Monday, September 14, 2020

Failing professionally in Nairobi City

The Mission of the Ministry of Defence is "to defend and protect the sovereignty and territorial integrity of the Republic of Kenya; assist and cooperate with other authorities in situations of emergency or disaster and restore peace in any part of Kenya affected by unrest or instability as assigned." No matter how hard you look, you will be hard pressed to find in its service charter the management or administration of civilian agencies. The civilian staff of the Ministry of Defence exists to assist the professional service personnel in the execution of the Ministry's core function: the defence and protection of the Republic.

In recent months, because of the perceived professionalism of service personnel, serving military officers - as opposed to civilian members of the Ministry staff - have been deployed to perform civilian functions. The assumption is that what these civilian functions need is a "professional" to ensure that things run, if not smoothly, efficiently. The expectation is that things will get done. I am afraid that there s a core misunderstanding of governance and the management of civilian institutions.

If you have been paying attention, one of the strangest sites you will see along Harambee Avenue every now and then is an NMS-branded water bowser being used to water the grass on the perimeter wall of the Sunken Car Park opposite Electricity House. If you have waked past Garden Square Restaurant, that venue for funeral and wedding committee meetings, you will see the pavement (and the flower beds) has been converted into a car park. The irony isn't lost on me that NMS's offices are in KICC, overlooking Garden Square and the patently illegal car park.

Devolution has not served Nairobi City County well. The first Governor made promises about city services that he did not keep. His successor, riding on his man-of-the-people credentials, made even more grandiose promises that he has not kept. The various principal secretaries with an interest in the management of municipal services - notably infrastructure, housing, urban development, lands, physical planning, environment, water, sanitation, health, transport and internal security - have one their bit to interfere in the management of the city, contributing to the chaos that makes life for the residents of the City unbearable.

It sometimes shocks me that there are senior government officials who think that the laying of cabro pavements is a sign that NMS is getting things done. A casual walk along City Hall Way or Tom Mboya Street or Mumias South Road or the internal roads in Tassia and Fedha and Kariobangi South and Madaraka shows you that NMS has absolutely no idea what it takes to administer a city or offer municipal services of any kind. The NMS water bowser grass watering boondoggle is merely proof that the NMS leadership is not well-suited to the task it has been given.

Soldiers and police officers are trained in many important areas. But they are not trained to manage municipalities or offer municipal services. That is not why their organisations exist nor what they do. Professionalism may define their service to the Republic, but their professional skills are not best-suited to dealing with City Fathers, the needs of city residents, or the politics that ensures that it is only by consensus that shit will get done. It's not their fault, but soldiers and police officers don't have and never will have the imagination or managerial and administrative skills needed to offer municipal services.

Let me demonstrate why I believe NMS is doomed to failure. Mumias South Road connects Rabai Road and Outer Ring Road. It's approximately four kilometres long. Along the busy road are primary and secondary schools, places of worship, shopping centres, hospitals, bus stages, and densely-populated residential areas. If, as I suspect it will, NMS turns its attention to Mumias south Road, it will concentrate its efforts on filling in potholes and repairing pavements. It will not, because none of its managers or staff have the imagination to, include road furniture and facilities to assist people with disabilities to effectively use the whole length of the road. This was Dr Kidero's failure. It was repeated by Mike Sonko. Gen. Badi will only be the latest in a long line of municipal failures. At least Gen. Badi will fail professionally. But fail he will. 

Monday, August 31, 2020

The tunnel vision of the blind

Seven years ago, rather tendentiously, I declared that because of Parliament, the Jubilee government "may go down in history as the worst government. Ever." Three years before, I had declaimed that "no longer should Kenyans be held hostage to the selfish goals and objectives of politicians; it is the responsibility of their representatives, through such organs as the PSCs to ensure that when decisions are taken, they are taken with the national interest in mind." In both cases I had underestimated the long tail of the not-so-dead KANU-ism that has proven as tenaciously resilient as witchweed.

Covid-19 gave the national executive the opportunity to subvert the ostensible separation of powers intended by the Constitution. The irony of such subversion occurring on the tenth anniversary of the promulgation of the Constitution is not lost on the discerning. In five months, Parliament has been neutered and its power cast asunder like so much flotsam. From the moment various "parliamentary groups" were summoned to State House and read the riot act, Parliament's autonomy and independence has become a figment of our imagination. What began has a "handshake" three years ago has sealed the Twelfth Parliament's fate - Parliament can no longer claim to be separate from, or independent of, the national executive.

Martha Karua, the eponymous leader of NARC-Kenya, has a stark warning, which I paraphrase: if Parliament fails to re-assert itself, to take black that which has been granted by the Constitution, dodgy health-sector tenders will be the least of our worries. In my estimation, though, rigid fetishisation of the constitution will do more harm in the long run, and that includes the zealotry of the implement-the-constitution religion that is demanding the dissolution of parliament because it has failed in implementing the two-thirds gender rule.

No political system is perfect. Ours certainly is imperfect in many respects. The constitution was among the most difficult tools in resolving the imperfections of our system. We continue to suffer these imperfections because], on the one hand, the political elite will do everything in their power to prolong their place at the national trough even if it means running the national finances into the ground. On the other hand, Wanjiku prioritises immediate survival concerns at the expense of long-term political health because when one lives hand to mouth for most of the year, and one is faced with a once-in-a-century epidemic, one can't spend too much time parsing whether or not women, youth or the disabled have received a fair constitutional shake. It is the middle classes of intellectuals, business leaders, ministers of faith and political party apparatchiks who are supposed to discern the needs of the people and drive the ship of state into the calmer waters of long-term political, economic and social stability. But the middle classes, at the expense the Wanjiku they are supposed to lead, guide and assist, have cast their lot with the political elite in the hopes of inheriting the mantle from the political elite. The middle classes have betrayed their cause in the false hope of ascension into the ranks of the rich and powerful.

If the fervour with which the 2022 general election is being conducted is anything to go by - if you really think that they are not campaigning, you have not been paying attention - the political elite and Kenya's tabloids have completely forgotten the existence of Wanjiku and, instead, have turned their world into this massive echo chamber where only their ideas and views of the world percolate. Poverty? Kenyans aren't poor - even during the pandemic, inflation was low and exports were up! Unemployment? It is only temporary; as soon as the pandemic ends, the economy will roar back into full productivity on the back of higher tourist visitors and greater demand for cut flowers! Political instability? Please! Now that parliament and State House are in sync, the Big Four Agenda and the BBI Initiative will give the people what they ahem always wanted: a seat at the table for the people who reflect the face of Kenya! In short, if the middle classes and the political elite they serve don't wish to see it, then it doesn't exist.

The BBI's recommendations will be rammed down our throats. The Big Four will be implemented come hell or high water. CBC will churn out successive generations of unquestioning drones. But only if tunnel-vision prophecies by the blind come to pass. And none are as blind as the political elite, the Fourth Estate and the predatory bankers who bankroll the whole kit and caboodle. Listen to them at your own peril.

Wednesday, August 05, 2020

A pox on your war

As we ponder constitutional changes, let us define a Nairobi Capital City governance system that is insulated from politics of the day, and that is based on professional execution and delivery of services. On the minimum we may need a 10 year “lease” for the NMS mandate to allow it to turnaround the city, before we revert to an elected county mandate. Nairobi has been an extraordinary problem requiring an exceptional constitutional consideration.Soldier on General Badi, Nairobi stands with you
The peoples of Nairobi City County have had the opportunity to elect county governments on two occasions. The first time, they elected a charlatan. The second time, they elected a buffoon. But it was their choice. They exercised their franchise freely and without intimidation. They got the government that they elected. If they want their government to do more, to do better, they will elect one that will do just that. That is the bargain they, and the voters in the remaining 46 counties, made when they participated in the referendum that, among other things, led to the promulgation of a constitution that established Nairobi City's county government. It is time for Nairobi's "saviours" to accept that unless they are willing to present themselves at the hustings, their interventions mean as much as a fart in a hurricane. They should accept this unpalatable fact - and move on.

