Monday, May 30, 2016

The right to be stupid

Put efforts where it matters...By the time you are asking for Cheryl Kitongas face to be concealed, you have lost the fight on women dignity. Stop the next Cheryl from being taken advantage of by a so called sponsor. Stop the next Cheryl from being a rich man’s play toy. Stop the next Cheryl Kitonga from a sponsor mentality. And telling them that is what the 20s are there for is not helping them either.Maggie Marrikah
The most unforgiving of humans, I believe, hate the thing that they fear becoming because they are weak. The kept woman, and more recently the kept man, remains a popular target for the self-declared protectors of our moral values. I have a feeling that Moha's Jicho Pevu, deep down, is a moralising crusader out to cleanse the public commons not just of odious politicians and political operatives but also of the women who are kept by them.

We must be wary when any man or woman arrogates unto themselves the task of determining what is and what is not morally upright, and what must be done to ensure that he body politic is purified of the immoral and the moral relativism that is the slippery slope to moral decadence.More often than not, it is founded on a Victorian-era application of sexual mores, that deny that even young women could have sexual agency un-tethered from what their fathers, brothers, elder sisters, religious or social thought-leaders determine to be the right kind of sexual behaviour.

It is not, however, enough to declare that "no one was injured;" after all, no one wants their child to be pointed at as the type that makes a living on their back or bent over while satisfying the proclivities of the ones with fat wallets. It is important, though, to remind ourselves that where especially moral and religious values have been declared to supersede individual agency, the result has more often than not been great sins against the individual.

Ms Marrikah writes from the United States. She would do well to acquaint herself with the justifications that the Moral Majority have relied on to persecute minorities, including racial and sexual minorities, in the name of upholding "family" and Judeao-Christian values. Segregation, even long after Brown v Board of Education of Topeka, remains the watchword of many Christian groups in the USA, and their poisonous interpretation of scripture, devoutly believed by hundreds of thousands, has led to violent crimes such as the brutal murder of 9 churchgoers, who happened to be Black, in Charleston, South Carolina.

It isn't just Christian fundamentalists who are a threat to the peace and safety of people; Islamic State has become the latest terror organisation to base its acts of great inhumanity on a fundamentalist, racist and erroneous reading of scripture, just as almost a century ago Roman Catholics and Protestants butchered one another in Northern Ireland, partly because of where each group went to church.

But back to sexual politics of the here and now. Women have always been made to feel ashamed for their choices, even seemingly wholesome ones, if these choices threatened the "stability" of the family unit. No pun intended, but women come second. Ms Marrikah is a proud perpetrator of this culture, and deserves to be called out for it. It may yet take a decade or so, but eventually it will dawn on the likes of Ms Marrikah that women are the equal of men. Men and women have different attributes and different capacities, but neither is superior to the other, no matter what St Paul says in his epistles to the Apostles, and because of this equality, whom they choose to sleep with or whom they allow to "sponsor" them is not a Scarlet Letter, but a reaffirmation of the right of both men and women to be equally stupid when it comes to sex.

Not much daylight

The Supreme Court of Kenya is a funny old thing, isn't it? It at once mythic and feckless. It is now caught in a web of intrigue and suspicion, with the odds of a resolution of its affairs being very, very long. It's president, the Chief Justice, is in the cross-hairs of a lawyer with an axe to grind, having variously claimed that the Chief Justice is a member of a junta that has maneuvered to defeat the ends of justice and that e has lied, time and again, about the real reason for his early retirement being that he is a year older than he claims.

One of its judges is being investigated by a tribunal for having received a bribe of two million US dollars. Three of its judges were reprimanded by the Judicial Service Commission for going on strike! But it is over the question of when a judge should retire from the judiciary that has brought to a moment of crisis: is it at the age of 70 years as set out in the Constitution or is it at the age of 74 years as it was set out in the former constitution? The question must be answered because it affects the Deputy Chief Justice, the Supreme Court's deputy president and the aforementioned judge being investigated by a tribunal.

The High Court and the Court of Appeal, in a rare moment of judicial agreement, both say that the proper age of retirement for a judge, whether they joined the judiciary before or after August 27, 2010, is 70 years. The Judicial Service Commission, of which the Chief Justice is its chairperson, has already said that judges who have attained the age of 70 years should retire. (One other judge of the supreme court is a member of the Judicial Service Commission.)

This crisis was precipitated by the arrogance of the entire Supreme Court and its spectacular lack of preparation, incredible degree of infighting and astounding blindness to political realities. The Chief Justice was never going to serve his full term and a succession plan should have been among the first orders of business for not only the Supreme Court but also the Judicial Service Commission, instead of the incredible lunacy of new limousines for judges and a palace for the Chief Justice. The moment the spigots of the Consolidated Fund were opened, the infighting got out of hand, and that eroded the last of the political goodwill the Supreme Court - indeed, the Judiciary - enjoyed, and the nitpicky way the Judiciary dealt with key questions about the separation of powers betrayed a political tone-deafness that turned both the Executive and Parliament against it.

Independence begins with independence of thought and on that front, the Judiciary and the Supreme Court are about as independent as pea is from its pod. What shocks to the core is the remarkable degree of sameness in how the Judiciary sees things, especially when it comes to public funds and the privileges enjoyed by its seniormost officials. Now that it emerges that even cut-rate politicians seem to have a hand in how the Judiciary behaves, I am not surprised by the charges levelled against the Judiciary. The only difference between the Judiciary and Parliament, is that the Judiciary isn't officially elected. In every other respect - greed, perfidy, caprice, arrogance, mendacity - there isn't much daylight between the two.

It is not a government Madaraka

What is troubling is the symbolism of an Opposition party holding a parallel rally on a national day. This is akin to the desecration of our pride as a nation; the desecration of our national values; the desecration of our heritage as a nation; the desecration of our hard-fought freedom and independence. As much as it might feel aggrieved on other matters of national importance, CORD's plan is ill-advised and serves to ratchet up the political temperatures for no reason.
First it was the National Security Council, the highest institution when it comes to the security of the nation, that accused the Coalition for Reforms and Democracy's leadership of treason for persisting beyond all political reason with their Teargas Mondays, a moniker slapped on the Monday demonstrations against the IEBC. Now the Standard media group is accusing the CORD leaders of desecrating our national values, heritage, freedom and independence, and that CORD should let things be and that Kenya should be more like the United States which celebrates its Fourth of July as a sacral day because we hold the USA "in high regard."

Kenya was not an imperial power when it gained independence from Great Britain; it was the victim of sixty years of colonial oppression, racialised government and a culture and tradition of obsequious deference to the government without question. The Constitution of Kenya that was ratified in 2010 is a repudiation of all that and more. It declares unabashedly, and longwindedly sometimes, that "We, the people" are sovereign. 

We do not answer to another sovereign, not the Governemnt of Kenya, not the President and not your precious Madaraka Day, and in our sovereignty, we decide when and where we will remind our Government of its obligations to us, not the other way round. On a public holiday, such the one two days hence, we have the perfect opportunity to remind the Government and the ruling alliance that we, not they, are supreme. No, that is not a treasonous statement; it is Constitutionally factual and true.

One of the most important aspects of Madaraka Day that even the Standard seems to have forgotten is that it took not just the application of violence by the Mau Mau, but also the resistance of hundreds of thousands of Kenyans who were held in concentration camps we still insist in calling "native reserves", in which great acts of inhumanity were perpetrated because free-born Kenyans refused to bend to the will of the colonial government that relied on an interpretation of the law that insisted on the subjugation of Kenyans akin to bondage or slavery. Kenya's first and second presidents attempted to perpetuate that system beyond all reason, but in 2010, "We, the People" finally nailed that coffin finally shut. If we want to celebrate our Madaraka by cavilling against the Government of Kenya, that is exactly what we will do, desecration or not. The Standard had better get on board with the new national order: the people come first!

And just so the Standard knows, Kenyans do not know enough of the United States to make an informed decision about holding it in high regard. The hagiography has been excellent. However, once Kenyans learn that the the Fourth of July celebrates the independence of white settlers only but perpetuates the enslavement of an entire people for a further seventy years, Kenyans might have pause to consider the regard with which they hold the USA. But once Kenyans are fully aware of the way the descendants of Black Africans are treated in the USA and how Black Africa is viewed by the white United States, that regard might turn to an emotion that is substantially apposite: unremitting hostility!

Pride goeth before the fall, IEBC

If you care to read, Article 248(2) in Chapter Fifteen of the Constitution, there are ten commissions and two independent offices. (The Kenya National Human Rights and Equality Commission, via three Acts of Parliament, is now made up of the Kenya National Commission on Human Rights, the National Gender and Equality Commission and the Commission on Administrative Justice.) Among the ten is the Independent Electoral and Boundaries Commission, whose commissioners have become the target of Raila Odinga and the Coalition for Reforms and Democracy, CORD. Mr Odinga and CORD want the commissioners to resign.

