Political Funding in Kenya

If money is going to be the wild card policy analysts say it will be in the 2012 general election, it is imperative that we have a policy regarding political funding in Kenya. In the last general election campaign, the opacity that surrounded the financing of the campaigns of the major candidates at both the presidential and parliamentary elections gave rise to fears that foreign funds, finances form criminal organisations and funds from foreign powers were being used to influence the outcome of the elections. As a result, the fears that the opacity of political funding engendered contributed to the ensuing violence after the election results were announced by the discredited Electoral Commission of Kenya. 

Indeed, even in the recent bye-elections, the role of money was prominently displayed when only the well-funded could compete in Juja, Makadara and Starehe. It is even rumoured that the winning candidate in Makadara spent upwards of KES 150 million to secure victory. If this is true, then the campaign had nothing to do with the visions of the candidates or their parties, but on the raw power of the money that was poured into the bye-elections. The role of money in these campaigns distorted the playing field, giving undue advantage to the candidate with largest war chest rather than the candidate with the best ideas or policies.

In the United Kingdom and the United States of America, the role of political funding and campaign finance on elections has become steadily controversial, especially over the past decade when a significant war chest can decide the election of a candidate or a party. In the US, Barack Obama and his campaign spent hundreds of millions of dollars in what was billed to have been the most expensive campaign to date. In the United Kingdom, while the sums pale in comparison to those spent in the USA, the three main parties still spent tens of millions of pounds. 

What distinguishes these two democracies, indeed many of the world's developed democracies, is the role their electoral management bodies play in the oversight of how political funding is used during election campaigns, despite their controversial role. These countries have rules and regulations about the sources of political funding, how much can be donated by individuals and corporate and non-corporate bodies, how much can be spent by individual candidates or their parties during campaigns, and how, when and whom to report on the political funding. While these rules and regulations are not watertight, they have played a significant role in leveling the playing field, ensuring that even the voices of the minority are heard during the campaign. For instance, similar rules in Japan led to the resignation of a leader of the party from his party position. Ichiro Ozawa, the Secretary-General of the ruling party was forced to resign his party post due to an investigation by the Japanese authorities into party financing that indicated that the sources of the monies were from undisclosed or impermissible sources.

Kenya is still a fledgling democracy and many of the institutions involved in the management of elections do not have the capacity or will to perform their duty to ensure that elections and referenda are truly free and fair. While we laud the Interim Independent Electoral Commission and its officers for overseeing a peaceful referendum and three bye-elections, it is imperative that we start considering the role of the IIEC and the Registrar of Political Parties to ensure that they are able to monitor how political funding operates with a view to regulating where such funding comes from, who is allowed to donate, how much they can donate, how they money should be employed and reporting mechanisms for the same to ensure that money is not the sole criteria for determining the outcomes of elections or referenda.

The drum beats are already beating for the 2012 general election. 2012 is significant because this will be the first election under the new Constitution. Already pollsters are predicting the relative strengths and weakness of the major players. However, none seems to have started the discussion of the role of money in the elections. It is not too much to speculate that only the well-funded will succeed, given the persistent rumours of voter bribery that accompany ALL elections in Kenya. The IIEC and the Registrar of Political Parties must start the process of formulating rules on political funding. This is crucial as many of the new offices that have been created under the Constitution deserve only the best and the brightest. If we do not hew to the call for political funding reform, we may end up with political dinosaurs, veterans of the KANU era, in key positions because many of them tend to be very wealthy.

The Constitution has provided for a mechanism to devolve power and resources to grassroots Counties. It has also provided for the creation of a Senate to protect the interests of the County governments. The roles of County governments and the Senate in promoting good governance and democracy cannot be gainsaid. They are the bulwark against an overmighty central government and it is imperative that the election of Governors and Senators be truly free and fair, free from the pernicious effects of money on the electorate. Political funding rules are necessary to ensure that candidates for these offices will not only understand the roles of the counties in the allocation and management of national resources, but in the promotion of the rule of law and the protection of the principles of devolution. 

The role of money must be minimised to ensure only those candidates who understand this, and who appreciate the significance of these principles, are elected or are electable. Therefore, the IIEC, the Registrar of Political Parties, political parties and candidates must begin the process of discussing the need for political funding reform. In this way, hopefully, elections will not solely be vehicles for the wealthy and well-connected to attain ultimate political power but will serve to ensure that any and all viable candidates have a fair chance of participating in the governance of this country. Only then can we claim that elections in Kenya are 'free and fair'.

What will be the effect of Big Money in 2012?

Dr. Michael Otieno, a 'policy analyst', states that Big Business (Big Pharma, Big Oil, Big Tobacco, et al)is set to be the one factor that will determine the governments that we will have, either at national or county levels. He sees the influence of Big Money on politics well into the campaigns for the presidency, governorships, senate seats, and constituency seats growing over the next two years and influencing to a great extent the nature of government and what it can and cannot do. He dismisses the monies that will be donated by the hoi polloi as of no consequence. He may be right; but he is wrong in one respect. The effect of Big Money on elections in Kenya is not new or unique; money has always been the factor that guaranteed success for one candidate over another and this is not bound to change overmuch with the coming of the new Constitution.

The Constitution has created forty seven new Counties. There will be campaigns to be governor and members of county assemblies. Senate seats will be allocated to the Counties too. In addition, the Constitution has mandated the creation of eighty new constituencies to be carved out of the existing two hundred and ten. In addition, the Constitution has separated the Executive branch from the legislative one by mandating that Cabinet Secretaries will be drawn from outside the legislature. Additionally, the Constitution has also separated day-to-day politicking from the governance of the country by stating that no public officer, and this includes elected Members of Parliament, county assemblies, county governors and deputy governors, senators, as well as the president and deputy president cannot hold offices in their political parties. The game is about to change in many unforeseen ways.

In the last general election, much treasure was expended to elect the president. Under the old Constitution, the president was an all-powerful potentate who could reward his allies with sinecures in the cabinet, parastatals, the diplomatic service and sundry commissions and the like. This has now been outlawed by the Constitution. Appointment to Cabinet, even for the non-politician, will be with the approval of the National Assembly. The rules have been tightened to ensure that someone who fails to win an election will not automatically be rewarded by a post in government. This will change the nature of campaigning and politicking and the influence of money.

First, come the numbers. Parliament shall consist of 350 members, or 349 if we exclude the speaker. The senate shall consist of 68 members, or 67 if we exclude the speaker. Assuming that the winning presidential candidate shall have a majority in the national Assembly as well as in the Senate, he will need 175 allies in the National Assembly and 34 in the Senate in order to pass legislation that he favours. Whoever decides to pour money into his campaign in order to influence government policy, must pour enough to ensure that the president and deputy president enjoy a majority in Parliament. The nature of campaigning in Kenya virtually ensures that there will be some form of voter bribery. Therefore, the campaign funds will have to be spent in such a way as to ensure that the bribery is uniform enough to be able to influence the course of the election. Is Big Business prepared to devote significant amounts of what will be shareholders' monies to ensure that the candidates of their choice emerge victorious? How will they be able to do so in what is bound to be a competitive business market without giving ground to their competitors? Remember that these are monies that will be spent in ensuring that Parliamentary is stuffed with their allies. It does not take into account the campaigns in the 47 counties.

At the referendum, the voters roll contained about 14 million voters. However, only about 9 million voted in the referendum. If we assume that the voters roll will only increase by 2 million, that is 16 million potential voters in 2012. Assuming that only 10 million will vote, this is the target of the Big Money that will be devoted to creating a business-friendly legislature and to elect their choice of candidates to the presidency and deputy presidency. Roumour has it that Gideon Mbuvi Kioko, the victor of the Makadara bye-election, spent approximately KES 150 million to secure his victory. Given the populous nature of the constituency, let us assume that the cost of winning a generic parliamentary seat will be 90 million shillings. The cost for the 290 seats up for grabs comes to approximately KES 26.1 billion! Add the forty seven senate seats, the number balloons to 30.33 billion shillings! This computes to KES 3,033 for every voter who actually votes in 2012. Assuming that only a quarter of the actual voters get bribed, the cost per voter goes up to KES 12, 132!

Whose company's shareholders will sit idly by as billions in shareholder value is dedicated to the general election? If Big Business has started making arrangements to siphon off billions in shareholders' funds for the coming campaigns, it is time they started making allocations in their plans over the next two years, otherwise there may be a proliferation of shareholder suits against the directors of these companies. many of the companies operating in Kenya are multi-nationals, with headquarters in Western capitals where any form of corporate corruption is taken dimly. These directors may have to face the wrath of foreign governments in addition to the complications they may face here.

It is barely a month since the Constitution was promulgated. Until the political dust settles on the referendum and the bye-elections, it is premature to proclaim that Big Money will have such a pernicious influence on the coming general election. It would be prudent to study the political terrain, the potential alliances, the nature and calibre of potential candidates, before we can make a determination of how and where money will be a factor. Candidates will still need to spend on advertising, campaign material and a campaign machinery, but it is early days to start thinking of how much will be spent to win the presidency or the 47 governorships.

