Thursday, March 29, 2018

A legacy of immiseration

Miguna Miguna is an extremely unpleasant person. He is also a Kenyan whose rights have been grossly violated. Mr Miguna's plight continues to affirm the state of Government, the body politic and the place of the people in the questions that affect their lives. Mr Miguna's tribulations are of a piece with the political theatre that surrounded the wrong neurosurgery of the wrong patient at the Kenyatta National Hospital, the schizophrenic declaration that Government was importing "affordable" maize stocks from Uganda while NCPB silos were bursting at the seams, the total abandonment of the one-laptop-per-child programme in favour of the "pilot" phase of the "new" curriculum rollout, and the continued failure of both the executive and parliament to comply with the two-thirds gender principle of the Constitution.

In the days when cabinet ministers were powerful men, like in the late John Michuki, it never occurred to judicial officers to give orders or directions that would displease the president; that was a sure way to great personal jeopardy. It all changed with Mwai Kibaki's election in 2002 and the chants that rent the air on the day he was sworn in: YOTE YAWEZEKANA BILA MOI. It was a rallying cry for the end of impunity. It was shortlived, in many cases, but with Mwai Kibaki's ill-fated "radical surgery" of the Judiciary, a anew cadre of judicial officers was appointed that, against great and corrupting odds, have kept more or less to the path of governance reforms.

Our Judiciary still has many things to get right, but by and large, beginning with the radical surgery, things are improving. The same is not true of the executive or parliament. In both, impunity goes from strength to strength, bolstered by a keen desire to not paint each other in bad light. Parliament will not hold members of the executive to account for their gross acts of constitutional sabotage and the executive will bend over backwards to ensure that the gravy train members of both institutions are riding remains untroubled by court orders or constitutional principles. It is why the Cabinet Secretary for Health hasn't lost her job for presiding over disfunctional referral hospitals and why the Cabinet Secretary for Education can get away with declaring blithely that it is parents' and children's faults that students and pupils perform abysmally in national examinations. It is why the National Treasury CS will one day admit that the Treasury is broke and then turn around the following day and utter those famous words beloved of Kenyan politicians: I was misquoted.

If there is an event that showed just how disfunctional the executive has gotten, it was the presence of the wife of a senior state officer together with public officials from the roads ministry at the sight of numerous fatal road traffic accidents for the purposes of a religious ceremony known as a "cleansing". Government had completely failed to get a proper handle on the accidents on that stretch of road and had decided to fall back on superstitious practices overseen by dubious ministers of religion as the only solution. It reminds me of that time the Zambian president called for prayers to halt the kwacha's freefall against global currencies.

Miguna Miguna is what happens when public institutions atrophy and then shut down. Everyone is in it for themselves. The rights or the needs of the people play second fiddle to the need of Government to sustain itself at all costs. It is almost certain that in the next four years as the executive and parliament try, and fail, to implement the Big Four Agenda, public healthcare services, basic education, public safety and the rule of law will all take massive hits after massive hits. The lasting legacy of this regime will be the immiseration of the most vulnerable and neglected Kenyans: the ones who are and shall remain poor.

Wednesday, March 28, 2018

Is Miguna Miguna a Kenyan citizen?

Is Miguna Miguna a Kenyan citizen? Kenyan citizenship law should be straight forward. Article 13 (2) states, 
Citizenship may be acquired by birth or registration.
Article 14 (1) states,
A person is a citizen by birth if on the day of the person’s birth, whether or not the person is born in Kenya, either the mother or father of the person is a citizen.
And Article 14 (5) states,
A person who is a Kenyan citizen by birth and who, on the effective date, has ceased to be a Kenyan citizen because the person acquired citizenship of another country, is entitled on application to regain Kenyan citizenship.
Article 14 (5) contemplates a situation where a Kenyan citizen by birth who had ceased to be a citizen due to the acquisition of the citizenship of another country. Proof of citizenship is usually by way of a passport issued by that country's government. Mr Miguna possesses a Canadian passport, making him a Canadian citizen.

Section 97 (3) (a) of the former Constitution stated,
A citizen of Kenya shall, subject to subsection (7), cease to be such a citizen if ... having attained the age of twenty-one years, he acquires the citizenship of some country other than Kenya by voluntary act (other than marriage)...
Subsection (7) isn't germane for our purposes.

