Thursday, November 21, 2019

The idiocy of fighting USA culture wars

How invested, friend, are you in the fate of the presidency of Donald John Trump? How vested, fellow Kenyan human, are you in the next open seat on the Supreme Court of the United States? How vested, child, are you that Hillary Clinton's e-mails are being mentioned with a certain measure of zealous certainty (what about them?! say the party of donkeys, and they are proof that she is evil incarnate! say the lumbering conservative-is Party of Lincoln). Have you keenly read the tea-leaves during the Adam Schiff Show (better known as the Hearings of the Permanent Select Committee of the House of Representatives) on the Ukraine Affair? In short, brethren and sisthren, how much passion have you channeled into the wheres and wherefores of the United States of America political drama of the year?

For sure there are lessons to be learnt; there are lessons to be learnt from all affairs of men, particularly men of power. In the United States political drama, there are many lessons to be drawn, from how to manage expectations to how to side-step political landmines that would fell lesser humans. But, and I cannot stress this enough, investing emotional capital in whether or not Donald Trump and his acolytes are building an anti-democratic personality cult is foolishness of the highest order - especially if you are not a citizen of the United States.

I have been witness to men and women of Kenyan descent - citizens one and all - inveigling against each other on account of the pro- or anti-conservative credentials of Mr Trump. Some describe themselves in terms that, if you didn't know they were Black Kenyans, you would surely swear they were dyed-in-the-wool WASPs - White Anglo-Saxon Protestants - down to their claims of following various European-vintage "schools" promoting this, that or the other "conservative" or "libertarian" ideology.

They are so invested in "solving" the Dem v GOP/ Red-state v Blue-state schism, they have almost completely abandoned any thought for the plight of Kenyans in Kenya. If you ask them where they were when Henry Rotich was playing fast-and-loose with the national chequebook, all you'll get are shrugged shoulders and mumbled dissembling of a most shameless kind. Th eUSA, as a political idea and entity, is very amusing. As is the Brexit United Kingdom, Yellow Shirt France, Ataturk-lite Turkey and I'm-sorry-I-wore-blackface Canada. We have serious challenges facing our people on account of the pro-Western Democracy or Face-East economics policies that have shattered social safety nets and savaged economic security for the majority of Kenyans and to waste precious intellectual energy fighting stupid USA culture wars is the height of idiocy. Like the sharp-tongued boss of Goldman Sachs would have put it: that idiocy should not occur here. We can learn from the USA people. We don't have to join their tribal conflicts.

Tuesday, November 05, 2019

Of importance is aliveness

The machinery of government runs on money. It is that simple and that complex. Money is never enough. Money is especially never enough when by Government's own estimates fully one-third is "diverted" to non-government-related purposes, profitable though those purposes often are. To address the paucity of money in the national treasury, some monies are "ring-fenced" - they are not to be expended for anything other than for that which they have been appropriated. In government, ring-fenced funds are those drawn directly from the Consolidated Fund - funds for the judiciary are just the most prominent at present.

In the judiciary, money greases the wheels of justice and I do not mean by way of bribes and whatnot. Money pays for courthouses and specialised courtrooms. Money pays for administrative support. Money pays for the movement of circuit court judges. Money pays for mobile courts. Money pays for digitisation and creation of electronic case management systems. Money pays for the operations of specialised tribunals - like the National Environment Tribunal that hears appeals against the decisions of NEMA that affect, for example, Uhuru Park if and when the elevated expressway is ever built. Heck, money pays for Wi-Fi! Without money, a substantial chunk of judicial work will not be done or if done, will not be done effectively.

I have nothing but sympathy for Chief Justice Maraga and his Judiciary. He is in an unenviable position. Ever since the members of his Supreme Court were called "wakora" and promised that its most consequential political decision would be "revisited", it was a matter of when, not if, he and his judicial officers would walk the gauntlet. The "when" is today. The reason advanced by the beancounters in the treasury is that austerity is going to be across the board. The perception is different. Few Kenyans believe the treasury when it says that it is not playing politics. Many Kenyans are convinced that the national executive has finally let loose the dogs of war and the judiciary is facing the music.

There are those in the national executive who have taken advantage of the parlous state of the national treasury to settle imagined scores with the Chief Justice. There is no justifiable reason for the chickenshit accusations levelled at the Chief Justice. What would ever possess the human responsible for government protocol to ignore the presence of the CJ at a state function? Which moron directed the Kenya Airports Authority to lock out the CJ from the VIP lounges at our airports? For fcks sake, why would anyone invite the man to State House, specify the date and time for the appointment, and on the appointed hour keep him sitting in the lobby like a supplicant waiting for favours from on high?

