Tuesday, December 08, 2020

Incredibly arrogant and wilfully ignorant

Bully anyone you know that voted for Jubilee. Remind them relentlessly that they're the reason we're here. Washenzi.

I come across this sort of statement a lot on twitter. It is the twitter version of a superiority complex: I voted for the right people; you voted for the wrong people; we are in deep shit because of your voting choices; therefore, you are an idiot. It is similar in tone to the "Kenya is a beautiful country but the people!" statement beloved of people enamoured by European towns that have done an excellent job of hiding their poor in underpasses and whatnot.

I have the privilege of seeing things from my office that many others don't. For instance, not many will accept the fact that the majority of the voters have no control over what their elected representatives will do once they are elected, whether they are of the honourable kind or not. Indeed, many so-called "good" parliamentarians have proven to have feet of clay and rocks for brains. Look no further than the inanities spewed by youthful parliamentarians like the senator who suggested that one way of dealing with Nairobi's potholed roads was to buy SUVs or the member of the National Assembly who, in response to the tragic death of his colleague due to an acute shortage of essential medical supplies, was to demand a standby helicopter. How about the senator who is engaging in an ill-advised war of words with the governor of his county over the governor's anti-BBI litigation. I have a particular animus against that senator and wish him nothing but bitter disappointment in all his endeavours.

What remains unseen is how these elected representatives give short shrift to the people's business and concentrate their enormous political and economic power to perpetuate their own interests. It no longer shocks me how many parliamentarians drew from the NYS cesspit - while pretending to call for "comprehensive investigations" and "prosecution to the fullest extent of the law" of the perpetrators of the ongoing NYS scams.

One reason that the people are engineered into voting for these hyenas in sheep's clothing is the manner information is filtered to them. No one receives the unvarnished truth. Not from the Fourth Estate. Not from community leaders. Not from leaders of academia. Not from ministers of faith. Not even from trusted family members and friends. In the Information Age, accurate and credible information is notable by its absence. Instead, the masses are fed relentless propaganda so much so that "The sky is red" sounds true and your lying eyes are lying to you all of the time.

My fellow Kenyans who queued for hours on end to vote - not once, not twice but three times - for this lot didn't do it because they are washenzi. They did it because they live in the real world where the information they need to make better choices is obscured and obfuscated with professionalism. The modern tools of propaganda are very effective. It is how many of us have forgotten the reason why our man at UNCTAD lost his deposit in 2007. It is how we have swept under the carpet the manner in which the Whistleblower-in-Chief got his job and why those that appointed him saw it as a great betrayal when he quit and fled the country. Our voting choices are shaped by the information we receive. Therefore, to dismiss 6 million odd Kenyans as washenzi is incredibly arrogant and wilfully ignorant.

I know why my preferred candidates didn't win. It has nothing to do with the ushenzi of those who voted for their rivals. It has everything to do with the way we learnt about our preferred candidates and how the Sorting Hat of the Kenyan news media excluded, if not erased, certain stories and promoted others. If we are to point our rage at the cause of our electoral woes, the news media would be at the top of the list - followed by ministers of faith and the denizens of the academic ivory towers that no longer say anything thought-provoking but choose to suppress free thought at the altar of the "free" market.

Friday, November 13, 2020

The dead deserve no mercy

I am not a scholar, and for that I and I alone bear responsibility. But I have lived with scholars - continue to live with them, on and off - who have created, explained and generously shared knowledge in ways that I hold in the greatest awe. That they love me unreservedly is neither here nor there; they are, to my criminally untrained mind, the greatest thinkers I know, though they almost always correct me that if they are great, their greatness only comes about on account of their standing on the shoulders of true greats. I do not make these declarations lightly; after all, in this country alone, there are men and women who have thought through some of the most difficult questions of our times, detailing them in ways that have invited awe, surprise, anger and, on so many terrifying occasions, violence and murder.

It is why I can appreciate the nadir that current knowledge finds itself in Kenya for a thinker to declare that Kenyans are aggressively ignorant, none more so than those who are privileged to have received many opportunities to think but have chosen to publicly practice a certain kind of ignorance that wears the superficial garb of academic credentials but in truth reveals them to be intellectual cowards. I speak, of course, of men and women of letters who have betrayed a life of letters for the pottage of high government offices and ephemeral political quasi-power.

