Friday, December 10, 2021

NMS Must Go

The Environmental Management and Co-ordination Act (No. 8 of 1999) is one of the most mind-numbingly boring pieces of legislation to ever manage from the National Assembly of Kenya. It is written in such a stodgy and turgid style that only a masochist would read it for fun. It's ennui-inducing text notwithstanding, it is a law of the Republic and must be obeyed whenever someone sets out to do a project in Kenya. It binds everyone, regardless of their station in life. Barring the nitpicking of members of my tribe, where it says "shall", it commands one to do or refrain from doing that act.

It states, at section 58(1):

Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.

The Second Schedule classifies projects into low-risk, medium-risk and high-risk.  In my opinion, what is being undertaken in Uhuru Park is a low-risk project (small scale rehabilitation, maintenance and modernization of projects), for which a project report should have been submitted to NEMA and, should NEMA have directed, an EIA should have been undertaken. In flagrant disregard for section 58, none of this was done and it has taken a petition by the Communist Party of Kenya to put a stop to the goings on in Nairobi's largest urban green space.

We have been fed tonnes of propaganda about how military officers are so by-the-book and honest that they will right the developmental ship of state from its dangerously parleys state. I have expressed my scepticism about the soldiers donning mufti and playing at civilian administration. I am not persuaded that soldiers - whose business should be to high wars - are well-suited to the mess coalition-building of varied interests that is necessary to the running of a city or the management of its affairs. Even senior military officers live under the rubric that all orders of their commanders-in-chief must be obeyed, regardless of the constitutional fig leaf of "lawful orders". The general in charge of the Uhuru Park project has not demonstrated a sufficient capability in civilian coalition-building to believe that he is capable of complying with anything other than the direct orders of his commanding officer.

We know enough about the disfunction in NEMA and other regulatory bodies to know that the cost of undertaking any project in Kenya is orders of magnitude higher than it needs to be. The solution, however, is not to undermine the laws of the Republic no matter how noble a project is claimed to be. The Uhuru Park fiasco is proof that military generals lack the creativity needed to undertake any major project in the city. Messrs Sonko and Kidero were terrible governors but they understood the need to consult widely and involve all affected parties when undertaking projects, and when the projects foundered for whatever reason, they adjusted, adapted or pulled out altogether, which is the essential component of democratic development.

The poor man charged with improving physical planning services in Nairobi City is incapable of consulting effectively; has no clue about the political and social impacts of his my-way-or-the-highway approach to leadership; believes that the ends justify unlawful means; and will not admit that he is in waters he can't navigate or that his appointing authority was wrong to appoint him in the first place. The Environment and Land Court may yet reverse its injunction against the Uhuru Park project and if it did, that would be entirely in keeping with the doctrine of the rule of law. The reason why the injunction exists in the first place is that the project proponents in Uhuru Park shat on the rule of law. Whether or not the injunction is lifted, the Nairobi Metropolitan Service cannot continue to operate. It should be disbanded and its officers barred from ever serving in the public service again.

Tuesday, December 07, 2021

What is left unsaid says it all

We teach our children that violence is not the answer. We, sometimes, reinforce the lesson, with violence. Therein lies irony, but that is not the reason for this post. If there's one lesson that we have taken from years of childhood development studies it is that violence forms a poor foundation for the education and discipline of children. But in situations where time and other resources are scarce, the instinct to chart familiar, violent, paths overwhelms the instinct to spend more time and resources in building new systems for the education and discipline of our children. It is a schizophrenic hypocrisy, of sorts.

I have watched with amazement as the Cabinet Secretary for Education and his internal security counterpart, together with other senior government officials, muse publicly that it is time to reintroduce corporal punishment in schools as one of the solutions for the waves of school unrest and associated cases of arson. Far better thinkers of childhood development can tell you why violent coercive force is no longer the preferred method for educating or disciplining children. I intend to show you why it is wrong for governmental officials to casually and recklessly recommend the usurpation of constitutional prohibitions.

In Kenya, Cabinet Secretaries and Principal Secretaries swear an oath to obey, respect and uphold the Constitution of Kenya and all other laws of the Republic. The Constitution imposes an obligation on all Kenyans to protect children from all forms of violence. In my opinion, this includes protection of children from corporal punishment, which is a form of violence. The Basic Education Act, which is a law of the Republic, states that one of the principles of the provision of basic education is the elimination of  corporal punishment.

The oaths that the Cabinet Secretaries and Principal Secretaries swore means that they cannot casually propose the reintroduction of corporal punishment without first amending the Constitution and repealing the provisions that protect children from any form of violence. Furthermore, they cannot declare that they "do not believe in children's rights", because it would amount to saying that they do not believe in the Bill of Rights, which would bring into question their fitness to continue serving in Government.

