Mr. Omtatah's faith and our rights

Clause (2) of Article 32 of the Constitution states that, "Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance a day of worship." One of the ways one manifests their religion is to wear or display symbols of their faith, for example, like wearing a rosary.

"Every person" includes candidates for political office, such the office of president, the very office Okiya Omtatah is seeking. Not everyone is amused by how Mr. Omtatah's communications team has presented him so far in his exploration of whether or not he should offer himself for election as president. In one of the publicity photographs that accompanied his announcement, he is seen to be wearing a rosary. As usual, people are saying things about it and I am saying things about the things they are saying. QED.

One of the argument goes like this: Article 8 says that there shall be no state religion in Kenya. Therefore, Article 8 limits the right protected under clause (2) of Article 32 because Mr. Omtatah cannot seek the presidency with his religion as key cornerstone of his campaign. This is the wrong way to read Article 32 with Article 8.

First, if Mr. Omtatah proposes to seek the presidency on the basis that he is a good Catholic, he has every right to not only do so, but to campaign on the basis that his presidency will be influenced by his Catholic faith.

Second, what Mr. Omtatah cannot do is to impose Catholicism on Kenyans as a state religion or purport to appoint the Attorney-General, Cabinet Secretaries, Principal Secretaries, the Secretary to the Cabinet, the heads of the national security organs, the Director of Public Prosecutions, the chairpersons of state corporations, ambassadors and high commissioners, merely because they, too, profess the Catholic faith, and that the legislative proposals, statutory instruments, public policies, government programs and projects they initiate will be based entirely on the principles and values of the Catholic Church.

Third, the manner of limiting a right or fundamental freedom protected under Chapter Fourteen of the Constitution, including Article 32, is provided in Article 24. It is not Article 8 that limits the right protected under clause (2) of Article 32. A plain reading of Article 24 will demonstrate this. Three of the grounds for the limitation of a right or fundamental freedom are that the limitation shall be based on human dignity, equality and freedom. The demand that Mr. Omtatah must not profess his faith when campaigning, must not display the symbols of his faith whole campaigning, and must eschew the values and principles of his faith when campaigning, offends his dignity, denies that his reasons for seeking the presidency (if they include reasons tied to to his faith) are not the equal of more secular reasons, and denies himself the freedom protected by Article 32. The demand is unreasonable and unjustifiable in an open and democratic society.

In my opinion, Mr. Omtatah is not barred from seeking the presidency on the grounds that he professes the Catholic faith. That is not a valid ground from barring him from elected office. Anyone who objects to such a public display of religious values and principles that he or she disagrees with should campaign against Mr. Omtatah, by pointing out the risks he or she thinks Mr. Omtatah poses if elected. That person may point out to the harm done by men and women who profess the Catholic faith and why he or she thinks that so long as Mr. Omtatah publicly relies on his Catholic faith to make decisions affecting the lives of other Kenyans he should not be elected as Kenya's president. But there is absolutely no constitutional or legal ground for barring him from seeking the chance to stand in the presidential election.

This, I think, is the trap we fall into whenever we debate these things. We conflate our personal views about a person with sometimes erroneous interpretations of the law and then use this fallacious argument to support a patently wrongful conclusion. There are many Kenyans who are offended by the positions Mr. Omtatah has adopted because of his Catholic faith and his associations with organisations that promote many retrogressive ideas that are based on Catholicism. They fear that Mr. Omtatath's and those organisations' positions and ideas are a threat to Kenyans' rights and fundamental freedoms. If they feel strongly about it, the solution is not to find arbitrary justifications to violate Mr. Omtatah's rights and fundamental freedoms; the solution is to campaign against Mr. Omtatah or to campaign for a better candidate than Mr. Omtatah. That is what clause (2)(b) of Article 10 demands: human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.

Early days

Okiya Omtatah will not save you.

Let me explain.

Our political education seemed to have ended when Daniel Moi's Project was defeated in December 2002. Even after Mwai Kibaki and his acolytes conspired to not just perpetuate the Moi kleptocracy they inherited, but to supercharge it, we seemed to have given up on anything resembling civic mindedness and political education. Things came to a head in the 2005 constitutional referendum where even professors in the academy stated without irony or shame, "If Raila Odinga has read the draft constitution, who are we to read it for ourselves?" as we were shepherded in rejecting the draft Constitution.

Today, we are confronted with the desire in certain quarters to put Mr. Omtatah forward as Kenya's Sixth president in 2027. On the strength of his activism, especially the public interest litigation cases he has successfully prosecuted, Mr. Omtatah certainly has the approval of many Kenyans. His is not burdened by a history in which he was a full-fledged member of the Kanu eating classes or a beneficiary of the Kibaki lootocracy that robbed Kenyans of their second chance at political success. He was the thorn in UhuRuto's side, and his bona fides during the anti-BBI era are plain to see.

But we know very little about him and his leadership credentials. For sure, his successful election as a senator point to some of it, but the fact that he does not appear to have sponsored any Bills in the Senate is not encouraging. But more importantly, he has demonstrated that he prefers lone-wolf tactics, and refusing to participate in the messy horse-trading characteristic of legislative processes the world over. This may be a good thing, but I don't think so.

On one hand, he has stuck to his principles and has done everything in his power not to compromise them, even if means that he will not be credited with any legislative programme in the Senate. He can rely on the argument that legislating is the collective responsibility of ALL parliamentarians, and not just the sponsors of Bills. On the other hand, even if legislative is a collective responsibility, individual parliamentarians are expected to sponsor Bills to advance the issues their consciences and principles declare to be for the public good. Those Bills, if they receive the support of other parliamentarians, are proof that one has the capacity to work with even odious people in advancing a people-centred agenda. This does not appear to be Omtatah's style, hence his reliance on public interest litigation and his eschewing of legislative processes. It begs the question: why sit in Parliament if he is unwilling to act as a parliamentarian?

The second issue revolves around whom he has surrounded himself with in his political work. Little is known of his National Reconstruction Alliance Party of Kenya beyond the registration status with the Registrar of Political Parties and the annual reports by the Auditor-General on the finances of the party. Much is known of his stance on the Government's budget and human rights, but little is known about his positions on labour rights, universal access to education and healthcare, youth employment, environmental degradation, public investments, and dozens of other subjects for which a president must have more than a passing familiarity with. Moreover, little is know about what the people surrounding him think or have said about these issues.

Consequently, many Kenyans treat him as a tabula rasa, ascribing to him their own biases, without wondering at all if he will stand by them or pursue a different path. You can see this confusion manifesting itself in the many positions being adopted by people regarding his putative candidacy. There are those who support him regardless of what his positions are and are being mocked for their naiveté, and there those who wish to know more who are being shouted down for their scepticism.

The truth of the matter is that it is still too early to even conclude that he will be a presidential candidate in 2027. A great deal of work is still to be done to flesh out his political identity outside of anti-Finance-Bill litigations. Perhaps the establishment of the exploratory committee will provide greater insights as t who Okiya Omtatah the Politician actually is and whether that is a man Kenyans can vote for in 2027.

Mr. Omtatah's homework

In 2016, Miguna Miguna offered himself as a candidate in the general election. He sought the office of the Governor of Nairobi City County. He participated in the campaign by appearing on TV shows, publishing long-winded screeds on social media (particularly Twitter and Facebook) and making public comments on a rash of political questions of the day. His campaign would not be described as a softly-softly hearts-and-minds one; he relied on a sharp wit and a sharper tongue to excoriate those who dared to challenge his political bona fides. In the end, his campaign failed out in spectacular fashion and Mike Mbuvi Sonko was elected as Nairobi City's second, and epically disastrous, Governor.

