Thanks for the apology but please resign

Some of the qualities of a good leader have a moral-ethical bent to them: transparency, integrity and accountability. These, believe it or not, are found in Article 10 of the Constitution as part of the values and principles of governance. They apply to everyone who "makes or implements public policy decisions" such as the decision to streamline public finance or the implementation of the Integrated Financial Information System, IFMIS. Vague-sounding the principles may be, but, I believe, they encapsulate what we, the people, wish our government to be, to reflect and to protect.

So, while Nicholas Muraguri may not be the most sensible public officer in government, and his tongue seems to get the better of him every now and then such that he stuffs his foot in his mouth, he seems to have taken lessons from the stupidities of Philip Kinisu who declared that he would not resign when conflicts of interest related to companies he is associated with came to light. He wouldn't resign, he was emphatic, because he had done nothing wrong. Between his I-will-not-resign declaration and his resignation were barely sixty days!

Mr Muraguri was reckless and intemperate and that alone should be cause enough for the President to demand his resignation. (The President won't ask. Regional balance meshuggah, see?) He is, however, an astute student of politics; his apology, inadequate as it was, is a brilliant stroke. He admits that what was reported about his utterances was (largely) true; his integrity may be shit, but he is transparent and has, in effect, asked us to hold him to account and forgive him.

He also hopes that by the time the Auditor-General is done with his ministry, missing documents will have been found and the allegedly mission five billion will have been fully accounted for. I fear he will not be so lucky. The drip-drip-drip of scandalous revelations from the Ministry of Health has been incessant since the day thirty-eight billion shillings was set aside for "medical equipment for the counties," seemingly without consulting the end-users, county governments. This missing five billion is only the latest in a long list of financial queries that the PS has to address. His apology may have come too late to save his ass.

The Ministry of Health is a surprisingly opaque institution; no one really knows what goes on in there other than the occasional mysterious battle to appoint the National Hospital Insurance Fund's, Kenyatta National Hospital's or Moi Teaching and Referral Hospital's CEOs, a succession of lacklustre, grey-faced, colourless, well-connected mandarins with the charisma of chalk and the PR skills of a tub of lard. It takes a minute before one realises that it is its ubiquity that makes it so adept at hiding in plain sight; billions go missing, drugs shipments disappear, doctors and nurses regularly go on strike, epidemics regularly break out and public health policy remains stuck in the colonial era but few of us see it or appreciate the insidious nature of that ministry.

Mr Muraguri, his Cabinet Secretary and the senior-most officials of the ministry in charge of making and implementing policy may have attempted to put the genie of Mr Muraguri's threats back in the bottle, but the djinn of misgovernance is already out there wreaking havoc without mercy. On Mr Muraguri's watch, infant vaccines have vanished, putting millions of children at risk of infection. That alone should be grounds enough for Mr Muraguri to resign if not to be fired outright.

It starts with you

I don't know why it matters, but it matters that you have to be inspired in order to aspire to something great. Greatness is not borne of boredom; it is borne of great inspiration, commitment and focus. In our never-ending war on graft, inspiration, commitment and focus are notable by their absence. It matters a great deal that we are about as inspired as a stop-motion film of paint drying. In the dark.

When the Business Daily reported that an interim report of an audit of the Ministry of Health's 2015/2016 books showed a massive five-billion shillings hole, double-payments, over-invoicing and unaccounted-for expenditures, we were not surprised. When it turned out that one-and-a-half billion shillings, meant for the President's flagship free maternity programme, was also (allegedly) missing from the Ministry's coffers, we were not surprised. When it was reported that when the Principal Secretary was confronted with these allegations, instead of denying them and being done with the story, he had the temerity to threaten the reporter with unwarranted invasions of her privacy, our capacity for shock was exhausted. Dr Willy Mutunga's observation that "we are a bandit economy" no longer stings in the light of the events of the past two days.

 

Public relations can only take you so far; at some point, when they ask you to show them the radiation therapy equipment and operators you promised them, you have to show them. When they ask to see the "10,000 housing units" you have built for police, real brick-and-mortar buildings better be standing. Glossy newspaper pullouts are not, nor have they ever been, public policy. They have never been the genesis of public policy. They never, ever will be. PR can inspire but it can also be abused. At this moment, our relationship with our government can only be termed as an abusive relationship.

