Thursday, July 25, 2013

The true human rights tragedy.

When Ken Wafula declares, in Ease the Repression, on the flimsiest of proofs, that human rights advocates [are] living in fear, he takes hyperbolic Third Sector yammering to new lows (Daily Nation, 25/07/13.) He bandies about phrases popularised by American spy movies such as "secret service agents", "private intelligence reports" and "counter-intelligence." But he, like the legions of like-minded activists in Kenya, fails to provide a shred of proof that thesituation is such as he describes it to be.

Let us not for one minute presume that the Government of Kenya under the charming but iron-fisted grip of the Jubilee Coalition, has allowed the expansion of the "human rights space" claimed by the likes of Ken Wafula. But that is not sufficient proof that they have become the targets of the Government, that the mysterious and unexplained deaths of activists is necessarily at the hands of State agents, or that their continued arbitrary arrest, detention and prosecution is a strategy aimed at keeping them busy fighting court battles rather than street battles in the name of human rights.

Mr Wafula, and his fellow travelers, have been unable to point to a single instance where President Kenyatta has been shown to have ordered that the human rights heroes like Oscar King'ara and Paul Oulu be "eliminated" by whatever means necessary. Even at the height of the 2007/2008 crisis, human rights advocates did not accuse Mr Kenyatta of targetting human rights activists; rather they simply accused him of human rights violations. Even the mysterious deaths of Messrs King'ara and Oulu were not part of a broader accusation of a State-sanction assault on the human rights citadel, rather it was alleged that it was a cover-up ploy to ensure the truth about the murders of Mungiki, suspected or confirmed, adherents at the hands of policemen and intelligence officers.

This blogger is well aware that the Government of Kenya has not covered itself in glory when it comes to the expansion of the enjoyment of inalienable rights Kenyans enjoy. Because of the mindset of the Kenya security establishment, the focus of the intelligence and police agencies is to preserve the State from all threats, regardless of their benign appearance of ineffectualness. It is for this reason why Inspector-General Kimaiyo, CID supremo Ndegwa Muhoro and NIS Director-General Gichangi have been quick off the bat to reign in the March 4th Movement despite what the Constitution clearly says. Indeed, if one were to scour the law books, whether it is the Penal Code or the Anti-terrorism Act or any of the security-related laws we have, one will be hard-pressed to find the offenses for which Eliud Owalo is being questioned by the CID and the police.

A popular American TV show from the silent twenties had characters known as the Keystone Kops whose incompetence became legendary. It is time we reflected deeply on the continuing incompetence of the national Police Service, the Administration Police Service, the Criminal Investigations Department, the Banking Fraud Unit, the Anti-terrorism Police Unit, or the disbanded Anti-Stock Theft Unit. The human rights tragedy is not that Ken Wafula and his ilk are being treated unfairly; the tragedy is that a decade or more since Daniel Toroitich arap Moi was shoved out of State House, Kenyans cannot count on their government to protect them from foreign bombers, homegrown professional extortionists or well-connected fraudsters. Whether it was under Moi or Kibaki or Kenyatta, Kenyans have continued to be on the receiving end of violent crime that it beggars belief that all that blood does not seem to have pricked the conscience either of the We-are-being-finished human rights industry or the mandarins in charge of public safety in the Government of Kenya.

Protocol theatre of the macabre.

Our obsession with the creature comforts of men and women who can afford them without troubling the Exchequer give rise to absurd situations. Take for instance Kethi Kilonzo's brief and ill-fated foray into the murky and mud-splattered political. Regardless of what her ardent supporters say, it is quite evident that her explanations for why she remained unregistered did not persuade less emotional observers of the facts. But it is when she claimed that her registration was completed in the same registration register that President Kibaki completed and that this particular register, according to the IEBC, had been "lost" that the theatre of the absurd veers off into the farcical or macabre, depending on where your conscience directs your thoughts.

When Mwai Kibaki marked half a century in the sharp-elbowed world of Kenyan politics, the newspapers were at pains to remind Kenyans that the President had represented Othaya Constituency since 1974. If the law was applied "without fear or favour" as the Commissioners of the IEBC swore to do, Mr Kibaki should have completed his registration in Othaya at a polling station of his choice. Instead, the IEBC went to great expense for the pomp and circumstance of having His Excellence the President and Commander-in-Chief of the Kenya Defense Forces to be the First Voter of Kenya by opening a "special" register for the President, moving his polling station for the purposes of voting to the precincts of the Kenyatta International Conference Centre (Starehe Constituency) in Nairobi, and promptly closing the register after the farcical exercise. Then Kethi Kilonzo came along claiming that she too had been registered alongside the President. The IEBC had two choices: produce the Kibaki register and disprove Kethi Kilonzo's assertions or, as it turned out, claim that it had been "lost."

We need not bother with the absurdity of the Kethi Kilonzo/IEBC drama at this instance; rather it is the absurdity of treating VIPs and, in Kenyan parlance, VVIPs as if they were Titans of old who had challenged the ancient Greek gods on Mt Olympus. Before the late Mutula Kilonzo entered elective politics, he built a legal practice that remains the envy of many. He amassed great wealth, and power, by representing the well-connected and the politically powerful in Kenya. We may quibble about the choices he made while in private practice; but none doubts that it is his intelligence and legal-eagleness that brought him the wealth and recognition that he enjoyed till his death. But beyond that, especially when he served as Minister, Mutula Kilonzo went out of his way to play down the power he wielded. He surprised many of his interlocutors with his apparent humility. It might have been politically calculated, but his humility when in power endeared him to millions of Kenyans, not the least the tens of thousands who elected him Makueni Senator.

In contrast to his humility is the fawning brown-nosing of senior civil servants, especially those obsessed with "protocol." It is protocol that led to the erstwhile Prime Minister to bitch about "nusu mkeka;" it is protocol that compelled the idiots in the IEBC who set it up to ensure that President Mwai Kibaki would be registered in his own register. If they hadn't fiddled with the law in order to make the President feel even more special, they would never have faced the accusations of unfairness when they declared before the Supreme Court that the law, as written, was wrong and that the IEBC's "register" was a moving target that changed shape and volume as the IEBC deemed fit.

