PLO Lumumba has only himself to blame

If Cecily Mbarire is right, PLO Lumumba launched a preemptive strike to prevent her husband from filing suit in the High Court questioning his competence as Director of the Kenya Anti-corruption Commission, KACC. Dr Lumumba went on the air waves to denounce what he described as an attempted bribe by David Apaa, Ms Mbarire's husband. He explained that he had been compelled to go public because someone, it is still unknown whether in the KACC or outside, leaked information regarding the KACC's sting operation against Mr Apaa. 

He stated that KACC had been conducting inquiries into dubious tenders awarded by the long troubled Ministry of Water and Irrigation, and that Mr Apaa, or a company controlled by him, was the subject of inquiry. As part of the sting operation, Dr Lumumba used his foundation to solicit donations from Mr Apaa. Or is it the other way round? that Mr Apaa suggested to the Director of KACC that he could slip him KES 100,000 through his foundation in order for KACC to drop the investigation against Mr Apaa?

Maina Kiai, writing in today's Saturday Nation, is asking some of the questions that the members of the Fourth Estate and indeed, Members of Parliament, should be asking (Public servants should not be allowed to own businesses or run foundations). As the Apaa case demonstrates, it is possible for the public servants so engaged to be compromised or, as is more likely, to use their businesses or foundations to solicit bribes from members of the public or indeed from persons wishing to do business with their departments.

Dr Lumumba was all vim and vigour when he took over from the hapless Justice Aaron Ringera, promising results. He has constantly been in the news, informing the public of his intention to bring down the 'big fish'. But, as Peter Mwaura satirically notes in today's Fair Play, he seems to have only nabbed the small fish: police men and women engaged in the act of soliciting bribes (How PLO briefed his operations team after the abortive Runyenjes sting, Saturday Nation, August 27, 2011). His behavior too, of late, has been quite odd. The Minister for Lands, James Orengo, was surely right in questioning the KACC Director's motives when he joined with members of the Law Society of Kenya in a demonstration organised against his ministry. It seems that Dr Lumumba has forgotten that he is a member of the Executive Branch and that it is unseemly of him to join with a civil society organisation to denounce the self-same government he serves in.

Parliament shall soon consider the creation of the Anti-corruption and Ethics Commission and at this moment it would be wise for them to consider whether Dr Lumumba's stay at the helm of that body will be a boon in the fight against corruption or a bane. When Dr Lumumba contested the Kamukunji seat in 2007, he proved to be a poor political campaigner or organiser, shipping in Tanzanian politicians to endorse his candidature. He was roundly defeated. This should have been fair warning for the men and women who fronted him to replace Ringera, J. When Parliament considers whether or not to retain him as the Director of the new Commission, they must take a hard look over his accomplishments as Director of KACC. If they are satisfied with his performance, he should be retained. However, I fear that they will look at his actions over the past six months and look for new blood elsewhere. The Apaa case may be the straw that finally broke the camel's back.

Miguna Miguna's sacking is the first step to Raila Odinga's 2012 campaign strategy

This time round Prof Makau Mutua is surely right: Miguna Miguna's departure as Prime Minister Odinga's advisor on coalition affairs was a move that had been long delayed (Why Miguna Miguna's sacking was long coming, Sunday Nation, August 21, 2011). The reasons Prof Mutua advances are surely right too, but the most cogent is the fact that Miguna Miguna attempted to be greater than his principal. He should have taken a leaf out of the books of Prof Kivutha Kibwana, President Kibaki's advisor on constitutional affairs, and Caroli Omondi, Prime Minister Odinga's go-to man when there is trouble in the Prime Minister's Office. Many will quibble with the manner Mohammed Isahakia sacked Miguna Miguna, but political operatives will appreciate the reality of the situation: the consiglieri cannot overshadow the godfather.

Prof Mutua's advise for Miguna Miguna is also sound: he should go quietly lest his loud departure be seen as a direct challenge against the Prime Minister. If his intention is to seek an elective post after his service to the PM, or if it is his intention to inherit Mr Odinga's leadership role among the Luo of Kenya, he should swallow his pride and depart the field of battle. If it is true that he has offended the nabobs of the Orange Democratic Movement Party of Kenya, his time outside the PM's Office should allow him to begin the long and arduous process of mending fences and re-building the coalition that existed prior to his employment. If he fails to recalibrate his relationship with the PM and the ODM, especially its MPs, he runs the risk of being a footnote of history and a laughing stock of not only his peers, but also of the whole nation.

Mr Miguna epitomised what was wrong with the manner with which the Coalition Government operated. Outsiders continue to view it as a sack full of rabid cats, constantly fighting for whatever advantage they may find. In his dealings with his counterparts in PNU, he did not look out for the best interests of the ODM; rather, through his public statements, he sought to create the impression that the PNU was populated with idiots and that everyone who did not see things his way was a moron or had ulterior motives. It is this combative nature that poisonously pervaded relations between the coalition partners. Prime Minister Odinga must have realised that the poisoned air between the partners had something to do with the way the relationship between the two was cultivated by, among others, Miguna Miguna, and he is now seeking to mend fences as we enter the home stretch to the next general elections.

If this is so, he may be attempting to create an atmosphere of goodwill between him and the President with an eye to seeking the President's endorsement, or in the alternative, prevent the President from endorsing any other successor. If anyone can inherit President Moi's canny ability to foresee his political future it is the Prime Minister. His recent activities paint him as seeking the best political settlement for both him and his party as the country maneuvers itself into the 2012 election cycle. He has taken politically significant steps to clean house in ODM, to address the famine in parts of the nation and to shore up his political base among the residents of Mount Kenya. But in allowing his PS to remove Miguna Miguna from his inner circle, he has began the process of re-branding that may see him recapture some of the ground he has lost to Uhuru Kenyatta and William Ruto as well as place Kalonzo Musyoka in a difficult position regarding his relationship with the President. One way or the other, the PM is laying the ground for what will be a make or break campaign and regardless of new polling data from dubious sources, it is a matter of time before the tea-leaf reading class comes to the same conclusion: count Raila Odinga out at your peril!

The Political Parties Bill heralds our doom

When the Parliamentary Committee on the Implementation of the Constitution declared that it would take over the process of shepherding delayed Bills through the National Assembly despite the clear provisions of the Constitution allowing the extension of time by one year (Art 261.2), the stridency of the declaration by, among others, Millie Odhiambo-Mabona (ODM, Nominated) should have raised alarm bells among the commentariat. When one sees the manner in which a critical Bill has been mangled and bastardised by the National Assembly, one should be aware that the 2012 elections have superseded the national interest. An example, of course, is the Political Parties (Amendment) Bill, 2011, which has been sent to the 3rd Reading this week: the amendments made to the Bill to permit the formation of pre-election coalitions and alliances is a betrayal of the ideals, such as they were, that led to the adoption of the presidential system of government.

Under the presidential system, the President is no longer a member of the legislature while no member of the legislature shall serve in the executive branch. It is possible to have a divided government: one party dominates the legislature while another party heads the executive branch. In Parliamentary democracies, it is possible to form a coalition government as the leader of the largest party in the legislature gets to form the executive, or, as in the case of Britain, the leader of the largest coalition in parliament gets to form the executive. In the United States, in contrast, there is no record of a coalition government having ever been formed since the War of Independence. Abraham Lincoln famously had a Cabinet made up of a team of rivals, that is, members of his Cabinet were drawn from both parties, but it was never considered a coalition government; the legislative branch was still divided along party lines, and members of each party looked out for the interests of their party.

