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.

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.

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.

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.

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.

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.