Joseph Stalin distrusted democracy, to say the least, but he understood its weaknesses. He is quoted as saying, "The people who cast the vote don't decide an election, the people who count the votes do." Mr Odinga appreciates the truth in this quote; the IEBC has not covered itself in glory when it comes to the manner in which it has comported itself, especially in the period immediately before the 2013 general election and during the presidential election petition hearings. Its chairperson, especially, made wildly intemperate and highly partisan statements about Mr Odinga. The neutrality and objectivity of the commissioners is no longer a given.

If Mr Odinga and CORD want the commissioners to be removed from office, the procedure for doing so is set out in Article 251. Mr Odinga and CORD would have to petition the National Assembly with proof. Only the naive think that proof will be forthcoming. But, based on the public statements of Mr Odinga and his co-principals, CORD does not want the commissioners to be removed from office, they want them to resign their offices. It is a fine distinction, I submit, but a crucial one.

While the 2013 general election was accepted as "free and fair" by many independent election observers and endorsed as such by the Supreme Court, it was a mess. Despite the Supreme Court's thumbs up, even it agreed that there is something dubious about a voters' register that remains impermanent even on election day, with numbers being bandied about like confetti. The large scale failure of Electronic Voter Identification Devices puts into question the outlay of billions of shillings for the fancy gadgets. Finally, the tallying and reporting system raised more questions than answers, even with the Supreme Court's herculean efforts to refuse to consider the very question. In all these instances of utter failure, the commissioners are implicated. The least they could have done once the elections dust had settled, was resign.

Kenyan nabobs and never resign. Not when it is in their interest to do so. Not when it is in the interests of the country to do so. They hold on, white knuckles and all, till their grubby little fingers are pried loose from the levers of power. The commissioners of the IEBC would rather the world burned down around their ears than resign. They, in the parlance of former minister Amos Kimunya, will resign over their dead bodies. They are being encouraged in their obduracy by charlatans and snakeoil salesmen in mould of Beelzebub himself, unafraid to stand and be counted as among the minority that lives in stupendous ignorance of their cant and avaricious prideful greed.

The values and principles of national governance enshrined in Article 10 bind not just Raila Odinga and the lunatic fringe of his coalition, but the commissioners of the IEBC as well. The commissioners are foolish to ignore the calls for their resignation simply because the calls come from, in the malicious words of their chairperson, a "serial loser." If introspection has failed to persuade them that they botched the 2013 general election, and the blood spilled by the police in their name has not pricked their consciences, there is nothing to do but hope that when their fall comes, for it surely will as night follows days, that it is a mighty one. If they doubt that they will fall, let them stare at the shambles of Amos Kimunya's political career and take note.
The people who cast the votes don't decide an election, the people who count the votes do.
Read more at:
The people who cast the votes don't decide an election, the people who count the votes do.
Read more at:
The people who cast the votes don't decide an election, the people who count the votes do.
Read more at:

Friday, May 27, 2016

Brutalisation is the goal.

Does anyone know what the Force Standing Orders of the Kenya Prisons Service state when wardens are pursuing an escaped prisoner? What are the rules of engagement when the prisoner flees through a civilian institution, such as a girls' secondary school? When are prison wardens permitted to use deadly force, such as discharging their firearms at the fleeing prisoner? Dos it matter where the prisoner is relative to the warden? If what we are seeing about an alleged shooting in Migori is true, then I would posit that, (a) there are no rules of engagement, (b) that if there are rules of engagement, they permit shooting at any time, and (c) it doesn't seem to mind where a shooting takes place so long as a fleeing prisoner is either apprehended or killed.

Kenya's law enforcement and prisons' administration mirrors the United States' to a disturbing degree: law enforcement officers and prisons warders are armed to the teeth more often than not. They not armed with side-arms, either; when they are armed, it is always with automatic assault rifles like AK-47s and G3s, which are nothing as they seem in the movies but menacing and threatening all at once. Seeing armed police or prisons officers going about their work is to watch an armed force, more or less, occupy your free and not-so-free spaces with their malevolence and menace.

Perhaps their training irons things out, but I believe that an armed man is likely to resort to the use of his arms at the slightest provocation instead of finding and employing an alternative non-violent method. It seems to matter not whether the arms in question are firearms or rungus; if a law enforcement officer is armed, he will use his weapon should he perceive a threat rather than find an alternative method to address the threat. Not all threats are meant to be met with the force of arms.

Unless we subscribe to the patently racist colonial characterisations of Kenyans as inherently violent and inherently violent towards members of the disciplined services, there is no rationale to explain why every member of the disciplined forces should be armed to the teeth as if they were awaiting an armed assault by a foreign army. Whenever you encounter police officers while on patrol during the day, if they are armed you are likely to experience a moment of anxiety because few of us trust that the police will treat you with respect or dignity.

It was a mistake to place police (and later on, the Prisons Department, the KWS and the KFS) under the national security institutions of Chapter Fourteen of the Constitution. The national-security instincts are orientated towards the use of overwhelming force to neutralise threats against the state, such as the National Security Council has proposed against Raila Odinga's ill-advised jihad against the IEBC. It is why prisons wardens don't think twice about firing recklessly at fleeing prisoners. If schoolchildren are caught in the line of fire, that is a small price to pay to preserve the fear of the State that national security institutions seek to instill in the people.

Our prisons system is designed to brutalise, just as policing is and the other national security institutions are. It is why all prisons are overcrowded and spectacularly unsanitary. It is why prison wardens are remunerated poorly and housed in even more abject conditions than you could imagine. The entire system is not designed for the rehabilitation of prisoners; it is designed for the brutalisation of the offender and his jailer. The only logical outcome of such a system is the death by gunfire of innocent bystanders.

Whoever wins, we lose, Mr Gathara

In the run up to next year’s scheduled general election, weekly opposition protests and the subsequent brutal crackdown, have deeply polarized the country and left at least three people dead and many others, including police officers, wounded. - Patrick Gathara, Why This Is Not An IPPG Moment
With customary hyperbole, Mr Gathara declares that Kenya is "deeply polarised." Polarisation (according to the online Cambridge English Dictionary, "to cause something, especially something that contains different people or opinions, to divide into two completely opposing groups") implies that Kenya is divided, right down the middle, between those who support the Government on the IEBC question and those who support the Minority Party. Like I said, customary hyperbole.

Based on the most common, and erroneous, assessments, there are forty two "ethnic communities" in Kenya. (I wonder if these forty two groups include the "mixed" offspring of an ever-expanding state of "inter-ethnic" marriages and liaisons or the Afro-Europeans, the Afro-Asians, etc.) So based on Mr Gathara's hyperbole, the Government (and the ruling alliance that forms it) are supported by twenty one of those ethnic groups and the Minority Party has the support of the other twenty-one. If that sounds absurd, it is because it is. And the absurdity could be extended to the political parties represented in parliament; all the registered political parties in Kenya; the various civil society and professional associations that play an active role in the politics of Kenya; and so on and so forth.

If Kenyans were polarised, as Mr Gathara posits, they would not wait patiently for the coming of each Monday in order to pour onto the streets fulminating for or against the IEBC; they would never leave the streets at all. No. Mr Gathara, Kenya is not polarised and it behooves you and your colleagues to call it the situation what it really is: a family squabble.

The press has managed to create the impression, especially among the consumers of their fare, that Kenya is divided along political lines, the pro-Government/ruling alliance versus the Minority Party/CORD coalition, an idea that refuses to acknowledge an important fact: few adult Kenyans are members of political parties that form the ruling alliance or the opposition coalition. In 2013, about twelve million voters cast their vote in the general election. Even under the most generous assessments of party membership lists provided by the Registrar of Political Parties, there is no way that registered members of parties will equal the twelve million that voted in 2013. (More importantly, 12 million Kenyans, save for some fuzzy maths, do not represent half the people of Kenya; at most, they represent about one-third, who couldn't polarise the country if they wanted to.)

Mr Odinga's CORD commands a sizeable following, but, to paraphrase the odious Mutahi Ngunyi, the numbers are tyrannised by the numbers of the Jubilee alliance. Mr Odinga cannot prevail in Parliament and unless he can marshall a persuasive legal argument, he cannot prevail in the courts of law. He is left with the only arena that has served him well: the streets. He has exploited the disaffection among a core of disaffected Kenyans - unemployed youth, mainly - and used them as canon fodder in his campaign against what he perceives as a compromised IEBC so far without luck. The disaffected are mostly on their own; white-collar and blue-collar Kenyans with steady employment will not be joining Mr Odinga's rabble when they have bills to pay. That is the second ground against the polarisation argument.

