Friday, May 31, 2013

Do you trust Parliament to get it right?

The legislative process is about to get very interesting. The Members of the Tenth Parliament, in one of their more egregious moments of sheer lunacy, enacted the Statutory Instruments Act, which came into force in the beginning of 2013. In effect, it gives Parliament and oversight role in the process of drafting, approving and interpreting all subsidiary legislation published to give better effect to principal Acts of Parliament. This is not a minor professional quibble with Parliament, but a reasoned examination of the effect that a large bunch of inexperienced and untrained "drafters" will have on the administration, including drafting, proofing or interpreting, of the law of Kenya.

The experience with Parliament regarding the still-knotty problem of their salaries and remuneration proves the point.  On Thursday 30 May 2013, they promised to hold the national Financial estimates hostage unless their demands are met. The national Executive and the Salaries and Remuneration Commission have called the threats by Parliament unconstitutional. it seems this showdown is going down to the wire. But it is in how Parliament reacted that is instructive.

Instead of taking an objective look at the Constitutional powers of Parliament, theirs has been highly subjective - and selfish. Gwassi representative John Mbadi, who should know better after five years in the National Assembly, argues that "Parlliament can make any law; if the law is not there, we will enact it." He echoes the sentiments of the MPs who support the calls for higher pay for MPs. What he refuses to acknowledge, or actively turns a blind eye to, is the fact that Parliament is not the final word on the constitutionality of any law any more. So while Parliaent "can make any law" the High Court can declare the law or any part of the law to be unenforceable by reason of being unconstitutional. It is not the business or place of Parliament to rule on the constitutionality or otherwise of legislation.

If on a matter that affects parliamentarians so intimately they are incapable of drawing the proper interpretation of their powers, or options, from the Constitution, then it is doubtful that the "routine" business of law-making will be intelligently conducted. The Tenth Parliament was notorious for lack of quorum and poor debate. If we now saddle the parliamentarians and their staff with the additional task of not just enacting but drafting legislation, ensuring that the niggly bits of the proposed law are smoothed out and that all angles are covered, we cannot be sure that in emulation of their predecessors in the Tenth Parliament scrutiny of the Bills will be left to the Committees, many of which operate as vehicles for earning sitting allowances rather than conducting serious parliamentary business, or whether Parliament will do the needful and catch the anomalies before they become law. I am not confident that mistakes such as the Statutory Instruments Act, 2013, will not become the law of the land.

What is certain is that Parliament, just like many other parts of the government, prioritises capital and recurrent expenditure in very unusual ways. Parliamentarians may have the power to"make law", but elementary research would tell them that it is prudent to make law in partnership with the Executive; after all it is the Executive that would implement these laws enacted by Parliament. In their zeal to stamp their authority in government, parliamentarians risk alienating an arm that is crucial to their achieving their ends, whether politically or personally. More practically, the poor capacity in drafting expertise, whether in MPs offices or the Clerks', means that the quality of Bills will be even lower than what we have gotten used to over the past three years in our haste to "implement the Constitution." Poorly drafted Bill that are enacted into law will compromise the proper governance of Kenya and place even constitutional goals in jeopardy. they may even re-introduce government excess, exacerbate corruption and lead to the dark days of human rights violations. Who trusts Parliament to get this process right?



Stationary Jogging?

It is getting worse. While the men and women in charge of policy on policing in Kenya duke it out over who has the power and who does not, Kenyans continue to suffer security predations that place them in the same security quartile as Somali, Afghanistan, Colombia, Pakistan and Honduras. The wise men and women of the Committee of Experts listened hard and read all there was to read regarding the state of policing in Kenya. In harmonising the various draft constitutions into one, they knew that they were the first step to reforming policing in Kenya. Their work has been sabotaged ever since they would up their duties and the Constitution was promulgated in 2010.

Kenya's policing structure is still in a shambles. It is not clear at the grassroots from who officers would be taking directions or to whom they should report regarding purely policing matters. It remains unclear what role county Executives will play in policing in the counties or whether they'll have a say in policing priorities. In the middle of this confusion criminals and terrorists have stepped in with gusto. Incidences of night-attacks in Western Kenya and terror attacks in North-Eastern Kenya are on the rise. Armed robberies in Nairobi, Central and parts of Rift Valley are on the rise. Kidnappings are becoming prevalent, even against families that claim to live in abject circumstances begging the question why they are targeted to begin with. Then you have the ballooning of "victimless" crimes such as prostitution and generalized petty corruption.

Slowly, and perhaps because of the narrative perpetuated by civil society of a criminal National Executive, but surely Kenyans are developing a contempt for the rule of law. Every day we see proof of men and women who have "gotten away with it." Remember the head of the national HIV/AIDS program who was pardoned by Mwai Kibaki despite the fact that millions of Kenyans were placed at risk because of her thievery? Do you know that ever since the Island of jersey's authorities demanded the extradition of Chris Okemo and Sam Gichuru, not once have they denied that they did not commit corrupt acts, only that they UK authorities do not have a right to seek their extradition? Did you know that for years teachers and head-teachers accused of impregnating their female students, or otherwise taking sexual advantage of their students, were neither arraigned in court or punished in any way other than to be transferred out of their stations placing new children in different schools at risk of their predatory activities?

Despite Dr Willy Mutunga's heroic attempts to improve the image of the Judiciary, whether as the head of the Judiciary or the Chairman of the Judicial Service Commission, it is only the elite of the elite who believe that the Judiciary has been "reformed". Ordinary, man-or-woman-on-the-street Kenyans know that more often than not it is the man with the fattest wallet that gets "justice" in Kenya's hallowed halls of justice; the rest of us have to make do with the short end of the judicial stick should we find ourselves in a sticky wicket.

So it is not a surprise that the National Executive's priorities regarding policing have little to do with policing; they have everything to do with maintaining their political and executive power before all else. Kenyans, as is their wont, are resigned to this state of affairs because they know that even the men and women they elected to represent their interests are not going to do much unless Kenyans will give in to their demands for fatter wallets. The choice of Cabinet Secretary in charge of policing is disappointing. It remains to be seen whether the National Executive's choice will receive the respect and support from the security firmament to complete the reforms that have stalled since the Constitution was promulgated. Meanwhile, Kenyans continue to suffer banditry, terrorism and armed robbery.

Don't be a pigeon!

Despite my condition as a serious cigarette smoker, the ban by the Health Cabinet Secretary on all advertising of tobacco products is a welcome development. The link between cigarette smoking and a myriad of fatal health conditions is now beyond scientific challenge; any person who chooses to indulge in the "filthy habit" must do so knowing the risks. Unlike alcohol consumption, which kills more people directly or indirectly than cigarette-smoking, the latter has the potential to affect thos who do not smoke in even more insidious ways. Second-hand cigarette smoke is just as much a killer as directly-inhaled cigarette smoke. If fewer people can be attracted to cigarettes, and tobacco products generally, fewer people will be killed.

Many manufacturers and marketers of tobacco and tobacco-related products will howl in protest that their businesses are being "killed" by the cabinet Secretary. They may very well be right, but that does not mean that the Cabinet Secretary is wrong. The cost of keeping these businesses running has proven to be high indeed. In a nation that can barely afford to equip one public national referral hospital with the bare equipment to treat cancer, it is inconceivable that the Executive should sit idly by as more and more Kenyans are attracted to a way of life that will inexorably lead to cancer, among other "lifestyle" diseases that are expensive to manage. Following the lead taken by advanced western economies such as the United Kingdom and Australia, it should be difficult, if not impossible, for persons to smoke in public places or to to be attracted to the "class' factor os smoking this, that or the other brand of cigarette.

