Friday, July 21, 2017

Rights and visions

That there are respected thinkers who believe -- fervently so -- that the Constitution of Kenya is a vehicle for economic, or even human, development gives me pause. I have always seen a constitution as serving one principal function -- the organisation of government, that is, the establishment of the form of government, the delimitation of the powers of government, the manner of electing or appointing senior officials of the government. In delimiting the powers of government most constitutions now rely on bills of rights that enumerate the rights and fundamental freedoms of citizens.

What a constitution does not do is set out a blue print for economic or human development. For sure, if government is organised as intended in the constitution and it does not exceed its powers as delimited in the constitution and not only protects the rights and fundamental freedoms of citizens as enumerated in the bill of rights, then the outcome is likely to be enhanced human and economic development. But while these are outcomes of constitutionalism, they are not objectives of constitution-making.

Part of the reason why many believe that a constitution is a a human or economic development blueprint is in how bills of rights have incorporated economic and social rights (the right to housing, healthcare, education, social security, water and sanitation), as part of the traditional bill of rights. These "second-generation" rights almost always are economic in nature and their protection or guarantee by the government will almost always have economic implications for the government. For example, the more people who have access to affordable healthcare -- whose affordability is a mixture of a well-regulated insurance market and public subsidies for citizens who can' afford insurance premiums -- the lesser the number of citizens living in poverty and likely to compete for better-paying job opportunities. But, as I have pointed out, while the objective is to guarantee, for example, healthcare for all, the objective is not to guarantee healthcare for all at a cost that would bankrupt government.

It is for this reason that economic planning plays a vital role in meeting the human development needs of citizens. Economic planning, part of the mandate of government, is guided by the delimited powers of government and with the overall object of protecting or guaranteeing the rights and fundamental freedoms of citizens. Economic planning is the servant of the constitution, and not vice versa. But they are not the same thing.

It is why I agree with those who remind us that Kenya Vision 2030 is not the constitution -- and that it is not cast in stone. It is a mere economic blueprint. To revise it -- or jettison it -- would not lead to a constitutional crisis. It is not the Vision 2030 tail that wags the constitutional dog. The easiest way to look at the differences between the two is this: the outcome of the implementation of the Kenya Vision 2030 may be greater protection or guaranteeing of the rights and fundamentals of Kenyans, but that was never its objective. The obligation of government to respect, protect and guarantee Kenyans rights and fundamental freedoms is to be found in Chapter Four of the Constitution, not the pages of the Kenya Vision 2030.

The Constitution is the rule-book that allows the government to aim at specific economic development goals. Vision 2030 is the roadmap that shows the economic development tasks that must be completed in order to attain those economic development goals. Without the constitution, there is no government and without government, there might as well be no economic development goals. The reverse is not true. Regardless of Vision 2030, the government still has a constitutional obligation to respect, protect and guarantee ones rights and fundamental freedoms.

Wednesday, July 19, 2017

Be deathly afraid

I actually want to thank and congratulate the KDF, who did this. I wish we would have more mass graves of these people. Because if we do that, we shall go the Ethiopian way. You see, in Ethiopia, although we have a very large border -- Somalia, Kenya, Ethiopia -- Ethiopia has a larger border with Somalia yet we do not find these terrorists coming, going to Ethiopia because Ethiopia is very very strong in handling terrorism. I am thinking of the four children who died in Lamu with the four police officers when these people put IEDs. See if I could get the people who put those, I would murder them, I'd even not bury them so these other people can learn the medicine. This Mandera people have been very unco-operative. They see terrorists, they lie with them, yet they don't say anything. Now they're sympathising with the five dead, five buried. They are not sympathising with the people who were killed in a quarry. They do not talk about the people who die in buses in Mandera. So if the KDF found these people and found that they were the guilty ones, don't even bury them. Throw them to the, to whatever! And that is the justice that I would like seen for us to eradicate terrorism in Mandera...The medicine for these people is just kill them the way they kill us. You take them to  judge, then he's given bail, then the...hapana! Just kill! Let them go!
This is a transcript of a diatribe by the don of a state-funded university, that he made on a morning television programme on Tuesday, the 19th July, a day after a mass grave in which the remains of five men were discovered where they had been disposed of by members of the Kenya Defence Forces. The diatribe took place after a video was leaked online showing what appeared to be a member of the Kenya Defence Forces shooting and killing an unarmed man (presumably, in Mandera).

Kenyans may have peculiarly short memories but the victims of state-sanctioned terrorism never forget. A running mate in Kenya's general election refuses to countenance the full implementation of the report of the Truth, Justice and Reconciliation Commission because "it will divide Kenyans along tribal lines", forgetting, or ignoring, that many of the victims who testified before the Commission suffered at the hands of the disciplined forces, including the army and the police. The names of the places where they suffered have become part of our human rights lingua franca -- Wagalla, West Pokot, Mt Elgon, North Eastern, Tana River.
 
Only once has Kenya come close to reckoning with its legacy of state-sanctioned terrorism, when the Truth, Justice and Reconciliation Commission Act was enacted in 2008. The day after it was enacted, Kenya went back on the objectives of the statute by setting itself upon the task of appointing an insider from deep in the heart of the Moi Era Government to be its chair, a slap in the face of some of the victims for whom the law was enacted in the first place. Since his appointment and the litigation that stymied his, and the Commission's effectiveness, much blood has flowed down the Tana in the name of anti-terrorism -- not the least the extra-judicial execution of troublesome radical clerics, the detention of thousands of Kenyan youth on suspicion of being terrorists and now, so it seems, the videographed execution by members of the defence forces of suspected terrorists.

Armies are not built for policing the civilian population; they are built to fight wars. Point them at an enemy, and it is the sworn duty of the soldiers to destroy the enemy. It is true that terrorists are the enemies of Kenya and Kenyans but, unless they are massed in standing armies challenging Kenya to a war, to beat them is a two-pronged approach of counter-intelligence and criminal investigation. In other words, more often than not, the police force is well-equipped to investigate terrorism-related offences, while the intelligence service is designed to identify threats and neutralise them before they are realised. This is not the job of the defence forces, certainly not on domestic soil bar a declaration of emergency and their deployment to police the civilian population.

The bloodlust expressed by our don is an indicator of the ideas of justice that are percolating in our institutions of high learning, where the men and women responsible for shaping the minds of our young are concerned with revenge at al costs and are blind to the malign effects of an unrestrained national security apparatus. If our very own university dons remain oblivious to the lessons of our blood-soaked history, it is no wonder that young Kenyans are susceptible to fascist ideologies such as those that have been advanced by some members of the Jubilation in this election season. It is why the presidential shoot-first-answer-no-questions edict has received such great purchase, even among well-travelled and, supposedly, enlightened Kenyans. It brings to doubt every loft promise about "peaceful" this and "peaceful" that as repeated by members of the elected classes. Quite frankly, we should be deathly afraid that the ground is being prepared for us to unquestioningly accept extra-judicial executions as the antidote for armed crime.

Tuesday, July 18, 2017

Can people actually be so blind?

In the early Aughts Kenya grappled with the runaway dangers posed by adherents of the Mungiki, an organised criminal organisation that hid behind the guise of a reawakened traditional African "church". The Mungiki had enjoyed the patronage of influential Moi-Era Mount Kenya politicians during the 1995 - 2002 period and, because of this patronage, the forces of law and order had turned a blind eye to the Mungiki's expansionist tendencies as it slowly took over the matatu sector. By the time Mwai Kibaki turned his attention to the problem, the Mungiki had become a law unto itself, immune to the niceties of the constitution or the efforts of the forces of law and order. The Mungiki had become a threat to the stability of Mr Kibaki's government.

What happened between the date of Mr Kibaki's inauguration as president and the conflagration of 2007 remains shrouded in UN reports, speculation, abortive criminal prosecutions, accusations and counter-accusations. What is known, however, is that Mr Kibaki took off the leash from his internal security ministers and the national security apparatus and set them on the adherents of the Mungiki. Hundreds, perhaps thousands, of young men and women were executed in the dead of night without the bother of criminal charges or criminal trials. Many, it turns out, were innocent, turned over -- or "misidentified" -- by their executioners in many extreme cases of score-settling. Philip Alston, the UN Rapporteur on Extra-judicial Killings, documented these executions in a report that indicted the Government at its highest levels. The executions of the Mungiki slowed down then stopped. But the lessons of the strategy had been learnt -- especially how to hide executions from the public while co-opting the public in the silent massacre of the "enemies of the people".

