Friday, September 22, 2023

Kaluma is the nadir of our political decline

George Peter Kaluma (ODM, Homa Bay Town) has sponsored two Bills in the National Assembly that fly in the face of the Constitution. In the Anti-Corruption and Economic Crimes (Amendment) Bill, he proposes that the Anti-Corruption and Economic Crimes Act be amended to provide that a conviction for corruption or economic crimes should not bar the convicted person from holding public office, whether appointed or elected.

In the Family Protection Bill, he proposes to prohibit homosexuality and same sex marriage, to prohibit unnatural sexual acts and related activities and to proscribe activities that seek to advance, advocate, promote or fund homosexuality and unnatural sexual acts and to impose severe penalties, including the death penalty, for offender under the Act.

Mr. Kaluma is not alone in his attempts to subvert Kenya's current constitutional norms; but the extreme nature of the Bills he has sponsored in the 13th Parliament demand an examination of the environment in which he, and his colleagues, are making laws and overseeing the institutions of the State. One of the revelations from such an examination will be that the fetishisation of the Constitution, and international "best practices", has contributed substantially to the current dire state.

When taking instructions in my profession, we were trained to see legislative proposals in their proper context. We were taught to not let the perfect be the enemy of the good, nor the good be the enemy of the good enough. Though we were taught that the highest standards of anything should be our goal as legislative drafters, we were warned that the highest standards may frequently be attained only on paper while the practical realities of governing would undermine that lofty ambition at every turn.

Mr. Kaluma, through his two laws, has revealed the limits of high standards. Because Kenyans have fetishised the Constitution and frequently ignored the compromises they make as individuals, as families, as communities, as professionals and as voters, they have established a schizophrenic public principle: high standards for thee and good-enough standard for me. This hypocrisy is seen in the way we see no disconnect in complaining about the dangerous traffic in urban areas, but do absolutely nothing to drive safely, even when we can, because it is the other guy's responsibility - and not mine.

Mr. Kaluma is betting that on his anti-corruption amendment, he will face little, if any, opposition and, if he phrases his arguments in the most religion-tinged incendiary and discriminatory language favoured by United States' politicians, only human rights defenders fighting for equality will oppose the Family Protection Bill. He is not wrong. Because we have fetishised "public participation", even when the public is a majoritarian mob baying for the blood of minority communities, we assume that merely obeying the letter of the law is sufficient; the spirit of the law is neither here nor there.

We had a window of opportunity after the late Mutula Kilonzo and his successor, Martha Karua, pushed through the Constitution of Kenya (Amendment) Act that entrenched the Constitutional Review process that culminated in the Constitution of Kenya promulgated on the 27th August, 2010. (It is instructive that that the Thirteenth Anniversary of the Constitution of Kenya passed without being mentioned by State officers in any meaningful way.) That window of opportunity slammed shut when President Uhuru Uhuru Kenyatta and the Parliament of Kenya conspired to ram through the Security Laws (Amendment) Act, 2014. That was the first significant State attempt to undermine the spirit of the Constitution. Mr. Kaluma is the heir of that odious legislative legacy.

"Reasons" will always be found to not do the hard work of nation-building, institution- building and development of constitutionalism as a principle of society. Whether it is lack of "resources" or some other weak-tea argument, if the ground has been seeded with enough Doubting Thomases, the State officers intent on undermining the Constitution will find themselves pushing against an open door.

Kenya no longer has robust institutions that can argue forcefully against the likes of the Kaluma Bills. At various points in our history, it has been chairmen and members of the Law Society of Kenya (for example Willy Mutunga, CJ, Paul Muite, SC, and Gibson Kamau Kuria, SC) and clerics like Alexander Muge, Henry Okullu, David Gitari and Ndingi Mwana'a Nzeki and civil society institutions like the Ufungamano Initiative, National Council of Churches of Kenya and Kenya Human Rights Commission, and university dons like Dr. Crispin Mbai and Ngugi Wa Thiong'o and countless other selfless Kenyans, who spoke for constitutionalism, the rule of law and the rights of the people. Those days appear so quaint and long ago now.

From the moment the first "activist" was elected to Parliament, it has been a drip-drip-drip of disappointment after disappointment. Imagine the psychic shock of watching men and women who stood four-square against the excesses of Daniel Moi and Jomo Kenyatta turning a blind eye to the State-sponsored murders committed during Mwai Kibaki's presidency and the active sabotage of a brand-new constitution by the Uhuru Kenyatta presidency. Is it any wonder that the likes of Mr. Kaluma feel no sense of trepidation as they go about their business in the 13th Parliament?

Kenyans fell into a trap when they washed their hands of political work after the election of Mwai Kibaki. They left the "thinking" to the politicians and turned their energies and talents to making money hand over fist. The good times did not last long. Kenyan hiphop offers a mirror to the state of Kenya's politics. There was a time when Jua Cali, Nonini, Mejja, Necessary Noize, Ukoo Flani Mau Mau, and their musical peers were turning down gigs because they were so busy. The music they made was topical, current and deeply, deeply creative. Then the music stopped. Today all we have left are sex-fuelled "celebrity scandals". If this isn't a metaphor for the rise and fall of Kenyan constitutional politics, I don't know what is.

There is no turning back the clock. The halcyon days when the enemy was clear are long gone. We must build a new framework for not just holding the State, its officers and its agents to account, but we must build a framework that preserves our ability to inject new blood into the process. We have seen what happens when we leave it to octogenarians like Raila Odinga and Makau Mutua. It is not a pretty picture.

Thursday, September 07, 2023

Beware constitutional fetishists

If Mohamed won't go to the Mountain...

The only president, I think, who was happy with the Constitution of Kenya when it was promulgated in August 2010 was Mwai Kibaki. He was serving out his last term. He had the Cabinet he wanted and exercised the powers of a small god. None of his successors has ever been happy with the no-longer-new Constitution. Uhuru Kenyatta conspired with his bitterest political rival to amend it through the asinine BBI. Uhuru Kenyatta's successor is going about the same enterprise in a more subtle way.

Every president, whether they are happy with the constitution or not, could always do with an amendment or two to strengthen their hands to do the things that they want to do in the way that they want to do them. President Ruto is not unique in this regard. But the game he is playing in the constitutional amendment game is a subtle and nuanced one. He isn't ramming the proposals down our throat like his predecessor.

I saw somewhere on the interwebs that someone thinks that the parliamentary "dialogue" committees are founded on legal quicksand and now I am convinced that Kenyan lawyers have been infected by the same brain-eating prion disease that has infected USA culture-warriors.

The "dialogue" is conducted by parliamentarians in their capacity as parliamentarians and it is wholly consistent with the broad mandate of Parliament to consider issues for the welfare of the people. If the "dialogue" leads to fresh change-the-constitution calls, the only reasonable condition should be that the constitutional amendments must be prosecuted in strict compliance with Chapter Sixteen of the Constitution of Kenya (and the judgment of the Supreme Court on the role of the president in the whole affair).

At present, the "dialogue" has not gone far enough and though among the terms of reference of the parliamentary dialogue committees is recommendations on amending the constitution, the recommendations have not been made. Of course, we recall the proposal to establish the office of the leader of the official opposition and if this proposal forms part of the recommendations of the parliamentary dialogue committees and Kenyans vote freely in a referendum to adopt the new office, only a mad-cow-disease-mad lawyer will object to the amendment. The voice of people, it seems, only interests these lawyers when it supports their preconceived notions of what Parliament can and cannot do.

Kenyan constitution-making has always been a messy affair. Anyone who suggests that there is an accepted template for constitution-making is not to be taken seriously. There are benchmarks, and best practices, but there is no single true way to make or amend the constitution. Certainly, how to choose what to amend and when to amend it is subject only to the politics of the day and the support of the people. We laud the lawyers who do the difficult work of holding the agents of the state to account, but we have nothing but scorn for those who fetishise the constitution beyond all reason.

Sunday, September 03, 2023

Mental vassals of the French should shut up

Some quarters on Kenya would have you believe that the Economic Community of West African States, ECOWAS (and its baby sister, the Economic Community of Central African States, ECCAS) has failed to stem the tide of military putsches that have deposed rulers who have been in power for longer than the soldiers deposing them have been alive. Those quarters are full of very clever idiots.

Burkina Faso, Mali, Niger and Gabon have been the victims of great political cruelty. For the fig-leaf of independence, they have remained the vassal states of France. The economic wealth tied to their natural resources has only enriched their presidents and France. Burkinabe, Malians, Nigeriens and Gabonese have seen how multi-billionaires live while they have continued to live lives of penury, struggle and strife. Clever idiots would have you believe that the only way to remove the thieving rulers from power is through "democratic means" because these idiots are wedded to the idea of the law being stronger than the will of even a committed military minority.

One of Jimmy Cliff's songs says that "democracy is a road that leads to tyranny" (Democracy Don't Work, 1998) and I can't say that I disagree. In our hearts of hearts we know that a democratic tradition that impoverishes is no true democracy. Democracy, true participatory government, is meant to enrich the greatest number of the people. It is not meant to be a vehicle for the aggrandisement of a single family or thieving clan. Clever idiots will never admit this.