I have watched with trepidation as senior members of the Government have swatted away their constitutional obligations whenever it inconvenienced them. A senior member of the police service defied court orders and was convicted of contempt and ordered to serve a term of imprisonment of four years. He has also disobeyed the latest court order. Several Cabinet Secretaries have also been convicted of contempt of court; they have all defied the sanctions imposed on them by the courts. No less than the Chief Justice of kenya has watched as some of his orders are defied by Government officials.

Meanwhile, the police service is wielded as a sledgehammer against the hoi polloi should they deign to set one toe over the line. Quite often, police action in the enforcement of the law ends tragically; men, women, children and infants have died at the hands of police in the enforcement of the law. But when it comes to senior members of the Government, regardless of the scale of their alleged offences, they are treated with kid gloves even as they thumb their noses at the rule of law. This is not a satisfactory way to build a culture of constitutionalism in Kenya. Indeed, I would go so far as to say that the true threat to the constitutional order is the reckless disregard for the rule of law by senior members of the Government.

In my opinion, any governmental official who declares that children do not enjoy any constitutional protections is not fit to hold public office; any government official who defies the orders of the courts, is not fit to hold public office; any governmental official who undermines the rule of law in any way must be removed from office and barred from public service forever. But this is half the story, isn't it? The other half is left unsaid because that is what we do and who we are.

Monday, December 06, 2021

Change or die

A video was published on social media showing the exact moment 25 people died. The bus they were traveling in attempted to cross a swollen river at an unsafe drift road crossing. It is reported that the driver of the ill-fated bus hesitated for a long time before being urged forward by his passengers who were on their way to a wedding. It is also reported that some of the passengers argued that God would keep them safe. This terrible tragedy was avoidable.

In the same week, a speeding driver who is suspected to have been driving while drank hit and killed two motorcycle riders. It is reported that the dangerous driver is the son of a senior policeman. It is also reported that police procedures at the scene of a road traffic accident in which fatalities are reported were not followed. The dangerous driver was allowed to leave the scene of the accident without recording a statement. The vehicle that he was driving was not towed to the nearest police station. The policemen at the scene of the accident did not alert anyone about the accident. This tragedy could have been avoided. The events that followed could have been prevented.

There are many things that contribute to the dangerousness of driving on Kenyan roads. Some are highlighted in these tragedies: poor road design; poor mitigation of risks; poor driver training; and abuse of office by privileged road users. Take the manner in which the alleged son of the senior policeman was treated. He is not the first one to get away with traffic offences because of who he is or who he is connected to. It has become an ingrained part of our national DNA that senior government officers (and they friends and families) are not to be strictly bound by the law, even when their actions cause death and serious injury.

We have a word for this: impunity. It pervades every aspect of our lives. It is excused. It is encouraged. And as we have seen, it cause death, injury and destruction on a colossal scale. The single most important contributor to the contempt for the law that infects Kenyans' lives is the impunity of governmental officials, their families and friends. Why should the hoi polloi follow the law when the men and women who have sworn to uphold the law flout it with impunity and protect their friends and family when they flout it? Why should the hoi polloi obey the law when the forces of law and order conspire to defeat the ends of justice when the high and mighty commit offences? If our governmental leaders will not be held to account, if they will conspire with other governmental officials to undermine the law, and thereby defeat the ends of justice while causing death and injury, there is no reasonable cause to believe that the people they govern or lead will do the same. Widespread hypocrisy is simply not a good way to govern. And when it comes to road traffic accidents, fatalities and injuries, this kind of hypocrisy is deadly.

The Kitui tragedy was avoidable and preventable. Avoidable because the driver of the ill-fated bus should have turned back and found an alternative route to his destination and if such a route was not to be found, returned to where the journey began. No amount of exhortations from his passengers should have override his initial instincts to avoid the crossing.

It was preventable if only the crossing had a proper bridge or, if such a bridge was not to be had, a barrier across the crossing during the period the crossing was dangerous to use. One of the episodes on the Australian reality series Outback Truckers shows the lengths local authorise in the Australian bush will go to prevent tragedies on the roads. In this episode, the long-haul trucker comes to a similar drift crossing that is swollen; the river has broken its banks and is swirling over the drift crossing. The local authorities have posted a barrier across it and a notice barring its use. Our trucker is the only one on the road. He chooses safety and finds an alternative route. Our bus driver should have done the same. The Kitui County Government should have posted warnings not to use the crossing.

The Kitui county government's apathy, as that of the roads' authority and National Transport and Safety Authority, are responsible fr the deaths. The bus driver and his passengers are not the only cause of the tragedy. Because no one will truly be held to account for this kind of apathy, it is almost certain that the Kitui county government, the roads' authority and NTSA will not change how they govern the roads; the drift road crossing will remain dangerous when the river waters swell; and eventually, tragedy will strike again. The impunity we have permitted to metastasise when it comes to law enforcement on the roads has infected the design, construction and use of roads. If we don't change, death and injury will continue to stalk us wherever we go.

They all fall, eventually

The member of the National Assembly for Mumias East is a spectacularly unpleasant character. But he is not unique. A former member of the Na...