The monkeys remain the same

The three bye-elections results are instructive if only because they confirm that the so-called party leaders of ODM, Narc-K, PNU and ODM-K have nothing fresh to offer in light of the recent promulgation of our new Constitution. The candidates who have made it to Parliament are reflections of the political leadership of Kenya, demonstrating forcefully that Martha Karua and Prime Minister Odinga are determined to capture ultimate political power by any means possible. Indeed, the Prime Minister's party participated in a charade when it offered the now discredited Reuben Ndolo 'direct nomination' to contest the Makadara Parliamentary seat.

The election of William Kabogo (Narc-K, Juja), Gideon Mbuvi Kioko (Narc-K, Makadara) and Margaret Wanjiru (ODM) demonstrate that come 2012, Kenya may be bereft of any fresh ideas as it attempts to implement one of the most progressive constitutions anywhere in the world. The promises that are held within this draft will be betrayed if the same types of political leaders are offered as candidates for the various public offices that will be up for grabs. The devolution of power and resources to the Counties will be a charade if the likes of the three candidates are elected in 2012 to Governorships, Senate seats, County Assembly seats or National Assembly seats.

It is moot that men and women in Kenya stand for elections not to further the interests of the people who vote for them, but to further their own. The naked exploitation of Wanjiku will not end if all we have on offer are businessmen with shady business practices and politicians known more for the level of vitrion they are capable of spewing against their perceived enemies. Poverty, ill-health and disease will continue to blight the landscape because we are unwilling to admit to ourselves that our leaderships have failed us. They will keep on failing us unless we hold them to account; we must compel them to fulfill their campaign promises. If not, we have no one to blame but the faces we see in the mirror every morning. As PLO Lumumba may have put it, the forest may have changed but the monkeys remain the same.

Circle of life

Meritocracy don't mean shit. Good intentions don't matter for shit either. And if you are a philanthropic member of the community, your efforts are definitely not appreciated. Oh, and if you have been helping the needy, assisting old ladies across the road, or feeding the hungry, you are a moron. That is the message that politicians in Kenya are passing to us. If you think otherwise, you are a naive idiot who deserves the pain that is about to rain on you. And the pain, dear readers, is coming.



What possessed us to be so optimistic about the new Constitution and its promulgation? Were we high? If we had known what we now know, wouldn't it have been better for the billions that were spent on this project to be spent, however poorly, in building more super-highways or building more dams in Kitui or being pilfered through some other Anglo-Leasing type deal. That money should have been spent on anything but the Constitutional Review Process. That process has been a colossal waste of our time and energy.



We started violating the provisions of the Constitution the day it was promulgated, what with the invitation of Omar Hassan al-Bashir to our bash. The day after, when a few well-meaning but confused Kenyans decided to protest about Bashir's visit, they enjoyed the none too gentle attentions of Kenya's efficient and efficiently violent anti-riot police. And then a few of them were detained and arraigned in Court. Quite clearly, the government was yet to internalise the provisions regarding the right to peacefully assemble and petition the state. Now, it emerges that none of the Principals or their toadying, brown-nosing acolytes wishes to give up their seats in their less-than-transparent political parties. Even the formerly loud champions of internal party democracy like Ababu Namwamba have fallen silent on this provision of the Constitution. Finally, we have our esteemed Minister for Justice (that's a laugh), National Cohesion (the irony is not lost on me) and Constitutional Affairs (only half-right), Hon. Mutula Kilonzo (ODM-K, Mbooni) ridiculing us over the ICC thing. All along we have naively believed that he would carry on the campaign to see "perpetrators of post-election violence" handed over to the ICC for prosecution. Apparently, the good minister has discovered that the Constitution has miraculous powers, for it has now cleansed our police service and Judiciary of the filth that clogged their smooth operations and it is now quite possible to try the perpetrators and the masterminds of the violence without there being a miscarriage of justice, as his fellow learned friends would put it. Regardless of whether or not we change a few of the monkeys in uniform or in robes, a change of the law is sufficient to assure that the guilty will be punished in Kenya. Tell me you don't wanna wail into your beer right now?



When you look around you, the names being bandied around for the post of Governor or Senator are nothing to write home about. Simeon Nyachae has thrown his hat in the ring. So have Moses Akaranga (apparently his ministry feels the need for a little temporal uplift), Kivutha Kibwana (who has spent the past two-and-a-half years advising the president on National Cohesion, though there's nothing to show for it), Mutula Kilonzo (he sensed the winds of change when the people of Mbooni Constituency ignored his exhortations to ratify the Proposed Constitution), Njenga Karume (he still thinks we have not had enough of his mwana-nichi buffoonery), Nicholas Biwott (does New Kanu even exist?), Maina Njenga (apparently allegedly running a nationwide criminal syndicate from behind bars is sufficient proof of 'executive experience'), Lawrence Majali (after failing to impose discipline on the sexually adventurous members of his beloved KNUT, he plans to devolve this failure to the County level) ... the list is depressingly long. In all these calculations and maneuvers, ordinary voters have been left out in the cold. Their voice, which was humoured during the referendum campaigns, is now being ignored by the high-and-mighty of the political establishment. Not just ignored, but intimidated and brow-beaten to to the line, or else ...



And it is not just politics. KU, God knows why, still has Prof. Mugenda in charge, despite her failure of leadership when her students were getting shot to death by police or alternatively, were setting private property on fire. Our water sector institutions are bedeviled by the worst outbreak of outright embezzlement and corruption in a decade. Our transport sector is ashambles - the RVR concession of the Kenya/Uganda Railways has tottered from one bad decision to another, and now we are setting our sights on a new Brazilian partner.



When will we ever learn? It is a dog-eat-dog world and only the ruthless survive. To survive, you gotta fuck over the guy next to you. If you don't, he'll have you over a barrel with your pants around your ankles. And he won't be gentle. Or have a handy tube of lube with him. As in all things, when they come asking for your vote (they have no choice in the matter), it is your opportunity - nay, your solemn duty - to screw them out of hundreds of millions, because when they end up in the various august houses in 2013, they will take every opportunity to screw us over. Mark my words. Screw them first before they screw you over. It's the circle of life - fuck or get fucked!

Ahmednasir Abdullahi is wrong

I must respectfully disagree with my senior, Ahmednasir Abdullahi regarding the question of Florence Simbiri-Jaoko's decision not to resign as chairman of the Kenya National Commission on Human Rights (KNHCR). In today's Sunday Nation (Jaoko must accept Rights team decision), Mr. Abdullahi makes the case that because Ms. Simbiri-Jaoko was elected by the members of the Commission, she must accept the decision of the vote of confidence against her by the same Commissioners and resign her position as the chairman. His argument is that because her election was an internal matter, her removal by the Commissioners was also an internal matter and that she did not have a legal argument against the internal decision of Commissioners who elected her to the chairmanship. I find this line of argument unfortunate, for it negates what is a basic principle of law, that is, no man shall stand judge in his own cause. I am glad that this is a position taken by my other senior, Donald B. Kipkorir in today's Sunday Standard ( KNHCR commissioners have demonstrated contempt in bid to remove Jaoko from office).

In making his case that Ms. Simbiri-Jaoko should resign, Mr. Abdullahi alludes to "internal wrangles, a crippling credibility crisis, saddled with uninspiring leadership and defined by woeful underperformance". What Mr. Abdullahi has failed to do, just as the Commissioners have, is to articulate the grounds for which Ms. Simbiri-Jaoko deserves to step down. The vagueness surrounding the allegations made against her tend to suggest that the KNHCR has fallen prey to the internal bickering and politics that have bedeviled other national institutions. The speculation regarding the reasons behind the coup d'etat against the chairman suggests that even this important institution is yet to internalise the principle of the rule of law when it comes to its "internal affairs". This is the same argument that repressive regimes like the People's Republic of China, the Democratic People's Republic of Korea, and the Islamic Republic of Iran have used to avoid the attention of international interlocutors like the United Nations or the attentions of world powers like the United States. Is the KNHCR a law unto itself that it cannot abide by the provisions of the law under which it was established?

The KNHCR is funded by tax-payers' monies. It is not a private organisation. If there are going to be changes in its leadership, the people of Kenya have the right, and indeed the duty, to be involved in these decisions. Long gone are the days when government departments, agencies and institutions could operate behind a veil of secrecy without being accountable to the people of Kenya. If the 7 Commissioners are persuaded that the chairman has been derelict in her duty to the people of Kenya, then it behoves them to state their case and let the chips fall where they may. If they managed to push out the chairman without a public reckoning of their decision, would they sit idly by as she was appointed or nominated to another public institution? The Constitution places an onerous obligation on all of us to take public responsibility for the task of defending and upholding its principles, including that of the rule of law.