 

When the serial loser, Raila Odinga, finally got his ass handed to him by the Supreme Court, most of us just shrugged our shoulders, thanked God almighty of all creation that no dingbats had spontaneously disagreed with the electoral commission or the Supreme Court, and turned to the niggly problem of trying to earn a living in what was no longer Mwai Kibaki's working nation. We were a tech-enabled Digital Nation living in a Digital Era and our children would have the Digital Tools necessary to survive in a hostile and competitive global commercial environment in which everyone with a widget was making out like King Midas. That illusion was swiftly dissipated when it became brutally clear that the Dynamic Duo were neither prepared for the burdens of high office nor that they cared sufficiently for the working stiffs getting blown up in bloody regularity. PR supplanted policy. Speeches supplanted action.

The only ones who are truly loyal are the ones who have nothing to lose yet still stick around, no matter what. It is amazing that in three years the First Lady of Kenya has managed to engender such goodwill from even the hardest of hearts such that she has bought and equipped forty-seven mobile clinics in a bold plan to guarantee that no mothers die at childbirth and and children survive their births. Beyond Zero has been her rallying cry. It has been our cry too, even the cynical among us. And it has been betrayed cynically and cruelly. Even if it turns out that the Auditor-General missed a few receipts here and there and the figure was "just" five hundred million that was missing, one-tenth of the alleged missing five billion, you will have missed the point if you thought that this vindicated her husband's government or his Ministry of Health. What it will have done is to remind every Kenyan alive that this government inspires the worst instincts in its worst state officers, of whom there seems to be an endless supply.

We are not inspired, not by the glitz, glamour, pomp or circumstance of all the world's leaders making a beeline for our sunny shore. Not even the Pope lifted the mood. Matteo Renzi? Ati who? Obama tried, but he lost us the moment his Power Africa Initiative consumed the bulk of the serikali seriousness. Narendra Modi? Meh! We though we were on the same side as the boss when he said he would boldly lead the fight against thieves. Didn't he in fact send his ministers packing for their sins? But when a mere ministry functionary has the temerity to argue that "government will spy on you" for challenging him on his audit, well, the security of public funds starts with you, my friend.

Keep the mic hot, Grace

One day I will die. Hopefully that day is far enough into the future that I shall be able to pinch my great grandchildren in the cheek (while secretly plying them with atrocious candy against their parents' express wishes) and grouse, like my grandmother does, about the utter ruination this country is coming to because of its wayward young people.

Death is the biblical thief in the night, stealing upon you without so much as a by your leave, cutting short a conversation, a feeling, an emotion, a relationship...a life. It spares no one; not the rich or poor, not the famous or infamous, not the mighty or small. It comes for us all and leaves behind confusion, pain, destruction, devastation.

You can't escape it. Like they say on the silver screen comedies, No one comes out alive. We know this to be true, as true as the morning sun and the nighttime moonlight. As true as the four seasons and colours of the rainbow. As true as love. Yet we are never ready for it. It strikes and we are left scrambling to understand Why. It takes and takes and takes; it never, ever gives back.

When it comes, unexpectedly and unwanted, we are left to pick up the pieces, to mend broken hearts, to imagine completed conversations, to rebuild the devastation in our lives, to fill the empty places in our very souls. We picture a place, in our deepest minds, where the Dearly Departed will find peace, even though when they were here, with us, they were at peace, even if it was momentary, though not momentous. We hope, we pray, that if there is a Better Place, they have found it and it is awesome. (I love to think that they all become petrolheads and that they spend the day racing Ferrari F355s, AC Cobra 427s, De Tomaso Panteras, Aston-Martins DB7 GTs, Holden Monaro GT-Rs and Mercedes-Benz E55 AMGs, but then that's the one-day-I-will-have-a-V8-of-my-own hopeful in me.)

I only ever met Grace Makosewe the one time. She was with Cess Mutungi and they had come to my local before it became my local . (Yes, the Porterhouse is, for all intents and purposes, my local.) They laughed a lot that night. They listened a lot too. Even to me though all I could think to say was that the Kambas can be found as far afield as Mozambique and the Seychelles. I never got to know her but I believe the generous woman who listened to the boring drunk in the corner spout rubbish about mercantile communities remained generous till the end.

I hope that wherever she is, Grace Makosewe has a mic in front of her making her new world as much a better place as she made ours here on Earth.

