Chaos as a governing principle

We have so many things that can kill us in this country. Being in this country you are a candidate for death. [Audience laughs] And because they're so many things competing for death, there's nothing wrong in adding GMO to that list. That is why we have deliberately decided to allow GMOs into this country. - Moses Kuria

The long tail of the Moism that was nurtured over twenty-four years continues to affect us in deeply unsettling and inhumane ways. Many praise the ten years of Kibakinomics and completely ignore the fact that despite performance contracting, in reality, Mr Kibaki did little to reverse the ill effects of a hollowed-out public service. Mr Kibaki's successor simply chose to throw good money after bad and when that didn't work, hand over the whole kit and caboodle to the army to sort out. It didn't work either. Mr Kuria is the personification of thirty-four years of civil service sabotage by presidents, parliamentarians, ministers of government and sundry ne'er-do-wells with such deeply embedded conflicts of interest it is a wonder they were able to achieve anything at all.

There is nothing humorous about admitting that the government you serve, and have served for a decade, has failed in its mandate to protect its peoples. There is no humour in admitting that regardless of the scientific question marks, the government you now serve intends to move forward with the introduction of genetic technologies whose benefits remain wholly unexplored, and the research into its negative effects are buried in layers of global money interests. But that is where we are today.

Governing is not easy. You must make life-or-death decisions on dozens of sensitive matters with little current information or resources, and in the face of external risks that you can neither see nor predict, all the while ensuring that the lights stay on and the masses don't set your house on fire. In order to make the best decisions possible in the circumstances, you need a plan. Such a plan must be based on a policy that analyses the issues, identifies the people capable of implementing the policy, mobilising the money needed for it, and your own skills in persuading your rivals and enemies to go along with the plan. You cannot make good decisions if all you're doing is flying by the seat of your pants, making reckless statements on the fly, and inviting ridicule and contempt while at it. You may posses the intellectual heft of an Einstein, but it is meaningless if that intellect is tethered to an overweening narcissistic desire to PWN your rivals.

President Moi predicted that Kanu would reign for a hundred years. He couldn't have known that Kanu, the political party, would exist only as a caricature or that Kanuism and Maoism would replace it. The core elements of Moist and Kanuism included cults of personality, self-interest over public interest, incompetence camouflaged by cruelty and sarcasm, wastage of public resources in pursuit of white elephants, and an inability to accept that one may not know enough about any subject matter. It is still early days with the new regime, but the signs don't point in an encouraging direction. Right from the moment a declaration on the shamba system was made, it has been one flip-flopping policy announcement after another.

Is chaos their intended objective?

A pox on your war

As we ponder constitutional changes, let us define a Nairobi Capital City governance system that is insulated from politics of the day, and that is based on professional execution and delivery of services. On the minimum we may need a 10 year “lease” for the NMS mandate to allow it to turnaround the city, before we revert to an elected county mandate. Nairobi has been an extraordinary problem requiring an exceptional constitutional consideration. - Soldier on General Badi, Nairobi stands with you

The peoples of Nairobi City County have had the opportunity to elect county governments on two occasions. The first time, they elected a charlatan. The second time, they elected a buffoon. But it was their choice. They exercised their franchise freely and without intimidation. They got the government that they elected. If they want their government to do more, to do better, they will elect one that will do just that. That is the bargain they, and the voters in the remaining 46 counties, made when they participated in the referendum that, among other things, led to the promulgation of a constitution that established Nairobi City's county government. It is time for Nairobi's "saviours" to accept that unless they are willing to present themselves at the hustings, their interventions mean as much as a fart in a hurricane. They should accept this unpalatable fact - and move on.

General Badi and his band of merry men may be doing a bang up job but no one elected them to perform that job. He is unaccountable to the people who matter - the voters (and residents) of Nairobi. No matter how well he executes his mandate, he is not the choice of the peoples of Nairobi and unless he is elected to office in the county government, he never will. No one has the right or authority to grant him a "10 year lease". To even argue that what he is doing falls within the confines of the constitution is to blind oneself to the inherent risks of such extra-constitutional shenanigans.

It is not as if the existing legal framework doesn't provide for a Badi-like arrangement. The Urban Areas and Cities Act, 2011, offers City Fathers the opportunity to appoint city managers to perform the tasks that General Badi is purporting to perform. That the provisions of this Act have suffered the gimlet eye of General Badi's benefactors is an indictment of their capacity to "think out of the box". They are confined in their fantasies of executive imperialism that we thought had been buried six feet under on the 26th August, 2010. Their acolytes, like the author of the unfortunate screed at the top of this post, have conveniently forgotten why we wanted executive imperialism to be cast on the ash heap of history - the corruption and abuse of office that it violently engendered.

