School tragedies won't end

 I - It is not a question of expertise, is it?

I am not an expert on education. I am not an expert on physical and land use planning. I am not a parent. However, seeing this, maybe I know a thing about laws.

School tragedies are shockingly commonplace in Kenya. Regardless of whether they are supported out of our taxes or private, national or ho-hum, well performing or at the bottom of the exam rankings, tragedies strike them all without discrimination. It has nothing to do with how wealthy or poor Kenya is, tragedy will find a school.

II - The thing about systems

Schools, like so much else in Kenya, exist and operate in a system. The system is broken. It has been broken for decades. We know the ways it is broken. Crucially, those who know better, know how to fix that which is broken. But equally crucially, those with the power to do anything about it don’t. More often than not, it all boils down to money. Specifically, tax shillings, collected and spent by the government.

The only governments we believed we had a say in how they came about, whom they appointed to high office, and which we thought represented our aspirations as a people are Mwai Kibaki’s, Uhuru Kenyatta’s and William Ruto’s. Daniel Moi’s and Jomo Kenyatta’s governments were renown for the extremes they went to suppress the aspirations of the people. We even called them “imperial presidencies” in recognition of how they treated the people: as subjects, rather than citizens.

III - Hopes, dashed

But in 2002, Kenyans voted overwhelmingly to cast aside presidential imperialism. In 2010, Kenyans voted again overwhelmingly to cast aside constitutional imperialism. And in 2013, knowing what we knew, elected the first government under a new freedom-espousing constitutional order, repeating the feat again in 2022.

So far, the only difference between the Jomo/Moi era and the Kibaki/Uhuru/Ruto era is the slick PR machine that springs into action to pull the wool over our eyes whenever our children are maimed and killed in school tragedies. In my opinion, in order to safeguard the lives and welfare of our children, then we must be prepared to rend asunder the national economic compact that says it is better to wastefully spend billions on roads for corrupt UN fat cats instead of the necessary infrastructure to properly and adequately educate our children in safety and security.

IV - The money we have, the money we waste

The Appropriation Act, a constitutional requirement under Article 221 of the Constitution, is the most important tool in directing how we spend the taxes we collect. All the mealy-mouthed excused about World Bank/IMF conditionalities and repayments of loans are just that - excuses. If we want to spend public funds to educate our children in safety and security, then we must take a hatchet to all the wastefulness contained in the annual Appropriation Act. So long as this not done, no amount of handwringing by the political classes will ever provide the necessary resources. And tragedies will follow. To paraphrase the devolution windbags - lack of money follows tragedy

History as farce, history as tragedy

In 2020, when it became apparent that the Government would not chart an independent path in dealing with the spread of the Covid 19 virus, a decision was made to revoke and replace the Petroleum Development Levy Fund Order of 1992 (Legal Notice No. 10 of 1992). What replaced it, the Petroleum Development Levy Fund Order of 2020 (Legal Notice No. 124 of 2020) created the “fuel subsidy” that came to bedevil the Government’s finances.

Paragraph 5 of the new Order stated:

5. 5. The levy shall also be used for matters relating to the development of the oil industry including to stabilize local petroleum pump prices in instances of spikes occasioned by high landed costs above a threshold determined by the Authority. The Cabinet Secretary may by writing to the administrator, request for a draw down from the Petroleum Development Fund to stabilize local petroleum pump prices where he deems it necessary.

It would be instructive to remind ourselves what the purpose of the Petroleum Development Fund Act was. Section 4(4) of the Act states:

(4) There shall be paid out of the Fund such monies as are necessary for the development of common facilities for the distribution or testing of oil products and for matters relating to the development of oil industry as the Cabinet Secretary may direct:

Provided that the funds are not used for purposes in competition with the private sector.

The subsidy programme did not fall within the broad purposes of the Act, to wit, the development of common facilities for the distribution or testing of oil products and for matters relating to the development of oil industry, but because fuel prices had spiked so sharply because of the supply chain shocks caused by the global pandemic, few Kenyans were willing to push back on the Government’s decision.

So it beggars belief that another global supply shock that has occasioned a sharp spike in fuel prices has not motivated the Government to draw down from the Petroleum Development Fund to stabilize local petroleum pump prices. The situation may not be exactly the same - pandemic versus war - but the outcome is the same: high fuel prices. The fund exists. The power to draw down from the fund remains. The reluctance by the Government to do something meaningful is baffling. Unless, of course, the Fund is “empty”.

Kenya is a very strange place, from a statutory perspective. It has a plethora of tax laws that seem to affect the price of fuel, the most obvious being value added tax, excise duty, import declaration fee, road maintenance levy, and petroleum development levy. It has a byzantine system for importing petroleum products: anyone who can explain what the G-to-G system is and what it does and how it provides for predictable (and low prices) deserves an actual Nobel Memorial Prize in Economic Sciences.