The members of the Gang of Seven who have sponsored this demon-seed of an amendment will come to regret it. If their intention is that they will balance the presidential ticket between two of their members, it is important that they remember that the Constitution creates a system of checks and balances between the three branches, each with their own unique and largely autonomous functions. The possibility of a divided government still looms large, especially in 2012. Opinion polls continue to show that no single presidential contender will garner the required 50+1% votes cast in the first round and there is a very large possibility that the 2012 presidential election will go to a second round of voting. More importantly, given the divided nature of our existing political parties, no party will dominate Parliament. Therefore, there exists the possibility that not only will the winning presidential ticket not do so in the first round, but that the party (or parties) of the President and Deputy President will not command a majority in Parliament, thereby negating the formation of the coalition in the first place. If the formation of the coalition is only meant as a cynical ploy to win power, rather than ensure stability, then it will fail at its objective.

The MPs who sponsored the amendment have not thought through on the implications of their decision. How they hope to benefit from the formation of a coalition remains a mystery; the Executive branch will not accommodate them or their allies while the President and Deputy President will have no say on the legislative agenda of the Legislative Branch. Given the character and nature of our politicians it is possible that the coalition partners will have a great falling out before their term has ended which will bring into crisis the governance of this nation. If the members of the two branches have a falling out, either can sabotage the operations of the other: Parliament may stymie the passage of Bills that are important to the Executive while the latter may veto any Bills it is unhappy with.

It seems that the further we go along the implementation of the Constitution, the clearer it becomes that our politicians should not be in the driving seat when it comes to implementation. This time we cannot claim that we were not informed or that we were not aware of the naked maneuvering of the political class; they have not been shy of their intentions and their motives. It is time we took back the process and ensured that only laws that benefit us get enacted.

None is without blemish

Prof Makau Mutua suggested in yesterday's Op-Ed piece in the Sunday Nation that Raila Odinga should kick out William Ruto and the 'ruto-lites' out of the Orange Democratic Movement Party of Kenya (Why Eldoret North MP should not dine with reformers). He describes Mr Ruto's meteoric rise in KANU and his ascension to the seats of power in both President Moi's and President Kibaki's governments, starting out as an Assistant Minister and being suspended by President Kibaki from the Ministry of Higher Education, Science and Technology. What Prof Mutua glosses over is the fact that when Mr Ruto was useful, Mr Odinga had no qualms striking a mutually beneficial arrangement with Mr Ruto, using him in his war-to-end-all-wars with KANU in the run up to the 2002 general elections, in his war with Mwai Kibaki to defeat the Wako Draft in 2005, and in mobilising the populous North Rift for the ODM in 2007.

The tone and timbre of Prof Makau's piece seems to be that Mr Odinga has a greater claim on the presidency than Mr Ruto, given Mr Ruto's unsavoury past and his continued association with a political culture that, in Prof Makau's estimation and sans proof, Kenyans want no truck with. No one will dispute the fact that President Moi and KANU were the two worst things that ever befell Kenya and Kenyans. The corruption and crime that thrived within that party and in its government beggar belief, even today. The fact that Moi's blue-eyed boys are free today is proof that Kenya and Kenyans are not yet ready to bring to book every man and woman who ever profitted unfairly or unlawfully from what amounted to the biggest criminal organisation in the Republic of Kenya, the KANU government. Prof Makau also glosses over the fact that Raila Odinga's initial rapprochement with Moi's KANU in early 2002, much as it has been painted as a strategic plan to destroy KANU, was a pragmatic realisation that Mr Odinga needed to tone down his anti-Moi rhetoric if he was to be taken seriously by the masses. This cynical use by Mr Odinga of the millions who support him has been one of the defining features of his political coming of age, especially after the 1997 general elections. It is a quality that he has cultivated since he entered Parliament, most recently demonstrated in the manner in which he declared solidarity with the suffering people of Northern Kenya, and the plight of the refugees flowing in from neighbouring strife-torn Somalia.

I think Prof Makau recognises this which is why even he is not pretending that ODM, as a party, is a democratic outfit, in which dissenting voices will be given an opportunity to be heard or the concept of "one man, one vote" is taken seriously. When Prof Makau urges Raila Odinga to "kick out" Mr Ruto and his allies from the party, he acknowledges that ODM has become the personal political vehicle of Mr Odinga and that rather than attempting to persuade Mr Ruto by any means as to the error of his position, Mr Oodinga should act as Niccolò Machiavelli would probably have advised by striking first, striking fast and striking hard. None of the parties to the sorry state of affairs in ODM is blameless; all have been tainted, one way or the other, through association to each other, to KANU, and most illuminatingly, with President Moi. Not even Mr Odinga can claim that his conscience is snow-white clean; the violence that occurred in 2007 and 2008, regardless of his mealy-mouthed claims of innocence, would not have occurred if he had not claimed he had been unfairly denied victory by Mwai Kibaki. His call for "mass action" was the spark that lit that particular tinder. Since that defeat, and after his self-serving alliance with Mwai Kibaki in the Grand Coalition Government, Mr Odinga has done everything he could to consolidate the reins of ODM in his very capable hands. What Prof Makau, and the rest of Kenya, should realise is that it is a fallacy that there are any 'democrats' in Kenya's body politic; none has proven that they will sacrifice the chance at the presidency for the people of Kenya; none has demonstrated the willingness to jettison a political alliance for the people of Kenya; and none has admitted that they were wrong to lie, cheat, steal and refuse to pay taxes. Not William Ruto and not the mighty Raila Odinga.

On Judicial Independence

The tone of the The Nairobi Law Monthly over the past three issues has been triumphalist, celebrating the just successes of the inauguration of Dr Mutunga and Ms Barasa as the President and Deputy President of the Supreme Court of Kenya. The Nairobi Law Monthly, especially its editor Ahmednasir Abdullahi, have predicted that the reform of the Judiciary will be among the signature successes of the Chief Justice, and that he will lead the fight in making the Judiciary more independent, especially now that the Committee of Experts ensured its financial independence by providing for the establishment of the Judiciary Fund as a charge on the Consolidated Fund. The impression that The Nairobi Law Monthly has created is that financial independence of the Judiciary is synonymous with judicial independence. Nothing could be more fallacious.

I shall concede only one part of this argument: without financial independence the Judiciary was unable to expand its services to the citizens of Kenya; it was unable to offer members and staff of the Judiciary competitive terms of service; the work environment in the Judiciary was frequently dangerous and unfriendly; it was unable to modernise; and the training and re-training of judicial officers was frequently left on the back-burner. However, the much maligned former Chief Justice Evan Johnson Gicheru managed to spend goodly amounts of money on the expansion of Judiciary facilities across the country, and in the refurbishment of the Income-Tax House, he bequeathed the New Milimani Law Courts on a legal fraternity that had called him names and declared him an utter disappointment. It does not seem to me that lack of money was the reason why the Judiciary was not being modernised or reformed; rather it was the manner in which successive Chief Justices prioritised the resources available to them.