That Nairobi City's government is a mess goes without saying. That City Fathers have proven to be corrupt saboteurs can be seen, plain as day, from the effects of the works of their hands. But Nairobi's peoples do not deserve to be cheated of the opportunity to build systems that serve their interests. It distresses me at a professional level that my colleagues in the Bar have been unable to successfully overturn General Badi's installation as an unelected City Father not only on constitutional grounds but on statutory ones as well. (If you were to ask the more serious members of my profession, they will quietly admit to you that the legal framework underpinning General Badi's "authority" is flimsy to the point of being ephemeral. They choose not to shout this out in the agora because it may endanger fat briefs when they are approached to offer legal services in matters connected to this municipal coup.)

One of the most vital functions of the City County Government is regulating "development" - what we know as the building and construction industry. Since the burial of the Nairobi City Commission, development has not only been an area of great graft, but one that has caused untold misery from the dozens of buildings that have collapsed to the spectacular chaos in un-planned construction. What we sniffily refer to as "informal settlements" are the result of development control that has abandoned all pretence at professionalism. Looking at the things General Badi has tom-tommed of his first 100 days, it is plain that he intends to follow a well-beaten path - but with military precision. He brings no expertise at development control and it shows. When the dust settles on his iniquitous tenure, maybe we will find out for whom he was beard. 

It's time to read the Kenya Gazette, friend

One of the most difficult things for a legislative drafter is to push back against over-eager senior civil servants who believe things that don't exist. Every time I see Gazette Notice No. 2356 of 2017, also known as the plastic bag ban, I can feel the hairs at the back of my neck rise because I know how the poor drafter who was forced to clear that document feels. It is one of the most destructive Notices published by the Government - not because it bans single-use plastic bags of various descriptions (we all accept that as a good thing) but for encouraging Judy Wakhungu's successors in the taking of statutory shortcuts regardless of the legislative mess they leave in their wake.

Of the more destructive officials are to be found the ones who flit from one bad idea to the next without pause, upending decades of legislative-drafting consensus on what the State can and can't do through subsidiary legislation. In many cases, you will be witness to personal and private agendas masquerading as official government policy, the naked political ambition camouflaged by long-winded soliloquys on "national development" and similarly portentous and pretentious pablum. The latest, going by the high dudgeon one has occasioned, are "presidential directives", a catchall expression that implicates the Head of Government in schemes of doubtful economic and political value.

Distilling government policy is hard enough without inserting ill-advised legislative proposals in the mix. When Government settles on a policy, and the entire Cabinet is agreed on what that policy is, it isn't always an automatic outcome that legislation will be enacted to give effect to that policy. On many occasions, it is sufficient for the bureaucratic state to re-arrange budgets and programmes to incorporate the policies activities. Implementation of policy can sometimes turn on a re-deployment of personnel and the funds to go with such redeployment.

Every now and then, though, a new law or an amendment to an existing one is required. Care, though, is called for. New laws these days have a nasty habit of creating new offences. It doesn't pay to give the police, the DPP, the EACC and other law enforcement organisations fresh grounds for hounding Kenyans trying to make their way in an increasingly fraught world. New laws, also, seem to require further disbursements from the public purse, much to the chagrin of the mandarins of the National Treasury. The increasing number of "funds" is almost always a pointer to the increasing clout of individual mawaziri - the larger your share of the national revenue that you control, the more clout you wield among your Cabinet colleagues. New penal provisions and increased public spending occasioned by new laws point to policy failures that will only reveal themselves when it becomes clear that the new offences are a waste of law enforcement time and a drain on the national coffers for no discernible benefit.

Most of you live your day to day without having to worry about what is being cooked up by civil servants. Indeed, many of you don't really care for the contents of the kenya Gazette, published every single Friday by the Government Press. In my opinion, you must rouse yourselves from this slumber if you are to better understand why your Government does the things it does. When a Government department "supports" the manufacture of a "low-cost" motor vehicle that looks like it was put together in the dark with parts thrown out of one of this Kamukunji jua kali workshops, you can be sure that the mandate to support that project is hidden among the thousands of Notices published in the Kenya Gazette each year. But because you weren't paying attention, the announcement by department of Government that public monies will be spent on the equivalent of a mkokoteni with an engine comes as a bit of a shock.

It is time to accompany your anti-government anger with relevant information. Your first port of call should be the Government Press and the Kenya Gazette it publishes every week. What new agencies have been established? What new parastatal bosses have been appointed? What new task force has been convened? What new offences have been created? What new scheme are our taxes financing? All these questions, and more, are contained in the Gazette - if you only knew to read it and how to read it.