Thursday, September 22, 2022

The camouflage of solutionism

I once said this about the Ukweli Party of Kenya: The Ukweli Party isn't unique in this regard. It is merely one more piece of evidence that not even civil society stalwarts have broken from he neoliberalism that many claim to challenge. Instead of building a true political party, supported by its members, active in the community, its founders bought a briefcase, slapped a made-in-Kenya label on it, identified a few vocal civil society faces to stand in a few visible parliamentary elections, and flamed out without a whimper. No one can even remember its officials from 2017.

I was trying, badly, to make the point that solutionism - the overweening narcissism that defines the Third Sector - has so ingrained itself in the political discourse of this country that every political messiah believes that only he can save Kenya and for him to save Kenya, he must register his own political party without, crucially, having the patience to actually build a political movement that a party may represent. In the just-ended general election, it was alleged that because Kenyan political parties are ideology-free zones, it explained voter apathy and a below-average voter turnout, especially in the presidential election. Respectfully, I think this theory, and its corollaries, are horseshit.

The Registrar of Political Parties' records indicate that Kenya has over eighty registered political parties. I would be shocked if Kenyans were able to name ten. Azimio One Kenya Alliance had over twenty constituent parties. I'd be surprised if we could name five. The National Super Alliance that fronted Raila Odinga and Musalia Mudavadi in 2017 remains but an ephemeral image in the mind of a dedicated few while the Coalition for Reforms and Democracy that fronted Raila Odinga and Kilonzo Musyoka in 2013, has been erased from memory. None of the coalitions, from CORD to NASA to Azimio had done the necessary work of building a political movement to promote the political goals of a people; they were mere reflections of the political ambitions of one man who has unsuccessfully sought ultimate political power since 1997.

This is not to say that The National Alliance, the Jubilee Party of Kenya, or Kenya Kwanza, reflect the ideals of a political movement. The victories of their presidential candidates has nothing to do with ideological co-operation among the coalitions' members; merely the consequences of thirty years of ethnic engineering designed to win elections without building robust political institutions.

Ukweli Party attempted to swim in this cesspool. It, and similar also-ran political outfits long since dumped in the rubbish bin of history, are a reflection that civil society campaigners have abandoned the hard graft of political institution-building, for the quick-wins language of their "donors" and "partners". It is a powerpoint approach to political re-engineering: boardrooms full of committed activists who have given up on the outside world who have decided to "do something" and that something, it turns out, is to register a political party, spend a bunch of money of search-engine optimisation and similar internet dark works, pay for thousands of t-shirts, shukas and umbrellas, traverse select large towns on the backs of semi-trailers blasting Amapiano and Sauti Sol out of over-priced rented PA systems and accompanied by skimpily-clad "youth" who have been paid to gyrate suggestively to the quite-often incomprehensible music, without actually engaging with the people they intend to lead on the political questions they want addressed: unemployment, poor educational outcomes, affordable housing and healthcare, people-based policing, food security and human dignity.

Of course the law on political parties is badly written. It makes it near-impossible for upstarts like the Ukweli Party to mobilise on a national scale before registration. But that is only part of the challenge. The other part is that the sponsors of the Ukweli Party, like their other failed counterparts, did not start out with a full deck to begin with. There is no evidence that outside of the Nairobi enclave where the party emerged, Ukweli Party had representatives (or even a poster) in places like Kargi in Marsabit, Rodi Kopany in Kisumu, Matuu in Kitui, Rongai in Nakuru, Sacho in Baringo or Hola in Tana River. It existed solely in the briefcase being its certificate of registration and it failed in its mission because voters are not binders of documents to be carted about by earnest-but-misguided activists.

One piece of proof that these outfits are meaningless has to do with the aftermath of general elections. None of them, not even the parties or coalitions that successfully send candidates to State House, Parliament and county assemblies, ever hold party post-mortems to interrogate their performance in the general election or to address the legislative and policy agenda of the party for adoption by the parties' general membership. The past two weeks has witnessed parliamentary party group meetings only, as if the coalition or political parties are composed solely of elected representatives. The people, represented by the elected politicians, have already faded from public view, and their political views carry as much weight as a puff of smoke. It is why when parties like Ukweli flame out at the polls, they begin the rapid process of fading from public view. They were never intended to be real political parties but merely vehicles for a few men and women to stick their noses in the trough put out by the National Treasury for the lucky few, in the parlance of one of Ukweli's loudest stalwarts, MPigs.

Sunday, September 11, 2022

The Fifth is here - I have thoughts

The inauguration of the fifth is nigh so maybe things are far enough removed from the ruling of the Supreme Court in the presidential election petition that affirmed the victory of William Ruto that we can say a few things that may or may not matter. In my opinion, many of the pundits seemed to have infused the presidential election petition with supernatural powers, capable of transmuting the base metal of missing votes into the gold of a presidential election victory for Raila Odinga. Of course, this did not come to pass and so, they have now turned to parsing the language of the judges of the Supreme Court, especially that tart remarks about "hot air" and "wild goose chase" in respect of some of the lawyers in the case.

I take the position that though a presidential election is important, it is not so important as to form the foundation for overturning courtroom principles, especially the principles relating to standards of proof. I am not one of the lawyers who will claim with any form of credibility that the electoral commission was the paragon of virtue hen it came to the conduct of the presidential election. The antics of the Cherera Rebels and the violence at Bomas of Kenya are proof positive that the commission made many mistakes.

But notwithstanding the mistakes by the commission, the threats, intimidation and violence that the commission and its officials faced were substantial and we must acknowledge that the commission did a better-than-expected job in light of this. In short, the commission's performance in the presidential election as a mixed bag.

What many of us have missed in the sturm und drang of the presidential election petition is the seismic shift in political sensibilities witnessed in this general election. It used to be that the general election was defined by the presidential election, with the down-ticket races struggling to elicit any form of sustained interest. In 2022, the majority of political passions were expended in county elections, especially the election of governors and deputy governors. The issues of development have been devolved to such an extent that it matters a lot who is elected as a governor or deputy governor and whether or not the candidate has a keen understanding of the developmental needs of the people whose votes he is seeking at the grassroots level. The presidency, with its deeply entrenched reputation for theft, looting, grand graft and human rights abuses, is slowly receding in importance and one day, if devolution is not irreparably sabotaged, Kenyans will pay more attention to who is in charge of the county government than the presidency.

We have a sense of this by how ho-hum the presidential election campaigns were. Even with the active intervention of the incumbent president, large swathes of the senior ranks of the civil service, the national security establishment, the national corporate media, and leading figures of civil society, including leading lights of the Second Liberation, the leading candidates barely elicited enough passion to make the presidential election an election o remember. Indeed, it was plain that the favoured candidate could not persuade the people who were being manipulated to vote for him to actually vote for him in such numbers as to be significant.

It is rumoured that the national security establishment fed the favoured campaign with enough bullshit as to blind them to the goings on in the ground. The promise that "the Mountain is with Raila" came a cropper; even with the sensational allegations made in court, it is plenty plain that the years that the president-elect had spent in the Mountain had paid off in spades.

I have no sympathy for the losing presidential candidates. I especially loathe the opportunistic preacher-lawyer and the pro-weed candidates for their inability to transform their presidential election campaigns into principled articulation of hard truths about the body politic. Obviously, the lack of credible corporate media coverage hamstrung them on the messages that they could propagate but the fact that they didn't even try - dry, humourless, un-thoughtful manifestos were the nadir - is an indictment of them, and us, and a painful revelation of how far we have fallen when it comes to public discourse.

I also loathe the way in which the favoured presidential candidate lost the election. He surrounded himself with highly motivated charlatans who had no interest in his victory per se but were interested in electing a puppet they could control long into the future. His campaign's spokesman did everything in his power to paint himself as the incarnation of the late Sharif Nassir, Kihika Kimani and Kariuki Chotara, albeit with a law degree and multiple post-graduate degrees to boot. He spouted the most regressive and fatuous shit that it took great effort to remember that he is a professor of law. When the annals of history are written about this phase in Kenya's constitutional development, this presidential election and its dramatis personae will feature strongly in the "lessons learned" section, with grim warning for future populist demagogues and political opportunists of every shade.

I have no idea how the fifth will rule - he intends t rule, make no mistake. He has managed to maintain a high degree of information security thus far; few people know anything about the inner workings of his transition team. There are few leaks about the shape and form of his Cabinet; who he intends to nominate to senior ranks ion the civil service; how much leash he intends to give to State organs such as KRA, the National Police Service, the EACC and the DPP. I hope you are not one of the naive people who think that constitutional commissions and. independent offices are really, truly independent. In any case, Tuesday, 13th September, beckons. Let us hear what the new rais will say on the day.

Monday, August 22, 2022

It isn't all Mr Chebukati's fault

Many things can be true simultaneously. Chocolate is awesome; chocolate milk is an abomination. Pumpkin soup is food for the soul; malenge is the Almighty's punishment for bringing into the world things like Twitter. Political parties are the weak link in the political process; political parties must be strengthened in order to strengthen democratic norms. The solution for weak political parties is a combination of better statutory regulation and greater engagement by voters and politicians alike.

Many political party apparatchiks are bad at their jobs. They encourage the worst instincts of their political benefactors, who are quite often the owners of the briefcases in which the political parties are kept. The illiberalism experienced in Kenya's political institutions is but a manifestation of the illiberalism endemic in political parties. Whether it is on the question of gender representation or internal democratic processes, none of Kenya's parties is as liberal as they claim to be or demand of their rivals.

