Knottier and knottier...

Ambassador Amina Mohammed, the Foreign Affairs Cabinet Secretary, is correct: in recent times there has not been a single sitting head of state tried in any court in the world. Hosni Mubarak and Mohammed Morsi, both former heads of state of Egypt, were deposed before legal proceedings were initiated against them. Regardless of the accusations against President Kenyatta, and regardless of the fact that he was indicted before the was elected President of Kenya, this is an unprecedented situation globally and everyone is on a steep learning curve when it comes to how to deal with it.

President Kenyatta is a head of state in one of the most volatile regions in the world. Kenyans, especially those in the burgeoning civil society industry, may seem to confuse the relative calm in Kenya as a fact of life, but the events of the past month should disabuse them that our enemies will sit patiently while the nation deals with the fallout from the President's trial at The Hague. Our enemies will take advantage of the complexity of managing the affairs of state while simultaneously worrying about the liberty of the President and Deputy President.

This is not to argue that the President should not be tried; far from it. Secretary Mohammed alluded to it too. If Mr Kenyatta is to undergo trial, the International Criminal Court must not ignore that Mr Kenyatta is President, and that his trial is unprecedented.The Court should not impose its will without flexibility; the fate of over forty million Kenyans hangs in the balance.

Mr Kenyatta, until he loses the next election or he is impeached, remains the Head of State and Commander-in-Chief of the Defence Forces. There are certain decisions that only he can take; there are certain function that only he can perform. These are decisions and functions that cannot be delegated. That he and his deputy are being tried means that the situation is much more fraught than even civil society champions acknowledge. Despite the fact that Raila Odinga came as close as he has ever came to winning the presidency, he cannot replace Mr Kenyatta if Mr Kenyatta is otherwise detained by the ICC. That is not how the Constitution of Kenya works. Neither can a member of the Cabinet, the Chief of Defence Forces, the Speakers of Parliament, one of the 47 governors or the remaining Members of Parliament.

Kenya faces a constitutional problem that must be resolved in the least traumatic way possible. Secretary Mohammed has suggested that Mr Kenyatta's, and perhaps Mr Ruto's, trial be suspended until he finishes his term as President, which may be in 2017, or in 2022 if he is re-elected. Civil society, predictably, is opposed to this, but it also fails to propose an alternative that does not upend the proper constitutional order in Kenya. Now that al Shabaab has decided to bring its war to Kenya, to kill and maim with impunity, and to sow confusion in Kenya, whom do the civil society propose to right the ship of state when the President and the Deputy President are unavailable? The Constitution provides no answer, and neither does civil society.

They cannot also argue that we made our beds and we must now lie in it. That is an argument that will only find favour in a children's sand-box. We are facing a problem that will affect the lives of the same men and women the civil society industry says it speaks for. If they are determined to reject the idea that the trials should be delayed, they must propose a solution that leads to justice for the victims but also preserves proper constitutional order, the integrity of the nation and the safety of the people. Saying "I told you so!" in a hectoring tone will not help.

It's the little things...

Being a leader is harder than it looks, as Rachel Shebesh, the Nairobi City County Woman Representative is discovering. One must maintain a certain level of political decorum even in the face of great temptation to go all out in a bid to build up a profile that will guarantee re-election the next go-around. Her political star has risen in every election, especially since she ditched the listing ODM canoe for the sailing-in-the-high-seas TNA speedboat. She made the correct political decision to dump Raila Odinga for Uhuru Kenyatta; Odinga's party was out of fresh ideas and out of time while Uhuru Kenyatta's party was the Second Coming in Kenyan politics.

But, Mrs Shebesh's antics during the general election raised doubts about her political savvy. When she picked sides in the Battle for Othaya, she made Uhuru Kenyatta's life difficult for no political gain. When she, and several other members of TNA, insisted that Uhuru Kenyatta had no say over whether he could withdraw from the presidential contest, she was getting way ahead of herself, and her party, in matters over which she had no control. Her public partnership with the man who would become the Senator of Nairobi City County, she raised eyebrows when they need not have been raised in the first place. And she did nothing to endear volatile university students to her party, or her campaign, by accusing female university students of prostitution.

She must have been on a mission to rehabilitate her political halo when she led Nairobi City workers to the Governor's Office to demand better working conditions for them. She chose the wrong tactics in her confrontation with the Governor. While Kenyan politics is all hurly-burly, it pays to know when to loudly confront the guy on the other side, and when to negotiate soberly. She picked the wrong fight, with the wrong man, at the wrong time and ended up being embarrassed on camera. Now her relationship with the Nairobi Senator is being exploited for the salacious enjoyment of Kenyans who cannot get enough of salacious enjoyment. as a result of the tumult caused by recent events, she has been forced to resign from parliamentary committees. She may yet again make a comeback, but in the Digital Age, the digital footprints of the events of the past month will be used as cannon fodder every time she gets out of line or out of hand.

Mrs Shebesh should have taken a leaf out of Charity Ngilu's book, or Martha Karua's. Mrs Ngilu famously fought a vendetta with the Vice-President and came out smelling of roses. Martha Karua took on no less than two presidents and built it up into a credible presidential run, albeit an unsuccessful sun. Mrs Shebesh has very little to show for her vivacious personality, but shame for her husband and children. Instead of leading a fight with both political and intellectual weapons, she chose the tactics that served Ferdinand Waititu and Gideon Mbuvi aka Mike Sonko well in the trenches of the general election. She forgot that regardless of the claims to the equality of women enshrined in the Bill of Rights, Kenyans are not ready to give women a lot of space to behave just as men do in the political arena. There is much Kenyans will forgive, but not alleged salacious adventures by women politicians.

It will end in tears, Mr Chepkonga.

The idea behind independent offices and constitutional commissions is a sound one, in the light of the previous muscular intervention of the Presidency in the exercise of power and performance of functions by State institutions such as the Judiciary. It is for this reason, this blogger believes, that the Committee of Experts sought to insulate the independent offices and constitutional commissions from interference by both Parliament and the national Executive. Hence the clause "commissions...are independent and not subject to direction or control by any person or authority." [Art 249(2)(a)]

That clause is not in conflict with Article 95(5)(b) that describes Parliament's role to "exercise oversight over State organs" or Article 125 (1) that empowers Parliament to "summon any person to appear before it for the purpose of giving evidence or providing information." The harebrained attempt by the High Court, while interpreting the former Constitution, to attempt to invalidate one part of the former Constitution because it was in conflict with another part will not apply in this case; while giving its opinion on the Two-thirds Gender Rule, the majority of the Supreme Court stated that the Constitution must be read in context and as a whole, with each part of the Constitution complementing each other.

The chairperson of the Justice and Legal Affairs Committee of the National Assembly declared on the floor of Parliament that Parliament has teeth, he has teeth, and that the Judicial Service Commission cannot ignore summons from his Committee. Previously, when the Committee had failed to ensure that members of the JSC appeared before it, he had argued that because the Committee reviewed the budget of the Judiciary, it had the power to compel the appearance of the members of the JSC before it  and to examine it on matters that affected the administration of justice in the courts.

This blogger has previously argued that the parliamentary committee, and its chairperson, have misunderstood their mandate under the Constitution and arrogated to themselves powers that the do not enjoy. This misinterpretation has not been resolved; Parliament still insists that as part of its mandate to oversee State organs, and the power to compel persons to appear before it to give evidence, it has the power to summon members of independent offices and constitutional commissions, and to examine them on whatever Parliament may be investigating. Parliament must be made to understand that they cannot summon members of constitutional commissions; commissions are specifically protected from such summonses by Article 249.

