Assholes one and all

I love walking. Despite my utter, utter loathing of crowded pavements, uneven road surfaces, and the total lack of street furniture of any kind, I love walking. If I were faced with the choice of commuting by car or PSV to the office or walking, I'd choose walking save for those days when the heavens play merry hell with the rainstorms and extreme sun. I love walking even though the Green City in the Sun is, nowadays, more and more the Slum in the Sun. So you can understand my feelings for the City Fathers and their mistresses for how far they have fucked up the City. Suffice it to say, my feelings will not be described by anyone as close to warm.

Every City Father since John Gakuo has done little to improve the liability and walkability of this City. Not Le Kidero. Not His Sonkoness. Not I-Am-Not-A-Drunk. Not the fucking general and his merry band of fucking "developers". Under their suzerainty, the City is a series of walled-off enclaves designed to put the hoi polloi in their place and to tend every municipal privilege under the sun to the wabenzi. The only variation, if that, is that among the wabenzi, the hierarchy of privileges is based on ones degree or melanation.

What makes my absolutely negative views of the City Fathers simmer like a boiling sea of magma in a no-longer-dormant volcano is that I cannot lay the blame on my true targets: the "urban planner" and "architect" that plays handmaid to the City Fathers. Allow me to give an example of why I my rage is slowly boiling over.

Some time recently, the Commander-in-Chief inaugurated the CBK Pension Towers on Harambee Avenue. It is sandwiched between Vigilance House and Harambee House Annexe (that seven-hundred-billion-shillings boondoggle from hell). It is an impressive building, and a nice addition to the City's skyline, with its glass facade and sharp curves. When it was finished, before the assholes got involved, it made proper allowance for pedestrians. After the assholes got involved (assholes who are taking their cue from he assholes in Vigilance House and Harambee House Annex and every government building on Harambee Avenue), pedestrians became a security risk and so the pedestrian pavement is going to be encircled by a seven-foot-high steel fence and the pedestrian can walk on the road for all these assholes care.

This kind of assholery is not the preserve of the asses in charge of CBK Pension Towers. City Hole has its fair share; its frontage on Wabera Street is verboten to pedestrians. KCB has gotten in on assholery as well; its frontage on Nkrumah Avenue has so many "security" features, you might think your are entering the Baghdadi Green Zone at the height of the Moqtada al-Sadr insurgency! Hilton Hotel started this trend of securitising public spaces to the exclusion of pedestrians and the current crop of City Fathers has bought into that asinine policy - aided and abetted by asshole urban planners and architects.

This shit makes it difficult to walk anywhere in comfort in this fucking City. No wonder everyone wants a car. Not that car-ownership is a breeze. On-street parting is notable for its scarcity. The car parks in the CBD are notoriously overcrowded; double parking is recklessly rife. In fact, the only sensible car park in town is the one at the Holy Family Basilica and at five hundred bob per day, incredible value for money. The rest of the parking spots in the City are shitty places where your car is exposed to the elements and the vandals that seem to operate with the tacit approval of the fucking City Fathers. Anyone that can afford to drive into the CBD hates the experience. Universally hates it.

I hate these people. I hate them with the passion of a thousand suns. I have absolutely no doubt that they are hated at home and it is the only reason they bring their level of shitholery to their work. They are fragile little man babies with the necessarily massive egos of small-minded assholes. The only people that like them are the assholes that win massive tenders to bring the excreta they call "public works" to fruition. I hope all of them are dipped in honey and stuck up to their necks in mounds swarming with fire ants for the rest of eternity.

Have they read us right?

"I wrote the constitution" can be taken as the typical hyperbole of a politician seeking electoral glory, a statement that all know is made tongue-in-cheek. It is rare that the maker of such a statement expects to be taken seriously or, indeed, he himself takes the stamens seriously. Ordinarily, it is not considered a lie but merely an exaggeration. But, as we have pointed out in the past, Kenya plays differently in this league. Lying is so commonplace that it is safer to start from the presumption that a politician is lying than the other way around.

Quite often such a lie is part of a pattern of behaviour that paints the liar in even dimmer light. The problem is that the liar assumes that those he is lying to are so stupid that they will not even attempt a basic fact-check, and so he gets bolder and tells even bigger whoppers, attempting to paint himself as the paragon of political and constitutional virtue, and all his rivals as second only to Beelzebub for their chicanery, lying and unfitness for public office.

Were it a mere decade ago, the liar could hope to get away with his lies. In the here and now, with affordable internet bundles for the vast majority of people, access to multiple sources of information and databases quickly puts paid to most of the lies told in the heat of political combat. One can no longer allege, for example, that a person is an alum of a university and hope to get away with the lie without being called out for it by online sleuths.

But our vote-seekers reserve the biggest raspberries for their record of thievery and they amass massive legions of praise singers whose only job is to shout down the truth about the thieving ways of their masters. It is possible for a salaried politician to strike it big. It is possible in the same way that it is possible for lightning to strike twice in a bottle. Kenya does not traffic in "possible". In Kenya, the salaried politician makes his own luck - quite often in aggressive and inventive ways.

It begins with a truth that is verifiable and then it takes on a life of its own and consumes his whole existence. It is why we know, in our hearts of hearts, that what the peddle as truth is the largest load of malodorous buffalo excrement this side of the Maasai Mara. What is worse, they don't care anymore when they are caught in the lie. They pretend that the truth-seeker and truth-teller liv in an alternative universe, and that the universe of lies is the one that is real. This fantasy that they paint of themselves blinds them to the anger that is bubbling under the surface among the people whose votes they seek.

They ignore the goings-on in far-flung places like Sri Lanka where they have burnt down the ill-gotten wealth of some of their storied politicians. They seem to think that so long as they toss a pittance or two our way, we will be so grateful for the crumbs from the high table that we won't let go of the reins on our rage and give it its head. They imagine we shall remain quietly docile for all eternity.  They have invested their political and material future on that assumption. Only time will tell if they have read us right.

Banish them from the affairs of state

Ordinarily, the narcissism of a politician is enough to predict the degree of his ambitions: he wants to be the president. Kenya is anything but ordinary. That wag, Michael Joseph, and his dig about Kenyans' peculiar calling habits was more right that he will ever know. Kenyan politicians are not always motivated by the possibility of becoming president; it appears that the vast majority of them are motivated by the desire to simply occupy elected office and to use that office to wangle lucrative government tenders for which they shall be paid billions of shillings while delivering nothing more substantive than hot air.

Some time during the dark days of Kenya's Covid-19 nightmare, Nairobi City's senator was accosted by policemen in violation not only of the national curfew that was in force at the time but the strict social gathering rules that had been enacted to prevent the spread of the virus. Social media was awash with videos of the youthful politician invoking, variously, his status as a state officer and his connections to the highest offices in the nation. His loud, belligerent and uncouth claims were accompanied by threats and epithets against the policemen who were only doing their duty.

