And the Gay Agenda proceeds apace

Barack Obama, the Democratic US President, recently "finally" came to the conclusion that homosexual persons had the right to get married. An evolution that had been on-going since he decided to run for the US presidency in 2007 has finally reached its logical conclusion. In Kenya, meanwhile, the law continues to be the preferred weapon to keep same-sex sexuality in the closet that Kenyans are used to having it. Even when daily reminders of the homosexual scourge keep popping up with uncomfortable rapidity we are persuaded, whether rightly or wrongly, that this nation is firmly in the anti-homosexual column. But that cozy reality is about to be shattered.

The Constitution, contrary to what many think, does not explicitly ban homosexual acts or even homosexual marital unions. Some will argue that the explicitly stated right of a person of one sex marrying a person of the opposite sex also means that there is no right of a same sex marital union. Nothing could be further from the truth. The Committee of Experts, in one of its more inept drafting exercises, failed to use the one word that would have guaranteed such an outcomes. Had Article 45(2) been drafted thus "Every adult has the right to marry a person of the opposite sex only , based on the free consent of the parties", then even the Anti-discrimination Rule in Art 27 would not have applied. This rule, too, if it had meant to exclude homosexual acts would have not have used the words "including" and "or"  and thus the 17 grounds listed in Art 27(4) would have been final and exhaustive. Now, any advocate worth his law degree can make the argument that sexual orientation is not and cannot be a basis for discrimination while arguing for the amendment of the Penal Code to decriminalise "acts against the order of nature" (Ss 162, 163,  and 165) or the "unenumerated" right of homosexual couples to get married.

There is a common conflation of family with marriage, yet the two, while interlinked, are not the same. Even religious texts remain vague about the divine call to marriage, merely describing the mechanics of marriage rather than its divine sanction. Family is barely mentioned in the Bible. It has been inferred for centuries as akin to the Holy Family, but the only reference I can draw for the institution of marriage is in the Messiah's rejection of divorce, save for the offence of fornication (Matt XIX: 8). Social scientists on both sides of the debate opine variously on one hand that a heterosexual union is good for the children and on the other so too is a homosexual union. But it is in the steadfast refusal by the protectors of public morality of the pernicious effects of modernism on our social and cultural lives that the conservative, family-first movement fails to counter the onward thrust of the progressive movement.

Since the Union Jack was lowered and Kenyans were allowed to govern themselves, and especially since we declared Kenya  republic, many of the shibboleths that we cling to seem to be stuck in a time warp. While the United Kingdom has evolved beyond what it was in 1963 on social, religious and cultural matters, Kenya seems to have remained stuck, at least in some parts while other parts have leapfrogged even the British. The starkest development over the past twenty-five years has been the steady decline in family values and the sense of community a family inculcated in a community's right-thinking members. No one can argue that single-parent families are the cause for the spread of homosexuality, but it is indicative of the permissiveness prevalent in Kenyan society today. It is no longer fashionable, or even moral, to ostracise members of the community for certain lapses in judgment and it is only a matter of time before  our liberal predilections extend the limits of our moral tolerance to include men and women accused of unnatural feelings, and acts.

Even with the charge against liberalising the anti-homosexual laws being led by the likes of William Ruto and his acolytes in the evangelical Christian movement, if we truly want to re-create the Kenya that adopted and ruthlessly enforced Victorian mores, then we must do more to recreate the extended family and the sense of community that prevailed right into the 1980s. Instead of championing homosexual-promoting ideas such as free speech or privacy, we must ensure that everybody and his dog is able to take a real close look into our bedrooms to ensure that the person you are sharing your bed with is not only of the opposite gender but that they are your spouse, whether affirmed by civil or customary norms. But, and this must come as a shock for the Moral Majority, the Constitution we ratified in August 2010 is not designed to roll back the tide of time; it is meant to free Kenyans fro  the shackles of their leaders, their government, their pastor and their teacher. This is especially true of the homosexual population of Kenya.

No game-changer in sight

Right out of the gate in 2003, the 9th Parliament decided to raise its pay-and-perks to astronomical heights and Kenyans went along with it. After all, 24 years of Nyayoism had come to an end and Baba Jimmi was promising a New Day and a New Deal. Fast forward to 2012, and the game is not yet done. The 10th Parliament, quite in contravention of the Constitution that it halfheartedly supported, is going over the peoples' heads and attempting to collect even more shillings than its record suggests it merits.

Representative government in Kenya has failed to meet the needs of the people. When one casts his eye over the shambles that are the education, health and public security sectors, one is astonished that the government continues to stand. The Executive has consistently failed to provide the tools that citizens need to better themselves. Jomo Kenyatta's promise to wipe out poverty, ignorance and disease has not been achieved, not by his, Daniel Toroitich arap Moi's nor Mwai Kibaki's governments. More and more Kenyans continue to access public goods that fail to meet the basic minimum standards for them to improve their lives or that of their children. The Legislature, the institution that should speak for the weak and downtrodden, is not only riven with rivalries but its members are more interested in lining their pockets than in checking the power of the Executive or making laws that will give hope to the masses. The Judiciary, even with the installation of a progressive Chief Justice, continues to fail to offer justice to the millions who come before it for the same.

We have now given to ourselves a Constitution that prescribes genuine checks-and-balances for our government, but we are determined to concentrate all our faculties on the inane and the insubstantial. Uhuru Kenyatta presided over the coming out party of The National Alliance Party just as his fellow Deputy Prime Minister, Musalia Mudavadi, presided over that of the United Democratic Front Party. Both have declaimed on the paucity of political integrity, conveniently forgetting that their entire careers have been devoid of the same integrity they claim to champion. It is the same with all the political stalwarts striding confidently abroad in the land. Their promises of change are mere words to be flung at the people in the hope that when the political dust settles, they will still continue to operate as they have for decades. None is willing to accept that the old way of doing things has consigned Kenya to second-class status in the comity of nations, begging for handouts from all and sundry. It is a sad testament that men and women who should think of their constituents instead demand their constituents' love and loyalty without giving back in return. The future, sadly, is not as bright as Kenyans think it will be. The forest may have changed, but the monkeys remain the same.

There is only one Barack Obama

Why are Kenyan politicians trying to evoke the spirit of Barack Obama's insurgent political career and why are the members of the news media encouraging this hubris? Barack Obama, the President of the United States of America, the son of a Kenyan father and an American mother, has had what can only be described as an extraordinary political career. His presidential success is a testament to the spirit of opportunity that infuses the American Dream. There is no equivalent in all of the world, certainly not in Kenya. While Kenyans are proud of the fact that Barack Obama's heritage can be traced to Kenya, they must certainly realise that his political career cannot be replicated in a country where there is no equivalent of the American Dream.

Uhuru Muigai Kenyatta, the Deputy Prime Minister ad Mwai Kibaki's apparently preferred successor attempted to channel the spirit of Barack Obama's political trajectory during the national launch of The National Alliance Party on Sunday at the Kenyatta International Conference Centre lawn. From the use of the TelePrompter to the use of lights and music, the launch of the TNA attempted to copy what is the staple of US political theatre today. His speech was redolent with the spirit of Barack Obama's speeches over the years. He attempted to portray the same image Barack Obama evoked when he chose to stand against Hillary Clinton in the Democratic Party presidential nomination race.What Mr Kenyatta attempted to gloss over was the fact that the life that Barack Obama led to his nomination victory, and to the US presidency, is not the life that Mr Kenyatta has led. While President Obama is the son of a single parent, his father having abandoned him at an early age to return to his career on Kenya, Mr Kenyatta is the son of great privilege, born in the State House and raised in great wealth.

President Obama's political awakening must be seen in the context of the racial politics of the US as with the traditions of the Democratic Party that go back to the Civil Rights Movement of the 1950s and 1960s. His has not been a charmed life; it has entailed sacrifice and hard work. His successes are a testimony to his strength of character and the choices he has made ever since he decided to become a community adviser in the 1980s and he joined local politics in Illinois. Mr Kenyatta, on the other hand, does not have a similar story to tell. If it was not for President Moi attempting to foist him on the people Gatundu in 1997, Mr Kenyatta would not have a political career to speak of. The decisions he has made over the past 15 years have not entirely been with the people of Kenya in mind, but with his advancement up the political greasy pole. Indeed, in contrast to the career of Raila Odinga, Mr Kenyatta has been a study in the contradictions inherent in the ambitions of the rich and powerful at the expense of the weak and poor. His charmed life is not one that is shared by the majority of Kenyans, but by the elite few that managed to use the State for their benefit, frequently at the expense of millions of Kenyans.

This is not to say that Raila Odinga can claim to have experienced what many Kenyans have, but in his frequent challenges against the system, he has articulated what many Kenyans have been unable to do without great personal harm or sacrifice. Mr Odinga's detentions at the hands of the State have allowed him to see the State for what it is and his attempts since the 1980s to bring a change in their circumstances have prepared him more than any other presidential candidate to date. It is Mr Odinga who should be evoking the spirit of Barack Obama and not Mr Kenyatta and the fact that the Prime Minister refuses to do so is testimony to his insight and intellect. Even he recognises that there can only be one Barack Obama.

County Commissioners are not the key to the next general election

The games politicians play cost us time, money and national cohesion. When Mwai Kibaki appointed 47 county commissioners as part of his programme for reorganising the Provincial Administration so that it conforms to the devolved structure, he seemed to be laying the ground for his preferred candidate in the next general election, presumably Uhuru Kenyatta, the Deputy Prime Minister and former Minister for Finance. Raila Odinga objected to the appointments claiming that he had not been consulted. Perhaps his objections had little to do with the lack of consultation with the President and more to do with the fact that he too would have wanted his preferred county commissioners in place for the general election. His anger was perhaps in recollection of the appointments the President had made before the 2007 general election to the Electoral Commission of Kenya, which he blamed for his loss to the President. Then, he had argued that by making unilateral appointments to the ECK, the President had not only ignored the principles behind the 1997 IPPG deal, but was packing the Commission with his appointees with the intention of rigging the general election in his and his party's favour.

