Monday, February 29, 2016

Mass murder is not a solution

Criminal suspects in Kenya, if you go by the irritated comments about bail and bond policy by the judiciary, do not deserve due process, especially if they are accused of committing economic crimes or having a hand in the corruption that is roiling the national Executive at present. If the loudest voices in the Twittersphere and blogosphere had their way, Kenya would recreate the mass executions committed by the Jerry Rawlings military junta in Ghana in 1981.

As Ghana eventually discovered, mass murder will not eradicate a culture of corruption. For that to happen, the social and political costs of corrupt acts and economic criminality must be more than one should bear. Society must be prepared to impose the penalty, even against favoured holy cows. That is not where Kenya is today. Not by a long shot.

There isn't a Kenyan hustling two or three jobs who won't drive like a bat out of hell, ready and willing to offer a bribe to the traffic police to avoid the inconvenience of a court appearance. The penalties for minor traffic offences were enhanced in 2012; the reasoning behind it was that the harsher the potential penalty, the safer the use of the roads. That reasoning simply refused to acknowledge that the most important factor in decision-making on the roads is how much one is willing to part with as a bribe if stopped by the police. For most motorists, this is a consideration that even affects he household budget. For a minority, bribery considerations are far from their minds: they are the nabobs of the city, immune to the rule of law.

If the barrel of the AK-47 were to be turned against the corrupt, it would wipe out the one-percent! That is not a scenario that even the most optimistic anticorruption warrior will contemplate and retain their sanity. The wabenzi, as some genge wit summed them up, will never be troubled by the forces of law and order, will respond to prosecutorial summonses with a shrug and a writ, and will, if the Chief Justice and President of the Supreme Court is to be believed, buy the judge should the public prosecutor prove a little too zealous in his public service or should the public outcry be loud enough to require a token slap on the wrist.

Corruption pervades all strata of society in Kenya, affects everyone even if to varying degrees. Corruption is an acceptable way to conduct ourselves and our affairs. We approve of it. We encourage it. We are not ashamed by it. We ape the lobbyist slathering a US congressman with baby oil in the Bahamas and the British lord licking an Emirati sheikh's arsehole for that all-important tender for military hardware. After all, we whisper to ourselves, if the mzungu can swindle his people of their hard-earned taxes, it must be okay to do so by us too, right? We may not have been completely ignorant of the basic elements of corruption or economic crimes, but we perfected them under the tutelage of the great powers and that is why it is such a hoot for Kenyans espousing traditional British cultural markers or adopting faux Manhattan accents to stand in the agora and declaim with passion and authority about how low we have sunk.

Low? Don't make me laugh. The ones making the rules about corruption and economic crimes are laughing their arses off because they will never be nailed for doing what we do, only with a veneer of finesse. If we are to defeat corruption, we must admit that the models that we want base our governance on are deeply flawed. We must start with a clean slate. What do we want for ourselves? How can we attain those things? How much will those things cost? Are we prepared to pay for them? Simple questions with devilishly difficult answers. Those answers will not be found in Washington DC, London, Paris, Bonn or Geneva. They never will.  Nor will mass murder.

You may need a shower afterwards

My friend Ashford will never, ever take a paid position with the Government of Kenya. He will consult for it, offering counsel wherever t is sought, but Ashford has vowed never to become a public servant. He believe that it will end badly for him if he does. Ashford will be the first to admit that he is not perfect, but even he doesn't think that he has the capacity to sink to the depths that public servants have sunk to in the past decade or so. As a public servant, I cannot say that Ashord is wrong; I can only lament how true his sentiments and fears are.

I read keenly what Sunny Bindra writes. When he assesses the business management environment, he offers us insights into the mind and behaviour of good and bad leaders. His advice is often invaluable and quite frequently pin-prickingly annoying when applied to the public service. He has attempted to deconstruct for us the traits that make a good leader and the characteristics of a bad boss. If Mr Bindra and Ashford were to sit down together, they would be surprised by how much they agreed on.

For instance, they would agree that a good leader is unafraid to make hard decisions. Mr Bindra could perchance point to the case of Unilever East Africa's chocolate-flavoured Blue Band spread. The concept behind it was solid. The science, as much as the laboratory could recreate real-world circumstances was spot on. The business case for it was persuasive. All it would take was a minor tweak to the manufacturing plant and Unilever would laugh all the way to the bank. The roll-out for the product was preceded by a publicity campaign that must have cost tens of millions of shillings. Yet when the product finally hit the shelves, it was an unmitigated disaster.

Fr whatever reason, the product could sit on the shelves without going bad. Customers hated it. Unilever yanked it off the shelves within a week and drew a line on the sorry experience. Ashford and Mr Bindra would probably agree with the swift action of Unilever's bosses; had it been the Government of Kenya, the fist month would have been spent looking for someone to blame for the fiasco, while the product refused to sell, pissed off more customers, alienated customers and cost the company hundreds of millions. It is almost certain that it wouldn't get pulled off the shelf until a year later. By the time the whole episode is over, no lessons wold have been learned, and there would be political casualties all over the place.

What disgusted Ashford wasn't merely the mismanagement of public affairs but the corruption that thrives because of that mismanagement. Every time we hear of so-and-so's credentials, the clock starts counting down before those credentials are put to the test when serious questions of integrity are raised. No one has escaped the accusations; few have been able to beat them back. That is distressing and it limits the number of professionals who would agree to work for or with the Government. One other thing I believe Ashford and Mr Bindra would have in common is that neither would want their stellar reputations sullied by supping, even with very long spoons, from a pot of broth associated by the Government. According to Ashford, one needs a shower afterwards when shaking hands and rubbing shoulders with the movers and shakers in the corridors of power. It is that disgusting.