Mr Miguna's case is the aftermath of the swearing in of Raila Odinga as the People's President which Mr Miguna witnessed and commissioned (as an advocate of the High Court of Kenya) the document that declared Mr Odinga as the People's President. Members of the ruling party and senior officials of the national executive have declared that Mr Odinga's swearing in ceremony was an act of treason and that any person who participated in or witnessed the ceremony without doing anything to stop it was also complicit in that act of treason. Mr Miguna falls into that category of witnesses and participants who have riled up the members of the ruling party and senior officials of the national executive.

The treason charge is patently laughable and that is why no one has been charged with treason for participating or witnessing Mr Odinga's installation as the People's President. It is why Mr Miguna was arrested, detained and deported on immigration grounds and not for treason. During his weekend odyssey with officers of the National Police Service, the Cabinet Secretary, the Inspector-General and the Director of Immigration were all ordered to, variously, produce Mr Miguna before the High Court, restore his Kenyan passport to him, and hold off on deporting him until the court determined the matter. All orders were ignored. But the question of Mr Miguna's citizenship was never definitively settled.

Had the national executive obeyed the orders of the High Court, we would have been able to answer the following questions: how Mr Miguna lost his citizenship (or when he acquired Canadian citizenship); when Mr Miguna obtained his new Kenyan passport and how; when Mr Miguna obtained his national ID card and how; and whether or not he had committed any offences regarding his immigration and citizenship statuses.

So, I ask again, is Miguna Miguna a Kenyan citizen?

Tuesday, March 20, 2018

The suspect class

If you can no longer trust what a CBK official tells you, why ask him about signatories? Won't his answer be dubious as well? Like asking the waiter if the samosa was cooked today - of course he'll say yes! @mungaikihanya
There are many things that we instinctively believe to be true about our public officials. Few of those things tend to be virtuous. The things we tend to remember about our public officials we have learnt from experience. While national opinion poll after national opinion poll continue to rank the most corrupt public institutions -- the National Police Service and the Ministry of Lands are notable champions in this regard -- our impression of the Central Bank of Kenya is largely positive even if, every now and then, weird things happen that the Bank can't explain.

Of the three public finance institutions, the other two being the National Treasury and the Kenya Revenue Authority, the Central Bank continues to enjoy a good press, especially now that it seems to have extricated itself from the messes created by Njuguna Ndung'u and Andrew Mulei. But some of us have far longer memories and we well remember that the Goldenberg swindle would not have succeeded for as long as it did if the Central bank hadn't played a key role. Of recent vintage are intrigues surrounding payments made in the NYS scam and the never-ending quest to award a tender to print Kenya's next-generation currency notes and coins.

It is likely that Patrick Njoroge is an honourable man and that Wallace Kantai is being forthcoming about the second billion-dollar Eurobond. But if Mr Njorge and Mr Kantai choose to share information about how the proceeds of the bond were managed, they should share information as fully as possible. It is not that we don't trust them -- we know well enough not to -- but that the moment they shared any information on the proceeds of the bond, those snippets would simply lead to more questions. It should have been full disclosure or radio silence and not this weird half-cocked attempt at transparency.

It seems that the Central Bank hasn't learnt the proper lessons from the debacle of the last Eurobond. We were not suspicious merely because we did not know when key transactions took place with regards to the proceeds of the bond: opening of bank accounts, deposits of proceeds, or transfer of proceeds to Kenya. We were also suspicious because the roles of the Central Bank, the National Treasury and the transaction advisers remained murky all through. With the new Eurobond, the same errors are being repeated by the National Treasury and the Central Bank.

A full accounting before our suspicions are confirmed may stave off a bad press. What did the Central Bank do and when did it do it? Did it depute key officers to do these things? How many third parties assisted the Central Bank in its role with the Eurobond? If we are wrong to ask these things, lt the Central Bank say so and justify itself. We no longer live in a world where public officials dealing with massive amounts of public funds are believed when they pronounce themselves on things and when they are vague about what it is they are saying, our suspicions deepen.

Monday, March 19, 2018

Predation: A Kenyan Tale

I am a very selfish man. If we were honest, most of us would admit that we are very selfish. The most important things to us are the things that make our lives easier and happier, and if it means stepping over your cold, dead body to get to those things, many of us won't even flinch. In many instances, things are really zero-sum games: our win is someone elses loss. What we have conditioned ourselves to think and act on is that everything is a zero-sum game. Instead of building more co-operative structures to ensure our collective well-being, we have focussed our individual energies to winning the lottery of life at all costs, even if it means destroying our world to do it. 
It is why presidents, provincial commissioners, ministers and lands officers allocated themselves hundreds of thousands of acres of forest lands and chopped down whole forests. And it is why the wealthiest families don't care if through their connections the national healthcare budget is spent buying medical equipment of little to no practical value to 90% of the people. It is why men will cheat on their wives without compunction. It is why schoolchildren have become experts at organisational management when engaged in the task of examinations cheating. My win equals your loss. Julius Nyerere's warning to his fellow Tanzanians is true: Kenya is a man-eat-man society; you are either the predator or the prey.