The protection from Parliament enjoyed by the Judicial Service Commission does not mean that it, or its members, are laws unto themselves. There is a procedure to be followed if it is suspected that members of the Commission have committed acts that violate the provisions of the Constitution or the law of Kenya. Article 251 provides for the grounds and the procedure for the removal of a member of a constitutional commission. This is the only reasonable interpretation of the National assembly's power of oversight over the Judicial Service Commission. It cannot summon members of the Commission. It cannot purport to discipline them other than under Article 251. 

But Parliament is not restricted from summoning the staff in the Secretariat of the Commission; they are not members of the Commission and so are not protected by Article 251. And regardless of whatever rules the Judicial Service Commission has drafted regarding the handling of records and other documents of the Commission, these are documents that Parliament can demand from the Secretariat without violating the protections enjoyed by the commission under Article 249.

The events surrounding the contest of wills between the Chief Registrar and the Judicial Service Commission have become a political football. The chairperson of the Justice and Legal Affairs Committee is not interested in the truth, not from the decisions he, and his committee have made, or in the acts they have committed. What he is interested in is publicity, to show to his constituents that he is a man to be obeyed, even by members of a constitutional commission. He is pursuing his scheme to its bitter end to prove that he is an alpha politician. His scheme can only end in tears.

Assassinations don't work.

When George W Bush, and the United States, were confronted with the spectre of an enemy willing to kill thousands of innocents to achieve an objective that, to rational beings, is unachievable, their instinct was to fight back with every weapon at their disposal. In addition to punishing an entire nation for what its leaders had done, that is, harbouring their enemy, the United States government re-wrote the rules of armed conflict. Many democratic governments have a fear of assassination, whether of their own leaders or that of the enemy, because if they bend the due process of the law to assuage their anger, so too can their enemies. It is why when the first Gulf War ended, the United States did not attempt to assassinate Saddam Hussein, even though he was not similarly inclined.

The rules changed, not on 9/11, but on 19 March 2003, when the United States invaded Iraq with a first strike intended to "decapitate" the Iraqi leadership. Since then, rather than capture its enemies for trial, or kill them on the field of battle in armed combat, the United States has arrogated to itself the power to designate a person as an enemy combatant, to target that enemy combatant whenever he may be found, and to kill him and those with him with extreme prejudice. The decision to assassinate enemy combatants, whether they are in the field of battle or hiding out in a cave, is made by the President of the United States and relies on secret information collected using secret means and reviewed using a secret process that is not subject to anything that comes close to due process. When you become an enemy of the United States, your death is all but guaranteed. You may die at the hands of "special forces" or by hellfire missile fired from an unmanned aerial vehicle controlled from thousands of miles away.

There are now calls for Kenya to take the fight to al Shabaab, and its leadership, wherever they may be, to find them and to assassinate them. On 16 October 2011, Kenya launched a police action in Somalia, code-named Operation Linda Nchi, using the Kenya Defence Forces to "take the fight to al Shabaab" in its Somali strongholds. The launch of the operation was preceded by night-time raids, just like the US invasion of Iraq, by special forces. Unlike the publicity surrounding the US war in Iraq, Kenya's police action has enjoyed a level of secrecy that all Kenyans are familiar with. Whether or not al Shabaab leaders were targetted on the night before the launch of Linda Nchi remains a closely guarded secret.

Westgate is now being used as a fulcrum to leverage the Kenya government to adopt targetted assassinations as policy in the war with al Shabaab. The morality of the proposal is neither here nor there; the Kenya government has a responsibility to protect its people and its territory against the aggression of its enemies. However, if the the script to be adopted is the one adopted by the United States and Israel, then Kenyans have much to be hesitant about. Our history of secret military operations is a dark one. The Shifta Campaign, the Wagalla Massacre and Mt Elgon's Operation Okoa Maisha are merely the most infamous. The accusations of gross human rights abuses remain to go away. Given the large Kenyan Somali population, it is almost certain that some Kenyan Somalis will be accused of being members of the leadership cadre of al Shabaab and if the targetted assassination of al Shabaab leaders is approved, there are Kenyans who may find themselves in the cross-hairs of Kenyan assassins. And because the assassination business is necessarily a secret one, we will never get an opportunity to question the veracity of the information relied on by the government to assassinate an alleged enemy of the state. Further, because of the widening schisms between and among tribes in Kenya, the inherent corruption at the heart of the government, and the contests for power within the government, we will never know how many innocent Kenyans are the victims of assassination for reasons other than their being leaders or members of al Shabaab.

Iraq and Afghanistan have proven that assassinations offer only temporary relief. Iraq begot Yemen, and Afghanistan begot the tribal areas of Pakistan. US drones strikes have simply made the enemies of the US more resilient and diffuse. Al Qaeda, instead of being in the retreat, has spawned affiliates on every continent, bar perhaps Australia, South America and Antarctica. Unless the Kenya government can guarantee that assassinations in and out of Somalia of al Shabaab fighters will force the enemy to capitulate and sue for peace, this is a weapon that must be reserved for tactical reasons, not strategic ones, in the field of battle as a means of demoralising the enemy and disrupting his operations. The strategy, as always, must be to reinforce the legitimacy of the government in Mogadishu, to empower it to police the entire nation, and to prevent al Shabaab from infecting the people with its ideology. The solution to al Shabaab, as has been the case for 8 years, is political, not military.

Rights and Freedoms for Kenyans: My Thoughts.

What are the liberties that Kenyans stand to lose if the anti-terrorism legal framework is revised? Rights of arrested person? Movement? Association? Assembly? Speech? Privacy? Nationality? No one seems to be sure what rights or freedoms Kenyans will lose should the Executive or Parliament have their way regarding the legal framework that is supposed to work when protecting us from acts of terror.

What many of the no-changes-needed brigade refuse to admit is that Kenya is not the United States of America. Kenya, as an idea, was not born of the revolutionary or pioneering spirit. Kenya was born as a colonial idea; its political, legal and social history as a country, and as a nation, is as a consequence of the over six decades of colonial domination by Great Britain. When one examines the history of the United States, one sees that the Plymouth Rock pioneers left England because they were searching for religious freedom. The American War of Independence was fought for political freedom from England. And the American Civil War was fought to determine whether the United States would survive as a Union or whether State rights would prevail in all but a narrow set of circumstances.

Therefore, before we begin to examine the question of what rights and freedoms will be limited in a new anti-terrorism legal environment, we must determine what kind of nation Kenya is and how it came about. Because Kenya is not a nation born or shaped by revolutions fought over specific freedoms or rights, the manner in which those rights and freedoms are enjoyed, or limited, matters in the context of the Kenya government's war on terror. Thus civil society's demand that, for example, the Government of Kenya must not limit Kenyans' right to privacy must be debate din the context of whether this right existed in the first place before the promulgation of the Constitution in 2010.

This blogger supports, broadly, the right of Kenyans to be secure in their persons and property from unreasonable searches or seizures by the agents of the government. This right must necessarily protect Kenyans from the government agents who would go on a fishing expedition ostensibly in search of those who would seek to do us harm. It extends from Kenyans' bedrooms to their doctors' offices to their relationships with family members and spiritual advisors and their financial dealings. However, this right is not licence; in specific instances, Kenyans' right to privacy must be abridged, especially if that abridgment is in the broad interest of the public, such as their safety and security.

