Friday, September 22, 2017

Bend it will

So the date of the fresh presidential election has been pushed back by nine days and the world of KCPE and KCSE candidates has not coming crashing down. That the national executive -- in the guise of the hard-charging education cabinet secretary -- believed that it would not bend to Mr Odinga's will shows foolhardiness taken to perversely extreme ends. It also demonstrates the folly of believing ones own press. The 17th October was too close to the date of the detailed ruling of the Supreme Court for the IEBC to make meaningful changes to how it would conduct the fresh presidential election without inviting another petition in the Supreme Court. The examination-timetable excuse was only persuasive if you didn't remember that national examinations have been rescheduled on previous occasions. Mr Matiang'i, to paraphrase the former police spokesman, intended to measure his strength against Mr Odinga's and has now had to bow down to the inevitability of Tinga's demand's. He should never have attempted it in the first place. Now we can focus our attention on the contest between Mr Odinga and the IEBC which still labours under the delusion that it is the maligned party in the fresh-elections saga. How soon it too bends is speculative at best, but bend it will.

Thursday, September 21, 2017

Long-winded and mean-spirited

Five judges of the Supreme Court sat from around 10:00 a.m. till 9:45 p.m. on the 20th September to deliver a Majority Judgment and two Minority Opinions on the petition to end all petitions of 2017. The Majority Judgment invalidated the election of Uhuru Kenyatta. The Minority Opinions disagreed in excruciating detail with the findings of the Majority. If there was any doubt as to why J.B. Ojwang' and Njoki Ndung'u were unsuited to be Chief Justice or Deputy Chief Justice, it was removed not by their temperamental rebuttal of every single point relied on by the Majority, but their mulish and stubborn insistence in reading every single word of their Minority Opinions, though they skipped some parts and skimmed through others. Especially for the Professor, he used his extensive scholarship to cudgel the Majority in some of the most incendiary terms, relentlessly reminding them -- and us -- that he is well-read, learned and wiser. Judge Ndung'u, on the other hand, in effect called her colleagues in the Majority lazy for not verifying -- in person -- the allegations made by the Petitioner. Their ill-will was palpable. I hope nobody is ever foolhardy enough to make them Chief Justice or Deputy Chief Justice.

Wednesday, September 20, 2017

Wishes don't make policy

Trams and underground rail may be no more than just pipe dreams for a cash strapped Nairobi City County, but a public bus system is not only within reach, it can be made possible even in a few short months. -- #Frontrow
There is a fundamental assumption made by all who claim that a state-funded, a state-owned or a state-managed public transport system is the answer to the traffic problems of Nairobi: that the genie of a liberalised public transport sector can be put back in the bottle of a nationalised public transport system. Evidently they have great faith in the powers of national and local governments to see through the nationalisation of public transport. They have not reckoned with the power of the liberalised sector not only to resist the gambit but also to revise it extensively or, more likely, to defeat it decisively.

For a brief period, before the City Council of Nairobi lost its mind, municipal services were the envy of many. Streets were swept, rubbish was regularly collected, drains were unblocked and public transport was efficient, affordable and reliable. But between the appointment of a series of commission to run the City and the liberalisation of the public transport sector, city fathers lost their minds, corruption became a defining feature of municipal administration and the national government engaged in active sabotage of its own programmes, such as the establishment of the Nyayo Bus Corporation to compete against the Kenya Bus Service, the company that offered bus services in the City of Nairobi with the blessings and support of the City Council with the approval of the Ministry of Local Government.

The aftermath of liberalisation policies saw the introduction of thousands of buses, minibuses and vans offering public transport services in cut-throat competitive conditions. Both the Nyayo Bus Corporation and the Kenya Bus Service went out of business, the former being looted for all it was worth and the latter unable to offer cut-rate fares in competition with the surging matatu sector. An entire economic ecosystem is built around matatus and the blithe assumption that "a few short months" are all that are needed to re-nationalise public transport simply ignores the facts on the ground.

First, no matter what we think of matatu crews, they are in employment in one form or the other. Drivers, conductors and touts form the bulk of the employees of the matatu sector. Re-nationalisation of the sector almost certainly means that the vast majority must find alternative employment. Second, some form of compensation must be paid to all those whose buses, minibuses or vans will be pulled off the road on one pretext or another. If not, many individuals will face bankruptcy or insolvency and many financial institutions will have to manage bad debts for years on end. Third, the ecosystem supported by and reliant on the matatu system will have to reorganise. Importers of both chassis and used or second-hand vehicles, importers of new and used spare parts, mechanics, car-park yards, body fabricators, vehicle interior designers, insurance agents and brokers and finance institutions will have to find other recipients of their services. These "stakeholders" are important components of the economy and their needs must be addressed in any campaign to re-nationalise the public transport sector.

We already have a public transport system. What we don't have is a state-funded or state-managed one. We should keep it that way. What we need is a well-managed system. If there are standards, they must be applied, implemented and enforced fairly and firmly. If there are laws, they must be enforced without fer or favour. If there are offenders operating in the system, they must be prosecuted to the fullest extent of the law. We already have the experience of what happens when a corrupt government runs a bus company. There is no guarantee that the county government of Nairobi City is corrupt-free enough to be trusted with a monopoly in the public transport sector in Nairobi. Its recent pronouncements and clarifications don't imbue one with confidence either. Until someone puyblishes a comprehensive paper on what it means to have "a public bus system", let us treat #Frontrow's proposals like the wishes children make while blowing out candles on cakes.

Tuesday, September 19, 2017

What ails the Jubilation?