Now it may be that the military juntas that have installed themselves in Burkina Faso, Mali, Niger and Gabon will not succeed in giving power back to the people. And if that is the case, they, too, shall fall victim to punches as well. Shakespeare knew that one who lives by the sword, dies by the sword. But as we have learnt from the histories of our peoples, military juntas fail in part because they the seduced by the promises of the likes of the perfidious British and malevolent French. A pox on both their houses.

Clever idiots will point to Kenya and Tanzania and the relative political stability they have enjoyed since they gained Independence, ignoring that the political opposition in Kenya and Tanzania has had to fight, tooth and nail, for political expansion, sometimes at great cost to lives and limb. Merely because military putsches failed in Kenya and Tanzania is not proof that they are true democracies; it is a testament to the resilience of the the thieving first families or the overwhelming degree of control that ruling parties possessed. The absence of war is not proof of peace.

ECOWAS and ECCAS have no leg to stand on when they demand that the military juntas hand back power to the dictators they have flung out of office. The majority of the members of ECOWAS and ECCAS are ruled by thieves and gangsters. These governments should set about setting right their nations, empowering the people to participate fully and meaningfully in the politics of their nations or suffer the same fate as Burkina Faso, Mali, Niger and Gabon. And the windbags in Kenya calling for military intervention to restore to power the puppets of the malevolent French should sit out the debate. Forever.

Thursday, August 31, 2023

Misplaced love

One of the legacies of the Mwai Kibaki government was the widespread adoption of corporate buzzwords to hide the graft that public officials engaged in. Few Kenyans noticed until it was too late. It emboldened public officials many of whom were elected or appointed in county governments, Kenya's newest experiment in participatory government. In Eldoret, the seat of County Government of Uasin Gishu, public officials and well-connected businessmen have taken graft and fraud to untold heights.

It is reported in the Kenyan tabloid press that the county government established a scholarship fund for secondary school graduates to attend universities in Canada and Finland. In order to be eligible, the students and their families were required to contribute to a trust fund, which was under the control of county government officials. Apparently, over 950 million shillings was paid into the trust fund. The programme enjoyed initial success; dozens of residents of Uasin Gishu County have been enrolled in universities in Canada and Finland. However, it is now reported that fees are no longer been remitted to the foreign universities where the students are enrolled and, consequently, the students are are at risk of being discontinued and if that happens, their immigration status is endangered.

Further reports indicate that tens of millions of shillings have been withdrawn from the trust fund in unexplained circumstances. The officials, including the former governor (and current senator) deny any wrongdoing even as they refuse to explain how and why the scholarship programme appears to no longer sponsor students.

Meanwhile, a labour recruiter has reportedly undertaken a similar scheme of her own. She has collected tens of millions from young jobseekers with promises of employment in the Middle East. She appears to be engaged in a scam similar to ones that have been uncovered in Nairobi. She has denied wrongdoing and has dared the Senate (which purported to be investigating the matter) and the Directorate of Criminal Investigations to prove that she is a fraud. Not even the allegations and pleas by her victims have compelled her to offer a credible explanation as to the true status of her business operations.

Both the county government officials and the labour recruiter could only be this bold because they knew that the forces of law and order would not trouble them overmuch. Indeed, the past six months have witnessed the collapse and withdrawal of economic crimes prosecutions on such a scale as to bring into doubt the effectiveness of the criminal justice investigatory and prosecutory framework. This is one of the legacies of the Mwai Kibaki government. While in the 2003 to 2013 period only state officers could hope to escape criminal convictions and judicial sentences, it seems that even halfwitted fly-by-night fraudsters are not overly afraid of the police, the DPP or the courts.

The contempt for the law is widespread. It is witnessed in petty and grand ways. One cannot but see the consequences of such contempt, whether it is the increasing cases of fraud by even small-fry government officials and obscure labour recruiters in district backwaters no one thought of. The increasing ineffectiveness of the fraud investigators and prosecutors, despite their apparent constitutional, legal and operational independence, undermines what little faith we have in the government, both as an institution and a reflection of our national values and principles. The last ten years were quite favourable to the memory of Mwai Kibaki. An analysis of the graft that pervades the firmaments of the state might show that such warm feelings for Mwai Kibaki are misplaced.

Tuesday, August 29, 2023

Love in the age of graft

The ash-heap of presidential politics is not for the faint of heart. It takes grit, chutzpah, a shit-load of cash, and an overweening narcissism to get to the top, and once there, the people who loved you enough to elect you (whether or not there are stolen votes in there, somewhere) turn on you, with their hand out, for things you discover that you can't deliver, or don't even have the cash to deliver, all the while redoubling your efforts to stay at the top, come hell, high water or uchawi.

Jomo Kenyatta and Daniel Moi, once they captured the party, did not have to fear being replaced at the top. Jomo Kenyatta, so far Kenya's only president for life, died in office. Daniel Moi ruled of almost 25 years, he might as well have died in office. It didn't matter to them whether their voters loved them or loathed them. They would remain in power because Kenyans didn't have a viable alternative. Then Daniel Moi ordered his attorney-general and his parliament to repeal Section 2A, and then the race was on to find his replacement.

His project turned out to be an extremely wealthy political naif. A damp squib. Mwai Kibaki, Daniel Moi's eventual successor, had a plan when he took on the unhappy job of President and Commander-in-Chief of the Kenya Armed Forces. His plan was shot to hell three minutes after he took the oath of office and the fat men around him overworked in making sure Mwai Kibaki would have a blood-soaked second inaugural. To be fair to the gentlemen from Othaya, he didn't seem to hanker after praise. He didn't appear to be vainglorious. He did what he did to bring the national economy to an even keel. He cut a swathe in what Indians called the Licence Raj and, for the most part, unleashed Kenyans' economic instincts. And then he let it all slip away by allowing the graft that had germinated in the Jomo Kenyatta regime and festered in the Daniel Moi regime to be supercharged to untold, gargantuan scale.

The three years of Kenya's Second Promise (2003 to 2005) are lost to the sands of time. While we pray for a Third Promise, Uhuru Kenyatta postponed that day and the new man at the top isn't finding a lot of support on his way to Zion. The graft that Uhuru Kenyatta inherited grew wide, broad and deep. It is as if everyone who was anyone in the Government had his hand in the cookie jar. Mwai Kibaki may not have pulled every single Kenyan out of extreme poverty, but he left a healthy economic machine that had room to run. What Uhuru Kenyatta did was to take a perfectly adequate Toyota Hilux and drove it into total destruction, leaving an engine that had knocked, a gearbox that had no cogs, brakes that were a threat to life and limb, lights whose bulbs had long ago failed, and a suspension that, if the car ran, almost always required the driver and passengers to seek out chiropractors. William Ruto has to rebuild the engine, gearbox, brakes, lights, and suspension first, before he can even try to take a load of miraa to market.

The economic vandals who took root during Mwai Kibaki's and Uhuru Kenyatta's regimes have metastasised. Until they are dealt with, they will undermine every effort to restart the national economic machine. They will need to be uprooted and cast asunder from the health sector, basic education sector, energy sector, telecommunications sector, and even the civil society. So long as they know that it is business as usual, they will continue to walk the land barefaced and unafraid. Thieves should not be so bold. If the president fails to deal with them, no amount of salesmanship will reverse the animus the people will have for him when he next comes round begging to be re-elected.

Saturday, August 26, 2023

The roads to failure

President Uhuru Kenyatta, The Fourth, is a tragic president. Save for the acolytes who trailed his coattails, like the slime that follows a slug's trail, not many Kenyans can point to things that made their lives better. The "Big 4 Agenda" - affordable housing, manufacturing, universal healthcare, and food security - have little to show in the way of improved quality of life for the billions of dollars that President Kenyatta showered on them. Sadly, President Ruto has learnt all the wrong lessons from his predecessor.

 The error, I believe, was a failure of imagination in President Kenyatta's entire presidency. In trying to emulate President Mwai Kibaki's successes, especially successes founded on the budding or construction of things and institutions, President Kenyatta failed to understand that legacies are not cast in concrete but in how well the citizenry lives its life. It is meaningless to building hundreds of thousands of square metres of hospital space if one has no doctors, nurses,  clinicians, dieticians, pharmacists, radiologists and surgeons to provide medical services in them. Uhuru Kenyatta carried in the capital-intensive construction foundation that Mwai Kibaki had bequeathed him and in the bargain wasted money that could have gone to training and deploying the experts needed to manage the infrastructure Mwai Kibaki had constructed. And as a result, while Kenyans were burdened by billions of dollars in public debt, fewer of them enjoyed an improved quality of life. President Ruto is embarking on the same fool's errand that Uhuru Kenyatta had.

While it is certainly true that Kenyans lack adequate hospital facilities, classrooms, police stations, and public transport, the solution is not to put all our financial eggs in the one basket of a construction-fuelled boom. Instead, President Ruto should focus 99% of his fiscal energies in supplying the healthcare workers and teachers and matatu drivers of the highest professional calibre that Kenyans need to offer the public services they desperately need. Mwai Kibaki and Uhuru Kenyatta have already supplied William Ruto with the concrete-and-steel foundation he needs to deliver high-quality public services. He should seize the opportunity if he truly wishes to succeed as The Fifth.