Friday, February 26, 2016

Saving our national soul

Despite the increasingly shrill and ridiculous calls for public servants to "carry their own cross", there is one thing that we can be certain of: whoever was caught fiddling with the public purse will not spend more than a few days in "remand" answering soft-ball questions from the "sleuths" of the EACC, the DCI and the ODPP. Minions and minor functionaries will ultimately be found responsible and kingpins and masterminds will get off scot-free.

Now that we know that, understand it and appreciate its implications, we might as well consider the calls for so-and-so to "carry their own cross" being made by party bosses and the like. These are not the most honest people in the world and their sanctimonious outrage is as hypocritical as it is transparent. In the light of the spectacular fiddles they engage in behind closed doors when their parties "nominate" candidates to stand in elections, these should be the last men and women to declare with straight faces, Carry your own cross. But Kenyan politicians and political hacks are not endowed with a great sense of irony, so perhaps they need to be reminded that the corruption that pervades the DNA of the political class is fostered by the fecklessness of party apparatchiks.

Do not look to the judicial or clerical classes to offer much in the way of durable solutions, as a friend of mine in refugee management would aptly describe it. In recent years, and I can't believe how true this sentence is, increasing numbers of both judicial officers and men of the cloth have been accused and prosecuted for attempted murder! And this while innumerable numbers have been accused of either soliciting or accepting bribes and defrauding members of the public. Would you place your anti-corruption faith in institutions that have been infiltrated by murderers and con men? I think not.

The last bastion of the honest is the home, but going by the salaciousness of morning FM radio, this now seems like a citadel about to fall. Men and women, many of them married, are increasingly lying to their spouses or partners about fundamental things to do with their relationships, whether it is sex, money or property. There are more cheaters in marriages today than there are mipango ya kando to go around! Young men and women are being socialised to accept that lying and cheating are the fundamental building blocks of  happy marriage. If you expect them to resist the charms offered by corrupt acts, you have greater faith in the innocence of the youth than I do.

School, you say? Come, come now my friend. You have to think it through. Is tribalism being used as a cudgel to deny qualified students places in schools? Yes it is. Are schools' boards of governors uncovering fiscal malfeasance on a staggering scale on a daily basis? Yes they are. Are students reacting to the corruption of their schools' values through violence and destruction of property? Yes they are. No, my friends, learning institutions have also been infiltrated by the corrupt and the mendacious.

That leaves the self, doesn't it? What are your values? What lines will you never cross? Will you allow the corruption of your family, your school, your church, your place of work and your government to corrupt your soul? What are you prepared to do about it? In that answer, perhaps, we may find an answer to save the soul of our nation.

Seize it all without pity

Even with my lackadaisical approach to the small issue of the safety of my immortal soul, I pray to Almighty God that He should never, ever hand me the poisoned chalice that is a Cabinet positionor a "senior" position in the Government. These are offices that seem to attract sharks of unremitting savagery, where one false move could mean the end of a career or a decade playing hide-and-seek with the forces of law and order in and out of court. David Mwiraria certainly did not come to a good end after his stint as Mwai Kibaki's Finance Minister ended in ignominy.

President Uhuru Kenyatta's Cabinet has haemorrhaged Cabinet Secretaries in the last eighteen months. This is unprecedented. His government has haemorrhaged Principal Secretaries and senior civil servants at an even faster clip. And all because no one really believe him when he reiterates his commitment to the war on corruption.

In China, those accused of corruption rarely ever get away with it. Now theirs is a tightly controlled political environment, in which everything appears to be scripted, but when you have millions rising through the ranks of the Communist Party, a few truly rotten apples are bound to rise to the top. When the party finally says "Enough is enough" the accused frequently faces a firing squad, his family is disgraced and his ill-gotten wealth is confiscated. Sometimes they confiscate everything, ill-gotten and legitimate, as a lesson to all.

In Kenya, as Mr Mwiraria demonstrates every single day, we will not go to any length to nail an accused persons hide to the wall, not if they they are the favoured pets of the President and his "people." Look at the saga of James Gichuru and Chris Okemo, whose half-a-billion shillings has just been confiscated by a royal court on the island of Jersey. Since unsavoury revelations were made of their "business" dealings were made in 2011, they have successfully forestalled any attempt to hold them to account. They remain free. They continue to enjoy the benefit of their wealth, ill-gotten and legitimate.

More often than not, unlike in China where senior party leaders get a bullet to the head for corruption, in Kenya the corrupt high and mighty swan around like princes of the city, unafraid of the President, the prosecutors or the courts, giving us The Finger for being so gullible and docile. If you know of any ex-waziri in Kenya who has ever lost his wealth or liberty because of his corrupt acts, you might just be living in a parallel universe.

Kenyans want the corrupt to be punished. Some have suggested that the appropriate punishment should be the Kenyan equivalent of what Jerry Rawlings second military junta did in 1981: line the former ministers up in the national stadium, read out their crimes in front of a crowd of thousands, and execute them by firing squad as enemies of the people. We need not go that far but we must punish the waziris. Not slaps on the wrists, no. Proper punishment. The only thing they love is their ill-gotten wealth. Seize it all! Deprive them of everything except their pensions. Take away their cars, houses, planes, yachts, commercial buildings, expensive watches, paintings, flat-screen TVs, surround sound home theatre systems...everything. Leave them with the cloths on their backs and their pensions and watch every other thief adjust his behaviourswiftly.