The Kenyan academy has been hollowed out, first by the murder of great thinkers, and second by their suppression through assimilation - or exile. Murder as the weapon of choice has gone out of vogue - though the murder of Dr Odhiambo Mwai continues to hurt seventeen years later. Exile as well isn't as popular in the age of social media and activist judicial officers. Assimilation, a tactic used to great effect by Mwai Kibaki, has worked wonders in styling independent thinking and tarring independent-thinking intellectuals with the same brush as the dyed-in-the-wool brown-nosing sell-outs. The depths to which the Kenyan academy has sunk continue to be revealed by the utterances of its new-ish members who deprecate the value of the arts and sing the pro-market praises of STEM disciplines - provided the STEM-ists stay well away from theoretical sciences and concentrate their minds on practical sciences.

There are a few holdouts in the crumbling academic redoubt - Dr Njoya at the Daystar University and Dr Ogada, the eminent carnivore ecologist, readily come to mind. But they are a rare and vanishingly small species of public intellectuals, shunned by their peers in the upper echelons of the public service and viewed with contempt if not scorn by the makers of things, like the senior-most wheelbarrow salesman of today and his acolytes.

In Kenya, it is no longer a fertile soil for new ideas - or old ideas reexamined anew. In Kenya, to reach the highest parapets of the academy, one must suppress the instinct to challenge received wisdom. One is expected to conform. One must go along, even if one doesn't get along. In Kenya, to think is to invite trouble. To think fiercely is to invite violence. To think radically is the nearest one will come to drinking petrol and pissing in a camp fire. It is how medical professionals who have reached the highest levels of governmental power and authority are not mentoring their junior to scale ever greater medical heights but have become the pre-eminent inspectors of classrooms. The special form of a professor of medicine inspecting Grade Three classrooms to see if they are fit for teaching during a pandemic is one of the most devastatingly dispiriting things in the world. But what is worse is a putting is man best known for selling mouldy cheese in charge of health policy. The academy, my dear friend, is dead. All that remains is the generations to come to perform its last rites and inter it together with honour, ethics and integrity.

When the history of this sad and cruel time is written, I pray that history's judgment is harsh. We must serve as a warning to future generations. They must point to us as the example of a promise betrayed. They must place our cowardice in the proper historical context and render, harshly, the judgment that for all our perceived "progress", we are no better than ornery buffalos. We deserve no mercy.

Tuesday, November 10, 2020

Bad leaders

Korean War Memorial (October 2017)

Harry S. Truman knew what he wanted and he didn't let his military commanders walk all over him. When the celebrated media hound Douglas MacArthur defied him on how to prosecute the Korean War, President Truman fired him on the spot. Despite the risk that he would be seen as petty and vindictive, President Truman didn't hesitate to take an unpopular decision in order to retain his authority over the military, something his successor, General Eisenhower came to appreciate as he left office on his "Military-Industrial Complex" speech.

Leadership is a complex many-splendored coat, and there are many leaders who fail the leadership test. They forget who they are and hat they are supposed to do. Quite often, their failures are a reflection of their weak characters and a deep ignorance of what their organisations are supposed to do. But sometimes their weak leadership is a reflection of their bad character. They are intelligent and well-credentialed, but they are bad people at their core, and incapable of making good decisions. Bad people make bad leaders.

In my very short professional career, I think I have identified a few things that make a leader a bad one. Hubris, obviously is up there with the worst traits. Jealousy is its handmaid. But there is nothing as bad as cowardice - the fear of making a bad decision and, therefore, no decision is made. With cowardice comes blame-shifting - a refusal to take responsibility for anything bad. Nothing demoralises an organisation so much as a cowardly leader who blames his underlings for the bad outcomes of his cowardice.

Harry Truman wasn't afraid to fire a popular war hero. President Truman's military career had not been a stellar one but he didn't let fear of the unknown when he became Commander-in-Chief from making hard calls when he had to. He ordered the nuclear bombing of Hiroshima and Nagasaki. He saw the awesome power of The Bomb. He knew that if he left his commanders to make decisions about the deployment and use of nuclear bombs, he would lose not just his country, but the world. So when Gen. MacArthur came up with the harebrained idea to bomb the North Koreans and their Chinese allies into capitulation using nuclear bombs, and refused to listen to his Commander-in-Chief when he was ordered not to advance beyond the Yalu River, Truman had no choice but to can his ass.