An example might suffice. The bulk of Nairobi's office workers live in Eastlands. They rely primarily on Jogoo Road to get to and from their office jobs. If President Ruto does as Kenya's infrastructure demons are urging him to do - expand Jogoo Road into a four-lane highway - all he will supply is an even more intractable traffic jam problem. But if, instead, he spent the bulk of his public transport money allocated to Jogoo Road to improving the commuter train service, finally reforming the matatu saccos operating in Eastlands, and improving the existing road and rail infrastructure, he will deliver, on orders of magnitude, more benefits to the residents of Eastlands than Uhuru Kenyatta and Mwai Kibaki combined. Simple things like road lane -markings and street lights will do more to reduce traffic accidents and improve traffic enforcement than all the new roads in all of the world ever will. It will take courage for the President to do this - the courage to suppress the instinct to outdo Mwai Kibaki and Uhuru Kenyatta in the total kilometres of new roads built during a presidency.

I want the president to succeed. If he builds more new roads then spends money to maintain and improve the existing ones, he will fail.

Sunday, July 23, 2023

Eat the old

When I was in high school, I loved Sunday afternoons. We had free time between 2:00 pm and 7:00 pm, and part of that time was spent watching the NBA. The Bulls, the Celtics, the Cavs, the Warriors...I loved all of them. Every other Saturday was reserved for the EPL: Liverpool, Aston Villa, The Spurs...I loved most of it. Thirty years later, I can say, hand on heart, that maybe part of the reason why these leagues were enjoyable is because they dod not have the whiff of serikali about them.

From the moment Daniel Moi intervened in the identities of Kenya's football clubs, little that Government has done to "improve" and "reform" organised sports in Kenya has been a boon for sports or sports federations. The continued global dominance of Kenya's world class long-distance runners is despite the interventions of serikali, not its support. And the shambles of the way Kenyan athletes, if not all sportspersons, are treated at the Olympic Games and Commonwealth Games by Ministry mandarins is proof that more Government intervention in sports' federations equals extreme poor treatment of athletes and their fans.

I can't remember who the last Minister of Sports was that did anything innovative to unleash the talents of the sporting fraternity. I bet that none of you can, unless you are like sports administration savants or something. We have powerfully emotionally redolent memories of sportspersons who brought us to near-tears with their talent: Washington Muhanji and Wilberforce Mulamba forever will bring a lump to my throat when I think of their exploits on the football pitch. We don't have fond, if any, memories of sports ministers or sports administrators. We revile the mandarins in charge of sports. We think of them as villains. They are, collectively, the cartoonishly evil Montgomery Burns of Kenyan sports.

I know that the present generation of sports fans still enjoy watching sports on TV. Where I am sequestered for the moment, a group of young people have extolled the virtues of Steph Curry that perhaps I may admit to myself that my fandom was considerably tame. But equally, save for organised intramural competitions among schools, few, if any, see sports (other than long-distance races) as a viable option. They know that serikali isn't interested in nurturing and protecting their talents. No number of we-will-build-this-that-and-other-stadium promises are expected to come true by Kenya's young people. (Long-distance running doesn't need a stadium, so little, if any, disappointment is feared.)

It looks bleak today when we think of the status of Kenya's sporting talents. Stadia are rotting. Talent development is infested by carpetbaggers, thieves and ne'er-do-wells. But at the top of the ash-heap of mediocrity sit governmental officials with neither the skill, talent, knowledge or motivation to establish frameworks and systems that will allow talents to flourish. Young people are at the mercy of old men with old ideas. I don't know what is to be done save to say, eat the old.

Thursday, July 20, 2023

How committed are we?

An arrested person has the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested; or if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day. [Art. 49(1)(f)]

Together with Article 50(2)(a) on the presumption of innocence of accused persons, these are the principles that we demand for friend, foe and all people in-between. Hon. Babu Owino, MP, is an odious species of Kenyan and it has been the wish of thousands of Kenyans to see the back of him from public office and if it took a conviction for his casual recklessness with his licensed firearm, that would just be fine. But his recent arrest and detention, presumably, by members of the National Police Service, the concealment of his place of detention, and the failure to arraign him before a magistrate within twenty-four hours are the reason why the Bill of Rights, particularly Articles 49 and 50, exist.

The vast majority of Kenyans have no need to rely on the protections of Article 49 or 50; but whenever those protections are undermined, regardless of the reason, all Kenyans are endangered. Mr. Owino's arrest and detention, it is speculated, are connected to his central role in mobilising disaffected constituents of Embakasi East Constituency to demonstrate against the elected government of Dr. William Ruto and Right Gachagua over the cost of living crisis. Jacaranda Grounds falls within Embakasi East Constituency and it is presumed that the Kenyans who are motivated to attend incendiary political rallies at that venue do so due, in part, to the efforts of Mr. Owino and any violent clashes with policemen can be attributed, in part, to the role Mr. Owino plays in bringing them to the venue in the first place. This is, obviously, rubbish thinking but in Kenya rubbish thinking seems to be all that we are left with.

What is important to remember is that Kenyans have a long history of police abuses, especially the detention and disappearing of arrested Kenyans, sometimes permanently, during which may of the detained were tortured, permanently maimed or murdered. Mwai Kibaki's government was no respecter of the rights of arrested and accused persons. It wasn't as violently oppressive as the Jomo Kenyatta or Daniel Moi governments, but it was repressive just the same. Uhuru Kenyatta's presidency did not end with a clean bill. It appears that the full implementation of Article 49 and 50 has a long way to go under the present regime.

Kenyans are called to test their fealty to the protections afforded to arrested and accused persons and this call is connected to the treatments of one of the most recklessly disruptive and destructive politicians to be elected to the 13th Parliament. Mr. Owino was accused of grievously wounding another man using his licensed firearm. Mr. Owino, it is reported, has undertaken several schemes to undermine his prosecution and to interfere with the witnesses to his alleged offence. He is not a sympathetic victim of police excesses. And yet, if we can discriminate between sympathetic victims of police violence and non-sympathetic ones, then we might as well do away with Article 27 which expressly prohibits discrimination on any grounds.

Campaigning for the protection of Mr. Owino's rights and fundamental freedoms is not synonymous with asking that the charges he faces for his other crimes be set aside or he be released from his obligation to face justice. But merely because Mr. Owino is "known to the police" should not be an excuse to use him as the tabula rasa of the Bill of Rights, to be erased and rewritten at will by the forces of unlawfulness and disorder. Benjamin Franklin thought “that it is better a hundred guilty persons should escape than one innocent person should suffer.” If we truly wish to acculturate ourselves to the principles espoused in the Fourth Schedule, then we must hold the National Police Service, and the masters it appears to serve, to account for the arrest, detention and disappearance of Mr. Owino for if we don't, eventually, we will all be at the mercy of policemen exercising powers for no reason other than they felt like it. We cannot afford to rebuild the criminal presidencies of the four presidents that came before the incumbent.

Sunday, July 16, 2023

Footnotes of history

One of the things that define a rule-of-law jurisdiction is whether the people who purport to champion the rule of law respect the principles that undergird the rule of law. For example, in Kenya, the constitution explicitly limits the number of terms a person may serve as president of Kenya to two. It doesn't matter if the presidencies are consecutive or separated by the presidential terms, the limit is two. The principal that laid the foundation for this limitation was one that was intended to inject fresh blood into political and administrative institutions. It is replicated in many written laws that establish public institutions such as the leadership bodies of state corporations; board members get a maximum of two terms.

This principle was promoted by many of the stalwarts of the Second Liberation Movement. They stuck to their guns when the issue came before the Bomas Conference. The principle survived the Bomas Constitution, the Ghai Draft, the Kilifi draft, and the Harmonised draft. It was, therefore, surprising to see that the proponents of the principle didn't;t believe it strongly enough when it came to institutions (albeit "private" ones) in which they served in leadership positions. It would take the concerted efforts of "stakeholders" to push them out even after to had long been apparent that they no longer adhered to the wider principles of the institutions and they had, instead, become albatrosses around the institutions' metaphorical necks.

One of these people, long in the tooth, has taken to "public intellectual" fulminations. His hypocrisies are no longer amusing, particularly as he purports to establish moral codes that he does not abide by. He has arrogated on himself an intellectual authority that relies, mostly, on his academic scholarship, and less on any public acknowledgement of its existence or legitimacy. On the basis of that academic scholarship, and a once celebrated leadership of public political discourse of years past, he continues to excuse himself form the restrictions of the moral code he purports to impose on others. His hypocrisy blinds him to the ridiculousness of his fulminations.

I return to the analogy of the rule of law. One of its core tenets is that even in corrupted judicial frameworks, the only recourse to legal disputations is to bring the matter before a judge. Even if the litigation proves to be futile, to serves the higher principle of respecting political and constitutional institutions. Secondarily, it establishes a written record for posterity. When Mr. Justice Riaga Omollo, judge of the Court of Appeal, was removed from office, his removal was founded, in part, on the written judicial record where he had exposed his constitutional shortcomings. No appellate court seriously entertained his pleas for reinstatement. The written record condemned him and he remains condemned to this date.

