Tuesday, March 28, 2017

Compromise or fade into irrelevance

If you're rigid, unbending, incapable to adapting to your environment, it is unlikely that the snakepit that is the National Assembly will serve you or your constituent's ends. The essence of politics, especially elective politics, is that the elected representative must adapt to the politicking that occurs after one is elected. By all means, one may stand by his core principles, such as integrity, honesty, probity, accountability and transparency, but a refusal to consider the context of every political choice will only lead to great disappointment, utter failure or a complete betrayal of ones principles.

The men and women who are represented in the National Assembly have specific demands that must be addressed and specific needs that must be met.  Back in the day when the Constituency Development Fund was the MP's most potent tool to meet the needs of the people and address some of their more outlandish acts, the MP was the one who brought home the pork. In the here and now, the courts have essentially decreed that elected representatives have absolutely no role to play in the execution of functions reserved for the executive branch - except that of oversight to ensure that public funds are not wasted, stolen, misspent or underspent.

Politics, indeed, makes for strange bedfellows because even despite the divergent interests of many politicians, enough common ground can be found to ensure that the needs of the people are met. What defines a good politician isn't his fidelity to his principles in the face of "challenges" but his ability to persuade his colleagues that it is in both their constituents' interests that a particular proposal is seen to the end. If one insists on being the moralising scourge of the National Assembly, cavilling against the avarice of his colleagues and calling on their downfall at the hands of their constituents, he is likely to create enemies whose sole mission is to embarass and humiliate him at every turn by shooting down every single proposal he makes in the assembly. Puritanism and fundamentalism are unattractive qualities in elected representatives though they are perfect for the activist looking to hold the State to account for its acts of omission or commission.

Unless you can persuade voters to elect like-minded puritanical fundamentalists, the National Assembly is bound to be a very lonely place for the inflexible. Parliament is a big tent encompassing the best, the worst and the indifferent among the voting public. The matters it deals with will never satisfy the needs of the minority who are ideologically pure because some needs can only be satisfied by denying others their just dues. Compromise is the only way that things get done in Parliament and this requires shaking hands with the devil every now and then.

If you are elected to Parliament and you remain inflexibly the same for five years, history will record you as a crackpot fundamentalist who did little to make the lives of the people who elected him better. You will remain an obscure footnote in the history books. In all regards, you will be a failure.

Monday, March 27, 2017

The law, Sir, is not the solution you think it is

State officers enjoy certain privileges that the rest of the public service or even the public do not enjoy. One of the most obvious is that their safety is catered for at a level that few private individuals or public officers ever will. Almost all State officers have an armed bodyguard made up of serving officers of the Kenya Police Force and the Administration Police Force. Many of them enjoy the services of armed guards at their various official homes, both in Nairobi and out of Nairobi in the boonies. To my mind, because of this privilege, few State officers appreciate the palpable state of insecurity and unsafety that many Kenyans live in. If we insist that State officers should be compelled, by law, to only use public health facilities, will it lead to an improvement of service for the rest of the public?

I looked at this analogy after a Twitter exchange between Patrick Gathara and David Ndii. Mr Gathara supports Boniface Mwangi's proposal that the law should compel State officers and their families to only use public health and education facilities. Mr Ndii cautions that the outcomes of such a law might not be what its proposers expect. It is more likely that State officers will either establish or engineer the establishment of elite facilities to which only them or their families will have access.

The instinct to legislate away our problems has created more white elephants than solutions. Take the fight against corruption as an example. From the day we established the Kenya Anti-Corruption Agency under John Harun Mwau, we have expended hundreds of billions of shillings passing laws, appointing anti-corruption czars and their staff, and conducting investigations and yet the problem has not only not been solved, it has mestastacised and infected even the private, civil society and faith-based sectors. the solution shouldn't just have been a law to control corruption or the establishment of an elaborate bureaucratic machinery to police it. It should have been about a complete culture change among the people, the people they elect to lead or govern and the public service they appoint to implement public policies and laws. We got the law and the bureaucracy; we never even started on the culture.

The same is almost certainly to be the outcome of a law compelling State officers and their families to use, for example, the public healthcare system. The same way we have a system of "national" schools which still privileges "legacy national schools" over recently established or upgraded national schools, is the same way we will have an elite public healthcare system to which only the State officers will have access. We have yet to challenge the culture that privileges State officers over the rest of the public service and the public. We accept it as the privilege expected to be enjoyed by these men and women as a consequence of being elected or appointed to high office.

This culture is starkly illustrated by the desire of many Kenyans to be elected or appointed to high office on order for them to effectively serve their people, or so many of them claim, including those calling for compelling State officers to use public facilities as a strategy for gaining votes. Whenever someone declares that their desire is to help the people, that desire almost always culminates in a campaign for elective office or an appointment to high office as a principal secretary or head of a constitutional commission or parastatal. High office is associated with power, power with privilege, privilege as the spoils of the entire campaign.

I am not saying that Mr Mwangi or Mr Gathara don't believe in their proposal. They probably do. I am saying that they are likely blind to outcomes that they will not contemplate. Their blind faith that this kind of law will be implemented in the manner that they want it to be implemented and will have the outcome they want it to have is naive. In the history of law-making, no law has ever done exactly what it promised to do in the manner it was intended to. Every single law has had unintended and unexpected consequences. Mr Mwangi's legislative proposal will be no different if it is ever enacted into law. That he hasn't publicly acknowledged this is instructive.

Sunday, March 26, 2017

Kenya is not the USA

The Parliament of Kenya is not the Congress of the United States; the National Assembly is not the mirror of the House of Representatives and the Senate of Kenya is not the mirror of the Senate of the United States of America. Consequently, the politics of Kenya is markedly different from the politics of the United States. This simple truth seems to have escaped many Kenyans who pay attention to the politics of the USA that many of them see parallels in the way, for example, Bills are passed in the US Congress.

In recent days, the Republican-controlled federal government of the United States has failed to repeal the American Health and Patient Protection Act, also known as Obamacare. Its prospective replacement, the American Healthcare Act, or Trumpcare, was unpopular with many interest groups, from congressional conservative hardliners, to congressional moderates, to insurance companies, to insurance and healthcare providers and, most assuredly, congressional Democrats. Its failure offers a teachable moment for Kenyans who would draw parallels between the US way of legislating and Kenya's way.

In the United State, where the doctrine of separation of powers is elevated almost to a religious precept, the law-writing and law-making powers of the US federal government are almost exclusively those of the US Congress; the Executive branch has limited legislative powers, exercised through executive orders (such as the ones President Donald Trump has issued in relation to immigration) which are then enforced by federal agencies (such as the Department of Homeland Security). One of the hallmarks of the US legislative system is that the Speaker of the House of Representatives is elected from a congressional district and, usually, represents the majority party. In 2017, the Speaker of the House is Paul Ryan, a Republican, and he is responsible not to the President but to the Republican congressional delegation from the Republican Party.

On a law as consequential as the federal government's budget, it is the House of representatives and the Senate that are responsible for the legislative language of the budget bill with critical input from the executive branch. The economic analysis of the federal budget is undertaken by the Congressional Budget Office and not the US Treasury Department and, sometimes, key elements of the federal budget are out of the hands of the executive branch. The failure of Trumpcare was because the Speaker was unable o persuade a majority of his congressional delegation to support parts of the bill that dealt with the subsidies that the federal government pays to individuals for their healthcare. These were items that are paid for out of the federal government's revenues and they offend a hardcore conservative group of the congressional delegation known as the House Freedom Caucus. Speaker Ryan was attempting to help President Trump to implement one of the president's campaign promises: to repeal and replace Obamacare as one of the first things his government would do.

What makes the US situation different is that it didn't matter what President Trump or Speaker Ryan wanted; the Republican congressional delegation had no obligation to support the president's agenda if it clashed with their own. President Trump may be the leader of the Republican Party by virtue of his presidency, but the true leadership of the Party resides in Speaker Ryan, and Mitch McConnell, the Majority Leader in the US Senate.

In Kenya, though the Constitution makes it plain that law-writing and law-making are the preserve of Parliament, and the the budget is the almost exclusive preserve of the National Assembly, the language of the Appropriations Bill is almost always the language proposed by the National Treasury and takes into account the recommendations of the Commission on Revenue Allocation and the reports of the Controller of Budget, the Auditor-General and the Salaries and Remuneration Commission. Unlike in the United States, the National Assembly usually attempts to tinker with the sums allocated for various programmes under the budget but without the acquiescence of the National Treasury (and the President, for that matter), the National Assembly's efforts are usually ineffective.