Words are important, if only to tell us what is and what isn't true. From the IEBC commentary, one could be forgiven for believing that the IEBC is either incorrigibly corrupt or it isn't; that Mr Odinga is sacrificing himself for the sake of a far election or cynically exploiting unemployed young people without pity for his own selfish ends. No one sees fit to remind Kenyans that Mr Odinga is not a paragon of virtue and his family's single-minded focus on the presidency has been utterly poisonous for inter-ethnic dialogue in Kenya. Kenyans too, need to be reminded that key members of the IEBC have been adversely named in a corruption conviction in the United Kingdom; their integrity is no longer assured. Finally, it is not a battle of ideologies between Mr Odinga and President Kenyatta (hence the polarisation hyperbole) but one of huge egos and wits. The "people" are merely the fig-leaf for what is a political quarrel among the sons of the founders of the First Republic. Whoever wins, as one Alien versus Predator poster had it, we lose.

Reforms? Don't be so naive.

If you are surprised that a Kenyan policeman has, over a relatively brief period of four years, has had financial transactions totalling one hundred million shillings, you are clearly living in some utopia where there is a robust social safety net, policemen are not taken for parasites, and the rule of law is the North Star by which we guide our public affairs.

It is with this in mind that we must consider whether the exercise known as police vetting is worth our national time. Since the promulgation of the Constitution, Kenyans have been exhorted to believe a fundamental lie: that their government and its institutions will be reformed. What happened, however, was the renaming of institutions and the redistribution of certain prerogatives that had hitherto been the exclusive preserve of the presidency. Reforms have not, and probably never will, take place. The National Police Service is proof.

Reforming the government took a back seat to political considerations long before the Committee of Experts was allowed to publish the Harmonised Draft Constitution some time in July 2010. Of the institutions that were supposed to have been reformed to reflect the democratic inclinations of the Second Republic were the Kenya Police Force and the Administration Police Force, the latter which played such a significant role in the 2007/2008 crisis. But from the way Chapter Fourteen of the Constitution and Articles 243 to 246 were drafted, it is clear that the CoE's and Government's idea of "reforms" was simply renaming the police and little else. This was affirmed by the enactment of the National Police Service Act and the National Police Service Commission Act.

Kenyans continue to be lied to that the magic bullet of institutional reforms is newer and better legislation. Again, the National Police Service is proof that it is not. Policing in Kenya has a long and ugly history. The police forces of Kenya were never employed for the safety or protection of the "native" population, but for that of the settler communities, the colonial government and the home guard made up of "native" quislings. The colonial government may have gone the way of the dodo, but the descendants of the settlers and the home guard, as well as the descendants of the pro-settler Independence government ministers and senior bureaucracy, continue to use the police forces of Kenya in the same exact way it was used before Independence.

It is why the recruitment and training of policemen remains unchanged, save for tweaks here and there to accommodate, say, computers, the internet, social media and electronic communications and financial activity. By and large, the institutions that were established to brutalise and subjugate the "native" populations have survived practically unchanged and just as corrupt as their forebears. It is therefore, not unusual for a policeman who makes forty thousand shillings a month, or four hundred and eighty thousand shillings a year, or (assuming a very, very generous-with-allowances police service) one million, four hundred and forty thousand shillings a year, to have transactions totalling a hundred million shillings in four years. It is only unusual that someone is surprised at the sums being bandied about as the "vetting" takes place in Mombasa.

Every time the Government is assessed on the degree of corruption that assails its firmament, the police forces, the judiciary and all the departments involved in procurement or accounting for funds, are ranked as the least trusted and the most corrupt. What surprises, for many of the discerning among us, is why more policemen are not transacting tens of millions of shillings in each year, though inexperience and naivete go a long way to explain why newly-minted policemen need the mentorship of their seniors to get going. (There was that corporal who was murdered together with his wife whose income couldn't explain the three cars in his name and the five-bedroomed house he was building in Kahawa West.)

Reforms, my friends, mean different things to different people, but to the institutions of our Government, reforms means the renaming of things and the redistribution of perks. No more, no less. The colonial behemoth established in 1921 endures, for better and for worse, mostly for worse.

Tuesday, May 24, 2016

Address electoral management in full

Kenya's problems over the past three weeks are not a matter of perception but I have no doubt that the Board of Directors of Brand Kenya and the "lobbyists" the Government of Kenya has expended great treasure on will find a way of massaging perceptions till up is up and pink is pink. Yet little will come of this massaging; the IEBC will be intransigent about the commissioner's resigning; the opposition will be intractable about; the ruling alliance will be implacable about its plans for the IEBC and the opposition. Perception-massaging companies are about to enjoy a bull run on the securities' market.

Kenyans are dying because of  a disagreement between the ruling alliance and the opposition coalition over the perceived integrity or lack of integrity of the commissioners of the IEBC. It is a year to another general election in which an incumbent with a complicated history with the leader of the opposition seeks to defend his presidency from the leader of the opposition. In 1997, the president was pushed to agree to a raft of half-measures by the opposition and, while the general elections were marred by spectacular levels of violence, they did not spill over into the new year. In 2007, the incumbent president refused to bend, even a little, on reforms to the election board, and the rest is a blood-soaked history.

Twice an incumbent has been asked to bend a little by the opposition and the only time he refused, Kenya was set ablaze by bloodletting, the expulsion of whole populations from their homes, the destruction of billions of shillings in property and the humiliating spectre of senior politicians being asked unfriendly questions by foreign prosecutors in a foreign court in a foreign land. The incumbent, so far, will not bend. Instead, like his predecessors, he will unleash the might of his disciplined forces on his enemies and he will crush them, if it means shooting down every idiot who thinks that they can bully his government's officials into resigning. Brand Kenya and other "lobbyists" will be on hand to massage perceptions in London or Washington, D.C.

Yet the structural infirmities in the electoral system remain unresolved and the alleged corrupt tendencies of key officials remain unaddressed in full. The instinct is to deny that the vapid and vacuous opposition has a point at all and to treat the opposition as a treasonous body out to overthrow the government by unlawful and unconstitutional means. This seems to give free rein to the lunatic fringe of the ruling alliance an incentive to push the envelope to its most extreme edge when it comes to the deployment of armed members of the disciplined services and the loosening to ridiculous limits of their rules of engagement when it comes to political demonstrations. The result, as has been published and broadcast around the world, has been death and gross bodily harm at the hands of armed agents of the state.

How commissioners are appointed, the direct and indirect role the play in the management of elections, their authority to authorise large public outlays for equipment and tools and their role as witness of parties to elections petitions are questions that neither the ruling alliance nor the opposition coalition have canvassed in detail, merely relying on sloganeering to make their point. If talks are to take place between the political belligerents, the people of Kenya must insist that the terms of the talks must address these niggly issues. If they don't, but only that short-term reforms are discussed and adopted, it is almost certain that the elections will be violent, though perhaps brief, and the problem will have been postponed for another ruling party and another opposition party. That would be a mistake.

A colonial way of doing things

It is dangerous to argue that the presence of an armed police constabulary, armed to the teeth, I might add, prepared to use force, including deadly force, to enforce the peace, engenders a peaceful business environment. There is a section of the Twittersphere that is convinced that Nairobi is calm because of the presence of armed riot police and that the swift breaking up of a political demonstration is a testimony to the peace credentials of our fair city. This notion should be swiftly disabused.

Kenya's protest politics, especially when spearheaded by Raila Odinga, has one outcome only: violent confrontation with the forces of law and order. Mr Odinga inspires the most visceral reactions whenever he is in the opposition, and now that he is free to lead a protest movement when he chooses, there is a section of the ruling alliance that sees it as their duty to crush Mr Odinga's putative rebellion. These people are idiots and they are the reason many Kenyans, especially Kenyans resident in this city, labour under a most unfair delusion that Nairobi is safe and peaceful.

The police in Latin American banana republics (I know, I know; what a pejorative term) are the principle agents in policing political thought and political activity. If the police is arrayed against you, and so long as your movement does not grow, your political activity will be greatly circumscribed. But if your political demonstration becomes a mass movement, as what Raila Odinga is attempting, very soon the army will be called out at which point, only one outcome will be acceptable: the total destruction of the enemies of the people, because that is what the opposition will have become.

Nairobi's central business district is neither safe nor peaceful; it is a boiling kettle whose lid is a tightly wound paramilitary police force. The dissipating teargas fumes are not proof of peace or safety and neither are the closed shops suffering hundreds of thousands of shillings in losses every time the anti-IEBC circus comes to town. What the quiet streets of downtown Nairobi reveal is an illiberal approach to political contest that eschews debate to bullying. They are the sign of a scared populace which will not risk life and limb in the illiberal political combat between the ruling coalition and the opposition.