Despite the fact that the chairman is elected from among the members of the Commission, the law is clear on the process or her removal. This is a mandatory provision and it does not envisage that the Commissioners can suo moto take another vote to remove the chairman. As one of the guiding principles of the Commission, the rule of law must be applied as strictly as possible. We cannot allow what appear to be personal vendettas to be used as a basis for the removal of the chairman without the law being applied as it was meant to be applied. The internal affairs of the Commission have a direct impact on the people of Kenya and these cannot be used as a fig leaf to cover the illegality that the 7 Commissioners are attempting to foist on the people of Kenya. Someone must point out that the emperor has no clothes.

To contextualise the role that the provisions of section 11 of the Act play in the removal of the chairman as Mr. Abdullahi asks us to do, he must cast his gaze wider than the "internal democracy" of the KNHCR and see that when Kenyans overwhelmingly ratified the new Constitution, they were also making a clean break with a past that was characterised by lies, secrecy and personal vendettas. The national values enumerated in article 10 of the Constitution include the rule of law, democracy and the participation of the people, good governance, transparency, and accountability. The 7 Commissioners have indeed shown contempt for thee principles. It is imperative that we do not allow them to get away with it. Anything less, and we are better off inviting President Moi to resume his iron-grip on the affairs of this nation. We owe it to ourselves to remind the Commissioners that the day we ratified the Constitution is the day we stopped being bystanders in the internal affairs of our nation institutions and instead became active participants in their processes and actions.

Ethnic arithmetic is not the only way to address the challenge of cosmopolitan Counties

Someone should remind Mr. Koigi wa Wamwere that we are living the first pages of the history of the Second Republic and his fulminations on the ethinicisation of politics are counter-productive (Why Nakuru can never become a county for one ethnic community, Daily Nation, Thursday September 9, 2010). In his analysis of the challenges faced by the people of Nakuru regarding the question of who will be elected to the County Assembly, the Governorship, the Senate and the Constituencies to be found there, Mr. Wamwere neatly side-steps a pertinent fact: Nakuru is not subdivided neatly into Kikuyu, Kalenjin and Maasai enclaves, but is a truly cosmopolitan County. It shares this profile with other counties including Nairobi, Mombasa, Uasin Gishu, Kericho and Trans Nzoia.

In his analysis of the ethnicity question, Mr. Wamwere betrays the fact that he has refused, ostrich-like, to accept the results of the August 4th referendum. In his continued hold on the idea that politics will continue to be played as it has for decades, Mr. Wamwere fails to offer new ideas for how to ensure that the question of ethnicity will be addressed to the benefit of the constituents of Nakuru County. The fears that he expresses are very real but they should not be the defining feature of politics in the future of Nakuru, indeed of the country.

It is now quite clear that Mr. Wamwere and Mr. Gideon Moi share the same feelings as regards the future of Nakuru, now that it is no longer the headquarters of what was once Rift Valley Province. Mr. Wamwere has conceded an unfortunate and dangerous fallacy: that the Kikuyu and the Kalenjin are illegal usurpers of the land that once belonged to the Maasai. Pursuing this line of thought to its logical conclusion, the Maasai have a legitimate claim on the territory of Nairobi County too! In his erroneous reading of the provisions of articles 67 and 68, Mr. Wamwere is persuaded that the Maasai have a legitimate claim on Nakuru as their ancestral land and that this will be a source of future conflict among the three largest ethnic groups in the County. What he refuses to admit is that in addressing the question of historical land injustices, the solution to these questions will not be limited to the transfer en masse of whole communities from what is adjudicated to be ancestral land of one ethnic group or the other. 

The solutions of the future may include some other action, such as enhanced investment in the livelihoods of communities that may have suffered injustices at the hands of the colonial power as well as the successive regimes that have ruled Kenya since 1963. Mr. Wamwere, Mr. Moi and those of like mind must remind the nation that it will be impossible, if not divisive, to rule that a community has suffered such injustices and then suggest that only 'fair compensation' will redress this injustice if such compensation revolved around the question of restoring them to what was 'rightfully' theirs.

The implementation of the Constitution is going to face many challenges and the voices of Mr. Wamwere and his fellow-travellers are the long ones to listen to. They have spent the better part of their adult lives living under conditions of near-servitude at the hands of the three regimes that have ruled Kenya since 1963. They do not grasp the fact that the younger generations do not hold to the same truths that they do. The future of this nation will not be shaped by 60-, 70- or 80-year olds who have managed to make a political name for themselves in the Kenyatta, Moi of Kibaki regimes. The future of this nation is in the hands of professionals and other stakeholders in the 25 to 45 age group. This is a constituency that admits that while there may have been injustices committed against entire communities in the past 47 years, the solution does not lie in attempting a political, economic and social re-engineering that will rend this country asunder but that it lies in taking stock of the facts on the ground and finding workable solutions that ensure that no person is left behind regarding the enjoyment of his rights.

One of the solutions that could be suggested regarding the knotty problem of cosmopolitan Counties is that in the election of the Governor and Deputy-Governor, the successful candidates must garner 50+1% of the votes cast in the County plus at least 50+1% of the votes cast in at least half of the wards in the County. This could also be applied to the election of the Senator. In this way, the winning candidates will be a symbol of unity for the County just as the President and deputy-President are a symbol of unity of the country. In this way, the winning candidates must ensure that their campaigns reflect the needs and priorities of their constituencies. Therefore, if Mr. Wamwere is correct, the peoples of Nakuru County would have to vote for the candidates who best reflect their cosmopolitan nature and not revert to the ethnic enclaves that have caused so much bloodshed in the past 20 years. If he is incapable of admitting that a solution can be found, Mr. Wamwere, and his like-minded colleagues, must give over to the new generation capable of seeing themselves as more than ethnic cannon fodder for the bloodthirsty, avaricious political class. Somebody needs to shut him down. Permanently.

August 7, 1998 was a precursor to 9/11

Nine years ago the United States of America suffered what has come to be described as the worst intelligence failure since the attack on Pearl Harbour by the Imperial Japanese Navy on December 7, 1941. As a result, the United States formally entered the Second World War and the rest, as they say, is history. On September 11, 2001, President George W. Bush was informed of the surprise attack on the American homeland by operatives of the Al Qaeda terrorist organisation, whose death toll would rise to over 3,000 as the news unfolded. As a result, the people of the United States rallied behind their political leadership as it declared war on those it deemed responsible for the reprehensible act. The world's policeman had been caught by surprise by a dedicated group of murderers who operated out of caves and employed rudimentary intelligence techniques to fly under the radar. In less than 6 months, the United States was bombing the strongholds of Al Qaeda in Afghanistan, a country so backward that there was nothing worthwhile to bomb after 3 days.

On this anniversary of that terrible day, it is imperative to look back and learn from the events of 2001 and their aftermath. 9/11 was the terrible price the Americans paid for encouraging a rag-tag band of cut-throats to develop their skills and then abandon them without giving them so much as a Golden Parachute for their services. The Mujahideen who had been the primary instrument of the Americans in their Cold War with the Soviet Union were financed, trained, armed and unleashed on the occupying forces with the active participation of the Pakistani ISI and the quiet acquiescence of the world. When the Berlin Wall came down, the Americans simply abandoned their erstwhile friends and reverted to their own cocoon of making more and more money at the expense of everyone else. The Mujahideed morphed into the Taliban and some of them became active members of the Al Qaeda, gaining more experience in the killing fields of Chechnya and Bosnia. By the time they turned their eyes to the US, it was too late: they had developed a great amount of anger against that country and the terrible bill came due on 9/11.

Kenya is at a crossroads today. Our borders are not as secure as we would like them to be. There is still the festering boil that is the civil war in Somalia, the tension in Southern Sudan and the insurrection in Northern Uganda. As a result, we have constant streams of refugees with noble and ulterior motives entering Kenya almost at will. Our TV stations have exposed the human trafficking that takes place across our unsecured borders as a consequence of the various insurgencies and the corruption of our security apparatus. If we are not careful, the varous wars will spill over into Kenya and not just in the border areas. These are people who have a lot of experience in fighting guerrilla wars and if they decide to export their wars on our streets, Kenyan society does not have anything tat can match them. It is imperative that our engagement with these nations has an end-game in mind, where their civil situations are improved and their nations are at peace. Only then can we hope to have a secure homeland. The Americans forgot this lesson, and 9/11 was the price they paid. By abandoning the Afghanis to their fate, they did not anticipate the the civil chaos thousands of kilometres away would lead to a terrible blow. If Kenya stands idly by and watches as Somalia, Southern Sudan and Northern Uganda continue to burn, it is only a matter of time before we have another August 7, 1998.

Al-Bashir may be a Bastard, but he is Our Bastard!

When Kenya extended an invitation to Omar Hassan al-Bashir, the Butcher of Darfur, to witness the promulgation of its New Constitution, few knew about it; this is how police states operate. When they are about to do something that will get people's backs up, they tend to be sneaky and secretive. They rarely consider the legal niceties of their actions. Make no mistake: Kenya is a police state that pretends to be a democracy, scheduling regular (blood-soaked) elections and allowing a nominally free press. However, the process that led to the promulgation ceremony was bedevilled by distortions and misinformation on a scale that would have made Joseph Goebbels proud. A lie told thousands of times becomes truth, so said Herr Goebbels and the opponents of the Proposed Constitution spared no opportunity in lying through their teeth to get their way. It seems that one Okiya Okoiti Omtata is determined to carry one the fight long after the umpire has blown the whistle (Best international practice absolves Kibaki of the Al-Bashir visit, Saturday Nation, September 11, 2010).