But it is in protecting the impressionable young that the Executive must pursue this advertising ban to its logical conclusion. Many smokers are attracted to the activity while in school, usually high school at the age of fourteen or fifteen. Part of the attraction is based on the advertising; tobacco advertising has been the most sophisticated for the longest time possible. It has also been insidious in targeting young sand youthful persons, especially those who have their whole lives ahead of them. The market in the United States, Europe and parts of Asia is shrinking die to anti-tobacco strategies being implemented by the governments there; it is in Africa and the remaining parts of Asia that Big Tobacco will direct their resources. They will attempt to scare the Executive with tales of lowered revenues; the Executive in Kenya should ignore them and plow ahead with its ban. The revenue lost in advertising will be more than made up by the reduced incidences of tobacco-related lifestyle health problems among the general public. It is a price we should be will to pay, no matter the lost jobs and shuttered factories.

Caution is warranted, though. The fiasco that has been the implementation of the Mututho Law should serve as a warning to the mandarins in the health ministry. "Sin" products are very lucrative, whether in the legitimate or "black" markets. Therefore, there is great profit to be made in circumventing and undermining the good intentions of the Cabinet Secretary. Whether he is successful depends entirely on whether the national Executive is resolute in this matter. If the Cabinet, and the Executive, are divided over the matter, then there will be inadequate planning or execution of the policy. Enforcement of any rules regarding advertising will be laxly enforced. There are only three major tobacco-product players in Kenya; I will be surprised if with a divided National Executive any of them, even the smallest player, is pushed out of the industry because of this ban. Admirable initiatives have been initiated in Kenya before; many failed because we have the attention spans of pigeons. I hope this time things are different.

Wacha watunyoe nywele na wembe bila maji!

John Mbadi is right: if the law is not there, Parliament can make one. However, he misconstrues that power; while he thinks that Parliament is supreme, when it comes to the declaration of whether a law is constitutional or not, it is the High Court that has the final say subject, of course, to the appeals process through the Court of Appeal at the Supreme Court. Kenyans have had a very difficult relationship with the last three parliaments; the elected representatives' insatiable desire for more and more of the Nnational treasure has made them a menace when it comes to the knotty probvlem of setting their pay-and-perks.
 
Let us not get carried away, though, by the arguments and counterarguments in this debate; let us instead question the entire rationale for a well-remunerated elected body such as Parliament or the 47 county assemblies that we wisely, or unwisely, agreed to in 2010. Let us begin this disquisition with the cost of getting elected in Kenya. It is not cheap. Therefore, whether one was an incumbent or a newcomer, the amount of money that one would have to spend to be elected or to retain their seat is colossal. The elected representatives would argue that they must be allowed to recoup their "investment" through their salaries and retirement benefits, otherwise they would lives of penury in payment for their life of service to their constituents.
 
While it is a reasonable argument, it is fallacious. For them to be elected, they had to spend large sums. They must have raised those large sums from somewhere. When they are eventually elected, they do not shut down the sources of the funds that they used for their campaigns, unless, of course, those sources were unlawful, in which case they should not have been elected in the first place.  Despite their howls of protest, very few MPs can claim that their salaries-and-remuneration is the only source of income they enjoy. They, or nearly all of them, run businesses and consultancies that net them much, much more than they claim from the National Treasury.
 
From a constitutional perspective, even Mithika Linturi's arguments are without merit. The parliamentary committee that adopted the report on the SRC Gazette Notices did not even bother to read the law on the matter; the power of the SRC to set the pay of State officers is not fettered by niceties such as Gazette Notices or the like. All statutes that were in existence before the promulgation and ratification of the Constitution in 2010 stood ultra varies to the extent of their inconsistency with the Constitution on the effective date, including the existing law on the salaries, remuneration and retirement benefits of elected representatives. The SRC did not purport to invalidate statute; statute had already been invalidated by the Constitution!
 
We have diagnosed the problem, and hypocritically, we have absolved ourselves of all blame. This author has consistently warned against buck-passing by the electorate of Kenya. In this instance, we must insist that Kenyans take full responsibility for the quick-fingered, five-fingered-discount-loving MPs that we call the Eleventh Parliament. As late as October 2012, it was quite apparent that if even one-quarter of the members of the Tenth Parliament succeeded in persuading their constituents to send them back to Nairobi, all the prayers in the world would be in vain. Those estimates were wildly off the mark. Justin Muturi and Ekwe Ethuro, the speakers of the National Assembly and the Senate respectively, are presiding over the most difficult parliament ever. Aden Duale, for Jubilee, and Francis Nyenze, for CORD, in the National Assembly lead a group of elected representativs used to getting their own way regardles of the consequences. On the question of their pay-and-perks, Jubilee and CORD sing from the same song-book without a discordant note between them. But the person to blame for the state of affairs is the one that elected the same lot expecting a different outcome.
 
When Aden Duale responds to our accusations of thievery and greed by calling us thieves and greedy pigs, he is not far off the mark. Were not many voters bribed during the elections without bothering to report the election offenses? Were not many voters involved in the commission of even greater election offenses such as voter intimidation? Were not many voters choosing their representatives based on their tribe or clan, rather than their party's manifesto or track record in public service? Are we not being hypocritical today demanding probity and integrity when these qualities mattered not when we were casting our ballots? Shouldn't we just let the elected representatives steal from us until there is nothing left? Deep down we know that we wanted them to do so. We just won't admit it. 

Tuesday, May 28, 2013

Peculiar Kenya.

Kenya is not the United States of America. Neither in the organisation of the government, nor the operations of its Judiciary, nor even the practice of its politics, is Kenya the same as the United States in any respect. If this has been unclear since the ratification and promulgation of a new Constitution in 2010, it should be starkly so today in the aftermath of a bungled process of "vetting" Cabinet Secretary candidates, the turf wars between various arms of the Executive regarding the National Police Service and the unremitting greed of the Eleventh Parliament. The concept of separation of powers among the three arms of government is yet to sink in with our powers-that-be.

The United States Congress, the United States Supreme Court and the Executive Branch of the United States Government share an uneasy relationship. This has been apparent over the past five years with Barack Obama as president of the United States. He proposed legislation to reform healthcare in the United States. It was opposed vehemently by the opposing party. His party rammed through a Bill through Congress in the teeth of Republican opposition. It was challenged in the Supreme Court. It is being implemented today. In all this, it was easy to tell, from the arguments advanced and the allies co-opted, which side of the debate one stood. In five years, Republicans and Democrats have only seen eye to eye on one thing: in the recent debate on the "sequester", a vicious round of public sector financial cuts, both sides agreed to suspend parts of the sequester affecting the Federal Aviation Administration (ostensibly because it would affect all their travel plans.)

In Kenya, it is only the Judiciary that is attempting to live by the requirements of separation of powers. The relationship between Kenya's National Executive and its Parliament is complicated chiefly because neither arm of government appreciates the paradigm shift in the power-relations between the two. The National Executive continues to behave as if Parliament exists merely to rubber-stamp policy while Parliament believes that revenue collected by the Executive is its own to spend as it sees fit.

When Uhuru Kenyatta and William Ruto were campaigning, they promised every child starting standard one in 2014 a free solar-powered laptop. It forms a prominent part of their coalition's manifesto, which is now the blue-print for the policies of their government. For the promise to be kept, the Executive and Parliament must work together, not only to ensure that the programme is viable, but that the funds are appropriated for its successful implementation. Parliament, meanwhile, is divided regarding the manner in which it will "vet" and "approve" nominees to various public offices, including to those Cabinet Secretary, Principal Secretary and in the diplomatic service. Phyllis Kandie, on paper, is eminently qualified to head the Department of East African Co-operation and Tourism. But during her "public vetting" by the national assembly Committee on Public Appointments, she came across as naive and un-informed. The report of the Committee was unequivocal: they would not approve her appointment as Cabinet Secretary. The Committee had not reckoned with the lobbying by the Executive among other MPs. Statements in support of Ms Kandie had nothing to do with her competence, intelligence or experience. She was easily confirmed regardless of the doubts surrounding her competence largely because a section of the National Assembly believes that its role is to run defense for the National Executive, rather than keep an watchful eye over its activities to check any excesses.