The Chief Justice has been accused of treason by a consultant who is closely connected with an online college that recalls a more colonial era in its name. The reason is simple enough to detect: in the wake of the truly earth-shattering ruling issued by the Supreme Court -- by majority decision -- the Chief Justice, as the President of the Supreme Court and head of the Judiciary, has become the target of the misguided ire of the members of the Jubilation who were caught flat-footed on the 1st September. In invalidating the election of Uhuru Kenyatta, announced by the Chairman of the IEBC in the dead of night on the 11th August, the Supreme Court's judges attracted a level of political scrutiny that not even the much-reviled 2013 ruling could have elicited and none more than the Chief Justice has become the target of the Jubilation's intensely baleful focus.

The President and the Deputy President have not been shy of bandying words about regarding the invalidation of their election. "Civilian coup" and 'judicial coup", uttered with vehemence at many public events, set the stage for ne'er-do-wells to loudly question the "loyalties" of the Chief Justice and his colleagues and to insinuate that there was something un-Kenyan, underhanded and malign in the manner that the Supreme Court "refused to give reasons" for the invalidation of the election of the president and his running mate.

The "we respect the judgment of the supreme court but disagree with it" facade was jettisoned when the member for Nyeri Town in the National Assembly, a freshman elected representative, availed himself of the rights contained in Article 168 and filed a petitioned the Judicial Service Commission for the removal of the Chief Justice on the grounds of gross misconduct. It isn't that the Jubilation hadn't intended to do so but that it had intended to so as soon as the detailed judgment of the Supreme Court was read out, on or before the 21st September. With the cat out of the bag, all pretense was set aside: unfavourable and inflammatory stories about the Chief Justice and some of his colleagues have been planted in the press and more petitions are being filed for the removal of judges of the Supreme Court on grounds of, you guessed it, gross misconduct. These are now being buttressed by picketting crowds outside courts, including outside the Supreme Court building, over the past two days.

Distractions like the aforementioned consultant and his online screeds passing off as reasoned political commentary will continue to build the case that the 1st September ruling amounted to treason, the unlawful removal from power of the president -- though, of course, the president is still in power. Allegations of gross incompetence will continue to be made by malcontents unhappy with the manner in which the Supreme Court interpreted the laws passed by the bullies of "Tyranny of Numbers" fame. The people -- you and I -- are being primed for the removal of the Chief Justice and some of his colleagues. This unsubtle campaign of intimidation is well-choreographed but it is not so difficult to discern the outlines of the marionetteers in the background.

The Supreme Court, the moment it was given original jurisdiction in presidential petitions, became a political institution no matter how reasoned, reasonable and detailed its rulings would be. This may be one of the more asinine decisions of the Committee of Experts and we have little choice but to live with it. But we must acknowledge that the neutrality of the Supreme Court, after the events of the past three weeks, is shot to hell and we can thank the Jubilation and their jackbooted red-shirts for this. All the Jubilation had to do was let the IEBC cock it up again in October so that it could join NaSA in finding friendlier election officials for the third presidential election of the year. Instead, it is increasingly resembling the more unhinged parts of the former Soviet Bloc.

Monday, September 18, 2017

A disappointment

I am listening to Senator Susan Kihika (Jubilee, Nakuru) as she appeared on Check Point with Yvonne Okwara and contrasting her reasoning against that of Hon Otiende Amollo, MP. I fear that if she is among the bright sparks in the Jubilation, then the Jubilation has much to worry about. I take into account that logical fallacies are not things that the hoi polloi, in the height of political activity, will take into account when weighing whether or not to vote for this candidate or the other. Nevertheless, it is vital that those purported to be the leaders of the people to be able to engage in argumentation informed by logic, linking the proper causes to the known outcomes. Ms Kihika has demonstrated that she has a deft political touch. If she wants to be of immeasurable use to the Jubilation, she must arm herself with greater reasoning power if she is to go out before the masses to refute well-crafted arguments.

They came for the matatu and I did nothing...

The national values and principles of governance include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and the participation of the people. -- Article 10 (2) (a)
This is quite easily one of the constitutional principles or values that the executive, both at national and county levels, has found very difficult to apply. The more uncharitable among us would allege that the executive has actively resisted applying this principle, especially when it comes to the making or implementation of public policy as required in Article 232 (1) (d). 

This difficulty or resistance was plain to see in two events with profound impacts on Kenyans: the "ban" imposed by the Cabinet Secretary for Environment and Natural Resources on the use of plastic bags and the proposed "ban" by the Governor of Nairobi City County on the entry of PSVs into the Nairobi Central Business District from the 20th September. Neither "ban" was democratic or involved the participation of the people before they were imposed but they have received the buy-in of many Kenyans because of the projected perceived benefits of the "bans".

The plastic bags "ban" is covered extensively in other posts on this blog but only tangentially has the proposed "ban" by the Governor. No one has accused Mike Sonko or his deputy of experience in running a complex institution such as a county government. Mr Igathe, the Governor's deputy, has run big companies and understands, to some extent, how complex systems operate. It is yet to be seen whether his acclaimed corporate credentials will translate into success in a political institution as the county government. Mr Sonko's credentials do not bear repeating -- mostly because, despite his political intelligence, they are non-existent, never mind his recent graduation from university.

Mr Sonko proposes to "solve" Nairobi City's traffic problems by "banning" the entry of PSVs into the CBD. He does so without having consulted the people the "ban" will affect most: those who have to walk longer distances to get to their places of work. Just like the plastic "ban", a group of men who have not used public transport for a decade are purporting to make policy decisions that affect more than three-quarters of the residents of a city they administer without having spoken to the commuters who would be affected. Worse, they have not published their plans for how the "ban" will be effected, whether or not new classes of offences are created by their "ban", what the penalties for contravening the "ban" are, what forms of PSV are exempted from the "ban", what happens to what were once PSV termini, or what steps the county government is taking to ensure that facilities are provided for those who choose to walk or cycle into the CBD.
Mr Sonko must have heard the cries of the oppressed private motorist and shop-owner, mercilessly abused by the PSV driver and his crew. He heard their cries and, unlike Pharaoh who hardened his heart, he has bowed to their wishes and banished the hateful matatu out of the CBD for the sake of the peace, safety and sanity of the private motorist and his boon friend, the shop-owner. The fate of the commuter is none of his problem. The fate of the pedestrian and cyclist is none of his problem. A city that has done so much for the private motorist is prepared to bend over backwards for him just one more time.