Another pillar of the new-found enthusiasm for the Judiciary is the manner by which the Chief Justice, his Deputy, judges of the Supreme Court and the remaining members of the Judiciary were appointed, that is, through a competitive, public process where their interviews and vetting were carried out in the glare of TV cameras and in the presence of the citizens of Kenya. The Judicial Service Commission assures us that this process gave us, and will continue doing so, the freest judicial members in the history of Kenya. Gone, it also assures us, are the days when the President (and Prime Minister) and their cronies picked their friends and supporters to serve in the Judiciary, more to protect their interests than serve the cause of justice in Kenya.

In drafting the Constitution of Kenya, 2010, the Committee of Experts offered a choice to the political class: settle for either a purely Parliamentary system in the Westminster style or for a pure Presidential system in the United States' mould. Kenya settled for the latter, and as a consequence the US concept of separation of powers and a system of checks and balances underpins the Constitution; the Executive, Legislative and Judicial Branches are separate and distinct, each with the power to check the other in some limited fashion. This is the first step to independence. The second was in ensuring that public finance in Kenya treated the three as distinct entities, hence the creation of the Judiciary Fund, among others. But it is on the third front that there has been deafening silence, even from The Nairobi Law Monthly, that is, in the rendering judgments and rulings by the courts.

To my knowledge, no statistics have been produced showing that bar corrupt acts, rulings and judgments of our courts were influenced, either by the Executive that controlled the purse-strings, or the Legislature that could conceivable pass laws unfavourable to the Courts, or by ideological and other considerations. It could be argued, though, that corruption has had a pernicious effect on the independence of the Judiciary, placing judicial officers at great risk of blackmail bay any of the aforementioned parties. Again, this aspect of the effect of corruption on the Judiciary has not been explored in public. 

This leaves us to ascertain from official court records whether the Judiciary was independent or not. During the JSC interviews of candidates for the offices of CJ, DCJ and judge of the Supreme Court, Omollo, JA, was cashiered by Mr Abdullahi over his consistent ruling in favour of President Moi in election petitions challenging the validity of his election as President of Kenya. Mr Abdullahi, however, failed to explore whether Omollo's, JA's loyalty extended beyond saving the president's bacon in election petitions. 

An analysis of the rulings and judgments of the Court of Appeal over the years should show whether the Court was overwhelmingly influenced by the Executive branch, or any other party or ideology, or not. It will give us an opportunity to determine for ourselves whether the Judiciary was guilty as charged, especially of the sins it is accused of having committed during KANU's long and corrupt reign in Kenya.

The Supreme Court of Kenya is now the highest court in the land. Its judgments are now binding on the Judiciary, including the formerly lofty Court of Appeal. It is for this reason that its rulings and judgments will be read with keen interest; after all, they are supposed to declare the rules of general application in Kenya. Of the 7 members of the Supreme Court, only Prof J B Ojwang', Mohammed Ibrahim and Philip Tunoi have a judicial record with which to ascertain their judicial independence; for the CJ, DCJ, Ms Njoki Ndung'u and Dr Smokin Wanjala, we will have to deduce theirs from their public stances, statements and published documents, a tall order at the best of times, but a veritable Himalayas when they have not been made public. It is their ideological and judicial philosophies that will determine whether the Supreme Court of Kenya will be independent, especially of the pernicious hand of the Executive branch, not the manner of its public financial management or the legislative agenda of Parliament.

Time's up!

Under the Constitution (Chapter 8), Members of Parliament, that is, Members of the National Assembly and of the Senate, shall perform the following functions:

1.Amend the Constitution;
2. Alter the boundaries of counties;
3. Protect the Constitution and promote the democratic governance of Kenya; and
4. Under the authority of the Constitution, or of any other written legislation, make provisions having the force of law in Kenya.

The National Assembly shall perform the following functions:

1.Represent the interests of constituencies and special interests;
2.Deliberate and solve issues of concern to the people;
3. Enact legislation;
4. Determine the allocation of national revenue between the levels of government;
5. Appropriate funds for expenditure by the national government and other national State organs;
6. Review the conduct of the President, Deputy President and other State officers and initiate the process of removing them from office;
7. Exercise oversight over State organs; and
8. Approve declarations of war and extensions of states of emergency.

From the foregoing, it would seem, on the face of it, that our National Assembly has shirked its duties. The dismal record of poor quorum in the National Assembly is a no longer funny. Kenneth Matiba set a bad precedent with his 'technical' appearances in the 1990s. Today, it seems that MPs spend more time kissing ass outside the august House, than carrying on the business of the National Assembly. If they had been doing their job, especially after the dire warnings of the Kenya Meteorological Department in November 2010, the famine that is ravaging the country could have been addressed in advance. Their authority under the Constitution to appropriate funds for expenditure by he national government should have been exercised well in time to compel the Executive branch of government to set process and structures in place for the alleviation of the expected suffering of the people of Kenya. The argument by Deputy Speaker Farah Maalim regarding the continued failure by the government should also be an indictment of the blinkered pig-headednes of the National Assembly, fractured as it is along ideological, party and tribal lines. The fact that some of its members have embarked on early presidential campaigns means that their minds are not focussed on the unfolding tragedy in parts of the country, more particularly the dire situation in northern Kenya - a region that has been neglected by successive governments, including by the National Assembly, since Independence.

When choosing our next representatives, and in the formation of the next government, including the county governments, we must be wary of men and women peddling the same stuff from years gone by. This idea that we owe them fealty simply because we speak the same mother-tongue or come from the same geographical area must be discarded as it is the reason why they seem unable to focus on issues that affect us directly. In their zeal to protect their interests they have frequently thrown us in front of the bus. Today we must make it plain that they have failed us and that their fifteen minutes are up. It is frequently claimed that Kenyans are bright and intelligent, capable of finding solutions to the most vexing problems that face them. If this is so, the time to prove it is today. They must draw the line in the sand that if the current members of the National Assembly wish to retain their seats at the next general elections, they must shape up. They have about a year to prove to us that their focus is not simply to embarass one man or to keep their seats. They must demonstrate the resolve that has been so lacking in managing the affairs of this nation. If not, pink slips must be handed out by the gross at the next elections. Tell them, Thank you, and good-bye! Our patience has run out. We are mad and we won't take it any more.

So what if the next A-G is a reformer?

It is not Amos Wako per se, but the institution of the State Law Office that is a problem. Hassan Omar Hassan, Charles Nyachae, and all those that are welcoming the imminent departure of Amos Wako from the Attorney-General's Chambers with undisguised glee have it all wrong. As Michael Joseph, the former Safaricom CEO would have put it, it is a peculiarly Kenyan habit to lay the blame on the individual rather than on the system that permits him to be as he is. Mr Wako's departure has been constitutionalised and he has no choice in the matter, but until the State Law Office is reformed to reflect the reforming transition that Kenya finds itself in today, it is irrelevant who the next Attorney-General is: the temptations of the post may overwhelm even the most liberal, reformist person to occupy that position.

