No heroes of conscience, only victims.

The Ministry of Health, the principal institution of the national government in the health sector, is responsible for national referral health facilities (such as the Kenyatta National Hospital and the Moi Teaching and Referral Hospital) and health policy while county governments are responsible for County health services, including, in particular (a) county health facilities and pharmacies; (b) ambulance services; (c) promotion of primary health care; (d) licensing and control of undertakings that sell food to the public; (e) veterinary services (excluding regulation of the profession); (f) cemeteries, funeral parlours and crematoria; and (g) refuse removal, refuse dumps and solid waste disposal. Those are the broad provisions of the Fourth Schedule to the Constitution on the distribution of functions between the national government and county governments.

The functions of the national government are restrictive while those of the county governments are not exhaustive. Neither of these facts is sufficient to resolve the question of who is ultimately responsible for the state of the health sector. In August 2013, the Transition Authority published in the Kenya Gazette its interpretation of "county health services". These included,

county health facilities including county health facilities including county and sub-county hospitals, rural health centres, dispensaries, rural health training and demonstration centres. Rehabilitation and maintenance of county health facilities including maintenance of vehicles, medical equipment and machinery. Inspection and licensing of medical premises including reporting;

and

promotion of primary health care including health education, health promotion. community health services, reproductive health, child health, tuberculosis, HIV, malaria, school health program, environmental health, maternal health care, immunization, disease surveillance, outreach services, referral, nutrition, occupational safety, food and water quality and safety, disease screening, hygiene and sanitation, disease prevention and control, ophthalmic services, clinical services, rehabilitation, mental health, laboratory services, oral health, disaster preparedness and disease outbreak services. Planning and monitoring, health information system (data collection, collation, analysis and reporting), supportive supervision, patient and health facility records and inventories.

It is its interpretation of promotion of primary healthcare that is interesting because it entails providing community health services, maternal health care, immunization, outreach services, referral, ophthalmic services, clinical services, rehabilitation, mental health, laboratory services, and oral health [services]. These are services that can only be provided by doctors. If these are services provided by the county government, then these doctors are employees of the county government, that is, county public officers. Their terms of service, whether they are members of a national union or not, are the responsibility of the respective county governments. Unless they are doctors employed in national referral health facilities or for the purposes of developing a health policy, the national government has nothing to do with their terms of service.

The Kenya Medical Practitioners', Pharmacists' and Dentists' Union attempted to prevent the devolution of health services to county governments in 2013. Their argument that devolution of health services would be prejudicial or public interest was rejected by a three-judge High Court bench of judges Weldon Korir, Mumbi Ngugi and George Odunga. The doctors' union was determined to prevent the devolution of health services so much so that while it was suing the Transition Authority to get it to reverse its decision to transfer health services to counties, it was also negotiating a comprehensive bargaining agreement with the national government.

Mutuma Mathiu reminds us of the doctors' resistance to devolution and a possible motivation for that resistance:

In the past, doctors would be posted to some far-flung place. Many would rarely leave the city but would continue earning a salary. They would visit their stations in the manner of consultants while in actual fact they were on the staff.

But you can’t do that if there is a governor and local officials watching over what you are doing. This is partly what the doctors are resisting, along with the difficulties of working for corrupt and inept county governments. Daily Nation, 17th February 2017

The union resisted the devolution of health from the beginning. Few of them wanted to have the county government as their employer; after all, in 2013, none of the county governments had covered itself in glory regarding priorities, such as the improvement of health services. Things have not changed four and a half years later. Going by the precedent set by the High Court in 2013, the devolution of health services will not be  reversed by the courts; that is a political decision and neither the national government nor county governments seem interested in such a reversal.

I am sorry, I don't think the doctors are the heroes they are painted to be nor the national government the monstrous villain everyone says it is. The national government is not responsible for the terms of service of the vast majority of doctors; that responsibility falls on county governments. Therefore, the negotiations must be between a representative of all county governments, a responsibility that has been undertaken by the Council of County Governors, and the doctors' union. The Ministry of Health will do the same with the health workers under its jurisdiction. The labour ministry can only help in mediation but with the establishment of county public service boards, the labour ministry has no role to play except in the establishment of labour standards, including labour standards in the health sector.

I fail to see how the national government could have "implemented the CBA" signed in December 2013. I fail to understand why the CBA was signed in the first place. But I can understand why it was not registered with the labour court: the court would have had to point out the anomaly of the national government, which was no longer responsible for county health services, entering into an agreement with doctors it no longer employed regarding terms of service that it had no authority to entertain at all. The only thing that the national government can do is come up with a health policy; its implementation, however, must be done jointly with other stakeholders, especially county governments and doctors.

In the heat and noise of the #CBA7 and #LipaKamaTender hashtag campaigns, this important point has been lost: the proper negotiating entities with the doctors are the county governments, through the Council of County Governors, not the Ministry of Health or the Ministry of Labour. That is the constitutional bargain that Kenyans made. The insidious attempts by both the Ministry of Health and the doctors' union to undermine the devolution of health services, and the gross incompetence of the county governments in policy and financial management, has led to the almost complete shutdown of all health services in Kenya. There are no heroes of conscience in this dispute, only victims.

The Hippocratic Oath (1964 version)

The Hippocratic Oath, as re-written in 1964 by Dr Louis Lasagna, Academic Dean of the School of Medicine at Tufts University, says,

I swear to fulfill, to the best of my ability and judgment, this covenant:

I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.

I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug.

I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery.

I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.

I will prevent disease whenever I can, for prevention is preferable to cure.

I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.

If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.

Could Miguna take it?

Make no mistake. Nairobi doesn’t belong to the rapacious cartels. Nairobi belongs to the 99% of voters who can hardly make ends meet. The power is in our numbers. Join our movement. Let us crush the cartels. We must transform Nairobi City County into a prosperous and glorious place to live, work and grow together. Viva!—migunamiguna.com

Donald John Trump, the forty-fifth  president of the United States, and Barack Hussein Obama, Mr Trump's predecessor, have radically different perceptions of the United States. In Mr Trump's eyes, the United States has fallen on hard times, is the laughingstock of China, is constantly being undermined by its friends and allies, is facing cataclysms on its southern border that only a wall will fix. In other words, the United States is not great. Mr Trump vowed to Make [the United States] America Great Again and restore it to True Americans. Since his election he has set off to do exactly that.

Mr Miguna is Nairobi's Donald Trump. In his eyes, Nairobi is divided between the 1% made up of rapacious cartels who have not only robbed the peoples of Nairobi blind, they have inculcated a culture of looting, lying, thieving and incompetence that has denied Nairobi City County prosperity and glory, and the 99% [of voters] who can hardly make ends meet. Mr Miguna will lead Nairobi City County to prosperity and glory by crushing the cartels by implementing the promises he has made in his manifesto and policies he is loath to share lest his ideas be stolen by members of the cartels.

Stripping Mr Miguna's words of their hyperbole leaves one with the unvarnished reality of Nairobi's straitened times. Evans Kidero, Jonathan Mueke and the members of their county executive committee have singularly managed to make the former City Council of Nairobi look like the paragons of Six Sigma effectiveness. In the four years that Mr Kidero and Mr Mueke have been in charge, not only has Nairobi become filthier, it has become more chaotic, congested, loud and hostile.

If Messrs Kidero and Mueke were solely to blame, we would leave it at that but special mention must be made of Nairobi's county assembly, its senator, MPs and woman representative, whose antics have done little to compel the incompetent Kidero/Mueke team o do better. As the saying goes, sooner or later the chicken will come to roost. That day is fast approaching and Mr Miguna and a host of rivals are hoping to make Mr Kidero a one-term governor. No one will be sorry to see Mr Kidero go. In fact it is possible that many might wish to see more muscular outcomes for Mr Kidero including robust prosecution by the DPP for what they believe has been a government of the corrupt.