The catch, as always, is an effective method of policing those who would ask for the right to be limited. In the dark days of the Kenyatta and Nyayo Eras, all manner of private matters were criminalised. What one thought, in one egregious example, was criminalised when the Attorney-General declared that anyone contemplating the death of the President committed treason and could be triad as a capital offender. It is in oversight of the Executive that Kenya has always fallen short, and the institution charged with the oversight of the operations of the Executive has always betrayed the trust reposed in it by million of voters.

For this reason Parliament has been ineffective. It was hoped that even in a united government, that is, one in which the Executive and the Majority Party came from the same political party or coalition, Parliament would play a stringer oversight role under the Constitution promulgated in 2010. The behaviour of the Majority Party in the first six months of the Eleventh Parliament has put paid to that hope. The Majority Party has frequently behaved like a flower girl at a swanky wedding, cheering on every scheme proposed by the Executive as opposed to carefully interrogating them. Instead of focusing attention on the Executive, Parliament has trained its sights variously on the Judiciary, the independent offices and constitutional commissions, and the devolved government. As a result, even after a harrowing event as the Westgate Mall siege, Parliament has been unable to come up with a credible programme to review the event, to draw the proper lessons from it, and to guide the Executive on the correct path.

Civil society, which used to be the conscience of the nation and the primary instigator of broad reforms in the government, has failed to take up the challenge. In the wake of civil society's success at bringing about a peaceful transition from quasi-dictatorship to quasi-democracy in 2002/03, it was first co-opted into the government and, second, corrupted after tasting the fruits of unbridled power. The successors to the victors of the Second Liberation Movement have drawn the wrong lessons from the nadir of the civil society between 2003 and 2007 and as a consequence has been co-opted by interested parties whose end game is not necessarily the expansion of the freedoms or rights of Kenyans, but that of the business and financial opportunities of foreign powers and their companies.

If Kenyans are to properly debate the place of the national security establishment in the protection of the security and safety of Kenyans, they must do so knowing that they no longer have friends who are willing to advise them on the best way forward. Therefore, we must ask ourselves again whether the proposals being promoted by all the other stakeholders are proposals designed to promote peace, security and safety of Kenyans for Kenyans to make and keep their wealth or whether they are designed to make it easier for foreign powers, transnational corporations and other outsiders to exploit Kenya's rich reserves of resources for their benefit and their profit.

An Article of Faith.

The Chief Justice alleges that there are new corruption cartels in the administrative cadres of the Judiciary. He adds that these cartels have arisen because of the Judiciary's multi-billion shilling budgetary allocation. This claim seems of a piece with the alleged conspiracy, in which he is involved, to remove the Chief Registrar, the administrative head of the Judiciary, from office. The Judicial Service Commission has already alleged that the Chief Registrar is corrupt; now the Chief Justice ha added his voice to those allegations.

When Kenyans promulgated a constitution in 2010, one of the implicit objectives of the new Constitution was reforming the Judiciary. To this end, the Constitution established a Supreme Court, reconstituted the Judicial Service Commission and decreed that Judges and Magistrates would be vetted to determine whether they were fit to hold office. The reconstituted Judicial Service Commission was supposed to be more reflective of Kenya; it was not be held hostage by the deep State, consisting of operatives in the Judiciary and National Executive alone. This has largely been achieved, and yet the JSC is still not viewed with admiration.

By late 2012, it became apparent that not even the Committee of Experts had anticipated the depths to which the Judicial Service Commission would sink or how fast it did. The press reported rather favourably of the JSC during the process of appointing a Supreme Court. But with the dismissal of the first Deputy Chief Justice and the Chief Justice's interference in the dismissal of another member of the Supreme Court, the press must admit that they got it wrong. When the Chief Registrar unveiled her financial plans to spend billions purchasing Mercedes-Benz vehicles for judges and a mansion for the Chief Justice, ostensibly so that the Judiciary could be seen as an equal of the National Executive and Parliament, it was only a matter of time before the financial administration of the Judiciary became the albatross around its neck.

The most recent crisis in the Judiciary is tied to the financial administration of the Judiciary by the Chief Justice and the Chief Registrar. The Chief Justice, as popular lore would have it, was a reluctant convert to the plot to remove the Chief Registrar, but once converted, he has been an ardent champion. When question were first raised about specific procurement decisions by the Chief Registrar, the Judicial Service Commission was split on the decision to send her on compulsory leave to "pave way for investigations," but the JSC failed to follow the law, the Chief Registrar obtained orders from the court and the whole matter was hashed out in secret between the two parties.

With the temporary reinstatement of the Chief Registrar (she may yet be dismissed), the procurement problems of the Judiciary have only become worse. A multi-billion shilling lease for an office block for the Court of Appeal has run into headwinds as the Judges of that court refuse to occupy that building for fear of "radiation" from a telecommunications gantry next to the building. There are two ways to interpret this event, in the light of recent events: either the Chief Registrar has an undeclared interest in the lease of that building and so has ignored technical advice regarding the health and safety of the building, or this is part of the multi-point "War Plan" of the Chief Justice and his "War Party" to remove the Chief Registrar from office. Either way, it is irrelevant what the Chief Justice and Chief Registrar now say; both have raised serious enough doubts about their probity or integrity that it is time for a full-blown external investigation to make sense of it all.

Naturally, we are all mightily aware of the phrase "due process" and you can put money down that before the Chief Registrar, the Chief Justice or the Judicial Service Commission are investigated, Kenya will spend years, and billions of shillings more, working out what "due process" means in the context of the recent revelations. The Fourth Estate is no good either; in the past members of the press have been known to receive, and to solicit, bribes for favourable coverage of this, that or the other personage. Neither, it seems, is the Ethics and Anti-corruption Commission up to the task. Since its reconstitution, and recent appointment of its chairman, it has done little of note, save to keep nailing the small fish while the big fish of Anglo-Leasing, Triton, Goldenberg, Kenya Duty Free, Kazi Kwa Vijana, Ardhi House and sundry other totemic events, run riot in the avenues of the public procurement environment.

But there is one thing that we can count on, call it an article of faith in the public service: the Chief Justice will not resign; the Chief Registrar will not resign; the members of the Judicial Service Commission will not design. All will demand proof of malfeasance and then fight to clear their names once it is presented. And the new cartels, which are really the old cartels, will smile all the way to the Central Bank.

Shelve the Forensics Lab Idea for now.

A laboratory for the National Police Service to examine and analyse forensic and other evidence collected during the investigation of crimes is a vital tool in such investigations. Since the hideous plot to steal from Kenyans via secret national security appropriations was uncovered in the Anglo-Leasing Scandal, the so-called forensics laboratory has been hanging fire. The question of a forensics lab has become live after the Westgate Attack, because of the images of foreign forensics experts collecting evidence at the ill-fated shopping mall.

The public in general, however, must be educated as to what goes into a successful forensics lab. Not just the technical aspects of equipment and personnel, but also the educational long-term planning necessary to make the laboratory an effective crime-fighting, or crime-prevention, tool. Many think that a forensics lab will mirror what they see on successful US TV shows such as CSI: Crime Scene Investigations, Bones, or NCIS. The reality is rather different. The reality is rather humdrum.

Certain questions require attention before the process of procuring a forensics lab is restarted. The most important is whether indeed Kenya needs a criminal investigations laboratory in the first place. The work that would take place in the lab would be highly technical and would call on the services of experienced scientists with the capability of collecting forensics material, storing it, analysing it and interpreting it correctly. To the best of my knowledge, the National Police Service is yet to start paying for its officers to be trained in DNA collection, testing or analysis; blood-spatter analysis; ballistics analysis; or even finger-print analysis. And if one has been keeping pace with the challenges the United States' Federal Bureau of Investigations has been facing regarding the relatively simple matter of finger-print analysis, one would understand why Kenya is at least a scientific generation away from setting up and credibly running a forensics laboratory.

