At the dawn of Independence, the then Prime Minister Jomo Kenyatta identified poverty, ignorance and disease as the main challenges of his government. 47 years later, we have made progress education, but nary a step to address disease or poverty. The gap between the rich and poor in Kenya, despite the many statistics pointing to the growth of the economy, keep widening day after day. Poverty is the number one factor affecting access to basic needs, including food and affordable health care. In the past month, the National Hospital Insurance Fund has proposed a raise in the contributions made by employees. It has been opposed, by among others the Confederation of Trade Unions (COTU). The Minister for Medical Services has attempted to conflate the contributions of Kenyan workers with the laudable goal of universal health insurance cover. His is an exercise in willful blindness of the potentates while addressing the needs of the serfs of the nation. In other news, the Kenya Meteorological Department predicts that a significant number of Kenyan districts are at risk of famine and that the Government should put in place measures to counter the famine that is sure to follow with its attendant hunger. This news has all but been ignored, with he Minister for Special Programmes going public with the conflict between the World Food Programme and the government regarding the question of which aid agency will be responsible for the distribution of relief food. Again, the potentates are playing politics with the lives of the poor.
The relationship between the governed and their government has always been characterised by the greed of the latter at the expense of the former. Politicians in Kenya are more interested in the acquisition of power at the expense of the question of governance. Hons. Nyong'o and Murugi are no doubt intelligent people. However, their political lives take precedence over the needs of their constituents who are supposed to be served by their respective ministries. They are symbolic of the role that Cabinet Ministers play in the deprivations faced by the people of Kenya. The Ministry of Finance is more interested in revenue and development targets and has done little to address the question of the gap between the rich and the poor. The Ministry of Education and the Ministry of Higher Education, Science and Technology are more interested in re-jigging the education system to meet the Kenya Vision 2030 targets than in delivering services to the millions of students weathering under a regime that does not address their basic educational needs: adequate classrooms, books, and teachers. In the past 12 months, we have been treated to the theatre of the absurd by revelations of millions of shillings siphoned off by well-connected individuals from the Free Primary Education's coffers while the shortage of teachers has received short shrift from the government. Indeed, the Ministry of Education and that of Finance collaborated in hoodwinking the people that the hiring of teachers on contract terms that are barely fair was a step in the right direction.
The day when politicians no longer serve in government cannot come soon enough. No one can deny that the likes of Prof Anyang' Nyong'o, Esther Murugi, Dr. Noah Wekesa, or Mutula Kilonzo are intelligent men and women as are the rest of the members of the Cabinet. But no one can deny either that their presence in the Cabinet has not been a boon to the people of Kenya. They have played politics with the basic questions affecting Kenyans and in the end disappointed the millions of people who rely on what should be their sound judgments. As a result, millions of Kenyans will be shown on our TVs starving to death; children will attend schools that do not have classrooms, books or teachers; workers will sacrifice more funds for the operation of a health system that will continue to fail to deliver. It is easy to blame the mandarins in charge of implementing the policies of government, but the Permanent Secretaries and their staffs operate under the draconian direction of their ministers. This is how it has always been and the day the politicians are shown the door will be a red letter day for all Kenyans.
The Committee of Experts, for all their faults, hit the nail on the head when they identified the presence of politicians in the Executive as the primary reason for the failure to deliver services to the people and they rightfully crafted a system in which the politicians would no longer have a hand in service delivery. Today, it is imperative that Kenyans began to get involved in the process of crafting the next Executive, identifying key men and women in government or in the private sector who would be responsible for ensuring that the government functions as it was meant to: as a servant of the people and not as a slave-driver. It used to be that civil servants and other public officers accepted less than favourable terms of office in exchange for lifelong, pensionable employment. That system has been shattered with the introduction of contracted officers at competitive terms in government. This process should be taken to the logical end: all public officers should be on contract at favourable terms and in return they must meet ALL their targets. The performance contracting system that has been introduced must be strengthened to ensure that only the best and brightest serve in government. Anything less and it will be a betrayal of the promise of the new Constitution.