Mr Miguna is neither soft nor cuddly; he is one of the most abrasive politicians in Nairobi today. He faces off against the suave and urbane Peter Kenneth, the spectacularly colourful Mike Sonko, the celebrity businesswoman Esther Passaris and the combative woman of God, Margaret Wanjiru. Mr Miguna brings a razor-sharp intellect; perhaps Mr Kenneth is the only politician who can match wits with him.

Mr Sonko, Mr Kenneth and Ms Wanjiru have served as elected representatives; Mr Kenneth was even celebrated for his stewardship of the Gatanga Constituency CDF kitty. Mr Miguna has never held elected office before, two previous attempts never having seriously gotten off the drawing board. His only stint in the public service ended in bitterness, accusations and public displays of pique that left every party involved looking foolish and small.

In 2013, the city's politics were a tribal census with the "dominant" ethnic communities in Nairobi dominating the elections. Mr Miguna argues that in 2017, the people of Nairobi are ready to put tribal identities because they are fed up by how their city has been run. Mr Miguna may be onto something. However, Nairobi is also the principal operating base of all political parties in Kenya and national political party leaders command a sizeable share of the loyalty of the city's voters. For Mr Miguna to prevail in August, he must not only smash the seemingly white-knuckle grip that Mr Odinga or Mr Kenyatta seem to have on Nairobi's voters, he must also convince the voters that he has the ability to govern and govern well, regardless of his personality, uhmm, traits.

#FreeAtLast

The #CBA7 are free. Sort of. The Court of Appeal has ordered release of the leaders of the doctors' union pending the hearing of an appeal by the union against the decision of the employment court regarding the legitimacy of their strike. The politicians and their acolytes are going to have a field day with this new development. Propagandists are about to earn their shilling today.

If you really thought that the fate of the #CBA7 was not going to be "politicised", you are an idiot. It offered politicians an opportunity to paint each other in especially bad light, the Minority Coalition would say that the Majority Alliance is led by idiots while the Majority Alliance...I don't know what it thinks except it repeats "rule of law" over and over like an article of faith.

Now the Kenya Medical Doctors', Pharmacists' and Dentists' Union are players on the political field of combat. They will become cannon fodder for the insatiably egos of the political classes. They may win or they may lose; there are no guarantees when it comes to CBAs with the Government. But they will no longer be anonymous. Those cute days are long past.

Should the CBA7 go free?

On 13^th February, 2017, seven Kenyan doctors who are officials of the medics’ union were jailed for failing to call off a two-month strike by doctors at public hospitals. This precipitated a debate on how a country could condemn its brightest minds to prison.

Even as the government insists that the doctor’s demands are irrational, several large-scale corruption scandals exposed recently which implicated the Principal Secretary of Health (one of the individuals negotiating with the doctors) have brought many Kenyans to question the Executive’s commitment to ending corruption.—The State’s Contempt for Court orders: A review of the last 4 years, Demas Kiprono, Advocate

 Kenya is peculiar but not that peculiar.

What happened on the 13th February 2017 was not a miscarriage of justice. The seven doctors were not jailed because they are doctors; they were jailed because, as leaders of a trade union, they disobeyed the order of the Employment and Labour Relations Court to call off a strike being undertaken by members of their union. In order to facilitate the ending of the strike, the court twice suspended its sentence of one-month's imprisonment for a total of ten days in order to allow the trade union to negotiate a binding settlement with the Ministry of Health. They failed to do so.

Whether or not the Government, that is the national Executive, characterises the trade union's demand as rational or not has nothing to do with whether or not the Executive is riddled with graft and that the Principal Secretary has been implicated in a corruption scandal. If it had anything to do with the labour dispute, shouldn't the doctors' union have brought the matter up, declared that it would only negotiate with honest, God-fearing civil servants and asked for PS Muraguri's exclusion from the negotiating table? That is not what they did.

What they did was to prosecute a two-pronged strategy: keep the Ministry's mandarins at the negotiating table without conceding anything while at the same time conducting an inspired public relations campaign that would paint the doctors' union and its members as the saviours of the health sector. The union succeeded. #LipaKamaTender is the reason why the 2017 edition of the First Lady's Half Marathon was abandoned and it is why the Cabinet Secretary feels comfortable painting his Principal Secretary as the stumbling block to an amicable settlement of the labour dispute.

But despite everything they attempted, two facts are indisputable: the employment court ordered the union to call off its strike; the union disobeyed the orders of the court. Neither of those facts is in dispute. When the union disobeyed the court, it was convicted of contempt of court, not contempt of Government. The leaders of the union were sentenced to one month's imprisonment. I hope my learned colleague Mr Kiprono is not suggesting that so long as a conviction is made against Kenya's "brightest minds" it should be vacated and the scofflaws set at liberty. That would make a mockery of the rule of law both he and I have sworn to uphold without fear or favour.

The doctors' union, with the consent of its members, agreed to defend their actions in a court of law, thereby agreeing to abide by the decision of the court. The court ordered the union to end the strike. The union refused. The court charged the leaders of the union with contempt of court and convicted them. Now the sentence is being carried out. The doctors can't claim that they were not extended every courtesy by the court to end the strike. They can blame the Ministry for stonewalling and lying through its teeth. But they can't blame the court for doing what was expected under the law. If you are convicted of an offence you must face the music.

Clinton lost. The end.

Do you know who Bernie Sanders is? Probably, especially if you avidly followed US politics during the "primaries" to choose presidential candidates for the Democratic and Republican parties. Mr Sanders, together with Patrick Leahy, is a senator representing Vermont state. Before that, he served in the US House of Representatives and before that he was the mayor of the city of Burlington. 

Mr Sanders was, until he decided to challenge Hillary Clinton for the nomination of the Democratic Party, an independent, that is, he wasn't a registered member of the two main political parties of the US or any of the other half-dozen obscure political parties, such as the Green Party, on whose platform Dr Jill Stein campaigned for the presidency of the United States. Mr Sanders is credited with having cost Mrs Clinton the presidency by refusing to concede even after it became "mathematically impossible" for him to secure the Democratic Party's nomination. He is also accused of being a sore loser and of inspiring Bernie Bros to stay at home during the general election, thereby depressing the Democratic Party vote and gifting the odious Donald Trump victory over Mrs Clinton.

Mr Sanders' actions in 2015 and 2016 have left a bitter aftertaste in the mouths of Mrs Clinton's supporters, even here in Kenya, and they can't help but relitigate the US presidential election. I am not a fan of the forget-and-move-on chorus, but looking at how Mrs Clinton has comported herself since the election, perhaps her ardent fans need to take a leaf out of one of her books. Mr Sanders, true to type, goes back to being the politician he always has been: the excoriator of Wall Street and the usually ineffective voice of the residents of Main Street.

Mr Sanders has his niche; it is not presidential politics but financial regulation. Mrs Clinton had her niche: she was always running for president and had done so ever since she discovered political power as one-half of the Arkansas state house. She wasn't very good at running for president, though; she made too many unseemly compromises, shook hands with too many unseemly Wall Street types and was willing to overlook some of the worst habits of her lecherous husband in order to remain near the levers of power and use them to her own political ends. She was a flawed candidate who couldn't hack it against an even worse winner.

Mr Sanders will not seek the US presidency again; he'll be 79 when Mr Trump's first term ends. Mrs Clinton will not be seeking the US presidency again. She lost the nomination in 2008 to Mr Obama. She lost the race to Mr Trump eight years later. She's done. Mr Sanders, meanwhile, like Mr Leahy, Vermont's "senior" senator, can camp out in the US Senate until some young up-and-comer shoves him out.

Kenya's ardent Clintonistas need a new obsession. Given that #TukoPamoja, #NASA, #LipaKamaTender and any number of hashtags have animated them over the past three months, they need to get over their heartache at Mrs Clinton's loss, their rage at Mr Sanders' betrayal and their grief that Mrs Clinton has no political heirs now that Mrs Obama has no intention of dipping her toe in that particular cesspool. Mrs Clinton lost. The end. Deal with it!