The wheel has turned full circle. Our once-blue-eyed boy finds himself out of favour with all those personages whose names he invoked with impunity. His gubernatorial candidature has come under heightened scrutiny and his claimed academic credentials have been undermined at every turn. It increasingly looks like his gubernatorial ambitions may come a cropper, and he has laid the blame for his straitened political circumstances at the feet of named and un-named high government officials.

What I find interesting is that for all his vaunted intelligence and cleverness, it never occurred to him that he may want to elevate his ambitions beyond the senate (a political backwater of shady deals and even shadier politicians), for which he would need to get all his credential ducks in a row. It appears that he laboured under the delusion that there are permanent political friends, and that as one of the boon friends of his current bête noire, he would always have a sympathetic ear whenever the forces of law and order threatened his cozy political sinecure. 

That our hapless candidate had to engineer a one-day bureaucratic maneuver in order to get his Ugandan university credentials past the IEBC officials should have warned him - and his boosters - that the smooth political road he had been traveling on had developed several deep potholes and it was time to shift gears. (Knowing what we know about the efficiency of Kenyan and Ugandan public institutions, it is nothing short of amazing that he got the Kenyan Commission of University Education and Ugandan National Commission of Higher Education to certify his university degree, and have the same reviewed and accepted by the IEBC and then, wonder of wonders, for him to be issued with a certificate of registration to stand in the election for Nairobi City governor.)

Our beleaguered politician is proof that foresight is not the defining feature of our political classes. He is merely the latest unprepared failure to trouble the national conscience, following hot on the heels of the recklessness of the former Vice President who has blown hot and cold about his place in one of the leading political coalitions fighting this year's general election. Both have shown that short-termism is what drives these people: their immediate needs blind them to the long-term benefits of defining their stances, choosing their horses, and planning accordingly. If both of them, and those like them, were to be banished for all eternity to the humdrum of "consulting", never to darken again the doors of the government, it would be too soon.

Lawyering

Half of lawyering is reading and comprehension. Now...

Article 157 (12) of the Constitution says that Parliament may enact legislation conferring powers of prosecution on authorities other than the Director of Public Prosecutions. It is quite different in tone and import from clause 9 which say that the powers of the DPP may be exercised in person or by subordinate officers acting in accordance with general or special instructions.

Article 157 (9) and section 22 (1) of the Office of the Director of Public Prosecutions Act, 2013 say almost the same thing, the difference being one of emphasis rather than constitutional and statutory intent. Section 22 (1) says that the DPP may, subject to such conditions as he or she may impose in writing, delegate any power and assign any duty conferred on him or her in terms of this Act or any other written law to a subordinate officer. Section 13 (1) describes the DPP's subordinates: Deputy Directors; Secretary of Prosecution Services; Prosecution Counsel; technical staff; and such other members of staff of the Office as may be appointed from time to time.

In my considered (and jaundiced view), the DPP's "subordinate officers" do not include the Commissioner-General of the Kenya Revenue Authority, the Commissioners responsible for administering the various taxes, of the other officers and staff of KRA. But I have been wrong in the past, so don't take this as cast-iron-solid legal advice.

So what do we do with section 107 of the Tax procedures Act, 2015? It says that despite any other written law, an authorised officer may appear in any court on behalf of the Commissioner in proceedings in which the Commissioner is a party and, subject to the direction of the Director of Public Prosecutions, that officer may prosecute a person accused of committing an offence under a tax law.

The words subject to the direction of the Director of Public Prosecutions, when seen in a certain light, would imply that the Commissioner or an authorised officer falls within the ambit of Article 157 (9) and section 22 (1) of the Office of the Director of Public prosecutions Act. That is, they are "subordinate officers" of the DPP.

That is manifestly wrong.

The Commissioner is appointed by the Board of Directors of KRA. Authorised officers are appointed by the Commissioner-General. No stretch of imagination makes them the DPP's subordinates; they are the Commissioner-General's subordinates. Consequently, the DPP cannot delegate powers to them at all. Not under Article 157 (9) or section 107 (1) of the Tax Procedures Act, 2015. In my considered view, Parliament was wrong. Parliament can rectify its error by deleting the words "subject to the direction of the Director of Public Prosecutions" from section 107 (1). This would bring section 107 (1) into conformity with Article 157 (12).

There's a principle that is enshrined in our common law: where a law is ambiguous, the benefit of that ambiguity is given to the accused person and not the State. Section 107 (1) is capable of being interpreted in two ways: that the DPP can direct KRA officials in their prosecution of tax cases or that the provisions of section 107 are ultra vires the constitution. That ambiguity is sufficient to benefit an accused person who challenges a prosecution by KRA on the basis that the prosecutorial power was wrongly (unconstitutionally) granted.

The other half of lawyering is admitting when one is wrong.

Don't hanker for the good old days

The law is a weapon. No one should be in doubt that even when the law is affirming the existence of a right or fundamental freedom - or prescribing the penalties for violating that right or fundamental freedom - the law is a weapon. Sometimes it's a cudgel. Sometimes it's a scalpel. But make no mistake, when the law is deployed, it is deployed as a weapon. In the form it takes regarding taxes, the law is a very formidable and deadly weapon and it takes a person of great personal will, determination and wealth to stop the law in its tracks.

For the law to function well as a weapon, those who deploy it must understand it, use it dispassionately and not allow the immense power they wield to get away from them in reckless and unwise adventures. Mr. Humphrey Kariuki, a billionaire businessman, fought the law and for once, the law did not win. It may yet do so on appeal, but no one is confident that the other superior courts will grant Mr. Kariuki's accusers the kind of power they were seeking to begin with.

It is not clear what Mr. Kariuki did to attract the attentions of the taxman or why the taxman, the police and the public prosecutor were so keen to skirt the finer points of the constitution when they brought overwhelming force to bear on Mr. Kariuki. The seemingly tailor-made legal framework that permitted the taxman and the police to investigate Mr. Kariuki for various tax offences and to prosecute him as well has come a cropper thanks to the High Court. Mr. Mrima, J, disagrees with the manner in which the DPP's powers were delegated to KRA and the National Police Service, declaring the legal framework ultra vires the constitution. I'm not sure the other superior courts will agree; after all, Article 157 (12) says that parliament may enact legislation conferring powers of prosecution on authorities other than the DPP and, to my mind, other authorities rightfully include investigative authorities like KRA, the Police, EACC and the like.

In my opinion, it is the seemingly motivated nature of Mr. Kariuki's prosecution that may have persuaded the High Court to declare that investigative bodies cannot both investigate and prosecute. I tend to agree. Many seem to have forgotten the unhealthy outcomes of police prosecutions from the 1970s and 1980s that transformed relatively straightforward criminal prosecutions into life-damaging convictions. What may have resulted in a fine or a short custodial sentence, ended up being years of to-ing and fro-ing in court, huge legal bills and years behind bars. No one should hanker for the good old prosecutorial days. Maybe the Court of Appeal will agree with Mr. Mrima, J. Hope, after all, springs eternal.

