A chamber of retirees.

It is surprising that I agree with Ahmednasir Abdullahi today; the Senate is not the upper legislative chamber that the Senators would wish it to be in the style of the United States Senate or the House of Lords in the United Kingdom (Real power in all its forms lies with the National Assembly, Sunday Nation 16/06/13.) The roles of the Senate include:

1. the protection of the interests of counties and their governments;
2. debating and approving Bills concerning counties;
3. determining the allocation of national revenues among counties; and
4. the impeachment of the President or Deputy President.

It is not correct or proper to assert that the Senate is a single-issue chamber; from the outline of the role of the Senate in the Constitution, its most important role is the protection of devolution by protecting the interests of counties and their governments. Its second most important role is the consideration of any Bill regarding the counties which may include Bills on the powers and functions of county governments, on the election of members of county assemblies and those affecting the finances of county governments.

When the President assented to the Division of Revenue Bill that had been approved by the National Assembly, despite the recommendations of the Senate to increase the allocation of national revenue by sh 48 billion, he was acting within the letter of the Constitution. Whether he did so in the spirit of the Constitution remains highly contested. It is only the National Assembly that determines the allocation of national revenue between the two levels of government, not the Senate. The Senate determines allocations among the counties. 

Mr Abdullahi is right; many of the changes made to the Harmonised Draft Constitution before it was presented to Kenyans at the 2010 referendum were made by members of the Tenth Parliament, some of whom are the most vocal about the diminished place of the Senate in the government. When it seemed that it was Raila Odinga who was on his way to State House, members of the Orange Democratic Movement Party did everything in their power to ensure that the structure of government that Mr Odinga would have inherited in 2013 was one that he could control. Therefore, they had no problem in emasculating the Senate. Now that they find themselves in the uncomfortable position of playing second fiddle to the Jubilee Coalition, they are attempting to re-write history by claiming, among other outlandish claims, that the Senate is the "superior" of the two chambers of Parliament. Their missteps are coming back to haunt them.

The financial legislation process that the Constitution provides in Kenya is markedly different from the United States one. In the US, both the House of Representatives and the Senate have a vital role to play at the start of the process when it comes to money Bills. In Kenya, the Senate only steps in when it comes to allocation of national revenue among counties not when the share of the national revenue to be allocated to counties is being considered.

The application for an advisory opinion of the Supreme Court by the members of the Senate will not give them the answer they are seeking. Surprisingly, there is little ambiguity in the provisions regarding the roles of the National Assembly and the Senate when it comes to money Bills and the division of revenue between the two levels of government and among the counties. It is dawning on the members of the Senate that for the most part they have nothing to do and Mr Abdullahi's suggestion that the Senate only meet for a fortnight in a year during the making of the national budget is not without its merits. If they must meet on an emergency basis, they can do so, but even then it will be to consider any Bill that affects the powers or functions of counties or affects the finances of counties. Beyond that, or the impeachment of the President or Deputy President, the Senate is, as one cheeky member of the National Assembly put it, a chamber for retirees.

The Harsh Truth

So the United States is spying on my e-mails, facebook posts, tweets, and tracking all my web-movement to ensure that on the day I decide to engage in anti-US nefariousness the US government will be able to send in a Predator (or is it Reaper) drone armed with hell-fire missiles and exterminate me by remote control. The spying on non-US citizens by the US' National Security Agency, and other intelligence organisations, has outraged many US citizens because they, too, have been the targets of this spying, though unwittingly. Even Kenya, it seems, is the top target in Africa for online snooping by US spooks. Pundits, in and out the US, are complaining, loudly, of the "invasion of privacy" and the "implications" of this invasion in limiting other rights.

Edward Snowden, the civilian contractor for the NSA who revealed the online spying operations of the NSA, sounds like one of those annoying US citizens who's very sure about "his rights;" though how the 29-year old nerd manages to speak of privacy of the US citizen as inalienable while glossing over the alienability of non-US citizens' privacy does not square with his desire to "respect the Constitution."

While it is a bit creepy that Barack Obama and his government would want to know what I think, how I think it and what I intend to do about what I think, I am unable to blame them, save as a tactic to promote the interests of all Kenyans. The United States, for a time, was the single most powerful nation in the world, capable of dictating to, and bullying, every other nation to toe its line over a raft of issues. But today, it is part of a very complex world where its great military power, economic might and technological lead are irrelevant in the face of faceless organisations that seek to destroy it. Its power was useless when al Qaeda's operatives hijacked aircraft within the US and used them as weapons over eleven years ago. So today, in order to ensure that al Qaeda and its successors and emulators do not accomplish what they did in 2001, the US government through its national security apparatus, spies on friends and foes alike, violating the civil rights of citizens of friendly and belligerent nations without fear pr favour. The US' attitude seems to be, "Get on board...or tough shit!"

But in a multi-polar, complex and complicated world, how we react to the US spying depends on whether we believe that the United States is washed up. The proof seems to suggest that it is not. Despite the Global Economic Crisis (which it caused), multiple wars and armed engagements worldwide, or the perceived decadence of its entertainment industry, the mass of immigration seems to be pointing inexorably to the United States. It remains the land of opportunity. However, if you truly believe that the United States is not for you, and that you are fine without all the fine things it produces, then you are well within your rights to wage an e-Jihad against it and attack its spying infrastructure (good luck with that.)

We are all standing idly by as Syria is turned into rubble. We know what must be done. We know who has the capacity to do it. We want them to do it. But we will rant and rave about the US' unilateralism as if it means anything when we can do nothing about it. If Barack Obama orders his Marines to take Damascus, remove Bashar Assad from power, install a friendly puppet in his place, and reward US corporations for the their support, while we do nothing and watch from the sidelines, what moral authority will we have to demand a piece of the pie or kid gloves from the US?

The debates and arguments about the invasions of privacy by the United States are an intellectual navel-gazing exercise designed to insulate us from the harsh reality that we can do little to stop it save wage war (which we would likely lose.) This harsh reality is demonstrated when the President of the United States travels abroad: we may hate him, his country and all they stand for, but we still want to bask in the (reluctant) glory of having him come calling, implicitly endorsing your presidency, prime ministership, whatever, and, crucially, introducing you to the men and women who truly matter in the United States: CEOs of transnational corporations that make or build things.

The strong survive

Now that President Kenyatta has "declared a war on corruption" it is time to set the clock and count down the hundred days till his first "scam". No one is saying that Mr Kenyatta or Mr Ruto will be caught with their fingers in the National Treasury cookie jar, but it is almost ironic that every time a Kenyan President declares a war on corruption or zero tolerance to corruption, it is always just a matter of time before his declaration of war is revealed to be the sham that it has always been. Mwai Kibaki discovered this to his utter shame.

The "war," and the commanders who wage it, has been exciting and just a little bit underwhelming at the same time. When the Anticorruption and Economic Crimes Act was enacted, rather hastily, in 2003, Kiraitu Murungi as Mwai Kibaki justice minister promised swift, merciless justice for the pilferers of State coffers. It was not long before he was embroiled in the sordid Triton Affair and petro-exploration in the North Eastern Province. By the time his ass was being shoved out of the Ministry of Energy, it was clear that Mr Murungi's commitment to the "war" was perceived as less than robust.

Kenya's only second Prime Minister has been lionised as a pillar of the anti-establishment pro-democracy movement for years whose anti-corruption credentials are beyond reproach. Dene, dents, everywhere. Maize, a staple in many Kenyan homes, became one of the black marks against that reputation. In the midst of one of the harshest droughts and famines ever, his office was perceived to be a law unto itself, awarding dubious tenders to dubious contractors for the import of relief maize and subsidised fertilizer and other farm inputs. His acolytes attempted to shift blame on the current Deputy President while he served as agriculture minister without success; he easily fought a censure motion brought against him in Parliament. Obviously, only die-hard suporters of the former Prime Minister and three-time presidential contest loser will not hear anything that may smudge the extra-burnished shine of his anti-corruption halo though he himself has frequently hinted at his fallibility.