In the absence of a real debate regarding the proper place of the State Law Office in the government of Kenya, Mr Hassan and Mr Nyachae have directed their ire at a man. They and their fellow-travellers may have no clue as to what the place of the A-G is and this may inform their intemperate statements regarding the person of one Amos Wako. Their failure to express clearly what they want the State Law Office to do informs their arguments: that Mr Wako is the embodiment of impunity. What they may be unwilling to admit is that they do not know - nobody does - what the A-G is and what he should do when it comes to the reform agenda as espoused by them.

The Constitution prescribes the powers and functions of the Attorney-General. In addition to being the principal legal advisor of the government, the A-G will also perform functions that may be assigned to him by the president or by national legislation. To date, it is the State Law Office that oversees the registration of businesses, partnerships and companies (both private and public); marriages; and manages the estates of persons who die intestate until a court rules on the distribution of the estates. No one, to my knowledge, has challenged the manner in which the State Law Office has discharged its functions in these areas. It is only in the area of political controversy that the A-G, and the State Law Office, have taken flak.

It is here that reforms will be needed. The recent controversy regarding the publication of the Independent Electoral and Boundaries Bill, and later its assent by the President, demonstrate what the challenges are. Mr Nyachae and certain members of civil society, have accused the Attorney-General of stymieing the process, engendering delay and threatening the implementation of the Constitution. The impression being created is that Amos Wako is the Colossus standing in the way of the implementation of the Constitution and that his imminent departure will open the floodgates of law-writing, and implementation will move at much faster pace. This, however, completely ignores the history of the office of the A-G. Few are willing to remember the odious impacts that previous A-Gs had on the government of Kenya, most notably Mr Charles Njonjo and Justice Matthew Guy Muli. Who could forget Mr Njonjo's declaration that even contemplating the death of Jomo Kenyatta constituted treason, a crime that carries the death penalty?

Merely hoping that the next A-G will be a reformer without addressing the structure of the State Law Office is being too generous on the good sense or generous spirit of the next Attorney-General. Institutions should be greater than the men and women who head them, and so it should be with the Attorney-General of Kenya. Until an honest assessment of the proper role of the office is conducted, it is only a matter of time before greater controversy is generated as we seek to implement one of the most liberal Constitutions in modern times. The A-G should be the symbol of the rule of law, offering opinions to the government that are not only backed by a proper understanding of the law, but also tempered by the realisation that such opinions shape government policy and ow the government relates with its citizens. The reformist credentials of the A-G should not be the only criteria used to judge him or to appoint him. If they are, then we may as well appoint a poodle to the post.

Stop using famine as a political weapon

Kenyans have extremely cold hearts. If the images of children starving to death is unable to shake them off their obsession with who will or will not be president in 2012, nothing else will. Children, and elderly persons, the most vulnerable members of our society are dying of hunger. Many more, having trekked hundreds of kilometres from a dysfunctional Somalia, are dying at our border, the government having taken a firm stand against allowing in more refugees from that benighted country. International aid agencies are struggling to cope with the worst famine in 50 years in the Horn of Africa. So is the Government of Kenya, and stories of the outright theft of food aid by officials merely underscores the peril millions of Kenyans and Somalis face today.

Mohammed Farah Aideed understood the power of hunger and in his war with the other clans in Mogadishu, he ensured that he used it for his own ends. Mr Aideed controlled the aid flow in Somalia. Aid workers were killed in his internecine war and the Americans vowed never to send its troops to Somalia after the infamous Blackhawk Down incident. The dictum that he controls the food controls the people seems to be playing out in Kenya this year.

The transition from the former Constitution to the new one has seen every political player worth his salt take to the field with gusto. Prime Minister Odinga, the putative frontrunner, has the Gang of Seven nipping at his heels. He has used his office to highlight the plight of the starving masses in Northern Kenya to no avail. Meanwhile, the Government of Kenya has decided to permit the import of genetically modified foods as a solution for the famine, arguing that the grain stocks in the Strategic Grain Reserves have fallen so low and the season's harvest has been so poor that this drastic step is warranted. Whispers of rent-seeking among the members of the political class, men and women who are willing to make a killing ahead of the 2012 general elections, have been doing the rounds giving the lie that the decision to import GM maize has anything to do with the plight of the hungry and the dying.

Economists and social economists all agree that, in the twenty-first century, drought will occur but that there is no reason why famine should. Famine is a symptom that the government of the day cares more for its survival than the survival of its people. With the expansion of the railway system to all parts of the country, India has never suffered peace-time famine since 1919. In Kenya, twenty-four years of hegemonic KANU rule saw the national infrastructure (roads, railways and air transport) crumble and fall into disrepair, with the government of the day being the only institution with the capacity to reach all its citizens. KANU used this power to control the people of Kenya, controlling the distribution of grain in such a manner as to punish or reward its people. By also controlling the press, and the media, KANU and Moi shaped public opinion, denying Kenyans information and using their ignorance to cement Moi's grip on power.

To his credit, Mwai Kibaki has tried to undo in ten years what it took KANU forty years to build: an edifice of corruption and cronyism that has laid this country low and could be legitimately blamed for the violence of 2007/2008. Mr Kibaki is hostage to his past and it will be up to the next president to make a clean break with past, including using famine for political purposes. Our duty to our fellowman should not be tied to our political affiliations. We must embrace the idea that Kenya, for all its baggage, is a nation that can reach for the moon if all its citizens participate fully in its development. As a starting point, we must force our government, all three branches, to ensure that the starving masses are offered succour with no thought as to who will stand to benefit from the decision. If we cannot guarantee our brothers and sisters in the north food security then we are no better than the charlatans of the al Shabaab and al Qaeda that seek to destroy us.

Their hate is the key to understanding them

Let us admit that while there may be legitimate political and policy differences between Raila Odinga and the Gang of seven, their battle is an emotional one. The Gang of seven has one everything in their power to ensure that the Prime Minister does not get to win. Period. Messrs Ruto, Kenyatta, Musyoka and their acolytes may have legitimate reasons why they think they would make better Presidents than the Prime Minister, but their campaign rhetoric and other public statements are infused with a level of hate that Kenyan politics has not seen since Jomo Kenyatta and Oginga Odinga went toe-to-toe in the 1960s, so much so that the current battle between the PM and the G7 is seen as an extension f the Kenyatta-Odinga battle.

Their foot-soldiers have taken this to heart and their public statements are riddled with the stench of a personal war run amok. It remains unclear why the Gang of Seven is so opposed to an Odinga presidency, especially under the new Constitution. Mr Odinga's credentials include early opposition to President Moi's autocratic tendencies. He has credible executive experience and his international connections may well benefit the nation in the years to come. Messrs Kenyatta and Ruto, on the other hand, are tainted by their close association with the Moi regime, especially Mr Ruto who was a notorious foot-soldier for Moi's 1992 election victory. While Mr Ruto has been lauded as an effective manager in the ministries he has served, he is still associated with the fiasco of the Maize Scandal in 2008 when thousands of Kenyans starved to death while billions were lost or stolen in a maize import scam at the Ministry of Agriculture. Mr Kenyatta's stint at the Ministry of Finance has not been free from controversy, the latest only being the accusation that he failed to abide faithfully by the Constitutional provisions on public finance. Meanwhile, Mr Musyoka will not walk away from accusations that he betrayed the Orange cause when he decided to stand for the presidency despite the Orange popularity of Mr Odinga and his deal with the PNU in the aftermath of the 2007 general elections did not win him friends.