Kenya is taking incremental steps towards greater individual freedoms. In prosecution, though the risk of empire building is great, investigative bodies should not be granted prosecutorial powers. Knowing what we know about how the law is often used for selfish, personal or political ends, allowing the investigator to make the decision on whether or not to prosecute is a recipe for grand corruption and abuse of office. We can empower Mr. Haji and his successors while enhancing oversight of the exercise of their prosecutorial powers. But it does not make sense for Hilary Mutyambai and the rest of the National Police Service to take time investigating crimes to engage in the complex legal work of criminal prosecutions. In this case, each should stick to his lane and be happy doing so.

The worst

Merely because William Ruto was President Kenyatta's running mate three times over and held the office of Deputy President twice over does not give him an automatic right to the presidency, never mind his incessant reminder that they had a deal. And merely because rails Odinga has sacrificed so much for Kenya does not automatically mean that he is entitled to be elected the fifth president of the Republic - or, for that matter, he would make the best candidate.

We are being manipulated by politicians and their mouthpieces - Makau Mutua and Eric Ng'eno spring to mind - to cast our ballots for their preferred candidates. Part of the manipulation is the heavily motivated negative statements about the rival candidates. In none of the campaigns so far have we been given a compelling reason to cast our ballots in August.

In 2002, the sky was rend by chants of "Yote Yawezekana Bila MOI!" In 2013, CORD made a compelling case against TNA. In 2022, the impression one gets is that we are being fed a steady diet of cat puke and told that it is the best risotto ever. Not even the announcements of Martha Karua and Rigathi Gachagua have inspired us to think of the 2022 general election as a do-or-die affair. Many see it as a cynical ploy to lock down the votes of "the Mountain" as if the mountain is the only factor to affect the outcome of the general election.

Not even the spirited also-rans inspire a groundswell of support. There is a misguided pair that believes Kenya is ripe for legalise marijuana revolution. These kinds of stupidities inspire nothing but despair. It is like the pro-bhang campaign has refused to acknowledge that despite the fact that thousands upon thousands of Kenyans partake of the herb, they do so in the knowledge that it is wrong, that it should not be legalised, that it causes real harm. Kenya is not ready for a conversation on the decriminalisation of narcotic drugs and psychotropic substances.

The way that Kithure Kindiki and Tim Wanyonyi have been shafted by their coalition principals is a testament to the backroom backstabbing going on in 2022. The desire to secure ultimate political power has blinded the campaigns to the unseemly betrayals they are engaging in, the dodgy compromises they are making, the hypocrisy of their pronouncements and announcements. All this is supercharged by the naked anti-national sentiments expressed by their mouthpieces, designed, however inadvertently, to undermine our faith in political institutions, and promote the cults of personality they pretend to eschew.

No, 2022 is not the inspired general election we need. It is not even the best of a bad deal. It is the worst of a very bad deal. Maybe a dark horse will come out of the wilderness and inspire the dispirited masses. And no, it won't be Kilonzo Musyoka. His ambition is as naked as the dye colouring his thinning hair.

Ditch the fence

It is a truism of my now-ignoble profession that among the basic skills a lawyer should posses, is the ability to read, understand and interpret contracts - and this skill extends to parsing the meaning of oral contracts. The key elements of a contract are known to us: an offer is made; an offer is accepted; consideration is paid. Everything else (grounds for breach, dispute resolution, jurisdiction, etc.) is the meat and potatoes of lawyering, but the triumvirate of offer, acceptance and consideration are the foundation of all contracts. The longer one practices as a lawyer, the more ingrained the finer aspects of contracts law become. And by the time the President of the Republic confers you with the rank of "senior counsel", you are a walking, talking compendium of contract law.

Or so one might think.

A former Vice-President of Kenya has been conferred with the rank of senior counsel. He's held that rank for almost two years. He is the leader of a political party that is part of a coalition political party. The coalition agreement was signed in his presence by the secretary-general of his political party after interminable negotiations at which the terms of the agreement were agreed to by the principals of the coalition's members. The coalition agreement is, for all intents and purposes, a contract.

However...

Some of the things we were no taught in law school are still pretty obvious. You always keep a copy of a contract that you have signed. You receive or make a copy at the moment the contract is signed. You don't ask the other party to send you a signed copy later (though many of us seem to do so with insurance contracts). The higher the stakes in the contract, the more urgent the need to keep a copy once ink hits paper.

But Kenyans do things different.

We have been witness to the wooing that went on to get our senior counsel into the coalition. He played hard to get, dangling his affections in front of the two main political agglomerations. He even declared at one point that he would be the most foolish man if he backed the presidential ambitions of the senior-most presidential candidate of the day for a third time. But as in all waltzes, he eventually chose a side, and put pen to paper. And then tried to negotiate more favourable terms. In Kenya, child, we do things different.

From the moment he - well, his secretary-general - signed the coalition agreement, our senior counsel has bitched about everything. It is clear that he thinks he is special. His inflated ego cannot countenance that there is anyone else who holds greater political weight. And because of his special nature, he wants to take the No. 2 slot on the ballot, and a lion's share of political positions (and the power the positions imply) in the bargain. And he is not amused that his coalition partners do not recognise the legitimacy of his demands. The suggestion that someone else might make a better fit (another senior counsel with a hard-eyed approach to political combat has been suggested as a better running mate) has driven him and his allies to issue threats, both veiled and unveiled. "Unconstitutional" has been bandied about with wild abandon.

It worries me that senior lawyers, senior counsel no less, have forgotten the basic rules of lawyering when it comes to contracts. I can excuse lapses by people who hold PhDs in communication sciences when it comes to contracts - but only barely. They rely on lawyers to parse the written and unwritten rules of contract law. But how a senior counsel comes to allege that (a) he didn't read the contract and (b) he didn't get a copy of the contract and (c) the contract he signed is unconstitutional baffles the devil out of me. Now it might be that all three are true (undue influence and coercion can be the basis for all three scenarios), but only a child will believe that what we are witnessing is anything but the political equivalent  of buyer's remorse. Our wakili didn't want to sign the contract; he didn't know what to negotiate for; he was afraid to ask for a copy of the contract; and now he wishes he had gone with the other suitor who seems to have a bottomless pit of cash.

He should just burn this bridge.

Unfair snickering accompanies mention of fences and watermelons when this man's name is mentioned. Unfair but eerily dead right. He would do his tattered reputation the power of good if he simply burnt his last bridges with his coalition partners, especially the senior-most coalition partner. He should take a stand and kama mbaya, mbaya! He and his acolytes should stop grovelling. They should go it alone, if that is what their hearts desire. It is the only way they can redeem a measure of self-respect. If not, they should wait their turn outside the principal's office like everyone else.

