Monday, October 16, 2017

On temporary incumbency

134. Exercise of presidential powers during temporary incumbency.
(1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President...(a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office...may not exercise the powers of the President specified in clause (2).
140. Questions as to validity of presidential election.
(3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.
This is where my laissez-faire attitude towards grammar and comprehension that comes to bite me in my backside. The 1st September invalidation of the 8th August presidential election have given rise to the a simple question with profound implications: is Uhuru Kenyatta bound by the provisions of Article 134 on the exercise of presidential powers during temporary incumbency?

It all depends on how you interpret the judgment of the Supreme Court on the 1st September. The Supreme Court was called to determine whether or not the presidential election was valid. It found that the election of the president-elect was invalid. The key expression in Article 140 (3) for our purpose is "president-elect". Taken together with the words in Article 134 (1) (a), "during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office", Uhuru Kenyatta is bound by the provisions of Article 134 because, notwithstanding that his election was invalidated, the period described in 134 (1) (a) is not yet spent.

The date of the first vote in a presidential election was the 8th August. A newly elected president has not yet assumed office. What the Supreme Court ordered, in the language of Article 140 (3), is not a presidential election but a fresh election for the office of the president. Until Uhuru Kenyatta is successfully elected on the 26th October, and a petition under Article 140 is defeated, he remains a temporary incumbent in the office of the president and is bound by the provisions of Article 134.

Friday, October 13, 2017

To the wilderness or not?

On elections, this is the hierarchy of laws: the Constitution, the Elections Act, 2011, the Election (General) Regulations, 2012, IEBC guidelines and the like. Some of you already know that one other source of law is known as common law, the body of decisions by the highest court on relevant matters. What many of you might not understand or appreciate, is that common law is only applicable when the Constitution, Acts of Parliament and subsidiary legislation (including guidelines, etc.) have failed to address a matter that is in controversy. Common law is the interpretation of the law as well as the circumstances necessitating that interpretation that seeks to resolve a matter for which the written law is silent, ambiguous or contradictory. Common law, just like all other sources of law, is not infallible and is to be relied on only as a last resort.

We have the benefit of two Supreme Court judgments filed by the same petitioner against the same respondents in two separate presidential elections. Both judgments form part of the common law on presidential elections in Kenya. Both judgments lay down what can and can't be done in relation to specific provisions of the Constitution and the electoral law of Kenya. Both judgments are flawed and have done little to resolve the political or administrative problems that necessitated the presidential election petitions in the first place. If for nothing else, we must thank the Supreme Court for familiarising us with Articles 138 and 140 of the Constitution, section 13 of the Elections Act, 2011 and regulation 52 of the Elections (General) Regulations, 2012.

Article 138, over which much has been said, relates to the procedure at a presidential election. It guided the presidential election on the 8th August. From the moment the presidential candidates filed their nomination papers with the IEBC to the the 11th August when the Chairperson of the Commission declared Uhuru Kenyatta duly elected as the President of Kenya, Article 138 held sway. Article 140, on the other hand, was invoked by Raila Odinga in his petition challenging the declaration of Uhuru Kenyatta as President of Kenya and the Supreme Court invoked its powers under clause (3) to invalidate the election and order a fresh election within 60 days. The judgment of the Supreme Court now forms part of the common law of Kenya on presidential election petitions and presidential elections. And it is a mess.

The 2013 judgment, at paragraph 290, obiter dictum or not, refers to the abandonment of a presidential campaign by a candidate under Article 138(8)(b). This is what it says,
[290] Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (8) (b) would become applicable, with fresh nominations ensuing.
The problem is not what the Supreme Court said but what Article 138 (8) (b) actually provides for. It states,
(8) A presidential election shall be cancelled and a new election held if—
(b) a candidate for election as President or Deputy President dies on or before the scheduled election date...
There are two important things to note about Article 138 (8). The first is that it deals with the cancellation of an election, not its invalidation. The second is that clause (8) (b) deals with cancellation on account of the death of a candidate, not  his abandonment of the electoral quest. A cancellation of the presidential election is a power than can only be exercised by the IEBC, not the Supreme Court whose power is exercised only under Article 140 (3) when it declares a presidential election as invalid. The 2013 judgment is badly written and it makes for bad common law. Its paragraph 290 must be revised. The Supreme Court must also set out what it means for a presidential candidate to abandon the electoral quest after a presidential election has been invalidated under Article 140 (3) and whether it would serve as sufficient ground for the Commission to cancel the election and set a new date under Article 130 (9), which has the same 60-day time-frame as under Article 140 (3).

You will notice that I have not examined the Elections Act, 2011 or the Elections (General) Regulations, 2012. This is because they cannot provide for what was not provided for in the Constitution, namely the effect of the withdrawal of a presidential candidate from a fresh election that was necessitated by the invalidation of a presidential election. Regulation 52 of the regulations that has been much-quoted on social media is not applicable in any way; it only provides for withdrawal of a candidate within three days of filing his or her nomination papers with the Commission. Because of the 2013 judgment at paragraph 294, there is no need for fresh nominations in the case of a fresh election which has been necessitated by the invalidation of a presidential election under Article 140 (3).

In theory, the hierarchy of laws and the place of common law in that hierarchy is supposed, as far as possible, to address niggly issues like those raised by the invalidation of a presidential election and the withdrawal of a candidate from the fresh election, as has been threatened by Raila Odinga. In our case, we are nowhere near finding a solution that is both practical and respects the provisions of the Constitution. Our constitutional, statutory and jurisprudential architecture is deeply flawed. In the extant case, the only logical solution is political: both parties, Messrs Kenyatta and Odinga, must negotiate a settlement that permits both to participate in the fresh election and sets down a road map for the amendment and clarification of the constitutional, statutory and regulatory provisions of the electoral law of Kenya. If they fail or refuse to defuse this time bomb, they will both be responsible for setting Kenya down a constitutional wilderness for which solutions may never be found.

Thursday, October 12, 2017

Handy scapegoats

Is there a profession more reviled than that to which I have devoted my adult life? Not really, going by all the Nazi Germany allusions that are increasingly being made in these days of perpetual anti-IEBC demonstrations. Some of the people responsible for fanning animus against the Kenyan Bar are members of professions that have not covered themselves in glory, most notably the members of Kenya's Fourth Estate. You get the impression that members of the Law Society, whether or not they are of good standing, have colluded to foment as much civil, political and constitutional unrest with the unholy and ulterior motive of converting the Republic into a nation run by, for and of lawyers, jurists and similar odious specimens. It is a comfort to know who your enemy is, to put a face to it, and to wage against it. But what if the enemy you're afraid to confront is yourself? How do you fight yourself?

Tuesday, October 10, 2017

The Supreme Court is wrong

[290] Suppose, however, that the candidates, or a candidate who took part in the original election, dies or abandons the electoral quest before the scheduled date: then the provisions of Article 138 (1) (b) would become applicable, with fresh nominations ensuing. -- The Supreme Court of Kenya, Presidential Petition (2013)
If you are a keen reader of the Constitution, then you are aware that Article 138 does not have a clause (1) (b). The error by the Supreme Court is important because it affects the outcome of the upcoming fresh presidential election, scheduled for the 26th October if Raila Odinga makes good on his threat to "not participate in the fresh election".

It seems that the Supreme Court made up its own provision in Article 138 and then proceeded to hang the "fresh nominations" hat on its interpretation of what the fictitious provision meant. Article 138 deals with the procedure at a presidential election: from qualification to the declaration of results. It doesn't deal with invalidation, the subject of Article 140 (3); instead, it describes the circumstances surrounding a cancelled election at clause (8). Suffice to say, cancellation and invalidation are not the same nor do they operate in the same constitutional process.

Fresh nominations are contemplated in the context of a cancelled presidential election under 138 (8). They are not contemplated in Article 140 (3) where a presidential election has been invalidated by the Supreme Court. The Elections Act, 2011, at section 13, is of no help; it doesn't contemplate the effect of a resignation by a duly nominated presidential candidate after submission of nomination papers to the electoral commission.

As it is, the Supreme Court declares that the parties to the petition that invalidates a presidential election, where the petitioner was a candidate in the invalidated election, shall be the ones to stand in the fresh presidential election. Where the successful petitioner was not a candidate, then all candidates who were on the ballot in the invalidated election shall stand in the fresh elections. Their status immediately after the invalidation of the election is, going by the Supreme Court, that of nominees whose nomination papers have been accepted by the Commission.