Many leaders are faced with less fraught decisions that cowardice prevents them from making, quite often because they are afraid of being seen as cohering to a moral, ethical or practical line. Every time they capitulate to bullies, they raise the stakes for when they will be faced with truly difficult decisions and find themselves without allies when they fail to make the right decision. In my opinion, it is better to make a wrong decision - and learn from it - than cowardly refuse to make a decision at all and have it made for you by lesser men. It is quite difficult to work for bad leaders. You spend part of your day wishing that they got fired or something.

Monday, November 09, 2020

Only divorce will bring credibility

There are no perfect constitutions. That it is necessary to restate this truism comes as no surprise in Kenya's fractious constitutional debates. On a raft of issues, the Constitution, whether or not it is "implemented in full", faces challenges, some insurmountable and others not. It is therefore, perfectly in order for men and women invested in their own political survival to campaign to amend the Constitution and attempt to persuade the people that the amendments are for their own good. It is up to the people to be informed well enough to make a decision that they can live with.

If there are no perfect constitutions, then it also follows that there are no perfect constitutional orders and Kenya's is as imperfect as they come. There are those who would deny the long tail of colonialism on Kenya's constitutional order, but they are a minority that labour under the delusion that British colonialism was a net good for the peoples of Kenya. It is safe to treat them with suspicion for their constitutional motives are forever infested by hangovers over Britishisms of little constitutional value. On the other hand, it is a bit overwrought to lay all the blame for the current constitutional mess on the British; we have had two decades to settle on a constitutional order that guarantees and protects the rights of the individual; recognises the legitimate place of all genders in public affairs; holds the high and mighty accountable to the people; and forms the foundation for, as the USA declaration of independence says, the pursuit of life, liberty and happiness.

The Second Liberation inspired civil society to campaign on many constitutional reforms platforms. Many can recall the strong positions that the Law Society of Kenya, the National Council of Churches of Kenya and the Green Belt Movement, among others, took on many constitutional questions, quite often putting their members at grave risk of death or injury. The Ufungamano Initiative presaged many of the issues that would form the basis of the Bomas Conference and the work of the Ghai Commission and Nzamba Kitonga's Committee of Experts.

The Building Bridges to a United Kenya initiative - BBI - shares very little with previous constitutional reforms processes in Kenya. It isn't inspired by what the people want or need. It hasn't inspired civil society to participate in the process in ways that bring the people together on common platforms. Instead, it is the knee-jerk response of a political class that is totally divorced from the people and obsessed with the sharing of space at the feeding trough that is the National Treasury.

When we finally confirmed that the new constitutional order had not cured the political classes of their impunity - it still staggers me the number of sitting parliamentarians that were feeding at the NYS I and II troughs - we also conformed that the Ghai Commission was the last legitimate people-centred constitutional reform movement. The CoE wore the veneer of people-centrism but in truth it was a camouflage for the baser political instincts of men and women seeking high office and explains why the BBI is obsessed with the expansion of the national legislature and executive. The people will get a few crumbs thrown to them from the high table but in truth, seven-year moratoriums on HELB loans or whatever it is that forms the sops-for-the-people agenda don't mean much if taxpayers' monies go to satisfying the avarice of less than five hundred highly-paid, highly under-worked members of the political elite at the expense of the remaining fifty million Kenyans rather than regulating the national economy in a way that generates income-generating opportunities for the vast majority of young people of working age.

It isn't too late for the people to seize the moment. It will be difficult and much has changed since the halcyon days of Saba Saba. But civil society organisations like the Law Society still have an opportunity to define the arena in a people-centrered way. In my opinion, the first vital step the Law Society  - and civil society in general - can take is for its members to resign from every single public office reserved for them by Acts of Parliament or regulations made thereunder. It is impossible to criticise the eating culture in Government when you are eating as well, isn't it? The argument that direct civil society participation in public institutions is vital to holding them to account has proven to be wildly optimistic and it is time civil society and government went their separate ways. It is the only way that civil society can credibly hold the government and, by extension state and public officers, to account. If one of the BBI goals were to separate Government and civil society, I'd begin to pay attention to its plethora of self-serving proposals.