Let them hire all the lawyers in the world if they want, but do not give back a cent other than their pension. Why am I going on about the pension? Because we want them to live long, so that the people can see them broken and poverty-stricken. The people must see them broken and poor. The people must laugh at them. The people must pity them. The people must be fully aware of the cost of corruption. We must be pitiless. It is the only way that we can move forward as a nation. It is the only way the President can redeem himself in our eyes.

Thursday, February 25, 2016

What has your tribe done for you?

Do you know what your tribe has done for you? I mean other than a culture, an identity, a language, food, sense of style, traditions and music, what has your tribe done for you lately? Don't knock tribe: I may be a Kenyan, but in my heart of hearts—the two of them I have discovered anyway—I will always be Kamba, Luo, Indian and Lawyer—and yes, Lawyer is a tribe, so get off my back about it. How does it work? Pretty easily. My tribe gives me things—identities, if you must—and it does things for me, but beyond that it is not responsible for what I do.

I saw a remarkable thread on Twitter about the cost of corruption. What made it remarkable was the assumption that just because political and other kinds of leaders exploit all the things that make a tribal identity a vital part of our lives for corrupt ends, it is okay to dismiss tribal identities are useless in the twenty-first century. How else do we socialise our children if not in the values and mores of their ancestors as interpreted by their tribes—respect, truth, loyalty, trust, love? That part of my heritage that is both Kamba and Indian that loves saffron, a sartorial sensibility that ignores the dull Milanese, London and New York palates, and enjoys a conspiratorial approach to folk tales is just as important to me as the Luo and Lawyer heritage that prizes a pedantic approach to English, Swahili and Latin and embraces the sharp uniform of the legal eagle on the make: dark suit, white shirt, dark tie, black super-polished brogues.

Someone invented "negative ethnicity" after "tribalism" failed to gain purchase and it became fashionable to blame "negative ethnicity" for the problems caused by our leaders. Our leaders are not responsible for the problems they cause. We are not responsible for blindly following them down dark alleys. Blame it all on "negative ethnicity" and appoint commissions to investigate it, enact statutes to ban it, and empower prosecutors to jail those who engage in it.

Do you really think that when they remind me of how the "d" in "duka" somehow always acquires a Kamban "n" before it that I find it objectionable?  Do you really think I find it hateful when they speak with a mixture of awe and fear about the famed witchdoctors of my native Kitui? I am proud of the reputation that my lake-side roots have of pride in and haughty arrogance of achievement, especially if that achievement comes via a hard-to-crack profession like law, medicine, architecture or engineering. Say what you will of the Indian (Asian) reputation for thrift and asset management, but tell me again, Do you love living in poverty? No, my friends. Our tribal identities are never, can never be negative. They are who we are.

What I resent mightily is the exploitation of my tribal identity for the benefit of an elite. When a leader lazily calls on my tribal loyalties and fealties, not for the benefit of my fellow tribal sisters and brothers but for his own alone, I am offended. I have absolutely no reason to pay him any mind; I have been to a school or two so I am able to resist his base calls on my identities. But more often than not, there is a large cohort of my fellowman that is barely lettered, incapable of seeing behind the sophisticated manipulation of their identities, for the benefit of one or two. It is in these abject betrayals that the illogical question is asked, What has your tribe done for you? forgetting the awful truth, My tribe has done a lot for me. My tribe is not guilty of anything. One of my tribesmen has attempted to selfishly exploit it for his own personal gain and if I have anything to do with it, I will see him ostracised and shunned for all eternity and his ways rejected by the right-thinking among us.

Mr Odinga, citizen investigative journalist

Raila Odinga is making it very uncomfortable to be in high office these days. It is now proven that if Raila Odinga says it is raining, doubting him will only lead to soaked clothes. Mr Odinga's rain may be a day or three or a month late, but it will rain. He didn't have a shred of proof that the former Devolution and Planning Cabinet Secretary was a crook, yet she is out of a job and fighting to clear her name from allegations of perfidy and conspiracy made by a woman who appears to have been very close to her. It isn't just that Mr Odinga has somehow managed to turn the spotlight on the former minister that is notable, but the fact that even her erstwhile fiercest defenders have developed severe cases of political and administrative amnesia.

Just so we know that scores are being kept, Mr Odinga raised serious doubts about the whole Eurobond transaction. Mr Rotich, the National Treasury nawab told him, more or less, to get stuffed. Mr Rotich should examine carefully the fate of former waziris when Mr Odinga decides to address their weaknesses and shortcomings. Those former waziris always come to a bad end. Always.

Mr Odinga is the reason why some, like owaahh.com, have been able to fearlessly dig into some of our knottiest controversies to expose the dark underbelly of our public service, its seniormost ranks and the deep secrets that it hides for the comfort of a few. The affidavit-afflicted former waziri was one of the most promising members of the Cabinet with a portfolio that spanned well-funded sectors and influence that rivalled that of the National Treasury and Interior waziris, and the Deputy President himself. No more. Raila Odinga thought that there was something fishy in the way that the waziri attempted to paint him in a very bad light, and her goose was well and truly cooked.

Because of Mr Odinga there are many Kenyans unafraid of asking hard questions of their nawabs. Mr Odinga has one more to reform the government under the Constitution than any other politician, and that counts Mwai Kibaki who finally bowed to the inevitable constitutional referendum of 2010 and Baba Moi who folded his tent in the aftermath of the 2002 general election. Because of the path that Mr Odinga has blazed, whether or not he did it for selfish reasons, public officers live with the fear that their quickfingered natures will not remain secret for long, the only question being, How much will Kenyans find out and how painful will the penalties be?

