Thursday, December 29, 2011

Vision 2030, Biotech and the Two-thirds Rule.

Larry Summers, when he was the President of Harvard University (2001 to 2006), suggested that the under-representation of women in science and engineering could be due to a "different availability of aptitude at the high end," and less to patterns of discrimination and socialization. The Economist recently ran a special report on the rise of women in the workplace and noted that though the numbers of women in the sciences and engineering were on the rise, they still trailed far behind those of men. It is thus, with great satisfaction that in the recently released results for the KCPE more girls did well in the science exam than boys. One can only hope that they carry on with this stellar performance in the KCSE and take science-based courses at university and pursue science-oriented careers 

Kenya is in the process of implementing Vision 2030 that aims at turning the country into a middle-income economy. One of the pillars of Vision 2030 is the development of a manufacturing sector that does more than just assemble cars or manufacture fast moving consumer products. For the attainment of the objectives of this pillar, it is imperative that we nurture and develop the scientific talents of our youth, giving them the scientific skills necessary to compete against other 'knowledge-based' economies, especially the Asian Tigers and the Eastern European nations rising out of the ashes of the Iron Curtain. It is time that we discounted the notion that girls are not well-suited to the sciences or engineering and instead, encouraged more of them to take their rightful places as the engines of scientific innovation and development.

By necessity, our secondary, tertiary and university systems must be re-jigged to give more emphasis on the sciences than is the case currently. More importantly, higher education must be reformed to take advantage of the hundreds of thousands of potential students in order to identify and nurture the scientific talents of those who will make it out of our dismal secondary system with their scientific talents intact. It is the innovators who will be the linchpin of the Vision 2030; without them, the armies of lawyers, bankers, accountants and salesmen will have nothing to do. For this nation to advance economically, it can no longer be an exporter of raw material alone but it must begin the process of exploiting the natural resources available with an eye to capturing a major share of the global knowledge industry.

While Kenya may not be blessed with abundant reserves of coal, iron ore, precious metals or oil (yet), we are rich in biodiversity. Our shambolic policy thus far has been to allow the West to access this rich biodiversity by paying us a nominal fee, and selling to us at exorbitant rates the products of whatever innovations that arise from them. This is a policy that must be changed. Even with the meagre resource at our disposal, our scientists have made significant strides in exploiting our rich biodiversity; all that is required is a clear policy on how we can develop an industry around it. An idea that should be explored is the role that universities and Kenya's private sector can play in exploiting this biodiversity, especially through partnerships and increased investment. Our state universities, especially the University of Nairobi, the Jomo Kenyatta University of Agriculture and Technology, Moi University and Egerton University each have a slice of the skills needed to become powerhouses in biotechnology. It is time that they reviewed the way they are managed, especially the hide-bound rules from the Nyayo Era that have all but guaranteed their rising degree of mediocrity.

We are not going to become exporters of heavy machinery like China or India, nor are we going to challenge the domination of information and communication technology by the US and India, but we can make a dent in biotechnology given our rich biodiversity. If the Vision 2030 were hinged upon success in this area, then Kenya can claim to be the first economy to rely on scientific advancement in Africa. It is not inconceivable to make the leap to biotechnology, skipping heavy industry, especially today when scientific knowledge is known and disseminated widely. We did the same with mobile telephony, abandoning land-lines and adopting en masse mobile phones, developing innovations that have left competitors in the West and the rest of Africa scratching their heads in incredulity at our successes. The same can be accomplished with biotechnology; we only need to sieze the opportunity and exploit it to our advantage. If this is done, I can see the Two-thirds Rule being upended, with women dominating the field and men coming a pale second.

Wednesday, December 28, 2011

Beware the man bearing gifts.

There is something awkward about the rivals of Raila Odinga 'strengthening' their parties even when they are persuaded that they will be forming 'coalitions' and 'alliances' to stop him from ascending to the presidency. Stephen Kalonzo Musyoka has engineered a re-branding exercise for the Orange Democratic Movement Party of Kenya (ODM-K), bestowing upon it with the most unimaginative symbol (umbrella) and a name synonymous with betrayal (Wiper Democratic Movement). So too has Uhuru Kenyatta, retaining KANU as the acronym, but giving the party a new name (Kenya Alliance of National Unity). William Ruto is still trying to 're-launch' UDM, even though Linah Jebii Kilimo is its only Member of Parliament. Prof George Saitoti has put his money where his mouth is, launching a recruitment drive for the PNU (though the recruitment seems to be taking place only in his Maasai-land backyard). What unites these men (and it is only men) is their desire to ensure that Raila Odinga does not become Kenya's fourth president.

The 'party-strengthening' exercises are not designed to create strong, viable parties, merely bargaining chips when it comes down to choosing one man amongst them to challenge Raila Odinga at the ballot box. To my mind, therefore, these men are not really interested in the democratisation of the country, or indeed, their parties, but in ensuring that one of their own is the next occupant of State House. They have gone on record as being interested in the deepening and broadening of democracy in Kenya but their actions point to something less egalitarian; they are interested only in acquiring and retaining ultimate power at the expense of one man, and quite possibly, the rest of Kenya. Why then, should Kenyans repose their faith in these men?

Kenya is in a fragile state. The politicians' assurances that the scars of the 2007/2008 violence have been healed are too much to take, especially when one remembers the hundreds of families still living in make-shift camps, all but forgotten by their government.The state of the economy, many has alluded, is fragile because there are 'cartels' that intend to make a killing before the next elections. No personage less than the Secretary-General of the Central Organisation of Trade Unions alleged that these cartels were responsible for the persistent high prices of energy and the mysterious fluctuation in the dollar-shilling exchange rate. The demolitions and evictions taking place at the behest of the government have not made things easier for hundreds of families, creating an atmosphere of resentment and fear that may be exploited by politicians with an axe to grind. During the demolitions and evictions, the Members for Embakasi and Kathiani were quick to point an accusing finger at the Prime Minister and ODM. Ferdinand Waititu, the Embakasi MP, even purported to table documents in the National Assembly showing the Prime Minister's hand in the demolitions. In this context, it is not unreasonable to expect that the political environment will be fragile, to say the least. Violence, not so far below the surface, is still likely to erupt. Given the long memories Kenyans harbour of ills committed against them, this is not a possibility that should be ignored.

The Constitution of Kenya, which was sold to Kenyans as a panacea for all their ills, carries a great weight of expectation. In it Kenyans are under the illusion that the next government will go out of its way to ensure that all Kenyans are treated equally, that their rights will be respected and that the democratic gains made over the past decade will be enhanced. It is important to temper these expectations with an acknowledgment that our history is replete with missed opportunities and betrayals. If we are to make the advancement that we have been promised, and that the Constitution promises, it is imperative to remember that these will only be achieved by holding the men and women we elect to Parliament to account. When we fail to do so, we will be disappointed and betrayed and we may find ourselves at the mercy of a government that neither cares for our priorities nor protects our rights. It is for this reason that we must question the reasons for the new wave of party re-branding taking place nationwide. We must question whether we can trust the promises being made by these men, remembering that some of them sat pretty when thousands of Kenyans were lied to, arrested and detained without trial, had their taxes misappropriated and stolen, and betrayed at every turn.

A Motorist's Plea

The situation on Kenya's roads is dire. The situation in urban centres, especially Nairobi, Mombasa, Kisumu and Nakuru, is in the toilet. It is increasingly apparent that the state of motoring, and motorists, is out of control. It is not normal that not one of the thousands upon thousands of our motoring public is capable of observing the simplest portions of the Highway Code, even when there are Traffic Policemen present. It is downright dangerous for motorists to flout the rules in complete disregard of other road users, speeding dangerously and driving while under the influence of alcohol, narcotic drugs or other substances.

Many jurisdictions require that motorists undergo not just the initial training and testing to obtain a driving license, but periodic refresher training. Some have gone so far as to ensure that the period when a probationary license may be issued could be as long as 2 years. The penalties for traffic offences are usually stiff, ensuring that traffic offenders understand that driving is a privilege and not a right. In Kenya, however, once a person obtains a driving license, it seems that the state washes its hands of him, save for when a horrific road traffic accident occurs and there is injury or death. Traffic policemen play the role of nannies, keeping everyone on a relative long leash, allowing for all sorts of shenanigans on our roads. The rising death doll shows that the policy that has been implemented over the past twenty-five years has not been in the interests of the people.

President Kibaki's government has made great strides in modernising our road network, building 'superhighways' and retrofitting many dilapidated ones. It is time that we turned our attention to the quality of drivers and driving in Kenya too. Kenya Power successfully promoted an amendment to the Energy Act by increasing the penalties for sabotaging and vandalising power lines, including the creation of a new economic sabotage crime. It is time that the Traffic Act was reviewed to enhance the penalties levied against traffic offenders, including instituting a system of bans for drivers convicted of certain traffic offences and the revocation of operating licenses of public service vehicles, or the companies' operating licenses, for committing especially egregious traffic offences, especially the ones that lead to grievous bodily harm or death.