Green peace of mind

If you are the typical Nairobian, and if you are truly lucky, Nairobi is where you stay and work, but upcountry, shags, is where you truly come alive. Before I became a more or less permanent resident of the Green City in the Sun, I had been to New Delhi, Kolhapur, Accra, Sydney and Perth. I had also passed through Machakos. (Though, four years of schooling at Boys' doesn't seem much like "passing through," does it?) Today, I live and work in Nairobi, but in the fullness of time, when the public service deems my services no longer necessary and gives me a pension to toddle off, I shall settle in the land of my ancestors, God's Own Country, Makueni, on ten acres that will be my final, true home.

When Nairobi was the Green City in the Sun, no neighbourhood was bereft of green spaces; you didn't have to schlep to Uhuru Park or City Park to find trees. My 'hood, Buru Buru, had hundreds of fruit trees. The black plums in our court, Lacet Court, grew on trees that were (probably) twenty feet tall and as children, we spent a considerable portion of our school holidays climbing trees in search of zambarau. There were those courts that had mango trees, orange trees, passion fruit shrubs...all manner of greenery defined our childhoods. Today, Nairobi is mostly the City in the Sun, its green credentials slowly being erased by incessant "real estate development" and hideous billboards advertising odious products that do little to enrich our lives. (Only the Sportpesa and Betway promoters makes any real money.)

I've followed the #JacarandaPropaganda Twitter campaign with interest. It recalls a time when I was a child when my father and his neighbours joined hands to plant more trees in our hood. Those trees that they planted still stand to this day, offering shade in an increasingly sunny-as-hell Nairobi. I will be sad when that day comes and the last of the green spaces that we have taken for granted for so long are erased like so much has been erased that defined Nairobi.

Green spaces are more than the aesthetics or the environmental benefits they provide; green spaces are the civic spaces that becalm roiled emotions, that are accomplices to romantic assignations, that are the promise to future generations that it is not always about money. Green spaces are a signal that it is alright for children to come home with ripped jeans' knees and bright smiles of athletic accomplishment. (Tree-climbing is both an activity and an art form, good people.) Green spaces are a reminder that our lives are not defined by four walls and a computer monitor or spread sheets and bank balances. Green spaces are the souls that we are afraid we have lost to the all-consuming rat race. When they are gone, our souls will die a little and our days will be grimmer, harder, harsher, unforgiving and dark.

As Sunny Bindra says,

Trees and elephants and rivers and oceans and lakes are not ours to exploit. They are the gifts of divinity. They are what give meaning to human life. No monetary gain will help you when you look upon a barren ruin. Nature is our mother, and we must honour and protect her and let no one besmirch her beauty.

One day your rat race will end, your bank balance will return to zero, your computer monitor will go out for the last time, and your four-walled routine will cease. Don't let your retirement be an attempt to recreate these things; let it be filled with the peace and serenity that only nature can provide. (Just remember to keep as far away from leopards and hyenas; they don't play like that.)

Gayism and the Deputy Chief Justice

I don't know any gay people. (I don't know any openly gay people; I think I know a few closeted gay people.) I don't think it would matter if I knew a person were gay. It doesn't seem to matter that I know a person is straight. Yet the candidate for the office of Deputy Chief Justice and Deputy President of the Supreme Court is quoted as saying that she would need to know whether gayism was a matter of choice or it was in-born to deal with gayism. ("Gayism", as Senor Google reminds us, is homosexuality, the sexual orientation in which a person is romantically or sexually attracted to people of their own gender.)

(Gayism — homosexuality — is criminalised under the Penal Code of the laws of Kenya at sections 162 that declares "acts against the order of nature" to be felonies, 163 that criminalises attempts to commit acts against the order of nature and 165 that criminalises "indecent acts between males". The law on "gayism", as it were, is plain and requires no judicial inquiry as to whether the commission of the offence was innate or because of an act of free will. Whether consensual sexual acts should be criminalised in the first place remains a question that Kenya is unprepared to answer in full.)

In my relations and acquaintances, I struggle to identify instances where they are only coloured by whether or not those I encounter are sexual beings and if they are, what kinds of sexual beings they are. My relationship with my parents, siblings, cousins, nephews, grandparents, uncles or aunts is not a sexual one and I would be mortified to even entertain the question of whether or not they have sex and whom they are sexually attracted to. If you're as normal (and prudish) as I am, these are questions that should make you blush, dark skin that you are. Blush and blush mightily!