A safe public space is devoid of overt demonstrations of police power; it is instead, characterised by green spaces, water points, seats. The Nairobi CBD, under the Kidero regime and the entrenched malevolence of the nationa Executive, is neither safe nor welcoming, unless one has a very fat wallet. What the anti-IEBC madness has revealed, if revelation were needed, is that we are yet to reverse decades of received wisdom about the relationship between the people and their government, and the place of robust political disagreement by way of demonstrations. Kenya, and more so Nairobi, is wedded deeply to the colonial way of doing things.

Friday, May 20, 2016

The lie

Some of the most fabulously wealthy people in the world are oil barons while others got there by writing computer code or designing flat-pack furniture or insanely expensive automobiles. Still others got there by getting humans to kill each other with the weapons they manufacture or by selling extremely cheap, extremely tasty, extremely unhealthy meals in thousands of cookie-cutter-same outlets. In Kenya, though, whether settler descendants, home guard descendants or entrepreneurs, many fabulously wealthy people got there by stealing from the peoples of Kenya through corruption.

It is hard to impress upon an outsider how strange it is to find someone's fabulous wealth is not the result of hard work, intelligence, luck and perseverance, but the ruthless grand scale thuggery and rapine that defined British East Africa for almost a century. There are so many Kenyans who are proud that Kenya has "discovered" huge deposits of oil and gas, rare earth and precious metals, because they think that Kenya is about to join the ranks of the truly comfortable Scandinavian, western European and north American nations.Thy believe that Kenyans will enjoy the same standard of living as Norwegians, Germans, Canadians or US citizens because of our discoveries oil, gas, rare earth and titanium.

These are Kenyans who have fallen for the lie. They hold sincere beliefs that their leaders have their best interests at heart. It is a belief that cuts across ethnic, economic and academic boundaries. It is supported by glossy brochures and easy-to-decipher pie-charts. In their world, A leads to B which leads to C, a straight line from discovery to great comfort and wealth. Naysayers who point to resource curses like the ones bedevilling Nigeria and Angola are accused of being wet blankets, hellbent in giving Kenya a bad reputation among outsiders. The ones doing the loudest accusing have a vested interest in the continued belief in rosy, saccharine endings.

Most Kenyans' tunnel vision regarding, especially, the oil hides the godawful truth about the future. If you look at the acrobatics and gymnastic contorting that took place to arrange the administration of our oil, you will notice a pattern that is wearily familiar. That pattern ends one way only: those who hope for a fair shake at the end of it all are going to find themselves in even greater debt and in ever greater penury, because these resources are not for the good of the people but for the good of the few. We are not members of the few. We never were.

Look at how the most precious capital has been allocated in Kenya, and you notice "the people" were a mere afterthought, noticed only when the buccaneers "developing" that capital build patently unsafe houses, illegally obtain certificates of occupancy, are waved on by every single regulatory agency, and cash in when the bloody reality occurs and dozens of Kenyans are killed in the dead of night. How Kenyans can still believe the fairy tale that they will get a fair share of the oil, the gas, the rare earth, the they can believe after all these decades is a testimony to the brilliance in selling the lie. The lie has now taken a life of its own. It has become ubiquitous, like God. 

Kenyans hold onto its promise because the alternative is catastrophic disappointment. Kenyans will tolerate much because they believe that in twenty years, they shall be living in the Paris of Africa. Better yet, Paris will be called the Nairobi of Europe. The harsh, hard, cold truth would destroy us, it would destroy truth, it would destroy God. Yet the lie will never be allowed to die. Oil is here to save us.

Bob Collymore is right

Safaricom, the multi-billion-shillings-in-profit company, has been the victim of a crime. Bob Collymore, Safaricom's CEO, states that a draft report prepared for Safaricom's consideration was illegally leaked to the public. He is correct.

First, let us begin with Article 260 of the Constitution which defines "person" as including a corporation, of which Safaricom is one. Then we come to come to Article 31 which guarantees every person's right to privacy, especially sub-Article (d) which protects the privacy of a person's communications from being infringed.

The leaked report has energised the National Assembly, through its Finance, Planning and Trade Committee, to enquire into alleged graft at Safaricom, and has summoned the CEO, Mr Collymore, to appear before the Committee and offer an explanation. This brings us to Parliament's power under Article 125 to summon any person (including Safaricom's CEO) to appear before it for the purpose of giving evidence or providing information. This power can be exercised by either House of Parliament or any parliamentary committee, such as the Finance, Planning and Trade Committee of the National Assembly, and shall be exercised as if the committee were the High Court of Kenya.

The leaked report, according to Safaricom, is in draft form. Many of the outstanding issues raised in the draft report could be resolved once all the persons adversely mentioned in the report respond to the allegations against them to the satisfaction of the makers of the draft report. In this regard, the National Assembly jumped the gun; the draft report had not yet definitively accused Safaricom or its officials of graft. It had only documented allegations that needed clarification.

On the other hand, there is no provision that the National Assembly had to wait; common sense tells us that it should have waited for the final report to be published by Safaricom, before it summoned Safaricom's CEO. I hope that the members of the parliamentary committee understand that even though they have the High Court's powers when it comes to compelling the attendance of persons before it, Parliament could not act against the details of the report, even if they were true, other than by preparing a report of its own and directing the relevant agencies of the national Executive to take the necessary action. Parliament is restricted to obtaining information and preparing a report. It is not empowered to fire Safaricom's officials or levying fines against the company for graft or other crimes.

I believe that many parliamentarians remain unsure of their proper role when it comes to behemoths such as Safaricom, a publicly-traded company that is interwoven in our day-to-day lives in very intimate ways. They seem not to appreciate that Safaricom has a Board of Directors, a code of conduct and a corporate governance structure that should address internal company matters, such as whether company officers are engaged in acts of breach of trust, that is, breaches of their fiduciary duties to the company, its employees or its shareholders. And where the company commits any crimes, for example, where company officers, in the name of the company, pay bribes to public officials in order to win tenders, it is not Parliament that will act, but the National Police Service and the Director of Public Prosecutions with support from the Capital Markets Authority and, perhaps, the Competition Authority and the Communications Authority.

As of now, however, Safaricom is the victim of an unconstitutional act, the divulging of corporate secrets protected by Safaricom's right to privacy under Article 31. Bob Collymore is right to claim that this invasion of Safaricom's privacy is illegal, regardless of the fact that Safaricom is not a natural person.

Thursday, May 19, 2016

Half a red apple

Yesterday I cut my right eyelid in a stupid accident. I also banged my head against something very hard and had water splashed all over me by a very zealous Toyota Belta driver out to prove hata yeye anaweza! Yet those three were not the worst part of my day. Not by a long shot. All these took place before 7:30 am. But at 8:05 am precisely, my day turned to shit.

Some of you must have surmised by now that I am a loyal servant of the national Executive. It is a rewarding enough job and I have little to quibble with it. I could do with a fatter pay-cheque, but so would anyone else on a salary in this fair city of ours. I am grateful for the company of my colleagues in our five years' old open plan system (you have to meet Marion, the other Marion, Lilly, Olivia and Maureen to understand my gratitude). For the most part, my supervisors, frequently Catherine and Fred, are a joy to work with and my bosses are as un-boss-like as can be in the circumstances.

But even my boss has a boss, and my boss's boss has a bevy of PAs. I use "bevy" deliberately. Between 4:30 and and 8:05 am, all the haste, the bleeding that ensued after my head made contact with sharp-edged surfaces, not once but twice, the smelly road-splash, all of it, I suffered through because I thought that my boss's boss needed me to do it. At 8:05 am, I had a revelatory conversation with my boss's boss's PA.

From her tone and her scowl, it was clear that she was not amused. Actually, she was mad at hell. The rage was radiating from her like radioactive waves in those old Scooby-Doo Saturday morning cartoons. She accused me, for it was an accusation, of delaying with my piece of paper and she now had to do my job. I wasn't paying attention. I never pay attention when people are mad at me. My mind usually wanders when people are yelling at me and accusing me of all manner of things. So I didn't listen too keenly, except when one of her colleagues mentioned that a letter I'd been waiting on for a week was on her desk.

Soon enough she was done with the ranting and the photocopying the had been doing as my mind focussed on asparagus or something. She flounced into her office and essentially pretended that I did not exist. Now, my boss's boss has banned waiting chairs from his ante-chamber so your business is concluded swiftly. He doesn't like crowds milling about waiting for him. So I had nowhere to sit. Three minutes of looking foolish, I popped my head in her door and asked for my letter.