In his latest diatribe, Mr. Omtata is attempting through some convoluted linguistic gymnastics to equate international law to the Constitution. This was one of the canards that the REDs perpetuated during the Refrendum Campaigns and one that I had thought had been dismissed for the lie that it was. Article 2(1) states that the Constitution "is the supreme law of the Republic ..." Article 2(5) states that "the general rules of international law shall form part of the law of Kenya" while article 2(6) states the "any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution." (Emphasis mine).

In the context of the logic that Mr. Omtata is attempting to foist on the country, it is quite clear that the Constitution is the supreme law. No other law exists over and above the Constitution. A reading of articles 2.5 and 2.6 shows that international law is subordinate to the Constitution of Kenya, and regardless of whatever treaties Kenya has signed and ratified, they shall be subordinate to the law of Kenya. Last week, Peter Mwaura attempted to show that there were at least two possible interpretations of Kenya's actions regarding the Al-Bashir visit: the first being that Kenya could have met its obligations under the Rome Treaty. The other was that Kenya could have complied with its obligations under the African Union Charter, which Moses Wetangula informed us was what the government chose to do.

Mr. Omtata is correct that the rules of international law are not as straight forward as some of the moralists calling for President Kibaki's impeachment seem to think. The West, as shown by the actions of the United States and the United Kingdom, have repeatedly violated the terms of treaties and charters that they have signed and ratified. The United States was a founder-member and a considerable force behind the formation of the United Nations and yet, when it suited its interests, it ignored the provisions of the United Nations Charter and invaded, not just Afghanistan but Iraq too, leading to "collateral damage" on an incredible scale. However, because of its power, no one is going to call for the indictments of George W. Bush or Barack Obama for prosecuting what are essentially illegal wars. The United Kingdom is a signatory to the OECD Anti-Bribery Convention but it was not averse to halting prosecution or investigation of officials of BAE systems in their arms deals with the government of Saudi Arabia, arguing that such an act would compromise its "national security."

In both these examples, international law was subsumed to the national interests of both the US and the UK. Why should we, just because we have recognised the role of international law under Kenyan law, not play fast and loose with the general rules of international law, international treaties or conventions? Mr. Omtata, in attempting to show that the Constitution is deeply flawed, has failed to make a credible point showing that Kenya has reduced itself to a vassal of the perfidious West. If Kenya indeed had placed international law at par with its Constitution, it would have been extremely foolhardy for it to have invited Al-Bashir to the ceremony on August 27, 2010, as this would have placed it at odds with the rest of the world. But an objective look at the reactions of the country's interlocutors shows that they merely made statements; no economic sanctions have been imposed or even proposed. The world keeps on turning.

When the Government of Kenya extended its invitation to Omar al-Bashir, only the naive could have expected that the ICC indictments would be insurmountable when Kenya was considering its national interests. Our failure is not that we did not do anything to ensure that the Government of Kenya complied with the provisions of the Rome Statute; our problem is that we were or have been unable to win the public relations war waged against us. Hon. Wetangula, Vice-President Musyoka and the spokesmen of the Government of Kenya and the Ministry of Foreign Affairs have proven quite inept at this game. Their statements have the whiff of panic about them. In the absence of a creditable PR team in government, these worthies should have taken the time to consider carefully how and what they would say and then chosen one person to make the case. The disparate arrangement of the government has exposed it to political risks that will detract from the effort of keeping its foreign relations on an even keel. In the long term, it wold be irresponsible for Kenya to antagonise a nation with a 108,000-ma standing army; a policy of non-intervention would probably be best. This is the prism through which our relationship with Sudan should be viewed; spending time and effort analysing whether or not Kenya should have arrested President Al-Bashir merely showcases that Mr. Omtata and like-minded windbags simply do not understand the concept of international law, its implications, and what our foreign policy should be vis-a-vis international obligations.

In Defence of Florence Simbiri-Jaoko

The Kenya National Commission on Human Rights, established by an Act of Parliament in 2002, was the result of the realisation that Kenya could not continue on the path to international rehabilitation and recognition if it did not address the core question of human rights abuses by the state as part of the reform process that was going to culminate in a peaceful transition from the KANU Era to the NARC administration of Mwai Kibaki. Its first chairman, Maina Kiai, brought a lot of energy to the Commission from his days in civil society championing human rights on behalf of the silent masses of Kenya. When his term ended, he did the unthinkable: he left quietly without positioning one of his acolytes to take over the institution's chairmanship. It is against this background that we must commiserate with Florence Simbiri-Jaoko, whose tenure at the helm of this institution has been plagued by internal intrigues and public allegations of impropriety.

When the 7 members of the Commission chose to force a vote of confidence against the Chairman, they ignored a core value of the Commission: the promotion of the rule of law. The Kenya National Commission on Human Rights Act provides the means by which the Chairman, or any other Commissioner, may be removed from office. A vote of confidence is not provided. The Commissioners may feel that the vote of confidence may place an onerous moral burden on the chairman and compel her to leave office in light of the feelings expressed by her colleagues.

The Commission has suffered several public relations setbacks in recent months, topped most recently by the resignation of the combative media-savvy Hassan Omar Hassan as the Vice-Chairman, partly in response to the actions of the Chairman herself. However, the Commission has not demonstrated that the former magistrate is incompetent or that she has taken a partisan approach to the management of the affairs of the Commission. Indeed, it may, I suspect, be her management style which has put her at odds with her colleagues who are now calling for her to resign. Mr. Kiai had spent several years in the Third Sector, where the bureaucratic structures of government are absent and he brought this sense of independence to the Commission during his tenure at the helm of the Commission. Ms. Simbiri-Jaoko was for many years a magistrate and she was steeped in the management policies of the Government of Kenya. It is only natural to expect that, even after the years she spent as a Commissioner, that she would be loath to abandon a management style that had served her well. Unless the rogue Commissioners can show that her chairmanship has had an adverse effect on the operations of the Commission or lowered the dignity of the Commission or brought it to disrepute, they do not have the right or the authority to call for her resignation.

Ms. Simbiri-Jaoko is correct that t would be unfair for her detractors to demand that she run the Commission the way Maina Kiai did. She is not Maina Kiai and she has not had the same experiences as he. Even if she did, it would be impossible for her to emulate him in every aspect of the management of the Commission. It is only natural that while following the broad footsteps that had been laid by Mr. Kiai, she would attempt to craft a management style all of her own. This is not a ground for the removal of the Chairman of the Commission. To remove the Chairman, the provisions of section 11 of the KNHCR Act shall apply and they state:

11. (1) The office of a person appointed as the chairperson or as a commissioner shall become vacant if the person -

(a) dies; or

(b) resigns from office by writing under his hand addressed to the President; or

(c) is convicted of an offence and sentenced to imprisonment for a term of three months or more without the option of a fine; or

(d) is unable to discharge the functions of his office by reason of physical or mental infirmity as certified by two registered medical practitioners; or

(e) is absent from three consecutive meetings of the Commission without good cause; or

(f) is declared bankrupt by a court of competent jurisdiction.

(2) The President shall notify the termination of the appointment of the chairperson or a commissioner under this section by notice in the Gazette.

(3) Without prejudice to subsection (1), the chairperson or a commissioner may be removed from office for misbehaviour or misconduct; or, if the commissioner is convicted of an offence involving moral turpitude but not sentenced to a term of imprisonment, but shall not be removed except in accordance with this section.

(4) Where the removal from office of the chairperson or a commissioner arises under subsection (3) -

(a) the Chief Justice shall, by notice in the Gazette, appoint a Tribunal which shall consist of a chairperson and two other members selected by the Chief Justice from among persons who hold or have held offices as judges of the High Court;

(b) the Tribunal shall inquire into the matter and report on the facts to the Chief Justice and recommend whether the chairperson or the commissioner ought to be removed from office and the Chief Justice shall communicate the recommendations of the Tribunal to the President.

(5) Where the question of removing the chairperson or a commissioner has been referred to a Tribunal under subsection (4), the President may suspend the chairperson or the commissioner from the Commission and the suspension may at any time be revoked by the President and shall in any case cease to have effect if the Tribunal recommends to the President that the chairperson or the commissioner, as the case may be, should not be removed.

The rules for the removal of the Chairman are clear. If the 7 Commissioners who voted against her in the vote of confidence are convinced that Ms. Simbiri-Jaoko is unfit to hold the office of Chairman, it is imperative that they live up to the core values of the Commission and invoke the provisions of section 11 of the Act. Any other action on their part would constitute an abandonment of the rule of law as the guiding principle in this situation and instead, they would be operating like a kangaroo court. They are interested parties in the question of whether Ms. Simbiri-Jaoko should continue to serve in her capacity as chairman. Therefore, they cannot be the judges in the matter and it is imperative that they call on the Chief Justice to convene a Tribunal to determine whether or not she can continue in office.