In January 2013, when a new Executive has been created, Kenyans should expect to see professionals, masters of their crafts, serving as Cabinet Secretaries. No longer should the Cabinet be a way for the winning presidential candidate to reward his political supporters or manage a fractious coalition. The place for the Kenyan politician worth his salt is in the Legislature, the National Assembly or the Senate. If he is less ambitious, he should serve in the County Assembly or the local authorities that will survive a review of the law. For the more executive minded, they can contest the presidency or the 47 new governorships. And when they fail to manage their various executives, they should be dropped as swiftly as the next elections can be arranged for none of us is confident that the law on recall will be enough to guarantee an earlier ejection. In return, all politicians must turn their minds to how they can better serve their constituents, providing leadership and advice on the best possible methods of addressing the three problems of poverty, ignorance or disease. Only then can the lofty dreams of Independence be realised.
Wednesday, October 06, 2010
Tuesday, October 05, 2010
Martha should take a chill pill!
The news that Kenya is slipping in governance rankings published by Mo Ibrahim's foundation, read together with the statements made by Martha Karua (Narc-K, Gichugu), should compel Kenyans to re-think their stances on the vexed question of the kinds of leaders we allow to stand for elections. The recent elections of Margaret Wanjiru (ODM, Starehe), William Kabogo (Narc-K, Juja) and Gidion Mbuvi (Narc-K, Makadara) are instructive if only for the fact that these candidates spent millions, perhaps hundreds of millions, of shillings to secure victory at the bye-elections. The sources of their campaign funds remain a mystery and this is reason enough for Kenyans to interrogate the role that political parties play in nominating men and women to stand for elective office.
Martha Karua writes, "Whereas a political party cannot be expected to answer questions about its candidate’s source of funds, such questions must be asked of all candidates and all leaders." We should all question the idea that a political party cannot demand information regarding the source of political campaign funds of its candidates. To surmise that the reason is that the relevant laws have yet to be passed is the height of buck-passing. Parliament is not responsible for the management of the affairs of political parties; party officials, of which Hon. Karua is one, are. She is solely responsible for giving the nod for her successful candidates to stand for elections. She made the conscious decision to allow them to have their names put forward under the Narc-Kenya brand and she basked in their glory. She stood shoulder to shoulder with the winning candidates when they were sworn in as MPs by the Speaker of the National Assembly. In short, she is intimately involved with the decision to permit these 'businessmen' to stand for election. Or she should be.
The requirement that officials of a political party should not be serving members of the government, that is, they should not belong to any of the three branches of government is long overdue. The corruption that is endemic in government is partly as a consequence of party officials doing everything in their power to leverage their positions of power and responsibility in government to raise funds for their political parties (and themselves), especially around election time. Politicians in Kenya have made an art form out of the use of money in place of speech to inspire their supporters. When MPs and other government officials exempted from paying taxes on their allowances were informed that they would have to do so, they protested vociferously claiming, among other things, that their salaries and allowances were used in satisfying the myriad personal needs of their constituents including paying for funerals and school fees of the less fortunate members of their constituencies. Not one of them suggested that the reason they had been elected to Parliament was so that they could work hand in hand with the Executive to reduce their constituents' dependency on hand-outs from politicians and other philanthropists. Indeed, the National Assembly, in the form of the Speaker, came out strongly against the suggestion, accepted by some of its members, that MPs must pay taxes on all their earnings stating that until a law is enacted to compel them to do so, they would have to abstain. Does anyone believe that these MPs will permit the publication of a Bill that seeks to reduce the amount of money available to them at the end of the month?
The Iron Lady of Kenyan Politics is fast losing credibility. One has to admire her zeal in pursuing the presidency come 2012. However, this is not enough. She must separate herself from the pack of hyenas that are running besides her and declare unequivocally that she is against all forms of political corruption. She must admit that she was not in charge when Mike Sonko was nominated by Narc-K for the Makadara bye-election. Alternatively, she should admit that the difference between her and her fellow-competitors is that she is female. In all other respects, she is one of 'the boys'.
Hon. Mbuvi has declared his intention to stand for the Nairobi Senate seat in 2012. Does this reflect the wishes and priorities of the Flower Party? In the 2 years that he will serve as Makadara's representive, is he confident that he will have achieved his dreams for the resident's of Makadara so much so that he should offer to represent the entire Counrty come 2012 and does the chairman of his party share his bold ambition and vision? Martha Karua has the right to defend the reputation of her party, but she should not think that we are blind to the machinations she is engineering to secure victory come 2012. Gone are the days when Kenyans would be cowed by strongly worded letters to the editor. This is our time and we will be damned if we allow our politicians to deprive us of the right and opportunity to comment, however unfavourably, on the manipulations that are being perpetrated against us. Like PLO Lumumba may put it, the forest may have changed but the monkeys remain the same. Change or suffer the wrath of our pens!