The CBA treadmill

I don't know why you're surprised that officials of the Kenya Medical Practitioners and Dentists Union, who had had their sentence for contempt suspended twice by the Employment and Labour Relations Court, were jailed on the exasperated orders of the court. The moment that they lost the contempt proceedings, the unionists were on borrowed time and from all I have been able to gather of their comprehensive bargaining agreement with "the Government", they were never going to prevail in the courts of law—though they more than held their own in the court of public opinion. #LipaKamaTender was an inspired hashtag and, ultimately, pointless in the dispute with "the Government."

"The Government" that signed the comprehensive bargaining agreement with the union was the first government organised in accordance with the provisions of the constitution promulgated in 2010. This presents complications of its own; save for "national referral health facilities" and "health policy", the national government may not have been the proper institution for the doctors to negotiate with and any negotiations that might have been commenced before the 5th March, 2013, would have been exercises in futility because it is county governments that are responsible for county health services and, even with the botched "devolution" of health services, the principal employer of doctors.

But even if the lawyers could get around the weaselly language in the Fourth Schedule to the Constitution, they would have to get around the weaselly language of politicians whose only goal, in Kenya as elsewhere, is to be re-elected and who have perfected the art of making and breaking CBAs with a casualness that would frustrate Faust's tormentor, the Devil himself. The seeds of their present losses can be traced to the failure to register the CBA in accordance with section 59(5) of the Labour Relations Act, 2007,

A collective agreement becomes enforceable and shall be implemented upon registration by the Industrial Court and shall be effective from the date agreed upon by the parties.

Politicians live for technicalities like these; it is like mother's milk to them. There isn't a politician alive who doesn't know that there is a limit to public resources; the Consolidated Fund is not a bottomless pit of money but a leaky basket beneath which lie many, many hyenas with designs on it, few of those designs being benign. The moment it became clear that in the chaos surrounding the "devolution" of healthcare had completely overwhelmed the union bosses such that they forgot to insist on the registration of the CBA, the union's goose was cooked. Shady? Definitely. Bad faith? Absolutely. Illegal? Well, it depends on whether or not "the Government" had the alleged billions it would take to implement the CBA, doesn't it?

Things have not gone according to plan for this government; the public debt, while "sustainable", foes not give the Government any wiggle-room to increase the size of its recurrent expenditure, of which remuneration swallow a colossally substantial sum. David Ndii, Jubilee's bete noir, calls what we are on right now the debt treadmill: we are borrowing to pay of debts. This debt treadmill prevents us from increasing the size of our recurrent expenditure without savage cuts in capital or development expenditure. As a result, this government has no good options. It has chosen the least painful: watakaa ngumu, come hell or high water. Sooner or later the doctors will blink. Now that union officials are being jailed for contempt, let us see if this government has called their bluff.

Nostalgia and heartache

Before John Njoroge Michuki got it into his head to demolish the Kenya Bus Service Company Limited—I mean years before he did that—it used to be known as the Kenya Bus Service Corporation. At least I think it was called the Kenya Bus Service Corporation. And I think it was wholly owned by the City Council of Nairobi. I was child back then and I knew it as KBS. It was a familiar institution. It was there when my parents emigrated to the City and it was there when I was born and it was there when I buggered off to Machakos (which did not have a bus service of any kind, the little horrible town) and it was there when I ran away from home to India.

We lived on the No. 58 route, though the No. 59 and No. 36 routes intersected with the No. 58 route right near our bus stage. My world, most of the time, revolved around the No. 58 route between the Buru Buru I roundabout, up Mumias South Road, right onto Rabai Road, ending at the ACK St Philips bus stage along Charles New Road. Total distance: 3 kilometres. It wasn't until my father bought me m first Casio "Quartz" digital watch that I noticed the predictable fifteen-minutes-apart schedule of the No. 58 bus, the twenty-minutes-apart schedule of the No. 36, and the thirty-minutes-apart schedule of the No. 59. Like clockwork. Every single day except Sunday.

They were based on Leyland chassis. I have no idea how many passengers they carried, but because passengers could ride he bus while standing, it wasn't really an important question that I needed to answer. KBS buses had two doors, front to enter and rear to exit. And they were slow. They plodded. It took half-an-hour to get to the Central Bus Station in town, which seems a bit of a miracle today when every motorist and their cat want to be first.

Fares were dynamic, with different rates for the rush hour and the off-peak period (0900 - 1500). The shorter the distance travelled, the higher the per-kilometre rate. But even at rush hour, the full fare from Buru to town didn't exceed five shillings, even after the mitumba madness of 1990/1991. KBS had depots everywhere for their buses: Central Bus Station in town, one in Eastleigh, one in Kawangware, one in Kangemi and one in Umoja II. Only Central Bus Station remains; the rest have been converted into "markets" and other forms of "real estate" development.

With Mr Michuki's transport reforms, the last nail was driven in the coffin of public transport sanity. His reforms came at the tail end of a long period of "privatisation". More and more "investors" were licensed to operate PSVs, though KBS retained its monopoly of the Central Bus Station, and the Ambassadeur and Kencom stages. The matatu operators ran their CBD operations from the streets to the east of Tom Mboya Street, especially "commercial", that zone between Archives, Odeon Cinema, Savani's Book Centre and Tea Room. Mr Michuki's "reforms" took away KBS's monopoly and allowed the Transport Licensing Board to issue matatu oaperators with licenses on a per-route basis. KBS briefly put up a fight with its super-popular Shuttle, but by the end of 2003, KBS was bankrupt and taken over by its managers, spawning the crappy KBS Management Company Limited, which is one among the four struggling big-fleet operators: Citi Hoppa, City Shuttle and Double M.

Everyone else, eventually, was corralled into Saccos or Sacco companies. The carefully-established KBS route-system was slowly bastardised. Bus stages were for the squares who didn't know Time is money; if you wanted to alight in the middle of Haile Selassie Avenue, no one would stop you, least of all the makanga, the bus conductor as re-imagined by Beelzebub himself: loud, unkempt, uncouth and totally focussed on separating you from your fare in the fastest, most aggressive way possible.

Back when JJ Kamotho was still Kanu Court Jester No. 1, he led Baba Moi to visit with a group of young, dreadlocked men, keen to re-establish their much-maligned "traditional" ways of worshipping Ngai. By the time Kimeendero was ordering more aggressive tactics against the Mungiki and their top leadership, the Mungiki was the de facto sole authority when it came to the "regulation" of the matatu sector, which now firmly counted the KBS Management Company Limited among its core members just as Citi Hoppa, City Shuttle and Double M undoubtedly were. There being no difference in operating philosophy between matatus and proper bus companies,  the rules have been simplified mightily: you want to operate on a certain route, you pay; you want to operate a particular make or model of bus/matatu, you pay; you want to operate from certain termini or through some bus stages, you pay; you wan to hire a certain calibre of crew, you pay; you want to avoid hiring a certain calibre of crew, you pay; you want to play music on your bus/matatu, you pay. And the Mungiki collects, come rain or shine, hell or high water. And if you don't pay, well, use your imagination.

Commuting is a nightmare. Commuting by bus is the equivalent of playing Russian Roulette in the middle of Uhuru Highway at the peak of rush hour with a loaded AK-47. Save for the commuters who have gun-toting driver-cum-bodyguards and outriders to clear the path for their motorcades, motorists and those who ride the public transport system have little to look forward to in the next five or even ten years. Those of certain vintage remember the stodginess and boredom of the KBS with nostalgia and a little heartache.

Consumerisation was a mistake

With the advent of the consumerisation of public services—the treatment of citizens as consumers by the Government—came the establishment of customer-care desks and service charters. These had one profound effect: the development of a new language that erased the notion that citizens have rights as opposed to contractual expectations. Rights are either protected or violated; when they are violated, sometimes the only way to mitigate those violations is by jailing someone. However, all contractual breaches can be mitigated by cash awards.