One of the promises we made to ourselves on August 4th was that matters to do with the management of our national institutions would be conducted under the rubric of the rule of law. Therefore, if the Commissioners wish to demonstrate their fidelity to this canon, one that is a core value of the Commission, they must abide by the stipulated statute and call for a Tribunal. In the alternative, they should accept that she will never be her predecessor and that it is time that they moved forward from Maina Kiai's halcyon tenure and find more constructive methods to make Ms. Simbiri-Jaoko the successful leader that they want her to be.

Time to Govern

Okiya Omtata Okoiti is at it again, this time having trained his guns on the process of vetting judges, equating the yet-to-be-appointed panel to a kangaroo court that will be "unfair, unjust and counterproductive" (Yes, reform the Judiciary but do not subject judges to mob justice, Saturday Nation, September 4, 2010). He argues that the process will negate the rule of law and deny the judges' constitutional rights to the equal protection of the law and freedom from discrimination. How he draws these conclusions from a programme that has yet to commence is beyond the realm of reason and betrays his deep animus against the Constitution, one that was ratified by the majority of Kenyan voters, and one that was adopted in view of the fact that many of our national institutions, including the Judiciary, had fallen into disrepute.

Mr. Omtata is holding onto the fallacy that one part of the Constitution is superior to the other, a position that was adopted by the High Court of Kenya in the now infamous Kadhis' Courts case decided a few weeks before the Referendum of August 4, 2010. Legal scholars of no mean repute, including the Minister for Justice, have weighed in that it is not possible to read the Constitution selectively, that the whole is to be read as one and that no portion of the Constitution is greater or superior to the other. However, the Constitution is drafted in such a manner that the process of tampering with the Bil of Rights is made necessarily more difficult than has been our experience under the old Constitution. Therefore, the rights of the Judges as enshrined in the Bill of Rights will be jealously protected. If any of the judges undergoes what he or she determines to be an unfair process, their rights as found between articles 26 and 51 (Chapter 2) can be exercised for their benefit and they will take their chances with the judicial institutions that we wish to reform.

Mr. Omatata is blind to the fact that for decades the judiciary has been the stumbling block to effective administration of justice, where justice was for sale and only the high and mighty amongst us could afford to approach the hallowed halls of the judiciary with any confidence. majority of Kenyans have been subjected to the short end of the stick and many have been denied their rights, have been deprived of their property and have suffered incarceration or worse as a consequence of judgments handed down by incompetent and corrupt judges and magistrates. One of the reasons why Kenyans agitated for over 3 decades for a new constitutional dispensation was the fact that the Judiciary was no longer perceived as an honest arbiter of disputes. It had become a club whose membership was restricted to men and women who were incapable of seeing the law as a tool for righting the wrongs in society and instead became a weapon which the State used to suppress and oppress the majority. In many of the hearings held by the Ghai Commission, the people desired a change in the Judiciary and vetting was deemed to be the only method that would pass muster. Many of the submissions that were made to the Committee of Experts reinforced this view and so it was that section 26 of the Second Schedule was enacted. In talking about the rule of law, Mr. Omtata must admit that the vetting of judges and magistrates falls withing the ambit of the implementation of the Constitution and it reflects our deep desire to be governed according to the rule of law. Unless he is suggesting that we should revert to the old way of doing things in which the law was applied selectively, he must bow down to the wishes of the majority who wish to see the Judiciary reformed and reconstituted. On this question, Kenyans have been adamant and Mr. Omtata must provide proof positive that the process has been or will be compromised before he starts labelling a yet-to-be-appointed panel a kangaroo court.

Mr. Omtata is right to ask that the vetting of judges and magistrates should not violate their fundamental rights. However, given that the vetting has been codified in the Constitution, it is up to Kenyans to take this process seriously. Kenyans must be involved every step of the way, from the appointment of the independent panel to the procedures and rules that it will adopt to the acceptance of the recommendations that it will make without rancour or animus. The Judiciary will be the primary organ for the proper interpretation of the Constitution and it is imperative only judges and magistrates of integrity, intelligence and skill be allowed to interpret the Constitution. If the process of vetting gives us an independent Judiciary that we can trust, the process will have succeeded. Its success however, will be determined primarily by how much involved as a nation we are willing to be. Therefore, it is a good thing that membership of the panel is as as broad-based at it is with its membership not drawn exclusively from the legal fraternity. The interpretation of the law is so important that it cannot be left in the hands of a minority, but must seek to reflect the professional diversity of the nation. Therefore, by making the panel as representative as possible, the drafters of the Constitution have ensured that the process will not be limited to legal or technical matters only, but will also address moral and other factors too. Mr. Omtata has agitated over the years for the inclusion of the people in the management of the affaits of state, so I would think that he would be the first to suggest ways and means in which the panel could accomplish its mandate to the best of its ability instead of taking potshots at the panel even before it has began its task. Mr. Omtata, it is time to govern. The days of agitating from the sidelines is over. Put up or shut up!

It takes a village ...

The Standard is publishing a three-part expose on the evils visited on children in Kenya, especially at the Coast. In 2006 when these issues were first highlighted, it was First Lady Lucy Kibaki who came out strongest for action to be taken to ensure that childhoods are not ruined by the sexual proclivities of the evil ones among us. Sadly, her exhortations fell on deaf ears. Millie Odhiambo (ODM, Nominated) styles herself as the 'MP for Children' but I do not recall a single instance in which she has raised her voice in defence of children in the National Assembly. Her public appearances since she was nominated to Parliament have revolved almost exclusively on the petty political intrigues that have surrounded her party of choice. Njoki Ndung'u was almost single-handedly responsible for the passage of the Sexual Offences Act, but she too seems to have rested on her laurels and there seems to have been a definite atrophying of efforts to further develop the law so that the innocent are protected from abuse or exploitation.

The Constitution proclaims at article 45 that "Family is the natural and fundamental unit of society and the necessary basis of social order, and shall enjoy the recognition and protection of the State." It further proclaims at article 53 that "(1) Every child has the right ... (d) to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, hazardous and exploitative labour ..." and "(2) A child's best interests are of paramount importance in every matter concerning the child."

The Children Act at section 13 states that "(1) A child shall be entitled to protection from physical and psychological abuse, neglect and any other form of exploitation including sale, trafficking or abduction by any person" and "(2) Any child who becomes a victim of abuse ... shall be accorded appropriate treatment and rehabilitation ..."

The Children Act came into force in 2001 and in that period the State has done nothing to improve the lot of children living and suffering in Kenya. The hideous truth is to be seen daily on our streets and in our so-called five-star tourist hotels, especially at the Coast. Yesterday, it was reported that a person or persons unknown had managed to traffic into Kenya children aged between 5 and 14 for purposes that remain unclear and that they were abandoned on the streets of Nairobi to fend for themselves. If it were not for the actions of a man in the employ of a children rights non-governmental agency, they would have been left to navigate the dangerous streets of our fair city. Quite clearly, the provisions of the Children Act criminalising child-trafficking are yet to be internalised by our immigration or security authorities. If not, how do you explain the fact that children incapable of making their way out of their village managed to travel from the border with Tanzania at Isebania all the way to Nairobi without anyone batting an eyelid or asking a question?

It can be argued that since they were not Kenyan children, there is nothing much we can do about their straitened circumstances. However, this is not the same buck-passing philosophy that we can employ with our own children. It has been stated that a primary cause of the plight in which Kenyan children find themselves is poverty and that this motivates them and their families to engage in activities that without which they could not survive. This is horse-shit!

The State has a responsibility to ensure that ALL children are protected. The State is personified in the President, the Prime Minister and their Cabinet, in the Provincial Administration, in the local authorities and in the various state agencies and departments that tax us so heavily and deploy their coercive resources to keep us down when we protest. The State has failed its children and it is up to us, as law-abiding, tax-paying, otherwise obedient citizens to point out that with the coming of the new Constitution, it is no longer business as usual. The child-rights agencies are pushing against the sky in this effort and the State must begin to take its responsibilities seriously if it is to be taken seriously.

For starters, the State, in all its manifestations, must begin to re-direct its resources to ensure that children enjoy the rights that are inalienably theirs. White elephants must take back-seat to the need of providing for children country-wide. Before our Members of Parliament and their acolytes avail themselves of tax-free allowances, they must ensure that schools are built, teachers are provided, hospitals are staffed and medicines provided, and children have food in their stomachs and roofs over their heads. Family is the basis for social order and in children that social order is affirmed when they are healthy and safe. As individuals we cannot walk past the innocent faces of children everyday, simply worrying about our lives as if they are an inconvenience for others to worry over. An old African adage goes that it takes a village to raise a child. It is our responsibility as Kenyans to raise our children in safety and this is not limited to the fathers and mothers who sired and bore these children. When you see a child being used or abused, you must take action to ensure that the safety of that child is assured. It is your responsibility as much as that of the State.