But our friend abjures the written record if he is not the one doing the writing. He wishes to write his own, and his benefactor's, history in a positive and heroic light. He fell into the same trap that African presidents-for-life fell into: the desire to manage their own legacies, forgetting that when they are dead and gone, the citizens will remember them as they were supposed to be remembered. In the United Republic of Tanzania, even the men and women who were bitterly disappointed by Mwalimu Julius Nyerere's political leadership remember him in a heroic light because, even with his weaknesses, he led his nation with his peoples' needs in mind.

Our friend, a man who no longer believes the things he says he stands for, has allied himself with liars, cheats and thieves in service to a man who has also abandoned the principles that made him a hero of the Second Liberation. Our friend refused to condemn the leaders of his movement when they engaged in crass nepotism. He refused to take a stand when they allied themselves with the leader of a murderous political regime that had killed his own compadres. Our friend has lost what little moral authority he ever held. It is fitting that another hypocrite revels in ridiculing him on social media. In the end, when the annals of history are written, our friend might merit a footnote of derision. If he is lucky.

Tuesday, July 11, 2023

Obsessions and history

One of the obsessions of the Uhuru Kenyatta presidency had to do with legacy. The president, and his minions and acolytes, initiated projects, programs and initiative designed to secure his legacy. He wanted to be remembered the way his father, his father's successor and his father's successor's successor had been recognised. Jomo Kenyatta, his father, had the good fortune to be rounded up on the same night Kenyan freedom fighters were rounded up and detained by the colonial government in October 1952. He ended up being Kenya's first president-for-life.

Jomo Kenyatta's successor, Daniel Toroitich arap Moi, once dismissed as a passing cloud, went on to rule, with an increasingly iron fist, for twenty-four years. Roads, shambas, hospitals and stadia are named in his honour. Mwai Kibaki, who succeeded the perfidious, murderous and utterly corrupt Moi presidency, will be remembered as the President who unleashed Kenya's economic potential before throwing it away and plunging the nation into a constitutional crisis that it has never recovered from, progressive "new" constitution notwithstanding.

Uhuru Kenyatta was in many respects an unfortunate president. He did not have an original idea of his own; the bulk of his proposals, programs, plans and initiatives were ersatz copies of things his predecessors had initiated or accomplished. The only difference is that Uhuru Kenyatta's initiatives also turned out to be the most corrupt. He built a new Uganda railway that never quite reached Uganda. Billions were lost in the bargain to corruption. He built an expensive elevated expressway whose economic utility remains doubtful to date. Billions more were stolen in the bargain. His "universal healthcare" program is a study of how quickly a ministry can squeeze tens of millions of dollars from "mobile clinics" that consist of nothing more than shipping containers branded with the national coat of arms.

Uhuru Kenyatta will get a legacy when the annals of Kenya's history are written. Only, the legacy is one of unmitigated graft. Pheroze Nowrojee, reportedly when asked why he and his colleagues in the Second Liberation Movement filed futile suit after futile suit in the corrupt courts of law, answered that it was "For the record! Nothing is more powerful in history than the record!" Uhuru Kenyatta did everything in his power to write his own history. History will show that he failed in that endeavour.

President William Ruto, over whom we pray that he receives the wisdom of Solomon and the conscience of David, looks set to repeat the mistakes of the Uhuru Kenyatta presidency - a reckless desire for legacy. He is faced with an intractable economic problem: a national debt that threatens to overwhelm whatever good the available national revenue can do. If he wants to win the legacy race, he should abandon the search for legacy. He should do the things he swore that he would do: obey the constitution and serve the public good. Legacy will take care of itself.

Sunday, July 09, 2023

We once aspired to national greatness

It is pointless to ask, nay, beg, Dr. David Ndii to sympathise with the political plight of Hon. Raila Odinga and his political orphans. Dr. Ndii has, time and again, stated for all who care to hear that he is a political harlot; loyalty, in the Kenyan political combat, is meaningless to him. It no longer motivates his political choices. He is willing to serve whatever regime that is willing to pay his price.

It is also pointless to try and shame Dr. Ndii into "doing the right thing". He is not a teenager from a middle class family for whom right and wrong are in stark relief to each other. He is an adult man in full charge of his political faculties and he is playing the game in the only way he knows how: with eyes wide open and an exit plan in the back pocket. Morality, or Kenya's political version of morality, means nothing to man who has been witness to chicanery of the highest order from Kenya's political saviours for nigh on thirty years.

Kenya's politics, and fealty to constitutional values, has been reduced to its basest, crudest elements: one will do what one must do in order to win an election, and form the Government. The whys and wherefores are irrelevant so long as one can claim electoral victory against all the other hyenas in the feasting of the carcass. Dr. Ndii listened to the promises of the "Official Opposition" for twenty five years. He watched as those promises were betrayed. He saw that neither the needs of the people on the street - Wanjiku, et al - nor their political values held much sway in the minds of the likes of Hon. Odinga. Not even Hon. Martha Karua could persuade Dr. Ndii that there was a light at the end of the tunnel of darkness.

So Dr. Ndii did what he thought he needed to do: he got himself a long spoon and sat down to supper with the devil, and in the bargain is now sitting in on Cabinet meetings where, maybe, perhaps, though probably not, his voice is heard when it comes to national economic decision-making. The recent toing-and-froing over the price of petroleum products might be proof that Dr. Ndii may have been bamboozled once more and he is one among eleventy-seven other men, women and scallywags of all stripes that have fallen prey to another spate of promises that shall not, will not, could not possibly be kept.

It is pointless to feel sorry for Dr. Ndii - or to sing praises to his political acumen. His bed is his own to lie in, rosy thorns and all. Ours is to choose whether or not we wish to engage in political harlotry in the pursuit of our own political objectives, and fuck the constitution in the process. Or are we willing to do the necessary and difficult work of building a political culture that tries, and perhaps succeeds, in rooting out entrenched political betrayals, lies and constitutional sabotage.

Once upon time, before Mwai Kibaki showed us what betrayal looked like, Kenyans had faith that "One Man could change things". That the "One Man" was not just one man - George Anyona, Masinde Muliro, George Nthenge, Charity Ngilu, Martha Karua, James Orengo....they all come to mind - is neither here nor there. What is important to remember is that there were Kenyans who stood for us, and helped us stand for something, who led the way, paid steep prices, sometimes ultimate prices, and who inspired us to rise above the petty pecuniary needs of the one home, one family, one individual. We once aspired to national greatness. Today, the vast bulk of us are willing to get fucked in the ass without the courtesy of KY jelly if it means that when we retire to our Runda palaces, out bank balances have as many zeros as a telephone numbers and our passports are accepted in all the major capitals of the world.

We once aspired to national greatness. Today we are all David Ndii. Broken, broken-hearted, having forgotten the KY jelly, bent over the proverbial barrel, our pants down around our ankles, our knees akimbo, metronomically chanting to ourselves "at least bank account iko na dough" over and over as our sphincter muscles are loosened for all eternity such that we will need adult diapers till the day we die.

Saturday, June 24, 2023

The balance of power and the betrayal of the law

The United States is not a sophisticated constitutional republic; it is a sophisticated banana republic. The difference between the US and South Sudan is that the Democrats Party and Republican Party don't have armed militias waging war in in the streets to control the Houses of Congress. But in every other dysfunctional respect, the US is a banana republic and nothing demonstrates this more than the idiocy over the "debt ceiling" and how it affects that full faith and credit of the US federal government.

Mr Kevin McCarthy, the Speaker of the US House of Representative is a petty, small-minded, vindictive, self-serving politicians who is so afraid of his shadow it is a wonder he keeps track of anything that goes on with his dysfunctional caucus consisting of racists, misogynists, child molesters, gun fetishists and environmental vandals. So it comes as a bit of a shock when the US federal government is paraded as a paragon of fiscal rectitude when it comes to the apparently knotty problem of "raising the debt ceiling".

When Kenyans point to various bits of the US federal government when trying to explain why the national government has done, such comparisons must be made while carving out massive swathes of customs, traditions and local corruptions. Kenya has a form of presidential system but still relies a whole lot on older parliamentary system customs. It is why even Kenyan parliamentarians continue to speak of the "Government" and "the Opposition" as distinct political realities despite the fact that no one in the executive sits in parliament and no parliamentarian sits in the executive.

When trying to work out why Kenya's public debt is "out of control", one needs to look at both the constitutional arrangement of government and the ways in which individual political forces have ignored, misinterpreted and undermined those constitutional arrangements. President Uhuru Kenyatta and former Prime Minister Raila Odinga did much to undermine the constitution and in so doing laid the foundation for the out-of-control public borrowing of the past twelve years. President William Ruto doesn't appear to have a free hand in handling the situation so he has chosen to follow the same through line laid by President Kenyatta in the relationship between the executive and parliament.

Consequently, parliament continues to play a rubber-stamp role when it comes to approving the national budget, setting the stage for further unsustainable public borrowing. Though the Parliamentary Budget Office continues to offer cogent and meaningful analysis of public expenditure and public investment proposals, its work is largely symbolic as it does not appear as if parliament uses those analyses to inform its consideration and approval of the national budget.

