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.

We need to learn, again, how to think

I don't think the parliamentarians of the National Assembly will heed the call and #RejectFinanceBill2024. They will tinker. They will v...