Lessons from the USA

What do you remember of the process that led to the appointment of Chief Justice Martha Koome? Do you remember how many applicants there were for the job? Do you remember that they were “interviewed” by the Judicial Service Commission or that they were “vetted” by the National Assembly? The interviews and vetting of the ultimate nominee were televised but I can honestly declare that I don’t remember much about it. Maybe the allegations of plagiarism leveled against an applicant by her students and the smug arrogance of another applicant, jacket off, that had the whiff of “Mta-do?” come to mind. Maybe they don’t.

In contrast, even from 8,000km away, I can recall key moments in the vetting of Associate Justices Gorsuch, Kavanaugh and Barrett by the United States Senate. Despite the obvious histrionics of the highly motivated partisans, the public vetting of the justices revealed a considerable amount about their judicial principles and philosophies. As has the most recent vetting of Judge Ketanji Brown Jackson. The degree to which their judicial records have been publicly scrutinized even before they sat before the US Senate was illuminating and when they were sworn in, it was clear where they stood on key constitutional and legal principles. I challenge you to say with confidence what Chief Justice Koome’s or Supreme Court Judge William Ouko’s constitutional and legal viewpoints are. (Both were appointed to the Supreme Court at the same time.)

Instead, the main topic of national discussion remains who will be president and even this discussion is not held on the basis of the political philosophies of the candidates rather than their perceived ability to mobilize tribal and ethnic vote banks in their favor. How the US chooses its judges is filled with political spectacle but the spectacle is not an end in itself; it serves the valuable task of indicating to a high degree of confidence whether or not their judicial officials can be trusted to do their job with impartiality and fairness. How Kenyans choose their Supreme Court judges and, by extension, their presidential candidates does not inspire any kind of confidence. Rather, it reinforces the feelings of nihilism that seem to pervade so much of our lives these days.

In the coming week, the US will have a new, highly respected and eminently qualified, associate justice of the Supreme Court of the United States while Kenya will be kept in the dark on whether the Supreme Court of the Republic of Kenya has been able to answer a simple question: what is the Basic Structure Doctrine and does it apply to the Constitution of Kenya. The High Court and Court of Appeal were able to answer this question, but it is only the Supreme Court that has the power to declare whether or not the lower courts were right. Instead of framing the question in this way, Kenyans have been encouraged to focus on two irrelevant and interrelated questions: does Kenya need the recommendations of the BBI and does the next president have an obligation to implement the BBI recommendations or not?

In my opinion, BBI (as catch all for the constitutional review issues raised for the purposes of securing the election of Raila Odinga and the continued engagement of Uhuru Kenyatta in national governance) is the wrong question. We must settle for posterity the question of the nature of our constitution’s basic structure, how it limits the procedure of constitutional amendment, and how the people are to be involved and engaged in the process of its amendment. For that question to be settle, other political and constitutional questions must be settled as well: is the president a king? Can parliament ignore its core constituencies? Can the judiciary take an activist posture in defense of the constitution’s basic structure? Instead, tragically, we are entertained by yellow-clad politicians parading themselves like TV starlets.

The way of the future

The clock keeps ticking inexorably towards 9th August 2022 when Kenyans in their millions will be asked to cast their ballots in favor of six different categories of candidates. The office that has elicited widespread excitement is the presidency, the highest political office in Kenya. The person to be nominated as a member of a county assembly in each of the counties does not elicit any attention by the chattering classes. We have been corralled into thinking of the presidency as the be all and end all of the 2022 general election.

Towards this end, the horse race has boiled down into a two-horse race: the incumbent Deputy President and the former Prime Minister. The former has had a spectacular falling out with his boss, who has called him epithets that raise the question as to why he continues to hold his job. The latter has kept his hopes of victory alive through four separate electoral disasters, and this time around, he has the president in his corner.

Our obsession with the presidency has hidden something more profound, something that was hinted at in the selection of the deputy president as the flag bearer of his rebel alliance: the complete absence and marginalization of young people from all levels of power. The upper echelons of institutions of power: political parties, faith ministries, corporate boards, civil society organizations, trades union, and the like are dominated by old men. Young people, women, members of marginalized communities and persons with disabilities are notable by their almost total absence in these offices. What’s worse are the platitudes that keep being repeated: the youth are the future of this country.

A common refrain is that the aged must make way for the young. What is never canvassed is the harsh reality: no one gives up power without a fight. Makau Mutua will not give up his chairmanship of the Kenya Human Rights Commission. Raila Odinga will not give up his leadership of the Orange Democratic Movement Party. James Mwangi will not give up the CEO’s office at Equity Bank. Bishop Muheria will continue to fulminate against hot-button cultural issues for as long as he white-knuckles his grip on the Arch-Diocese of Nyeri. Old men are here to stay and the only way they will leave is if they are pushed out by young people.

Young people must abandon the ayomyom philosophy they have been spoon-fed for the past thirty years. Young people must stop waiting to be chosen. Some of us have had opportunities to lead that we have shirked. We refuse to take up leadership in the home, in our communities, in our faith ministries or in our places of work because we fear failure. We have gotten used to “success” as the only metric that matters. We are no longer permitted to trial-and-error our way through life like our parents did. It is either success or bust. This has crippled the inter-generational transfer of power and wealth.