Of course many Kenyans can now take advantage of the anonymity conferred by the internet and tor-like networks, encryption and decryption keys, pass-word and biometric-protected communications devices and systems, and faster-than-a-bushfire array of social media tools that did not exist when David Munyakei blew the whistle on the then biggest scam in Kenya's history, Goldenberg. Those hit hard by unsavoury revelations have attempted to hit back, targetting the overt purveyors of bilge like Cyprian Nyakundi and Robert Alai, but the sub rosa operators like Owaahh remain only known to their intimates and confidants.

Kenyans' right to know about their government and its secrets has benefitted greatly from the anonymity offered online, and despite the attempts to control the online world, will continue to do so for a long time to come. Mr Odinga can take heart that while he may know little about social media propaganda, he has inspired the hardest hitting exposés that have laid bare the darkness at the hear of the government he once served. One day, when the careers of well-connected pilferers have led them to long prison sentences, Kenyans will have to acknowledge Mr Odinga's place in the creation of the citizen investigative journalism era.

Monday, February 22, 2016

Kinyua is a genius

Uneasy lies the head that wears the crown. Or words to that effect. Being Uhuru Kenyatta in 2016, when judges and favoured ex-Cabinet Secretaries are getting the rogue affidavit treatment, can't be easy. It might even be a little harrowing. It is difficult because of idiotic buzz-phrases: Tyranny of Numbers, Ethnic Balancing, War on Corruption, et cetera. It is, however, the Affidavit Age, and with it comes certain difficult moments because of an overzealously strict interpretation of the Constitution, especially on the mandates of constitutional Commissions.

Being Uhuru Kenyatta's Chief of Staff is much, much worse. Joseph Kinyua, the eponymous insider, is not having the time of his life as Head of the Public Service, something his predecessors used to enjoy very much. Mr Kinyua is publicity shy and if you've ever had the good fortune of meeting him in public, it is almost likely you would have had to do a double take before recognising that indeed it is the Mr Kinyua that you had encountered. Soft-spoken Mr Kinyua may be, or have a reputation for being, but it is swiftly becoming a truism that he has a spine made of titanium. His latest letter to the Judicial Service Commission should only reinforce that view.

The Judicial Service Commission, bullied into acting on the contents of an incoherent affidavit, have recommended that the President should appoint a tribunal to investigate the conduct of a judge of the Supreme Court. The judge, it is alleged, together with unknown members of the Supreme Court, accepted a $2 million bribe to rule in favour of a respondent in an appeal revolving around an election petition. The judge, in a totally unrelated matter, had earlier sued the Judicial Service Commission to prevent the Commission from retiring him from the Supreme Court on account of his having attained the constitutionally set retirement age of seventy years. He wishes to retire at seventy four years, just as if he was a judge under the former constitutional order. His suit is currently being heard by the Court of Appeal.

Mr Kinyua, soft-spoken and all, has been asked to slow things down. At least that is what I think he's been asked to do, because his letter to the JSC is reasonable in its request. The judge, explains Mr Kinyua, had been retired by the JSC when he attained the age of seventy years. He sued the JSC in the High Court, which upheld the decision of the JSC. He appealed to the Court of Appeal. In Mr Kinyua's opinion, the judge is not a judge because the High Court says so and therefore, the President cannot appoint a tribunal to investigate the conduct of a person who is not a judge, unless the Court of Appeal says otherwise. In which case, if the Court of Appeal reverses the High Court, the President shall appoint the Tribunal after following the due process of the law, which may require another "investigation" (though that would raise the spectre of double jeopardy) or the reiteration of the earlier recommendation for the President to appoint a tribunal, et cetera.

A curious thing, though. If Mr Kinyua is right, the judge is not a judge, and has not been since the date that the High Court declared that the JSC could retire him on account of his having attained the constitutionally-set retirement age. Therefore, the JSC can't investigate his conduct or recommend to the President to appoint a tribunal to investigate him. Based only on the JSC's actions, the judge is either still in office and the JSC can investigate his conduct, or he is not in office and the JSC cannot investigate his conduct. If it comes to pass that the JSC can hold two mutually exclusive positions at the same time, I wonder whether anyone can blame the President or Mr Kinyua for doing the same exact thing on other controversial matters.

Update, 23/2/16
It turns out that the joke is on us. The President seems to have ignored his Chief of Staff's missive to the Chief Justice. Or maybe he just realised that he wasn't getting any constitutional love from Kenyans on Twitter. In any case, he has suspended the judge and appointed a tribunal headed by the former chairperson of the Judges' and Magistrates' Vetting Board to investigate the judge's conduct. (Just in case you forgot, in 2012 the judge was vetted and declared fit to serve by the Judges' and Magistrates' Vetting Board.)

Incredibly stupid and full of affidavits

We have come a long way in the war on corruption. From the Prevention of Corruption Act to the Anti-corruption and Economic Crimes Act, we have come a long way. The anti-corruption statutory landscape includes the Public Officer Ethics Act, the Leadership and Integrity Act, the Public Procurement and Asset Disposal Act, the Public Audit Act, the Anti-money Laundering and Proceeds of Crime Act and the Prevention of Organised Crimes Act. There are numerous other anti-corruption statutes. On the statutory landscape alone, we have come a very long way.