Protocol sometimes leads to absurd situations that should not arise in civilised society. Frequent visitors of public buildings will be confronted with the phenomenon of the "VIP Lift" (why a VVIP one is yet to be installed remains a protocol mystery that may never be solved.) But every now and then, a building (such as Sheria House) enjoys such a high volume of human traffic that it is near impossible to retain one lift for the exclusive use of the babus of the Government of Kenya. In such instances, the babu and his (or her) minions must share the same lift, which almost never happens because the askaris have been sensitised that the moment they see the babu's chauffeur-driven Passat (for the lucky ones) or Avensis (for those nearing the top), they are to call for the lift from wherever it may have stopped or, if it is already on the ground floor, to eject every single of the babu's minions that may have entertained ideas of riding in the same lift as their boss.

In Kenya it is not enough to recognise the special place a nabob occupies just by awarding them a really fat cheque at the end of each working month, we also infuse him with god-like powers to make those who serve under them live lives of abject humiliation. Whereas the nabob has a private loo for his sometimes irregular bowel movements, his minions have to make do with ill-lit smelly boxes that may or may not have ventilation or running water. While the nabob has at a minimum three secretaries, their minions require remedial computer-training; not even a copy-typist is available to set their documents in the "official" font. Whereas the nabob need not identify himself to the askaris at the door, his minions must go through the daily humiliating ritual of proving their identity and the privacy-invading search of their private bags when they depart after a frustrating day at the work-wheel.While the nabob may even end up with two desk-top computers, three massive printers, a laptop and an iPad, his minions share pre-Windows-XP computers, their printers are frequently out of toner or paper, and procurement of their facilities lasts three years or longer. But minions, of which the Commissioners of the IEBC increasingly resemble when in the presence of mandarins from the Presidency, still fawn and ass-kiss as if their very lives depend on it. If it is not macabre, what is it then?

Wednesday, July 24, 2013

What price our contempt?

An argument being advanced by the disappointed supporters of Kethi Kilonzo is that the courts must look for the spirit of the law when making decisions. This is one of the stupidest ideas ever advanced in free Kenya. Not the "spirit of the constitution" part, but that this is principle should be applied at the first instance. A corollary to this rule is that the courts must apply the technical rules of the court or in the law while arriving at decisions that have a huge public interest. Again, this is sheer lunacy.

These ridiculous arguments have been advanced since the ill-fated Raila Odinga petition against the election of Uhuru Kenyatta was dismissed by the Supreme Court. The decision of the Supreme Court was hugely unpopular in CORD strongholds, and while the former Prime Minister and former Vice-President claimed that they would accept the verdict of the Court, their utterances, and those of the lunatic fringe of the CORD bandwagon, belie the acceptance of the Supreme Court decision. When Mutula Kilonzo died, and the idiots in Jubilee decided to wade into the by-election by promoting the candidacy of his widow before she withdrew, the more excitable elements of the CORD army decided to promote Kethi Kilonzo as the panacea for their shambolic political activities since March. But a series of mis-steps by the popular lawyer put paid to her political career before it even began.

It is at this point that the strange calls for the spirit for the upholding of the spirit of the Constitution were made. First, there is a presumption that the drafters of the law knew what they were doing, and that they intended to do what the law says. The first responsibility of the court is to look at the letter of the law. This includes the rules of the court too. If we were to operate outside of the rules we ourselves have drafted, then the existence of those rules is redundant; we could as well live in a state of perfect anarchy. You only look to the spirit of the law when it is apparent that the legislative intent of the law cannot be discerned. Statutory ambiguity will trigger a search for the spirit of the law.

What is awkward is that the Kethi cheering squad seems to believe that the spirit of the law should only have favoured an interpretation of the law that promoted her interests, and not those of any of the parties to the dispute, especially not the Independent Electoral and Boundaries Commission. Indeed, it seemed at one point that her lawyers intended to argue that because the IEBC was a singularly inept and incompetent institution, and despite the fact that it could justifiably be demonstrated that she committed electoral offences, the courts should ignore the "self-serving" ruling of the IEBC "tribunal" and allow Kethi Kilonzo to stand for her late father's senate seat. The added, repeating an argument that had been rejected by the Supreme Court, that the technicalities of the process should not apply because it was in the greater public interest if Kethi Kilonzo vied for the Makueni Senate seat despite not being a registered voter anywhere in Kenya.

These argument are of a piece with the "democratisation" of the nation since the 2002 NARC victory. The effect has been to make Kenyans ever more contemptuous of the law, especially Kenyans in positions of power or authority and those who hang around them. It is why governors nation-wide see not irony in using sirens and chase cars to avoid traffic jams wherever they find them but conveniently forget that if they were effective governors, there would be no traffic jams to begin with. It is why more and more Kenyans are seeing their properties being demolished by road construction crews claiming that they "followed the procedure" when they were irregularly allocated land in road reserves or some other public land, when they had the allocations legitimised with title deeds and when they studiously ignored municipal laws when they proceeded to build on their ill-gotten properties. Many are now praying for the sympathy of Kenyans who did not have the opportunities to game the system as the road-reserve victims did. What is notable is that Kenyans are not outraged that these people lost property because of the corruption of the agents of the State; they are outraged that they are not as "smart" as the men and women whose houses lie in ruins.

Our continuing contempt to the law, the rule of law or the mores and customs that should inform our day-to-day lives is proof positive that regardless of the lofty aims contained in the Constitution and the Law of Kenya, our obsession with power, money and the attendant trappings have blinded us to concepts of decency and decent behaviour. It is why we see nothing wrong in the son or daughter of a powerful man inherting his political mantle even if they have to do unfair things to do so. Whatever the motivations, it is wrong to encourage people to have a jaundiced view of the law or institutions. The more their contempt for these things grows, the less likely they are to have a shared national purpose, vision or mission.

Monday, July 22, 2013

Minerals and transparency: my thoughts.

Rasna Warah identifies three reasons, among others, why African nations continue to be ripped off when their mineral resources are exploited by foreign companies: African governments do not have the legal know-how and resources to draw up agreements that are beneficial to them; sometimes deals are made without proper valuation; and the lack of [African governments'] capacity to add value to their commodities (Mining sector needs regulation; deals with investors should be made public, Daily Nation, 22/07/13.)