The clock turned to 8:05 am and all hell broke loose.
Maundu, you were supposed to bring this letter at 7:30! Why did you make me wait?! And now you think that your letter is more important. You will just have to wait.
I should have been surprised, but I wasn't. Enough colleagues with enough stories and you know your best bet is keeping your head out of the lioness's jaws. Of course I wasn't going to stand there in the middle of the ante-chamber till she calmed down. Since I didn't really need my letter to attend my meeting, I left. She probably didn't notice I was gone, focussed as she was on the very important work she was doing on Yahoo!

Hers is a sad life, I bet. For as long as I have known her or known of her, she has sat at that same desk in that same room. This is going on five years now. In that entire period, I am yet to meet anyone who has nice things to say about her. Or neutral things to say. Almost to a woman, all of them have very strong, very negative feelings for her. That can't be good. It explains why she eats lunch alone at her desk out of Tupperware. Even the secretaries on her floor get invited to the new Java across the street every now and then. Nobody invites her to drinks after work, no one wants to join the Intercontinental's gym with her. She is alone with her attitude to keep her company. Like I said, sad.

Good news, though. By 8:06, things had improved rather markedly. Olivia brought apples. My meeting's organisers called and told me where, when and what snacks they were bringing (samosas and mandazis). I spoke to The One. All in all, for sixty seconds, the day was bleargh for the both of us. But hers lasted the whole day, bile building up in her system. All it took for my day to improve was half a red apple!

Tuesday, May 17, 2016

A disproportionate response

Did you know that two thousand years ago a Roman citizen could walk across the face of the known world free of the fear of molestation? He could walk across the Earth unharmed, cloaked only in the protection of the words civis RomanusI am a Roman citizen. So great was the retribution of Rome, universally understood as certain, should any harm befall even one of its citizens.Jed Bartlett, West Wing (Season 1, Episode 3)
The world has changed considerably since the Roman Empire crumbled and was ground into dust. Where once Roman citizenship was a guarantee against the nefarious attentions of other powers, no nation has kept the faith with its citizens in the modern era. Today, whether one is the sole superpower like the United States or a Stalinist hermit death camp like the Democratic People's Republic of Korea, citizens have much to fear of their governments. Citizenship no longer guarantees safety.

Yesterday, the Government of Kenya reminded the citizens of Kenya that they could expect no mercy for questioning the legitimacy of its institutions. The Government of Kenya reminded the citizens of Kenya that they were the subjects of the Government and that any acts that displeased the Government would be considered, at a minimum, acts of disloyalty and would be suppressed and crushed pitilessly. The Government of Kenya reminded its subjects that though they cover themselves in the cloak of the Bill of Rights, that that Bill of Rights will not stop a combat boot from being brought down with deliberate and great force upon the head of a subject who has overstepped his or her bounds. The Government of Kenya, through one of its ardent agents, declared its intention to acquire "extra-lethal teargas" in order to "defend the Constitution and the rule of law."

If you want to test the salience of my declaration, I dare you to walk from one end of our fair capital to the other, in the dead of night, wearing nothing but the cloak of the promise of swift justice by your Government should anyone molest you. In my estimation, you are likely to be molested by agents of the Government wearing the uniforms of the security services. Theirs will not be polite enquiries as to how well you enjoy your nocturnal perambulations, but, in rapid order (a) demands to identify yourself, (b) threats if your identification documents betray a certain ethnicity out of favour with your Government and (c) extortionate demands, demands under the colour of authority, for a bribe. You are more likely to pay the bribe than not.

But where the full might of your Government will be brought to bear is where you deign to challenge its authority to order your life. Take, for example, the organisation of an election: the Government will brook no dissent from its position that the arbiters of elections are as trustworthy as can be, that no shadow of a doubt exists as to their integrity. Sore losers, those with presidential-scale axes to grind, are troublemakers and those that support them are anti-constitutional anarchist out to destabilise the State and in the pay of hostile foreign powers. They are to be dealt with swiftly, brutally and pitilessly. They are to be gassed, clubbed, kicked and stomped into submission. They are to experience the whole gamut of coercive measures available to the Government until it goes through their thick skulls that they shall not be allowed to prevail. Blood shall be spilt, heads shall be cracked and the City Mortuary will hum with activity.

Do not, dear reader, live under the illusion that your citizenship accords you certain rights; it never did. Your citizenship is a burden your must bear stoically. It is a requirement for total and unquestioning obedience. And when, dear reader, you get too big for your breeches, it is the promise of a disproportionate response. Like death.

Bad ideas are not unconstitutional

Article 27 guarantees equality and prohibits discrimination. The Preamble to the Constitution states that "We, the people...adopt, enact and give to ourselves and to future generations this Constitution." In other words, the declaration of equality and the prohibition of discrimination are made by the people of Kenya. The Constitution is supreme and no one has the authority to supersede its declarations. That includes faith-based orgnisations.

Among the functions of the national Executive is the registration of associations of like-minded persons in order to regulate their conduct and to prevent them from committing offences. Registration is undertaken by different officials and agencies, including the Office of the Attorney-General. Registration is undertaken in accordance with the law.

An association known as Atheists in Kenya sought registration by the Registrar of Societies under the Societies Act. The office of the Registrar is an office in the Office of the Attorney-General. The Registrar refused to register the association. The High Court disagreed with the decision of the Registrar and ordered that the registration be effected and a registration certificate be issued to the association. Leaders of faith-based organisations disagreed and demanded the deregistration of the association. The Attorney-General, seemingly acquiescing, ordered the Registrar to "suspend" the registration of the association pending a determination of the suitability of the registration. This was a strange decision.

The Societies Act has a procedure for the deregistration of an association. The grounds for deregistration are set out in the Act too. More importantly, though, the non-discrimination clause in the Constitution prevent atheists from being treated differently by the State, including by the Registrar of Societies or the Attorney-General. Article 27(4) states,
The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth.
The members of the atheists' association are protected by this clause. Simply because they do not believe in deities, and faith-based organisations are founded on that belief, is not a justifiable ground to treat them other than as provided in the Societies Act, the law under which their association was registered. It matters not that the Preamble declares that "We, the people, Acknowledge the supremacy of Almighty God of all creation" or that it ends with the prayer, "God Bless Kenya." Simply by declaring that the State shall not discriminate against any person on any ground is sufficient to protect the atheists from being treated differently by those who do believe in deities.

Kenya might not be an absolutely secular nation but it is not a theocracy either. The mere acknowledgment of "God" in the Constitution does not make Kenya a theocracy. Article 8 is plain enough: There shall be no State religion. The registration of the atheists' association does not in any way infringe upon the rights of the faithful. The atheists have an equal right to "to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship" as members of faith-based organisations. This right also includes a right not to believe.

The Registrar of Societies and the Attorney-General must demonstrate that there is a state interest in preventing the registration of the atheists' association (which they attempted and failed to do so before the constitutional court) and that the registration is not in the best interests of the State or "We, the people." I can find no state interest in such a discriminatory approach. Simply attacking the idea of the existence of deities is not an infringement on the rights of the faithful. It is an exercise of the "freedom to seek, receive or impart information or ideas" protected by Article 33.

A pitiable foreign policy

We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. ~ The Monroe Doctrine
It must be the policy of the United States to support free people who are resisting attempted subjugation by armed minorities or by outside pressures. ~ The Truman Doctrine
Of course I oversimplify. In this oversimplification, please remember that the salient features of each doctrine can be discerned and they go to the heart of the US foreign policy. The United States defines itself in the comity of nations by its foreign policy, which divides the world into friends, foes, adversaries, challengers, enemies and rogue states.

What is Uhuru Kenyatta's signature foreign policy stance? Is it deepening ties with China and India, a Look East stance if you will? Is it a rebalancing of the relationship with London and Washington DC, an autonomy stance? Is it a doubling down on anti-terror activities in its near-abroad? What is the Kenyatta Doctrine? Given recent setbacks, it is not possible to state that President Kenyatta has a doctrine.

Kenya's position in the Horn of Africa is as a stable economic power, a gateway to foreign investors in this part of Africa. While Kenya relies a great deal on agriculture and tourism, it has a robust services sector, especially in financial services that makes it an ideal destination for investors looking for opportunities in the members of the East African Community and the wider Horn of Africa, including in Ethiopia, Southern Sudan and Somalia. However, Kenya has chosen to embroil itself in the political disputes of its neighbours and the premium placed on its stable economy has taken a beating.

Kenya's economy would have formed the basis for President Kenyatta's foreign policy, and with it he could have articulated a doctrine. The Ministry of Foreign Affairs and International Trade has failed to lead the way, having been hamstrung by its orders to sort out Kenya's problems with the International Criminal Court. At a time when at least one Kenyan is a force to be reckoned with in international economic policy (Mukhisa Kiyuyi at the United Nations Commission on Trade and Development, UNCTAD), Kenya's international trade stance is being overshadowed by setbacks in oil and gas exploration and regional transport.