Gaslighting won't work

When doubts are raised about the Chosen One at this year's general election, the doubts are not always motivated by animus. There are those among us who do not appreciate the hectoring tone adopted by Lil J, as some Twitter wag has taken to calling Junet Mohamed. Nor are we amused by the constant stream of twitter diatribe from the one Miguna Miguna calls the Fat Toad of Buffalo. As we have demonstrated on countless occasions, Kenyans are not morons. We have not been bamboozled in the political choices we have made since the halcyon days of "Yote Yawezekana Bila Moi". So the leadership of the Azimio la Umoja One Kenya Tours and Safaris should stop with the lectures and subliminal intimidation tactics.

The same goes for the putative saviours of the Republic in the Kenya Kwanza Wheelbarrow CBO. Just because Rigathi claims that he and his compadres have been he victims of tyranny does not erase the fact that Rigathi was a District Officer and that his preferred candidate was an energetic promoter of Youth for Kanu '92 (Y92) and that by the time they were done with the first multiparty elections, inflation was out of hand, at least one opposition presidential candidate was dead, land clashes had displaced tens of thousands of Kenyans, and Nchi Ya Kitu Kidogo had become a painful reality.

The point of my screed is that the rival political campaigns must take heed that Kenyans will decide; it is not boardroom mechanisms that will bring forth the Fifth President of the Republic. No amount of maneuvering and manipulating and intimidating will make Kenyans forget the stakes of the general election. If Baba is the choice of the majority, so be it. If Wheelbarrownomics is the winning formula, the ballots cast will be proof of concept. But enough with the gaslighting.

Snatching defeat from the jaws of victory?

Knowing what we know, and seeing what we see, I am baffled by the lengths that senior members of the Azimio-One Kenya Tours and Safaris will go to set their house on fire three months before the general elections, and thereby jeopardising Mr Odinga's chances of becoming The Fifth. First it was the ham-fisted wooing of Mr Musyoka, SC, away from the Kenya Kwanza wheelbarrow. You got the impression that Mr Musyoka, SC, had been mugged on his way to City Market to buy fish for the weekend. There was little in the way of finesse as he finally joined the Azimio agglomeration. And it got worse from there.

There were unpleasant accusations that none of the signatories had read the coalition agreement. There were hilarious snafus as premature whinging over Deputy President slots were mouthed in disparate barazas before lacklustre crowds. The impression that the mugging had morphed into a hostage crisis has only gained credence in recent days with the appointment of a panel to choose Mr. Odinga's running mate. The Azimio mouthpiece, a USA-based law professor, and an excitable Migori MP have done much to undermine confidence in Mr Musyoka's camp that he is, indeed, the chosen one, demanding that he shall face the same panel as other worthy candidates.

A Kitui MP, and his Ukambani cheering squad, have lambasted the panel-beating taking place in the search for a running mate. They are reinforced in their intransigence by an impeached ex-jailbird seeking gubernatorial glory in County 001. What they have done, in a weird sort of way, is to affirm how low one of Mwai Kibaki's Vice-Presidents has sunk in the political premier league. He can only trade on his glory days. He has little to show for that glory. If he isn't careful, the unfair tag of "has been" will wrap itself around his neck, albatross-like, and strangle his political career like a boa strangling a wee lamb.

I spent a few days with my very aged grandmother in Sawagongo. We ate fish and kuon. We drank copious amounts of clay-pot-chilled water (goodness, the humidity of Gem is something else). And we flirted with the heresy that the Wheelbarrow Acquisition and Distribution CBO may offer a better future because, despite it all, it has a less foot-in-the-mouth approach to things (sexist and misogynist rants of its Cosmo Chois notwithstanding) than Azimio-One Kenya Tours and Safaris.

I can understand the desperation of the Senior Counsel to be on the ballot one more time. He has. nothing to fall back on if he is left out in the cold. I can understand why his acolytes are threatening mass walkouts out of the coalition. They are only relevant if their fantasy of political supremacy is affirmed by the choice of the Senior Counsel as running mate. But politics based on desperation has little chance of persuading the voters to cast their ballots for them. It is, frankly, a little off-putting if not downright creepy. Sadly, though, the one Miguna Miguna calls the Toad of Buffalo cannot see his nose for the world. He will continue to pen increasingly ill-advised screeds. He will continue to tweet like a teenager. He is a harbinger of the drubbing that the Azimio Tours and Safaris is inviting.

May Toto win bigly

Bomet County made me so happy. Regardless of the final outcome on 9th August, the members of the United Democratic Alliance of Bomet County nominated Linet "Toto" Chepkorir, a precocious, confident and talented twenty-four year old, to stand in the election for woman representative at the forthcoming general election. That made be happy. She is proof positive that when given an inch, the youth will not wait to be invited to the table; they will take the inch, go the mile and seize the opportunity. I just hope she doesn't behave like the moron from Meru who got sidelined by a flashy new SUV.

I hope she wins. I hope she prevails over old and experienced political hands. I don't care that she knows little about "national politics". That shit doesn't matter. She is intelligent. She will learn the ropes fast enough. After all, it is by being underestimated and dismissed by the more experienced hands that she has demonstrated her political mettle. Why shouldn't we think that she will manage the poisoned waters of Nairobi?

I left the label of "youth" a while ago; I am not in the same league as Ms Chekorir. She is miles ahead of me in offering leadership to a nation starved of it. By all accounts, she has been a leader for as long as she has had the opportunity. Kenya needs more young people like her to step up, and push out the old guard. My prayer is that she makes it to the National Assembly. My prayer is that she carries forward the torch that was left to die down by the co-option of the firebrands of the Second Liberation. My prayer is that she kicks butt.

It is not a race thing

"a race thing"

I don't know what to is about the troubles that we face that automatically leads us to assume that "Black people lack something". One of my seniors at the Bar is afflicted by this syndrome. Some of the more libertarian-minded among us think that Black Africans are incapable of appreciating the liberty that caucasians seem to take for granted. In any case, these Black people express an inferiority complex that is both baffling and complex.

I have had the privilege of visiting the United States and Australia; I stayed for three months in Accra and have made several forays to Arusha, Dar es Salaam, Zanzibar and Kigali. My visits to Washington DC and Sydney invited the casual racism that seems to pervade those world capitals, while my stay in Dar es Salaam and Accra was like a coming home event. I was among my people. I was among friends. That is not the same in some bits of my country; I can count the number of times my visits to Malindi or Mombasa have not been accompanied by casual racist bullying even by fellow Black Kenyans.

But at no point has it ever occurred to me that Black Kenyans were in any way inferior to the apparently "developed" Europeans and North Americans. Our economies and politics appear to be shambolic, but can you imagine trying to access basic health services in a US hospital? Your Blackness, successful or not, will not insulate you from the scorn of the British upturned nose. Witness the degrading language used to describe Rishi Sunak, the British chancellor of the exchequer.

Kenya, and many African countries, face many structural challenges. But these challenges are not as a result of the fact that we suffer congenital racial defects. That is not a question that should occur to us. We can point to the corruption that is supercharged by the presence of corrupt Europeans and North American government officials and multinational CEOs. Or the flawed economic and financial policies that underpin the global economic and financial order overseen by the twin succubi of the World Bank and IMF.