Fantasies of easy lives

Only small children fall for the fantasy of Father Christmas and similar wishful thoughts. Adults should know better: in this world, there are no free lunches, good behaviour is rarely acknowledged or rewarded, the rich and powerful almost always get away with murder, and the only thing that is permanent in politics is that politicians are most certainly not heroes.

In Kenya, the numbers of adults who behave like small children, wishing for utopias that cannot be wished into existence, is growing alarmingly. These are otherwise sensible men and women who have correctly diagnosed many of the problems of their government, their political parties, their society and their constituencies but have failed to diagnose the most important problem of all: themselves. Some have invested time, money and other resources into fantasies in which they are superheroes who will instill a sense of discipline into the body politic and wring change against the kicking and screaming resistance of the political establishment. They refuse to face the awful truth: Kenya doesn't need political superheroes; Kenya needs a root-and-branch cultural revolution.

The culture that we must break with is the one that has corrupted the "system" that many of us rail against. In this case, even the President of Kenya is right: it begins with you and me. If we are to resist the corruption of the institutions of Government, then we must resist it in ourselves and that is a far harder war than we would like to acknowledge. In the seventies and eighties when men and women were murdered for voicing opposition to the corruption of Government, our fantasies of a corruption-free government made a little sense. Today, we can't afford the luxury of wishful thinking anymore.

Last year there were many new voices that entered the political arena with promises of leading from the front on the war on corruption. One memorable candidate, who founded a new political party to advance his ideas of truthfulness in public service, drew up an impressive manifesto. Of course, few of his potential voters bought his shtick and he was soundly defeated at the hustings. What is interesting about him are some of the battles he chooses to fight. On two occasions he has refused to give way to Government vehicles driving on the wrong side of the road, documenting his protests on social media. This is admirable. Now, if only he lived by the same principle.

He recently documented his altercation with airport officials at the Jomo Kenyatta International Airport. He had apparently been delayed in getting to the airport to catch an international flight out of the country. He wanted and demanded special attention so that he could be fast-tracked through JKIA's notoriously slow processes so that he didn't miss his flight. Airport authorities refused. He got mad and went on social media to complain about the corrupt unfairness of it all. He missed the point by a mile: he wasn't special; his flight wasn't special; he was not the only ordinary Kenyan who missed his flight that day.

We can list all our personal failings that are externalised: many of us don't think twice when we litter; many of us silently thank our PSV drivers when they speed, overlap and generally thumb their noses at the Highway Code because it means we will get to work earlier; there is a large cohort of motorists, Mututho Rules or not, who still drive while drunk; the number of "developers" who cut planning corners by greasing City Hall mandarins' hands is measured by the numbers of people who die or are injured in collapsing buildings; and the persistence of the flat plastic bags menace is a testament to our determination to ignore Nema, the environment ministry and the environment itself so long as our lives are not inconvenienced. (That the plastic bags ban is an assault on the constitutional and statutory framework is neither here nor there.)

Many of us are personally and professionally corrupt and yet we expect politicians and high government officials to be paragons of virtue. We engage in corrupt acts but blame "others" when corrupt men and women are elected to high office. In short, we are hypocrites and our hypocrisies are preventing us from solving relatively simple problems, like urban floods during rainy seasons or the effective management of national referral hospitals. Unless we reckon with our individual acts of corruption, that of the body politic will never be resolved. What we will keep doing is wish for the problem to go away, the way small children do when faced with unpleasant things.

Ward development funds are good

Broadly, elected representatives perform three roles: represent the members of their constituencies, make legislation for assent by the executive, and exercise oversight over members of the executive. In Kenya, though, we tend to do things a little different. Kenya's members of the National Assembly, in addition to their three traditional roles, used to perform development roles through their supervision and control of constituency development funds that were not expended by members of the executive but by members of constituency development committees who were overseen by parliamentarians.

In 2003 when the Constituencies Development Fund Act was enacted, it was as a result of what Parliament had come to accept as the skewed development policies of the executive that had resulted in great economic imbalances among many constituencies, with some receiving the lion's share of national development budgets and other making do with a pittance. The CDF was meant to ensure that there was greater equity in the distribution of development funds and the elected representatives of each constituency would have a greater role to play in the development of the constituency.