For the foreseeable future, and with the long term plan if building criminalistics capacity in Kenya, the best the Criminal Investigations Department can do is to rely in the Office of the Chief Government Chemist. While this department has come in for a lot of flack for the way it has been mishandled by the politicians in charge of internal security, its work has the capacity of being both credible and professional. The department employs qualified technical officers. It has the necessary basic equipment to perform certain forensics examinations. And hand in hand with the Office of the Chief Government Pathologist, the forensic needs of the National Police Service are taken care of.

What we do not want to admit, and in the light of the inquiry of the deaths of George Saitoti and Orwa Ojode, is the fact that the Government Chemist and the Chief Pathologist have had their offices manipulated by politicians, not to uncover the truth, but to avoid embarassment. Therefore, the idea that a forensics lab will solve the political management problems of serious crimes is a fallacy at best. The lab is being promoted as part of the CID; the recent appointment of the Director of Criminal Investigations revealed the politcal interest in the occupant of that post. The same political interest will interfere in the operations of the forensics lab, if it ever built.

The other thing that we must admit is that Kenya has a history of white elephants that have cost the people dearly. The biggest, surely, were the Turkwell Gorge dam, the Eldoret airport, the Nyayo Car Project and the concessioning of the Uganda Railway to Sheltam Corporation. There is no reason to believe that once funding is approved for the forensics lab, it will not be delivered on time nor on budget and it will consistently fail to deliver value for money. It might be embarassing to rely on the United States, the United Kingdom, Germany, France and Israel for the forensics investigations into the Westgate attack, but it is cheaper than spending billions we do not have on a facility we wont use.

Be very, very afraid.

If it is true that the Chief Justice is being advised by a War Council, and that he has entered into a scheme based on a War Plan, to oust the Chief Registrar from her office, and that this should be accomplished regardless of whether the Chief Registrar has committed any act that would warrant her ouster, then the Chief Justice must resign his office. But this is not an examination of the pros and cons of the Chief Justice's attempt at stamping his authority over the Judiciary, but one of the incredible stupidity that led the War Council to advise the Chief Justice as they did, and how they want about advising him.

In one of the more unsettling events in Mwai Kibaki's administration, that bugbear of Western governments, WikiLeaks, released hundreds of thousands of United States' diplomatic cables to the public. Among the leaked documents were candid assessments of Kenyan politicians by the US ambassador to Kenya, Michael Ranneberger. Until the WikiLeaks expose, the US ambassador was candid about the President, the Vice-President, the Prime Minister, senior Cabinet Ministers, senior politicians, and sundry movers and shakers and he set down his observations in detailed diplomatic cables sent to the US State Department. After WikiLeaks, the United States government was confronted with the challenge of how it would manage its vast library of classified documents without their details falling into the hands of the wrong people.

What many Kenyans missed in their hour of Schadenfreude is that United States government has one of the most sophisticated information security systems on the planet, but it frequently relies on the unreliable human element to its very great cost. This was the case in recent months when intelligence secrets were leaked by a contractor working for the National Security Agency, the largest intelligence agency of the United States government.

Kenya and Kenyan institutions do not have enjoy the financial or technical facilities for the protection of information, especially documents held in electronic form. Kenya once had a very sophisticated document control system; in the days when information was held in physical files, the information was held in different files for classified and non-classified material. Classified material was kept, and still is, in what is known as the Secret Registry, while the rest is kept in the General Registry. Information retrieval is made only after a signed request by an officer. Unauthorised access to information was unheard of, until whistle-blowers came along with Goldenberg. It has been downhill since then.

When the Standard circumvented the information security protocols of the War Council, if they had information security protocols to begin with, it was simply carrying forward a recent and proud tradition of informing the public of both the good and the ill in the public service. Why the War Council was so careless in their scheme beggars belief. In a technological environment where even a rudimentary knowledge of information technology can turn a novice into a one-man hacking machine, it was a high-risk act to transmit their plans via e-mail.

The War Council also ignored lessons that were learnt the hard way by the war criminals of Nazi Germany and all war criminals ever since. In 1942 the Third Reich convened a conference at Wannsee to discuss the Final Solution. As could be seen by how they used language, even at that stage, the Nazi knew that sooner or later they would have to account for the slaughter of millions of Jews. Therefore, they did not use words that betrayed their intentions. One of the words they chose was "repatriation" by which they meant execution using the gas chamber.

The Chief Justice's War Council foolishly and recklessly used words that could only be interpreted one way. It was incredibly naive of them to think that their scheme would not be discovered. It was incredible risky of them to set down their plans in a multi-point document that detailed every step that they, and the Chief Justice, would have to take to oust the Chief Registrar and those members of staff of the Judiciary who were seen to be sympathetic to her cause. If they truly thought they were going to war with the Chief Registrar they have now lost the initiative. They have forgotten the lessons from Sun Tzu contained in The Art of War and the tactics promoted by one of the greatest military strategists of all time, Karl von Clausewicz, contained in On War. The Chief Registrar, quite clearly, has not. She has taken the lessons and tactics of war distilled from the two master strategists and infused them with modern elements, especially the new weapons of a free press and the public's insatiable desire to side with the underdog.

While we must deplore the breach of security in the communications of the Chief Justice, now that the breach has taken place, we cannot pretend that the revelations are not shocking. It is instructive that the Chief Justice has not bothered to deny the allegations made by the Standard, nor has he offered an explanation about why he thinks he must stamp his authority on the Judiciary. These allegations must be investigated. If the Judiciary will not do it, it will fall on the highly dubious free press of Kenya. We should all be very, very afraid.

Secretary Lenku needs help.

Joseph Ole Lenku faces a most difficult choice. He can admit that the response to the Westgate Attack was poor, or he can keep parroting the line that "we do not discuss security matters in the media" and hope that Kenyans have retreated to the discomforts of their daily grind. It is, however, unfair to lay the blame of the failures tat led to the Westgate Attack on his hospitality-industry-trained shoulders. If the leaked intelligence report is true, the National Executive was well aware of the risks that the Westgate faced from al Shabaab and either failed or refused to take steps to prevent the siege.

The structure of national security is to be found in Chapter Fourteen of the Constitution. The Committee of Experts, again refusing to admit that the proposals from the civil society industry to reform national security were unsuited to a nation in transition, made proposals that attempted to create truly autonomous national security institutions, with neither being under the direct control of the other. As we have witnessed with the fiasco that is the Judiciary reforms, the structure codified in the Constitution is unsuited to swift decision-making or command and control.

Whether we want to admit or not, Kenya is not yet at the level of trust among public officials that each will be expected to play according to the rules, to operate only within their areas of jurisdiction. Traditionally, the President has a had a free hand to shape national security policy, with the National Security Council playing an advisory role. In doing this he also a free hand in choosing the men and women in charge of various national security institutions: the National Intelligence Service, the police, the armed forces (now renamed the defence forces), Cabinet positions and sub-Cabinet appointments. Now the President must share national security administration with an institution that has neither the maturity or expertise: Parliament. As the various committee chairmen have demonstrated over the past five days, Parliament is yet to understand that national security policy and public safety policies cannot be interrogated by them through the media, but behind closed doors in an atmosphere of co-operation and problem-solving discussions.