General Badi and his band of merry men may be doing a bang up job but no one elected them to perform that job. He is unaccountable to the people who matter - the voters (and residents) of Nairobi. No matter how well he executes his mandate, he is not the choice of the peoples of Nairobi and unless he is elected to office in the county government, he never will. No one has the right or authority to grant him a "10 year lease". To even argue that what he is doing falls within the confines of the constitution is to blind oneself to the inherent risks of such extra-constitutional shenanigans.

It is not as if the existing legal framework doesn't provide for a Badi-like arrangement. The Urban Areas and Cities Act, 2011, offers City Fathers the opportunity to appoint city managers to perform the tasks that General Badi is purporting to perform. That the provisions of this Act have suffered the gimlet eye of General Badi's benefactors is an indictment of their capacity to "think out of the box". They are confined in their fantasies of executive imperialism that we thought had been buried six feet under on the 26th August, 2010. Their acolytes, like the author of the unfortunate screed at the top of this post, have conveniently forgotten why we wanted executive imperialism to be cast on the ash heap of history - the corruption and abuse of office that it violently engendered.

That Nairobi City's government is a mess goes without saying. That City Fathers have proven to be corrupt saboteurs can be seen, plain as day, from the effects of the works of their hands. But Nairobi's peoples do not deserve to be cheated of the opportunity to build systems that serve their interests. It distresses me at a professional level that my colleagues in the Bar have been unable to successfully overturn General Badi's installation as an unelected City Father not only on constitutional grounds but on statutory ones as well. (If you were to ask the more serious members of my profession, they will quietly admit to you that the legal framework underpinning General Badi's "authority" is flimsy to the point of being ephemeral. They choose not to shout this out in the agora because it may endanger fat briefs when they are approached to offer legal services in matters connected to this municipal coup.)

One of the most vital functions of the City County Government is regulating "development" - what we know as the building and construction industry. Since the burial of the Nairobi City Commission, development has not only been an area of great graft, but one that has caused untold misery from the dozens of buildings that have collapsed to the spectacular chaos in un-planned construction. What we sniffily refer to as "informal settlements" are the result of development control that has abandoned all pretence at professionalism. Looking at the things General Badi has tom-tommed of his first 100 days, it is plain that he intends to follow a well-beaten path - but with military precision. He brings no expertise at development control and it shows. When the dust settles on his iniquitous tenure, maybe we will find out for whom he was beard. 

Thursday, July 23, 2020

It's time to read the Kenya Gazette, friend

One of the most difficult things for a legislative drafter is to push back against over-eager senior civil servants who believe things that don't exist. Every time I see Gazette Notice No. 2356 of 2017, also known as the plastic bag ban, I can feel the hairs at the back of my neck rise because I know how the poor drafter who was forced to clear that document feels. It is one of the most destructive Notices published by the Government - not because it bans single-use plastic bags of various descriptions (we all accept that as a good thing) but for encouraging Judy Wakhungu's successors in the taking of statutory shortcuts regardless of the legislative mess they leave in their wake.

Of the more destructive officials are to be found the ones who flit from one bad idea to the next without pause, upending decades of legislative-drafting consensus on what the State can and can't do through subsidiary legislation. In many cases, you will be witness to personal and private agendas masquerading as official government policy, the naked political ambition camouflaged by long-winded soliloquys on "national development" and similarly portentous and pretentious pablum. The latest, going by the high dudgeon one has occasioned, are "presidential directives", a catchall expression that implicates the Head of Government in schemes of doubtful economic and political value.

Distilling government policy is hard enough without inserting ill-advised legislative proposals in the mix. When Government settles on a policy, and the entire Cabinet is agreed on what that policy is, it isn't always an automatic outcome that legislation will be enacted to give effect to that policy. On many occasions, it is sufficient for the bureaucratic state to re-arrange budgets and programmes to incorporate the policies activities. Implementation of policy can sometimes turn on a re-deployment of personnel and the funds to go with such redeployment.

Every now and then, though, a new law or an amendment to an existing one is required. Care, though, is called for. New laws these days have a nasty habit of creating new offences. It doesn't pay to give the police, the DPP, the EACC and other law enforcement organisations fresh grounds for hounding Kenyans trying to make their way in an increasingly fraught world. New laws, also, seem to require further disbursements from the public purse, much to the chagrin of the mandarins of the National Treasury. The increasing number of "funds" is almost always a pointer to the increasing clout of individual mawaziri - the larger your share of the national revenue that you control, the more clout you wield among your Cabinet colleagues. New penal provisions and increased public spending occasioned by new laws point to policy failures that will only reveal themselves when it becomes clear that the new offences are a waste of law enforcement time and a drain on the national coffers for no discernible benefit.

Most of you live your day to day without having to worry about what is being cooked up by civil servants. Indeed, many of you don't really care for the contents of the kenya Gazette, published every single Friday by the Government Press. In my opinion, you must rouse yourselves from this slumber if you are to better understand why your Government does the things it does. When a Government department "supports" the manufacture of a "low-cost" motor vehicle that looks like it was put together in the dark with parts thrown out of one of this Kamukunji jua kali workshops, you can be sure that the mandate to support that project is hidden among the thousands of Notices published in the Kenya Gazette each year. But because you weren't paying attention, the announcement by department of Government that public monies will be spent on the equivalent of a mkokoteni with an engine comes as a bit of a shock.

It is time to accompany your anti-government anger with relevant information. Your first port of call should be the Government Press and the Kenya Gazette it publishes every week. What new agencies have been established? What new parastatal bosses have been appointed? What new task force has been convened? What new offences have been created? What new scheme are our taxes financing? All these questions, and more, are contained in the Gazette - if you only knew to read it and how to read it.

Monday, July 20, 2020

No one wants that

One of those "read my CV" types had this to say on Twitter about the wayward senator:
If the president who is Commander in Chief announces curfew starts 9PM but Kenyans including elected leaders are out casually drinking and dancing at 2AM, then the question must be asked; do Kenyans even respect the resident??! this is crazy SMH.
We'll leave the punctuation for now and pay greater attention, instead, to the implicit assumption that what a president says must be obeyed. It implies, in my opinion, that the president is some sort of king whose word is law. After all, taking that logic to its ultimate end, a Commander-in-Chief must be obeyed because he is the Commander-in-Chief, if for no other reason.

Many Kenyans, including the president, have repeated ad nauseam that Kenya is a "nation of laws". Few of those pining for the glory days of the imperial presidency, though, believe it. So many of them erroneously impose additional interpretations on that maxim, including that the president's word is law. You can see such assumptions in the way "presidential directive" is used to push through agendas that fly in the face of constitutional, statutory and regulatory propriety and lead to absurd and tragic outcomes.

It is impossible to persuade these types that "commander-in-chief" for an elected president is not the same thing as the head of a military junta that has suspended the constitution and is ruling by fiat. It is impossible to persuade them that Kenya has explicitly and expressly rejected the concept of a king or emperor. Kings and emperors are never elected. Heads of military juntas are never elected. Ruling by fiat is not in Kenya's constitutional order. If the president's "announcements" are not translated into Acts of Parliament or subsidiary legislation made thereunder, then they have little, if any, legal effect. It is possible that the "announcements" are a window into the policy direction taken by the executive, but it is a mistake to take them as laws to be obeyed on the pain of judicial punishment.

The most important object of the Second Liberation was to corral the imperial presidency within the confines of the constitution, to limit its impunity, and to prevent its abuse. The presidency is meant to be exercised in accordance with the constitution and the laws made by Parliament. It is not, regardless of the feverish desires of its boosters, meant to be exercised contrary to the written law even in dire emergencies. Three months after the announcement of the first case of Covid-19 in Kenya, it is no longer an "emergency" but a crisis that must be managed by the machinery of the state within the confines of the constitution and the written laws of the land. Presidential announcements are not law. They are not intended to be laws. They cannot be taken to be laws. To suggest that they are is to harken to a bygone and hated past.

