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.

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.

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.