Commentators have opined that the law is the straitjacket that will address the excess of the national government. They are right only in part. The law is meaningless if the people it is meant to guide, especially parliamentarians, don't believe that the law is a sufficient tool in dealing with the public debt. If they did, the first thing would to transform parliament into the institution it was intended to be by the framers of the Second Liberation Constitution: an institution that checks the power of the executive and moderates the more reckless instincts of members of the Cabinet. So long as parliamentarians believe that they are beholden to the president, and the president's financial war chest, parliament will not play any meaningful role in rolling back the excessive borrowing by the executive, even if it means that the looming economic crisis harms everyone, parliamentarians included.

Friday, June 09, 2023

We are on our own.

From the days of the Kanu Youth Wingers of the 1990s, anyone who thought that criminal gangs masquerading as political party militias were behind us has not been paying attention. The recent "alliance" between Azimio Tours, Safaris and Dynasts and the "outlawed Mungiki sect" are proof that what is old is new again and no one should discount the expediency of alliances that, in the fullness of time, do not amount to a hill of beans. Never have, never will. The only people who pay for the hypocrisy of the political classes are the Wanjikus of today.

In wildlife conservation, poaching is a considered a serious crime, and the penalties are quite severe. In politics, poaching is neither frowned upon nor punished. In the immediate aftermath of the repeal of section 2A of the former constitution and the re-introduction of multi-party politics in Kenya, it was the rare Opposition MP who crossed the floor to the ruling party side. The political classes, even as they flexed muscles and deployed "youth wings", respected each other enough to devise strategies that led to actual floor-crossing. Those who crossed the floor, resigned their parliamentary seats and sought a fresh mandate from their electors.

In 2023, no political party and no elected representative respects the rules of the road. One may constructively cross the floor from the Minority Party to the Majority Party without going to the trouble of resigning his seat and seeking a fresh mandate from his constituents. Each and every one of them seeks to profit, often in explicit monetary terms, from abandoning his political party without seeing through the abandonment as required by the written law.

So when a political party that has encouraged constructive (rather than actual) floor-crossing, suffers the ignominy of having its elected representatives poached by the other side, and has no viable strategies for retaining its members on-side, it is faced with the prospect of being a spent force four years before the next presidential election and has to do something that runs counter to its stated political ideals :ally itself with an organised crime organisation that has been responsible for hundreds of murders, billions of shillings in extortion, and has survived three presidencies despite dozens of members of its senior cadre being assassinated in un-prosecuted extra-judicial killings by police and intelligence community death squads.

What I find truly astonishing is that despite knowing what the Mugiki are, what they have done, and the death and mayhem they wreaked, even stalwarts of the Second Liberation, whose credentials we thought were beyond reproach, have desperately chosen to align themselves with the organised crime organisation because the President and the Majority Party have poached the weakest members of their coalition. No one believes for a second that the unscrupulous and dishonourable parliamentarians who have thrown their lot in with the Kenya Kwanza coalition have the political heft to win an election without the backing of Raila Odinga. They are minnows. They have the political stature of unremarkable, decrepit pygmies. They are nonentities. Without the Right Honourable Raila Odinga backing their political play, despite their perceived wealth and power, they are nobodies, obscure footnotes in the political history of Kenya.

But it says something of the "advisors" Raila Odinga has surrounded himself with that he does not see the danger in supping with the devil that is the Mungiki without bringing a long spoon to the dining table. No good came of it the last time he found himself on the same side as Maina Njenga. No good will come of it this time round. Wahenga have a saying: a leopard does not change his spots. The Mungiki were a murderous organised crime organisation back when Chris Murungaru and John Michuki waged a scorched-earth war against them and they are a murderous organised crime organisation today. Mr. Odinga has listened to the wrong counsel in his alliance with Maina Njenga.

There's is plenty wrong with the politics of Kenya Kwanza but regardless of its poor legal choices, it has not yet crossed the line into the excesses of the Kenyatta-Pére-Moi-Kibaki-Kenyatta-Fils of extra-judicial murder. It is a political agglomeration of unlikely allies that can be peeled off and turned around. To prevail against it, it is not necessary to truck with murderers and extortionists. That Raila Odinga can't see this, or doesn't seem to care, is an indictment all of its own and demonstrates that Kenyans can no longer count on the Minority Party to do the right thing by the people any more. We are, truly, on our own today.

Saturday, June 03, 2023

Tax and spend: rights holders and duty bearers

The Constitution of Kenya, under the Bill of Rights, gives citizens the right to the highest attainable standards of health and Universal health coverage (UHC) has been adopted as Target 3.8 of the Sustainable Development Goals (SDGs), with a clear goal of ensuring that individuals and communities receive the health services they need without suffering financial hardship. - Colonel Mustapha and the Case for Universal Healthcare by Mwende Ngao

First things first, the Constitution does not give anyone anything. It is important for any discourse on rights holders and duty bearers to understand that we gave ourselves a constitution that recognised the rights we inherently have (including, yes, economic and social rights) and the fundamental freedoms that must be protected, first by the state, and then by everyone else.

Economic and social rights come with inherent challenges in that they rely on other actions that are beyond the control of the rights holders and duty bearers. Economic and social rights depend on, in the first instance, taxes and, in the second instance, service charges imposed by duty bearers (the State) on rights holders (citizens and other users). There is a way of predicting how much in tax revenue the State shall collect and on that basis, how much of that tax revenue may be spent on economic and social rights.

Kenya is a study in wrongful and wasteful expenditure of tax revenues, and this is starkly apparent in the way taxes are spent in the provision of health care services by the State. Kenyans, in their wisdom, devolved the provision of health care services to county governments with the national government being left in charge of health policy and national referral hospitals. It was soon swiftly realised that the constitutional devolution of health care services needed further changes including on how health care workers are trained, deployed and paid. Further, the way in which health insurance is administered left many desperate Kenyans out in the cold and none more so than expecting mothers and patients with severe illnesses like cancer or in need of long-term medical support such as those with HIV/AIDS.

If we can learn anything from the plight of famous Kenyans who have fallen on hard times it is that constitutional rights and fundamental freedoms are hard to safeguard and protect if the foundations on which some of those rights depend are hollowed out. A prosperous nation is able to raise the necessary taxes, and pay for essential public services, without having to ask citizens to supplement public financing of essential services from their own pockets.

Kenya can barely raise the tax revenue needed for its ambitious "development" projects and pay salaries at the same time and the result is that essential services only get the bare minimum of public investment and support. And while Kenyans continue to wave the Bill of Rights in the faces of public officials, there is little Kenyans can do to ensure that those public officials do their duty and provide the "highest attainable standard of health acre" to Kenyans. We may have economic and social rights. But whether we ever fully enjoy those rights is something else entirely.

Sunday, May 28, 2023

Rich, fat and stupid

What little I remember of the economics I learnt during the BA part of my university education is reduced to this: we have needs and we have wants. Quite often, the quality of the needs we get influences our ability to acquire the wants we desire. Nine times out of ten, we are responsible for solving our needs. While the State will provide us with institutions of learning, for instance, and the teachers who teach there, it is our personal initiative that will ensure whether the education we get stands us in good stead or not. I won't go into the quality of the institutions and teachers the State provides. Suffice to say, if you are provided with the best of both, and you sleep through all your lessons, your education is likely to be "half-baked" at best.

The same is true of health services. The state can build the health facilities and train the healthcare workers, but we are responsible for maintaining high standards hygiene at home so that we are not plagued by vector-borne diseases.

But when the state fails to do its duty, after collecting taxes through laws and menaces, and instead imposes the obligation of doing for ourselves what the state should have done for us, and at our own expense to boot, then the men and women who contributed to this state of affairs cannot possibly be trusted to offer us advice on how to live our lives or chastise us for how we leave our lives.

Anyone who has lived in Nairobi over the past thirty years will have noticed that even as the taxes imposed on them have gone up, the services that should have been provided by the state have reduced. It is true when it comes to access to affordable real assets. In the last decade of Daniel Moi's kleptocracy, public land was allocated to men and women connected to his thieving government at a rate that was staggering. So long as you and the Commissioner of Lands were on the same page, you would end up with a title deed in your name. Much of this land was acquired for purely speculative reasons; few of it was developed during the last decade of the Moi presidency. When Mwai Kibaki assumed office, still more public land, especially land held by state corporations, was transferred into private hands without so much as a by your leave.

We sowed the wind and now we reap the whirlwind. The acreage available for lease to small scale vendors at affordable rates is nonexistent in Nairobi. Much of that land is occupied by sixteen-story blocks of flats (or offices) that are, at best, half-occupied. The armies of Nairobi's itinerant traders have nowhere to go except to the last "open" space available: road reserves and pedestrian walkways. Nairobi is now neatly divided into two: land speculators and vibandanskis.

The same scarcity of affordable land hamstringing the middle class dream of owning an affordable house has also locked out millions of small-scale businessmen. The challenge is the same, whether you want an affordable three-bedroom-two-bath semi-detached maisonette in Buru Buru or you want to open a café to serve the on-a-budget crowd of office gremlins: land prices are unrealistically high. The solution is the same: seize all irregularly acquired land and give access to the millions who need them to build homes or businesses at an affordable price. The reality is predictable: the state will tax Kenyans to the bone first before it troubles the land thieves of the 1990s and 2000s.