There have definitely been lapses that led to Westgate and these will be investigated by the Commission of Inquiry the President intends to appoint. Once the Commission is appointed, Parliament must take a back-seat and must resist the urge to back-seat drive. The President should consider directing such a Commission to examine whether an obsession with national security and a casual approach to public safety may have contributed to Westgate and to make recommendations that will strike a balance between the two.

This blogger has in the past asked for public officials to resign for errors that lead to disasters on thew watch. This time, we hesitate to do so. Maj Gen Gichangi is an excellent intelligence boss. Anyone who knows how the NIS works will find it difficult to blame Westgate in them. Inspector-General Kimaiyo has not been in office long enough for the reforms he is spearheading to bear fruit. He needs support to revamp the training and equipment of his police force, including the tough nut of incorporating the Administration Police with the regular Police. Criminal Investigation Department boss Muhoro has a dodgy resume, but even those who pooh-pooh his antecedents will remember that when the late John Michuki directed him to take the fight to the Mungiki, he was brutally efficient. We can expect the same if he receives the same order regarding al Shabaab. Mutea Iringo, on the other hand, seems not to command the same reverential fear his predecessor, Francis Kimemia, once did when it came to internal security. Perhaps it is time the President considered a change of guard in the powerful PS's position.

Secretary Lenku needs all the help he can get. A Commission of Inquiry should help him clarify what he needs to do, how he needs to do it, and what resources he needs to bring Kenyan national security policy into the twenty-first century where traditional threats recede and more amorphous and transnational ones rear their ugly heads.

What idiot came up with the War Plan?

Have we not learnt anything from the WikiLeaks fiasco? Those who refuse to learn from history are doomed to repeat it; those who refuse to learn the proper lessons are simply doomed. Why would the Chief Justice, if it is true, engage in a conspiracy to shove the Chief Registrar out of the Judiciary? This conspiracy, as detailed by the Standard in recent days, is one of the daftest enterprises ever concocted by Kenya's power-mad wheeler-dealers.

It is a truism in Kenya that when you acquire a little power, you go out of your way to acquire more. Power begets power; position requires more and more authority. They say that the corruption of the good is the worst. In the case of the Chief Justice, it has been a slow and steady turning of his head. It began with really small and simple things: a swanky limousine here, a fat sitting allowance there, a mansion fit for a king, and so on and so forth. No one doubts, or no one doubted, that the Chief Justice was the tonic required to cure the rot in the Judiciary. When the men and women who objected to his appointment could not prevent his appointment, they decided on a more subtle strategy to undermine his efforts at reforming one of the most opaquely corrupt institutions in Kenya, second only to the intelligence/security establishment.

This blogger argued some months ago that it was a mistake for the Judiciary to insist in sharing in the spoils of the National Treasury as the National Executive and Parliament were hell-bent in doing. This blogger argued that it would send the worst possible message to the people. The message would be that on the surface, the Judiciary would mouth the same platitudes that the political class has become very adept at mouthing, but behind the scenes, not much would change. It would be business as usual. In Kenya, we measure the depths of corruption and corrupting influences by how many stories we write about the institution that revolve around public funds.

It seemed like a marriage made in Judicial heaven, that of the Chief Justice and the Chief Registrar. He had been a hard charging member of the Second Liberation movement and he has paid the price for holding on to his liberal ideals in the face of a truly recalcitrant establishment. The Chief Registrar is renown for her efforts to modernise every institution that she has been associated with. He signature achievement is the Kenya Law Reports website, an idea that was ahead of its time in a government that knows how to keep its secrets. But their falling out over the past two months has been a study in how ambition and power can corrupt even the best among us.

How and why the Chief Justice fell in with the Gang of Seven that styled itself the war Council we will never know. How they managed to drive a wedge between him and the Chief Registrar is a testament to the ends that those determined to halt the reforms in the Judiciary are prepared to go. The Chief Registrar is in charge of the administration of the Judiciary, including the financial administration of its finances. The Chief Justice, however, is not simply a bystander. He has an important role to play in ensuring that the objectives and aims of the Judiciary are achieved, and that means that he must have a say in the financial administration of the Judiciary. How the Chief Justice's role overlaps with that of the Chief Registrar's is the nut that both have failed to crack.

This is the fallacy at the heart of the reforms in the government attempted by the Committee of Experts. They imagined that the financial autonomy of institutions, without the dead hand of mandarins in The Treasury, would be the panacea required to make the government a servant of the people, rather than their overbearing landlord. As the Parliamentary Service Commission and, now, the Judicial Service Commission, financial autonomy was a mistake. Without taking into account decades of financial shenanigans even among the good and the best, the reform agenda was bound to fail. The greed witnessed in the Judicial Service Commission, whether for power or for money, is the weak link in the reform agenda. The worst thing is that we cannot do anything about it: the men and women tasked with the responsibility of reforming thee financial arrangements of the government are the same ones obsessed with keeping things ticking along as they have over the past fifty years.

One nation, One blood.

Why are they referring to the Westgate as a "symbol of Kenya's economy" and as "a high value target for terrorists," and that elite shoppers are the engine of the Kenyan economy? Don't get me wrong; the Westgate is a symbol, but it is not at "the heart of the Kenyan economy" nor is it the centre of economic activity in Kenya.

Since the halcyon days of public policy making in the 1960s, Kenya has undergone various economic iterations, each determined by mainly external factors. The collapse of the coffee price in the late 1970s and a voracious boll worm attack devastated Kenya's coffee industry; it is yet to resurrect. Structural Adjustment Programmes sponsored by the International Monetary Fund in the 1980s, including the privatisation of state-owned corporations and public utilities, destroyed manufacturing; the industry is now dominated by quasi-monopolies and foreign-owned trans-national conglomerates. Cost-sharing in education, introduced at the advent of the 8-4-4 system, has seen the quality of both basic and higher education deteriorate to such an extent that more Kenyan scholars publish papers abroad than in Kenya today. We will simply chalk up the decrepitude found in basic education to "this is Kenya."

This Kenya is not the Kenya that spends time or money at the Westgate; the Westgate Kenya is the cosmopolitan one which is well-read, well-travelled, and, crucially, white-collar-employed in the "knowledge economy" that we hear so much from the mandarins in the government. The Kenya Westgate constitutes less than ten per cent of the population. The vast majority of Kenyans do not have the privilege of being bombed in swanky malls my al Shabaab; they are bombed in filthy council markets, one-room shacks that double up as places of worship, Migingos where they get to enjoy a cold one after work, and public service vehicles plying the often death-inviting smooth highways of death. When they are killed, the government, and its "friends" overseas, does what it does best: it dissembles, it promises retribution, it promises justice, and then it goes back to business as usual. It is rare that a foreigner, especially an Anglo, is a victim of the violence perpetrated against the majority of Kenyans by al Shabaab, and organised crime syndicates. But now that they are victims it is time to step up the fight against al Shabaab.

Kenya's economy is not dependent on Westgate; it is dependent on our continued agricultural growth. 60% of Kenya's GDP is agriculture-based, with a large chunk of that in horticulture, coffee and tea. White goods account for a pitifully small chunk of the GDP, mostly because we manufacture very few white goods, and still fewer high tech ones of those too. But if it is consumption that the government is worried about, it is fast-moving consumer goods that account for that portion of the economy, but only in the form of wafer-thin margin kadogo quantities. The middle class may be growing; but it is yet to become the driving engine of the economy through consumption.