And yet. Since the heydays of Goldenberg things have gotten out of hand. It is Goldenberg that led to the Anti-corruption and Economic Crimes Act and the Public Officer Ethics Act, which in turn led to Chapter Ten of the Constitution and which in turn led to the Leadership and Integrity Act. But no matter how elaborate the post-Goldenberg statutory web is, it has not prevented other Goldenberg-like swindles: Anglo-Leasing, Triton, the Maize Scandal, the Kazi Kwa Vijana Scandal and, lately, the sh. 791m NYS-linked swindle. Between Goldenberg and NYS, the scams have gotten grander, the scamsters have gotten bolder, the conviction rate has remained woeful, and the public has lost faith.

Goldenberg shocked the nation by its brazenness, but it is NYS that will redefine grand corruption and reshape the government and the people's relationship with the government. By the time the auditors are done, it is not just the missing 791 million that will be in the scales; the reputations of dozens of prominent Kenyans will be sullied forever and no matter how many churches they start (like the Goldenberg architect), they will forever live outside the pale, and the antics of their children who seem to have had their consciences lobotomised will make everything worse in this age of social media and twenty-four hour news cycles.

NYS is an old school swindle, a throwback to the colonial and KANU way of swindling the public. The arrogance of it all is very colonial and KANU-like. It lacks, however, pizzazz. You don't have a suave mzungu in the wings with a glib rejoinder when the sleuths come calling or a paternalistic Baba wa Taifa with his well-thumbed King James attending Sunday Service, ready with a pithy homily about peace, love and unity after the service. What you get are insiders and pawns, halfwits and witticisms, social media outrage and a plethora of affidavits and cease-and-desists, and that Old School staple: Deny! Deny! Deny! In the Information Age (or Digital Age, as the serikali keeps reminding us) going Old School was asinine, and denial was never going to hack it.

Between Goldenberg and NYS, the only way to keep secrets is to never, ever write them down. The only way to hide relationships, acquaintances, friendships is to never have any. The only way to hide a swindle is never, ever to use computers. Ever. Only the naive still believe that you can hide anything anymore, even with "secret" cellphones and "clinical" contractual relationships. Sooner or later, someone gets the short end of the stick and they go running to their lawyer before they go running to the press with an affidavit in hand. Even hairdressers are getting in on the miffed-lawyer-press game. We have come a very long way, dear people. Where we go from here is anyones guess, but I think it is just going to get grander, more brazen, incredibly stupid and full of affidavits. And witticisms.

Dicks! I see dicks everywhere!

The United States, from which we have borrowed a great deal of our recent statutory political infrastructure, and the United Kingdom, from which we inherited much of our political traditions, are served by two main parties, representing the two main political ideologies in each: conservatism (Republican Party, the Tories) and liberalism (Democratic Party, Labour). Kenya, like many if not most African countries, doesn't really have ideological political divisions; it has tribal ones based on ethnic identities and ethnic animosities that have been responsible for a great deal since the liberation wave began in the 1950s.

The lack of ideological divisions in Kenya has encouraged some of the stupidest political antics in the world, and this includes the lunacies of the Bihar State Assembly, the paid-to-cry antics of the Filipino parliament, the chair-hurling passions resident in the Ukraine national assembly and the let-sleeping-dogs-lie somnambulence in neighbouring Uganda. I blame all the settlers who made the Happy Valley their home; those drug-addled, sex-crazed, murderous never-going-to-be-landed-gentry are the reason why political competition in Kenya, eventually, has to have a politician mentioning someone's johnson—and whether it has undergone the cut or not. After all, if the mzungu settler who brought us organised serikali obsessed about these things, then it must be okay, right?

In 2011 a leading presidential candidate, in what I thought was an orchestrated moment of pique, argued that another candidate was unfit to lead because of a cultural shibboleth that that other candidate's tribe did not ordinarily subscribe to. That candidate was succeeded in his constituency by another candidate who loudly and vehemently repeated the same slur. This morning a leading tabloid has, on its front page, emblazoned a similar slur by one politician against another.

In the absence of a coherent ideology, our politics will, for the immediate future, be about dicks. No, that is not an euphemism. We face serious challenges to our fundamental rights and freedoms, both from the State and non-state actors. These challenges will not addressed simply some people still live in a world where "the cut" is a true measure of leadership qualities. In the absence of an ideology, it is easy to jump from one political vehicle—bus—to another: each is a caricature of the other. The only thing that seems to matter is that the bus gets one to the seat of power, not that it has the capacity to cohere its members to an idea of what their country could and should be.

The irony of a largely educated population held in thrall by talk of circumcision rather than political ideas is not lost on some. For the first time, more women in Kenya are graduating from law schools than men. I don't think they are interested in circumcision the way their leading politicians are, not when the anti-FGM campaign is in full swing. Overall, more women are graduating from universities than men, and maybe one day it will dawn on the overwhelmingly male political class that obsessing about other men's dicks is not the way to winning the educated and liberated woman's vote. Or resolving the economic challenges of the day, like runaway youth unemployment.

Friday, February 12, 2016

They don't want that

A linguist I know—she has a PhD in English Linguistics—once told me that Kenya has more than ninety distinct languages—which is the reason she does not subscribe to the idiocy of reducing Kenya's nationhood to forty two tribes. She must look at the recent scandals about "representation" in the public service. In Kenya it is presumed that that the forty two tribes, designated so because of linguistic identification, represent the only ethnic communities in Kenya worth recognising.

The imperial project of the British colonial government in Kenya is alive and well, fifty three years after Uhuru. I have no idea how many tribes there are in Tanzania but, unless you are the uncharitable kind, you will not argue that Tanzania is a collection of tribes; you will recognise it for the nation that it is today. Tanzania has its problems for sure—the raging fires in Zanzibar will not be put out any time soon, and despite their progressive politics, Tanzanian politicians are the fuel in the anti-albino fire in Tanzania—but it isn't riven through with self-doubt about how to affirmatively assist marginalised communities the way Kenya is.

