NMS Must Go

The Environmental Management and Co-ordination Act (No. 8 of 1999) is one of the most mind-numbingly boring pieces of legislation to ever manage from the National Assembly of Kenya. It is written in such a stodgy and turgid style that only a masochist would read it for fun. It's ennui-inducing text notwithstanding, it is a law of the Republic and must be obeyed whenever someone sets out to do a project in Kenya. It binds everyone, regardless of their station in life. Barring the nitpicking of members of my tribe, where it says "shall", it commands one to do or refrain from doing that act.

It states, at section 58(1):

Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.

The Second Schedule classifies projects into low-risk, medium-risk and high-risk.  In my opinion, what is being undertaken in Uhuru Park is a low-risk project (small scale rehabilitation, maintenance and modernization of projects), for which a project report should have been submitted to NEMA and, should NEMA have directed, an EIA should have been undertaken. In flagrant disregard for section 58, none of this was done and it has taken a petition by the Communist Party of Kenya to put a stop to the goings on in Nairobi's largest urban green space.

We have been fed tonnes of propaganda about how military officers are so by-the-book and honest that they will right the developmental ship of state from its dangerously parleys state. I have expressed my scepticism about the soldiers donning mufti and playing at civilian administration. I am not persuaded that soldiers - whose business should be to high wars - are well-suited to the mess coalition-building of varied interests that is necessary to the running of a city or the management of its affairs. Even senior military officers live under the rubric that all orders of their commanders-in-chief must be obeyed, regardless of the constitutional fig leaf of "lawful orders". The general in charge of the Uhuru Park project has not demonstrated a sufficient capability in civilian coalition-building to believe that he is capable of complying with anything other than the direct orders of his commanding officer.

We know enough about the disfunction in NEMA and other regulatory bodies to know that the cost of undertaking any project in Kenya is orders of magnitude higher than it needs to be. The solution, however, is not to undermine the laws of the Republic no matter how noble a project is claimed to be. The Uhuru Park fiasco is proof that military generals lack the creativity needed to undertake any major project in the city. Messrs Sonko and Kidero were terrible governors but they understood the need to consult widely and involve all affected parties when undertaking projects, and when the projects foundered for whatever reason, they adjusted, adapted or pulled out altogether, which is the essential component of democratic development.

The poor man charged with improving physical planning services in Nairobi City is incapable of consulting effectively; has no clue about the political and social impacts of his my-way-or-the-highway approach to leadership; believes that the ends justify unlawful means; and will not admit that he is in waters he can't navigate or that his appointing authority was wrong to appoint him in the first place. The Environment and Land Court may yet reverse its injunction against the Uhuru Park project and if it did, that would be entirely in keeping with the doctrine of the rule of law. The reason why the injunction exists in the first place is that the project proponents in Uhuru Park shat on the rule of law. Whether or not the injunction is lifted, the Nairobi Metropolitan Service cannot continue to operate. It should be disbanded and its officers barred from ever serving in the public service again.

What is left unsaid says it all

We teach our children that violence is not the answer. We, sometimes, reinforce the lesson, with violence. Therein lies irony, but that is not the reason for this post. If there's one lesson that we have taken from years of childhood development studies it is that violence forms a poor foundation for the education and discipline of children. But in situations where time and other resources are scarce, the instinct to chart familiar, violent, paths overwhelms the instinct to spend more time and resources in building new systems for the education and discipline of our children. It is a schizophrenic hypocrisy, of sorts.

I have watched with amazement as the Cabinet Secretary for Education and his internal security counterpart, together with other senior government officials, muse publicly that it is time to reintroduce corporal punishment in schools as one of the solutions for the waves of school unrest and associated cases of arson. Far better thinkers of childhood development can tell you why violent coercive force is no longer the preferred method for educating or disciplining children. I intend to show you why it is wrong for governmental officials to casually and recklessly recommend the usurpation of constitutional prohibitions.

In Kenya, Cabinet Secretaries and Principal Secretaries swear an oath to obey, respect and uphold the Constitution of Kenya and all other laws of the Republic. The Constitution imposes an obligation on all Kenyans to protect children from all forms of violence. In my opinion, this includes protection of children from corporal punishment, which is a form of violence. The Basic Education Act, which is a law of the Republic, states that one of the principles of the provision of basic education is the elimination of  corporal punishment.