Old and no-longer-imaginative men have taken advantage. They have learnt the art of dishing out morsels to young people. There is a presidential candidate who has become notorious for distributing wheelbarrows to young people paid for out of billions that he cannot account for. What is amazing is that there are notable human rights defenders who see nothing wrong in defending this short-sighted and reckless scheme. Another p[residential candidate is notable for promising “free” money to young people out of taxes paid by the same young people or from the sweat of those young people. Listening to the two, it is obvious why tracking polls indicate that millions of young people are ambivalent about turning up at the polls in August.

But young people who should know better have done little to wrest leadership from the ancien regime. The CEO of the KCB Group has failed to mentor a younger person to succeed him such that his board has allegedly handed him a secret one-year extension to his contract. The presiding bishop emeritus of the Christ is the Answer Ministry has refused to fade into the background, popping up, on request and unilaterally, at major CITAM events. The Secretaries General of Kenya’s political parties are often young men, but they operate as vassals of their older, slower bosses rather than as the vanguard of the youth that seek political office. That dinosaurs like Musikari Kombo and Dalmas Otieno still have ambitions of high political office is an indictment of the young people who oversee operations of political parties.

Things will not change unless we abandon - truly abandon - business-as-usual. Kenya is ripe for a youth revolution. All it needs is the right spark and it will sweep away the old, decrepit and corrupt old guard. That spark, sadly, will not be lit by young people who have been taught to believe that wheelbarrows and six-thousand-shillings stipends are the way of the future.

Things will not change

This is the much that I found out about the events of that Friday. A foreign diplomat driving an SUV hit and seriously injured a commercial motorcycle rider. She left, maybe fled, the scene of the accident. She was stopped by a mob of other motorcyclists, who may or may not have included commercial motorcycle riders. A policeman attempted to ascertain the nature of the accident, the extent of injury and damage, and who may or may not have been culpable. The policeman failed to control the now-unruly mob. The foreign diplomat was sexually assaulted. Kenyan social media found out, freaked out and the internal security ministry got involved. The president ordered a crackdown and for five or so days, police arrested motorcycle riders on any pretext, detained their motorcycles, demanded tens of thousands of shillings in unspecified fines, and prosecuted a few for the assault on the foreign diplomat and others for traffic related offenses. It was all so familiar.

I have little love for commercial motorcycle riders, even the ones who provide me with efficient services. My experiences with them have been mixed at best. I have only ridden pillion once and it is not an experience I will repeat so long as they operate the same way they do today. My experiences, though, are not unique.

If you have had occasion to drive, be driven or walk into and out of the Nairobi Central Business District, you will have encountered commercial motorcycle riders. If they are not ferrying goods or passengers to and from various addresses, you will find them parked in strategic places, often on pavements, or roundabouts, bus stops, double-parked in car parks, and in the middle of busy intersections and roundabouts. They occupy spaces that are reserved for other road users without apology or care.

When they are in motion, they ignore all traffic rules, including traffic lights, lanes, or direction of travel. They will overtake on blind corners, on the wrong side, in the wrong lane. They will speed through red lights. They will speed through pavements. The majority of commercial motorcycle riders swill ride without any form of safety equipment, neither for themselves nor their pillion riders. On a few occasions, they are used to ferry violent criminal offenders and petty purse snatchers. In one hilarious video doing the rounds, a policeman loses his mobile to a motorcycle-borne thief, and they make their way off by driving into oncoming traffic on the wrong side of the road at high speed.

When they are involved in accidents, their compatriots will swarm the scene of the accident in solidarity with one of their own. As the unfortunate foreign diplomat discovered, if the accident is with a woman motorist, the outcome can sometimes be tragic. On other occasions they have set motor vehicles on fire, and violently assaulted other motorists such that they required medical care or hospitalization. It is not too far a stretch to state that if a motorist and a commercial motorcycle rider had an accident, the situation is more likely than not to turn violent.

As with the rest of the traffic system we have, motorcycle riders have become a law unto themselves. In my opinion, this is because of the remarkable accommodations we have made for other kinds of road users: the president, members of his cabinet, senior members of the public service, parliamentarians, well-connected businessmen, ministers of faith, and the like, are allowed to flout all kinds of traffic rules. The CBD is a canvas of the traffic offences that the police allow to be perpetrated on a daily basis. Therefore, it was wholly shortsighted to target only commercial motorcycle riders when the rest of the motoring public was allowed to carry on as before. This kind of discrimination is why there are those conspiracy theorists who think that the crackdown was meant to create a crisis that politicians could solve rather than take the first steps to addressing the deteriorated traffic system we have at present.

I have no faith that things will improve or change. I know that for a few days, commercial motorcycle riders and pillion riders will wear helmets, reflector jackets and other safety gear. I know that they will obey some, if not most, of the traffic rules. They will be respectful at accident scenes. They will restrain themselves from resorting to violence and base instincts at accident scenes. But this will not last long. In time, the police and their commanders and the worthies responsible for policy will move on to more important things - like the 2022 general election - and the traffic “sector” will revert to default settings. Only the naive think that things will change.