There is something to be said for "public participation", the nomenclature of "participation of the people". It will not solve all policy challenges but it will offer more options than the pet projects of the Governor or his cronies. It will highlight the difficulties a particular policy s likely to encounter. It will put a face to the humans likely to suffer if their needs are given short shrift. Few of us have any love lost for the Matatu Owners' or Matatu Welfare associations -- Messrs. Kimutai and Mbugua are spectacularly unpleasant men -- but both are legitimate stakeholders in the public transport sector and their decisions affect millions of Nairobians, for good and for ill. Ignoring their input is foolish and refusing to talk to them is asinine. The only people who will suffer will be commuters -- and quips about "keeping fit" are not funny at all.

Kenya's constitution faces probing attacks all the times with many malign actors attempting to weaken or subvert its provisions, especially the Bill of Rights. The film censorship board's chief executive was a particularly egregious actor. His unsophisticated overreaches were refined by the environment minister. The Nairobi governor is just the latest member of the executive to probe how far he an violate the principles of the constitution before he is stopped. Sooner or later, someone serious will go after something more dangerous. If we let Mr Sonko get away with it, we only pave the way for the day the Bill of Rights, nay the Constitution, shall not be worth the paper it is printed on.

How politically powerful is the Chief Justice?

The grounds on which the Chief Justice may be removed from office are: the inability to perform the functions of office arising from mental or physical incapacity; a breach of a code of conduct prescribed for judges of the superior courts by an Act of Parliament; bankruptcy; incompetence; or gross misconduct or behaviour. 

The Chief Justice's removal my be initiated by the Judicial Service Commission (acting on its own motion) or by a petition by any person to the JSC. A petition shall be in writing. If the JSC is satisfied that there are sufficient grounds for the removal of the Chief Justice, it shall recommend to the President the appointment of a tribunal to investigate the conduct of the Chief Justice. (Article 168). The procedure by which the Chief Justice may be removed from office is set out in the Second Schedule to the Judicial Service Act, 2011.

It is curious, though, that the provisions of Article 168 and the Judicial Service Act are silent about what happens to a petition if the the petitioner wishes to withdraw the petition. It is presumed that he who alleges is also free to retract his allegations. But what if the allegations are true and the retraction is because of undue influence or pressure from third parties? 

For instance, what we have seen of Ngunjiri Wambugu's petition for the removal of the Chief Justice, which he has since "withdrawn", made many incredible-sounding allegations such as the manner in which the Chief Justice has allowed and facilitated the infiltration of the Judiciary my members of civil society organisations who may or may not be acting at the behest of hostile powers. Just because Mr Wambugu's allegations fit in with the heightened hyperbole of the Jubilation doesn't necessarily make them untrue. What happens to the allegations? Does the JSC ignore the allegations simply because Mr Wambugu has "withdrawn" them? Given the very public pressure Mr Wambugu has faced to withdraw -- no less than from the President and the majority Leader of Mr Wambugu's parliamentary party group -- shouldn't the JSC take into account that Mr Wambugu has been forced to withdraw his petition?

We don't pay much attention to the things we do for political mileage. Mr Wambugu is no different from us; looking at the content of his political ruminations between 2012/2013 and 2017, there are glaring differences in the personas he has adopted. These personas, though, share something in common: he has never had to consider that there are legal and constitutional implications of his many utterances and simply because he has never been challenged about them doesn't minimise the legal risks he has taken on in the past. 

Now that he is an elected representative, Mr Wambugu also takes on unknown and unquantifiable political risks. His petition, whether the JSC considers it or not, is now part of the public record and it must be put to rest regardless of Mr Wambugu's withdrawal, if only to settle once and for all the health of the Judiciary and its place and status in Government as well as its place in the political firmament. Between the decisions of the Supreme Court in presidential petitions in 2013 and 2017, a lot has been alleged about the Court and its members, especially both the Chief Justice and his predecessor. Much of what is claimed about the men is political. Mr Wambugu reminded us that the Supreme Court and its Judges are also political actors. It is time we settled the extent of their political power.

Thursday, September 14, 2017

Look beyond the petition

If it is true that the member for Nyeri Town intends to petition the Judicial Service Commission to remove the Chief Justice and President of the Supreme Court from office, this will be the culmination of a campaign against the Chief Justice and the Supreme Court since it nullified the results of the presidential election on the 1st September. It is also a reminder that in Kenya retrogressive forces have always relied on institutions of Government, including laws made by Parliament, to achieve malign ends.

The Committee of Experts and before it, the Ghai Commission, reviewed the constitutional amendments that led to the establishment of an "imperial presidency" and wrote elaborate provisions to corral and control the presidency. "Independent" institutions established under the Constitution such as the Judiciary and the Judicial Service Commission were designed by constitutional provisions to be independent from the national Executive, especially the president. Kenya's constitutional reformers missed a glaring point: institutional independence was never Kenya's greatest weakness but the law-making powers of Government. The manner in which the presidency had become imperial -- from the constitutional amendment that allowed the president to pardon election offenders to the one that stripped the Attorney-General of security of tenure -- were laws passed by parliaments that the president controlled, either as the leader of the largest number of MPs or as the benefactor of many MPs in parliament.

In the aftermath of the 2017 general election, the president's party enjoys a considerable majority in both chambers as well as control of most county governments. This majority is useful when it comes to law-making, including constitutional amendments even to the Bill of Rights, provisions on commissions and independent offices and the powers of constitutional institutions such as the judiciary or the office of the Chief Justice.