Mwalimu Mati of the Mars Group, which few Kenyans know what it's about or what it does (is it a briefcase?) and who happens to be the chairman of a fly-speck of a political party has had, if you were wearing rose-tinted glasses, a colourful anti-corruption and governance career. His exposures of "gaps" in the financial estimates of Kenya's governments has been a salutary service for the armies of ignoramuses who require someone else to read complex documents for them. But, the troubling and niggling aspect of his anti-corruption/governance crusades, especially in light of his political affiliations (and nascent ambitions, perhaps) is that there seems to be a whiff of "why not me" about them. Mr Mati, even at his most earnest, lacks a certain Githongo-esqueness...a quality difficult to define. Like obscene material, you'll know it when you see it. He does not have "it." He's a sham, a shiny object that does something every now and then to prove it's still shiny.

But it is the apathy of the men and women who avidly devour the article on the exploits of the thieving classes that demonstrates why the war on corruption was lost even before it began. The most important reason for this sorrowful state of affairs is not mere apathy; it is the active participation of the general population in the commission of a myriad acts of corruption on a daily - nay, hourly - basis. And it is not just the kitu kidogo thing; petty traffic offences, petty rule-breaking; petty, petty, petty. We look for the opportunity to break a rule, the generalised contempt for the law it engenders be damned. And if it was not for the manner in which we lionised the thieving classes, we would be in such a different place when it came to the anti-corruption aspects of our governance. Indeed, we would not have the humiliation of anti-corruption or ethics' legislation on our law books. The very existence of the anti-corruption and ethics' laws is an indictment against the entire nation. As is the spectacularly rule-infused, deadline-obsessed procurement law. It has become a spectator sport to see how much one can get away with when looting the public coffers. The best go on to bigger and better positions in the same institutions they have crippled; the idiots learn a Darwinian lesson: on the strongest thieves survive!

Execute the saboteurs

The administration of justice, including law enforcement, is hard enough without using the moral yard-stick as the primary means of deciding what is "right" and what is not. In recent months - indeed over the past decade - the campaign to protect Kenya's "Big Five" - the elephant, rhino, buffalo, leopard and lion - has turned from one of simple law enforcement to one about the morality of poaching, the evils of poaching, and similarly morally heavily-laden words. I do not doubt that poaching is evil and immoral; but these emotional descriptions of what is a gross economic and ecological crime obscure the need for clear-eyed reactions to the way our national natural heritage is being decimated.

The National Assembly recently considered, and passed, recommendations to enhance the penalties for poaching in Kenya. Lovers of wild animals were ecstatic. They were wrong. Poaching will not come to an end simply because we propose to impose stiffer, harsher penalties on poachers. We seem to have adopted the inexplicable Western habit of infusing "property" with emotional and spiritual characteristics, and thereby equating them to humans in importance. In some instances, animal "rights" activists (when did animals acquire "rights?") demand that the inevitable "encroachment" of humans into wild-life "zones" be rolled back because of the adverse "impacts" of human activity on wild-life movement and survival.

This is not to argue that poachers should not face harsher penalties, especially now that Kenya's wildlife is being extinguished before our very eyes. But the penalties should reflect the national priorities which include ecological services which only wildlife can provide and the added foreign exchange from tourists that is guaranteed year in, year out, every time we sell the Big Five to myopic Wazungus who wiped out their wildlife generations ago. And we should not only campaign for the safety of the rhino, the elephant or the lion; but also of the rare birds, trees, flowers and enzymes to be found in our wild areas. These are our true source of wealth; the Mzungu knows it which is why he does all he can to keep our wildlife policy focussed on a few species with limited bio-technological potential while he enters into dodgy agreement with ill-managed agencies to loot our bio-inventory for all that it is worth.

Kenya's wildlife policy, if it continues to be managed with a laser-like focus on the Big five, will remain the sham it has been that has allowed thousands of lions, rhinos, elephants and leopards to be destroyed. The Kenya Wildlife Service and the Kenya Forestry Service are veritable armies; but unlike the much-adored Kenya Defence Forces or General Service Unit, they receive a pittance for what turns out to be a task that is crucial to our economic survival. Without a well-managed and protected wildlife, Kenya risks economic stagnation despite the lofty goals of the Kenya Vision 2030. "They" say that the worship of mammon has brought many societies low. But how many animist societies survive to this day? All have been wiped out by those that know how to protect their true wealth, which in our case lies in in our wildlife, all of it and not just the Big Five.

We risk going off the path to economic strength if we place too great an emphasis on the morality of the exploitation of wildlife or the infusing of "souls" into intrinsic objects such as animals and plants. What we need is a practical approach to conservation; one that eschews emotion and recognises the economic, and political, importance of our wildlife. We must be prepared to change policies when they do not work. We must adapt to a shifting environment. Emotion has no business at this level, unless it is anger: anger at how our wealth is being frittered away by inaction. By all means, execute poachers; but do so because they are economic saboteurs not because they "made the animals suffer."

Reforms? When did pigs grow wings?

This author continues to be astounded that Kenyans are awestruck by the Jubilee administration, and the promises that it is attempting to keep. In the Sunday Nation, Ahmednasir Abdulahi attempts to predict that Uhuru Kenyatta and William Ruto will be the true reformers of the Kenya body politic (Uhuru's should be first reform-inspired government, 10/06/13). Part of his hope lies in the choice of Cabinet and Principle Secretaries, and another part lies in a combination of the "power, beliefs and principles" that the two men possess.

It is difficult to see what "reforms" Uhuru Kenyatta and William Ruto will bring to the Kenya body politic. Nothing in their past demonstrates a desire to break completely with Kenya's past; the choices both men have made at every turn have been instructive. When the Saitoti Committee (1990/91)went round the country over the niggling questions of reforming the Kenya African National Union a little-remembered event at the Kenyatta International Conference Centre hinted at the kind of politician Uhuru Kenyatta would be. He, and several scions of Kenya's faux landed gentry, met with the Saitoti Committee in camera. What was discussed, and what was resolved from those discussions, remain closely guarded secrets twenty-three years later. This penchant for secrecy and tight information control remain hallmarks of Mr Kenyatta's political evolution. It is a trait that Mr Ruto shares; even today, very few people know exactly what role he played in the Youth for Kanu '92 outfit. But it is quite clear that the partnership they formed for Mr Kenyatta's doomed 2002 presidential bid was not entirely dissolved with Mr Ruto dalliance with the ODM machinery or Mr Kenyatta's magnanimity during Mr Kibaki's 2007 run.

This is not to argue that Messrs Kenyatta and Ruto did not make capable Cabinet ministers. especially in Mwai Kibaki's two administrations, the two men demonstrated the capacity for intelligent problem-solving and hard work that more experienced colleagues had abandoned for the all-politics-all-the-time mindset that made them the bane of all Kenyans. As Local Government minister and, later, as Finance minister, Mr Kenyatta was not just hardworking and capable, he managed to get a lot done, much that was undermined by his successors. as did Mr Ruto when he was in charge of higher education and agriculture. But despite these positive attributes, the two did not demonstrate a reform-oriented bone in their bodies.

Two examples should suffice. When Mr Kenyatta decided to reform government fleet management, his desire was to lower the cost of transporting the army of Kenya's upper echelons of the civil service. He decreed that fuel-guzzlers would be sold; including his Cabinet colleagues, civil servants would be limited to vehicles of 1,800cc engine capacity and below. Mercedes-Benz was out; VW Passat was in. DT Dobie was out; CMC Motors was in. It was field day for the "supply chain managers" of the Government of Kenya. Disposing of the fuel guzzlers was expedited; well-connected winners of the tenders drove off with top-of-the-range Mercedes-Benz vehicles. But it is CMC Motors that continues to smile all the way to the bank; the Passat has proven to be more expensive to run and maintain than the much-maligned Mercedes. The idea was that Kenya would benefit from the decision to scale-down the opulence in public service; but really all it was is a sweetheart deal with a well-connected car-dealer.

The second is the shoddy manner that the Secretary to the Cabinet has treated Raila Odinga, Kenya's former Prime Minister. While this author does not believe that the former PM deserves special treatment, he is willing to accept that many Kenyans do want him to receive special treatment. These include some of the more peculiarly Kenyan habits of special access lanes in public places, overly-deferential treatment even by complete strangers, and an acceptance by minions of the State that you are indeed a Very Important Person. Even without proof, it seems that the circular by the Secretary to the Cabinet regarding the use of "government" VIP facilities might have been targeted at the former PM, even though he is not mentioned at all. If Mr Kenyatta has not made it clear to his minions that he is making a break with the past, sacking the Secretary to the Cabinet will be a good start, and anyone else who would see fit to employ KANU-Era tactics to make a point or prove their loyalty.