A wrinkle now appears. Neither the Constitution nor the Elections Act provide for the withdrawal of a nominated candidate from the presidential election, fresh or otherwise. Even if Mr Odinga's refusal to participate, whatever that is, is taken to mean that he has withdrawn from or abandoned the presidential election, neither the Constitution nor the Elections Act recognises that act. It seems that whether he participates or not, an election must be held within the 60 days' constitutional threshold and Mr Odinga's name will be on the ballot, whether he participates in the election or not.

The Supreme Court corrected the error found in paragraph 290 of its 2013 Judgment; paragraph 290 was an interpretation of Article 138 (8) (b), which states,
(8) A presidential election shall be cancelled and a new election held if...a candidate for election as President or Deputy President dies on or before the scheduled election date...
Article 138 (8) deals with a cancelled election, not an invalidated one; and even if one were to allow that it 138 (8) could deal with an invalidated election, the only circumstance contemplated in clause (8) (b) is the death of a candidate, not the abandonment of the election by that candidate. The Supreme Court's interpretation of Article 138 (8) (b) is wrong.

Tuesday, October 03, 2017

I need a nap

What our country needs is a benevolent dictator with a clear mission of making Kenya great. He should appoint judges, order hanging of the corrupt and oversee a clean-up of our systems. -- Ndindi Nyoro (Kiharu, Jubilee Party of Kenya)
A key phrase in the oath or affirmation of a member of parliament, to which Mr Nyoro would have subscribed when he was elected as a member of the National Assembly, states,
...that I will obey, respect, uphold, preserve, protect and defend this Constitution of the Republic of Kenya...
The Constitution, which he has sworn or undertaken to obey, respect, uphold, preserve, protect and defend, states in the preamble that the people of Kenya recognise "the aspirations of all Kenyans for a government based on the essential values of human rights, equality, freedom, democracy, social justice ad the rule of law", which may be incongruous with Mr Nyoro's vision of a benevolent dictator who will "order the hanging of the corrupt".

The Constitution also states that "any attempt to establish a government otherwise than in compliance with this Constitution is unlawful, which may not jive too well with Mr Nyoro's fantasies of benevolence from a dictator who "must be given a free hand to make things right on our behalf", completely ignoring the provisions of Article 10 on the values and principles of national governance, of which the rule of law, democracy and participation of the people are very hard to miss.

Mr Nyoro is an apt example of the shocking discovery that very smart people can be incredibly stupid, their stupidity having nothing to do with their successes in academia or business or politics, or all three as is the case with Mr Nyoro. Stupid people are capable of great academic, professional and political success, as has been shown by Boris Johnson, the UK foreign affairs minister and Dr Ben Carson, the US secretary of housing and urban development. These two have taken stupidity to heights never seen before. Mr Nyoro is about to surpass them.

As with those who have recently discovered the virtues of being ruled by a dictator, their motivation for this craving for an iron rod and an iron fist stem from the desire for great material wealth and overt signs of "development" -- superhighways, megadams, speedy railways -- the so-called "real deliverables" against which all benevolent dictators measure themselves. Democratic markers such as social justice, human rights, freedom of choice and freedom of speech are "expensive and clearly not working" as is plain to see. Many parliamentarians from the Jubilation have discovered that they want and need to be ruled by an iron-fisted iron-rod-wielding dictator who will check his worst impulses and instincts through the application of benevolence in pursuit of the national goal of "development".

These parliamentarians have forgotten the core of the message in the oath they swore when they were elected to Parliament. They have betrayed their oaths to obey, respect, uphold, preserve, protect and defend the Constitution. And all because they don't like the way the Opposition has used the Bill of Rights to advance its agenda. In the Jubilation's horrified gaze, "opposition leaders can misuse freedoms and make pronouncements that are likely to cause ruin and chaos is proof that we are disorderly." They fervently would like to get rid of the Opposition leaders. But that would cause even greater chaos and ruin. So, they want their beloved benevolent dictator as a counter-power center. Sometimes this level of stupidity is so overwhelming to contemplate that I need a nap afterwards. I need a nap.

It's the corruption, Sir.

We have no choice than to think, work and produce like other global citizens. We need more of Safaricom and The Java Coffee Houses. Companies that understand that they are playing at the global stage and benchmark with the best. The one man-heroics will be history. What a price to pay for state nurtured mediocrity! -- Jua kali, the weed killing Kenyan formal economy
In Kamukunji, in that zone bordered by Landhies Road, Kamukunji Road, NACICO Plaza, Kamukuni Secondary School, the Nairobi River and Lamu Road, you will find jua kali manufacturers of metal boxes beloved of all Form One students on their way to boarding school, chicken feeders, roof gutters, wheelbarrows, two-wheel trolleys, window frames, doors, shovels, chips fryers, nyama choma grills and dozens of other manufactures. The cacophony in this zone is sometimes overwhelming, the dust incessant. In this zone are employed hundreds, directly and indirectly, as manufacturers, salesmen, food and beverage vendors, transporters and medical practitioners. This zone has remained virtually unchanged for nigh on forty years.

Business and Government have a symbiotic relationship; neither can exist effectively without the other. In both are constituencies of special interest groups, determined to maximise returns, sometimes at the cost of the overall system. In Government are to be found men and women willing to relax the rules for an unlawful fee. This is known as rent-seeking. In business are to be found men and women willing to pay this fee in order to skirt around rule and regulations so that they can maximise returns on investment. It is simply not true that the jua kali sector is single-handedly responsible for keeping Kenya back; the active participation of public officers cannot be gainsaid. If Government had not relaxed the public transport rules that applied against the Kenya Bus Service, matatu culture may not have gripped every segment of the economy like it has today.

The secret sauce to the disfunction is, of course, political corruption. The Kenyan administrative state did what all administrative states usually do: it thrived by expanding the areas of commercial activity that required licenses and permits by publishing ever more rules and regulations, both at national and municipal level. With this growth in regulation there was a corresponding growth in the power of bureaucrats -- the erstwhile administrative officers of the administrative state. And this power was exercised in many ways, the worst being the power to "look away" for a fee whenever a businessman wanted to skirt around the rules and regulations. When the Kenyatta government asked the city council of Nairobi to "allow" matatus to operate in the city, this was an example of the administrative state allowing the relaxation of established standards for political benefit. When the Ndegwa Commission recommended that civil servants could engage in business or own property, this was the beginning of the end of the administrative state and its takeover by the political classes. From then on, politicians in need of campaign war chests used and abused their administrative powers, further entrenching matatu culture in commercial activity.

By all accounts, Kamukunji's jua kali manufacturers could have grown into formidable large-scale manufacturers if the rule and regulations in the sector were applied fairly and consistently. It is a truism in life that the longer you do something, the better you get at it, and the higher the quality of your product. Some of the industrial designs by manufacturers in Kamukunji have taken years to perfect, whether it is in manufacturing systems of final products. But because of the collapse in the values and principles of national governance that have led to the disfunction in the fair application of rule and regulations, even if a jua kali manufacturer managed to register his or her designs with the Kenya Industrial Property Institute or obtain trademark recognition, he or she is not guaranteed protection either by the administrative or political officials in Government, or a fair hearing and a just outcome in courts of law. And without protected intellectual property to his or her name, he or she is unable to access credit or finance from commercial lenders and thus business growth will eventually hit a plateau from which it will not surpass, especially when his or her industrial designs are copied and applied by other jua kali manufacturers. This cycle has become a permanent feature of the jua kali business environment.

Two examples of the unfair environment in the business sector will suffice. In 2008, Safaricom was sued in relation to an upgrade to its MPesa platform. If Safaricom had not been the colossal financial behemoth it was even then, the challenge may very well have succeeded. But the intellectual property at the heart of the suit was not registered and was most likely unprotected. Another example is the protection from competition sought by a powerful middle east company that holds the rights to Carrefour in Kenya. Majid Al Futtaim Retail has the cash to fight this battle while most of the small-scale retailers it has in its sights will give up if they want to stave off insolvency. Now while the man accusing Safaricom of stealing his intellectual property and the Two Rivers Mall's small-scale businesses may not be jua kali, they share the same challenges that jua kali manufacturers face: when bigger and more "valuable" companies attack, they don't have the capacity to fight back or protect their commercial interests. This is not because of their jua kali nature but because of the matatu culture that privileges some business interests over others.