It is the exercise of this power by a parliamentary majority that should worry us all. Harry Houdini was famous for getting out of straitjackets and other forms of confinement. He was also famous for elaborate illusions. While the audience was mesmerised with events taking place in one part of the arena, he was engaging in acts that allowed him to, for example, disappear an elephant in a room full of people. The petition that has been filed with the Judicial Service Commission may or may not amount to much; if the press conference given by the petitioner after his filing was done is anything to go by, it is founded on the semi-coherent ramblings of a novice law student relying on hearsay, innuendo and a shocking misinterpretation of the phrase "rule of law".

It is an illusion that is meant to distract us from parliamentary business which commenced immediately after the president's address on the opening of this parliamentary session. In the debate that followed -- a debate that was supposed to be on the president's address -- the majority party focussed their parliamentary wrath on the Chief Justice and the Supreme Court decision to nullify the results of the presidential election. The majority leader in the Senate is absolutely sure that parliament will be amending laws to protect the "will of the people" in presidential elections. This will be in keeping with the president's promise to "fix" the Judiciary after the fresh election ordered by the Supreme Court has been held.

On any question relating to the interpretation and application of the Constitution, the loudest and most gung-ho politician is almost always a distraction. The petitioner against the Chief Justice is now the loudest and most gung-ho voice in the anti-Chief-Justice campaign by the majority party. You must ask yourself, "From what is he distracting us?"

Wednesday, September 13, 2017

The hagiography of the "ban"

Plastic bags used for primary industrial packaging are, however, exempted so long as they are used for industrial primary packaging at the source of the product and are not available for sale at the counter or given freely outside the industrial setting. The exemption also includes disposal bags for biomedical and hazardous waste and garbage bin liners. Furthermore, these bags must be labeled with the name of the industry manufacturing the product and the end-user. Plastic sheets used for construction, greenhouses, covering as well as cling films/stretch films used for wrappings and bopp self-adhesive tapes are also excluded from the ban. Bags issued at duty free shops are also exempted due to ICAO and IATA rules. (Gathara and Cherono, Business Daily)
Gazette Notice No. 2356 of 2017 does not say anything of the sort. It makes no exemptions for "primary industrial packaging", "disposal bags for biomedical and hazardous waste and garbage bin liners", "plastic sheets" or "bags issued at duty free shops". It does not require that "disposal bags for biomedical and hazardous waste and garbage bin liners" be "labelled with the industry manufacturing the product and the end-user".

Gazette Notice No. 2356 of 2017 merely and explicitly bans all "all plastic bags used for commercial and household packaging defined as follows: (a) Carrier bag—bag constructed with handles, and with or without gussets; (b) Flat bag—bag constructed without handles, and with or without gussets." That's it. Save for the business of the Notice taking effect after six months from the date of its publication, there are no exemptions granted by or under the Notice and no indication that they will be granted by or under the Notice or who will grant those exemptions, under what circumstances or for what duration.

Gathara and Cherono, if they read the plain text of the Notice, will most certainly have seen this. This begs the question: where did they find the provisions on the exemptions to the application of the provisions of the Notice? Lawyers are advised against speculating as to the kinds of proofs that prove or disprove a proposition but having visited the National Environment Management Authority, we know where Gathara and Cherono have discovered the "exemptions" to the application of Gazette Notice 2356 of 2017. As professionals they must know that the NEMA website is not the Kenya Gazette and that the documents published by NEMA purporting to grant exemptions to the application of the provisions of the Gazette Notice are about as robust as puffs of smoke.

The constitutional and statutory infirmities of Gazette Notice No. 2356 of 2017will not dissipate with the hagiography perpetrated in favour of the "ban". The Cabinet Secretary continues to lack the mandate to ban plastic bags; sections 3 and 86 of the Environmental Management and Conservation Act, 1999 continues not to grant the powers that the Cabinet Secretary purports to exercise. We are now in the coverup stage of the "means-justifies-the-end" gambit. A patently unconstitutional act has been committed. Interested parties are now rallying to obfuscate the constitutional, statutory and regulatory environment to provide cover for the unconstitutional act.

We all want the benefits of a clean and healthy environment but if it takes statutory power-grabs to achieve these ends, sooner or later, the clean and healthy environment may not be ours to enjoy after our rights and fundamental freedoms are given equally short administrative shrift by similarly iron-fisted Cabinet Secretaries in the future.

Caring is the only way to rescue our children

My parents are doctors of philosophy. I am not and, bar some quick-minded academic nimbleness, I am unlikely to ever be. My brother, G, is an engineering genius with a Masters to prove his chops. My brother, R, can speak Russian, Spanish and French, in addition to the English/Swahili/Sheng combo we are all fluent in. I mention all this to illustrate a point. Those of us who grew up in the 1980s in stable and happy homes, and attended nurturing state-funded schools (yes, they existed), were expected to pass our exams with one crucial difference: the pressure we faced was not informed by the chronic joblessness and high cost of living we have experienced over the past fifteen years of post-KANU "economic growth".

My parents were the among the first generation of post-Independent couples who both held down professional careers while raising families of their own. My brothers and I were lucky enough that we saw both of them before we left for school (at 7:15am) and before we went to bed (at 9:00pm), having come home from school at 3:45pm, played, had evening "tea" and had our supper. Even when my younger brother was sitting for his KCPE, children were not carrying ten kilograms of books to school; at most, it was about a kilo. I don't remember any of us being saddled by holiday-buzz-killing "homework" when we in secondary school or suffering through sweltering holiday "coaching" sessions. Holidays were sacred, intended to decompress -- and empty the fridge with frightening (for our parents) efficiency.