The bold ideas are well and good. Many will be of immense benefit to millions of Kenyans. But they are also like opium; they are meant to pacify and placate the masses while an odious, base, sclerotic, iniquitous and inequitable system persists for the greater benefit of an elite few. If Messrs Kenyatta and Ruto are truly the faces of a reformed Kenyan body politic, and if radical and bold ideas will define their reign, it will not be enough to bin all gas-guzzlers; the day we see Cabinet Secretaries, Principle Secretaries and all senior civil servants pay for their own transport, out of their pockets, without waiting for car-and-driver-at-taxpayers'-expense, then we'll start believing the pie-in-the-sky predictions of their "reformist" credentials.

Mr Ng'eno did not go far enough.

The Goldenberg Affair keeps taking scalps the longer it remains unresolved. In this month's Nairobi Law Monthly, Eric Ng'eno, he of the acerbic pen and quick wit, lays into the so-called Goldenberg judge, Mr Justice Joseph M Mutava of the High Court of Kenya, now suspended (Goldenberg impunity and the judiciary.) Mr Ng'eno's apparently dispassionate diatribe against the judge is spot on; Mr Mutava has behaved in a manner that has more than likely contributed to his suspension and the President's appointing of a tribunal to investigate his conduct. Not to mention, as further proof of his egregious behaviour, the litany of complaints from the Law Society of Kenya.

But Mr Ng'eno pointedly and inexplicably refuses to take his examination of the Mutava Connection in the Goldenberg Affair to its logical conclusion, which happens to be the "reforms" taking place in the administration of justice, generally, and in the Judiciary, in particular. Despite high-profile setbacks, the popular narrative that the Judiciary is well on its way to salvation and rehabilitation has not missed a beat. From the appointment of a Judicial Service Commission under the new-ish Constitution, to the appointment of the Supreme Court to the weeding out of judges of dubious capability or distinction from its ranks, the Judiciary continues to receive patina upon patina of goodwill. The Mutava Connection in the Goldenberg Affair is proof that regardless of the number of coats of white-wash applied, only root--and-branch changes in the administration of justice will give the Judiciary a clean bill of health.

The various partners in the administration of justice are all tarred with the same brush. Taking the Goldenberg Affair as our common denominator, the police, the Central Bank, the Law Society, the Office of the Director of Public Prosecutions, the Judiciary (including the Judicial Service Commission), the Office of the Attorney-General and the press, not one of these institutions has had the testicular fortitude to do the right thing. The police, as always, remains a dark place into which all those who venture lose their humanity and their souls. Corruption and murder continue to dog its every attempt at "reforms." On the truly sunflower-inspired optimist believes that reforms will take place in the National Police Service of Kenya. The Central Bank? Since even before the Goldenberg Affairs brought into the discomfiting light of day the truth about its vaunted autonomy, the Central Bank was, and remains, the piggy bank of the well-connected five-fingered-discount-loving "investor." The Office of the DPP and the Office of the A-G are the Siamese Twins atop the legal profession responsible for setting the pace, and the tone, of the behaviour of the over 7,000 advocates on the Roll of Advocates. Conflicts of interest seem to define their every official act.

The Judiciary demands special attention if for nothing else than for the "reformist" tag that it continues to wear despite the continual attacks on this facade by events such as the Mutava Connection to the Goldenberg Affair. Take, for instance, last year's successful purchase of Mercedes-Benzes and the payment of enhanced travel allowances for members of the Judiciary. At one point, the Chief Registrar claimed that the Chief Justice had to be bought a Mercedes-Benz similar to that of the Vice-President in order to demonstrate that though the three arms of government are separate, the Judiciary is still an equal of the Executive and Parliament and that the Chief Justice must be treated as a co-equal of the President or the Speakers of Parliament. She repeated the same argument regarding the travel allowances for members of the Judiciary. It never occurred to the Chief Registrar, or the Chief Justice and his officers, that the naked avarice by the Judiciary reinforced in the minds of Kenyans that even the whiter-than-white endorsement of the elite would not erase the image of pigs-at-the-trough that the entire government is today associated with. Now the Judiciary is talking of purchasing boats and aeroplanes (not forgetting that public procurement, whether in the Executive, Parliament or the Judiciary is the surest place to engage in massive graft.) We will leave the interventions of two members of the Judicial Service Commission in these matters for another time.

Mr Mutava is not an isolated case; Mr Mutava is the symptom of the great challenges we face in reforming the Judiciary. Hagiography is not an effective way of guaranteeing results; it is quite effective in papering over the flawed system the Chief Justice presides over. Kenyans owe Kamlesh Pattni a debt of gratitude; without his bull-in-a-china-shop rampage through the corridors of justice we may have continued to believe the illusion that when it comes to the Judiciary, change has arrived.

Treat them decently; they deserve it.

The law is never clear, and anyone who suggests it is is selling you a bridge in London. The National Social Security Fund Act and Legal Notice No. 159 of 2009, read in the context of the Domestic Workers Convention of 2011, make legal provisions for contributions by employers to the retirement funds of domestic workers. Some have struggled to make a distinction between domestic workers and casual labourers, while others argue that the distinction is meaningless in that retirement benefits' contributions by employers for their employees must be made.

Ever since the State set the minimum wage for domestic workers at around sh 10,000 in Nairobi and, because of the Domestic Workers Convention, threatened to enforce the minimum wage, a debate has raged whether it is possible for hard-pressed white-collar workers in Nairobi (as well as many more blue-collar ones) to afford the services of domestic workers at the recommended minimum wage. With the recent announcement by the National Social Security Fund that employers must remit the workers' contributions to the Fund or face prosecution, the debate has only become more agitated. It is only a matter of time that the National Hospital Insurance Fund announces that it too will enforce the requirement for employers to ensure that domestic workers' contributions to that Fund are remitted too by their employers.

Conversations by those that engage the services of domestic workers, especially women, are revealing. Many of them are in white-collar professional positions. Indeed, many of them can afford not just the minimum wage, but the contributions to the NHIF and NSSF. many tend to be married women in the prime of their careers with young children in need of care. The engagement of the services of domestic workers frees these women to concentrate on their careers and other aspects of their professional and personal lives. In other words, those that have domestic workers usually tend to thrive both personally and professionally.

The lot of the domestic worker, unfortunately, is not so rosy. A tiny minority of domestic workers are educated beyond primary school level. Those that have secondary school or tertiary education, tend to have completed their education in the bottom quartiles of the rankings. There are a few who were bright students. many seem to share the same predicaments of poverty and lack of opportunity when it comes to their educational and economic advancement. For the most part, when they offer their services as domestic workers, especially in "middle-class" homes, they do so at a great information disadvantage. They rarely understand the labour environment in which their services are being exploited. frequently, they mistakenly believe that they give up their rights when they become domestic workers. therefore, it is rare for them to report sexual, physical and psychological abuse at the hands of their employers. It is also very rare to find them trained in many of the basics of maintaining a home for someone else or their family; they rarely know first-aid or key information in cases of emergency.

Domestic workers subsidise our very comfortable lives. Whether one is wealthy or not, the services of a domestic worker are invaluable in freeing up time to pursue other income-generating activities. If we were to pay for their services at the true market rate, we would have less disposable income to invest in other income-generating activities, and we would reduce the amount of hours we engaged their services. It has been argued by many that when their domestic employees live full-time in their homes, they are effectively providing room and board, healthcare and security for not cost at all and therefore, there is very little need to not only pay them the prevailing minimum wage but to also make their NSSF and NHIF contributions. This is facetious and immoral.

The hundreds of thousands of shillings we save annually when we engage the services of domestic workers could and should go towards decent pay and working conditions. we may quibble about the interpretation of the law on this matter, but we should not when it comes to the question of treating our fellowman decently. It is immoral and cruel to keep them cooped up in our homes for the whole day, pay them a pittance, work them like donkeys, and pretend that room and board are sufficient compensation for their daily predations. Many employers complain of the thieving by domestic workers, the poor quality of work and the substandard care of their children without linking these issues to how they treat their domestic workers. It is time we woke up to the realisation that without them, our lives would be more expensive and difficult. It is time we started treating them (and training them) like the professionals they are.

The woods for the trees.