The tactics used against the Mungiki were perfected and deployed against "radical Muslim clerics", though every now and then a particularly public extra-judicial execution of a troublesome cleric was conducted to the unrestrained praise of many in Kenya's intelligentsia. Never mind the constitutional protections granted to Kenyans -- yes, even to "terrorists" -- there is a section of Kenya's opinion-makers who have no qualms reviving the feared Kibaki-Era Kwekwe Squad to deal, once and for all, with the al Shabaab enemy and their sympathisers in the civilian population. Six years after the Kenya Defence Forces invaded the Republic of Somalia in "hot pursuit" of al Shabaab fighters, the terrorist organisation has not been vanquished. In fact, it seems to have entrenched itself in Kenya's lawless areas such as the Boni Forest in Lamu, from whence it has launched attacks against security forces and Government officials. Night-time curfews and permanent armed patrols in the "affected areas" do not seem to have hampered the ability of al Shabaab to strike with impunity.

What the shoot-them-all cabal forgets of the Kibaki Era anti-Mungiki massacre are the human rights abuses that took place. The security forces became emboldened and engaged in criminal acts with the excuse that one "fights fire with fire". This impunity can be recalled in the way the police tried to cover up the night time extra-judicial execution of a thirteen-year-old schoolgirl in Kilifi in 2015. Or, for that matter, the brutal assassination of Erastus Chemorei when he wouldn't go along with a scheme to mishandle a massive cache of drugs seized by the police in 2005.

The latest shoot-to-kill order, issued in the wake of the abduction of the public works' principal secretary by al Shabaab fighters and her subsequent rescue by the defence forces, will almost certainly follow the same pattern as the anti-Mungiki campaign of terror and the anti-al Shabaab I operations that took place in 2008/2009. It is almost certain that giving the security forces a free hand to determine guilt or innocence will lead to many innocents being caught up in the dragnet. Many of those championing this policy might not be touched by the long, violent arm of the law -- these are the movers and shakers who can afford to count senior government officials among their closest friends -- and they will never see the destruction that security forces can unleash when off their constitutional leashes. That these anti-democratic, anti-constitution exhortations are being made with weeks to spare to the general election, it beggars belief that the malign outcomes are being so blithely ignored. Sometimes you must ask: can people actually be so blind?

Monday, July 17, 2017

Nancy Baraza was an anomaly

I once was on attachment in the Government of Western Australia in the Department of the Attorney-General. The experience was eye-opening. The man I worked for was the Parliamentary Counsel of Western Australia, that is, he was responsible for the drafting of laws for the whole WA government. Without his say-so, on many matters, a bill proceeded to debate or died a still-birth. To my mind, he possessed great power, both administratively and politically, and this was reflected in the respect he commanded among the members of the elected government, including his boss, the Attorney-General.

Working for him was one cultural shock incident after another. First, he didn't have a driver-bodyguard or a preferred parking spot in the office garage. Second, he didn't have a personal secretary and receptionist; his entire department operated with one receptionist -- and one tea-lady. Third, so far as I could tell, everyone called him by his first name -- Walter -- even the tea-lady, whom we all feared because she was the one who decided whether or not you got Tim-Tams with your morning tea. Fourth, he didn't stand on ceremony; if you wanted to see him, you called his desk and checked if he was free -- if he was, you simply walked over.

If you have worked for a Kenyan senior mandarin, you will understand why my WA experience left me all shook. The higher you climb the administrative greasy pole, the more people you drag into your comet-like tail: drivers, bodyguards, secretaries, receptionists, "personal" assistants, and the like. You also seem to be the only one who seems to have an "official" tea-lady; your underlings enter into inform arrangements with clerks' assistants to perform tea-making duties (for which a small stipend is set aside from "petty cash"). The only ones allowed to call you by your first name are your peers -- witness the awkward first name handwritten on official correspondence in the the salutations. If any of your underlings even contemplated doing so, you would most likely exile them to the bureaucratic hinterlands -- the "confidential" registry, say -- where they will not be a disruptive influence on the other minions. 

Pomp and circumstance are the reason why you wanted that top job in the first place. From the moment your chauffeur-driven Peugeot 508 is spotted -- or Prado VX -- minions start an automatic ritual: the APs at the main gate swing open the gate and salute as you glide by behind blacked-out windows; the private security person at reception has already called for your lift, pushed open the glass doors and saluted as you entered the building and jumped into your lift to your top-floor office-suite. There, your receptionist, secretaries and personal assistants relieve your bodyguard of your jacket and briefcase as they await your commands.

Even though my WA sojourn was brief, it never occurred to me that the Attorney-General would raise a ruckus at the Perth airport because of how she was treated by the security staff. In Kenya, it comes as no surprise that someone has lost her job because she disrespected a member of the Cabinet. Her sin was in not knowing people. Her sin was in presuming that members of the Kenyan Cabinet are ever likely to be considered security risks while the reality is that, even in the secure confines of public airports, they are at heightened risk from the flying public. 

You never know who among them is trained in martial arts and has been sent by the waziri's enemies, of whom there are legion. If you don't understand the dangers facing the waziri, refuse to accommodate his obvious impatience taking the dangers he face into account, you can ask for all the millions you think are available in vain. Nancy Baraza was an anomaly. She was a woman, she was in the wrong arm of government and she did not have a powerful constituency backing her up. Her ouster did not establish a new rule. Kenya's Magufuli will not be taken down by an uppity airport askari. No way, no how.

All hat, no cattle

Voting is an opiate, giving an illusion of control. Control lies in placating the masses with jobs (money). Watch the [west], as jobs vanish. @Awan_ken
Save for the men and women in the public service, the Government is not, and should not, be responsible for the bulk of jobs created in the economy. Its principal job, in the grand economic scheme of things, is to ensure that economic policy leads to economic growth and, consequently, economic growth not only leads to wealth-creation but job-creation as well. @Awan_ken seems to be a member of that school that glorifies "economic growth", especially the one that comes without having to deal with the other necessities of a functional economic system: democracy; free, fair and credible elections; human rights and fundamental freedoms.

The thinking is simple, if not overly simplistic. The vast majority of voters almost always vote for the "wrong" people; these "wrong" people make the wrong policy decisions; these wrong decisions lead to waste, "theft" of public resources and poor economic development numbers. The simple solution, so they say, is to take political decision-making from the people who almost always make the wrong decisions and entrench the power to think "correctly" in an elite, usually the large taxpayers or investors -- almost always the rich and, because of their wealth, the powerful. In fact, take away democratic institutions such as elections and you can unlock the economic potential of the national treasure wasted on such frivolous, opioid and illusory frivolities. Let the fate of the republic be decided by unaccountable and faceless men making decisions in secret boardrooms.

Let us acknowledge that freer people are prone to greater conflict and, therefore, require and rely on robust and independent institutions to mediate their conflicts with as little violence as possible. Of these institutions, the technical ones only offer technical assistance: the civil service in general, the judiciary and the disciplined services. The ones that are critical to properly mediating conflicts almost always are political institutions, like the elected government and the political parties through which political organising mostly takes place. The election is the culmination of the process of mediation and negotiation among citizens and their interest groups including trades unions, employers' federations, chambers of commerce, and industry associations as well as faith-based and other charity organisations.

The freer the political process, the more robust and independent political institutions need to be. Not the obverse. Free people are innovative and adventurous, capable of great achievements and incredible wealth-creation. Un-free people are more likely to become the victims of the elite who make all the decisions, unlikely to enjoy even the freedom of thought deep in the recesses of their minds. Un-free people are almost always the enemies of the people. Un-free people are only free in one respect: they can be killed at any time with little remorse or shame.

I don't trust anyone who doesn't trust em and my fellowman to make the best decision about my life, who believes that the democratic process we have chosen for ourselves without coercion or undue influence is the wrong one, and who would champion the equivalent of a dictatorship of thought -- all for my mine and my fellowman's benefit. I don't trust anyone who would sweepingly declare the political process to be an opiate, illusory, who has not offered himself in the agora to lead the people to his political utopia where the people have not succumbed to the debilitating effects of opioids. Either you have the conviction of your principles or you don't. So far as I can see, the democracy-is-bad-for-the-economy bandwagon is made up of the all-hat-no-cattle cabal.

Elitism's resilience

In my opinion, this is a fundamental flaw in the one-man-one-vote electoral democracy. I think we should change it so that on those registered as taxpayers should be allowed to vote – barring, of course, companies, societies and other corporate entities...We should even go a step further and give additional votes based on the amount of tax one has paid during the preceding parliamentary term; say, one additional vote for every Sh10,000 paid in the five years before an election...This would make the national election similar to a company or Sacco. In companies, for example, shareholders are assigned votes equal to the number of shares they own. WORLD OF FIGURES: Why only registered taxpayers should vote in elections
Elitism in Kenya is not a unique phenomenon. Its paternalistic fingerprints can be traced to the moment a European settler and colonist declared that Black peoples were to be civilised and given the right history. Civilising missions almost always followed the same pattern: religious proselytising about a Christian God; training and instruction in the formalism of European education with its focus on standardisation and certification; further religious proselytising about capitalism in all its iterations; and, most importantly, the centralisation, organisation and necessity of constitutional government and the exercise of its mandate, especially the imposition and collection of taxes.