It is also imperative that provisions be made to cater for the non-driving road users. Time and again traffic accidents are caused because pedestrians are to be found walking in the road rather than the pavement because these have been commandeered by hawkers and sundry other businesses. It is also not uncommon to see pedestrians walking in main roads simply because the state of the footpaths that should be provided for them is deplorable. During the rainy seasons, it is not uncommon for pedestrians to avoid the footpaths along main roads simply because they are too muddy to be navigated safely or without ruining their shoes and clothes. The state of surface drainage has contributed significantly to force pedestrians onto roads where they should not be at all. The chaos resulting from the combination of foot and vehicular traffic has resulted in a state of near paralysis, especially in urban areas, leading to thousands of man hours lost in traffic jams and, obviously, thousands of pedestrian deaths.

With the coming of County Governments, it is still unclear what municipal authorities will do. What is clear that such local government concerns must be addressed with a professional perspective. Nairobi, for instance, is monumentally unfriendly to pedestrians, and spectacularly unfair to drivers. The free rein that PSVs are allowed, and the callous treatment of pedestrians, contribute significantly to the problems experienced by road users in the city. The economic cost has been estimated at the billions annually. The City Council has failed in its primary mandate to provide safe and efficient services to the residents of the city, especially its drivers and pedestrians. The state of public transport is a grave embarrassment for a city that aims to be a world city. Its policies are held hostage to the whims and caprices of an often semi-literate, unprofessional gang of councillors, more interested in making a quick shilling than ameliorating the suffering of their constituents. Perhaps the County Government of Nairobi City will make a better fist of things, ensuring that the provision of services, especially road services, meets not only the needs of the residents but ensures safety, security and efficiency.

Tuesday, December 27, 2011

We are all hostages

This is how you fight a war, not with independent reporters traipsing all over the battle-field reporting on any and all they see, but with embedded reporters telling what they are told to tell. The Kenya Defense Forces, and the mandarins calling the shots, have kept a tight lid on the KDF exploits in Somalia, and for good reason too. Despite the false starts to the war, the management of the information coming out of Somalia has been controlled to such an extent that al Shabaab is unable to control its press in Kenya. Reports by international NGOs are not receiving the print-time they deserve; Human Rights Watch called for an investigation into alleged atrocities by KDF that received barely a mention in the Kenyan press; TV completely blocked it out and only a brave editor-in-chief even considered running the story in their paper.

Thanks to the peculiar Kenyan obsession with the 2012 general elections, and the chances of the Raila juggernaut being stopped, Kenyans have lost all interest in the Somalia incursion. The economy has taken over a large chunk of our mental bandwidth too. If Kenyan soldiers and sea-men are dying in their war wit al Shabaab, we will not know and I doubt that other than the soldiers' families and their commanders,that we will care either.

The Americans discovered that it is impossible to run a successful war in a democracy when their Vietnam War was rejected by the masses, especially by the young men and women who would be conscripted to go fight Communism in South-East Asia. The KDF is an all-volunteer army and therefore, there is little likelihood that young men and women will be conscripted to go to the front-lines of Somalia. Kenya's democracy is not mature enough where the free flow of information is guaranteed; the government still exercises great control over the access to public information, even where it is in our best interests to be well-informed. It is the same case as regards Kenya's external debt; we still do not know exactly how much we have borrowed, how much we owe, how much we pay in servicing this debt, or where the money to sustain such a policy is coming from.

Even in the area of our national obsession, politics, very little light is shed on the goings on in political parties or the National Assembly. When Mutava Musyimi's Parliamentary Committee rejected the two principals' proposed Commissioners for the Ethics and Anti-Corruption Commission, the reasons that were presented before the National Assembly did not rise to the level of carefully thought out grounds, but seemed to be motivated by something other than professional considerations. The debate that ensued seemed to be a test of wills between the two principals and their challengers in the National Assembly; it remains to be seen which side will prevail in February 2012. It also remains unclear where the money that is the engine of Kenya's political parties is coming from, especially when we know for sure that these parties are not mass movements with committed subscription-paying members.

The law on access to information is yet to be enacted so Kenyans have very little access to information that is crucial to making intelligent decisions regarding their future. Its enactment is no guarantee that Kenyans will be better informed. As a nation we have a demonstrated a serious lack of curiosity in government or governance matters. We are satisfied when our tribal chiefs give us titbits of information without rigorous interrogation. As a result, whenever matters of national importance are debated, the debates usually revolve around the whims and desires of political personalities. Even sensationalisation by the media is not enough to arouse in us a curiousity that is the bench-mark of a civilised society. We are held hostage by our biases and ignorance.

Monday, December 26, 2011

Sam's 2012 Magical Mystery Tour

In Mombasa, a woman finds her man in bed with another woman and promptly sets her house, and their neighbours', on fire (she's in handcuffs, he's nursing severe burns in Coast Provincial Hospital's Burn Unit. Hope he gets so disfigured he won't score again. Ever!) Meanwhile, hundreds of up-country types are getting fleeced by sharp fly-by-night operators who have taken their money for non-existent buses to their homes for Christmas. The butcher's bill on Kenya's shiny new highways of death keeps rising, with the death toll rising every time a non-speed governed Public Service Vehicle crashes into another and snuffs out the lives of its passengers (the Traffic Department has become very adept at collecting statistics. Maybe it can offer its services to the Kenya National Bureau of Statistics.)

Wanjiro Gaitho's report of the Kadogo Economy is accompanied by slum-porn (how come they always seem to find themselves on the same street in Kibera, Kenya's pre-eminent slum of choice. The fall-from-grace of Mathare Valley, Korogocho and Huruma is stark.)

Johnston Muthama has become the cheerleader of the new anti-Raila outfit being fronted by Uhuru Kenyatta (who conducted a coup against the Gideon Moi-Nick Salat axis-of-incompetence in KANU, even managing to give the grand old party a brand new moniker for Christmas, though in a colossal lack of imagination retained the same acronym ), George Saitoti (who's delusional enough to think that the billions he has amassed over the years are enough to garner him the PNU Alliance nod for the presidency), Kalonzo Musyoka (who's consolidated his hold on ODM-K, renaming it after his lacklustre campaign slogan from 2007, Wiper Democratic Movement. Does anyone remember that Samuel Poghishio is the chairman of the party?) and their fellow-travellers. William Ruto still has one foot in the ODM house and another (tentatively) in the UDM house, though he's not sure he is going to get any love from the likes of KADDU's Cyrus Jirongo or the acerbic-tongued Chirau Ali Mwakwere (who also dreams that he can be president. What has he been smoking?)

Some wingnut decided to call in a bomb threat at the Holy Family Basilica, forcing John Cardinal Njue to take a rather non-celebratory tone (this being the birth of the The One Who Came to Save Mankind) during his sermon on Christmas Day (doesn't the man smile? Ever?).

Kenya's battered economy prevented thousands of temporary Nairobians from making their way up-country for the holidays (this year the number of sofa-sets being hoisted atop buses at Nairobi's Machakos Airport were a pale shadow of previous years!) Atwoli's damp squib of a strike and the traditionally extortionate fares did not help matters much either (Uhuru Park saw some of its largest non-political, non-crusade crowds for a decade). A person with a death wish decided to set Gideon "Mike Sonko" Mbuvi's constituency office aflame, taking with it a Buru Buru landmark, The Mausoleum Club (is he still suffering from the after-effects of being jacked by Nairobi's Finest while raising hell in Ofafa Maringo?) Raila Odinga is sitting pretty; everyone seems to think that he is the man to beat in next year's presidential election, and his party the one to destroy (but, as Mutahi Ngunyi put it, the man has a habit of shooting himself in the foot, so 2012 could still hold surprises for those keen on the "issues".)

The hookers of Koinange Street did not fare well this Christmas; the venerable Citizen TV aired footage of desperate "ladies" advertising their charms for all their worth (which isn't much") - rather unsuccessfully. Perhaps the presence of holier-than-thou TV cameras and crews deterred potential Johns from partaking of the services being offered so blatantly (that was NOT cool).

The Attorney-General, quite out of character, decided to take a simi to Charles Nyachae's accusations (he's still trying to figure out how to get Githu's goat), using some very un-parliamentary language to boot. About bloody time too! The Amos Wako habit of smiling through a hailstorm of shit is no longer the in thing. Chief Justice Willy Mutunga's various public spats with, first Moses Wetangula, and next, Chris Obure, have set the tone - this is no longer business-as-usual. Dignity be damned! By the way, does he have the one stud, or a collection in various colours, settings, and stones? And does he buy them in singles or pairs? If he buys in pairs, where do the others end up? Not in the ear of a "clande" I hope!