This is not the United States of America, we have argued before on this blog. Therefore, it follows that we do not treat public figures as the Americans do. Raila Odinga has been denied VIP status as a former Prime Minister of the Republic at our airports. One shudders to think that even in his current predicament that he would demand state favours for simply being Raila Odinga. It should go without saying that Kenya is not the United Kingdom either where the State awards honours on citizens for their achievements, especially in the political field. Kenya consciously rejected the idea of Lords, Earls and Knight Commanders of the Realm. Mr Odinga, for all that he has done for Kenya, is now an ordinary citizen. A very wealthy man, but an ordinary citizen nonetheless. Even his position atop the CORD firmament means absolutely nothing if he does not hold any meaningful position in the Government of Kenya, whether in the Executive or Parliament.

Some will argue that since the end of their terms, Daniel Toroitich arap Moi and Mwai Kibaki should be treated as ordinary citizens too. The State favours and kow-towing by the State to their various whims should come to an end. But that would be facetious and petty. Mr Moi and Kibaki, for all their flaws, were Presidents, symbols of national unity. Mr Odinga for all he has done for the people of Kenya was not a symbol of national unity, even as Prime Minister. He is highly controversial and very polarising. He has an on-going political contest with the incumbent at State House. It is improper for him to demand, or to be offered, State largesse simply because he is a Big Man.

It is a lesson that Kenyans must learn. Politics, and governance, is larger than any one man. The late George Saitoti realised this when Moi canned him. We must stop creating myths out of the men and women who rise above others in the political arena, whether they were good or not. The system must come first. Institutions must be larger than the men and women who created them. It is why parliamentarians must be reminded that they are not the reason why we have a government. We have a government because we willed it into life by ratifying the Constitution. The government exists whether they are there or not.

Mr Odinga is an important man to many. If they wish to canonise him, they are free to do so without the need to demand special favours from the State. If he wishes to be treated as a god, all he has to do is address a rally of CORD supporters. If he wants to enjoy the benefits of being a State VIP all he has to do is win an election once more.

None speaks for the victims.

It might very well be that the impending, but troubled, trials of Uhuru Kenyatta and William Ruto for alleged crimes committed in 2007 and 2008 at the International Criminal Court is an international conspiracy designed to weaken the Government of Kenya in favour of Western political and economic interests. But this would require that these governments had a contingency plan after Raila Odinga's loss in 2007 to Mwai Kibaki in that year's disputed general election. This would mean that governments that could not prepare for the fall of the Berlin Wall or the events of 9/11 somehow managed to put together the most comprehensive and subtle "regime-change" plan in the aftermath of the 2007 polls. The myth of Western governments' power to effect large-scale political change in any part of the worldd has been largely overwrought.

Ahmednasir Abdullahi's assertions in the Sunday Nation must, necessarily, be challenged (African Union rightly saw what ICC cases are all about.) This author does not believe that the post-election violence cases should have been tried at The Hague. But Kenya has proven time and again incapable of resolving political problems justly or fairly. Since the assassination of Pio Gama Pinto, Tom Mboya and JM Kariuki, political challenges have always been resolved by sweeping everything under the carpet, leaving innocent victims to fend for themselves. Since the first land clashes in 1992, election-related violence has been dealt with in a cavalier fashion. Those who were displaced in 1992 and 1997 are yet to find new homes or to be restored to their old ones. Those who were displaced in 2007/08 remain in limbo. When the Waki Commission suggested that a separate judicial mechanism be established to deal with the 2007/08 crimes, Kenyans thought that Mwai Kibaki's government would do the right thing. Kenyans remain disappointed to this date. The recent happenings in the Judiciary regarding the Goldenberg-related cases confirms the suspicion that th reforms in the Judiciary are yet to take root, let alone change the mindset of judicial officers charged with keeping the new constitutional faith.

The African Union resolution to send back the Kenyan cases to Kenya is laudable but is founded on the wrong motivation. The ICC has not done much to dispel the suspicion that it is an anti-Africa court. While the war crimes and human rights abuses of the Western powers continue to go unpunished, it is hapless Africans who continue to be prosecuted at the ICC. The few Europeans tried at international level happen to be leaders of nations that for one reason or the other have run afoul of the interests of powerful Western governments, especially the United States, the United Kingdom, Germany and France. Even the fact that African states acceded to the Rome Statute cannot dispel the idea that the ICC is designed to cower Africa.

However, what the African Union proposes, in its year of jubilee, is not in response to the apparently racist underpinnings of the ICC process. Rather than face head on the continuing political inequalities of African states, in which the weak continue to be abused, the African Union wishes to perpetuate a system that has been discredited the world over. By demanding that the Kenyan cases at the ICC be sent back to Kenya to face a still-distrusted judicial process, the AU does not side with the victims of the violence but with the accused who happen to be capable political leaders in their own right. While Mr Abdullahi is right that the Government of Kenya had no direct hand in sending the cases to The Hague, it is without doubt because of the government's intransigence that ensured the triggering of the ICC process.The government's unwillingness to deal with the problem in 2008 all but guaranteed that as a signatory to the Rome Statute could be used to set things right.

It remains a closely guarded secret what was contained in the Waki envelope. But it is increasingly uncertain that Luis Moreno-Ocampo's "investigation" is falling apart. When Francis Muthaura's trial was dropped, it seemed like things were truly falling apart. Now with the drip-drip-drip of witnesses recanting, the cases against Messrs Kenyatta and Ruto look increasingly weakened. If the Western powers truly had a hand in the trials of the two, would they allow the investigation to be so shambolic? Would it not be in their interests to ensure that witnesses stayed put and that their families were protected? The trials may or may not go forward, but it is almost certain that with the continuing withdrawal of the witnesses, the likelihood of the accused being acquitted continue to grow. The interference of institutions such as the AU or the diplomatic service only serve to complicate an otherwise straightforward legal matter. But in the grand scheme of things, hundreds of thousands of Kenyan victims continue to receive the short end of the stick from their government, the ICC and the formidable AU.

Quit whingeing and organise!

All the wishing in the world will not change the fact that when it comes to the organisation of government, not even Kenya will alter a fundamental truth: presidents organise their governments with the political end-game in mind. Kenyatta did. Moi did. Kibaki did. And Uhuru Kenyatta certainly has. His choices of Cabinet Secretaries may have been billed as the secodn coming of professionals back in the Cabinet, but it is surely for political reasons that the likes of Ms Kandie and Mr Chirchir found favour with the Parliamentary Committee on Appointments. The behaviour of  Aden Duale on the Committee was certainly revealing. That they managed to persuade the National Assembly to go to bat for the hapless Ms Kandie must have been quite a coup.

It is why the whingeing by civil society is so humourous. Why they thought the Jubilee government would follow a different path beggars belief. Even a casual examination of the system we seek to emulate will demonstrate the folly of thinking that only merit counts when choosing members of the Cabinet. Barack Obama's choices for Cabinet-level members has been driven significantly by the need to keep his party in power beyond his term as President. In Kenya, despite the lofty non-tribal, non-partisan whispers of the President and Deputy President, they will want their coalition to survive the full term, and perhaps be perpetuated for fifteen more.

When the first sixteen nominees were announced, on the surface, it appeared that Uhuru Kenyatta was making a complete break with Kenya's past when it came to the Cabinet. Especially with President Moi, the Cabinet had become the place for settling political debts. Where a politician had succeeded in winning the President's favour, he was rewarded with a seat in the Cabinet and, by extension, his tribe was seen to be represented in the government at the highest levels with the largesse the Minister was expected to lavish on his "people." This system of patronage has now been constitutionalised with the requirement of ethnic and regional balancing in high-level government appointments. 

While civil society was disappointed by the greater representation of Rift Valley and Central in the Cabinet, they should not have been surprised. Messrs Kenyatta and Ruto had to satisfy "their bases." With the two main tribes in the coalition taking the lion's share of Cabinet slots, it is a recognition that while the coalition managed to garner the required votes for election, it was not properly represented outside of the two strongholds. It will be surprising if the pattern is not repeated with other Executive appointments. It should also be expected that Parliament, given Jubilee's dominance, will ratify the Executive's choices without trouble. 

Not even the most high-minded societies can do without the political arithmetic that goes with the formation of a government. What makes the process legitimate is if the other parties react as they are required. Instead of whingeing about the unfairness of it all, they should organise, within the rules, to play a constructive role in guaranteeing that the Executive does not have a free hand in going about its affairs. The signs in Kenya have been discouraging.