Kenyan politicians do not trust each other, especially when the President uses the Provincial Administration as his preferred tool in the rigging of elections. The Prime Minister and his ODM colleagues do not know what the end-game will be in 2013, but their experience in 2007 means that they will not trust any changes that the President makes to the Provincial Administration without the substantive input, and agreement, of the Prime Minister. However, it is difficult to see how the elections could be rigged using the Provincial Administration, given that the Independent Electoral and Boundaries Commission has been structurally and functionally separated from other instruments of the Executive Branch. Indeed, if the ODM fears that the election will be rigged, they should consider the fact that the IEBC has gone to Parliament with a request for 35 billion shillings to finance the general election but Parliament is determined to allocate only 17.5 billion shillings, one-half of the sum requested. The IEBC claims that unless it gets the full amount approved and allocated by the National Assembly, their ability to hold free and fair polls will be compromised.

There are many moving parts in the machinery of a general election. With the next polls, the IEBC is called to ensure that the election of the national Parliament, the County Assemblies, Governors and civic leaders is as smooth as possible. After testing a tamper-proof electronic voter-registration and polling system for the Constitutional Referendum, the IEBC is determined to roll out this system for the whole country. This will cost a great deal in capital costs. The IEBC states that for it to hire the personnel and facilities required for the general election, it must have the funds to do so. Otherwise, it will have to operate with a smaller elections staff, and this may prevent the proper monitoring of its systems and processes, giving unscrupulous elements an opportunity to interfere with the integrity of the polls.

ODM is facing its own challenges in the run up to the general election. Because of its recalcitrance in accommodating Musalia Mudavadi's concerns, it gave him the excuse he needed to strike out on his own. The party's excuse that the party constitution could only be amended by its governing body, it ensured that he would leave the party, taking with him a significant number of ODM MPs and supporters. Coupled with the departure of William Ruto and his Rift Valley cohort, the party has effectively lost its Parliamentary majority. The party is therefore, looking for any and all excuses to prepare its claim for irregularity in the general election. It refuses to admit that the actions of the party leader and his Luo Nyanza cohort are swiftly alienating large chunks of the electorate, creating the impression that the party is a Luo party. Irrespective of the vacuity of Mr Mudavadi's and Mr Ruto's claims, and Raila Odinga's continued personal political popularity among voters, ODM is creating the circumstances that may ensure its eventual defeat at the polls.

Because of their desire to win at all costs, Presidential candidates are unable to address the issues that affect Kenyans. Rather than concentrating on these questions in their poll plans, they are reading intrigue and conspiracy in every move the President and the government makes. Perhaps the President knows this, so his Executive decisions are designed to give Mr Odinga and ODM something to concentrate on rather than selling their message to voters and allowing the ever-fractious anti-Raila brigade the opportunity to set their house in order. If ODM is to weather the next months successfully and prevail at the general election, it must start worrying about the how it is perceived by voters and not on how the Executive branch is setting the stage for President Kibaki's succession.

Vetting is just the beginning.

DBM Mosotah, writing in May's edition of the Nairobi Law Monthly, draws conclusions from the decision of the Judges and Magistrates Vetting Board to dismiss four sitting Court f Appeal of Judges from the Appellate Court, ruling that they are unfit to hold office (Purge of Judges heralds new era in the judiciary). Of course, we all agree that a new era was heralded by the dismissals of RSC Omollo, Emanuel O'Kubasu, Samuel Bosire and Joseph Nyamu; whether this era is as Mr Mosotah espies it is something that I intend to argue somewhat against.

First, let me join Mr Mosotah and point out that the Judiciary has historically been the institution that denied ordinary Kenyans their rights since colonial times. It is not enough to point out the perfidy of the Judiciary since Independence, but since its establishment. If it were not for the courts, hundreds of thousands of Kenyans would not have been deprived of their land, their political autonomy or their God-given rights. In the century that Kenya has had a Judiciary, instead of playing a ''civilising role', the courts have ensured that political, economic and social Darwinism prevailed: only the tough survive and the grubby, greasy, filthy, blood-soaked fingerprints of the Judiciary are all over the place. Second, I also agree that Justice Aaron Ringera's 2003 radical surgery was a fiasco, not simply because there was no sound constitutional or legal framework for the hatchet job, but because it was used by interested elements to advance their interests, not those of the public. If one doubts this, the reinstatement of Justice Philip Waki and his vindication by the Sharad Rao-led Vetting Board should be proof enough. Thirdly, because of the incestuous relationship between the Executive and the Judiciary, the rights of the people received short shrift. Testimonies by grown men in tears about the tortures they suffered at the hands of state agents and the indifference of the Judiciary are an indictment of an institution whose primary role is to uphold the rule of law and protect the powerless against the interests of the high and mighty. Until Dr Willy Mutunga was appointed Kenya's latest Chief Justice, it was doubtful that Kenya's judiciary would ever change direction. The unapologetic nature of the four disgraced Judges' testimonies before the Vetting Board is proof that individual members of the Judiciary continue to live in a past that has been condemned to the ash-heap of history by the Constitution and the collective will of all Kenyans.

I propose to re-write Mr Mosotah's lessons thus: First, the judiciary's duty is to promote and protect the rule of law against all enemies, whether Executive, Legislative or Judicial. This is what the Judiciary must do to secure the public trust. If it is incapable of applying the law impartially, without fear or favour, then regardless of how many judges or magistrates are sent packing, it will remain an institution that is reviled and feared in equal measure.

Secondly, at a minimum, all judicial officers must satisfy the terms of Chapter Six of the Constitution. It is not enough that in their personal and professional lives that they be blameless, they must ensure that in their civic lives too (tax-paying, law-abiding, etc) they lead exemplary lives to be emulated by right thinking members of the society. Therefore, instances of Judges swindling little old widows of their land, or being accused of attempted murder, or engaging with fisticuffs with members of the public should bring swiftly upon them the pitiless wrath of the Judicial Service Commission and their equally swift punishment and dismissal.

Thirdly, all judicial officers must avoid the temptation to one-up each other and go about their business professionally and, need I say, soberly. Apparently, the relationship between two of the disgraced judges was poisonous such that in the drafting of a ruling overturning the judgment of one by the other, such intemperate language was employed that it was specially mentioned by the Vetting Board. The only considerations that should come to mind as judicial officers conduct the business of the courts are the rules of the game and the proper application of the law. Otherwise, they can take part of their fat wallets and join tennis clubs.

Finally, they must avoid discrimination of all kinds. This is the Big One. Despite their personal circumstances or histories, judicial officers must only be influenced by the law. Joseph Nyamu disgraced himself in the Kadhis' Courts Case as did RSC Omollo in the Matiba Petition. Personal biases, such as they are, should be left on the judicial floor when the robe is worn and the people are demanding justice from the courts. Where judicial officers discriminate, whether slightly or egregiously, we must show them the same pitilessness they have shown us by setting aside the law and allowing their personal foibles to determine right from wrong, just from unjust.

Kenyans should not look at this process as part of the implementation of the Constitution; to do so means we shall miss the forest for the trees. We should look at it as one part of the process of building new and credible institutions. Seen in this context, the implementation of the Constitution ceases to be a series of event to mark the enactment of legislation, but a series of milestones overhauled as institutions are created, strengthened, empowered and made accountable to the people, from whom they derive their power. The institution must survive the individuals who exercise power within it, or who play roles of responsibility in it. Kenyans should get the chance to serve their fellow Kenyans out of a sense of duty and responsibility and patriotism, rather than as a sure-fire way of ensuring a fat bank account at the end of their working lives. If one thinks that unfit people are being discouraged from joining the Judiciary, then the spectre of law-school graduates', state counsels' and other young lawyers' desire to join the Judiciary because of the remuneration package should sound the alarms; it is this kind of thinking that leads to the corruption and fouling of an institution.

Farce or Tragedy?

It should not surprise us that the leadership of Kenya's many faith-based organisations is interested in the outcome of the elections, scheduled for March 2013. The largest bloc belongs, obviously, to the Christian community, led by the traditional organised churches such as the Roman Catholic Church and the Anglican Church of Kenya. In 2007, church leaders allied themselves with specific politicians and championed some of their goals. The result, if we care to remember, was that many Christians in Kenya forgot their Christian principles and engaged in an orgy of violence that claimed thousands of lives and billions of shillings in property damage. In 2010, once again, the church leaders allied themselves with the Red Campaign against the Proposed Constitution. During that campaign, a case that had been filed by evangelical bishops was decided by a Bench that included the disgraced Joseph Nyamu in which the High Court declared that Kadhis' Courts were unconstitutional. Their inclusion in the Proposed Constitution, as with the inclusion of a weak ban on abortion, galvanised, especially, the evangelical church leaders to campaign actively against the proposed draft. That their objections tended to align themselves with those of some politicians has been claimed to have been happenstance.

In the aftermath of the violence of 2007 ad 2008, many church leaders, especially those of the NCCK and the Episcopal Conference, expressed contrition for the role that the church may have played in fanning the flames of the violence. They declared that in future, the church would act differently. Many Kenyan Christians took them at their word. Over the past eighteen months, those promises now seem to be a cruel joke on the unsuspecting. When the Grand Coalition Government was formed in April 2008, it had four crucial agendas, including the investigation of the causes of the violence and the prosecution of its perpetrators. When it seemed that Prime Minister Raila Odinga and President Mwai Kibaki would be the main suspects, not only did the church leaders of Kenya support the trial of any suspects at The Hague, they did so in solidarity with certain politicians, including Uhuru Kenyatta and William Ruto. Truth be told, these men and women were not truly interested in justice for the victims of the violence, but in weakening the Prime Minister and preventing him from succeeding President Kibaki. When it was apparent that President Kibaki and Prime Minister Odinga were not the targets of the International Criminal Court, but that Uhuru Kenyatta and William Ruto were, all the pro-ICC voices backtracked, claimed that Kenya's reforms had proceeded far enough to guarantee justice for the victims (and the suspects), and demanded that the ICC suspend the process, refer the cases to Kenya and prove to the world that Kenya 'is not a failed state'.