The penalties for allowing children to be so ill-treated must be enforced to the maximum and maybe, even enhanced. It is rumoured that when a child from a poor family is sexually assaulted that sometimes the parents enter into an out-of-court settlement with the child's abusers or sometimes that the abuser himself bribes his way out of prosecution. This is mind-boggling. I have read the Criminal Procedure Code cover to cover and nowhere does it provide for plea-bargaining. Who are the prosecutors who decided to withdraw these cases from the court docket? Who are the magistrates who allowed this passage of affairs? Who are the prosecutors and policemen who received bribes and allowed the destroyers of dreams to walk among us? If you know of any public officer who allowed perpetrators of these heinous crimes to walk free, this is your opportunity to remind them that, in the words of another African saying, "Siku za mwizi ni arobaini." The vetting of judges and magistrates is about to take off. The National Police Service Commission is about to be appointed. As responsible citizens it is our duty and responsibility to report these public officers to these bodies to ensure that they do not continue to hold positions of rank or authority while innocent children suffer the effects of the decisions that they have taken. And those parents who placed their children in harm's way must be prosecuted to the fullest extent of the law and those who profited from the plight of these children must pay the price too. This is Kenya and it is no longer OK to walk tall when children are laid low. Children rights should be the defining moral question of the Kenyan Twenty-first Century.

Let the Children Vote

Why shouldn't the voting age restriction be abolished? Indeed, some of the rights hat Kenyans can exercise can only be exercised when they turn 18. Why shouldn't the age requirement to enjoy these rights be abolished? The Registration of Persons Act (Cap 107, Laws of Kenya) states that a person who has attained the age of 18 shall upon attaining such age present himself to a Registrar of Persons within 90 days and provide such particulars as specified in the Act for the purposes of being registered and being issued with a national identity card. This identity card is the primary document for the acquisition of a passport and a voter's card. A passport ensures that your right to leave or enter the territory of Kenya shall not be infringed. A voter's card ensures that you shall be in a position to exercise your democratic right to vote at an election, by-election or referendum. It is to the latter that I wish to turn my attention.

Children have unique needs. It is the responsibility of both parents to ensure that their children enjoy their childhood, that they are protected from harm and that their basic needs of education, health care, food, clothing and shelter are provided. They are to be protected from coercion, abuse, neglect or any other form of  injury that they be at risk from. It is the responsibility of the parents to protect their children and this responsibility may ends when the children attain the age of majority. However, during the eighteen years of childhood, children will be affected by the decisions their parents make, especially in the choice of leaders that they elect to public office during elections and by-elections. 

Over the past 47 years of Independence, parents have made poor choices, especially when you consider the pivotal role such leaders have played on issues that affect children directly or indirectly. It is our political leaders who have made decisions regarding education, health care, the environment, security, the national debt, war and peace, and national cohesion, and many of their decisions have been wrong and wrong-headed, informed mainly by political expediency and some perverted sense of ethno-nationalistic chauvinism. The needs of the children have played second fiddle to the needs of the political actors in Kenya.

Examining the question of security, children by far have faced the brunt of the cost of poor security in our towns, cities and villages. In the recent past, the murder, rape and abuse of children has become widespread with not a week passing before some other atrocity is visited on the innocent ones. Security decisions are made without considering the needs of the children for they do not vote, therefore, they do need to be considered. But it is in the realm of education that children have truly been short-changed. 

In perpetuating the current education system, the needs of children are given lip service and they are abandoned to classes that are over-crowded, teachers who are apathetic and a system that has not been overhauled in nigh on 30 years. Education is the key to unlocking the prosperity of an individual, offering him tools and skills that will ensure that he will lead a comfortable life. In robbing children of this opportunity, the political class has played a commanding role in this theatre of the absurd and they have done so knowing that children will not hold them accountable for their misdeeds. Successive Ministers for Education have neglected the educational needs of children, instead choosing to concern themselves with new ways and means of stealing from the public coffers. Meanwhile, it s not unthinkable to imagine that the newly overcrowded classrooms in our thousands of public primary schools will continue to suffer from the malaise and rot that has permeated the public service for the past few decades.

Children have a right to be heard. They must be heard when politicians suggest that there is no money for the hiring of teachers when there is a shortage that runs into the tens of thousands. They must be heard when politicians fail to take into account that children from other nations enjoy the benefits of new thinking in education, especially considering that increasingly these children have to contend with a shrinking world in their futures. They must be heard when the government chooses to expend billions in new weapons systems at the expense of desks and chairs and books for the schools. The frustrations of children are increasingly being demonstrated when they go on 'strikes' in their various boarding secondary schools and set public property on fire. Their frustrations are demonstrated by the increasing number of children who use and abuse narcotics and alcohol and other types of drugs. Today, thousands of children are being diagnosed with clinical depression as a consequence of the neglect that they face both at home and at school. The myriad children charities and organisations try to stem the tide but their efforts amount to nothing for children do not have a political voice of their own.

Children can only be heard when they become active participants in the political process. This can only come around if they have the vote. Many of the values that we inculcate in our children seem to atrophy when they enter their youthful stage and die when they become full-grown adults. It is to children we must turn if we wish to reverse the rot that has permeated the political process. Children are taught to hold the truth above all else. Children do not understand the moral gray areas that seem to pervade the decision-making processes of adults. If a child is asked to choose between a thief and a murderer, he will choose neither for neither is good. Children have the capacity to look for and hold out for only the good in society. If they were to make their presence felt in the political arena, many of the crooks, snake-oil salesmen, charlatans, liars, thieves and murderers who walk the corridors of power would instead be in the dock, getting their just desserts. In the 21st Century, it is imperative that children have a voice. This should be the moral question of our time.

What is our Foreign Policy?

When Kenya Promulgated the Constitution, the smiling visage of the Butcher of Darfur was right there next to the saviour of the nation, Kofi Annan, the former Secretary-General of the United Nations, who had done so much to bring this nation from the brink of civil war. The Civil Service, through statements by Amb. Francis Muthaura and PS Francis Kimemia, had all along created the impression that it was Salva Kiir, the First Vice-President of Sudan and the President of Southern Sudan, who had been invited. Indeed, Mr. Kimemia went out of his way to assure the nation that the reason why Wilson Airport had been shut down was so that the military aircraft flying during the ceremony would do so without interference. The condemnation of the international community was as swift as it was harsh. Even members of the Cabinet, including the Prime Minister, have condemned the invitation of Omar Hassan al-Bashir to the ceremony, stating that Kenya was in violation of international treaties it has signed in which it commits itself to meet its obligations, especially under the Rome Statute, to arrest and deliver President Bashir to the International Criminal Court at the Hague where he has been indicted on war crimes charges.

Whether Kenya should have arrested President Bashir has become the new political football between the two coalition partners and threatens to sour the euphoric mood engendered by the promulgation of the Constitution. It is moot that he would not have been invited if the Government of Kenya had not indicated that it would not arrest him. Indeed, Moses Wetangula (PNU, Sirisia and Minister for Foreign Affairs) attempted a mealy-mouthed explanation of why Bashir had been invited and why Kenya had failed to arrest him. Hon. Wetangula is a pugnacious politician who seems to think that all his critics are idiots and that they do not have a right to question his decisions as minister. He follows a path that had been charted by his predecessor, Raphael Tuju, who used his office to carry on his war with Raila Odinga, going to the extent of hiring ambassadors who had had a falling out with the ODM leader.

Ever since Mwai Kibaki became president in 2003, Kenya's foreign policy has seemed to be unclear and unfocussed. It is not clear what our strategic foreign policy objectives are and whether or not we are meeting them. Mr. Tuju was instrumental in re-focussing our foreign policy away from the West and towards engagement with our near-abroad as well as a deepening of ties with the People's Republic of China. At present, it is our relationship with China that seems to define our foreign policy. China has become one of our largest development partners, funding to a large extent President Kibaki's Government's infrastructure development programmes all over the country. Chinese companies are responsible for the construction of the thousands of kilometres of roads all over the country and the quality of their work or their speed cannot be gainsaid.

Diplomacy is war by other means and our diplomatic corps is engaged in a war of survival for this nation, ensuring that development partners and other parties are kept on an even keel in the national interest. For the moment, it is in the national interest to take advantage of the Chinese largesse because it comes with very few strings attached. Our previous engagements with the West gave us the disastrous Structural Adjustment Programmes of the 1990s that did so much to lay the Kenyan economy low and exacerbated the gulf between the rich and poor. However, despite this recent dalliance with the Communist regime, the European Union and the United States remain by far our largest trade partners. Until Kenya starts to sell flowers and other products to China in the same volumes as to the West, China's engagement with Kenya will continue to be one-sided with the Chinese getting the better end of the deal. 