It is for this reason that the claim by the likes of Mr Makau Mutua accusing Mr Wafula Chebukati of dictatorial tendencies rings hollow. For sure Mr Chebukati has not conducted the affairs of the election commission during the presidential election of 2022 in a transparent or consultative manner. But he is only a reflection of the standards established and promoted by the presidential candidates he was supposed to shepherd to the end of the election period.

For example, when Azimio la Umoja One Kenya Alliance selected Ms Gladys Wanga as its candidate in the Homa Bay gubernatorial election, it was done in the face of opposition of other candidates in the party. When the United Democratic Alliance nominated Mr Rigathi Gachagua, it was in direct contradiction of the pledge made by its presidential candidate that the party would nominate a woman as his running mate. When the Roots Party of Kenya presidential candidate threw his weight behind the Azimio presidential candidate on the eve of the general election, he did so without consulting his running mate who had made personal sacrifices to stand with him in the general election. It is almost certain that he did not consult the rank and file of his political party. No one even knows who the senior members of the Agano Party of Kenya are given the prominence given to its leader. It'll take nifty googling to even recall the name of his running mate in the presidential election.

The same is reflected in all political parties. The effect of sun illiberalism are plain to see. Roads, ports and bridges built without consultation., transparency or accountability. Educational policies implemented without due regard to the real-world harm many of them cause to young and vulnerable Kenyans. Economic programmes are implemented without addressing the long-term effects of unsustainable public debt policies on the provision of public goods and services to the greatest number of Kenyans at the lowest cost.

Mr Mutua and his counterparts in the other political parties are largely responsible for entrenching the illiberal impunity that they cavil against in the pages of Kenya's tabloids. They should not be allowed to get away with it. They must be held to account for their part in the dysfunction in public institutions. Though they may have played leading roles in shattering the KANU hold on public affairs, they cannot be allowed to get away with entrenching KANUism in the political parties they founded or joined. If they are going to accuse the likes of Mr Chebukati of dictatorial tendencies, they must admit, publicly, that they had a hand in encouraging Mr Chebukati to see himself as Julius Caesar after the Roman general crossed the Rubicon with his army.

Sunday, August 21, 2022

Umbrellas, fans and tonnes of shit

The arguments that are being fashioned in aid of the challenge in the Supreme Court against the presidential election result include claims that the process was manifestly unjust. This particular argument has been advanced by men and women with a deeply vested interest in a ruling of the Supreme Court that reverses the election. I fear that the arguments will not be sufficient.

It is possible to make the case that the election to the Houses of Parliament, Governors’ mansions and county assemblies were mostly above board. It is possible to make the case that the election commission did a bang up job and that few, if any, of the elections of members of the National Assembly, senate, county assembly or county executive will be reversed because the process employed in the elections worked without a hitch but that the presidential election was marred the moment polling stations reported their results, county tallying centres uploaded their Forms 34B and the chairperson tallied, verified and announced the presidential election result.

The Court of Appeal and Supreme Court have raised the bar on the standard of proof needed to impeach a presidential election. If the court agrees with the allegations of the petitioner, together with the petitioner’s reliance on the allegations by the majority of the commissioners about the chairman’s behaviour, then the election will be annulled and a fresh election will have to be conducted. The court will have to accept the argument that the commission did not verify and tally the result and, therefore, the chairman should not have announced the results he did. One reason to agree with the petitioner will have to be about meanings of terms: “commission”, “verify”, “tally”, “business of the commission”, and so on and so forth.

The respondents will have to defend their actions, especially the chairman of the commission’s decision to sideline the other commissioners when verifying, tallying and announcing the results. He will have history on his side. Moi, in 2002, tried to engineer a favourable election commission, delaying the reappointment of Messrs Kivuitu and Co. His project lost resoundingly in the presidential election. Kwai Kibaki pulled the same trick in 2007. It ended in an orgy of violence that led to the indictment of his successor and his successor’s deputy at the International Criminal Court. The incumbent delayed the appointment of commissioners for so long that it undermined the commission’s preparations for the 2022 general election.

Whatever the case, no one will emerge from the presidential petition smelling of roses. Kenyan presidential politics has the ability to stink up the political and judicial process in such a way that public confidence in public institutions is seriously undermined. The next fourteen days will be a study in who had an umbrella when the shit hit the fan, and who enjoyed rolling about in the muck.

Tuesday, August 16, 2022

The forest and the trees of numbers

It is futile to expect the general election, especially the presidential election in a general election, to run without any dispute. While there are many “mature” democracies where the disputes are not prolonged, it is the nature of the beast that there shall be disputes. Kenya, infant democracy that it is, has a long and storied history of presidential election disputes. What is notable about the 2022 presidential election, is that it is not part of a grand opera of election violence. That’s progress of a sort.

I am not surprised that Raila Odinga has disputed the outcome of the presidential election. I am not surprised that William Ruto doesn’t think much of the dispute alleged by Mr Odinga. I am not even surprised that there are alleged behind-the-scenes shenanigans, some of a deeply disturbing and violent nature, that are connected to the behavior of the candidates, the election commission or other agencies and high offices of state. What is new, is that the dispute is based on the procedural powers and functions of the chairperson of the commission.

Article 138(10) says that the chairperson of the commission shall declare the results of the presidential election and notify the Chief Justice and incumbent president of the result. There’s little that is ambiguous about that provision. The obligation to announce and notify is placed on the chairperson of the commission. Article 138, broadly, sets out the procedure at a presidential election. The details of that procedure are set out in the Elections Act and the Elections (General) Regulations. So far as I know, the procedure does not require approval of the final tally contained in Form 34C by the other members of the commission. Indeed, the procedure does not require the details of the information contained in Form 34C to be discussed at a plenary session of the commission so that the commission may take ownership of the results.

In brief, and I’m taking massive liberties, the procedure is pretty straightforward. The ballots cast in a presidential election are cast at the polling station in each ward. The results in the ward are totted up and entered in a Form 34A. In the 2022 presidential election there were 46,229 polling stations, hence 46,229 Forms 34A. All the Forms 34A from all the wards in the constituency are forwarded to the constituency tallying centre, where the totals from all the Forms 34A are entered in Form 34B. There are 290 constituency tallying centers and therefore there are 290 Forms 34B. The 290 Forms 34B are then forwarded to the national tallying centre, and the totals are added up and a final sum entered in Form 34C. Meanwhile, each of the 46,229 Forms 34A are uploaded onto an electronic database, accessible by the public.

So far as I know, the commission does not weigh in on the totals contained in the polling-station-level Forms 34A, though it has powers to correct any errors if the errors are manifest on the face of the forms. But the individual Forms 34A or 34B are not the subject of discussions and deliberation before the commission’s members. They are the responsibility of returning officers (at the polling station) and the tallying officers (at the constituency tallying centers). The tabulation of the totals contained in the 290 Forms 34B requires patience. The totals contained in the 46,229 Forms 34A must be verified; once that happens, the rest is straightforward enough.

The question of a plenary session before the final tabulation of the Form 34C is interesting. Is it a statutory requirement or an administrative custom? Is there a constitutional, statutory or customary obligation for each commissioner to “own” the tally? I don’t think the question of “ownership” can impeach the tally contained in the Form 34C. In my opinion, the Form 34C can be tossed out if the tally contained in the form departs from the totals contained in the 290 Forms 34B or if those 290 forms are not a true reflection of the totals derived from the 46,229 Forms 34A. The commissioners’ two-step dance is a distraction from the real question that must be answered: are the numbers derived from 46,229 Forms 34A, 290 Forms 34B and one Form 34C wrong?

Friday, August 12, 2022

The era of Jicho Pevu is over

 “Th' newspaper does ivrything f’r us. It runs th’ polis foorce an’ th’' banks, commands th’ milishy, controls th’ ligislachure, baptizes th’ young, marries th’ foolish, comforts th’ afflicted, afflicts th’ comfortable, buries th’ dead an’ roasts thim aftherward.” - Peter Dunne

Kenya's softly-softly and incremental approach to constitutional reforms and implementation of the values and principles of the 2010 Constitution adopted an international norm as a truism: the press must be free to report the news, warts and all. Kenya's press, however, seems intent on devaluing the freedom protected by Article 34 through its cowardice, incompetence and greed.

In 2017, when Kenya last held a general election, it had become painfully apparent that the news media companies were in the grip of the political classes and certain parts of the State. Due to the intense competition between them, profits had shrivelled. Due to certain State policies, especially tax and anti-gambling policies, future revenue streams were threatened. News media companies laid off throngs of news reporters and journalists and replaced them with cut-rate entertainers. Investigative journalism - the kind protected by Article 34 - suffered the sharpest cuts. The era of Jicho Pevu is well and truly over.

In 2022 the extent of the decimation in the news media is apparent. This general election has laid bare the depth of the fall of the journalism sector. In contrast to 2017, where France-based server operators could not be roused, and the electoral body disobeyed the Supreme Court and refused to "open the servers", access to some of the raw data has been free and unfettered. Everyone and their cat has access to results forms for the presidential elections from the 46,000+ polling stations. Every news media company in Kenya has the chance to maintain a running tally (unofficial, of course) of the numbers, and informing their viewers and readers of the state of the presidential election. The news media has refused to do this.