Recent developments, however, raise the stakes to unimaginable levels. Uhuru Kenyatta's supporters, led by the ill-disciplined Kiraitu Murungi, have revived a hated association from Kenya's dark and corrupt past, GEMA, as have the supporters of William Ruto with the revival of KAMATUSA. In 2007, church leaders were content to peddle hate messages from the pulpit; in 2012 they have decided to join the campaign bandwagon by becoming closely associated with the politicians, and the politicians' messages, of their choice. The presence of so many god-men at the relaunches of GEMA and KAMATUSA should serve as a warning. When the results of the 2013 general elections are challenged, as they surely must, and the violence spontaneously erupts, the tinder will have been laid by church leaders even when the spark will have been lit by calls to resist the unacceptable results. History repeats itself; first as farce, then as tragedy. We have been warned.

Cookie-cutter liars!

France yesterday elected a Socialist President, the first since 1995 when Francois Mitterand was last in the Elysee. That Nicolas Sarkozy, the immediate former President was going to lose, is immaterial; what is not is the fact that the French voted along ideological lines, something that Kenyan voters are yet to internalise. What distinguishes Western democracies, and a few Asian and African ones, from Kenya is the fact that issues frequently supersede tribal considerations. Even the equally acrimonious elections in the United States that are contested by the Democratic and Republican tribes are ideological and the lunatic fringe of both tribes is usually relegated to the periphery during the general election. In Kenya, not surprisingly, our legacy has always been of a bitterly ethnicised electorate; our tribal identities are much stronger than our national, professional or even religious identities.

Recent developments reinforce this observation. Uhuru Kenyatta and his cohort from the Mount Kenya region have managed to create the impression that the Presidency is a Kikuyu bastion that others covet at their peril. Of course Mr Kenyatta and his counterparts have been very vocal about the need to unite the nation, eschewing ethnic rhetoric in favour of unifying slogans that should appeal across the board at all peoples of Kenya. But, the successful revival of the GEMA as a political kingmaker, and the exclusion and stifling of any whiff of opposition belies their national unity message. Mr Kenyatta is frequently surrounded by men and women from his political stronghold of Central Kenya, a majority of whom are members of the GEMA communities. It is the same story with William ruto and the KAMATUSA which despite its big-tent appearance is nothing but a Kalenjin outfit,controlled and owned by Kalenjins with the Samburu and Maasai merely making up the numbers but playing no substantive role in the outfit. It was also interesting to observe that the god-men that offered prayers during the recent meetings of these two outfits were god-men from the respective GEMA and KAMATUSA areas. So much for the Blood of Christ covering one and all.

Even the apparently most popular politician in Kenya is in danger of being reduced to a tribal kingpin rather than a statesman. Raila Odinga, the Prime Minister, is frequently surrounded by politicians from Luo Nyanza; and it is these politicians who act as the vanguard for the Prime Minister, taking one and all of his opponents and displaying their loyalty for the man they believe has revived and sustained their political careers. Deputy Prime Minister Musalia Mudavadi, on his way out of the ODM leadership and into UDF, took with him a sizable proportion of the politicians from Western Kenya, primarily Luhyas. His most vocal defenders are Luhyas, though the presence of Najiba Balala and Abdikadir Mohamed may have tempered what was surely a Luhya coming-out-party in Naivasha this past weekend. Surprisingly, the two politicians who do not seem to be ensnared in the traditional ethnic beancounting are Martha Karua and Peter Kenneth, but this may have to do with the fact that neither can hope to wrest from Uhuru Kenyatta the GEMA following so they have no choice to pursue a pan-national strategy.

While many will agree with the proposition that ideology is dead and that it never really existed in Kenya, they will have forgotten that in the '60s and '70s, when the global Red Menace was being fought, an ideological war was fought in Kenya with Mzee Jomo Kenyatta and his phalanx led by Tom Mboya were avowedly capitalist, while the likes of Jaramogi Oginga Odinga, Kung'u Karumba, JM Kariuki and Bildada Kaggia were equally avowedly socialist. With the inexorable personalisation of the power of the presidency and the destruction of the political party as an institution, ideology ceased to be a defining feature; greed and ethnic superiority did.

The seeds of corruption and impunuty that were sown by Jomo Kenyatta's regime and nurtured by Daniel Toroitich arap Moi's took root and have grown into the mighty Mugumo trees of Mwai Kibaki's KANU days. As result of these twin evils, the number of Kenyans dying of easily prevented diseases keeps rising, the number of mothers whose children die in childbirth keeps rising, as does the number of mothers who lose their lives during childbirth. Poverty and illiteracy straddle the land like colossi. Youth unemployment remains stubbornly high and Kenya's economy remains a hostage to the diktats of the mandarins of the IMF and World Bank. And the solutions the likes of Raila Odinga, Uhuru Kenyatta, William Ruto and Musalia Mudavadi have for the peoples of Kenya are the cobbling together of ethnic coalitions to defeat one or the other.

Their economic policies are the same; their security and defence plans are the same; their foreign policies are carbon copies of each other; as are their education policies and governance reform ideas. And no wonder. Regardless of their rhetoric, they have all at one time or another been members of the same government and they are all bereft of fresh ideas. When they promise to chart a new path for the country it would be impolitic to accuse them of lying but it would still be true. They are indistinguishable from one another and in their lack of ideological convictions of any kind they continue to condemn this nation to ills that should have been cured a generation ago.

What will Mudavadi do?

The Deputy Prime Minister and former Minister for Local Government, former Deputy Leader of the ODM and the current Member of Parliament for Sabatia made his grand announcement this past week, ditching-but-not-quitting ODM and joining the UDF, a suspicious outfit that was meant to be and still might be yet Uhuru Kenyatta's vehicle of choice after he too ditched-but-did-not-quit KANU, Kenya's Grand Old Party. David Makali, one half of Citizen TV's political talking heads, sees a grand conspiracy in the making. Uhuru Kenyatta and Musalia Mudavadi, both DPMs, go back a at least a decade to when both ran for the top job in 2002 and lost. Musalia Mudavadi got the short end of that stick by not just losing the contest to NARC's Mwai Kibaki but also his Sabatia seat. Now both have effectivley abandoned their parties with Uhuru ditching KANU and Musalia Mudavadi ditching ODM and both accusing Raila Odinga effectively of being a dictator-in-waiting.

His Sunday Live interview with Julie Gichuru revealed a person overwhelmed by his circumstances. Asked about his top priorities for his administration he gave a rambling list that seemed to be tied to the state of the economy. Or insecurity. It was difficult to tell. That he seems sincere is not enough. The challenges that Kenya faces at present ill challenge even the best of them, but Mr Mudavadi seems to be operating under the assumption that because he is sincere he will be able to surmount these challenges simply by 'bringing people together' forgetting that the experience of the coalition government over the past eight years has demonstrated that good deeds are not enough to get the government working. In the past he has demonstrated the spine many wish he has and it will take more than exhortations and courtesy to get things going. Every now and then he'll need to take a strap to his opponents and get them in line. The determination he demonstrated when he left ODM is must be coupled with political ruthlessness to ensure that his programmes are implemented properly. If he cannot grasp this simple truth, he is better off representing the people of Sabatia and not ruling this fractious nation of ours.

Mr Mudavadi, and is fellow presidential contenders, must realise that the presidency is no longer the lone-ranger imperium it used to be. Dr Mutunga has demonstrated that the Judiciary will no longer be the Executive's lap-dog and Adan Keynan has forcefully reinforced the independence of the National Assembly. If the President is to achieve the objectives of his government, he will have to learn to work with the National Assembly, the Senate, and the various County assemblies without running afoul of the independent Judiciary. It will be difficult at the best of times but it will be doubly so with the possibility of a divided Parliament and a Judiciary determined to flex its muscles all the while dealing with County governments out to grab as much for themselves from the national kitty. Sadly, Mr Mudavadi does not demonstrate the qualities required to handle the challenges of the job. Perhaps his choice of running mate will balance his lack of true executive experience. Perhaps.

It will not get better any time soon

The heavy rains over the past few weeks have exposed the depths to which this nation has sunk. In the eighties, just as Nyayoism was taking root, the streets and surface drains were free-flowing. Garbage was the responsibility of the City Council of Nairobi and the sewerage ever blocked. One still needed to go through every single step required to buy land and build a house on it. By the mid-nineties, it was clear that Nyayoism was but a camouflage for the gross corruption that had taken root in the government; it had become a weapon to be used against the few that had chosen to take a stand against the greed of the ruling KANU apparatchiks.

Today, though, if you are lucky enough to be in the middle class that can afford a set of wheels, the rains have proven that the Nairobi local government is an abject failure and its recent ISO certification is a cruel joke. Driving in Nairobi in the best of times is a nightmare. Millions of man hours are lost every year to productive workers stuck in traffic. Millions more will be lost this year because of the rains and the havoc that it keeps on wreaking on the free flow of traffic. It is natural to blame the rain for the chaos, but it would be better to lay the blame on a combination of factors from the apathy of voters to the corruption in the City Council and the Ministry of Local Government to the liberalisation of the transport sector (after the collapse of public transport) to the impunity that infuses every aspect of our day to day lives. Anyone that can claim to be an honest citizen under these very trying circumstances should be awarded an Oscar for their performance.

