau Mau war is not the equivalent of the American Revolutionary War; its Preamble is not the battle-hymn that the Declaration of Independence is. Privacy may be enshrined in Article 31, but it is about as inspirational as a citation from an English-Swahili Dictionary.

In the United States, the Bill of Rights are the foundation for ideological battles between scholars steeped in decades of argumentation; Chapter Four, on the other hand, is a wish-list from the civil society industry for which few battles have been fought and fewer of those have been ideological or argumentative, if that. It is why the false narrative of privacy rights is being red-herringed in public discourse; red herring because whom do you know who could credibly argue that even in modern Kenya privacy is understood in the same libertarian way that it is in the United States?

For this reason, we must restate the argument in light of the experience of colonial Kenya and Independent Kenya, and the choices our rulers made for us between 1921 and 2010. The colonial government and its hated administration service were rulers. Jomo Kenyatta and Daniel Toroitich arap Moi were rulers. Kibaki will deny it until the day he is dead and gone, but he was a ruler too. Only Uhuru Kenyatta has a chance to be a leader, perhaps even a statesman. Kenyan rulers decided when Kenya would gain internal self rule; they decided who would form the self-government Kenyans demanded; they decided the form of government Kenyans would have; they decided whether or not to sustain that government or curse it with financial bankruptcy. The Mau Mau may have died in the name of land and freedom but they were not a revolutionary army and their war was not a revolutionary war, no matter how many hagiographical tales we tell about their heroism.

Privacy, the rights of arrested person, the power of the State to search ones home and seize ones property...all these are things that the State gave Kenyans. It is why many refer to government not as an uncountable noun but as a proper noun: Government even today in light of a progressive constitution. One of the clawbacks of the power of Government in light of the progressivism of the Bill of Rights is to be found in the scarcely-studied Article 24 that permits the State, or Government, to limit the application of the Bill of Rights. In contrast to the rest of the Bill of Rights, it is drafted in the weaselly words of a lawyer out to cheat you out of your point-something acre of land. It is proof that Government survives regardless of what the civil society industry wants, or wishes Kenyans would want.

IN Kenya, as a nation and as Republic, the State, and Government, came first; the people were an afterthought. They were an afterthought when the robbers of the Imperial British East Africa Company pushed the natives off their land; when the colonial administration all but enslaved the natives; when successive Independence regimes did everything in their power to sustain Government, whether the people were happy or unhappy. The people suffered; Government prospered.

Perhaps Ms Kilonzo is attempting to rally people to the cause, show them that they now come first and Government should be the afterthought. She seems to live in the Twilight Zone where the rule of law is the foundation of the relationship between the people and Government. She should know better. The rule of law is one of those fictions Kenyans have been sold on which in the darkest recesses of their hearts they know to be snake-oil, a flim-flam, not worth the paper on which it is printed. It is why Kenyans are going along with the sham that is judicial vetting. It is why we are not raising eyebrows at the spectre of the members of the police vetting board sitting pretty while their colleagues on the other side of the table are compelled to attempt to bamboozle their way to job security. We can ape the United States and become properly agitated about "assaults on our privacy" and "unwarranted State surveillance" but we know, deep in our hearts, we don't care. We never did. We probably never will.

One day, corruption will kill us all.

Just like tuberculosis, pertussis, measles, pneumonia, malaria, the Spanish Flu and cirrhosis of the liver, corruption kills. That should be the tag-line of all anti-corruption campaigns. Corruption Kills. many Kenyans have been animated by the back-and-forth warriors of the Standard Gauge Railway tender. One side alleges, vociferously, that the tender is not a tender and that it is illegal. The other side says that it is not a tender but a government-to-government contract on very favourable terms to Kenya and that it is legal. Both might be right. Equally, both might be wrong. That is for the Mwalimu Matis, the John Githongos and the Maiai Kiais of the civil society industry to tell us.