Kenyans don't suffer mediocre manufactures or services because of the inherent mediocrity of the jua kali sector. Kenyans suffer mediocre products because the business environment, jua kali and otherwise, is regulated with the private interests of the regulators in mind more than the overall health of the sector in general. If the regulators protected the interests of all businessmen equally, without picking favourites, they would have greater incentive to formalise many of their activities, if not all, and this would raise the standards of their goods and services. The obvious first step is to crack down on the officials in regulatory agencies, both administrators and political appointees, who are in it for the rents their power affords them. Until that happens, not even formal business colossi like Nakumatt will survive.

Friday, September 29, 2017

What is the minister playing at?

“Why should you carry around a whole platoon of police officers to go and commit a crime; to evict constitutional office holders?” the minister said in reference to threats by Nasa to lead supporters in storming offices of the electoral commission and force out staff they claim bungled the presidential election. Daily Nation (29/9/2017)
The members of the Independent Electoral and Boundaries Commission, are, indeed, "constitutional office holders" as the minister puts it. However, the secretary and chief executive officers and the remaining staff of the commission are not. All have the right -- indeed, the opportunity -- to ignore the Nasa brigade and its unreasonable demands. For instance, the chief executive, Mr Chiloba, has studiously ignored the Nasa demand that he must resign for being responsible for the irregularities and illegalities committed during the August 8th election as the Supreme Court found. Mr Chiloba did not need the minister to fight his battles for him. Neither do Mr Chiloba's underlings.

The minister, it seems, has used the Nasa anti-IEBC protests as the pretext for withdrawing the bulk of the police bodyguards afforded to Nasa leaders -- a former Vice-President and a former Prime Minister. Of course it will be seen as a partisan affair -- the minister playing hatchet-man to the sore-losers in the Jubilation who simply can't understand how a serial electoral loser could prevail against them at the Supreme Court. Their Supreme Court. Mr Odinga, his unholy cabal and the Supreme Court have to be taught a lesson and the most important is how vulnerable they all are without the warm blanket provided by the personal security of the tough-as-nails General Service Unit commandos. The Supreme Court, its judges (well, most of them, anyway) and its members of staff, faced this intimidation on the days before they delivered their opinions. It is the Nasa leadership's turn to face the music.

The minister is the singular expression of the petulance exhibited by the psychologically unhinged among the Jubilation. He brings their childish revenge fantasies to life. That he is blind to how he looks when he carries out the bidding of the Jubilation's lunatic fringe is not surprising; their masters' voices very rarely get to step back and consider whether or not unswerving loyalty is boon or bane to their individual reputations or character. They enjoy exercising untramelled power without thinking of the consequences. They are like those children who get a test for torturing household pets and have never been caught or punished for their cruelty. In many respects, they are psychopaths who excuse their cruelty with that old dodge: "I was just following orders."

Obviously no one really wants or expects the Nasa leadership to suffer any security scares. But these are not normal times. All it takes is one mistake that endangers their lies, one lunatic hearing voices in his head about how the gods want him to restore athamaki. All it takes is one accidental shooting. All it takes is for the insane fantasies of the Jubilation -- of a world in which That Man is gone -- to come true in violent fashion for their world to disintegrate, armed police or not. It is scary that one coalition can house so many imbeciles that it begs the question: what is the minister playing at?

Wednesday, September 27, 2017

Of bullies and intellectual charlatans

Ten years ago he hounded Samuel Kivuitu out of office. Last year he hounded Isaack Hassan out of office. Today this same man is working hard to ensure Ezra Chiloba leaves office. The only crime all these men committed is to be at the helm of an electoral commission that did not announce him President of Kenya. -- Raila a bully who insults, wounds -- Ngunjiri Wambugu
Ten years ago, in December, the Electoral Commission of Kenya oversaw a general election that ended in some of the greatest violence related to an election since Independence. A commission of inquiry headed by a respected South African jurist concluded that while it would never be proven who had actually won the presidential election, the electoral commission was to blame for the manner in which the election was managed. It will remain highly contested territory whether or not "mass action" calls by the Opposition led to the violence, but the spark that lit the tinder was laid by the Commission and its chairman, the late Samuel Kivuitu.

One of the recommendations of the Kriegler Commission that investigated the management of the 2007 general election was that the Kivuitu commission had to go home. Raila Odinga was not the only one who indicted the Kivuitu commission; Johann Kriegler and the members of his commission of inquiry did so too, as did the vast majority of Kenyans who had suffered the consequences of the decisions of the election commission and its chairman.

As for Mr Hassan and his commission, the widespread failure of the electronic voter identification kits during the 2013 general election could not go unchallenged especially as it formed a major plank of Mr Odinga's rejection of Uhuru Kenyatta's election. The Supreme Court disagreed with Mr Odinga -- mostly because it refused to entertain the proof he alleged to have compiled in a 900-page affidavit. Mr Odinga accepted the verdict of the Supreme Court but vowed to lead the charge in reforming the commission and the law relating to elections. Mr Odinga succeeded. The commission was reconstituted and the law amended. This was done with the active collaboration of the ruling coalition, though some of its members attempted to sabotage the reforms in January 2017.

Mr Odinga's current animus against Mr Chiloba is not founded on the well-worn canard that Mr Chiloba's chairman, Wafula Chebukati, "refused" to announce Mr Odinga as the President of Kenya. Mr Odinga alleged that the 2017 general election, especially in the presidential election, was conducted in the midst of irregularities and illegalities that rendered the outcome of the election as lacking in credibility, integrity, transparency or accountability. The Supreme Court, this time around, agreed with Mr Odinga and invalidated the presidential election. (Of the over 340 election petitions filed so far, the Supreme Court decision is set to become a well from which the waters of justice may never be exhausted.)

Mr Odinga, for better or for worse, has become the face of constitutional and political reforms in Kenya. Ever since his spectacular falling out with Mwai Kibaki in 2003, after Mr Odinga had led the charge in ensuring Mr Kibaki's electoral victory, Mr Odinga has been at the forefront of holding the national government, its officials and agents accountable for their acts of omission and commission. He has made many mistakes in his actions but he has inexorably moved the nation towards greater openness and transparency regarding Government's operations. Some of his actions have required a certain measure of public pressure -- of public officials and institutions -- and this was to be expected. Entrenched retrogressive elements will not budge simply because we say "pretty please". They must be shown shows of force. Great pressure must be brought to bear on them in order for them to see the virtues of change. This has been the story of all political and constitutional change in Kenya since the days of Saba Saba, something Mr Wambugu, in a fit of intellectual dishonesty, refuses to acknowledge.

A distinction, though, must be made about Mr Odinga's tactics and bullying. Mr Odinga is undoubtedly as selfish as we all are. He seeks ultimate political power like the thousands of politicians in Kenya. But despite this basic truth, it is also true that Mr Odinga has been responsible for shining a light on some very discomfitting aspects of the way Government operates, including how elections are managed. Kenyans are the better for it too. Perhaps Mr Odinga enjoys emotional satisfaction in removing senior public officers from office but when they have been responsible, by acts of omission or commission, in the deaths of thousands, the destruction of billions of shillings worth of private and public property, or the loss of billions of taxpayer funds, this is undoubtedly a good thing for the peoples of Kenya. Peace and stability cannot be used to cover up the misdeeds of public officers. That is not the constitutional bargain we made for ourselves with constitutional provisions such as those found in Article 10 or Chapter Six. If it takes a "bully" to reveal public officials as being devoid of integrity and unworthy to hold public office, then so be it.

Tuesday, September 26, 2017

The face in the mirror

"Babu Owino"What do you expect of a society where children are raised & socialized by maids, shamba boys, drivers & boarding schools? -- @alexawiti
The arrogance is breathtaking, isn't it? When it was announced that domestic workers -- maids, shamba boys, drivers -- were entitled to fair wages and fair working conditions, the loudest voices against the announcement belonged to men and women you would have thought belonged to the "middle classes". Then, it seemed to me, that the paternalistic attitude borne against domestic workers reduced these humans to an un-humanity, against whom it was permitted to be inhuman, to use and abuse them, to gratuitously insult them without facing any sort of social sanction, and to treat their inherent dignity by pretending the dignity didn't exist.

Whether or not Mr Owino was raised and socialised by a maid, shamba boy, driver or boarding school, is neither here nor there. What is important is that @alexawiti holds the view that only a maid, shamba boy, driver or boarding school could so socialise a human who would call another human by an epithet that is frequently employed against maids, shamba boys and drivers. It doesn't occur to him that the middle and upper classes are just as poorly socialised in Kenya. It is how a presidential candidate, campaigning in 2012 saw fit to bring up the vexed question -- to his mind -- of Kenya being "ruled" by a candidate from a community that does not circumcise its boys. It is not so much how the candidate brought up the question of circumcision-as-leadership but the actual words -- crude epithets that revealed the same insinuated lowness of character that @alexawiti attributes to Mr Owino.