If one examines traffic-congested cities around the world, one feature stands out: large-scale mass transit systems that may be losing money but also ensure that large swathes of the middle classes use their vehicles infrequently but instead rely on rail and bus transport to get to their places of employment in the shortest time possible.  Nairobi, until the KANU system was done with it, had an effective and efficient bus transport system that was not only predictable but affordable for the millions that used it every year. The road network, though inextensive, served the few thousand drivers on the road well and the pavements catered for the hundreds thousands more who walked to work. Today, you either drive to work or ride the inefficient bust system. In the hierarchy of pubic transport, at the bottom you will find the fourteen-seat matatus that have become the bane of public transport in Nairobi, then the evil twins of the City Hoppa and City Shuttle bus companies, then the myriad SACCOs that run bus companies then the Kenya Bus Service and the Double M company.

Coupled with the failure of the government to anticipate the requirements of the travelling public and the failure of local authorities to police all developments in their jurisdictions, the traffic challenges are set to get worse if there is no intervention. The flooding occurring in parts of Nairobi's suburbs and exurbs are proof that our obsession with profit over social good has come back to bite us. The hours motorists spend stranded on the road to and from work are an indictment of the City Council and its ilk for failing to manage developments of all kinds and permitting developers to run roughshod over the little people in their quest for ever greater profits. As a result, roads are built but they are poorly designed to cope with the increasingly massive numbers of drivers, housing developments are going up but they do not take into account things like topography or hydrology, and public transport keeps going to the dogs while our elected representative rent-seek with the best of them. Like Chairman Mao said, it is darkest before it goes completely black.

Where is the proof Mr Abdullahi?

For an apparently bold crusader, Ahmednasir Abdullahi, the proprietor of the Nairobi Law Monthly, can be maddeningly, frustratingly cavalier in his presentation of evidence to support his myriad causes. In this month's issue of the venerable anti-Establishment magazine, Mr Abdullahi declares without equivocation that "The government of President Kibaki is not committed to such a trial" (Hidden card in Kibaki's fresh push for local tribunal, Nairobi Law Monthly, May 2012). Mr Abdullahi is, of course, talking about the imminent trial of four Kenyans at the International Criminal Court at The Hague for crimes committed in the aftermath of the 2007 general elections. Without a shred of proof, he bolsters his allegation with wild such statements as "the Kenyan police have refused and resisted to test the pain and pleasures of reforms" and "In fact, the Office of the President is not committed to police reforms and remains the biggest stumbling block to police reforms".

When Mr Abdullahi and the Nairobi Law Monthly decided to go after the Kenya Electricity Generating Company (KenGen) and its boss Eddy Njoroge over tenders awarded for the drilling of geothermal wells, they had the foresight to publish evidence that supported their claims. As a result of their efforts, the Director of Public Prosecutions has taken up the matter and it remains to be seen whether the evidence unearthed by them will be sufficient to support a prosecution of the KenGen boss. This, however, is not the case in the current campaign against the President and his administration with regards to the post-election violence, the trial of the four Kenyans at the ICC and the reform of the police.

Beginning with the police reforms, even Mr Abdullahi must admit that while ordinarily the buck stops with the head of government, in Kenya, Mwai Kibaki and Raila Odinga, the Prime Minister, have so given their respective Ministers a free hand to run their ministries as personal fiefs that they have become almost a law unto themselves. For this reason, it is important to examine the actions and motivations of the Minister of State for Provincial Administration and Internal Security, his immediate former Permanent Secretary, and the Commissioner of Police and Commandant of the Administration Police. Prof George Saitoti took over from the frighteningly effective John Michuki whose campaign against the Mungiki was as illegal as it was effective. Both were served by the able and competent Francis Kimemia, now the acting Head of the Civil Service. However, it is the decision by John Michuki to build up the fighting capacity of the Administration Police that must be examined in the context of the on-going reforms.

During the referendum campaign, Mr Michuki and Prof Saitoti were opposed to stronger independent civilian oversight of the police forces as well as the creation of a unified command under the Inspector-General. The regular police had become a most reviled institution and its reforms could not be stopped, both ministers understood; but the faith accorded to the Provincial Administration at the grassroots, a faith that took in the Administration Police, was something they could exploit to create an alternative force that had the goodwill of the people. Given the frequently quasi-judicial roles the Provincial Administration played and continues to play in rural Kenya and its power to enforce its awards through the Administration Police, Mr Michuki, Prof Saitoti and Mr Kimemia must have calculated that the majority of Kenyans would not be opposed to the continued existence of the AP, especially, in one form or the other. Thus, the billions that have been lavished on them since 2003 explains the modernisation in their equipment, training and tactics and the creation of specialised unites like the Rapid Deployment Unit. But very few Kenyans recognise the pivotal role the APs played during the 2007 general elections or in its aftermath; all eyes are on the corrupt and perfidious regular police. Resistance to the reforms in the police service probably will persist now that the two forces are under the command of the Inspector-General, because it will be impossible for the two to be used in the manner that they were in 2007 and 2008.

Now, as to the case of the post-election violence and the trial of the four Kenyans at the ICC, all can remember that the pursuit of statutory measures to have the trials in Kenya were spearheaded by both the President and Prime Minister. President Kibaki, and even recently the Prime Minister, has never shied away from his desire to have the investigations conducted by Kenyan prosecutors or the trials held in Kenya. There is nothing ulterior about his continued desire for the same today. In the past it has been easy to dismiss the sovereignty argument on the basis that Kenya made its bed by signing the Rome Statute, and by allowing the Waki Envelope to be delivered to the ICC prosecutor, and it must now lie in it. Without being glib, Kenyans must be forced to confront the fact that even while the British government and many NATO countries are signatory to the Rome Statute that establishes the ICC, all the investigations into crimes covered by the treaty and the subsequent prosecutions have been in Africa and against Africans. We cannot bury our heads in the sand and pretend that this is not colonialism by another name; the white man taking on the burden of the ungovernable Dark Continent and carrying on his civilising mission in the face of such strong odds. The United States and the Republic of the Sudan are not signatories to the Rome Statute, yet it is Omar Hassan el-Bashir who has been indicted for his government's role in the Darfur while George W Bush, former Secretaries of State Colin Powell and Condolleeza Rice, and US military commanders in Iraq and Afghanistan walk Scot free.

We are owed

THE RECENT DEVELOPMENTS over the dismissal of four judges of the Court of Appeal, and the decision of the Minister of Finance to offer blandishments to Members of Parliament in exchange for their support of the Finance Bill, bring into stark relief the effect that Chapter Six of the Constitution will have on the next general elections. When Kenyans ratified the Constitution in 2010, one of the requirements was the departure of the Chief Justice and the Attorney-General and the vetting of judges and magistrates to weed out those unfit for duty. Chapter Six demands that the men and women who serve in the public service must meet specific integrity and leadership requirements. The dismissal of the four judges, and the expected dismissal of more judges and magistrates, should be a call to arms for the men and women vying for elective positions and those that will apply for positions in the national and county governments.

WHEN THE HIGH COURT failed to give a definitive determination on when the general elections could be held, and the Independent Electoral and Boundaries Commission decided to schedule the elections for 2013, they gave the political class ample time to either make a determined effort to do things the right way or to continue on the path that has led to so much trouble and strife for the peoples of Kenya. The antics of the Minister for Finance emphasise as nothing else will that the Tenth Parliament continues along its path of holding the peoples of Kenya at ransom unless their demands are met. 

The Tenth, and the Ninth, Parliament have consistently refused to place the needs of the peoples of Kenya ahead of their own. When the Ninth Parliament raised the pay and allowances of its members, it did so knowing full well that they were creating an aristocracy divorced from the general population. When the Minister for Finance proposed to do so again in his 2012/2013 Budget Statement, he was not reprimanded by the Members of Parliament; rather they cheered him on secure in the knowledge that the peoples of Kenya would not rise up in opposition. In the midst of a resilient economic onslaught on the working peoples of Kenya, the Members of the Tenth Parliament saw no reason why they should forgo the blandishments of the Minister for Finance, including the award of a substantial increase in their "winding up allowances". All they had to do was to give up their demand for a cap on the interest rates that commercial banks may charge for loans advanced to Kenyans. That the MPs would continue to feed off the public trough while Kenyans would continue to suffer the high cost of credit facilities was lost to them in the heat of their own financial avarice.

IN THEIR INCESSANT campaigns to be re-elected, or elected to new offices, or their support for one of their own to succeed President Kibaki, and despite the insistent warnings of Mutula Kilonzo, Martha Karua and Gitobu Imanyara of the strictures of the Constitution on leadership and integrity, the current MPs continue to refuse to accept that they no longer enjoy a free hand in the manner by which they serve their constituents, or how they conduct the business of the National Assembly. They are confident that the institutions of state will continue to kowtow to them well into their retirements. Not even the Chief Justice's warning that Chapter Six binds them has given them pause; instead, they continue to perpetuate the impression that they are above the law, even beyond it.

IT REMAINS UNCLEAR whether they will see the light as Saul did on his way to Damascus. Today, they are more interested in advancing their political careers than carrying on the business of the peoples of Kenya. They are more interested in protecting the political careers of a few at the expense of the needs of the many. There are thousands of Kenyans who continue to languish in abject poverty not just as a result of the violence that rocked the nation after the 2007 general elections but also because of the economic policies of their elected government. That the Tenth Parliament and our leaders in government continue to concentrate only on what advances their careers should inform to a great extent the challenges to their continued political existence. Many of the decisions they have made over the past five years may have been within the strict letter of the law, but many will argue that they violate the spirit of it. 