Over the last few weeks, instead of playing a constructive role as the minority party, CORD has simultaneoulsy attempted to impose a will it cannot on the National Assembly while working in concert with the majority party (especially on the niggling question of MPs' pay.) Francis Nyenze is a capable politician, but even he will be the first to admit that without the leadership of Raila Odinga or Kalonzo Musyoka in the government, he is in an untenable position. It is like trying to herd cats.

The Executive, so far, has played a cautious game in keeping things on an even keel. But its slow-but-sure approach is wearing thin. It has so far managed to keep its MPs in line because of the fractiousness of the CORD side of the equation. If or when CORD gets its shit together, Kenya may once again experience the reality of majority-minority rule. Mwai Kibaki was the last Opposition Leader to check the Executive. It remains to be seen whether Mr Nyenze will rise to the challenge. Until he does, Kenya will not have the benefit of a constructive opposition to keep the Jubilee coalition in check. 

Do you trust Parliament to get it right?

The legislative process is about to get very interesting. The Members of the Tenth Parliament, in one of their more egregious moments of sheer lunacy, enacted the Statutory Instruments Act, which came into force in the beginning of 2013. In effect, it gives Parliament and oversight role in the process of drafting, approving and interpreting all subsidiary legislation published to give better effect to principal Acts of Parliament. This is not a minor professional quibble with Parliament, but a reasoned examination of the effect that a large bunch of inexperienced and untrained "drafters" will have on the administration, including drafting, proofing or interpreting, of the law of Kenya.

The experience with Parliament regarding the still-knotty problem of their salaries and remuneration proves the point.  On Thursday 30 May 2013, they promised to hold the national Financial estimates hostage unless their demands are met. The national Executive and the Salaries and Remuneration Commission have called the threats by Parliament unconstitutional. it seems this showdown is going down to the wire. But it is in how Parliament reacted that is instructive.

Instead of taking an objective look at the Constitutional powers of Parliament, theirs has been highly subjective - and selfish. Gwassi representative John Mbadi, who should know better after five years in the National Assembly, argues that "Parlliament can make any law; if the law is not there, we will enact it." He echoes the sentiments of the MPs who support the calls for higher pay for MPs. What he refuses to acknowledge, or actively turns a blind eye to, is the fact that Parliament is not the final word on the constitutionality of any law any more. So while Parliaent "can make any law" the High Court can declare the law or any part of the law to be unenforceable by reason of being unconstitutional. It is not the business or place of Parliament to rule on the constitutionality or otherwise of legislation.

If on a matter that affects parliamentarians so intimately they are incapable of drawing the proper interpretation of their powers, or options, from the Constitution, then it is doubtful that the "routine" business of law-making will be intelligently conducted. The Tenth Parliament was notorious for lack of quorum and poor debate. If we now saddle the parliamentarians and their staff with the additional task of not just enacting but drafting legislation, ensuring that the niggly bits of the proposed law are smoothed out and that all angles are covered, we cannot be sure that in emulation of their predecessors in the Tenth Parliament scrutiny of the Bills will be left to the Committees, many of which operate as vehicles for earning sitting allowances rather than conducting serious parliamentary business, or whether Parliament will do the needful and catch the anomalies before they become law. I am not confident that mistakes such as the Statutory Instruments Act, 2013, will not become the law of the land.

What is certain is that Parliament, just like many other parts of the government, prioritises capital and recurrent expenditure in very unusual ways. Parliamentarians may have the power to"make law", but elementary research would tell them that it is prudent to make law in partnership with the Executive; after all it is the Executive that would implement these laws enacted by Parliament. In their zeal to stamp their authority in government, parliamentarians risk alienating an arm that is crucial to their achieving their ends, whether politically or personally. More practically, the poor capacity in drafting expertise, whether in MPs offices or the Clerks', means that the quality of Bills will be even lower than what we have gotten used to over the past three years in our haste to "implement the Constitution." Poorly drafted Bill that are enacted into law will compromise the proper governance of Kenya and place even constitutional goals in jeopardy. they may even re-introduce government excess, exacerbate corruption and lead to the dark days of human rights violations. Who trusts Parliament to get this process right?

Stationary Jogging?

It is getting worse. While the men and women in charge of policy on policing in Kenya duke it out over who has the power and who does not, Kenyans continue to suffer security predations that place them in the same security quartile as Somali, Afghanistan, Colombia, Pakistan and Honduras. The wise men and women of the Committee of Experts listened hard and read all there was to read regarding the state of policing in Kenya. In harmonising the various draft constitutions into one, they knew that they were the first step to reforming policing in Kenya. Their work has been sabotaged ever since they would up their duties and the Constitution was promulgated in 2010.

Kenya's policing structure is still in a shambles. It is not clear at the grassroots from who officers would be taking directions or to whom they should report regarding purely policing matters. It remains unclear what role county Executives will play in policing in the counties or whether they'll have a say in policing priorities. In the middle of this confusion criminals and terrorists have stepped in with gusto. Incidences of night-attacks in Western Kenya and terror attacks in North-Eastern Kenya are on the rise. Armed robberies in Nairobi, Central and parts of Rift Valley are on the rise. Kidnappings are becoming prevalent, even against families that claim to live in abject circumstances begging the question why they are targeted to begin with. Then you have the ballooning of "victimless" crimes such as prostitution and generalized petty corruption.

Slowly, and perhaps because of the narrative perpetuated by civil society of a criminal National Executive, but surely Kenyans are developing a contempt for the rule of law. Every day we see proof of men and women who have "gotten away with it." Remember the head of the national HIV/AIDS program who was pardoned by Mwai Kibaki despite the fact that millions of Kenyans were placed at risk because of her thievery? Do you know that ever since the Island of jersey's authorities demanded the extradition of Chris Okemo and Sam Gichuru, not once have they denied that they did not commit corrupt acts, only that they UK authorities do not have a right to seek their extradition? Did you know that for years teachers and head-teachers accused of impregnating their female students, or otherwise taking sexual advantage of their students, were neither arraigned in court or punished in any way other than to be transferred out of their stations placing new children in different schools at risk of their predatory activities?

Despite Dr Willy Mutunga's heroic attempts to improve the image of the Judiciary, whether as the head of the Judiciary or the Chairman of the Judicial Service Commission, it is only the elite of the elite who believe that the Judiciary has been "reformed". Ordinary, man-or-woman-on-the-street Kenyans know that more often than not it is the man with the fattest wallet that gets "justice" in Kenya's hallowed halls of justice; the rest of us have to make do with the short end of the judicial stick should we find ourselves in a sticky wicket.

So it is not a surprise that the National Executive's priorities regarding policing have little to do with policing; they have everything to do with maintaining their political and executive power before all else. Kenyans, as is their wont, are resigned to this state of affairs because they know that even the men and women they elected to represent their interests are not going to do much unless Kenyans will give in to their demands for fatter wallets. The choice of Cabinet Secretary in charge of policing is disappointing. It remains to be seen whether the National Executive's choice will receive the respect and support from the security firmament to complete the reforms that have stalled since the Constitution was promulgated. Meanwhile, Kenyans continue to suffer banditry, terrorism and armed robbery.

Don't be a pigeon!

Despite my condition as a serious cigarette smoker, the ban by the Health Cabinet Secretary on all advertising of tobacco products is a welcome development. The link between cigarette smoking and a myriad of fatal health conditions is now beyond scientific challenge; any person who chooses to indulge in the "filthy habit" must do so knowing the risks. Unlike alcohol consumption, which kills more people directly or indirectly than cigarette-smoking, the latter has the potential to affect thos who do not smoke in even more insidious ways. Second-hand cigarette smoke is just as much a killer as directly-inhaled cigarette smoke. If fewer people can be attracted to cigarettes, and tobacco products generally, fewer people will be killed.

Many manufacturers and marketers of tobacco and tobacco-related products will howl in protest that their businesses are being "killed" by the cabinet Secretary. They may very well be right, but that does not mean that the Cabinet Secretary is wrong. The cost of keeping these businesses running has proven to be high indeed. In a nation that can barely afford to equip one public national referral hospital with the bare equipment to treat cancer, it is inconceivable that the Executive should sit idly by as more and more Kenyans are attracted to a way of life that will inexorably lead to cancer, among other "lifestyle" diseases that are expensive to manage. Following the lead taken by advanced western economies such as the United Kingdom and Australia, it should be difficult, if not impossible, for persons to smoke in public places or to to be attracted to the "class' factor os smoking this, that or the other brand of cigarette.

