Tuesday, February 27, 2018

It's a stupid plan

If the Jubilation really wanted to "revisit" the issue of the Judiciary's independence, then the petition for the removal of members of the Judicial Service Commission is the wrong gambit. While the petition is likely to receive favourable hearing by the Jubilation-packed Justice and Legal Affairs Committee of the National Assembly, the outcome of the petition will not "fix" the Judiciary problem that confronts the Jubilation. In fact, it will stymie any immediate future plans that the Jubilation may have for the Judiciary because it will deny the JSC a quorum to hear any petitions for the removal of a judicial officer. The Chief Justice may, theoretically, be removed from the JSC but that is not the same as removing him from the office of the Chief Justice.

What is certain is that the Jubilation had attempted to steamroll the Chief Justice and the Deputy Chief Justice when the member for Nyeri Town petitioned the Commission to hear his diatribe against the two. He was laughed out of the courtroom. It is fit and proper that the Commission set a high bar for the quality of the proof that will be needed to hear a petition against judicial officers and recommend to the President the appointment of a tribunal to investigate the judicial officer. Now the Jubilation is throwing a "Hail Mary Pass" by going to the friendlier though, largely ineffective, National Assembly. It is a stupid plan.

What it isn't

The removal of a judge may be initiated only by the Judicial Service Commission acting on its own motion, or on the petition of any person to the Judicial Service Commission. -- Article 168 (2)
A person desiring the removal of a member of a commission or of a holder of an independent office on any ground specified in clause (1) may present a petition to the National Assembly setting out the alleged facts constituting that ground. -- Article 251 (2)
An advocate of the High Court of Kenya seeks the removal of members of the Judicial Service Commission in a petition he has made to the National Assembly under Article 251 of the Constitution. many lawyers have responded y accusing the advocate of being a shill for the Jubilation in its assault on the Judiciary. They argue that the National Assembly is the wrong forum for seeking the removal of judges from office. They conveniently ignore that the petitioner seeks the removal of not just the judges sitting in the Judicial Service Commission, but also magistrates and the representatives of the Law Society of Kenya.

The petitioner does not seek the removal of judges [of the superior courts] from judicial office; if he did, then the National Assembly would be the wrong forum. He would have had to petition the Judicial Service Commission itself under Article 168. But if that was his intention, then his desire to remove the representatives of the Law Society would not be determined under Article 168, hence his decision to approach the National Assembly.

The petitioner, though, has not considered the full implications of his petition. If he succeeds, the outcome will be that the judges and magistrate will only have lost their seats on the commission but will continue to hold office as judges or magistrates. Thereafter, the commission will have lost its quorum and, therefore, will be unable to sit to hear any petition to remove a judge of a superior court, including the removal of the Chief Justice, the Deputy Chief Justice, or the removal of a magistrate, from office. These judicial officers will continue to hold office regardless of their fitness to hold office.

It remains unknown what the petitioner intended with his petition to the National Assembly or whether he is even familiar with the potential constitutional problems a successful petition will engender. This is a hallmark of many Jubilation "experts". Isn't it time the Jubilation took time off to go back to school?

Thursday, February 22, 2018

Men must be made uncomfortable

I knew for a fact that this man did not respect me. I had been publicly preyed upon and now was expected to constantly be in the presence of my predator. Be civil. Pose for pictures with him. Act as though there was nothing amiss even as the photographer insisted that we at least try a little not to look like total strangers. Venture to perhaps even smile for the pictures. - Dear Men I Hope This Post Makes You Uncomfortable: Thoughts On Sexual Harassment
There is no way that a man can appreciate what it must feel like for women to manuevre in a world that is dominated, shaped, influenced and ruled by men. Not even when a man has a grandmother, mother, sister, daughter, girlfriend, wife or mistress. And for the majority of us, men, we won't even attempt to walk in women's shoes. When the stories of our masculine lives are written by men, published by men, critiqued, criticised and appreciated by men, we have no incentive, personal, cultural, ethical, economical, political or professional, to appreciate why women continue to suffer - and hide their suffering lest it be used as a weapon to oppress them further.

Whichever words or expressions have been used to describe the thing of it - patriarchy, male privilege, phallocentrism, rape culture - one thing remains true: few men pay a price for reveling in their privilege at the expense of women. So it is fit and proper for women to discomfit as many men as they possibly can by telling and retelling their stories of how they navigate their lives in a man's world. It is why I am so grateful for Kathleen Siminyu and the rage she feels because of her experiences. More female voices like hers are needed to lay to waste the male privilege that disempowers the vast majority of women.