It is not the job of news reporters and journalists to fondle and fellate the testicles of those whose they report on, not for money, not for access and not for favours. But here we are. We should have seen his coming. News media companies are profit-making entities. The bottom line is all that matters to shareholders. The health of journalism is important only insofar as it guarantees a fat profit margin. Business models that were based on advertising have cratered; advertisers have greater access to eyeballs than through classified pages or 30-second TV spots. The internet has democratised advertising and put a stake through the heart of the news business. Kenyan news companies have not adapted well.

Some have gone into gambling. Notice the number of TV ads promoting mobile betting? Some have got into entertainment. The share of entertainment programmes on TV outstrips news or educational media by a very, very wide margin. Some have started tabloids devoted to salacious and vulgar fare, in the hopes that advertisers will flock to those yellow rags. But the greatest change has been the severe moderating of the content published in the Op/Ed pages. Carefully reasoned anti-establishment screeds have been spiked; by and large, these days, it is milquetoast statements designed not to offend wabenzi. Kenya's journalism no longer afflicts the comfortable nor comforts the afflicted. Kenya's journalism is comfortable, its comforts coming from the assiduous attention of the political classes and State officers. The comforts are repaid by a supine, knees-apart approach to truth-seeking. If you have your mouth full of someone's testicles, you're not going to complain that his asscrack is rank, are you?

For this reason, and many more, you will not see them tell you the unvarnished truth about the Form 34s. You won't see them rock the boat. You won't see them lead from the front. You won't see them call out injustice and unfairness. You won't see them investigate political corruption. You won't see them defend the weak. You won't see them because they don't want to be seen. They just want to make money and have a good time. In short, they don't want to do their job but they want to get paid the big bucks.

Wednesday, August 03, 2022

The war of blame-shifting

"Let me apologise on behalf of the government. The electoral commission must be given whatever they want, whenever they want it in order to be able to carry out the free, fair, and justifiable election." - 3 August, 2022

The discerning among us will realise that the underlined italicised words have the effect of shifting blame from the maker of the statement to the beleaguered IEBC. The speaker apologises - and adds that it wasn't his fault. It was that other fellow who done us wrong. I did my job. Leave me alone.

It frequently surprises me the lengths to which men with power will go to avoid carrying the can for their decisions. This man is no different. He does as he pleases. Then when the shit hits the fan, he dissembles. When that doesn't work, he finds some hapless underling to blame for his actions. He almost never takes responsibility for his actions. It is almost always someone else's fault. Kwani mnataka nifanye nini? seems to be his modus operandi.

Despite the theatrical antics one or two irascible Kenyans, everyone and their cat knows that general election in Kenya shall be held at the end of five years after the previous general election. This is not rocket science. With this cast-in-stone calendar in mind, and knowing that polling stations in Kenya are public schools, no government official, regardless of his station in the firmament of the state, can pretend not to know this fact. Consequently, planning for the "disruption in the school calendar" during an election year should not be the cause of poor planning or poor execution of existing plans.

A responsible person would admit that they were wrong and leave it at that. A responsible person would know that sifting blame is the sign of a bad leader. But responsible persons do not consistently behave the way our speaker does. His notoriety is no longer amusing. Since he took up his job, he has acted as if he is surrounded by utter imbeciles, that only he knows what is best for everyone else, that his public statements are made for our own good, that he has no obligation to be careful, dignified or kind. He acts the way he does because he is utterly confident in the justness of his ill-judged causes and, more crucially, that he can and shall get away with them all.

Responsible behaviour is not a feature of the majority of his work colleagues, though. Few of them take the time to carefully consider the import of their public statements. They indulge in the most callous acts in the course of their official duties secure in the knowledge that the hoi polloi can do nothing about it - save, perhaps, to vent on social media sites, a largely futile fact in the face of social media engineering by well-resourced #547 "bloggers".

In 2003, in the wake of the Yote Yawezekana Bila Moi moment, Kenyans were found to be the most optimistic people in the world. That moment did not last. If the same Kenyans who responded to that poll were asked the same question today, how much are you willing to wager that the poll will reveal depths of despondency only experienced by people living in a war zone?

Thursday, July 28, 2022

The gods will not save us

If the Gods are fucking you, you find a way to fuck them back. It's Baltimore, gentlemen; the Gods will not save you. - Ervin Burrell, The Wire (S3E3)

If there ever was a truth that my peoples need to learn, it is that all the demigods they have created for themselves - the preening, selfish, avaricious, malicious and vindictive men (and a few women) they call "politicians" - deserve nothing but a cold shoulder if not a closed fist. It baffles me that otherwise sensible men and women still believe that what Kenya needs is incremental tinkering with the structures of political, economic, social and ecumenical power. I think it must be the water. Or urogi. Or uchawi. Something!

Those who unfortunate enough to watch the "presidential debates" between television news anchors and presidential candidates must have seen what I saw: a conspiracy to create the impression that politicians' feet were being held to the fire while, in reality, they were receiving hot stone massages from their pet TV entertainers. For sure, the TV pets threw in a sharp-toothed nip here and there that startled the pet-owners but all in all, it was a saccharine exercise in arse-kissing that served the power-brokers and un-served the people intending to vote.

Kenya and Kenyans have a habit of tiptoeing to the edge of truly radical change and pulling back at the last moment. We had an opportunity in 1990 when section 2A of the former Constitution was repealed. We had a second opportunity in 2000 when we appointed the Constitution of Kenya Review Commission and adopted the Bomas Draft. We had a third in the aftermath of the 2007 general election, when the country convulsed itself in terrible violence, and appointed a Committee of Experts in 2008 to consolidate all the constitutional reforms in a Harmonised Draft Constitution. At every stage, when faced with the hard choices that needed to be made, Kenyans kicked the can down the road and prayed to all its demigods to save them from having to make the decision.

Well, if it wasn't clear enough, the gods will not save us.

It behoves us to admit this to ourselves. It is the only way that we can recognise the iniquity of well-paid, fattened monsters making laws over us. The televised drama of the lies the candidates were prepared to openly peddle hid a dark secret; neither the politicians nor the neutered press is remotely interested in the truth. They will serve us drama, sensationalism, histrionics and all the other spectacles beloved of the entertainment industry to lull us into a false sense of constitutional accountability. It is a well-practiced sleight of hand. Regardless of what they profess their political stances to be, the one thing they are united in is in denying the people who vote for them the truth - or any access to the truth.

The gods intend to fuck us till we are quite dead. And then they will desecrate our corpses. And dance on our Potter's Field full of graves.

Radical change - a complete tear-down of these structures of power and control and abuse - is the only solution. Radical change will not be led by the people seeking political power in the general election. Nor will it be led by the people hiding the truth about the state of things even as they call themselves "the media". It will not be led by judges and magistrates - not those people who were so aggrieved that they were denied Mercedes-Benzes that they threatened to boycott work.

No, my peoples. The gods will not save us. We have to save ourselves. Only then can we save our country.

Friday, July 22, 2022

A lesson in the law

There are many members of my tribe, good lawyers mostly, who still believe that the law can do good. This fantasy they have woven for themselves has proven quite resilient, unaffected by the realities of modern Kenya. These are the sorts of people to say "persevere" and "good things come to those who wait". In short, these are the kinds of people Elsa Majimbo would probably find incurably stupid.

The ways of the law in Kenya are proof that the law is, has been, and shall forever be, a weapon. Kenya's law books are not filled with the tools to give an honest man an even chance against vagabonds, scallawags, miscreants and scofflaws of every shade. It is a hammer. It is wielded with the wickedness of men who know what only though great crime can they build their enormous fortunes. If in doubt, witness the dozens upon dozens of policemen who earn a pittance but command Croesus's fortune - land, mansions, expensive cars and multiple high-maintenance wives. Or the dozens upon dozens of lowly clerks through whose bank accounts billions wash through every day.

But it is in the free exercise of the adult franchise that the law bares its fangs. Reuben Kigame, so far as I can tell, has led a blameless life. Though part of the burgeoning "faith-based" sector, he seems not to have started a mummy-and-daddy "church". He sings songs of praise for a living. He does it quite well. His songs have captured the imagination of his many fans, with messages of Christian charity and fidelity to Christ's message. He, and his supporters, believe he has the moral, ethical and leadership qualities necessary to stand in the presidential election, to save Kenya from itself. Of course he is deluded - no one can save Kenya - but his delusion, like that of the Wajackoyas and Mwaures of this world, is not sufficient cause to keep his name off the ballot on the spectacularly weak-tea excuse that "it will cost an extra billion shillings to add his name to the ballot paper". The only way one can make such a laughed-out-of-court declaration is when one knows that he enjoys the protection of a very, very bad law.

Mr. Kigame is discovering that in order for him to sit atop the cabal of law-users, he first needs to get past the gatekeepers of the law. The law, in this case, has been turned on him and on its head. The technicalities so beloved of dishonest men is used with efficiency to ensure that his brand of presidential ambition is nipped in the bud as quickly and as ruthlessly as possible.

Mr. Kigame should have seen this coming. It has taken Kenya six years to try policemen for the murder of Willy Kimani, his client Josephat Mwenda and taxi driver Joseph Muiruri. It isn't as if the murders was difficult to solve. The murderers abducted their victims in plain sight. They didn't bother to hide their faces or their identities. They didn't bother to hide the reasons for the abductions or murders. They did it in the open in the full expectation that no one would complain too loudly or investigate too closely or bother with anything more than a slap on the wrist. After all, they were the forces of law and order, the embodiment of the law, the manifestation of justice.