One of the strangest things is the self-righteous stone various public actors adopt when they talk about the "face of Kenya" in public appointments. Depending on where they stand, you might be forgiven for thinking that "representation" is the only problem facing the public service and if only the forty two tribes were "well-represented in the public service"—whatever that means—Kenya will never ascend to the status of a nation.

One of the pernicious effects of British colonialism still felt today is the need for tribal competition among Kenya's ethnic communities that ignore the little inconvenient truth that were we to truly identify ourselves because of our ethnic identities, the total number of communities would far exceed the piddly forty two, and true representation would mean that public service jobs would take on the Herculean difficulty of classifying all Kenyans properly, something Prof Kobia and her Commission will never achieve, not even if they had a decade and a billion dollars to do it.

This is not the tail end of the nineteenth century when Kenya was a massive hostile territory on the way to the source of the Nile. This is the twenty first century where one of the most difficult identities to wear without a tinge of melancholy is that of a poverty-stricken, opportunity-denied Kenyan. The poor have more in common with each other than they have with the wealthy of their tribe and that they don't know it makes their situation more tragic because they are frequently lied to that their poverty and lack of opportunity are because of some other tribe or tribal warlord. The people doing the lying control capital, media and access to opportunity, and their wield these assets like nuclear weapons.

Ever since section 2A of the former Constitution was repealed in 1990, Kenya has been fed a simple lie: you are poor because of tribe X; your land was stolen by tribe X; Kenya is in the shitter because of tribe X; that if your tribe ascended to political power, your life would improve immeasurably. Micheala Wrong, the author of  It's Our Turn To It, captured it aptly in the title to her book. They will never admit that the lives of the poor will improve if they have an equal chance of access to capital and opportunity, especially opportunities to education, because that would liberate the people from the self-serving interests of the elite. Equal opportunity should be a fundamental right, but it will never be seen in that light because it would fundamentally reform Kenya and, horror of horrors, turn us into a nation. They don't want that.

Bittersweet laughter

Watching the US politicians campaign for the nominations of their parties to stand for the office of the President of the United States has been spectacularly entertaining. The political press has consistently gotten it wrong about the duration of the campaign of The Donald, Donald J Trump, a reality TV star billionaire real-estate magnate from New York who has defied conventional wisdom, pissed on good taste, riled both the liberal intelligentsia and the Establishment Conservatives for his non-traditional campaign, and tell-it-as-it-is hardass-ness. 

Mr Trump has enjoyed making Jeb! Bush look like a weakling, Ben Carson as naive, Marco Rubio as a child and Ted Cruz as a hypocrite. On the Democratic Party side, the contrasts between Bernie "Feel the Bern" Sanders and the former Secretary of State Hilary Clinton, are animating the liberal mainstream media with pundits staking out their positions (and sides) with one or two upsets, like Te-Nehisi Coates saying he will vote for the Vermont senator and not, as expected of a Black Man in America, Hilary Clinton.

Looking at the buffoonish nature of the US presidential campaigns, one can't but help but feel smug about our own lot, except we are much, much worse. The US media isn't afraid of describing Mr Cruz as a "fundamentalist charlatan", Mr Trump as an "authoritarian white nationalist", Mr Rubio as a "Marcobot", or Mrs Clinton's campaign as "spinning out in glorious fashion". When they bandy about the phrases "Freedom of the press" and "the First Amendment", they really mean them and the Supreme Court has stood by them even to the point of absurdity as in the Citizens United case. In Kenya, unfortunately, thin-skinned politicians and judicial officers have wielded the power of the judiciary as a cudgel against bloggers and newspaper editors with reckless abandon in a bid to prevent unfavourable news coverage.

Worse still, political campaigns in Kenya are as opaque as they can get: there are no manifestos worth the paper they are printed on; there are no press-briefing in which candidates get to answer questions about their plans; we know very little about the source of campaign funds, but we have a very good idea nonetheless. The US campaigns may be cartoonish, but no one can accuse the candidates of hiding most things from the electorate. In Kenya, everything is a secret. Forever.

Mr Cruz and Mr Rubio have been running for the Republican nomination since February 2015. Everyone knew it. All that was unclear was when they would declare their intentions for all the world. In Kenya, the likes of Raila Odinga, Kalonzo Musyoka and Moses Wetangula never stopped living under the delusion that they could somehow stop Uhuru Kenyatta in 2017 and have been campaigning for the CORD nomination since 5th March 2013, a campaign that has remained a secret all along, without a manifesto or a roadmap, and with the candidates keeping secrets about even simple things like whether the sky is blue or not. Not that Uhuru Kenyatta and William Ruto and their armies of acolytes will give you a straight answer either.

Kenya's politics is a caricature of the cartoonish US one, and a grotesque distortion of the means of determining the people's will in matters of national importance. Once we elect our representatives, they more often than not become our enemies and they treat us as a threat, out to destroy their careers with our democratic demands. When their presidential campaigns begin in earnest, sadly, we will not be any more the wiser, not least like the US citizens we love to mock and lampoon.

Thursday, February 11, 2016

May Trump and Sanders prevail

If you thought that it was going to be a coronation, and there are Kenyans whose hearts will be broken because of it, it will not. Hilary Clinton will not be crowned this week as the nominee of the Democratic Party, and if she keeps getting it wrong, she will get her ass handed to her in South Carolina in the next ten days by an old, curmudgeonly Jew from Vermont who wants to launch a revolution in the United States. There are millions of young US citizens who are Feeling the Bern and who have upended the well-laid plans of the Clinton Machinery. And that is a very good thing.