Today, Okiya Omtatah has appointed an exploratory committee to "gather, analyse, evaluate, and act on information on the viability of the Senator's presidential bid for the August 2027 general election". Mr. Omtatah represents Busia County on the Senate as a member of the National Reconstruction Alliance Party of Kenya. I don't think I have ever heard of that political party; I don't know any of its other officials, or even if Mr Omtatah is its only representative in Parliament. So, it is enough to say that Mr. Omtatah has a long road to State House ahead of him.

Mr. Omtatah starts with one advantage over Mr. Miguna; very few people actively hate him. He is popular among a diverse group of online constituents and, obviously, in Busia from whence his senatorial campaign bore fruit. Many of his public positions have the support of professional associations and the political actors. Indeed, his reputation as a fighter for the people is unrivalled; only the Katiba Institute appears to have the same level of public legitimacy for the public interest litigation it engages in, a ball that was truly set rolling by Mr. Omtatah. Millions of Kenyans thank Mr. Omtatah for delaying the draconian taxes imposed under the Finance Act of 2023.

Therefore, Mr. Omtatah comes to this campaign with many positives in his favour. However, he is not a superman. He cannot do it all because he does not know it all. One of the things for which his knowledge still has large gaps is how the machinery of government truly functions. A perusal of many of the pleadings he has filed in many of his suits against the Government will show that he has a superficial understanding of the machinery of the Government but a fundamental lack of appreciation about its complexity.

If he is to offer himself as a viable chief executive of the Government, he must educate himself on how the Government is run, why some pieces of it are efficient and effective and others are wasteful and corrupt money pits. Not all Government institutions are the same, or equal, or suffer from the same malaise. In order to  know whether reform is possible, he must know what is reformable and what must be eradicated root and branch. He must resist the urge to buy Parliament or the Judiciary, something no president has successfully been able to do since Jomo Kenyatta engineered the 1964 constitutional amendments that turned Kenya into a Republic.

Mr. Omtatah is intelligent but he is also a parliamentarian, where intelligence sometimes is sacrificed at the altar of expediency. The horse-trading among parliamentarians is how so much of the peoples' interests receives short shrift. It is also notable that Mr. Omtatah has not used the parliamentary process to advance any of his pet projects; the Senate website indicates that he has not sponsored a single Bill on any subject, even his pet subjects of fiscal probity and tax justice. This is not reassuring. Every president needs to know how laws are made and why bad laws are enacted and good laws are sabotaged.

I don't know if Mr. Omtatah's committee will recommend that he moves forward in his bid for the highest political office in Kenya but I hope that if he does, he does the necessary homework to know how to govern, when to rule with ruthlessness and when to use a light touch to get shit done. If he doesn't do his homework but is nevertheless elected, his will be a tumultuous and tempestuous presidency, more than that of his predecessors. Mark my words. Kenyans are no longer interested in presidential dilettantes; that ship went down in flames in August 2022.

In Kenya, we don't abolish empires

The Government is in the empire building business, not the empire killing business. I saw an interesting tweet: I am getting to that point whereby I’ll vote in anyone who vies and promises to stop Housing Levy and SHIF deductions. I immediately saw the flaw in the wish: your candidate will stand in the election and promise to abolish the Affordable Housing Levy (AHL) and Social health Insurance Fund (SHIF) deductions but the moment he takes office, he will abandon his promise and, instead, find a million ways to make you comply with the law. Let me illustrate with a story about the consequences of the Constituencies Development Fund (CDF).

When it was initiated in 2003, it was meant to facilitate greater citizen involvement in development decisions at the grassroots level, and complement the central-government-led development framework that revolved around the corrupt provincial administration. It was a resounding success in its initial stages and many citizen-focussed development projects were completed that immeasurably improved lives and livelihoods.

The model was thereafter expanded to youth enterprise development and women empowerment with establishment of the Youth Enterprise Fund (YEF) and the Women Enterprise Fund (WEF). These were later followed by the Uwezo Fund and National Government Affirmative Action Fund (NGAAF). Suffice to say, the Funds succumbed to the corruption that eventually took root in the Kibaki Government and they have concisely lost billions for years with little to no accountability.

Facing a severe cash crunch, in 2019 Uhuru Kenyatta's Government attempted to roll all the various enterprise funds into one, the Biashara Kenya Fund, and wind up the other funds by transferring their balances into the new one. Parliament was having none of it. The Funds had become empires unto themselves and nothing short of an act of God is going to wind them up. This is true of the Affordable Housing Levy and Social Health Insurance Levy.

The monies raised by the two new programmes is so enormous - tens of billions of shillings per month - that no one in the national executive or Parliament is interested in winding them up. So long as this Government stands and so long as its parliamentarians enjoy a majority in the National Assembly, Kenyans will pay through the nose for "affordable housing" and "social health insurance" even if the majority will never get an affordable house are receive comprehensive social healthcare.

The only time the Government abolishes one of its empires is when it is replacing it with another bigger one. The original NSSF was replaced by a new NSSF. NHIF was replaced by SHIF. CDF was replaced by NG-CDF (and all this in the face of judicial decrees). If Biashara Kenya had been structured as two replacements for YEF and WEF instead of one, it would have gone through without a hitch. The AHL and SHIF empires, with all their inequities and iniquities, are here to stay.

The false dream of a national dress

Every once in a while, someone with little to no business about it tells me how to do my job. They ("they" are people with a bit of power and, perhaps, a bit of seniority, but very little technical ability, if any) look over my shoulders as my fingers flit, with nimbleness and confidence, over my very expensive mechanical keyboard, and attempt to tell me what to draft (and much, much worse, how to think about a legislative sentence). Those kinds of attempts are made only once by these sorts of people and they never darken my door again. One even had the temerity to try and pull of an appeal to authority fallacy on me. Anyway, this is not about my challenges dealing with the professionally feeble-minded in my profession but about the "Kenya National Dress", a national government cultural boondoggle that has consumed tens of millions of dollars for dogs' years with nothing to show about it.

The Government has tried on many occasions to impose on the Kenyan peoples a national dress. It has failed. The Government has made these failed attempts because its instinct to control every aspect of the Kenyan peoples' lives, especially their cultural lives, has endured from the moment a white man set foot on the shores of Nam Lolwe and decreed that the bare-breasted women of the Kavirondo should cover up because he felt some type of way. Rather than educate himself on the culture and lives of the peoples he encountered, mzungu imposed on the "native" peoples his culture and enforced his cultural norms with a combination of biblical interpretation and coercively violent police power. The Government has carried on this tradition without batting an eyelid, explaining the obsession with a "national dress". So long as the effort for a national sartorial identity is driven by the Government, the effort will fail abjectly.

The several state-sponsored institutions of high learning employ cultural scholars of no mean repute who have documented so much of the Kenyan peoples' cultural histories. Even in the grasp of an overweening government that sought to police how they could write what they wrote, these men and women have published truly ground-breaking work on what the peoples of the land that eventually became Kenya spoke, did, ate and dressed in, and why. Bethwell Ogot's truly magisterial "A History of the Luo-Speaking Peoples of East Africa" is indicative of the gifts our historians are capable of bestowing on us if the government kept its grubby controlling fingers out of the kitchen.