But it is in protecting the impressionable young that the Executive must pursue this advertising ban to its logical conclusion. Many smokers are attracted to the activity while in school, usually high school at the age of fourteen or fifteen. Part of the attraction is based on the advertising; tobacco advertising has been the most sophisticated for the longest time possible. It has also been insidious in targeting young sand youthful persons, especially those who have their whole lives ahead of them. The market in the United States, Europe and parts of Asia is shrinking die to anti-tobacco strategies being implemented by the governments there; it is in Africa and the remaining parts of Asia that Big Tobacco will direct their resources. They will attempt to scare the Executive with tales of lowered revenues; the Executive in Kenya should ignore them and plow ahead with its ban. The revenue lost in advertising will be more than made up by the reduced incidences of tobacco-related lifestyle health problems among the general public. It is a price we should be will to pay, no matter the lost jobs and shuttered factories.

Caution is warranted, though. The fiasco that has been the implementation of the Mututho Law should serve as a warning to the mandarins in the health ministry. "Sin" products are very lucrative, whether in the legitimate or "black" markets. Therefore, there is great profit to be made in circumventing and undermining the good intentions of the Cabinet Secretary. Whether he is successful depends entirely on whether the national Executive is resolute in this matter. If the Cabinet, and the Executive, are divided over the matter, then there will be inadequate planning or execution of the policy. Enforcement of any rules regarding advertising will be laxly enforced. There are only three major tobacco-product players in Kenya; I will be surprised if with a divided National Executive any of them, even the smallest player, is pushed out of the industry because of this ban. Admirable initiatives have been initiated in Kenya before; many failed because we have the attention spans of pigeons. I hope this time things are different.

Wacha watunyoe nywele na wembe bila maji!

John Mbadi is right: if the law is not there, Parliament can make one. However, he misconstrues that power; while he thinks that Parliament is supreme, when it comes to the declaration of whether a law is constitutional or not, it is the High Court that has the final say subject, of course, to the appeals process through the Court of Appeal at the Supreme Court. Kenyans have had a very difficult relationship with the last three parliaments; the elected representatives' insatiable desire for more and more of the Nnational treasure has made them a menace when it comes to the knotty probvlem of setting their pay-and-perks.

 

Let us not get carried away, though, by the arguments and counterarguments in this debate; let us instead question the entire rationale for a well-remunerated elected body such as Parliament or the 47 county assemblies that we wisely, or unwisely, agreed to in 2010. Let us begin this disquisition with the cost of getting elected in Kenya. It is not cheap. Therefore, whether one was an incumbent or a newcomer, the amount of money that one would have to spend to be elected or to retain their seat is colossal. The elected representatives would argue that they must be allowed to recoup their "investment" through their salaries and retirement benefits, otherwise they would lives of penury in payment for their life of service to their constituents.

 

While it is a reasonable argument, it is fallacious. For them to be elected, they had to spend large sums. They must have raised those large sums from somewhere. When they are eventually elected, they do not shut down the sources of the funds that they used for their campaigns, unless, of course, those sources were unlawful, in which case they should not have been elected in the first place.  Despite their howls of protest, very few MPs can claim that their salaries-and-remuneration is the only source of income they enjoy. They, or nearly all of them, run businesses and consultancies that net them much, much more than they claim from the National Treasury.

 

From a constitutional perspective, even Mithika Linturi's arguments are without merit. The parliamentary committee that adopted the report on the SRC Gazette Notices did not even bother to read the law on the matter; the power of the SRC to set the pay of State officers is not fettered by niceties such as Gazette Notices or the like. All statutes that were in existence before the promulgation and ratification of the Constitution in 2010 stood ultra varies to the extent of their inconsistency with the Constitution on the effective date, including the existing law on the salaries, remuneration and retirement benefits of elected representatives. The SRC did not purport to invalidate statute; statute had already been invalidated by the Constitution!

 

We have diagnosed the problem, and hypocritically, we have absolved ourselves of all blame. This author has consistently warned against buck-passing by the electorate of Kenya. In this instance, we must insist that Kenyans take full responsibility for the quick-fingered, five-fingered-discount-loving MPs that we call the Eleventh Parliament. As late as October 2012, it was quite apparent that if even one-quarter of the members of the Tenth Parliament succeeded in persuading their constituents to send them back to Nairobi, all the prayers in the world would be in vain. Those estimates were wildly off the mark. Justin Muturi and Ekwe Ethuro, the speakers of the National Assembly and the Senate respectively, are presiding over the most difficult parliament ever. Aden Duale, for Jubilee, and Francis Nyenze, for CORD, in the National Assembly lead a group of elected representativs used to getting their own way regardles of the consequences. On the question of their pay-and-perks, Jubilee and CORD sing from the same song-book without a discordant note between them. But the person to blame for the state of affairs is the one that elected the same lot expecting a different outcome.

 

When Aden Duale responds to our accusations of thievery and greed by calling us thieves and greedy pigs, he is not far off the mark. Were not many voters bribed during the elections without bothering to report the election offenses? Were not many voters involved in the commission of even greater election offenses such as voter intimidation? Were not many voters choosing their representatives based on their tribe or clan, rather than their party's manifesto or track record in public service? Are we not being hypocritical today demanding probity and integrity when these qualities mattered not when we were casting our ballots? Shouldn't we just let the elected representatives steal from us until there is nothing left? Deep down we know that we wanted them to do so. We just won't admit it. 

Peculiar Kenya.

Kenya is not the United States of America. Neither in the organisation of the government, nor the operations of its Judiciary, nor even the practice of its politics, is Kenya the same as the United States in any respect. If this has been unclear since the ratification and promulgation of a new Constitution in 2010, it should be starkly so today in the aftermath of a bungled process of "vetting" Cabinet Secretary candidates, the turf wars between various arms of the Executive regarding the National Police Service and the unremitting greed of the Eleventh Parliament. The concept of separation of powers among the three arms of government is yet to sink in with our powers-that-be.

The United States Congress, the United States Supreme Court and the Executive Branch of the United States Government share an uneasy relationship. This has been apparent over the past five years with Barack Obama as president of the United States. He proposed legislation to reform healthcare in the United States. It was opposed vehemently by the opposing party. His party rammed through a Bill through Congress in the teeth of Republican opposition. It was challenged in the Supreme Court. It is being implemented today. In all this, it was easy to tell, from the arguments advanced and the allies co-opted, which side of the debate one stood. In five years, Republicans and Democrats have only seen eye to eye on one thing: in the recent debate on the "sequester", a vicious round of public sector financial cuts, both sides agreed to suspend parts of the sequester affecting the Federal Aviation Administration (ostensibly because it would affect all their travel plans.)

In Kenya, it is only the Judiciary that is attempting to live by the requirements of separation of powers. The relationship between Kenya's National Executive and its Parliament is complicated chiefly because neither arm of government appreciates the paradigm shift in the power-relations between the two. The National Executive continues to behave as if Parliament exists merely to rubber-stamp policy while Parliament believes that revenue collected by the Executive is its own to spend as it sees fit.

When Uhuru Kenyatta and William Ruto were campaigning, they promised every child starting standard one in 2014 a free solar-powered laptop. It forms a prominent part of their coalition's manifesto, which is now the blue-print for the policies of their government. For the promise to be kept, the Executive and Parliament must work together, not only to ensure that the programme is viable, but that the funds are appropriated for its successful implementation. Parliament, meanwhile, is divided regarding the manner in which it will "vet" and "approve" nominees to various public offices, including to those Cabinet Secretary, Principal Secretary and in the diplomatic service. Phyllis Kandie, on paper, is eminently qualified to head the Department of East African Co-operation and Tourism. But during her "public vetting" by the national assembly Committee on Public Appointments, she came across as naive and un-informed. The report of the Committee was unequivocal: they would not approve her appointment as Cabinet Secretary. The Committee had not reckoned with the lobbying by the Executive among other MPs. Statements in support of Ms Kandie had nothing to do with her competence, intelligence or experience. She was easily confirmed regardless of the doubts surrounding her competence largely because a section of the National Assembly believes that its role is to run defense for the National Executive, rather than keep an watchful eye over its activities to check any excesses.