We fail to appreciate the effects of presidential impunity in a democracy - it gives license to one and all to play fast and loose with the rule of law. We get to pick and choose which laws to obey, which ones to bend, which ones to ignore and which ones to break. The wayward senator is of a piece with the imperial presidency and the murderous, extra-judicial-killing police. The skein is the same. The effect is a lack of confidence in the institutions of the state and a distrust of the constitutional, statutory and regulatory order. Our national purpose is subverted when we elevate the presidency above the law and preach the virtues of such extra-legality. In the end, if such bad constitutional ideas are allowed to fester and spread, we end up where we fled from: presidencies for life, single-party dictatorships and widespread impunity. No one wants that.

Tuesday, July 14, 2020

The tumbrils are gonna come

If there's a lesson to be taken about the progress of fully raising the promises of the Constitution it is the lesson imparted by the active resistance to the promise of devolution. Sabotage began early and in earnest. What Michuki and his acolytes couldn't accomplish by force, they accomplished by subterfuge. The first cohort of governors, some good, many not, were first taken through the wringer that the Public Finance Management Act, 2012, has become. The Public Audi Act, 2015, merely reinforced those early anti-devolution instincts. The late Mr Michuki's dream of a centralised, all-powerful, unaccountable policing infrastructure remains untroubled with the devolutionists among us. Policing is set to remain the anti-people weapon it is for the foreseeable future and if Mr Matiang'i shows any promise, it is that he will live up to, and surpass, Mr Michuki's policing zealotry in every respect.

It was terrible idea to include "national security organs" in the Constitution. It ensured that their inflated sense of importance would never dissipate. You can see it in the swagger of defence forces personnel as they strut down Nairobi streets laying cabro pavements and smacking planning officials upside the head. You can see it in the arrogant and unrepentant declaration by police spokesgremlins that the police have no obligation to be kind whenever they encounter uppity Kenyans out of bounds during curfews. You can see it in the self-satisfied sneer of the mandarins of the security ministry whenever they declaim with overweening confidence about how they have "kept Kenyans safe" from untold potential horrors by unseen monsters.

On Saba Saba at 30, a few brave Kenyans decided to remind their fellowman that policing is not the cocoon-ish service that is portrayed by those Dr David Ndii describes as "Upper Deck Kenyans".  Exercising their Article 37 right to peaceable assembly and demonstrate (obviously playing fast and loose with the anti-covid-19 guidelines), they brought their case to their fellowman on the streets of our nation's Capital. The police whom they attempted to demonstrate against were having none of it. In typical fashion, teargas was lobbed liberally, and human rights defenders found themselves in handcuffs and cooling their heels in badly ventilated police cells - where they were definitely at risk of contracting the covid-19 virus. That none were charged with the commission of any offences is a stark reminder of why so long as policing remains a weapon to be wielded by the State against its people, Kenyans will never know peace or prosperity.

The USA model of a militaristic police, a shoot-first policy and an overwhelming-force mindset does not work. We know it doesn't work. The powers-that-be know that it doesn't work. No one is suggesting that a softly-softly approach to policing will persuade panga-wileding robbers to rethink their violent criminal ways. Against them, a G3 in the arms of a trained police officer is preferred. But we know that reforms, true reforms, means disarming the vast bulk of the 100 thousand odd police officers, and devolving them to county level, to fall under the jurisdiction of county governments. The same is true of the policing oversight authorities - it is not tenable for policing in its current form to carry on any longer.

Policing received wisdom is, in my opinion, deeply flawed. It prioritises the preservation of the State, as personified by the President, at the expense of the welfare and safety of the people. Policing assets and resources are allocated with a view to not just pacifying the people, but separating them from members of their executive and legislative chambers. And when the people grow restless, the unwritten but widely enforced policy is "shoot first, shoot fast and, maybe, worry about questions later". No matter how hard or how long this state of affairs prevails, sooner or later, there will be tumbrils on the streets, and baskets beneath the guillotines will be filled with the heads of those who refuse to heed the lessons of history.

Comprehensive sex education is a good thing

There are many schoolgirls who are pregnant. Regardless of the actual numbers, pregnant schoolgirls are an affirmation of failed policies. However, according to George Magoha, the Cabinet Secretary for Education, and Kepha Omae, a bishop of the Redeemed Gospel Church, pregnant schoolgirls are proof of failed parenting and pornography. In their esteemed views, if parents did a better job of looking after their children, and the Government did a better job of banning pornography, the problem of pregnant schoolgirls would be solved overnight. I fear that the education boss and the preacher are living in Ezekiel Mutua's fantasy world.

Judith Sijeny, a former nominated Senator, sponsored the Reproductive Health Care Bill in 2014 in the Senate. Among its proposals was Part IX which provided for the reproductive health of adolescents. It also provided for the termination of pregnancies by children. These two were sufficient to rile the leaders of the Christian church in Kenya and, with the assistance of the then Cabinet Secretary, Jacob Kaimenyi, to fight tooth and nail to see that the Bill was not enacted into law. It wasn't. This year, Susan Kihika, the Senator of Nakuru County, published a similar Bill containing similar provisions. It has met the same intractable resistance from the leaders of the Christian church in Kenya.

Among the accusations that were levelled at Ms Sijeny, that are also being levelled against Ms Kihika, are that the legislative proposals are part of an "agenda". Bishop Omae states forcefully that the Bills are a "conduit for other beliefs and cultures we are not used to and cannot allow in our country". He points out that "in our churches, we actually have some programmes skewed towards morality and the fear of God". None of the opposition to the legislative proposals seems to propose alternative policies or actions for the care and protection of children, or that would be skewed towards keeping schoolgirls in school and out of the maternity ward.

Education opens doors that remain closed for the uneducated. The door to a better life. The door to a relatively easier life. The door to opportunity. We are not talking about formal education alone. Education in all its forms is a good thing. It benefits individuals, families and the communities they live in. Poor access to education, or access to bad education, is evident in many ways, but for girls and women, it is almost always manifested in how early they start to have children and how many children they have over their lifetimes. Almost every time a woman has large numbers of children, her economic prospects are almost always straitened. And the younger a girl is when she has her first child, the worse her economic prospects.

Comprehensive sex education - for both boys and girls - is an important tool in creating the circumstances for young people to realise their potential, academically and economically. Comprehensive reproductive healthcare services for teenagers together with comprehensive sex education increase the chances that the numbers of child parents will be minimised. Why is this obvious point so horrific to the leaders of the Kenyan church?

Tuesday, July 07, 2020

Saba Saba at Thirty

"Yote yawezekana bila Moi!" was an anthem as well as a repudiation of forty years of Kanuism. It was the culmination of events that kicked off in earnest on Saba Saba - 1990. Thirty years after Saba Saba, and eighteen years after Moi shuffled off the stage, it is shocking how little progress we have made on the road to political liberation. Kenya and Kenyans are still hostage to fantasies of benevolent dictatorship as a panacea for economic malaise.

Saba Saba at Thirty comes at a time when political and economic freedoms have been rolled back startlingly fast despite a freedom-oriented constitution. Senior officers of the State still ignore judicial decrees. Policemen still murder civilians with impunity. Academic freedom is notable by the dearth of free-wheeling discourse designed to free minds and challenge received wisdoms. Educational prospects are hobbled by "market-oriented" curricula designed to create a generation of spanner boys. religious freedom is marked by how fast a preacher will acquire his first Mercedes-Benz G-Wagen. Kenya has all the accoutrements of freedom - a Constitution, a freely-elected legislature, a market economy, an unfettered right to worship, and what have you - yet its peoples are spectacularly un-free.

What Kenya's first and second presidents attempted to achieve by brute force, the third and fourth have achieved by velvet gloves and mailed fists simultaneously. The first and most successful gambit was to co-opt the second liberation movement. Leading lights were offered money, power and high office. Many took the bait. The tail is now wagging the dog. The second was to dress up autocracy in the vestments of visible economic progress - soldiers building pavements and the like.

