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. 

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.

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.

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.

We don't know what we don't know

Dialogue is always preferred to armed combat. That's my story and I'm sticking to it. But dialogue can only go so far if the parties to the dialogue come to the talks with nothing but bad faith. Where bad faith is assumed from the outset, dialogue is unlikely to lead to positive outcomes. In these circumstances, the need for a third party to lead confidence building measures is invaluable, otherwise the interlocutors will treat each other with suspicion or will renege on whatever deal they strike the moment the ink dries on the agreement.

There is a whole generation of Kenyans who have no idea what it took for the Inter-Parties Parliamentary Group to achieve the minor reforms it did in the run up to the 1997 general election. Those who remember the Koffi Annan mediated settlement in 2008 have either decided to keep mum or have developed severe cases of selective amnesia. In 1997, though heavy suspicion was in the air, keeping the package of reforms small and largely non-threatening kept the pot from boiling over. Don't get me wrong; there was still widespread violence before and during the elections, but it could have been much, much worse. In 2008, it took the Panel of Eminent African Personalities to ensure that passions did not remain high, that agreements would be honoured, and that violence would be tamped down on both sides. The 2008 National Accord will hold up in the annals of history.

2023 offers Kenya's perennial political combatants another chance to draw on its history to arrive at a political settlement that they can live with. Just as in 1997 and 2008, there are men and women who are heavily invested in stirring the pot and keeping things on a knife edge. They know, almost for certain, that if the talks proceed and are successful, their opportunities to use chaos for self-enrichment shall be yanked away. They need the president and the former prime minister to be at odds and ends for as long as possible so that they can reap where they didn't sow.

I have no idea what the president and former prime minister are thinking. Few people actually do. So maybe, looking at the success of the 2008 National Accord, and the negotiating framework that led to its signing and the success it enjoyed until the 2013 general election, which threw up new political challenges that have affected national politics since. Perhaps it is a negotiating tactic, on both sides, to enter the talks with hardline stances and they will soften their positions as things progress. If so, then maybe we need to give the protagonists time to set out their positions in full before we can judge the relative merits of each side's position.

Psychosis, command authority and constitutional standards

The National Police Service shall "comply with constitutional standards of human rights and fundamental freedoms" [Art. 244(c)] It is irrelevant whether or not the Cabinet Secretary responsible for police services or the Director of Public Prosecutions have, in exercise of the constitutional mandates, given directions to the Inspector-General of the National Police Service; the Service is constitutionally bound to comply with the aforementioned constitutional standards. Including facilitating the exercise of human rights or fundamental freedoms by other Kenyans. Such as the the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities [Art. 37].

Though "assembly" is exercised collectively, it is not necessary for one man to demonstrate or picket or present a petition to a public authority. And therefore, the right in Article 37 can be exercised by an individual who is part of an assembled mass of people. And consequently, the police service has to treat each individual in the mass of people separately when they exercise their Article 37 rights. When an individual ceases to be peaceable and takes up arms, he ceases to exercise his Article 37 rights and instead, commits an offence (such as the offence of affray under section 92 of the Penal Code, Cap. 63).

It is accepted as a given within police circles that whenever an "opposition demonstration" takes place, the demonstrators will commit offences. Therefore, it follows, that whenever the "opposition" calls for a demonstration, the police presence "must be felt" and in order for this to be true, the police themselves, will assemble, armed to the teeth, and trail the demonstrators wherever they go. Whenever these two groups encounter each other, there almost always is a precipitating act, and violence soon follows. Kenya hasn't been able to crack the code of how political demonstrations can be held without the police service and demonstrators engaging in running battles.

One is witness, though, to a certain amount of psychological insecurity among the people purporting to make public safety policy. Unlike the late Gen. Nkaissery, Prof. Saitoti and Hon. Michuki, public safety policymakers of today lack the command presence that reassures the public that they know what they are doing and they have the respect of the men they command. These days, these people are prone to make rash decisions which, quite often, are intended to stamp their authority but, instead, come off as panicky overreactions to minor nuisances. Many of their underlings, meant to offer technical, tactical and strategic counsel, don't have the institutional intelligence to execute public safety policies effectively. So instead, they use the blanket term "national security" as an excuse to undertake public safety policies that undermine constitutional standards at every turn. These are the true authors of such horrors as the killings of Baby Pendo and Willie Kimani.