It is the personalisation of the battle between the PM and his opponents that fuels the fire of the speculation surrounding the 2012 general elections, and not the issues that must be addressed before and after the next general elections. If these issues are not highlighted, the next elections will be a personal battle between the PM and the Gang of Seven (if they still remain allies). Kenya will be the loser. Without a candidate to articulate their hopes and fears, the campaign will serve to whip up emotions that Kenyans have demonstrated they are incapable of managing. When we are called upon to defend individuals, or to defend our idea of ethnic superiority (or victimhood), neither logic nor common sense serves to call on our better angels. The Raila-G7 war can only end in tears if the emotion is not removed from the conflict.

More lessons from the United States

The presidential system of government that we endorsed last August will be a challenge to implement, especially when we know that members of our legislature are some of the least-educated men and women in any legislature. Bar none. That is the impression that many commentators have created over the life of the Tenth Parliament. If this were true, we would be in graver danger than we are today. Some of our MPs such as former Nominated MP Njoki Ndung'u and Nakuru Town MP John Mututho have demonstrated that they have the interests of the people at heart. That their colleagues failed to support them in the implementation or management of the after-effects of the Sexual Offenses Act and the Alcoholic Drinks Control Act is more a testament of the short-termism of Kenyan politics than an appreciation of the importance of keen follow-up by Parliament.

Events in the United States demonstrate the challenges that come with the existence of a divided government. The United States government is in the middle of negotiating a settlement that will prevent the government from defaulting on its sovereign debt. Barack Obama, the Democratic President, is negotiating with a Republican-dominated House of Representatives, hence the divided-government description. The negotiations, which have been going on for months, have failed to arrive a compromise that both sides could sell to their party members. This is one of the challenges that the government of Kenya will face in the years to come. In the event that the President comes from one party and the National Assembly is dominated by members of another it will be necessary for the politicians on both sides to demonstrate maturity when making decisions that will affect the nation as a whole. The same level of maturity will be demanded if the situation also prevails with the Senate.

At this moment it is crucial that voters elect leaders who are capable of transcending party and ethnic loyalties. The country is primed for one of the most crucial general elections in a generation. We missed the opportunity to reform the country in 1992 when President Moi managed to divide, and conquer, the opposition forces that had massed behind the Forum for the Restoration of Democracy. We missed another opportunity by the Kiraitu Murungi-led government walk-out of the Bomas Conference in 2005. In 2012, we have the opportunity to turn back the clock and grab the brass ring. If we fall prey to the same ethnic-oriented atavistic and chauvinistic impulses that politicians have cultivated for 20 years, reform may never be achieved.

The true role of the A-G

I have no problem with Prof Makau Mutua's endorsement of Betty Murungi as Kenya's next Attorney-General (Why Betty Murungi should be the next attorney-general, Sunday Nation, July 24, 2011), but I have a problem in the manner he describes the A-G's role in governance. He states that "the A-G will be the principal legal advisor to the state. In that position, the A-G will play a key role in the reform of the state. That's why the next A-G must be someone who understands - and fully internalises - the principles, values and diktats of the new Constitution." Prof Mutua is right regarding the need for the next A-G to be wedded fully to the principles that underpin the Constitution, but he is wrong regarding the role the next A-G will play in reforming the state.

It is in the A-G's job description in the Constitution that his role is defined. As the principal advisor to the government (not the State, as Prof Mutua alleges), the A-G is duty-bound to offer the three arms of government the best advice he can regarding the discharge of their duties and their place in the implementation of the Constitution and how to exercise their powers. The Constitution does not compel state officers to obey the advice of the A-G; it merely states that A-G shall be their principal legal advisor. What they choose to do with that advice is for them to decide. If the next A-G were to heed Prof Mutua's call there will be a high turn-over of A-Gs as numerous situations will arise where the A-G's advise is ignored, leaving him only with the choice of resigning in protest.

Amos Wako's twenty-year tenure is being held up as an example of a failed reign. He is accused, even by Prof Mutua, of being the epitome of impunity. This is a debate that Mr Wako's supporters will lose, especially given the failed or lucklustre prosecution of perpetrators of grand corruption such as the Goldenberg scam, the Triton scam and the Anglo-Leasing scam. But, Mr Wako's remit extended beyond public prosecution. As the principal legal advisor to both President Moi's and President Kibaki's governments, Mr Wako has advised the two presidents on numerous occasions on diverse subjects, from foreign relations to commercial transactions. No one has done an assessment of the quality of advice the A-G has offered the government in this period and whether this advice has had a salutary effect on the operations of the government or whether it has been responsible for the decline of the power and effectiveness of government.

In the implementation of the Constitution, the role of the A-G is set to grow. In addition to being an outstanding legal practitioner, the next A-G must demonstrate political skills to rival those of the politicians and state officers he will be advising. If the A-G takes the position that only his advice should be heeded regarding the manner in which the Constitution is implemented, he will be an abject failure and will no doubt lose his job faster than he could say 'impunity'. 

The government is being reformed, but this reform will not occur in a day, a month or a year. It will be an on-going long term process and the A-G must be capable of adapting to changing circumstances and compromising when necessary. His advice must enable the three arms of government to function at their best. If his advice is progressive, and if it is presented in the most politically advantageous manner, it will be accepted and respected. If it is delivered in a manner that suggests that it is the only viable advice the government is to receive, it will be ignored, or worse still, challenged. 

We must be cautious whom we allow to be appointed the next A-G. International respect is not the only unique selling point for the A-G's qualification; after all, the Wako that is being lampooned by all and sundry, enjoyed a similar international reputation when he was appointed. The A-G must be able to persuade the government, especially the President and the Members of Parliament, that the advice he is giving them is not only good for the nation, but good for them too. It is the only way the A-G can be effective in progressively reforming the state.

Old wine, new skins. Pity.

The race for State House in 2012 started way before the Constitution was promulgated; it started when the Raila Odinga-led faction of Kibaki's first administration rebelled and rejected the Proposed Constitution in 2005. Since then, the country has been in a permanent political campaign and, notwithstanding the events after the 2007 elections, will continue to be in such a state until well after the 2012 general elections. It seems that Kenyans, generally, accept this state of affairs and take a morbid pleasure in participating fully in the more unsavoury aspects of their preferred candidates' campaigns.

Opinion polls continue to indicate that Raila Odinga is the man to beat in 2012, though he is yet to declare whether he will stand for the presidency. The men and woman who have declared their candidacies are determined to create the impression that they are serious contenders, primarily by issuing press statements and headlining events where they either give money for charitable causes or solicit funds for their presidential bids. None, however, has created a credible campaign machinery targetting the 47 counties and existing 210 constituencies. Other than rhetoric concerning their desire to 'reform' the institutions of governance or promises to wipe out corruption from public life, none has suggested a programme for achieving any of their lofty promises. All still seem wedded to the idea that a successful presidential campaign is still based on whether or not they receive the support of their ethnic communities and how well they can persuade members of other ethnic communities to ally with them. None has been able to dispel the image of a tribal chieftain that is crucial to their identities. In short, theirs' are campaigns of style over substance.