My brothers and I were the first generation to successfully complete the 8-4-4 but as we were exiting the system, things had already gone terribly wrong for the generations of pupils and students that came after us. While school fees had progressively gone up during our tenures, they rose sharply after 1997 in keeping with the precipitously ruinous rise in the cost of living. This had two consequences whose reverberations are being felt today: the expansion and improvement of educational facilities suffered deep cuts, and parents spent more and more time away from their children in order to earn more to send them to the reducing number of "good" schools for which competition was sharp. Many of these parents were beneficiaries of a combination of their hard work and the relatively wide availability of good education facilities and the prevalence of relatively well-paying clerical and middle-management jobs for even those with modest basic academic credentials such as the KCSE certificate. The mantra of "hard work = a good life" took root but it applies only in a very limited way today.

With the massive cuts in the wide provision of acceptable and adequate education facilities, fewer and fewer children have access to good education facilities, with access being determined by how well they do in examinations, such as the KCPE or KCSE. Parents, who are spending longer and longer hours away from their children in order to provide for their every need, insist that the children must show their determination by scoring the highest marks in their exams. This insistence is not of the benignly autocratic style but one that is relentless and almost sadistic. In many parents' minds, an "A" is the only ticket to a better life. Children are being forged into adults in furnaces devoid of joy, care, peace of mind, love or honour.

In this environment, eleven-years-old children are becoming suicides because of slight falls in their academic results, even where they are in the top quartile. Still others, in fear of testing their academic mettle in end-of-year examinations, are setting school properties on fire, sometimes with tragic outcomes. Others engage in dangerous activities such bingeing on narcotic drugs or alcohol or sexual relations with strangers. Many parents and school authorities, caught up in their vicarious pursuit of "A" grades, learn about these children's crises only after it is too late, often after tragic events. We have been unable to see the signs of the risks engendered by the current system because we are all complicit in its creation and perpetuation. Our children are paying the price in mental health problems, gross acts of indiscipline, the destruction of public property and the deaths of our children.

If we wish to rescue our children from these tragic fates, we must make changes in how we raise and educate them, foremost being committing more public resources to state-funded schools to ensure that our children receive the care and attention they need in order to thrive, both as children and as students. If we are unable to improve the economic conditions sufficiently to improve how parents raise their children, then we must ensure that the surrogate homes these children enter -- schools -- are safe, secure, humane, caring, nurturing and educational. We cannot treat our children as if they have deliberately decided to "act out" or commit unspeakable acts of destruction; we must treat them as suffering from a combination of neglect and pressure at ages when they can handle neither. In other words, regardless of what the Penal Code says, we must treat them as children in need of care first. If we don't, no matter how many disciplinary codes of conduct Mr Matiang'i and his ministry's sadists draw up, our children will continue to suffer and their suffering will continue to have tragic outcomes.

Political naivete and stupidity

Are you naive or stupid? In some quarters, if you didn't vote for a candidate such as Boniface Mwangi who stood in Starehe, or Martha Karua who stood in Kirinyaga, you will be thought of as naive and stupid. If you rejected Miguna Miguna and Peter Kenneth for Mike Sonko in Nairobi, you will be called naive and stupid. If you stayed with Ali Hassan Joho in Mombasa? Yes, you are naive and stupid. That is the elitist short hand for those who have all the answers abut the political leaders we need in order to change Kenya for the better.

Each Kenyan voter is responsible for the political leaders he or she voted for. No voter can recant their decision once the elected representatives or leaders pursue goals and objectives that are inconsistent with the promises they made during the election campaigns. Each voter made a conscious decision to vote for one candidate over another; they were not deceived or tricked. Each voter -- an adult, as required under law -- knew whom they were voting for, what they stood for, what they have done in the past and what they have promised to do once in office. No one cast ballots on their behalf. Each voter went into the polling booth as an individual and cast their ballot for their candidate. In short, each voter had agency and exercised his of her decision to vote for their preferred candidate alone.

Take the example of Miguna Miguna and Mike Sonko in Nairobi. On the surface, Mr Miguna is the better educated of the two, the more sophisticated thinker, the more articulate orator. On paper, Mr Miguna -- and not Mr Sonko -- should be the governor of Nairobi City. The majority of the voters of Nairobi City overwhelmingly chose Mr Sonko over Mr Miguna. By some standards, these voters will be called both naive and stupid because of their choice of Mr Sonko who was once jailed, escaped from prison, and fingered by the United States government as a drug kingpin, and who has elevated political antics to never-seen heights such as punching walls, "leaking" salacious photos of him with other elected representatives, taking sartorial liberties that have had him named in the Senate, and engaged in physical altercations with other elected representatives.

If you consider the voters who elected Mike Sonko as naive and stupid, you will have missed a important thing about their choice. Despite Mr Sonko's colourful, shall we say, personality and the troubling questions raised about his business affairs, he has always had a direct connection with the voters who elected him and their families. It is called "tokenism" in certain political platforms, but Mr Sonko's provision out of his pocket -- as he claimed -- of funeral, breakdown, limousine and public sanitation services for the City's lower classes was welcomed even by those who call his voters naive and stupid. 

Of course we should ask where he raises the funds for the "Sonko Rescue Team" and whether or not his various businesses contribute to the destruction of the lives of our young. If we must do that then we must do so for every one of those who asked for our vote. On the other hand, given that we did not seriously demand an accounting of the wealth of Mr Sonko' rivals in the general election, bar the innuendo and insinuations that accompany our elections, we must also ask what his rivals have done for the residents of Nairobi City. How many of them have established grassroots networks to provide the social services denied by their own government? How many have made multiple donations and contributions to families facing hunger and homelessness after fires have gutted their "informal settlements"? How many have publicly pledged to adopt a family beset by tragedy or done it at all? 