In the case of Kenya, the third reason comes closest to being accurate, but only because we do not have an accurate inventory of what value-addition facilities this nation has, who owns them, and what they can do. But, regarding the lack of legal know-how or the improper valuation of out mineral resources, I would beg to differ. Strongly.

Where she identifies the requirement that there must be transparency in these natural resources agreements, she is of one with the Committee of Experts who insisted that such agreements must be approved by Parliament. The CoE, wrong in many instances, surely found that if Parliament played its proper role in the management, including exploitation, of Kenya's natural resources, Kenyans would have a better value-for-money, and the revenues generated from their exploitation would be of national and local benefit. It is the opacity in the regulation of the mineral (and energy) sector that has ensured that Kenyans continue to live from hand to mouth while we sit on mountains of titanium ore and lakes of oil and gas deposits.

Take a look at the legal sector. The top five law firms in Kenya earn in excess of a billion shillings annually in profits. They do so by hiring some of the sharpest legal minds in the nation. But not all legal eagles are to be found in private practice; some can be found languishing in the dark recesses of the vast apparatus we call the Government of Kenya. For instance, the Supreme Court has the Chief justice and Prof JB Ojwang', notable for being a pan-African authority on comparative constitutionalism. The State Law Office (which if it were a private law firm would be the largest in Kenya) has Prof Githu Muigai, whose career as an academic and in private practice is a testimony to legal intelligence that is unrivaled by many.

As to the claim that we are unable to properly value the mineral resources we own, an examination of the available records demonstrates that this too is an inaccurate assertion. The Ministry of Environment, through its long evolution, has maintained a very accurate record of the mineral resources to be found in Kenya. What is notable is that the figures being bandied about regarding the value of the mineral resources in Kenya are calculated using different contextual factors. If the National Executive was open about the factors it took into account when valuing national resources, then Kenyans could have a robust debate about whether we were getting the short end of the stick or not.

I join Ms Warah in calling for greater transparency and accountability in the manner that the mineral sector is regulated. The traditional secrecy of the National Government regarding these types of agreements is counterproductive. When one examines the manner in which the exploitation of the Mui Basin coal in Kitui has been advanced, the secrecy surrounding the resource-agreements between the National Government and the Chinese Company at the heart of the issue has contributed to the great ill-will between the residents of the Mui basin and the National Government and the inherent suspicion Kenyans have about how natural resources in their areas will be exploited.

All resource agreements that have been entered into by the Government of Kenya since 1963 should be published. It is time Kenyans knew who was responsible for the continued unfair exploitation of our national heritage at our expense. Even Article 35 of the Constitution anticipates that transparency and accountability will go a long way to reducing the internecine differences that have traditional stymied economic development in Kenya.

Sunday, July 21, 2013

Still a police state.

There is a feeling abroad in the land that since the landslide victory by NARC in 2002 Kenya has moved on from police-state status and is well on its way to an expanded democratic-state status. Those feelings are misplaced. While Kenyans no longer live with the fear of the midnight knock from men with guns, we are still a police state. This is reflected in the relationship between the State and the people; we are not treated as citizens with inalienable right, but as subjects to be "managed."

Let us take the most common meaning of a police state where the state security apparatus is used to control the people. In Kenya, especially during Mwai Kibaki's presidency, the police became increasingly professionalised. But their profesionalisation was not for the safety of Kenyans; it was for the preservation of the State and the protection of high state officials, especially Cabinet Ministers and sundry politicians. This remains the case today. When Kenyan are getting bombed and maimed in Garissa, Mombasa, Nairobi, Busia and Bungoma, the State's reaction is not to uncover the persons behind the heinous crimes. The State's reaction has been to "flood" the streets with more policemen, round up the usual suspects and pray that the people forget that their security, and safety, is in their hands.

Take a look at the legislation passed by the State. If we were moving on from being a police state, the laws we enact would expand the realm of the peoples' freedoms, allowing and enabling them to create wealth and pursue their own happiness. Instead, laws are used to consolidate the power of the State to interfere ever more in every aspect of our lives, from whom we can marry to what we can purchase. The list of things that can be purchased without a permit is shrinking, rather than expanding. Many of the institutions being established by law are designed to regulate every aspect of our lives, from education to healthcare to commerce.

The relationship between the State and the people is in an uneasy calm today. The Jubilee manifesto makes many promises, some of which are ostensibly for the benefit of the people. But a closer examination of the Jubilee government's plans reveals that they will entail an expansion of the State's power and influence in our lives. The desire to build world-class football stadia in Kenya on the face of it looks like a desire by the State to give youth greater access to sporting facilities and opportunities to identify talented youth and promote them in the national and international arenas. But when you consider that it is the State that will procure these stadia, it will retain the power to determine who has access to these facilities and, by extension, who has an opportunity to shine and who will be denied such an opportunity.

The flagship laptop project is a good example of the pernicious influence of the State. While the goal of giving each standard one child a laptop is laudable, its rationale is wanting. Every global examination of such projects has revealed mixed results. Rather than promote the goal of access to electricity by all Kenyans, including access to schools, the Jubilee government intends to engage in a massive procurement exercise to obtain solar-powered laptops for school-going children, a majority of whom do not have access to electricity. Even laptop computers, sooner or later, must be plugged into a power source.

One of the effects of a police state is massive corruption. The massive procurement-related projects of the Jubilee government will lead to massive corrupt acts. Even while the President has committed his government to combat corruption, the signs so far have been discouraging. The anti-corruption agency remains leaderless and visionless. The National Assembly is slowly whittling away the access the press has enjoyed to keep an eye on its operations and deliberations. It is more interested in lining the pockets of its members than in the improvement of the lives of the voters who elected its members. Ministries are busily trying to expand the size and scope of their operations especially by establishing "autonomous" or "independent" agencies, ostensibly to make their operations more efficient but likely to amass power and money at the expense of efficiency or effectiveness.