Martha Karua writes, "Whereas a political party cannot be expected to answer questions about its candidate’s source of funds, such questions must be asked of all candidates and all leaders." We should all question the idea that a political party cannot demand information regarding the source of political campaign funds of its candidates. To surmise that the reason is that the relevant laws have yet to be passed is the height of buck-passing. Parliament is not responsible for the management of the affairs of political parties; party officials, of which Hon. Karua is one, are. She is solely responsible for giving the nod for her successful candidates to stand for elections. She made the conscious decision to allow them to have their names put forward under the Narc-Kenya brand and she basked in their glory. She stood shoulder to shoulder with the winning candidates when they were sworn in as MPs by the Speaker of the National Assembly. In short, she is intimately involved with the decision to permit these 'businessmen' to stand for election. Or she should be.
The requirement that officials of a political party should not be serving members of the government, that is, they should not belong to any of the three branches of government is long overdue. The corruption that is endemic in government is partly as a consequence of party officials doing everything in their power to leverage their positions of power and responsibility in government to raise funds for their political parties (and themselves), especially around election time. Politicians in Kenya have made an art form out of the use of money in place of speech to inspire their supporters. When MPs and other government officials exempted from paying taxes on their allowances were informed that they would have to do so, they protested vociferously claiming, among other things, that their salaries and allowances were used in satisfying the myriad personal needs of their constituents including paying for funerals and school fees of the less fortunate members of their constituencies. Not one of them suggested that the reason they had been elected to Parliament was so that they could work hand in hand with the Executive to reduce their constituents' dependency on hand-outs from politicians and other philanthropists. Indeed, the National Assembly, in the form of the Speaker, came out strongly against the suggestion, accepted by some of its members, that MPs must pay taxes on all their earnings stating that until a law is enacted to compel them to do so, they would have to abstain. Does anyone believe that these MPs will permit the publication of a Bill that seeks to reduce the amount of money available to them at the end of the month?
The Iron Lady of Kenyan Politics is fast losing credibility. One has to admire her zeal in pursuing the presidency come 2012. However, this is not enough. She must separate herself from the pack of hyenas that are running besides her and declare unequivocally that she is against all forms of political corruption. She must admit that she was not in charge when Mike Sonko was nominated by Narc-K for the Makadara bye-election. Alternatively, she should admit that the difference between her and her fellow-competitors is that she is female. In all other respects, she is one of 'the boys'.
Hon. Mbuvi has declared his intention to stand for the Nairobi Senate seat in 2012. Does this reflect the wishes and priorities of the Flower Party? In the 2 years that he will serve as Makadara's representive, is he confident that he will have achieved his dreams for the resident's of Makadara so much so that he should offer to represent the entire Counrty come 2012 and does the chairman of his party share his bold ambition and vision? Martha Karua has the right to defend the reputation of her party, but she should not think that we are blind to the machinations she is engineering to secure victory come 2012. Gone are the days when Kenyans would be cowed by strongly worded letters to the editor. This is our time and we will be damned if we allow our politicians to deprive us of the right and opportunity to comment, however unfavourably, on the manipulations that are being perpetrated against us. Like PLO Lumumba may put it, the forest may have changed but the monkeys remain the same. Change or suffer the wrath of our pens!
Homosexuality and the HIV/AIDS challenge
Esther Murugi Mathenge (PNU, Nyeri Town) has set the cat among the pigeons suggesting that homosexuals and commercial sex workers should be mainstreamed when addressing the spread of HIV/AIDS as persons of concern. She is right. In the United States, when they were first researching the spread of this deadly condition, the stigmatisation of homosexuals in San Fransisco robbed the researchers of valuable time that would have permitted them to come up with effective strategies to ensure that it did not spread to the general population. The same farce is being played out in Kenya. It is now widely acknowledged that many homosexual Kenyans enter into heterosexual relationships in order to hide their predilections, putting their heterosexual partners at risk, especially if they engage in unprotected activities with their homosexual partners.
The debates surrounding art. 45 of the new Constitution primarily concentrated on the vexed question of whether homosexual marriages were permitted. We missed the point by a mile. Homosexual conduct in Kenyan society is rampant and many homosexuals are unaware of their HIV/AIDS status because of the stigma associated with their private lives. Consequently, many of them do not take appropriate prophylactic precautions, placing the general populace at risk of infection. As a result, we are unaware of the numbers associated with homosexuality and the infection rates among them. Given that many of them are also in committed heterosexual relationships, it is impossible to know how many of their partners have also been infected and therefore, we are not in a position to ensure that they are also tested and treated, where infected, before it is too late.