Joshua arap Sang finally graduated from university with the power to read and to do all that appertains.. Now he has "papers" to flaunt at the ICC Judges if they ever decide to try him for crimes against humanity! Did the Sword of Damocles that is the ruling of Eketarina's Pre-trial Chamber II have an adverse impact on his "chopping" for the exams or did lots of "cold power" get him through it all?

Where is Julie Gichuru? Two Sundays in a row with that Mohammed fellow are not doing my Sunday pleasures any good. Julie is to Sunday prime time news what Blue Band is to a slice of two-days' old Akyda! You cannot have the one without the other. Just not done. They had better get her back in front of the cameras or we will desert Citizen's Sunday Live in droves! And after her blood-donation escapade, where did Martha Karua disappear to? Couldn't she find a church to crash, cameras in tow, for Christmas like Kalonzo and Co. did? What kind of presidential candidate is it that refuses to hog the Christmas limelight like a true politician? I hope she hasn't decided to treat her hard-suffering family to a holiday in Switzerland or the slopes of the Himalayas. That would send the worst possible message in this time of economic hardship for her millions of loyal supporters and fans. Who doesn't miss the Professor of Politics Christmas images, piously holding the hymn-book and leading the an AIC Church somewhere is songs of worship? The man understood retail politics like our pre-eminent Asian industrialists understand counting pennies to make billions. Someone should start a campaign to have the Old Man canonised before he quits this Earth.

Every pundit worth his over-inflated ego is promising that 2012 will The Year! Politics will heat up. The economy will heat up. KCPE will heat up. Even the venerable KSCE (separates the children from the adults, doesn't it?) will heat up. Amos Kimunya will finally tame the matatu industry. Njuguna Ndung'u (and Joseph Kinyua) will finally admit that Kenya isn't the African Development Bank or the IMF and quit in disgust. Patrick Nyoike will finally discover that energy policy is the cornerstone of the political economy when Baba Jimmi finally gives him the steel toe. Orengo Jimmy will finally be hauled before one of Willy MUtunga's Judges and asked to explain where all the ''fake'' Syokimau title deeds came from if not from his venerable Ardhi House. Charity Ngilu will finally be able to attend a rally without being exhorted (or extorted - you choose) to be good to Brother Steve; she'll be drawing larger crowds than the Veep and that will be that. 

Major James Oswago (Retired) will finally get shoved out of the IEBC (Abdikadir Mohammed will smile all the way to the ballot box!) He'll open a consultancy and laugh all the way to the bank. Mumo Matemu will just about squeak into office as our brand new anti-corruption czar and promptly initiate politically untenable investigations with the support of Mwai Kibaki (who'll be happy to give it as a final F.U. to the hyenas that took his name for granted.) Hell yeah, 2012 will be The Year!

Saturday, December 24, 2011

The LSK should leave government to live up to its obligations.

One of the after-effects of the NARC victory in 2002 was the co-opting of civil society by the Kibaki government. It must have seemed as the most natural of development, seeing that civil society organisations played such a pivotal role in bringing about a peaceful transition from the Moi-KANU hegemony to the Kibaki-Raila-NARC new dawn. But events over the past decade have given the lie to the notion that the inclusion of civil society in government would lead to progress on matters dear to Kenyans, such as the swift eradication of corruption or the honest appraisal of the successes or failures of government. One only needs to look at the experiences of John Githongo, President Kibaki's one-time anti-corruption czar to understand this.

The Law Society of Kenya seems to have fallen into a similar trap to that that laid for Mr Githongo. Slowly but surely the LSK has been made a part of the Executive; it is now common to see members representing the Society sitting in various commissions, independent agencies and parastatals. Where once the LSK led civil society organisations in holding government to account for its deeds and misdeed, now, as part of the Executive (and Judicial) Branch, it is a pale shadow of its critical self. This was starkly exposed when President Kibaki unilaterally made constitutional appointments earlier this year but the LSK was sharply divided in its response to the situation, with individual members of the Council speaking at cross-purposes.

The rationale for co-opting the LSK was to ensure that it would watch out for the public interest when the government acted contrary to the ideals of a liberal democracy, or the Constitution. But looking at the developments that have ensued since we promulgated a new Constitution, one is no longer confident that the LSK can play its watchdog role when it comes to the government. It is now part of the government, and as the wise men one said, "You do not bite the hand that feeds you!" Today, whenever matters to with the administration o justice or the implementation of the Constitution arise, the voice of the LSK is strangely absent. For example, it has ailed to weigh in with its opinion with regards to the strange war of words between the Commission for Implementation of the Constitution and the Attorney-General. It has failed to respond to the proposed Parliamentary attack on devolution led by Ndaragwa's Jeremiah Kioni's assault on the Senate, or the battle for financial control over county government between The Ministries of Finance and Local Government. It failed to offer Safina's Paul Muite support when he wrote to the World Bank over the proposed support of the Bank for Kenya's government where he argued that all it would do would be to saddle the people of Kenya with greater debt than they would be capable of repaying or servicing. It even failed to take a stand when the Chief Justice revealed that the newly-opened Milimani Law Courts are not fit for use by both judges and lawyers.

The co-opting of the LSK has led to a situation where the Society is incapable of holding the government to account. Until Kenyans are largely free to make political choices without fear, or when the government has established robust mechanisms to police itself, the Society remains the only independent statutory agency with the expertise and strength to review the acts of commission or omission of the government and to offer Kenyans an unbiased view of the alternatives that they face. It cannot do so when it is cheek-to-jowl with the government every step of the way. Therefore, it is imperative that the LSK withdraws from the Executive and maintains its distance in order to speak with an uncorrupted voice. This may lose many astute and able lawyers their fat fees, but that is the price the Society pays for its independence and authority. It is the only way that Kenyans can rely on the advice being offered by the Society. It is the only ay that it can restore the trust that it once engendered in the people of Kenya. It is the only way it can play a constructive role in the governance of this country, the administration of justice and the proper regulation of the legal profession. What say you Chairman Kenneth Akide?

Friday, December 23, 2011

The CIC is wrong about the A-G.

The Commission for Implementation of the Constitution, CIC, does not enjoy a veto over legislation-making, nor is it the final word on the final language incorporated in a Bill presented to the National Assembly for consideration. Given the tone and tenor of its reports, especially its comments regarding the manner in which the Hon Attorney-General has conducted himself with regards to constitutional implementation, it is quite clear that the CIC sees itself as first among equals when it comes to the preparation and enactment of legislation. Nothing could be farther from reality.

Until the first general elections under the Constitution, only the Attorney-General is a Member of Parliament, but only as an ex officio member without the power to vote; the members of the CIC are not and will not become MPs. Ever. It is a hard truth to swallow but swallow it they must. The functions of the CIC are limited to co-ordinating the process of drafting Bills for consideration and debate in Parliament aimed at implementing the Constitution and reporting progress made or impediments faced during that process. Ultimately, it is for Parliament to consider and debate and enact legislation. Without so much as a by-your-leave to the CIC, Parliament may alter the language or anything contained in a Bill being debated, as has happened once or twice in the past, especially with the enactment of Constitution-implementation Bills.

But even as an MP, what must surely irk the CIC is the fact that the A-G is also a member of the Cabinet, and will continue to enjoy this rank even after the first general elections under the Constitution, while the CIC will be left on the outside looking in. As a member of the Cabinet, the A-G, in addition to playing his role as the principal legal advisor to the government, he will still be bound by the doctrine of Cabinet Collective Responsibility. As such, he does not have as free a hand to do as he pleases as the CIC suggests. The CIC alleges that the A-G has been "[willing and committed]to subjugate his opinions to those of other organs of government, even where those organs may be acting in breach of the Constitution." It refuses to acknowledge that the opinion of the A-G is not always binding; the members of the Cabinet are free to accept, alter or reject his opinions. It also fails to accept that the role of the A-G also means that he will always give the Cabinet alternatives in the hope that the Cabinet will make the best choice possible in the light of contemporary events and circumstances. Not everything is as black-and-white as the CIC is suggesting, and anyone led to believe so must be swiftly disabused of this notion.

The CIC is correct to state that the role of interpreting the Constitution is the exclusive preserve of the High Court, but fails at add that such a role can only be played in the light of a controversy. The High Court will only be asked to interpret specific provisions of the Constitution where there is a dispute as to the true meaning of the provisions in question and the matter is being actively litigate before it. An interpretation of Article 165.3.d does not lead to the conclusion that the role of the High Court is advisory in nature; that would be an absurdity. Examining the powers and functions of the High Court leads one to the reasonable interpretation that it will involve itself in the interpretation of the Constitution only when a matter is being actively litigated before it. This also means that in interpreting their roles, functions and powers, various organs and institutions must interpret the Constitution, in a limited manner, to determine where their place is and what power they enjoy in the execution of their mandates, including both the Cabinet and the CIC. Even Parliament interprets the Constitution when it debates Bills and decides on possible amendments to the Constitution.

