Seeking vindication, foolishly

In my opinion, Kenya's criminal classes are extraordinarily good at their job. No, I don't mean the hapless men and women convicted of petty theft or robbery year in, year out. No, I don't mean those souls. The ones who have done a bang up job tend to have the prefixes and suffixes to their names, have acquired titles of note, and swan around as if they were the people's conscience. They are extraordinarily good at their job.

One or two are ministers of faith, one or two are ministers of government, one or two are legal eagles with reputations to match, one or two are judges sitting on high, and still one or two are bankers, doctors, engineers, teachers and "environmentalists". The most successful members of the criminal classes of Kenya happen to be members of Government, in one form or another. They have their hands on the levers of power and when those levers are moved, bank vaults fall open and their wallets are immeasurably fattened. What makes them exceptionally good at thieving is that they have persuaded us that they are extremely dim-witted. They have learnt how to play the fool.

If you have been online on the twitter sphere lately, you will have sniggered at the question, "How can Kenyan billionaires have such poor taste in decor?" The impression you get is that these billionaires couldn't be that smart if their choice of decor is a cross between Kiambu postmodernist and Kisii postmodernist Art Deco. It takes real skill for the devil to persuade you that he is not there.

Take the shambles that are the various "scandals". Twenty million or so for towels. Sounds stupid, right? But it shifted focus from what was actually happening, didn't it? Key questions were obscured by virtue of the ridiculousness about those damn towels. For instance, how, exactly, did the Kerio Valley Development Authority decide to build the dams? How was that Italian company identified? Who made first contact with it, and when? Who performed due diligence on the company and what did they find? Maybe the DCI and the DPP know the answers to these questions now that were obscure by the salaciousness redolent of this towels, the pick-me shit-show that is the Fourth Estate, and our general deference for the high and mighty, shady or not.

These people are extraordinarily gifted and they have perfected their craft over decades. From penny ante scams - briefcases of cash - they now play the game with aplomb, in plain sight, 24/7, shamelessly and ruthlessly. We are their marks. We fall for every single con, big and small. And we sing their praises as if we were singing Italian arias to Nero at the height of his powers regardless of his bloodlust, greed, megalomania and poor impulse control - very much the characteristics of our guys. The small band of online wingers that point to the absurdity of it all are (a) laughably few, (b) hilariously outnumbered by influencers, and (c) painfully ignored by one and all. We keep at it, tilting-at-windmills and all, in the hopes that we will be vindicated.

Defanged

"We need to move away from the divide and rule system and embrace the inclusiveness on matters of the Constitution"

Members of Kenya's only Bar association are in Mombasa for the association's annual conference. The "theme" of the conference is "An Audit of the Constitution: The quest for constitutional reform and transformation". There is a "sub-theme" as well: "embracing technology in legal practice, litigation and commercial practice". What caught my eye on the law Society of Kenya's twitter timeline was what one of their presenters said about the current state of our constitutional order: that it is a "divide and rule system" which we must move away from.

I am concerned that the LSK is no longer an institution where radical ideas are vigorously canvassed and the 2019 conference seems to confirm this. Kenya is in the middle of a prolonged presidential campaign that has been enlivened by change-the-constitution movements of doubtful utility: the Building Bridges Initiative (BBI) that is designed to deny William Ruto a shot at the presidency and the Punguza Mizigo campaign that is designed to piss off the BBI. Both movements purport to lay bare our constitutional shortcomings and invite Kenyans to participate in charades masquerading as "public participation" in identifying a common way forward. So far Kenyans have not taken the bait - many are concerned more with the challenges of an economy that is firing on no cylinders than with the musical chairs of political leadership their political leaders are engaged in.

What is disappointing in all this is the barely-there nature of LSK's contribution to the discourse which, when it occurs, tends towards pablum that would embarass a first-year law student. Instead of addressing the obviousness of the constitutional sabotage perpetrated by leading members of Government, especially "rogue" members of the Cabinet and Parliament, LSK is happy to publicise its deep concerns for the "divide and rule" system prevailing today. We have forty-seven county governments, established mostly along ethno-linguistic lines. Lines, we might add, Kenyans accepted as the Fourth Schedule to the Constitution. Yet the LSK, despite the real-world problems engendered by such thinking, chooses to concentrate on issues that, superficially, address the ethno-lingustic fracturing of the country but do little to propose solutions to unite the peoples of Kenya.

In my opinion, LSK is no longer merely a stakeholder when it comes to governmental affairs. It has become so intertwined with Governemnt that it is sometimes difficult to tell where one ends and the other begins. It is time for a change and that change must begin by the repeal of the provisions of law that place LSK members as members of public entities. Yes, even the Judicial Service Commission. This marriage between civil society organisations and Government has led to the defanging of the former, and entrenched the impunity of many members of the latter. There is no better example of a defanged civil society than the wishy-washy LSK today.

Jealousy is not a good strategy

Thirdway proposes to change 29 Articles of the Constitution. Surely it was not intended that many amendments should be grouped together and require just one vote of support from any member of the public. The Kenya provision is inspired by the Swiss Constitution. In Switzerland, the Constitution and law require that a people’s amendment proposal be focussed and deal with only one topic. Jill Cottrell Ghai, Is Thirdway Alliances proposal to change the law constitutional?

Prof Ghai prefaced the above paragraph thus: Article 257 of the Constitution says: “An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters.” She argues that the provision, inspired by a Swiss one, was not intended to be used for the amendment of more than one provision of the Constitution. However, the language of Article 257 does not expressly state that only one proposal can be entertained at a time. If that were the case, it could lead to absurd outcomes, for example, a single proposal to abolish the Senate, without accompanying "consequential" amendments, would lead to the abolition of the institution while retaining dead provisions such as the ones pertaining to its functions.

Those opposed to the Thirdway Alliance's steps towards the amendment of the Constitution so far have advanced many arguments but few of them have advanced a persuasive constitutional one. Prof Ghai's falls among those that have the veneer of constitutional legitimacy but once one peels away the mask, reveals that the veneer is all there is.

I don't approve of the wholesale amendments proposed by Thirdway Alliance. I think they reinforce the constitutional confusion inherent in the political aspects of the constitutional order, especially the organisation of the national government and its relationship with devolved government. The 29 proposed amendments touch on disparate subjects all tethered to the idea that less government is less expensive government. That taking the devolution of public funds to its extreme end will be a boon for the people. I think it is foolhardy to experiment further with public funds; CDF spawned similar "development" funds that proved to be cash cows for a well-connected elite. Ward Development Funds, managed and overseen by county elected representatives, will not replicate the success of CDF but mirror the corruption and waste of all other public funds. I don't believe the proposal will lead to less expensive government but to a more corrupt and, therefore, more expensive one.

However, I can find no constitutional grounds to oppose Thirdway Alliance's proposals or to cast doubt that the proposals have been advanced in accordance with Article 257. Whether it is the question of public consultation or meeting whatever standards of proof are needed in order to approach the electoral commission, in my opinion, Thirdway Alliance has satisfied all constitutional requirements. I believe that its opponents, especially many from the civil society sector are unhappy that Dr Aukot and his partners did not invite the ancien regime of civil society to participate in the process as elite constitutional overseers to maintain the purity of their Mfangano days. Many of them are offended that he took his case directly to the people without so much as a by your leave and denied them their place in shaping the constitutional order; they are afraid that if the Bill garners substantial grassroots support, they will be unable to shape the constitutional future of this country for at least another decade, rendering many of them obsolete. In short, they are jealous. However, jealousy is not a constitutional ground to stop the Bill from being dealt with under Article 257.