The hard and necessary work of institution-building leading to nation-building has been abandoned as too hard, too contentious, too expensive and too time-consuming. In our rush to put a microwave in every kitchen and a nduthi in every driveway and an iPhone in every hand, many are willing to tolerate the murder of toddlers in their cribs, teenagers in their balconies and the homeless in their gunias if it means that down the road, the privations a lack of institution-building has engendered will be wiped away. Because we ave hollowed out the Kenyan academy and replaced it with academic buccaneers, there are few Kenyans who are able to prophesy that in less than a generation, privation will be a defining feature of Kenya - not an anomaly. The dream that was Saba Saba is becoming a living nightmare.

On the day Willy Kimani, his client and their driver were murdered, it has been a matter of time before the anti-Saba-Saba forces shed their masks and revealed their true selves. If you are still waiting for Huduma Namba and its acolytes to lead to better public services and, in turn, economic and political freedom, you are among the multitudes who have never known what Saba Saba represented, what it imagined, what we dreamt of. You are a victim of false prophets and the illusory power of mass entertainment as political and academic freedom.

Friday, June 12, 2020

Running out of time

The night that the nighttime curfew went into effect, many Kenyans were assaulted by police officers for violating the terms of the curfew. The curfew had been imposed to prevent Kenyans from congregating in groups in entertainment joints and thereby increase the risk of spreading the coronavirus disease, Covid-19. The first week of the nighttime curfew also saw the shooting death of a child when a policeman fired in the air while attempting to enforce the terms of the curfew. The first month of the nighttime curfew saw one of the more absurd events: police and county officials forced a bereaved family to bury their loved one in the dead of night without even allowing them to hold a wake in his name. Commentators loudly condemned the actions of the police, though there were a few who echoed the Health Cabinet Secretary's stand: if you violate the terms of the curfew, regardless of the reason, you have no one to blame but yourself.

Kenyans' relationship with members of the National Police Service is built on well-travelled history. Kenyans have been policed with brute force for decades. And when they are not being policed, they are being extorted by police authorities. On the rare occasion that the police and the people are on the same side, the kumbaya moment rarely lasts. There are thousands of honourable police officers, and a few of them have come to the public's attention through their extraordinary acts and achievements. But as an institution, the National Police Service does not live up to the ideals of a "service" but the opprobrium that the impunity of a "force" has covered it like the stench from a skunk pervades a room.

As Kenyans have battled Covid-19 and the police, some police officers have distinguished themselves by descending to new depths of cruelty. The case of Mercy Cherono which, without social media, would not have come to light is only the latest. How she was assaulted is redolent of the anti-Black violence meted on Black Americans by police forces of the United States. No one could possible agree that it is normal for police officers to tie a suspected criminal offender to the back of a motorcycle and drag them along the ground in the name of "enforcing the law" regardless of what the offence is. The police are not supposed to be a weapon for carrying out revenge fantasies before the pubic prosecutor and, if convicted, the prisons service get their hands on the offender. What those policemen, and the bystanders, did was cruel, vindictive and totally in keeping with what policing is in Kenya in the absence of any real reform.

Cruel and violent events in the United States have shone a light on what policing looks like when it is separated from human rights and protection of the people. Kenya is no exception. From the moment Mwai Kibaki's Government was forced to agree to a timetable for constitutional reforms, the question of how to reform policing was a core component of those reforms. The securocracy resisted reforms tooth and nail. When the Constitution was promulgated in 2020, the securocracy had won. What we got was the facade of reform without any real change. Police training has incorporated modern tools but its essential nature remains the same: it is a weapon for browbeating the people whenever they think the they can challenge the authority of the mighty state. Mercy Cherono is the latest victim of policing in Kenya.

We have been failed by the institutions that are supposed to hold the agents of the State to account. The National Assembly and Senate of Kenya have engaged in supremacy battles with each other, with the Judiciary and with the national Executive with nothing to show for it but bruised political egos. But the people they purport to represent have not received the attention their vote entitles them to. The National Assembly, the one entity with the power over the national purse, keeps forking over billions of shillings to an institution that has violated our rights with impunity without a care in the world. In Hon. Yatani's trillion-shillings Budget, the National Assembly has the opportunity to stamp its authority: withhold funds for policing until true and meaningful reforms are undertaken. If the members of the National Assembly continue to shirk their constitutional duty, one day, when the people burn this bitch down, they may begin with the House that was supposed to offer them succour before they go after the Boys in Blue.

Thursday, June 11, 2020

Why did he bother?

Both were wrong. That is my story and I'm sticking to it.

The Law Society of Kenya has had a troubled decade, in my opinion. The halcyon days of Saba Saba are well and truly behind it. Its leadership since the day Mwai Kibaki ascended the top of the greasy pole of Kenyan politics has comprised some of the strangest characters to don the horsehair of an advocate of the High Court. If you can tell me what Mogeni, SC, Mutua, SC, and Gichui, SC, accomplished, you must have the observational skills of a sleuth from the famed Scotland Yard. Now we have the colourful, reggae-listening, self-styled Duke, Nelson Havi, he of the British racing green leather chesterfields.

It is trite knowledge that #JKL is not the place to bring rigorous intellect or reasoned disquisition. Anyone who volunteers to share a stage with Mr Koinange has no one to blame but himself when he is subjected to the cringe-inducing lunacy that passes for a talk show. Mr Koinange's stage is where the less intellectually-endowed go to spread misinformation, disinformation, conspiracy theories, sex scandals and political rumours. When Mr Havi agreed to appear on Mr Koinange's show to "debate" Mr Manyora, he should have known that it would descend into a chaotic melange of shade-throwing, peevish umbrage, bellow-y tut-tutting by the host, and eye-rolling by the rest of the world. In short, few people would mistake the goings on for rigorous intellectual canvassing of weighty constitutional and political ideas.

They say that when one argues with a fool, no one can tell them apart. I will not lay the charge at their feet. But, be honest, didn't that adage spring to mind when the "debate" shifted gears and boxing terminology entered the fray?

Mr Havi has an unenviable task on his hands. He has to live up to the storied history of the LSK of the 1980s that afflicted Baba Moi's government - and live down the shame listed on the Society by his most recent predecessors. He cannot afford to be distracted by the Koinanges and Manyoras of the day. He must rebuild a Society whose members must prepare for legal practice in the 21st Century. He must hold the Government's feet to the fire regarding fidelity to the Constitution and the written laws of the land. He must stave off the oncoming competition from overseas tech-driven marauders. And he must restore the relevance of the Society to play more than a partisan role in the political struggles of the day. He cannot afford to waste time and resources performing in clownish arenas with interlocutors of doubtful intellect or political integrity.

Mr Havi should eschew the cheap publicity offered by tabloids such as #JKL and, instead, undertake the patient work of rebuilding the intellectual and political might of the Society. The TV cameras and radio microphones will find him when need be. He shouldn't chase after them. And for goodness sake, the next time Mr Koinange offers him the opportunity to "debate" another talking head, Mr Havi should politely and firmly, decline.

Monday, June 08, 2020

Are you imaginative enough to be free?

If you have a child, that child's safety is most likely the most important thing in your life. If anyone harmed your child, you would exact retribution, terrible retribution. You will spend anything to keep your child safe. You will pass any law to protect your child from the evils of the world. So any law that punishes any person who even looks at your child cross-eyed will receive your full-throated support. So it must terrify you no end when someone proposes to abolish all the laws on the law books and start with a clean sheet of paper. Is that person some kind of monster that wants to sexually exploit your child and murder them afterwards?

The Constitution of Kenya is like Joseph's many-splendored coat. It covers a wide array of subjects. But its showpiece is Chapter Four, the Bill of Rights. Twenty-six separate separate rights and fundamental freedoms, recognised and protected by the Constitution, and an obligation imposed on every person to protect and defend those rights and fundamental freedoms. A decade after its promulgation, the edifice of laws, regulations, rules, guidelines and orders remains almost entirely unaffected. In fact, I'd warrant that they have been reinforced and bolstered in insidious and disturbing ways.

The core of the colonial-era law-and-order system remains unchanged - the Penal Code, the Criminal Procedure Code, the Civil Procedure Act. The National Police Service Act, the National Intelligence Service Act, the Kenya Defence Forces Act and the Office of the Director of Public Prosecutions Act are the filigree adorning the dark heart of the Kenyan policing apparatus that was designed to coerce, intimidate, misuse and abuse the civilian population, especially those who were poor and weak. Colonial administrators may have withdrawn from public service, but their spoor continues to contaminate our attempt to imagine freedom without the baggage of Black-is-evil philosophies.