Finally, the CIC is correct the champion the right of the people of Kenya to be fully informed about the issues surrounding the implementation of the Constitution, including possible amendments to the Constitution. But it is wrong to suggest that the National Assembly does not have the power to amend the Constitution without a comprehensive public information campaign. Even to casual observers, the process of amending the Constitution that was initiated last November followed the strictly laid down procedure in the Constitution, including the time-table for such an amendment and the involvement of the public in debating the merits or lack thereof of shifting the date of the next general elections from August to December. No one, least of all the CIC, has demonstrated what mischief there will be if the election date is changed. Indeed, its only bone of contention seems to be that the public has not been sufficiently consulted, which is not the case. When the Constitution (Amendment) Bill, 2011 was placed before the National Assembly for its First Reading, the Clerk of the National Assembly published an advert calling for input from members of the public during the 90-day period between the First Reading and Second Reading. What more could be done remains a question of the availability of resources and the determination of those opposed to the Bill, such as the CIC. If it is unable or unwilling to expend monies to persuade members of the public to the danger of the proposed amendments, it is not the fault of the A-G or, indeed, the Cabinet or the National Assembly, but its own.

Just as the CIC has pointed out, ultimate responsibility for the implementation of the Constitution lies with the people of Kenya. If they truly wish to take a hands-on approach to the implementation, it is their duty to inform themselves of the state of affairs, and perhaps, join any organisation that may help them fulfill their responsibility, including civil society organisations and political parties. Finally, they can take control of the process by ensuring that the men and women elected to the National Assembly and the Senate share their ideas and priorities. It is the only way that they will not be betrayed or misled.

NEMA must be restructured

A decade after it was formed, the National Environment Management Authority, NEMA, must be fundamentally restructured and its mandate reviewed in order for its objective of effective environmental management to be achieved. In the past decade, it has become increasingly clear that NEMA is frequently ineffective and a source of confusion, chaos and conflict, especially in its mediation between the needs of local communities and prospective developers. Frequently, narrow interests, without the backing of communities, take potential projects hostage until every little detail is litigated to its conclusion. No one denies that environmental considerations must be paramount when carrying out development projects, but no one should deny that there are always mitigation measures that can be erected to ensure that the projects do not have overly adverse effects on the environment. Anyone who suggests that projects will not lead to adverse effects is a fool, and anyone who expects all effects to be mitigated should have his head examined. In this situation, NEMA has constantly proven to be a disappointment, unable to regulate the implementation of projects effectively, frequently forcing opposing parties to fight it out in our courts.

Like with any government agency in Kenya, NEMA jealously guards its expanded mandate, issuing permits and licenses and pocketing the fees that come with them. However, all it has done is to create a bloated bureaucracy that is incapable of enforcing its dictates, frequently at the expense of the environment it is supposed to safeguard. Taking an idea that had been incorporated in the updated Physical Planning Act of 1996, NEMA bastardised it beyond recognition, frequently frustrating job-creating projects and scaring away potential investors due to its incompetence. Section 38 of the Physical Planning Act was a recognition that environmental considerations were fundamental to the effective implementation of projects and that their incorporation into the mandates of municipal authorities would guarantee the safeguarding of basic environment resources for current and future generations. The enactment of the Environmental Management and Co-ordination Act should have been the foundation for empowering not just municipal authorities, but all state agencies and departments to protect the environment while at the same time pursuing the goal of economic growth through development activities. But the creation of what amounted to a super-agency, without the power to enforce its rules and regulations, and lacking the capacity to punish those that violated them, merely made a chaotic system worse.

The Environmental Impact Assessment system enshrined in both the Physical Planning Act and the Environmental Management and Co-ordination Act is a valuable tool in ensuring that development does not so overwhelm the environment that all we will be left with after the implementation of projects is a wasteland incapable of supporting life. Therefore, it is imperative that this system be freed from the inept hands of NEMA and instead made part of the mandate of all agencies that have a role to play in development projects, including, but not limited to, the Kenya Forestry Service, the Kenya Wildlife Service, the National Biosafety Authority, all municipal authorities (and their successors, the county governments), implementing ministries such as those of roads, public works and housing, etc. These are the institutions that must be empowered to implement the EIA process to ensure that projects being implemented in Kenya cause the least environmental havoc, while NEMA oversees the whole process by playing a policing role, hauling violators of the rules off to court.

At present, NEMA's District Environment Officers, the men and women on the frontline of environmental security, do not have the capacity to oversee the myriad projects being implemented in their areas of jurisdiction. For them to be effective, they must have multiple diverse skills in environmental management, engineering, physical planning, hydrology, ecology, forestry, wildlife management, public health and sanitation, law enforcement and many others. Clearly, this is not possible. However, there are many specialised government agencies that have these skills and it is to them that NEMA must turn to for advice and guidance. It would be more effective for these agencies to be empowered to assess the risks that projects pose to the environment and to make the final determination whether projects should proceed or not. It is the only way that NEMA can play a positive role in the protection and conservation of the environment.

It is in the arena of policy that NEMA can be more effective. Given its global, regional and local implications, environmental policy requires a specialised agency to address it. NEMA should concentrate its manpower in resolving the knotty issues that arise out of environmental policy considerations and abandon its goal of being a policy-maker, a regulator and policeman all rolled into one. This is the only way that environmental management will come of age and NEMA will finally fulfill its obligations as an agency.

It should be the economy, stupid!

Francis Atwoli, the frequently excitable Secretary-General of the Central Organisation of Trade Unions, surely overreached when he called for a ten-day nation-wide strike by operators of Public Service Vehicles to demand a thirty per cent reduction in the prices of automotive fuels this past Sunday. Amos Kimunya, the rather impressive Minister for Transport, surely overreacted when he denounced the strike in such strong language the following Monday. Both were wrong.

It is difficult to ascertain, as Mr Kimunya pointed out, where Mr Atwoli derived the authority to call for such a strike from. The Matatu Welfare Association (led by Dickson Mbugua) and the Matatu Owners' Association (led by Simon Kimutai) are not workers' unions; they are employers. Mr Atwoli, to the best of our knowledge, is not a member of either organisation, nor is he an investor in the matatu industry. The core of Mr Atwoli's argument, however, must be seriously considered - the price of fuel affects the cost of living which affects the workers of Kenya when they must pay a higher proportion of their wages in increased transport costs. Mr Kimunya was wrong in denying that there was a justified foundation for calling for the strike; surely, even he must admit that the matatu operators will certainly pass on the increased cost of fuel onto their customers, reducing the amount of money they have to invest in other ventures.

Calling for a matatu strike at the height of the Christmas season was the height of folly. How did Mr Atwoli hope to persuade the thousands of matatu operators to forgo the hefty fares they would charge during this period, or ameliorate the suffering of thousands of passengers who would have few alternatives when attempting to make to their families for Christmas? The proper recourse, which Mr Atwoli, Mr Kimunya and their fellow national leaders, have failed to pursue is a review of Kenya's energy policy, such as it is in the context of the national economy.

President Kibaki and Prime Minister Odinga promised that one of their priorities when they formed the Grand Coalition would be an improvement in the economy, pursuing growth in Kenya's Gross Domestic Product with an eye to generating jobs and raising the standard of living of all Kenyans such that they are able to lead more comfortable lives. Instead, wealth creation in Kenya has stagnated; the only institution that seems to be investing in the economy is the government, and its investments are now being called into question as it is merging that these have not had the effects that were promised by the two. While economic growth has been steady, it has not been sufficient to generate new jobs, and with the ending of the Economic Stimulus Programme it seems that Kenya will start shedding more jobs than it generates, pushing more families into poverty and leading to more hardship as we enter a period of political instability and economic uncertainty in 2012. It is expected that the cost of living will rise and consequently, more industrial action is anticipated in 2012.

Our failure to debate robustly the state of our economy is a sign that as a nation we are yet to mature fully into a liberal democracy. Our obsession with the minutiae of political contest, at the expense of everything else, has all but guaranteed that our economic future is held hostage by a cabal that may have very little insight into the solutions that must be implemented f we are to avoid civil strife. The fallacy that the government must constantly invest in the economy to ensure GDP growth and job-creation has been exposed, but no one is talking about it or discussing alternative solutions. This, in turn, guarantees that when questioning the bona fides of the presidential candidates during the 2012 campaign period, we will be unable to question their economic policies or promises. We are likely to elect a person based on their populist rhetoric rather than their proposals for the national economy and we may pay a high price for such myopia.

Who will save us from TV?

I must admit that my command of the Queen's English is not as robust as it was when I departed from Machakos School's hallowed campus in 1996; despite my best efforts, it has deteriorated to such a state that I am afraid of engaging, especially using the spoken word, with my peers and seniors. However, and as we hurtle towards another end-of-year, I feel it is my duty to bring to your attention the sad state of English-language communication in that most popular medium, the 9 O'clock news bulletin.