It is an election year, more or less, and it is unlikely that the President is thinking hard on how to reorient his foreign policy stance to take advantage of Kenya's natural assets. Given the relative international trade and international economic policy weaknesses in the foreign affairs ministry, this is not a situation that will change before the 2017 general election. Instead, we are to be treated to an absurd theatre regarding refugees and the war on terror. More's the pity.

False choices

My thesis is a simple one: the Constitution is a vital tool in restraining the authoritarian instincts of the Government which are usually expressed in laws made and enforced by the Government. A constitution restrains the Government; laws restrain the people. The tension between the two is what civil society should mediate for the benefit of both the people and their government.

The Government will always try to break away from the shackles imposed on it by the Constitution, especially the shackles of the Bill of Rights, while the people will always attempt to overcome the constraints established by the law, arguing that their rights and freedoms are unfettered. In this scenario, an arm of the government that is appointed, not elected, plays the role of the ultimate arbiter of how loose the Government can interpret its constraints under the Constitution and how free a people actually are from the limitations imposed by laws. But it is civil society that should make all of it make sense.

Kenya's civil society was once the envy of the world, articulating the desires of the people who had been oppressed under the laws. It is the libertarian instincts of the people that were expressed in the pamphlets and underground newsletters of the civil society, which formed the basis for a robust examination of what we, as a people, could aspire to in the name of liberty. Sedition laws, enforced with zeal by agents of the state, were the first targets of Kenya's civil society and its successes are reflected in today's robust Bill of Rights.

Kenya's former constitution, interpreted narrowly by the agents of the State, including the judiciary and the Attorney-General, became a weapon against the people, rather than a fetter on the untrammeled exercise of power by the State and its agents. Indeed, some of the interpretations of the former constitution led to perverse outcomes, such as the proscription on the countenancing of the death of the president in any form as articulated by a former long-serving and self-serving Attorney-General.

Today, sadly, the civil society organisations active in the field of constitutional rights is bereft of fresh ideas, selfishly wedded to one political enterprise or the other. The events of the past three years called for a robust debate about what the Bill of Rights means to Kenyans and how it constrains the agents of the State as they go about the enforcement of the laws of Kenya. Instead, we have witnessed even premier organisations such as the Law Society taking political sides without articulating a constitutional idea.

In the past two weeks alone, rather than debate how we might improve our management of elections, especially presidential elections, we have been held hostage to the base idea that the commissioners of the Independent Electoral and Boundaries Commission are the problem (if you are a member or supporter of the Coalition for Reforms and Democracy) or the guardians of an election system with integrity (if you are a member or supporter of the ruling Jubilee alliance). Political disputes have taken on overtones of theocracy on all sides of the political divide; there is great noise but no reason. Civil society has failed to articulate what it means to have a level electoral playing field, what the Constitution demands of us in this regard, what role the Commission plays and what we must do to ensure equity, fairness and justice.

Until we reopen the debate on the constitutional constraints against the Government and the statutory limits of individual freedom, led by the civil society organisations of today, we run the risk of being asked to choose between the false choices of one bad political vehicle against another.

Monday, May 16, 2016

God is on holiday

I feel bad for Raila Odinga. OK, not exactly bad, maybe...sorry. Yeah, sorry. Mr Odinga will not be Kenya's fifth president. Not in 2017, not in 2022, not ever. Neither will it be Moses Wetangula, Kalonzo Musyoka, Martha Karua, Peter Kenneth or, drum-roll please, William Ruto. Mr Odinga has done much to keep his name in lights in recent weeks, the least not being the shellacking he took from Mehdi Hassan on Al-Jazeera's Head to Head. Today, though, it is his anti-IEBC vendetta that is agitating the pro-Jubilee, anti-Raila hordes.

Kenyans don't have that short a memory, and many do not like the idea of hooligans breaking into dukas under cover of political demonstrations. Mr Odinga's casual strolls to Anniversary Towers, IEBC HQ, repulsed twice over by Nkaissery's overzealous rungu-wielding askari polisi, have given Nairobi's petty thieves, pick-pockets, burglars and ngeta specialists many opportunities to practice their dark arts without worrying too much about the long arm of the law or a date with the magistrates of Uhuru Kenyatta's serikali.

One obvious consequence has been one or two incidents of mob justice; what remains unknown is whether this justice will revive the South Africa-inspired necklace, a Yana tyre and Super petrol combo that leaves victims smouldering in the middle of the road. It is the mob justice part of the anti-IEBC demonstrations that almost guarantee that Raila Odinga will never be Kenya's president; too many people associate his recent presidential campaigns with arrogance, violence and criminality. Exhortations that he "deserves" it because of his sacrifices to Kenya will fall on deaf ears because no one seriously believes any of Mr Odinga's class deserves the presidency, including even the incumbent.

What many Kenyans are persuaded of is that it really does not matter who is in charge at Anniversary Towers. Few Kenyans will ever get the opportunity to affect the lives of millions of Kenyans like Mr Odinga or the IEBC have, and few Kenyans would want that responsibility. Mr Odinga wants the presidency a little too much and the IEBC has identified itself with the President a little too keenly; none of them engenders trust and the dukawallahs counting losses this afternoon can only blame Mr Odinga and the hard-hearted Pharaohs of the IEBC. If both of them could exit the field, we wouldn't even notice.

The reason why Issack Hassan and his colleagues are unwilling to exit, and the reason Raila Odinga will lose the 2017 presidential contest and the 2022 one if his heart is still in it, is because the IEBC is more than a vote-rigging engine; it is now among the comfiest builders of apartments in Nairobi and no one wants to give up that kind of piggy bank in the middle of an election year. No one. All the demonstrating and picketing in the world by Raila Odinga and his cohort will not move Mr Hassan and his colleagues from office. It will take an Act of God to do so. God, unfortunately, is on holiday in Tanzania, enjoying the new-broom madness of John Pombe Magufuli.

Mr Wambugu is wrong

The United States is a sophisticated banana republic.Swaminathan Aiyar, Swaminomics
Ngunjiri Wambugu cogently recalls the circumstances in November 2000 that led to the election of George W Bush as the 43rd President of the United States, declaring with customary pomposity that "When Americans have to choose between 'popular' and 'constitutional' they know popular does not cut it." What I imagine Mr Wambugu means is that it mattered not to the citizens of the United States that Al Gore, Mr Bush's opponent, did not win the popular vote, but that he lost the electoral vote, by which the US electoral college elects the President of the United States. Mr Wambugu is correct.

However, Mr Wambugu misses the big picture. I quote Mr Aiyar again,
...[US] citizens have no fundamental right to vote in a presidential election.
This is an interesting discovery. Article II of the Constitution of the United States deals with the Executive branch of the US federal government and how the President of the United States is elected. It doesn't provide for a right of US citizens to elect their president and commander-in-chief, but for the creation of the Electoral College that does elect the President of the United States. As Mr Aiyar notes, this is deeply undemocratic, on par with the notorious banana republics of Latin America such as Cuba and Venezuela.

Mr Wambugu makes a startling declaration: the Constitution of Kenya was ratified by 70 percent of Kenyans. By his count that is close to 28 million Kenyans. Just as in his analysis of the US presidential election, Mr Wambugu is a little too free with his facts. The Constitution of Kenya was ratified by 70 percent of voters who actually chose to vote in the 2010 referendum, not 70 percent of the population. This is an important distinction. (All Kenyans under the age of 18 years were disenfanchised by fiat and there is no absolute reason to believe that they would have supported the view of the 70% of the voters who chose the harmonised draft constitution. But I digress.)

Kenya is not the United States. Kenyans actually have a right to vote (Article 38). This is a right that is regulated by the Elections Act, the Political Parties Act, the Independent Electoral and Boundaries Commission Act and the  Election Campaign Finance Act. Despite these statutes, the right to vote is absolutely protected by Article 38.

Mr Wambugu's incredible assertions are in the context of Raila Odinga's anti-IEBC campaign. Mr Wambugu states that what 28 million Kenyans have endorsedthat Kenyans will vote as organised by the IEBCMr Odinga cannot overturn by extra-legal, extra-judicial or -extra-constitutional means such as mass action. Of course Mr Wambugu is talking through his hat.