There are one or two Kenyans who labour under the delusion that dynasties, political or royal—look at how they fawn at the British royal family—are a good thing, yet what Kenya has is a republican, democratic government, where dynasties went out with the felling of the Kanu hegemon in 2002. They have been celebrating the Clinton campaign as if it were a good thing for one family—just like the Bushes—to dominate the national politics of a nation such as the United States, control the national narrative frequently for personal gain, and exclude the alternative voices that instil caution in the process, such as that of Bernie Sanders, the Jewish democratic socialist who is making the Clinton coronation that much more uncertain.

Kenya was held hostage to the Moi narrative for twenty four years and there is a segment of the country's political and business classes that miss the Old Man, despite the fact that so much went so wrong for so long under him. They have done a good job of rehabilitating his reputation—with a massive dose of assistance from the leaden-footed among the neo-Kenyatta-philes in State House today. But no matter how much his reputation is sanitised, he is a very good example why for-life "appointments" for which no competition will be brooked are a bad idea. The Clintons and the Bushes are cautionary tales that Kenyans should learn from, and in-bred shenanigans of the British royals should help all right-thinking Kenyans disavow dynasties of all kinds.

Bernie Sanders and the hateful Donald Trump are important of only to remind the citizens of the "world's most powerful nation" that it is their overreliance on the Bushes and the Clintons that brought them to this sorry place. The political revolution that Barack Obama launched in 2007 will eventually sweep away the ancien regime that has refused to exit the political stage. It is only a matter of time before the British royals exit the stage and finally let the United Kingdom become a republic; the "decentralisation:" that has benefited Scotland and Wales will soon engulf the entire emerald isle. Whom will Kenyans enamoured of the royals look to for inspiration?

I hope that Trump takes the Republican nomination and Sanders takes the Democratic one, and that Sanders prevails over Trump in the general election. It will be the end of the Clinton and Bush dynasties in US national politics for at least a generation and that will have salutary effects around the globe.

Wednesday, February 10, 2016

Only full scale reforms will work

Kenya has a Judiciary composed of the Supreme Court, the Court of Appeal, the High Court, the Environment and Land Court, the Employment and Labour Court, subordinate (magistrates') courts and numerous tribunals. Kenya has a professional Bar, made up of members of the Law Society of Kenya, States Counsels in the Office of the Attorney-General and prosecutors in the Office of the Director of Public Prosecutions. Litigants can take advantage of the relevant provisions of over two thousand statutes and innumerable Regulations, Rules and guidelines to resolve their disputes in hallowed chambers of the Judiciary. Should they wish to employ alternative dispute resolution mechanisms such as mediation or arbitration, those facilities are available too. That is the infrastructure and system that we have.

So it comes as a surprise that there are those, including our President, who feel that litigation is inherently bad, especially when it interferes with their well-laid plans. Take the recent lament by the President about project delays because of litigation. It is unfortunate that the Head of Government, which Government includes the Judiciary, should object to litigation by unsuccessful bidders for public tenders where there is an allegation or suspicion that the tender was unlawfully or unprocedurally awarded.

Public tenders, whether big or small, have been notoriously problematic for over a decade. In the recent three years alone, the President's pet projects have been held up because of serious flaws in which public procurement was conducted. The most obvious, of course, is the proposal to distribute free laptop computers to all Standard One children in Kenya. Public funds have been set aside in each financial year for the programme, yet it remains unimplemented because of flaws in the tendering process, a situation that has prompted bidders to appeal every time the tender is awarded to yet another bidder. At stake are billions of shillings of public funds and it is in the President's best interests to allow the due process of law to be followed lest public funds be lost or, worse, stolen.

We are still in a transitional phase, as the troubles pin the Judiciary demonstrate, and it will still be a few years before the new systems established by the Constitution are fully operational and all their kinks worked out. If the President wishes for a speedier tendering process, he must direct his Attorney-General to advise him on the most effective procedure to be employed and the reforms required in the law to achieve that goal. It is not enough to lament that lawyers use delaying tactics to frustrate the tender process, threatening to blacklist those that are litigious; he must admit that part of the problems he is facing in public procurement are because of the inherent conflicts of interest to be found among senior members of his government and public service. Hasn't he had to fire some of his Cabinet Secretaries because of their meddling in tenders?

It is not the bidders' fault that his projects have been held up. Nor is it the lawyers' fault or the Judiciary's fault. It is a systemic flaw that he must correct, and that means a sober examination of the public procurement infrastructure, the conflicts of interest inherent in the system, and the integrity of all the players. Proposals of blacklists are all well and good, but they are solutions to symptoms not prescriptions for systemic reform. Either reform the system or stop complaining about it.

Monday, February 08, 2016

Can Waiguru win?

My friend, Njeri Thorne, will not forgive me if I don't say this: it was a just matter of time before the Ethics and Anti-Corruption Commission came to its senses and stopped hounding the former Devolution and Planning Cabinet Secretary, Ann Waiguru. The news that the EACC is focussing its attentions elsewhere comes in the wake of the Nairobi politics rumour mill that has it that Ms Waiguru has decided to replace Evans Kidero as the Governor of Nairobi. This is rather fitting.

Nairobi's first governor is an unusual man. Prior to his expression of interest in elective politics, he had a storied career in the private sector, having worked for a global pharmaceutical conglomerate, a national media behemoth and sugar miller. It wasn't until he took on the onerous task of turning around Mumias Sugar Company that Mr Kidero garnered the attentions of the movers and shakers of national politics and his interest in the Governor's seat was piqued. The rest, they say, is history, and what a woeful history it has been.