My unscientific, certainly biased ranking, places the K24's "The Big Story" and KBC Channel One's "9 O'clock News" at the bottom of the list, which is jointly led by Citizen TV and KTN. For a nation that declares English to be one of it's national and official languages, it is shocking how poor our command of this international language is. TV newscasters' command of the language is so atrocious one wonders how they got their jobs in the first place. Take, for instance, John Kago of KBC Channel One; he is yet to meet a punctuation mark he could not ignore. Listening to him will drive you to distraction as you attempt to keep track of the multiple story lines he may be pursuing at any one time. His frequent co-anchor, Njambi Koikai, seems to follow where he leads. Perhaps her time in the FM radio world (where she apparently hosted a reggae programme - reggae-listeners not known for their discipline when it comes to sentence structure, grammar or syntax) must have instilled in her a certain laissez faire approach to the use and misuse of the Queen's English. Her daring employment of imagery usually ends in bitter disappointment for what must be her legions of TV viewers, or else how do you explain her continued employment at the government's media outlet of choice?

MediaMax's K24 has certainly come a long way from its humble origins, joining the big boys as one of the permanent members of the arguably illustrious DSTV stable of domestic news channels. You would not know this listening to night after night of poor grammar and mangled syntax. The Big Story's anchors' command of the English language is proof positive that if these men and women ever saw the inside of a media studies' college, they must have been dead asleep when language was being taught. Their caption-writers, however, take the biscuit; reading the captions to ascertain the state of affairs in Kenya is akin to reading tea leaves to predict the future. One is left with the distinct impression that the captions are written by a thousand monkeys with type-writers.

How is it that once Kenyans are released from the confines of their various secondary schools they seem to lose all interest in improving their communication skills? Time and again, you will meet apparently college-educated or university-educated Kenyans and, one minute into a conversation, you are unable to decide whether they are playing a prank on you or are dead serious in the manner that they express themselves. It cannot be that all those language lecturers in colleges and universities are simply phoning in their lectures, can it? Perhaps these young men and women feel that they owe no duty to themselves or their interlocutors to speak clearly or speak properly. Perhaps, the freedom they enjoy from  the unremitting, tyrannical thumbs of their parents and teachers has also freed them from the responsibilities and, dare I mention it, the joy of being able to manipulate one of the most beautifully expressive languages of all time. (My apologies to the users of the French and German languages.)

Public communication is in a state of crisis. It is impossible to listen to public figures who constantly and egregiously mangle the English language without a twinge of sorrow. It is in such a state that chaos reigns and confusion marks the state of public discourse. If we are unable to communicate clearly, then we are unable to be effective; if we are ineffective in passing on our ideas, we are at risk of actual physical combat. Change must come to the users of public airwaves if only to ensure that the media's mandate to educate, inform and entertain is achieved.

Thursday, December 22, 2011

Nyachae's Choice

Despite the fact that Charles Nyachae is dead wrong on the issues, you must admire the Chairman of the Commission for the Implementation of the Constitution for his forthright manner. By labeling the Attorney-General as the impediment to the effective implementation of the Constitution, Mr Nyachae and the CIC have clearly drawn the line on the sand and are daring the Office of the Attorney-General to prove them wrong, even when they know that the A-G will not respond publicly.

One must wonder why every time there is a hiccup in the relationship between the CIC and the A-G, the CIC invites journalists to its plush offices to ventilate in an aggrieved tone over the many sins committed against it by the A-G. When one considers that the CIC has a five-year term and that at the end of that term it will have spent (or mis-spent) billions of tax-payers' shillings, one gets the idea. One of the biggest battles the CIC fought with the Executive was on the small matter of the pay of the Commissioners. They reacted with dismay when the Head of the Civil Service refused to pay them their hefty packages, asking them to be renegotiated to more affordable rates. The CIC marshalled public sentiment to its side and managed to get the Executive to swallow its pride and pay them what they demanded. But other than on the finer points of contract law, the CIC was unable to demonstrate how a smaller pay package would affect their independence or their effectiveness.

After more than one year into their term, it is time Kenyans audited the CIC and assessed whether we are getting value for our money. Mr Nyachae and his fellow-Commissioners have grown into their role, no doubt about it, but they operate as if they are not part of the same Executive they are hurling epithets at. They may be an independent commission, but they are most definitely part of the Executive. If they thought they were above the Executive, or apart from it, it is high time someone disabused of their delusions. Their interpretation of their powers and mandate, and the manner that the Commission for the Implementation of the Constitution Act is being interpreted by them and other reactionary interests, is a recipe for confusion and chaos.

The only institution that has the mandate of making law in Kenya, or anything with the force of law, is Parliament, not the Office of the A-G or the mighty CIC. One of the principal functions of the Office of the A-G is to draft legislation, and one of the principal functions of the CIC is to review the implementation of the Constitution and ensure that Bills drafted by the Executive, including Bills drafted by among others Ministries, departments, agencies, parastatals (such as the Kenya Law Reform Commission) and external consultants and submitted to Parliament meet the objectives and principles of the Constitution of Kenya. The CIC does not have a mandate to draft legislation or enact law. It does not enjoy veto power over Parliament or the Executive in the execution of their mandates, certainly not over the Office of the A-G.

When the Committee of Experts constitutionalised the various commissions and independent offices, no one could have predicted that they would become a drain on the national treasury. But all that is water under the bridge and it is now necessary to forge an effective working relationship between the Executive proper and these commissions and independent offices. Certainly, calling the A-G and the state counsels working in the State Law Office names and accusing them of standing in the way of the implementation of the Constitution is not the way to go about it. If Mr Nyachae and the other CIC Commissioners see themselves as the sole protectors of the Constitution implementation process, they must be disabused of this notion speedily. There are other institutions and agencies involved, not least of which are Parliament and the Judiciary, headed by the increasingly able Dr Willy Mutunga. The success or failure of the implementation process will not rely solely on a hectoring tone from the CIC, but from a realisation that compromise and co-operation are not necessarily evil traits. Where the Hon A-G fumbles, by all means let the fumbles be revealed. But if all the carping is for the sole purpose of justifying the existence of one Commission, we may be headed for failure after all. The choice is Mr Nyachae's and the CIC's to make.

Tuesday, December 20, 2011

Why Public Watchdog must watch what he says.

While I agree with the general tenor of Public Watchdog's commentary today, I must take issue with some of it's propositions (Hassan Omar has a right to express his opinion but isn't public sector tribalism pervasive? The Standard, December 20, 2011). Public Watchdog argues that "...tribalism and unfairness in resources distribution including appointments represents the biggest threat to national cohesion and social stability..." and that "...every tribe has a right to the presidency..."

First, appointments in the public sector are not supposed to be rewards, or rights, of one ethnic community or another. The responsibilities and obligations of the public service are to bring essential and other government services to all parts of the nation. Appointments of public servants are not supposed to guarantee that such services will be delivered to the residents of areas where the appointees come from. If we take Public Watchdog's argument at face value, then if a particular ethnic community dominates a government department, then the services offered by that particular department will be predominantly delivered to the geographical area occupied by members of that ethnic community. This would be an absurd result; the monies expended to deliver these services are raised from taxes levied on all Kenyans, and not just from that particular community, therefore, they must be expended equitably to ensure that these services are delivered to all.

The role of the public service, therefore, is to assess the relevant development indices of various parts of the country and ensure that the allocation of scant national resources are geared towards the upliftment of the living conditions of all Kenyans at the same general rate. It is irrelevant that one particular community dominates one department; their duty is not to their ethnic community but to the nation. If they are incapable of understanding this basic truism, then they should be removed from public service altogether. The solution is not to to ensure 'regional balance' in appointments to public service so as to to guarantee regional balance in development (though government must reflect the face of the nation); the solution is to compel the public service to serve all parts of the country equitably and to ensure that no community is left behind.

Second, Public Watchdog seems to accept and promote the premise that an ethnic community deserves the presidency, that it should be awarded on a rotating basis. Public Watchdog seems to forget, or ignore, that the presidency is not a reward; it is obtained through a contested process, the election. The Constitution, just like the former Constitution, sets a threshhold for being elected President of Kenya. The Constitution provides that the person who shall be elected President must win 50+1% of all votes cast and at least one-quarter of all votes cast in at least half the Counties. Admittedly, this is a higher threshhold than in the former Constitution. Therefore, it is not the ethnic community of a presidential candidate that is being elected but a candidate hailing from a particular ethnic community. If we wish to elevate Kenya from the miasma of ethnic-tinted jingoism, we must evaluate candidates on the basis of their promises and track records in public service. Kenyans are free to include a candidate's ethnicity when deciding whom to elect President, but if that is their only point of determination, then Kenya will be held hostage to ethno-oriented politics for all eternity. Hassan Omar Hassan had every right to prophesy that Kenyans would be unable to elect another Kikuyu as president of Kenya, but he failed to offer a solution that would ensure that a non-Kikuyu was elected president.