Of those I am acquainted with, of course there are those I have felt the frisson of excitement, the slight drop as if you're floating in zero-g, that rush you get when you think, How hot you are. It doesn't matter whether you're gay or straight, when you meet a person to whom you're instinctively and instantly attracted, the supercomputer that is your brain engages in a fantasy of how it would feel to kiss that person, take them to bed, hold them to your body. If you're normal, once more, your mind will swiftly discard these fantasies if it is not in your best interests to entertain them. Unless you're Donald J Trump, you're unlikely to continue fantasising about taking your boss to bed, co-workers, your significant other's siblings, parents, relatives, children or the like. Unless you have been raised to be guided only by your needs, to eschew all moral standards to which your community ascribes, that part of your brain that's sexually aroused will be overwhelmed by good judgment and, in some cases, shame.

Most of us interact withe each other on the basis of shared values, both professional and moral, and we apply these standards against each other without worrying too much as to whether they are innate or learned. If we knew someone who was a professional in all their undertakings, told the truth as much as we think we did, didn't cheat clients out of their money, brought the highest degree of professionalism to their assignments, was kind to children, the elderly and animals, would we really care if they were gay? I know I wouldn't. (I don't really know what I would do if a gay man hit on me. I don't really know if I would know that I was being hit on by a gay man. But if a gay man stole from me, lied to me about something other than his sexual orientation, or acted unprofessionally in an assignment, that I would mind. I would mind that quite mightily.)

As a judge, Philomena Mwilu has no choice but to determine a criminal accusation based on the provisions of the law, in this case the Penal Code. If an accused person advances a persuasive argument that sections 162, 163 and 165 of the Penal Code are unconstitutional, she wouldn't need to inquire as to whether the accused was born gay or chose to go gay. If it is true that she wishes to apply this criterion to the determination of criminal complaints — that is, whether or not a person was born to commit an offence or whether a person chose to commit an offence — then troubling questions about her judicial reasoning are raised and even more troubling questions about the capacity of the Judicial Service Commission to properly vet the suitability of applicants to the highest judicial offices in Kenya. 

The constitutionality of a law isn't based on the congenital characteristics of those who the law will regulate, administer or punish. The constitutionality of the law is, in this case, entirely about whether it safeguards the rights of the individual against the whim and caprice of the State. That Mwilu, J, seems to have forgotten this worries me. Mightily.

Two events, one thread

Two events this past week give me pause. The President stated that in the war on graft, he has done his part but that he has been failed by the police, the anti-corruption commission, the Attorney-General, the public prosecutor and the courts. Some members of his party, including an aspiring candidate for the office of member of the National Assembly, have decided to echo the president by declaring that it is indeed the courts that are responsible for the escalation in corruption, especially the corruption of the grand type.

The other even was the personal, harrowing description of an attempted robbery of a female commuter in a fourteen-seater matatu. She describes how a gang, operating with impunity and in cahoots with matatu crews, target female commuters using menaces, bladed weapons and drugs to rob them of their valuables in broad daylight and the sometimes seen-it-all attitude of some policemen when the offence is reported. Many have come out in her support while others have blamed her for being so obvious with her phone or her wallet. Both events highlight the same problems we have been trying to grapple with since the halcyon days of Yote yawezekana bila Moi: corruption and the impunity it has imbued on all Kenyans, not just the ones with the capacity to steal billions from public coffers.

The anti-corruption war should be fought on all fronts. Institutionally, we have the anti-corruption commission, the police, the DPP, the A-G, the Auditor-General and Parliament. The courts, never mind what the President and his boosters allege, is not part of that war. The judiciary's job, as it is in every other jurisdiction save maybe theocracies and dictatorships, is to weigh the evidence presented before it, examine the constitution and the relevant statutes, and render a verdict. The judiciary doesn't investigate crimes, sit doesn't arrest offenders and after passing sentence, it has nothing to do with the punishment of offenders. It could be corrupted; after all, it is made up of men and women and when its members become corrupt, they must be subjected too, to the same due process of the law: accusation, investigation, prosecution and conviction.