Government ministers, and the mandarins they command in their ministries, are not scholars, though these days the corridors of the national and county executives are festooned with men and women brandishing PhDs (both real and honorary) like weapons. But these people are not employed in the government because they are scholars; they are employed in the government because they are (or are capable of being) able administrators. Their output is not composed of scholarly works but rules, regulations, policies and a mysterious document called a budget. So it beggars belief that government ministers (and their minions) think they have the cultural intelligence to supervise the development of a "national dress" that will unify the over fifty cultural traditions that are to be found in the borders of the Republic of Kenya. This kind of arrogance is why many Kenyans have lost faith in the senior-most ranks of the public service, and more and more Kenyans are treating the entire public service like a nuisance at best and an invasive cancer at worst.

The government, this Government, exists to control the people it is supposed to serve. It has long-struggled to cede control to the people despite the bold declaration in Article 1 clause (1) of the Constitution that states that All sovereign power belongs to the people of Kenya. And so, tens of millions of dollars more will continue to be wasted as ministers and ministry wankers look high and low for inspiration to create, finally, the Kenya National Dress and parade it in all the runways of the world. That kind of arrogance beggars belief. In the face of thirty years of abject failure, these people are still forging on in search of an elusive, unattainable dream. To paraphrase Henry II, will no one rid us of this pestilential and wasteful white elephant?

Will the Koome Court ever achieve greatness?

I saw an astonishing series of social media videos yesterday: the Judges of the Supreme Court gravely and seriously declaiming about the jurisprudence of the Court. Then the members of the Court, led by its president and deputy president, presided over a televised spectacle at which Chief Justices emerita and the leading lights of the executive, the President and Deputy President, were in attendance, and the subject du jour was the twelve years of jurisprudence by the Court. The PR game has finally alit at the Supreme Court of Kenya.

The judiciary of Kenya has a long and complex relationship with the peoples of Kenya, the complexity revolving around the way the judiciary was used to dispossess Kenyans of their property, violate their rights and fundamental freedoms, entrench human rights abuses within the fabric of the justice system, and perpetuate and sustain two dictatorships in rapid succession (three, if you count the tyrannical dictatorship of the colonial government).

The promulgation of the new new constitution in 2010 was supposed to be the birth of a new judicial dawn. Just as the defeat of Baba Moi's project was supposed to be in December 2002. Instead, the Kibaki era gave us the Radical Surgery that was neither radical nor surgical. And the Uhuru Kenyatta era gave us Judicial Vetting that did very little actual vetting. The outcome, in both epochs, is the sad realisation that "independence" as understood in Kenya is the independence to spend public money on projects of doubtful value without oversight or control.

From the moment the Ministry of Finance handed over the Income Tax House to the Judiciary, and it was repurposed as the Milimani Law Courts, the Judiciary has been spending our money like drunken sailors on shore leave. Willy Mutunga, CJ emeritus, supercharged the profligate squandering of public funds with his expansive real estate projects in the name of construction of law courts to bring justice closer to the people. For sure, the courts came to the people, but justice remains just as elusive.

David Maraga, CJ emeritus, was more successful in his efforts to bring justice closer to the people. Despite the reckless sabotage by the Law Society of Kenya, he set in motion the rollout of the Small Claims Courts that will have far greater impact on the lives of litigants that the seventy or so new law courts that Dr. Mutunga built.

The incumbent Chief Justice does not have a real estate empire to build or a brand-spanking-new judicial paradigm to shift. The judiciary she heads is a grab bag of judges who have found lawyerly arguments to get around their obligations to make judgments in the best interests of the child (that means you Mr. Chitembwe) or have not had the best luck staying out of political contestations (as ex-DP Riggy G can attest). All that she is left with is a strong desire to be seen to do something, anything, even if it means publicity that is inexplicable and confusing.

Even the most dull-witted and uniformed Kenyan knows the case of Roe v Wade. A few of the more ambitious among us can give a solid explanation of the holding in Giella v Cassman Brown. Heck, I was in Nanyuki in May and one of the nicer servers at the hotel I was staying in had very strong opinions on the Muruatetu Case. Despite Willy Mutunga's real estate shenanigans, his Supreme Court set precedents that we shall cite for decades. The current Supreme Court, alas, will be reduced to PR as it waits for a real case to come before it. And that is its tragedy: it is seeking the chance to be a consequential court and in its desires, it is making mistakes that will cost the Court its legitimacy in the long run.

William Shakespeare remains the source of many, many quotable quotes. This one from Twelfth Night is apposite: Some are born great, some achieve greatness, and others have greatness thrust upon them. The Koome Court was not born great. It can only hope to achieve greatness if it steels itself against the temptation to seek greatness in the political wilderness. But it is mistaken if it thinks that Kenyans, and the politicians Kenyans have elected, will thrust greatness upon it. The PR stunts of the past week are not the way to achieve greatness.

Kenya is not the Occupied Palestinian Territories

When the British arrested the men they accused of being the leadership of Mau Mau in 1952, imposed a state of emergency over Kenya Colony, and waged a brutal campaign against Kenyans, there is no doubt in my mind that what Kenyans did to resist the British crimes was not just justified by also morally right. The Kenyan collaborators who were murdered deserved to be killed; after all, because of their actions, Kenyans had been killed in sometimes very heinous ways. The resistance by the Palestinian people against the crime of the Israeli Occupation Forces, including the targeting and killing of Israeli civilians, is justified and morally right.

Any person who tries to compare the corrupt edifices of the Kenyan state to the British colonial government or the Israeli occupation of the Palestinian Territories is not a serious person. I understand how decades of frustration have led to many Kenyans, in their despair, to seek the short cut of murder, violence, mayhem and chaos. In my opinion, they are wrong.

Kenya has had two false starts in the past twenty five years: in December 2002, when Mwai Kibaki was elected as president, and in August 2010 when Kenya promulgated a new constitution. The Kibaki regime made many positive strides towards rebuilding the institutions of government but just as equally, swiftly reversed those gains and supercharged the corruption of the state to unforeseen levels. It was no longer grand corruption; it had morphed into grand looting.

The date of the promulgation of the Constitution - the 27th August, 2010 - was the last time that the new constitutional order was respected, defended, upheld and protected by anyone of consequence in the government. The past fourteen years have seen dedicated efforts, sometimes at the highest levels, to ensure that the values and principles of the constitution have been undermined, subverted and desecrated. Because of these anti-constitutional efforts, fewer and fewer Kenyans have faith in the institutions of government to deal with the entrenched culture of corruption and impunity, whether it is in Parliament, the Judiciary or the executive at both national and county levels. Today, more and more Kenyans have concluded that only the capital execution of the corrupt is the solution. They are no longer interested in the hard work of building, sustaining and nurturing state institutions.

To justify their position, the kill-the-corrupt forces point to the the knock-on effects of corruption from lack of life-saving medications in hospitals to the poorly-designed public infrastructure that lead to the deaths of Kenyans. Some have even go so far as to suggest that the regular Chinese government's habit of executing hordes of corrupt public officials after short show trials may just be the way for Kenya to go. What these people ignore is that so long as they keep the structures of the government unchanged, killing civil servants and politicians will not stop, or slow down, corruption in the government.

Kenyans' suffering because of the corruption of Kenya's public officials is not remotely the same as the destruction of the Palestinian people at the hands of the Israeli Occupation Forces. One is the natural outcome of a disaffected population that is disinterested in national building. The other is the natural outcome of colonialism and racial apartheid. The solution to the former is the reintegration of the people in national building. The solution to the latter is armed resistance. It would pay if Kenyans understood the difference.