In the next twelve months, Kenya will have a new President. Our choices will be limited to those men and women cleared by the Independent Electoral and Boundaries Commission, not their communities. One of them will be elected, not his or her ethnic community. The winner of that contest should be the one who offers Kenyans clear solutions to the problems that bedevil this nation. Vice-President Kalonzo Musyoka, Prime Minister Raila Odinga, Deputy Prime Minister Uhuru Kenyatta, Deputy Prime Minister Musalia Mudavadi, Assistant Minister Peter Kenneth, Foreign Affairs Minister Moses Wetangula, Water and Irrigation Minister Charity Ngilu, Education PS Prof James Ole Kiyiapi, Gichugu MP and former Justice Minister Martha Karua, Eldoret North MP and former Higher Education Minister William Ruto, former Minister and former Rarieda MP Raphael Tuju, and former Kikuyu MP Paul Muite, among others, have declared an interest to stand for the presidency. These men and women have a record of public service which Kenyans may use to evaluate them and use as a basis for electing one of them President of Kenya. If Kenyans use the candidates' ethnicities as the basis for arguing that they deserve to be elected, then Kenyans should look for someone else; but if they promise to serve all Kenyans, then Kenyans should seriously consider one of them. This is the challenge we face as we fully implement our Constitution, a Constitution that has just celebrated one year of existence.

Sunday, December 18, 2011

This is no time to backslide

Cabinet collective responsibility is constitutional convention in governments using the Westminster System that members of the Cabinet must publicly support all governmental decisions made in Cabinet, even if they do not privately agree with them. This support includes voting for the government in the legislature.

Justin Kimani, writing in the Standard on Sunday (Bashir verdict needs collective security), makes the case that the ruling by Ombija, J, upon an application by the International Commission of Jurists - Kenya Chapter, directing the Government of Kenya to arrest Omar Hassan al Bashir, the President of Sudan and deliver him to the International Criminal Court to face trial for crimes against humanity amongst other charges, was in breach of the doctrine of collective responsibility. In light of the constitutional principle of separation of powers, Mr Kimani is wrong. While the government is made up of three interlinked and inter-dependent arms, the doctrine of collective responsibility only extends to the Executive Branch; it is not applied across the three Branches. Each is independent to make decisions and to act within the strict boundaries of their mandates but not in concert with each other. Otherwise, they would be unable to play the role of checking and balancing one another.

Mr Kimani should have concentrated on another principle of law: that the Judiciary must make rulings and judgments capable of being enforced; it does not operate in a vacuum and it must always balance the need for justice with the context within which a controversy is litigated before it. However, even this principle would not have applied in the application brought before Ombija, J's court by the ICJ-K. As Ndung'u Wainaina has demonstrated in the same paper (Attempts to appease Bashir breach various laws, propagate impunity), the Government of Kenya has no legal leg to stand on when balancing the political and diplomatic needs of maintaining friendly relations with Sudan and its legal obligation to comply fully with provisions of the Constitution, the International Crimes Act and the Rome Statute. Britain was faced with this same dilemma when its High Court issued a warrant of arrest for the Israeli Foreign Minister for war crimes committed during Israel's war with Lebanon in 2009. But rather than refuse to honour the direction of the court, the UK government advised Tzipi Livni not to visit Britain and initiated an amendment to its laws to prevent future situations of a similar nature.

Mr Kimani's argument that the three arms of government must always act in concert will undermine the democratic gains that have been made in Kenya since 1992 when section 2A of the former Constitution was repealed and returning Kenya to multi-party politics for the first time since 1982. During Kenya's dark days of single-party rule, not only was the party the government and the government the party, but also the Legislative and Judicial Branches were subordinate to the Executive; decisions of the latter two were always subject to the pernicious veto power of the Executive as embodied in the whims of the President. Absurd situations frequently arose, such as when the Director of Public Prosecutions could decide the sentence to be meted out on convicted persons by the Judiciary. If Mr Kimani's argument is to be pursued to its logical end, Ombija, J should have consulted with the Minister for Foreign Affairs to ascertain Kenya's diplomatic interests first before issuing a ruling that would have denied the ICJ-K the orders that it sought by ignoring the clear provisions of the Constitution and the International Crimes Act and Kenya's international treaty obligations under the Rome Statute.

It is true that the High Court ruling has complicated the diplomatic situation between Kenya and Sudan, but the solution is not to claw back some of the gains made, especially since 2010. The solution lies in Kenya demonstrating to the world that the rule of law is alive and well in Kenya and that it is prepared to lie in the bed it has made by obeying the provisions of laws it has passed. The alternative would be to invite international ostracisation by ignoring the law and permitting the Executive to act as it pleases, using its monopolistic powers to make decisions that may not be in the best interests of all Kenyans. Instead of the Minister for Foreign Affairs declaring that the Executive would not honour the directions of the High Court, the first step should have been the step that it elected to follow later on, that is, appeal the decision and hope that the Court of Appeal or the Supreme Court would reverse the decision of the High Court. This would have sent a powerful message to all Kenyans, and the international community, that the law is supreme in Kenya and that even though the Executive is powerful, it will always live within the boundaries of law and honour its obligations, whether by treaty or under the Constitution. The second step, obviously, would have been to lobby the Legislature to amend the law so that a similar situation would not arise in future. But given the political dynamics at play today, it is not reasonable to conclude that the Executive would be able to achieve a victory in the Legislature in this regard.

Kenya is entering a delicate period in its transition to a presidential government, and ideas like Mr Kimani's are dangerous for they suggest that there is a small reactionary element that will subvert constitutional principles that Kenyans have overwhelmingly ratified. It is incumbent upon right-thinking Kenyans to be vigilant and vocal in protecting the gains made so far in the Second Liberation. Anything less and we will become a laughing stock in the capitals of the world and a pariah in international affairs.

Free the Service

President Jomo Kenyatta was wrong when he initiated the politicisation of the civil service. When the Head of the Civil Service, Amb Francis Muthaura was indicted by the International Criminal Court for crimes against humanity and gross violation of human rights, the process that had been initiated by Kenya's founding president had come full circle. Today, it is not possible to look at the work of civil servants without wondering aloud whether they are motivated by political considerations. The effects of the politicisation of the civil service have included a perception that none of them is to be trusted with tax-payers' monies. Ever.

When Hassan Omar Hassan, a Commissioner in the Kenya National Commission on Human Rights and the Chairman of the National Police Service Commission Selection Panel, published an Op-Ed piece in the Standard on Sunday two weeks ago where he stated that in all likelihood Kenyans would not elect another Kikuyu as president of Kenya, he revealed the state to which the politicisation (and ethnicisation) of the Civil Service had reached. Since President Kenyatta's 'reforms' - reforms designed to create a loyal and pliant Service - all three of Kenya's presidents, including President Kibaki, have had an interest in who the men (and women) appointed to senior positions in the Civil Service will be, and very strong ideas about what they can and cannot do. So too has Prime Minister Odinga (the recent High Court ruling that the Prime Minister's former advisor on coalition affairs was not a civil servant is telling). Thanks to the machinations of the presidents and senior politicians, the Civil Service is no longer seen as a means for the government to deliver essential services to the people, but a tool for prolonging the power of the incumbents at the expense of basic freedoms and human rights.

Mr Hassan raised pertinent questions (which he failed to answer) in his article. The effect on the morale of the rank-and-file members of the Service has been pernicious. Many are unwilling to go the extra mile in service to the people, arguing that their hard work will hardly be rewarded or that all the glory for their successes will be hogged by an elite few who enjoy the patronage of powerful ministers, or the President himself. The myriad scandals and failures of governance can be laid at the feet of these policies, such as they are, of ensuring only 'loyal' men and women hold positions of power or responsibility in the Government of Kenya.

In 2010, the National Cohesion and Integration Commission published a report that demonstrated that presidential decisions had ensured that one or two ethnic communities dominated the Civil Service, directing public resources to areas based not on need, but political expediency. As a result, communities that are not adequately represented in the Service have suffered from poor resource-allocation or development. The calls for 'regional balance' have grown louder. This explains why appointments to the various Commissions created by the Constitution must today include a need to enquire into the ethnicity of the members of the Commissions, in addition to their professional and other qualifications. Competence, sometimes, is sacrificed to the need to regionally balance these appointments, the effect being that Kenyans may not get the best or brightest to serve them.