Now it is entirely possible that there is a cadre of serikali mandarins who think that judicial officers exist to smooth over the rough bits of tenderpreneurship, them being the bigger tenderpreneurs, including the placing of thumbs in the scales of just in favour of these human scuzzballs. To them it is unfathomable that a Chief Justice will not lift up the phone and direct a magistrate in Kapchorwa to allow a suit on favour of this [pro-government] side or the other. My ears are still ringing from all the screeching that occurred when the National Environment Tribunal ruled that the Environmental Impact Assessment granted to the builders of the new Mombasa - Nairobi railway was flawed when it permitted the railway to go through portions of the Nairobi National Park. Come to think of it - the crippling of the Tribunal was the first successful shot against the judiciary. But we must bear in mind, the serikali-friendly tenderpreneurs must bear n mind, that this situation is untenable. If they successfully emasculate the judiciary, it is not Chief Justice Maraga and his judicial officers who will suffer but everyone. When we lose what little faith we have in the administration of justice, we will take the law into our own hands. Violence, in this instance, is inevitable.

We need the decisional and financial independence of the judiciary to be safeguarded but we must also be realistic. We are in a bit of a fiscal pickle and if there are to be cuts, the cuts must be applicable against everyone - parliamentarians, members of the Cabinet, county governments, and not just the judiciary. If you are going to insist that Mr Chief Justice Maraga should ride in a puny 1200cc Jetta, so too must Mr Non-Carcinogenic Wheelbarrow and JB himself in Bunge. If Wajir Law Courts have to do without Wi-Fi, so too can the Minister of Congratulations. What is good for the goose is good for the gander. Whether sanity will prevail...anyway, cha muhimu ni aliveness.

Monday, November 04, 2019

20/20 judicial vision

In 2012 two members of the Judicial Service Commission wrote an amazing piece in Kenya's tabloid of record on why members of the Judiciary deserved to weep driving Mercedes-Benz motor vehicles. Their constitutional and legal reasoning were sound - a testament to their keen legal minds. But the position they adopted on behalf of judges was tone-deaf. 2012 was the year that it became apparent that the privileges and benefits we extended to senior government officials had been abused for dogs' years and, therefore, in the spirit of pulling together to lower the cost go government, no one would be spared when it came to cost-cutting.

The Commissioners, in their wisdom, didn't believe that such measures should be applicable to their core constituents without, shall we say, "fine-tuning". In other words, hand the whole thing over to a committee and watch the zeal fade away like mist in the noontime sun. In any case, it soon emerged that the judiciary's stand on the question of "cheaper" vehicles for judges wasn't the most troubling - it had somehow managed to find a loose three hundred million shillings to pay for an "official" residence for the Chief Justice that has not been occupied by either Dr Mutunga, the Chief Justice then, not his successor, D.K. Maraga, today.

Which brings me to the "sweeping cuts" ordered by the acting Cabinet Secretary for the National Treasury and Planning. For the past seven years, according to those who should know, Government has been on an unsustainable debt trajectory, loading up on expensive sort term commercial loans to pay off other short term commercial loans. Government mandarins claim, quite often without a scintilla of evidence, that the proceeds of the loans have been poured not "development" projects, though the existence of the projects is very much in doubt. Sure, there are a few show-pieces like the new Mombasa - Nairobi railway, new bits of tarmac along Ngong Road and Outer Ring Road, and new bits of concrete for the Lamb Port (part of the no-one-is-sure-it-still-exists LAPSSET Corridor Program).

What was apparent when Government sold the first Eurobond was that these cuts were inevitable. It was apparent when the Eurobond projects couldn't be publicly identified or verified. It was apparent when NYS I (and NYS II) couldn't be resolved without plunging the ruling coalition not disarray. It was apparent when we apparently paid twice for election-related expenses - including electronic registration and verification equipment. It was apparent when, instead of facing the pernicious effects of the debt treadmill head-on, we were treated to a series of red herrings - from the unsustainability of the "public wage bill" to the unsustainability of 49 legislative chambers (hence the need to "punguza mizigo"). Every economics expert worth his salt agrees that the trillions we have poured in railways, urban roads, electricity generation and transmission, inland container depots and mobile medical facilities, were largely wasted. For example, Dr David Ndii has argued that had that money been invested in improving smallholder agricultural yields, the rise in national economic productivity would have been accompanied by an increase in wealth creation and employment.

It was therefore, inevitable that there would be sweeping cuts across the board in Government when the music finally stopped - the annual national revenue (which has been declining for years) is insufficient to pay down the loans or the interest payments on the loans. The Judiciary, for complicated political reasons, is an easy target. It will not be the only one. Other soft targets are the constitutional commissions, independent offices, non-commercial state corporations, semi-autonomous government agencies, and non-core regulatory authorities. Soon enough the cuts will spread to national and county governments, including cuts in the funds appropriated for Parliament and county assemblies. The pain is coming; the only question is when and how severe.