Whether the Single Gauge Railway project has been corrupted by the raiders of the national coffers is neither here nor there; what is critical is to understand that Grand Corruption - the sort that gets the Matis, Githongos and Kiais out of bed in the morning - is fought on such a Grand Scale that its effects are never examined on the minutiae of day-to-day lives of the walking masses. When a mother-to-be gives birth in a public health facility and her infant dies upon birth because the maternity ward is under-manned because the funds for hiring extra nurses are unavailable because the national government overspent on Volkswagen Passat saloons because the public officers making the decision to purchase the Passat saloon were...(unaelewa?), you will not see Messrs Mati, Githongo or Kiai penning long Letters to the Editor explaining the link between the VW Passat tender and the death of an infant at the Nyeri District Hospital.

Take the knotty problem of public safety. We pretend that we are safe when we have surrounded our homes with eight-feet high walls, electrified fences, flood-lights, guard dogs, private security personnel and privately-owned firearms (whether licenced or not). We take defensive driving courses as a precaution for when we are not behind our home-stockades (surely we do not ride in hijack-prone Public Service Vehicles out of choice). We bemoan the lack of "police presence" on our streets and curse the extra expense of replacing the missing police with private security but we do not link the missing police to the black hole of the Black Budget allocated to "national security" and its associated elements.

We have a slight idea idea of how much the national government spends on capital development in national-security-related matters (you know, guns, bullets, body armour, Murungarus, and the like); but we are all at sea at why rank-and-file policemen (and women) live in hovels; why they do not receive the equivalent of hazard pay; and why they are the bane of the anti-corruption establishment while their bosses seem to trouser tens of millions every year from "investments" by them and their spouses. We do not need the same numbers of police on the streets as the United States or the United Kingdom do; what we need are police that are motivated to uphold the rule of law at all times. So, we do not pay the rank-and-file well; and their bosses are not punished for their "investments" even these are of quite dubious antecedents. Despite all this we are shocked - SHOCKED - when bribes are solicited and paid; when official firearms and uniforms are "rented;" when response times to crime scenes depend entirely on whether responding officers will be given "something to fuel their vehicles;" and there is a growing and lucrative partnership between the forces of law and order and elements of the criminal underground.

Corruption kills. And we are complicit in the deaths that corruption leaves in its wake. We go along to get along. We play the game as the corrupt want it to be played. We wring our hands and whinge piteously when things go wrong. But we do not take an active part in routing corruption; we are part of the corruption. Every day we watch silently as perjury is suborned, as bribes are paid, as "petty" rules are bent and broken, as unfairness is visited on us, as nurses sleep while infants die on birth, as anti-corruption czars are permitted to receive "gifts" in the course of their duties...we are complicit in the wave of corruption that has engulfed this country like an epidemic. One day, corruption will kill us all.

Saturday, January 25, 2014

The right partnership.

This blogger dares you to find any intelligent Kenyan who believes the National Police Service or the National Police Service Commission are intelligent or professional. This blogger dares you to classify the Administration Police as the cutting-edge in national security or public safety. Individual units, such as the Criminal Investigations Department and the General Service Unit (and its Recce Squad) have received deserved plaudits, but by an large, Kenyans view their police and police commission with undisguised loathing.

For this reason, millions of Kenyans greeted the attempted explanations by the Inspector-general with derision and hurtful mockery. The Inspector-General has been to a real school and obtained real degrees to boot. It is whispered in certain quarters that he is a doctoral candidate in one of Kenya's finer institutions of higher learning. At one point in his illustrious career, he headed the brutally, scarily effective GSU Presidential Escort Unit. You would not know this to listen to his ham-fisted atempts at setting the story straight about Westgate, narcotics trafficking in Kenya, high-profile murders, or anytjhing to do with the security mess at the Jomo Kenyatta International Airport. Nor can you trust that his spokespersons will do a better communications job; other than the colourful Eric Kiraithe and the eloquent Charles Owino, these characters have cemented the impression in Kenyans' minds that any relationship that the National Police Service has with the English language (or Swahili, for the purists among us) is purely accidental.