Kenya's is not a federal government notwithstanding the attempts by quack constitutionalists to paint it as such; it remains, for all intents and purposes, a centralised government that performs devolved functions through subordinate elected county governments. The ruling party's (or alliance's/coalition's) parliamentary delegation is not led by the Speakers of the National Assembly or Senate, nor is it led by the Majority Leaders in both chambers; it is led by the President and the Speakers and Majority Leaders do his bidding on everything he wants.

One reason why the President of Kenya enjoys such power over his party's or alliance's/coalition's parliamentary delegation is that neither are elected on ideological grounds. Had Uhuru Kenyatta promised to repeal and replace a law that had been enacted under President Kibaki's tenure, for example, the Cancer Prevention and Control Act, 2012, he would have been responsible for drawing up the Bill, he would have been responsible for its legislative language and he would have decreed that his party's elected representatives fall in line in Parliament and they would have, because on fiscal matters, Kenya's parliamentarians are not united by ideology but by political loyalty to the president to whom they pay fawning obeisance. President Kenyatta wouldn't have had to lobby his party's parliamentary delegation with fiscal sops; none of them cares about the ideological reasons for spending or not spending public funds on cancer prevention, research or treatment. All they care about is getting re-elected together with the president from their own party/alliance/coalition.

Looking at the roles that Speaker Ryan plays in the US federal government and the ones that Speaker Justin Muturi plays in the Kenyan national government, it quite clear that Speaker Ryan has a political constituency separate from that of President Trump while Speaker Muturi's and Uhuru Kenyatta's are one and the same. Ryan's congressional committee chairmen are powerful players in their own right with sometimes separate political constituencies from Speaker Ryan's, Speaker Muturi's parliamentary committee chairmen are not and do not but will do as Speaker Muturi demands because Speaker Muturi is fulfilling President Kenyatta's wishes.

The US has had over 240 years to wean itself of the British parliamentary system; Kenya has only wedded itself further to it in the over fifty years of independence. Instead of developing a political system and political institutions all of its own, Kenya has copied the worst aspects of the British and US systems. The US system is dysfunctional because of its hyperpartisanship; Kenya's is dysfunctional because of its utter lack of ideological consistency. For us to truly appreciate the system we have and the challenges we face, first we must stop seeing Kenya's parliamentary system as a hybrid version of both the US and British systems and, instead, we must ask ourselves, what we need, what we can build to address those needs and how much the whole kit and caboodle will actually cost. Only then can we talk without irony of the "Kenyan" government.

Saturday, March 25, 2017

We don't need political parties

Do we really need political parties in Kenyan politics? I don't think so. And it is not because the United States (the world's most sophisticated banana republic), the United Kingdom (the world's most sophisticated theocratic lunatic asylum) or India (the worlds largest, noisiest and most colourful democracy) have demonstrated the wisdom of not having political parties. It is because Kenya simply cannot afford the politics that is organised around political parties.

To begin with, the charlatans elected as MCAs, MPs, Woman Reps or Senators have absolutely no reason to be loyal to the members of their political parties from wards, constituencies or counties that they do not come from. Sure, they can share ideologies or a particular strain of greed or a pathology that disappears women from public discourse or a penchant for deflowering teenagers, but they don't actually have to belong to the same club in order to get elected.

Second, Kenyan politicians have demonstrated a capacity for building coalitions and alliances that have actually nothing to do with political parties. These coalitions and alliances have always been about the personalities of the deal-makers first, and only afterwards because of a technicality in the law, have they been about the political parties. The best examples I can offer are both about the alliances that the Jubilants' principals have entered into since 2012. Mr Ruto jumped from ODM, attempted to "buy" UDM, before settling for URP which was the reason why when he and Uhuru Kenyatta, who jumped from Kanu and "bought" TNA, forged an alliance, Kenyans remember that it was first an Uhuru/Ruto alliance before it became a TNA/URP alliance. 

In 2016, Mr Kenyatta and Mr Ruto maintained their personal alliance, but they jettisoned their 2012 vehicles (TNA and URP), stopped over briefly in a cul-de-sac called Jubilee Alliance Party, before finally settling on a vehicle in which they ostensibly own equal shares called, not surpisingly, Jubilee Party of Kenya. Parties were irrelevant to their decision-making.

Third, Kenyans are notoriously not joiners of political parties, notwithstanding the "millions" of Kenyans who have ostensibly signed up with the Labour Party of Kenya, the Jubilee Alliance Party, Ford Asili or the Maendeleo Chap Chap Party. As some of us have discovered to our horror, the Registrar of Political Parties has accepted party lists that include millions of Kenyans who did not make the conscious choice to become members of those parties. Anecdotal evidence shows that very few Kenyans care enough to want to be permanent members of political parties with very little staying power. I mean, how many of you remember the United Democratic Party, UDM, or its office-bearers?

Fourth, political parties are just an excuse for countless bureaucrats to be employed by the public service. In a world where the President declares that we have limited public resources, we shouldn't spend countless billions of shillings on a bureaucratic machinery for policing and regulating political parties that is bound to be misused and accused of dastardly misdeeds.

Finally, if you want to increase the levels of political honesty in Kenya, getting rid of political parties gets rid of a reason for politicians to lie that they believe in the "ideologies, principles and policies" of the parties of their choice. Mr Odinga doesn't have to lie that he thinks Kalonzo Musyoka or Moses Wetangula are his political equals simply because they have managed to, in theory, corral ethnicities into their political "buses". He can simply strike a bargain with them to campaign together throughout the country with the intention of capturing political power and sharing the spoils among themselves. You don't need a party for that.

The registration thresholds for different levels of elected positions might seem to require political parties but they don't. The provisions on the nomination of independent candidates to stand in elections can be applied for the whole system.

If you can show me why political parties are necessary in Kenyan politics, I'd be interested to find out. But for now, they are a waste of resources and sources of political turmoil and conflict that are easily avoided.

Damn things

Yesterday, I forgot my pocketbook at home. It has been a fast-paced week and the last thing I was thinking of as I rushed off to my beloved legislative proposal was a pocketbook that is a tether that yokes me to my employer, bus conductor, food vendor and identity. Without the modern-day warriors accouterments - cash, plastic, national ID, employee ID, business card - you might as well walk around buck-naked for all your charm and snappy suit will do for you in a harsh world where you must always, ALWAYS, identify yourself and pay your way.

I have been working out of a temporary office near mine and if it wasn't for being familiar with the security staff there, I would not have made it inside. If it wasn't for the serendipitous one hundred and twenty shillings in that suit, I would have been stuck on the wrong end of a conversation with a bus conductor. The point was driven home when I it dawned on me thirty seconds after discovering an empty pocket that I couldn't draw cash from the mobile money agent because, you guessed it, I couldn't identify myself. Same thing with the bank; without the ID, there was no way I could draw cash from my bank account without my ATM card.

Lesson learned: always keep your pocketbook on your person at all times. Or, at least, keep ready cash and an ID on your person at all times. In the alternative, never leave home without the damn things!

Wednesday, March 22, 2017

A health commission?

It's been seven years, give or take, since we promulgated a constitution to replace the one that in the minds of many had encouraged the worst vices amongst members of the elected classes. In the Constitution you will find the National Land Commission, the Commission on Revenue Allocation, the National Police Service Commission, the Teachers Service Commission and others, better known as "Chapter Fifteen Commissions". 

Now be honest with me. Have these commissions made your life better?

This is a serious question. It is one of the reasons why the 100 days' strike by doctors was so difficult to resolve (according to the doctors anyway). Do you think Kenya can live with the establishment of a National Health Commission?

Politicise everything

Politics (n.) the activities associated with the governance of a country or other area, especially the debate or conflict among individuals or parties having or hoping to achieve power.
If someone tells you not to politicise anything the government or its opposition does, that person is an enemy of democracy. Anything to do with the national revenue and how it is spent is a political matter and politicising it is the right thing to do if only to inform the people of the motivations for a particular government policy.