We ended up with the civilised government that the settler-colonist intended for us and the tax system is proof of the settler-colonist's success, especially the arrogance that is engendered in the man or woman who pays taxes while his poor fellowman relies on the handouts of well-wishers or, worse, the tax-evader plays hide-and-seek with the taxman, skulking in the corporate underworld like the smelly skunk he is, an uncivilised being to be shunned by all right-thinking tax-paying citizens. This arrogance decrees that only those who pay income tax should be afforded political rights and, by extension, political power. (The small matter of any Bill of Rights that guarantees political freedoms to all citizens is a minor detail that statute law can address.)

If a country was the same as a SACCO or a company, and each citizen owned shares in the country, then there could, in theory, be a case to be made for votes to be based on shareholding and, therefore, political rights and political power. That is not the case with Kenya, is it? In a population of 45 million, or thereabouts, there are only 2.1 million registered taxpayers. Are these 2.1 million Kenyans -- we presume that they are all Kenyans -- shareholders in the national entity known as Kenya? If they are, should those who pay the highest amount in income tax have the greatest say about who should and shouldn't form the government and, as a consequence, determine what laws are needed?

The US Revolutionary War was indeed fought over the question of taxation without representation. But that is not the whole story, is it? The Thirteen Colonies may have had principle on their side when they took on the British Crown, but they didn't extend the same privilege to the Black men and women held as chattel property, who were included in the revolutionaries' financial statements when paying taxes. Black humans were not humans to the taxpaying white man in the American Colonies. Even if we skirt around whether or not citizens who don't pay income taxes are citizens to begin with, what other privileges will the government of the taxpayer grant the taxpayer at the expense of the non-taxpayer? In other words, what discriminatory policies should the government implement to reflect the non-rights of the non-taxpayers?

When Johnson Sakaja was mulling a bid for the Governor's office, he suggested that Nairobians should be encouraged to buy SUVs in order to bring the traffic chaos under control. Those residents of this city who commute by public means or, as many do, walk to work, were not high up in his vision for the city. They might as well have been invisible. When Kenyans were being bombed and shot at by terrorists, the president and his securocracy suggested, behind their phalanxes of armed bodyguards, that, in effect, Kenyans should sort out their own personal safety and security on their own and leave government alone. Security, the said, begins with you.

Elitism has not traveled that far between the Portuguese visitors to the East African Coast and their forts and the columnists on our national newspapers. The poor and unlettered will always make the wrong choices when it comes to "leaders" and, for their own benefit, some of their privileges must be curtailed. There are many things wrong with Kenya's democracy. Undemocratic screeds are not the solution.

Tuesday, July 11, 2017

Kanuism's resilience

Three Kanuists have died in the past week. This is an astonishing rate by any standard. Two of them were stalwarts of the Moi Way, which eschewed the rights and fundamental freedoms of Kenyans and, instead, translated presidential fiat into action on the ground. The third was some sort of fixer-henchman-financier of considerable power during a twenty-four-year presidential reign of terror. I look forward to the intellectual contortions Kenyan politicians will twist themselves into looking for something, anything, to say in praise of the late unlamented Kanuists.

While Kanuists are shuffling off their mortal coils, Kanuism is alive and in very rude health. Jill Cottrell Ghai grapples with Kanuism in her most recent Op-Ed in the The Star, as she examines the unenforceable Gazette Notice by the Cabinet Secretary for Environment and Natural Resources and the resurgent presidential habit of "creating" new administrative units as sops to voters during political campaigns. While she diagnoses the constitutional infirmities that both Kanuist actions suffer from, she refuses to name the ultimate reason for their very existence in the first place: new constitution or not, Kenyan politicians and senior Cabinet nawabs are still firmly wedded to Kanuism as their guiding philosophy of governance.

Kanuism was famous for its fidelity to the letter of the law which it preferred to interpret as broadly as it could when its proselytisers imposed their will on us and as narrowly as it could get away with when the people attempted to hold Kanuists to account in the courts of law and of public opinion. Take the "plastic ban" as an example. It has the feel and look of a lawful statutory decree because it pays lip service to sections 3 and 86 of the Environmental Management and Co-ordination Act (No. 8 of 1999), but it has the firmness of a puff of smoke because a careful reading of both sections shows you that the waziri has done nothing to satisfy statutory and constitutional requirements in her "ban". This trick was used often by Kanuists to rob hundreds of thousands of Kenyans of their land, their homes, and their lives.

Kanuism is also notorious for remaining deaf to any and all challenges to its legitimacy. Kanuism serves the Kanuist, not the people. The "creation" of sub-counties, with the imprimatur of a statute that makes a mockery of section 17 of the Sixth Schedule to the Constitution -- to restructure the...provincial administration to accord with and respect the devolved system -- serves the recently resilient Kanuists fighting at strength. Do not expect the pace of creation to slow down after Uhuru Kenyatta is re-elected; it might just pick up a new head of steam. The people are a means to an end, and the new-administrative-unit-creation is a useful lever in moving them to vote the right way.

Kanuism's roots are well-entrenched and rooting them out will take more than the goodwill engendered in the Constitution. We must confront the enemy by first acknowledging his presence, identifying the reasons why he is so resilient and taking the fight to him on multiple theatres: the courts, the Op-Ed pages, social media, everywhere. Jill Cottrell Ghai does us an important service by reminding us that Kanuism continues to thrive. We must strike at its heart if we are truly to enjoy the benefit of the phrase, "Justice be our shield and defender" as we intone it in our national anthem.

Friday, July 07, 2017

Saba Saba lessons

Saba Saba finds us in another election year with the lessons of the Second Liberation scattered to the four winds on the backs of  a not-so-sub-rosa-debate on whether Kenyans want a peaceful election -- or a credible one. One media-savvy Kenyan who commands a loyal following and great influence in certain quarters argues that peace must be the only goal of the election; that the choice between credible and peaceful elections is a false one because, in her words, no justice can be found in war (which she seems to believe is the antonym of peace).

Saba Saba was not peaceful. How could it have been? It was the culmination of decades of violent political repression by the institutions of the Government in the name of peace and stability, the very things that a peaceful election are supposed to deliver. Between 1969 and 2002, only the winners of elections believed that Kenyan elections were credible as did those who benefitted from electoral victory. The vast majority of Kenyans lived under the shadow of the agents of the State who would snuff out lives, destroy livelihoods, and shatter dreams, and who corrupted the very soul of the nation in the name of peace, something that has eluded Kenyans in every single election since 1964. The scale of the violence might have varied -- the nadir being the 2007 general election -- but violence has been the constant spectre hovering over the nation at every general election. The 2002 election might have been the most peaceful but it had its violent moments, the least not being the the mysterious car crash that put Mwai Kibaki in hospital for two months, his life hanging by a very thin providential thread.

Dr Wandia Njoya writes -- tweets -- more eloquently and intelligently than I can on these matters. I'll paraphrase her. Kenyans, at every election, have exhausted all peaceful avenues to change regimes. In 2013, they stared in weary resignation as a brand-new Supreme Court betrayed them. Again. So far in this election, Kenyans have not turned on one another -- though thousands have quietly made plans to flee to boltholes should things take a turn, as they are wont to do in Kenyan elections. Kenyans have, by and large, shrugged their shoulders and gone about their affairs as public resources have been mobilised in political campaigns and billionaire swindlers have sunk their claws into the electoral system to assure victory for their favourite naggy equines. Kenyans are clinging to a sliver of slender hope that despite the things they have seen and heard, the election will be credible.

Dr David Ndii is not wrong to warn of what might happen when the credibility of the general election is in doubt. Whether or not his prediction comes true on the scale that he fears is neither here nor there. The peaceniks calling for peaceful elections are fools to believe that stolen elections won't be the final straw that broke the camel's back. Every Kenya wants peace. But many Kenyans have been denied peaceful avenues for protest or regime-change. If these elections are stolen in any way, shape or form -- if they lack credibility -- singing Kumbaya at the top of your voice, ma'am, will only serve to enrage the people more. Deny the people the credible election they deserve and the lessons of Saba Saba will truly have been forgotten.

Friday, June 30, 2017

Same story, different year

The most consistent story of the past fifteen years has been that "Kenya is about to take off and join the Asian Tigers in prosperity and success". It has been repeated so often it has now become a cardinal political truth, spouted with certainty and conviction by every man or woman determined to separate you from your ballot -- and the contents of your wallets. The story always ends with "But if it were not for the corruption". The two elements of the story must be there for it to justify the immense national resources we expend to listen to politicians lying through their teeth about what ails this country. First remind us of the glory days before the Coffee Boom became the Coffee Bust when Kenya was the peer of the Yen's Taiwan, Park's South Korea, Suharto's Indonesia, Mahathir's Malaysia and Lee Kuan Yew's Singapore. Second, insist that the problem isn't the received political wisdom that has been applied by successive politicians for nigh on fifty five years but the corruption that the same politicians have engendered, encouraged, participated in and protected for the same period. It hasn't worked so far. But that doesn't mean that in 2017 the narrative is about change, does it?