First, as Mr Aiyar demonstrates, the USA is not the best example of a democray, especially when it comes to presidential elections. Second, the Constitution of Kenya was not endorsed by 28 million Kenyans, but less than 10 million (based on the 12 to 14 million adult Kenyans the Interim Independent Electoral Commission had registered for the referendum, of whom 70 percent ratified the harmonised draft). Third, while there is a constitutional and statutory process for the removal of the IEBC commissioners, there is nothing preventing Mr Odinga and his supporters marshalling popular antipathy against the IEBC and shaming them to resignation. Their right to assemble, demonstrate or picket the commissioners is protected by Article 37.

Mr Wambugu and like-minded pro-government windbags live under the cozy illusion that a government can only be brought down by the means set out in the Constitution that they like, and that all other constitutional means are illegitimate. Mr Odinga is painfully aware that he probably doesn't have the technical proof needed to remove the commissioners of the IEBC from office nor that a petition for their removal will receive the endorsement or support of the Jubilee-dominated national Executive or Parliament. 

Mr Odinga is shrewd enough to know that he does not need proof at all; if the IEBC's commissioners will ignore the pricking of their consciences regarding the doubts regarding their integrity, Mr Odinga is determined to remind them using the other bits of the Constitution that Mr Wambugu & Co deprecate. Popular pressure brought our Constitution to life. Popular pressure might yet force the IEBC commissioners out of office. I finish with Mr Aiyar's words once again,
Justice Stevens’ dissenting opinion said it all. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the law.”
Substitute "judge" with "IEBC" and marvel at the thing of it.

Friday, May 13, 2016

Dadaab's fate

Can the Government of Kenya shut down Dadaab and Kakuma refugee camps? Yes. Should it do so? That, good people, is the 600,000-persons question.

Kenya has hosted refugees and asylum-seekers for decades. They have fled to Kenya from Uganda, the Sudan, Ethiopia, Somalia, Rwanda, Burundi, the Democratic Republic of the Congo, the Central African Republic, Angola and Chad. Kenya has admitted and cared for these people in part because of its obligations under international law and in part because Kenya has had a hand in peace processes underway at various times in the past, such as with the Sudan (that led to the independence of South Sudan through a peaceful referendum) and Somalia (that led to the establishment of the Transitional Federal Government in Mogadishu).

Dadaab is the largest camp, hosting asylum-seekers and refugees from Somalia. In the words of the Cabinet Secretary for the Interior and Co-ordination of National Government, it is also where terrorist attacks against Kenyans have been planned and co-ordinated, singling out the Westgate Siege as the most high profile. The Cabinet Secretary wants the camp shut and the asylum seekers and refugees repatriated to Somalia because (a) it is in Kenya's security interests and (b) Somalia is now much, much safer and the asylum-seekers and refugees will be much safer in areas liberated from the Shabaab. The Government of Kenya has so far turned a deaf ear to calls for holding off on shutting down the camp, with the Cabinet Secretary announcing that a billion shillings has so far been set aside for the exercise.

Kenya, in the past six years, has had a particularly difficult relationship with nationals of Somalia and its own Kenyan Somalis, not that this relationship has ever been health to begin with when one remembers the Shifta Wars. When Kenya aced increasing attacks by the Shabaab at the beginning of this decade, it sent troops into Somalia for the first time and those troops have never left, having joined up the African Union Emission in Somalia, AMISOM. Few Kenyans remember that its soldiers have been fighting and dying in Somalia for five years.

Initially, the mission was to prevent further attacks in Kenya by the Shabaab. That mission has failed. It failed because the Shabaab is not a national power, does not control territory using a public service or government infrastructure, does not have a standing army or targettable military and other assets and is not interested in negotiating with other belligerent powers active in Somalia that also include Ethiopia, Uganda and Burundi. The Shabaab will not be defeated in the field of battle or in the field of ideas, because that is not where it is fighting.

Kenya's evolving anti-Shabaab strategy has now brought it to Dadaab and the decision to shut down the camp and the dispersal of the camp's hundreds of thousands residents because it has been infiltrated by the Shabaab who have continued to wage asymmetrical war against Kenya from there. I fear that Kenya's latest gambit will fail, will isolate traditional international allies at a crucial time, lose whatever hearts and minds had been won in the past five years and the sympathy that had accrued after the bloody El-Adde Attack three months ago.

Kenya's border with Somalia, even with the border wall, remains especially porous and Kenya's large population of Kenyan Somalis means that the dispersal of the over 600,000 from Dadaab will not prevent the few dedicated members of the Shabaab from blending in with the civilian population and carrying on as before. Kenya's mission in Somalia failed because it did not have a clearly articulated exit strategy; Kenya's latest gambit might fail if there isn't an intelligence component that tracks and neutralises threats from among the former residents of the camp.

Neither Kenya nor AMISOM nor the US will win a war with the Shabaab, especially now that al Qaeda and ISIS are slowly being incorporated in the conflict in Somalia. US bungling in Iraq, Syria and Afghanistan means that those countries will be producing terrorists for, foreseeably, the next thirteen years. Al Qaeda and ISIS have inspired other terror groups in Nigeria, Mali and Niger and it was only a matter of time before Kenya and the rest of the Horn of Africa got sucked in too. 

Kenya can only win if it becomes just as ruthless as the Shabaab and target all its assets and support infrastructure with ruthlessness, including civilian assets and support infrastructure. Or Kenya can win by fighting an intelligence war that accurately targets the Shabaab's command, control, communications and intelligence infrastructure, disrupting and destroying it and preventing the Shabaab from regrouping or rebuilding. One way or the other, the current stratagem has failed. A new one is needed.

Time to bury KANU-ism and KANU-ists

Once upon a time, long before the Kenya Television Networks Channel 2 went live, if you wanted anything, you had to be a member of the ruling party KANU. If you wanted a promotion at work, you had to be a member. If you wanted a transfer to a new job, you had to be a member. If you wanted a loan, you had to be a member. In the words of the Nyayo Philosophy's truest sycophants, JJ Kamotho and Sharif Nassir, KANU was "baba na mama." And KANU became the only way for dedicated party apparatchiks to be rewarded.

The system of patronage that KANU established has survived the NARC revolution, the PEV and Kenya's second Constitution. You can see the deleterious effects of KANUism by the sclerosis that afflicts sports administration, especially now that the World Anti-Doping Agency, WADA, has trained its eyes on Kenya's feeble shows of anti-doping measures. More and more stories are emerging of Kenyan athletes failing doping tests, in and out of competition.

This should not come as a surprise, really. KANU-ism established a system of graft in all walks of life that it is surprising that Kenyans haven't found a way of extorting foetuses before they are born for the privilege of breathing free Kenyan air! State agencies became fiefdoms because of the system KANU built. Once you were appointed to a cushy job in a state agency, it was more or less understood to be a job for life. This appointment became the basis for great perfidy if one lost their way or got greedy. Athletics Kenya, AK, the body responsible for overseeing athletes and athletic competition in Kenya, has not been immune from this.

AK is one of the last dinosaurs from the KANU era and in the recent revelations about bribery and doping, it seems quite true to type. AK and, by extension, the Government of Kenya, have had years to establish an anti-doping regime but they did not move with alacrity until WADA threatened to blacklist Kenya and Kenyan athletes from global competition. One of the reasons Kenya was so sanguine about anti-doping measure is the seemingly set-in-stone nature of AK management; the current chairman has been in office since 1992. In his heydays he was a formidable long distance runner. Today, he presides over a system that is in dire need of a total overhaul.

Kenyans have lived long under the illusion that its truest exemplars of integrity are the men and women who dominate, at the global level, in the middle-distance, long-distance and marathon races. A common joke is that when competitors get to the starting line and see a Kenyan, they start praying that he won't beat them so badly that their nation will start looking for a new runner. That cozy illusion is being threatened by the drip-drip-drip of doping stories from inside and outside Riadha House, AK's headquarters, and Kenya's pussy-footing with WADA over its unconvincing anti-doping arrangements. If Kenyans lose their last true heroes, I don't know where we will turn to next for integrity and the value of hard work.

AK and similar sports' dinosaurs must realise that it is no longer the KANU way of doing business any more. It is a harsh new dawn. Transparency, accountability, good governance, integrity and human dignity are now constitutional requirements for all Kenyans, including sports administrators. KANU-ism may still enamour some lost souls, but Kenyans have resoundingly adopted a new code and it is not KANU-ism. The KANU-ists in the system must shape up or ship out, previous valiant service notwithstanding. KANU is no longer baba na mama.

Not idiots

It's easy and lazy to declare, proof notwithstanding, that elected representatives, especially those serving in county assemblies are foolish and stupid. Those that perpetuate this sentiment are in dire need of a hiding because they are the true enablers of political chicanery and perfidy of the most colossal kind. How could a man or woman who couldn't connect two separate ideas manage to persuade thousands of men and women of different age groups, professional backgrounds, academic qualifications, economic and social positions, to vote him or her if he or shew were a fool?