For example, the Commander-in-Chief, in response to the situation in Laikipia, has ordered the deployment of the Kenya Defence Forces to the area in order to "stop the banditry." The President's supporters will argue that the security situation has deteriorated to such a state that ordinary and extraordinary policing tactics are insufficient and that only the army can restore peace and order. The President's opponents will argue that the timing of the deployment is suspicious because many of the alleged victims of banditry have not been offered any help; only those victims of British origin have.

Both may be right and it is to politics that the rightness or justness of a position will receive the implicit or explicit imprimatur of those being governed.

In Kenya our problem has never been the politicisation of issues but that those doing the politicising are frequently bad politicians. Their politicisation of issues are frequently not about ultimately achieving power but "destroying" their "enemies". Few of them have the true politicians' ambition of achieving presidential power; many of them are interested in the rent-seeking opportunities their political positions afford them especially when it comes to the tenders that the government floats for major works.

For this reason, much of the politicisation of issues that takes place is designed to paint individuals and ethnic communities in stereotypical colours: this community is full of thieves, that community is full of watchmen and cooks, that other community is full of terrorists, the other community if made up of bandits, and so on and so forth. In this way, there is no need to discuss issues of power-allocation or resource expenditure. It is then possible to hide ones true intent: a piece of the tender that the government is floating.

The victims of these machinations don't see themselves as double victims of the corruption that is engendered or the stereotyping they are subjected to. If "their man" prevails over one of "those people", they are persuaded that their community has won. If their man loses, so too does their community. And thus, whenever their man declares that a matter should be "politicised", they offer him their full-throated support.

Tuesday, March 21, 2017

Blood from a stone

This is the role of the Senate according to Article 96 of the Constitution:
96. (1) The Senate represents the counties, and serves to protect the interests of the counties and their governments.
(2) The Senate participates in the law-making function of Parliament by considering, debating and approving Bills concerning counties, as provided in Articles 109 to 113.
(3) The Senate determines the allocation of national revenue among counties, as provided in Article 217, and exercises oversight over national revenue allocated to the county governments.
(4) The Senate participates in the oversight of State officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with Article 145.
The Senate has not been called to consider or determine any resolution to remove the President or Deputy President from office (though it has, unnecessarily so, injected itself in the impeachment of governors without much to show for it). As an institution of Parliament, the Senate's other roles includes the protection of the Constitution and promotion of the democratic governance of the Republic (Article 94(4)).

The Senate has not been useless; it has merely failed to live up to its true potential. This is in large part to the striking lack of imagination among its more youthful members who have fallen victim to the hubris that often assails Kenyan politicians when they are elected to office. The tool of the parliamentarian, in case you are wondering, is the parliamentarian's law-making power and the power to investigate the actions of the government. The Senate has done precious little law-writing or investigating; instead, under the leadership of the Leader of the Majority Party and his minions, the Senate has done the bare minimum it could get away with without being accused of malingering.

The 2013-2017 Senate is an embarrassment. It has done little to endear itself to its true constituents. It has done precious little to protect devolution; it has focussed its attentions on a battle to supremacy with the National Assembly where it has come up short again and again. It tried to bully the Judiciary and was laughed out of the building. It tried to pit the considerable legal skills of some of its finest members and was humiliated twice by uppity governors. And now its preeminent members are panicking because the lumpen proletariat in the National Assembly is threatening to mobilise the unwashed masses to demobilise the Senate. Truly, the Senate is an embarrassment.

If members of the Senate treated Governors and county assemblies as partners instead of stepping stones to political glory, legislation would be the swiftest way for senators to make their mark. It is time they made peace with the fact that the Senate will never, ever have the high public profile that the National Assembly does. Its role is limited, and so are its powers. Individual senate constituencies are too large for an "oversight" fund to make of a difference. And the fact that the budget is an exclusive National Assembly subject means that the Senate will never get the upper hand over the Executive, national or county.

I fear though, that the Senate, its members and its mandarins will never accept the logic of their diminutive stature, constitutionally speaking, even as they proclaim in long-winded fashion that "THE SENATE IS THE EQUAL OF THE NATIONAL ASSEMBLY!" to yawns from one and all. After all, no Kenyan has ever seen power that he didn't want to usurp and to expect political sanity from the Senate, this Senate, is to expect blood from a stone.

Monday, March 20, 2017

On academic creds in politics

To tell you the truth, I am not sure what his name is. Is it Mike Sonko, or Mike Mbuvi, or Gideon Mike Mbuvi, or Gedion Mike Mbuvi, or Gidion Mbuvi, or a complicated combination of all the foregoing? Either way, Nairobi City County's senator has managed to be "cleared" by the Jubilee Party of Kenya to contest in the election of Nairobi's next governor. He faces off against Peter Kenneth, Miguna Miguna and the incumbent, Evans Kidero, among others.

What seems to have roused many to take note of Mr Sonko's candidature are his academic credentials because they highlight the other extreme end of the over-credentialing of public offices: the number of elected and aspiring representatives "pursuing" undergraduate and post-graduate credentials has exploded in recent years. Some, like lawyer Nelson Havi, ardently believe that the higher the academic credentials one obtains, the likelier one is intelligent and capable of performing adequately in the legislature.

But this is Kenya and we do our thing slightly differently.

There was a time when academic credentials in Kenya were held in high esteem. The chances of civil servants being university graduates or holders of A-levels certificates were high in the years after Independence. Civil servants, university graduates and students, and trained teachers were held in high esteem because it as presumed that they not only possessed excellent academic credentials, but that they were also highly educated and because of their education, they were better-placed to offer expert advice on a host of public questions.

Even in Parliament, in the early years, parliamentarians were expected to be well-read and familiar with the difficult and technical questions that the Executive intended to implement. Despite the fact that many parliamentarians did not hold academic credentials beyond basic education, the Hansard reveals that the contributions of many of them in the early years were well-thought out, well-structured, erudite and well-informed. 

One of the strange phenomenons with our Parliament was that the more authoritarian our government became, the more parliamentarians held academic credentials but the worse they performed their parliamentary duties. It didn't matter whether one held a PhD in mathematics or economic or whether one could barely string a coherent sentence together in Swahili. All that mattered was that a parliamentarian spoke the language of the Baba na Mama party, KANU, and suspended his thinking privileges for the duration of his elected life.

But, surely you argue, this is the twenty-first century and a first-rate academic bent is indispensable in public service. I couldn't agree more but is this what the largely barely-educated masses want? Mr Sonko's elections offers a clue. It is argued that he bought the Makadara by-election that first sent him to the National Assembly for one-hundred and fifty million shillings. But his decisive senatorial victory in 2013 did not elicit the same "Mr Moneybags" derision because he wasn't the only candidate who successfully outspent his rivals. Mr Sonko's academic credentials were irrelevant to his constituents in 2010 and in 2013; what they cared was that he spoke their language and, to paraphrase Bill Clinton, "felt their pain".

Higher educational credentials will not improve the quality of parliamentary debate or the performance of parliamentary functions if such a demand isn't accompanied by an overall improvement in the services offered to and by parliamentarians in general. Indeed, if parliamentarians do suffer a pay cut in the Twelfth Parliament, the savings should go towards building up the capacity of parliamentary support services, especially when it comes to policy assessment and law-writing. For sure, a well-facilitated parliamentary library that has more than bound volumes of the Laws of Kenya and the Hansard is necessary in the Knowledge Century.

Look at it from this perspective. The Governor of Nairobi holds a science degree while the Governor of Mombasa's degree remains shrouded in mystery as to its provenance, yet both preside over two of the most dysfunctional counties in the country that have been completely overwhelmed by solid waste and PSVs. Their academic credentials have been useless in the politics and policy-making snakepits of their county governments.

What we need are good political leaders with the capability of leading effective governments. What we have are grandstanding crybabies with super-sensitive thin skins incapable of effective governance. Academic credentials will not cure our problems.

Bent, twisted or broken?

There are no saints in politics, not even political saints. In politics, as in life, unsavoury characters are the principal actors in the acquisition and allocation of political power, including State power. Honest and idealistic individuals are the ones that often pay the price for their honesty and idealism. The few who have somehow managed to ascend to political sainthood are very rarely remembered for their effective political leadership; more often, they are remembered for "fighting the good fight" as opposed to winning it.