A free press is usually the institution that keeps a government honest. But it is an open secret that "free press" in Kenya is a largely empty phrase; during many of Kamlesh Pattni's trips to the courts, rumours have persistently swirled of the wads of money that change hands to report the story one way or the other. Then you have spectre of politicians and senior State officers owning majority stakes in, or outright, media companies, including radio and TV stations, and newspapers. It is only the naive who believe that "free press" in Kenya is synonymous with "corruption free" or "fair and balanced". So when they howl in pain when the State squeezes them a little, they are not to be surprised that the only ones who will rush to their defense are self-interested parties like opposition politicians or foreign powers; Kenyans, by and large, don't care one way or the other. And so the press has failed to highlight the incongruities in the system of government we have today.

So when we try to emulate the United States in what it does and how it does it, we do ourselves a great disservice. The United States Government is an evolution more than two centuries in the making, born of a revolution and a civil war. Not even Kenya's war of independence was a war of independence: it was a land-rights war that was co-opted for political ends by sectarian interests. Fifty years is not long enough for institutions to mature. It is why, in all its constitutional iteration, even under the 2010 constitution, Kenya remains a nation of strong, anti-democratic, amoral, corrupt influences. In this year of our Jubilee, we shouldn't paper over the ugly truths about ourselves. We should celebrate them, knowing that whatever else happens, we will do our thing as we've always done it: peculiarly!

Monday, May 27, 2013

What Idea called Kenya?

In 1885, European Powers agreed to carve up Africa among themselves. Until their massive land-grab, Africa did not have nation-states in the mould of the Old World. The Dark Continent, because of its fecundity and natural wealth, was largely a collection of ethnic communities, with one or two formally organised kingdoms, empires and city-states. But the advent of colonialism brought with it the spectre of the "traditional" European nation state, with "formal governments" and "national identities." It mattered not that in the division of spoils among the British, Germans, Belgians, Dutch, Portuguese, French and Italians, the boundaries that were drawn up did not reflect the "national" identities the colonialists and their settlers intended; instead, entire "nations" were fragmented, ethnic communities were subdivided and whole cultures were rendered irrelevant with a stroke of the treaty pen.

Nationhood in Africa never really took root as it has in the West or Asia. Even appeals to nationalism have always foundered on the barriers of ethnicity and tribalism. It is for this reason Prof Makau Mutua's assertion that "Kenya as an idea has never been so deeply imperilled" (Kenyans are more divided today than ever before, Sunday Nation 27/05/13) must be interrogated further. The context for Mr Mutua's assertion is the two-fold: first, the calls to "move on" and the persistent calls to do nothing that would imperil our fragile peace are misguided and wrong. It is imperative that Kenyans continue to question the path they are being led on by the charmers in the Jubilee Coalition led by Uhuru Kenyatta and William Ruto. Second, the hateful vitriol being spewed on the web, especially on social media sites are a true reflection of who we really are as a nation. It is only online, according to Mr Mutua, that our true selves are reveled, where even with the anonymity that comes with aliases for registration monikers.

This author readily admits that he has called for the nation to move on, including urging Mr Mutua to "let it go." This author also admits that he may have been wrong. In papering over the flaws of the 2013 general election, I was guilty of willful blindness to the sins of the candidates on the ballot. Many of them made pie-in-the-sky promises that they, and I, knew to be worth a bucket of warm spit. Many of them persisted in laying the blame for the travails of their constituents at the feet, or on the shoulders, an Other that so happened to be a "tribe" they disagreed with at the moment. Many are now suspected of fanning violence in different parts of the country in retaliation for either losing in the elections or, if victorious, in celebration. We are, in the words of Safaricom's former CEO, a very peculiar people with very peculiar habits.

But the claim that Kenya is an idea, I believe, is founded in the wrong presumption. When Kenya gained independence, it did not really become independent: what we got was the right to internal self-rule. the Prime Minister and his government may have been Africans, but the Governor was British and Kenya was governed in the name of the queen of England. Even then, Kenya as a political territory had only existed for 42 years, since 1921 when Kenya became a colony. In the 42 years of official British rule, the colonialists effectively implemented a divide-and-rule policy that bred suspicion and ill-will that not even internal self-rule or the declaration of a Republic could eliminate. Fifty years later, in an epoch-making general election, Kenyans are still as divided as they were when the British coralled about forty-two ethnic communities into one land and called it the Kenya Colony.

It is the rose-tinted glasses of the likes of Mr Mutua who dream of  Kenya as an idea that persuades this author that Kenya is yet to stabilise, never mind all the rosy projections of the pundits, economists and politicians. Kenya has never been democratically governed; it has never had an incident-free transfer of power; its peoples have never been united; and its politics has always divided more than it has united. Now that we have empowered tribal chieftains to spend what they do not have in the name of devolution, the political schisms running throughout the country are set to deepen and widen: we will never close the gulf between our peoples. One way or the other, we are going to find more and more things to divide us than to unite us, and we are going to play on the fears and insecurities over our neighbours that I will be surprised if saner heads will not call for the disbandment of the Senate and the devolved system of government in favour of an still-emasculated presidency that is decentralised at the grassroots. There has never been an idea called Kenya; once we admit it, we can stop comparing ourselves to Western nation-states. We can then start to redefine our identity and our fate.

Thursday, May 16, 2013

Tell it to the pigs!

Muslim Members of Parliament were offended at being compared to pigs. They've obviously never heard of "imagery", "irony" or "metaphors." They accused the protesters outside Parliament on the fourteenth of blasphemy. Blasphemy is the act of insulting or showing contempt or lack of reverence for a religious deity or the irreverence towards religious or holy persons or things. Could they please inform Kenyans which among them is a religious deity or a religious relic. These men and women are now taking hyperbole in their demand for higher salaries to extreme ends.

Some principles need to be laid down in this fight. First, even a rudimentary understanding of contract law provides a clue as to the wrongness of the argument by parliamentarians. Ordinarily, a contract for a term of years expires when the term ends. If parliamentarians intend to argue that the Tenth Parliament had a "contract of employment with the people of Kenya" and that the terms of the contract included their salaries, remunerations and retirement benefits, then the contract was between the people of Kenya, the members of the Tenth Parliament, and it came to an end when Parliament stood dissolved for the general election. Between the date of the dissolution and the election of the members of the Eleventh Parliament, the institution of Parliament may have existed, but the parliamentarians did not. Now the terms of the contract did not bind the institution of Parliament, as claimed by Mithika Linturi, but parliamentarians. Indeed, members of the Tenth Parliament may only claim their terminal and retirement benefits, because those survive the termination of the "contract of employment", but not the salaries and remunerations they enjoyed during the life of the Tenth Parliament.

Second, Parliament derives its independence from the people of Kenya. While it is a creature of the Constitution, the Constitution is the expression of the collective will of the people. In the same light, the Salaries and Remuneration Commission is a creation of the Constitution and it exists because the people of Kenya wish it so. Parliament may have the power to make law; but this power is not sui generis; it is delegated to Parliamentarians by the people of Kenya. Therefore, parliamentarians cannot claim a) that the people cannot demand lower salaries and remunerations for parliamentarians; b) that the Salaries and Remuneration Commission overstepped its mandate by using a "legal notice to amend an Act of Parliament;" or that c) the Constitution has been grossly violated by setting the salaries and remunerations of parliamentarians lower than in the Tenth Parliament.

Back when Kenyans were sheep ready for the slaughter, the President could do as he pleased; Parliament merely rubber-stamped decisions that had been made and enforced. In a later iteration of the abuse of State power, Parliament acquired a few powers and used it for the aggrandizement of MPs at the expense of ordinary Kenyans. In the evolving relationship between the State and the people, State organs, especially the President and Parliament, operated in a twilight zone where common decency, the rule of law or the will of the people were absolutely absent; the people were specks of shit on the State's shoe to be flicked off in contempt.