So it is a bit rich to read the screeds by lawyers about how Nairobi is being turned into a slum of vibanda where dodgy food of doubtful safety is being served by shady vendors who don't even appear to have the necessary public health paperwork to be allowed to sell food to the public. These lawyers who only concentrated on "human rights" when it meant change-the-government, but were silent as their new boon friends carried on with the same corruption as the government they overthrew are hypocrites of a particularly nasty type. They pretend to be virtuous only until they get a chance to sup at the big table with the devil himself.

My take is simple: vibanda, in and of themselves, are not bad. The people who operate the vibanda are not bad. The people who take their custom to vibanda are not bad. They are making do, with meagre resources, in one of the most expensive cities in the world. It is not their fault. No matter how many SANYs are deployed to demolish the vibanda, they will never be erased so long as land prices continue to soar in Nairobi. But this is too much to expect of the senior members of my profession. They are too rich and too fat-headed to think in these terms anymore. Listen to them only if you wish to be as rich, fat and stupid as they.

Thursday, May 25, 2023

Loyalty and affordable housing

Preamble

This will be a bit long so find something else to read if you don't have the patience for wonky, ill-written, badly-argued, semi-literate analyses.

I

I pledge my loyalty to the President and Nation of Kenya. My readiness and duty to defend the flag of our Republic. My devotion to the words of our national anthem. My life and strength in the task of our nation's building. In the living spirit embodied in our national motto - Harambee! And perpetuated in the Nyayo Philosophy of Peace, Love and Unity.

II

"mandatory patriotism"

III

"eradicating slums in Kenya"

IV

No one wants to live in sub-prime housing. No one wants a house in a neighbourhood plagued by blocked sewers and drainage, where garbage piles on for years in end, where the street lights have never been installed, where footpaths turn into muddy rivers in the rainy seasons, where access to water is only through the sufferance of water shylocks who charge extortionate prices and where, if you survive all this, the "house" is a four-walled metal shack that barely fits two and is vulnerable to the privations of violent criminals and equally violent police. Suffice to say what electricity is available in these places is neither official nor cheap.

V

The reasons for the deductions into the Housing Development Fund have varied. It is designed to offer the downpayment for an affordable house. It is a savings scheme for Kenyans. It is a source of financing for the private development of affordable housing. It will spur employment among the youth of Kenya. It is meant to supplement ones retirement benefits scheme funds.

I don't think there is a Kenyan who has any fundamental objection to a scheme that provides affordable housing for Kenyans, especially Kenyans living and working in cities and urban areas who don't have access to affordable housing. The mainstream news press has breathlessly repeated the statistics that say Kenya suffers from a severe housing shortage and ignores the explanations offered by economists and professional architects that the shortage is artificial due to, among other things, the high taxes imposed not he housing industry and the high prices charged for the thousands of vacant housing units in places like Nairobi City.

It would pay if we knew what we were being told, and whether what we were told squared with the facts on the ground.

VI

The [National Housing] Corporation may, from the National Housing Development Fund and from time to time, in the manner provided by this Act...make loans to any company, society or individual person for the purpose of enabling such company, society or individual person to acquire land and construct thereon approved dwellings or to carry out approved schemes...[and] construct dwellings, carry out approved schemes and lay out and provide services for approved schemes. - Housing Act, Cap. 1117 [s. 8(1)(b) and (c)]

VII

The functions and powers of the county are...County planning and development, including...housing. [Paragraph 8(d), Part Two, Constitution of Kenya]

VIII

When Mr. Raila Odinga, as Minister of Roads, Public Works and Housing in the first Mwai Kibaki Government, initiated the Slum Upgrading Programme in 2004, he set off a chain of events that ended in the complete subversion of the role of local government in the provision of social and affordable housing in Kenya. Of course, we can't ignore the fact that local government had become a hotbed of corruption - the failure of the City Council of Nairobi and the Nairobi City Commission are stark reminders of that corruption. However, instead of making the necessary corrective changes in governance and integrity, Mr. Odinga, with he support of the central government bureaucracy that had become wedded to contractors, took over a role it had never performed and undertook the project without further reference to the people ostensibly for whom the project was initiated.

Anyone who has followed up on the Slum Upgrading Programme will be able to confirm that while the "affordable" housing units were indeed constructed and delivered for occupation, the current occupants are not the original targets of the Programme; many of them, if not all, rent out the units to Nairobi's who can afford to pay the rent, and they have gone back to the slums from which they were supposed to be "rescued".

The 2018 Affordable Housing Scheme was challenged in the High Court and the Employment and Labour Relations Court. Among the arguments was that too was a usurpation of the role of county governments in the development of housing as prescribed by the Fourth Schedule to the Constitution. Both courts granted injunctions preventing the implementation of the Programme. The petitions were withdrawn, without the superior courts rendering a judgment, after the law was amended to repeal all references to the Programme. The re-introduction of the Programme, in the same way it was introduced in 2018, using nearly the same language, in the absence of a definitive ruling by the superior courts, risks the same kind of litigation that saw it being suspended for two years and then scrapped.

IX

I read once in the tabloid press that there are place sin Nairobi where the price of an acre of land has exceeded one billion shillings. There are many factors affecting the price of land, not least being the scarcity of serviced land at affordable rates for the construction of affordable housing. In more mature markets, such as South Africa, a flat of 100m² costs less than ten million shillings. In Nairobi, prices start at twelve million shillings. The continued existence of large swathes of the City being "single dwelling bungalows in quarter-acre" is a scandal of poor physical and land use planning.

The redevelopment of "leafy suburbs" like Lavington, Kilimani, Kileleshwa and Jamhuri was long overdue. The same re-zoning should be done for Parklands, Westlands, Spring Valley and Kitisuru to open up uneconomically utilised land for higher housing density instead of concentrating the densification of housing in Eastlands which, in any case, has long passed saturation point. In the long run, Muthaiga, Nyari and Runda should also cease to be low-density residential areas given their proximity to the Central Business District. Re-zoning these areas will unlock land at affordable rates and spur the private development of affordable housing, and thereby obviate the need for an additional tax on already highly-taxed Kenyans.

Coda

There is a large swathe of land in Nairobi between the Makadara Railway Station and the Central Railway Station that is ripe for redevelopment. Part, if not all, of it is owned by the Kenya Railways Corporation Staff Retirement Scheme. It will cost and arm and a leg to compulsorily acquire but not is the best alternative option to a mandatory tax on hard-taxedKenyans and it may stave off the day that Runda, Muthaiga and Nyari have to be converted into high-rise paradises. The National Social Security Fund, and the retirement benefits schemes for the employees of the former local authorities, have the money to acquire and redevelop the land. If they buy in, the dozen or so major private retirement benefits schemes will have the confidence to buy in as well. Private funds for the redevelopment of the land is available. There is no need to trouble salaried Kenyans unless they wish to buy into REITs.

Saturday, May 13, 2023

Laws, godmen, the state and death

No law is ever clear and any person, especially a lawyer, who claims that the law is clear is a charlatan and should be shunned by right-thinking members of the society. If the law was clear, if any law was clear, we wouldn't need the courts of law to interpret what they said or how they could be applied. So anyone that comes to you, unctuous oiliness dialled up to ten, and tells you that the law relating to ministries of religion is clear, is trying to gaslight you. Don't let them get away with it.

I don't wish to dwell on the intricacies of the Societies Act or the Income Tax Act when it comes to the "regulation of churches" but only to say that the law on the regulation of church societies exists, it has been abused, and as a consequence, there are many unregistered church societies that cause serious and continuing harm to many Kenyans. But, and as we have discovered with that shady minister of religion in Mombasa, many church societies also strictly abide by the letter of the law.

The problem in Kenya is not the law. It is not even the interpretation of the law. It is that the legitimacy of the law has never been high to begin with. An apocryphal story relates to the development of social housing in Nairobi in the 1950s. The wazungu in charge fiddled so much with the books of account that anyone who can say with a serious face that they know how much it cost to build Ngara or Pangani estates is a liar. Kenyan civil servants were initiated and indoctrinated in procurement corruption by Her Majesty the Queen's subjects and it s a lesson we took to heart.

Many of the thieves in our government attend church with a regularity that sometimes is a bit disturbing. For sure, the church is where sins go to get washed, where the penitent seek God's forgiveness. But that is not the relationship ministers of government and ministers of religion enjoy. Some may truly believe that the blood of Jesus washes all sins. But the majority, the overwhelming majority, attend church because, in some way, the pastor and the civil servant need each other to steal from the rest of us. Not only do they steal our money through procurement graft and the redirection of tithes and Sunday offertory to fancy Range Rovers, they rob us of our spiritual dignity and find innovative ways to blame us for being so gullible.

We tolerated this grand heist when the leadership of the ministries of religion allowed one among them to depart from the thieving path and speak the truth about the things that were being done to us. But nowadays, there are no honest men of the cloth left. Even the ones we invite to our corrupt TV stations to be interviewed by the less salubrious lying TV personalities have one foot out the door. They are not real rebels. They are agents sent out tot he world to gaslight us that the church exists to serve our spiritual needs and blind us to the material and spiritual robberies taking place in our lives.