This blogger has argued in the past that until the mandate of national policing shifts from national security to public safety, we will never have the police service that we deserve but the police force that we universally loath (and deride.) With the mulish determination to see everything in national security hues, just like the United States federal government, the people are a threat, to be corralled and controlled. The people cannot be trusted to do the right thing; they are to be feared as undeclared fifth columnists of foreign powers or transnational criminal networks. It is for this reason that draconian laws that treat even public officers like a threat are yet to be repealed  a decade after the Second Liberation war was declared won by the leading luminaries of the National Rainbow Coalition. Instead, even more draconian laws have been enacted, dozens of Kenyans have been renditioned to parts unknown, and the civic space necessary for democratic discourse has slowly been occupied by the oppressively mighty presence of the Government.

A change of focus from national security to public safety will see both objectives of a secure Government and a safe public achieved. The elements of national security truly charged with ensuring the continuity of government would find the field clear for them to go after enemies of the nation, whether or not these are synonymous with enemies of the government. The police, on the other hand, would develop new partnerships with county governments and municipal authorities to provide for a safe environment for Kenyans and visitors alike to engage in an activity the Government would encourage: the creation of wealth.

A partnership, for example, between the Nairobi City County government and the National Police Service would identify that the key drivers of violent crime are interconnected: poor traffic management, poor civic facilities; corruption among the police and City Fathers alike. A functioning partnership between the two institutions would ensure that street lights work; drains and sewers function; potholes are urban legends; physical plans are enforced (and complied with) without favour; and the corrupt in the public service are hounded out of the system and jailed. The spectre of an inarticulate Inspector-General as the laughingstock of the nation would be a thing of the past. The image of a bombastic but ineffective Governor would be banished to the ash-heap of history. More importantly, the people would have faith again in the institutions of government. That is the key; until our faith in government is restored, it will invite contempt, ridicule and ill-will.

Wednesday, January 22, 2014

Slow-roll Express.

The redoubtable Fatou Bensouda's much-delayed prosecution of Uhuru Kenyatta is turning into a Russian play, Samuel Beckett's Waiting for Godot, perhaps, though Mr Beckett was not a Russian. The International Criminal Court's prosecutor from the Gambia was always playing with a loaded deck when she inherited Luis Moreno-Ocampo's fiasco-ridden Kenyan cases. The doubts, both at home and abroad in Africa, about the rationale behind the heavy-handed ICC prosecutor's investigation meant that regardless of the power politics between Kenya and her development partners, Ms Bensouda was never going to get everything she wanted.

The to-ing and fro-ing between the prosecution and defence teams has supplied enough drama for at least 10 years of the leading lights of the Nigerian movie industry. Mr Moreno-Ocampo and Ms Bensouda, when they once master and apprentice, underestimated the Kenyan establishment's determination to prevail. Senior police, senior intelligence officers, senior civil servants, and senior provincial administration officers resisted the entreaties and threats of the ICC prosecutor. They dragged their feet until the whip was seemingly cracked by the President-Prime Minister combo. The machinery of government - something that Joseph Kaguthi knows a thing or two about - maneuvered and manipulated and got the outcome it wanted. No one doubts that if the system had sufficient time, the postponement of the President's trial would also have meant the postponement of the Deputy President's.

Makau Mutua, Maina Kiai and John Githongo must be staring in horror as Kenya somehow one-ups the ICC prosecutor. All three must surely know that the Government of Kenya is not and cannot be separated from its politicians, especially its president regardless of what the Constitution says. It is not that the president or deputy president are above the law; those days of presidential imperialism are well and truly over. But the reality is that even before Uhuru Muigai Kenyatta and William Samoei Ruto took their oaths of office, they were pretty big deals. Mr Kenyatta needed no introduction to the people of Kenya; he may not have spent his entire life in the public limelight, but millions of Kenyans knew of him and wanted him to win in 2013. Mr Ruto was a wily political operator who had made and broken political careers of others; this was his moment in the sun and the ICC prosecutor was not going to be the fly in his Deputy Presidential ointment.