While we may no longer live under the fear of being falsely arrested or detained by government agents, and the courts seem to be doing everything in in their power to raise the peoples' confidence in them, we are not permitted to do more from our own initiatives or resources unless we are well-connected to the State and the political powers-that-be. Before we can say that the police state is well and truly dead, we must take a cold hard look at the state that we do have today.

Friday, July 19, 2013

What will it take for us to wake from our slumber?

When schoolchildren died in a road traffic accident, the nation was in shock. It is not every day that 15 children die in such a grisly manner. It says something about our callous and indifferent approach to road safety that we will mourn, nationally, for the families whose children were taken too soon but we will not do anything to change our behaviour or take steps to improve the state of road safety in Kenya.

Any person with two eyes who drives in Nairobi will attest to the fact that parents have also taken a reckless approach to the safety of their children as they are ferried to and from school. Even the so-called middle-class, high end schools do not provide for the safety of the children in their charge. There are few schools in the capital whose buses are properly designed for the safety of their charges, with safety equipment designed for children or bus crews trained to look out for their welfare while on the road.

The majority of school transport vehicles, whether fourteen-seat vans or full-scale buses, are designed for adults. Many of them, too, are retired Public Service Vehicles whose life on the road have surely passed their Sell By date. Very few of them could legitimately be allowed on the road without hefty bribes exchanging hands between their operators and those who are charged with enforcing the provisions of the Traffic Act. It is not a stretch of the imagination to believe that the same roguish behaviour demonstrated by the operators of matatus is demonstrated by the operators of school buses.

The knee-jerk reaction of the National Police Service is warranted, though it is akin to bolting the gate long after the horses have stampeded for the horizon. It is not enough. Not even the Presidential decree that the seriously wounded victims of the Kisii school-bus crash be airlifted to Nairobi for specialised treatment is sufficient. It is trite wisdom that harsher penalties will  not stem the tide of blood that is flooding our roads. What is required is the proper and full enforcement of the laws that we have on our books.

For a nation that has such detailed laws on almost everything under the sun, including mind-bogglingly complex regulations to implement them, it is strange that there doe not seem to be a set of laws or regulations on the proper design of school buses or the proper procedure to be followed while transporting schoolchildren. How we have managed to get by as the numbers of children on school buses has risen beggars belief. While the adults take precautions as they are ferried to and from their places of work, they do not seem to spare a thought as to how their children's welfare is catered for by the schools that are in charge.

Is it not time that we stepped outside the cocoons of our daily grind and took a more hands-on approach to the safety of our children? It is not enough to pay school fees or activity fees or any other kind of levy that schools filch from us. We must become more involved in the safety of our children when they are out of our sights. The Parents'-Teachers' Associations that we treat with such disdain must become our first port of call when it comes to the safety of our children. We must become more involved in the management of the institutions that are in charge of the welfare of our children when we are busy living our lives. We must hold the proprietors of the schools our children attend to account for the safety of our children. We must ensure that the facilities set aside for the welfare of our children meet the minimum standards required to assure their safety. If we don't, more parents are going to be confronted with the spectre of their children lying in mangled wrecks in pools of their own blood.

Thursday, July 18, 2013

100 days of...NUTS?

Whether anyone believes anymore that Wilson Sossion and the nuts at the Kenya National Union of Teachers, KNUT, have the interests of the members of the union at heart is best left to the rose-tinted glasses crowd. In a month, the KNUT leadership has instigated a nation-wide teachers' strike, refused to negotiate with the Teachers Service Commission, TSC, refused to negotiate with the Cabinet Secretary for Education, had orders made against their strike, been sued for contempt, been one-upped by the rival Kenya Union of Post-Primary Education Teachers, KUPPET, capitulated to the TSC's demands and wound up their strike. In that month, hundreds of thousands of Kenyans have missed school and, because of our national obsession with scoring an "A" in the Kenya Certificate of Primary Education or the Kenya Certificate of Secondary Education, their parents have been forced to dig ever deeper into their meagre savings in order to raise the money for emergency coaching of their children. The images on the evening news showing teachers "demonstrating" in the streets, parents begging for "sanity to prevail", the TSC CEO looking increasingly haggard, and the Cabinet Secretary increasingly combative, have not covered any of the players in this sad affair in glory.

Instead, it is the stoic attitude of the hundreds of thousands of Kenyans who missed school, and vital weeks of preparation for their examinations, who must be commended.Of course there is always the possibility that their reaction to the strike will only be felt after the final results of their Standard Eight or Form Four exams come in. If the national trends in success or failure hold true, perhaps, any violent reaction among the ex-candidates will be muted and limited to a few flashpoints. But if the trends change, especially if there is a greater than normal rate of failure, none can predict how far and how wide the reaction, violent or otherwise, of the ex-candidates will be. what is certain is that the jubilee government is not acquitting itself admirably when it comes to industrial action among public sector workers. This is not a surprise; Mwai Kibaki was quite inept at it while Moi simply bribed or jailed those who would dare go on strike.

It is why it is very odd that the National Assembly has not held public inquiries as to the causes of the teachers' strike. What has been bandied about in the press is less than revealing. All talk of Gazette notices simply fails to address why a government that is about to spend sh 1.6 trillion is unable to find sh 50 billion or so to pay teachers in line with a deal that had been concluded sixteen years ago. The entire membership of the National Assembly is a disgrace. The Speaker is more interested in seeing if he has the moxie to outshine the irreplaceable Kenneth Marende. Majority Party Leader is a sheep in wolf's clothing; a follower rather than a hunter and he will follow the National Executive's lead even if it leads him off a cliff. Who can even remember who the Minority party Leader is? Francis Nyenze has been so off-line it's a wonder there hasn't been a coup against his leadership yet. It is his Deputy who wants to be seen to be doing things, but given his intemperate nature, it is a matter of time before he is treated with the same level of contempt that Sharif Nassir and JJ  Kamotho were treated by the chattering classes.