The corrupt act with impunity because they know that ever stage of the process has been corrupted or is seeded with corrupt actors. The same is true of criminal gangs robbing commuters in broad daylight. Few of them are afraid of being caught; they have the support of matatu crews and the apathy of bystanders unwilling to get involved. The one thing that connects the two events is the apathy of the people. So many promises have been broken and our trust has been so taken for granted that we are no longer interested in sticking our necks out for a good cause.

Otherwise sensible Kenyans have even taken their nihilism to extreme ends. One even once argued that corruption could actually be a force for good! It seems that the only currency that matters in Kenya today is great political power backed by billions of shillings in wealth. The common good is what the politician says it is and not whether or not it has the consent of the governed. Frequently what the politician calls the common good serves only the politician. It is why police resources are overwhelmingly deployed to protect the politician and not the people. It is how the politician will not speak about the necessity for a safe public transport sector; only of the employment that it guarantees his constituents.

All about process

The court is the last stage before a person, accused of an offence, is convicted and sentenced — or acquitted and set at liberty. The process begins when a person is accused of having committed an offence as defined by an Act of Parliament. Yesterday key actors in the war on corruption presented themselves at State House, Nairobi, and spent the hours between 7 a.m. and the lunchtime news broadcast at 1 p.m. passing the buck like it was a hot potato in their hands.

The chief executive of the Ethics and Anti-corruption Commission said that it doesn't prosecute or jail corruption suspects; the Director of Public Prosecutions said that he could only approach the courts if the evidence and witnesses were provided by the police; the Director of Criminal Investigations said that the police mostly receive allegations that cannot stand in court and that the police do their part while others don't; and the Attorney-General hilariously blamed the judiciary for stalling cases through "dubious" injunctions.

The process always begins with an accusation or allegation. It can be made to the police, the Ethics and Anti-corruption Commission, the Office of the Director of Public Prosecutions or the Office of the Attorney-General. The accusation must always be founded on a keen reading of the relevant provision of the law. In any case, it is the police that shall investigate, gather evidence, interview witnesses and present its report to the Director of Public Prosecutions.

The DPP will review the case file. If the DPP believes that an offence has been committed and that the evidence and witness statements support that belief, the DPP will approach the courts and charge the suspected offender with the offence. The police investigation and the DPP's review of the case file are the cornerstones of the process of trying corruption offences. If the investigation is flawed or if the DPP's review is defective, the trail may only lead to one outcome: the acquittal of the accused.

Contrary to what the A-G believes, injunctions are not an inconvenience that can be wished away simply because they appear to be of dubious character; they are provided for in the law. It is not for the accused to give an inch when accused of an offence; it is for the DPP and the police to mount the most robust case and to challenge every application for an injunction with clarity and vigour.  That they have proven incapable or unwilling to do their part in corruption case after corruption case is not the fault of magistrates or judges. Unless the A-G can show that the injunctions granted by the courts had no foundation in the law, the declaration that they are "dubious" raises questions of its own about the role of the A-G in these fraught prosecutions.

The courts will issues injunctions and preside over trials based n the provisions of law and evidence adduced. Lazy judges or magistrates who allow their faith in Jesus or their cultural values to interfere with the proper interpretation of the law or assessment of evidence should be shown the door; they can teach penmanship or grammar some place other than on the Bench. There is a reason why the doctrine of separation of powers is gaining currency in Kenya; no one wants a repeat of the Moi era where the courts and the A-G were the president's lackeys and the rule of law was a cute legal doctrine law students were taught to forget as soon as they were called to the Bar. The A-G can criticise genuinely unwarranted injunctions but the only way he can prevail before judges or magistrates is by presenting a better case. Can he? Can the DPP? Will the police ever? You guess is as good as mine.

Welcome, Chief Justice.

David Maraga has been sworn in as the Chief Justice and Supreme Court has a new president. At the ceremony, the President urged the new Chief Justice to forge better relationships between the judiciary and the other arms of government while the fourteenth head of Kenya's judiciary promises to deal with election petitions swiftly, surely and fairly. Plus ça change, plus c'est la même chose.

One of the things that the thirteenth Chief Justice admitted to have failed to conquer was corruption, including in his Supreme Court. When he described Kenya as a bandit economy, he didn't do so in the context of a judiciary that was white as the driven snow. He made the declaration before the Philip Tunoi affidavit became public knowledge, as the Judicial Service Commission worked to confirm the veracity of the affidavit and the charges it laid at the feet of the new-retired Supreme Court judge. Dr Mutunga knew that corruption had hobbled the judiciary and had helped perpetuate the banditry that defined all arms of government.