We should not concentrate overwhelmingly on their conduct as much as on the implications of such conduct. It is argued elsewhere that the criminalisation of homosexual conduct has not led to the reduction in the numbers of homosexuals in Kenya. Neither have faith-based or psychiatric interventions. The problem that the country is grappling with cannot be wished away by waving some magic wand. We must face up to the fact that the numbers of homosexuals are increasing and that this population is at risk as there are no strategies to address their infection or that of their heterosexual partners. Hon. Murugi is right to ask for a sea change in attitudes with the aim of improving access to treatment for this class of people. Moralising loudly about it will not solve the problem.
The debates surrounding art. 45 of the new Constitution primarily concentrated on the vexed question of whether homosexual marriages were permitted. We missed the point by a mile. Homosexual conduct in Kenyan society is rampant and many homosexuals are unaware of their HIV/AIDS status because of the stigma associated with their private lives. Consequently, many of them do not take appropriate prophylactic precautions, placing the general populace at risk of infection. As a result, we are unaware of the numbers associated with homosexuality and the infection rates among them. Given that many of them are also in committed heterosexual relationships, it is impossible to know how many of their partners have also been infected and therefore, we are not in a position to ensure that they are also tested and treated, where infected, before it is too late.
We should not concentrate overwhelmingly on their conduct as much as on the implications of such conduct. It is argued elsewhere that the criminalisation of homosexual conduct has not led to the reduction in the numbers of homosexuals in Kenya. Neither have faith-based or psychiatric interventions. The problem that the country is grappling with cannot be wished away by waving some magic wand. We must face up to the fact that the numbers of homosexuals are increasing and that this population is at risk as there are no strategies to address their infection or that of their heterosexual partners. Hon. Murugi is right to ask for a sea change in attitudes with the aim of improving access to treatment for this class of people. Moralising loudly about it will not solve the problem.
Ocampo should name names!
Are we surprised that some of Kenya's celebrated politicians are getting itchy just thinking of the day that Luis Moreno-Ocampo comes calling with his warrants? The recent pronouncements by Ephraim Maina (PNU, Mathira) and his PNU accomplices brings home the point that the ICC prosecutor is proceeding apace with his investigations into those who bear the greatest responsibility for the mayhem following the 2007 general election. However, he should disabuse himself of the notion that Ocampo is the stalking horse for PNU's bugbears in the ODM camp.
It is an open secret that many of the people who would bear the greatest responsibility for the mayhem are serving and former members of the security apparatus of this country and it would behoove Mr. Maina to consider the fact that many of them were appointed from 'one particular community', so his exhortations for the investigations to be 'fair and unbiased' are mere hot air for the benefit of his constituents. This is not to say that only policemen and their bosses were responsible for the violence. Far from it. Individuals in both camps of government were at the forefront of fomenting trouble and it would be ideal if all of them, bar none, were arraigned before legitimate courts of law to answer for their crimes.
However, this is Kenya and the more things change, the more the remain the same. It is now a month since we overwhelmingly ratified the new constitution and Justice Minister Kilonzo has been attempting some mealy-mouthed sophistry to see that all the prosecutions in relation to the 2007/08 violence are handled in Kenyan courts. Kenyans have spoken loudly and clearly: we do not wish the prosecutions to take place in Kenya, unless the reforms that are taking place in the Judiciary give us credible magistrates and judges whom we can repose trust in. Especially when it comes to those who bear the greatest responsibility, we would like to see them answering to charges at The Hague because we do not trust them to see the process through without attempting to subvert it through their great wealth or their militias who stand at the ready to do their bidding.
Let s not forget that thousands of Kenyans were murdered at the urging of political and business leaders or that millions, perhaps billions, of shillings of property were destroyed and that the international image of Kenya as a sanctuary of peace and tranquility was shattered during the mayhem. The men and women responsible for this sad state of affairs rewarded themselves by occupying high offices and doing everything in their power to prevent the day of reckoning. That day is nigh and it cannot be wished away on the basis that only one set of criminals is being investigated.
Obviously, we cannot wish away the role of politics in all this. Kenyans are already being primed for the 2012 general election and many of the perceived suspects are gearing up to contest senate and governor positions. Ocampo could throw a spanner in the works if he were to name names before the date of the election. I dare say he must name them now or forever keep his peace. Nothing is served by keeping these names secret any longer, especially the names of those contained in Justice Waki's now famous envelope.