Constitutional shibboleths and social media animus

It is a fraught exercise to bring strong opinions on Twitter. Those with whom you may have interacted with previously, and who have become reliable responders to your 280 character musings, will not find it unusual that you may sometimes state things in a certain way. The vast majority though, might react in less-generous ways. Particularly when you find it very difficult to go along with their very wrong takes on the Constitution. Or the Standing Orders of each House of Parliament. Or the role of the Attorney-General when it comes to the legislation-making powers of the Government.

For example, some might not respond favourably when you point out the obvious: Articles 255, 256 and 257 collectively deal with the amendment of the Constitution. Article 256 deals with amendment by parliamentary initiative. Article 257 deals with amendment by popular initiative (of which much was heard during the halcyon days of the BBI fiasco). Article 255 decrees which constitutional amendments must be subjected to a referendum.

The Senator leading the Nandi County delegation in the Senate proposed several amendments to the Constitution. Four of them are particularly important. The proposed amendments to Articles 101, 136, 177 and 180, would have the effect of extending the term of Members of Parliament, the President and deputy President, members of county assemblies, and Governors and Deputy Governors from five years to seven years. Crucially, he does not propose any amendments to Article 142(2) or 187(7), to limit the term of the President and Deputy President, and Governor and Deputy Governor to one term only.

Someone on Twitter said that the introduction of the Constitution of Kenya (Amendment) (No. 2) Bill, 2024, in the Senate was an attempt to escape the requirement for a referendum on the amendments relating to the term of these elected State officers. I pointed out that this was incorrect; that regardless of whether the proposed amendments were through parliamentary initiative or popular initiative, they would still require to be ratified at a referendum. They (and some of their acolytes) were not amused.

It is a consistent occurrence that when people speak on the Constitution, many forget to read the provision they are speaking on with other related provisions. In this case, the fact that the senator had said nothing about a referendum was taken to be his intention to evade the referendum, forgetting that the referendum would be done, regardless of whether the senator said anything about it or not. If the four amendments were not subjected to a referendum, they would not become the law of the land. It really is that simple.

Then came the inexplicable allegation that the Attorney-General, in addition to being unqualified to hold the office of Attorney-General (which she definitely is), had refused or failed to advise on the propriety of the Bill. This flies in the face of Parliament's powers under Article 94(5). Only Parliament can make law in Kenya. The mandate of the Attorney-General under Article 156(4)(a) as the principal legal advisor to the Government does not mean that if the Senate does not seek the Attorney-General's legal advice before proposing amendments to the Constitution, the Attorney-General cannot render such legal advice after the Bill has been published on the propriety of proceeding with the Bill. The advisory power of the Attorney-General can be exercised at any time.

In any case, in my opinion, the proposed amendments are not "unconstitutional"; if the two Houses of Parliament pass the amendments with the necessary thresholds at each stage, and the amendments are affirmed at a referendum, then there is little that the nay-sayers can do about it other than challenge the process in the Constitutional Court. After all, the constitution, including constitutional amendments affirmed at a referendum, are the ultimate expression of popular will, no matter who proposed the amendments or why the amendments were proposed.

I don't believe the four amendments are going to pass in either House or, if they do, that they will find support among the people at a referendum. No one wants elected state officers to pitch camp for seven years without seeking a fresh mandate from the people. But the debate that the amendments have elicited, particularly the ones dealing with the presidential term, have successfully obscured consideration of the implications of the other amendments, like the one to Article 96(3) on the Senate's oversight over national revenue allocated to county governments. The proposed amendment would render the role of county assemblies moot, undermining devolution in the most destructive way possible.

I am not claiming that my views on the Bill, or the role of the Attorney-General in its consideration, is infallible or unassailable. They definitely are. But what challenge you mount against them can't be, "Please just stop", only because I have not adopted a shibboleth that you intend to defend beyond all reason on account of an ill-explained animus against a State officer.

Conservative? What a joke.

I can't remember when he said it, but Kenya's first Leader of the Majority Party, in one of those strange political rallies he was fond of attending so that he could pledge fealty to his Dear Leader, once declared The National Alliance (or was it the Jubilee abomination it eventually morphed into?) to be Kenya's Conservative Party, with the same ideological leanings of the US's Grand Old Party and the UK's Tory party. He didn't say that he was a conservative; only that he was a member of a Conservative Party.

In this week's Sunday nation, the Governor of Murang'a declared that he is a conservative, leading into the same "small government" predilections of Ronald Reagan and Margaret Thatcher. Kenyan politicians are an astonishing group of people.

It is now safe to say that Kenya's politics is no longer moored to any kind of ideological framework. It is concerned, mostly, with taking money from the masses and wasting it on white elephants and thereafter, distracting the hungry, jobless masses that the reason their lives are so difficult has something to do with "corruption" and "tribalism". The declaration, "I am a conservative" or "My party is a Conservative Party" is the political system dipping its toe in the pond to see whether or not the people will fall for that shit because if the people do, indeed, fall for it, then they can watch as ever greater trillions of shillings are poured down the drain of "development" even as their lives continue to suffer degradations of unimaginable scale.

One of the most injurious things that Kenyans have done to themselves in the name of the Second Liberation is to separate the masses from national political institutions, particularly political organisation and political parties. Political decisions, particularly the choice of legislature candidates and allocation of scarce tax shillings, are now made by a tiny cabal that is not motivated with the greater common good. The most effective way to separate the people from their government has been to separate people from the toys they need for their political education, including music, theatre, sculpture and fine arts.

When Kenya's winning long distance runners returned from the Paris Summer Olympics in triumphal form, they were confronted with one of the most hideous sculptures ever foisted on an unsuspecting public. It was a statue of woman marathoner, put together in the most slapdash way imaginable, and placed installed in the dead of night, to be sprung upon a people who could neither process the insult nor work out how to punish the offender.

What I found interesting is that the discourse around the crass demonstration of the indifference that the state and its agent's treats the people was how the one of the reasons the statue was removed from public view without an explanation was that foreign capitals, particularly in the United States, have celebrated Kenyan athletes in deeply meaningful ways. The sculpture was removed because it made Kenya look bad in the eyes of the world; not because the asshole that had ordered its installation was even remotely remorseful for his crime.

So while Kenyans' minds are slowly poisoned against any kind of learning and political education, and the wool is pulled over their eyes with rambunctious "debates" about the "impeachment" of un-useful state officers, the more cleverer of that perverse class introduces ideas about political ideology that they neither understand nor know how to explain to the people they purport to lead. Kenyan political parties lack any form of political ideology so how could the politicians who sit atop of that pile of empty briefcases claim to possess political ideologies of any kind? These men have failed to empower the people they govern to participate fully in political decision making and in order to hide their inadequacy, they try and paint themselves as Margaret Thatcher or Ronald Reagan when in actual fact they are the caricatures portrayed by Mr. Bean and Benny Hill.

The powerful keep making terrible mistakes

No one seriously thinks that the law is deployed for the benefit of the people anymore. It is almost exclusively used as a cudgel to beat submission into the thickest of skulls, particularly the thickest skulls of the young people challenging systems of power and oppression. What little lawful behaviour that occurs in day-to-day life is only by chance. The legal systems and frameworks we have to day only exist to ensure that the State, and those who benefit from the use and abuse of State power, continue to be preserved, even if it means it is at the expense of the weak and vulnerable.