A clean sheet terrifies many people. But it is debilitating for those who are incapable of imagination, having smothered it with Caucasian theories of crime and punishment, hence their reflexive, instinctive demand: what about the children?! That demand has successfully stifled debate for decades. While we may have successfully reorganised the coercive systems of government, we have not even began contemplating the complete rewiring of the systems themselves to reflect the central place that humans play in government, as contemplated in the Bill of Rights. Without such a rewiring, the Bill of Right's promise will never be fulfilled.

Even if the rewiring focussed exclusively on the care and protection of children, so long as it began with the question of what freedom looked like from the eyes of a child, half the challenge would have been met, with the balance to be met by drawing from our own histories of crime and punishment, law and order, peace and war, money and power, justice and fairness, education and training. If it takes a village to raise a child, what does that say about the child's relationship to its siblings, parents, extended family, village, leadership? What does it say about the child's place in the academy, work, justice systems, governance mechanisms? Is the child free or is the child the camouflage adults use to un-human each other?

I don't have the answers, and if I pretended to do so, I apologise. I hope that I have some of the right questions, though. I hope you have the breadth, and humility, to imagine anew what the Bill of Rights can free us to be.

Tuesday, April 21, 2020

Rona's lessons

If you have been paying attention, then you must surely have a clue who signs my paycheques. This is an important disclaimer for the amount of dissembling I am about to engage in.

My involvement with Rona begun on the 25th March. I had instructions to "assist" a team at an undisclosed location to work through various legal scenarios. Ordinarily, such instructions are in writing, and identify contact persons and focal points - a person in charge. My instructions also usually involve some sort of end-game, a document or documents that one can point to and say, "Maundu offered the following services and I am satisfied, dissatisfied, pissed the fck off, whatever." This time round, my instructions were vague, nothing beyond, "Pack a bag. Go to this place. Help out."

I wasn't unduly worried. Even with minimal instructions, once I know whom I am working for, it isn't that difficult to figure out what they need, whether their needs can be met, how they can be met and what success (or failure) looks like. I packed a bag. Had a spot of lunch. Took myself to the slaughter. Because, Jesus Christ on a Stick, even now I can't tell you what I was supposed to do, whom I as supposed to do it for, and what it was all supposed to achieve.

I am not a difficult man at the worst of times. I am almost always patient and accommodating - I once assisted another group prepare a draft document by taking them in painstaking detail through every possible scenario. On that occasion, I was on my feet for close to nine hours. In the end we had a document that they were happy with and I was happy I'd done some real lawyering for once. This past month has not been rewarding. Quite frankly, it has, to paraphrase Charles Dickens, been the worst of times. Not only were my instructions vague, they were never clarified even after repeated attempts to clarify them with various pot-bellied and self-important powers-that-be. I held out for three days. The day the nighttime curfew took effect, I took myself out of the whole thing. I told the man who seemed in charge that I had to go home for a change of underwear and never went back.

What I do isn't complicated or complex. It's a specialized skill for sure, but any decent student can learn it. It takes practice and patience to be competent at it and so long as one keeps an open mind, remembers the basics, knows which questions to ask, and has a general awareness of the current legislative environment, legislative drafting is not akin to sending a human to the lunar surface. I have had occasion to work with difficult clients. The types whose technical reach far exceeds their intellectual grasp but are too arrogant to admit their obvious limitations. (Just this month I entered into a shouting match with one who hilariously read me his resume and invoked the "Do you know who I am?" threat.) But almost always, they will see the wisdom of heeding my professional advice and work with me to solve their problems. (Even this latest shout-y one eventually bowed to my wisdom and now he is a happy camper.)

The people I was working with had absolutely no capacity to think beyond their narrow and white-knuckle-grip beliefs. They knew what they knew and regardless of whatever the situation demanded and whatever statutory tools were available, they had set their minds to a specific outcome and they would not be held back.  It was like dealing with the members of a religious cult - the followers of David Koresh or Jim Jones. So long as their leader had set them on a particular course of action, they would follow, no matter if the course led to absurd outcomes. It was frustrating dealing with adults, supposedly with minds of their own, who would set upon a lark simply because that is what Dear Leader apparently wanted. One can only attempt to advise such a group for so long. On the third day, I threw in the towel. And switched off my mobile. And then hell broke loose.

Every single bad idea that they had tried to get me to rubber-stamp came back to haunt them. Every bad instinct that I had tried to walk them back from, they merrily indulged in. Of course things turned to shit. Of course they tried to lay the blame on me. Of course they failed. The experience has left a bitter aftertaste. It has exposed something that I have been willing to overlook for the longest time. There are those who know their place in the world and who, when they try to escape their shackles, do so with wisdom and skill. Then there are those who are still in high school, where might made right and bullying got shit done. They are the ones who will lead us to hell and damnation. They are the ones who seem to be doing everything at once. Flitting from one crisis to the next. Wearing the tag of "super-manager" with ill-disguised self-satisfaction. Overbearing. Overweening. Arrogant. Smug. I am done with them. If Rona doesn't put paid to their schemes, nothing ever will.

Wednesday, April 15, 2020

A man can dream

Last decade, just after I came home from university, I worked for an investigative agency. We weren't the police and we had no police powers. But we played our part to make things easier for those who came to us for help. There were many illuminating experiences in my time with the agency but none as revealing as the lengths to which the men and women we call "leaders" would go to evade the consequences of their unlawful acts, even if the consequences were, to our untrained eyes, minor and trifling.

I have heard told on social media that Kenya's parliamentarians have eschewed the call to put twenty per cent of their salaries in the Covid-19 response kitty because, if the Leader of the Majority Party in the Senate is to be believed, many parliamentarians take home a pittance after all the deductions made to their pay cheques have been made in account of massive loans and other commitments. He claimed that he took home less than ten thousand shillings. Rather than another deduction from his parliamentary salary he would make his contributions from his farm income. That he couldn't see the irony of claiming penury when he had more than one source of income escaped him completely.

When these men and women add the honorific "mheshimiwa" to their names, it is almost always certain that their lives and the lives they led before that august day will be as night and day. Their new lives and your ordinary lives will be as oil and water. Within a few months of election, they have access to privileges and benefits that the ordinary Kenyan can only dream of. But the greatest privilege of all is the ability, bar the rare occasion when all fails, to escape the consequences of unlawful acts. Their State offices act as a shield against most, if not all, inquiries. What amazes most people who pay keen attention to the parliamentarian's metamorphosis is the abrupt and total disconnect between the parliamentarian and the people he or she leads.

It is why, when Kenyans are facing the gathering storm of post-Covid-19 damage, a parliamentarian with more than one source of income will blithely declare, shamelessly and unafraid, that he cannot afford to pay anything into a fund established to cushion the very people he leads. It is why he is not ashamed to claim penury. It is why he will engage in a war of words with senior colleagues of his over matters that have nothing to do with offering succour and assistance to the suffering people he leads. None of his pronouncements - indeed, none of his colleagues' pronouncements - are designed to ameliorate the suffering of the people. They are, however, meant to signal that they are very much still interested in getting reelected. And hitching their wagons to this, that or the other principal.

If for nothing else, we can thank the pandemic for revealing that 99% of what the parliamentarian does in public, we can do without. And that the many millions we shall pay them over a term in Parliament can be pared down substantially without jeopardising service because they don't actually serve us but rather their own base desires. Covid-19 continues to reveal us to ourselves. Whether we learn any lessons from these revelations remains unknown and unknowable - though, a man could dream.

Tuesday, April 14, 2020

Tragedy foretold

I once joked that when the worst came to the worst with this pandemic, don't let the soldiers or the lawyers take charge of affairs. The recent tragic affair in Siaya only serves to reinforce my prejudices against the uniformed and disciplined forces and the members of the legal profession. These two groups are incapable of dealing with any crisis with empathy, care or kindness.