The idea of representative government, as epitomised by the phrase Republic of Kenya, is that the people, that is, voters, choose the men and women who will represent their interests in the National Assembly. The National Assembly, despite the nascent fascistic desires of all presidents, is not an appendage of the National Executive; it is, or should be, the only institution that is not held hostage to the base desires of the National Executive or the corrupting power of the Judicial classes. here, it is the voice of the people that must ring; not the interests of the fat-cats that got the National Executive to the Seat of Power. It does not suffer from the pretend-dignity of the Judiciary where lofty words tend to hide intense hatreds and biases. In the Houses of Parliament, elected representatives are supposed to fight, even fight dirty, for the interests of the common man, the man on the street, or, in this case, the child hoping to score an "A" in the KCPE or KCSE.

Instead, whether this was the intended outcome or not, the National Assembly has become the most reviled house of representatives in a very, very long time. we were under the impression that the Tenth Parliament was pretty crass; the Tenth cannot hold a candle to the hyenas in the Eleventh. When it comes to extra-selfish self-aggrandising, the Eleventh would probably put to shame Louis XVI and Marie Antoinette to shame for their level of shopping at the taxpayers' expense. In the four weeks that our children have not been taught, the overwhelming attention of the KNUT leadership, the Cabinet Secretary, the flower girls of the National Assembly, the teachers and the talking heads on TV has been to pretend to be reasonable or resolute, depending on the audience, and fucking over the children of Kenya at all times. When the history of industrial action in Kenya is written, readers will look at the halcyon days of the 1960s and 1970s in wonder, because the buffoons in charge in the 1990s and the beginning of the Twenty-first Century have done a singularly impressive job of proving that they care little for the law, the rule of law, the rights of Kenyans or any of the lofty buzz-words that are fashionable today. They care a great deal about the size of their wallets, even if it comes at the expense of workers or students.

Monday, July 15, 2013

Dignity.

There is something horrific about it. A grandmother in her mid-sixties (she isn't sure when she was born, official GoK record-keeping being what it was back then) is the primary caregiver for a seven-year old boy, his mother having abandoned him with his grandmother when he was an infant. They live in a location that has seen more tribal violence over the past ten years than any other location in the Capital. Their home is a ten-feet-by-ten-feet mabati hut without running water or electricity (even the "poached" electricity available is too expensive for her to manage.) Theirs is one of three thousand or so similar "houses." It is their bedroom, sitting-room, kitchen, toilet and bathroom.

Now I want you to imagine the indignities visited on this small family. Their hovel - that is what it is - is in the middle of their location; narrow lanes from the outskirts of the location lead to their front door. The lanes - muddy, slippery footpaths, really - are steep and require deftness to navigate. The lanes pass through "hostile" territory and the grandmother and her charge are frequently the recipients of epithets, if they are lucky, or stones, when the national politics is tense. Because of her advancing age, diminishing strength and sight, it is the boy who has to carry the tools of her trade for (she sells chapatis at twenty shillings each, on the main road to the location) in addition to his school books (which are pitifully few; it is all she can afford in addition to the three-hundred shilling "fees", the school uniform and at least one meal for the boy in the evening; there is no question of a breakfast for these two). Sometimes it rains and she slips and falls. She has been fortunate - no broken bones. 

She is careful - there are no overt displays of "wealth" with her. She and the boy are in clean but tattered clothes worn in several layers. She does not have any electronic devices; not even the cheap kabambe mobiles popularized by a telecoms company. She does not own a paraffin lamp - paraffin is too expensive to be wasted on lighting. She is lucky to own two "energy-saving" wood-burning jikos; one she leaves in the custody of a watchman (for a small fee) near where she makes and sells her chapatis. The other is the principal source of heat, cooking energy and lighting in her ten-by-ten hovel.

When it comes to the small things, it is tragic. She is mother, father and grandmother to the boy. She must ensure that he is bathed, fed and clothed each day. She must sacrifice her health for his; she has not been to a doctor, leave alone a dentist, since the boy came to live with her. His medical care is becoming increasingly expensive, eating an ever larger share of her earnings because the environment in which the boy lives -exists - in has become ever more toxic. She is no forced to seek "healthcare" from unlicensed, barely-trained "pharmacists".

Do you know how the flying toilet works? Do you really? It is not as cutely quaint as you might imagine or as the slum-tourism promoters would have you believe. You need a bucket - one whose sole purpose is a bowel movement. You need spare newspapers - toilet paper is a luxury you cannot afford. You need plastic bags you have scavenged during the day. And you need the person you are sharing your hovel with to turn their back to preserve your last shred of dignity. Then you must wait for the dead darkness of the night in order to "dispose" of the "toilet" without being seen. Now imagine that while you are doing all this, you cannot be sure that, because you do not have running water, you have not contaminated the little stored water you have in your hove, or the small store of food that is preserved under your bed.

If you are not horrified by this description, then you are beyond all appeals to humanity or kindness and your further readership is unnecessary. But if you are, and you've seen what I've seen, heard what I've heard, then it is time for you to act. We cannot continue sniggering at the stories of slum tourism as if they say nothing about us as a nation or a a people. We cannot shrug our shoulders every time the men and women we sent to Parliament contrive and connive to rob us blind. We cannot turn a blind eye every time we witness the "food vendors" by the side of the road being rounded up for selling without valid permits or for being vagrants (even though the Vagrancy Act has been repealed these many years.) We cannot sit idly by while our governor goes out of his way to woo fat-cats to Nairobi for projects for the 15% who have brick-and-mortar homes with electricity, running water, paved roads, street lighting and security. The President has decided to relocate his office to the stately State House. Perhaps it has something to do with the constant, relentless stab at his conscience when he witnesses the thousands upon thousands of indignities the hundreds of thousands of the resident of this not-so-fair City continue to suffer at the hands of class of people fo whom he is their undisputed leader.

Saturday, July 13, 2013

Parliament must play its proper role.

It is becoming increasingly clear that Parliament is getting it wrong about the role it is supposed to play in the Government of Kenya. The job of a legislature in a liberal democracy, in addition to making laws, is to keep a check on the Executive. Kenya's parliament is supposed to check the excesses, potential or otherwise, of the National Executive, and to a limited extent, those of the county governments. So far Parliament has been asleep at the wheel, mostly because the National Assembly is not interested in the activities of the National Executive but in the mundane political combat that animates the national press and, by extension, the voting zombies of Kenya.