Boniface Mwangi, the acerbic-tongued, idealistic, PR genius, civil society knuckle-bruiser and a few of his fellow-travellers has launched a "new" political party, the Ukweli Party, as his vehicle of choice to persuade, among others, the good people of Starehe to elect him to the twelfth parliament on the 8th August. One of his more ardent supporters calls him the best candidate she knows. If she elevates him to political sainthood, she is likely to suffer the same heartburn as the rest of us who have been disappointed by the political heroes who turned out to have feet of clay.

Whether or not Mr Mwangi and the other aspiring parliamentarians of the Ukweli Party are successful at the hustings in August, we must remember that they are human beings, with human flaws and human impulses. Mr Mwangi is famous for highlighting the deep human flaws in Kenya's parliamentarians that have led these men and women to commit crimes, great and small. Mr Mwangi and his cohort must be prepared for the same degree of scrutiny and the harsh judgment of an ungrateful electorate, one that takes a perverse pleasure in sweeping out almost three-quarters of the elected classes at every election.

His fans and supporters must be prepared to be tarred with the same brush, if tarring is indeed done, should Mr Mwangi fail to live up to the hype. We are notorious for our short memories but we are also notorious for burning hot in our passionate hatred of the political class. Mr Mangi is now a politician and it is only a matter of time that political needs challenge his ideological impulses and thereafter the people will get the chance to witnesses which of Mr Mwangi's cherished principles will be bent, twisted or broken.

Sunday, March 19, 2017

Do we need an army?

The Commander-in-Chief of the Kenya Defence Forces, in combat greens and dessert-camouflage boots, paid a visit to the Dhobley Military Camp in Somalia where Kenyan troops, serving in the African Union Mission in Somalia  are stationed. The visit reminded us that there are Kenyan fighting men and women in harms way in the still-unstable Somalia, part of a fighting force assembled to pacify the country and destroy a terrorist organisation, al Shabaab. It also reminded me of a question I have pursued in the past: should Kenya have a standing army?

Kwame Owino of the Institute of Economic Affairs asks a more simpler question: is it easier to give military training to twenty million Kenyans than paying for a standing army? The question is based on an idea I have explored elsewhere: every eligible Kenyan should undergo military compulsory military training in lieu of Kenya having an actual standing army. In times of need, these Kenyans can be called up to active military service. As to national defense, Kenya could do with a more engaged border security force as opposed to a billetted military that can't intervene in all minor border skirmishes such as the ones in Kenya's north east with al Shabaab fighters.

So, I ask you: do we need an army or can we make do with a border security force and the compulsory military training of eligible Kenyans who act as a military reserve to be called into duty in times of need?

Saturday, March 18, 2017

Let us put Le Kidero out of our misery

The "matatu menace" doesn't exist in a vacuum; Nairobi's, and Kenya's, motorists are notorious for how they comply with the provisions of the Traffic Act or show fidelity to the prescriptions of the Highway Code. In other words, the chaos on our roads are not simply because matatu crews are more interested in a fast shilling and the rest of the motoring public be damned but also because motorists, generally, look on the rules of the road as mere suggestions, the commands of the uniformed traffic police as the gesticulations of a monkey with a rifle, and the common courtesies expected to smooth out inconveniences as the last tics of losers who always get their butts kicked.

I have just spent three hours in a matatu. A journey that shouldn't have exceeded half an hour even in the worst of Nairobi's now notorious weekend traffic, this one was a record of sorts. My matatu driver was no doubt an idiot but his idiocy wasn't the only reason that I spent the better part of what would have been an extremely productive weekend hostage to a Nairobian whose relationship with deodorant was more of an internet acquaintance than an actual relationship. The less said about her halitosis the better.

Nairobi's traffic chaos are the result of many factors but the key one is that very, very few motorists actually follow the Highway Code. You would think that it was  because they were willfully being scofflaws but that isn't the case; the traffic environment makes it almost impossible to follow the Highway Code faithfully. 

Take something as simple as lane markings and traffic signs. Fewer and fewer roads have lane markings anymore. Traffic signs are notable by their infrequency, on many roads, or invisibility. It is impossible to describe what this does to lane discipline or other traffic maneuvers. Jogoo Road, for example, is supposed to be, for the most part, a two-lane dual-carriage road, that is, two lanes on opposing side. But ordinary motorists and matatu crews have turned it into four lanes simply because the lane markings are not there at all. Because of this, when a motorist gets either to the City Stadium roundabout connecting Jogoo Road to Bunyala Road and Landhies Road, one encounters a bottleneck of epic proportions that can't be resolved unless traffic police are posted there permanently to funnel vehicles from the three roads as best as they can.

The same situation is witnessed on many roads entering the business district and the same chaos is visited on motorists all over the city. Coupled with the failure of the police to police the traffic effectively, traffic lights that seem like they operate on a random schedule, the nduthi menace that is getting out of hand, the spillover of pedestrians from footpaths onto the roads and the conversion of many roads into makeshift markets with veggie vendors squatting in oncoming traffic, chaos is all but guaranteed.

I am not asking simply for discipline to be instilled in all road users, motorists and pedestrians alike, but that the key elements that make up a road must be available at all times. In Nairobi it is safe to say that Evans Kidero and his county government have failed in their responsibilities to Nairobi's road-users. If he tries to tell you that he doesn't have the resources or that he doesn't have the co-operation of other agencies or that it is matatu crews' exclusive fault or any other excuse, please remind him that we didn't elect him to pass the buck or blame the dog that ate his homework. He has failed to offer leadership. In the words of Donald J. Trump, Mr Kidero is sad. A loser. On the 8th August, let us put him out of our misery and find someone else.

Friday, March 17, 2017

Totally nduthi-fied

I hate nduthis.

OK, that sounds a bit excessive. Let's just say, then, that I think that nduthis are the two-wheeled equivalent of the motorised scum of the universe known as the Forward Travellers, Embasava, Utimo and Umoinner sacco.

Nduthis, especially the ones pretending to be potato-potato of the 45°, air-cooled, 88 cubic inch Harley-Davdison twin cam engine, are a menace. They are loud. They are slow. They are ridden with an aggression that beggars belief. And their riders, almost to a man, are splendidly filthy and shifty looking that it is a wonder that some of them have a clientele at all. But they do. And that, never mind everything I have written, is pretty neat.

A decade ago, when boda boda was the word in Western Kenya, who would have believed that nduthis would have conquered the streets of Nairobi so thoroughly? They are everywhere and they have a dedicated following. They are fast, safe-ish, reliable, and, the only reason that matters, cheap. If you're paying fifty shillings for point-to-point transport, the last thing you will quibble about is the general dishevelled, slightly sweaty, mostly reckless movement from "A" to "B" without even the acknowledgment of the High Code or the Traffic Act.

Of course the story is scarily different if the point-to-pointing is done on the highway. Major hospitals in all the towns in which nduthis dominate have wards set aside for the victims of road traffic accidents in which the nduthi riders' balls sucked away all the blood needed for rational decision-making. All those interns that are about to be released into the medical profession by Kenya's university pipelines can specialise in orthopaedic surgery and they can all retire by the time they are forty-five for all the business the nduthi-fied Evel Knievels are about bring to them.

In Kenya "hustle" doesn't have the same pejorative meaning that it has in the United States; in Kenya, "hustle" is the one quality everyone wishes they had, everyone admires and everyone thanks for making them their millions or billions. Heck, the Deputy President revels in his description as "Hustler"! Nduthis are the perfect hustle and if you avoid the more reckless aspects of nduthi-fication, one can make a decent enough income to escape the poverty trap.

Yeah, I hate nduthis, but I also think they are absolutely awesome.

Our Nyama Mama night out

Last Monday, kama kawaida, I sanitised my email inbox and found myself with a few minutes to spare before I endeavoured to sanitise media items on my WhatsApp account. So I clicked on the Nyama Mama link and, if it wasn't for the fact that in recent weeks I'd had reason to schlep the one hundred and fifty-six stairs to the eighth floor, I think I would have passed out in my office. Damn, those people know how to photograph meat!

As some of you know, I hate mobile phones. The only reason why I even bother to keep one is because sometimes I really do need to find the right provision in the right law of the right vintage in order to totally dominate an argument. So, I ignored Nyama Mama's handy mobile number and sent an email seeking a reservation for that Friday at seven in the evening. A nice lady called Joyce replied and confirmed my reservation.