We all, of course, remember the daring offer by the then member for Nyeri Town who offered, should the unthinkable decision to try a prominent Kenyan at the Hague for international crimes, to strip naked and parade herself as a curse against the tormentors of the prominent Kenyan. The last time aged women had stripped in public in such a publicly political manner was in 1992, when the mothers of political prisoners stripped naked in the culmination of an eleven-month long strike. Needless to say, Baba Moi's government was sufficiently embarassed to release the political prisoners soon after. The mothers' action was not a stunt as the Nyeri Town MP's was seen to be.

The pièce de résistance is of course the salacious innuendo -- subtle and unsubtle -- by a very prominent Machakos politician, a billionaire and a pillar of the business community, at a rally at Uhuru Park in 2015 that lowered the bar even further in Kenyan politics. What he said about a member of the Cabinet ranks as one of the lowest points in Kenya's political sensibilities, reminding Kenyans that when it comes to class, civility, dignified conduct, self-respect and common courtesies, money, wealth or power are irrelevant to whether one has such fine qualities -- or one does not.

As for boarding schools, they are a reflection of our national priorities. As a people, we are are committed to turning boarding schools into incubators for the production of university-ready "A" grades and nothing else. The fires that are breaking out -- again -- in boarding schools all over the country in which our children are being injured or killed are a reflection of our determination to secure "top marks" for our children regardless of their living conditions or whether these schools are educating our children as opposed to simply drilling them for national examinations. By his broad tarring brush, @alexawiti refuses to admit that Mr Owino is not an anomaly; Mr Owino is the face in our mirrors. Like I said, the arrogance is breathtaking.

The UN is not the solution

In the past three years we have appointed a new electoral commission and installed a new electronic vote results transmission system because we are held hostage to our history of life-or-death presidential elections. Neither the commission nor the electronic vote transmission system inspires confidence, the commission because it is riddled with corrupt officials and the system because it may be vulnerable to outside manipulation. Into the breech, many have suggested, should step the United Nations. Sometimes our lack of foresight shocks me.

The United Nations is a sprawling bureaucratic organisation that accommodates a remarkable diversity of ideologies and actors. Its failings, however, render it wholly unsuited to the role of impartial arbiter in a Kenyan presidential election. We all acknowledge some of the good works it has done, but these are despite its inherent flaws which reveal a system that prefers status quos even when those status quos are grossly dehumanising.

Many will be familiar with the United Nations's response to the cholera epidemic it caused in Haiti in 2010 that led to the deaths of thousands. Some will be familiar with the persistent allegations that the United Nations leadership has refused to take any steps to prevent or punish UN peacekeepers who have raped victims escaping civil war in the Democratic Republic of the Congo. The UN's vacillation in 1994 was responsible for the worst genocide in Africa in a generation. The UN Security Council, the most powerful organ of the United Nations, did nothing to stop the United States and its "allies" when they descended upon Iraq, toppled its leadership, ushered in a decade of sectarian fighting and gave oxygen to the most violent terrorist organisations. And, of course, who can forget the United Nations's membership electing serial human rights violator, Saudi Arabia, to the chairmanship of the UN Human Rights Commission.

Our electoral challenges will not be fixed by a corrupt outsider like the UN. The only ones who can fix things are Kenyans being honest about the roles they play in their electoral system. The vast majority are afraid of the leaders they elect or appoint to high office. We are afraid to speak up because it will almost certainly lead to summary dismissal from frequently low-paying jobs. We are afraid to speak up because some leaders are known to command paid armies of violent young people who will kick in our heads at the snap of fingers. We are afraid because for generations we have been trained to be silent when our leaders speak. We are afraid because in Kenya it is very easy to be killed.

Until we contend with this fear, neither the UN or some other do-gooding international organisation will fix our presidential politics. We must be unafraid to call out the liars, thieves, murderers, embezzlers, fraudsters, rapists and buffoons we have elected or appointed to public office. We must be unafraid to speak up when billions are spent on white elephants that saddle the generations to come with debts that will cripple their potential. We must be unafraid to speak when the princes of the city, the captains of industry, the ministers of faith, the intelligentsia and the civil society mavens foment inequality, inequity and insecurity by their acts of commission and omission. In short, we must be unafraid to speak truth to power, to shout it from the skyscraper to the hilltops, the valleys to the basement clubs.

Until we can overcome our fear, we will be led by the nose about the worthwhileness of appointing the UN -- temporarily of course -- to supervise our elections. Did you know that UN peacekeepers have been on temporary duty in Jerusalem to monitor the peace between Israel and Palestinians since 1948? With its record of "successes", why would you want it to supervise a presidential election in Kenya in 2017?

Monday, September 25, 2017

The politics of the 2017 judgment

163. (3) The Supreme Court shall have—
(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140... - The Constitution of Kenya
The Committee of Experts, reflecting national obsessions that have led to great violence, bloodshed and death, and a two-decades-long lesson in political impunity, gave the Supreme Court the principal duty of hearing and determining presidential election petitions. This duty comes before the duty to hear appeals from the Court of Appeal or any other court or tribunal, and the power of the Supreme Court to give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. In keeping with our national priorities, it is fitting that the Supreme Court's first duty is to determine presidential election petitions.

The Supreme Court's power, therefore, is not a purely judicial one. It is also a political power and the judges of the Supreme Court are undoubtedly political actors because of it. Tom imagine otherwise is to fail to properly contextualise the role of the Supreme Court in the organisation of Government, in which the exercise of its judicial power in any dispute in which the national executive or the members of the national executive are parties will have political ramifications.

In recent days, a to-and-fro has emerged between those who argue that the invalidation of the August 8 presidential election did not involve the national executive but only the candidate, Uhuru Kenyatta, and those who argue that the invalidation was a "judicial coup". The former, of course, is wrong. Whether or not Uhuru Kenyatta exercises temporary powers of incumbency, he remains the head of state and government, and the invalidation of his election affects the functioning of the national executive. The latter is spectacularly wrong. The incendiary suggestion that the Supreme Court has overthrown the lawful authority of the national executive finds no currency in logic. The truth, therefore, is somewhere between these two extreme and partisan positions and it reveals the Supreme Court's political role, as opposed to its judicial one.

Kenya has at least three decades of judgments of the superior courts, especially the Court of Appeal, that demonstrated the political role of the Judiciary if not the Court of Appeal itself. Almost all of those judgments that the exposed its political purpose related to presidential election petitions. Whatever else it did, the Court of Appeal played its part in ensuring that Kenya enjoyed political stability (at the expense of justice or human rights) by relying on technical reasons to strike down presidential election petitions. One of the most important technical rules it established was that presidential election petitions had to be served in person against the respondent. The petitions could be served by alternative means -- such as advertisement in the newspapers or by affixing it to the known address of the respondent. You had to deliver the petition to the respondent in person -- almost certainly the process server invited the enthusiastic attention of the presidential bodyguard when he went to serve Baba Moi with the petition.

This rule -- established by the Court of Appeal -- might have seemed overly technical in nature but it had profound political ramifications. In 2013, the Supreme Court adopted this technicality-driven approach when it sat as an election court to hear the Raila Odinga petition to invalidate the election of Uhuru Kenyatta. Its rulings and determinations may have been technical in nature butt heir effects were political. The technical ruling that prevented Raila Odinga from filing his voluminous pleadings had the effect of establishing a political rule: it doesn't matter what the process in an election was. So long as the process did not substantially affect an election, the election would stand. This was a logical extension of the rules regarding presidential elections that had been established and cemented by the Court of Appeal down the decades which favoured conservative political principles such as "stability" that had been responsible for making a mockery of Kenya's Bill of Rights, such as it was, in the former constitution.

The Supreme Court is now attempting to re-engineer a system that has deep roots. The judgment in the 2017 presidential election petition is remarkable in one instance -- it acknowledges the existence of the past and the "stability" it guaranteed on the political plane but it declares that that stability is founded on grossly unjust principles. It is no longer enough to rely on technicalities but those technicalities must shew fidelity to constitutional values and principles. (The dissenting opinions go to great lengths to demonstrate that the principles established by all presidential petitions up to the instant date, in effect, are faithful to the constitutional values and principles of this constitution even if they were established under the interpretations of the former.) The political repudiation of the line drawn by the former constitution and rubber-stamped by the 2013 judgment beyond which the superior courts would not enquire -- does process matter as much as the outcome -- is earth-shaking. Its reverberations are unlikely to subside in the life of this parliament or the next. This is a profoundly political exercise of power by the Supreme Court.

