Friday, June 21, 2024

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.

Wednesday, June 19, 2024

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).

Monday, June 17, 2024

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.

Thursday, June 13, 2024

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.

Sunday, June 09, 2024

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.

Monday, June 03, 2024

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.

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 bi...