A free press is usually the institution that keeps a government honest. But it is an open secret that "free press" in Kenya is a largely empty phrase; during many of Kamlesh Pattni's trips to the courts, rumours have persistently swirled of the wads of money that change hands to report the story one way or the other. Then you have spectre of politicians and senior State officers owning majority stakes in, or outright, media companies, including radio and TV stations, and newspapers. It is only the naive who believe that "free press" in Kenya is synonymous with "corruption free" or "fair and balanced". So when they howl in pain when the State squeezes them a little, they are not to be surprised that the only ones who will rush to their defense are self-interested parties like opposition politicians or foreign powers; Kenyans, by and large, don't care one way or the other. And so the press has failed to highlight the incongruities in the system of government we have today.

So when we try to emulate the United States in what it does and how it does it, we do ourselves a great disservice. The United States Government is an evolution more than two centuries in the making, born of a revolution and a civil war. Not even Kenya's war of independence was a war of independence: it was a land-rights war that was co-opted for political ends by sectarian interests. Fifty years is not long enough for institutions to mature. It is why, in all its constitutional iteration, even under the 2010 constitution, Kenya remains a nation of strong, anti-democratic, amoral, corrupt influences. In this year of our Jubilee, we shouldn't paper over the ugly truths about ourselves. We should celebrate them, knowing that whatever else happens, we will do our thing as we've always done it: peculiarly!

What Idea called Kenya?

In 1885, European Powers agreed to carve up Africa among themselves. Until their massive land-grab, Africa did not have nation-states in the mould of the Old World. The Dark Continent, because of its fecundity and natural wealth, was largely a collection of ethnic communities, with one or two formally organised kingdoms, empires and city-states. But the advent of colonialism brought with it the spectre of the "traditional" European nation state, with "formal governments" and "national identities." It mattered not that in the division of spoils among the British, Germans, Belgians, Dutch, Portuguese, French and Italians, the boundaries that were drawn up did not reflect the "national" identities the colonialists and their settlers intended; instead, entire "nations" were fragmented, ethnic communities were subdivided and whole cultures were rendered irrelevant with a stroke of the treaty pen.

Nationhood in Africa never really took root as it has in the West or Asia. Even appeals to nationalism have always foundered on the barriers of ethnicity and tribalism. It is for this reason Prof Makau Mutua's assertion that "Kenya as an idea has never been so deeply imperilled" (Kenyans are more divided today than ever before, Sunday Nation 27/05/13) must be interrogated further. The context for Mr Mutua's assertion is the two-fold: first, the calls to "move on" and the persistent calls to do nothing that would imperil our fragile peace are misguided and wrong. It is imperative that Kenyans continue to question the path they are being led on by the charmers in the Jubilee Coalition led by Uhuru Kenyatta and William Ruto. Second, the hateful vitriol being spewed on the web, especially on social media sites are a true reflection of who we really are as a nation. It is only online, according to Mr Mutua, that our true selves are reveled, where even with the anonymity that comes with aliases for registration monikers.

This author readily admits that he has called for the nation to move on, including urging Mr Mutua to "let it go." This author also admits that he may have been wrong. In papering over the flaws of the 2013 general election, I was guilty of willful blindness to the sins of the candidates on the ballot. Many of them made pie-in-the-sky promises that they, and I, knew to be worth a bucket of warm spit. Many of them persisted in laying the blame for the travails of their constituents at the feet, or on the shoulders, an Other that so happened to be a "tribe" they disagreed with at the moment. Many are now suspected of fanning violence in different parts of the country in retaliation for either losing in the elections or, if victorious, in celebration. We are, in the words of Safaricom's former CEO, a very peculiar people with very peculiar habits.

But the claim that Kenya is an idea, I believe, is founded in the wrong presumption. When Kenya gained independence, it did not really become independent: what we got was the right to internal self-rule. the Prime Minister and his government may have been Africans, but the Governor was British and Kenya was governed in the name of the queen of England. Even then, Kenya as a political territory had only existed for 42 years, since 1921 when Kenya became a colony. In the 42 years of official British rule, the colonialists effectively implemented a divide-and-rule policy that bred suspicion and ill-will that not even internal self-rule or the declaration of a Republic could eliminate. Fifty years later, in an epoch-making general election, Kenyans are still as divided as they were when the British coralled about forty-two ethnic communities into one land and called it the Kenya Colony.

It is the rose-tinted glasses of the likes of Mr Mutua who dream of  Kenya as an idea that persuades this author that Kenya is yet to stabilise, never mind all the rosy projections of the pundits, economists and politicians. Kenya has never been democratically governed; it has never had an incident-free transfer of power; its peoples have never been united; and its politics has always divided more than it has united. Now that we have empowered tribal chieftains to spend what they do not have in the name of devolution, the political schisms running throughout the country are set to deepen and widen: we will never close the gulf between our peoples. One way or the other, we are going to find more and more things to divide us than to unite us, and we are going to play on the fears and insecurities over our neighbours that I will be surprised if saner heads will not call for the disbandment of the Senate and the devolved system of government in favour of an still-emasculated presidency that is decentralised at the grassroots. There has never been an idea called Kenya; once we admit it, we can stop comparing ourselves to Western nation-states. We can then start to redefine our identity and our fate.

Tell it to the pigs!

Muslim Members of Parliament were offended at being compared to pigs. They've obviously never heard of "imagery", "irony" or "metaphors." They accused the protesters outside Parliament on the fourteenth of blasphemy. Blasphemy is the act of insulting or showing contempt or lack of reverence for a religious deity or the irreverence towards religious or holy persons or things. Could they please inform Kenyans which among them is a religious deity or a religious relic. These men and women are now taking hyperbole in their demand for higher salaries to extreme ends.

Some principles need to be laid down in this fight. First, even a rudimentary understanding of contract law provides a clue as to the wrongness of the argument by parliamentarians. Ordinarily, a contract for a term of years expires when the term ends. If parliamentarians intend to argue that the Tenth Parliament had a "contract of employment with the people of Kenya" and that the terms of the contract included their salaries, remunerations and retirement benefits, then the contract was between the people of Kenya, the members of the Tenth Parliament, and it came to an end when Parliament stood dissolved for the general election. Between the date of the dissolution and the election of the members of the Eleventh Parliament, the institution of Parliament may have existed, but the parliamentarians did not. Now the terms of the contract did not bind the institution of Parliament, as claimed by Mithika Linturi, but parliamentarians. Indeed, members of the Tenth Parliament may only claim their terminal and retirement benefits, because those survive the termination of the "contract of employment", but not the salaries and remunerations they enjoyed during the life of the Tenth Parliament.

Second, Parliament derives its independence from the people of Kenya. While it is a creature of the Constitution, the Constitution is the expression of the collective will of the people. In the same light, the Salaries and Remuneration Commission is a creation of the Constitution and it exists because the people of Kenya wish it so. Parliament may have the power to make law; but this power is not sui generis; it is delegated to Parliamentarians by the people of Kenya. Therefore, parliamentarians cannot claim a) that the people cannot demand lower salaries and remunerations for parliamentarians; b) that the Salaries and Remuneration Commission overstepped its mandate by using a "legal notice to amend an Act of Parliament;" or that c) the Constitution has been grossly violated by setting the salaries and remunerations of parliamentarians lower than in the Tenth Parliament.

Back when Kenyans were sheep ready for the slaughter, the President could do as he pleased; Parliament merely rubber-stamped decisions that had been made and enforced. In a later iteration of the abuse of State power, Parliament acquired a few powers and used it for the aggrandizement of MPs at the expense of ordinary Kenyans. In the evolving relationship between the State and the people, State organs, especially the President and Parliament, operated in a twilight zone where common decency, the rule of law or the will of the people were absolutely absent; the people were specks of shit on the State's shoe to be flicked off in contempt.

Third, if it is true that parliamentarians have a contract of employment with the people of Kenya, the people, in all their naive wisdom, have placed the responsibility of determining the salaries and remunerations of parliamentarians on the shoulders of the Salaries and Remuneration Commission. Also, if the parliamentarians wish to increase their salaries and remunerations, they can only make this demand after they have worked for it; no employer in his right mind will give an employee a pay-rise without some form of performance appraisal. Performance appraisal may only take place after performance. It will be positive if the performance generates benefits for the employer. So far, Parliament has not been beneficial: in Busia, Bungoma, Garissa, Mandera, Moyale, Tana River and Trans Nzoia the people are being murdered while Parliament turns a blind eye. On this ground alone, Parliament cannot demand a fatter pay-cheque until the people in these areas can live in peace and security.