There is no way that a ministry of religion can hide the deaths of 179 Kenyans and the disappearance of over 600 others without the officials of government knowing. It simply doesn't make any sense. Yet that is what concerted efforts by diverse spokesmen of the church and the state wish us to believe. They know that if we believe these lies, there is nothing they will not get past us. Don't let them get away with, literally, murder.

Tuesday, May 09, 2023

The wages of constitutional illiteracy

Some time last week I witnessed the limits of education. On a panel discussing something that the Government had done, was doing, was going to do, whatever, a panelist suggested that Kenya would benefit if the "opposition formed a shadow government", the same as existed in the 10th Parliament before the promulgation of the 2010 Constitution. therefore, she saw many benefits in the establishment of the office of the Leader of the Official Opposition as proposed by both the last Jubilee administration and the current Kenya Kwanza one. She, and many like-minded pundits, have given up on the constitutional arrangements we have made for the government and they seemingly have no interest in holding any of their elected politicians to account.

The reliance on magical thinking is distressing, but not surprising. It informs much of the public discourse on public administration and politics. We are susceptible to this kind of magical thinking: if I make this change, that has nothing to do with the underlying issues, I will improve my lot in life. It almost never is true. It almost always leads to more destructive outcomes.

The constitutional structure of the government is not that difficult to discern. It is a presidential system, with parliamentary vestiges no one thought would become a problem thirteen years after we promulgated the constitution. The president, deputy president, cabinet secretaries and attorney-general no longer sit in parliament; parliamentarians no longer sit in the cabinet; and the president can only appoint the chief justice and judges of the Supreme Court with the approval of parliament. Parliament is divided into the majority party and minority party who, collectively, are supposed to oversee the national executive and judiciary (also known as checks and balances). While it is expected that the majority party in parliament will be the president's and deputy president's party, under the current arrangement it is possible to have a divided government where the majority party controls parliament and the minority party holds the presidency.

As a consequence, the Official Opposition is an anachronism from the Westminster system that Kenya did away with on the 27th August, 2010. An Official Opposition is a vital part of a parliamentary system where the members of the executive are elected parliamentarians as well (save for the attorney-general, who is an ex officio member of parliament without a right to vote). An Official Opposition would choose, from among members of its Parliamentary Group, shadow ministers who would lead the questioning of members of the cabinet during Parliamentary Question Time (in the UK, they call it Prime Minister's Question Time).

What President Uhuru Kenyatta and, now, President William Ruto, did was to extend the vestiges of the Westminster system far beyond its utility for the purposes of the transition from the former constitution to the current one. As a result, the general public, including commentators and pundits, are under the impression that the government is still divided into a ruling party and official opposition, rather than the majority party and minority party. Therefore, few see nothing constitutionally untoward in the suggestion that the office of the Leader of the Official Opposition should be revived "in order to hold the government to account" rather than the majority and minority parties holding the executive branch to account as the constitution contemplates.

I am all for inclusion as a way of mediating political conflict; but I don't think it is in the national interest to establish a constitutionally dubious office simply because the incumbent's regime is uncertain about its political legitimacy. From the Yash Pal Ghai commission to the Committee of Experts, the majority of voters were adamant that they did not want parliament and the executive to conspire to undermine the national interest. Most voters wanted a clear separation of the executive from parliament; the independence of the judiciary was taken as a given. President Kenyatta overworked to blur the lines between the three. President Ruto still has the opportunity to reverse course though he appears hell-bent on walking the same path as his immediate predecessor. An office of the Leader of the Official Opposition may solve the immediate political problems of the incumbent; it will do nothing to hold the national executive to account or improve constitutionalism. Only the ordinary Kenyan on the street will come off the worse.

Thursday, May 04, 2023

The pride of prejudice

Dr. Ndemo says, "It would be great if there were no manipulative persons who would take advantage of the legal provisions and the vulnerability of poor people in our society." (Trouble with religious freedom, Business Daily)

He makes a fundamental assumption, one many of us have unconsciously made: poor people are more vulnerable to charismatic leaders of death cults. But, as one of my favourite interlocutors on Twitter asks, how many poor people do you know that can afford to keep four children in school in the Kenya of today? 

It is a prejudice we have of poor people and it colours the way we discuss matters where people we perceive as vulnerable are impacted b y the actions of others. The Kilifi death cult leader, and his counterpart in Mombasa, do not appear to have attracted only the poor. In fact, the way many of the stories of their victims are told, it would appear, after a bit of digging, that many had access to resources that were sufficient to support them as they relocated themselves and their children to Kilifi and Mombasa to participate in the fatal activities of the cults.

When I worked for my previous employer, I met and interacted with people in challenging circumstances. Many of them may not have know the law the way that I did, or may not have read Government policies the way I had read them, but they were not gullible, naive or stupid. For sure they were exploited, but only in the context that they were often left with choices that were difficult, if not impossible, to make. But they did not easily fall for sleek-tongued rogues come bearing gifts.

Many of the victims of the cults have been impoverished by the cult. They didn't start their death march living in penury. The cult leaders managed to persuade these frequently educated, well-travelled and informed men and women to abandon their families, communities, jobs and lives back home, give the cult leaders all their worldly possessions, and then kill themselves in a slow and painful process in the hopes that their souls would ascend to heaven.

What we have obscured in these sagas, focussing as we have on the poverty of the victims, is the numbers of our high and mighty who seem to be involved in the affairs of these killer preachers. We have seen them sup together, commune with each other, promote each others' work. Were we to probe these relationships, we would be able to identify many of the reasons why otherwise stable-minded men and women killed themselves and their children.

Thursday, April 27, 2023

History, farce, tragedy

One of the failures of the Uhuru Kenyatta regime was a failure of imagination. While he and the members of his Cabinet and the senior officials he placed in critical ministries and state departments had excellent public relations skills, able to frame anything and everything in ways that painted them in a positive light, they were not Blue-Sky Thinkers. They were not thinkers at all.

Let's start with his biggest initiative: the securitisation of the state after the Westgate Attack. President Kenyatta stopped trying to persuade his political rivals (both inside and outside his Cabinet) about the legitimacy of his public spending plans. Instead, he turned to an institution that was required, on pain of treason, to obey him in all things. He appointed serving and former members of the military to sensitive dockets and gave them their marching orders.

As a result, he and his government had no reason tot think through any of their plans. This is how Huduma Namba came to be. What had originally been mooted as an evolution of the Integrated Population Registration System (IPRS), intended to integrated primary databases was bastardised into the private-sector-led Huduma Namba system that faced legal hurdles until it was quietly abandoned. Had he kept his head and ignored the demons whispering the virtues of the private sector in his ear, President Kenyatta would have succeeded in his digitisation project and the Nyayo-House-based national surveillance system would have acquired technical facilities that would have forestalled the massacres at Shakahola Forest in Kilifi.

President Kenyatta's successor faces the same exact challenges and because he has retained some of the same faces and voices from the Jubilee regime, he is at risk of walking the same unimaginative path that President Kenyatta walked. The only difference is that he doesn't seem enamoured of ex-soldiers to see through his plans. Instead, he is salting his regime with has-beens and kiss-asses with complicated legal challenges. These new men and women lack both wisdom and insight; what they bring to the table is unswerving loyalty rather than the ability to tell the emperor that he has no clothes.

Uhuru Kenyatta and Raila Odinga were not necessarily wrong about the re-incarnation of the office of assistant minister. President Ruto certainly is not wrong in offering fifty politicians the chance to serve as assistant minister redux. But whether it was the Uhuru list or the current list, both presidents repeated mistakes that went back to 1992/93: hiring ne'er-do-wells whose only value was that they offered temporary political stability. Consequently, the ability for Blue Sky Thinking was lost and it is lost again. The few thinkers in the group will be drowned out by the reckless loose-lipped members of their team. Instead of the IPRS we deserve, we shall get a kenya Kwanza edition of Huduma Namba, with the same legal infirmities as its much-loathed previous evolution.

President Kenyatta's post-presidency tells you all you need to know about how unimaginative his presidency really was. Had he had the foresight and imagination of Daniel Moi or Mwai Kibaki, President Kenyatta would have had no truck with the likes of a five-times-losing presidential candidate who can't seem to let electoral losses go. For sure, he wouldn't be haunting party headquarters like a spurned lover who simply can't let his ex go. If President Ruto isn't careful, the same fate awaits him. The sub rosa murmurings that he is "too young to retire"; the change the constitution efforts by semi-literate parliamentarians; the increasingly desperate search for a political "legacy" out of the ashes of reckless economic decisions; the post-presidency fiddling with his party; and so on and so forth. Uhuru Kenyatta is a cautionary tale if President Ruto chooses to heed the lesson. 

Wednesday, April 19, 2023

Pet or prey?

In a world of predators, would you rather be a pet or prey?