So why do we dismiss the suffering of Kenyans when they are not getting killed at the Westgate? Is it because the men and women charged with the duty of keeping Kenyans safe do not shop at Gikomba, Marigiti, Mutindwa or Soko Mjinga any more? None of them is troubled by the hassle of fighting to board a PSV at 6 in the morning and 6 in the evening. Their children do not share seats, desks (when they are available) or text books (if they are available) at school. They are yet to experience water shortages, sewer blockages or the pile up of garbage on their leafy streets. They do have exercise books cut in half as the foundation of their medical records when they go to the doctor. They do not give birth on the floor while being assaulted by medical staff. But when they are killed in their shiny malls, now Kenya is at war with evil? Now the safety of the State is at stake? Now the integrity of the nation is at risk?

This attitude is the same one that would seek to "eliminate loopholes" in the tax regime by enacting a VAT law that places an onerous burden on those with the least wherewithal without considering the knock-on effect of the law. The government will collect more revenue. The rich will pay their share. The poor will have to work harder. But in the aftermath of Westgate, the Kenya-of-the-Westgate was joined by the other Kenya in donating blood. The blood transfused into the veins of the victims did not refuse to flow because of economic status or political influence. Al Shabaab did more to remid the high and mighty that one day the one thing they will need from the hoi polloi, no money can buy.

Secrecy, Speculation and Westgate.

This is Kenya's problem, at least one of them: speculation in the absence of even the semblance of credible, verifiable facts. It is going a minute a riot with the Westgate Attack, and its aftermath. But this would not be so without the pernicious and corrupting secrecy at the heart of the Government of Kenya. In the wake of Kenya's colonial history, Jomo Kenyatta and his successors maintained the colonial rules of secrecy and even bolstered them to ridiculous levels. It is a crime to reveal almost anything that goes on in the shadowy chambers f the government and it matters not that you work for the main public service, the parliamentary service or the judicial service. If you know something, you keep it to yourself until you are authorised to tell someone about it, usually some other public servant.

This secrecy breeds unhealthy speculation. Among the speculative conclusions doing the rounds over the Westgate attack are that it was successful because Kenya had prior "intelligence" on the attack and did nothing; Kenya is corrupt and that this contributed massively to the success of the attack; that the National Police Service does not have a well-trained anti-terror response unit that would have taken on, and defeated, the attackers at the Westgate; that the members of the National Security Council are incompetent and that some of them should never have been appointed to their positions at all; and so on ad infinitum. Almost no one wants to link the level of secrecy in the government to the poor public participation in national security, yet without the active and dedicated participation of even a portion of the adult population would see wonders being done in national security.

Secrecy is a vital tool of public policy. It is essential to managing the national security. But it is effective when it is properly calibrated to achieve a balance that serves both the national interest and engages the people to participate in issues of national importance. Excessive secrecy breeds resentment. It creates avenues for rent-seeking. It fosters corruption. It facilitates costly errors. In Kenya, we have taken secrecy to way beyond what is necessary for national good. It is time we reviewed the manner in which information is collected, analysed and disseminated. In other words, rather than shining a light into every nook and cranny of the State, we should reconsider the number of nooks and crannies we require.

Take the secrecy behind the agreement between the Chief Registrar and the Judicial Service Commission. These two are public institutions, created by the Constitution, and charged with public functions that call for very high levels of probity and integrity. But the unseemly tango between the two has been hidden behind a veil of weaselly lawyer-words with the aim of protecting the two institutions, but not promoting the rule of law in Kenya, or fostering the confidence of the people in the institution of the Judiciary. It could only end in tears.

The same is so when it comes to national security and public safety. When the Ransley Commission went round, they could never confirm how many policemen Kenya actually has, or what their qualifications are. I doubt whether the Cabinet Secretary knows how many men and women work for the National Intelligence Service. In this pit of secrecy, Kenyans imagine all manner of perfidy. It is why when a rumour is spread that the President lied about the number of dead, it is believed, especially by men willing to believe anything evil about him without question. It is why when the Cabinet Secretary refuses to divulge what the Government of Kenya knew, when it knew it and what it did, he does nothing to reassure the families of the victims that the evildoers will be caught and, in the words of the President, punished painfully.

Kenyans demonstrated that they will come together when they are faced by evil. But for the Government to demand more of its subjects, it must make them want to participate. This cannot be achieved by rhetoric or sloganeering. It can be achieved by transparency and accountability. Our instinctive desire to protect Big Men from embarrassment must end. A Commission of Inquiry must be appointed. Its terms of reference must be to review the intelligence that was available at the time; no hiding of information by the National Intelligence Service or the National Police Service is permitted. It must inquire into the deployment of experienced police. (Is it true that many elite members of the National Police Service are acting as bodyguards instead of going after al Shabaab types?) It must review the manner in which information is classified and whether it is a valuable tool in preventing the next Westgate or it is a habit that no longer makes sense. And it is time we debated whether the goal is national security first or public safety.

Rotten. To the core.

The battle royale brewing up between the Chief Registrar and the Judicial Service Commission was inevitable. The only surprise is that it took this long to bubble up into the public sphere. In November 2012, the JSC, with the active assistance of the Chief Registrar, went out of their way to demonstrate that when it came to financial avarice, the only difference between them and the perfidious National Assembly is that the JSC thinks of itself as above politics, above human emotions, above human greed. In the JSC's defence of its desire for Kenya's version of royal accoutrements it betrayed the people's faith in the reforms that had been mooted. It seemed to many that the reforms were simply meant to pull the wool over the eyes of otherwise over-taxed Kenyans. With this break between the JSC and the Chief Registrar, the scales have finally fallen off our eyes, the rose-tinted glasses have been smashed to bits.

We have documented the greed of the upper echelons of the public service before. The Judicial Service sometimes behaves as if it is not part of the public service, when it is in fact a vital part. But that is neither here nor there; the Judicial Service has been made autonomous by the Constitution, but it is abusing its autonomy in ways that the main-stream public service is very familiar with. It is not surprising that when it comes to self-aggrandizement the Judicial Service is no better than the Parliamentary Service or the rest of the public service, its moral superiority complex notwithstanding. But still, eighty thousand shillings for each sitting allowance insults millions of Kenyans who live way below the official poverty line. A three hundred million shilling mansion for the Chief Justice is immoral when hundreds of thousands of children sleep out in the cold for want of housing.

The sitting allowances and the public procurement by the Judicial Service are the tip of an otherwise rotten iceberg. The JSC and the Chief Registrar have adopted the same attitude that the Tenth Parliament had cemented from that of the Ninth, that the public purse is a bottomless one and that all one needs will be found, whether it is by public borrowing or higher taxes. The attitude of the men and women atop the decision-making tree in the national government is that public finances must be spent. We pay lip-service to efficiency or effectiveness; the real aim of collecting national revenue is to spend it all on white elephants of utility only to those who commission them. It is why you will find water fountains in the middle of the Nairobi CBD in the midst of a water crisis that has bedeviled the capital for nigh on two decades. It is why the JSC will purchase a building in the capital for hundreds of millions of shillings to house the Court of Appeal and the judges of the Court of Appeal will refuse to move in because of unfounded fears of health risks. Wasting public funds is not part of the language, or the conscience, of the Judicial Service.

The Chief Registrar and the JSC are doing the public a power of good. The reform-talk of the past six months had created the impression that the Judiciary had moved on from the legacy of corruption and abuse of power. It is now revealed to be just as canny at manipulating the public as the National Executive or Parliament. It is now revealed to be just as corrupt as the rest of the public service. It is now revealed that it is adept at sophistry. It is now the past-master of snake-oil salesmen. It is rotten. To the core.