Let us begin with my learned friends. When we graduate from university with our LLBs, more often than not, we usually have acquired many bad habits that are usually reinforced by the Kenya School of Law when we undertake the Advocates Training Programme. Among the bad habits is the certainty that with respect to the interpretation and application of the law we are infallible - and everyone one else is either a dilettante or a moron. We will not brook perceived interference from any quarter. In the past two decades, but more so since the Narc government came into office, this attitude has pervaded every sector, reaching its apotheosis with the series of statutory instruments that have been passed to respond to the Covid-19 pandemic. Save for the two declaring the disease as a notifiable disease and infectious epidemic disease, the rest of them have reinforced the worst instincts of trigger-happy policemen and their superiors.

Policemen and soldiers have the same attitude as lawyers - that the orders they have been issued with are infallible and require no re-interpretation. Watafuata amri, no questions asked. Tragedy has followed such rigidity. Worse still, corruption has accompanied every excessively coercive enforcement of the curfew and restriction of movement. You know it. I know it.

Don't misunderstand me. There are many uniformed and disciplined officers, and lawyers, who are honourable, kind, empathetic and judicious in the exercise of their powers and performance of their duties. You encounter them every day in the course of their work. They are members of your families, communities and workplaces. Your interactions enrich your lives in immeasurable ways. But collectively, and in the context of the system within which they function, you find them and their work to be difficult to parse because of the real harm they cause as they go about their duties.

It is those systems that refuse to countenance a different way of enforcing the law beyond the coercive, and why burials are conducted in the dead of night under the unremitting eye of armed policemen. It is why I deprecate policemen, soldiers or lawyers to be in charge of anything.

A burial is a complex event. It isn't merely the interment of the deceased. It is both a statutory requirement and a cultural event. It is ceremony and ritual. It is faith and culture. It is religion and duty. It is the fusing of physical, metaphysical and spiritual. It is NOT a security activity. I don't know of any Kenyan community, even urban Kenyan communities, where burials are conducted in the dead of night. I don't know of any sensible civil servant who would order and supervise a burial in the dead of night, even if the remains of the deceased were the modern-day equivalent of Typhoid Mary. But a system of unquestioning infallibility and rule-following leads to such absurd and tragic outcomes.

Finally, the inevitable habit of ass-covering totally militates against lawyers, soldiers and policemen being charge. Lawyers, especially bad lawyers, are adept at using language to shift blame, quite often on the victims of their certainty. The uniformed ones shift it upwards to the ultimate authority who is often beyond the reach of the victims. No, dear friends, find someone else to lead. Find someone who feels as you feel and who decides in such a way that you heal. At the very least, even if your leader makes a difficult and harmful decision, let that lead empathise with you and lead you through the aftermath with care. The legal and soldierly classes are not it.

Bullying will cost lives

I don't like bullies. I especially don't like bullies who use the colour of authority to grind their heels into the backs of the little guy. Systems that are built on oppression don't know how to do anything that smacks of helping the weak or vulnerable. They only know how to coerce and punish. These systems are reflected in the rules they make and the manner in which those rules are enforced. The Covid-19 pandemic continues to remind us of these simple truths.

On the 25th March, we were told that a nationwide nighttime curfew would be imposed on the 27th in order to maximise nighttime social distancing as many Kenyans had defied the earlier social distancing guidelines by visiting en masse entertainment joints - pubs, clubs, places of worship and whatnot. The rationale behind the nighttime curfew was sound, in the circumstances. The manner in which it was imposed and enforced was incredibly not. It was imposed by bullies and it was enforced by bullies. The ostensible reason for the curfew - the protection of the civilian population from harm - was not reflected in how the curfew was imposed - through police violence and the killing of at least five Kenyans.

It is written in other places that Kenya has a low-trust environment when it comes to interactions between governmental institutions and the people. The police are distrusted by many adults, if not the majority of adults. Through their sheer ubiquitousness, the police, armed and otherwise, are everywhere, imposing their will on everyone, but especially the workingman. For better and for worse, the police are the face of the governmental response to the Covid-19 pandemic. The health minister and his cabinet counterparts can give all the press briefings they want, but at the end of the day, the physical embodiment of the government's response to the pandemic is the policeman on the street, bullying and intimidating Wanjiku in the name of her safety.

I am not an epidemiologist or a public health expert. I couldn't begin to design an effective response programme to the pandemic. I don't know how many doctors, nurses or other healthcare workers we need to respond effectively. I don't know how many infected people need to be quarantined and isolated in order to protect the majority. I don't know where to find the money to pay for hospital personnel and equipment, or personal protective gear. I don't know which taxes to waive and for how long in order to ensure that the pandemic doesn't totally crater the economy. I don't know how to ensure that more people buy into the governmental message of personal hygiene (hand-washing), social distancing and collective responsibility. There are many, many things that I cannot do to respond to the pandemic. There are, however, trained and experienced experts who know what to do, how to do it, when to do it and how to pay for it.

They know or have the technical and professional knowledge and experience to determine what it will cost to effectively respond to the pandemic. Some are in government. Many are not. In a low-trust environment, one built on decades of oppressive governmental actions, it beggars belief (or it should, anyway) that experts are largely there as window-dressing. To be seen, and if heard, only as an indulgence and not as critical voices guiding the nation in a truly horrific challenge. You can tell that people who are trained to deal with an epidemic are not leading the conversation when the principal tool for responding to it is police coercive and violent force. And rather than design a response plan that deploys the police to assist the public health authorities, the health minister urges the people to "avoid situations" that invite police violence. Bullying, as a strategy, will not lead to success. It will lead to resistance. It will lead to resentment. It will erode what little trust government enjoys. And it will cost lives as it fails over and over.

Thursday, April 02, 2020

Change course or court disaster

When I was in Form 3, I suffered my first, of two, asthma attacks. All other asthma-related events had been mild, causing mere discomfort. This one was different. It had all the elements of malaria. So I obtained a permission slip from the school's nurse and took myself to Machakos District Hospital. Suffice to say that the next time I suffered an attack, I borrowed fare from my namesake and went to see the family doctor in Nairobi - quite against school policy. Seeking medical care at a public hospital in Kenya is quite often a desperate act. Facilities are inadequate. Health workers are demotivated. Medical supplies are in short supply. Hospital equipment is often broken down.

Since the devolution of healthcare to county governments, things have not improved never mind the much ballyhooed medical equipment leasing scheme that distributed state of the art medical equipment to all forty-seven counties. Doctors and nurses have been on several strikes, grinding essential services to a halt. Many patients have been seriously injured or died because of the strikes. It is not too much to wonder whether or not the health care system we have now has the capacity to effectively deal with the coronavirus pandemic. This uncertainty may explain the swift militarisation of the crisis, and placing the official government response in the hands of the securocracy. While the eloquent and affable Health Cabinet Secretary remains the face of the government, the situation on the ground is managed using national security tools - curfews and bans.

The post-devolution Cabinet Secretaries of Health have been disappointments. Leadership in the crucial sector demanded strategic foresight. What we got, instead, were business proposals designed to expropriate as much out of the national treasury in the shortest time possible, lethal consequences be damned. With the rapid global spread of the coronavirus, the thousands of deaths in its wake, and the destruction of economies, Kenya's healthcare infrastructure was not well prepared to deal with the pandemic. Senior government officials are deathly afraid that as it spreads in Kenya, and deaths occasioned by it rise, the coronavirus will lead to social unrest which will, in turn, lead to political instability that not only threatens the stability of government but also point a dagger right at the heart of the State. So they have fallen on the only tools they are familiar with: the coercive use of State power. This has had tragic consequences.

It is still not too late to fashion a coherent strategy to deal with the pandemic. First, obviously, is to classify the issue correctly. In my opinion, it should be dealt with as a health crisis in which case the public health authorities must be given the tools and resources necessary to deal with it. Secondly, its effects must be properly identified and correctly classified. Dr David Ndii has suggested what can be done on the economic front and no one has yet suggested that his proposals are unreasonable or impracticable. With regard to the upheavals the pandemic is likely to lead to, there are certain sectors that must be protected and supported - the supply of essential goods and services, for instance, and the reinforcement of the social assistance programmes currently being implemented.