Mr. Kigame wants to become the head of this governmental machinery and I can only wonder at his naiveté - or recklessness. I can understand the hubris of an ex-special-branch cop at the heart of the Ouko murder investigation throwing his hat in the ring. Or a too-long-in-the-tooth Kanu youthwinger. Or even an over-the-hill political Don Quixote. Even a pastor-lawyer kind of makes sense. But I don't know what Mr. Kigame, gospel artiste, hopes to gain by forcing his way onto the ballot. Maybe the Christian God he sings praises to has whispered in his ear that he is the national messiah. Maybe he has unlocked the secrets of the universe. It doesn't matter. What matters is that he forgot the first rule of Kenyan politics: he forgot that the law was not his friend when he went before the courts of law looking for salvation.

Friday, July 15, 2022

The indignity of extremist social control

Some of us have extremely thick skin which we cover in resplendent glamour. Many of us, though, are extremely sensitive, particularly about being called out in public for the apparent violation of a norm. Many of us have seen that TikTok video of a fashion maven narrating her treatment at the hands of watchmen at Strathmore University's Madaraka Estate Campus. There are those of us who have shown solidarity with her, and demanded that Strathmore abandon its demeaning dress code. Some others, however, have blamed the victim, saying that she should have known better.

We have faced these kinds of issues in the past, usually when something tragic has happened and the victim of the tragedy has been a woman. Almost a decade ago, a woman was assaulted, stripped to her underwear and paraded in public because the men who assaulted her thought that her dress was "inappropriate" and "against African culture". It led to My Dress, My Choice, a public protest, that attempted to advocate for the treatment of women in public on the basis of their character and actions, rather than the length of their skirts or the tightness of their shirts. The protect did not receive the full-throated support of the State (though a few women parliamentarians joined in), the ministries of faith in Kenya and, certainly, none of the institutions of higher learning such as Strathmore. For sure, influential opinion-shapers and social influencers were determinedly quiet and the protest, and issue, fizzled out from public notice.

Now comes the ill-advised shenanigans of Strathmore's lecherous watchmen, their lechery receiving the endorsement, encouragement and imprimatur, of a respected university. What has emerged over the few days since the TikTok video was shared on social media is that, and this is not surprising, the Strathmore policy is more strictly enforced when the target of the policy is a Black person, particularly a Black woman. If the offender is of apparent Caucasian descent, they will be given greater leeway, something that many thought would be anathema at a university campus in the twenty-first century.

We have been witness to the lengths the mostly-male victim-blaming will go and how far some are prepared to bend backwards to justify the way that woman was treated. It comes as no surprise even as it stings that Black women are, by and large, still second-class Kenyans. In my opinion, there was no reason for the woman to attempt to justify her choice of dress for the presentation she was to make at Strathmore; as a maker of fashion videos, renown in her field, her choices were not subject to reproach. Given the audience she was going to speak to - young people, mostly - and the subject she was going to speak on - modern fashion - I thought she had presented herself beautifully and, though it need not be said, decently. In fact, attempting to say that she should have been allowed to proceed with her presentation because non-Black women are given freer license by that university misses the point. All women deserve to be treated as equals and with dignity.

There seems to be a mean-spirited determination to exert ever-tighter control over us, whether that control comes in the shape of the ham-fisted Huduma Bill (which has very little huduma in it) to the crass, Victorian-England demands for modesty (and purity) from mostly-Black women by institutions such as Strathmore. We all deserve lives of dignity and that includes lives where we are not judged on the basis of our outer accoutrements. We deserve to be treated with decency and respect. We should loosen the tight bonds of control, if not cast them aside entirely, that police how we walk, talk, dress, think, or present ourselves. A society that celebrates and protects the freedom of expression is, in my estimation, happier and more just. But so long as institutions built by and for male-dominated control continue to make the rules, especially undignified and bad rules, we are the poorer for it as a people.

Tuesday, July 12, 2022

Small men, big consequences

In the middle of drafting a pretty difficult statutory instrument, I made the fatal error of watching the former deputy governor of Nairobi City debate the City's senator. The two deeply flawed candidates hurled accusations (and shade) with unpractised unease, stumbling over memorised zingers and forgetting practiced put-downs. Both tried, and failed, to paint themselves as the City's Second Coming. We deserve so much better.

Let us begin with the former deputy governor. In March 2017, according to him, he made the conscious decision to stand in the general elections as Mike Sonko's running mate. After they were elected, he only served for six months before quitting. He claims it is because Mr Sonko refused to give him work and, consequently, his conscience could not allow him to continue earning a public salary for no work done. 

What he doesn't say is that after he resigned, and it became clear that Mr Sonko would not be impeached as swiftly as his rivals had hoped, an unseemly campaign was launched to declare his "resignation" as anything but a resignation so hat he could be brought back into public service so that when Mr Sonko was finally pushed out the door, the former deputy governor could step into the breech. That plan was swiftly abandoned when someone read the constitution and pointed out that as the former deputy governor had already taken up new employment, he could not legitimately claim that he had not resigned, and therefore his path to the governor's office must, of necessity, pass through a fresh election. No one wanted that.

The former deputy governor's political antics recalled the fiasco that was his appointment as the chairperson of the board of the then Anti-Counterfeit Agency. His appointment was challenged in court. It was declared to have been unlawful. Even then, it appeared that he did not know what he was getting into when he took up the appointment and when controversy followed the appointment, he did not have the professional or technical skills to tamp down the flats and he eventually left the job under a cloud.

The candidacy of the senator is not without its own dramatic turns. He has struggled to put to rest rumours that the does not possess the statutorily-required university degree, trying to obfuscate the matter by alleging state-sponsored machinations in the imbroglio. He offers no proof of the hand of senior state officers in his tribulations.

One recalls when, at the height of the Covid-19 pandemic, when the state was cracking down hard on violators of Covid-19 rules, the senator was found to be involution and, rather than tae his lumps, he attempted to use his high office (including as chair of a Covid-19 oversight committee in the senate) to avoid responsibility. He made threats. He claimed support from the same high state officers allegedly persecuting him today. Whatever integrity he claims today was missing when he was clearly in the wrong.

His record as senator is not as rosy as he paints it. While he has been quite active in senate business, it is not reflected in the way the city's county government has been overseen. The senate's role includes protecting the interests of counties and county governments. As the city's senator, when it became clear that the governor and deputy governor were incapable of governing effectively, it was his responsibility to lead the charge in having them removed from office. Instead, he claims that a senate convention prevented him from doing so - that he would be accused of conflict of interest in supporting the impeachment of the governor. Even if that were true, as part of the city's political leadership, he should have intervened to ensure that the county government was governed, and overseen, effectively such that it would not require the intervention of the national government or the appointment of a military officer to undertake municipal services.

Nairobi will get the election it doesn't want between candidates it can't stand. That has been the tragedy since the advent of devolution. None of the City Fathers have covered themselves in glory. While we pray for the best, on the basis of history and current shenanigans, I fear that we must prepare for the absolute worst.

Wednesday, July 06, 2022

Bhang, piranhas and false promises

It's maddeningly hard to pick someone to lead who will do what he says he will do. It's twice as hard to do so when the social mechanisms of identifying and empowering that person have been hollowed out by decades of social, political and economic corruption. It is nigh on impossible to do so when the people who should do the identifying and guide the people in the empowering are themselves the epitome of corruption. What one ends up with in such a triple-threat situation is a world where backroom deals supersede the will of voters.

For better or worse, kenya's political framework is founded on political parties. Political parties are supposed to organise the people in decision-making units capable of identifying suitable political leaders, and electoral candidates, and guiding the discourse on political, social, economic and other issues of importance in order to arrive at a settlement that is broadly popular. A casual scan of the Kenyan political party environment reveals a deeply illegitimate system that is easily manipulated to elevate the voices, and interests, of liars, cheats, charlatans, ne'er-do-wells, thieves, looters, rapists, child molesters and murderers.

Professional bodies and associations have suffered a similar fate and as a result, have become part of the patchwork of entities that serve the interests of the people who have the least interest in building a better nation. The lawyers' body, once at the vanguard of articulating the constitutional issues at the heart of nationhood and governance, has become an irrelevant institution more interesting in extracting ever-heftier fees from its members and ever-higher rents from the State. The doctors', dentists' and medical practitioners' union is more interested in protecting killer-medical practitioners of all stripes so long as they can pay the fees necessary to remain in good standing with their peers. Accountants have been at the heart of every financial scandal yet their professional institute only thinks of drawing up a scale of fees for its members to extract even higher fees from clients. Engineers and architects, you ask. Killer roads and collapsing buildings should tell you all you need to know about these hyenas.

Little is different when you look to the faith-based network of faith ministries and charities. Major ministries of faith have spent several decades in Kenya building up a real estate and investment portfolio to rival the State and in exchange have struck a Faustian pact with the State to not pay taxes on their profits and to leave them to internally deal with the ever-louder accusations of child sexual molestation by ministers of faith.