The middle class elite in Nairobi, as frequently reported in the media, is interested in 'issues'. The proof of this interest is in the numerous Op-Ed pieces penned by intellectuals and members of the professional classes. Whether this is the reality remains to be seen. The issues that affect Kenyans acutely revolve almost entirely around the misperforming economy, of which the Vision 2030 is the latest of a long line of strategies for reforming the economy of Kenya to ensure that everyone can afford to live as they please. Over the past 2 years, since the global recession brought about economic pain, the cost of living in Kenya has touched highs not seen since the structural adjustment programmes of the IMF and World Bank were imposed on Kenya in the late 1980s and early 1990s. Basic commodities have become exorbitantly expensive, with staples such as maize meal priced out of the reach of the working classes. If the presidential contenders have solutions for the economic problems that continue to bedevil Kenyans, they are keeping them very close to their hearts. It is as if they will keep these solutions as trump cards to be revealed only when they have been elected to the presidency. By then it may be too late.

When Bill Clinton won the election in 1991, his campaign had been predicated on the economy then. George H W Bush had failed to recognise this simple fact and when he lost, many Americans stated that it was because he had failed on the economic front. In Kenya, the economy has never played a dominant role in the election of our three presidents. Until the repeal of section 2A of our former constitution, presidential elections were foregone conclusions and after its repeal, they became a test of how well the incumbent could manipulate inter-ethnic relations to secure victory. President Moi's KANU, despite being an unpopular party managed to divide the opposition in 1992 and 1997 to prolong his rule by a further 10 years. Mwai Kibaki's second presidential victory was despite the fact that he was less popular than his main challenger. At no time since 1992 was the economy a factor in the election of wither Daniel Toroitich arap Moi or Mwai Kibaki as president. The new presidential contenders know this and it is the only reason why when their manifestos are written in 2012, none will offer realistic plans for the country, and regardless of which one of them wins, the manifesto will be jettisoned promptly. Perhaps 2012 will be different, but so far no signs of change are in the air. It is still old wine in new skins. More's the pity.

Spare a kind thought for the police

The Kenya security and intelligence apparatus depends to an overwhelming degree on the effectiveness of its civilian counterpart, the Kenya Police Force. The Kenya police have been on the receiving end of endless opinion polls and studies that label it corrupt, ineffective and outdated. For the thousands of Kenyans who every day are the victims of crime, the Kenya Police is not seen as the solution to their problems, hence the continuing popularity of vigilante justice. Not a week goes by without stories of men and women lynched for committing one crime or the other. The suspended 'police vetting exercise' was met with skepticism and opposition, especially by the human rights lobby in Kenya. They argued that the institution lacked the capacity to vet its own officers and that the exercise would not be able to weed out ineffective officers.

The Constitution creates the new post of Inspector-General of Police, in charge of the Kenya Police Service, the Administration Police, the General Service Unit and other specialised para-military police units such as the CID and the Anti-Stock Theft Unit. Recent high profile crimes have concentrated the minds of Kenyans on the continuing failures of the police to solve these crimes. Blame has been laid, among other things, on the leadership of the police services, where it is alleged that the President and his cronies only wish t place 'their' people at the helm of these agencies to protect their interests. Together with the leadership of the military services, it is presumed that these officers owe their careers to the president and therefore, would not be willing to jeopardise this relationship but would go out of their way to protect it at all costs, even if it means allowing criminals to get away, literally, with murder or the territory of Kenya to be used as a launch-pad for secessionist movements in neighbouring states.

Kenyans' faith in their security and intelligence apparatus has hit an all-time low. However, the challenges facing the police, particularly, do not seem to exercise the same excitement as the campaign to paint them in bad light has. Very few Kenyans shed tears for the policemen who have committed suicide, seeing it as the just deserts for a force that has caused more misery than any other institution in Kenya. This mindset must change if the new police service is to serve the interests of Kenyans. An honest examination of the circumstances surrounding policing in Kenya will show that the police operate in an extremely hostile environment, where corruption is not just limited to traffic cops taking bribes but also policemen paying bribes not to be posted to 'hardship areas'; what they will experience there is truly hardship: poor housing and lack of essential amenities and the total isolation that can only come with keeping them away from their families for months on end. A walk through police lines scattered across the land will demonstrate, as nothing else will, the sacrifices that men in uniform make every day: living conditions that none would wish on his bitterest enemy, congestion that gives rise to the desire for advancement at all costs. When beat cops witness their superiors living it large in Nairobi's suburbs, sending their children to schools that actually have teachers, the desire to bend the system to their own devices is overwhelming. Kenyans pretend that the squalor of policemen's lives is not their concern and complain when their police service is not what it should be. There is a word for this: hypocrisy.

Reforming policing in Kenya will not just be about clarifying the hierarchy of the various units, it must be a complete reorganisation of the way policing is done with a recognition that a good police force is not cheap. Unless and until we pay for the upkeep of a police service, paying a fair price for their services, and until we provide them with the tools, both material and political, to make then as independent as possible, murderers will continue to walk free and billions will continue to be stolen from our nation's coffers.

Love, companionship and children are not the only bases of marriage

Charles Kanjama opines that "marriage means, above all, love and companionship, a lifelong commitment of equals that safeguards and nurtures their equal dignity and equally noble task of begetting and rearing children" (Marriages are institutions of love, not unions of comrades, Standard on Sunday, May July 17, 2011). This romantic notion of the institution of marriage is of recent vintage. It was not always so. Marriages, for millennia, were institutions that served the common good and did not always satisfy the romantic needs of the partners. Love and companionship, especially, are very modern objectives of marriage and are the very heart of the changes that have taken place in the institution of marriage, eroding its place in the foundation of society.

In Africa and Asia (including the Middle East), romance came by way of the European colonists. The institution of marriage served as a means of uniting families, clans, ethnic communities and political groupings. Strict rules governed the institution of marriage, regulating who, how and when a couple would be united in matrimony. The Judeo-Christian mores introduced in Africa by the English, the Portuguese and the Germans undermined the institutions of marriage in traditional African communities, insisting that a Victorian perspective was better than the African one. As a consequence, traditional African marital arrangements were frequently criminalised, outlawed and stiff penalties attached to any African that chose to practice his culture and traditions. Polygamy, the most common tradition, was criminalised and is now being opposed by Christian faith-based groups including the church in Kenya. The infusion of religious overtones in the institution of marriage is also a relatively modern addition by the Europeans; marriage in Africa was frequently a civil affair, a social pillar that guaranteed stability and peace.

It is a poor society that lives in the past, and dwelling on what marriage was, rather than what it is, has been the Achilles' Heel of those hell-bent on perpetuating a patriarchal system that has seen the advancement of women in society blocked or slowed down. However, in defending the institution of marriage from the assault, as claimed by Mr Kanjama, by modernity, it is important to strip away the romantic notions of what marriage is. Marriage still plays a crucial role in society, as it has always been, but ephemeral and abstract concepts such as love and companionship should not be used as the basis for refusing to change with the changes taking place in the mores of the people of Kenya. It is for this reason that the stance adopted by many Christian fundamentalists, indeed by many conservative Kenyans, regarding the place of homosexual unions in the institution of marriage is short-sighted. Kenya is not what it was twenty, forty or a hundred years ago. It has evolved and so have its peoples' cultures and traditions. If it were not so, then the incidences of inter-ethnic marriage, or even interracial ones, would face great opposition and would, one way or another, be outlawed or accorded second class status.