Friday, November 06, 2020

Hollow words

There are many pivotal moments in Kenya's road to corruption. The debasement of the public service did not begin the other day. We have taken many steps to get to the point we are, and along the way, we have revealed our true selves, whether we serve in Government, ply our trade in the private sector, or scold the firmaments of both as vocal members of the Third Sector. I like to think that corruption, both inside and outside Government, became acceptable when the president allocated to himself his first acre of land in the style of the kings of England and the Popes of the Holy Roman Catholic Church.

A few years ago, there was an apocryphal story of blue chip company's dealings in land in Ruaraka. There was no Government interest in the transactions - save for the taxes due. Yet there were rumours - as Kenyan rumours are won't - about "procurement irregularities" in the transaction that have simply refused to die down. The deal was eventually shelved and the company, instead, invested in land near Athi River and quietly proceeded with its housing project. It is one of dozens of stories about the degree of graft plaguing private-sector companies. These are stories we tend to ignore or pretend they didn't happen. All these stories can trace their roots to the betrayals visited upon Kenyans by their elected representatives, ministers of faith, corporate titans and leading university dons.

So it is a bit rich for the self-righteous among us to tom-tom their ethical and moral superiority, lay the blame for our Augean stables at the feet of the masses and their - and only their - elected representatives, and absolve the rest of the private sector from all responsibility. It is a simple argument: I am pure; the people I deal with are pure; therefore people like us couldn't possibly be corrupt; consequently it's your fault, Wanjiku, for electing thieves and robbers. As we discovered when senior members of the government procured a multi-billion shilling security system from a leading private-sector company, corruption requires two to tango, and members of the professional classes - lawyers, accountants and the like - to draw up the necessary papers and ratify the necessary agreements.

This morning there was a hilarious story about how bar-flies and bar owners were getting around the Covid curfew in Murang'a - an old but effective dodge. They'd simply lock themselves in the bar, turn down the lights, keep the noise down, and carry on: the bar owner turns a profit, the bar-fly can drink to his heart's content, and, presumably, Government is none the wiser. But in such a heavily police society like ours, only the naive believe that the forces of law and order are oblivious of the goings on in the dozens or Murang'a bars across the country that have actively conspired to convert themselves into Covid super-spreaders. If the police know, then their superiors know. If their superiors know, then their appointing authorities know. Everyone knows; everyone pretends not to know. And the self-righteous continue to live in their bubble.

The solution is straightforward. Because Wanjiku takes her cue from her community's leaders, from the president on down, then if we are to clean our Augean stables, enforcement must begin with the man - or woman - at the top. But so long as we give the high and mighty a free pass, and stay silent as they demonstrate the pecuniary value of bad behaviour, we have no moral authority to declaim pompously that the people are to blame for the shit they suffer on the daily. The stick isn't simply for the "hawkers" who flood the CBD or the makanga loudly touting for passengers on a blind corner. The hypocrisy of the opposite position is the reason why things are getting worse and why the un-human idea that money imbues one with probity keeps gaining credence.

Two members of my profession, seniors both, love visiting European cities that are clean, well-managed and devoid of the raucous chaos of Nairobi's streets. In their estimation, caucasian Europeans are better at municipal management than Black Kenyans and it shows in how clean European cities are and how filthy Kenyan towns are. The fallacy is obvious. Graft in high places in European cities is more often punished than not. In Kenya, the opposite is true - it is petty offenders aping their "leaders" that bear the brunt of anti-corruption law-enforcment while the high and mighty spend goodly portions of their ill-gotten gains paying senior members of my profession to keep their hides out of the Industrial Area Remand and Allocation Prison. Many of us would be willing to accept the claim that as professional advocates, we accept all manner of briefs because that is what the administration of justice demands. But because the bulk of graft is accomplished by legal eagles being the handmaids of the thieves in high places, the claim rings hollow.

Wednesday, November 04, 2020

PR isn't enough

Article 10 of the Constitution of Kenya rarely attracts attention save for when it is waved in State and public officers' faces with demands for "public participation" whenever Government engages in secretive public policy shenanigans. But Article 10 is much more than the "public participation" Article; it is the foundation for the safeguarding of our rights and fundamental freedoms enshrined in Chapter Four. Without Article 10, the State - especially the State - will run roughshod over us and make a mockery of Chapter Four. And where the State goes, so go the rest of the country.