I promise you, brethren, that being Black is not a defect. It is many things, but it is not a defect. Don't fall for the trick of associating Black with evil, with bad, with wrong-ness. I can't articulate why I know Black is not wrong; I feel it in my bones and in the depths of my soul. I am not racially inferior to anyone. My people are not racially inferior.

IT. IS. NOT. A. RACE. THING.

Pray for me, Argentina

We prize seniority in my profession but I think that things have changed so much that seniority is almost meaningless. One of my seniors - he was called to the Bar more than a decade before I was - loves his senior status so much that he thinks that it confers on him great technical skill. If it were skills as a litigator, I would concede without a fuss that he stands heads and shoulders above many seasoned practitioners of those dark arts. If it were skills as an arranger of complex mergers or acquisitions, there are few who can hold a candle to him. However, when it comes to the drudgery of legislative drafting - the ouija-board-reading of legislative intent and the parsing of constitutional and legal language - the poor man is a minnow in a pool of piranha.

I mention all this to show the pernicious impact that seniority-above-all-else has on effective work. Many "seniors" are blinded to the malodorousness of their decision-making; the infallibility they believe seniority has conferred on them leads them to make professional and personal choices that often prove calamitous.

At work, I have been grappling with this dilemma. I am presented, more frequently these days, with legislative drafting work of such mind-numbing, cretinous dullardness that I must believe that I am being punk'd. There is no way senior members of the Bar would append their names to what appears to be the product of a political backwater like the dark smoke-filled backrooms of Kenya's political parties. The kind of schlock that is presented for "perusal, concurrence and approval" presents such grave risks to the Republic that I fear I may say something so impertinent and presumptuous I may yet destroy the government of the day.

It all boils down to the Seniority Syndrome and the fear of underlings to point out, quite rightly in my view, the utter nakedness of our seniors. What the seniors can't or don't care to see is how time-consuming it is to wind back their outrageous legislative suggestions and the rancour it engenders between teams - TEAMS! - of opposing underlings. Quite frankly, it is mentally draining and psychologically damaging for the less sanguine among us.

I had naively believed that the "retirement" of the more publicly reckless members of my poisonous profession would have calmed the waters. I was so very wrong. They left behind minor turd mountains in their wake that are now being trudged through the corridors of the State looking for professionals' desks to despoil. It is an election years and every bad legislative idea is being revived in the hopes that the distracted members of the National Assembly and Senate won't notice. Civil society has been so undermined by the refusal by its Robert Mugabes to retire that it is doubtful that there's a modern-day Mwalimu Mati to poke giant holes in those terrible, horrible, no good, very bad ideas.

So I sit and stare at these pages, praying for the ground to open up and swallow the authors of my distress, but realising, with despair, that those whom the Gods wish to punish, they first introduce to members of the Senior Council Bar. This is my personal hell. Pray for me, Argentina.

Lessons from the USA

What do you remember of the process that led to the appointment of Chief Justice Martha Koome? Do you remember how many applicants there were for the job? Do you remember that they were “interviewed” by the Judicial Service Commission or that they were “vetted” by the National Assembly? The interviews and vetting of the ultimate nominee were televised but I can honestly declare that I don’t remember much about it. Maybe the allegations of plagiarism leveled against an applicant by her students and the smug arrogance of another applicant, jacket off, that had the whiff of “Mta-do?” come to mind. Maybe they don’t.

In contrast, even from 8,000km away, I can recall key moments in the vetting of Associate Justices Gorsuch, Kavanaugh and Barrett by the United States Senate. Despite the obvious histrionics of the highly motivated partisans, the public vetting of the justices revealed a considerable amount about their judicial principles and philosophies. As has the most recent vetting of Judge Ketanji Brown Jackson. The degree to which their judicial records have been publicly scrutinized even before they sat before the US Senate was illuminating and when they were sworn in, it was clear where they stood on key constitutional and legal principles. I challenge you to say with confidence what Chief Justice Koome’s or Supreme Court Judge William Ouko’s constitutional and legal viewpoints are. (Both were appointed to the Supreme Court at the same time.)

Instead, the main topic of national discussion remains who will be president and even this discussion is not held on the basis of the political philosophies of the candidates rather than their perceived ability to mobilize tribal and ethnic vote banks in their favor. How the US chooses its judges is filled with political spectacle but the spectacle is not an end in itself; it serves the valuable task of indicating to a high degree of confidence whether or not their judicial officials can be trusted to do their job with impartiality and fairness. How Kenyans choose their Supreme Court judges and, by extension, their presidential candidates does not inspire any kind of confidence. Rather, it reinforces the feelings of nihilism that seem to pervade so much of our lives these days.

In the coming week, the US will have a new, highly respected and eminently qualified, associate justice of the Supreme Court of the United States while Kenya will be kept in the dark on whether the Supreme Court of the Republic of Kenya has been able to answer a simple question: what is the Basic Structure Doctrine and does it apply to the Constitution of Kenya. The High Court and Court of Appeal were able to answer this question, but it is only the Supreme Court that has the power to declare whether or not the lower courts were right. Instead of framing the question in this way, Kenyans have been encouraged to focus on two irrelevant and interrelated questions: does Kenya need the recommendations of the BBI and does the next president have an obligation to implement the BBI recommendations or not?

In my opinion, BBI (as catch all for the constitutional review issues raised for the purposes of securing the election of Raila Odinga and the continued engagement of Uhuru Kenyatta in national governance) is the wrong question. We must settle for posterity the question of the nature of our constitution’s basic structure, how it limits the procedure of constitutional amendment, and how the people are to be involved and engaged in the process of its amendment. For that question to be settle, other political and constitutional questions must be settled as well: is the president a king? Can parliament ignore its core constituencies? Can the judiciary take an activist posture in defense of the constitution’s basic structure? Instead, tragically, we are entertained by yellow-clad politicians parading themselves like TV starlets.

The way of the future

The clock keeps ticking inexorably towards 9th August 2022 when Kenyans in their millions will be asked to cast their ballots in favor of six different categories of candidates. The office that has elicited widespread excitement is the presidency, the highest political office in Kenya. The person to be nominated as a member of a county assembly in each of the counties does not elicit any attention by the chattering classes. We have been corralled into thinking of the presidency as the be all and end all of the 2022 general election.

Towards this end, the horse race has boiled down into a two-horse race: the incumbent Deputy President and the former Prime Minister. The former has had a spectacular falling out with his boss, who has called him epithets that raise the question as to why he continues to hold his job. The latter has kept his hopes of victory alive through four separate electoral disasters, and this time around, he has the president in his corner.

Our obsession with the presidency has hidden something more profound, something that was hinted at in the selection of the deputy president as the flag bearer of his rebel alliance: the complete absence and marginalization of young people from all levels of power. The upper echelons of institutions of power: political parties, faith ministries, corporate boards, civil society organizations, trades union, and the like are dominated by old men. Young people, women, members of marginalized communities and persons with disabilities are notable by their almost total absence in these offices. What’s worse are the platitudes that keep being repeated: the youth are the future of this country.