The oaths that the Cabinet Secretaries and Principal Secretaries swore means that they cannot casually propose the reintroduction of corporal punishment without first amending the Constitution and repealing the provisions that protect children from any form of violence. Furthermore, they cannot declare that they "do not believe in children's rights", because it would amount to saying that they do not believe in the Bill of Rights, which would bring into question their fitness to continue serving in Government.

I have watched with trepidation as senior members of the Government have swatted away their constitutional obligations whenever it inconvenienced them. A senior member of the police service defied court orders and was convicted of contempt and ordered to serve a term of imprisonment of four years. He has also disobeyed the latest court order. Several Cabinet Secretaries have also been convicted of contempt of court; they have all defied the sanctions imposed on them by the courts. No less than the Chief Justice of kenya has watched as some of his orders are defied by Government officials.

Meanwhile, the police service is wielded as a sledgehammer against the hoi polloi should they deign to set one toe over the line. Quite often, police action in the enforcement of the law ends tragically; men, women, children and infants have died at the hands of police in the enforcement of the law. But when it comes to senior members of the Government, regardless of the scale of their alleged offences, they are treated with kid gloves even as they thumb their noses at the rule of law. This is not a satisfactory way to build a culture of constitutionalism in Kenya. Indeed, I would go so far as to say that the true threat to the constitutional order is the reckless disregard for the rule of law by senior members of the Government.

In my opinion, any governmental official who declares that children do not enjoy any constitutional protections is not fit to hold public office; any government official who defies the orders of the courts, is not fit to hold public office; any governmental official who undermines the rule of law in any way must be removed from office and barred from public service forever. But this is half the story, isn't it? The other half is left unsaid because that is what we do and who we are.

PR isn't enough

Article 10 of the Constitution of Kenya rarely attracts attention save for when it is waved in State and public officers' faces with demands for "public participation" whenever Government engages in secretive public policy shenanigans. But Article 10 is much more than the "public participation" Article; it is the foundation for the safeguarding of our rights and fundamental freedoms enshrined in Chapter Four. Without Article 10, the State - especially the State - will run roughshod over us and make a mockery of Chapter Four. And where the State goes, so go the rest of the country.

One of the principles by which "all State organs, State officers and public officers" are bound, is the principle of good governance, integrity, transparency and accountability. It goes hand in hand with our right of access to information held by the State under Article 35, which contributes enormously to our sovereign right as citizens to hold State and public officers to account. In my humble opinion, the Nairobi Metropolitan Services, its Director-General and everyone connected to this demonseed, make a mockery of Article 10 and the principle of good governance, integrity, transparency and accountability.

I have had occasion to joust with the proponents of the militarisation of public services and, even accounting for their deep frustrations with the way Nairobi's governors have governed, I can find no persuasive reasons for why they would simply allow NMS to operate the way it does and fail to connect its perfidious approach to transparency and accountability as of a piece with the ineptitude and graft of Nairobi's City Fathers.

Don't get me wrong. I enjoy well-paved and well-lit city streets, efficient water and sanitation services, effective public health facilities, and predictable rule-enforcement in building and construction. But, even taking into account the shenanigans of Messrs Sonko and Kidero and their bands of misfits, we knew who was responsible for what. We could identify them. We knew how much the County Assembly had appropriated for their operations. We new the rationalisations behind their decision-making because, by law, they had to publish their plans in advance. This is the transparency part of the equation. And because we knew, our elected representatives could demand action if there were lapses. Or failing that, we could sue. This is the accountability part of the equation. And all go to satisfying another of Article 10's principles: the rule of law.

The NMS has an effective public communications strategy. It has effectively publicised its successes in paving city streets, repairing city equipment and making lofty-sounding promises such as building new hospital facilities or hiring healthcare workers. It has been so good at PR that few question any more whether or not the rationale behind NMS is founded on the quicksand of constitutional hooliganism. In my opinion, the only difference between Mike Sonko and NMS is that NMS covers itself with the veneer of martial discipline. Rub some of its soft skin off and the casual constitutional violations are plain to see, not the least being fidelity to the principles and values of governance of good governance, integrity, transparency and accountability - and the rule of law.

It could be that the NMS has fine Kenyans in it, law-abiding and honourable. But so long as they piss on Article 10 with the same reckless abandon as NMS's creators, there is absolutely no reason why we should give them a free pass simply because they are very good at laying coloured cabro in town. If there is a place to draw the constitutional implementation line in this cesspit, it is with fidelity to Article 10 for ALL State and public officers, their do-gooding notwithstanding. If you can't obey the Constitution, then you have no business in public service, army-fatigue PR notwithstanding.