One of the principles by which "all State organs, State officers and public officers" are bound, is the principle of good governance, integrity, transparency and accountability. It goes hand in hand with our right of access to information held by the State under Article 35, which contributes enormously to our sovereign right as citizens to hold State and public officers to account. In my humble opinion, the Nairobi Metropolitan Services, its Director-General and everyone connected to this demonseed, make a mockery of Article 10 and the principle of good governance, integrity, transparency and accountability.

I have had occasion to joust with the proponents of the militarisation of public services and, even accounting for their deep frustrations with the way Nairobi's governors have governed, I can find no persuasive reasons for why they would simply allow NMS to operate the way it does and fail to connect its perfidious approach to transparency and accountability as of a piece with the ineptitude and graft of Nairobi's City Fathers.

Don't get me wrong. I enjoy well-paved and well-lit city streets, efficient water and sanitation services, effective public health facilities, and predictable rule-enforcement in building and construction. But, even taking into account the shenanigans of Messrs Sonko and Kidero and their bands of misfits, we knew who was responsible for what. We could identify them. We knew how much the County Assembly had appropriated for their operations. We new the rationalisations behind their decision-making because, by law, they had to publish their plans in advance. This is the transparency part of the equation. And because we knew, our elected representatives could demand action if there were lapses. Or failing that, we could sue. This is the accountability part of the equation. And all go to satisfying another of Article 10's principles: the rule of law.

The NMS has an effective public communications strategy. It has effectively publicised its successes in paving city streets, repairing city equipment and making lofty-sounding promises such as building new hospital facilities or hiring healthcare workers. It has been so good at PR that few question any more whether or not the rationale behind NMS is founded on the quicksand of constitutional hooliganism. In my opinion, the only difference between Mike Sonko and NMS is that NMS covers itself with the veneer of martial discipline. Rub some of its soft skin off and the casual constitutional violations are plain to see, not the least being fidelity to the principles and values of governance of good governance, integrity, transparency and accountability - and the rule of law.

It could be that the NMS has fine Kenyans in it, law-abiding and honourable. But so long as they piss on Article 10 with the same reckless abandon as NMS's creators, there is absolutely no reason why we should give them a free pass simply because they are very good at laying coloured cabro in town. If there is a place to draw the constitutional implementation line in this cesspit, it is with fidelity to Article 10 for ALL State and public officers, their do-gooding notwithstanding. If you can't obey the Constitution, then you have no business in public service, army-fatigue PR notwithstanding.

Tuesday, November 03, 2020

Don't be an idiot

I didn't know how to say this so I'm just going to say it the way it's going to be said. If you are one of those Kenyans who think militarising public services is a good thing, you're an idiot.

The history of policing in Kenya is the history of policing Black Kenyans. The elite make the rules; the hoi polloi follow the rules. The intention has always been to ensure that the working classes do as they are told, take the pittance they are given, suffer in silence, and suffer dire consequences should they dare to organise and fight for better things. The history of policing has been that of the police force being used to keep the working Kenyan down by any means necessary. The force may have been renamed a service by constitutional fiat, and its officers may have shiny new bright-blue uniforms, but the policing instincts that have stood the elite in good stead have not changed one bit.

There is a sad story in the interwebs, about a man who was accosted by policemen for not wearing a mask, fled from them, was hit by a matatu and died, occasioning an armed response from the police officers' colleagues, some in plain clothes and others in uniform, to "contain the situation". This incident reaffirms my fears that policing in Kenya is not intended to keep ordinary Kenyans - Wanjiku - safe. It is intended to  keep Wanjiku in her place - a place of subservience, obedience, terror.

One of my colleagues in the Bar once asked me on Twitter what the alternative was to the militarisation of public services during this pandemic, and I bantered with him that we should, abolish both the National Police Service and the Kenya Defence Forces. He couldn't see how a "national emergency" could be handled in any way other than under force of arms. It terrifies me that Kenyans who have read the law don't have the capacity to empathise with what ordinary Kenyans are going through and, therefore, imagine different ways of addressing the present challenge without resorting to violent police action.