Tokenism it may very well be but politics is not the arena of the purist wishing for a political utopia. Mr Sonko knows this. His rivals have forgotten the lesson. His voters know this too. It is why they preferred him to his rivals. It is neither naive nor foolish to elect a man who has committed himself to solving some of your problems the best way that he knows. It would be, in my estimation, madness to vote for the man whose connection with you is limited to diatribes and harangues about the perfidy, stupidity and insincerity of his rivals. It is madness to vote for the incumbent whose tenure has been marked by higher City charges and fees, greater mounds of garbage, longer hours spent in traffic jams and the persistent stench of graft. It is foolhardy to cast your ballot for a carpetbagger who has been rejected in his own constituency and whose ego will not countenance a defeat at the nominations stage by the clown of Nairobi politics. For those who successfully elected Mike Sonko, their naivete and stupidity have resulted in a better outcome than could have been imagined by "smart" and "informed" choices.

It is an arrogance bordering on the insulting to presume that political leadership should be reserved only for "deserving" candidates with the right academic and business pedigree. The people have a funny way of disregarding the elites' received wisdom. They will make choices on what candidates do for them. Mr Sonko may not be Nairobi City's dream governor but, in his own inimitable way, he has done more for them than all the other candidates put together. There is nothing naive or stupid about that.

Saturday, September 09, 2017

It is a sick system

The Penal Code permits the prosecution of children older than twelve years for criminal offences, including capital offences (though children younger than eighteen yeas may not be executed if convicted or capital offences). Therefore, there is a good statutory foundation (even taking the protective provisions of the Children Act, 2001) to arrest, detain, prosecute and punish child offenders in Kenya. However, even with the proliferation of cases where child offenders are prosecuted for causing deaths in schools by setting school properties on fire, it is time to properly investigate the system that leads to the commission of these heinous offences by children as young as thirteen years old.

In official Kenya, public officials enjoy greater confidence of policy-makers than those who seek or use public services. Especially when it comes to the management of the vast network of state-funded primary and secondary schools, headmasters, headmistresses and principals (and the parents-teachers associations that ostensibly oversee these school-heads) are trusted more than the children who attend these schools or their parents. Unless they happen to be irredeemable monsters, their acts of omission or commission that lead to the deaths or injuries of children in their charge are unlikely to lead to criminal prosecutions or dismissals from service. It is almost certain that policy-makers and education-sector administrators will treat these events as anomalies, one-off accidents beyond the control of schools' administrators or PTAs. An examination of the regulatory and administrative system that led to the deaths or injuries will not be undertaken. The time is now to grapple with this problem.

Especially after the 1992 general election, long after Structural Adjustment Programmes had ushered in the era of cost-sharing and decimated public sector spending on public education and public health, the management an administration of state-funded schools became chaotic and those who can will remember the period between 1993 and 1997 as one filled with some of the worst student-discipline cases in history. Then came the disasters at Bombolulu in 1998 and Kyanguli in 2001 that have never been properly investigated with only the children accused of initiating the chains of events that led to mass deaths facing the public prosecutor. School-heads have gotten away with murder for decades.

Looking at the Moi Girls School Nairobi fire, it is almost certain that while the fire may have been started by a student (and the public prosecutor, the police service, the cabinet secretary, the school administrators, the PTA and her fellow-students all say that she is responsible), the true offenders are the Ministry's quality assurance inspectors, the school's principal and PTA, the county's emergency services and the system we have refused to reform for thirty years. There is no way that the Ministry's inspectors could have though that the manner in which the students were accommodated was safe. There is no way they could have approved the academic calendar that emphasised nerve-wracking CATs without the necessary psycho-social support for these teenage girls living in such a complex world. I doubt very much the county directors for emergency preparedness ever visited the school to certify whether it had adequate facilities for the preservation of life if an emergency occurred. They all contributed to the system that resulted in the deaths of students.

But the ones who should shoulder the blame in full are the principal and the PTA that prioritised the construction of a chapel over the safe accommodation of these young girls. If it is true that the chapel has been under construction since 2011, consuming hundreds of millions of shillings, while at the same time the principal and the PTA have ignored or neglected the plight of the girls, contemplated raising school fees to cover the construction of the chapel and not dormitories, de-emphasised psycho-social services for the girls while prioritising stress-inducing back-to-school CATs and insane reading workloads over the holidays, they must be held to account. This sick system must be reformed. If we go by what we have done since 1992, no changes will be made. A girl will have her life ruined by prosecutors and magistrates. An incompetent principal will build a church on the ashes of the dead. And a cabinet secretary and his ministry will enjoy fame for "rooting out cheating in national exams".

Friday, September 08, 2017

Is all life sacred?

Which one sounds right: the "right to choose"; "reproductive rights"; "pro-life"; "anti-abortion"? One of the biggest pre-referendum fights in 2010 was over the right to life (that was eventually enshrined in Article 27). I won't go into the arguments for or against the "abortion clause" because it will simply invite the unhinged onto this placid place. Instead, please consider the irony of those who are adamantly opposed to the termination o pregnancies in all circumstances because, they argue, all life is sacred are the same ones who champion an-eye-for-an-eye punishments, including the imposition and execution of the death penalty for any person that terminates a pregnancy, including the woman whose pregnancy has been terminated. Clearly, to them, not all life is sacred.

Six minutes to say "No"

Thank you, Mr President.

This is an application by counsel Charles Kanjama who is applying to be admitted as an amicus curiae and in the Notice of Motion dated 25th August 2017 seeks Joinder to the Petition as an amicus. There are various prayers but the thrust of the application is to be joined as amicus of the Presidential Petition hearing and to be represented by the firm of Mumma and Kanjama Advocates.

He sets out the matters that he can bring forth for the assistance of this Court including burden and standard of proof, electoral irregularities, managing electoral timelines, context and application of information and communications technology, verification of tallying and transmission of results, interlocutory applications, scrutiny and recount in a limited frame, developing role of amicus curiae, public interest.

In the alternative, he seeks to be admitted as an Interested Party and Intervenor and allowed to participate in the proceedings.