More often than not, these elected representatives, whether at the national or county legislatures, are anti-intellectual; they are not interested in new ideas when those ideas stand in the way of their self-aggrandisement. Also, more often than not, these men and women are highly intelligent. It is how they manage to persuade a large group of adults to keep electing or re-electing them or to acts of fealty, such as violence against rivals and the like. If it was, for example, as simple a transaction as the exchange of cash for votes or violent acts, how long would it last before the cost of such cash transfers, in true Economics 101 fashion, skyrocketed beyond even the means of the wealthiest politician?

No, it is time to put aside the lazy notion that elected representatives are idiots without a clue as to what they are doing or what they should do. Instead, we must examine why they are not incentivised to do what they have been elected to do and instead, focusing their energies in schemes and machinations that do not form part of their core mandates but generate displeasure among a core group of voters.

By now it is plain to see that the colossal sums lost to government perfidy would not be lost of the elected class was not more interested in lining their pockets as fast as possible. During the height of the NYS scam, it emerged that ruling party politicians had a hand in the award of tenders to the accused persons. So too, it was revealed at a political rally, were members of the elected class involved in the shady dealings that continue to surround the construction of the SGR. It would explain the attempts by the elected class to water down the separation of the Cabinet from Parliament, or the 47 county executive committees from county assemblies.

When these men and women seek elected office, they do not do so with the welfare of their constituents at heart; they do so for the sole purpose of gaining access to the billions sequestered in the Consolidated Fund. They have done their homework, and more often than not, they know which political and administrative levers to pull to ensure that a large chunk of the Consolidated Fund ends up in their personal and "business" accounts. These are not the acts of foolish or stupid people, but of highly intelligent and motivated sociopaths.

We must, therefore, conclude that when hospitals are not staffed or facilitated, when roads remain potholed for all years, when residential houses collapse, when riparian reserves are encroached upon, when NYS recruits remain unpaid, when garbage mounds grow unchecked, when anti-corruption crusaders are murdered, when wheelbarrows cost a million shillings and when sports anti-doping agencies fail to sanction sports cheaters, that it is all deliberate. These elected representatives want this sorry state of affairs to continue because in the chaos of it all, they are able to fatten their wallets in patently unlawful ways.

In all democracies, there are many elected representatives who are corrupt. In properly functioning democracies, the corrupt do not stay out of the clutches of the authorities for long. They may not be caught in time, but more often than not, they are eventually caught and their political careers are ruined forever. In Kenya, in contrast, political office, especially high political office, is a guarantee that one will never get caught, that one can rent-seek to great wealth and power without fear. It is a perverse incentive to join politics. It is an incentive we have singularly refused to discount. It is the reason why some perpetrate the notion that elected representatives are idiots. We are the idiots when we accept that idea.

Thursday, May 12, 2016

The IEBC box-step tango

The ones who squeal the loudest about the "unfairness" of electoral management bodies, such as the Independent Electoral and Boundaries Commission, are politicians whose luck at the hustings was not good. The voters, for whom the loud squealing is purportedly for, don't seem to have an opinion one way or the other. That no longer surprises. To paraphrase Michael Joseph, the eponymous former Safaricom maestro, Kenyans have peculiar political habits.

Kenya's elections have rarely been without incident. Once Kenya adopted the fiction of democratic multiparty elections, it is only the general election of 2002 that was accepted as free and fair, with the ruling party's candidate making a gracious concession speech soon after the Electoral Commission of Kenya declared Mwai Kibaki duly elected as Kenya's third headman. But that is not to say that the election was free or fair; after all, it is the ECK that had presided over the blood-soaked elections of 1992 and 1997 and would lead Kenya to the brink of self-destruction in 2007.

What surprises is that in 1992, 1997 and 2007, voters were passionate enough about the elections that they participated in murder, rapine and arson on a grand scale, yet when the dust settled and a government took office, they forgot about the election management body and retreated back to the corruption-fuelled governance of the country, fighting for every unlawful contract with their government.

Kenya's civil society, and I do not mean the sclerotic NGOists attempting to justify hundreds of thousands of donor dollars, is almost nonexistent and it is being smothered, one person at a time. I imagine this is how a python's prey feels when it is being suffocated inch by deadly inch. At first it is a slimy embrace; in a half-hour it is excruciating asphyxiating death. Kenya's civil society is being asphyxiated because those doing the asphyxiating - notably Kenya's parasitic political class - has adopted a softly-softly approach to things.

A civil society is built on an informed citizenry; Kenyans may be the envy of their continental peers for the number of blogs they operate and the number of tweets they send, but when Kenya's last celebrated author last wrote a thought-provoking treatise in the last decade, you get the feeling that fewer and fewer Kenyans are interested in ideas and fewer and fewer Kenyans are willing to engage in debate of ideas. It is why an ill-thought and incendiary newspaper editorial leads to the expulsion of the editor without the members of the Fourth Estate interrogating the straitened circumstances of their craft, or the dismissal of a conscience-pricking editorial cartoonists elicits cries of dismay but no mass movement to demand his reinstatement.

Old civil society warhorses find themselves more and more alone. Timothy Njoya must look at the antics of Mutava Musyimi and weep. Yash Pal Ghai must look at the insufferable bombast of Kiraitu Murungi in horror. John Githongo must wonder whether his efforts in exposing graft were worth the death threats. A nation incapable of thinking is at the mercy of the ill-informed mob, and it is the mob that keeps the politicians' name in print and the publisher counting the billions that come with advertising shillings. The teargassed protests at Anniversary Towers, home of the IEBC, are proof that Raila Odinga is not interested in a thinking civil society, if he's interested in a civil society at all and neither is Uhuru Kenyatta, Martha Karua or the rest of them. What they want is a mob that will do their bidding without thinking.

It is why, after the next round of "electoral reforms", that the next elections will be marred by unfairness and, quite likely, great violence and the loser will demand new "reforms" and the incumbent will hold out for four years until he has his electoral ducks in a row. Willy Mutunga, the Chief Justice, calls Kenya a bandit economy. Kenya's politicians haven't proven him a liar yet.

Tuesday, May 10, 2016

Tinga v the IEBC

If you can tell me why the Independent Electoral and Boundaries Commission's leadership is still in office, you have a greater perception of the thing of it than I do. If you can tell me why the IEBC has floated another tender for BVR kits, your powers of perception are god-like.

Kenyan opposition politicians have always had a schizophrenic relationship with the electoral management body of the day. Sometimes, like in 1997, the President bends and "reforms" are agreed upon between the ruling party and the opposition and the elections are contested on a more equal playing field. Sometimes, like in 2007, the President remains unmoved and unyielding and the outcome of the elections is violence, bloodshed and death.

When the Government of Kenya, in the aftermath of the 2007 general elections, turned on the Electoral Commission of Kenya, it signalled the death of sacred cows in Kenya's politics. This was cemented when the President asked for six of his Cabinet Secretaries to step aside from their official duties over corruption allegations and permitted their prosecution in the law courts. It should not be plain to the Commissioners of the IEBC that they are not sacred cows and that if they become a political liability for the ruling coalition, their fate will be decided swiftly and pitilessly and the BVR kits tender will be the reason why they are run over by a political Citi Hoppa.

The Commissioners forget a fundamental rule of the public service: unless you are a politician, it is unwise to declare political fealty to the president. For one, the president has no more than a ten-year mandate. Second, the only people who matter to the president are those who can guarantee the safety and stability of his government or who can guarantee the re-election of his government. That is not always the electoral management body, as the Supreme Court has been accused of being. When the Chairperson of the IEBC swore that intemperate affidavit during the hearing of the petition challenging the election of the president, he made enemies where none existed and now he has become the target of a highly motivated Tinga.

The Commissioners might look to the continued survival of the Cabinet Secretary for the National Treasury and figure that they are safe too. That would be a mistake. The national Treasury is more important than the IEBC and its CS is more important than all constitutional commissions and their commissioners combined. They should instead learn lessons from the removal of the anti-corruption commissioners and the prosecution of Cabinet Secretaries. In fact, the resignation of the first Devolution and Planning Cabinet Secretary should reinforce the sense that sacred cows are a dime-a-dozen these days.

Tinga has time on his hands which he can fill with the devil's mischief or the Lord's work. It all depends on how the IEBC treats him. So far the IEBC has chosen arrogance and highhandedness. Everyone might be living under the illusion that August 2017 is right around the corner and that there is little that the doyen of opposition politics can do. But fifteen months is a very, very long time in politics and, as Ms Waiguru discovered, when Tinga sets his mind to something, he usually gets it done. The IEBC has a choice: accommodate Tinga's demands or resign. If not, the fall will be from very high up and it will be terrible.

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 ...