Heartbreak and disappointment too face us when it comes the Third Sector - NGOs, PBOs, CSOs - civil society. One "leading human rights organisation" has had the same man as its chairman for thirty years. If he were Zimbabwean, only Robert Gabriel Mugabe would rival him for longevity in a position of power. While there is an admirable turnover in leadership in other civil society organisations, they have become complacent, part of the spend-spend-spend cabal snuffling the truffle of the national treasuries without a care int he world in the name of "the people". The number of Kenyan civil society organisations (and some international ones) running for-profit businesses in Kenya is growing by the day - all the while, the people they purport to speak for, suffer and die in penury, misery and pain.

How then can Kenyans be expected to pick someone other than an impeached former governor, the spouse of a former governor accused of murder, a former governor indicted for corruption, a former minister found to have sexually abused several children, a parliamentarian who escaped justice after killing someone by reckless driving, a parliamentarian whose rise to fame is highly publicised sexual exploits...how? Not even the Fourth Estate can help; it no longer tells stories but sells "content" for a hefty price. The more lurid the content the higher the profit. It is no surprise that what used to be journalism is merely a vehicle for promoting mobile-based gambling businesses, fly-by-night real estate investments, soft-core pornography and the wildly reckless political promises of liars, cheats, charlatans, ne'er-do-wells, thieves, looters, rapists, child molesters and murderers.

We are left with a small pool of sharp-toothed piranha to pick from knowing full well that regardless of the size of the one we pick, we will end up stripped of our moral flesh to the bone. No wonder someone promising political heaven on the back of sales of hyena testicles, snake venom, dog meat and bhang has caught the imagination of the half-educated jobless young people.

Tuesday, July 05, 2022

Don't blame the ma-three

One member of the Fat Wallet Association of Kenya thinks that the solution to the increasing numbers of accidents on the still-shiny Nairobi Expressway is to ban matatus from the road. In her considered opinion, an opinion shared by a few members of her social and economic class, the design flaw in respect of the highway is the drivers. (She means matatu drivers - not the wabenzi for whom the road was built in the first place.)

I am privileged to own a car. I drive, I hope, with care and respect for other road users, even the ones who drive other road user up the wall with heir asinine antics. I have driven long enough to know that assumptions about certain kinds of road users aren't always true or accurate. The most destructive assumption is that matatu drivers are automatically bad drivers; and those who drive top-of-the-range multi-million-shillings SUVs and limos are automatically the best. But if one has driven on any road in Kenya, one can see that the quality of drivers, regardless of the cars they drive, is broadly the same.

The problems on the roads in Kenya are design problems, many of which have been identified by urban planners and road-builders over the past decade. Kenyan roads are not designed primarily with safety in mind; they are designed primarily to resolve "traffic congestion". The Nairobi Expressway was designed to ease traffic congestion for those "going to the airport". Safety may have played a role in the design, but it was not the primary concern of the designers of the road. And it shows.

You can see this cavalier approach to road design on Ngong Road, which has led to such terrible and tragic outcomes. You can see it in the design of Outer Ring Road, which witness deaths at such a high rate that one is shocked all that blood has not motivated the Kenya Roads Board to take any action whatsoever. Thika Superhighway kills with impunity. And before Kenyans on Twitter rallied to the road safety banner, the brand-spanking-new Waiyaki Way was well on its way to being awash with he blood of pedestrians and other road users. The poor road design is the primary contributor to road traffic accidents in Kenya.

The second, in my opinion, is the extreme laissez-faire attitude of the forces of law and order. The Highway Code, the Traffic Act, the National Transport and Safety Act and the several bye-laws on traffic management and road use are enforced with an extremely light thought for some road users - the wabenzi of today - and in increasingly draconian ways for those unwilling and unable to pay the bribes solicited/demanded by traffic police. You have seen the casual and reckless way in which GK-plated Prados are driven at high speed on the wrong side of the road because "mkubwa anachelewa mkutano ya muhimu" while the rest of the driving masses are stuck on the side of the road negotiating hefty bribes for minor traffic infractions. The contempt for the law, both by law enforcement and road users, has contributed to the dangerous state of the roads and so long as we continue to treat GK-plated Prados and similar "official" cars as if they were occupied by minor gods of greek mythology, all the beautiful road designs in the world will not eliminate the death and destruction witnessed on our roads.

I pity our Fat Wallet correspondent. She labours under a false sense of outrage at the antics matatu drivers get upto on the road. In the parlance of the bible, she ignores the speck in her eye all the while railing and cavilling about the plank in ours. So long as she is silent about the poor road design and the differential traffic law enforcement, she is complicit in the death and destruction on the highway. If she cannot use her platform, her brand and her access to high-ranking government officials to advocate for saner, and safer, road design policies, all she is doing is pissing up our legs and telling us that it is raining.

Monday, July 04, 2022

It's not a constitution of free stuff

Every person has the right to clean and safe water in adequate quantities. [Art. 43 (1) (d), Constitution of Kenya]

Humans don't create water. They don't create the land on or in which water is found. Humans don't create the ponds, rivers, lakes, seas, oceans and aquifers where water is found. They are not responsible for the clouds that fall to Earth as rain. Humans can't create water. Humans can only exploit water. For food. For manufacturing. For transport. For profit.

Kenya's Constitution places an onerous responsibility on Kenyans to protect and conserve the environment that is the source of the water exploited for profit. The manner in which the environment will be protected and conserved is a matter of legislation: the Forest Conservation and Management Act, Water Conservation and Management Act, Wildlife Conservation and Management Act, Climate Change Act, and Environmental Management and Co-ordination Act, and the numerous regulations, guidelines and other statutory instruments issues by the Government.

Legislation is a reflection of the representative nature of the Government. Voters choose the elected representatives. Elected representatives form the executive and legislature. Together, the legislature and executive enact laws. The laws reflect the collective constitutional settlement of the people that natural resources must be protected and conserved for the greater common good and that the accruing benefits must be equitable shared by the people - including, dare I say, the protection of the right of the people to clean and safe water in adequate quantities.

No one is saying that water services shall be provided for free by (or under the authority of) the Government. (Water services are the method by which clan and safe water in adequate quantities is supplied to the people.) If it were left to "the market" to decide, those who couldn't afford the "market price" for water services would be denied those services. The market, and its "efficient allocation of capital", would ignore the people who couldn't afford to pay for water services and prefer those who could pay he highest rate. Anyone who thinks that this is what the Constitution of Kenya intended was not paying attention to what the majority of the voters who supported the Harmonised Draft Constitution wanted or demanded.

It isn't enough to bring forward economics arguments inspired by dead Austrians to show that in the long run the provision of water services under the current framework will "fail". One must also demonstrate that this economics lesson has the support of the people, in whose name the Constitution was adopted, and that the people collectively want to deny the least among them access to any form of water services if they are incapable of paying a market price. Constitutional rights, it turns out, are a reflection of the highly personalised nature of human relationships as opposed to the impersonal economics principles beloved by statisticians and similar small animals.

Kenyans adopted a Constitution that eschews the extremism of libertarians. It is not libertarian in nature at all. It doesn't contemplate "small government". Instead, it promotes collectivism of a kind that offends free-market zealots. It is not extremely collectivist either; after all, it does not even remotely propose "free stuff" for those who don't have stuff. It attempts to strike a balance between the two extremes and it is up to us as individuals, our elected representatives, and the laws they enact, to find that balance.

Sunday, July 03, 2022

Handshakes, legacies and divorces

Deputy President William Ruto has done much to draw a line between his role in the Government of Uhuru Kenyatta and his role as the United Democratic Alliance and Kenya Kwanza coalition flag-bearer. It rings a bit hollow when one remembers that scarcely five years ago, he rattled off a string of promises, in the presence of his running mate, that have not been fulfilled - and the ones that have been fulfilled have resulted in economic catastrophe for millions of Kenyans. The most outlandish promise, in my estimation, contained the following sentence: "the stadium in Kamariny, which is historic". So it isn't that far-fetched for many voters to tie him to the promises of his running mate in the 2017 general election, never mind his protestations that he is his own man with his own agenda. He said what he said.

The Deputy President has a long history in elective politics at the national level. He has been assistant minister, minister, and deputy president. He has stood on the wrong side of history on many issues of consequence, including the efforts to sabotage the Ghai Draft constitution in 2005 to actively campaigning against the Harmonised Draft Constitution published by Nzamba Kitonga's Committee of Experts in 2010. Though he has not been convicted of corruption-related offences, few are persuaded that his dealings in the land on which the Weston Hotel stands point to a high level of probity. It is immaterial that senior members of the Government he serves have been accused, by the president no less, of aiding, abetting and participating in the theft, loss, misappropriation or mismanagement of two billion shillings every day.

The attempts by the deputy president to lay the blame for the current national economic woes at the feet of the Handshake ring hollow when every economist worth his salt can trace the selfsame woes to the policies of the Jubilee Alliance from as far back as 2013. He cannot, on one hand, claim credit for the apparent success of the "10,000km roads' programme" while at the same time distancing himself from the consequences of that programme on the cost of credit in the domestic market.

A leopard doesn't change his spots and the same is largely true of the Kenyan politician. He may flit from one party to the next, but at his core, he remains largely unchanged. His values and principles, such as they are, carry through the several political parties he hops to, and they are reflected in the kinds of policies he adopts, the language he uses to sell his manifesto - and the suspicion, warranted or not, he arouses in the people whose votes he seeks. The deputy president is no different. He is quite good at saying persuasive things about his plans. He has a good propaganda machine that has done a good job of whitewashing is political history. But even in the battle of the opinion polls, it is still a toss-up whether or not he will ride to victory or slink away from the national political plane in disgrace.