The speculation surrounding the identities of Justice Waki's suspects is doing more harm than good and even though they have yet to be convicted of any crime, knowledge of their identities will not prejudice the country against them. After all, the political class has been indicted a hundred different ways for their greed, sophistry and love of self. It is time Kenyans started to distance themselves from these individuals and the revelation of their identities will serve a greater good. Kenyans should have the opportunity, nay the right, to approach the 2012 elections knowing where their political masters stand in relation to human rights. Ocampo should name names.
Thoughts on a Credible Legal Profession
I rarely get to agree with Donald B. Kipkorir, but I must say that this Sunday he is spot on (By churning out lists of potential CJ, judges, lawyers are scandalising the profession, Sunday Standard Oct. 3, 2010). Contrary to received wisdom it is not just lawyers who are best placed to proclaim who are best to take judicial office. This is a task that should also be accomplished by all consumers of judicial services in Kenya. After all, when judges proclaim law by interpreting the constitution, they do so on behalf of all Kenyans, affecting one and all from their lofty perches on the Bench.
It is quite obvious that the best candidates for judicial office would be experienced and learned lawyers. However, lawyers have a maxim that declares that no man can be a judge in his own cause and it would behoove the legal profession to heed this maxim in all its import. The Law Society of Kenya is the one of the most important institutions in Kenya, regulating the legal profession for the benefit of the nation. But on this matter, to give them prominence in the vetting process, something is bound to give. The judges and magistrates have a legitimate gripe when the LSK purports to draw up lists of approved professionals for the judicial offices that are to be created under the Constitution. This is the reason why the appointment of the reconstituted Judicial Service Commission and the board that would vet judicial officers should be speeded up. Even the LSK will admit that where there is a judicial officer found wanting, a lawyer will not be far behind. It takes two to tango and there must be a conduit for the misconduct of the judicial officers who shall be unmasked and it is reasonable to expect that some lawyers will be implicated. The judges and magistrates have a right, too, to expose the rotten tomatoes in the legal profession. Only then can this process be said to be as complete as we could wish.
Mr. Kipkorir is right to make comparisons with famous judges fro the USA and the UK. After all, the judiciary in Kenya is a reasonable facsimile of those of developed common law democracies. Therefore, it is reasonable to demand that those who wish to occupy judicial offices be men and women of probity, sagacity, and experience, capable of making rulings and handing down judgments that reflect these qualities. When President Moi engineered the appointment of Zaccheus Chesoni as our first back CJ, he exposed the rot that permeated both the Bar and the Bench and the Constitution is the opportunity that Kenyans have been waiting for to participate fully in choosing the people who deserve to be named to these positions. We must also reconsider our legal education system to ensure that we make the lawyers and judges that we want. The CLE programme of the LSK is a valuable tool in this regard and it should be enhanced and deepened to ensure that all practicing advocates upgrade their skills-sets and knowledge to better serve their clients and their profession.
It is imperative that we move away now from the tit-for-tat farce that is being played out in the question of vetting judges and magistrates. We must embrace the fact that we are all flawed and that NONE of the tainted men and women of the legal profession should be allowed within a hundred miles of judicial office. We must find a way of incorporating the thoughts and experiences of the wider public in the quest for a credible judiciary. We must also allow the public to become active participants in regulating and disciplining of the bar and the Bench to ensure that the administration of justice benefits all Kenyans, and not just the fat cats of the fat wallet society.
To vet or not to vet?
Judicial vetting is the new mantra of the chattering classes and it is time I put in my two-shillings' worth. Let us not miss the woods for the trees, concentrating only on the little matter of vetting judges and appointing a Chief Justice of the Supreme Court. This is not the only institution in dire need of reform. There is still the question of who will head the National Police Service, who will become the Attorney-General and who will be the Director of Public Prosecutions. In the administration of justice, these three offices will be key to ensuring that the process of justice is as fair as possible.
The President of the Court of Appeal and the Principal Judge of the High Court shall be elected from among the members of the respective courts and there is no controversy surrounding their imminent elections. It is with the Chief Justice that the chattering classes have concentrated on, with the Law Society firing the first salvo by publishing a list of judges it feels are ineligible to appointed to this position. However, the Kenya Magistrates ad Judges Association has retaliated by pointing out that the Society is out of line in blacklisting the 16 while the LSK itself is riven with internecine squabbles that threaten the smooth management of its affairs.