Consumerising the public services has led to the idea that only those consumer-citizens who meet certain contractual thresholds deserve certain public services or enjoy certain rights or privileges. For example, in the recent past no less a person than the President and CEO of Kenya Government Ltd has suggested that if one fails to register as a voter and fails to vote at an election, one isn't entitle to "question" the Government about anything. Some who have challenged the President's declaration have offered an alternative: if one pays taxes, one has every right to "question" the Government about its acts. Counter-factually, going by the latter argument, if one is not a taxpayer, one has no right to question the Government about anything.

The problem with these propositions is that the Government's operations increasingly begin to reflect the ill-thought provision in the Bill of Rights that states,

(5) In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principles––
(a) it is the responsibility of the State to show that the resources are not available... (Article 20)

When a customer goes to a shop to purchase something, say bread, he has absolutely no right to the bread being offered for sale by the proprietor. He is one among other consumers and if he happens to go by when the proprietor is out of bread, whether or not he had the cash to pay for the bread, he cannot argue that his right to bread has been violated by the proprietor. The rights in Article 43 are,

(a) to the highest attainable standard of health, which includes the right to health care services, including reproductive health care;
(b) to accessible and adequate housing, and to reasonable standards of sanitation;
(c) to be free from hunger, and to have adequate food of acceptable quality;
(d) to clean and safe water in adequate quantities;
(e) to social security; and
(f) to education.

As a consumer-citizen, your rights will be protected so long as Government Ltd has the resources to implement the right, and if Government Ltd can demonstrate to, a court for example, that it has inadequate resources to implement the right, you, the consumer-citizen, will be left to the mercy of the free market and the profit motive. Today is the sixty-eighth day that the public health services have been crippled by a doctors' strike. The Government has argued that it lacks the resources to meet the demands of the striking doctors and, by extension, it lacks the resources to implement the citizens' right to the highest attainable standard of health, which includes the right to health care services.

I believe that we have a fundamentally flawed understanding of what a Government is, especially a Kenyan Government, and what it can and cannot do. The Government is not a commercial entity even though it has a corporate identity, that is, it is a legal person capable of suing and being sued, buying and holding property, entering into contracts, and doing all those things that a corporate entity is capable of doing. Because it is not a commercial entity, it is not and it should not be guided by the profit margin.

The Government has a mandate to levy and collect all sorts of taxes and an obligation to spend that revenue in the most prudent manner possible. But it shouldn't tax-and-spend with the citizens in mind as consumers of services,  but as people who have rights guaranteed by the Constitution and protected by the State through its institutions, including the Government. That, at least, is the theory.

In 2010, in the run-up to the constitutional referendum, many were distracted by side-shows, like Kadhis' courts, abortion, the right to strike by members of the disciplined services, and presidential versus parliamentary government systems. As a result, the relationship between the Government and the people, was defined in especially perverse ways, one of which is an obligation on all adult Kenyans to pay taxes but to retain or have limited rights in how those taxes would be spent. Hence, the current impasse: doctors have demanded a comprehensive policy on health services which would require substantial sums to be spent in implementing but the Government, seen as a caricature of a for-profit organisation, argues that it lacks the resources to meet the doctors' demands.

The consumerisation of public services is Mwai Kibaki's greatest legacy as President. If his government hadn't persuaded even human rights' organisations of this subtle change, it is possible that the Bill of Rights would not have taken on the burden of enshrining rights that could not possibly be protected (or implemented) by a Government that was recovering from forty years of decrepit political thinking, whose revenue base was still too narrow (because of its focus on formal employment and manufacturing) and which required greater political engineering to encourage greater civic participation by citizens. We are all consumers now; shortages are the norm in inefficient and ineffective markets.

Let prisoners vote

Are the incarcerated human? On their incarceration, what rights, if any, do they give up? In light of the Independent Electoral and Boundaries Commission's recent decision, should the incarcerated vote at an election or a referendum, and if they should in the former, whom should they be able to vote for? (A corollary, naturally, arises: should an incarcerated person be able to stand for an election if he or she is serving a prison sentence that is shorter than six months?)

Many will accuse me of naiveté, but the incarcerated, including those who have been convicted of offences, do not lose their humanity when they enter prisons. Many have been convicted of heinous crimes and their sentences might mean years behind bars, but to deny their humanity is the first step to treating them inhumanely and, thereby, dehumanising ourselves in the bargain. They remain human and which is why, except for the exceptions to the rule, modern prison techniques are designed to rehabilitate offenders before setting them at liberty at the end of their sentences.

For sure, those convicted of offences lose some of their rights and fundamental freedoms. For example, those whose sentences are imprisonment for a term of years or for the rest of their life, lose their freedom of movement and residence. While they are in prison, they also lose their freedom of expression, association and the right to found a family. However, by my interpretation of both Articles 38 and 83, I find no prima facie grounds for denying prisoners the right to exercise their franchise by voting at elections or referenda.

Article 38(3) states,

Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and

(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

Article 83(1) states,

A person qualifies for registration as a voter at elections or referenda if the person—

(a) is an adult citizen;
(b) is not declared to be of unsound mind; and
(c) has not been convicted of an election offence during the preceding five years.

Article 83(3) states,

Administrative arrangements for the registration of voters and the conduct of elections shall be designed to facilitate, and shall not deny, an eligible citizen the right to vote or stand for election.

If we begin by asking whether or not prisoners are eligible to be registered as voters, we find that the answer is in the affirmative. The relevant qualification for registration in Article 83(1) only excludes persons who have been convicted of election offences in the preceding five years. By my estimation, even the most odious offenders, so long as they have not committed election offences, are eligible to be registered as voters and the onus is on the Commission to make administrative arrangements to facilitate their registration as voters or, horror of horrors, to stand for election if they satisfy the requirements of Articles 99 or 193.

Article 38(3) only provides for "reasonable" restrictions when it comes to the question of whether a person can register as a voter, vote at an election or referendum, or stand for election as a candidate. The reasonableness of the restriction shall be guided by the provisions on the limitation of rights or fundamental freedoms found in Article 24. Clause (1) qualifies limitations by stating that they should be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

It is Fyodor Dostoyevsky who said we can judge the level of civilisation in a society by the way it treats its prisoners and if Kenya wishes to consider itself as a civilised nation, how it treats its prisoners will also be used as a measure of its civilisation. I do not argue that society shouldn't be protected from violent or sexual offenders or that the penalty imposed on criminal offenders undergoing prison sentences should be lessened (though there is a point to be made about the new penalties that Parliament is creating every year). But outside any demonstration that allowing prisoners to vote will harm society, no argument has been advanced that justifies denying prisoners their franchise. If we wish to rehabilitate prisoners before releasing them into society, it is fit and proper that we treat them as part of society. Allowing them to vote is one way of reminding them that after they have paid their debt to society, society, in turn, wants them to assimilate fully. For my money, let them vote.

No saviours needed

If your main argument as a prospective candidate at the general elections on Tuesday, 8th August, 2017, is that you are the only leader who can fix our problems, then you are a serpent, the serpent referred to in the book of Genesis at chapter 3: the craftiest of all the wild animals. You are a disciple of the father of lies as described in the Gospel according to John,

Ye are of your father the devil, and the lusts of your father ye will do. He was a murderer from the beginning, and abode not in the truth, because there is no truth in him. When he speaketh a lie, he speaketh of his own: for he is a liar, and the father of it.—John 8:44

If you repeat the statement that you are the only one who can save our body politic à la Donald Trump and his #MAGA wizardry, you deserve a liar's life and a serpent's death. You are an unworthy candidate. You are everything that is wrong with this country. You are a waste of bio-matter.

I don't care that it is possible that you can solve all our problems; we don't need problem-solvers. We need leaders to light the way. Just because you think my three-year old sprog needs a tablet computer doesn't mean that it is your responsibility to get her one. That's my job. Your job is to build hospitals that are staffed with the best doctors who have access to the best equipment and who can prescribe the right medicines to keep my child from being consumed by consumption, diphtheria, pertussis or tinea corporis. Should I buy my daughter a tablet computer to aid in her learning and education, I don't want her lessons to be conducted while she sits on an earthen floor because your second mistress's first cousin took our fifty billion to supply school furniture and blew it all on a big-titted Ukrainian dominatrix named Olga with a suspicious Adam's-apple-like bulge in her throat—and pants.