Thursday, June 29, 2017

She just couldn't help herself

Are you more English than the Queen of England? Some of the Jubilation's most ardent supporters are more Jubilant than the party leadership -- and they are not shy about showing their loyal colours. When Raila Odinga and his new pentagon were busily making asses of themselves on TV with that embarassment they called "manifesto launch", one Jubilant couldn't help herself and live-tweeted the spectacle. For hours. She is the Jubilation's version of a fanatic. At some point, someone had better remind her, "N'interrompez jamais un ennemi qui est en train de faire une erreur." This is a cardinal rule of combat. Her fanatically over-zealous Jubilee-ness explains why her path to the National Assembly ended in disaster. She just couldn't help herself.

Tuesday, June 27, 2017

Underwhelmed to death

There is no mystery as to why the launches of the main coalitions' manifestos were so underwhelming: they were drafted by men, for men, to be implemented by men. Not just any men, mind you, but by men of means and power, men who will never hunger or suffer privation for the rest of their lives. Men who have had the privilege of governing for dogs' years. Men who, when it comes down to it, have been at the forefront of driving the creativity, vitality and versatility of this nation into the ground. Men who will never allow women to play a leading role in defining what this nation can be. Men to who the expression "gender" always, but always, means "women". A masculine, patriarchal, sexist, misogynist manifesto will never inspire and not one that has been launched or will be launched between now and the 8th August will. Cry, my beloved country, you have nothing to lose except your soul.

Monday, June 26, 2017

What's with the Chapter Six zealots?

Here's a dirty little secret: the loudest voices against the candidacies of many men and women seeking elected office because of their lack of integrity or, in the parlance of the loud voices, failure to comply with Chapter Six of the Constitution, are unwilling to put their money where their mouths are. Unless, of course, they know that they can't. If they had a constitutional or statutory leg to stand on, they would, or should have, taken their constitutional displeasure to the High Court and petitioned the court to invalidate the nominations of those they believe have sullied the spirit of Chapter Six or, if events had been overtaken, to invalidate the certificates issued by the electoral commission permitting these men and women to stand for election. Okiya Omtatah has already demonstrated that the High Court isn't always deaf to the please of the righteous (or self-righteous). Why the integrity zealots have not taken up as Mr Omtatah has begs the question: are they afraid that the Chapter Six they love so much isn't what they thought it was?

Bold gambles are for gods

...He that is without sin among you, let him first cast a stone at her. John 8:7
It was a bold gamble. When the Son of Man challenged the scribes and Pharisees who sought to trap him with his own words, the author of the Gospel of John couldn't have known how far the gambit would spread. In Kenya's election obsession, it is somewhat the premier league of political rivalry: who has the filthiest linen in their closet? Jimi Wanjigi, as recounted by a "Nation Team", is a Very Corrupt Man, and his supping at the same table with Raila Odinga, John Githongo and David Ndii is a Very Bad Thing because it will lead to State Capture in the same odious way as Jacob Zuma's South Africa has been captured by "the Guptas". When Jimi Wanjigi consecrated the Jubilee Alliance marriage following the fiery death of George Saitoti, the proto-Jubilation was happy that he was supping with them. He wasn't a Very Corrupt Man then. He was a Very Successful Entrepreneur. You will, of course, notice that the Christian exhortation about first casting stones has been abandoned by the Daily Nation; after all, in its zeal to inform, educate and entertain, like any good tabloid, it has been carrying water for one side or the other since it blew hot-and-cold with Dennis Galava's career. Bold gambles, good people, are for religious icons as enshrined in holy books of faith.

Friday, June 23, 2017

Blockchain ballots

How about this for an idea: blockchain software to replace ballots for the general election. Combined with two-factor or even three-factor authentication, all registered voters can be assigned unique identifiers that are by their very nature tamper-proof, as blockchain technology has demonstrated a great deal of security and legitimacy among its users. Then we won't be put on edge every time Raila Odinga says one thing about al Ghurair and the Jubilation loses its freaking minds.

The steamroller

Is it that the civil service -- public service, according to the new constitutional patois -- is now staffed by the intellectually lazy? The glory days of the Kenyan administrative state -- where the civil servant enjoyed power and legitimacy -- are well an truly behind us and we are now fully entrenched in the political state in which the political classes, of which the Cabinet is prominently represented, make administrative decisions for political reasons.

Uhuru Kenyatta is seeking re-election and his Cabinet Secretaries are doing everything in their power to ensure that, indeed, he is re-elected. It is why Fred Matiang'i, the hard-charging Cabinet Secretary for Education, is seeking to implement a policy of embedding "spiritual leaders" in schools to curb "student unrest" by "checking the moral decadence that has hit schools leading to destruction of property" and to "to contain school unrest".

Like the new school curriculum that is being piloted in all forty-seven counties, the policy behind this new initiative remains shrouded in mystery; Mr Matiang'i, after all, knows best. And Uhuru Kenyatta can claim that his government has done its best to ensure that students don't burn down dormitories or take to homosexuality, like the Ministry of Education claims they do. Mr Matiang'i is the steamroller of the Jubilee government just like the late John Michuki was for the NARC government and sooner or later, either Mr Matiang'i will build a team that will see his policies through to their logical conclusion or he will move on and the education sector will go back to its middling ways.

Thursday, June 22, 2017

So what if the general election is pushed back?

Justice, equity and fairness. Those should be the usual outcomes of the applications or rules and regulations -- laws -- or their enforcement by the police, the public prosecutor and the courts. Even the Constitution should strive for that end -- and not focus solely on the inflexible application of its rules of procedure. Look at the mess we are about to make with the 8th August general election -- because of the stupid inflexibility of the political classes and the electoral commission, all the objectives of the general election are likely to not be met: peace, justice, equity, fairness, credibility, legitimacy or accuracy. So what if the election is not held on the 8th August and is held -- for example -- on the 25th September? The sky will not fall and the only ones likely to have a problem with it are the blindly inflexible rule-followers uninterested in justice, equity or fairness but only in the "proper application and enforcement of the law."

A dual-carriage Mombasa Highway?

We built the new multi-lane Thika Highway to ease traffic, among other reasons. For a very brief while, the traffic did, indeed, ease. But nowadays, at rush hour in the morning or in the evening, the highway is just as congested as it was before. It's an interesting phenomenon: build extra road space to ease traffic, but the problem is only temporarily solved. So now there are loud proposals to convert the Mombasa Highway into a dual-carriage road between Nairobi and Mombasa to "ease traffic". Yes, it is almost five hundred kilometres long so the cost will probably bankrupt the nation. Obviously, those who want a dual-carriage Mombasa Road are being hyperbolic. What they want is to remove the trucks from the road thinking that it is the trucks that are responsible for the slow average speeds experienced on the highway. Just like the Thika Highway, their one solution will probably not solve their problem with the average speed. They will probably need to rethink how the highway can bypass towns and villages, thereby eliminating bumps, and by also imposing a minimum speed for long stretches.

Wednesday, June 21, 2017

Do we need 'big banks'?

Nakumatt is a big retailer with branches across three countries. If it fails, will it bring down with it the chain of suppliers that it has failed to pay for the past five years? Nakumatt's suppliers are petitioning Government officers to intervene so that their bills are settled. In short, they are looking for a Kenya Airways deal.They are unlikely to get one. So, knowing what we know about too-big-to-fail corporations, and the enormous risks they place countries' economies in, why is the National Treasury pursuing the dream of a "few big banks" in Kenya? The recent global recession showed the risks of too-big-to-fail banks to the global (and US) economy. Nakumatt has shown how too-big-to-fail supermarket chains can strangle economic activity. Are big banks something we should pursue in the wake of the poor supervision of smaller banks by the Central Bank or the Capital Markets Authority?

Tuesday, June 20, 2017

The Likoni Ferry Tango

The last time Kenya got new ferries for the Likoni Channel...there was an election in the air, and John Harun Mwau was the Assistant Minister for Transport. Suffice to say, those ferries have had a chequered career. The Kenya Ferry Service, a parastatal, has announced that two new ferries, MV Jambo and MV Safari, will be delivered in July and November. Right on time. We can predict with an eerie accuracy that when the 2022 general election rolls through, the Kenya Ferry Service, its successors and assigns will be announcing the delivery of yet another pair of ferries for the Likoni Channel and the plans for a bridge will be offered as "serious alternatives" without anything actually being done.