What must also horrify the three is the narrative that has somehow whitewashed the terrible crimes of 2007/2008. The Judiciary has proven a disappointment, as have the Director of Public Prosecutions and the Attorney-General. The Kenya National Commission on Human Rights is out of commission and commissioners. The other Kenya Human Rights Commission is in the hands of the clever-but-flawed Atsango Chesoni; it will not be troubling Mr Kenyatta any time soon. Ndung'u Wainaina and his fellow-travelers leave one with the feeling that their intellectual journeys have proven terribly arduous...and exhausting; they are the human equivalent of a deflated tyre. On the home front, whether Messrs Makau, Kiai and Githongo will admit it or not, there is nothing to trouble Mr Kenyatta on the ICC personal challenge.

The good lady from The Gambia must look for a face-saving gambit from the demon-seed that Mr Moreno-Ocampo dumped on her lap. She has slow-rolled the withdrawal of charges against Mr Kenyatta in the hopes that the rats deserting her prosecution ship will somehow have a change of heart. It was hard enough to persuade them to come forward when Mr Kenyatta was a mere politician; it will be near impossible for her to persuade the remainder to stay now that he is the Commander-in-Chief of the Kenya Defence Forces. And she cant go dipping into the KNCHR/KHRC well given all the poison dumped in it since March 2008. She's on her own. She must wish she'd never left The Gambia; at least there it was easy to see the other guy pulling a fast one on you.

Hang your heads in shame.

The presence of water dispensers in the offices of public servants, whether they be Cabinet Secretaries, Principle Secretaries or the rank and file, or the presence of uncountable bottles of bottled-water on the high tables  of high-level chinwags attended by the aforementioned personages of the Government of Kenya are an indictment of over thirty-five years of the Clean Water for All Pledge that the Government of Kenya made to the people of Kenya.

It is symptomatic of the sloth with which the Government of Kenya has completed its projects for the improvement of the lives of the people. Since 1962, Kenya has metronomically held regular elections, and replaced one administration with another with only one or two major electoral crises. But the elections have not transformed the lives of the people all that much. There are those who are proud of the legacy left by Baba Moi in the education sector: all those schools, especially girls' schools, that he built and staffed. There are those who believe that Baba Jimmi's accomplishments in the rods sector trump all the achievements of Baba Moi and Mzee Kenyatta combined. Yet none are able to demonstrate that Kenyans are all that better off for all the schools Baba Moi built or the hundreds of kilometres of roads that Baba Jimmi built.

Many more Kenyans are less poor today than there were in 1963; more Kenyans have been educated and have educated their children that in 1963. The quality of life for hundreds of thousands is quite good; that of millions more is in the toilet (only that millions of Kenyans do not have toilets.) The big-ticket programmes that are and should be the concern of the Government of Kenya are education, healthcare, public safety...and potable water. A casual assessment of the situation leaves one with the sense that the Government of Kenya is stuck in the Egyptian dessert of want, without a Moses to lead it to the Promised Land of plenty.

If the Government of Kenya, whether at the national level or the county level, is unable to assure the people of potable water, affordable and reliable healthcare, or public safety, there is little that it can boast of to its neighbours. We are praised as a dynamic economy, the engine of East Africa, but this praise damns us to perpetual mediocrity it does not lead to the upliftment of the quality of life for the millions of Kenya still stuck in an agriculture-based economy that barely sustains livelihoods in the rural backwaters policy-makers never visit.

If Kenyan agriculture were the pride of East Africa, it would guarantee clean drinking water for the millions that it employs; dispensaries would be fully-staffed, well-stoked and efficient. But none of this is true. Agriculture, especially commercial industrial agriculture, seems to benefit an elite that lives in the swankiest palaces in Kenya while the labour that makes agriculture the economic engine of Kenya languish in smoke-filled hovels, barely able to send all their children to school and who die like flies every time there is an outbreak of one affliction or the other.