The standards that have been set by Chapter Six must be met by all who choose public service over careers in the profitable private sector. If they are unable to meet these standards, they are best advised to seek profit elsewhere and to give the peoples of Kenya an opportunity to elect a government that treats them with the respect they deserve. If they are incapable of making the choice, the people of Kenya must make it for them. Justices Omolo, O'Kubasu, Bosire and Nyamu failed to heed this warning and the Judges and Magistrates Vetting Board made it for them. We must do the same when the general elections are held. We owe it to ourselves to do so.

Lessons from the Lubanga and Taylor Convictions

The Special Court on Sierra Leone, after five years of trial, has convicted Charles Taylor, a former president of Liberia, of crimes against humanity. Sitting at The Hague, the Court found that Charles Taylor had more than a hand in the civil war that wracked Sierra Leone in the 1990s. The civil war which saw the mass conscription of children into the fighting ranks of the rebel forces was a stain on the continent, even for a continent so used to pestilence and disasters on a biblical scale. The peoples of Liberia and Sierra Leone are well rid of a man who ensured that what was a relatively simple political dispute degenerated into a civil war that ruined the lives of millions upon millions. Mr Taylor's ill-gotten millions were no defense for the Court and now he sits in jail as he awaits sentencing. This is a lesson that the ICC Four should take to heart.

In 2007, Kenya held a general election and the presidential result was hotly contested. Few wish to remember that the seeds for the dispute were laid when President Kenyatta unilaterally decided to appoint commissioners to the Electoral Commission of Kenya, setting aside the 'gentleman's' agreement that allowed the Opposition a say in who was appointed to the ECK. Howls of rage from the Opposition guaranteed that there would be disputes regarding the results of the elections. When Samuel Kivuitu declared Mwai Kibaki the winner of the presidential election, and doing so under armed guard, Raila Odinga and ODM refused to accept the results. Fewer still wish to remember that Mwai Kibaki was staunchly defended by leading lights of the PNU alliance, not least of which was Martha Karua the NARK-K supremo. The scenes witnessed at the Kenyatta International Conference Centre were a throwback to the dark days of KANU elections.

William Ruto and his cohort from the Rift Valley were extremely vocal in their displeasure at the turn of events. When violence 'spontaneously' erupted in the Rift Valley, many attributed it to Raila Odinga's call for mass action even though he publicly called for an end to the violence. When marauding gangs began the process of ethnic cleansing in the Rift Valley, targetting persons deemed to be PNU supporters (primarily Kikuyus), the wheels had surely come off the wagon. But it was in the retaliatory attacks on ODM supporters that the seeds for the intervention of the international community were laid. 

The interventions of the African Union, through its Panel of Eminent Personalities, led to the establishment of the Waki Commission and the Kriegler Commission. The Waki Commission eventually established that the violence that erupted after the elections results was neither spontaneous nor without sponsors. Mr Justice Waki and the Commission decided to prepare a list of the persons they deemed to be responsible for the violence, seal it and leave it to the former Secretary-General of the United Nations to deliver to the Prosecutor of the International Criminal Court if the Government of Kenya failed to establish a local mechanism to try the perpetrators of the violence.

Mwai Kibaki, the President, Raila Odinga, the Prime Minister, Martha Karua and her successor Mutula Kilonzo, the Minister for Justice and Gitobu Imanyara, the MP for Imenti Central, tried to bring Bills to Parliament to set up just a local tribunal, but the cohorts led by Uhuru Kenyatta and William Ruto stifled these attempts. It fell to Koffi Annan and the Prosecutor of the ICC to seize the matter and the results are there for us to see. Now, Mr Kenyatta and Mr Ruto find themselves in very deep waters with the convictions of Thomas Lubanga and Charles Taylor for crimes against humanity for the roles they played in the civil wars in Rwanda and Sierra Leone, respectively.

Mr Kenyatta ad Mr Ruto, since their indictments by the Court, have attempted to brow-beat it into dismissing the charges against them or, alternatively, to postpone their trials until after the general elections slated for March 2013. Refusing to admit that they were solely responsible for the cases being tried at the ICC, they have attempted to lay the blame variously on foreign powers and on Raila Odinga, the Prime Minister. Instead of concentrating on their defenses, they have spent more time whipping up tribal sentiments in order to influence the result of the coming general elections. Even when the suspects had the opportunity to put their best foot forward during the confirmation of charges hearings, Mr Kenyatta and Mr Ruto played to the Kenyan gallery by parading witnesses who were ultimately unpersuasive before the Judges of the ICC Pre-trial Chamber II. Now that the process is hurtling towards a trial date, they are doing all in their power to manage the political fall-out rather than prepare for their defenses.

What the international criminal judges have done is similar to what Sharad Rao's Judges and Magistrates Vetting Board has done: no matter how high your standing in society, you are accountable for your actions. We must remember that William Ruto and Uhuru Kenyatta are innocent until proven otherwise. However, if they are determined to base their defense on their standing in society, they will surely take note that international criminal law is no respecter of standing in society. It is time for them to organise themselves as properly as they may by instructing their lawyers to pursue every opportunity that presents itself to preserve their freedom. If it is their intention that they maneuvre the electorate to secure the government in their favour, they must look no further than the fate that has befallen the President of the Republic of the Sudan who has had the ignominy of having international warrants of arrest issued against him in the matter of the Darfur ethnic cleansing. All the oil in Turkana will not rescue them from this pickle.

A change is a-coming

RSC Omollo, Emanuel O'Kubasu, Samuel Bosire and Joseph Nyamu have been weighed by Sharad Rao's Judges and Magistrates Vetting Board and they have been found wanting. Mr Rao, a former Deputy Public Prosecutor, and his colleagues are serving notice on serving members of the Judiciary that the impunity of their past is catching up with them and that there isn't a rock under which they will hide that won't get turned over, leaving them exposed. Mr Justice Omollo, Kenya's senior-most appellate judge, is notorious in the manner he runs his court. There isn't a practicing advocate who has not experienced his acerbic tongue; there are quite a few who have alleged that Justice Omollo's rulings did not meet the standards to which we all pay lip service. It is his misfortune that the Vetting Board has pored over his record and exposed it for what it is. Now he and his three colleagues are out in the cold, their benefits gone forever.

Justice Aaron Ringera's Radical Surgery was a fiasco. Even the good judge will admit it today that in the absence of a firm legal and constitutional foundation, he had too free a hand in the manner in which he decided who would go and who would remain. Philip Waki, one of the appeal court's judges cleared by Mr Rao's Board, was once a victim of Ringera's surgery and had it not been for his tenacious pursuit of the right to clear his name, he would be out in the cold too and we would never have added "Waki Envelope" to Kenya's political lexicon.

The Rule of Law is a difficult concept for Kenya's high and mighty to grasp. Philip Moi, one of President Moi's sons, is being sued by his former wife for substantial amounts in missed maintenance payments. He is unwilling to pay and claims, incredulously, that he cannot afford his former wife's demands. Nancy Baraza, the suspended Deputy Chief Justice, is doing everything in her power to avoid being investigated by a tribunal for her conduct on New Year's Day. Deputy Prime Minister Uhuru Kenyatta is tenaciously holding onto his office regardless of the Sword of Damocles hanging over his head in the form of an ICC trial. Jakoyo Midiwo, the Gem ODM MP and Government Chief Whip, makes unsubstantiated allegations that there is a conspiracy to assassinate the Prime Minister and then does everything in his power to avoid facing the law for wasting police time.

Martha Karua, the indefatigable Gichugu MP, and Ahmed Issack Hassan, the Chairman of the IEBC, have entered into a slanging match over the date of the next general election. Martha Karua, quite reasonably, argues that elections are never held after a Parliamentary term but during it. Mr Hassan, equally reasonably, argues that the High Court gave him great latitude to set the election date, latitude he has exercised to fix it for March 2013. Both claim that the rule of law guides their actions. Mr Rao, quite rightly too, has upended this cozy disregard for the law and the rule of law manifested by our leaders. Now that even the President of the Court of Appeal is facing dire legal circumstances and the Deputy President of the Supreme Court is being investigated by a tribunal for what many of her ilk would consider a minor issue, the high and mighty had better re-examine their place in the totem pole and adjust accordingly.

The Constitution declares rather breezily that the people of Kenya hold all sovereign power and that elected and appointed officials are mere delegates of the people. Quite clearly this message is yet to sink into George Saitoti's head. When his police officers use what many consider to be unjustifiably excessive force to break up a political meeting, and when many suspect that the reason he is doing so is to prevent the rise of another power centre in the Mount Kenya region, he makes a mockery of the sovereign power of the people. So too does the Minister for Medical Services who dreams of fancy new hospitals for the dying rich but refuses to pay his lowly doctors and nurses what they deserve nor get them the materiel they need for their operations. And so too does the Chairman of the National Cohesion and Integration Commission who spends more time writing reports and making recommendations on what to do about highly ethnicised public institutions instead of prosecuting the men and women who have consistently perpetuated a culture of impunity and a callous disregard for merit or what is good for their institutions (it is no longer funny that the University of Nairobi is seen as a 'Luo' university while Kenyatta University is seen as a 'Kikuyu' university).

Change comes as sure as the sun rises. It is now apparent that some of the changes are going to be received with skepticism, sometimes outright hostility, but there is no denying that Kenyans are optimistic that these changes will be seen through to the end. If the overwhelming approval over the dismissal of the four judges is anything to go by, it is only a matter of time before civil servants start to feel the heat over their sins of commission and omission.

The People hold the Key.

The fallacy that the promulgation of a Constitution is all that is required to change the behaviour of a government that has redefined impunity for decades keeps on being perpetuated by the chatteratti. Even sages such as Maina Kiai still propagate the theory that since the Constitution bestows, or affirms, certain rights to Kenyans, the powers-that-be should modify their decades' long behaviour and act as the Constitution demands they do. While we can justly claim to have an incredible document as our mother of all laws, we must remain alive to the fact that reforming the state and its institutions is a work in progress, with reforms taking shape in some parts and in some others impunity fighting back with a vengeance all the while society keeps ticking along as before.