The Nyama Mama at Delta Tower is a wonderful space; big enough to make money sense, small enough to not get crowded and super-loud like the annoying Buddha Bar upstairs full of scantily-clad twenty-one year old girls, muscle-y forty year old boy-racers and shady looking ex-Sov-Bloc biznismen. Save for the windy front room, it is wonderful. And the meat?! Lawdy! Those people can cook their meat!

When we were done with the mguu ya mbuzi, I can honestly say that She and I were well and truly done for the night, especially as their ice-cold beers were, indeed, ice-cold. I'd love to go back but even I am aware that you can't catch lightning in a bottle twice. Some awesome experiences are awesome once only. Which is a pity because the Delta Towers Nyama Mama is an awesome place, has awesome service and is relaxingly intimate and not loud. I loved every one of the two hours were there.

The statutorisation of our lives

The phrase, "The right thing to do" is both a statement of law and a statement of social etiquette, isn't it? At the heart of our interactions as individuals, as families, as communities and as societies, are prescriptions of what are the right things to do and the wrong things which shouldn't be done. The enforcement of these prescriptions is a mixture of written laws (written by legislatures and other rule-writing organisations such as Christian church institutions) and social conventions, such as fame or ostracism. I am pretty mulish when it comes to arguing that these prescriptions are all "laws"; after all, they permit us to do some things and punish us for doing other things.

Take the question of parental responsibility and the termination of pregnancies. Received wisdom (well, as received by the liberal wing of my community) has it that a woman's right to choose is or should be absolute. If she chooses to carry a pregnancy to term, that is a choice she can only make alone. It is exclusively her choice too whether or not she will terminate the pregnancy and her choice will not be subject to review or veto by anyone.

This is a simple enough proposal to champion. The law, for the most part, doesn't recognise most foetuses as "children". It is why "morning after" pills are permitted; after all, one of the effects of the morning after pill is that it might prevent a fertilised egg from attaching to the uterus. In most jurisdictions where the termination of pregnancies is not a hot-button social, cultural, religious or political hot potato, pregnancies can be terminated up to the end of the second trimester, six months, for any number of reasons, including to protect the health of the mother, to protect the life of the mother, that the pregnancy was as a result of rape or incest, or that the foetus has revealed serious defects that will affect the child's quality of life after it is born.

On these reasons alone, I would have absolutely support the declaration of a law, rule or social precept that a woman's right to choose is absolute and inviolable. However...

As the debate surrounding Article 26(4) showed, today, even issues that had been excluded from the ambit of constitutions, laws, regulations or by-laws, have now been hijacked by a societal desire to prescribe laws for everything. It's wording is a clue to the social, religious and political battles that were fought over "abortion",
Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law. 
The erstwhile presumption that a woman's right to choose was absolute has now been shattered by a presumption that her right to choose is now wrapped up in the opinions of third parties who had absolutely nothing to do with the conception and for reasons that have nothing to do with the conception. What was once a generally accepted social convention is now part of a burgeoning invasion of social spaces with the butcher's cleaver of the Constitution and the wrecking ball of the law-maker in parliament.

The same is true about whether or not a man could refuse to meet his obligations as the father of a child. In perfect patriarchy, men choose whom to acknowledge, and therefore support, as their children. Men have been permitted for millennia to abandon their children at the drop of a hat with relatively minor consequences. Often, when men refuse to meet their obligations to their children, let alone their families, fewer and fewer of their fellow men are interested in holding these men to account. It is why when you hear the expression "single parent" it almost always means "single mother" or "unmarried mother". However...

Before we decided that we would create statutes to cover every possible social sin, great store was placed in the ability of a man to tend to his family, whether or not those who constituted his family did so by way of marriage. But the situation is vastly different, from a lawyer's perspective, than it was even a decade ago. It began with the Children Act, 2001, which established firmly the legal principle of the "best interests of the child" and it has now been cemented by Article 53 of the Constitution on the rights of the child, among which is the right of a child to
parental care and protection, which includes equal responsibility of the mother and father to provide for the child, whether they are married to each other or not.
The "best interests of the child" principle wouldn't have taken root unless it were socially endorsed as one of those "right things to do." Man can still, and many do, abandon their children without a care in the world. However, social mores have also evolved, in some case they have evolved shockingly swiftly, and a man can no longer expect to hold his head high for being, in the patois of the day, a deadbeat dad. What was a social precept is now the foundation of the law on the rights of the child. A social rule is now a constitutional one.

What I hope to convey to you is that it isn't possible to pigeonhole social commentary as being completely divorced from cultural or statutory implications any more. It is not how knowledge evolves any more and it is certainly not how we organise ourselves these days. A public statement can expect reactions from different and differing planes. The bargain we have made for ourselves in the past decade alone as a people, a community and a society is one that insists on the statutorisation of almost every aspect of our life. If we carry on in this vein, someone will suggest a law on how to take a shit - and we will go along with it.

Wednesday, March 15, 2017

On the plastic bag ban

The Cabinet Secretary for Environment and Natural Resources, claiming powers conferred on her by sections 3 and 86 of the Environmental Management and Co-ordination Act (No. 8 of 1999), has banned the use, manufacture and importation of plastic bags used for commercial and domestic purposes. The Gazette Notice she published on the 28th February takes effect in 6 months.

I will leave my more experienced seniors in litigation to remind the Cabinet Secretary that the powers she is purporting to exercise in relation to the ban are non-existent. Instead, let us examine whether or not the ban is the most effective tool in the war against plastic waste as epitomised by the Kenyan penchant for littering the environment with plastic bags.

Plastics form an integral part of our lives these days. From furniture to utensils, shoes to clothing items, plastics are intimately intertwined with our lives in ways that their extrication will take effort and dedication. The most visible and annoying part of our lives with plastics are the plastic bags we receive every time we go shopping: supermarkets, bookshops, butchers, Mama Mbogas, pharmacists, produce distributors, cosmetologists and the men and women with whom we must have commercial dealings, use plastic bags to make our lives more convenient. As byproducts of the petrochemicals industries, plastics are one reason why less and less of petrochemical byproducts are wasted.

Our relationship with plastic bags is tied up intimately, also, with our relationship with our local, aka county, governments. Under paragraphs 2(g), 3 and 11 of Part 2 of the Fourth Schedule, county governments are responsible for refuse removal, refuse dumps and solid waste disposal, the [c]ontrol of air pollution, noise pollution, other public nuisances and outdoor advertising and water and sanitation services. With this broad mandate, the management of solid waste, including plastic bags discarded by a largely unthinking public, rests with the county government and in its failure shall the futility of the plastic bags ban lie. It is county governments' failure to effectively deal with solid waste that has roused the Cabinet Secretary to this fool's errand and its ineffectiveness can be blamed, in part, on county governments.

You, dear Kenyans, are not off the hook either. Any Kenyan whose basic education was completed in the 1980s and 1990s will remember that, in publicly-sponsored schools at least, children were exhorted, sometimes with a cane, to keep the environment clean. We never littered. We were conscientious about it. Some of us, I hope, internalised the benefits of a clean environment and are loath to litter with wild abandon. Many of you, however, are litterbugs of no mean repute. It doesn't seem to matter your academic credentials, economic accomplishment, station in life, age or relationship status: littering defines you. You litter on a colossal scale. Coupled with the lethargy and incompetence of your municipal authorities, you dump dozens of tonnes of plastic and other litter onto the environment without caring who will clean up after you.

The presumption that elimination of certain kinds of plastic waste will eliminate the plastic menace from the environment is naive. The substitution of plastic bags with more durable shopping bags, such as the ones promoted by supermarkets, or paper ones will not eliminate our plastic waste problem. We will simply replace one waste with another and the biodegradability of paper will not be the win/win aesthetic environmentalists will have you believe; the chemicals associated with the production of paper will, sooner or later, become a menace too. If you doubt this, visit Webuye, Rai-PanPaper mill's hometown and witness the aftereffects of the acid raid associated with paper production in Kenya.

If I had any confidence that the ban was part of a wider strategy to finally get a grip on its solid waste management problem. But I don't. The Cabinet Secretary doesn't seem to have gotten the buy-in of stakeholders including the vast majority of consumers ostensibly for whom the ban is being instituted. Manufacturers have been steam-rolled by this ban and it is almost certain that they will challenge the ban in the High Court. The National Treasury has not been consulted neither have the Foreign Affairs ministry nor the Industrialisation ministry, who must contend with the job losses and forex implications on the ban on manufacturing or importation. There is no strategy; that is a major reason why the ban will fail and the Cabinet Secretary will be left with egg on her face.