Therefore, when the President and Deputy President, the forty-seven governors and the army of functionaries and factotums host their visitors and offer them water dispensed from a machine or packaged in plastic, they should take a moment to wonder why the tap water in their offices is not to be trusted fifty years after Kenya decided to rule itself. If they cannot supply their own offices with clean water, it is almost certain that they cannot supply the people of Kenya with clean water...or clean anything, for that matter. They should hang their heads in shame and admit they have failed the people.

Tuesday, January 21, 2014

Culture wars, Kenya-style

The belief that homosexuals are inherently immoral has made its way across the Atlantic to our fair land. Charles Kanjama, a candidate for the chairmanship of the Law Society of Kenya, argues that there is something wrong with embracing the gay agenda; that each nation should be free to discriminate (or not discriminate) against The Gay Agenda and its advocates. Calestous Juma, a Kenyan scientist living in the United States, argues that discriminatory laws can be used even against those they are supposedly meant to protect.

Kenya is going through an intense process in the implementation of its progressive constitution. It is becoming increasingly apparent that different communities of interests have different agendas. There are those that would love to have the constitution implemented in full; there are those who would love to see the process slow-rolled as we "work out the kinks in the document;" there still others who like to see the whole thing shelved "until Kenyans are ready."

It is in the context of the implementation of the constitution that Kenyans are asked to debate whether or not the law should be amended to decriminalise homosexual acts; to protect homosexuals from discrimination; and to recognise their "rights" to healthcare, safety, adoption of children, marriage, and so on and so forth. The argument is being framed as being an unwarranted assault on our sovereignty as a nation to determine what is and what is not suitable for the peoples of Kenya against the obligations of a free society to permit individuals the widest liberties without infringing on the rights of others. It is being framed, too, as a moral battle between those who would still believe that homosexuality is a path to great moral decline while there are those who argue that what happens between two consenting adults behind closed doors and shut curtains is no business of yours or mine.

Despite what the various advocates for one side or the other argue, the constitution forms the foundation of the laws that we will enact, revise or repeal. It is not enough to blithely declare that the people will determine whether to "permit" or not the Gay Agenda; it must be declared in the context of whether the constitution prevails. If we are to ignore the provisions on non-discrimination and equality, we must do so honestly. We should not dissemble. We should tell all Kenyans that we do not believe that the Bill of Rights should be read as it has been drafted. We must tell them that we will pick and choose who will enjoy protections under the Bill of Rights and who will not. We must make it explicit that homosexual acts and homosexual persons do not deserve the protection of the constitution, that it is our solemn responsibility to not only make it impossible for them to be who they claim to be, but we must find a way of re-engineering their psyches and suppressing their immoral, perverted urges.

If the constitutions prevails, however, then the purveyors of such hate-filled religious bigotry must be put in their place. They may promote their hate-mongering in the name of protecting the institution of marriage, in protecting the children, in protecting Kenyans from immoral and corruptive influences, and generally, ensuring that the bulk of all right-thinking Kenyans will find itself on the way to heaven when the day of judgment is upon us. Whether we will admit it today or not, the breadth of individual liberties in the constitution implies that the State, and all its agencies, are no longer welcome in my bedroom. Or bathroom. Or home. If they think I'm unfit to look after my child, they can only prove it in the courts. If they think that my neighbour three doors down is a pederast of the worst kind, it is the courts that will settle the matter and I can then shun the little perv.

It is the institution of the constitution and the rule of law that must determine whether or not Kenyans will one day marry whom they want and adopt children when these children have no one else. But when you have leading lights of the Law Society asking for Kenyans to set aside the provisions of the constitution on equality and non-discrimination, and instead, discriminate actively against fellow-Kenyans because they "worship at another church" it is only a matter of time before we decide that we really didn't mean for women, children and the vulnerable to be protected by the constitution, or that environmental rights are the wild imaginations of tree-huggers of the Committee of Experts. They came for The Gay, and I did nothing...