Civil society organisations, for all their fire and brimstone, have done little to help Kenyans realise that the new dispensation applies to them as much as it applies to their government. This past week Maina Njenga together with other prominent leaders and supporters attempted to hold a rally at the Jumuuia Gardens retreat in Limuru, the site of the Kiraitu Murungi-organised Limuru II GEMA meeting where Uhuru Kenyatta was declared the presidential candidate of that 'cultural' organisation and calls for the postponement of his trial at the ICC were vociferously made by various speakers. Maina Njenga and his cohort were prevented from participating fully at Limuru II and therefore, vowed to hold Limuru IIB to counter the impression that had been created in the minds of many that Limuru II was merely a tribal outfit out to secure the interests of the Deputy Prime Minister.

Limuru IIB was violently prevented from taking place by the combined efforts of the Kenya Police and Administration Police. Eric Kiraithe, the police spokesman, informed the public that the Kenya Police had received intelligence that the meeting was a re-launch of the dreaded Mungiki and that there was no option but to prevent it from occurring. Many opine that the reason why the meeting was disrupted was due to the fear that it would undermine GEMA's plans for the DPM and thus it could not be allowed to proceed. Maina Kiai argues that the violent disruption of the meeting by the police forces is a sign that impunity still reigns in Kenya and that the State continues to ignore the clear provisions of law, falling back on tried and tested methods perfected during the twenty-four years of KANU one-party rule.

While it is a right guaranteed by the Constitution for Kenyans to peaceably assemble and propagate their political vision, it is not a right that is enjoyed without restriction. If the police, as they claim, had credible information that the meeting was designed to revive the Mungiki, it was their duty to respond as they did, first by denying its organisers permission to stage the rally and then using force to disperse its attendees once they ignored their directions. The presence of luminaries such as Paul Muite and David Gitari should not have influenced the police in any way. On the other hand, if the information was provided with the motive of preventing Uhuru Kenyatta from witnessing organised opposition to his plans and he used his connections in government to browbeat his opponents into seeing things his way, then we must surely still be living under a one-party dictatorship disguised as multi-party democracy. Kenyans are yet to inculcate democratic, constitutional ideals yet, though.

When one witnesses the reckless manner in which drivers flout traffic rules, for example, one is persuaded that Kenyans believe that the law is meant to regulate someone elses behaviour and not their own. To date, many political parties are claiming memberships in the tens of thousands yet it is impossible to ascertain whether this is true when even the popular ODM are forced by the Registrar of Political Parties to amend their party registers because thousands of members are registered elsewhere. It should be a badge of honour for a person to identify himself with the political party of his choice, one that espouses his ideals and promotes his objectives. Yet listening to men and women hold forth on politics in this country, one is left with the distinct impression that they think that politics is the exclusive preserve of political leaders and that theirs is only to follow without thought. Without demonstrating that they are active participants in the political process, their parties are merely repositories of the vitriol and corruption that has kept this nation from achieving many of its objectives since Independence.

Without reforming how we see ourselves and how we act towards one another, we may expect more of the same as was witnessed in Limuru this week. We shall also, sadly, keep reading the disappointed ramblings from our chattering classes. If we do not change why should our government?

Sudan crisis exposes rot in foreign policy

The Republic of the Sudan and the Republic of South Sudan are moving inexorably towards war, seven years after the Comprehensive Peace Agreement was executed between the Republic of the Sudan and the rebel forces led by John Garang of the Sudan Peoples' Revolution Movement. The conflict revolves around many critical questions that are yet to be settled between the two governments but it is the oil question and control of the oil-producing regions that are exacerbating a very tense situation.

Since the CPA was signed between the two, it was understood that once a plebiscite was held to determine whether or not the south would secede, among the key questions to be settled would be the common border and the administration of the oil-producing region, especially the Abyei. One year after the birth of the Republic of South Sudan these two thorny issues are yet to be determined. The South has moved to occupy Heglig in South Kordofan State of the Republic of the Sudan, accusing the northerners of using the town as a base for attacking the South and for launching missile attacks. In response, the north has called the Republic of Sudan an 'enemy of the people' and has withdrawn its negotiators from talks being conducted in Addis Ababa, Ethiopia.

Meanwhile, Kenya has responded to the unfolding situation by despatching the Foreign Minister to Addis Ababa to bring about a resolution to the unfolding situation. He has made contact with his counterparts from the Sudan, Rwanda and Ethiopia, but not from the players who truly matter, South Sudan and Uganda. And it is this that makes it plain that in this time of electioneering, where everyone and his uncle seems to be seeking to be Mwai Kibaki's successor, our focus on foreign matters, especially in our near-abroad seems a bit wanting. Prof Ongeri is no doubt an intelligent, cosmopolitan, well-travelled and experienced politician but he is a poor chief of our diplomatic corps. 

Moses Wetangula had the opportunity to learn, first as Raphael Tuju's Assistant and later as the Minister over the past four years, but it is becoming increasingly apparent that he, like his predecessors before him going back to Kalonzo Musyoka, saw themselves as the managers of Kenya's political image internationally ad not as the vanguards of Kenya's interests, especially its commercial interests. Prof Ongeri does not have the time to learn on the job nor will be effective in managing relations during the Sudan conflict. It would have been to leave the Ministry in the hands of Moses Wetangula, inept as he had proven, rather than in the untested, ill-experienced hands of Prof Sam Ongeri.

The scuttle-butt is that Uhuru Kenyatta and his phalanx of advisors have pre-positioned allies in key departments to ensure that when the day comes that the ICC demands his delivery to The Hague, they will be able to forestall such an eventuality an that they will ensure that in his defiance of the international tribunal he escapes sanction. Wiser voices have been stifled and Uhuru is being led by the nose by the likes of Kiraitu Murungi, Robinson Njeru Githae and Ephraim Maina. Keen observers of the ICC, especially those with an eye to its political utility, predict that it is only a matter of time before the Attorney-General informs Uhuru Kenyatta's cohort that there is no stopping the ICC process short of dissolving the court before it hears any more cases. 

It is this overwhelming obsession with domestic issues that has hamstrung the diplomatic efforts of our country, explaining why incompetent men have been placed in charge of the Foreign Ministry since the assassination of the charismatic Robert Ouko. Even Kenya's 'pivot' towards China and away from the West led by the UK, the EU and the USA could have been skillfully managed; it was unseemly the public spat between the government and the French Ambassador over access to State House. Now that Kenya's near-abroad is erupting once more, it is time for a sensible pair of hands to take over the foreign policy of Kenya, ensuring that Uganda, Ethiopia, South Sudan and Kenya work together to ensure that the blood that is about to be spilled is averted, that Uganda and Ethiopia enjoy a bigger share of the spoils from the oil discoveries in the region, and that South Sudan and the Sudan settle their disputes quickly and for mutual benefit. sadly, Sam, Ongeri and Francis Thuita are not those hands.

Mr Kenyatta's leap of faith

The collapse of Uhuru Kenyatta's KANU was inevitable. Since his defeat by Mwai Kibaki and his allies in the 2002 general elections, Mr Kenyatta has been marking time in KANU, distracted by his rivalry with Raila Odinga, the Prime Minister, and hell-bent in re-kindling the love Central Kenya had for his father in the 1960s and '70s. Against the wishes of President Moi, Mr Kenyatta refused to stand again for the presidency in 2007, instead choosing to support Mwai Kibaki's re-election. It was then that the seeds of his departure from KANU were planted. 

While he may dislike the rebellious nature of the approach taken by the party Vice-Chairman, Gideon Moi, and the party's Secretary-General, Nick Salat, in attempting to clarify his place in the party, Mr Kenyatta must admit that contrary to accepted leadership norms, he has treated his party very shabbily. His membership in the Gang of Seven is a clear signal that he does not consider the Independence Party to be a significant player on the national political stage. For a party that ruled the country for four decades, this is a humiliating climb-down. It seems that with Mr Kenyatta's departure, the party will no longer be the political colossus it once was.

Mr Kenyatta now has barely a year to not only join a new political party but to consolidate his leadership of that party, recruit its members and prepare it for the general elections scheduled for March 4, 2013. The current narrative is that Mr Kenyatta has been persuaded by his outings with the members of the G7 that he is popular on a national scale and that regardless of what political vehicle he rides in, his march to State House will be unimpeded. Mr Kenyatta risks political irrelevance if his plans do not come to fruition exactly as he hopes. He faces several challenges, however. 

2007, again, was not just catastrophic for the former ruling party, its aftermath now seems destined to dim his political star. In 2008 and 2009, both Martha Karua and Mutula Kilonzo attempted to forestall what they saw as a political risk for the Deputy Prime Minister when they attempted in vain to persuade him and his allies that an amendment to Kenya's former Constitution was a safer option in dealing with the violence of the 2007 general elections. Mr Kenyatta and his advisors must have thought that given that the International Criminal Court had yet to convict anyone for international crimes that the same would be true with regards to the Kenya situation. After all, Mr Kenyatta was not only a senior member of the Cabinet but his allies controlled the key ministries that would be involved in any engagement with the ICC. George Saitoti was firmly in charge of the Internal Security Ministry, Mutula Kilonzo controlled Justice, Moses Wetangula oversaw foreign affairs, and Kalonzo Musyoka was the V-P while Amos Wako tamely followed his master's lead.