Uhuru Kenyatta is not on the ballot in 2022, but his intimate involvement in the stitching together of the Azimio la Umoja One Kenya Alliance has given the deputy president a wedge with which to pry himself away from the political record of the Jubilee government. After the acrimonious way in which the Jubilee leaders have dissolved their political alliance, it is not surprising that the deputy president has every intention of politically putting the president on the ballot, linking him (and his apparent failures) to the Azimio flag-bearer, Raila Odinga. If the deputy president can paint The Handshake as the true Government, and himself as the maligned party, and if the voters agree with him, then his chances at the hustings are better than even.

It is now moot that the presidential ballot will be fought with the shadow of the incumbent president looming large over the decision of the voter. Many voters are apathetic, at best, but they may vote one way or the other on the strength of their feelings towards the president. If they credit him with positive political and economic outcomes, they may vote for his preferred candidate (or against his former partner whom they may see as an unprepared and ungrateful menace). If they blame him for their current economic woes, they will ignore the dozens of praise-singing billboards about roads, bridges, electricity and healthcare, and cast their votes for the deputy president, whom they will see as unfairly targeted for simply seeking that which he was promised in 2013 aka "Kumi ya Uhuru na Kumi ya Ruto".

Tuesday, June 28, 2022

No jokers wanted

It is possible that that the dog and snake-meat export promoting presidential candidate has a well-thought economic plan to deal with the serious debt question that faces the next government after the 2022 general election. It is possible. For example, it is possible in the same way that with enough theoretical physics one can show how a full-grown adult elephant can balance on the head of a pin. What kenya faces today is not theoretical; not even the expert massaging by the Governor of the Central Bank of Kenya can hide the parlous state of the national economy. What Kenya needs, instead of unserious promoters of dead ideas, is a candidate serious enough to tell the truth.

I admit that I am biased against anyone who rose to the rank of Inspector in the Special Branch, especially anyone who did so at the height of the second president's regime's extensive violation of human rights. It is possible that our ex-secret-policeman has repented his sins, if not of commission, surely of omission, given the evils that Special Branch officers committed under the behest and direction of their Commander-in-Chief. He has not said publicly if he dissociates himself from those evil deeds and going by his promise to hang criminal offenders (with hemp ropes), I am not sure he has any intention of repenting. But that is neither here nor there.

Kenya's economic current problems are not only about the current account, though the current account deficit is worrying. They are not only about the challenges in effective revenue management (collection and spending), though revenue management has defeated three regimes back to back. They are not even only about the looting of the state's treasuries, though grand graft has proven a massive enabler of other crimes, violent and otherwise. It is all these and so much more. But worst of all, it is the nature of the public debt and the manner in which that public debt has ballooned.

Enough has been mentioned about the difference in quality between the Kibaki-era public debt and the current one, as well as the speed with which Kibaki-era debt grew compared to this regime. Little, if any, has been mentioned of the dereliction of duty by the Houses of Parliament. The way the National Assembly, especially, played its oversight role through the several Finance Bills, Appropriation Bills, Supplementary Appropriation Bills and other legislators that occasioned the additional expenditure of public funds should be scandal in and of itself, the subject of keen examination by presidential and parliamentary candidates of all stripes. Instead, a pro-psychotropic-substances candidate is of the opinion that the best solution is to round up (or breed, who the hell knows at this moment, right?) dogs and snakes for the export market! This lack of seriousness, and the adulation that it has invited, must worry everyone who has two functioning brain cells.

We know, and the realisation is dawning on those who have argued otherwise, that the public debt is unsustainable. That something drastic must be done to address the crisis. That it is not expansion of incomes and, consequently, income taxes, that is the solution. That it is not rationalisation of the public service, golden handshakes and parachutes all around, that will slow down the debt treadmill. Not even binning infrastructure plans of dubious economic value will cut the debt down to manageable levels. It is all these, and then some. More Kenyans must be allowed to keep more of their incomes than is currently the case. More Kenyans must be facilitated to invest in the domestic economy than is currently the case. And Government, in all its iterations, must spend greater proportion of what collects to facilitate those two propositions. If we must pay back what we owe, and pay it back without jeopardising the national economy - or damaging it irreparably - then we cannot entertain asinine suggestions about the billions of dollars we shall earn exporting dogs and snakes to god knows where. That kind of un-seriousness is a threat to national economic wellbeing.

Monday, June 27, 2022

Cast them out

While it is arguable that the Constitution of Kenya has an architecture that is maddening and inspiring in equal measure, there is one immutable fact about it: only the people who adopted, enacted and gave themselves the Constitution have the power to suspend it. It is not in the power of presidents, prime ministers, cabinet secretaries, parliamentarians, county governors, members of county assemblies, the securocracy or civil society to suspend the Constitution. That power is reserved exclusively and to the total exclusion of all others in The People.

It is fashionable among the political classes, after their failures of imagination, and the public's suffering of the consequences of those failures, to promote the suspension of the Constitution as part of a grand solution to political problems. The I-Will-Legalise-Bhang presidential candidate joins a long line of Quickmatt Julius Caesars who are arrogant enough to think that the powers of a dictator are all they need to right the ship of state and solve the problems of the people. He echoes the most recent demands that were made by political windbags of the ruling coalition at the height of the last general election when it seemed like their flag bearer was suffering at the polls. This constitutional imbecility must be nipped in the bud.

Kenyans have struggled for decades to overcome the dictatorship of their political masters. Many Kenyans have been murdered, jailed, exiled and violently assaulted for fighting against dictators. The Constitution, flawed as it is, is a testament to the struggle for self-determination by the people. Any presidential candidate that pines for absolute control over the affairs of the state, and the self-arrogation of the power to decide what rights the people shall enjoy, and the arrogance to pick and choose which fundamental freedoms to protect, must be cast out of the political arena like the constitutional skunk that he is. His constitutional values are a pox, deserving of not just inoculation but total eradication from the national political psyche. He deserves neither respect nor praise; he deserves nothing but the unremitting opposition of a people still fighting to be truly free.

Let it ring forth in the agora that Kenya does not need a presidential saviour. What Kenya needs is a politician capable of forging the national will into a commonweal, a resurrection of the Spirit of Harambee, where Kenyans of all stripes and shades will pull together towards a common goal: health, wealth, prosperity and peace. kenya does not want or need a presidential daddy and mummy. Kenyans are not infants to be told what they need. The days of "Kanu ni baba na mama" were buried in December 2002 when Kenyans sang "Yote yawezekana bila Moi!" and no one is looking to bring back the glory days of one-party rule and imperial presidencies.

Kenya faces serious problems and it needs serious politicians to help solve them. If the only thing one is bringing to the table is a desire to rule with untrammelled power, one demonstrates a lack of seriousness so colossal it is amazing that anyone even listens to him. We don't want dilettantes to be in charge of national affairs. It is time that we awoke to our responsibilities as citizens and banished the unhealthy desire for dictatorial powers in the same ash heap that we buried Kanuism and Moism.

Sunday, June 26, 2022

Roe v. Wade, in Kenya

The Constitution of Kenya is a hodgepodge of constitutional principles and styles from across the word: South Africa, India and the United States of America. As a result, though it is lauded as one of the "most progressive constituents in the word", it lacks a certain coherence. Even reading the Preamble, one is struck by the fact that it is incapable of articulating a uniting philosophy. It does not have the We-Are-The-First sensibility of the US's preamble; nor does it ring with the fervour of self-determination in the Preamble to the Constitution of India; nor even the declaration of self-determination in the Constitution of South Africa. The Constitution of Kenya is proof that constitution-writing-by-committee doesn't always work.

What the makers of the Constitution of Kenya borrowed from the United States of America isn't even found in the US Constitution: the securitisation of the public service and the culture wars between the broadly progressive left and hard-line white-supremacist right. Of the most destructive elements of US constitutionalism that Kenya has adopted, are the White Supremacist Christian values such as the definition of family and the black-and-white fight over the right to life. In respect of the right to life, Kenya has adopted the language of live-begins-at-conception favoured by the White Supremacist Christian right wing of US politics. Article 26(4) states that "abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law".

The US constitution does not expressly mention the right to life or abortion. The Indian constitution protects life but does not mention abortion. South African declares that everyone has the right to life and the right to healthcare, including reproductive healthcare (which has been interpreted by many to include the right to abortion). Kenya is the only one that goes into some detail regarding abortion, in addition to the right to health care under Article 43(1)(a). Kenya's abortion constitutional provisions are a reflection of the religious and cultural wars among US political actors, and the recent annulment of the US Supreme Court decision in Roe v. Wade, decided in 1973, will further entrench the US cultural wars in Kenya's constitutional evolution.

It is moot that the Government of Kenya relies a great deal on development partners to finance public health services. Among those development partners who help finance health services in Kenya is the federal government of the United States. The funds provided by the US government are provided in accordance with laws passed by the US Congress, including a law known as the Hyde Amendment which bars the use of federal funds to pay for abortion, except to save the life of the woman, or if the pregnancy arises from incest or rape. President Joe Biden eliminated the Hyde Amendment in the 2021 US federal government budget, but the recent Supreme Court decision on Roe v. Wade will surely complicate matters as the Republican Party, which is wholly opposed to abortion, is on the legislative ascendancy and Joe Biden's legislative plans are unlikely to survive the coming losses the Democratic Party will experience n the November 2022 mid-term elections.