In 2012 the judiciary was riding high, insulated from the public opprobrium visited on Parliament and the national Executive. Some of its more excitable members made unfortunate statements from the Bench and in other public forums that painted the other arms of Government in a very harsh light. It enjoyed the support of foreign governments, and the door agencies affiliated with them. But it had enough old school serikali types for the praise, money and newfound independence to go to its collective head. Today it has no friends. Its foreign supporters back home are facing the same economic headwinds bedevilling Government; they will not be riding to the rescue any time soon. No matter how passionately the Chief Justice makes his case in the court of public opinion, the larder is bare and the judiciary will be the first victim of austerity. Had the judiciary bitten its tongue in those early years of the new constitutional dispensation, its fate may have been postponed a bit longer. Like the say in the USA, hindsight is 20/20.

We may not need new roads

There is a hierarchy to personal transport solutions. At the very top is the chauffeur-driven, outrider-escorted, route-secured head of state or government. At the very bottom is the pedestrian without access to a footpath of any kind. In between, though, there are combinations and permutations of travel to boggle the mind. Personal cars, taxicabs, rideshares, shared taxis (aka matatus), buses, trains, motorcycles, bicycles and pedestrians on footpaths. In Nairobi, commuting is dominated by pedestrians, motorcycle taxis, personal cars, matatus and buses - in that order, more or less. But, between Mlolongo (or the Jomo Kenyatta International Airport) and James Gichuru Road (Mombasa Road - Uhuru Highway - Waiyaki Way) commuting is dominated by personal cars and matatus, with all three sections experiencing epic traffic jams during peak hours and, quite often, during off-peak hours.

The solution, we have been told for the past seven years, is an elevated road that funnels traffic from Mlolongo/JKIA speedily to the James Gichuru Road (JGR) intersection. Some urban planners who know a thing or two have decried the proposal as ill-conceived and have pointed out that Kenyan experience shows that the traffic jams will only be ameliorated for a short while. Others have pointed out that the value of properties along the elevated road will fall because of the noise, the heat-sink effect and the influx of street families underneath the elevated road at key points. Still others have pointed out the negative environmental impacts, especially the increase in air and noise pollution, that a doubling of motor able roads will have along the path of the proposed elevated highway. Even if portions of Uhuru Part/Central Park remain un-excised for road construction, the negative environmental impacts  on the Parks will be significant.

Nairobi, and Kenya, almost always adapts to its transportation challenges. The matatus were a response to the relative inefficiency (and geographical discrimination) of the bus system. Matatus were fast and nimble, and very competitive on fares. The Kenya Bus Service, in all its official iterations, has rule-bound, inflexible and terrible at pricing its fares efficiently. For about a decade or so, the golden era between 1985 and 1995, KBS and matatus co-existed peaceably enough to produce a transport system that catered for the needs of rapidly expanding urban population. Nobody cared about the time taken between JKIA and JGR because, and be honest, there were very few people who made the twenty-six kilometre trip every single day.

But something terrible happened when John Njoroge Michuki became the Minister for Transport. In fully liberalising the public transport system, Minister Michuki failed to account for a few key reasons why it had become so bad. First, rent-seeking became commonplace. KBS faced increasing competition from laxly policed or regulated matatus owned by City Councillors, Cabinet Minsters, policemen and other well-connected entrepreneurs. While it was required to meet the terms of its license with the City Council, matatu operators were not: minimum fleet requirements, minimum services, safety, fare pricing and city-wide service were, more or less, waived for matatus but not KBS. Coupled with an economy that had nosedived and rising cost of operations, KBS scaled back its services until it went belly up, bought out by Britain's Stagecoach before the whole thing collapsed. It briefly tried to fight on when it introduced the quickly-popular Shuttle service - matatu-sized minibuses that competed with matatus in terms of efficiency and pricing. But by then it was too late and General Motors East Africa repossessed its minibuses and KBS went out of business. It lives on in the name of KBS Management Services, a pale shadow of its former self.

Since the collapse of KBS and the infrastructure that had supported its operations (Central Bus Stations and the termini at Kawangware, Kangemi, Eastleigh, Umoja II, Dandora and Kariobangi), and the full liberalisation of public transportation, Nairobi has had a public transport system in name only. It is disparate operators plying their trade without a policy to cohere their efforts. The result is chaos - Thika Superhighway, Ngong Road Expansion, Kenya Railways commuter trains, rideshare service providers, on-again-off-again NYS bus services, and over two dozen matatu saccos that exist only to maximise profit at all costs for their members, not collaborate to build an effective, efficient and affordable system. The JKIA - JGR expressway is simply more of the chaos. It may address the needs of a subset of commuters but it will in all likelihood contribute to the chaos, not provide a sustainable solution to the problems.

For now, the only service providers who have the institutional knowledge necessary to move millions of Nairobi residents from home to work and back again are the much maligned matatu industry. If they are not properly incentivised to provide city-wide services at a minimum level of safety and ride quality, all the new road real estate will not resolve the public transport chaos we are currently experiencing. This means certainty in regulation - everyone plays by the same rules as to fleet size, safety, quality of service and city-wide service provision (the last is the deal-breaker). Matatus operators that only offer services on a handful should be wound up or folded into the operation s of those that offer more extensive services. It may turn out that we don't need new roads after all.

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...