Chief Justice Maraga's swearing in took place one day after a "governance and accountability" service that took place at State House at which the President scoffed at the efforts of the Auditor-General regarding the 2014 Eurobond. The President reminded the attendees of the summit that he has not failed at stopping corruption in his government; it is the people he had invited to the summit who had failed, when they protected and supported the corrupt. Chief Justice Maraga inherits Dr Mutunga's corrupted judiciary, perhaps a corrupted Supreme Court, and he is urged to forge better relationships by the Head of Government who admits no defeat in the war on corruption. (It almost goes without saying that Parliament and county assemblies cannot be trusted to be corruption-free zones.)

Yet, I care not for the corruption of the judiciary or any other arm of government. Kenya has been at this dance for too long. Life is short, so I shall focus on the judicial things that matter to me. Chief Justice Maraga is not a child, thank God, and he is unlikely to act as one. During his interviews, on hindsight, he conducted himself with a certain calm dignity that I found impressive. He was unflappable and didn't seem to take to heart the needling by some members of the Commission, unlike at least one other interviewee who ended up in a spitting match with a colleague of his on the Supreme Court. Chief Justice Maraga, on the face of it, is the calm the judiciary needs in increasingly roiled waters.

What some commentators have projected on him is interesting too. Dr Mutunga brought with him a non-traditional approach to public relations. He attempted to lead in the demystification of the judiciary which he signalled with the green robes and a casual approach to robing for advocates appearing before the Supreme Court. (Something I supported; horsehair wigs and advocates robes are not the measure of professionalism in a fast-paced, digital world.) Chief Justice Maraga may reverse the changes initiated by Dr Mutunga but I hope he does not. Instead he should deepen the relationship between the judiciary and court users, especially civilian members of the public. It is the only way that he can expect the support of the public for some unpopular decisions which he will inevitably have to make.

I hope he does forge better relations with the other arms of government, especially the national Executive. But he must be careful that this relationship is not an unhealthy one in which the whims and caprices of the national Executive compromise whatever vestiges of justice and fairness that still prevail in the judiciary. Finally, the new Chief Justice must be careful not to focus on colonial traditions at the expense of justice for the people. Wigs and robes are all well and good but they are not the sum or substance of the administration of justice. That remains, as it always has, a factor of the proper interpretation of the law and its fair application no matter the standing of the litigants before the courts. Sir, don't miss the forest for the trees.

Criminals and outlaws

Under ordinary circumstances, bending the rules or breaking the law is the exception and not the rule. If you're driving down a one-way street, it is not normal to make a three-point turn into oncoming traffic. If certain steps must be completed before a public tender is awarded, it is not normal for the giver of the tender to skip any or all the steps before awarding the tender. If one is disposing of rubbish, it is not normal to dispose of the rubbish outside the bin or into a water body. In Kenya, these are not ordinary circumstance; bending the rules and breaking the law are not exceptional acts but habitual ones.

The best depiction of the normalisation of the abnormal in Kenya is by the matatu industry. Public transport is rarely the most profitable venture in Kenya. It directly and indirectly employs hundreds of thousands of Kenyans — crews, touts, mechanics, petrol station service providers, spare parts suppliers, bankers, lawyers, insurers and accountants. Matatus account for billions of shillings in investment, credit creation and value creation. These billions have turned the industry into an ecosystem. (In an ecosystem, there are predators, prey and scavengers.)

Once upon a time, the City Council of Nairobi operated the Kenya Bus Service, KBS. It is the KBS that had a monopoly of certain parts of the Nairobi Business District, especially the Central Bus Station off of Tom Mboya Street, the Ambassadeur Bus Stage along Moi Avenue and the KENCOM Bus Stage along City Hall Way. It operated other termini at Pumwani, Kangemi, Kawangware, Umoja and Dandora. It didn't enjoy a monopoly on public transport, but it had the best real estate in order to operate effectively.

Matatus, on the other hand, were confined to that zone known as "Commercial", bordered by Tom Mboya Street, Ronald Ngala Street, Ring Road, Kirinyaga Road and Murang'a Road. While the KBS operated a large fleet of scheduled, standard-sized buses that followed numbered routes, matatu owners tended to own one or two minibuses of varying designs and sizes that followed no schedule (and sometimes no set routes). "Commercial" was where you boarded your matatu if you cared little for the stodginess of the KBS, wanted to alight at non-designated places, enjoyed sub-woofer amplified dancehall, and didn't care if the matatu was overloaded or speeding. 