One of the results of the ratification and promulgation of the Constitution in 2010 is that post-2012, Kenyans may yet get a government that is largely made up of technocrats, answering only to the President and Deputy President. But the lesson taken away from the fiasco of appointing Commissioners so far is that the political class, whether in the National Assembly, the Senate or the 47 County Governments, will go to all lengths to ensure that only 'their' people are appointed, to keep the pork flowing into their ethnic or political constituencies. The challenge of de-politicising the Service, or even its de-ethnicisation, will be greater than was the challenge of adopting a new Constitution. It is incumbent that even with the less-than-untainted Commissions, Kenyans maintain a heightened level of vigilance to ensure that the Service serves all Kenyans, and not the partisan and narrow interests of a group that has time and again disappointed so greatly in the past. It is time to free the Service.

Tuesday, December 13, 2011

What is good for the goose ...

In today's The Standard, Public Watchdog makes a spirited case for the protection of the freedom of the press (Threats to journalists affront press freedom, but who will punish these perpetrators?) Watchie is right when he holds that a free press is indispensable in a democratic society, and that especially in Kenya, it is critical to achieving the democratisation objectives that underpin the Constitution of Kenya. His apprehensions over the developments that have taken place over the past year, even in light of the promulgation of the Constitution are well-founded, and it is the duty of every person, whether public or private, to stand up for a free press and the protection of journalists as they go about their business.

However, as with many other commentators before him, Watchie makes certain fundamental mistakes that must be corrected, lest members of the public be left with the wrong impression about the state of affairs in government. One of the positive development, agitated for by many Second Liberationists, was the creation of independent institutions, free from the dead hand of the executive Branch of government. Towards that end, the Inspector-General of Police and the Director of Public Prosecutions were made independent under articles 245 and 157. Until the reforms in policing run their course, Watchie will continue to be justified in calling into question the independence or effectiveness of the Kenya Police Force or the Administration Police Service in investigating atrocities perpetrated against members of the Fourth Estate while going about their lawful duties. But in placing the onerous burden of protecting the Fourth Estate, or investigating crimes perpetrated against its members, only on the shoulders of the Attorney-General and the Director of Public Prosecutions, Watchie has surely lost the plot.

When Watchie argues that "...the Director of Public Prosecutions must initiate immediate action by constituting a high level investigative team and appoint an independent prosecutor to bring to account those threatening journalists", and that "...we wait to see whether the [A-G] and the [DPP] would elect to defend the Constitution through decisive action", he seems to forget that the mandates of both the A-G and the DPP are clearly described in the Constitution, and in several laws on the statute books, some enacted after 27th August, 2010 and some before. To begin, the A-G will have demonstrated fidelity to the Constitution by honouring his oath of office and by performing the functions and duties prescribed in article 154, especially article 154 (6) with regards to the rule of law and defense of the public interest. It is in the public interest to have a free and vibrant Fourth Estate that holds all public institutions, including the government to account. Second, the DPP cannot constitute a high level investigating team; the investigation of crimes or attempted crimes is the exclusive preserve of the National Police Service (article 244); the DPP merely has the power to direct the Inspector-General of the National Police Service to conduct investigations into criminal conduct (article 157). The office of the DPP, while independent, does not have supervisory control over the National Police Service; that role is reserved for the National Police Service Commission (article 246) and the Independent Policing Oversight Commission, which is the result of the recently enacted Independent Policing Oversight Commission Act, 2011.

While we appreciate the plight that Watchie's colleagues have or are undergoing as a result of their pursuit of a good story, whether or not it was in the public interest, we must not forget that the Fourth Estate is also beset by many of the structural and institutional infirmities that bedevil the government, including corruption, nepotism and unprofessionalism. While it the right of any person to own property, including a media company, and to associate with any person, including individuals in and formerly in government, to prevent accusations of conflict of interest, such relations must be managed openly and honestly. An independent press must hold itself to the same high standards as the government it is attempting to hold to account, otherwise it will be like the pot calling the kettle black. The ownership structures of media companies and their relationships with persons in and out of both the public and private sectors remained shrouded in secret; it is impossible to tell where the public interest begin and the interests of shareholders end. Until it is known, the Fourth Estate should be treated with skepticism. What is good for the government goose must surely be good for the independent press gander too!

Sunday, December 11, 2011

We are all equal. Deal with it!

The public face of the Government of Kenya is overwhelmingly masculine; women tend to work in senior government management positions or as junior ministers. It is a similar picture in the private sector where many corporate boards are overwhelmingly male, and the ranks of CEOs are dominated by men, but women are relegated to management positions. The Two-thirds Rule in the Constitution that reserves a maximum of two-thirds of all elective and appointive positions in government to persons of one gender was, let us be frank, meant advance the progress of women, especially in government positions, especially in Parliament. The proposed Constitution (Amendment) Bill currently before the National Assembly is meant to resolve the mechanics of ensuring that the Two-thirds Rule is implemented in the most practicable way possible. President Kibaki, in 2006 ordered that the government implement a One-third Rule, reserving one-third of all appointments in government to women.

Ever since the government and civil society turned their attentions on the plight of the girl child, Kenya has made great progress id addressing gender disparity, especially in the provision of public services such as primary healthcare and education. More still needs to be done, but only the uncharitable will deny that there is, and there has been, progress in empowering women and girls. President Moi set this trend off with the establishment of girls' secondary schools across the country and the increasing allocation of resources to address their needs. Civil society organisations have not been left behind ether, with concerned persons taking an interest in eradicating practices that limit or deny young girls and women their rightful place in society. Witness the growth in the campaign against female genital mutilation, in the face of opposition from traditional community leaders ad such like persons.

In the context of the 2012 general elections the Two-thirds Rule debate has taken on a deeply partisan and polarising tone, with partisan groups seeing sinister motives in the proposed constitutional amendments and others seeing political advantage where none exist. But this battle only seems to be playing out in the battle between ODM and PNU or any of the clones it has spawned over the past two years. Outside of the political arena, and because of the overwhelming public attention on all matters political, the changes that have taken place in gender issues have been profound. More women are graduating from university with professional degrees than anytime in the past. More girls are enrolled in primary and secondary schools than at any time in the past. And more women are starting and operation income-generating activities and businesses than at any time in the past. Listening to the politicians, one would be mistaken for thinking that women are still living in the darker times of the colonial and post-colonial eras.

The changes are yet to be fully accepted in Kenya. There are still great pockets of resistance to women's empowerment, where the idea of well-educated and employed women is still anathema. Even within certain institutions the idea that women should be empowered is received with scant enthusiasm. Even the sight of female soldiers in combat in Somalia was not received with the same degree of enthusiasm as when our female athletes dominate on the international stage. The campaign to win hearts, minds and cultural foibles is still a work in progress and the presence of more women in professional employment, or in leadership positions in the private and public sectors will help to move the needle towards recognising that, regardless of the intransigence of a paternalistic society, women are an integral part of the community, not just as homemakers, but as political, business and cultural leaders. Their contributions, throughout history, have contributed to the advancement of mathematics, science and politics and they are and will always be the equal of men in any time and place.

Saturday, December 10, 2011

The lot of the 99%

Only the wilfully blind refuse to see the economic ruin that was once the dream of the NARC administration. When Kenyans finally threw out the KANU kleptocracy in 2002, they did so fully realising that the path to reform and resurgence was going to be long and arduous. On the campaign rail, Mwai Kibaki, Raila Odinga and Charity Ngilu had made promises that were honoured more in the breach than in anything else. Zero tolerance to corruption became a cruel a cruel joke on Kenyans when Anglo-Leasing, Triton and maize scandals surfaced in rapid succession. But the greatest betrayal was when Kiraitu Murungi led the government out of the Bomas Constitutional Conference, against the wishes of Kenyans who had bled and died for a new Constitution ever since section 2A of the former Constitution was repealed.

Looking at the economic landscape today, it is clear that there are clear winners and losers, the one-percenters and the 99%. Even symbolic attempts by the government at austerity, such as the scrapping of gas-guzzlers for the VW Passat, are tinged with irony, seeing that the members of the Cabinet and the Members of Parliament continue to draw multi-million shilling pay packages year in, year out. Meanwhile, teachers, policemen, doctors, nurses, et al have continued to get the short end of the stick while the civil service continues to perpetuate its two-tier system, paying an elite few hundreds of thousands of shillings per month while the hard working members of the Service continue to subsist on meagre terms in the face of a hostile economic environment. When a well-fed member of the Cabinet calls for sacrifice, asking for the working classes to forgo pay-rises until Kenya is victorious in Somalia, the call rings hollow when we know he is probably going to spend a significant portion of his healthy salary on his mistress and girlfriend.

Ordinary Kenyans have fallen prey to fly-by-night Ponzi schemes of unimaginable scale and complexity. Billions of shillings have been lost when these con artists have upped stakes and fled town in the dead of night. Billions more were lost when in rapid succession three stock brokerages went out of businesses, taking their clients' funds with them. Even more billions are on their way out of the working man's pockets when the government, in a rash of law-enforcement urgency, descended on various parts of the city and its environs, reclaiming its land and demolishing homes that thousands have occupied for decades, in some cases. Tens of thousands of Kenyans still live in IDP camps, unable to engage in income-generating activities worth a damn simply because they cannot access credit (credit that has receded further from their reach with the recent hike in interest rates) as they have no fixed assets to call their own and no one to guarantee their applications.