Third, if it is true that parliamentarians have a contract of employment with the people of Kenya, the people, in all their naive wisdom, have placed the responsibility of determining the salaries and remunerations of parliamentarians on the shoulders of the Salaries and Remuneration Commission. Also, if the parliamentarians wish to increase their salaries and remunerations, they can only make this demand after they have worked for it; no employer in his right mind will give an employee a pay-rise without some form of performance appraisal. Performance appraisal may only take place after performance. It will be positive if the performance generates benefits for the employer. So far, Parliament has not been beneficial: in Busia, Bungoma, Garissa, Mandera, Moyale, Tana River and Trans Nzoia the people are being murdered while Parliament turns a blind eye. On this ground alone, Parliament cannot demand a fatter pay-cheque until the people in these areas can live in peace and security.

Finally, Members of Parliament, including those professing the Muslim faith, may be "religious" in that they wear their religion on their sleeves, take time to perform all the rites and rituals required to remain "right with God", and, at least outwardly, are the milk of human kindness. But the past two months has reminded Kenyans that parliamentarians continue to live in a world of their own where reason and logic, truth and justice, morality and civic-mindedness are alien concepts. Many parliamentarians represent constituencies that languish in abject poverty, where youth unemployment and crime rise in tandem. Instead of attempting to find ways to ameliorate the suffering of the people, parliamentarians have perfected the art of the handout, hence their enormous "expenses" every month. What MPs should have done all along was to harry the Executive to ensure that facilities required for the improvement of conditions of living are provided. This is what representation is all about. If they cannot do it, perhaps it is time we seriously reconsidered the qualifications for a person to be an elected representative. If we are going to end up with the likes of Tiyah Galgalo, Bare Shill, Mithika Linturi or Richard Onyonka, then perhaps we are better off with teh return of Daniel Toroitich arap Moi and his inimitable style.

Wednesday, May 15, 2013

Half-an-idea is not enough!

On Tuesday, 14 May 2013, Kenya's civil society did something extraordinary. They corralled a sow and her piglets, loaded them onto a filthy lorry and dumped them (and a tank of blood to boot) right outside the gates to Parliament. It was the most extraordinary expression of popular outrage against the Members of Parliament's demand for higher pay-and-perks, quite against the wishes of a majority of man-on-the-street Kenyans. It was unexpected and shocking. It revealed the vestigial remains of civil society's ability to keenly decipher the mood of the people and to express it in a manner that would capture the popular opinion. It was also offensive, deeply so, and the shocked and outraged visages of MPs reflected the deep insult that had been hurled at them. This is what political civil society must do.

Sadly, their imagination ran out. Political civil society is supposed to be the conscience of the people when the political and faith-based establishments fail in their duty. Instead of advancing, even in the brief talking points put out, the moral, legal, sociological, financial and political case against the Members of Parliament, the protestors advanced juvenile arguments, and deployed aggressive and violent force against the few idiotic MPs who chose to engage with them.

This is the problem with the political civil society today. It may express, more often than not, the popular will of the downtrodden, but it is incapable of engaging intelligently with the nation's or global intelligentsia. It has been reduced to sloganeering at the expense of developing the philosophical weapons needed to prevail, both at the grassroots and in the corridors of power. Some, including this author, argue that part of the reason why political civil society is in decline is because it has become too wedded to the idea that for it to prevail, it must expend money. Money has become the principle excuse of why political civil society does not engage the State on all matters that affect the people adversely. Money has become the umbilical cord that links political civil society with hare-brained outfits from the West. Money is the reason why political civil society champions increasingly resemble the MPigs they were demonstrating against on the afternoon of the fifteenth: rotund and swanning around in SUVs or high-priced limousines. While Members of Parliament want our money to spend on these luxuries, political civil society champions want Western nations' citizens' taxes to spend on the same luxuries! The irony is not lost on this author.

This is not to argue that there aren't intelligent people amongst the leading lights of the political civil society movement. Not at all. Or that if they enter elective politics, and succeed, they will debase their principles at the altar of the filthy political lucre on offer. The Member for Ndhiwa, Agostinho Neto, for example, may not be as famous as Maina Kiai or Makau Mutua. But he has managed, in his brief stints in the Tenth Parliament, and now in the Eleventh, to demonstrate that it is possible for someone to enter the "enemy's" camp with being seduced by the bright lights and temptations on offer. His most recent proposal, while in some respects is misguided, is an eye-opener. While the political civil society shouts itself hoarse sloganeering in the streets, Mr Neto is proposing the amendment of the Constitution to set the total number of MPs at 304, eliminating the nominated ones and abolishing the 80 constituencies created in 2011. In a practical way, if his proposal is accepted, the Parliamentary wage-bill will be radically reduced. Of course this author realises that Mr Neto is pushing against the sky but, nevertheless, wishes the Ndhiwa MP success, even partial success in his career in elective politics.

And that is the point. It is not enough to have a point of view, especially a contrary point of view, without proposing alternatives that are reasonable. Political civil society today is robustly against the explosion of the "public wage bill" but it is yet to propose solutions that will accommodate the interests of both the public servants and the public they serve. Simply accusing public servants of excessive greed without proposing practical, realistic solutions is a recipe for mutual disrespect and conflict. The pigs were a nice touch. It would have helped that the civil society activists had an idea out of the current impasse.


Tuesday, May 14, 2013

Time to Bell the Cat.

It is strange to hear calls for a more muscular intervention by the State in the continuing security crises from the leading lights of the human rights movement in Kenya. In the dark days of the Kenyatta dictatorship and the Moi kleptocracy, any use of the State's security apparatus was treated with great suspicion. Mr Kenyatta had the never-ending Shifta Wars and Mr Moi had his Wagallah Massacre. The new President is faced with the spectre of murderous gangs, apparently without motive, murdering and maiming their way through Busia and Bungoma counties, and armed foreign militia doing their own murderous thing in Mandera and Garissa. But it is not the lead-footed response of the State that is startling; it is the response by human rights campaigners, the same ones who were up in arms and gnashing their teeth when John Michuki's boys went after the Mungiki, who are asking for ever greater draconian responses from the State.

The irony that the two men accused my those human rights people of overseeing the bloodiest tit-for-tat ethnic violence for a generation are asking for the two to take a more robust view of things today. How things change. Messrs Kenyatta and Ruto inherited a security situation that had been deteriorating for years. Ever since the first bomb went off during Mwai Kibaki's administration and the series of militia and ethnic attacks that followed, we have been sitting on a powder keg that seems to have many points of detonation. What is clear is that despite Kenya's muscular performance in Somalia against al Shabaab, our security establishment is operating in a pre-Windows95 age while everyone else is in the tablet era.

The problem is not the law as written. The criminal law of Kenya in its many manifestations is robust enough to deal with the prevention, investigation, prosecution and punishment of many forms of crime, even sophisticated cross-border ones. The problem is institutional. And the secrecy that surrounds the security establishment hobbles the cause of greater, and better, security for Kenyans than anything else.

Twenty-first Century democratic Kenya's security establishment relies on colonial and authoritarian Kenya's secret police and secrecy for effectiveness. When will we admit that the old ways are obsolete and that a new, more open and accountable system is required? The in Garissa will serve to illustrate the point. When the attacks first started, Kenyans were still in the dark about how many regular police, administration police, paramilitary GSU or Kenya Defense Forces troops were stationed in that benighted town. To this day, Kenyans are still in the dark. If there were suspects being hunted by the security forces, Kenyans are yet to be told who they are, what they look like, who their associates are, how they can be identified, what charges may be preferred against them, or whether any of them in the months since the atrocities were committed have been arrested. Other than the regular pithy State assurances that everything was being done, Kenyans do not know the state of the investigations, whether the State is prevailing or losing.