The political act of electing a government has always been guided by the maxim, "The end justifies the means". In this case, the "will of the people" isn't determined by the thoroughness of the process or the truthfulness of the outcome, but that the outcome is pronounced at the proper time by the proper authorities and endorsed by the election courts. So what if polling stations went dark for a few hours or presiding officers declared fictitious returns? The whole purpose of the electoral system was to provide a veneer of constitutionality and legality to elections, even if the veneer cracked here and there as minor elected representatives had their elections reversed by subordinate courts. With one judgment, the Supreme Court has declared that a political system founded on half-measures and technicalities cannot stand, and a presidential election shall -- in theory -- be held again and again until constitutional values and principles are fully respected by everyone involved in the election. The era of half-measures and technical reasons for upholding the good-enough-ness of half-measures is under assault. Whether or not this assault on the past is sustained -- and successful -- depends almost entirely on what the beneficiaries of the perfidious past system do.

Friday, September 22, 2017

Bend it will

So the date of the fresh presidential election has been pushed back by nine days and the world of KCPE and KCSE candidates has not coming crashing down. That the national executive -- in the guise of the hard-charging education cabinet secretary -- believed that it would not bend to Mr Odinga's will shows foolhardiness taken to perversely extreme ends. It also demonstrates the folly of believing ones own press. The 17th October was too close to the date of the detailed ruling of the Supreme Court for the IEBC to make meaningful changes to how it would conduct the fresh presidential election without inviting another petition in the Supreme Court. The examination-timetable excuse was only persuasive if you didn't remember that national examinations have been rescheduled on previous occasions. Mr Matiang'i, to paraphrase the former police spokesman, intended to measure his strength against Mr Odinga's and has now had to bow down to the inevitability of Tinga's demand's. He should never have attempted it in the first place. Now we can focus our attention on the contest between Mr Odinga and the IEBC which still labours under the delusion that it is the maligned party in the fresh-elections saga. How soon it too bends is speculative at best, but bend it will.

Thursday, September 21, 2017

Long-winded and mean-spirited

Five judges of the Supreme Court sat from around 10:00 a.m. till 9:45 p.m. on the 20th September to deliver a Majority Judgment and two Minority Opinions on the petition to end all petitions of 2017. The Majority Judgment invalidated the election of Uhuru Kenyatta. The Minority Opinions disagreed in excruciating detail with the findings of the Majority. If there was any doubt as to why J.B. Ojwang' and Njoki Ndung'u were unsuited to be Chief Justice or Deputy Chief Justice, it was removed not by their temperamental rebuttal of every single point relied on by the Majority, but their mulish and stubborn insistence in reading every single word of their Minority Opinions, though they skipped some parts and skimmed through others. Especially for the Professor, he used his extensive scholarship to cudgel the Majority in some of the most incendiary terms, relentlessly reminding them -- and us -- that he is well-read, learned and wiser. Judge Ndung'u, on the other hand, in effect called her colleagues in the Majority lazy for not verifying -- in person -- the allegations made by the Petitioner. Their ill-will was palpable. I hope nobody is ever foolhardy enough to make them Chief Justice or Deputy Chief Justice.

Wednesday, September 20, 2017

Wishes don't make policy

Trams and underground rail may be no more than just pipe dreams for a cash strapped Nairobi City County, but a public bus system is not only within reach, it can be made possible even in a few short months. -- #Frontrow
There is a fundamental assumption made by all who claim that a state-funded, a state-owned or a state-managed public transport system is the answer to the traffic problems of Nairobi: that the genie of a liberalised public transport sector can be put back in the bottle of a nationalised public transport system. Evidently they have great faith in the powers of national and local governments to see through the nationalisation of public transport. They have not reckoned with the power of the liberalised sector not only to resist the gambit but also to revise it extensively or, more likely, to defeat it decisively.

For a brief period, before the City Council of Nairobi lost its mind, municipal services were the envy of many. Streets were swept, rubbish was regularly collected, drains were unblocked and public transport was efficient, affordable and reliable. But between the appointment of a series of commission to run the City and the liberalisation of the public transport sector, city fathers lost their minds, corruption became a defining feature of municipal administration and the national government engaged in active sabotage of its own programmes, such as the establishment of the Nyayo Bus Corporation to compete against the Kenya Bus Service, the company that offered bus services in the City of Nairobi with the blessings and support of the City Council with the approval of the Ministry of Local Government.

The aftermath of liberalisation policies saw the introduction of thousands of buses, minibuses and vans offering public transport services in cut-throat competitive conditions. Both the Nyayo Bus Corporation and the Kenya Bus Service went out of business, the former being looted for all it was worth and the latter unable to offer cut-rate fares in competition with the surging matatu sector. An entire economic ecosystem is built around matatus and the blithe assumption that "a few short months" are all that are needed to re-nationalise public transport simply ignores the facts on the ground.

First, no matter what we think of matatu crews, they are in employment in one form or the other. Drivers, conductors and touts form the bulk of the employees of the matatu sector. Re-nationalisation of the sector almost certainly means that the vast majority must find alternative employment. Second, some form of compensation must be paid to all those whose buses, minibuses or vans will be pulled off the road on one pretext or another. If not, many individuals will face bankruptcy or insolvency and many financial institutions will have to manage bad debts for years on end. Third, the ecosystem supported by and reliant on the matatu system will have to reorganise. Importers of both chassis and used or second-hand vehicles, importers of new and used spare parts, mechanics, car-park yards, body fabricators, vehicle interior designers, insurance agents and brokers and finance institutions will have to find other recipients of their services. These "stakeholders" are important components of the economy and their needs must be addressed in any campaign to re-nationalise the public transport sector.

We already have a public transport system. What we don't have is a state-funded or state-managed one. We should keep it that way. What we need is a well-managed system. If there are standards, they must be applied, implemented and enforced fairly and firmly. If there are laws, they must be enforced without fer or favour. If there are offenders operating in the system, they must be prosecuted to the fullest extent of the law. We already have the experience of what happens when a corrupt government runs a bus company. There is no guarantee that the county government of Nairobi City is corrupt-free enough to be trusted with a monopoly in the public transport sector in Nairobi. Its recent pronouncements and clarifications don't imbue one with confidence either. Until someone puyblishes a comprehensive paper on what it means to have "a public bus system", let us treat #Frontrow's proposals like the wishes children make while blowing out candles on cakes.

Tuesday, September 19, 2017

What ails the Jubilation?

The Chief Justice has been accused of treason by a consultant who is closely connected with an online college that recalls a more colonial era in its name. The reason is simple enough to detect: in the wake of the truly earth-shattering ruling issued by the Supreme Court -- by majority decision -- the Chief Justice, as the President of the Supreme Court and head of the Judiciary, has become the target of the misguided ire of the members of the Jubilation who were caught flat-footed on the 1st September. In invalidating the election of Uhuru Kenyatta, announced by the Chairman of the IEBC in the dead of night on the 11th August, the Supreme Court's judges attracted a level of political scrutiny that not even the much-reviled 2013 ruling could have elicited and none more than the Chief Justice has become the target of the Jubilation's intensely baleful focus.

The President and the Deputy President have not been shy of bandying words about regarding the invalidation of their election. "Civilian coup" and 'judicial coup", uttered with vehemence at many public events, set the stage for ne'er-do-wells to loudly question the "loyalties" of the Chief Justice and his colleagues and to insinuate that there was something un-Kenyan, underhanded and malign in the manner that the Supreme Court "refused to give reasons" for the invalidation of the election of the president and his running mate.

The "we respect the judgment of the supreme court but disagree with it" facade was jettisoned when the member for Nyeri Town in the National Assembly, a freshman elected representative, availed himself of the rights contained in Article 168 and filed a petitioned the Judicial Service Commission for the removal of the Chief Justice on the grounds of gross misconduct. It isn't that the Jubilation hadn't intended to do so but that it had intended to so as soon as the detailed judgment of the Supreme Court was read out, on or before the 21st September. With the cat out of the bag, all pretense was set aside: unfavourable and inflammatory stories about the Chief Justice and some of his colleagues have been planted in the press and more petitions are being filed for the removal of judges of the Supreme Court on grounds of, you guessed it, gross misconduct. These are now being buttressed by picketting crowds outside courts, including outside the Supreme Court building, over the past two days.