A common refrain is that the aged must make way for the young. What is never canvassed is the harsh reality: no one gives up power without a fight. Makau Mutua will not give up his chairmanship of the Kenya Human Rights Commission. Raila Odinga will not give up his leadership of the Orange Democratic Movement Party. James Mwangi will not give up the CEO’s office at Equity Bank. Bishop Muheria will continue to fulminate against hot-button cultural issues for as long as he white-knuckles his grip on the Arch-Diocese of Nyeri. Old men are here to stay and the only way they will leave is if they are pushed out by young people.

Young people must abandon the ayomyom philosophy they have been spoon-fed for the past thirty years. Young people must stop waiting to be chosen. Some of us have had opportunities to lead that we have shirked. We refuse to take up leadership in the home, in our communities, in our faith ministries or in our places of work because we fear failure. We have gotten used to “success” as the only metric that matters. We are no longer permitted to trial-and-error our way through life like our parents did. It is either success or bust. This has crippled the inter-generational transfer of power and wealth.

Old and no-longer-imaginative men have taken advantage. They have learnt the art of dishing out morsels to young people. There is a presidential candidate who has become notorious for distributing wheelbarrows to young people paid for out of billions that he cannot account for. What is amazing is that there are notable human rights defenders who see nothing wrong in defending this short-sighted and reckless scheme. Another p[residential candidate is notable for promising “free” money to young people out of taxes paid by the same young people or from the sweat of those young people. Listening to the two, it is obvious why tracking polls indicate that millions of young people are ambivalent about turning up at the polls in August.

But young people who should know better have done little to wrest leadership from the ancien regime. The CEO of the KCB Group has failed to mentor a younger person to succeed him such that his board has allegedly handed him a secret one-year extension to his contract. The presiding bishop emeritus of the Christ is the Answer Ministry has refused to fade into the background, popping up, on request and unilaterally, at major CITAM events. The Secretaries General of Kenya’s political parties are often young men, but they operate as vassals of their older, slower bosses rather than as the vanguard of the youth that seek political office. That dinosaurs like Musikari Kombo and Dalmas Otieno still have ambitions of high political office is an indictment of the young people who oversee operations of political parties.

Things will not change unless we abandon - truly abandon - business-as-usual. Kenya is ripe for a youth revolution. All it needs is the right spark and it will sweep away the old, decrepit and corrupt old guard. That spark, sadly, will not be lit by young people who have been taught to believe that wheelbarrows and six-thousand-shillings stipends are the way of the future.

Things will not change

This is the much that I found out about the events of that Friday. A foreign diplomat driving an SUV hit and seriously injured a commercial motorcycle rider. She left, maybe fled, the scene of the accident. She was stopped by a mob of other motorcyclists, who may or may not have included commercial motorcycle riders. A policeman attempted to ascertain the nature of the accident, the extent of injury and damage, and who may or may not have been culpable. The policeman failed to control the now-unruly mob. The foreign diplomat was sexually assaulted. Kenyan social media found out, freaked out and the internal security ministry got involved. The president ordered a crackdown and for five or so days, police arrested motorcycle riders on any pretext, detained their motorcycles, demanded tens of thousands of shillings in unspecified fines, and prosecuted a few for the assault on the foreign diplomat and others for traffic related offenses. It was all so familiar.

I have little love for commercial motorcycle riders, even the ones who provide me with efficient services. My experiences with them have been mixed at best. I have only ridden pillion once and it is not an experience I will repeat so long as they operate the same way they do today. My experiences, though, are not unique.

If you have had occasion to drive, be driven or walk into and out of the Nairobi Central Business District, you will have encountered commercial motorcycle riders. If they are not ferrying goods or passengers to and from various addresses, you will find them parked in strategic places, often on pavements, or roundabouts, bus stops, double-parked in car parks, and in the middle of busy intersections and roundabouts. They occupy spaces that are reserved for other road users without apology or care.

When they are in motion, they ignore all traffic rules, including traffic lights, lanes, or direction of travel. They will overtake on blind corners, on the wrong side, in the wrong lane. They will speed through red lights. They will speed through pavements. The majority of commercial motorcycle riders swill ride without any form of safety equipment, neither for themselves nor their pillion riders. On a few occasions, they are used to ferry violent criminal offenders and petty purse snatchers. In one hilarious video doing the rounds, a policeman loses his mobile to a motorcycle-borne thief, and they make their way off by driving into oncoming traffic on the wrong side of the road at high speed.

When they are involved in accidents, their compatriots will swarm the scene of the accident in solidarity with one of their own. As the unfortunate foreign diplomat discovered, if the accident is with a woman motorist, the outcome can sometimes be tragic. On other occasions they have set motor vehicles on fire, and violently assaulted other motorists such that they required medical care or hospitalization. It is not too far a stretch to state that if a motorist and a commercial motorcycle rider had an accident, the situation is more likely than not to turn violent.

As with the rest of the traffic system we have, motorcycle riders have become a law unto themselves. In my opinion, this is because of the remarkable accommodations we have made for other kinds of road users: the president, members of his cabinet, senior members of the public service, parliamentarians, well-connected businessmen, ministers of faith, and the like, are allowed to flout all kinds of traffic rules. The CBD is a canvas of the traffic offences that the police allow to be perpetrated on a daily basis. Therefore, it was wholly shortsighted to target only commercial motorcycle riders when the rest of the motoring public was allowed to carry on as before. This kind of discrimination is why there are those conspiracy theorists who think that the crackdown was meant to create a crisis that politicians could solve rather than take the first steps to addressing the deteriorated traffic system we have at present.

I have no faith that things will improve or change. I know that for a few days, commercial motorcycle riders and pillion riders will wear helmets, reflector jackets and other safety gear. I know that they will obey some, if not most, of the traffic rules. They will be respectful at accident scenes. They will restrain themselves from resorting to violence and base instincts at accident scenes. But this will not last long. In time, the police and their commanders and the worthies responsible for policy will move on to more important things - like the 2022 general election - and the traffic “sector” will revert to default settings. Only the naive think that things will change.

Kizuri chajiuza

There is something unseemly about civil servants seeking praise for their work from the hosts of TV shows. I don't know if children are still taught the Kiswahili saying, "Kizuri chajiuza, kibaya chajitembeza", which I always thought to mean that if one does good, praises will come unbidden but the poor worker always tries to tell a better story (about himself) than there is to be told. If they aren't, I hope the Kiswahili teachers will bring back the saying and emphasise the moral value of doing good without expecting praise.

When a senior civil servant says "We work until 5 a.m.", one has to wonder how badly he and his colleagues do their work to justify routinely working till the wee hours of the morning and "Operating on one or two hours of sleep". Or why he would say it with that tone of false modesty that is obviously calculated to elicit a bit of praise.