The leaders of the Majority and Minority parties have forgotten that one of their principal jobs is to ensure that what the National Executive does is done lawfully and for the benefit of the peoples of Kenya.  It is not the job of the Majority Leader to flower-girl the National Executive at every turn; nor is that of the Minority Leader to constantly whinge about his position in parliamentary committees and whether he is being given his rightful due in parliamentary decision-making. When a Member of the National Assembly asks a question regarding something that the National Executive has done, that question can only be properly answered if the relevant Cabinet Secretary or Principal Secretary addresses it before the relevant Committee. Once a Committee "investigates" a matter the next logical step is a resolution or a Bill that addresses the matter that was investigated by the Committee. What we have witnessed over the past one hundred days is the Leader of the Majority Party behaving as if the National Executive and the National Assembly are Siamese Twins sharing a brain.

There is nothing unlawful for the Majority Party to be in lock-step with the National Executive. But it waters down the democratic fibre of the government. The National Assembly, largely, is the only institution that can check the National Executive because of its power to censure the members of the National Executive. For example, the civil society is good at exposing the corruption that festers in the underbelly of the government, but it is the National Assembly that can do something about it. The job that the National Assembly has done so far of assisting the President or his National Executive in his campaign against corruption has been a very shoddy one. It has refused to revise the anti-corruption law or strategy in order to assist the men and women in the front-lines of the war against the seemingly intractable problem that has bedeviled Kenya for two decades. It has not bothered to summon the Cabinet Secretary of the Interior, the Attorney-General, the Director of Public Prosecutions, the Inspector-General of Police or the Directors of the Kenya Anti-corruption Commission to find out why the fight against corruption seems like a never-ending losing battle. Instead, the Members of the National Assembly seem to be personifying the very same corruption that it is supposed fight. The recent revelations that members of the Parliamentary Service Commission would rather spend taxpayers' monies on foreign junkets for furniture rather than promote Kenyan entrepreneurs willing and able to provide the same furniture at a fraction of the price.

We have been here before. Every year when the Members of Parliament, at the start of  their parliamentary terms, demand ever higher salaries, it has nothing to do with the rigours of representing the peoples of Kenya or their needs. It is always about the lining of their pockets for diminishing returns to the National Treasury or the people. It is why the Minority and Majority Leaders do not have time to keep an eye on the National Executive, except when it directly affects their bottom line. Their needs are more important than those of the men and women that sent them to Parliament. It is why the Government of Kenya remains the least effective institution. Until it is held to account, until its officers' feet are held to the fire, our governance will remain a disappointment.

Wednesday, July 10, 2013

It's your fucking fault!

I never thought I'd be writing this: you motherfuckers are to blame for the sorry state of your beloved fucking city. Now I know its popular to bitch about the fuckheads we call MPs and county representatives, the governor and the head of state, but the fucking point is you little shits elected the fuckheads and the fallout of all their fucking bullshit is on you.

If you weren't so fucking zoned out when it comes to the nuts-and-bolts of fucking elections, fuckheads would not make it into the fucking august House or the various joints we call fucking county assemblies. Them motherfuckers take advantage of your fucking apathy to play one fucking set of street thugs against another set of fucking street thugs while the fucking middle classes sit in their motherfucking ivory towers fucking their brains out.

It's fashionable to lay the blame on those shits in parliament or the county assemblies, but we all gotta admit we had a fucking hand in the state of affairs. If we hadn't been so fucking interested in embarrassing one moron or promoting another moron because the motherfucker comes from my fucking village upcountry, this fucking city would not be the shitty place to live that it has become. If you've spent as much of your life as I have in this fucking city, then you know, deep down in your fucking heart, that them motherfuckers from upcountry is fucking crazy. Niggers will steal even the gold teeth in your mouth just so they can get ahead...or head. Or, at a fucking pinch, they'll stick fucking arrows in the soft parts of your fucking arse!

But when it comes to this fucking city, we tend to think that it is somebody else's fucking problem, while we refuse to accept that we had a fucking hand in its destruction when we stood idly fucking by while them niggers in City Hall made off with the loot. Now I know we didn't get here one fine fucking day on the turnip truck; it was gradual and fucking insidious like fucking HIV! But its not like the motherfuckers that were busy swindling retired teachers out of their motherfucking pensions weren't smart enough to see the rot that was developing in our fucking city; they just chose to do fuck all about it.

And so Nairobi became the arse-end of the Nation where every fucking violation was just one in a long list of violations. Motherfuckers now can't walk on the wrong side of town without getting their junk felt up by hookers on the prowl; bitches be getting aggressive these days. Every now and then, cops will be shown on the fucking TV "arresting" and "charging" bitches for "living off the proceeds of prostitution" or some such fucking crap...but we all know it's bullshit; most of the titty bars and cat houses belong to fucking cops and every now and then, as an effective HR tactic, a few bitches be thrown in jail to teach the rest of them a fucking lesson. Meanwhile, the fucking Governor is on fucking Twitter telling other fuckheads on social media about which people he's fucking meeting with and what new digs they be inspecting. It's a fucking disgrace.

But you motherfuckers take the fucking biscuit for the level of disinterest you have in the welfare of your fucking city. Every time a fucking Ma-3 is "involved" in a road traffic accident, and niggers are killed, we all pretend to be fucking outraged, and ask for "stiffer" fucking penalties and "inquiries" into the operations of the fucking traffic police. But we see nothing wrong with fucking about with the rules if it gives us a motherfucking advantage over them niggers next door. If it means your arse is getting ahead in the game...or head...you niggers gonna do anything and everything to avoid playing by the fucking rules. Which is why every time we bitch about the fucking governor and his fucking incompetence, we should really be thinking that we are fucking responsible for that motherfucker's election! Nigger, you to blame...ain't nobody else left.

Sunday, July 07, 2013

The way of the world.

If it is true that the Jubilee government refused to participate robustly in the two-hundred and thirty-seventh Independence Day celebrations of the United States of America because the President of the United States refused to visit Kenya during his recent Africa sojourn, then things are getting a wee bit out of hand. It is one thing to pretend that the indictment and imminent trials of the President and Deputy President at the International Criminal Court are no bar to the duo seeking high government office. It is something else to pretend that these indictments and imminent trials will not affect the diplomatic relations between Kenya and its "development" partners.