Distractions like the aforementioned consultant and his online screeds passing off as reasoned political commentary will continue to build the case that the 1st September ruling amounted to treason, the unlawful removal from power of the president -- though, of course, the president is still in power. Allegations of gross incompetence will continue to be made by malcontents unhappy with the manner in which the Supreme Court interpreted the laws passed by the bullies of "Tyranny of Numbers" fame. The people -- you and I -- are being primed for the removal of the Chief Justice and some of his colleagues. This unsubtle campaign of intimidation is well-choreographed but it is not so difficult to discern the outlines of the marionetteers in the background.

The Supreme Court, the moment it was given original jurisdiction in presidential petitions, became a political institution no matter how reasoned, reasonable and detailed its rulings would be. This may be one of the more asinine decisions of the Committee of Experts and we have little choice but to live with it. But we must acknowledge that the neutrality of the Supreme Court, after the events of the past three weeks, is shot to hell and we can thank the Jubilation and their jackbooted red-shirts for this. All the Jubilation had to do was let the IEBC cock it up again in October so that it could join NaSA in finding friendlier election officials for the third presidential election of the year. Instead, it is increasingly resembling the more unhinged parts of the former Soviet Bloc.

Monday, September 18, 2017

A disappointment

I am listening to Senator Susan Kihika (Jubilee, Nakuru) as she appeared on Check Point with Yvonne Okwara and contrasting her reasoning against that of Hon Otiende Amollo, MP. I fear that if she is among the bright sparks in the Jubilation, then the Jubilation has much to worry about. I take into account that logical fallacies are not things that the hoi polloi, in the height of political activity, will take into account when weighing whether or not to vote for this candidate or the other. Nevertheless, it is vital that those purported to be the leaders of the people to be able to engage in argumentation informed by logic, linking the proper causes to the known outcomes. Ms Kihika has demonstrated that she has a deft political touch. If she wants to be of immeasurable use to the Jubilation, she must arm herself with greater reasoning power if she is to go out before the masses to refute well-crafted arguments.

They came for the matatu and I did nothing...

The national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and the participation of the people. -- Article 10 (2) (a)
This is quite easily one of the constitutional principles or values that the executive, both at national and county levels, has found very difficult to apply. The more uncharitable among us would allege that the executive has actively resisted applying this principle, especially when it comes to the making or implementation of public policy as required in Article 232 (1) (d). 

This difficulty or resistance was plain to see in two events with profound impacts on Kenyans: the "ban" imposed by the Cabinet Secretary for Environment and Natural Resources on the use of plastic bags and the proposed "ban" by the Governor of Nairobi City County on the entry of PSVs into the Nairobi Central Business District from the 20th September. Neither "ban" was democratic or involved the participation of the people before they were imposed but they have received the buy-in of many Kenyans because of the projected perceived benefits of the "bans".

The plastic bags "ban" is covered extensively in other posts on this blog but only tangentially has the proposed "ban" by the Governor. No one has accused Mike Sonko or his deputy of experience in running a complex institution such as a county government. Mr Igathe, the Governor's deputy, has run big companies and understands, to some extent, how complex systems operate. It is yet to be seen whether his acclaimed corporate credentials will translate into success in a political institution as the county government. Mr Sonko's credentials do not bear repeating -- mostly because, despite his political intelligence, they are non-existent, never mind his recent graduation from university.

Mr Sonko proposes to "solve" Nairobi City's traffic problems by "banning" the entry of PSVs into the CBD. He does so without having consulted the people the "ban" will affect most: those who have to walk longer distances to get to their places of work. Just like the plastic "ban", a group of men who have not used public transport for a decade are purporting to make policy decisions that affect more than three-quarters of the residents of a city they administer without having spoken to the commuters who would be affected. Worse, they have not published their plans for how the "ban" will be effected, whether or not new classes of offences are created by their "ban", what the penalties for contravening the "ban" are, what forms of PSV are exempted from the "ban", what happens to what were once PSV termini, or what steps the county government is taking to ensure that facilities are provided for those who choose to walk or cycle into the CBD.
Mr Sonko must have heard the cries of the oppressed private motorist and shop-owner, mercilessly abused by the PSV driver and his crew. He heard their cries and, unlike Pharaoh who hardened his heart, he has bowed to their wishes and banished the hateful matatu out of the CBD for the sake of the peace, safety and sanity of the private motorist and his boon friend, the shop-owner. The fate of the commuter is none of his problem. The fate of the pedestrian and cyclist is none of his problem. A city that has done so much for the private motorist is prepared to bend over backwards for him just one more time.

There is something to be said for "public participation", the nomenclature of "participation of the people". It will not solve all policy challenges but it will offer more options than the pet projects of the Governor or his cronies. It will highlight the difficulties a particular policy s likely to encounter. It will put a face to the humans likely to suffer if their needs are given short shrift. Few of us have any love lost for the Matatu Owners' or Matatu Welfare associations -- Messrs. Kimutai and Mbugua are spectacularly unpleasant men -- but both are legitimate stakeholders in the public transport sector and their decisions affect millions of Nairobians, for good and for ill. Ignoring their input is foolish and refusing to talk to them is asinine. The only people who will suffer will be commuters -- and quips about "keeping fit" are not funny at all.

Kenya's constitution faces probing attacks all the times with many malign actors attempting to weaken or subvert its provisions, especially the Bill of Rights. The film censorship board's chief executive was a particularly egregious actor. His unsophisticated overreaches were refined by the environment minister. The Nairobi governor is just the latest member of the executive to probe how far he an violate the principles of the constitution before he is stopped. Sooner or later, someone serious will go after something more dangerous. If we let Mr Sonko get away with it, we only pave the way for the day the Bill of Rights, nay the Constitution, shall not be worth the paper it is printed on.

How politically powerful is the Chief Justice?

The grounds on which the Chief Justice may be removed from office are: the inability to perform the functions of office arising from mental or physical incapacity; a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence; or gross misconduct or behaviour. 

The Chief Justice's removal my be initiated by the Judicial Service Commission (acting on its own motion) or by a petition by any person to the JSC. A petition shall be in writing. If the JSC is satisfied that there are sufficient grounds for the removal of the Chief Justice, it shall recommend to the President the appointment of a tribunal to investigate the conduct of the Chief Justice. (Article 168). The procedure by which the Chief Justice may be removed from office is set out in the Second Schedule to the Judicial Service Act, 2011.

It is curious, though, that the provisions of Article 168 and the Judicial Service Act are silent about what happens to a petition if the the petitioner wishes to withdraw the petition. It is presumed that he who alleges is also free to retract his allegations. But what if the allegations are true and the retraction is because of undue influence or pressure from third parties? 

For instance, what we have seen of Ngunjiri Wambugu's petition for the removal of the Chief Justice, which he has since "withdrawn", made many incredible-sounding allegations such as the manner in which the Chief Justice has allowed and facilitated the infiltration of the Judiciary my members of civil society organisations who may or may not be acting at the behest of hostile powers. Just because Mr Wambugu's allegations fit in with the heightened hyperbole of the Jubilation doesn't necessarily make them untrue. What happens to the allegations? Does the JSC ignore the allegations simply because Mr Wambugu has "withdrawn" them? Given the very public pressure Mr Wambugu has faced to withdraw -- no less than from the President and the majority Leader of Mr Wambugu's parliamentary party group -- shouldn't the JSC take into account that Mr Wambugu has been forced to withdraw his petition?

We don't pay much attention to the things we do for political mileage. Mr Wambugu is no different from us; looking at the content of his political ruminations between 2012/2013 and 2017, there are glaring differences in the personas he has adopted. These personas, though, share something in common: he has never had to consider that there are legal and constitutional implications of his many utterances and simply because he has never been challenged about them doesn't minimise the legal risks he has taken on in the past. 

Now that he is an elected representative, Mr Wambugu also takes on unknown and unquantifiable political risks. His petition, whether the JSC considers it or not, is now part of the public record and it must be put to rest regardless of Mr Wambugu's withdrawal, if only to settle once and for all the health of the Judiciary and its place and status in Government as well as its place in the political firmament. Between the decisions of the Supreme Court in presidential petitions in 2013 and 2017, a lot has been alleged about the Court and its members, especially both the Chief Justice and his predecessor. Much of what is claimed about the men is political. Mr Wambugu reminded us that the Supreme Court and its Judges are also political actors. It is time we settled the extent of their political power.

Thursday, September 14, 2017

Look beyond the petition

If it is true that the member for Nyeri Town intends to petition the Judicial Service Commission to remove the Chief Justice and President of the Supreme Court from office, this will be the culmination of a campaign against the Chief Justice and the Supreme Court since it nullified the results of the presidential election on the 1st September. It is also a reminder that in Kenya retrogressive forces have always relied on institutions of Government, including laws made by Parliament, to achieve malign ends.