We are not looking for saviours. Fifty years of saviours have left us with a healthcare system that has become so decrepit that even obvious swindles with the lives of our unborn are undertaken with our tacit, passive acquiescence. Five billion shillings might be small potatoes for someone who is rumoured to be extremely wealthy—the rumours being assiduously peddled by you—but when five billion shillings is rumoured to have evaporated without so much as a bed-pan to show for the magic trick, we definitely don't need a saviour, we need someone who will lead the forces of law and order into those dark corners that we have refused to enter. These are the corners where those that worship at the altar of the immiseration of the peoplecongregate . No, we are not looking for saviours.

We are not demanding that you become the Lincolnian truth-teller we all wish we were; we are only asking that you keep things in perspective. After all, after fifty five years of mediocrity, sophistry and cant, including a decade of looting the likes of which might have shocked the 1990s' era ex-Soviet oligarchs, we know that a Shinkansen-style network is still at least a decade away, vertically-integrated corporate Leviathans such as GE are still unfathomable among the small-minded, little-ambition pygmies who style themselves as "corporate Kenya" and many, many "elite" Kenyans will continue to .venerate chinless wonders such as the House of Windsor and the Sodomites who go dune-bashing.

What we need are leaders who can cut through the procurement BS that is designed to keep us focussed on small-potato shit. Which means someone who can get the vastness of the bureaucracy known as the public service humming in service to the people. Someone who can focus the "national security organs" long enough from collecting "tolls" or selling charcoal to ensure the safety of every Kenyan as he or she goes about their business. Someone who isn't afraid to tell his or her friends to get stuffed whenever the quo is demanded for the quid given. If you are looking for friends after being seated in that high chair, you're an idiot. We don't need idiots.

That's the long and short of it: if you have a savior complex, please, leave us be. If you are an idiot, please stay at home; your thinking privileges are suspended till Wednesday, 9th August, 2017.

Sooner or later, they will come for us

Upon receipt of the designated analyst’s certificates and the samples analysed in accordance with the foregoing subsections the authorized officers shall, where the drug is found to be a narcotic drug or psychotropic substance within the meaning of this Act, arrange with a magistrate for the immediate destruction by such means as shall be deemed to be appropriate of the whole amount seized (less the sample or samples taken as evidence at any subsequent trial or any contemplated trial particularly where the accused person’s identity is not yet known or the accused person is outside the jurisdiction of Kenya at the time of taking such samples).—section 74A(3), Narcotic Drugs and Psychotropic Substances (Control) Act, 1994

Where a person is convicted of an offence under this Act and any narcotic drug or psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or any other article or thing, liable to forfeiture to the Government under this Act in respect of that offence has been seized under this Act, the court convicting him may, in addition to any other penalty imposed on him, order that the narcotic drug, psychotropic substance, motor vehicle, aircraft, ship, carriage or other conveyance or other article or thing be condemned and forfeited to the Government.—section 78, Narcotic Drugs and Psychotropic Substances (Control) Act, 1994

The above are two provisions of the Narcotic Drugs and Psychotropic Substances (Control) Act, 1994, dealing with the disposal of drugs that have been seized by the Government and the vehicles in which the drugs were found. In 2014 and 2015, the Government destroyed ships in which drugs had been seized. According to the Daily Nation of the 29th August 2014,  

The MV Al Noor was destroyed 33km from the Mombasa Port and sunk to a depth of 329 metres with 370.8kg of heroin. The initial cargo was 373.8kg, but three kilos were taken to the government chemist for further analysis.

Also, according to the Daily Nation of the 15th August, 2015,

[The] Kenya Defence Forces have blown up a yacht that was found trying to sneak in 7.6 kilogrammes of heroin worth Sh22 million off the Kenyan coast.

In the first case, the destruction of the MV Al Noor, "President Uhuru Kenyatta supervised the blowing up of [a] ship" while in the second case, "[the] Interior Cabinet Secretary Joseph Nkaissery, Chief of Defence Forces General Samson Mwathethe, Inspector-General of Police Joseph Boinnet and Kenya Navy Commander Major-General Levi Mghalu witnessed the destruction." In both cases, the prosecution of the suspected drugs traffickers was yet to me completed.

Few of us have any sympathy with those who seek to profit from the utter ruin and destruction caused by narcotics, including the traffickers and distributors of narcotics. If we had the choice, we would blow up their ships with the traffickers on board. We recoil in horror at the images of the shattered souls of drugs users that we occasionally get to see on TV or on the streets, pathetic in their brokenness, devoid of the spark that even dreary lives cannot snuff out unless all hope is gone. We hate drugs. We hate drugs traffickers. Because of our hatred of both, we are willing to turn a blind eye when the law is bent "slightly" in the Government's campaign against drugs traffickers.

What began as an extreme solution to an extreme problem (the destruction of private property, i.e. the blowing up of ships) is now morphing into a campaign of the violation of the rights and fundamental freedoms of Kenyan citizens as demonstrated by the rendition of the Akasha brothers to the United States by agents of the US Drug Enforcement Administration. According to the Business Daily, the brothers, suspected of being drugs traffickers, had been "fighting their extradition to the USA for years".

Few doubt that the brothers were the innocents that their lawyer and mother tried to portray them as; they were, after all, the sons of the murdered drugs trafficking maestro, Ibrahim Akasha, and had been his loyal assistants in the trade. Regardless of what our certainties are about their guilt or innocence, the Government of Kenya had not secured any convictions against the brothers and was yet to persuade a magistrate to authorise their extradition to the USA. Thus, the admission by the Inspector-General of Police that it was the National Police Service that arrested the brothers and, by implication, it is the National Police Service that handed the brothers over to US authorities for extradition outside Kenya.

The most succinct definition of the "rule of law" is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. The destruction of the drugs-trafficking ships before their owners were convicted of drugs trafficking was an arbitrary exercise of power. The extradition of the Akasha brothers was an arbitrary exercise of power. That this power was exercised against execrable human beings is neither here nor there: it violated the national values and principles of governance enshrined in article 10 and violated the rights and fundamental freedoms of the suspects.

Almost always the Government runs out of bad people to target as enemies of the people and starts to focus its attention on the innocent. For now, our interests and those of the Government are aligned in the campaign against drugs, drugs trafficking and drugs use. At some point, our interests will diverge and we will become the targets of the Government, whether we are innocent or not.

She was not the best

Only one good thing would have come out of a Hillary Clinton victory in November 2016: a woman would have been the Most Powerful Person in the World, upending millennia of patriarchy, misogyny, sexism and mansplaining in one fell swoop. Trying to find anything else that is positive about a Hillary Clinton victory is an exercise in futility. In the 2006/2007 campaign, she was frequently more hawkish than Barack Obama and as a freshman senator, she voted to invade Iraq. As the Secretary of State, Libya was destablised, its tyrant deposed and al Qaeda allowed to metastasize throughout the country and today, with US-style freedom ringing throughout Libya, life expectancy has taken a turn for the calamitous.

Her mendacity is not something to ignore either. Donald Trump may have taken the gold with his whoppers, but Mrs Clinton will forever be remembered for trying to turn herself into US heroine by describing a trip to Bosnia in action-hero terms: landing under gunfire and racing to safety from the airport. Film footage of the visit will live to mock her.

She has done much to erase the racialist ugliness of her campaign against Mr Obama but Black Americans of a certain vintage remember her describing young Black American men as "super predators" who "had to be brought to hell". Much dissembling has taken place to explain that the context of the time, as Bill Clinton was trying to persuade Congress to enact his crime bill and she was lobbying for him in the press, was that "super predators" meant all young persons who had no conscience and no empathy as the committed heinous crimes. (The crime bill itself ended up guaranteeing the increased incarceration of more young Black American men than at any time in the preceding fifteen years.)