Parliament has been asleep at the wheel too. Instead of prioritising the safety of law-abiding citizens and foreigners alike, our Members of Parliament, and the members of the affected county assemblies, have spent the better part of their first months in government fighting for higher pay or going on strike in order to force the hand of the Salaries and Remuneration Commission to raise their pay. Instead of moving with haste to convene meetings of the relevant oversight committees or, in the case of the county governments, the relevant inter-governmental committees, to address the out-of-control lawlessness in the country, our elected representatives have concentrated more on political brinkmanship and knee-capping to fully internalise the horrors being visited on their constituents. Aden Duale, the Majority Leader in the National Assembly, so loves the sound of his voice, especially when referring to the thousands upon thousands who elected him as greedy thieves, that he has had not time to ensure that the party he leads in Parliament has done its duty of forcing the Executive to take robust action regarding the continuing murders, especially of his own constituents. And so you have civil society, which is traditionally suspicious of the Executive, demanding more and more police and more and more action against the perpetrators of the mayhem.

We have come full circle. The secrecy that contributed to the excesses of the Executive in the past has become a shied for the Executive to hide behind regarding its ineffectiveness in its fight against crime. Transparency and accountability would compel the Executive to re-examine its priorities and resource-allocation. It would compel it to admit that it is an abject failure with a view to reforming how the members of the security establishment are trained and facilitated as they go about their duties. It would compel Kenyans to take a closer look at how they are policed and protected, and what they could do to make things better. It would compel the competing security agencies to co-operate more. It would ensure the Jubilee's goal of greater and better security for all is realised. It is time to bell the cat.

Monday, May 13, 2013

The Goldenberg Affair and Judicial Reforms.

Kamlesh Mansukhlal Pattni, also known as Brother Paul, is a fascinating man. For twenty years, by some accounts, he has "romped through the Judiciary" using chicanery, bribery and fraud to keep his hide out of the loving embrace of the wardens at Kamiti GK Prison. Some members of the Judiciary are accused of being his footstool, bending to his every whim each and every time he presents himself in court on one cause or the other to perpetuate his continued liberty. Mr Pattni is accused of robbing the Government of Kenya and, by extension, the people of Kenya blind. The sordid tale of the Goldenberg Affair has been told and retold a thousand times over. It was even the subject of a Commission of Inquiry and featured prominently in international litigation. It continues to boggle the mind of keen watchers of Kenya's administration of justice machinery why Mr Pattni is a free man. I believe I have the answer.

First, from the outset, let it be known that Mr Pattni is yet to be convicted of any crime. For twenty years the State has attempted to prove that Mr Pattni was the spider at the centre of the web that became the Goldenberg Affair. Second, despite the findings of the Bosire Commission into the affair, there has been a singularly spectacular lack of will to prosecute him in the manner required. Third, and most important, Mr Pattni has proven to be quite the intelligent and clever quarry. He must have studied the criminal and civil law of Kenya with a determination that is singularly lacking in the half-dozen or so prosecutors and private-practice lawyers who have attempted to hold him to account in one form or the other. He has managed to find loopholes and gray areas in the law of Kenya that have contributed to his string of successes in the corridors of justice.

In the decades that the Goldenberg Affair has occupied the minds of keen watchers, Mr Pattni has become an expert at the civil and criminal procedure of Kenya. Bernard Kalove, his lawyer, is a capable advocate for his client. But I believe that it is Pattni who has the better grasp of the ins-and-outs of the law. His timing, as in everything else he has been embroiled in, has been spectacular. He has not just exploited the loopholes and gray areas, he has also managed to turn a profit at every turn. Not Mr Pattni for the subtle approach; he has wielded the sledgehammer of the law to get things done his way. Every calculated move he has made in the past two decades has not only been designed to protect his liberty, it has also contributed enormously to his great wealth and destroyed those who would seek to destroy him. If he weren't considered the most odious man alive, he would be celebrated as a folk hero who has bested the mighty Kenyan State and his legions of enemies.

Those caviling at his rare successes miss the point. When they demand that judges and magistrates be investigated for making rulings that favour the businessman, they betray the fact that they have failed to understand the facts. And they refuse to admit that the judicial reforms currently successfully underway are only one half of the equation. The other half comprises police reforms and reforms in the prosecution services of the State, both of which leave a lot to be desired. If we accept that the evidence exists to convict Mr Pattni of the litany of charges that face him, then we must also accept that the reason he is yet to set foot behind bars for his crimes is because our police and prosecutors are out of their league. While we may abhor the manner in which he has exploited the law to his advantage, we cannot deny him the right to do so, even when it makes the bile in our stomachs rise up with such putrid vengeance. We must instead ask why the State, in its many manifestations, has failed to lay a glove on the cherubic face of Mr Pattni. When we give satisfactory answers to that question, then, perhaps, we may begin to reverse the losses that the State has suffered at his hands.

But it could be that the rot is too deep and that the radical surgery, the vetting of magistrates and judges, and the reforms in the Judiciary have all been cosmetic. It is not suggested that the Chief Justice or his judges and magistrates are corrupt. It is not suggested that the officers of his court are corrupt. It is not suggested that the lawyers involved in the matter are corrupt. And it is not suggested that the police who keep investigating and re-investigating the Goldenberg Affairs are corrupt. But perhaps the sclerosis that hobbled the Judiciary for decades will take a wee bit longer to resolve. The hiccup during the reading of the Presidential Petition judgment points to the slow-burn form of the judicial reforms taking place. It will be a while before Kenyans can honestly stare in the mirror and agree that the Judiciary is a paragon of virtue. That day may be realised when Mr Pattni finally gets his just desserts.

Seize space, don't beg for it.

There is a feeling among the chatteratti and the punditocracy that Kenyan civil society is under assault by agents of the State. This may be true. But the solutions being proposed will do nothing to restore civil society to its rightful place. In the 1980s and 1990s, civil society, especially in the political and human rights arenas, was the moral champion of the nation. Its members suffered brutal depredations at the hands of agents of the State. No one questioned their moral authority to say what they said and to do what they did, other than the agents of the State who kept muttering darkly about "foreign interference" in the affairs of the State. The fruits of their labour are plain to see: a liberal Constitution and the institutionalisation of the business of governance.

Sadly, today civil society is a pale shadow of its former self. To be sure, in key areas it continues to do what must be done and to say what must be said so that Kenyans can have what they need. In the field of education or healthcare, civil society soldiers on where the State has decided to take a more laid back approach to things. But in the fields of human rights and politics it is hard not feel a little ashamed that active civil society organisations have not a clue as to what must be done to restore their moral leadership. Begging for scraps from the State is not the way to go about it.

Today, cant and sophistry define civil society. They have, since 2003 at least, become handmaidens of political interests out to sow unrest in the nation. If there be unrest, it should come from the unfettered, undirected hands of civil society warriors, not from the diktat of this or that political champion with an axe to grind. A recent example will suffice to demonstrate how low civil society has sunk. March 2013 marked a watershed in Kenya's political evolution. A massive electoral exercise was conducted to elect Kenya's next government, its newest under the three-years' old Constitution. As is common in Kenya, the results of the election were disputed and the aggrieved went to court.

It was their right to do so. But it is in the behaviour of civil society - NGOs, CSOs, faith-based organisations and the media - that we must admit that civil society is dead. Instead of keeping the interests of all Kenyans at the front of their minds, they picked sides and chose winners and losers. Some went so far as to attempt to intervene in the choice of the men and women who would be on the ballot. Some called on the international community to ostracise the government if their bete noirs were elected. When the presidential petition was heard in the Supreme Court, they did not have a logical, credible case to present other than arrant sloganeering that failed to persuade the six judges who heard the petition. Now they wish to persuade us that because they opposed two elected officials, these officials pose a threat to their survival because they opposed their candidature every step of the way.

