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.

Bad senatorial behaviour

"Super Senator Sakaja" was once his much-ballyhooed moniker. It didn't stick. I think that it is only that procurer of copious quantities of pomade who found it amusing to repeat and Jeff Koinange is renown for repeating piffle of dubious utility. The only difference between Super Senator Sakaja and the unrepentant inventor of "Tibim" is the gravity of the latter's alleged offence but in every other respect, they resemble each other. Indeed, if there's a defining feature of Kenya's elected classes, Super Senator Sakaja manifested it with his "Never been arrested. Won't be. Show me an OB number." tweet.

Appending the prefix "Senator" or the suffix MP" to ones name in Kenya is like donning a teflon-coated suit of armour. One suddenly enjoys degrees of protection from normal legal challenges that the people one is elected to represent can only dream of. Mr Sakaja, apparently, was accosted by police officers as he casually violated Super CS Matiang'i's curfew order - an order that had been announced and extended twice over by President Kenyatta. He was belligerent, bellicose and apparently drunk. And he was unrepentant.

He is not the first elected official to behave badly and he will not be the last. This is the system that we have built, and one that continues to harm us in many ways. High office in Kenya is not a call to serve the people but to serve ones interests while engaging in the lowest forms of hypocrisy. One of todays headlines is about a very vocal good-governance windbag whose company, or a company associated with him, allegedly made off with a portion of the missing NYS billions. If DPP Haji manages to shove his behind behind bars and keep him there like he has apparently done with Sirisia constituency's Waluke, maybe the beginning of a change is here - but we have been down this road too many times to believe that things are changing, haven't we.

Mr Sakaja knew, and was confident enough to know, that he would not be held to account by the police, the DPP, the Senate's powers and privileges committee, Mr Matiang'i or President Kenyatta because of his senatorial status. He wanted to party and no one would stand in his way. He would drag his associates with him. He would make accomplices of the bar where he was found. It wouldn't occur to him that those serving him on that fateful night could face legal jeopardy. All that mattered was that he wanted to have fun, rules and regulations be damned. And now he is playing hide-and-seek with the police and the police are hilariously going along because it wouldn't pay for them to be seen to be "targeting" one of the Senate's blue-eyed boys.

It is no coincidence that many Kenyans will kill to become elected representatives, preferably at national level. These offices confer the highest levels of privilege to their occupants. They grant access to business opportunities on a colossal scale. They imbue one with a sense of invincibility and power. Audience with other movers and shakers is automatic. High office is the ticket to untold wealth and power, including the power to subvert the law, bend the forces of law and order to ones will, get away with murder. Super Senator Sakaja is just the latest in a long line of elected officials behaving badly. He won't be the last.

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.