The LSK, under the recent chairmanship of Okong'o Omogeni, has distinguished itself by taking principled stands in matters of national importance, playing a strong role in ensuring that the constitution review process was not hijacked by self-interested parties. Mr. Kenneth Akide, the embattled new chairman, has been taken to task for not being 'in charge'. It is early days yet to start calling for his removal and the members of the Society would be best advised to focus on what the Society can do to ensure that the process of reforming the Judiciary is not hijacked by the self-interested members of the KMJA.
Right or wrong, the members of the Society chose to elect Mr. Akide as chairman and it is hypocritical of some of the members to start calling for his removal months after his election. As with all things, unless he runs the Society into the ground, his tenure shall be judged in the harsh light of history and if he is found to have been wanting, the judgment of posterity will be unforgiving indeed.
As to the vexed question of whether the LSK can blacklist individuals it deems to fail the test of leadership for the position of the Chief Justice, the LSK is within its rights to do so. The Magistrates and Judges are free to disagree with this position but they cannot claim that by expressing a well-considered opinion, the LSK is infringing upon the rights of a few members of the KMJA. The LSK, through its members and through its partnership in the administration of justice with Bar, is the primary consumer of the services offered by the Judiciary.
Practicing advocates are in a unique position to tell who among the members of the Bench are fit to hold office. It is reasonable, therefore, that the Society should advise the country at large of its experiences dealing with the blacklisted judges and to ensure that their lacklustre careers do not proceed beyond their current level. It is only fit for the men and women who spend hour upon hour dealing and relating to the 16 to remind them that just because they wear the robes of judicial authority, they are not a law unto themselves and that they must be held to account for their sins of omission or commission.
The administration of justice in Kenya is a broken. The ham-fisted radical surgery perpetrated by the disgraced Aaron Ringera did not solve anything but ended up being a vehicle for the disgruntled and malcontent to settle scores with scores of sitting judges and magistrates. The current reform agenda must not be blighted by the need to settle vendettas, but with the sole objective of improving the system of justice in Kenya. Chief Justice Evan Gicheru, for all his faults, has comported himself with dignity and his silence on the imminent end of his tenure speaks volumes of his recognition of the need for a new man at the top. He should be given a send-off that befits his remarkable decision not to challenge the end of his reign. When you recall the self-righteous whining of the disgraced Chairman of the defunct Electoral Commission of Kenya, you will agree that Justice Gicheru has done what we have wanted him to do and while we will not be sorry to see the back of him, his departure should signal that all not well in the corridors of justice.
In the past few days, criminal defendants have laid bare the shortcomings of the system. They have taken the unprecedented step to write to the Chief Justice and the Minister for Justice regarding the sorry state of affairs, where money talks or justice is delayed and denied. They point out that unless you are a member of the Kenya's plutocracy, you will not benefit from the operations of the justice system. Instead, you will be held in remand while the members of the fat wallet society are treated with kid gloves, their matters expedited and their case files closed.
If you are a poor man, chances are that the day you are remanded into custody is the last day the world will treat you fairly or with dignity. There are men and women who have been in remand for the better part of two decades, their case files being shuffled from one desk and one court to another without resolution. In the mean time, people like Thomas Gilbert Patrick Cholmondoley have their cases expedited and resolved in the shortest time possible, putting nary a dent in their well-ordered lives. This is a situation that can only be changed when the judges and magistrates are put on notice that it will no longer be business as usual until all Kenyans enjoy the same level of service as the moneyed and well-connected.
For the reform of the Judiciary to succeed, it must be accompanied by reforms in other parts of the justice system, including the police, the State Law Office and the legal profession. Lawyers cannot hold up cases simply because they dislike the decisions judges and magistrates make regarding their professional conduct. The police cannot be allowed to become guns for hire, 'negotiating' settlements with accused persons as they see fit. The State Law Office must be professionalised and the newly created office of the Director of Public Prosecutions must be manned by men and women of integrity and dedication. Finally, the citizenry must participate in the process, ensuring that the professional and non-governmental bodies represented in the vetting process truly reflect their needs and priorities and that they have their interests at heart.
Saturday, September 25, 2010
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'.
Friday, September 24, 2010
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.
Wednesday, September 22, 2010
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!
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!
Sunday, September 12, 2010
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.
Wednesday, September 08, 2010
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.
Sunday, September 05, 2010
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.
Friday, September 03, 2010
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.
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