Njenga Karume, as Minister of State for Defence was instrumental in deepening military ties with China, but still saw fit to continue allowing the British army Training Unit-Kenya to continue operating in Kenya. It is the same case with the United States; US Naval vessels still keep making port calls at the Kenyan Coast in their engagements with the militants in Somalia and the Horn of Africa. Indeed, at one time Kenya was considered the most preferred choice of the US Africa Command, before politics forced the Americans to locate it in Berlin, Germany.

It is always a risk to give any one foreign power so much leverage in the affairs of a country. Kenya should tread carefully with the Chinese. Our experiences with the West have taught us that when one foreign power exercises great leverage at the expense of others, the results are always in favour of the the foreigner than Kenya. The SAPs of the 1990s ensured that Kenya's economy failed to meet the needs or priorities of the country. The Chinese claim that they will not interfere in the internal affairs of the nations it deals with, but this also means that they will deal with dictatorships as well as democratic governments so long as their interests are addressed. That is why the Chinese have been instrumental in shielding Bashir from sanctions by the UN Security Council for defying the ICC. Kenya should take urgent steps to review its foreign policy, especially now that we have a new Constitution, in order that it shall never be held hostage to the demands of any one foreign power. Sooner, rather than later, it will be imperative to depoliticize the Foreign Office with a view to professionalising the diplomatic corps, ensuring that only the best and the brightest serve this nation's interests. Moses Wetangula, sadly, epitomises the rot that has permeated the service and it is time he was given the sack. Only then can Kenya successfully navigate the treacherous waters that are the international relations.

Teen drinking

John Michael Njenga Mututho (KANU, Naivasha) is on a campaign to better regulate the alcoholic beverages industry by moving a motion that would seek to regulate the manufacture, sale and distribution of all alcoholic beverages in Kenya. He has a point. In the recent past, many Kenyans have died or been blinded by the effects of methanol-laced alcoholic beverages, some produced in industrial units. It seems that the standards bureau has been ineffective in ensuring that the quality of what we consume is regulated effectively. This is not the first time that Kenyans are suffering injury or death after enjoying a drink at their local, but it seems that the government is not interested in checking the proliferation of distilleries that peddle such toxic offerings to the unsuspecting public. Every time there is such a mishap, the Provincial Administration swings into action and a few jua kali distilleries, usually in our expansive slums, are raided and the contents of their drums poured down the drain. This is what Hon. Mututho seeks to change.

The National Campaign Against Alcohol and Drugs Abuse Authority (NACADA) is the government's chief agent in educating the public about the harm that alcohol and drugs cause in people. It has been a failure for the most part. The number of youth who indulge excessively in alcohol and drugs is increasing. NACADA had a victory in seeing the Tobacco regulation Bill become law in 2008. If they have their way, the Alcohol Regulation Bill will also become law. However, it will not solve the underlying problem of alcohol and drug abuse among the youth.

In Kenya, even after the East African Breweries started insisted on carding people at clubs and pubs, images of teenagers smoking and drinking still continue to emerge. One news story showed how the students of a secondary school in Nairobi's Ngara area, in uniform no less, managed to access a pub near their school even on school days. Nairobi School was famous for the number of students caught in police swoops in Kangemi pubs. It got so bad that the police actually set up a police post in the school to ensure that the children concentrated on the studies and not on happy hour at the hundreds of vibandas that dotted Kangemi. Up-country students, more often than not, know the location and price-lists of every chang'aa den in the vicinity of their schools and frequently end up being the number-one customers. This is a problem that is getting out of hand and in some districts, it has become an epidemic.

Even if Hon. Mututho and NACADA successfully steer the alcohol Bill through Parliament, unless they start to educate the youth about the pernicious effects of alcohol and drugs, the problem of lethal brews will not go away and the arrest and prosecution of chang'aa brewers will not cease simply because there is a new law that requires them to meet KEBS standards. In the West, this problem is usually tackled by punishing heavily the owners and managers of pubs who 'contribute to the delinquency of the youth'. This should be a rule adopted in Kenya. It should be made prohibitively expensive for a pub owner or such similar person to offer for sale, sell or supply any person under the legal age any alcoholic drink or tobacco product. The children should not be let off either. In addition to constant education on their ill-effects, teenagers should face the consequences of their actions too. Some form of punishment is warranted that impress upon their still-forming minds that it is wrong to circumvent the law, even when one is a minor. In the end, if we value the children that we have charge over, we cannot sit idly by as an entire generation becomes captive to substances that are clearly harmful to their health and evey parent, guardian, care-giver and adult should take part in ensuring that minors are protected, even from themselves.

Where is our Martin Luther King, Jr?

If you have been wondering why our political leaders make such poor speeches, wonder no more. It emerges that none of them has a professional team of speechwriters to do the heavy lifting. President Kibaki and Prime Minister Odinga rely on a tried and tested system that relies on career civil servants to do the speech-writing for them. It shows in how the speeches lack the political inspiration that, say, speeches by American presidents have.

During the 2007 General Election, Raila Odinga attempted to run what was essentially an American-style campaign. It was a failure. President Kibaki did not even bother to campaign. The less said of the other political aspirants, the better. They relied on the old system of calling on our basest instincts to make their political statements. This is the reason why it is impossible to remain inspired by a politician and why we tire of them so soon after the last ballot is cast.

The Promulgation Ceremony at Uhuru Park was an opportunity for our leaders to inspire us to greater heights of self-sacrifice and dedication to the good of the country. They failed us once again. The Prime Minister styles himself as a rhetorician of the first order and he is capable of inspiring feelings of loyalty among the multitudes that throng his rallies. But he is no JFK or MLK. His speeches are bland and unremarkable, remembered only for the target of his particular ire when they are made. They are easily forgotten and it takes a dedicated Fourth Estate to regurgitate for the masses the paltry offerings of the perennial presidential candidate. In Salim Lone, he seemed to have a person who could, conceivably, re-shape his engagement with the people, but he quit in frustration seeing that his public relations skills were of no use to a man who will not, or is incapable of, listening to any voice other than his own.

Dr. Alfred Mutua, the government spokesman, has also failed to articulate the president's thoughts effectively. His press briefings have the feel of a Soviet-Era love-in, where the leader speaks and the masses adulate, whether they heard the speech or not. His job is akin to reading the menu at a restaurant; the information that he supplies could be gleaned from the front pages of our dailies without straining the gray matter.

Movie directors tend to take liberties with the subjects of biopics, but they usually stay true to the essence of the person they are filming . about. Watching the film Boycott, one cannot but admire the way Martin Luther King, Jr, prepared and rehearsed fro his public engagements. He would research deep into the night the remarks that seemed to off-the-cuff but which packed a powerful message to inspire the masses in their boycott of the racially segregationist policies of Alabama. President Ronald Reagan in his first inaugural address is remembered for intoning the words that government is not the solution to the (economic) problems that bedevilled the American people in 1981, but the problem. President Obama, as the Democratic Party's Presidential Candidate, will be remembered for inspiring the American people with his messages of change and hope during his remarkable presidential campaign. The same cannot be said for Raila Odinga or President Kibaki.

PLO Lumumba is eloquent and erudite in equal measure. His public speeches are usually well-drafted and delivered in a tone that evokes the spirit of Martin Luther King, Jr. But, even he, falls short of inspiring the nation. The statements that he has made after his confirmation as the new Director of the Kenya Anti-Corruption Commission, have been loaded with rhetoric ut have been short of policy statements of what he intends to do or how intends to do it. He does not inspire confidence going by his statements.

The next few years will require the nation to rally around the difficult task of implementing our progressive Constitution. The role of inspiring the people to greater sacrifices and dedicated hard work will fall upon our leaders. If they are incapable of writing, or having someone else write, inspiring speeches towards this goal, the job of implementing the Constitution will start to feel like a chore and the people will quickly lose interest and start to complain of the ills that the Constitution has failed to eradicate. Simply telling the masses that this is the best Constitution ever is not enough. We must feel a need to participate. We must be inspired. Our leaders should not fail us in our hour of need for we need them more today than ever before. Where will the inspirational speeches come from, I wonder?

WILL 2012 BE KALONZO'S WATERLOO?

Ukambani has been reduced to three counties: Makueni, Machakos and Kitui. At present it has 17 MPs, led (if that is what it is) by the Vice-President, Kalonzo Musyoka. However, his hold on the leadership of Ukambani is not assured with the presence of Charity Ngilu and John Harun Mwau in the field. In recent months he has lost the support of the two Kilonzos, Charles and Kiema, both members of his party, ODM-K as a consequence of his vacillation on the question of whether or not to ratify the Proposed Constitution of Kenya. Even Hon. Ngilu's recent rapprochement with the Vice-President was not an endorsement of Kalonzo's leadership of the Akamba Nation.Save for the staunch support of the Hons. Mutula Kilonzo and Johnstone Muthama, Kalonzo increasingly cuts a lonely figure. Who can forget Hon. Wavinya Ndeti's harsh rebuff of the Vice-President some time ago? Or the continued antics of Kalembe Ndile?