In politics or human rights, civil society has not covered itself in glory. It has become petty and partisan, choosing battles with an eye to winning a popularity contest against the State. Instead of speaking the truth to power, and pointing fingers in every sordid corner of our land, they pick which politician is cleaner than the rest and appoint him our Messiah. Regardless of what is done elsewhere, Kenyan civil society must break free from the thrall of acting as king-makers. When they see injustice, even from their heroes and heroines, it must point it out. When it sees corruption and theft, it must point it out. When its political champions stand idly by as innocent Kenyans are murdered and maimed, it must carpet them for their lack of spine. It must do so even when the funds disappear or when its men and women are arrested in the dead of night, unlawfully detained or murdered in cold blood. It must regain its independence if it is to regain the support of the huddled masses. When we see the doyens of civil society hob-nobbing with the high and mighty from this or that political side, we know that they do not have our interests at heart, but they are looking out for the next Big Cheque. And the State is not going to give an inch. They must seize the space they have lost, not beg for it. That is not the civil society we knew.

Hypocrites, one and all.

It must be stated at the outset that we do not - NOT - approve of the goings on in Mombasa. Even in the most liberal of democracies or the most laid-back of autocracies, bestiality must be frowned upon and snuffed out before it rages like a prairie fire. What happened in Mombasa, and it has happened before, should not be seen by the fairer of the sexes falling on hard times as a legitimate way to earn a living. The men, and it is always men, who contrive to entrap our children in a life of licentious abandon without considering the imperiling of our children's immortal souls must be found out, prosecuted to the fullest extent of the law and hounded out of our country never - EVER - to return.

The moral fabric of this nation is in shreds. We all have had a hand in the sorry state of affairs that we find ourselves in. It is not just the sordid tales of bestiality that prove this to be so - the unquenchable thirst of our elected representatives for the sweet honey that is the Consolidated Fund is a pointer to how low we have sunk. The pursuit of mammon at the cost of our morality has become the raison d'ĂȘtre that is consuming our youth. A year ago, a promising post-graduate student was murdered in unclear circumstances. The rumours surrounding her early passing revolved around illicit narcotics and prostitution. Her name was dragged to the mud. And yet to date no one person has been detained for her death; her parents continue to live their lives not knowing whether their child had fallen victim to gangsters or was a participant in some other sordid tale.

For a decade now, sex-for-grades has been an open secret in our institutions of high learning. Young men and women (yes, men too) are compelled to offer sexual favours to men and women who should know better in order to graduate. It is unclear whether the students deserved the horizontal grades they receive; it is clear that the lesson they take from the Ivory Towers is that one must do what it takes to get ahead in life. It is not enough that you are bright and hardworking; if that fails, shelve your moral qualms and dive into the quagmire. It is the only way that your name will appear in lights and you will be the envy of your peers.

The Roman Catholic Church is among the oldest, most influential and wealthiest organisations in the history of mankind. Yet, in the Twenty-first Century, when not only the soul but the body is at risk, it insists that the moral code it has enforced for millennia is the only code that may apply in our lives. In Kenya, today, it is an open secret that whether one is married or single, in a committed relationship or still searching, sexual libertineness pervades the land. It rare person who has only the one sexual partner. It is there rare person who will take into account the health risks of promiscuity and act accordingly. In the collapse of institutions, including the church, that kept the youth on the straight and narrow, the explosion of sexual abandon has come at a very steep price. It is reported that at least 100,000 persons in Kenya become infected with the Human Immuno-deficiency Virus that sometimes blossoms into full-blown Acquired Immuno-Deficiency Syndrome. This does not take into account the hundreds of thousands more who are stricken with sexually transmitted infections such as syphilis or gonorrhea. Blind to this fact, and blind to the continuing suffering of our youth, the church argues that the use of prophylactics is against God's will! You invite the wrath of the Cardinal and the Archbishop if you use a condom to keep your body safe from infection.

It is with regard to sex that you can tell how low we have fallen. But sex is just one of the areas where we can measure our moral strengths. IN other areas, we are just as condemned. We turn a blind eye to our friends and relatives when they steal; we argue that every one does it and it is the poor sap who will not take a five-fingered discount when the opportunity presents itself. We turn a blind eye to the neighbour who uses violence, whether physical or linguistic, against their family. We argue that what happens behind closed doors is the business of the residents of that house. We celebrate our young when they cheat to pass their exams. We argue that the ends justify the means employed. We are not shy about cutting corners when constructing buildings. And like the proprietor of the ill-fated building that collapsed recently in Bangladesh, we will scurry and hide from the long arm of the law when disaster strikes.

The moral messages we pretend to impart on our children are the empty words that we offer our creator every day we lie, cheat or steal. We should no longer be surprised when our youth, seeking the lucre that comes with being bad, engage in risky acts to make a fast shilling regardless of the risks to their lives or their souls. When we allow anyone and everyone with a fat wallet to get away with murder, we have no business feigning outrage at the immoral acts of those that get caught.

Friday, May 10, 2013

The worst Fifth Columnists.

Kenyans no longer have a champion who will speak up when their rights are threatened. Even in the dark days of the Kenya Peoples' Union revolt, Kenyans had faith that their elected representatives had their interests at heart; it was the business of elected representatives to represent the interests of their constituents in the highest corridors of power without fear. The late Martin Shikuku, Jean-Marie Seroney and Ronald Ngala may have at one time or the other faltered in their duties, but there isn't a Kenyan alive who knew them who could argue that they betrayed their duty to represent their constituents. In the late 1970s, Kenyans had the Seven Bearded Sisters who did all in their power, in and out of Parliament, to point out that the kleptocratic authoritarian regime inherited from Kenya's First President has hell-bent in stymieing the natural expansion of democratic rights and space a nation undergoes as it becomes better educated and wealthier.
 
In the 1980s, the Mwakenya Movement became the catch-all phrase to describe the men and women who worked in secret to educate Kenyans on their rights and on the sins of their government. Whenever Kenyans linked to the movement were arrested, unlawfully detained and prosecuted, Kenyans, cowed or not, knew that there were others willing to sacrifice their liberty, even their lives, for those who could, or would, not. Dr Willy Mutunga, the Chief Justice and President of the Supreme Court, was one of the champions that Kenyans could rely on to speak truth to power for which he paid a very steep price. In the 1990s, it was institutions like the Law Society of Kenya, and pressure groups such as the Forum for the Restoration of Democracy, that finally forced the State to accept that progressive change was inevitable. The repeal of section 2A of the former constitution was an admission by the State that political progress was a necessity of Kenyans were to fully realise their potential. It was also a confirmation that until the day Kenyans had institutions in which they could repose their full faith, champions were necessary to get things done for the people.
 
What Kenyans thought was the final defeat of the KANU machinery built up since 1963 when Mwai Kibaki was sworn in as Kenya's third President in 2002 turned out to have been a mere blip in the radar. When Mr Kibaki and his cohort moved swiftly to not only consolidate their power but to also co-opt the champions Kenyans had come to rely on to keep the State out of their affairs, the euphoria of the moment blinded us to what was truly going on. Suddenly civil society organisations were lending their members to State agencies; many were being funded by the State to address key bread-and-butter concerns of the people. But in the important, nay, critical, areas of political progressivism and expansion of democratic space, the Kibaki regime was quick to stamp its own authority and to use the very same draconian techniques that had been employed by every regime since 1921 to control how Kenyans thought, with whom they associated, what they read, and what they could say. And it turned out that many of the champions who should have spoken up for Kenyans had feet of clay; civil society had its nose too embedded in the trough of State truffles it could not be bothered to raise its head, or its voice, or to prick its ears to the incessant cry of pain from the people whose duty it was to protect from their own government.
 