Finally, Members of Parliament, including those professing the Muslim faith, may be "religious" in that they wear their religion on their sleeves, take time to perform all the rites and rituals required to remain "right with God", and, at least outwardly, are the milk of human kindness. But the past two months has reminded Kenyans that parliamentarians continue to live in a world of their own where reason and logic, truth and justice, morality and civic-mindedness are alien concepts. Many parliamentarians represent constituencies that languish in abject poverty, where youth unemployment and crime rise in tandem. Instead of attempting to find ways to ameliorate the suffering of the people, parliamentarians have perfected the art of the handout, hence their enormous "expenses" every month. What MPs should have done all along was to harry the Executive to ensure that facilities required for the improvement of conditions of living are provided. This is what representation is all about. If they cannot do it, perhaps it is time we seriously reconsidered the qualifications for a person to be an elected representative. If we are going to end up with the likes of Tiyah Galgalo, Bare Shill, Mithika Linturi or Richard Onyonka, then perhaps we are better off with teh return of Daniel Toroitich arap Moi and his inimitable style.

Half-an-idea is not enough!

On Tuesday, 14 May 2013, Kenya's civil society did something extraordinary. They corralled a sow and her piglets, loaded them onto a filthy lorry and dumped them (and a tank of blood to boot) right outside the gates to Parliament. It was the most extraordinary expression of popular outrage against the Members of Parliament's demand for higher pay-and-perks, quite against the wishes of a majority of man-on-the-street Kenyans. It was unexpected and shocking. It revealed the vestigial remains of civil society's ability to keenly decipher the mood of the people and to express it in a manner that would capture the popular opinion. It was also offensive, deeply so, and the shocked and outraged visages of MPs reflected the deep insult that had been hurled at them. This is what political civil society must do.

Sadly, their imagination ran out. Political civil society is supposed to be the conscience of the people when the political and faith-based establishments fail in their duty. Instead of advancing, even in the brief talking points put out, the moral, legal, sociological, financial and political case against the Members of Parliament, the protestors advanced juvenile arguments, and deployed aggressive and violent force against the few idiotic MPs who chose to engage with them.

This is the problem with the political civil society today. It may express, more often than not, the popular will of the downtrodden, but it is incapable of engaging intelligently with the nation's or global intelligentsia. It has been reduced to sloganeering at the expense of developing the philosophical weapons needed to prevail, both at the grassroots and in the corridors of power. Some, including this author, argue that part of the reason why political civil society is in decline is because it has become too wedded to the idea that for it to prevail, it must expend money. Money has become the principle excuse of why political civil society does not engage the State on all matters that affect the people adversely. Money has become the umbilical cord that links political civil society with hare-brained outfits from the West. Money is the reason why political civil society champions increasingly resemble the MPigs they were demonstrating against on the afternoon of the fifteenth: rotund and swanning around in SUVs or high-priced limousines. While Members of Parliament want our money to spend on these luxuries, political civil society champions want Western nations' citizens' taxes to spend on the same luxuries! The irony is not lost on this author.

This is not to argue that there aren't intelligent people amongst the leading lights of the political civil society movement. Not at all. Or that if they enter elective politics, and succeed, they will debase their principles at the altar of the filthy political lucre on offer. The Member for Ndhiwa, Agostinho Neto, for example, may not be as famous as Maina Kiai or Makau Mutua. But he has managed, in his brief stints in the Tenth Parliament, and now in the Eleventh, to demonstrate that it is possible for someone to enter the "enemy's" camp with being seduced by the bright lights and temptations on offer. His most recent proposal, while in some respects is misguided, is an eye-opener. While the political civil society shouts itself hoarse sloganeering in the streets, Mr Neto is proposing the amendment of the Constitution to set the total number of MPs at 304, eliminating the nominated ones and abolishing the 80 constituencies created in 2011. In a practical way, if his proposal is accepted, the Parliamentary wage-bill will be radically reduced. Of course this author realises that Mr Neto is pushing against the sky but, nevertheless, wishes the Ndhiwa MP success, even partial success in his career in elective politics.

And that is the point. It is not enough to have a point of view, especially a contrary point of view, without proposing alternatives that are reasonable. Political civil society today is robustly against the explosion of the "public wage bill" but it is yet to propose solutions that will accommodate the interests of both the public servants and the public they serve. Simply accusing public servants of excessive greed without proposing practical, realistic solutions is a recipe for mutual disrespect and conflict. The pigs were a nice touch. It would have helped that the civil society activists had an idea out of the current impasse.

Time to Bell the Cat.

It is strange to hear calls for a more muscular intervention by the State in the continuing security crises from the leading lights of the human rights movement in Kenya. In the dark days of the Kenyatta dictatorship and the Moi kleptocracy, any use of the State's security apparatus was treated with great suspicion. Mr Kenyatta had the never-ending Shifta Wars and Mr Moi had his Wagallah Massacre. The new President is faced with the spectre of murderous gangs, apparently without motive, murdering and maiming their way through Busia and Bungoma counties, and armed foreign militia doing their own murderous thing in Mandera and Garissa. But it is not the lead-footed response of the State that is startling; it is the response by human rights campaigners, the same ones who were up in arms and gnashing their teeth when John Michuki's boys went after the Mungiki, who are asking for ever greater draconian responses from the State.

The irony that the two men accused my those human rights people of overseeing the bloodiest tit-for-tat ethnic violence for a generation are asking for the two to take a more robust view of things today. How things change. Messrs Kenyatta and Ruto inherited a security situation that had been deteriorating for years. Ever since the first bomb went off during Mwai Kibaki's administration and the series of militia and ethnic attacks that followed, we have been sitting on a powder keg that seems to have many points of detonation. What is clear is that despite Kenya's muscular performance in Somalia against al Shabaab, our security establishment is operating in a pre-Windows95 age while everyone else is in the tablet era.

The problem is not the law as written. The criminal law of Kenya in its many manifestations is robust enough to deal with the prevention, investigation, prosecution and punishment of many forms of crime, even sophisticated cross-border ones. The problem is institutional. And the secrecy that surrounds the security establishment hobbles the cause of greater, and better, security for Kenyans than anything else.

Twenty-first Century democratic Kenya's security establishment relies on colonial and authoritarian Kenya's secret police and secrecy for effectiveness. When will we admit that the old ways are obsolete and that a new, more open and accountable system is required? The in Garissa will serve to illustrate the point. When the attacks first started, Kenyans were still in the dark about how many regular police, administration police, paramilitary GSU or Kenya Defense Forces troops were stationed in that benighted town. To this day, Kenyans are still in the dark. If there were suspects being hunted by the security forces, Kenyans are yet to be told who they are, what they look like, who their associates are, how they can be identified, what charges may be preferred against them, or whether any of them in the months since the atrocities were committed have been arrested. Other than the regular pithy State assurances that everything was being done, Kenyans do not know the state of the investigations, whether the State is prevailing or losing.

Parliament has been asleep at the wheel too. Instead of prioritising the safety of law-abiding citizens and foreigners alike, our Members of Parliament, and the members of the affected county assemblies, have spent the better part of their first months in government fighting for higher pay or going on strike in order to force the hand of the Salaries and Remuneration Commission to raise their pay. Instead of moving with haste to convene meetings of the relevant oversight committees or, in the case of the county governments, the relevant inter-governmental committees, to address the out-of-control lawlessness in the country, our elected representatives have concentrated more on political brinkmanship and knee-capping to fully internalise the horrors being visited on their constituents. Aden Duale, the Majority Leader in the National Assembly, so loves the sound of his voice, especially when referring to the thousands upon thousands who elected him as greedy thieves, that he has had not time to ensure that the party he leads in Parliament has done its duty of forcing the Executive to take robust action regarding the continuing murders, especially of his own constituents. And so you have civil society, which is traditionally suspicious of the Executive, demanding more and more police and more and more action against the perpetrators of the mayhem.

We have come full circle. The secrecy that contributed to the excesses of the Executive in the past has become a shied for the Executive to hide behind regarding its ineffectiveness in its fight against crime. Transparency and accountability would compel the Executive to re-examine its priorities and resource-allocation. It would compel it to admit that it is an abject failure with a view to reforming how the members of the security establishment are trained and facilitated as they go about their duties. It would compel Kenyans to take a closer look at how they are policed and protected, and what they could do to make things better. It would compel the competing security agencies to co-operate more. It would ensure the Jubilee's goal of greater and better security for all is realised. It is time to bell the cat.