He has filed an affidavit in support of this application. He has set out the grounds on which the application is grounded and they are all set out in the application and which we will give you to read once we supply you with copies.

Now, after setting out the basis and the particulars, the First and Second Respondents oppose the application. And among other things, the First and Second --

Sorry. First of all, the Petitioner opposes the application by way of a replying affidavit by the Honorable Raila Odinga dated 26th August and it disabuses the applicant's alleged expertise in the electoral process and avers that general practice in law does not suffice for admission of one as amicus. Other reasons are also given. On their part, the First and Second Respondents also oppose the application and they have deponed that the applicant has not demonstrated or established any field of expertise or knowledge that he will be submitting on to aid this Court in determining the Petition before the Court in this particular petition. The Third Respondent in a replying affidavit deponed by Davis Kimutai Chirchir and written submissions, also opposes the application for joinder and the reasons are set out at length.

The determination of this Court is that the jurisprudence as regards admission of amicus is settled and has been referred to in similar applications before this Court. [While, in this particular Court, the Law Society has also sought to be admitted, as the record will show]. 

While the admission of an amicus is at the discretion of the Court, we note that all the parties to the Petition have opposed the admission of Mr Kanjama as an amicus, particularly that he does not possess the expertise he alleges to have; that he's is of a general nature; and further, and in particular reference to the petitioner's, that he seeks to introduce new issues not advanced by the parties herein.

We have referred to the case of Supreme Court Advisory Opinion on the Principle of Gender where Mr Kanjama had been admitted as an amicus. But as we have said in this case, every case will be decided on its own facts and merits. On the contrary, the Petition before us, we are unconvinced that the applicant posses sufficient expertise to advise the Court on the technological issues. The Court holds that it does not require a person with a legal background as his primary professional discipline, which the applicant is, but a technocrat in information technology and systems, which is a secondary discipline possessed by the applicant. We reiterate that the fact that one was previously admitted as amicus in a matter before the Court is not sufficient ground for admission in a subsequent suit as each case is determined on its own merits and unique issues and circumstances. The upshot is that the application for admission as amicus is hereby dismissed and this is the ruling of the Court.

Thursday, September 07, 2017

Moses Kuria, political Houdini

Section 13 of the National Cohesion and Integration Act, 2008, states,
(1) A person who—
(a) uses threatening, abusive or insulting words or behaviour, or displays any written material;
(b) publishes or distributes written material;
(c) presents or directs the performance the public performance of a play;
(d) distributes, shows or plays, a recording of visual images; or
(e) provides, produces or directs a programme,
which is or behavior commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.
(2) Any person who commits an offence under this section shall be liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding three years or to both.
(3) In this section, “ethnic hatred” means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins.
The fallout from the 2017 presidential election petition is spreading and, not to be outdone in the incendiary speech department, it is reported in certain quarters that the indefatigable Moses Kuria has come out with his guns blazing. In an eighteen-minute diatribe, it is alleged that he has threatened not just Raila Odinga, Chief Justice Maraga or the three Judges of the Supreme Court who joined the Chief Justice in invalidating the election of Uhuru Kenyatta but that, in his arithmetic estimation, there are about two hundred thousand thousand voters in Kiambu who did not vote for Mr Kenyatta that he will lead a "manhunt" to uncover. If true, Mr Kuria may satisfy the provisions of the first half of subsection (1) (a), "A person who  (a) uses threatening, abusive or insulting words or behaviour, or displays any written material...".

We can debate about coded language until the cows come home, regardless of whether or not Mr Kuria designated Uhuru Kenyatta the "king" of the Kikuyu, Mr Kenyatta is not a king. And while Mr Odinga is a Luo, he is not the Luo. In no way can insults and abusive language directed at Mr Odinga be considered to be language that is intended to "stir up ethnic hatred" where " ethnic hatred” means hatred against a group of persons defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins". Mr Odinga is not "a group of persons" and neither is Mr Kenyatta.

Mr Kuria has a beautiful relationship with the National Cohesion and Integration Commission, NCIC: he makes incendiary speeches that are usually condemned as targetting, primarily, the Luo. The NCIC "investigates" and asks the Director of Public Prosecutions to charge Mr Kuria in court under the National Cohesion and Integration Act. In the four years Mr Kuria has been winding up Luos, he has never been successfully prosecuted by the NCIC/DPP; instead, he has raised his profile among his ardent constituents as the president's pit bull, unafraid of any member of the Opposition and willing to say anything in defence of the president. Without the NCIC, Mr Kuria would be just another ho-hum Kiambu politician, a gauche parvenu with the delicate legislative touch of a sledgehammer for which political achievement is measured in the suction grip needed by his lips when sucking up.

Social media amplifies Mr Kuria's profile where his every incendiary utterance is "analysed" and discussed on endless forums and timelines. Those who loath him are united in their conviction that Mr Kuria routinely engages in "hate speech" and they actively ignore the infirmities in their core argument or remember that he has never been successfully prosecuted before any court for hate speech. 

Mr Kuria may or may not hate Mr Odinga and Luo peoples. It is possible, though, that Mr Kuria loves political power more than anything else in the world and so long as what he says keeps Mr Odinga from threatening his access to that power, Mr Kuria will engage in the vilest speech to keep it so. Every time we freak out of his words and engage in never-ending arguments as to whether he "engaged in hate speech", Mr Kuria has succeeded: we are distracted from all the other things the government that he is part of has engaged in, like the unrelenting war against our children that is being waged by boarding-schools-turned-death-traps.