Mr Trump has been accused of great corruption; if true, and if the US system is as robust as everyone claims to be and not a sophisticated version of the so-called banana republics', independent prosecutors will soon be after his hide. In contrast, and in the context of US politics, Mrs Clinton was portrayed as the Virgin Mary, utterly beyond reproach. Then the non-official Blackberry surfaced. Then the non-official e-mail server surfaced. Then the seedy connections between Mrs Clinton, her husband, Bill, the Clinton Global Initiative and seedy donations by seedy foreign nations surfaced. "Influence-peddling" was whispered but never seriously investigated. If it had been, she might never have made it past the filing-papers stage in the 2015/2016 campaign.

Mrs Clinton, like Mr Obama, learnt a very important lesson about US politics: keep up appearances - of honesty, charm, humanitarianism, global co-operation and all the nice things US citizens tend to fall for. But just n case things don't go the US's way, be prepared to spool up that cruise missile and drop it onto the unco-operative, George-W-Bush-style then send in USAid and Americorps and Opic (Overseas Private Investment Corporation) to set things right. Naiveté is one thing but wilful naiveté is pushing things.

Don't get me wrong; Bernie Sanders would probably have been worse. His decades as an elected representative would have meant nothing for us, as non-US-citizens, because of his inexperience and blind ideology in a messy world. He would probably have been much worse than Donald Trump, whose narcissism is the one thing keeping the world from being irradiated.  (On the other hand, it might be the reason why the world is irradiated.) But don't try and tell us that Mrs Clinton would have been the best that the world could expect. She wasn't. Not by a long shot.

Fortress USA and executive orders

If you are not a citizen of the United States, do you have the right to enter the United States? The answer, quite simply, would appear to be "No" but these are not simple times any more. Donald Trump, the forty-fifth president of the United States, promised to deal with "illegal immigration" into the US if he was elected. Towards this end he signed an executive order that barred entry into the US of the citizens and residents of seven predominantly Muslim countries: Iraq, Syria, Sudan, Iran, Somalia, Libya and Yemen. He was condemned globally.

What these countries have in common is that they have been on the receiving end of the US's global war on terror, launched in 2002 by George W Bush, the forty-third president of the US and prosecuted increasingly using remotely-operated robots by the forty-fourth, Barack Obama. Iraq and Libya have had regimes bombed out of office; both Iraq's Saddam Hussein and Libya's Muammar Gaddafi were executed after being deposed, the former after a sentence of death was handed down by the courts, the latter by a bloodthirsty mob. The US's efforts to force the capitulation of Syria's Bashar al-Assad and his regime have not borne fruit and look unlikely to bear any fruit since it began in 2011.

The Sudan, once host to Osama Bin Laden and the leadership of al Qaeda, has always harboured actors who are inimical to the US's continued good health but since the end of the civil war that led to the secession of South Sudan, little seems to come out of Khartoum nowadays other than bellicosity of Darfur. Yemen and Somalia, however, are different kettles of fish altogether. The US is supporting the only country to manufacture ultraconservative Muslim terrorists in its war with the leadership of a faction that doesn't subscribe to the Wahabbism that is the cornerstone of its brand of Sunni Islam, Saudi Arabia. In Somalia, the US is remotely bombing al Shabaab camps because al Shabaab is now in league with both al Qaeda and the Islamic State (which has also taken root in the rubble of what was once Libya). Iran will always be treated with suspicion by the US because of its support for Hezbollah (in Lebanon) and Hamas (in Palestine) and because it is one of the few nations to humiliate the US and get away with it relatively unscathed.

These seven countries are not US allies but a great number of their refugee problems are because of the US munitions that have been raining down on them for over a decade. That said, their refugees are not US citizens or US residents and don't have an automatic right of entry into the US because their refugee status was created by US foreign policy. But because many nationals of these countries are likely to harbour ill-will against the US and some might wish to do something about expressing that ill-will, Mr Trump has argued that keeping them all out of the US is the prudent thing to do, whether they have been vetted by US authorities or not.

Mr Trump's rivals that the US has a moral duty to admit refugees from these countries especially if US authorities determine that they do not pose a threat. Mr Trumps rivals are supported by many non-US citizens from around the world, including in Kenya. In Kenya, they have also argued that it is unconscionable for the Government of Kenya to force Somali nationals to go back to Somalia where the spectres of al Shabaab, al Qaeda and Islamic State looms large. Mr Trump disagrees and he has fired an acting Attorney-General who publicly disagreed with him. Mr Trump is right: there is no moral duty for the US to admit refugees from countries that have faced the brunt of US reapers and hellfire missiles.

For every decade since 1945, the US has been at war with one nation or another. In the Korean peninsula, technically still at war, the stalemate will only be resolved when the North falls or the two reunite. In Vietnam, the US left with its tail between its legs. In the Middle East, the US is set to lose more blood and treasure than at any time in its bloodily expensive history. As the US has bombed more countries and destroyed the lives of hundreds of millions, it has become more and more insular and isolationist, inviting jealousy and rage in equal measure, taking in only those who are of financial benefit to it. Now it is set to make that preference statutorily explicit in Mr Trumps executive orders. Fortress USA could not keep out 19 nationals of an ally from turning symbols of US modernity into reminders of its feet of clay. An executive order will not change that.

Anyone but Kidero/Mueke in 2017

The Nairobi business district, as opposed to the Nairobi central business district, is vast, encompassing a territory that extends from the roundabout at University of Nairobi's Main Campus (University Way/Uhuru Highway) to the roundabout at Haile Selassie/Uhuru Highway, to the roundabout at Haile Selassie/Landhies Road, to the roundabout at Ring Road/Race Course Road, along the Nairobi River to where it passes under the Globe Flyover, and along University Way back to the roundabout at Uhuru Highway. It is distinguished by the utter inability by the Government of Nairobi City County to keep things on an even keel.

Traffic management is ashambles. Garbage and refuse collection is notable by its discriminatory nature: most parts of the central business district don't accumulate mounds of garbage while most parts to the east of Moi Avenue almost always have mounds of garbage. The noise, dust and litter is impressive by its persistence. But what distinguishes the Nairobi City County's lacklustre efforts is the manner in which it treats Nairobi's pedestrians: with recklessness and disdain.

Pavements, as we know them, are not the preserve of the walking masses. They must share space with motorcyclists, bicyclists, parked cars and PSVs, "hawkers" selling everything from three-days'-old bananas to used underwear, "open-air" preachers and the aforementioned mounds of garbage. But on social media, one of the Government of Nairobi City County's preferred modes of public communication, you wouldn't know this. By this government's estimates, garbage is collected promptly, motorists and PSV operators haven't colonised pedestrians' walking space, and Nairobi City is as hospitable as can be.

Nairobi, however, both the business district and the suburbs, is a hostile place for the pedestrian. Little, outside of the central business district, has been done over the past four and a half years to cater for the vast majority of Nairobi's pedestrians. Pavements are, at best, potholed strips of tarmac covered in a thick layer of soil where members of the walking public must dodge bicycles, motorcycles and gunnysack mats of tomatoes and snot-nosed toddlers belonging to the tomatoes' vendors. Coupled with the idiotic habit of building walls where part of the pavements used to be, the space left to the teeming masses is too little, heightening the sense of claustrophobia every time one ventures onto the streets.

I don't know what record Messrs Kidero and Mueke, governor and deputy governor, will campaign on for the re-election this year, but if they claim that they have made life easier for Nairobi's walking population, they will invite nothing but scorn. They have failed on so many scores that it is a wonder that they can even claim to have been in office at all. At this point, Nairobi's voters are better off choosing someone else, even the bombastic blowhard Miguna Miguna, the colourful Senator Sonko, the suave and photogenic sax-playing Peter Kenneth, or the the pioneer private-sector street-lighting businesswoman Esther Passaris. Re-electing Messrs Kidero and Mueke is a sacrifice many of us are unwilling to make in 2017.

A sad bunch of jokers

oath

ōTH/ 

noun

oath; plural noun: oaths

1.

 a solemn promise, often invoking a divine witness, regarding one's future action or behavior.