I suggested to him, at the very least, that the Ministry of Health should give each policeman fifty surgical masks t be given to every Kenyan who doesn't have one. If each of Kenya's 100,000 policemen was given fifty masks to distribute, and each actually distributed the masks to Kenyans who needed them, that would be 5 million masks distributed. Instead of violently accosting and detaining vulnerable Kenyans, the police would have contributed strongly to the Government's efforts to control and suppress the spread of the Covid-19 virus. Instead, from the moment the police were asked to "assist" in "enforcing Covid-19 regulations", they approached their responsibilities as they have been trained to approach all Government directives: with a mindset that Wanjiku is a threat to national security and stability and She must be coerced into submission even if it means Her death, injury - and widespread fear and panic.

I don't understand how anyone can imagine that it is a good thing to hand even more coercive powers to governmental entities is a good thing. Members of the uniformed and disciplined forces are not trained in the messy realities of political negotiation. Not that the political and administrative classes have done a bang up job, but the solution is not to abandon the hard work of building up civilian institutions. The solution, or at least part of it, is to identify the areas where civilian action has shown promise and to build them up and share best practices arising from them. Men and women who are trained to obey without question the orders of their commanders-in-chief and commanding officers are ill-suited to the slow slog of persuading a large civilian population to adopt risk-mitigating measures in the middle of a slowing economy, wide-spread unemployment, diminishing wealth and personal savings, and the terror of an unknown future.

So I'll say tis again. If you think militarising public services is a good thing, you are an idiot.

Wednesday, October 28, 2020

There shall be wailing and gnashing of teeth

If you are like me, and I sincerely hope that you are not, then you steer clear of Kenyan news media. Much of what passes as news and political commentary these days is barely-disguised propaganda from, in order of precedence, the president, his embattled deputy, the former prime minister or the satellites of vocal acolytes that carry water for the three principals. Every now and then, has-beens like the former vice presidents and some of the more energetic members of parliament will get a bit of airtime as will the doddery political flies made up of "civil society" windbags that swarm around the high table.

Therefore, it is almost certain that if it hadn't been for the violent rhetoric surrounding the release of the recent Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce Report, the event would have passed me by without so much as a by-your-leave. But, sadly, I happened to come across the spirited whining of the former leader of the majority party in the senate and my spirit is disturbed.

Listening to the poor man, one gets the impression that the BBI, the catchall acronym for the implementation of the Taskforce report, is a matter of such grave national importance that presidential political ambitions shall be made and unmade on the outcome of the process. Our eponymous senator went to great lengths to highlight the crucial weaknesses in BBI (while also bitching piteously about how he and his fellow travellers had been locked out of the process). It never occurred to him to admit that the reason why there was a BBI in the first place is that he, his principals and their political party have done a great deal of constitutional sabotage that necessitates a messy political solution today.

Members of my benighted profession are taught to look at circumstances for what they are and not for what our clients wish them to be. I have witnessed one of my seniors throwing his weight behind some of the BBI report's steering committee's implementation report and, dear friend, my spirit is disturbed because if there's one thing that the BBI in its entirety is, it is that it is proof of constitutional hooliganism of epic proportions. Some may argue that the trigger for the latest round of BBI madness is the Chief Justice's advice to the president to dissolve parliament over parliament's refusal to implement the two-thirds gender rule. Some may say that after a year, give or take a pandemic or two, of the inexorable marginalisation of the deputy president and his acolytes, it is time to put him out of his misery. Still others might say that if there is a way of putting constitutional square pegs in antidemocratic round holes, the BBI is it with its proposals for statutory health commissions and constitutional police councils.

I am of a different opinion. From the moment the reds accepted, with open contempt, the outcome of the 2010 referendum, they have worked assiduously to hamstring everything the constitution stands for, from gender equity to the protection of the rights of arrested persons, fiscal rectitude to the principles of devolution. Parliamentary independence was, and continues to be, notable by its absence. Judicial independence has been the focus of determined violence that it is a wonder that just recently the Chief Justice inaugurated a new court house.

In my opinion, the BBI is a fig-leaf for something that Kenyans are afraid to come to terms wit: the political elite who speak for and about them hate the people. They hate them with a deep and abiding malevolence that is revealed in the policies and laws that are enforced, and the constitutional principles that are exsanguinated in the open, the way sacrificial lambs were exsanguinated in biblical myths. I have no faith that the successful implementation of the recommendations of the BBI Taskforce will re-acquaint Kenya's elite with the basic tenets of constitutional values. In fact, if (or when) the BBI recommendations are fully implemented, I predict that Kenyans will have great cause to regret their choices of elites. Like it is told in the Gospel according to St Matthew, there shall be wailing and gnashing of teeth.