The Committee of Experts and before it, the Ghai Commission, reviewed the constitutional amendments that led to the establishment of an "imperial presidency" and wrote elaborate provisions to corral and control the presidency. "Independent" institutions established under the Constitution such as the Judiciary and the Judicial Service Commission were designed by constitutional provisions to be independent from the national Executive, especially the president. Kenya's constitutional reformers missed a glaring point: institutional independence was never Kenya's greatest weakness but the law-making powers of Government. The manner in which the presidency had become imperial -- from the constitutional amendment that allowed the president to pardon election offenders to the one that stripped the Attorney-General of security of tenure -- were laws passed by parliaments that the president controlled, either as the leader of the largest number of MPs or as the benefactor of many MPs in parliament.

In the aftermath of the 2017 general election, the president's party enjoys a considerable majority in both chambers as well as control of most county governments. This majority is useful when it comes to law-making, including constitutional amendments even to the Bill of Rights, provisions on commissions and independent offices and the powers of constitutional institutions such as the judiciary or the office of the Chief Justice.

It is the exercise of this power by a parliamentary majority that should worry us all. Harry Houdini was famous for getting out of straitjackets and other forms of confinement. He was also famous for elaborate illusions. While the audience was mesmerised with events taking place in one part of the arena, he was engaging in acts that allowed him to, for example, disappear an elephant in a room full of people. The petition that has been filed with the Judicial Service Commission may or may not amount to much; if the press conference given by the petitioner after his filing was done is anything to go by, it is founded on the semi-coherent ramblings of a novice law student relying on hearsay, innuendo and a shocking misinterpretation of the phrase "rule of law".

It is an illusion that is meant to distract us from parliamentary business which commenced immediately after the president's address on the opening of this parliamentary session. In the debate that followed -- a debate that was supposed to be on the president's address -- the majority party focussed their parliamentary wrath on the Chief Justice and the Supreme Court decision to nullify the results of the presidential election. The majority leader in the Senate is absolutely sure that parliament will be amending laws to protect the "will of the people" in presidential elections. This will be in keeping with the president's promise to "fix" the Judiciary after the fresh election ordered by the Supreme Court has been held.

On any question relating to the interpretation and application of the Constitution, the loudest and most gung-ho politician is almost always a distraction. The petitioner against the Chief Justice is now the loudest and most gung-ho voice in the anti-Chief-Justice campaign by the majority party. You must ask yourself, "From what is he distracting us?"

Wednesday, September 13, 2017

The hagiography of the "ban"

Plastic bags used for primary industrial packaging are, however, exempted so long as they are used for industrial primary packaging at the source of the product and are not available for sale at the counter or given freely outside the industrial setting. The exemption also includes disposal bags for biomedical and hazardous waste and garbage bin liners. Furthermore, these bags must be labeled with the name of the industry manufacturing the product and the end-user. Plastic sheets used for construction, greenhouses, covering as well as cling films/stretch films used for wrappings and bopp self-adhesive tapes are also excluded from the ban. Bags issued at duty free shops are also exempted due to ICAO and IATA rules. (Gathara and Cherono, Business Daily)
Gazette Notice No. 2356 of 2017 does not say anything of the sort. It makes no exemptions for "primary industrial packaging", "disposal bags for biomedical and hazardous waste and garbage bin liners", "plastic sheets" or "bags issued at duty free shops". It does not require that "disposal bags for biomedical and hazardous waste and garbage bin liners" be "labelled with the industry manufacturing the product and the end-user".

Gazette Notice No. 2356 of 2017 merely and explicitly bans all "all plastic bags used for commercial and household packaging defined as follows: (a) Carrier bag—bag constructed with handles, and with or without gussets; (b) Flat bag—bag constructed without handles, and with or without gussets." That's it. Save for the business of the Notice taking effect after six months from the date of its publication, there are no exemptions granted by or under the Notice and no indication that they will be granted by or under the Notice or who will grant those exemptions, under what circumstances or for what duration.

Gathara and Cherono, if they read the plain text of the Notice, will most certainly have seen this. This begs the question: where did they find the provisions on the exemptions to the application of the provisions of the Notice? Lawyers are advised against speculating as to the kinds of proofs that prove or disprove a proposition but having visited the National Environment Management Authority, we know where Gathara and Cherono have discovered the "exemptions" to the application of Gazette Notice 2356 of 2017. As professionals they must know that the NEMA website is not the Kenya Gazette and that the documents published by NEMA purporting to grant exemptions to the application of the provisions of the Gazette Notice are about as robust as puffs of smoke.

The constitutional and statutory infirmities of Gazette Notice No. 2356 of 2017will not dissipate with the hagiography perpetrated in favour of the "ban". The Cabinet Secretary continues to lack the mandate to ban plastic bags; sections 3 and 86 of the Environmental Management and Conservation Act, 1999 continues not to grant the powers that the Cabinet Secretary purports to exercise. We are now in the coverup stage of the "means-justifies-the-end" gambit. A patently unconstitutional act has been committed. Interested parties are now rallying to obfuscate the constitutional, statutory and regulatory environment to provide cover for the unconstitutional act.

We all want the benefits of a clean and healthy environment but if it takes statutory power-grabs to achieve these ends, sooner or later, the clean and healthy environment may not be ours to enjoy after our rights and fundamental freedoms are given equally short administrative shrift by similarly iron-fisted Cabinet Secretaries in the future.

Caring is the only way to rescue our children

My parents are doctors of philosophy. I am not and, bar some quick-minded academic nimbleness, I am unlikely to ever be. My brother, G, is an engineering genius with a Masters to prove his chops. My brother, R, can speak Russian, Spanish and French, in addition to the English/Swahili/Sheng combo we are all fluent in. I mention all this to illustrate a point. Those of us who grew up in the 1980s in stable and happy homes, and attended nurturing state-funded schools (yes, they existed), were expected to pass our exams with one crucial difference: the pressure we faced was not informed by the chronic joblessness and high cost of living we have experienced over the past fifteen years of post-KANU "economic growth".

My parents were the among the first generation of post-Independent couples who both held down professional careers while raising families of their own. My brothers and I were lucky enough that we saw both of them before we left for school (at 7:15am) and before we went to bed (at 9:00pm), having come home from school at 3:45pm, played, had evening "tea" and had our supper. Even when my younger brother was sitting for his KCPE, children were not carrying ten kilograms of books to school; at most, it was about a kilo. I don't remember any of us being saddled by holiday-buzz-killing "homework" when we in secondary school or suffering through sweltering holiday "coaching" sessions. Holidays were sacred, intended to decompress -- and empty the fridge with frightening (for our parents) efficiency.

My brothers and I were the first generation to successfully complete the 8-4-4 but as we were exiting the system, things had already gone terribly wrong for the generations of pupils and students that came after us. While school fees had progressively gone up during our tenures, they rose sharply after 1997 in keeping with the precipitously ruinous rise in the cost of living. This had two consequences whose reverberations are being felt today: the expansion and improvement of educational facilities suffered deep cuts, and parents spent more and more time away from their children in order to earn more to send them to the reducing number of "good" schools for which competition was sharp. Many of these parents were beneficiaries of a combination of their hard work and the relatively wide availability of good education facilities and the prevalence of relatively well-paying clerical and middle-management jobs for even those with modest basic academic credentials such as the KCSE certificate. The mantra of "hard work = a good life" took root but it applies only in a very limited way today.

With the massive cuts in the wide provision of acceptable and adequate education facilities, fewer and fewer children have access to good education facilities, with access being determined by how well they do in examinations, such as the KCPE or KCSE. Parents, who are spending longer and longer hours away from their children in order to provide for their every need, insist that the children must show their determination by scoring the highest marks in their exams. This insistence is not of the benignly autocratic style but one that is relentless and almost sadistic. In many parents' minds, an "A" is the only ticket to a better life. Children are being forged into adults in furnaces devoid of joy, care, peace of mind, love or honour.

In this environment, eleven-years-old children are becoming suicides because of slight falls in their academic results, even where they are in the top quartile. Still others, in fear of testing their academic mettle in end-of-year examinations, are setting school properties on fire, sometimes with tragic outcomes. Others engage in dangerous activities such bingeing on narcotic drugs or alcohol or sexual relations with strangers. Many parents and school authorities, caught up in their vicarious pursuit of "A" grades, learn about these children's crises only after it is too late, often after tragic events. We have been unable to see the signs of the risks engendered by the current system because we are all complicit in its creation and perpetuation. Our children are paying the price in mental health problems, gross acts of indiscipline, the destruction of public property and the deaths of our children.