With the co-option of the home-grown champions by the Kibaki regime, a new breed arose: urbane, well-read, well-travelled and well-funded. But their sophistication hid many flaws, some which are proving to be near-fatal to the state of freedom in Kenya. What had started out as an experimentation in the hey-days of the nyama choma ambassador, Smith Hempstone, had been perfected by the envoys of the European Union: it was not enough to fund civil society champions; they would be "educated" as to what they should do, what interests they should pursue and what issues they should raise. While their language mirrored that of the champions of the 1970s, '80s and '90s, their intent and effect was quite different. Certain progressive ideas were inevitable, especially when the State accepted them as so. Multi-party politics was here to stay. An equal voice for the discriminated and marginalised was the only way forward. Women must play a greater role in the development and governance of the State. These, and many others, were noble, laudable issues to be advanced for the benefit of Kenyans and champions have risen in the past to advance them.
 
But since 2005, civil society has lost its way. Its obsession, it seemed, was the elevation of one man above all as the True Champion for Kenyans. He has become the darling of the Western powers after Mwai Kibaki discovered that it does not matter where dollars come from, so long as they come and he forged ahead with developing and deepening ties with non-traditional partners such as China, Iran, Russia and India. While the West is mired in its "economic meltdown", the East surges forward and Kenya is hanging on its coat-tails for dear life. But at the same time, the State has adopted mannerisms and behaviours that remind Kenyans who can remember of the dark days of the 1970s and 1980s when men and women were rounded up in secret and either murdered in cold blood or jailed unlawfully. While champions arose to check the State then, today the only people available are only interested in "programmes'' and "policies" and the next fat pay-cheque from overseas to implement a "grass-roots programme" to ameliorate this or that social ill. When they do speak on political issues, it is to repeat what Western ambassadors are saying: that one man is to be trusted over all others to steer the ship of State in the right direction. We no longer have champions; what we have are the worst of the Fifth Columnists: those who would recolonise our minds.

This is not the civil society of the 1990s.

Usually, I take pleasure in disagreeing with the Nairobi Law Monthly Leader; not this month (Supreme Court had every reason to throw out the presidential petition, Nairobi Law Monthly, May 2013.) I will resist the urge to quibble with the Leader's opinion that the Supreme Court's judgment is well-written (the atrocious grammar alone should be reason enough to demand that they revisit their high school English text-books.)

In a rare meeting of minds with the Leader, it is impossible not to see the vitriol rained on the Supreme Court by the more excitable elements of Kenya's civil society as something other than their desire to prove to their benefactors that they are doing all in their power to justify the hundreds of thousands of dollars given to them. We also agree that it is unlikely that the civil society organisations are fifth columnists out to foment civil strife at the behest of foreign donors; what they are, and what they have become since 2003, is the willing, pliable vessels of foreign powers out to secure a toe-hold in the highest (and lowest) echelons of public policy in Kenya.

Since the formation of the Forum for the Restoration of Democracy in the early 1990s, the relationship between the State and civil society has undergone a sea-change. In the halcyon days of civil society agitation for greater democratic and political freedom, civil society organisations, especially non-governmental organisations, played a commanding role in keeping the agitation for greater political space alive in the face of overwhelming odds. Indeed, statutory ones such as the Law Society of Kenya, played their part in not only defining the political issues of the day, but also in mobilising resources (from the self-same donors we cavil against today) and the hundreds of thousands of Kenyans who participated in the mass rallies that signalled an evolution in the thinking of all Kenyans. Only the most intransigently anti-donor would refuse to admit that if it were not for donor, especially Western donor, funds, Section 2A of the former Constitution would not have been repealed and Kenya would not have taken the first faltering steps to the promulgation of a new Constitution in 2010.

But since the defeat of Uhuru Kenyatta and Musalia Mudavadi's KANU in the 2002 general election, and the election of the Mwai Kibaki-led National Rainbow Coalition, civil society, especially "political" civil society, has morphed into an unrecognisable caricature of its former self. In the 1990s, civil society luminaries were proud to wear their unlawful detention as a badge of honour; many bore the marks of the cruelty and viciousness of a system that was determined to remain unreformed for all eternity. While civil society organisations took money from donors to carry on their functions, they did so knowing that they were beholden to no one and that it was their intellect, intelligence and persuasion on the facts that wedded them to the fate of the people. They were not mere vessels for the likes of Smith Hempstone to pour ideas into; they had the strength and determination to define what the nation needed and how those needs could be met.

Mwai Kibaki was never truly a friend of civil society; he simply rode the civil society wave to State House, taking advantage of the euphoria of 2002/2003 to cement his place at the head of what turned out to be a singularly perfidious and repressive regime. Using the cachet of civil society champions in his government, he began the process of rolling back many of the gains that had been made since 1992. Indeed, in the decade that Mr Kibaki was in charge, billions of shillings, almost on the scale of Goldenberg, disappeared from public coffers, and hundreds, perhaps thousands, of Kenyans were maimed or killed at the hands of State agents, all, ironically, in the name of security. But his master-stroke was to co-opt civil society into his perfidious government; by the time John Githongo was exposing the Anglo-Lasing rot, it was too late. It was at this moment, I believe, that Western donors saw a chance to build an entirely new civil society that THEY would control. This is the principle difference between the champions of 1992 and the marionettes of 2013. While in 1992 civil society accepted money from Western donors without ceding intellectual control, in 2013 many took Western cash and ideas and effectively allowed foreign agents to think for them.

It is for this reason, principally, that civil society today is unable to marshal credible ideas against the re-expansion of the State's power into areas that it shouldn't. Contemporary examples abound of the failures of civil society to hold the State to account. In the past three weeks alone, at least ten Kenyans have been murdered and scores viciously wounded at the hands of unknown bandits in Busia and Bungoma. Civil society, it seems, can no longer chew and walk at the same time; while Kenyans continue to be denied basic security from the State, civil society is only interested in whether elected representatives "deserve" fatter pay-cheques at the end of the day. "Austerity" is a Western pet-project today; security of the person and property in the developing world is not. If Kenyan civil society will not recognise this, its losses, even at the Supreme Court, will continue to mount.

Monday, May 06, 2013

How will they govern?

The President's nominees reveal very little about how he will govern, save perhaps to emphasise that there will be a fresh way of doing things. However, his retention of Francis Kimemia, and the nomination of Charity Ngilu, in the powerful lands docket, and Najib Balala, places the nomination process in jeopardy. Mr Kimemia is the bug-bear of the Opposition; his interference in the process of devolution, as alleged by his detractors, is a key reason why his confirmation by Parliament may prove rocky. Mrs Ngilu and Mr Balala both come to the process with baggage of their own, though Mr Balala's record of performance may stand him in good stead with Parliament. Mrs Ngilu continues to face questions regarding her stint as the water minister in Mwai Kibaki's government.

It is in the nomination of former Law Society chairman, Rachael Omamo, and Amb Amina Mohammed that Mr Kenyatta takes a stride beyond where even Presidents Moi and Kibaki would not, or could not, tread. Ms Omamo's time as the head of the lawyers' association is remembered for the histrionics in the Council. Amina Mohammed secures the nomnation after missing by a whisker the post of Director-General of the World Trade Organisation. By all accounts, those who have worked with her in the Minister of Justice and the United Nations are impressed by her intellect and work ethic. The two, for want of a better word, class up the Cabinet like nothing else ever will.

But the question remains, how will Mr Kenyatta govern? He and William Ruto, have made campaign promises that they may struggle to keep. By nominating Mrs Ngilu and Mr Balala, they have signalled to Parliament that they will not run a government without ensuring that it is politically cohesive. That the two are not from either TNA or URP speaks to the bridges they wish to build with the Jubilee parliamentary party, ensuring that the Jubilee agenda is not held hostage to the whims and demands of parliamentarians.

Mr Kenyatta may actually govern like a technocrat; much, much different from the Kibaki era or the Moi era. In the latter, the focus of the president, especially after the 1992 multi-party elections was to keep the government politically safe from the vagaries of the political arena. With Mwai Kibaki, it seems, the focus was to reward The Boys while at the same time making way for the resurgence of the GEMA in the corridors of power. The behaviour of some of his foot-soldiers, most notably Kiraitu Murungi, seemed to confirm this. The Anglo-Leasing and Triton scandals were merely the most visible representations on this reality.