Though Kenya is not directly impacted by the decision to overturn Roe v. Wade, the effects of that judgment will certainly affect the US federal government (including its financial assistance to overseas partners), and consequently, Kenya must be prepared to weather the cultural war that is surely to follow. But because we seem not to have developed a constitutional language, philosophy or principle regarding individual liberty, it is likely that the debate that will ensue will be just as incoherent as the preamble to our constitution. Ministries of faith (mainly Christian) that are affiliated with like-minded US (mainly Christian) ministries of faith will lead the debate. Government officials will try to square the round peg of US federal government rules in Kenyans' square peg of reproductive health care needs.

I encountered a band of teenage girls, they didn't appear older than sixteen or seventeen, who were discussing "kutoa mimba ya miezi tatu". At first glance, they wouldn't appear as if they knew anything about anything. But taking a moment to reflect, it is clear that the proportion of mostly-young Kenyans facing difficult reproductive healthcare questions is growing. More and more young people are engaging in unprotected sexual relations, the majority of which is experimental, though a growing number is coercive. Many girls are getting pregnant and are faced with extremely limited reproductive healthcare choices, whether due to legal restrictions, or cultural and religious ones. It is reckless to ignore this growing cohort of young people on the basis of religious, cultural and political decisions made in a country so far away like the US.

Kenya's constitutional debates are obsessively about the organisation of the Government rather than the Bill of Rights and the realisation of the principles enshrined in the Bill of Rights. We worry about the sharing of political power among the same cadre of men to the almost total exclusion of the advancement of the rights of the individual to make choices regarding her or his liberty, life and body. As a result, we are led by the nose by an extremist and vocal religious minority in support of racialist white supremacist principles that have proven to be destructive throughout mankind's history.

Friday, June 24, 2022

Assholes one and all

I love walking. Despite my utter, utter loathing of crowded pavements, uneven road surfaces, and the total lack of street furniture of any kind, I love walking. If I were faced with the choice of commuting by car or PSV to the office or walking, I'd choose walking save for those days when the heavens play merry hell with the rainstorms and extreme sun. I love walking even though the Green City in the Sun is, nowadays, more and more the Slum in the Sun. So you can understand my feelings for the City Fathers and their mistresses for how far they have fucked up the City. Suffice it to say, my feelings will not be described by anyone as close to warm.

Every City Father since John Gakuo has done little to improve the liability and walkability of this City. Not Le Kidero. Not His Sonkoness. Not I-Am-Not-A-Drunk. Not the fucking general and his merry band of fucking "developers". Under their suzerainty, the City is a series of walled-off enclaves designed to put the hoi polloi in their place and to tend every municipal privilege under the sun to the wabenzi. The only variation, if that, is that among the wabenzi, the hierarchy of privileges is based on ones degree or melanation.

What makes my absolutely negative views of the City Fathers simmer like a boiling sea of magma in a no-longer-dormant volcano is that I cannot lay the blame on my true targets: the "urban planner" and "architect" that plays handmaid to the City Fathers. Allow me to give an example of why I my rage is slowly boiling over.

Some time recently, the Commander-in-Chief inaugurated the CBK Pension Towers on Harambee Avenue. It is sandwiched between Vigilance House and Harambee House Annexe (that seven-hundred-billion-shillings boondoggle from hell). It is an impressive building, and a nice addition to the City's skyline, with its glass facade and sharp curves. When it was finished, before the assholes got involved, it made proper allowance for pedestrians. After the assholes got involved (assholes who are taking their cue from he assholes in Vigilance House and Harambee House Annex and every government building on Harambee Avenue), pedestrians became a security risk and so the pedestrian pavement is going to be encircled by a seven-foot-high steel fence and the pedestrian can walk on the road for all these assholes care.

This kind of assholery is not the preserve of the asses in charge of CBK Pension Towers. City Hole has its fair share; its frontage on Wabera Street is verboten to pedestrians. KCB has gotten in on assholery as well; its frontage on Nkrumah Avenue has so many "security" features, you might think your are entering the Baghdadi Green Zone at the height of the Moqtada al-Sadr insurgency! Hilton Hotel started this trend of securitising public spaces to the exclusion of pedestrians and the current crop of City Fathers has bought into that asinine policy - aided and abetted by asshole urban planners and architects.

This shit makes it difficult to walk anywhere in comfort in this fucking City. No wonder everyone wants a car. Not that car-ownership is a breeze. On-street parting is notable for its scarcity. The car parks in the CBD are notoriously overcrowded; double parking is recklessly rife. In fact, the only sensible car park in town is the one at the Holy Family Basilica and at five hundred bob per day, incredible value for money. The rest of the parking spots in the City are shitty places where your car is exposed to the elements and the vandals that seem to operate with the tacit approval of the fucking City Fathers. Anyone that can afford to drive into the CBD hates the experience. Universally hates it.

I hate these people. I hate them with the passion of a thousand suns. I have absolutely no doubt that they are hated at home and it is the only reason they bring their level of shitholery to their work. They are fragile little man babies with the necessarily massive egos of small-minded assholes. The only people that like them are the assholes that win massive tenders to bring the excreta they call "public works" to fruition. I hope all of them are dipped in honey and stuck up to their necks in mounds swarming with fire ants for the rest of eternity.

Wednesday, June 22, 2022

Have they read us right?

"I wrote the constitution" can be taken as the typical hyperbole of a politician seeking electoral glory, a statement that all know is made tongue-in-cheek. It is rare that the maker of such a statement expects to be taken seriously or, indeed, he himself takes the stamens seriously. Ordinarily, it is not considered a lie but merely an exaggeration. But, as we have pointed out in the past, Kenya plays differently in this league. Lying is so commonplace that it is safer to start from the presumption that a politician is lying than the other way around.

Quite often such a lie is part of a pattern of behaviour that paints the liar in even dimmer light. The problem is that the liar assumes that those he is lying to are so stupid that they will not even attempt a basic fact-check, and so he gets bolder and tells even bigger whoppers, attempting to paint himself as the paragon of political and constitutional virtue, and all his rivals as second only to Beelzebub for their chicanery, lying and unfitness for public office.

Were it a mere decade ago, the liar could hope to get away with his lies. In the here and now, with affordable internet bundles for the vast majority of people, access to multiple sources of information and databases quickly puts paid to most of the lies told in the heat of political combat. One can no longer allege, for example, that a person is an alum of a university and hope to get away with the lie without being called out for it by online sleuths.

But our vote-seekers reserve the biggest raspberries for their record of thievery and they amass massive legions of praise singers whose only job is to shout down the truth about the thieving ways of their masters. It is possible for a salaried politician to strike it big. It is possible in the same way that it is possible for lightning to strike twice in a bottle. Kenya does not traffic in "possible". In Kenya, the salaried politician makes his own luck - quite often in aggressive and inventive ways.

It begins with a truth that is verifiable and then it takes on a life of its own and consumes his whole existence. It is why we know, in our hearts of hearts, that what the peddle as truth is the largest load of malodorous buffalo excrement this side of the Maasai Mara. What is worse, they don't care anymore when they are caught in the lie. They pretend that the truth-seeker and truth-teller liv in an alternative universe, and that the universe of lies is the one that is real. This fantasy that they paint of themselves blinds them to the anger that is bubbling under the surface among the people whose votes they seek.

They ignore the goings-on in far-flung places like Sri Lanka where they have burnt down the ill-gotten wealth of some of their storied politicians. They seem to think that so long as they toss a pittance or two our way, we will be so grateful for the crumbs from the high table that we won't let go of the reins on our rage and give it its head. They imagine we shall remain quietly docile for all eternity.  They have invested their political and material future on that assumption. Only time will tell if they have read us right.


Friday, June 17, 2022

Banish them from the affairs of state

Ordinarily, the narcissism of a politician is enough to predict the degree of his ambitions: he wants to be the president. Kenya is anything but ordinary. That wag, Michael Joseph, and his dig about Kenyans' peculiar calling habits was more right that he will ever know. Kenyan politicians are not always motivated by the possibility of becoming president; it appears that the vast majority of them are motivated by the desire to simply occupy elected office and to use that office to wangle lucrative government tenders for which they shall be paid billions of shillings while delivering nothing more substantive than hot air.

Some time during the dark days of Kenya's Covid-19 nightmare, Nairobi City's senator was accosted by policemen in violation not only of the national curfew that was in force at the time but the strict social gathering rules that had been enacted to prevent the spread of the virus. Social media was awash with videos of the youthful politician invoking, variously, his status as a state officer and his connections to the highest offices in the nation. His loud, belligerent and uncouth claims were accompanied by threats and epithets against the policemen who were only doing their duty.

The wheel has turned full circle. Our once-blue-eyed boy finds himself out of favour with all those personages whose names he invoked with impunity. His gubernatorial candidature has come under heightened scrutiny and his claimed academic credentials have been undermined at every turn. It increasingly looks like his gubernatorial ambitions may come a cropper, and he has laid the blame for his straitened political circumstances at the feet of named and un-named high government officials.