What w have come to describe as the international humanitarian law lays bare the abuses of the powerful and the desperate attempts at survival of the weak and vulnerable. In Palestine, the Palestinian peoples have endured near-starvation at the hands of the Israeli Occupation Forces for the last twenty-five years. The international community has stood by and watched as international humanitarian law has been debased by the Israeli Occupation Forces. And when the international community as intervened, it has been to provide more and more destructive bombs to the Israeli Occupation Forces with which to conduct a systematic destruction of the Palestinian people.

This kind of violence is witnessed at national level too. In India, Hindutva, the supremacist ideology adopted by the ruling coalition in the central government, has been used to target Muslims and Dalits with increasing violence. Constitutional changes have been rammed through the Indian Lok Sabha to deny the Muslims of Kashmir any semblance of self-determination. In dozens of cities, towns and villages, Dalits have been assaulted and murdered on false accusations of cow slaughtering. In both instances, the law has been useless in preventing the atrocities being visited on minorities in India.

In Kenya, marginalised communities have been on the receiving end of environmentalists and environmental law. They have been violently pushed out of their lands in the name of environmental conservation. It is irrelevant that their traditional land use systems have preserved and conserved the environment better than than the modern fortress-like systems being deployed against them today. Because they do not have the population and money needed to push back against their oppressors, they have been reduced to subsistence levels so desperate that they have little or no energy to fight against their plight.

It used to be that there was a. pretence at enforcing the law equally and equitably. That pretence no longer obtains. The exploited can no longer rely on the law to offer them protection or restitution. And when they take their case to the streets, the law is used as a weapon to kill and maim with impunity. If the powerful have their way, even the idea of protest will be illegal. However, the powerful have made a terrible mistake.

The UK had the Gundpower Treason and Plot. The French had the Revolution against their oppressive nobility and beheaded the lot of them. The North American colonists, after their genocide of the First Nation, rebelled against their oppressive king. The United States, against all odds, faced the Black Power movement of the 1960s and backed down. More recently, Bangladesh has exiled its oppressive Prime Minister and Sri Lanka toppled its oppressive president. Sooner or later, the weak and vulnerable will have their backs against the wall and the only choice before them will be death or rebellion. No one willingly chooses death. Sooner or later, systems of oppression are rend asunder. It is never non-violent.

Listen to what Gen Z is saying. Hear them.

Kenyan Gen Z seized the moment that was made for them and threw down the gauntlet at the feet of the Kenyan State. With the memory of the bitter betrayal by Parliament in 2023, Kenya's youngest adults were not going to let the Finance Bill mortgage their futures to an economic promise they had every reason to believe would not be kept. The signs that they were onto something were everywhere, least not being the details of the Finance Bill itself that proposed to tax the ever living snot out Gen Z even before they had a chance to earn a proper living.

Gen Z members of Parliament were offered the opportunity to keep faith with their brethren outside Government, and some of them didn't have the backbone and moral clarity to take a stand. One of the most disappointing parliamentarians is Linet "Toto" Chepkorir. When called upon, she had little of use to say about the Finance Bill and voted for it at the Second Reading. She had shown so much promise when she campaigned for the Woman Representative seat of Bomet at the last general election but since taking office, she has behaved in the same exact way as the venal and avaricious old-timers she found in the Augean Stables that are the chambers of the National Assembly. Should the opportunity present itself, the good and sensible peoples of Bomet County should recall her from office and elect someone else with a better moral fibre.

However, regardless of the way parliamentarians continue to betray the youth of Kenya, Gen Zs appear to be taking their first definitive steps in shaping their now destiny, and the protest they have mounted against the Finance Bill appears to have their full-throated support, even if it might end in tragedy, as the police killing of Rex Kanyike Masai shows. They do not appear to be in a mood to back down and the arguments they have marshalled against the Bill continue to discombobulate senior officers of the Government.

The President appears to find himself in the same uncertain place his predecessor did in the end-stages of their first term. He has articulated his economic recovery plans for the nation on many occasions in many forums, but few people seem to believe him when he says he has the people's interests at heart. Certainly, going by the rageful language deployed by some of the anti-Finance-Bill protesters, Gen Z does not take the President at his word and would rather the Finance Bill in its current form be binned and everyone starts the budget process from scratch. They are not necessarily wrong.

Well-meaning "adults" with very good English have been deployed across many media platforms to explain why Gen Z is wrong about the Bill, about the economy, about the President and about the Government's economic plans for them. We have been reminded about the "deadline for passing the budget" and terrorised with threats of dire consequences if the "budget is not passed on time". This kind of scaremongering is quite tedious, to be honest.

If we fail to pass the budget by the 30th of June, I promise you, the world will not end and Kenya will not die. The Government will face serious difficulties in its spending plans, but I promise you, really, the Government will not fall, the sky will still be up there, and the men and women wringing their hands in fear will adjust. Search through the text of the Constitution and I promise you, there is no mention of a June 30th deadline or a mandatory requirement to enact an annual Finance Bill. The only constitutional requirement regarding the Government's spending plans is that they must be approved by the National Assembly. The only Money Bill that MUST be approved by Parliament in order for the Government to spend taxpayers' money is the Appropriation Bill.

Do not miss the forest for the trees. The Finance Bill is not THE tax law. The tax laws are the Value Added Tax Act, Income Tax Act, Excise Duty Act, Miscellaneous Fees and Levies Act, East African Community Customs Management Act and the Stamp Duty Act. They are the laws that impose taxes on income, business activities and commodities and services bought, sold, imported into and exported out of Kenya. The Finance Act is merely a tool for varying and changing the rates of tax. That's it. 

If the tax rates remain unchanged year on year, the Government will not fall. It's will still continue to collect tax. The only thing it will need to spend those taxes is the approval of the National Assembly - given through the Appropriation Bill. So, perhaps, we should listen to Gen Z. They may have none of the sophisticated English being deployed against them, but they are saying something worth listening to.

The law will kill public participation

The Constitution imposes an obligation on the State to facilitate the participation of the people in governance, law-making and policy-making. This obligation is articulated in Article 10, Article 118 and Article 232. The Constitution does not mandate that a law be enacted to provide for the manner in which the participation of the people shall be facilitated. In my opinion, it does not require a law for the people to participate in governance, law-making or policy-making.

It is not always good idea to legislate the implementation of the obligations of the State. Laws are terrible tools; they limit you to what is enacted, and they can, quite often, prove very inflexible when they are being interpreted, applied, administered or enforced. Despite the lack of a written public participation law, Kenyans have forcefully inserted themselves in the affairs of the Government. The most obvious way that they have done so is through public interest litigation. But maandamano, with the police beatings, shootings, and malicious prosecutions that ensue, have proven a much more effective form of participation of the people, one that has compelled the Government to concentrate its mind in ways that have been very disconcerting and uncomfortable.

I am not opposed to legislation; but seeing the way legislation has been watered down, ill-drafted, mutilated by amendments, undermined by official disinterest and damaged by constitutional petitions, legislation almost always has unintended effects that negatively impact the stated object of the legislation. If Kenya enacted a written law on participation of the people, it is almost certain that the law will be hijacked by the Government and the overall object of fostering transparency and accountability in governance, law-making and policy-making will be severely watered down. Just look at how difficult it is to recall an elected parliamentarian despite the fact that there is a whole written law for that purpose (Part IV of the Elections Act, Cap. 7).