Mr Matiang'i must go (Part 3)

Sometimes I leave home at extremely unsociable hours, usually around 6:00 a.m. By that unholy hour, some of the most unfortunate humans alive have been awake for two hours -- and are on their way to school. Taking the Buru Buru Uchumi Supermarket as the centre of an uneven circle, there are at least 10 state-funded primary schools within a radius of 3 kilometres and, perhaps, half a dozen private ones, yet there are children being ferried to the extreme ends of Nairobi by parents and school vans in the wee hours of the day. This unhealthy practice is presumed to end when these children cram their way into "good" schools such as Moi Girls and Alliance High. "Presumed" because in the past six moths, Alliance High has been revealed to be an institution where the adults oversee the Kenyan version of the Hunger Games while Moi Girls' adults are responsible for the deaths of some of the girls in their charge.

From what we have discovered of residential schools that are not Saint Andrews Turi, boarding schools in Kenya hold more children than they are designed to hold. Children are sleeping in triple-deck bunk beds, in overcrowded dormitories with poor ventilation and almost no safety features: fire-fighting equipment, fire alarms, outward-opening doors, non-burglar-proofed outward-opening windows or emergency independently-powered lighting systems. Classrooms are similarly inadequate; I am still not sure how a teacher can effectively teach a room of seventy children in a class designed to hold thirty and whose ventilation and lighting hasn't been adjusted to accommodate the increased number of hormonal juveniles.

It is also apparent that apart from the built environment being inadequate, the overall schools' footprints have shrunk over the past decade. It is extremely odd that the girls of Saint George's conduct part of their physical training by jogging round the school's perimeter -- from outside the school. Young girls are compelled to conduct physical exercises by jogging in and out of traffic. And they are not the only ones. All over the country, schools have lost portions of their land to land-grabbers and children now make do with physical exercise outside the school boundaries, endangering their physical well-being if not their lives. Mr Matiang'i and his underlings know this. Mr Matiang'i and his underlings have chosen to do nothing about it. Mr Matiang'i, his underlings and schools' administrators have more important fishes to fry -- the management of national exams and the cost-savings exercises that are the mother's milk of all managerialists like Mr Matiang'i and his underlings.

The Ministry of Education, Mr Matiang'i and his predecessors, and schools' administrators, with the unwitting -- and sometimes, knowing -- collaboration of parents, are waging a war  of attrition against children. "Discipline", a catchall word, is deployed to attempt to control children at all costs. A decade after corporal punishment was outlawed -- outlawed because it became an excuse for the brutal torture of our children -- education sector administrators and school heads have found other ways of abusing children in their charge. Insanely unhealthy boarding arrangements are just the tip of the iceberg. Even holidays are no longer sacred: mile-high piles of homework and holiday reading are now routine. The relentless pressure for children to "do well" in their exams by limiting the amount of time they have to play or sleep is the replacement for corporal punishment that is now leading to extreme mental distress among children.

Of the two most prominent events that have adversely affected our children in six months -- the torture at Alliance and the fire at Moi Girls -- Mr Matiang'i has sided with the schools' managers. Neither of them has been charged with negligence when it came to the injuries and deaths that their actions led to. From the moment Mr Matiang'i was appointed education minister, he has almost always sided with schools' managers -- almost always at the expense of the welfare of learners. It is no longer tenable that he should be Kenya's topmost education bureaucrat. At every turn -- especially whenever there has been a school fire -- Mr Matiang'i has sought ever more creative ways to control children and failed to offer effective solutions to make their school lives better. Mr Matiang'i does not care about their welfare. Mr Matiang'i is, after all, a manager.

Wednesday, September 06, 2017

Why Matiang'i must go (Part 2)

When Fred Matiang'i did the equivalent of rolling his eyes after it was revealed that older students at Alliance High School were torturing their juniors, it should have clued us to the callousness of managerialism as the guiding religion of today's education sector, even though the signs had always been there. From the devastating fire at Kyanguli High School to the one at Moi Girls School Nairobi, managerialism and its high priests has turned education into a commodity and educational institutions into markets.

The symptoms of managerialism's ill-effects don't just include arson attacks that lead to students' deaths, but the constant need to obtain academic credentials without being educated even a bit. Mr Matiang'i is living proof that academic credentials and managerial competence are not the same thing as being educated and as his steamroller has flattened all opposition to the proposed basic education curriculum that is being "piloted" in the country, so too his managerialist solutions to school fires will brook no criticism or counter-proposals. Managers do the math and implement solutions that have numbers at their heart, not the people affected by them.

Because of managerialism, residential schools are destroying our children's minds and souls. I swear to you I'd never heard of triple-deck bunk beds till the StephJoy fire in 2015 and I'd never actually seen one till the Moi Girls fire last weekend. What kind of sick mind came up with that solution to "overcrowding" in dormitories and hostels? My diet at Machakos School in the mid-nineties wasn't something to write home about, but it wasn't full of chaff or weevils like what I am assured is a routine matter these days. The bottom line, that terrifying tyrant to whom all managers surrender their souls to, is the reason why our children sleep in overcrowded death traps that are poorly ventilated, eat rations that we wouldn't feed our dogs, develop mental health problems because they don't sleep enough, and are under great pressure to "pass exams", bully and are, in turn, bullied, and why many of them lose their connection to reality and take extreme measure to re-exert control over their lives.

Mr Matiang'i and his fellow managers don't know anything about educating children because if they did, they would be moving heaven and earth to provide our children with safe environments to acquire knowledge, develop life skills and adopt the tools they would need to succeed in highly competitive environments. Mr Matiang'i is only interested in the numbers: how many "passed'; how many "transitioned" from one level to the next; how much did it cost (because keeping costs down is the holy grail pursued by the true believers among Kenya's managers). And because he is only interested in numbers, Mr Matiang'i will not insist on the prosecution of the headmasters and headmistresses who were in charge in 2017 when school dormitories went up in flames or students dies. These men and women were negligent. If their negligence goes unpunished Mr Matiang'i will have confirmed for the whole world that even his words of comfort to the victims of the recent fires have been plucked out of the manager's bible, intended to obscure and obfuscate his utter heartlessness and those of his acolytes.