Tuesday, March 14, 2017

The Kansas City Shuffle

Its a blindfold kick back type of a game
Callled the Kansas City Shuffle
Whereas you look left and they fall right
Into the Kansas City Shuffle
Its a they-think you-think you don't know
Type of Kansas City hustle
Where you take your time
Wait your turn
And hang them up, and out to dry
(J. Ralph) 
What do you think you are being distracted from by popular hashtags, trending topics and wall-to-wall coverage on TV of largely meaningless politicking? There are many things that we are being distracted from, not the east being the massive amount of debt we owe international "development" partners like China, the United Kingdom and the United States of America or the World Bank and the International Monetary Fund.

The public debt, big or small, will need the dogged investigatory chops of the likes of the Mars Group, David Ndii, John Githongo and all those other scourges of the Jubilation that I feel that I will simply contribute more hot air than is climatologically safe. On the other scandals such as constitutional overreaches by members of the Executive or the legislature, Okiya Okoiti Omtata seems to be on the ball so far, so I'll let those go too.

On our falling under Big Brother's eye, I have seen little commentary by the libertarian champions of privacy. We are not just under the continuous beady eye of the Ministry of Interior and Co-ordination of national Government through its National Intelligence Service, National Police Service (Directorate of Criminal Investigations), the National Registration Bureau or the Department of Immigration. We are now being actively surveilled by our banks, the credit reference bureaux, the foreign exchange bureaux, watchmen and security personnel at each building in the business district, our supermarkets, our "upmarket" fashion houses, the taxman, political parties and, most insidiously, our telecommunications services providers.

Few of us appreciate how insidious the surveillance is mostly because we have ceded our privacy in inches without even realising. Simple transactions such as the registration of personal details when obtaining SIM cards from telcos have morphed into an expectation that individuals shall "willingly" part with their personal information wherever and whenever it is demanded, whether by public institutions or private parties. There is no earthly reason why we must share personal details at every instance. Even in those instances that they insist are security-related, it isn't necessary to provide private details to those that demand it.

Kenya is really schizophrenic when it comes to surveillance, privacy and security. Walk around Nairobi and the oppressive sense of imminent danger is hard to shake off. Every single public building is surrounded by a metal fence, sometimes the fence encroaches on what should be space for the walking masses. Each public building has at least four other layers of security: armed Administration Police from the Security for Government Buildings formation of the AP service, followed by private security, followed by CCTV and finally followed by the demand that every visitor to the public building to profer  their personal details before being granted entry. None of these measures have enhanced the security or safety of these buildings; instead, they have guaranteed that the State will always be seen as a hostile occupying force in their lives.

But the demand for personal details for every transaction, major and minor, is what should worry all of us. In the last month alone, thousands of Kenyans have discovered that since at least 2012 many of their details were used to register them as members of political parties with which they have nothing in common. The only way this could have happened is that their personal details were shared by someone who claimed an authority to demand them it the first place. The Data Protection Bill creates the impression that ones personal data can be protected from misuse; it would be better that everyone that would demand personal details should show very compelling reasons to demand it in the first place.

So, what else are we being distracted from?

Monday, March 13, 2017

How much money does your church make?

How much money does your church make? How much of that money goes to sustaining the church leadership to the style they are increasingly becoming used to? Have you blessed your church leadership with a holiday in Barbados of late? Shopping trips to Dubai, then? You did, at least, make sure that the church leadership does not schlep in PSV hell, didn't you?

I like the example that the Christ lived. Only the best was good enough for the Son of Man. Only untold luxuries were required for the Prince of Peace. If the Son of God ate, He had to eat the best dates, figs and lamb that could be found in Galilee. Had he been born in the twenty-first century, the pony he rode into Jerusalem for his trials and tribulations would have been a Rolls-Royce Phantom and the modern-day Pontius Pilate would have been seven self-important, self-aggrandizing, black-robed Judges of the Supreme Court. (He would be acquitted of all charges, of course, throwing the case into the hands of Pokot bandits, or some such shit.)

You know as well as I do that God doesn't listen to the unwashed, unkempt, unlettered, poor masses; God has His ears only for the man with the fattest wallet and the woman who consorts with him as his, uhmmmm, helpmeet...or something. That's why when Jesus issued the Great Commission it had a secret protocol: in addition to making disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to observe all that I have commanded you, please amass great wealth by any means necessary because no one goes to the Father unless they have a big-assed trunk of gold and shit.

If your church doesn't make enough money to acquire land and hospitals and bus companies and shares and stocks and houses and Rolls-Royces and Gulfstream 550s, you are certainly going to hell. Don't squander your money in gambling dens and houses of ill-repute like the pastor; give it all to the church. Every last penny is a seed that God shall multiply for your pastor - and for you, when the time is right and so long as you keep the faith. Yes, dear child, the fifty thousand that you hand over to apostle pastor doctor bishop will one day manifest itself in your life as a Rolls-Royce parked next your Range Rover outside your Kitisuru mansion with the hidden hangar in which nestles your Bell Jetranger helicopter.

Yeah, so how much does your church make?

On the Laikipian "invasions" (again)

This deadly convulsion is an escalation of what has been an untreated low-grade fever with the proliferation of arms among pastoralists, an almost certainty for the outbreak of deadly violence. (Daily Nation, Underlying factors in Laikipia crisis)
This sentence distresses me. It was written by the President of the Law Society. It is written with the confidence of the lawyer opining on a matter beyond his ken. It is written with little thought as to its inherent bias against the pastoralist. It is written to reinforce the unspoken rule: Pastoralists are backward and don't deserve official recognition as legitimate members of our society.

"...with the proliferation of arms among pastoralists" is treated as the spark that lights the tinder of the "low-grade fever". This "fever", kind people, are "[H]istorical grievances linked to access to animal grazing and water rights and land ownership and use..." No, sir. The proliferation of small arms is not the reason why violence was all but guaranteed. Indeed, the proliferation of small arms is snot the reason why there has been an escalation. The proliferation of small arms was inevitable in the Laikipian plains but it wasn't the reason that the force of arms have come to bear on the Laikipian plains during this drought.

No, sir. They are not "historical grievances". They are historical injustices. No matter how you paint the picture, the Laikipian plains tell the story of peoples that were dispossessed of their land and the dispossession enforced by, yes, the force of arms wielded by legitimate and illegitimate governments for more than a century. Take away their "small arms" and watch them fashion "crude" weapons and carry on the fight.

The "outbreak of the deadly violence" is simply not because every Moran and his uncle has an AK-47. It is because though the Moran is not the only one who was dispossessed, he is one of the very few who's culture was never respected, whose history was buried in English archives and forgotten, whose culture was appropriated by strangers for monetary profit, and whose land is now occupied by tourists, filthy towns and strangers' heads of cattle. The Moran is a stranger in his own land. Arms or no arms, violence was inevitable.

Our identity as a free people is a farce if a people were dispossessed of their land and vilified by their very own government and public institutions as "invaders" and "bandits".

Mr Mwangi is no lawyer

Rhetoric and hyperbole form the main oratorical tools of politicians seeking public office. The grander their verbal theatrics, the theory goes, the better they connect with their constituencies and the likelier they are to get elected (or appointed) to high office. In Nairobi's Starehe Constituency, Boniface Mwangi is seeking to be elected as its representative in the national Assembly in the 2017 general election. As part of his against-the-establishment persona that he has cultivated with impressive vigour since 2012, Mr Mwangi makes the following allegation,
The Kenya constitution forbids Cabinet secretaries from political party activities.The people supposed to uphold the laws are breaking them. @bonifacemwangi
He had earlier declared with authority that,
A cabinet secretary taking part in a political rally is illegal.President @UKenyatta the cabinet officers at your rally are breaking the law. @bonifacemwangi 
The law is not clear-cut. The provisions of Chapter Six of the Constitution on leadership and integrity and Articles 152 and 153 of the Constitution are silent on whether or not Cabinet Secretaries (and their counterparts in the county government, Members of County Executive Committees) are forbidden from taking part "political party activities" or in "political rallies". The Leadership and Integrity Act (No. 19 of 2012) provides at section  23 for the political neutrality of State officers and public officers. It states that
(1) An appointed State officer, other than a Cabinet Secretary or a member of a County executive committee shall not, in the performance of their duties—
(a) act as an agent for, or further the interests of a political party or candidate in an election; or
(b) manifest support for or opposition to any political party or candidate in an election.
(2) An appointed State officer or public officer shall not engage in any political activity that may compromise or be seen to compromise the political neutrality of the office subject to any laws relating to elections.
(3) Without prejudice to the generality of subsection (2) a public officer shall not—
(a) engage in the activities of any political party or candidate or act as an agent of a political party or a candidate in an election;
(b) publicly indicate support for or opposition against any political party or candidate participating in an election.
This section of the law has not been subjected to the interpretation of the High Court which is the only institution charged with the responsibility of interpreting the Constitution. For example, does sub-section (1) mean that CSs and MCECs can "act as an agent for, or further the interests of a political party or candidate in an election" or are they prohibited as "public officers", in terms of sub-section (3), from "engag[ing] in the activities of any political party or candidate or act[ing] as an agent of a political party or a candidate in an election"?