It is not the law that confers on us a right to participate in the affairs of our government; it is our inherent citizenship which the State can neither deny nor revoke that confers on us that power. We are sovereign, regardless of what the legislation enacted state, and our sovereignty grants us the right to weigh in on any matter of national importance without mediation by an Act of Parliament. Attempts to legislative the form of the participation of the people (or the consequences of that participation) will lead to one inevitable outcome: the criminalisation of specific acts of participation that the State has attempted, in various forms, to abrogate and suppress. Worse, where the outcome of the participation of the people is programmed into the legislation, we will spend so much time on the technicalities and administrative nature of that participation that we won't notice that we have lost sight of the forest for the trees.

In Kenya, the way in which laws are designed is intended to undermine fundamental freedoms and rights of the individual, especially when it comes to any attempt to hold State officials to account for their acts of commission and omission. What many citizens believe will be a boon to public participation will come to haunt them if it is enacted. Instead, I would advice that the process of engaging with the State, its officials and its institutions should proceed without any of the shackles of an Act of Parliament but instead through the development of a civic culture (and a robust public interest litigation tradition).

We need to learn, again, how to think

I don't think the parliamentarians of the National Assembly will heed the call and #RejectFinanceBill2024. They will tinker. They will vacillate. They will fulminate fulsomely. They will vamp for the cameras. But they will absolutely, definitely not reject the Finance Bill. They will, instead, vote overwhelmingly for the tax proposals contained in the Bill. Not one tax will be rescinded. Not one exemption that has not been approved by the grandees of the IMF will be granted. The hundreds of billions that the National Treasury is looking to raise from the Bill is all that will occupy the minds of the worthies of the National Treasury.

The challenge that the prospective maandamano face tomorrow has been occasioned by a poor understanding of the budgeting process and deliberate vagueness by the mandarins of the National Treasury. More and more Kenyans are familiarising themselves with the ins and outs of the Public Finance Management Act on which the budget process relies. They have a working understanding of when the Finance Bill (and the accompanying budget documents including the Appropriation Bill, Estimates of Revenue and Expenditure, Budget Policy Statement and Budget Review Outlook Paper) is supposed to be introduced in the National Assembly.

But they don't have working knowledge of how and when the tax proposals contained in the Finance Bill are made. They'd on't know who is consulted or how. They don't know how the nabobs of the national government pick which tax proposals to adopt and which ones to bin. They have no idea how the President's Council of Economic Advisors pick which industries to promote, which ones to let sink or swim, and which ones to roll back. They don't know whether or not the decision to impose a new tax is a legal issue or an economic issue. All they know, for now, is that the Budget is sent to Parliament on the 30th April of each year and enacted not law on the 30th June of each year.

That kind of ignorance is unhealthy. It allows conspiracy theorists with axes to grind to plant disinformation and misinformation, foment disaffection among the people not just for their government but their fellowman, and spread chaos abroad in the land. It is an historical irony that in the digital age, so many more people know so little about their government and how it functions.  With so much information at our fingertips, literally, it is amazing how easy it is to sow confusion by dropping a few tasty conspiratorial statements into the ether and watch an entire nation freak out over shit they should absolutely, definitely ignore.

When it comes to matters which we must hold our elected and appointed government officials to account, we need to be more strategic and intentional in which information we focus on and what we ignore. This is made harder when every institution designed to educate and inform has been hollowed out by greed and corruption. It falls on individual effort, but that effort is so much the harder when we are bombarded with distractions all day long. #RejectFinanceBill2024 has in all certainty been infested by the forces of chaos and confusion. While it will go off without a hitch (taking into account Kenya's rung-wielding police tendencies), it will not lead to an abrogation of the Finance Bill. It would behoove us to teach ourselves, afresh, how to think.

Omtatah's legacy

Senator Okiya Omtatah Okoiti, MP, has contributed immensely to the principle of participation of the people as contemplated in Article 10 of the Constitution. Through his public interest suits in the Constitutional Court, he has helped to demystify what the State can and cannot do. In the years since he was elected as senator, he has turned his public-spirited focus on the national Budget. Whether or not he has a firm understanding of the constitutional and statutory framework underpinning the budget process is irrelevant; he has compelled the Government and citizen alike to pay attention to sometimes hard to grasp concepts relating to the raising of national revenue, the appropriation of public funds, the allocation of public money to public goods and services, and the role of the citizen.

His success in the Constitutional Court in 2023 is a testament to how much even the Judiciary has come to appreciate the role of the citizen in budget-making. The injunction on the implementation of various sections of the Finance Act, 2024, have concentrated some minds, while others are still stuck in the pre-2010 constitutional past, where they imagine fiat is all that is needed to get things done.

In 2023, when the National Treasury proposed the "affordable housing levy", bar one or two misguided trade union bosses, Kenyans rejected the levy in toto. They said so unequivocally. The Finance and Planning Committee of the National Assembly pretended to take the people's objections to heart. But rather than remove the offending proposed law from the Finance Bill, they made it even more draconian: a mandatory tax without even the possibility of a refund or the certainty of access to an affordable house by the taxpayer. That dishonesty is partly why the High Court declared the affordable housing tax to be unconstitutional and annulled it. The Court of Appeal after the traditional period of stay of orders pending appeal had lapsed, was not convinced to extend the stay, and the offending tax was abolished. It has resurfaced as a law unto itself (and Sen. Omtatah is fighting that one as well in the Constitutional Court; may he taste victory once more and have the Affordable Housing Act, 2023, annulled by the Constitutional Court, again).

In 2024, seemingly without having taken heed of the lessons of 2023, the National Treasury has proposed a motor vehicle tax (previously christened "motor vehicle circulation tax"). The rate is set at 2.5% of the value of the motor vehicle, with a floor of 5,000 shillings and a ceiling of 100,000 shillings. Every single Kenyans who has been asked (bar one or two truly misguided souls) has rejected the tax, the rationale for the tax, and all exhortations to see it as a net-positive good. The Finance and Planning Committee, once again, pretends to care to listen to the vehemence expressed by Kenyans against the proposed tax (and all the other retrogressive tax proposals contained the Finance Bill, 2024). Kenyans await with bated breath the Report of the Committee on the Bill that is going to be tabled in the National Assembly at the Second Reading.

What is becoming increasingly clear is that Kenyans are taking ever keener interest in how the Government makes decisions. While the organs of Government are yet to fully embrace more direct participation of the people in their affairs, some of them have began to change the way the decide matters affecting Kenyans' lives. They are inviting, and incorporating, more public input on policy, legislative and regulatory proposals than in the past. This may complicate Government decision-making, especially with regards to its foreign obligations, but no one can argue that it is a net-negative thing. The whole point of participatory democracy, the kind contemplated by the Constitution, is that the purpose of the State is to serve the public good, rather than the State serve itself with or without the permission of the public. Sen. Omtatah is unlikely to be celebrated in full in his lifetime, but may his public-spirited legacy last a millennium.

My life today is the Mary Celeste

I have been staring at this official document for the better part of eighteen hours now. I am red-eyed, wired, tired and a little pissed off. It used to be that when I told you the job was done, it really was done. We did not do a back-and-forth to determine whether what you wanted me to do had, indeed, been done. We always, ALWAYS, sorted out our full instructions before legislative drafter put fingers to keyboard and gave you a legislative text.

These days, though, MFs think they can ice-skate uphill.