The affairs of State (and government) are difficult to manage at the best of times. They require a certain measure of dedication and sacrifice at the highest levels. The efforts of the diligent public servant are rarely praised and quite often misrepresented. If one went into publics vice for fame and glory, they should have chosen the elected route and not the career one (though career elected officials are to be expected, every now and then). The affairs of State require one to know what they want to do, how they want to do it, and whom they need in their corner to get it done. In Kenya, Mwai Kibaki satisfied all three requirements to various degrees of success and his achievements are truly, his achievements. Even with the albatross of the Post-Election Violence hanging around his neck, he could creditably demonstrate what he had achieved in what turned out to be a thankless job.

His successor will not be remembered with fondness by posterity. He may have known what he wanted to achieve, but it is plain as the nose on your face that he didn't know how to go about it or whom he needed to get it done. The Big Four Agenda is a pale imitation of Kenya Vision 2030. Its Universal Health Care is notable for the fiasco that was the Medical Equipment Leasing Scheme and a cruel reminder of "Mafia House". Food security has been shown to be a sham in every year of his reign by the spectre of famine that has stalked the former Northern Frontier and the hardship areas of the former Coast Province. The unremitting high cost of electricity (because of ill-conceived power purchase agreements with well-connected buccaneers and brigands) has undermined the goal of manufacturing and job creation. The "10,000 affordable housing units" he has promised time and again has been greatly undershot.

The men and women labouring on his administrative agenda till 5 a.m. don't seem to have achieved much as they burn the candle at both ends. And those among them seeking elective office are the ones most interested in telling tall tales about how hard they work. They must be deathly afraid of being labelled "failures" by the people from whom they will seek votes.

This shouldn't come as a surprise. We all have to manage our press to minimise bad stories and emphasise good ones. But when we substitute good work with good press, work inevitably suffers. These people are obsessed with PR and it shows. The work they do is guided by eliciting positive PR, rather than positive outcomes. They are very good at branding, but the branding is mere camouflage for projects that have not been fully thought through at a policy level. They are the true manifestation of "kizuri chajiuza, kibaya chajitembeza".

Look how far we done fell

What is your relationship to your leader? Are you there just to follow orders, or are you ever proactive? Do you have heartfelt alignment with your leader around a shared purpose? Do you ever come up with your own ideas or contributions for the common good? Are you positive and upbeat about the direction of the group? Do you build your own skills and competencies or do you always wait for them to be handed down? - Sunny Bindra (We spend so much time on leaders. What about followers?)

There are no naturally-occurring vacuums on this planet. The national ethos when it comes to leadership and followership demonstrates the interconnectedness of things. One reinforces the other. Bad leaders are often the result of bad followers and bad followers are the result of bad leaders. But it is not all a binary arrangement: it is how we end up with outliers in life.

A series of decisions were incrementally reinforced and ended up defining the nature of our relationships to our leaders, whether in families, private organisations or Government. One of those decisions was to allow lies to slide. In families, children are taught that lies are wrong. In many families, children are punished when they lie. But children are not blind; they see the lies that many adults in their families engage in on a daily basis, and how the adults justify those lies. Children witness the hypocrisy and adapt to it; they learn how to lie without being caught in the lie, and to justify their underhandedness, just like the adults in their lives.

The same is true of organisations. Lies at the top will be reflected in lies at the bottom. If you have been to a large garage and been offered a "discount" by the mechanic that is not reflected on the worksheet signed of on the boss, then you know this to be true - and a reflection of the trickery the boss engages in with his suppliers and other stakeholders. If you've witnessed the minister of faith preaching about marital fidelity while he seduces members of this congregation, you know that truth-telling, regardless of context, is no longer admirable.

When it comes to Government, the evidence is manifest. Take public transport as an example. You must have seen the hundreds of unroadworthy PSVs that clog the streets. Or the sub-standard multi-billion shillings roadworks that don't survive first contact with rains. They are a manifestation of the lies government officials tell to each other and to the people they serve. They are manifestations of the lies that are accepted among government officials and by us, the people they serve. It is no longer fashionable to call out lies and liars. We mostly go along to get along. No fuss, no muss. Liwe liwalo.

Our relationships are but on lies. It is the best explanation for why we seem incapable of being good followers or choosing good leaders. We turn blind eyes to how so and so became a billionaire because we want to follow the same malign path to great wealth. We turn blind eyes to his so and so stays at the top of the parliamentary establish because we wish to employ the same tricks - bribery, ethnic jingoism, violence - to ascend to the same heights as he. If a few people get injured, maimed or killed, so what? No one is saying anything about it so why should I?

Over the next six months, men and women who have pretended to be paragons of virtue will reveal their true colours. Some have already done so. They will reveal that lies don't bother them; that greed doesn't bother them; that murder, violence and mayhem are their stock-in-trade. Some will be offered national platforms to share their destructive agendas. Some will manipulate social media platforms. Some will assiduously support them. The vast majority of us - silent, morose, cowed, afraid, traumatised - will watch and seethe and pick the wrong side. The few voices of conscience still willing to speak out will be suppressed. Look how far we done fell.

The Great Potato War

When my KCSE results arrived, and the shock of having passed had receded, my parents and I arrived at a decision that would have profound consequences on my future. Because of my less-than-reliable views on hard work, it was decided that the deep end of adulthood was what I needed and I was, by mutual agreement, despatched to the Indian subcontinent to read law. That is where I encountered the US multinationals that got me hooked on junk: Macdonalds and Kentucky Fried Chicken (KFC). The Maharajah Mac, dear brothers and sisters, is the heroin of burgers. But this is not the story of my Maharajah Mac pining.

This past week, Kenyans on Twitter, the redoubtable #KOT, waged a war to end all wars against the Kenyan franchisee of KFC over the refusal by the franchisee to source its potatoes from Kenya on the laughable grounds that Kenyans couldn't meet the KFC standard. I am not here to relitigate the finer details of the war, save for one of the issues that cropped up: industrial policy.

I have been privileged to witness the making, unmaking and remaking of various policies. It is far from a pretty sight. Policy-making requires the kind of patient administrative work that the current regime lacks in its senior-most ranks. There are senior government officials who labour mightily under the illusion that all they need to do is snap their fingers, and shillings rain down like manna from heaven - and they consider this the epitome of policy-making. It is how someone can rouse themselves from the comfort of their beds and declare that Kenyans will not access public services unless they are fully vaccinated. And it is this kind of policy-making ignorance that invites the demands that were made last week to "ban the import of frozen potatoes from Egypt".

Policy, generally, is not overly complicated. Industrial policy, as with agricultural policy, on the other hand, can lead one to tear their hair out. There are so many moving parts that coherence is often sacrificed at the altar of political expediency, corruption and bureaucratic laziness. Anyone who has watched as Kenya's sugar industry cratered and billions were wasted on "sugar reforms" will surely admit this to be true. The potato industry seems to be a victim of the same malaise that afflicts sugar, maize, bean and coffee. The current nabobs of the agriculture sector, led by the indefatigable minister, are no longer interested in a coherent agricultural policy and their counterparts in the industrialisation ministry seem powerless to rein in bad policy ideas.