In 2010, Kenya promulgated a new constitution. Its chapter on public finance makes interesting reading but it is in, more or less, delineating the roles of the executive and elected representatives that it attempted to put the CDF genie back in the separation of powers bottle. Parliament resisted this attempt, even after the High Court declared that the Constituency Development Fund Act, 2003 was unconstitutional, as was its reincarnation, the Constituency Development Fund Act, 2013. Parliament finally found a workaround in the National Government Constituency Development Fund Act, 2015 in which National Government Constituency Development Committees did not have elected representatives as members.

It is interesting that a member of the senate wishes to establish a ward development committee fund along the lines of the 2015 CDF law, to establish ward-level development committees along the lines of the National Government Constituency Development Committees which would carry out development projects outside the control of the county executives.

One reason Kenya chose the devolution model was so that Parliament would allocate a sufficient amount of funds to devolved units to promote their development agenda. This Senate Bill carries this principle to its logical conclusion - it isn't enough that there are county executives that have been allocated funds for development because, even at that level of devolution, county executives may also neglect pockets of their counties. Ward development committees can act when both the constituency development committees and county executives fail to address all pockets of the county.

It is almost certain that this proposal will be resisted by the National Treasury and most county treasuries. Sound economic arguments will be made by both to support their argument that devolved development funds should be expended by county executives alone and that ward-level committees won't have the capacity to properly manage these new funds. These are more or less the same arguments that were made when the CDF was first set up and yet, fifteen years later, everyone agrees that it has done more good than bad. Rather than shoot down the ward-level funds idea, we should all pick the best lessons and practices of the CDF and apply them to the ward development funds. This would be in keeping with the spirit of devolution and the equitable management of public funds for the benefit of all Kenyans.

Wednesday, March 07, 2018

Is CS Achesa up to the task?

If I could afford the cost of setting up one and could generate enough income to pay for the operating costs, the reason I'd establish a newspaper, a TV news station or a news radio station would not be to offer "good journalism" but to offer "good journalism at a profit". Very few people would spend millions, perhaps tens of millions, of shillings without expecting a return on their investment. To expect investors to lose money on their investments is naive.

The same is true about investing in the production and distribution of other forms of media, especially music, TV scripted or animated shows, or films, movies and documentaries. Content producers expect to be pad for their efforts. Distributors expect to make a profit on their investment. Broadcasters and exhibitors also expect to turn a profit. It is a simple but profound truth: there are no free lunches; someone always picks up the tab.

Which brings us to Wakanda. By now it must be obvious that filming in Kenya, whether you are a local film maker or a foreign one, is not easy. It has been so for at least a decade. Every now and then, a Hollywood producer will shoot part of their movie in Kenya but these are not the days of Mogambo (1953), White Mischief (1987) or The Constant Gardner (2005). Stories of Kenyans and about Kenya are being shot in South Africa (The Ghost and the Darkness, 1996, and The First Grader, 2010, come to mind) as are many television ads featuring major Kenyan companies. And so it is no surprise that Wakanda, a fictional nation in East Africa, was not shot in Kenya but, among other places, South Africa, Uganda and Zambia.
 
We could argue that the $200 billion that Ryan Coogler was given by Disney to make the film could have spared a few hundred thousand dollars to film in Kenya, but the likes of Ezekiel Mutua and the bureaucracy that sustains the Kenya Film Classification Board would have found ways to raise the cost of doing business in Kenya, as would have the Ministry of Sports, Culture and the Arts (under the hapless Hassan Wario) and the county governments that would have had the pleasure of hosting the Wakanda crew. The bureaucratic headaches would not be worth the dollars.

We still don't have a coherent position on what we should do with our cultural artifacts, both ancient and modern. Should we monetise them and if so, in what way? Are there cultural artifacts that are "owned" by specific communities and what are their rights to these artifacts? How do we encourage content producers to invest in the producing new cultural artifacts if we aren't sure that they will make any money out of them? If I want to film a Durex condom ad in Nairobi, in support of a national HIV and AIDS control policy, why should I pay fees to the Kenya Film Classification Board, the Film Department of the Ministry of Sports, Culture and the Arts, and the county government? Afterwards, if I want the ad broadcast in Kenya, why must I pay for separate permits from the KFCB and the Communications Authority? This on top of the taxes that I will pay under the Income Tax Act, the Excise Duty Act, and the East African Community Customs Management Act.

A policy is long overdue. I wonder if CS Achesa is up to the task of bringing Kenya out of the creative dark ages.

They all fall, eventually

The member of the National Assembly for Mumias East is a spectacularly unpleasant character. But he is not unique. A former member of the Na...