Despite all that, and the shenanigans of the Energy and Petroleum Regulatory Authority, there is not predictable way of cushioning Kenyans from high fuel prices and the knock-on effects on the cost of living. Instead, we get haughty harangues from the Cabinet Secretary for the National Treasury and stoic silence from the Cabinet Secretary for Energy. We get snooty highfalutin screeds from the chairman of the President’s Council of Economic Advisors. We get spectacularly tone-deaf social media posts from pro-government “bloggers”. What we don’t get is any form of amelioration for our challenges.

And because the “united opposition” is composed of a deposed deputy president with he support of probably only his wife and immediate family, a perennially red-eyed doddering geriatric in charge of the “biggest opposition party”, the first serious woman presidential candidate long past her prime, an ex-CJ presidential candidate with the support of a thimbleful of GenZ activists, a narcissistic activist-senator who never seems to do any work in the Senate, an ex-VP with a massive chip on his puny shoulders, and an agglomeration of political wannabes and has-beens, amelioration will not be forthcoming any time soon. Many Kenyans now feel like Robert Baratheon on his death bed.

The first thing we do, let’s kill all the lawyers

The Constitution of Kenya was written by lawyers. And it shows. It should have been written by ordinary Kenyans first, and then the lawyers could thereafter have had their way with the legal weaselling...reasoning. The Fourth Schedule to the Constitution deals with the distribution of functions between her national government and county governments. Paragraph 1 of Part 1 states that the national government shall perform functions relating to foreign affairs, foreign policy and international trade.

The Fourth Schedule contains a list with 48 items, 34 functions of the national government and 14 functions of county governments. The lawyers who compiled the list were not thinking of the opening words of the Preamble of the Constitution - We, the people of Kenya. It is why functions relating to how humans live and work are treated as afterthoughts - while things that inevitably lead to the exercise of governmental powers take precedence.

You can see this in the way the Africa Forward Summit (Africa-France Partnerships for Innovation and Growth) held on the 11th and 12 May, 2026, was conceived, promoted, and held, and how the decisions by the international worthies were made. Some commentators have thoughtfully explained the implications of the whole kit and caboodle, especially in light of the violent fracturing of Françafrique in West Africa and the weight of colonial history that the Summit attempted to slough off its shoulders. If the lawyers had resisted the powerful instinct to lawyer-ise the Constitution, we may not be having such a difficult time in explaining why neo-Françafrique poses such fraught questions for us.

Many well-meaning lawyers, such as the indefatigable Dr. Willy Mutunga, first Chief Justice of the Supreme Court of Kenya, tried their best to place We, the people of Kenya, at the heart of the Constitution. They did not succeed. They did not even come close to succeeding. because their fellow-lawyers had laid such terrible constitutional traps for them to evade.

Take the question of who is and who isn't eligible to stand in a Kenyan election. Kenyans are staring in horror at the lawyerly protection conferred on all sorts of shady men and women. The words all possibility of appeal or review of the relevant sentence or decision has been exhausted found in Article 99(3) and Article 193(3) are a warm security blanket that lawyers sitting in the constitutional court will wrap around the shoulders of the put-upon politicians with dodgy criminal records seeking elected office. If We, the people of Kenya, had been asked to decide who should or shouldn't be eligible to stand in a Kenyan election, no way would they have added that caveat about appeals and reviews. No way, José! But we were not and at least two alleged child sex abusers (that we know of) sit in the national legislature.

One of the most egregious signs that the Constitution was written by lawyers is the Preamble. Kenyan lawyers, even the ones who have had the opportunity to attend the very best schools, universities and colleges the world has to offer, are notorious for copying other lawyers' work. The Preamble is a pale imitation of the United States Declaration of Independence, the Indian Constitution's Preamble, and the South African Constitution's Preamble, garnished, garishly, by a smattering of Kenyan-style constitutional lawyering. It is a a dog's breakfast, redeemed only by the fact that it is mercifully short. If there were any lawyers that said, "Let's not," they were either not persuasive, or they were easily ignored. I find the allusions to an Almighty God of all creation particularly crass because if we truly believed in the rights of ALL Kenyans to think and believe as they wish, We, the people, would not be declaring as a fact that [a] there is a God, [b] that the God is "almighty" and [c] the God created "all". We, the people, I would like to think, would have asked, "What about my fellow Kenyan who does not believe gods exist?"

In another twenty to thirty years, Kenyans will replace this Constitution. I hope that they will have learnt hard lessons: keep the lawyers away from the process. Better yet, in the words of Mr. Shakespeare as written in Henry VI, Part 2 - Act 4, scene 2, The first thing we do, let’s kill all the lawyers!