Every single day, millions of Kenyans grapple with the harsh reality that the shilling cannot buy what it did a year ago: energy costs have gone through the roof, as has the cost of food, shelter, medicine and transport. This Christmas, millions will forgo their traditional luxuries in order to prepare for an even harsher New Year. As a result millions will fall prey to get-rich-schemes perpetrated with the full knowledge of senior officers of the government, making already hard lives harder. The one-percenters cannot imagine the shame and humiliation that grown men and women suffer when they have to deny their children certain luxuries. How can they when their lives are spent in the rarefied confines of members' clubs and beach hotels, far from the madding crowd? It is an indictment of our system that when the economy, even in straitened times keeps growing but millions sink further into penury and despair. It should make the one-percenters feel ashamed, but it won't. This is the reality, harsh as it may be, and one day, sooner or later, we will come to regret it.

It's time for them to resign

When President Kibaki and Raila Odinga, in a rare show of unity, exhorted Members of Parliament to approve a Bill to establish a local tribunal to deal with the prosecution of perpetrators of the 2007/2008 violence after the 2007 general elections, the MPs, led by William Ruto and Uhuru Kenyatta, scuttled the Bill. This rare show of unity ended and a period of coalition competition ensued where President Kibaki's side of the coalition and the Prime Minister's competed actively for political advantage. When the government invited Sudan's president to the Promulgation of the Constitution, Raila Odinga's ODM distanced itself from the invitation, even though Najib Balala, ODM's Minister for Tourism was despatched to hold Omar al Bashir's hand from the airport to Uhuru Park. It was mistake to invite the Sudanese president to the ceremony and Mwai Kibaki's wing of the coalition knew it. But rather than let the issue die down, they have now doubled down and invited him to an IGAD meeting that may or may not be held in Kenya, galvanising the International Commission of Jurists to obtain an injunction from the High Court that in effect orders the government to arrest Mr al Bashir should he set foot on Kenyan soil. Again, PNU and ODM have taken diametrically opposed positions on this matter: Moses Wetangula, the Minister for Foreign Affairs, and speaking for the PNU wing, has declared that the government will not honour the court orders, but the ODM wing has once more distanced itself from the official position of the government.

Kenya went to war against al Shabaab of Somalia and has gained worldwide support for its operations in Somalia. For a nation that had eschewed military force to resolve region issues it came as a shock to our neighbours when Kenya demonstrated that it had the moxie to deploy a sophisticated military against its enemies. For a time, our position was unassailable. Then Mr Justice Ombija granted the orders that the ICJ had sought and everything started going wrong. Mr al Bashir demanded that the reversal of the orders, and thus the Hon Attorney-General has appealed to the Court of Appeal. Kenya's operations in Somalia are now in jeopardy; so it has decided to pursue its interests as part of the AMISOM, hoping to dilute the effect that the court orders have had on its relations with the Sudanese. In addition, Kenya led the rejection of Sudan's application to join the East African Community further souring relations between the two nations. In the meanwhile, Moses Wetangula is busy shuttling between Nairobi and Khartoum hoping to keep Sudan on-side in the operations in Somalia.

This situation could have been avoided had the government realised that the opprobrium it invited by the invitation of Mr al Bashir to the promulgation ceremony would not go away. The ICJ had been one of the most vocal groups to castigate the government for its decision to invite Mr al Bashir, arguing that the provisions of the Constitution are clear about Kenya's obligations to the international community to honour the terms not only of treaties it has ratified by the laws of Kenya. The dynamics between the PNU and ODM have also contributed to the escalation of the situation from bad to worse. The two wings of the coalition have gone out of their way to demonstrate that one side has a leg up over the other when it comes to questions of national importance. It also being demonstrated today in the way the doctors' strike is being handled. Uhuru Kenyatta (from the PNU) is in charge of the purse-strings while Prof Anyang' Nyong'o (of the ODM) would like to resolve the issue quickly. If the two do not work together, more Kenyans will suffer as the doctors' strike continues. So too will the deterioration in the diplomatic relations between Kenya and Sudan if the coalition partners do not pursue a common agenda.

The situation is absurd, even by Kenyan standards. Raila Odinga and Moses Wetangula are all presidential contenders. Their interests, it seems, have overridden their obligations to the country at crucial times in the past and are doing so today. Mr Odinga would like to create the impression that he has a firm grip on the foreign policy of Kenya. So too would Mr Wetangula. Rather than act together to resolve Kenya's diplomatic challenges, they are both going off on their own tangents to prove to the other that he is better. As a result, Kenyans are constantly on tenterhooks about the likely outcome of its diplomatic and national security forays. This uncertainty must surely contribute to the nervous state of foreign investors; if they are unsure of the stand the government will take over such matters, they cannot guarantee the safety of their investments. It is time that the members of the Cabinet who have declared an interest in the presidency to resign, regardless of the provisions of the Elections Act and the Political Parties Act. It is the only way that the Cabinet can speak with one voice and act with singular resolve.

Tuesday, December 06, 2011

He who owns the media calls the tune. Sort of.

The Occupy Movement that is 'raging against the machine' across capitals in the West has received scant media attention in Kenya, or even in Africa for that matter. The corporate media, as Noam Chomski would probably put it, have controlled the voices that people hear, and the same is true even here in Kenya where the images beamed into our living rooms or plastered across newspaper pages do not describe the Occupiers as legitimate protestors but a fringe group that opposes even well-meaning government programmes towards their own selfish, leftist desires. In Kenya, over the past few weeks, many members of different sectors of government have gone on strike: teachers, doctors, aviation workers and even the police, all demanding a raise in their terms of service. They have received prominent media attention, perhaps because the government is always a good target when it is mired in one controversy or the other. But it is the industrial action by other workers in Kenya that has received the short end of the stick, completely blacked out by all media houses, only receiving attention from the lunatic fringe of the print media, pejoratively referred to as the Gutter Press.

The corporate media in Kenya - the Standard Group, the Nation Media Group, Royal Media Services, and Radio Africa - are wedded to their bottom line than to the ideal of keeping the government on the straight and narrow, especially in light of the government 's long, tortured history of human rights violations on a scale that would have made the Pol Pots and Idi Amins proud. When the Executive Director of the Federation of Kenya Employers exhorts the government not to acquiesce to the demands of agitating workers, and calls for more 'tax reforms' to cushion the 'economy' in this time of 'economic uncertainty' what she means is that if the government gives in, the employees of the people and companies she represents will demand the same opportunities as those demanded by workers in the public sector, which will reduce their already exorbitant profits especially now that they need to spend those profits in getting the government they want elected in 2012. In Kenya's urban and urbanising centres, the disruption caused by online media, such as blogs and chat-rooms, has largely neutralised the impact of the print media, but still have a long way to go against the electronic media, the least not being that all major media houses now have a significant online presence.

Given the givens, it is surprising that Kenya's youthful population has not organised itself int an online army to demand the truth from those who purport to 'report the news'. Many of the doctors who are marching in the streets asking for a 300% pay hike fall within the category of youthful persons, despite their 7 years of training. To become doctors, they must have swotted through countless nights; no one would trust their judgments otherwise. Yet, it is impossible to sympathise with them when they are portrayed by the mainstream media as a bunch of selfish, ungrateful, over-educated crybabies hellbent on throwing the country into unwarranted additional turmoil just when it is in the middle of a major offensive against a diffuse, faceless enemy on foreign soil. The images transmitted on TV of the doctors on strike only show a mob of loud louts incapable of reasoning sensibly or soberly that does not deserve the support of the people or the sympathy of the government. The doctors may have legitimate reasons, but you would not know it from reading the main dailies or watching the 9 O'clock news. For all their intelligence, these doctors have failed to take advantage of their intelligence to pursue a multi-pronged, multi-medium assault on the government, to demonstrate to the people that they are not monsters who will allow Kenyans to die in hospital simply because they must be paid. If they thought that bribing the ever-ready-to-be-bribed pressmen into telling their side of the story, they must have been shocked when the editors and editors-in-chief chose only the sensational over the substantive and effectively branded them as untrustworthy and callous.

A careful examination of the corporate owners of the media in Kenya will demonstrate whether their interests lie with the people of Kenya or with the overmighty dollar. It will also permit Kenyans to have an honest debate about who own the means of production, who own the levers of power, and who own the tools of accountability so that when we debate, say, tax reform or industrial relations policy, it will be done in the full glare of the sun and not in the shadows as is the custom in a nation where who owns what remains a secret that not even death will prise from their bossoms.