Sunday, June 18, 2017

You really have to love these people

You have to love these people. The Ministry of Interior and Co-ordination of National Government has published a notice for a tender number MICNG/HQS/1/2014-2016, valued at Ksh. 500,000 for "airlifting presidential speeches". You have to love this Government. It's 2017. 2017! And we have a Government that has an entire ministry built around information and communications technology that doesn't seem to use a lot of information or communications technology in its communications. Unless Bob Collymore and Safaricom have been lying for the past five years, there isn't a corner of official Kenya -- you know? those places where the remnants of the provincial administration hold sway -- where there isn't a lap-top-totting official of the Ministry of Interior and Safaricom bundles for reading porn. Why the hell would they still need to airlift presidential speeches to any place? You really have to love these people.

Ballot-sized stupidity

The Constitution is not cast in stone and it is not as inflexible as the My-Way-Or-The-Highway political classes would have you believe. We, understandably, made the process of amending the Constitution an onerous one; no one should monkey with it willy-nilly. Some of the amendments to the Constitution can only be concluded after a positive result from a referendum, such as amending the Bill of Rights or the functions of Parliament. But, when it comes to altering the date of the election or the nature of representation, no referendum is required!

I have argued that our political problems are as a result of a failure of imagination. Take this current loud impasse over the ballot-printing tender. You would be forgiven for thinking that weighty constitutional issues were at stake rather than the petty jealousies, political insecurities, egotistic mule-headedness and sheer testosterone-fuelled arrogance associated with the men seeking the highest office in Kenya.

Everything we need to solve the August 8 challenges can be found in the Constitution; the Elections Act and the Public Procurement and Asset Disposal Act are merely Parliament's expression of the sovereign will of the people as set out in the Constitution. First off, even at this late stage, there is nothing that stops the elected classes from reconvening and initiating a rapid process of amending the Constitution (yes, I am well aware of the 90-day rule when it comes to constitutional amendments) to provide for a new election date. What stops these men and women from doing so is that they are invested in an election calendar that highlights all that is different among them, as opposed to what unites Kenyans in general. Unity doesn't win elections, as the painfully divisive 2013 general election demonstrated, but discord and conflict. In their scheme of things, elections are not opportunities to identify the best and brightest or to confer on them the privilege to lead us to greatness, but opportunities to settle scores, feather nest eggs and "eat".

Secondly, save for a committed minority that decrees that constitutional purity should be maintained at all costs, most Kenyans would welcome a political system that served their needs: food, water, healthcare, affordable housing, security, safety and opportunity. Few Kenyans are willing to invite at constitutional crises simply because the "Constitution is sacred" and can't be amended to iron out political wrinkles of great consequence.

Third, whoever advanced the canard that Kenya will one day have a perfect constitution, a perfect government and a perfect political class needs to have his bare behind introduced to a eucalyptus switch. That shit isn't cool. No liberal democracy in the world has a perfect constitution and Kenya is no exception. Even if we had taken fifteen years to draft the Harmonised Draft, it still wouldn't have been perfect and the political class that shepherded it would never have been perfected. We have, on numerous occasions, allowed the perfect to be the enemy of the good, and this imbroglio over the ballots is just the latest example and the public procurement process handmaiden to that demonseed.

Fourth, we are hostage to a narrative that clearly isn't working for the vast majority of Kenyans: the proposition that the Government of Kenya can only be elected in the form that it has been for fifty-four years, the reason why political stalwarts are sweating bullets over where and by whom ballots will be printed. The moment that we realise that (a) the Constitution isn't cast in stone, (b) that we don't have to elect a government in this way without betraying the constitutional principles of representative government and (c) that for us to build a government that works for us, we should invite all voices into the debate without preconceptions, we might actually start to solve some of our most intractable political problems. Ballot-printing is the least of our problems.

Friday, June 16, 2017

Elements of the charge of treason

If you dream that the President was murdered by a knife-wielding buffalo, is that treason? A charge of treason under section 40 of the Penal Code has two elements. Subsection (1) provides,

(1) Any person who, owing allegiance to the Republic, in Kenya or elsewhere—
(a) compasses, imagines, invents, devises or intends—
(i) the death, maiming or wounding, or the imprisonment or restraint, of the President; or
(ii) the deposing by unlawful means of the President from his position as President or from the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya; or
(iii) the overthrow by unlawful means of the Government; and
(b) expresses, utters or declares any such compassings, imaginations,inventions, devices or intentions by publishing any printing or writing or by any overt act or deed,
is guilty of the offence of treason.
The first element is the "compassing, imagining, inventing, devising or intending" the treasonous act and the second element is the "expressing, uttering or declaring" of the "compassings, imaginations,inventions, devices or intentions" by "publishing any printing or writing or by any overt act or deed".

Merely dreaming that the President has been murdered by a knife-wielding buffalo isn't enough to sustain a charge of treason; one must also publish what one dreamed. Subsection (1)(a) and (1)(b) must be read together for the charge-sheet to be complete. An incomplete charge will be fatally defective and the prosecution will fail.

Thursday, June 15, 2017

Stop the KFCB before it is too late

On the 15th June, the Kenya Film Classification Board published a statement regarding complaints it had received concerning children programming on television whose access to it by children it has declared to be "prohibited". 

The Board's grounds for the prohibition include that the television programmes are "deliberately designed to corrupt the moral judgement of children regarding the institution of the family", that they "contain elements that are intended to introduce children to deviant behaviour, against our moral values and understanding of the institution of the family", and that "homosexuality goes against our Kenya's moral values and culture".

The Board bases its "prohibition" on the provisions of the Constitution, the Penal Code and the KFCB Content Classification Guidelines. It declares that the Constitution, at Article 45, "defines marriage as a union of persons of the opposite gender", that sections 162 to 165 of the Penal Code "criminalises homosexual behaviour and attempted homosexual behaviour, referring to it as 'carnal knowledge against the order of nature' ", and that section 181 "prohibits the distribution and exhibition of indecent content, with the potential to corrupt morals".

First, as I have pointed out here that the KFCB has no authority to ban the broadcast of television shows; its mandate, under section 46I of the Kenya Information and Communications Act, 1998 is to certify films (and, I suppose, television shows) that will be broadcast on TV; it is the Communications Authority that may prohibit a broadcaster from airing any programme on TV in Kenya.

Second, the KFCBfails to define key terms that it relies on to justify its usurpation of the authority of the Communications Authority. It has also failed to prove its allegations; it wishes for us to rely on its judgment based on its authority on the welfare, safety and care of children. Take its declaration that the offending television shows are intended to introduce children to "deviant" behaviour. The Board fails to show how it arrived at a judgment of deviancy in relation to depictions of homosexuality.

Once upon a time, psychiatric practice, especially in western nations, classified homosexuality as deviant and prescribed interventions to correct the deviancy, almost always with devastating psychological effects that psychologically and physically harmed their victims. Today, "corrective" programmes intended to "turn" homosexuals straight are the preserve of fringe religious sects; no one seriously holds the view that homosexual thoughts or acts are deviant acts. Moreover, even the Government of Kenya, while it still holds the official view that "carnal knowledge against the order of nature is a criminal offence", it hasn't prosecuted the offence in almost thirty years. In a nation that has changed considerably over the past three decades in terms of individual rights and fundamental freedoms, the State would find it very difficult to do so today.

What the Board intends, so far as I can tell, is to police what we think, how we think and how we publish what we think. It, not to put too fine a point to it, wants to police though, expression, ideas and the nebulous concept of "morality", arrogating upon itself the power to determine what is "wholesome" and what isn't. It will fail. The risk of its crusade is that it will eventually expand its inquisition beyond homosexuality into the realm of all our civil and political rights, playing the role of the much-discredited KANU Disciplinary Committee that was responsible for so much State abuse between 1969 and 1990 when scores of Kenyans were arrested, unlawfully detained tortured or even killed for attempting to exercise especially their political rights against the wishes of the ruling party.

I have warned that we allow the Board a free hand to our own ultimate suffering. We must stand up to stand its crusading chief executive. Today, to paraphrase Martin Niemöller, they come for the homosexuals; if we don't stop them, they will come for us all.

Wednesday, June 14, 2017

Failure of imagination

Must you elect a man or woman who comes from the political or administrative unit you come from? In other words, must your senator, member of the National Assembly or member of the county assembly come from the county, constituency or ward that you reside in?

Ideally, the only elected representative that should come from the political or administrative unit is the member of the county assembly but taking into account that the principal roles of elected representatives are -- or should be -- law-making and oversight of the executive (with representation being reflected in the laws, especially the budget, that are being made for the welfare or benefit of the people), there is no reason why the MCA should also come from the same constituency as his or her electors. 

With this in mind, there is also no reason why the constitutional gender rule in  Article 81(b) shouldn't be met while still satisfying the requirements of Articles 97(1) and 98(1) on the membership of the National Assembly and the Senate. This constitutional imperative can be achieved by amending the elections laws that require that parties must nominate candidates to stand in elections to represent specific constituencies; the laws could simply provide for the publication of party lists with slates of candidates nominated by the parties who should be nominated in such number and using such party mechanisms to ensure that the rule in Article 81(b) is satisfied.