The battle for supremacy ahead of the 2012 presidential elections sees Kalonzo as a viable candidate, especially if the so-called KKK alliance with Hons. Ruto and Kenyatta still holds true. However, as a Daily Nation cartoon so hilariously asked, what does Kalonzo bring to the table? Hon. Ruto was instrumental in rallying the Kalenjin Nation, almost to a man, in rejecting the draft. Hon. Kenyatta has been identified as the primary flag-bearer from Central Kenya, if the Maragwa 'fund-raiser' was an indication of the feelings of the House of Mumbi. Kalonzo could not rally the Akamba behind him in a convincing manner. Indeed, he was even thrown out of Kathiani by the same people he would be begging for votes in 2012. It seems his halcyon days, when he managed to pass between Raila and Kibaki in 2007, are behind him and he has to start from scratch rebuilding his Ukambani juggernaut afresh. Will he succeed?

It is said that you underestimate the Vice-President at your own peril. He has demonstrated that he is capable of removing obstacles that stand in his way. Poor Mutua Katuku and Kalembe Ndile learnt this the hard way when the ODM-K juggernaut rolled over them in 2007. Katuku has faded from sight and Kalembe is busy trying to resurrect his political career by jumping onto every anti-Kalonzo bandwagon that rolls into town. However, Charity Ngilu and John Harun Mwau proved that Kalonzo's writ does not run large over the entire Ukambani region and that it was possible to outspend and out-strategise the wily V-P.

Just like in the dying days of the Nyayo Era, it is now said that the man to beat in 2012 will be Raila Amolo Odinga. Who among the minnows will it be: Ruto, Uhuru or Kalonzo? Those reading the political tea leaves tell us that Ruto, Uhuru and Kalonzo must present a united front if they have a chance of denying Raila the presidency a second time around because between the three of them they control a larger political constituency than Raila. If this is true, Ruto and Uhuru have already proven that for the time being they command a far larger and visible political constituency than the V-P; that they have cemented their places as the leaders to beat in their respective regional strongholds. For Kalonzo to play at their level, he must prove that he commands a far larger constituency in Ukambani than what was revealed during the recently concluded Referendum. He must overcome the perceived view that 'his' people no longer trust him and that he can still bring out the Akamba en masse to vote for him.

2012 is unique because we will be choosing a President and Deputy-President. The winning candidate does not have the luxury of appointing his supporters from the legislature to the Cabinet. That particular pork-barrel has been yanked away by the New Constitution. Therefore, Kalonzo has to persuade his erstwhile allies that he is the primus inter pares, the first among equals. Will he be able to do so especially with his apparently diminished pull in Ukambani? He must also ensure that a sizable chunk of the 290 elected MPs in the 1st Parliament of the 2nd Republic consists of his allies or members of his political party otherwise he may be unable to govern effectively with what will essentially be a hostile Parliament nipping at his heels. Kalonzo must begin the arduous task of building a winning national coalition that will ensure that his party or his party in a coalition with other parties controls Parliament. This means ensuring that he teams up with people who will ensure that the Presidential votes from a majority of the 47 counties swings for him. If he is unable to do this, hs career is as good as over. If he loses the presidential election he will not even have the satisfaction of being appointed V-P again or a Cabinet Secretary. The Constitution, again, has removed this option from the table. He can't even be appointed to some parastatal or an ambassadorship somewhere. He may have to retreat to the Kalonzo Musyoka Foundation, though no one knows what exactly it does or indeed, whether it has done anything.

But it is in Ukambani that his machinations may come to nought. There will be 3 counties up for grabs with about 60 county seats in contention. John Harun Mwau, Charity Ngilu and Kalembe Ndile will ensure that Kalonzo spends valuable capital ensuring that his supporters control Makueni and Kitui Counties. For the moment, it does seem that Ruto and Uhuru can count on their supporters controlling the seats in the Counties in their backyards. This is not the case in Ukambani for Kalonzo. He has managed to lose the support of the MPs in his own party. It may be that Kiema and Charles Kilonzo and Wavinya Ndeti are not the powerhouses they style themselves to be, but they can ensure that the battle is lost. It may be that their rebellions are signs of things to come. Between them and Charity Ngilu and John Harun Mwau, they control 5 constituencies and approximately 25 county seats. These are sufficient to create momentum against the incumbent V-P and create the impression that he does not have a grip on things in his own house. That could prove dangerous while running for the presidency. It may create the impression nationally that he is not a safe pair of hands to hand over the reins of state to. And that would put paid to his ambition of being president.

For the time being, the politicians will be busy ensuring that the Constitution is implemented in a manner that will ensure that they continue to enjoy many privileges when the next general elections occur. That means that Kalonzo has an opportunity to rebuild his political constituency and build up sufficient political capital such that in 2012 he will be a serious player in the same rank as the resilient Prime Minister. That mans persuading, arm-twisting and otherwise commanding support among the remaining two power-brokers. If he fails to prepare sufficiently, 2012 will be his Waterloo and he will have none to blame but himself.

Trust, but verify

Ronald Reagan (1911-2004) knew a thing or two about politics. At the height of the Cold War, when the Americans were negotiating the Strategic Arms reduction Talks (START) and the Strategic Arms Limitation Talks (SALT), Reagan stated that one had to trust but verify the results of that trust. Mutula Kilonzo (ODM-K, Mbooni and Minister for Justice, Constitutional Affairs and National Cohesion), wants to rush the process of implementing the Constitution. I say: Trust but Verify!

I very rarely agree with Donald B. Kipkorir, but he is right that we cannot sit idly by as the politicians run away with the process. The Constitution gives us the opportunity and the right to participate in the process. The record of activities where the politicians have taken the lead has been a disappointing one, to say the least. In the absence of strong political parties and with their penchant for 'regional balancing', whatever they do tends to have the whiff of compromise and political horse-trading around it. This is the system that we seek to dismantle and bring about a re-awakening of the Kenyan political spirit, one that was last seen in the dying days of the FORD movement of the 1990s. If we are to have a successful implementation of this Constitution, we must ensure that the process is not left in the exclusive hands of a cabal that has done its best over the years to take care of their interests at the expense of ours. In the absence of a credible civil society movement, it is left to the Mwalimu Matis, Donald B Kipkorirs, and Timothy Njoyas to keep the politicians honest. However, this does not mean that we sit back and relax: we must re-examine why and how we participate in the political process and take the required steps to become full partners in the implementation of the Constitution.

Our apathy as a nation permits us to blame the state for all that ails us. In the old order it was OK to state that opportunities were denied to the citizenry when it came to political participation. This excuse is no longer tenable. The Constitution places an onerous obligation on the citizenry to educate itself on its contents and to take its rightful place in its implementation. In the coming years, the National Assembly shall make laws in regard to the Land Chapter, Devolution and the Recall of Parliamentarians and Members of County Assemblies. We must ensure that the Bills that get debated in Parliament reflect our desires. It should not be that Mutula Kilonzo and his pals in the Parliamentary Select Committees drive the process with a view to protecting their interests alone. If he does so, we must challenge him at every step. It would otherwise be business as usual and we will have ourselves to blame if the politicians fuck up this process.

We must, therefore, take Hon. Kilonzo's plan to rush to Parliament Bills on the implementation in the absence of the Constitutional Implementation Commission or the Constitutional Implementation Oversight Committee very seriously as he will be operating without the scrutiny or oversight of two very crucial public institutions. This would be his opportunity to ensure that our priorities are given short shrift. I must point out though, that the Minister has proven himself a man in search of a destiny too. The way he shepherded the Constitution through its final stages was inspiring. He showed that it was possible for a politician to put the nation before the individual and he should be lauded for it. This does not mean that we should give him a free pass, but that we should ensure that he does not stray from the path he has followed since he became the Minister for Justice. The same should go for the Principals. Just because they oversaw the successful referendum campaign and saw to it that the process largely remained peaceful should not blind us to the fact that in the past they have sometimes taken us for granted and acted without the proper consultation required of leaders in their positions. President Kibaki is set to retire in 2012 and Prime Minister Odinga would like to succeed him as Head of State. The president may be tempted to monkey around with the succession, to the extent that he may wish to engineer a set of implementation laws that would benefit his yet-to-be-named successor. Prime Minister Odinga and his competitors would also like to monkey around with the implementation process to give themselves advantages where none are anticipated. This is why we should keep an eagle eye on them to ensure that they play by the rules.

The up-coming by-elections in Makadara, Starehe and Juja give an insight to the thinking and intentions of the various party leaders. They have all decided to give direct nominations to their preferred candidates. This is in direct contravention of the various parties' constitutions and an indicator of how they see the rules in relation to their political contests. If this is their idea of 'playing by the rules', it is even more imperative that we be extra vigilant for they still seem to operate with the same mindsets that got us into trouble in the first place. This Constitution is too important to be left to politicians and they need to be reminded time and again that they are not gods, but mere mortals who must answer to us for all that they do. So, over the coming weeks, we have a duty and a responsibility to ensure that when they act, they act in the national interest and when they don't, we call them on it as forcefully as we can. Trust, but verify!