Men must acknowledge, culturally, professionally, politically and economically, that women are their equals, that neither is the superior of the other and that every person deserves to have their dignity respected and affirmed at all times. And for this to happen, men must cede their privilege in all respects. When a woman walks into a meeting room, it should not be automatically presumed that she will remain silent, expected to fetch tea, give the opening prayer or defer to the authority of a man or the men present at the meeting.

Men must also call out, challenge and confront other men when they take liberties with women that they are not entitled to. For example, simply because a woman is out alone at a disco doesn't mean that she is "fair game" or that she is need of masculine company; any man who approaches her must do so with the expectation that his advances may be rejected and that it is well within the woman's dignity to reject his advances. And if the woman accept his advances, she will do so on her terms alone.

It will not be easy for men to give up their privileged status. Indeed, I fear that the resistance to change will be fierce. It is why as many many men as possible must be confronted and punished when they violate the dignity of women in any way. Don't get me wrong; I am not calling for a war of the sexes. But no man should walk proudly with his head held high after he violates the dignity of any woman. And by punishment, I don't just mean through the formal court process; but I also mean by the social, cultural, political and moral weapons available. It must be drilled into all persons that we are all equal and that our dignity is not superior to another person's.

Monday, February 12, 2018

Not our saviour

Boniface Mwangi is a talented and accomplished photojournalist. He is also a talented political activist -- his ability to shame men and women of political power is almost unparalleled. But Mr Mwangi is not a talented politician. I don't base my assessment only because he was soundly defeated by Charles Njagua Kanyi, better known as the musician Jaguar, when he stood in the last election for the Kamukunji seat in the National Assembly. I base it on the fatal mistake that guaranteed his defeat.

Mr Kanyi is nowhere near being a talented musician or politician; yet, both his jams and his political career have thrived (though, in electoral politics, six months is too short a time to measure success or failure). But he recognised an iron law of politics: unless you are a Nelson Mandela, a George Weah, a Kizza Besigye or a Raila Odinga, it is pointless to reinvent the wheel. Bar one or two anomalous ones, every single political party in sub-Saharan Africa has sang from the same song-book if not the same song-sheet: make Government more democratic; give the people more power; safeguard the people's rights; ensure the benefits of development are shared more widely; improve access to public services for the marginalised; uphold the rule of law; prudently manage public funds.

In registering the Ukweli Party, Mr Mwangi and his supporters trod a path that had been trodden before, in Kenya, by Kenneth Matiba, Mwai Kibaki, Raila Odinga, Paul Muite, Charity Ngilu, Martha Karua, Julia Ojiambo, Nazleen Umar, and Uhuru Kenyatta, among many others. In Kenya the most common political cliche is the registration of a new political party to correct the mistakes of all the political parties that came before. It is neither an original nor, in the vast majority of instances, a successful gambit as Mr Mwangi discovered (and as did also-rans like Ekuru Aukot and Mohamed Abduba Dida). If that were not bad enough, Mr Mwangi made the same promises every founder of a political party has made since 1963 with a dash of social-media-fed hubris thrown in for good measure. Mr Mwangi believed that his very public and very evocative campaign against "MPigs", his favourite sobriquet for parliamentarians, over their pay and other shenanigans was a firm foundation for a successful small-party career. He was wrong.

It is easy to start a political insurgency; it almost impossible to sustain one if you don't appreciate the situation on the ground. We have known this since 1992: new political parties are not the answer to Kenya's political crises or problems. They, sometimes, are the problem because they rarely espouse the democratic principles their founder-members spout in public. Almost all Kenyan political parties, if not all, are the personal political vehicles of heir "owners", owned and operated with the sole purpose of electing the owners to Government. As a result, while many are membership organisations when they are getting off the ground, they cease being so once an elite captures the party structures: governance bodies and fund-raising apparatus. And if a party is lucky enough to send a candidate to Parliament, he or she almost always betrays the party's rank and file, sinks his nose in the parliamentary trough and acquires airs and tastes that only a few months before he or she had railed against as being arrogance and theft. In Parliament, there are no saints.