Indeed, the nominees contemplated under 97(1)(c) and 98(1)(b) shouldn't throw each party's calculations out of whack; given that these nominations take place after the general election, the nominees will simply represent the party's strengths in the respective legislative chambers and, where the party lists were drawn up to strictly meet the Two-thirds Gender Rule, the other nominees will bolster the numbers of the minority gender -- a political and social good -- without offending the non-discrimination provisions of Article 27(4), but promoting the overall goal of 27(8).

Our failure to give effect to Article 81(b) is a failure of imagination, not a failure of the Constitution.

Poverty of ideas

How did Uhuru Kenyatta know, long before the party lists were submitted to the Independent Electoral and Boundaries Commission, that the National Super Alliance's deputy president candidate was also being nominated by the alliance as a member of the Senate? The President was either lying or relying on information that was unavailable to the rest of the voting public (such as intelligence reports prepared by national security organisations like the NIS). If it is the former, you have to wonder why he would even bother of he still believed that his Jubilee Party of Kenya is going to wipe the floor with the opposition alliance. If it s the latter, why would he tip his hand this early in the official campaign period?

Of course, Kenya's "free" media has taken what the President said at face value and "analysed" the "implications" of Mr Musyoka being on the NaSA party list come the 9th August; what they haven't asked is whether the allegation is credible, to begin with, and whether the President has contributed to the cynicism with which all politicians, including those campaigning with him, are held. Kenya can no longer rely on the media to inform or educate on key political or public policy questions; it can rely on it for entertainment the media has turned many  serious matters of public policy into entertainment. The president's lying or misuse of intelligence information falls into the category of entertainment these days, thanks to the media. We are the poorer for it,

Tuesday, June 13, 2017

Success or failure?

There are many elements to a successful election -- success being measured in terms of credibility and legitimacy. Kenyan political institutions seem uncertain that Kenya will enjoy a successful election because some of the  selfsame political institutions distrust the Independent Electoral and Boundaries Commission while the ruling alliance will hear nothing about doubts about the preparedness of the elections' manager.

What is certain is that the doubts about the IEBC's credibility -- fueled by delays in getting crucial logistical issues off the to-do list -- are the natural consequence of the predictable poor politicisation of the process by both the Majority alliance and the Minority coalition in Parliament. Matters that should have been settled in the aftermath of the 2013 general elections -- including knotty amendments to the Elections Act, the Political Parties Act and the Elections Campaign Financing Act -- were hijacked by the selfishness of parliamentarians and converted into footballs fought over with a ferociousness that betrayed the parliamentarians' lack of interest in the public good.

Whether the elections are successful or not depends almost entirely on events that are beyond the control of the voter -- but in the hands of the political classes and the political institutions meant to oversee the elections. For there to be success, the degree of political trust among the political institutions and actors has to be raised to unprecedented heights. None of the players bar, perhaps, the Commission seem interested in this arduous task. Fifty-five or so days out from the elections, what the politicians will determine the outcome of the elections. No one has faith that they will do the right thing. I hope we are wrong.

Monday, June 12, 2017

The SGR hasn't failed

The Madaraka Express, the passenger train service running on the new standard-gauge railway from Mombasa to Nairobi, is off to an auspicious start. Trains are overbooked and it is reported in the first week of its operation, over seven thousand passengers have been ferried between the coastal resort and the Capital. 

Of course, there are those who have little to cheer about when it comes to the Madaraka Express and the SGR that made it possible. These Kenyans are all up in arms over the cost of the railway and the rent-seeking that accompanied its construction and worry, justly, about the cost that it will impose on future generations as the debt is paid back to our Chinese sugar-daddy. But, and this is a good thing, macro- or micro-economic theory is meaningless of the railway and the trains that will use it remain the subject only of commentators with exoplanet-sized chips on their shoulders and massive axes to grind.

In rapid succession, two ideas have already percolated to the surface and given life in the pages of the Business Daily. Dr Bitange Ndemo reminds us that the most expensive part of the railway is actually the railtrack, for which the Government of Kenya has spent hundreds of billions of shillings to lay. The railtrack comes together with stations, switching gear, communications gear and, crucially for a Kenyan, the land on which the tracks are laid. Dr Ndemo proposes that Kenya Railways Corporation should be transformed into a regulator which shall oversee the operations of private-sector investors who shall run rolling stock on the SGR. To be simplistic: Kenya Railways can own the railtrack and a private investor can operate the Madaraka Express.

Carol Musyoka, the Nitpicker, picks up from where Dr Ndemo lets off. Ms Musyoka demonstrates that a railway is more than the tracks, rolling stock or stations that form the core assets of the railway, but also the amount of time that passengers and visitors to stations spend in stations. In the United Kingdom, services offered at the railway stations contribute significantly to the railway operator's bottom line. Anyone can see that the opportunities offered by the new railway are enormous and, regardless of the bitching that a minority of Kenyans are engaging in right now, there are Kenyans who will not hesitate to invest in goods and services connected with the SGR and the assets connected to it.

If Dr Ndemo's proposal is taken up seriously, there is no reason why the Kenya railways Corporation should be the only operator of trains on the SGR even if it doesn't become the railway's operator. More and more investors should be encouraged to invest in rolling stock, both locomotives and bogeys, so that they can operate trains on the SGR, ensuring that there is no downtime on the railtrack at any time. And if we look at the railtrack as an entire business ecosystem - never mind the predator-prey connotations inherent in that description - Ms Musyoka's proposal sees investors offering hundreds of thousands of services in and around the real estate owned by the railway that will contribute significantly to the bottom line of the railway's operator.

Notwithstanding the billions that may or may not have been stolen during the construction of the standard-gauge railway, the railway is now a reality and its fate is not going to be determined only by those who see the negative aspects of its constructions. Kenyans have demonstrated, time and again, that no opportunity will pass them by. when its benefits are as clear as those presented by the new railway. The knock-on effects of private investment in principal and ancillary activities connected with the new railway will, in the words of the Government's railway's boosters, be a game-changer.

Listen to the whingers if you must but don't live under the delusion that Kenyans will not invest in, around or along the new railway because they will. These Kenyans are the key to its ultimate success. I, for one, am very excited by its completion.

Performative anti-corruption

Performative anti-corruption is our thing. Whenever we think of anti-corruption law-enforcement, the images that come in mind are of dogged anti-corruption detectives chasing down uniformed policemen accused of soliciting or receiving bribes in the course of their official duties. Usually, the dramatic take-down is filmed and broadcast for the whole country to see the alleged guilty parties facing their Waterloos. Every now and then, after the small fry of the National Police Service have had their infamy broadcast for the hoi polloi, the masses demand the scalp of a Big Fish and, true to type, the anti-corruption sleuths are filmed "raiding" the private homes of lands' commissioners or unmarried Cabinet Secretaries in the wee hours of the morning and cartons of documents being carted away "for further analysis".

Performative anti-corruption often sates the peoples' desire for "heads to roll" whenever the noise about corruption gets too loud. Performative anti-corruption is the camouflage that State officials use to cover up the discomfiting truth that we are nowhere near to solving this problem.

Looking at the anti-corruption statutory architecture, from Article 10 on the national values and principles of governance to Chapter Six on leadership and integrity in the Constitution to the Anti-corruption and Economic Crimes Act of 2003 to the Leadership and Integrity Act of 2012 to the Ethics and Anti-corruption Commission Act of 2011, you would think that we had all the legislative tools necessary to stop corruption in its tracks. To my mind, however, our problems are not statutory ones; they are political. They always have been.

One of the most corrupt governments in the world is that which left behind a colonial legacy: Her Majesty's Britannic Government, the United Kingdom. We have adopted many of its corrupt practices, perhaps blindly, including the national malady that fears the "embarassment" of senior state officials such as the president, his deputy, members of the Cabinet or chairpersons of national commissions or independent offices. The machinery of the state must be oriented towards ensuring that these grand personages are not tarred with the dirty brush of corruption and whenever there is a failure in the operations of the machinery, the embarassment is limited to early morning raids in the full glare of the "free press" while behind the scenes, the machinery re-calibrates itself and sets upon a scheme to ensure that no further harm befalls these men and women of great import.

Kenyans keep asking why former or current Ministers or Cabinet Secretaries have not been jailed for their "obvious" corruption and the answer is not that hard to come by: no responsible Kenyan political leader, taking his or her cues from the lead given by the British government, will take it upon himself to investigate, arrest, indict, prosecute or jail a corrupt Big Fish.

To keep the masses in line, therefore, we have performative anti-corruption in which, every now and then, uniformed policemen are chased by anti-corruption sleuths along highways for demanding and receiving small-bore bribes.