Just as Uhuru Kenyatta and William Ruto have a domestic political constituency to satisfy, so too does Barack Obama. Many may not realise this, but politics in the United States is shaped largely by domestic concerns of powerful civil society groups and a free press. The radio personalities known as shock jocks such as Rush Limbaugh have the capacity to mobilise hard-core voters for or against a president if they are convinced that his policies and relationships are a threat to the "American way of life." So, in the middle of a fraught political crisis back home, it was not going to be that Barack Obama would visit Kenya when Senegal was making such great progress in democratisation, or South Africa continued to play the role of primus inter pares among the members of the African Union. But his visit to Tanzania must have been the salt being rubbed in Kenya's diplomatic wounds. 

Tanzania is nowhere near Kenya's level on adult literacy or economic growth. There are more publicly traded companies on the Nairobi Securities Exchange than are in the pipeline awaiting approval to join Tanzania's. In the minds of the mandarins in Kenya's Executive, we are the engine of the East Africa Community and it was a great snub for our southern neighbour to bask in the glow of an American president's visit simply because our President and Deputy President are facing the minor personal challenge of a trial at The Hague for international crimes.

The Executive's reaction sends a powerful message to the "West" that if the ICC trials will affect how Western powers treat us, we too are prepared to calibrate our behaviour in the light of their calibrations. This makes a complex relationship near impossible to manage. Mwai Kibaki set off on his Look East policy not knowing how it would change the relationship with the West. Uhuru Kenyatta will pick off from where Mwai Kibaki left off and enhance the ties that Kenya has built, especially with China.

A word of caution is warranted, though. It is dangerous for Kenya to place all its eggs in the Look East basket. China is also undergoing tremendous changes and sooner or later it is going to be faced with the problem of a growing middle class that is more assertive. The demands for democratisation of the People's Republic will force the Middle Kingdom  to calibrate its relations with less desirable politicians and states. Whether we like it or not, for the moment, even though the Chinese are big investors in our economy, we crave the technology and approval of the West. It was unwise to snub the US during their independence celebrations; it will not change the facts on the ground. If the trials of the two are deferred or cancelled, the US may have no reason not to attempt to rekindle its former relations with Kenya. It is the way of the world.

Thursday, July 04, 2013

On police reforms.

Whether Kenyans get a reformed police service depends entirely on whether Kenyans are looking for public safety or national security. These two objectives are not necessarily opposed to each other; but a concentration on national security will focus more on preserving the State and the authority of the State. Public safety on the other hand focuses more on the safety of citizens and not necessarily the preservation of the State or its authority. In the former, the people are sometimes treated as a threat to the State; in the latter, it is the State's responsibility to protect the people, their rights, and their property.

In 1963 when Kenya attained internal self-rule, it inherited a police force that had been a principal instrument in the preservation of the colonial state's authority. Its focus, then and over the intervening forty years, was to preserve the State and its authority at all costs. It is why a midnight knock on ones door from the dreaded Special Branch did not bring glad tidings; usually it meant extra-legal detention, torture or, at worst, an unexplained disappearance. The Kenya Police was an instrument of ensuring that the holy writ that was the President's every utterance ran throughout the nation.

The objective of the much-ballyhooed reforms of the Kenya Police is supposed to be its complete transformation from a tool of control by the State into a service that protects the rights of individuals, their lives and property. An examination of the relevant Articles of the Constitution belies this objective. Even the amalgamation of the two principal forces, the Kenya Police and the Administration Police, does not address the objective of a people-centric police service. It seems that the drafters of the Constitution had the best of intentions but they executed it by attempting a cosmetic makeover of the Kenya Police.

The July issue of the Nairobi Law Monthly has an analysis from Ndung'u Wainaina of the International Centre for Policy and Conflict who insists that only radical reforms will transform the National Police Service into a truly citizen-centric service rather than a traditional institution for the preservation of the State and its authority. However, Mr Wainaina fails to describe properly what such a radical transformation is or what it will require of Kenyans or their government.

Kenya's Presidents have been loath to give up their control over policing; it has always been the surest way for them to gather intelligence on threats to their authority and has forever been a tool for interdicting this threat. Mzee Jomo Kenyatta, Daniel Toroitich arap Moi and Mwai Kibaki used the police to stamp their authority in Kenya; but none of them saw fit to direct that policing's principal purpose was the safety of the public first, and national security, that is, the preservation of the State and its authority, next. As a result, even in the early years of Kenya's Independence, citizens were frequently at the mercy of bandits and criminals, but the presidency, the State and State authority was always secure.

A key reason why this was so is the structure and administration of policing in Kenya. Even under the structure designed under the Constitution, the National Police Service is designed to preserve the State, not protect the people. It is for this reason that the empire-building contest between the Inspector-General and the Chairman of the National Police Service Commission has occupied the men at the top of the infrastructure of policing in Kenya rather than design new ways of policing or administering the police in Kenya. An analysis of the relevant provisions on national security in the Constitution, and of the structure and administration of policing in the National Police Service Act, the National Police Service Commission Act and the Independent Policing Oversight Authority Act will reinforce this view. They are all concerned with interdicting all threats against the State; public safety is almost an afterthought.

We cannot, of course, pretend that political interference in policing is not a fact of life. But we should not simply shrug our shoulders in frustration and say that, "This is Kenya." If policing is to be transformed, then every stakeholder in these reforms must come with clean hands. The President, or the National Executive, should widen the scope of policing from merely preserving its authority; the political class should not see the police as a tool for retaining their political power at the expense of their rivals'; the people must demand more of their elected leaders. While it is presumed that the threats to Executive authority are real, they must not be exaggerated by the National Executive. The threats that Jomo Kenyatta or Daniel Moi faced are not the same ones that Mwai Kibaki faced or the ones that Uhuru Kenyatta faces. Especially for the incumbent, unless he has proof that Raila Odinga or someone else is determined to mount a coup against his government, it is time he ordered the reorientation of policing from preserving his administration to preserving the lives and property of the voters who elected him.