"they took an oath of allegiance to the king"

Samuel Kamau Macharia or, as his is known in Kenya, SK Macharia, the eponymous chairman of the Royal Media Services company, is in the cross-hairs of an angry group of men, described as " about 100 Kikuyu elders", because he has "betrayed his community." According to these 100 Kikuyu elders, Mr Macharia was "[given] 14 mandatory days to apologise to the community for exposing them (sic) to attacks by other communities especially in this electioneering period". Presumably, these Kikuyu elders are speaking on behalf of the Kikuyu community in Kenya and they feel that Mr Macharia has betrayed the members of the House of Mumbi.

Mr Macharia's betrayal, apparently, is that he publicly advanced the opinion that Raila Odinga beat Mwai Kibaki in the 2007 general elections and that Mr Odinga was cheated of victory. Mr Macharia made this statement in the Senate chamber when he appeared before the Senate to testify against the passage of the Election Laws (Amendment) Bill, 2015, which, among other things, intended to amend the Elections Act, 2011, to make provision for both an electronic voter registration system and a "backup manual register of voters".

Mr Macharia's stance invited the wrath of the Kikuyu elders and they threatened to curse Mr Macharia. This threat recalls, at least for those who were sentient at that time, the oathing that took place in central Kenya, the Kikuyu's political and cultural home, in the late 1960s. Many myths surround the oaths that were allegedly administered during that period but what many agree is that the intention of the oaths was to bind the Kikuyu masses to the Kikuyu political classes. In the words of one famous refrain from that era, [presidential] power should never cross the Chania river. In recent days, a vicious rumour has circulated that the rallying call is that the Kikuyu must protect their uthamaki (kingship). With the recent story that Mr Macharia has indeed been cursed by the Kikuyu elders, it is quite possible that the protect-the-uthamaki project is well underway.

Mr Macharia is wealthy, his wealth founded on the back of his media company. Mr Macharia has also clashed with the Government over many regulatory matters, including on the fees levied for broadcasting spectrum and the manner in which spectrum is assigned for digital broadcasting. His disputes with the Government has been very loud and very public. Both times he has challenged the Government, a Kikuyu was pas president and so, among some of the Kikuyu elders' thinking, Mr Macharia, a Kikuyu himself, has betrayed the Kikuyu by being disloyal to the president. But by supporting the narrative advanced by Mr Odinga, a Luo, that Mr Odinga was robbed of electoral victory in 2007, Mr Macharia has crossed the Rubicon and declared war on his community hence the curses which, according to a Mr Kiarii Rugami wa Chumbuu, Mr Macharia will suffer untold calamities within ninety days of the curse being placed.

The Kikuyu elders are just the latest gang of unelected windbags purporting to represent the true interests of ethnic communities. The Kalenjin have theirs, as do the Luo and the Meru. What all these cabals of men have in common is an inflated sense of importance at complete variance with their stature or status. More often than not, they fall fall back on cultural tropes and devices to cow members of their ethnic communities. Whoever refuses to toe the line is "cursed" and, in rapid succession, "calamities" befall him. (You will find, though, that some of the calamities are engineered by the exchange of large wads of cash between the "elders" and young men who deliver sound beatings.)

I doubt whether Mr Macharia fears the curses that have been placed on him; he is smart enough to know that in Kenya things like curses are the alibis old men rely on to hide their hands in the commission of crimes. Mr Macharia knows that to defeat the curse he doesn't have to go back to the elders with his hat in his hands and beg for forgiveness. He knows that to defeat the curse, he will now have to spend a little bit of his many billions to hire bodyguards and food-tasters but to truly defeat the curse, he must publicly and unashamedly laugh at the elders' faces and show the world what a sad bunch of jokers they really are. They are the political equivalent of the saddest food in the world: mukimo. Something that has been boiled to death, utterly devoid of taste, bland and boring.

A man's job?

The sex war is far from over. I don't mean the gender war. I mean the sex war. Man versus woman. Male versus female. It is far, quite far from over. Even the feminist in me recognises that on many fronts, patriarchy and paternalism continue to hold sway. It is why even otherwise sensible adults still labour under the illusion that stay-at-home spouses, frequently wives, do not perform work, or that any man who, in the middle of a workweek, is to be found at home has some kind of dysfunction: after all, all men must work to provide for their families; all women must prepare to be provided for.

The sex war still revolves around the myth of the proper role of each sex. Men work to provide for their families. Women care for the home, but this is not considered work. This war informs so much of hat we have come to consider normal today: Martha Karua, Charity Ngilu, Nazleen Umar, Kingwa Kamencu and Julia Ojiambo were all uppity, overeducated, presumptive women simply because they refused to remain in their proper sex roles when they chose to advance their names in the presidential election. They should have stood for lesser elective positions: woman representative, member of county assembly, mistress, concubine. Political power, according to the all-knowing man, is the preserve of men.

By the time the third United Nations Conference on Women was being held in Nairobi, many beautiful and important things had taken place in my own home and in my immediate community. Wives were no longer house-wives and it wasn't expected that a boy would sit in his own shit throughout the day because he was expecting his mother or the house-help to change is shorts for him. Man and woman had a hand in contributing to the family wealth; only the man held back by culture and tradition was determined to provide everything for his family, without help or advice. It is the lesson he taught his children, boys and girls, and it is a rule he enforced with ruthlessness no matter how much he loved his wife or children.

I saw an amazing exchange today. A woman, presumably educated and a feminist, couldn't understand why a man would be home in the middle of the day if he had a job. You see, a man must have a [proper] job. A man's job can never be in the house; it must be outside the house, and it must keep him outside the house so that he isn't seen in the home at the unusual hour of the lunch-hour. If a man can't meet any of these simple conditions, he is not really a man. He is a woman. Or a boy. Neither of which is a good thing. Like I said, it was an amazing exchange.

Perhaps this is not a generalised affliction. Perhaps this is the exchange of a combative interlocutor who must will every argument. But sometimes it is impossible to tell whether or not someone truly understands the import of the ideas that underpin some of the tropes they perpetuate. One of the inevitable outcomes of the liberation of women from the shackles of patriarchy, paternalism and misogyny is that, if the trope that children must bond with their parents, or that the home must have at least one spouse chained to it at all times, more and more women will work outside the home and, to use a favourite from the US, bring home the bacon while more and more men stay at home, to look after the home, to care for the children, to be the emotional sponges that women have been for millennia.

If [the sex] roles are no longer assigned because of ones sex, but are assigned because of need, availability and ability, then it shouldn't come as a shock that it is possible for a MAN to be at home at lunchtime. That would be his JOB, wouldn't it?

More alike than you think

One of the strangest stories from 2016 was the thieving that afflicted members of staff of the Standard Media Group. In one farcical event, a beauteous TV newsreader had her car stolen by a colleague. The thief claimed that he and the TV newsreader were in a romantic relationship and that she had lent him her car so that he could drive home for the holidays. He couldn't explain, however, why he changed the number plates of the car in question and why he didn't park it in his home but at an out-of-the-way car wash. It has emerged from various sources that the media company's staff steal from each other on a regular basis.

This is but one example of the challenges bedevilling the private sector in Kenya. Bob Collymore, the happy-socks-wearing head honcho of Safaricom, Kenya's most valuable company, highlighted another: the increasing cases of corruption and influence-peddling in Kenya's private companies. His company has fired dozens of members of staff for fraud. But it is in combatting the corruption that is beginning to hobble Safaricom's operations that Mr Collymore highlights a little-known facet of private-sector entrepreneurship.

It is now apparent that thieving or corrupt acts are not the preserve of the public sector or public officers; the private sector, too, suffers its own scourges.

The public sector is vilified for being too large, too wasteful, too expensive and too useless in dozens of publicised cases. This mantra is repeated even when the data doesn't support the allegation. In 2015, at the height of the teachers' strike, it was alleged that there was a shortage of teachers. Kwame Owino, of the Institute of Economic Affairs, citing a report from 2014, reminded us that at an average of one teacher for every forty-two pupils, Kenya had sufficient numbers of teachers. What was happening, though, was that teachers were poorly distributed such that some schools had a teacher-to-student ratio of 1:70 while others had a ratio of 1:35.