Friday, June 09, 2017

Beware the NGO-isation of sovereignty

The road to hell, dear children, is paved with good intentions, so they say, don't they? #RedCard20 is the good intention of the 2017 general election, a list of twenty men and women whom civil society organisations have identified as having "integrity issues" and recommending that they not be permitted on the ballot by the Independent Electoral and Boundaries Commission. The aim of #RedCard20 is to "reawaken the consciousness of the country".

In 2007 and 2008, we stared into the abyss and the abyss stared back. By the time we lost the staring contest, hundreds of Kenyans lay dead, thousands were maimed and scarred for life, and still hundreds of thousands more had been stripped of all their possessions, driven from their homes and were living like beasts of the wild in makeshift camps that came to be indelibly remembered as "IDP camps". The lessons we learnt in 2008 were applied in the the Agenda for Peace, the national reconciliation process that was overseen by foreigners that culminated in the promulgation of the Constitution in 2010. Among its most important features was a provision on national values and principles of governance and a Chapter on the leadership and integrity of State officers such as the President, Deputy President, elected representatives and Governors. Its intent was good; its effect has been insalubrious.

From the moment the men and women of the Tenth Parliament (2007 - 2013) were called on to begin the arduous process of "implementing the new constitution", they were determined to circumvent the will of the people, called "'sovereign" in Article 1, by ensuring that none of them and their political descendants would ever fall victim to the sharp edge of the sword of integrity. The demonseed of their efforts was the Leadership and Integrity Act, 2012, that is designed to look tough without actually being tough. By and large, most Kenyans either were not concerned by the efforts of the members of the Tenth Parliament or those of the Eleventh Parliament (2013 - 2017). They were almost always concerned with what their elected governments were doing, never mind that they still bitch a lot about "lack of development" as being linked to their leaders' "lack of integrity" but never actually doing much about it.

The #RedCard20 initiative assumes that Kenyans, sovereign people, have had their political agency taken away from them and that it is the responsibility of the civil society organisations behind the initiative to fight for what the people have lost. The hubris behind the initiative is breathtaking. First, they assume, without much proof, that Kenyans have been stripped of the power or ability to nominate or elect political leaders of their choice because their choices are limited to men or women with "integrity issues". Second, they proclaim to know what is best for these Kenyans and, third, to propose the only serious and workable solution for the people.

There is nothing wrong in an organisation taking it upon itself to "vet" potential political leaders; we, in our sovereignty, have an absolute right to do so using matrices that have nothing to do with the written law of the land if we so choose. But there is something inherently malign in an organisation decreeing that its matrix is the only legitimate one, that it is more legitimate than a political process that has nominated men and women it has statutory trouble calling "thieves". Take Anne Waiguru, for example, who appears on the #RedCard20 list, who is "under investigations for the National Youth Service (NYS) theft in which up to Kshs. 1.9 billion was lost in the NYS scandal under her watch as the Cabinet Secretary (CS) for Devolution."

The makers of the #RedCard20 list refuse to accept that Ms Waiguru hasn't been charged with a crime by any known agency: not the national police, not the anti-corruption commission, not even the national treasury or the central bank. Suffice to say, she has only been convicted in the hyper-partisan court of public opinion in which the mob is unlikely to be rational or fair. On what basis would anyone insist that she is unfit, because of her integrity, to hold any other public office? If the  makers of the #RedCard20 list succeed in their jihad, their is a grave risk that in the future, the same anti-democratic tactics will be used against even men and women of impeccable integrity; all one will need is to find a fragment of a bone from a skeletal scandal and we will be off to the races with accusation, making mountains out of molehills and ending the public service careers of innocent women and men regardless of the harm it does to the wider institution-building efforts of the nation.

I say to them, if you have proof that can sustain a successful prosecution, present it to the only institution that matters, the Judiciary, and live with the judgment of the court. Simply assuring us that you "know" is not enough. It never will be. And no, your good intentions are not enough. Not in the twenty-first century when we know what happens when we take things on faith alone.

Thursday, June 08, 2017

Treat him with contempt

Ever since that morning almost a decade ago when Maina and King'ang'i in the Morning decided to make light of the living conditions of Kenyans living in Muthurwa, I have always treated the pair, Maina and King'ang'i, with the contempt that they deserve. Their morning show is popular and no one should begrudge them their loyal following that has made them rich men. The content of their morning show is the price we pay for the freedom of expression protected in the Bill of Rights. However, even if their speech is protected, it still behooves us to call them out whenever they cross the line. Mr Kageni crossed the line with his skit about him looking forward to offering himself as a candidate for the office of woman representative on the 8th August.

It isn't that his joke turned on the fact that he had registered a "pink" party to advance his political ambition or that the symbol of his party was the kind of weave that women wear. No, the reason why his skit was offensive is that in order for its punchline to work, Mr Kageni adopted the offensive language that men have relied on since time immemorial to put down the advancement and achievements of women. His put-downs need not be repeated on this platform.

When the 1985 UN women's conference was held in Nairobi, women still could not obtain documents of identity without the permission of their fathers or husbands, women in the public service could not wear pant suits unless they wished to face disciplinary action nor were they paid a housing allowance if they were married, a situation corrected only in 1999! It wasn't until 1989 that they could be employed on permanent and pensionable terms by the public service.

Since 1985 women have advanced at a pace that, in hindsight, is astonishing. Their advancement, of course, has not been uniform or universal. In Kenya, women's contributions, to the economy for example, have been erased from the narrative of national development. Part of this erasure is because of the extremely low level of women's participation in national development decision-making, such as equitable representation in institutions of governance such as parliament, the Cabinet or the financial services sector in decision-making positions or other positions of political and economic power. Mr Kageni's skit refuses to acknowledge this undesirable dynamic and instead makes light of it by declaring that the present woman leadership class has failed in its responsibilities, especially [to the women of Kenya.

We made a conscious decision to give the women of Kenya a chance to take their rightful place in the national government by reserving elective positions exclusively for them. The Constitution reserves the forty-seven woman representative offices for women. These offices are constitutionally unavailable to men, even the men who purport to speak for the legions of women who call into their radio shows in the morning. It is not a joking matter. Any man who is unable to take history into account when he utters statements that are likely to receive varied and variegated interpretations is no better than the violent husband, the cheating boyfriend or the misogynist banker who will not advance a loan to a woman, married or not. Like I said, he should be treated with contempt.

Mr Michuki is no role-model

In listening to the Libertarians in my universe, I have come to the conclusion that the matatu sector is not made up only of criminal lowlifes. The investors in the sector are legitimate businessmen who do what all businessmen do: minimise costs, maximise profits. For this reason, their behaviour is entirely rational. By trying to transports as many people as they can, for the shortest distance possible at the highest fare they can charge, they are doing exactly what airline and train companies do. No one invests in a sector without wishing to maximise his or her return on investment and to imagine that investors in the matatu sector will not do the same is foolhardy at best, and incredibly naive.

What the sector lacks is not virtuous businessmen - no sector has those - but rules that are enforced fairly in a system designed to maximise benefits for, and minimise risks to, all stakeholders. The situation that obtained in Kenya when the Traffic Act was first enacted no longer exists. The relationships between road-users and the Government have undergone sea-changes over the past thirty years that to rely on a statutory architecture designed in the colonial era serves no purpose in the twenty-first century. It is time to re-think what we understand about traffic and traffic management and design a system that serves our interests as opposed to establishing a regime of minor and major traffic offences that serve as a license to steal from the forces of law and order to the insurers to the road user to the investors in public transport.

Kenya has tinkered with the peripheries of public transport for decades - look at the Road Levy, the Railway Development Levy, the insanely massive investments in railroads and superhighways, numerous amendments to the law and the establishment of more parastatals to manage the sector - without re-thinking some of our most deeply held assumptions about what we can and cannot do in order to make life for all stakeholders easier.

So long as people have jobs to do and places of work to do them in, there will always be a great need for facilities to transport people and goods from place to place safely, efficiently and affordably. For these facilities to be effectively managed, the rules of the game must be designed to encourage safety, efficiency and affordability. In Kenya, though, the motivation has always been to impose top-down solutions on entire swathes of the economy by fiat - backed up by laws, regulations, police, prosecutors and magistrates. The system we have is a test of wills between the Government and the other stakeholders. It is not safe, efficient or affordable. Calls to memorialise John Njoroge Michuki epitomise this State-led model and betray that few Kenyan political leaders appreciate the complexity of what they intend to manage for what they claim is the benefit of the public.