This is not to say that the securocracy should put on mufti and slink on home. No. It still has a crucial role to play. There are those who will seek to take advantage of the situation to undermine government efforts, harm the people and generally cause damage. They must be identified and neutralised. But targeting children playing on balconies or assaulting delivery drivers because they have violated an ill-timed, ill-defined, ill-explained curfew is asinine and likely to lead to the social and political chaos that the curfew ostensibly sought to avoid in the first place. But the securocracy should not be in charge. It never should have been in the first place. It has neither the breadth of experience nor the intellectual flexibility to deal with the pandemic. It has a narrow focus on threats against the government of the day and limited tools to deal with that threat. Those tools are only tangentially related to public health. The window to arrest the public health crisis is closing fast. Armed responses are of no use.

Saturday, March 07, 2020

Black Swans

In my not-so-humble opinion, all hopes by the Democratic Party to supplant Donald J Trump with one of their own old white men is inexplicable. Joe Biden is an old, quite often confused man with a dodgy record when it comes to race, gender equality or progressive politics. Bernie Sanders is all but a dyed-in-the-wool communist with ridiculous proposals about social welfare that the vast majority of  poor US citizens are uninformed about and not interested in. But, though these are good reasons, the real reason why Donald Trump will flatten them in the November presidential election is that he and his grifter family are willing to burn down the whole US system to keep power while the Dems are busily having an intramural fight about "superdelegates" and sticking thousands of knives in women's backs,  especially the women of colour within their ranks. All talk about "Bernie Bros" and "supporting the nominee" is proof that when push comes to shove, the Dems don't have a game plan and are biding their time until they create the next Barack Obama. What they will not admit is that Obama was a Black Swan - and those only come once in a generation.

Wednesday, February 19, 2020

Nani atachomwa na chai moto?

How many times have we seen this movie? Some calamity befalls some far-flung place. Everyone says that "If it happens here, we are not prepared to deal with it." Then it happens here. And it turns out that we are not prepared. We saw it with Mad Cow. We saw it with Bird Flu. We saw it with Ebola. We are seeing it with Corona Virus. Different script, same movie.

This virus has a frighteningly high mortality rate. It is the new Grim Reaper of viruses. You get it, you almost certainly will die. So why does it seem as if the Ministry of Health and the frightening machinery at its command seems unable or unwilling to step up and take charge? Because, and I can't believe that the script hasn't changed in a decade, there are tenderpreneur wars to wage. It's as if these people can't walk and chew Big-G at the same time.

Meanwhile, that model of overreach is doing its thing again. This time the unhappy targets of the Kenya Film Classification Board are the owners, operators and crews of the matatu sector. Few of us have any love lost for matatuists. Matatu crews are rude, crude, loud, violent and bring a new meaning to risk-taking. But despite all that, in Nairobi anyway, they transport millions of commuters to and from work in the most cost-effective and efficient, though mightily discomfiting and uncomfortable, way possible. So when they are accosted by the Boys in Blue in the name of "bringing sanity back to the matatu sector" on account of the allegedly lewd and lascivious offerings on the screens mounted in their PSVs, there is a smidgeon of sympathy for them. KFCB, and its Cristian zealot of a chief executive, continue to demonstrate the virtues of misdirection - a savage virus is barreling down on us, but it is more important for the State to be seen to be waging war on "immorality" in the PSV sector because that will keep everyone safe. This shit is no longer funny.

If that wasn't enough, it turns out that a former member of the Cabinet with a passing acquaintance with formal education managed to parlay the connections his former high office afforded him into a windfall worth several zeros. His escapade has managed to ensnare men and women holding high offices in sensitive sectors. The speed with which his benefactors and enablers have distanced themselves from him is impressive, but not as impressive as how loudly the story has been pushed - anything, it seems, to push corona virus Chinese emigrants from the front pages, it seems.

The cherry on top of this shit sundae? Blowing Bridges Initiative. Honestly, where does one begin with this demonseed? We had a whole year of BBI "public engagements". Then a massive party at Bomas where misimamo yalitangazwa. Honestly, in my naïveté, I thought that the Bomas party would be the end of it, akina Orengo, Jr, Wako and other Legal Eagles would be deputised to draft constitutional amendment bills and shit like that, and we would be presented by damp squib legislative proposals the would be laughed out of Bunge in the kawaida manner. Shows how foolish I have become over the past three years that BBI still has legs. Seeing how friends and allies are stabbing each other in the back, I can see us getting saddled with another Government of National Unity pretty soon. I'd laugh out loud if I wasn't cowering in my office avoiding my clients and their impossible demands. (Can you imagine one of them wants a three-hundred-page, two-hundred-and-seventy-paragraph draft in a week? Some kinds of idiocies are to be avoided for the sake of ones sanity.)

It is rumoured that when the National Rainbow Coalition ascended to the top of the greasy pole of Kenyan politics, a poll showed Kenyans to be the most optimistic people on Earth. The other day, someone on Twitter asked why Kenyans were so damn angry all the time. It is interesting that no one challenged the premise of her question. The reasons are not that hard to find. Almost all of them are tied to the antics of men and women who see nothing immoral with shilling for foreign "investors" while walala hoi are on the receiving end of all that is evil in this world. The question of when the pot will boil over is moot. The only unknown is whether the scalding fluids will affect all of us or just the vulnerable among us.

Monday, January 20, 2020

From potholed roads to dead citizens

Some time back on my twitter timeline I witnessed a tetchy exchange that led me to ask whether or not we understood the relationship between the government and the people it is meant to serve and I am afraid that few of us understand what that relationship is or what it is supposed to be like. Government is a many-limbed monster held together by laws, policies, politics, inter-personal relationships and coercive forces. As an entity, Government is impersonal and almost always destructive and self-destructive. As an agglomeration of humans, humans contained in ministries, departments, agencies, commissions, offices, boards, committees, task forces, working groups, entities, legislatures, services and all those other units that comprise "Government", Government is not a flick-the-switch easy-to-understand-or-control entity.

It is why when we insist that Government can be fixed by electing the "right people" that I fear we don't know what we want or what we are saying. Take my department, as an example. It is not particularly large - the whole entity barley has 1,000 officers. The senior-most officer is unelected but yield enormous power. The majority of officers are permanently employed and to dismiss any of them from service follows a processionals that is time-consuming and expensive. The majority of officers will never interact directly with the members of the public - we are not what is known as a "customer-facing" organisation. The ones that do interact with the public do so in incredibly intimate ways. The strange thing is that not even the senior-most officer has absolute say on the legislation that governs the functions of our department even though he has overall say over the policies the affect us. It is also important to remember that theses policies are not made in a vacuum - they are made in the context of larger Government policies, which have been made on technical, procedural and political grounds, with political grounds playing an outsized role.

We have tried piecemeal solutions in the past. They have almost always failed. From the appointment of the Ndegwa Commission in the 1970s to the Golden Handshake Era of the Dream Team of the late 1990s, piecemeal solutions have been the preferred way for dealing with the inexorable deterioration of public services in the light of the increasing role of political considerations in policy-making, law-making and the appointment of public officers. It should be fairly obvious that if we elect bad politicians, they will make poor political decisions. And if political decisions play an outsized role in public policy and legislation, then it follows that policies and laws will be inherently bad. However, the reverse isn't necessarily true in light of the sheer number of changes that have taken place over the past forty years: electing "good" politicians alone will not guarantee the decline in public services.

It is the for root-and-branch changes that are driven by the people. Top-down changes in which the political elite decide what we should get have failed. It is time for a bottom-up approach in which the people tell the political elite what they need and punish the political elite for failing to provide it. The key lies in taking over the existing political and social institutions by our sheer numbers. How we do so remains the hardest nut to crack because few of us have shown any true interest in doing anything about the state of our political or social institutions.