In debating the new family laws it is important for everyone to accept that they will not get what they want at the expense of other sections of their communities. An open mind is needed. The institution of marriage cannot be used to deny sections of the community legal rights that will be accorded to others. The Constitution, in outlawing discrimination in all its forms, should be interpreted in a manner that is likely to protect the rights of minorities when it comes to the question of marriage particularly. Until we can accept that society is made up of all manner of persons, the institution of marriage will continue to be undermined and the likes of Mr Kanjama will continue to fulminate against the assault on an institution that has changed.

Democracy and gender-equity

When Mohammed Issack Hassan suggested that one-third of all elective seats be contested by women only, and that a formula be found to pick which seats would be contest by women candidates only, I thought that it was his alter-ego speaking. The question of gender-equity has exercised the minds of operatives in the civil society and the government for at least a decade and, barring one or two sound ideas, it is always presumed that given Kenya's patriarchy, women would be the main beneficiaries of affirmative action oriented towards guaranteeing them a seat at the table. Mr Hassan's suggestion, however, raises certain fundamental questions.

No one disputes the right of the people to elect the representatives of their own choice, but when it is suggested that their choice be limited to members of one gender, the spectre of guided democracy becomes rather real. Presidents Moi and Kenyatta believed in guided democracy, that the people were not smart enough to make good choices and that it was the party, or the President, who was in a better position to understand their needs and to take the appropriate action to meet those needs. Mr Hassan's suggestion is that in those select constituencies the people will be better off if the Independent Electoral and Boundaries Commission, or some other public body, would be better placed to determine who would best represent their interests in the National assembly, the Senate, and the County Assemblies. Their right to choose their representative would be limited to the voting process but not in the choice of who is best for them.

It is also unclear whether the elected members of that particular gender would continue to enjoy special privileges when it comes to their duties in the legislative bodies or whether they would represent only the interests of their constituents of the same gender. It also remains unclear whether they will also demand a similar proportion f all appointive jobs in the legislatures and how they would measure these jobs' relative prestige in their demands. This also brings to mind the question of whether to reserve one-third of the governorships and deputy-governorships to members of this gender. Such affirmative action would also require criteria to formulated to determine which county would face such a requirement and which would not. Finally, the question of whether such affirmative action would be a permanent feature or would have a sunset clause need to be answered, or indeed, whether it would be rotational such that a county or constituency that has not faced such reservations would be compelled to go through the same requirement as any that have in the past.

Of course it is abhorrent that women have been locked out of decision-making in and out of government since Kenya became a republic, only being used to rubber-stamp decisions that ave been taken by men. The reasons why are complex, but the solution is not the use of patently undemocratic means to achieve parity. In fact, for things to change, society must accept that women have often received the short end of the stick. No statistics or opinion pols exist that demonstrate that Kenyans are ready for such a draconian measure to elevate women in government. But a consensus exists that this is now a problem and that a solution is required. Perhaps the solution can be found in the rules themselves. If one-third of all elected representatives are to be women, perhaps then of all elected representatives, one-third could be nominated to make u the numbers. This way, they could demonstrate their leadership activities, raise the profile of women leaders and eventually ensure hat in the political arena they receive a fair shake. This rule could also apply to all appointed offices: it must be made mandatory that in public appointments, women receive one-third of all appointments at all levels, taking care to ensure that they are not quarantined in one sector alone.

The decision to reserve public offices to women must be made in the knowledge that if we do not reform the manner in which women are viewed, affirmative action in their favour may fail to establish them as equals in public service. The change must be led by recognising and appreciating their contribution to public life and ensuring that Kenyan society no longer places a premium on the male child alone. A paradigm shift in the manner i which women are perceived is necessary. Change the mind, change the country.

Our only option

Some members of the Christian clergy in Kenya, the vast majority in fact, opposed the promulgation of the new Constitution on religious grounds, claiming that it would authorise unfettered access to abortion in public hospitals and lead to the decline of the family. No statistics exist yet, but no stories abound of the hordes of women rushing to public hospitals to procure abortion services and, to my knowledge, no homosexuals or under-age persons are getting married in droves. Perhaps, given the social stigma associated with them, women continue to procure abortions in secret and homosexuals are keeping their sexual relationships secret to avoid the wrath of a riled up public. More significantly, very few persons are discussing these topics today, almost a year since the Constitution was ratified and promulgated.

It seems that even with the clergy the subject that animates everyone is the 2012 general elections. Another that seems to have captured the imagination concerns the pace of the implementation of the Constitution, and, led by the Commission for the Implementation of the Constitution, the general opinion seems to be that we are lagging behind in the implementation process and that some interested parties, in and out of government, are hell-bent in sabotaging the process. In quick succession, the CIC has led the chorus against Members of Parliament, the Attorney-General and the Head of the Civil Service. However, not once has the CIC provided proof of the misdeeds of these institutions, merely alleging that some of their acts have had the effect of sabotaging the process.

It should go without saying that the implementation process was never going to be easy of straight forward. The Constitution is a complex document, drafted to reflect a political and social consensus that had been forged during the drafting process. Many of the provisions of the transitional clauses reflect this consensus. As the Prime Minister has joked, if it were not for the Constitution 'saving' the National Accord, he would now be out of a job. For the PM and his party to endorse the Proposed Constitution, he had to be guaranteed continued political power for as long as possible and saving the National Accord guaranteed that he wold continue to play an important role in governance and, indeed, in the implementation of the Constitution.

The role of the citizenry has largely been overlooked and it is fortuitous that in its fight with the Head of the Civil Service, the CIC has also proposed renewed civic education. Kenyans must be reminded that they are an integral part of the implementation process and that nothing should be done without their consent or their participation. They can participate fully by organising themselves effectively, either by joining political parties or the myriad of civil society organisations devoted to holding the government's feet to the fire over matters of national importance. They can also do so by ensuring that all faith-based organisations take a more than casual look at the role they can play in keeping members of the political class honest. It is time we started questioning he wisdom of permitting politicians to make political speeches during funerals or their almost constant invitations to participate in religious ceremonies of whatever kind. Not a Sunday goes by without stories of politicians being invited, or, more commonly, inviting themselves to church services and using the captive audience for their own political ends. If the church, and any other faith-based organisation, is going to permit itself to be used for political ends, then it is high time it defined what its priorities were and crafted a strategy to achieve them. It can no longer be a passive spectator to the acts being committed in its name by a class that has forever disappointed its own people.

There is no single guarantor of the success or failure of the implementation process save the people of Kenya. One way or the other we must be roused from the political stupor we find ourselves in and take back the public sphere that we have abandoned to the ruling classes. Towards this end, the topic of reform must be discussed with our active participation. If our education system is to be reformed, reform must reflect our priorities. If political parties are to be reformed, the reform must focus on empowering us to be better citizens and to make better choices of representative leaders. If we allow the reforms to focus solely on the needs of politicians, we will have ourselves to blame for the mess things will become. Positive change can only come by way of our consent and participation. It is our only option.

The CIC may be right, but they are wrong!