There is much to be appreciative of the Kibaki presidency. The spoors of his economic successes are plain to track. However, he seeded the policy-making ground with bad habits, the worst being the Facebook-ish move-fast-and-break-things mantra. Governments are not meant to make decisions with haste, except when the enemy is dropping bombs on citizens. In every other respect, the Government is supposed to think through the risks-versus-benefits checklist before making a decision, especially a decision that puts lives and national treasure in the frying pan.

Lawyers like me are supposed to be called in when all Government’s ducks are in a row.

The number of decisions needed to get from a policy idea to a legislative text is long, and complex, and highly technical. None of the steps is to be taken without a high degree of certainty. By the time I, or people like me, write a legislative sentence of any import, ten times more difficult technical work has been done to make sure that the policy, the politics, the law and the money have been thought about and sorted. Any change to the legislative text is akin to abruptly changing direction by a VLCC - Very Large Crude Carrier. In other words, it should not be done without good and sufficient cause.

So…back to what is becoming a common Sunday for the likes of me, these days.

My colleagues and I put down in writing about 34,000 words at the end of April. In my estimation (nevermind the various angry publics who were deeply unhappy by our legislative text), we did an excellent job. We followed the rules. We have absolutely no dog in whether or not the text is enacted in the form we released it to our client. We should have been done with this shit a month and a half ago! But 40 days later, we are tinkering with it because the policy assumptions from way back when are being revised, and those revisions are necessitating changes to our text, changes that are not based on any kind of logic than “I said so!” I feel like I am the last survivor on the Mary Celeste.

My life has taken a backseat; one of the reasons it fell apart in late 2019. I have not had a chance to properly mourn the passing of two women who meant more to me than any other woman except for my mum. Every now and then, when the clouds part and I have a free three minutes to sit with my thoughts, my mind, memories and soul are engulfed in the pain of the deaths of the woman who tended to my every need when I was a newborn child and the woman who got me my Bachelor of Laws degree (and the BA that came along with it). I have tried to cry, but I have found narcissistic work-related reasons not to.

And so…

I am going home. To eat food I won’t notice, and sleep for hours that will never be enough, in the hopes that my mind will quiet down long enough that I won’t feel like committing some dreadful crime. I want to rejoin what is left of my life. I don’t think my therapist and I have found the right language to tell my extremely sensitive ass that I can. Or should. Tomorrow is a new day. So long as I still a have the ability to see it as a fresh start, I will probably be OK.

History's accolades and brickbats

There are over three hundred parastatals in Kenya. Almost one-quarter were established after 2013. The economic rationale for their establishment was never established but their political value is incalculable. Mwai Kibaki's rising tide didn't have to seriously contend with the value-for-money proposition of parastatals so he did nothing. Uhuru Kenyatta's sinking boat most definitely did, so he appointed a task force to advise on the necessary reforms. It is now common knowledge that among the recommendations of the task force was the merger of some and the winding up of others. Uhuru Kenyatta binned the report and went on a parastatal-making spree.

It is now William Ruto's turn at the wheel. He has committed himself to reforming parastatals by, among other things, winding up the loss-makers and other redundant parastatals. It will be a testament to his ability to play hopscotch in the political arena if he shuts down any without eliciting a political rebellion in all his backyards.

So far, the signs are not promising. You only have to look at the chequered attempts to off-load state-owned sugar manufacturers, and President Ruto's part in them, to see that the hot potato in his hands can cause damage. The economic value in state-owned sugar manufacturers dissipated the moment sugar-producing zones were saddled with more factories than they could economically support. Private factories have undermined the economic value of the state-owned ones for decades now. Any viable reform programme would entail selling the state-owned laggards to the private upstarts, and consolidate sugar-producing zones in the hands of three or four players. But the elected parliamentarians who make hay by promising jobs for their constituents in the factories and outgrow farms will not let the president sell the factories without a fight. And they fight dirty.

The National Treasury is in an unenviable position. In order for it to successfully reform parastatals, it must have a free hand to pick winners and dump losers. That free hand comes with enormous political power; by picking winners, the National Treasury guarantees political glory for the parliamentarian in whose constituency the winner is found. By offloading loss-makers, the National Treasury dooms a parliamentarian to election catastrophe for failing to keep jobs and secure livelihoods for his constituents. The economic argument for keeping one parastatal and dumping another is irrelevant in the sharp-elbowed political environment Prof. Njuguna Ndung'u and Dr. Chris Kiptoo have been dumped into by the president. They will need the president's political instincts if they are to succeed where Uhuru Kenyatta flamed out so spectacularly.

The debt treadmill on which Uhuru Kenyatta deposited the government is a key reason why the Government is keen to release resources that are tied up in loss-making capital assets. The massive public debt, for which we keep borrowing even more to offset, has wrecked public investment in critical public services, including healthcare, basic education, public transport, water distribution, and environmental conservation. Unless the President can successfully demonstrate that the short-term pain of divestment will translate to greater public investment in these areas and, crucially, that such investment will lower Kenyans' cost of living, the divestment programme will not succeed. He has two presidential blueprints for economic transformation to compare his plans against: Mwai Kibaki (2003 to 2008) and Uhuru Kenyatta (2014 to 2018). History will judge whether he will receive glowing accolades à la Kibaki or savage brickbats à la Kenyatta.

As by law established

The members of my profession, the ones with a pompous sense of importance, tend to use phrases whose value has diminished greatly since the doors were flung open and everyone and his cat got a Bachelor of Laws degree. One of those obsolete phrases beloved of the ancien régime is "as by law established". I forget the explanation for the tortured phraseology; but it captures the spirit of obdurate stubbornness a certain kind of pedantic lawyer will employ to avoid taking responsibility for anything meaningful.

Anyway, it's not the phrase that animates me today, but the remarkable tunnel vision of constitutional law scholars and practitioners. In recent months, the President and the rest of the Cabinet have announced a raft of revenue-raising measures that will impose significantly higher taxes on the vast majority of the salaried. Because of the errors committed by civil society in the past decade, the framework for public participation that should have allowed the affected taxpayers to weigh in meaningfully on the tax proposals has done little but to rubber-stamp the Government's plans.

Because of the failure of participatory decision-making in this regard, there are those who now claim, ridiculously, that the Government has not been established according to the Constitution. This is revisionist balderdash. When the Supreme Court declared that William Ruth was the legitimate winner of the presidential election, and the other courts decided the other election petitions, and the elected men and woe took their oaths of office, the leadership of the Government was absolutely definitely established according to the Constitution. Not one of the elected state officers holding office today came into office through unconstitutional means.

But because many men and women disagree with the decisions made by these elected state officers, and their failure to fashion an effective framework to hold the elected state officers to account for their decisions and actions, they have began spreading the canard that the Government has not been established according to the Constitution. The failures of civil society since the election of Mwai Kibaki in December 2002 have led us down a terrible path, a path where state officers have little to fear from civil society organisations, human rights defenders or anti-corruption crusaders.

One of the biggest disappointments when it comes to holding the Government to account is the Law Society of Kenya, a Bar association established by an Act of Parliament, and whose members are these days appointed to sit in the Boards of Government-owned entities. The Law Society will not bite the hand that feeds it. Instead, like a house pet, it will roll over on its back so that it can receive the belly rub it so desperately desires. In my opinion, the Law Society was last true to its principles in 2002; every single chairman or president, every single Council of the Law Society, every single Branch of the Law Society, and every single position adopted by the Law Society has existed single-mindedly to ensure that the Law Society, its leaders and members, receive favours from the State. In effect, the Law Society has become a Government-owned civil society organisation. It is not the only one.