Change or Die.

Kenyans and foreigners alike were butchered mercilessly in the name of a liberation movement that seeks not liberty for those it claims to fight for, but theocratic subjugation not seen since the days of the Spanish Inquisition. Al Shabaab fighters, disguising themselves as civilians, held out with their hostages for four bloody days against the combined might of the National Police Service, the Kenya Defence Forces, various undeclared foreign security and military elements, the dreaded General Service Unit and the National Intelligence Service. When the smoke cleared on the fourth day, scores were found butchered by the well-armed and, ultimately (or presumably) suicidal fighters who carried out the bold raid.

There are increasingly loud and portentous voices declaiming on the reasons why the attack succeeded. Ill-tempered MPs claim, without a shred of public proof, that "corruption" is at the root of the "intelligence failure." The National Intelligence Service, the NIS, is fighting back clandestinely; presumably, it is behind the leakages detailing the warnings it has provided to government officials over the past twelve months showing that the attack was coming. Pundits and members of Kenya's voluble commentariat have started a vicious war of words, with lines drawn in the sand either for the National Executive or against it.

If blame is to be assigned, the poisoned atmosphere prevailing today will make it very difficult not to politicise the process. Then we have those who simply will not look at the Big Picture: they have already warned the President and the Deputy President not to take advantage of the al-Shabaab-created chaos to "avoid their obligations to the International Criminal Court." With the National Command Authority otherwise distracted by these and a million  other concerns, it is easy to forget that hundreds of Kenyans, perhaps thousands, were victims of al Shabaab and that what happened at Westgate will scar this nation for a generation, just as the 1998 US Embassy bombing did, perhaps more so.

In the fight against al shabaab, it is not the Kenya Defence Forces, Kenya's special forces, the National Police Service, the NIS or Parliament that are the critical tactical element but Kenyans in the civilian population. We demonstrated that when it comes to national calamity that we will give that which is most precious to us in order to save our sisters and brothers, our blood. The Kenya Red Cross recorded the highest volume of blood collected in almost a decade. Safaricom reports that over a million dollars has been collected for the victims of the Westgate attack. Now that we know that we can, and will sacrifice, for our fellowman, it is time we took this to the next level.

For five decades we have been content to be led by the nose by snake-oil salesmen and charlatans of all shades and stripes. The effect has been soul-deadening. In the past fifteen years, more and more of our children have been exposed to the worst amount of violence ever recorded since pre-Independence. Not even the Saba Saba days were this violent. It is time Kenyans said enough; it is time they realised that their choices have had pernicious consequences. It is time that we changed.

The victims of the Westgate attack demand that we change. Their blood is the sacrifice we needed to realise that we cannot be led by the nose any more. Our safety and our sanity - nay, our lives - depend on us changing the equation. Many will resist drawing a line between their choice of political leadership and the Westgate mall, but it is there for those with eyes to see. It is our elected representatives who have refused to allocate resources for the training of a police service we can be proud of. It is our elected representatives' contempt for the rule of law and for due process that has seen national security being equated with police body-guards, at public expense, for nabobs and nawabs who do not need it. It is elected representatives who, instead of asking the right questions, in the right manner to the right people, who will spend the next three months staring at their navels, wringing their hands in despair, and making the wrong decisions for the wrong reasons and with the wrong motives. Until we elect men and women who put us first, and who take our safety as being more important than theirs, Westgate is set to be the first of many al Shabaab successes.

It is not enough that we line up like lemmings to choose our leadership; we must go much further than that and actually hold them to account for their actions in Parliament. Harebrained civil society acts of civic disobedience capture the public imagination but are short term and ineffective. If Kenyans began engaging, actively so, with their elected representatives (and not just to beg for handouts), by demanding answers and solutions to bread-and-butter problems, perhaps we might begin to reverse the tide of public decrepitude that hold us hostage to the likes of al Shabaab. We can change. Or we can die.

Safety and Security.

It is not any one thing that could have prevented the attack on the Westgate Mall in Westlands, Nairobi. But all the terrorists needed was for one of those things to fail in order for them to succeed. Since the Kenya Defence Forced obeyed their Commander-in-Chief's order to deploy to Somalia and deal with the al Shabaab threat, Kenyans have been placed on high alert to acts of terrorism. These have followed one another with buses, religious crusades, bars and places of recreation being attacked by the terror outfit. Kenyans have had to endure heightened scrutiny from increasingly blase security offices at various installations and businesses. With the notorious attack by the former Deputy Chief Justice on a security officer at another high-end mall on New Year's Day, Kenyans have increasingly chafed at being prodded and scrutinised while entering places of business that prod and scrutinise their patrons.

The safety of Kenyans has frequently taken a back-seat to the security of the nation, and of its means of doing business. The priority, obviously, in security has been the preservation of the State and its authority. This is reflected in the statutes that we have on the books regarding policing, the military forces, intelligence and official secrets, as well as in the deployment of forces of law and order. Al Shabaab must have studied the security situation in the capital and drawn the proper lessons in order for them to take this rather bold step of attacking a symbol of Kenyan middle class advance. The procedure when entering the mall is not designed to identify and stop threats; it is designed to feed the mirage of safety in the minds of patrons. It is ineffective in interdicting threats. It is a facade.

When Kenyans were brutally murdered in Western Kenya in the aftermath of the general elections, the calls for enhanced security from elected lawmakers were more or less ignored. This followed a pattern established in the wake of similar attacks in North Eastern Kenya and the Coast. Indeed, even after dastardly attacks in the Capital, the reaction differed only in the volume of name-calling and blame that issued from elected representatives, and the knee-jerk deployment of uniformed police by the Executive. A determined enemy, which al Shabaab surely is, would find a way around the rudimentary public safety system in place, which it did on Saturday.

The police are fond of reminding us that security, as opposed to safety, begins with us. We, the civilian population, must be vigilant and identify and report security threats whenever we find them. However, our national psyche is such that we refuse to take even the most rudimentary steps to manage public security; we are more concerned in building ever higher razor-wire-topped walls around our homes than in taking notice of strangers in our neighbourhoods. Residents' associations take the question of security only as seriously as they are required to pay security fees and leave the security management to one or two people. Our mindset revolves around "Me, me, me."

Our mindset is a reflection of the Executive's mindset, indeed the mindset of the whole government. In its determination at self-preservation, the State has treated its subjects with disdain and barely concealed contempt. The people are a threat, always. They are to be treated as a threat, at all times. Their input into the management of the security of the State will be taken only when all other options have been exhausted, including extra-legal measures such as unlawful detainments and detentions. Or unlawful renditions of undesirables to places outside Kenya without the bother of an order from the Judiciary. The rule of law, such as it is interpreted to be by the government, is frequently a weapon deployed against the people than for the people.

Our focus on national security at the expense of public safety all but guaranteed the siege at the Westgate. Because of the Executive's selfish outlook on national security, the deployment of forces of law and order is not designed to keep the public safe, hence the lack of police presence in and around high-value, high-volume places of recreation favoured by the public. It is why when the initial reports of gunfire and explosions at the mall were received, the police dismissed it as just another robbery, and why it took them over an hour to respond and even then, not in force. It is why Kenyans are prepared to believe that in addition to the deployment of elements of the Kenya Defence Forces, there are foreigners among the security officers responding to the siege. It is all but guaranteed that if we do not shift focus from national security to public safety, Westgate will not be the last, or the most heinous, success of the dastardly footsoldiers of al Shabaab.