When Francis Muthaura, the head of the Civil Service, picked a fight with the Commission for the Implementation of the Constitution over their terms and conditions of service, a debate should have been opened about the unfair system that is in place where an elite in the public service is offered terms that compare rather well with those of top-tier managers in the private sector while the vast majority of public officers suffer poor terms and conditions. Dr Elizabeth Muli, the Vice-Chairman of the Commission is undoubtedly right when she questions Ambassador Muthaura's motives or the constitutional basis for his directive, but she misses the point, as Members of Parliament have, regarding the need for all their pay and allowances to be taxed.

Prof Richard Leakey started the trend with his Dream Team in the late 1990s when he poached experienced managers from private practice and offered them similar or better terms to what they had been receiving and then unleashed them on the public service, jumping over more experienced officers who enjoyed less impressive terms. This set the ground for the government to regularly offer private sector managers similar fat terms at the expense of experienced and senior members of the public service. This may partly explain why some of them have engaged in acts of massive corruption over the past ten years, leading to mega-scandals such as Anglo-Leasing, Triton and the FPE scam. Many forget that these financial crimes could not have been committed without the active participation senior pubic officers; they are the only ones who would be able to identify the budget lines and the civil service guidelines for spiriting away the billions of shillings that have been stolen.

The establishment of the Salaries and Remuneration Commission cannot come soon enough. If, as advertised, it manages to harmonise the salaries and allowances of all public officers, and do away with the two-tier system, it will have wide-ranging ramifications on the administration of the country. Serving your government should not be an opportunity for enrichment or rent-seeking; it should be done out of a sense of duty. If you want to get rich, try your luck in the private sector. However, the terms and conditions of civil servants should be adequate to guarantee the essentials and pay for one or two luxuries. It is a sad commentary that some civil servants can afford to pay off their mortgages withing three years of employment while others usually serve for decades before they can say they are debt-free. It is time to abolish this unfair and unjust system, otherwise all the reforms in the world will not make the public service a better servant of the citizens of Kenya.

Ruto will not save higher education

It seems as if I am focusing all my displeased attention on Prof William Ochieng' of Maseno University these days, but his article in today's Daily Nation could not go unanswered (Bring Ruto back so he can save universities). He insists on quoting a letter William Ruto, the suspended Minister for Higher Education, Science and Technology had written to the President regarding the stalled programme of work in the Ministry since his suspension, and using this line of attack to bolster his demand for reinstatement to the Cabinet and restoration to his old job as Minister. The stalled programme includes the failure to push through government the Universities Bill, the Science and Innovation Bill, or the failure to restructure the Joint Admissions Board or the creation of an Open University. Prof Ochieng' opines that these, and other actions he goes on to mention later in his article, if carried out by Mr Ruto will 'save' higher education in Kenya.

My displeasure arises from the fact that Prof Ochieng' fails to take into account the dysfunctional nature of public university administration that no amount of restructuring and tinkering with will correct as he continues to completely ignore the odious effect politicians' political battles have had on higher education in Kenya since prof George Saitoti was nominated to Parliament by President Moi in the early 1980s. But it is in completely ignoring the work that has been done by academicians over the past twenty years, and the policies crafted by civil servants, whom he accuses of cutting out the universities' administrations when crafting those policies, that had they been implemented even halfheartedly would have had profound impacts on the manner in which our young are educated and prepared for a life outside their parents' or teachers' supervision.

The reforms of higher education in Kenya will not be achieved if all hope is pinned on the admittedly unreliable shoulders of a politician; it will only be achieved if all stakeholders take the correct steps to ensure that the proper priorities are set, and that the correct strategies are pursued to address them. The traditional way of managing public resources has proved a failure. The solution is not to throw money at the problem; that will only be a recipe for rent-seeking by the avaricious among us. The solution lies in correctly diagnosing the problems that bedevil our higher education sector and reforming those areas that can be reformed and amputating those that cannot. For example, every Vice-Chancellor imagines that one day he will forge a successful partnership with the private sector to supplement his straitened budget. This is a commendable goal but with the wrong objective in mind. If, as prof Ochieng' claims, universities, especially public universities, are at the cutting edge of research and innovation, then the partnership with the private sector should not be based on the objective of plugging holes in university budgets, but of creating sustainable and reliable avenues of revenue based on an IPR regime that benefits both the universities and the private sector. In the alternative, if money is going to be thrown at the problem of shrinking budgets, it should be towards the restructuring of public university administration, with a view to ensuring that the universities have the capacity to pursue a two-pronged strategy: provision of quality services to an expanding student body and the exploitation of resources available to the university, such as its research, for the creation of sustainable additional revenue streams.

Merely calling for the reinstatement of a politician in order to rescue a situation that requires a concerted effort from all partners papers over the uncomfortable fact that even senior dons, having suffered years of Moi-Era neglect and mistreatment, and wrong-headed Kibaki-Era policies focussed in other priority areas, are now scraping the bottom of the barrel when it comes to viable ideas for the revival of higher education to heights not seen since its glory days of the '60s and '70s. That is how low we have sunk!

The Black Eyed Peas - Where Is The Love?

It's early days yet about reforming the administration of justice

The Chief Justice, ever since he was sworn in, is constantly being accosted to make statements regarding this or the other and then to constantly clarify his statements. As the head of the Judiciary, and the President of the Supreme Court, Dr Mutunga is placed in the unenviable position of giving the Judiciary a makeover and to manage the change from a closed-shop style of management to a more open and transparent style, raising people's faith in the administration of justice apparatus of Kenya. He faces a daunting task and the impatient among us are already calling into doubt his ability to effect the change that is demanded.

While a public communications strategy is now part and parcel of any public institution, Dr Mutunga must be careful that he does not endanger the credibility of his office by making statements that need constant rehabilitation in the press. The changes that are coming to the Judiciary require him to demonstrate the qualities that make all good judges great: deliberation and a careful choice of words. As the Chairman of the Judicial Service Commission, Dr Mutunga will be at the head of the process of appointing new judges of the High Court as well as oversee the vetting of all judges and magistrates. In the process, Dr Mutunga will be responsible for a process that may see more judges and magistrates resign rather than face a public inquisition regarding their continued service in any branch of the Judiciary. He must be careful to ensure that not only fairness prevails but that the credibility of the surviving officers is no longer in doubt and that all those who serve in the Judiciary play their roles diligently and honestly.

Dr Mutunga and Ms Baraza have barely began the arduous task of leading the Judiciary. While no one doubts that he has the capacity to learn speedily of what is required of him, he and his deputy must ensure that their learning curve is not distorted by the practices of the past. The cronyism that characterised judicial appointments and transfers must be a thing of the past and only those who merit such trust should be allowed to administer justice in our courts. If he can navigate the appointments process and oversee the coming vetting credibly, Dr Mutunga will have done more than enough to set the Judiciary on the right path. 

However, to expect the changes in the Judiciary to be carried out by the CJ and DCJ on their own is to miss the role of all stakeholders by a mile. Obviously, the Bar must play its part in the process now that two of its own sit in the JSC. But it is the wider citizenry that must answer Ahmednasir's call and provide all information at its disposal to the JSC in order to determine the future of the Judiciary. If we act as we have in the past, sitting on the fence and whingeing constantly, we will have no one to blame when it all goes pear-shaped.