What I find interesting is that for all his vaunted intelligence and cleverness, it never occurred to him that he may want to elevate his ambitions beyond the senate (a political backwater of shady deals and even shadier politicians), for which he would need to get all his credential ducks in a row. It appears that he laboured under the delusion that there are permanent political friends, and that as one of the boon friends of his current bĂȘte noire, he would always have a sympathetic ear whenever the forces of law and order threatened his cozy political sinecure. 

That our hapless candidate had to engineer a one-day bureaucratic maneuver in order to get his Ugandan university credentials past the IEBC officials should have warned him - and his boosters - that the smooth political road he had been traveling on had developed several deep potholes and it was time to shift gears. (Knowing what we know about the efficiency of Kenyan and Ugandan public institutions, it is nothing short of amazing that he got the Kenyan Commission of University Education and Ugandan National Commission of Higher Education to certify his university degree, and have the same reviewed and accepted by the IEBC and then, wonder of wonders, for him to be issued with a certificate of registration to stand in the election for Nairobi City governor.)

Our beleaguered politician is proof that foresight is not the defining feature of our political classes. He is merely the latest unprepared failure to trouble the national conscience, following hot on the heels of the recklessness of the former Vice President who has blown hot and cold about his place in one of the leading political coalitions fighting this year's general election. Both have shown that short-termism is what drives these people: their immediate needs blind them to the long-term benefits of defining their stances, choosing their horses, and planning accordingly. If both of them, and those like them, were to be banished for all eternity to the humdrum of "consulting", never to darken again the doors of the government, it would be too soon.

Thursday, May 26, 2022

Lawyering

Half of lawyering is reading and comprehension. Now...

Article 157 (12) of the Constitution says that Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions. It is quite different in tone and import from clause 9 which say that the powers of the DPP may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

Article 157 (9) and section 22 (1) of the Office of the Director of Public Prosecutions Act, 2013 say almost the same thing, the difference being one of emphasis rather than constitutional and statutory intent. Section 22 (1) says that the DPP may, subject to such conditions as he or she may impose in writing, delegate any power and assign any duty conferred on him or her in terms of this Act or any other written law to a subordinate officer. Section 13 (1) describes the DPP's subordinates: Deputy Directors; Secretary of Prosecution Services; Prosecution Counsel; technical staff; and such other members of staff of the Office as may be appointed from time to time.

In my considered (and jaundiced view), the DPP's "subordinate officers" do not include the Commissioner-General of the Kenya Revenue Authority, the Commissioners responsible for administering the various taxes, of the other officers and staff of KRA. But I have been wrong in the past, so don't take this as cast-iron-solid legal advice.

So what do we do with section 107 of the Tax procedures Act, 2015? It says that despite any other written law, an authorised officer may appear in any court on behalf of the Commissioner in proceedings in which the Commissioner is a party and, subject to the direction of the Director of Public Prosecutions, that officer may prosecute a person accused of committing an offence under a tax law.

The words subject to the direction of the Director of Public Prosecutions, when seen in a certain light, would imply that the Commissioner or an authorised officer falls within the ambit of Article 157 (9) and section 22 (1) of the Office of the Director of Public prosecutions Act. That is, they are "subordinate officers" of the DPP.

That is manifestly wrong.

The Commissioner is appointed by the Board of Directors of KRA. Authorised officers are appointed by the Commissioner-General. No stretch of imagination makes them the DPP's subordinates; they are the Commissioner-General's subordinates. Consequently, the DPP cannot delegate powers to them at all. Not under Article 157 (9) or section 107 (1) of the Tax Procedures Act, 2015. In my considered view, Parliament was wrong. Parliament can rectify its error by deleting the words "subject to the direction of the Director of Public Prosecutions" from section 107 (1). This would bring section 107 (1) into conformity with Article 157 (12).

There's a principle that is enshrined in our common law: where a law is ambiguous, the benefit of that ambiguity is given to the accused person and not the State. Section 107 (1) is capable of being interpreted in two ways: that the DPP can direct KRA officials in their prosecution of tax cases or that the provisions of section 107 are ultra vires the constitution. That ambiguity is sufficient to benefit an accused person who challenges a prosecution by KRA on the basis that the prosecutorial power was wrongly (unconstitutionally) granted.

The other half of lawyering is admitting when one is wrong.

Tuesday, May 24, 2022

Don't hanker for the good old days

The law is a weapon. No one should be in doubt that even when the law is affirming the existence of a right or fundamental freedom - or prescribing the penalties for violating that right or fundamental freedom - the law is a weapon. Sometimes it's a cudgel. Sometimes it's a scalpel. But make no mistake, when the law is deployed, it is deployed as a weapon. In the form it takes regarding taxes, the law is a very formidable and deadly weapon and it takes a person of great personal will, determination and wealth to stop the law in its tracks.

For the law to function well as a weapon, those who deploy it must understand it, use it dispassionately and not allow the immense power they wield to get away from them in reckless and unwise adventures. Mr. Humphrey Kariuki, a billionaire businessman, fought the law and for once, the law did not win. It may yet do so on appeal, but no one is confident that the other superior courts will grant Mr. Kariuki's accusers the kind of power they were seeking to begin with.

It is not clear what Mr. Kariuki did to attract the attentions of the taxman or why the taxman, the police and the public prosecutor were so keen to skirt the finer points of the constitution when they brought overwhelming force to bear on Mr. Kariuki. The seemingly tailor-made legal framework that permitted the taxman and the police to investigate Mr. Kariuki for various tax offences and to prosecute him as well has come a cropper thanks to the High Court. Mr. Mrima, J, disagrees with the manner in which the DPP's powers were delegated to KRA and the National Police Service, declaring the legal framework ultra vires the constitution. I'm not sure the other superior courts will agree; after all, Article 157 (12) says that parliament may enact legislation conferring powers of prosecution on authorities other than the DPP and, to my mind, other authorities rightfully include investigative authorities like KRA, the Police, EACC and the like.

In my opinion, it is the seemingly motivated nature of Mr. Kariuki's prosecution that may have persuaded the High Court to declare that investigative bodies cannot both investigate and prosecute. I tend to agree. Many seem to have forgotten the unhealthy outcomes of police prosecutions from the 1970s and 1980s that transformed relatively straightforward criminal prosecutions into life-damaging convictions. What may have resulted in a fine or a short custodial sentence, ended up being years of to-ing and fro-ing in court, huge legal bills and years behind bars. No one should hanker for the good old prosecutorial days. Maybe the Court of Appeal will agree with Mr. Mrima, J. Hope, after all, springs eternal.

Kenya is taking incremental steps towards greater individual freedoms. In prosecution, though the risk of empire building is great, investigative bodies should not be granted prosecutorial powers. Knowing what we know about how the law is often used for selfish, personal or political ends, allowing the investigator to make the decision on whether or not to prosecute is a recipe for grand corruption and abuse of office. We can empower Mr. Haji and his successors while enhancing oversight of the exercise of their prosecutorial powers. But it does not make sense for Hilary Mutyambai and the rest of the National Police Service to take time investigating crimes to engage in the complex legal work of criminal prosecutions. In this case, each should stick to his lane and be happy doing so.

Monday, May 23, 2022

The worst

Merely because William Ruto was President Kenyatta's running mate three times over and held the office of Deputy President twice over does not give him an automatic right to the presidency, never mind his incessant reminder that they had a deal. And merely because rails Odinga has sacrificed so much for Kenya does not automatically mean that he is entitled to be elected the fifth president of the Republic - or, for that matter, he would make the best candidate.

We are being manipulated by politicians and their mouthpieces - Makau Mutua and Eric Ng'eno spring to mind - to cast our ballots for their preferred candidates. Part of the manipulation is the heavily motivated negative statements about the rival candidates. In none of the campaigns so far have we been given a compelling reason to cast our ballots in August.

In 2002, the sky was rend by chants of "Yote Yawezekana Bila MOI!" In 2013, CORD made a compelling case against TNA. In 2022, the impression one gets is that we are being fed a steady diet of cat puke and told that it is the best risotto ever. Not even the announcements of Martha Karua and Rigathi Gachagua have inspired us to think of the 2022 general election as a do-or-die affair. Many see it as a cynical ploy to lock down the votes of "the Mountain" as if the mountain is the only factor to affect the outcome of the general election.

Not even the spirited also-rans inspire a groundswell of support. There is a misguided pair that believes Kenya is ripe for legalise marijuana revolution. These kinds of stupidities inspire nothing but despair. It is like the pro-bhang campaign has refused to acknowledge that despite the fact that thousands upon thousands of Kenyans partake of the herb, they do so in the knowledge that it is wrong, that it should not be legalised, that it causes real harm. Kenya is not ready for a conversation on the decriminalisation of narcotic drugs and psychotropic substances.

The way that Kithure Kindiki and Tim Wanyonyi have been shafted by their coalition principals is a testament to the backroom backstabbing going on in 2022. The desire to secure ultimate political power has blinded the campaigns to the unseemly betrayals they are engaging in, the dodgy compromises they are making, the hypocrisy of their pronouncements and announcements. All this is supercharged by the naked anti-national sentiments expressed by their mouthpieces, designed, however inadvertently, to undermine our faith in political institutions, and promote the cults of personality they pretend to eschew.

No, 2022 is not the inspired general election we need. It is not even the best of a bad deal. It is the worst of a very bad deal. Maybe a dark horse will come out of the wilderness and inspire the dispirited masses. And no, it won't be Kilonzo Musyoka. His ambition is as naked as the dye colouring his thinning hair.