Messrs Kenyatta and Ruto have done their best to put a different spin to their Cabinet nominations, but a clear-eyed assessment points to the fact that political survival is very much on their minds. No one will quibble with the fact that on paper the nominees are more than adequately qualified. But the dominance of the Cabinet with men and women from their political strongholds betrays the fact that politics comes first and competent management of the affairs of the State plays second fiddle. Given the incredible discipline that they have demonstrated over the past few months over their troops, especially in getting the likes of Aden Duale, Ekwe Ethuro, Justin Muturi and other die-hard Jubilee MPs to play ball, the two are going to keep a very firm grip on the Cabinet. There will be none of the free hand that Kibaki famously gave his Ministers; these nominees will do as they are told or face the steel toe. Slowly, the two are recreating the firm style of the Moi years. Whether they succeed, and their government succeeds, only history will tell.

Chief pathological...

Dr Johanssen Oduor may be a competent pathologist, but given his performance during the pathology examination of the remains of the victims of the helicopter crash that claimed the lives of George Saitoti and Orwa Ojode, perhaps it is time he moved to the private sector. His performance during the crucial hours after George Saitoti's death has led many experts in his field to question his competence or professionalism. It is not with surprise that the Mutula Kilonzo family sought out the services of a foreign pathologist to complete the examination of the late Makueni Senator's remains.

The Chief Government Pathologist in Kenya has quite often been an office with burdens that no man (or woman) can bear. Think back to every high profile death in Kenya and the role of the Chief Pathologist in either muddying the waters or covering up a murcer (assassination) is paramount. Pio Gama Pinto, Tom Mboya, JM Kariuki, Bruce McKenzie, Robert Ouko, Alexander Kipsang' Muge, Father Kaiser, George Saitoti...the list of high profile autopsies that have remained unresolved is long and frightening.

Speculation about what might have killed Mutula Kilonzo will remain high regardless of what the pathology results say. The late Senator had his fingers in many pies, and his record in private practice and public service has given rise to multiple scenarios regarding his untimely demise. Could it be that he was privy to information that someone feared would be released since his election as Makueni's Senator? We will never know, but the outpouring of positive news stories (and a few negative ones) about his life give credence to the theory that a cover up is being perpetrated on an unsuspecting public.

It does not help that the late Senator was a notoriously secretive man. What is being revealed about his private affairs points to a man who trusted few, even in his family, about what he did, where he did it and with whom. How can it be that he kept his immediate family out of his Maanzoni home when he invited scores of strangers to pay for the privilege of "seeing how conservation should be done?" Why is it that he kept a strong-box in his office to which he had the only key? Who is the "fifth person" seen at his Maanzoni home in the hours before his death? Did he have a hand, in the 1990s, in declaring Cyrus Jirongo an enemy of the state? How much land and other properties did he own? How much did he owe the tax man? These and dozens of other questions may never be answered.

What is clear is that CORD has lost a strong voice in the Senate; its leadership is in disarray. Not to put too fine a point to it, but Jubilee is going to capitalise on the CORD loss. While it is not in doubt that CORD/Wiper will retain the Makueni Senate seat, whoever replaces the late Senator will not have the same level of influence in the Senate as he might have had. Whether it is John Harun Mwau or Gideon Ndambuki or some other man, the late Mutla Kilonzo's replacement will not be smart enough, wealthy enough or connected enough to ensure that CORD's dominance of the debates in the Senate will be as assured as before his unexpected death.

We end where we began: the pathology report is of academic interest at this point. Every high profile death in Kenya has been shrouded in mystery. If today we still do not clearly know how Mzee Jomo Kenyatta died, or why Pio Gama Pinto, Tom Mboya, JM Kariuki and Robert Ouko were assassinated, I see no reason to believe that we will ever get the full story of how and why Mutula Kilonzo died. And it all boils down to how the office of the Chief Government Pathologist is managed.

The moral argument.

Both sides of the debate on whether the battle between Parliament and the Salaries and Remuneration Commission (SRC) regarding the demand by Parliamentarians to have their salaries and perks renewed to the levels enjoyed by the Tenth Parliament are instructive. Mithika Linturi and Justin Muturi, among other parliamentarians, rely on the provisions of the Constitution and the law of Kenya to make their case. In some aspects, their arguments are persuasive. The other side, too, relies on the Constitution, and their arguments, too, are persuasive. However, it is when interested parties such as the Confederation of Trade Unions (COTU) and the Kenya National Union of Teachers (KNUT) enter the fray that things get murky.

Francis Atwoli, COTU's Secretary-General, is adamant that he does not support a pay-rise for parliamentarians; he merely worries that if the SRC can "cut down" the pay of parliamentarians, it might set the stage for "unconstitutional" cuts in workers' pay, whether in the public or private sectors. This is the same fear that Wilson Sossion of KNUT echoes; he states that if the SRC can reduce the MPs' pay, they can do the same for the hundreds of thousands of teachers in the union, even where a Collective Bargaining Agreement has been struck between the union and the government regarding the pay-and-benefits of teachers.

Some have attempted to argue their case in moral terms, on both sides of the debate. On this ground alone, the MPs do not have a leg to stand on. Nicholas Gumbo, an engineer representing Rarieda Constituency, attempts to argue that MPs work even when they are asleep. They receive so many monetary claims that it would be immoral for the SRC to cut their pay to such an amount that they cannot contribute to the medical and funeral expenses, among many others, of their constituents. He argues that the representation provided by the MP extends beyond making the case in Parliament; that MPs when they go about their duties, work long hours and cover many expenses that the proposals by the SRC amount to interfering with MPs' mandates to represent their peoples.

Okiya Omtatah, the indefatigable civil society activist who has gone to court to challenge the move by Parliament to raise their pay-and-perks to pre-March 2013 levels, argues that MPs have the option of challenging the SRC decision in the High Court. He also points out that MPs' pay-and-perks amount to over a million shillings, quite above what the Tenth Parliament enjoyed, which was around sh 850,000. He points out that it is unconstitutional for MPs to determine their pay-and-perks: that is the preserve of the SRC, an independent constitutional commission. Any MP who feels aggrieved by the decision of the SRC can only challenge it in court, not by passing motions after motions in Parliament.

The moral angle of the debate must be pursued to its logical conclusion, though. The difference between MPs and other workers is that MPs actively sought the votes of their constituents in order to sit in the august house. The qualifications to be elected as an MP are set out in the Constitution and the Elections Act. For the most part, they revolve around moral issues, rather than technical ones. MPs, despite their arguments, are not the same as other workers. It is for this reason, and the history of MPs' demands over the years, that when Kenyans ratified the Constitution in 2010, they did so knowing that the Constitution would prevent MPs from setting their own terms and conditions of office. MPs had abused that privilege and Kenyans were united in agreeing with the Committee of Experts' position, that an independent body would review and set the terms and conditions of service for MPs. It is immoral for the MPs to argue that they can usurp a power that the people of Kenya granted specifically to the SRC. It is immoral for them to demand a class or status that they do not deserve; the Constitution proclaims the people to be supreme, sovereign; it is improper for MPs to declare that they are supreme, sovereign above the people they must serve.

In a nation where millions go hungry daily, and in a nation where hundreds of thousands live under the fear of starvation or banditry attacks, MPs receiving millions per month have no moral basis for demanding more from the same people when they have security and food on the table in some of the finest establishments in Kenya. Where is it written that they must purchase homes in Nairobi or that they must swan around in swanky limousines paid for by hardworking Kenyans? They could live in rented houses and drive the shit-boxes hundreds of thousands of Kenyans have to make do with. If they are dissatisfied with the terms and conditions that the SRC has laid out for them, and they think that they deserve the millions they are demanding, perhaps it is time they resigned their seats and took their chances in the harsh world of private enterprise.