The Government of Kenya mirrored the public transport sector; some civil servants were the stodgy, play-by-the-rules KBS while others were the flashy and flamboyant matatu scofflaws, and this was starkly reflected in public institutions as well. And just as with the demise of the KBS and the takeover of the transport sector by the matatus, so too have the scofflaws captured the institutions of government, academia, the business sector and the civil society (including faith communities). The matatu culture pervades every part of our civic lives. It is almost expected of one to bend the rules or break the law because it is almost expected that little will be done about it. The offenders we punish the harshest are the ones least likely to affect the legitimacy of the Government we have; the offenders likely to receive the protection of the State and the adulation of the people are the ones who have turned our Government into a mirror of the matatu industry.

Chicken thieves, purse snatchers, burglars, armed robbers and murderers are quite often criminals. The corrupt in the highest echelons of the Government are almost always outlaws. You need to know the difference between criminals and outlaws if you are to understand the matatu-ness at the heart of our Government.

Just enforce the law

Three years ago, I advised you that to win the war on graft was simple in theory but hairy in practice. I advised you to simply enforce the laws we have on the books. I warned you that if you made Uhuru Kenyatta, President and Commander-in-Chief of the Defence Forces of Kenya, the anti-corruption warrior-in-chief, then the war against graft would be lost before the first shot was fired. I almost thought that I was wrong in the wake of the President's anti-corruption list of shame which he presented at the 2015 State of the Nation Address to a Joint Sitting of Parliament. As the State House Summit on Governance winds to a close, I offer my advice afresh: simply enforce the law that you have on the books.

Anti-corruption, in theory, can be tackled through the Anti-corruption and Economic Crimes Act, the Public Audit Act, the Public Procurement and Asset Disposal Act, the Leadership and Integrity Act, the Ethics and Anti-corruption Act, the Public Service Commission Act, the Commission on Administrative Justice Act and the Penal Code, the National Police Service Act and the Independent Policing Oversight Authority Act as well as the Banking Act, the Capital Markets Authority Act, the Income Tax Act and the Tax Procedures Act. The anti-corruption challenges we face have little to do with the legislative or institutional framework and everything to do with the enforcement or administration of the laws we have on our books — and the men and women we have entrusted with the authority to administer or enforce the law.

Corruption remains one of the principal reasons why the legitimacy of the government is in doubt. Whenever agents of the Executive are caught up in corrupt acts, grand and small, the exhortations of the Head of Government are taken as the "wink, wink" of an insider covering his butt by saying what the people want to hear. When judicial officers preside over the "disappearance" of files, which reappear at the production of a facilitation fee, the Chief Justice's declaration that Kenya is a bandit economy ring just a little bit hollow. When parliamentarians establish private companies in order to "win tenders" overseen by members of the Executive whom the parliamentarians are supposed to hold to account, the enquiries televised from parliamentary committees' chambers expose the lie that the people's representatives have the people's fiscal interests at heart.

A State House summit on governance will not address the legitimacy deficit. It has been three-and-a-half years since we elected the President and he formed his government. In three years one of the most profound revelations, for which little comment has been made, is that of multi-millionaire policemen for whom even the rudiments of legitimate paper trails escape them. We have witnessed the conflicts of interest among members of the Cabinet caught up in billion-shillings tenders-gone-awry. Judges have been accused of shamelessly soliciting bribes for favourable decisions. No arm of government has been spared and the higher the ranks one goes, the more putrid the stench from all the "eating" going on.

State House can address the deficit in its legitimacy by protecting those entrusted to administer or enforce the law from political interference — which has proven to be quite resilient. If a person wins their public office partly because the appointment is a calculated political or ethnic reward, the merits of the appointee's qualifications will not matter and their acts of omission and commission will almost always betray motivations other than the law. The law enforcement apparatus of this nation is riddled with cases of high appointments whose main justifications were political and ethnic balancing. These are not appointees who have the will to do their duty without fear or favour. These are appointees who are politically protected — not because of their good work but because of the political fallout if they are not. Unless that calculus changes, summits and parliamentary addresses are all that the President will have to show for his fight against corruption. No more.