Faith-based organisations, labour organisations, employers' organisations, private sector institutions, teachers' unions, even human rights defenders...all of them have become off-shoots of the Government and Government-linked organisations. It is a bit rich, therefore, for some civil society windbags to accuse the Government of not being established according to the Constitution. The past eight years have been particularly fraught when it comes to civil society organisations holding State officers to account. One after the other, men and women have brought suits against the Government for some violation of the Bill of Rights but maybe one in ten have stayed the course without striking out-of-court settlements that have lined their pockets at the expense of the public interest. These charlatans don't even have the shame to deny the charge; they admit it freely and arrogantly because mtado?

Some bosses lead, some bosses blame

Bosses make great CX a central part of strategy and mission. Bosses set standards at the top of organizations. Bosses recruit, train, and deploy employees to face customers. Bosses decide how much to spend to make things better. Bosses design processes. Bosses create response and recovery mechanisms. Bosses motivate employees to care about what happens to customers. - Sunny Bindra, What’s really wrong with customer experience? The bosses…

When the bottom line is at stake, bosses can either elevate the CX game or they can plunge the whole organisation into the ground. When the boss's fate is tied to the bottom line, he will either lead from the front or he will find scapegoats to sacrifice. It all depends on what the incentives are, doesn't it?

I have been fortunate to witness the leadership styles of several bosses at my place of work. Some were very inspirational. Many are professional scapegoat hunters. One of my favourite bosses took the time to listen to our clients' complaints, and then she would sit with us and work out why the client had a poor CX, and on the basis of that process, proposed a solution. Sometimes the solution worked. Sometimes it was a trial-and-error process until it was solved. She was firm with us, but she never shifted the blame onto us. She led us to do some amazing things, especially in designing a client management system that I have taken with me in subsequent posts.

My least favourite boss refused to take responsibility, shirked difficult decisions, and refused to discuss his proposals with anyone. Not his direct reports. Not the rank and file. Not even his peers in the organisation. He was so busy covering his ass that even obvious things fell through the cracks. What's worse, he identified a few pet employees whom he favoured over other, and they became his snitches - not for quality control purposes, but to weed out the frustrated malcontents who desired to do better and be better. Under him, CX was no longer a priority; all that mattered was that the boss was not blamed for anything. He was eventually sacked and it will take a long time to address the problems he left behind.

Being boss is frighteningly hard if one lacks the EQ to manage a diverse staff and manage the inevitable complaints from his clients. As a line manager, I want the team I manage to excel, and I want my clients to have an excellent CX. The past two years have been difficult all around and part of my job is giving clients bad news. If I didn't have faith in my team, I wouldn't have the necessary information to manage my clients' expectations, and make the experience of receiving the bad news tolerable.

While I don't subscribe to the adage that the customer is always right - in my profession, when the client walks in through the door, it is because he has been accused of doing something wrong - but I almost never dismiss my client's requests out of hand. In order to figure out what kind of service he needs, I ask a million questions, prepare a draft opinion, and  then work with the client to arrive at a common understanding of the problem and a reasonable understanding of how to deal with it. This takes time and my favourite boss understood this. She demanded speed, but never at the expense of precision. I miss her.

My least favourite boss assumed that all that hand-holding was intended to undermine him, that we were delaying solving clients' problems so that he would look bad to his bosses. As a result, he forced many of us to cut corners, with the expected outcomes: poor client experiences that eventually led to his sacking. He broke that which didn't need fixing, refused to fix it, shifted blame, and made working for him a nightmare, which made our client management suffer in the bargain. Even our clients are happy he got sacked.

So, yes, agree. A boss who wants his clients to have great CX and who is willing to do the hard work of setting the necessary standards and overseeing their implementation will almost always have grateful clients and loyal subordinates.

They all fall, eventually

The member of the National Assembly for Mumias East is a spectacularly unpleasant character. But he is not unique. A former member of the National Assembly for Gatundu South is just equally as unpleasant. They are not unique. They are not even unique in the nasty, overbearing, narcissistic and hubristic way they go about generating publicity for themselves. They are just extreme examples of their fellow parliamentarians, who, whenever the opportunity challenges them, can be as nasty and unpleasant as these two worthies.

There is something in the water they drink over there that transforms usually decent hum beings into uncouth, ill-mannered, reckless, unpleasant parliamentarians. Well, not exactly the water. But something. The day they are sworn in, they are instantly swaddled in an extremely comforting and isolating cocoon of privilege and power. They have instant access to millions of shillings in the form of a mortgage, a car grant, and an annual salary that is many multiples of what the lowest paid Kenyan earns.

Wherever they go, doors are flung open and red carpets rolled out for them. Whenever they speak, serious members of the chatterati and civil service pay keen attention. Whenever they demand things, the great unwashed masses bend over backwards to accommodate them. It matters not that they treat their constituents like shit. Now they are mheshimiwa, and mheshimiwa's wish is our command.

Whatever selfish and narcissistic tendencies they posses are usually amplified to the nth degree. They, almost to a man, believe that they deserve to be where they are, that they are there because the people adore them, that they are cleverer than the rest of us, that they are God's choice because the christian bible says leaders are chosen by God. Arrogance and contempt are their watchword. Not even the judges of the High Court or the Inspectors-General of Police can corral their ambitions, power and vision.

As a consequence, it no longer occurs to them that they cannot ride roughshod over is without facing electoral consequence. They cannot scoff at the law without, eventually, made to face the long arm of the law. They are immune to the lessons of political history: eventually, they all fall, and the harder they rode roughshod over us, the harder the fall is. Very rarely will we sympathise with a former mheshimiwa. More likely, we will make them taste what they shoved down our throats, and if they happen to be financially at sixes and sevens, we will make them regret the very day they chose to adorn themselves with a power that wasn't theirs.

Who will rid us of this pestilential man?

Dimples is a bad governor. He is not the only one, but I choose to focus my animus on him today.

If you are one of the residents of our once fair City who has had to trudge through mud, effluent and storm debris as you go from place to place, you can lay the blame for your tribulations at the feet of Dimples and his laughably bad administration.

When he was our senator, and he was contemplating a gubernatorial campaign, and we were, once again, in the quagmire caused by heavy rains and potholed roads, Dimples suggested that we could overcome our transportation woes if we bought SUVs like his beloved Land Cruiser VX. He was a stupid man then. His stupidity has not stopped. It might have gotten worse.

I am (still) a resident of the Eastlands Nation. I have no choice but to use Jogoo Road, to and from work. These days, because the public transportation is all shot to hell, I commute in the discomforts of my jalopy. Potholes are the bane of my commute. Many months old potholes that Dimples has not seen fit to fill in. Potholes that, when covered with the massive oceans of rainwater that cannot be drained because the drainage is blocked, are a hazard to similar jalopies to mine.

From the Dönholm Roundabout to City Stadium, from City Stadium to Wakulima Market (using Landhies Road), From Wakulima Market to the Moi Avenue/Haile Selassie Roundabout, Dimples has turned a blind eye to the potholes, clogged drains, drains with missing drainage covers, manholes with missing manhole covers, and the maelstrom of mud and rubbish that has accumulated over many months. Instead, Dimples amuses himself by repainting City County buildings and calling that progress. Or tweeting Nai iWork rubbish.

Dimples is a bad governor. We should rid ourself of his pestilential self.