If we wish to rescue our children from these tragic fates, we must make changes in how we raise and educate them, foremost being committing more public resources to state-funded schools to ensure that our children receive the care and attention they need in order to thrive, both as children and as students. If we are unable to improve the economic conditions sufficiently to improve how parents raise their children, then we must ensure that the surrogate homes these children enter -- schools -- are safe, secure, humane, caring, nurturing and educational. We cannot treat our children as if they have deliberately decided to "act out" or commit unspeakable acts of destruction; we must treat them as suffering from a combination of neglect and pressure at ages when they can handle neither. In other words, regardless of what the Penal Code says, we must treat them as children in need of care first. If we don't, no matter how many disciplinary codes of conduct Mr Matiang'i and his ministry's sadists draw up, our children will continue to suffer and their suffering will continue to have tragic outcomes.

Political naivete and stupidity

Are you naive or stupid? In some quarters, if you didn't vote for a candidate such as Boniface Mwangi who stood in Starehe, or Martha Karua who stood in Kirinyaga, you will be thought of as naive and stupid. If you rejected Miguna Miguna and Peter Kenneth for Mike Sonko in Nairobi, you will be called naive and stupid. If you stayed with Ali Hassan Joho in Mombasa? Yes, you are naive and stupid. That is the elitist short hand for those who have all the answers abut the political leaders we need in order to change Kenya for the better.

Each Kenyan voter is responsible for the political leaders he or she voted for. No voter can recant their decision once the elected representatives or leaders pursue goals and objectives that are inconsistent with the promises they made during the election campaigns. Each voter made a conscious decision to vote for one candidate over another; they were not deceived or tricked. Each voter -- an adult, as required under law -- knew whom they were voting for, what they stood for, what they have done in the past and what they have promised to do once in office. No one cast ballots on their behalf. Each voter went into the polling booth as an individual and cast their ballot for their candidate. In short, each voter had agency and exercised his of her decision to vote for their preferred candidate alone.

Take the example of Miguna Miguna and Mike Sonko in Nairobi. On the surface, Mr Miguna is the better educated of the two, the more sophisticated thinker, the more articulate orator. On paper, Mr Miguna -- and not Mr Sonko -- should be the governor of Nairobi City. The majority of the voters of Nairobi City overwhelmingly chose Mr Sonko over Mr Miguna. By some standards, these voters will be called both naive and stupid because of their choice of Mr Sonko who was once jailed, escaped from prison, and fingered by the United States government as a drug kingpin, and who has elevated political antics to never-seen heights such as punching walls, "leaking" salacious photos of him with other elected representatives, taking sartorial liberties that have had him named in the Senate, and engaged in physical altercations with other elected representatives.

If you consider the voters who elected Mike Sonko as naive and stupid, you will have missed a important thing about their choice. Despite Mr Sonko's colourful, shall we say, personality and the troubling questions raised about his business affairs, he has always had a direct connection with the voters who elected him and their families. It is called "tokenism" in certain political platforms, but Mr Sonko's provision out of his pocket -- as he claimed -- of funeral, breakdown, limousine and public sanitation services for the City's lower classes was welcomed even by those who call his voters naive and stupid. 

Of course we should ask where he raises the funds for the "Sonko Rescue Team" and whether or not his various businesses contribute to the destruction of the lives of our young. If we must do that then we must do so for every one of those who asked for our vote. On the other hand, given that we did not seriously demand an accounting of the wealth of Mr Sonko' rivals in the general election, bar the innuendo and insinuations that accompany our elections, we must also ask what his rivals have done for the residents of Nairobi City. How many of them have established grassroots networks to provide the social services denied by their own government? How many have made multiple donations and contributions to families facing hunger and homelessness after fires have gutted their "informal settlements"? How many have publicly pledged to adopt a family beset by tragedy or done it at all? 

Tokenism it may very well be but politics is not the arena of the purist wishing for a political utopia. Mr Sonko knows this. His rivals have forgotten the lesson. His voters know this too. It is why they preferred him to his rivals. It is neither naive nor foolish to elect a man who has committed himself to solving some of your problems the best way that he knows. It would be, in my estimation, madness to vote for the man whose connection with you is limited to diatribes and harangues about the perfidy, stupidity and insincerity of his rivals. It is madness to vote for the incumbent whose tenure has been marked by higher City charges and fees, greater mounds of garbage, longer hours spent in traffic jams and the persistent stench of graft. It is foolhardy to cast your ballot for a carpetbagger who has been rejected in his own constituency and whose ego will not countenance a defeat at the nominations stage by the clown of Nairobi politics. For those who successfully elected Mike Sonko, their naivete and stupidity have resulted in a better outcome than could have been imagined by "smart" and "informed" choices.

It is an arrogance bordering on the insulting to presume that political leadership should be reserved only for "deserving" candidates with the right academic and business pedigree. The people have a funny way of disregarding the elites' received wisdom. They will make choices on what candidates do for them. Mr Sonko may not be Nairobi City's dream governor but, in his own inimitable way, he has done more for them than all the other candidates put together. There is nothing naive or stupid about that.

Saturday, September 09, 2017

It is a sick system

The Penal Code permits the prosecution of children older than twelve years for criminal offences, including capital offences (though children younger than eighteen yeas may not be executed if convicted or capital offences). Therefore, there is a good statutory foundation (even taking the protective provisions of the Children Act, 2001) to arrest, detain, prosecute and punish child offenders in Kenya. However, even with the proliferation of cases where child offenders are prosecuted for causing deaths in schools by setting school properties on fire, it is time to properly investigate the system that leads to the commission of these heinous offences by children as young as thirteen years old.

In official Kenya, public officials enjoy greater confidence of policy-makers than those who seek or use public services. Especially when it comes to the management of the vast network of state-funded primary and secondary schools, headmasters, headmistresses and principals (and the parents-teachers associations that ostensibly oversee these school-heads) are trusted more than the children who attend these schools or their parents. Unless they happen to be irredeemable monsters, their acts of omission or commission that lead to the deaths or injuries of children in their charge are unlikely to lead to criminal prosecutions or dismissals from service. It is almost certain that policy-makers and education-sector administrators will treat these events as anomalies, one-off accidents beyond the control of schools' administrators or PTAs. An examination of the regulatory and administrative system that led to the deaths or injuries will not be undertaken. The time is now to grapple with this problem.

Especially after the 1992 general election, long after Structural Adjustment Programmes had ushered in the era of cost-sharing and decimated public sector spending on public education and public health, the management an administration of state-funded schools became chaotic and those who can will remember the period between 1993 and 1997 as one filled with some of the worst student-discipline cases in history. Then came the disasters at Bombolulu in 1998 and Kyanguli in 2001 that have never been properly investigated with only the children accused of initiating the chains of events that led to mass deaths facing the public prosecutor. School-heads have gotten away with murder for decades.

Looking at the Moi Girls School Nairobi fire, it is almost certain that while the fire may have been started by a student (and the public prosecutor, the police service, the cabinet secretary, the school administrators, the PTA and her fellow-students all say that she is responsible), the true offenders are the Ministry's quality assurance inspectors, the school's principal and PTA, the county's emergency services and the system we have refused to reform for thirty years. There is no way that the Ministry's inspectors could have though that the manner in which the students were accommodated was safe. There is no way they could have approved the academic calendar that emphasised nerve-wracking CATs without the necessary psycho-social support for these teenage girls living in such a complex world. I doubt very much the county directors for emergency preparedness ever visited the school to certify whether it had adequate facilities for the preservation of life if an emergency occurred. They all contributed to the system that resulted in the deaths of students.

But the ones who should shoulder the blame in full are the principal and the PTA that prioritised the construction of a chapel over the safe accommodation of these young girls. If it is true that the chapel has been under construction since 2011, consuming hundreds of millions of shillings, while at the same time the principal and the PTA have ignored or neglected the plight of the girls, contemplated raising school fees to cover the construction of the chapel and not dormitories, de-emphasised psycho-social services for the girls while prioritising stress-inducing back-to-school CATs and insane reading workloads over the holidays, they must be held to account. This sick system must be reformed. If we go by what we have done since 1992, no changes will be made. A girl will have her life ruined by prosecutors and magistrates. An incompetent principal will build a church on the ashes of the dead. And a cabinet secretary and his ministry will enjoy fame for "rooting out cheating in national exams".