When the ICC Prosecutor announced that he would give Kenya more time to put its house in order, Gitobu Imanyara took the initiative and attempted what Martha Karua and Mutula Kilonzo had failed to achieve, perhaps thinking that his GEMA ties would assuage whatever suspicions Mr Kenyatta may have had of the two Justice ministers' intentions with a local tribunal. The failure to establish a local mechanism to try the suspects of the post-election violence should have been a warning for the Deputy Prime Minister. Instead, his animus for Mr Odinga clouded his reasoning and today he finds himself not only indicted for the violence that took place in 2007 and 2008 by the international court, but facing the prospect of a protracted trial in the middle of his presidential campaign and, should he manage to win the presidency, during the first years of his first term. Mr Kenyatta has treated the ICC situation as a political game every step of the way, one that he intends to win, and every time he has chosen to make the wrong choices and take the wrong steps.

Now with his decision to abandon the former ruling party Mr Kenyatta places himself in greater peril than ever before. His legitimacy as a Deputy Prime Minister is derived partly as a consequence of his leadership in KANU. He must not delude himself that he is free to act as William Ruto does; the deputy leader's position in ODM is not similar in any way to the Chairmanship of the party. The power that the party chairman enjoys in KANU is enormous and to risk it simply to cock a snook at the Prime Minister is the height of folly. Mr Kenyatta exposes himself to a much more serious legal challenge than the one Nick Salat launched against him in the Mombasa High Court. In that case, the High Court may have been persuaded that this was a transitional period and that it was not proper for serving members of the Cabinet to resign their positions in their parties. It would have been an imperfect argument but one the Court would have been willing to listen to in light of current events. Indeed, given that nearly all political parties faced the same legal situation, the Court may have been persuaded that the situation would be resolved after the next general elections. With his abandonment of KANU, Mr Kenyatta exposes himself to a wholly new risk.

Unlike Mr Odinga who still enjoys popular support among the rank and file of his party, Mr Kenyatta cannot boast of the same advantage. A significant proportion of the membership of his party, which has been reduced to pockets of support in Central Kenya and Rift Valley, is hostile to his interests. If he declares publicly that his sympathies, and political future, lies in another party, this may be all that Nick Salat and Gideon Moi need to push him out of KANU once and for all and thereby set the stage for his departure from the Cabinet entirely. He may not even enjoy the president's support if he wishes to remain as Deputy Prime Minister. That, in turn, would strip him of the remaining vestiges of official state support in his tribulations with the ICC which in turn would make it easy for the ICC Prosecutor to execute a warrant of arrest against him. 

As it is, some of his key allies are in the wrong place at the wrong time. Amb Francis Muthaura is out of the Cabinet Office and his replacement, Francis Kimemia, may not have Amb Muthaura's skills in managing the ICC situation as may be demanded. Robinson Njeru Githae, his replacement as Finance Minister, has his hands full with the 2012/2013 budget and may not be able to properly defend his interests in the Cabinet if things get dicey. Moses Wetangula has been replaced by Prof Sam Ongeri at the Foreign ministry and he may not be the best person to manage the diplomatic side of getting Mr Kenyatta off the ICC's radar with the 2013 general elections looming. Even Prof Githu Muigai, Amos Wako's replacement, may be unable to do much to protect the DPM when the chips are down. While the Director of Public Prosecutions has long ties to the KANU establishment they pre-date Mr Kenyatta's entry into politics. Keriako Tobiko, the DPP, owes his public service life to President Moi and he may not feel any loyalty to Mr Kenyatta should he be called to assist him going forward.

In treating with the likes of William Ruto, Eugene Wamalwa and Kalonzo Musyoka, and abandoning KANU, Mr Kenyatta is making what the Americans would call a Hail Mary pass. Whether he is successful depends entirely on what his adversaries do. If Mr Kenyatta thinks that Raila Odinga, Martha Karua, Peter Kenneth, Moses Wetangula, Eugene Wamalwa will treat him as a potent force once he loses his KANU chairmanship, someone is misadvising him mightily and, perhaps, leading him to ever greater peril. Whether Mr Kenyatta can see the folly of his decision, only time will tell. He will either win it all or spend the rest of his life wishing that he had thought first, and fast, before he leapt.

A dose of sanity

Paul Mwangi in today's Commentary injects a dose of sanity in the debate over the dismissal of Najib Balala from the Cabinet (Balala's firing part of established democratic practice, Sunday Nation). In detailing the reasons for Mr Balala's dismissal Mr Mwangi demonstrates that in his service to the Prime Minister intelligence matters almost as much as clout or loyalty. Whether the rest of the political commentariat follows his lead is something else entirely. The poisonous air that Miguna Miguna injected in political discourse during and after his service for the PM is something that needs to be jettisoned for the benefit of all. The tone taken by Mr Balala too, especially in his roping in of the 'Muslim community' places the political discourse in Kenya in jeopardy as seeing that religious passions tend to be almost as poisonous as ethnic passions.

Mr Balala not only displayed disloyalty for his political party but for the political policies of his political boss, the Prime Minister. In more mature democracies, as Mr Mwangi points out, the honourable thing for the Minister would have been to resign not just from the Cabinet but also from his constituency seat and seek a fresh mandate on the basis for his political convictions. That he refused to do left the Prime Minister with no option but to relieve him of his duties as Tourism Minister, his excellent record notwithstanding, as well as strip him of his privileges in the party. It was the only thing that could have been done.

Mr Balala and Mr Miguna Miguna forget that in the light of the leadership and integrity principles enshrined in Chapter Six of the Constitution, political leaders must embrace a new culture that is bereft of the old style of operation. President Mwai Kibaki has encouraged his ministers to spread their wings as far as they could and t run their portfolios as private fiefs for their and their benefactors' benefits, and to treat the principles of collective responsibility and party loyalty with complete disdain. This explains why MPs and Cabinet members spend more time attempting to cross over to new parties without necessarily leaving their parties or resigning from the Cabinet. This level of indiscipline has ensured that party development has been stymied and the development of grassroots institutions has been short-circuited.

The poison that has been injected in political discourse, especially since prominent members of the Gang of Seven were indicted by the ICC, has ensured that reasonable debate is sacrificed at the altar of ethnic chauvinism. With Mr Mwangi's cogent explanation of the grounds for Mr Balala's dismissal, it is now clear that all is not lost. If only the rest of the political establishment follows suit we will be halfway to sorting out the implementation of the Constitution.

George Orido is wrong.

The truth, justice and reconciliation process, for all the billions it has consumed, is a wash. When George Orido, writing in TongueInCheek calls for the forgiveness for the architects of the post-elections violence (Time to forgive architects of PEV, The Standard on Saturday, April 7, 2012), he demonstrates that impunity has a long way to go before it is vanquished. 

Thousands died, hundreds of thousands more were killed and maimed, and billions of shillings of private property went up in flames and yet the men and women at the heart of the violence walk among us free. It is painful to the victims to listen to homilies on the forgiving nature of the Christian heart when that very same heart has had nothing but disdain for their plight. Even the Christ was not averse to demonstrating that fidelity to the law was a given. Did he not ask his people to render unto Caesar what was his? Did he not take a whip and drive the money-lenders from the temple?

This is not South Africa in the aftermath of the apartheid era. For truth, justice and reconciliation to work, men and women who killed, maimed, raped and pillaged must come forward an admit that they sinned against their fellowman and they must face the full force of the law. If their victims choose to forgive them after a full accounting of their sins, then so be it. But such forgiveness can only be the gift of the victim, not of the punditocracy. 

If Mr Kenyatta and Mr Ruto were to admit that indeed the accusations levelled against them are true, they must ask for forgiveness from the peoples they wronged and it is their victims alone who can call forgive them. Simply leading tribal delegations on missions of diplomacy between the peoples of Central Kenya and the North Rift is not enough. They must repent and pray that their victims indeed are Christian and charitable enough to let bygones be bygones.

The government is tom-tomming the closing of the last IDP camp believing that the crimes of the past have been swept away by the resettlement of Kenyans in new homes. Meanwhile, the properties that they lost have been occupied by interlopers in the name of tribal pride. No compensation has been or ever will be paid. The dead are being accorded the indignity of having their lives forgotten in the mists of time. And the men and women responsible for this refuse to admit that what they have done is not just a sin against the Almighty Himself but against humanity. 

Like cockroaches, they scurry from the light of truth and gather together in dark places to plot their own survival. They deserve not mercy but hostility to their dying days. We must never forget that they are responsible for not just the death of thousands but for shattering the illusion that all Kenyans are equal before the law of the land and God Himself.

Tragedy of the Commons

When Maina Kiai asks "Is it coincidental that the two communities from which Kenya's presidents have sprung are so against accountability?" (THINK AGAIN, Want to get away from the ICC? The first reform the police force, and fast, Saturday Nation, April 7, 2012), he betrays that Kenyans are yet to get away from their traditional means of viewing ethnicity in the context of political context. His argument that police reforms must be expedited is blameless, but his accusation of entire communities for what their political and spiritual leadership has said, and continues to say, speaks volumes.

Of course and argument could be made that by attending the rallies and conferences organised by their political leadership the members of the GEMA and KAMATUSA communities endorse their reactionary messages, but it would be a fallacious argument. To my knowledge, no polls have been taken to demonstrate that of the choices the peoples of Central Kenya or the North Rift they have chosen impunity over all the rest. In a political environment bereft f serious policy an political discourse, it is impossible to determine whether these people truly have made an informed choice to fall behind their political and spiritual leaders in their quest to rescue Uhuru Kenyatta and William Ruto from the unpleasant attentions of the ICC Trial Chamber V.

During the dark days of the KANU hegemony it was fashionable to lay the blame for the acts of political leaders at their communities' doorsteps. This system was perfected to such an extent that a ministerial flag was seen as belonging to the entire community and not to an individual whose oath of office was supposed to bind him to national objectives. When Raila Odinga 'sacked' Najib Balala from the Cabinet, one of his promises to the peoples of Mombasa was that their flag was safe and that they still had one of their own in the Cabinet. It seems that Mr Odinga and Mr Kiai still suffer from the after-effects of decades of KANU rule and are incapable of seeing political leadership outside the confines of ethno-balancing acts.