Towards this end, the President must place greater emphasis is building up the technical capacity of the men and women who serve in the National Police. He must invest ever greater sums in their welfare, training and other facilities. Simiyu Werunga, a security expert writing in the same magazine, points out that a great proportion of the rank and file in the National Police live in abject conditions almost akin to poverty, but the managers of the National Police live like princes. While facilities like a forensics laboratory are vital, their acquisition must not be at the expense of providing for the welfare of the officers who are charged with the task of investigating crime. If the men and women who are tasked with responding to violent crime are not provided with facilities like insurance for injuries suffered while on duty, they have little incentive to see the citizens whom they are supposed to protect as "customers." They are more likely to be apathetic to the plight of citizens. This will have deleterious impacts on all efforts to reform policing in Kenya.

It will take more than a cosmetic makeover to reform policing in Kenya. It is an urgent need the straightening out of the authority of the Inspector-General and the Chairman of the National Police Service Commission. Until it is clear how much command authority the Inspector-General wields, his focus will not be the welfare of the officers under his command, or the transformation of the command structure from preserving the State to the protection of civilians. Reforms in policing must have the total buy-in from the Inspector-General. This is the missing ingredient. Until we crack this nut, policing will remain the oppressive function of the State and nothing more.


Wednesday, July 03, 2013

It all boils down to politics.

One of those inimitably pithy African words of wisdom has it that if you want to cook a frog alive, don't dump it into a pot of boiling water but in one of tepid warmer and slowly raise the temperature until the reptile is well and truly cooked. The Leader in this month's issue of the Nairobi Law Monthly rightly points out that there is nothing "normal" about how Kenyans have grown accustomed to the state of insecurity country-wide. And rightly too, that Kenya is well on its way to being considered a failed state because despite the number of security officers and guns it has, it has singularly failed to adequately protect its people, their property or their interests. Well, we have been stewing in a pot of water over a slow fire since we attained internal self-rule fifty years ago and we are just about cooked today.

And that is where the sucking up ends. The Leader does not go far enough to diagnose why we are the way we are regarding crime, especially violent crime, in Kenya. During the 40 year KANU interregnum, Mzee Jomo Kenyatta and Daniel Toroitich arap Moi ruled with iron fists. They treated the Constitution with utter disdain and contempt; yet everything they did had the veneer of legitimacy because they had a pliable rubber stamp in the form of the National Assembly. What was certain, though, is that the monopoly of violence belonged to the Kenyatta and Moi states; everyone else was permitted to act violently only if it advanced the interests of the two strongmen. Witness the brutal ruthlessness with which Mzee Kenyatta put down the Shifta rebellion. Baba Moi had his Wagalla Massacre.

Things went off the rails in the era of the Nyama Choma Ambassador, that annoyance that was Smith Hempstone. It was at that time that as Eric Ng'eno opined once that Kenya's disparate anti-Moi groups began uniting to challenge his hegemonic hold on to the presidency. Baba Moi is no ones fool; he set in motion an exit strategy that is a thing of beauty to behold 11 years after he left State House, Nairobi. When it was clear that he had lost the politicians of Kenya, first he engineered the slaughter that were the 1988 KANU nominations. Then after seeming to hem-and-haw, he directed the repealing of Section 2A of the former Constitution, paving the way for the 1992 multi-party elections (which he sabotaged even before they got off the ground.) In the run up to the 1992 elections, he withdrew his support for the security services (or he directed them to stand by, we will never know which) while Kenya experienced land clashes not seen since the dark days of Operation Anvil in the 1950s.

The 1992 land clashes gave nascent fascists ideas which they exploited in time for the 1997 and 2007 general elections: the recruitment, training, arming and financing of "youth" militias to create distinct political zones across the breadth and length of this fair land. These militias had to be kept on-side in the non-election years; hence the rise of the murderous, marauding criminal gangs in towns across Kenya. If you find this a bit far-fetched, there is video footage of Daniel Toroitich arap Moi being "introduced" to the pre-Michuki Mungiki by none other than JJ Kamotho before the 1997 general election. Back then, they were described as a youth who had "gone back to their traditional church" and only wanted the patronage of the Head of State. Who could have imagined that in less than two decades they would not only rise to become economic and financial powerhouses, but that they would rival the State in the deployment and employment of coercive, violent force? Since 1992 it has become clear that a divided security service is a political necessity if one wishes to capture, hold or retain political power in Kenya. If a few Kenyans get their heads blown away during the political off-season, so be it.

The flip side of it is all-Kenyatta-and-Moi's fault lien of reasoning is that Kenyans have taken a spectacularly lackadaisical approach to their public safety. It is reflected in the casual manner with which they oversee their children's safety. First, it is presumed that safety is a family matter; children are instructed at nuclear-family level to distrust everything and everyone. Then their parents go out of their way to build ever higher razor-wire-topped security walls and obtain Very Large Dogs to patrol their compounds and homes. As a consequence, public safety is now a personal responsibility not a collective one. Therefore, Kenyans have very little incentive to participate in public safety, what with all thinking and taking care of their personal security. On rare occasions when an unfortunate Kenyan has been "apprehended" by a mob, a reverse collective punishment occurs: mob justice is meted out on the non-suspect. But these events are few and far between; it is more common to hear of Kenyans being the victims of violent crimes rather than as seekers of collective vengeance.

Into this morass we dump the Inspector-General of Police and the Chairman of the National Police Service Commission, both of whom do not have an interest in a reformed police service but are obsessed with that most peculiar of bureaucratic habits: empire-building. Until one or the other triumphs in their battle for supremacy, reforming policing in Kenya, improving public safety or whatever catch-phrase we will come up with in the future, we remain a mirage. Both are wrong. Both are responsible for the violence that is stalking our land. But it is the man at the top, the Commander-in-Chief and his Cabinet Secretary that are ultimately responsible for the deteriorating state of affairs. What is the point in having a Cabinet Secretary for Interior Affairs, an Attorney-General, a Director of Public Prosecutions, and Inspector-General of Police or a Chairman of a National Police Service Commission if we cannot set down a credible policy to address violent crime, we are incapable of legislating creditably to address it, we cannot investigate it, and we cannot prosecute it? What?