It is now thirteen years or so since Kenya promulgated a new constitution. In that time, while many State organs have taken steps to inculcate constitutional standards in their policies and operations, the public safety authorities, especially the police service and national security sector, has been reluctant to follow suit. In some cases, there has been active resistance to the constitutional realities of the day. As a result, the relationship between the people and the police authorities has been quite strained and, whenever the people have challenged the authority of the policy, peaceably or otherwise, the police have been given a free hand to crack down and crack down hard. Political freedoms have suffered as a result. If we could address the insecurities of the national security mandarins, perhaps we could prevent future knee-jerk reactions to political activities that rubs them, and their superiors, the wrong way.

Paper tigers and caporegimes

A bureaucracy is known by its ability to establish a specific culture, whether for good or ill, that seeks to achieve the objectives of the bureaucracy, including self-perpetuation and self-replication. A good bureaucracy adapts to changing circumstances. While it will almost always resist change, it will find ways to change while retaining its core identity. The Kenyan bureaucratic state is not known for adapting to change. Certainly not since the abortive coup of 1982.

I don't know if there is a person with the institutional memory and the political intelligence to write an authoritative history of the Kenyan administrative state. I hope there is. And I hope that person is able to tell the chaff from the rice.

But until that history is written, some of us have to do our bit. I have had the immense privilege of serving in little-known agencies and life-altering ones as well. My memories of the work that I did prior to my current station still do me a power of good whenever the spirit is low. My memories of my current station are a mixed bag. Some of that is my fault. I should have known better.

But when I take a step back and look at the bigger picture, I can see that the legacy of Nyayoism is alive and well. When Mr Odinga announced that he would carry forward his anti-government fulminations, I knew that his words would spook the regime of the day. It is advised by some of the least educated men and women Kenya has had the misfortune to be governed by. Mr Odinga might as well as have waved a red banner inferno of an enflamed bull because what he has done to an insecure, uncertain political institution is to remind it that it exists but only for the forbearance of the people it purports to govern (or rule, depending on your perspective).

Signs of the poor administrative chops of the advisors were evident on the day the president took the oath of office. In his speech, which must have been drafted by a small-minded man, he announced a major public policy shift that would have profound ramifications on the security state. The announcement, in and of itself, was not wrong or wrong-headed; what was wrong was the way it was going to be given effect. The president used the words "I shall" where he, ideally, should have used the more malleable "My government shall".

A presidential speech is a mixture of what the president wants combined with what his minders think they can get away with without the president finding out. In this case, uneducated minders put the president on a collision course with the law. The matter was, eventually, addressed but it was the first in a series of bad ideas that don't seem to be reducing.

I do not purport to know what goes on in Kitchen Cabinets but I have been around long enough to know that if your kitchen cabinet is full of chest-thumping my-way-or-the-highway windbags, it is unlikely to offer wise counsel or, in the event that the politics gets a bit heated, have the ability to form an effective war council.

When Michael Corleone chose to fight his war with the other Families in New York, he was wise enough to replace Tom Hagen with Albert Neri. Hagen, Micheal said, was not a wartime consiglieri; Neri was. And it is because of Al Neri that Michael trounced Barzini and his allies and punished Carlo Rizzo for his betrayal. There is a political war afoot; one side has an Al Neri in its ranks but the other side doesn't even have a Tom Hagen to offer counsel. Instead, different capos think of themselves as caporegimes when in fact, they are mere foot soldiers. They don't have the strategic intelligence to make the right moves in a political war.

Instead, you see them making statements that only they understand and appeal only to their own constituents. They paint the other side as, variously, under the sway of witchcraft, bloodlust and imbecility. They deny that the crowds that flock to the other side have agency. Instead, they paint them as unwitting dupes. This is not a message that will resonate with them. It will, instead, piss them the fuck off. Unintelligent and overconfident men tend to make these kinds of mistakes. More broadly, the administrative state has fallen more and more under the sway of these men. As a consequence, routine administrative functions have been undermined. Only the people will suffer, especially those who are vulnerable, weak and poor.