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.