We are very vocal about our participation in elections and every now and then, we are very violent about our political colours. Whether we are incited to violence during elections is, in my opinion, irrelevant compared to our the style of our political engagement. In 2013, I was shocked to find out I was a registered member of The National Alliance party. I knew - or had a very good idea - how my identification details had been used to make me a member of a political party in neither supported nor wished to be associated with. Like many others, I couldn't even be bothered to write to the Registrar of Political Parties with instructions to strike my name off that party's register of members. This apathy pervades the whole country - there are few true believers, let alone committed card-carrying members of political parties anymore. And it shows. Political parties continue to nominate thieves, thugs, rapists, embezzlers and murderers, and may of these characters become waheshimiwa every five years - or whenever a by-election is held.

Before we can even begin root-and-branch reforms of public services, we must demonstrate our commitment to change by joining political parties that reflect our values and fight within those parties to make sure that those values are upheld. We must make the era of briefcase political parties a thing of the past. We must bring all our skills and knowledge to reforming the primary vehicles for determining political policies that affect us, sometimes in intimate ways. If we don't, we will elect Moses Kurias and Babu Owinos who will continue to have outsized roles in public policies and we will end up with dead citizens every time we protect potholed roads.

Friday, January 03, 2020

"I told you so" is not a good strategy

I spend a great deal of time on Twitter. Yesterday, there was a brief, revealing conversation about a fatal motorcycle accident. A boda boda rider and his passenger were in an accident that involved a Nissan Xtrail The boda boda rider was fatally injured - cut to four pieces, according to the person who witnessed the accident and wrote about it on Twitter. His passenger was seriously injured while the Xtrail suffered some damage. Someone retweeted the tweet about the accident with the seemingly jubilant "We thank Darwin."

Those of you who are familiar with the Darwin Awards, especially the ones awarded on Twitter, know for the most part that the videos that tend to be retweeted are usually humorous ones and presumed to be fatal - hence the "Darwin" in the Darwin awards. They are a humorous take on the theory of natural selection. In our case, the death of the boda boda rider is not a case of natural selection. It is not humorous in any way. It is deeply tragic. It is also very revealing.

There are a few Kenyans who have contributed significantly to discussing the ways we can improve urban mobility in Kenya, highlighting the benefits of non-motorised transport infrastructure and facilities and improved road designs with the aim of reducing reliance on motorised transport systems and improving the safety of road users. These are things that we should all care deeply about because they affect how we access and use the built environment that we rely on for our livelihoods.

Some of us are privileged enough to be able to plan our day down to the minute, knowing where we need to be and when, and having the capacity to organise our movements in the most efficient way possible using a mix of private vehicles and public service vehicles. Some of us are also privileged enough that we don't have to rely on motorcycle taxis. However, we are a minority among the multitudes that use a combination of private cars, PSVs and motorcycle taxi services to go about unpredictable, income-earning days. The privileged few tend to conduct their business with other similarly privileged people, and so the need for urgent flitting from appointment to appointment is not something that deeply impacts our day, hence the lesser need for motorcycle taxi services.

We tend to look down our noses at the ones that are habitually run off their feet and must therefore, rely on the risk-taking quick-as-a-flea fleet-footed motorcycle taxis that defy every known canon of road safety. On many occasions, our contempt for the users and givers of motorcycle taxi services is expressed with the smug "We thank Darwin" when injuries or death abound. In our eyes, Kenya is a wonderful country but for some of the people in it. It is why, every now and then, no lesser than high government officials make statements about the "indecency" of large swathes of the population merely because they are not in a position to lead supposedly overtly "civilised" lives but instead "paint the country in a poor light".

I cringe every time I drive in the city. It is one of the most stress-inducing activities one can engage in. The stress isn't just produced by the seemingly crazed drivers of PSVs or the reckless way in which motorcycle taxi riders navigate increasingly clogged streets but also by the way supposedly "civilised" private motorists and chauffeured government vehicles bully other road users without a twinge of remorse. It isn't just in the way that they drive, but where and how they park, defying the "civilised" conventions that they insist other motorists must abide by. In my opinion, the largest contributors to the chaos experienced on the roads are private motorists hell-bent on serving selfishly private motoring needs, the safety of all other be damned. For this reason, few, if any, contribute meaningfully to seeking or proposing solutions, smugly satisfied in declaring that they are law-abiding, and that everyone else is a scofflaw that deserves death or injury.

Motorcycle taxi riders are an entrenched part of the transport system in Kenya. Treating them like vermin - treating them with the same contempt that we treat mkokoteni pullers - is simple burying our heads in the sand about the true reasons why such risk-taking is so commonplace: the design of the road transport system is deeply flawed; its operation is highly fragmented; and few road users have a real incentive to play by the rules when it comes to road use. Pedestrians, motorists, PSV and boda boda passengers are all guilty. Acknowledging the legitimacy of the boda boda and the culpability of all road users is the first step to finding lasting solutions that enhance road safety for all. Smug I-told-you-sos are not a solution.

The past as prologue

From the moment the Supreme Court declared that Uhuru Kenyatta had been validly elected, the question of who would succeed him as Kenya's fifth president has been hanging fire. The Second Kenyatta Succession has inspired boycotts, violence, death, handshakes, tangatanga-ing, kueleweka-ing, inua-ing and embrace-ing. But the thing that has woven all these different impulses together has been the Building Bridges agreement between the president and the doyen of the opposition, the former prime minister. It has drawn a clear line for those who have chosen sides in the succession politics aimed at the 2022 general election: you are either pro-William Ruto or you are not. For only the second time in Kenyan politics, the question of whether or not the president will be succeeded by his deputy has become the organising principle for all political actors.

When Kihika Kimani and his Change the Constitution Movement took flight in the late 1970s, Daniel Moi was seen as weak and ineffectual, forgetting that he had survived in Kenyan politics by biding his time and picking his battles. He had not put a foot wrong from the moment Jaramogi Odinga over-estimated his sway with the electorate in the Little General Election of 1969. The Kieleweke and Tangatanga windbags, and the feminine versions of Team Embrace and Inua Dada, under the cover of the Building Bridges Initiative, have simply updated the Change the Constitution Movement with snappier made-for-TV messaging, social media strategies and vastly larger amounts of cash bribes to wavering politicians. The objective remains the same as it was forty years ago: prevent the president's deputy from succeeding him. The outcome, I think, will be the same: these people under-estimate the deputy president at every turn.

In the pursuit of political power, it is remarkable how little the constitutional structure matters in Kenya. The same political machinations have survived unchanged from the pre-2020 constitutional order. While Kenya attempted to turn back the clock to the 1963 - 1964 Majimbo Constitution, the only truly new thing in the whole arrangement was a Supreme Court that Kenya neither needed nor particularly wanted, and the unnecessary expansion of commissions and independent offices whose utility, as demonstrated by the thankfully short-lived Commission for the Implementation of the Constitution, is middling at best. The Ouko Auditor-General's office has published our fiscal scandals for all to see but so long as no one has been jailed over it, what good was he or his shiny new office?

Kenya's political ambitions have always been small and small-minded. The 1963 - 1964 ambitions were to position the president as a god-king, infallible and all-knowing. The 1964 - 1969 ambitions were to cut down to size any ambitious pretenders to the throne - or to cut them down, period. The 1969 - 1978 ambitions were to build a cult of personality that didn't invite pesky queries - and keep the country guessing as to whether this person or the other was best suited to adopt the mantle of President for Life. This cycle replayed itself between 1978 and 2002, and once again between 2002 and 2013, constitutional change notwithstanding. That the BBI smoke and mirrors is being sold as a wholly new thing is a testament to how narratives can be shaped on the collective amnesia of those who should know better.

The next two years will be spent almost entirely dealing with the politics of succession and hiding from the people the dire economic straits they are faced with. The fire and brimstone of "constitutional change" will keep nearly all of us occupied, trying to answer the question whether or not William Ruto will be Uhuru Kenyatta's political heir or a footnote of history, rather than dealing with the accelerating destruction of livelihoods, savings and grassroots wealth. The revolution you have been promised on Twitter by notable windbags like Miguna Miguna will not materialise. In the end, we shall come full circle and the cycle shall play itself out for the next ten years.