To wit, the peoples of Central Kenya and the North Rift, until proven otherwise, are blameless for the poisonous rhetoric of their political and spiritual leaders. They are not a hive mind capable of thinking as one. It is their leaders who set the pace and in the absence of a compelling counter-argument the people are incapable for coming up with an alternative to the positions staked out for them. Collective punishment was a tactic employed by the colonial government in Kenya and our politicians seem to have upgraded it for the twenty-first century.

The solutions are as simple as they are difficult to effect. With the Tenth Parliament we have hit a wall when it comes to reforming the political class. Indeed, it can be argued that the inauguration of the Tenth Parliament was accompanied by the most blatant display of avarice and cowardice ever witnessed in our short history as a free people. The Tenth Parliament swept into office with the ethnic blessings of tame religious leaders and intellectuals. Its members have time and again failed to rise to the occasion when called upon to do so. And their spiritual leaders and intellectuals have failed to hold them to account, choosing instead, to parrot the same lines as their political masters. In the end we have been left to pick u after them.

The general elections are an opportunity to walk away fro the horrors of our recent history. We can do so by electing to parliament men and women whose only concern is the welfare of their peoples and the well-being of the nation. They can demonstrate this fidelity by speaking to the concerns of their communities with regards to security, economic development and a shared future of all Kenyans. The behaviour of spiritual leaders and intellectuals shows that we cannot rely on them to help us make better choices for our collective future. It falls on us to decide whether it is better to exclude others than to include all in the national conversation. Changing mindsets will be a monumental task and it falls on a political leader of exceptional skill and foresight to help us do so. One is yet to prove himself or herself capable. And that is the tragedy of the commons.

Where is Kenya's Church?

The images of men of the cloth laying hands on two of the ICC Four were disturbing. However, it is the spectacle of serving and retired men (and women) of the cloth cavorting with the GEMA and the KAMATUSA that raise questions about their fidelity to Christ's Ministry. The Church of Christ has always been a Big-Tent Organisation, welcoming all and sundry to its comforting confines. In the Church, one is no longer the member of a family, clan, tribe or ethnic community, but a member of a global community that accepts that Christ is Lord, that He died and resurrected, and that on the Day of Judgment, he will return to earth for the faithful who will spend eternal life in bliss in heaven.

The messages that Kenyans take away from the 'prayer rallies' and the Associations' 'conferences' have little to do with the message of unconditional love that Christ bestowed upon humanity. If we are to live in His example, then the subtle and hidden messages of hate and exclusion that the proponents of GEMA and KAMATUSA broadcast will cast us into the eternal flames of hell for all eternity.

Evangelical Christianity's roots are deep in Kenya and the political class has been quick to recognise the political benefits of having tame preachers on their side as they canvass for votes in the country. Images of candidate Ruto with a bible in hand have been broadcast on all leading TV channels. Images of Kalonzo Musyoka, Uhuru Kenyatta and Raila Odinga have been broadcast declaiming from pulpits in various churches across the nation. The impression that they are assiduously cultivation is that of God-fearing men who will do right by the Christian community in their hours of need, of which there will be many as Kenya weathers myriad challenges, especially in its implementation of the Constitution. But it is impossible not to conclude that their new-found closeness to men of the cloth, and their churches, has nothing to do with the faith of millions of Kenyans but the cynical pursuit of political power at the expense of everything else. When Kenyans were murdered in their church, I do not recall a single instance when the millions of Kenyan Christians being mobilised by their political leaders or, indeed, their religious leaders to not only offer succour to the survivors, but to scour the nation in search of the perpetrators of the heinous crime and see that they were prosecuted to the fullest extent of the law.

It is thus with fear and trepidation that I am transfixed by the images of men of the cloth praying for the success of their preferred sons and baying for the political blood of their sons' opponents. The place of the Christian church in Kenya as the repository of the morals and mores of the peoples of Kenya is slowly being supplanted by the political figure, eager to exploit a captive audience for his own selfish ends. Uhuru Kenyatta and William Ruto stand accused of masterminding some of the most heinous offences in Kenya's brief history. Their communities remain blameless despite the machinations of their opponents to link them to these offences. Crimes are not committed by communities but by individuals. It is thus with the two. The accusations are laid at their feet and not at the collective feet of either the Kikuyu or the Kalenjin. Anyone that says otherwise is an enemy of the people. So why would the men of the cloth from Mr Kenyatta's and Mr Ruto's communities wish to create the impression that their alleged persecution is also a persecution of the Kikuyu or the Kalenjin, or their churches?

One of the most shocking events was when a self-styled bishop chose to stand witness to William Ruto's innocence during the confirmation of charges hearings at The Hague and then being proven to be unreliable and, need I say, un-Christian in his characterisation of the politician or of himself. Asked of his efforts to offer succour to the displaced Kenyans lining in the Rift Valley, where his church is strongest, he could offer no coherent explanation why he had not made an effort even to visit even one of the camps that they occupied while he could find time to fly to foreign nations on his ministry's mission. It is so too every time we witness the dozens of preachers tail-coating the accused Kenyans, regardless of their prominence, every time they and their supporters launch polemics against their political nemesis. The millions of Kenyans who witness their escapades must wonder whether these men and women endorse the vitriol of the politicians and whether they will use their pulpits to cavil against the PM. Rather than preaching the Ministry of Christ, they seem to be preaching the opposite. The church is no longer a Big Tent; rather it has become the safe haven of the worst of the worst.

The Wild Card

Eugene Wamalwa continues to be underestimated. If the moxie his late elder brother demonstrated is anything to go by, with Eugene, still waters will run deep. A first time Member of Parliament, inheriting the late Kijana Wamalwa's Saboti seat on a PNU ticket, rather than the late Kijana's FORD-K. He has managed to pull the wool over everyone's eyes and now that he has been elevated to the Cabinet as the justice minister, it remains to be seen whether he will be the team-player Uhuru Kenyatta and William Ruto expect him to be. Received wisdom has it that he is merely a spanner boy, given the justice docket to ensure that whatever schemes there are underway to rescue the two fellow presidential candidates he will ensure that they are accomplished. It is presumed that Mr Wamalwa will loyally ensure the elevation of either Mr Kenyatta or Mr Ruto, though Mr Kenyatta than Mr Ruto, to the presidency by ensuring that the long arm of the ICC is stayed sufficiently long enough to guarantee that outcome. It is also presumed that Mr Wamalwa knows he does not have a shot at the presidency and therefore, he will be comfortable ensuring Mr Kenyatta's ascendancy for some post-election back-scratching of some sort.

The other narrative goes that Mr Kenyatta ensured Eugene's elevation is a signal to Musalia Mudavadi to get with the programme or be left by the wayside as happened in 2003. Then, Mr Mudavadi was Mr Kenyatta's running mate, refusing to dump KANU in favour of NARC and not just losing the election, but his seat which he had held since he inherited his late father's seat in 1989. Despite Mr Mudavadi's repeated protestations that he is not about to dump ODM, it is widely believed that should there be doubt as to the integrity of the presidential nominations in ODM, he will quickly find his way into the open arms of the Gang of Seven as their compromise candidate. These presumptions hing on one fundamental assumption - that Eugene will blithely sit by as Mudavadi is given a chance at the brass ring of the Kenyan presidency.

No one gets into politics to play second fiddle. No one declares an interest in the presidency using logic or rational decision-making faculties. Regardless of his chances at the hustings, it is entirely possible that Eugene will not so easily let go of the opportunity to stand for the presidency simply because it is expected of him by his partners in the Gang of Seven. And if the two main players in the G7 are flirting with the notion of a Mudavadi compromise presidency, it is entirely possible that Eugene may baulk at the idea that while his ethnic community is larger than Mudavadi's that he should be denied the chance to prove that he is the better-equipped candidate. Politicians have famoulsy large egos and Eugene's has now been bolstered by his elevation to the powerful justice docket. Power tends to corrupt.

The presumption that Eugene is just the spanner boy to Uhuru Kenyatta's ambitions is set to be tested in the next few months. The ICC has constituted a Trial Chamber to try the Kenya cases. The panel of lawyers appointed by the Attorney-General returned a verdict that there was no way out of complying with the ICC with respect to the Kenya cases. Mutula Kilonzo, the former justice minister, was very vocal that not only will the trials proceed but that Uhuru Kenyatta and William Ruto should not put themselves forward for the presidency until the trials are concluded. In other words, they should wait for 2017. Even the alleged reticence of the Chief Justice regarding the trials of Kenyans in a foreign court has been added into the mix, presuming that when a challenge to the ICC process finally finds its way to the courts, any appeal that finds its way to the Supreme Court will be handled in a manner designed to keep the Kenyan suspects in Kenya. The only wild card is Eugene Ludovic Wamalwa.

President Mwai Kibaki and Deputy Prime Minister Uhuru Kenyatta must be very confident of Eugene Wamalwa's loyalty to hand the justice docket to him. They must be sure that Mr Wamalwa will play according to their playbook and ensure that Mr Kenyatta's path to the presidency is unimpeded. If they are wrong about Mr Wamalwa's loyalty, there will be hell to pay down the road. Mr Wamalwa could use his newly acquired power to ensure that not only does Kenya comply fully with all the requests of the ICC but that Mr Kenyatta and Mr Ruto do not see the light of day ever again by ensuring that all evidence linking them to the crimes they are accused of is supplied to the ICC prosecutor. Mr Wamalwa is a presidential contender. His loyalty must supersede his desire to be president. If it does not, Mr Kibaki and Mr Kenyatta may be compelled to conduct another a re-shuffle and shove Eugene out of the very door that they shoved Mutula out out of. These are uncharted waters.