What if?

One of the arguments advanced in calling for the halt of the trials of Kenyans at The Hague is that we now have the capacity to investigate such offences and try them in a just manner. Is this true?

An administration of justice system relies on police investigations that are credible, and the rule of law when a prosecution is conducted in the courts. The rule of law means that judges will make determinations without considering the status of the accused. These two elements are yet to be credibly tested in Kenya.

Those hailing the reforms in policing should look at the manner in which the investigations into how the offences committed in 2007 and 2008 were handled. When the Director of Public Prosecutions examined three hundred files relating to the offences, he determined that none of them could proceed to trial because of the quality of police investigations. The oft repeated description of the investigations was "shoddy." One of the persons fingered by Witness No 536 in the trial of the Deputy President and a radio journalist was acquitted by the courts in Kenya because of the poor quality of the investigation into the murders that were committed when the Kiambaa Church was set on fire. He was not acquitted because he was innocent; he was acquitted because the police did a bad job in collecting information, evidence or testimony that would persuade a magistrate of his guilt, or exonerate him, after a trial.

Two of the persons being tried at the International Criminal Court are the President and Deputy President. Their status in Kenya is among the highest, if not the highest. Even before they were fingered by the Prosecutor of the ICC, the accused enjoyed prominence in Kenya. Mr Kenyatta is the son of Kenya's first President; Mr Ruto is renown as the leader of the disparate tribes known as the Kalenjin. Both wielded great political power then, and greater still since their election. And despite claims to the contrary, the rule of law is not applied impartially in Kenya; status is still vital and it bends the court, every now and then.

Much has been made of the fact that the ICC Prosecutor relied on civil society organisations, and the Kenya National Commission on Human Rights, in his investigations into the Kenya situation. The main complaint has been that civil society and the KNCHR have had it in for the President and Deputy President for the longest time possible. There is much truth to this; the campaign of the former chairman of the KNCHR against the two, first to prevent them from standing in the March 4 general election, and second to see them tried at The Hague is a mark against the Commission. But the alternative is equally troubling.

The ICC does not have a separate police force of its own capable of conducting credible investigations. It must rely on sources on the ground in the countries where it conducts investigations. In Kenya, it could have relied on the police, especially the Criminal Investigations Department. But given the political power wielded by the two main accused, and the efforts of the Executive to stymie its initial investigative efforts, it is not surprising that it also relied on the KNCHR and civil society groups with axes to grind.

What this means is that it is facile to claim that an investigation against Mr Kenyatta and Mr Ruto would have been credible whether or not the ICC relied on non-state actors (though the KNCHR is a state actor.) Kenyans must admit, if to themselves only, that the possibility of credible investigations went out the window when the police could not mount credible prosecutions of the "low-hanging fruit" of those ho had been identified in rapes, acts of arson, mutilations or had been clearly identified committing acts of murder. This had been made impossible when politicians, including the former Prime Minister, coming to the defence of "youth who had only come out for peaceful mass action" and asking the State authorities to let them go.

If Mr Justice Waki had not created a secret list of suspects, and if he had not handed over the list to the AU mediator, and if he had not asked for a special mechanisms to deal with the events of 2007/08, and if he had not asked that the ICC be involved in the affair, would there have ever been trials to address the affair in Kenya? When Mwai Kibaki and Raila Odinga endorsed the findings of the Waki Commission report, they set the stage for the involvement of the ICC. If only the Tenth Parliament had ignored the short-term political advantage of stymieing the establishment of a "local mechanism," the President and deputy President would not be in the cross-hairs of the ICC. Maybe by now they would already have been exonerated for the crimes committed and they would have more vital things to worry about in governing the country.

Are they saying that it is all about tribe?

The campaign to bring the ICC trials of the President, Deputy President and a radio journalist to a close has employed one of the most sophisticated propaganda machines not seen since the general election campaign that brought Uhuru Kenyatta and William Ruto to power. Anyone who looks at it as anything less requires a new set of bifocals.

Two events over the past two weeks confirm this. When the Deputy President and the radio journalist winged their way to The Hague, in addition to their families and friend, they were accompanied by a a gaggle of politicians who tagged along "in solidarity" with the accused Kenyans. The politicians along for the trial are a motley bunch; some are pretty intelligent; others barely have the gravitas to order orange juice in a restaurant. What unites them is their determination to impress upon the International Criminal Court that they consider the trial of the Deputy President to be a colossal miscarriage of justice; that they will stand by the Deputy President to the bitter end; and that the people of Kenya approve wholeheartedly with their intentions regarding the trial.

The politicians, many of whom happen to be sitting Members of Parliament, have made asses of themselves at the court. Some of them have been very active in demonstrating their piety on the court steps, praying loudly and emphatically every time the Deputy President made his way into and out of the court during the trial. The Dutch police, and quite rightly too, has put a stop to this. They have directed the prayerful Kenyans to hold their public displays of piety away from the court's doors, or in a specially designated room in the court building. Quite understandably, the MPs are not interested; they are only interested, so far as this blogger can tell, in garnering acres of free press in Kenya's newspapers and hours of footage for the TV viewers back home. That cannot be achieved if the Dutch police shove them out of their preferred prayer zone.

While the antics of these MPs have been comical, what they have managed to achieve in Parliament is anything but. Both the Senate and the National Assembly have passed motions calling for the withdrawal of Kenya from the Rome Statute, a process that will take at least a year once initiated. Outside Parliament, the increasing influential voices of intellectuals and professionals in support of the withdrawal is having a subtle effect on the way Kenyans frame the questions around the trial. In the Standard on Sunday, Donald B Kipkorir makes a sophisticated and lucid argument for the Prosecutor to withdraw the case against the deputy President and the radio journalist. (I implore you Madame Fatou Bensouda, drop these cases, 22/09/13.) On social media, even apparently disinterested intellectuals and professionals have been making the case for the termination of the trials of both the President and Deputy President. Their grounds range from the banal to the cogent.

None of those calling for the withdrawal of the cases has even attempted to argue that the trials should never have been initiated because the accused were innocent, which is very striking. While there is a presumption of innocence in all criminal trials, this presumption only seems to apply when lawyers make a big deal out of it. The rest of us seem to think that to be accused is to be guilty; and the higher your social standing when you are the accused, the guiltier you are. You can't get higher than President and Deputy President.

Instead, many of those calling for a halt in the process have taken to describing the political situation as grounds for the halt of the trials. All of them are obsessed with the idea that Kikuyu and Kalenjin are traditionally hostile to each other and that now that two of their senior-most politicians are sharing power, it is ill-advised to try them for offences that were committed when their communities were ostensibly at war with each other. While they add and subtract different rationales for an end to the trials, this seems to be the principle one. And it is incredibly offensive, especially to victims of the 2007/08 violence who are not Kikuyu or Kalenjin, and who suffered grievous losses and injuries.

The narrative that has been constructed around the two trials is that it is a matter for two tribes; the rest of Kenya does not have a dog in this fight. It is an observer, a bystander without an opinion worth hearing. The argument is that the 2007/08 crisis was an inter-ethnic bloodletting that arose because of the inherent ambitions of the leaders of the two tribes that has now been assuaged because the two tribes share power and that Kenya stands to benefit politically and economically from the union of the two tribes. Whether the Prosecutor has proof that the President and Deputy President have a hand in the events for which they are being tried is immaterial. What matters is that two tribes have reached a rapprochement. The blood of the dead and wounded is neither here nor there.