Monday, October 12, 2020

Badi & Co. and the Bill of Rights

Paternalism does not sit well with Bills of Rights.

Nairobi's City Fathers, from the city's founding, have treated the "native" population with a paternalism that has invited rights' violating behaviour of such cruelty that it almost always comes as shock when one sees it in action. The City Fathers, and the central government that backs their anti-people plays, have always segregated the city - the wealthier suburbs and the Eastlands wasteland of untidiness in need of a firm guiding fatherly hand by Those Who Know Better.

This attitude, unsurprisingly, pervades city planning. It is the guiding light of the newly-minted roadsweeping company otherwise known as Nairobi Metropolitan Services, which has theoretically taken on the onerous task of physical planning, public health, public sanitation and public transport. Its 100-day anniversary was marked by the presidential flagging off of water bowsers and off-road ambulances. The president has "inspected" cabro works in the Nairobi Central Business District, giving the general in command top marks for his efforts. The general has attracted a positive press from the usual boosters - professional types that do not want to encounter mikokoteni, nduthists, matatus or hawkers in the streets of their beloved CBD. In their minds, it is a matter of time before martial discipline sorts out the city's issues and it can take its rightful place among the great cities of the world: London, New York, Paris, Munich, Milan and Singapore.

General Badi & Co., in keeping with the expectations of their boosters, have announced that, just like Rwanda's Kigali, one day in each month will be dedicated to mandatory roadsweeping by those in the city.  General Badi announced, portentously, that "this will come into law; it will be a must" to the ponderous praise of those who want government to be their daddy. A few things, though, escape their attention. Or, as I read it, they have completely ignored what is plain to see.

First, regardless of the legitimacy of the deed of transfer, General Badi was not elected to his position; he was appointed to it. He is accountable to his appointing authority. If he messes up, he can't be removed by the voters of the city. It is up to his appointing authority to decide whether or not he is doing a bang up job. So far, his appointing authority is happy with cabro works and branded water bowsers.

Second, a corollary to the first point. He is only accountable to his appointing authority for how he spends taxpayers' money. He need not present a budget for his operations to anyone other than his appointing authority. He is not subject to legislative oversight by the County Assembly. He does not have to lay his budget or his plans before the County Assembly. If he is summoned to attend before the relevant county assembly committees responsible for oversight of the areas under his charge, he can flip the committees the bird and suffer no adverse consequences. He can spend the billions under his charge without further reference to the county government.

Third, the opacity of the General's operations is a recipe for great corruption and if one argues that the Kenya Defence Forces is as white as the driven snow when it comes to graft, one has simply not been paying attention. The Air Force itself, where the general hails from, has yet to satisfactorily explain its dodgy purchase of jet fighters from Jordan that have never seen the great blue yonder. And now the man and his cohort are entering into public works contracts under unknown terms for unknown sums. If a billion or two evaporate into the ether, no one would know.

Fourth, the general is not trained to manage municipalities. Planning air war campaigns and implementing plans to revivify public health services are alike as chalk and cheese. The tendrils of industrial action emanating from the county's health workers will soon enough choke his grand plans for "21 new hospitals" simply because he does not seem to know what he wants to do to improve public health services.

The face of paternalism in Kenya has always been that of autocracy. Kenyans who don't see the light are to be beaten into submission. In Nairobi, the beating has always been meted out by the City Askaris. In order for General Badi to ensure that the residents of this city "turn out in large numbers" to sweep the roads, he will either have to persuade them that it is a good thing or he will have to force them to comply with his "it will be a must" way of thinking. If the latter, he will need to turn out the City Askaris, rungus and shields, to crack heads. Either way, that bit of the Bill of Rights about slavery, servitude and forced labour, is about to meet the General's new cohort. I will leave the irony of an Air Force general commanding City Askaris for others to muse about.

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.

Listen to what Gen Z is saying. Hear them.

Kenyan Gen Z seized the moment that was made for them and threw down the gauntlet at the feet of the Kenyan State. With the memory of the bi...