If you have been paying attention, you will surely have seen that in Nairobi, there is no shortage of the well-heeled, even as we are reminded everyday that the economy is in a bad way. The number of late-model Range Rovers, Land Cruiser LC300s, Mercedes-Benz Maybachs and Porsche Cayennes, not forgetting the eye-watering prices charged for well-appointed apartments in Lavington, puts the lie to the claim that the economy is in a bad way.

I think both things can be true at the same time.

There are fewer corporate organisations with the capacity to spend and spend big money like the Government of Kenya. Even in the middle of a wave of austerity, the Government still spends upwards of two trillion shillings each year on everything from Staedtler HB pencils to top-of-the-line Prados. That money is not spent in Ministry-to-Ministry transfers; that money is spent in dukas no one has ever heard of paying way over the odds for supplies that are delivered out of time, out of spec or not at all.

It's how Nairobi is almost always flooded with new motoring iron, austerity notwithstanding.

Of the ones that get a comfortable chunk of those trillions, there are predators, the John Ngumis of this world who eat what they kill. No one thinks of them as being put upon. They have the capacity to affect government and move financial markets in their favour. They are a minority. A sizeable number, no doubt, but a minority nonetheless. The remaining beneficiaries of the trillions are pets. They exist to service the Big Dogs and in return, enjoy perks that the rest of the country can only dream of.

They will do almost anything to remain pets, maybe one day graduate to the class of pampered pets.

You can see how many of these pets behave or are portrayed on social media. They will engage in some of the most excessive escapades, many of a sexual nature, without a care in the world. They will say things that will shock the conscience of millions. They will do things that, for normal human beings, are deeply shameful and dishonourable. They will do all this and worse because that is how they earn, every single day, their pet-hood.

Their rewards, if they cared to think on it, are equally shameful and dishonourable.

The money they enjoy is the least shameful of it all. The rest of it - the power and prestige public positions afford them, the access to corridors of power - those ones should prick their conscience not asking whether or not having their bellies rubbed in public and being told "good dog" by approving Big Dogs is an image they want their children to inherit. They can't, though. They have enough money to be blind to their ritualistic humiliation but not enough to allow them to take a step back and bite the hand that rubs their tummy tum-tums.

They will never bite that hand. Never.

Sunday, April 09, 2023

It's Kenya Kwanza's ball game to lose

Measurement is necessary for decision-making. How many people do you need to feed? Measure that. How many cows does it take to produce a tonne of milk? Measure that. How many people pay income tax and how many should be paying income tax? Measure that. Measurements, to the best of my knowledge and understanding, are meant to help in decision-making. Measurements, even measurements of certain male appendages, are not an end in and of themselves, save for narcissists and cheats.

The Jubilation (2013 to 2022) was fond of measurements, the bulk of which served as camouflage for failure. Especially measurements in percentages were its favourites. This or that is so and so per cent complete. It was a constant refrain, especially when it became clear that its achievements on the ground were hard to identify and whose effect was quite often negative. You would witness senior cabinet officials attending at some inauguration or launch or commissioning of some partially-completed project and percentages would be bandied about as proof of "development". It was disrespectfully dishonest.

The roots of the "per cent complete" malady can be traced to Mwai Kibaki's Vision 2030. While the initial Medium-Term Plans were largely well-executed, the measurements were tied to some reasonable expectation of value for money for citizens. Thika Superhighway, super-expensive as it was, served a concrete need for the people who lived along the corridor. It is not Kibaki's fault that it remains a half-finished transportation corridor, lacking comprehensive non-motorised infrastructure or mass transit options for the tens of thousands of its users. But, by and large, it is a success story by Kenyan standards.

The Nairobi Expressway will struggle to meet the same level of value for money that Thika Superhighway did. The same is true of the Standard Gauge Railway. In the long term, maybe, the two boondoggles will make a decent return, but not even the rosiest projections by the most generous infrastructure planners think that return will be made before the 2060s. But in order to hide its flaws, the Jubilation hurled a flurry of numbers at us. The numbers did nothing to hide the enormous economic cost that the new structures cost Kenya and Kenyans. Only a few well-connected fat cats will keep smiling all the way to the bank.

It would be a mistake for Kenya Kwanza to adopt the bad habits of the Jubilation. The social media scorched earth war by some of its senior apparatchiks does not offer hope that Kenya Kwanza will try to do things a bit different. It is true that the economy Kenya Kwanza inherited was sabotaged sometime in 2015. It is also true that it inherited crippling debts and political uncertainty, especially given the indefatigable agitational pot-stirring by the defeated Azimio Tours, Safaris and Dynasts. But there was no excuse to saddle the National Executive with even greater uncertainty by hiring some of the least qualified senior policy-makers in twenty years.

Azimio will be pacified. That is inevitable. The administrative instability will prevail because some of the people given senior state appointments are not intelligent, qualified, capable or have the peoples' interests at heart. It is their administrative incompetence that will stymie efforts to right the economic ship of state, not the Azimio-sponsored cost-of-living protests. The logic of keeping these wastrels inside the tent pissing outside is straightforward but wrongheaded. When it becomes that they have been handed Range Rovers without the money to keep the juggernauts on the road, they will engage in reckless quick-money-minting schemes that will embroil them in multi-year corruption investigations. That is not a recipe for administrative predictability or economic success.

However, if they are kept on tight leashes and spanked whenever they get out of line, maybe, MAYBE, Kenya Kwanza can chart a path away from disaster. We may not escape short time growing pains, but maybe Kenya Kwanza can avert utter disaster. Only time will tell. Will Kenya Kwanza make the right choice or will it be distracted by the ineffectual Azimio shenanigans.

Saturday, April 08, 2023

Who will light the fire?

There are a few members of our parliament who behave as if they are the first persons to come up with hate-filled legislation. They walk and talk with the certainty of men (they are almost always men) who have cracked the anti-people code. Of course, if you spoke to them, they would come across as reasonable. That what they are doing is for the public good. That they are addressing a lacuna (they love Latin expressions) in the law. That, because of the lack of moral and legislative support from their parliamentary colleagues, they are taking upon themselves the onerous and righteous task of dealing with an issue of great social necessity because if they don't, kenya will slide Ito anarchy and the children will be consigned to a life of despondency.

They are, for want of a better turn of phrase, dangerous narcissistic idiots.

Kenya's constitutional and legislative framework is remarkably broad. There isn't a subject that isn't addressed under the Laws of kenya. Even the emergent issues that are beloved of diverse constituencies, from cryptocurrency anarchists to electric car zealots, are covered by the existing legislative framework. It only takes an expansive interpretation of the existing law to see that there is very, very little outside its ambit.

The same is particularly true of the criminal law of Kenya. When it comes to sex, sexual activity, sexual offences and, yes, sexual identity, the law is broad, comprehensive, retrogressive and extremely punitive. The proposed Family Protection Bill is the dangerous, hate-filled, narcissistic legislative expression of the deepest and darkest desires of one man. It is a complete repudiation of the Penal Code, Children Act, Sexual offences Act, Criminal Procedure Code and the Bill of Rights. It purports to address a gap in the law that does not exist. It is a man's fantasy of what a legislative theocracy would look like.

That man will, if he has the support of his parliamentary colleagues, open the door for the total undermining of the constitutional rights and fundamental freedoms enshrined in the Bill of Rights. The modern road to fascism begins with the demonisation of people who do not conform to heterosexual norms. The language of Victorian England, which prevails in Kenya's criminal laws, is used to identify and target these people and if that assault is not halted by legislatures or courts, it is expanded to target political (aka "seditionists") and economic (aka poor people) communities.

Since the promulgation of the "new" constitution in 2010, the State, through diverse agents such as parliamentarians, has attempted to water down or roll back the constitutional rights and fundamental freedoms enshrined in the Bill of Rights. Bad laws have been enacted that have been struck down by the courts. Existing bad laws, the ones that preceded the promulgation (such as mandatory death sentences) have been struck down by the courts. This has led to a persistent onslaught against the independence of judges and magistrates in order to shape the character of the courts and influence, if not direct, the judgment that courts hand down. The Family protection Bill is part of a broader effort to render the Bill of Rights nugatory.

One mistake we made in 2003 was to assume that the end of the Moi presidency meant that the work of fighting for constitutional rights and fundamental freedoms was over. Mwai Kibaki initiated the process of co-opting the human rights civil society organisations that has culminated in erstwhile civil society human rights champions participating in the negation of human rights. When you take a step back and look at the big picture, you will admit that the view is terrifying. The rebels in the ministries of faith who said the things that we were afraid to say out loud are no longer there. The political rebels who fought, inside and outside jails, in Kenya or in exile, have become the lawmakers out to burn the constitution to ashes. The civil society organisations that derived their legitimacy from grassroots movements are now tools of foreign governments and agents. It will take a root and branch reform of the civil society movement to shake the political establishment from its single-minded onslaught on the constitution.

Sadly, because of the bread-and-butter issues young people face, the ongoing foreign-inspired boy-child versus girl-child discourse, the resilient poverty among Kenyans aged 25 to 35, and the non-existence of political institutions of whatever kind, there are no civil society champions to lead the fight against the likes of the promoters of the Family Protection Bill. Kenya's rebellion streak ended in 2010. Someone needs to light the tinder that will bring back the fire of the Saba Saba days.