Mr Mwangi has many virtues. Being a lawyer is not one of them. Being a constitutional lawyer is definitely not one of them. He should stop pretending that he possesses definitive authority on knotty politico-legal questions that are yet to be definitively determined.

Friday, March 10, 2017

#CreativeKE and #Cap222Review

Dear #CreativeKE,

I write to you on the question of the review of the Films and Stage Plays Act, chapter 222 of the laws of Kenya. I have followed some of the debate on the matter and I fear that the Kenya Film Classification Board and its chief executive officer are driving the discourse in an unhealthy direction.

When the KFCB was established, it was established as a censorship board, not a classification board, and its mandate, principally, was to control the exhibition of films that the political leadership could have found sensitive. It performed its mandate not by banning films but by requesting "excisions" of the "cinematographs" that would protect the sensibilities of the political leadership. As part of its mandate, it was also responsible for the licensing of cinemas and the authorisation of film posters, another way in which it could control (on behalf of the political leadership) who could see a film and whether or not any person could find out about a film through its posters.

After 2003, censorship was out and classification was in. But even in that guise, it was becoming apparent that KFCB was long past its "sell by" date; online content and online streaming were near-impossible to regulate and television was and still is the exclusive preserve of the Communications Authority (and its predecessor, the Ministry of Information and Broadcasting). KFCB has no mandate to regulate broadcasters; even in the regulation of the "watershed period", KFCB's role is limited to the classification of films that are intended to be broadcast on television and no more.

The Ministry of Culture, through its Department of Film Services, is responsible for licensing and accrediting foreign and local filmmakers shooting films in Kenya, not the KFCB. It is important to remember that the Department of Film Services does not license or accredit where films may be shot in Kenya. When it comes to the question of where to shoot films, it were local authorities that regulated this activity and, post-2013, county governments, not the KFCB. As an added wrinkle, post-2010, the Fourth Schedule to the Constitution (Part 2, paragraph 4(d)), county governments have powers over cinemas too, which might supersede the KFCB's powers to regulate cinemas under cap. 222.

These are some of the issues that you must consider before engaging with the KFCB as a maker of policy.

The KFCB is caught in a time warp. When it was established and when its mandate was revised between 1997 and 2002, technology underwent a revolution. The advent of the Digital Revolution meant that the producers and dissemination of film no longer had to rely on cinemas or television nor did they need to produce content in Kenya in order for that content to be viewed in Kenya. Many of the tools at their disposal are communications technologies for which the Communications Authority is still trying to regulate effectively. It's jurisdiction over broadcasters and communications companies means that it can regulate where and how these companies operate but it might find it impossible to control what they disseminate.

The current system where the KFCB must review a film before it is shown in cinemas or broadcast on television affects a very small segment of the content available to Kenyans. The majority of content is now produced for dissemination through the internet and other digital tools over which the technology is far ahead of the capacity of regulators to regulate. It is why, for example, that the Constitution provides that the control of pornography is a function of county governments and not the national government, because the county government has a better chance of regulating who can sell content, to whom and where.

An area that should be explored regarding the protection of consumers, including vulnerable consumers such as children, from harmful content is the role of consumer rights organisations (who form part of civil society). A healthy relationship between them and associations of content producers can identify areas of common ground, such as how to identify content that might be harmful and agreeing on guidelines to be used to prevent that content from either being produced or disseminated to the vulnerable. The model used by the United States incorporates ratings by the Motion Picture Association of America and the application of the TV Parental Guidelines. Co-operation between content producers, federal and state regulators, consumer watchdogs and parents' associations has, in the light of US constitutional protections, evolved to provide relevant information to consumers of content to enable them to make informed decisions about what content to expose their children to.

Finally, regarding the question of encouraging investment in content production, again, this is not a role that the KFCB as a film-certification body can effectively perform. Financiers and content-producers look to a return on their investment by reducing overall costs of production and increasing profit margins by lowering or eliminating taxes (or claiming tax rebates). These are policy decisions best made by the National Treasury, the revenue authorities and county governments, with financiers, content producers, exhibitors, broadcasters, distributors and performers as key stakeholders. The Kenya Film Commission, whose mandate includes facilitating investment in film projects is better placed to perform this role than the KFCB.

I believe that a review of cap. 222 is long overdue. The ideal revision would be a separation of film and theatre to begin with; both rely on vastly different technologies and facilities. Second, a simplified regulatory environment would improve regulatory activity; the fewer the regulators, the higher the chance for regulatory compliance. In this case, given the split mandate between national and county governments, focus should be on standards that can be effectively implemented at county level. Third, incentivising investment will mean the reduction of licenses and permit by the elimination of many. A one-stop shop for certification, broadcasting, exhibition and production should be the long-term plan for the sector. Finally, regulatory enforcement should take into account not just the needs of investors but consumers as well and thus the involvement of consumer watchdogs should be incorporated, especially in the area of content rating, classification, broadcast, exhibition and distribution.

I hope these thoughts offer insight.

Thursday, March 09, 2017

Land hunger and historical injustice (Cont'd)

This is what I have said,
If you keep looking at Laikipia as a "tourism and [wildlife] conservation" investment destination, then you will continue to miss the most important question of the century: how will you solve Kenyans' land hunger if you don't resolve historical land injustice? ~ Land hunger and historical injustice
I think I should carry on in this vein.

The Laikipian "invasions" are by well-armed herders with thousands of head of cattle looking for water and pasture. The most important of the victims of the Laikipian "invasions" are "investors" who occupy tens of thousands of acres of land and engage in raising livestock, conservation and tourism-related enterprises, such as safari lodges. The "invaders" have left their homes in the care of wives, mothers, sisters, children and old men. They have also left behind large herds of sheep and goats, ignored the gerontocracy that eschews violence, and travelled to the Laikipian plains in the full knowledge that what they are engaged in is unlawful and that is why they are armed to the teeth with assault rifles. That is the short of it.

Let us look at how an injustice of historical proportions is reducible to a sweeping generalisation about the benevolence of non-native investor-rancher-conservationists and the black-hearted malignant intents of invaders engaged in "[g]risly [ ] rituals of warrior status involving big game, long since extirpated in their own land".

The legacy of the "native reserves" has never been addressed; inadequate solutions like "settlement schemes" in the 1970s and 1980s only served to exacerbate the situations; communities that had been driven off ancestral lands were never permitted to return. One of the most tragic institutions in the 1970s and the early 1980s was the wildlife department in the Ministry of Environment and Natural Resources that became the rubber-stamp for post-colonial evictions of entire communities from ancestral and community land in the name of environmental or wildlife conservation, such as the removal of the Endorois from the land surrounding Lake Bogoria in the mid-1970s and the eviction and transportation of the Ngulia from what became Tsavo West Nation Park, not once, not twice, not thrice but four times. In both instances, tourist lodges catering for the appetites of foreign tourists were established, too expensive for either the Endorois or the Ngulia to patronise but benevolent enough to give their children menial jobs in the kitchen or in the field as gardeners, car-washers, "entertainers" and bush guides.

The land, for the Endorois or the Ngulia, wasn't simply for the production of food or for use s capital in commercial enterprises; the land held a special spiritual place in their hearts and their culture (cultures that have been attacked by many of those who see land in strictly economic or commercial terms as barbaric, outdated and evil).