By the time Mr Kidero was being elected, Nairobians were well-versed with his technical qualifications, especially his much ballyhooed PhD. We were reminded over and over again that the reason Nairobi was in the shitter was because "councillors" were not properly educated nor were they interested in the technical aspects of governing Nairobi. Mr Kidero and his running mate, Mr Mueke, were the panacea for a moribund management team at City Hall. The Slap put paid to that cozy illusion. If Mr Kidero had not assaulted the Nairobi Woman Representative, Nairobians would never have come to appreciate just how out of his depth Mr Kidero was when it came to the management of the affairs of the city.

Now Ms Waiguru has decided to express an interest in the same position that has so damaged Mr Kidero's reputation as a kickass manager. She, too, comes to the game with stellar credentials, less a PhD (which she thinks it's time she completed). The Americans have a saying; fool me once, shame on you; fool me twice, shame on me. We've already had the disappointments of a supermanager with zero political skills and I don't think we want to repeat that experiment.

In Kenya there is a tendency to join politics at the wrong age, usually after one has turned forty and has some "executive" experience either in the public service or the private sector. Ms Waiguru is well-known in the public service, admired in the private sector and has a string of achievements to her name, notably IFMIS and the NYS transformation. She shouldn't put either on her list of achievements, unless she gets the same communications team that guaranteed Uhuru Kenyatta's election victory in 2013.

The IFMIS and the NYS are the reason why Ms Waiguru resigned from office late last year. We have been reminded many times that she was in charge of rolling it out when she worked at the Treasury. Now it turns out that it is a flawed system that was never tested and was used for the colossal 791 million shilling swindle when she was Cabinet Secretary, a sum intimately linked to the tenfold increase in the NYS operating budget to 25 billion shillings annually. If she's looking for a feather in her cap that won't raise hackles, she'd better tout the Huduma Centres that she successfully saw being rolled out throughout the country. They have turned out to be one reason why Kenyans are optimistic that grand graft can be stopped.

However, despite her moxie, technical chops, keen intellect, work ethic, kickass attitude and all-round can-do spirit, Nairobi is not for her. There is a reason why the County Assembly's members still sit on plastic seats in their chamber; they desperately need missiles to lob at each other when debate gets out of hand which is a common occurrence. But more crucially, Nairobi politics demands the kind of hardball, cutthroat, crass, by-the-balls politicking that Ferdinand Waititu, Mike Sonko and Rachel Shebesh revel in, and something that I am sure Ms Waiguru will not be able to match, especially now that Mr Kidero knows that in Nairobi, being a gentleman is an invitation to getting ones ass kicked. Ms Waiguru would have to adopt the tone and behaviour of a city councillor from the 1990s in order to become the Governor. Can she do it?

Is the KFCB useful?

Censorship does not work. Except in North Korea, maybe. What the Kenya Film Classification Board, which at one time was the Kenya Film Censor Board, attempted to do in 2014 regarding The Wolf of Wall Street, failed and failed on an epic scale. Of course the movie was a profanity-filled crass attempt at toilet humor, but there was no way Kenyans were going to watch it (save for that minority that watches absolutely everything) until the KFCB stepped it, declared that it wouldn't allow it to be screened on Kenyan cinemas, prohibited the fifty-bob DVD guys from selling it and generally promoted the crass bits of the movie.

Censorship failed in Stalin's Russia, in Mao's China, in Indira's India, in Suharto's Malaysia, in the Ayatollahs' Iran, and in Moi's Kenya. It will not work in the twenty first century because every attempt that has ever been made to limit what people can see, read, listen to or watch has failed. I am surprised that our digital government is obsessed with censorship in this day and Age - this is an Information Age.

Kenya seeks to be a developed country at some point in the next century. It will not achieve this goal if it stifles the free flow of ideas, even execrable ones like those found in the Wolf of Wall Street. To base its censorship on an ill-defined moral values' standard is to confirm that there are men and women in the government who simply have run out of fresh ideas and are instead building empires made up of rules and regulations that permit them to molest Kenyans almost will.

Look at the Wolf of Wall Street fiasco, for example. Immediately after Kenyans had wiped the tears from their eyes for laughing so hard, they found themselves an internet cafe with sufficient broadband bandwidth, created proxy servers or piggy-backed on the various Tor networks, downloaded the movie and cocked a snook at the KFCB. Kenya has one of the most advanced militaries in Africa, armed with some of the most sophisticated hardware in Africa, but it is governed by wingnuts who simply do not understand what the Information Age means and what we can gain from the free flow of information and knowledge. The KFCB is the epitome of deliberate ignorance in the ocean of information.

The KFCB lives under the false impression that pit is in the business of saving Kenyans from their moral failings and that it is responsible for saving the national Executive from public embarrassment. It is still living in the days of the Mwakenya Movement, when hundreds of Kenyans were brutally abused for publishing seditious material. The KFCB is an anachronism and we must rethink its usefulness.

Its latest power grab is truly bizarre. It is not the Communications Authority, so it cannot lawfully prevent any Kenyan from accessing content via the internet, dial-up telephone, satellite, telegram, telegraph, radio signal or TV broadcast signal. It can't even prevent Kenyans from receiving information by smoke signals! It is not the communications' regulator. It is responsible for regulating cinemas and theatres. That's it. Where it found the power to regulate internet content in the laws of Kenya remains a mystery only its chairman and CEO can explain. The KFCB's usefulness, I fear, is at an end.

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 ...