Wednesday, January 15, 2014

Waiting for the other shoe to drop.

The national values and principles of governance include the rule of law, equality and integrity (Article 10(2) of the Constitution). In exercising judicial authority, the courts and tribunals shall be guide by the [following] principles [of] alternative dispute forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms subject to [these] not [being] repugnant to justice and morality or results in outcomes that are repugnant to justice or morality (Article 159(2) and (3).

It is becoming increasingly difficult to see how the winding judicial process in L'affaire Kidero has the hallmarks of the rule of law, equality or integrity or how it cannot result in an outcome that is repugnant to morality or justice. The Governor of Nairobi City is alleged to have assaulted the Woman Representative of Nairobi City when the latter, he alleges, assaulted him by touching him inappropriately while leading irate workers of the City in a demonstration over the workers' terms and conditions of service. The Governor filed a complaint with the police on the same day. As did the Woman Representative. The police announced, rather grandiosely that they were investigating the alleged offences committed by the Governor and the Woman Representative against each other. This was in September 2013. It is only in January 2014 that the Director of Public Prosecutions directed the prosecution of the two City leaders. The High Court stayed the prosecutions of the two and asked the accused persons to sit down and reconcile.

From a technical perspective, the Governor, the Woman Representative and the High Court acted within the letter of the law. When it comes to the spirit of the law, it is safe to assume that the jury is still out. Every Kenyan has a strong opinion on the administration of justice. Many Kenyans will state without equivocation that the rich and powerful, the high and mighty will get away with offences because they are rich and powerful, high and mighty. They will also tell you that when a little fish commits an offence, the administration of justice machinery will throw the book at the little fish, lock them behind bars and throw away the key. Minor altercations among people who are not politicians or who do not have great wealth are almost always prosecuted with alacrity. There is never even the farce of an investigation; the word of the investigating authorities is practically holy writ in these cases. Not so for Governors and popular Woman Representatives.

There is logic in arguing that a Governor or a Woman Representative should not be treated in the same manner as the hoi polloi, but this logic makes a mockery of the rule of law, equality (before the law) or the justice and morality of the law. It is moot that the law treats the rich and poor differently, deferring to the rich and bringing the hammer down on the poor. Regardless of the merits of each others' cases against each other, it is only the willfully blind who will deny that the Governor assaulted the Woman Representative. It was, after all, captured on national TV. (Whether his assault on her was precipitated by her assault on him is what the courts must prove.) But the unctuousness demonstrated by the National Police Service, the Director of Public Prosecutions and the High Court make a mockery of Article 10 and Article 159 of the Constitution.

The effect of such mockery is that Kenyans from all walks of life will give lip service, if that, to the Constitution or its principles. What they will hanker for is the same power and privilege that ensures that the Constitution and the law bends to ones every whim. It is for this reason that very few Kenyans see a career outside the political arena as attractive; many of us dream of becoming the President, Deputy President, Governor, Senator, Member of the National Assembly, Cabinet Secretary, Principle Secretary, Member of a County Assembly, or Member of a County Executive. These are the men and women who are treated with kid gloves, if at all, by the forces of law and order when they are "in conflict with the law" and who very, very rarely see the inside of a jail cell. And if we keep treating them as the princes of old that they are treated like, the dream of "justice for all" will become the nightmare of a privileged few facing the pitchforks and torches of the great unwashed.

Sunday, January 12, 2014

The Chief Justice should heed his own wise counsel.