The same logic is at play. Because of sensational reports of grand acts of corruption that have yet to lead to any meaningful prosecutions, the theory goes, then the entire public service is made up of the corrupt. Alternatively, because of a few highlighted cases of malingering, every single public officer is an idler, so lazy that they couldn't even bend down to retie a loose shoelace. Like any large bureaucracy, the public service has its fair share of the lazy, the incompetent, the corrupt and the malign. The vast majority are just content to do their job without any fuss. Every now and then, a few of them demonstrate bursts of inspiration that solve problems for the people. All in all, like many employers, the public service is average in almost everything it does.

Safaricom comes to mind, once more. After a false start, it is now the undisputed leader in mobile telephony and mobile money in Kenya. However, in that industry, Airtel and Orange Telekom are anything but average or, as some exit the market entirely, below average. The public service may be the largest employer and some of its officers may be the best-paid in the country, but this isn't as strange or as unique as the public service's detractors would have you believe. Their solutions to what they believe are the failings of the public service are salary-reductions, retrenchments and sackings and anti-corruption witch-hunts, not ways and means to boost efficiency and effectiveness, reduce waste, detect and prevent causes of corruption, and, generally, improve the quality of public goods and services offered by the public service.

In Kenya, bitching about things is easier than thinking through possible solutions for what ails our public service. Pity.

The Bill of Rights and Voting (Part II)

One ground on which some suggested it is taxpayers who have a right to dissent or demand accountability is that every Kenyan is a taxpayer because every Kenyan, directly and indirectly, pays taxes. Simplistically, this is true. But for pedantic lawyers like yours truly, there is a crucial difference between those who are subject to a tax on their income and the levying of, for example, Value Added Tax on goods and services, what Coldtusker calls "consumption" tax. A taxpayer is any person who is subject to a tax on their income.

A tax on income is not the same as a tax on consumption; both can be avoided, but avoiding the former is an offence. A person can choose to avoid consuming any goods or services against which VAT is levied, which many successfully do by not consuming cigarettes, alcoholic beverages, carbonated soft drinks, pasteurised milk, processed sugars of all sorts, and the like. You will not find the Government hounding them for their tax-avoidance schemes (except when the manner in which they avoid paying VAT is by way of theft; thieves, you see, as they avoid paying the ticket price for the things they steal also, coincidentally, avoid paying VAT.)

 

But woe unto you if you earn an income in Kenya, whether or not you are a Kenyan citizen, and you enter into a scheme to either avoid or evade the tax. The Government will throw the book at you for, in addition to its monopoly on coercive force, the Government guards jealousy its power to levy and collect taxes, including taxes on incomes. The equation is simple: if you earn an income, that income is liable to tax in Kenya.

It is important to understand this because it reminds us that it is not our taxpaying fidelity that gives us the right to dissent or demand accountability; if it were, then those Kenyans who do not earn an income would be unable to dissent or demand accountability even when their rights and fundamental freedoms were affected, adversely or not, by the actions of the Government or its officers.

The exercise of our rights and the enjoyment of our fundamental freedoms as Kenyans is not predicated on whether or not we vote or whether or not we pay our taxes; the exercise of our rights and the enjoyment of our fundamental freedoms is predicated only on the fact that we are citizens of Kenya. Even if I have never paid a shilling in taxes to the Government, it cannot ignore my dissension when it engages in abuses of the rights of fellow citizens or my demands for accountability when its officers make policies or carry out programmes that harm my rights or fundamental freedoms. It is simple really: if you injure me, I have a right to satisfaction under the Constitution or any other written law of Kenya. My right or fundamental freedom is not limited simply because I did not vote at an election or referendum or I did not pay taxes.

What struck me about the declaration that only voters could dissent or demand accountability was how it ignored the history of Kenya, especially the history when Kenya was a single-party "democracy" and every adult Kenyan was a member of the ruling party, KANU, and membership of the ruling party required regular payment of subscription fees and periodic contributions to 'party activities" failure to which almost always led to difficulties accessing public services or goods. Kenyans were coerced to join the ruling party, coerced to pay into its coffers and in return got little in return except the entrenchment of a cabal of tribalistic looters, pederasts, murderers, pimps and whores, determined to aggrandise themselves to Croesus-like wealth while the people of Kenya made do with shambolic public education, fatalistic public healthcare and bullet-dodging as the only reliable public safety strategy.

One of the boosters of only-voters-should-talk has waged a lonely battle arguing for the "positive" aspects of corruption and trying to paint with a really broad brush the picture of being put upon by the likes of David Ndii who keep pointing out that the new emperors of Kenya are butt naked when it comes to corruption and the looting of the national treasury. It should worry Kenyans that a person who wishes to join Parliament, participate in the making of our laws, participate in overseeing the excesses of the executive branches and charged with the onerous duty of investigating and impeaching the seniormost judicial officers has seen fit to support two dangerous and harmful positions: (1) non-voters and non-taxpayers have limited rights and (2) corruption isn't so bad.

The Bill of Rights and Voting (Part I)

Do you then agree that [if you] don't vote your right [to] dissent, demand accountability, etc. should diminish? — Twitter

The author of that unsubtle proposal to restrict the rights of Kenyans without the due process of the law would have us believe that only those who exercise their adult franchise have the right to dissent against the Government or to hold the Government accountable. Many Kenyans on Twitter responded by arguing that so long as they were taxpayers, whether they voted or not was irrelevant to their right to dissent or hold the Government to account. (I have a problem of reducing the equation of the exercise of these right to being between taxpayers and voters, but that is the subject of another day.)

Why I Don't Vote was a succinct and cogent explanation by one of Kenya's most persuasive writers, known as Owaahh on Twitter, but even he didn't address the central fallacy in the premise: that only voters can exercise certain rights or privileges.

The Constitution of Kenya's preamble, begins "We, the people of Kenya..." It doesn't begin with "We, the voters of Kenya..." (Emphases, mine.) The men and women who voted at a referendum to endorse the output of the Committee of Experts and the Tenth Parliament were all voters, aged eighteen years or older, and, presumably, were all taxpayers of one sort or the other. No child voted at the referendum of 2010. Yet, the voters (and taxpayers) didn't give themselves a new constitution; they gave the people of Kenya a new constitution. Interestingly, "tax" and "taxpayer" are not to be found in the Bill of Rights, the principal instrument in the Constitution that enumerates Kenyans' rights and privileges and defines the relationship between Kenyans and their Government.

Article 37 is the germane provision in the Bill of Rights dealing with "dissent" and "demanding accountability" [from the Government] as may be broadly understood. It states

Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities.

Article 37 doesn't refer to every "voter" or every "taxpayer" but every "person" which the constitution defines thus

“person” includes a company, association or other body of persons whether incorporated or unincorporated.

As you can see, person is not limited to "voters" or "taxpayers" either. Furthermore, the only reference to "voters" in the Bill of Rights is in Article 38(3), which states

(3) Every adult citizen has the right, without unreasonable restrictions—
(a) to be registered as a voter;
(b) to vote by secret ballot in any election or referendum; and

(c) to be a candidate for public office, or office within a political party of which the citizen is a member and, if elected, to hold office.

From an interpretation of the Constitution alone, without examining the other absurd aspects of the declaration, voting does not confer on the voter any greater privilege except that which is related to voting at an election or a referendum. Just because a Kenyan is not a [registered] voter or refuses to vote at an election or a referendum does not limit their rights or fundamental freedoms one whit!

Java love...

It finally happened: Java gave me one of its snazzy jumpers, the deep-red one with the black inner collar and, finally, I took it out for a test-drive last night when the gods of rain, thunder and lightning visited by incredibly poorly drained "estate". It is everything I thought it was and a little it more. Most important, of course, is that it is incredibly warm. If this is what Java provides its staff for the cold months...The material isn't scratchy and what they have done to prevent the cuffs from going all wool syndrome is just perfect. Thanks Java. Nairobi's Julys are no longer a thing of horror!