"Native reserves" and the colonial policies that sustained them have survived three post-colonial administrations. It is why the third post-colonial administration fought tooth and nail to deny that the first and second administrations had not, for all intents and purposes, attempted the socio-cultural genocide of the Endorois. Land is useful only as a means of production. The end! It has no intrinsic, religious or cultural value. It must be protected from even its true owners.

One of the more pernicious uses of the "native reserves" was to keep its inmates (yes, they were treated as prisoners) ignorant, uninformed and uneducated. The "education" the inmates received was just enough for them to hire out their labour as shamba boys and kitchen totos (look it up). Today, this "education" is sufficient for the vast majority of them to hire out their labour as shamba boys, herdsmen, "cultural dancers", watchmen and members of armed militia sponsored by political actors with axes to grind with Kenya's post-colonial landed gentry. An entire civil service (as well as a military service) exist solely to ensure that the "natives" don't exceed their boundaries: look at the shambolic state of the public education and healthcare system and tell me this isn't true. (And the likes of Bridge Academies are no panacea to widespread miseducation, and critical lack of critic thinking skills.)

I wasn't wrong. Laikipia has been in the making since 1896. If we refuse to learn the proper lessons from our history, the blood-red symbolism in our national flag will take on a whole new significance.

Land hunger and historical injustice

Europeans arrived and built a railway in Kenya in roughly 1900.
The Laikipia treaty in 1904 moved a few thousand Maasai to southern Kenya...If Laikipia is one million acres, there is approximately 500,000 in private hands in ranches and conservancies that encourage wildlife.
If you can read these sentences without your sense of history being assailed, then you are a lost soul.

Between the establishment of the Imperial British East Africa Company and the lowering of the Union Jack sixty-seven years later, the territory that came to be known as the Kenya Colony was invaded by citizens of Great Britain, many of whom were granted immunity of prosecution whilst allowing them the right to raise taxes, impose custom duties, administer justice and make treaties.

Many of the peoples of the Kenya Colony were herded, like livestock, onto "native reserves" where their "native rights" could be "recognised" by both the Imperial British East Africa Company and its successor the Colonial Government.

The peoples of the Kenya Colony had no choice in these matters; the "charter" granted to the Imperial British East Africa Company and the royal ordnance that established the Kenya Colony made no reference to the existing political arrangements except, perhaps, to determine them to be of an inferior quality, ripe for extermination and, in the words of the late Mr Voorspuy, extirpation.

The seeds of the Laikipia "invasions" were planted over a century ago, nurtured by a trading company, a colonial government, and successive post-colonial administrations that refused to grasp the stinging nettle that were "historical land injustices" but instead entrenching colonial-era systems that dispossessed entire ethnic communities, rewarded political loyalists and protected unfair arrangements between colonial era land barons and the landless.

Mr Voorspuy's death is tragic and so are the deaths of the unnamed Kenyans falling victim to gunfire from bandits in Laikipia's lawless areas. We can blame the "political bigwigs" fomenting trouble in Laikipia in this election year and deploy Kenya Police "reserves" and paramilitary police to "restore law and order". But so long as we refuse to deal with the legacy of 67 years of British occupation of Kenyan lands, we are simply putting band-aids on gangrenous wounds. Mr Voorspuy will not be the last victim of these circumstances. Neither will the scores of innocent Kenyans who have fallen due to the machinations of politicians and "investors". 

If you keep looking at Laikipia as a "tourism and [wildlife] conservation" investment destination, then you will continue to miss the most important question of the century: how will you solve Kenyans' land hunger if you don't resolve historical land injustices?

Wednesday, March 08, 2017

The anti-Raila canon

Opposition to a Raila Odinga presidency has been elevated to a religious precept by every cat and its uncle in the ruling alliance. It doesn't really matter that the contradictions of an Odinga presidency are plain to see, the Jubilation is living in a permanent state of crisis, fearing that Mr Odinga is the schoolyard bully out to take their lunch money and send them home screaming for their nannies.

If there has been one organising principle of all the streams that brought Messrs Kenyatta and Ruto together is that the Government of Kenya must never fall into the hands of Mr Odinga and his acolytes. The canon of the anti-Odinga religion has it that Mr Odinga is a communist, the son of communist, with communist contacts and, after the successful socialisation of the Kenya Chemical and Food Corporation (better known as the Kisumu Molasses Plant), socialistic intentions for the hundreds of thousands of acres of land that Messrs Kenyatta, Ruto and the members of their faith owned. One of the pillars of this strange religion is that it doesn't matter how bad things get between its co-religionists, none of them will become an apostate and sing Mr Odinga's praises, even when he deserves the praise, as when he offered to testify on behalf of the accused at the Hague in the strange affair over the post-election violence, PEV.

There is a liturgy to this religion and a gospel that is spread by the religions clerics, some of whom have the gift of oratory that can paint Mr Odinga as the monster they fervently wish their vote-banks to see him as. It always comes as shock to the penitent in this religion when they finally meet Mr Odinga in the flesh and it turns out that he has the same desires that they do: peace, prosperity and national pride. The coup-plotting traitor who wants to drive the Kikuyu and Kalenjin into the Indian Ocean turns out to be a man who believes strongly in a national character and identity that binds all Kenyans, believes that private property must be protected from a rapine state, believes that the rule of law applies to one and all without fear or favour, believes in fairness regardless of ethnic or lingusitc background, and has suffered at the hands of both the first and second presidents and has been betrayed and demonised by the third and fourth.

When the scales fall from their eyes, they realise that while Mr Odinga s not the ogre that their false prophets have declared him to be, that he is too old and too set in his ways to rescue Kenya from the dire political and economic straits it finds itself. Mr Odinga is St John the Baptist to Kenya's true political liberator: he has led the way to a more equitable and prosperous nation but he is likely never to the one to bring Kenya to its true potential. In their deepest hearts, they know this to be true. But as in all religions, none wants to be excommunicated and labelled an apostate; their faith sustains their irrational paranoia regardless of the terrible consequences on their mental, social , economic and political well-being.

Tuesday, March 07, 2017

Please don't torture us any more

Dear Evans and Jonathan,

I think it is time we held a come-to-Jesus meeting so that we can explain to you in terms that even you can understand why we think you are the biggest pair of white elephants since the Siam became Thailand and why, if that #FagiaWote hashtag isn't some sort of cruel joke, these are your final few months of making our lives a misery.

You two had wonderful ideas and the photo-ops you, Evans, engaged in when window-shopping for BRTs was impressive. That was then. Today, there is an entire swathe of the business district that resembles Fallujah: massive craters that some people generously, and erroneously, call potholes; massive mountains of garbage; narrow pedestrian walkways; noise, dust and diesel fumes; and massive crowds tripping over themselves because of the men and women you hope to turn into a vote bank: hawkers.

I understand that the principal job of an elected official is to get re-elected and you are not as different from the other men and women seeking high office. It's what your species does. What I don't understand is why the two of you have such a jaundiced eye of the walking masses. Why do you hate pedestrians and low-income labourers so much? Why do you want to exterminate them? What do you have against the men and women whose labour subsidises your lives to an almost insane degree?

Before you start issuing denials, get out of your suit and walk, incognito, down Haile Selassie Avenue, between the Jesus Is Alive Ministries HQ and the Landhies Road entrance to the Muthurwa Market-cum-bus-station. If you, after keenly looking at the environment that you have allowed to develop, are till convinced that you id all you could since you became the political and administrative leaders of Nairobi City County, then I fear that it will be further proof that you really don't know anything about managing a complex institution such as a county government. 

The pedestrian walkway is more or less a permanent make-shift market. It remains paved in parts; the rest of it is dust which, during the rainy season, turns to mud. The walkways are also too narrow for the huge numbers of people coming from the bus station, Kamukunji, Gikomba, OTC or Central Bus Station. Then there is the garbage that is generated by your makeshift market; the quantities defy logic and might also include mountains that are dumped out of Wakulima Market and Retail Market at the roundabout connecting Haile Selassie Avenue, Ring Road and Landhie Road.

On that ground alone, you do not deserve a second term. You do not deserve to hold any public office. It is proof that you are totally unconcerned with the welfare of the most vulnerable residents of this city. And it is an indictment of your failures at every turn. You should be ashamed of yourselves.

Please don't stand in the 2017 election. We've suffered enough.

We need to learn, again, how to think

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