Raila Odinga has done a lot of heavy lifting when it comes to changing the politics of Kenya and even he knew that Lone Ranger insurgencies almost always end in defeat. It is why he merged his party with Moi's Kanu in 2002 and another party with Mwai Kibaki's DP, with others, to form the National Rainbow Coalition. It is why he teamed up with Kalonzo Musyoka, Musalia Mudavadi and Uhuru Kenyatta in 2005 to form the Orange Democratic Movement that defeated the Wako draft constitution. And it is why he had no problem being part of the Coalition for Reforms and Democracy in 2013 or the National Super Alliance in 2017. Only once has his coalition building been a success; but just because he has not been elected president yet doesn't mean that he has failed. Indeed, Mr Odinga is the single most important political subject in Kenya today, obsessed over by supporters and rivals, friends and enemies alike. In the Government, Mr Odinga has stamped his imprimatur; Mr Mwangi, on the other hand, will probably merit only a footnote but not much more.

Mr Mwangi and the Ukweli Party, the hubris of the party name notwithstanding, don't have a monopoly on the truth or political good intentions. Therefore, they are not the only saviours of Kenya waiting in the wings. If he is incapable of joining or building a coalition with existing political parties, in which he must swallow his pride and work with some MPigs, Mr Mwangi will never set foot inside the august chamber of the National Assembly and if he does, one of two things will happen: his will be an acrimoniously short stay or he will bury his nose in the same trough just like the other MPigs. What will not happen is that he will not reform the National Assembly and he will not save Kenya.

Excuses

The Washington Post, in its banner, declare that "democracy dies in darkness". How cute. The modern history of the world, with its nations, theocracies and monarchies, has been one in which the people invited the end of democracy and the birth of dictatorship, among other illiberal forms of government. It is why it is amusing to see the largely ineffectual freakout among Kenya's chattering classes over the events of the past month. Everyone and his cat (well, everyone that is not a card-carrying member of the Jubilation) is suddenly an expert on "media" freedom, citizenship, "dual" citizenship, "high" treason, due process, "court orders", habeas corpus, freedom of assembly and of movement, public international law, the Vienna Convention on Diplomatic Relations, et cetera, and all because Raila Odinga took an oath to serve as the "people's" president.

Constitutional rights and freedoms, no matter how much we repeat that they are not granted by the State, are meaningless if the constitutional norms that underpin their enjoyment and protection are ignored by the majority of the people. We may have a good constitution in our hands; whether we are good constitutionalists remains (to my mind) highly contested. I am constantly surprised at the extent many of us will go to repudiate constitutional principles if it will stymie our rivals' plans and promote ours.

For instance, Article 27 (1) declares grandiosely that every person is equal before the law and has the right to equal protection and equal benefit of the law. This constitutional right is meaningless if we do not apply the principle of the rule of law, wherein parties to a dispute are treated in the same way by the courts and where the orders, decrees and judgments of the courts are obeyed without question. In Kenya, Article 27 (1) is mocked every day that the courts treat the wealthy differently than they treat the poor; where the courts almost always defer to State agents and turn a deaf ear to private parties; where the State privileges the comfort and safety of State officers while leaving private citizens to fend for themselves; and where some parties enjoy the luxury, nay right, to ignore unfavourable court orders without facing any sanction from any quarter.

That we, "the people", have largely accepted this state of affairs, by using violations of the principle as cudgels to batter our rivals while ignoring our own violations, is proven by how the recent violations of the principle have elicited yowls of protest from Oppositionists, shrugged shoulders from Jubilationists and a cast-iron guarantee that State officials like the Cabinet Secretary for the Interior, the Inspector-General of Police, the Director of Immigration and the Attorney-General will not be answering difficult questions about court orders from judges or magistrates any time soon.

We, "the people", have done nothing to disabuse these people as to the folly of watering down the meaning and import of constitutional norms. Instead, we spend more time arguing about absolutely stupid ideas like "benevolent dictatorship". Democracies don't die in darkness. They die in the full light of day when people find excuse after excuse to not do the hard work of building, nourishing, sustaining, deepening and defending a democracy. In Kenya, we have heard all the excuses: we are too poor; we were not ready for Uhuru; it is the fault of the colonial government; tribalism is to blame; neoliberal policies have destroyed social safety nets; terrorism is an existential step and we must deal with it first; we are too corrupt. 

Dozens more excuses have been made save the one that truly matters: while we have written and amended constitutions and laws, build and destroyed public institutions, and elected and deposed governments, we have not inculcated constitutionalism in the fabric of public life. Instead, we have favoured cults of personality based on class wealth, tribal superiority complexes and the instant gratification that political and economic corruption engenders for an elite few. Worse still we have no interest in inculcating constitutionalism in the fabric of public live. It's too hard; it's too expensive; we are not ready; we are too corrupt. After fifty-five years, we have become adept at making excuses.

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...