It is easy to praise the dead in Africa; anyone attempting to speak ill of the dead will be burnt in effigy or worse, simply burnt. In his Closing Statement in the January edition of the Nairobi Law Monthly (Let's emulate Mandela), the Chief Justice is effusive with his praise for the departed Nelson Mandela of South Africa. In his service as President of South Africa, the Chief Justice draws lessons which he exhorts us to be illuminated with in "our constitutional moment as we struggle to stabilise our politics, law and institutions." The Chief Justice accuses us of being "incapable of stitching together our ethnic diversity, bow to the demands of the law, dream big, expand our vision, respect our constitution and professions." And he is right.

Kenyans have had countless opportunities to be better; better at politics, better at governance, and better as people. Many of these opportunities have been squandered. Even those, such as the Chief Justice, who have the intellectual courage to speak truth to power have squandered opportunities to be better. Because he is the Chief Justice of Kenya, and the head of the Judiciary, let us examine the place the Chief Justice finds himself in light of his effusive praise for the South African icon.

We shall take only two examples of his role as Chairperson of the Judicial Service Commission. The first is the removal of the erstwhile Deputy Chief justice, Nancy Barasa. When, on New Year's Eve 2012, the Deputy Chief Justice was accused of assault, the Judicial Service Commission under the leadership of the Chief Justice applied its mind to what the law demanded. It investigated the allegations against Ms Barasa. It concluded that she had indeed acted in a manner that warranted dismissal and recommended the appointment of a tribunal to investigate her conduct. The process was not seen to its conclusion as Ms Barasa chose to resign her position. As the saga unfolded, there wasn't a Kenyan alive who did not believe that the Chief Justice, and the Judicial Service Commission, acted other than professionally.

How much difference a year makes. In August 2013, the Chief Justice, and the Judicial Service Commission, had the opportunity to act with the same degree of professionalism that they demonstrated during the Nancy Barasa saga. The disinformation and misinformation surrounding the dismissal of the erstwhile Chief Registrar of the Judiciary, Gladys Boss Shollei, have painted the Chief Justice and the Judicial Service Commission in the worst possible light. It is yet to be proven but the public spectacle of the removal of the Chief Registrar pointed to a vindictive disregard of the law and level of vendetta against her that belied the professional integrity of the members of the Judicial Service Commission.

Perhaps the Chief Justice cannot see it and it will take the people to show him the truth. In Kenya, while our ethnic diversity continues to be the subject of much punditry and commentary, and corruption continues to animate all pro-reform voices-in-the-dessert, it is the colonial-era legacy of the public service that must be reformed, and this is reflected starkly in the Judicial Service Commission more than anywhere else. The puffed self-importance of the Commissioners has done more damage to the institution than all the corrupt acts of the Judges and magistrates of Kenya for the past fifty years. The arrogance of the Judicial Service Commission about its power and place in the administration of justice has become the albatross that will eventually damn the Judiciary.

It is not just the removal of the Chief Registrar speaks volumes. It is also the avarice displayed by all serving public officers on the Commission. When Maina Kiai points out that there is no logical reason why the Chief Justice, the Attorney-General, the representatives of the Supreme Court, the Court of Appeal, the High Court and magistrates, and the representative of the Public Service Commission should be paid eighty thousand shillings as sitting allowances when they meet as a Commission, he is accused of ill will. All these civil servants earn millions every year in remuneration and other allowances. When asked, they claim that their service on the Commission is for the public good. Their avarice does not resonate with their stated good intentions. But what is surprising is that the Chief Justice has done little of note to reverse the trend of senior civil servants lining their pockets while "serving the people."

This nation continues to suffer its leaders, whether they are politicians, civil servants or judges. A nation that finds it impossible to pay teachers, doctors, nurses or policemen finds newer and better reasons to line the pockets of public servants who do not need that extra eighty thousand at all. In light of their zealous fidelity to the provisions of the Official Secrets Act, they will continue to speak loftily of the dream that is Kenya and their speeches will continue to fall on deaf ears, just as seed sown on rocky ground will not grow.

We need to learn, again, how to think

I don't think the parliamentarians of the National Assembly will heed the call and #RejectFinanceBill2024. They will tinker. They will v...