John Michuki was a holdover from colonial times with the paternalistic colonial attitude that insisted that "natives" were inherently malign in their intent and required a firm hand in dealing with them. His approach to public policy implementation was to impose a policy on stakeholders and then enforce it using draconian means. For him, it was irrelevant that policy failures were not just the the fault of non-state actors, but also because of systemic handicaps that had been revealed by decades of  the hollowing out of State institutions and the enervation of State agents. Mr Michuki presided over corrupt institutions but instead of reforming them, he focussed his attention on the low hanging fruit of the matatu sector who could be counted on ;always to perform some outrageous thing that would rile up the very people it served.

The lesson Mr Michuki should have drawn from two seminal events in 2003 - the Walking Nation period when matatus were on strike and the brief flowering of citizens' intervention against corrupt traffic-law enforcement - was not that the matatu sector  was the enemy, but that at that moment he had enough goodwill from stakeholders to reform the sector, rooting out entrenched bad habits and rethinking the public transport model that obtained at that time. He missed the opportunity and we are now saddled by white elephants like the a new railroad and an incompetent road-safety agency.

Mr Michuki should not have public monuments built to him or named after him. It isn't just because he also presided over the unlawful deaths of hundreds of Kenyans on no more than suspicion of violent crimes, but because he established a model that has been adopted by Fred Matiang'i and Cleopa Mailu in how major public policy questions are addressed - top-down and backed by armed police should "stakeholders" rebel.

Friday, June 02, 2017

I just want to be entertained.

I remember when The Core came out and how scientists went about laughing at the science in the movie. I say they missed the point. The movie had a first class cast, and if anybody says that Hilary Swank's acting was wasted on the movie, then they really do not understand entertainment. It had all the hallmarks of a good film-emotion, action, a story et al.
I wrote that in 2005. I can now feel the weight of the critics' ratings with Wonder Woman. To my mind there are only two important things related with the movie: the first is that it is the first superhero film whose principal stakeholders are women. The director is a women. The leading, above-the-fold eponymous superhero is a woman. (Believe me, if DC could have found a way to turn Wonder Woman into a man, it would have.) The other important thing is that it is entertaining. The end.

Of course no one is going to let it go that easily, especially of one has an internet connection, a strong opinion and a platform to air that opinion. When a movie theatre's proprietors in Texas, USA decided to offer a women-only screening of the movie, some men went ape-shit and a few of them took to the internet to express their feelings. Suffice to say, not one of them had a coherent opinion on what mattered most: was the movie any good. But they are not the worst people ever.

Those who simply can't let the few of us connoisseurs of entertaining movies left enjoy a good movie at all. The weight of "expectations" is going to weigh on the movie like a super-wet blanket, sucking the joy out of it like air out of a vacuum. They did it to Hidden Figures and they are doing it to Wonder Woman. No one watches a movie just to be entertained anymore. All this other commentary is part of the experience.

I just want to be entertained.

Is the SGR inter-generationally equitable?

When we speak of inter-generational equity, how do we measure where one generation begins and where another ends? I think I first heard of inter-generational equity in the context of the 1992 Rio Conference. The idea was that the current generation shouldn't endanger the next generation (or future generations) by exploiting the environment in such a way as it would endanger the lives of those that would come after the damage was done. The same moral principle applies in public finance: do not take on financial burdens today that will be borne with great difficulty by future generations [Article 201(c)].

Let us assume for argument's sake that a generation lasts twenty-five years, the loans taken by the Government of Kenya for the construction of a standard gauge railway shouldn't, ideally, burden those who will be paying taxes in twenty-five years, that is, beginning around the year 2040 (if we further assume that the loans were taken in or around 2015). Is it equitable that this generation should bear the costs of the loans even though, as is the case with most railroads, the benefits will be enjoyed by at least three generations?

I wish someone could explain it to me.

Tuesday, May 30, 2017

Kissing toads

Political parties make sense when they are established on clear principles, represent the interests of established constituencies, operate along clear rules, are supported by memberships that contribute money and other resources for the benefit of the members, operate transparently and are accountable to the members. 
 
If there's a Kenyan political party that makes sense, it hasn't presented itself to the people. Kenyan political parties, more often than not, represent the interests of "founder-members", have been captured by an elite few, don't espouse any clear principles other than the pablum rolled out for elections, are not supported by any known memberships and often operate along byzantine rules that are altered so often it is never clear any rules apply. But mostly, most operate in the shadows and their leaders are accountable to no one.

For these reasons, independent candidates were an inevitable consequence of the pre-election primaries conducted over the month of April 2017. Kenyan political parties ceased to have ideological characters some time after the Little General Election of 1969 when Kanuism enshrined its first principle: the president is the party; the party is the president. Little has changed in 48 years, never mind the doomed ideological renaissance of 1990/1991 when Kanuism was harried left and right by the Forum of the Restoration of Democracy, FORD, the last truly ideologically-driven mass movement in Kenya.

Many Kenyan politicians identify themselves with ideological markers: social-democrat, socialist, conservative, capitalist, and whatnot. But it in identity in name only. Almost all of them have succeeded in making politics almost exclusively about themselves, not their parties or their ideologies or their parties' ideologies. If you look at the Jubilation's hysteria over the broadsides against its economic policies by Dr David Ndii, it is marked by exhortations to ignore Dr Ndii because he is jealous of Uhuru Kenyatta, the incumbent president, and in thrall to the treasonous ideology of Raila Odinga, the doyen of the Opposition, without specifying what that treasonous ideology actually is. Suffice to say the Jubilation's propaganda is propagated by hatchet men with the subtlety of sledgehammers.

It is instructive, however, that both leading political alliances are composed of feckless and ideologically bereft politicians, two evils incapable of articulating in clear terms what they stand, each of which has engaged in chicanery that has pushed out otherwise "loyal" political aspirants into the cold of electoral independence. Neither alliance has a credible members' register, an accusation that has been levelled at the electoral commission, and this gaping hole was been filled, during the "primaries", with busloads of "outsiders" -- a situation likely to prevail in August if the electoral commission doesn't get its act together.

I will repeat what I said on Twitter: between good an evil, there is no moral choice to be made; one must always choose good over evil. A moral choice is between two evils -- one must choose the lesser evil of the two. None of our political parties and the politicians who use them are good. To one extent or another, they are all evil. Our choice as voters is to choose the least evil from among them. Among those are the victims of political party chicanery facing the bracingly cold winds of independent status at the hustings. Whatever happens, we must not deceive ourselves that there are ideologicaly-driven, mass-membership, rule-of-the-law politicians or political parties to choose from. We are fairy-tale princesses about to kiss a whole lot of toads. Pucker up!

My true fear

I didn't vote from Kilome constituency in the 2013 or 2007 general elections, nor in the 2010 and 2005 referenda even though that is where my heart will be interred some faraway day int he future. I voted in Harambee Ward, Makadara Constituency at the Bidii Primary School polling station after having cued, all four times, for at least five hours. Unless the register is "tampered with", I intend to cast my ballot in Harambee Ward, Makadara Constituency at the Bidii Primary School polling station on the 8th August. I hope this time round that the wait isn't five hours long.

What I remember of 2007 and its aftermath is now obscured by the passage of time and the fact that no matter how public the violence was, I was insulated from it all because Harambee Ward didn't experience marauding rioters with axes to grind. The height of our hardship was when households had to ration unga, veggies and meat because supplies were not making it to the dukas -- the Uchumi at Phase III had shut its doors immediately the first shot was fired. I was forced to ration my last half-pack of Dunhills. I probably should have given up smoking there and then.

Kenyans have a great capacity for political amnesia -- or so it seems. We invoked the spectre of 2007 to push through a constitutional referendum in 2010 and paper over the glaring and shocking shortcomings of the 2013 general election. We will keep invoking it for the foreseeable future -- so long as Raila Odinga is a presidential candidate in Kenya, 2007 will always serve as the boogeyman of Kenyan politics, summoned to chasten those who would challenge the narrative of the ruling non-Raila-Odinga-led alliance of Kanuists and Kanu's orphans.

The Kenyans likely to suffer every time the politics of Kenya turns to shit are unlikely to be Kenyans like me. Buru Buru may not glisten the way it did in the 1980s and 1990s, but its residents continue to be as politically disconnected as ever, leaving the stone-throwing, full-throated political hooliganism for other Kenyans without employment or full-time employment for that matter. You will very rarely find a resident of Buru Buru, Ngumo, Otiende, Komarocks or Kileleshwa -- or any of the facsimiles of upper working class suburbs -- engaging in running battles on the streets of the capital or the ridges and valleys of "upcountry" whenever the politics of Kenya turns to violence. You are more likely to find them incessantly wringing their hands and praying that they have jobs to return to when everything settles  down. That was my biggest fear in January 2008 -- whether my job wold still be waiting for me or whether my employer would accuse me of being a watermelon and can my ass.
 
Many are reading the political tea-leaves in 2017 and looking at what it all means -- for the politicians and their political allies. Few care to ask Kenyans like me what our true worries are. I have the same fears I had in 2007 and 2013 -- would I have a job when it all was over?