Nothing epitomises the policy incoherence more than the utter failure to scale up market facilities at the local level. If you have had the privilege of passing through Wakulima Market at four in the morning, then you must surely wonder how lorry loads of tomatoes and other agricultural produce end up dumped outside the market because the market does not have bulk cold storage facilities, sixty years after it was established. The same is true nationwide., Indeed, even in the case of NCPB's silos, modernisation seems to have been abandoned and the national silo infrastructure is no longer fit for use.

The continued lack of a coherent and comprehensive policy, one that is founded on the objectives of Kenya Vision 2030, is one more indictment of the current regime that has obsessively built infrastructure whose short-term and long-term economic efficacy is doubtful at best. The billions squandered on floating bridges and last-mile connectivity could have established a robust agriculture infrastructure programme that would have considerably reduced post-harvest agricultural losses and facilitated the development of a vibrant domestic commodities market. The Great Potato War is merely the latest proof of the utter failure of the agriculture sector nawabs.

NMS Must Go

The Environmental Management and Co-ordination Act (No. 8 of 1999) is one of the most mind-numbingly boring pieces of legislation to ever manage from the National Assembly of Kenya. It is written in such a stodgy and turgid style that only a masochist would read it for fun. It's ennui-inducing text notwithstanding, it is a law of the Republic and must be obeyed whenever someone sets out to do a project in Kenya. It binds everyone, regardless of their station in life. Barring the nitpicking of members of my tribe, where it says "shall", it commands one to do or refrain from doing that act.

It states, at section 58(1):

Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.

The Second Schedule classifies projects into low-risk, medium-risk and high-risk.  In my opinion, what is being undertaken in Uhuru Park is a low-risk project (small scale rehabilitation, maintenance and modernization of projects), for which a project report should have been submitted to NEMA and, should NEMA have directed, an EIA should have been undertaken. In flagrant disregard for section 58, none of this was done and it has taken a petition by the Communist Party of Kenya to put a stop to the goings on in Nairobi's largest urban green space.

We have been fed tonnes of propaganda about how military officers are so by-the-book and honest that they will right the developmental ship of state from its dangerously parleys state. I have expressed my scepticism about the soldiers donning mufti and playing at civilian administration. I am not persuaded that soldiers - whose business should be to high wars - are well-suited to the mess coalition-building of varied interests that is necessary to the running of a city or the management of its affairs. Even senior military officers live under the rubric that all orders of their commanders-in-chief must be obeyed, regardless of the constitutional fig leaf of "lawful orders". The general in charge of the Uhuru Park project has not demonstrated a sufficient capability in civilian coalition-building to believe that he is capable of complying with anything other than the direct orders of his commanding officer.

We know enough about the disfunction in NEMA and other regulatory bodies to know that the cost of undertaking any project in Kenya is orders of magnitude higher than it needs to be. The solution, however, is not to undermine the laws of the Republic no matter how noble a project is claimed to be. The Uhuru Park fiasco is proof that military generals lack the creativity needed to undertake any major project in the city. Messrs Sonko and Kidero were terrible governors but they understood the need to consult widely and involve all affected parties when undertaking projects, and when the projects foundered for whatever reason, they adjusted, adapted or pulled out altogether, which is the essential component of democratic development.

The poor man charged with improving physical planning services in Nairobi City is incapable of consulting effectively; has no clue about the political and social impacts of his my-way-or-the-highway approach to leadership; believes that the ends justify unlawful means; and will not admit that he is in waters he can't navigate or that his appointing authority was wrong to appoint him in the first place. The Environment and Land Court may yet reverse its injunction against the Uhuru Park project and if it did, that would be entirely in keeping with the doctrine of the rule of law. The reason why the injunction exists in the first place is that the project proponents in Uhuru Park shat on the rule of law. Whether or not the injunction is lifted, the Nairobi Metropolitan Service cannot continue to operate. It should be disbanded and its officers barred from ever serving in the public service again.

What is left unsaid says it all

We teach our children that violence is not the answer. We, sometimes, reinforce the lesson, with violence. Therein lies irony, but that is not the reason for this post. If there's one lesson that we have taken from years of childhood development studies it is that violence forms a poor foundation for the education and discipline of children. But in situations where time and other resources are scarce, the instinct to chart familiar, violent, paths overwhelms the instinct to spend more time and resources in building new systems for the education and discipline of our children. It is a schizophrenic hypocrisy, of sorts.

I have watched with amazement as the Cabinet Secretary for Education and his internal security counterpart, together with other senior government officials, muse publicly that it is time to reintroduce corporal punishment in schools as one of the solutions for the waves of school unrest and associated cases of arson. Far better thinkers of childhood development can tell you why violent coercive force is no longer the preferred method for educating or disciplining children. I intend to show you why it is wrong for governmental officials to casually and recklessly recommend the usurpation of constitutional prohibitions.

In Kenya, Cabinet Secretaries and Principal Secretaries swear an oath to obey, respect and uphold the Constitution of Kenya and all other laws of the Republic. The Constitution imposes an obligation on all Kenyans to protect children from all forms of violence. In my opinion, this includes protection of children from corporal punishment, which is a form of violence. The Basic Education Act, which is a law of the Republic, states that one of the principles of the provision of basic education is the elimination of  corporal punishment.

The oaths that the Cabinet Secretaries and Principal Secretaries swore means that they cannot casually propose the reintroduction of corporal punishment without first amending the Constitution and repealing the provisions that protect children from any form of violence. Furthermore, they cannot declare that they "do not believe in children's rights", because it would amount to saying that they do not believe in the Bill of Rights, which would bring into question their fitness to continue serving in Government.

I have watched with trepidation as senior members of the Government have swatted away their constitutional obligations whenever it inconvenienced them. A senior member of the police service defied court orders and was convicted of contempt and ordered to serve a term of imprisonment of four years. He has also disobeyed the latest court order. Several Cabinet Secretaries have also been convicted of contempt of court; they have all defied the sanctions imposed on them by the courts. No less than the Chief Justice of kenya has watched as some of his orders are defied by Government officials.

Meanwhile, the police service is wielded as a sledgehammer against the hoi polloi should they deign to set one toe over the line. Quite often, police action in the enforcement of the law ends tragically; men, women, children and infants have died at the hands of police in the enforcement of the law. But when it comes to senior members of the Government, regardless of the scale of their alleged offences, they are treated with kid gloves even as they thumb their noses at the rule of law. This is not a satisfactory way to build a culture of constitutionalism in Kenya. Indeed, I would go so far as to say that the true threat to the constitutional order is the reckless disregard for the rule of law by senior members of the Government.

In my opinion, any governmental official who declares that children do not enjoy any constitutional protections is not fit to hold public office; any government official who defies the orders of the courts, is not fit to hold public office; any governmental official who undermines the rule of law in any way must be removed from office and barred from public service forever. But this is half the story, isn't it? The other half is left unsaid because that is what we do and who we are.